Servesh Kumar Gupta, J.@mdashThe impugned judgment dated 12.2.2013 rendered by the Sessions Judge, Pithoragarh is under challenge through the above-titled jail appeal. Appellant Shanker Chand was found guilty for the offences of Section 376, 451 IPC. He has appropriately been sentenced for such offences. The trial pertains to PS Kotwali, District Pithoragarh. The facts as emerging out from the FIR lodged by Smt. Kalawati Devi (mother of the victim) are that when she was out of her house and her daughter Pooja @ Vimla, aged 16 years was all alone in the house, the accused appellant Shanker Chand committed rape with her daughter. On her return, as she opened the door of the house, she found the appellant lying on the cot in the room of that house. Having seen the arrival of informant in the house, the accused escaped from the spot. She asked her daughter to explain the presence of the accused. As her daughter is mentally weak and thus speaks very little, so only by indications and gestures she expressed that Shanker Chand had done wrong with her. The informant along with other family members wanted to seek clarification from Shanker Chand, but they were threatened by him throwing the challenge to do anything whatever they like. This information Ex. Ka-1 was given to the Inspector, Kotwali Pithoragarh on 15.12.2011 at about 3.45 PM i.e. after more than two days of the incident. Chick report is Ex. Ka-4.
2. Km. Pooja was taken by the police for her medical examination and the same was got done on 15.12.2011 at 5 PM in the District Hospital, Pithoragarh. The doctor found the sign of virginity was not present. Besides, vaginal swab was taken and sent to the pathologist for examination. No hymen was present. Some white substance in the form of vaginal discharge was found. In the pathological report Ex. Ka-3, spermatozoa were found visible in the smear, besides the epithelial cells were also found in that smear. On the basis of ossification test, the radiologist has opined her a girl of 16 - 18 years.
3. Statement of Km. Pooja was recorded u/s 164 CrPC, which is Ex. Ka-7 and has been proved by PW7, the Magistrate concerned. In that statement of 164, Km. Pooja has stated that on 13.12.2011, she was all alone in the house between 11 to 12 AM. Shanker Chand was in a drunken position and he did dirty act at the place of her vagina.
4. Accused was arrested by the police on 16.12.2011 and since then he is in confinement. Learned Sessions Judge levelled the charge against him for the offence of Section 376 and 452 IPC. The trial culminated into his conviction as aforestated.
5. Having heard learned Amicus Curiae as well as the State Counsel, it appears that PW1 Smt. Kalawati Devi, though not an eyewitness of the incident, but she has deposed in the chief examination that her daughter is mentally retarded and she is unable to speak with clarity. She has proved that on her arrival after 12 in the noon in the house on 13.12.2011, accused Shanker Chand was found lying on the cot while her daughter Pooja @ Vimla was standing nearby him. Having seen coming of PW1, the accused took to his heels. The daughter was found perturbed and she explained by her gestures that the appellant overpowered her by pressing her throat and to make her lay on the ground. Then he did some wrong at her vaginal place. So, she was feeling pain in vagina.
6. The prosecutrix has been examined in the Court and she has explained each and every thing narrating the incident of rape with her by the accused partly by her gestures and signs and partly by her words. The learned trial court has placed reliance on the testimony of prosecutrix supported and corroborated by her mother PW1 as envisaged u/s 119 of the Indian Evidence Act (as it stood before the amendment by Act No. 13 of 2013).
7. Learned Amicus Curiae has argued that at the most, the guilt on the part of the accused could be attributed to the extent of Section 354 IPC because the prosecutrix could not prove the complete sexual intercourse by the appellant with her. This contention is not tenable for the reason that her hymen was found torn and white discharge was found even after 48 hours from her vagina. In the vaginal smear, the spermatozoa and epithelial cells were found present and the doctor has not been examined on this score by the learned defence counsel in the trial court giving rise an assumption of presence of such spermatozoa and epithelial cells after 48 hours of the sexual intercourse. So, there is enough reason for this Court to accept that these spermatozoa and epithelial cells were of no other person, but of the semen of the accused. If he had done no wrong, then there was no reason for the accused to escape from the spot having noticed the arrival of mother of the proseuctrix in the house.
8. Even the statement of the accused u/s 313 CrPC that on the date of incident, he was lying sozzled in the agricultural field where complainant came and bate him, is a cock and bull story narrated by him. Further, he has not made any attempt to prove this statement. So, it cannot be accepted as evidence.
9. In view of what has been stated above, the Court does not feel to have been persuaded to take a different view than what has been expressed by the learned Trial Court.
10. Learned Amicus Curiae further prayed for modification of sentence stating that the accused is an unemployed youth and the sole breadwinner of his family. He is a driver by profession and resident of the same village. That apart, the prosecutrix is also mentally retarded. It has further been argued that the accused is in prison ever since his date of arrest from 16.12.2011. So, the Court thinks that his sentence can be reduced from 10 years to 7 years for the offence of Section 376 IPC. Other sentences are left intact. The period which the accused appellant has already undergone by now will be adjusted in the total period of sentence so awarded to him by the Court. With the modification as above, the appeal is dismissed on merit. Let the appellant be informed about the fate of his appeal through proper channel. Copy of this judgment and order be sent to the trial court to ensure its compliance. Lower court record be sent back.
