The Bombay High Court while dismissing an appeal against conviction filed by a 27-year-old man convicted of raping a 3 year old girl observed that the victim at such a tender age cannot be expected to reveal the manner in which the incident took place and that the prosecution has proved the offence against the accused beyond reasonable doubt.
Division bench of Justice S Shinde and Justice MS Karnik was hearing a criminal appeal filed by one Sudam Shelke who was convicted under Section 376 (2)(f) of the Indian Penal Code and sentenced to life by the Additional Sessions Judge, Nashik.
The FIR was registered by the victim's grandmother. The victim was about 3 years and 8 months of age on the date of the incident and was residing along with her grandparents and parents. The incident took place on September 12, 2014 and it occurred around 3 pm. The victim went into the hotel (dhaba) while playing. The victim's grandmother is the owner of the hotel which is just in front of her residence. The victim girl came home with a mobile phone. The accused told the victim's grandmother that the phone belongs to him and he had given the phone to the victim to play. Then the victim's grandmother carried on with her work.
Thereafter, 10-15 minutes later, the complainant's husband (victim's grandfather) came back from the agricultural field and enquired about the victim. Her grandmother informed him that she is playing in front of the house. The victim, however, was not found, therefore they searched for her. Victim's grandmother went towards the agricultural field and she heard noise of weeping from the agricultural field. The same was of her granddaughter - the victim. At that time, the complainant saw the accused running from the field towards the road.
As per the prosecution, the complainant saw that the victim had suffered injuries on her waist and blood was oozing from her private part. There were no underclothes on her person. When the complainant asked her granddaughter about the same, she was too terrified to disclose anything. The victim was taken to the hospital of Doctor Chandurkar in village Nandur, Shingote and was examined by Dr.Anita Satish Kanitkar. The doctor suspected that the said injuries might be due to sexual assault on victim and suggested that the victim should be taken to the civil hospital.
The complainant informed the victim's parents about the incident in the evening at 7 pm and the next day morning, at around 7 am, the victim disclosed to her grandmother and her own mother that the "mobilewala baba (accused) took her to the said agricultural field, removed his clothes and hers and slept on her person.
Subsequently, FIR was lodged and the investigation was carried out by Hemant Patil. Medical examination of the victim was conducted by Dr.Mahesh Khairnar and he opined on the basis of the examination the fndings are consistent with recent sexual assault. He deposed that the injury was recent within 24 hours. The collected samples were handed over in a sealed condition to the police constable.
Advocate Aniket Vagal appeared on behalf of the appellant accused and cross examined the complainant's grandmother. Adv Vagal suggested that the activities in the feld would not be visible from her house and therefore the complainant could not have noticed the incident or the accused running away from the feld. He also tried to suggest that bajra crop was thick and the incident could not possibly have taken place in the agricultural field. The defence argued that the victim went to answer nature's call in the agricultural field which resulted in the injuries.
After examining all the facts and evidence presented before it, Court observed-
"We find no merit in the contentions of the accused that as the accused has not sustained any injuries on his private part, his complicity is ruled out. The victim is only 3 years and 8 months old. The trial Court has observed that medical jurisprudence shows that in young children, there are few or no signs of general violence, for the child usually has no idea of what is happening and also incapable of resisting. The hymen is deeply situated and as the vagina is very small, it is impossible for the penetration of the adult organ to take place. Usually the penis is placed either within the vulva or between the thighs. As such the hymen is usually intact and thereby may be little redness and tenderness of the vulva. To attract the provisions of section 376 of IPC, complete penetration is not required, slight penetration is also sufficient. We are in agreement with the view of the trial Court that no benefit can be given to the accused merely because he has not sustained any injury on his private part."
Moreover, the bench rejected the defence's arguments-
"In the present facts the evidence shows that on the date of the incident the victim was not in a position to narrate anything about the incident which is but natural considering her tender age. She had to be taken to the hospital for treatment. It is next day morning on 13/09/2004, she disclosed about the incident. At 8 am the report was lodged. The victim was hardly 3 years and 8 months old on the date of the incident. In such circumstances, it cannot be said that there is any delay in lodging FIR. It can hardly be expected of her to reveal the manner in which the incident happened and that too with promptitude."
Dismissing the appeal, Court said-
"So far as question of punishment is concerned, we are of the same view as the trial Court that having regard to the fact that the accused is 27 years of age, a resident of the same village who betrayed the trust of the victim & became a violator deserves no leniency. We therefore do not find any infirmity in the order passed by the trial Court, consequently, Appeal is dismissed."