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Criminal Appeal No. 9 of 1982, decided on 19th April, 1982.

‑‑S. 376‑Rape‑Medical evidence‑Rupture of hymen in one of rape on minor girls‑A rare phenomenon and not necessarily a precondition to bring guilt home to accused.

S. 376‑Rape, offence of‑Victim of criminal assault a minor girl about 8/9 years old, found bleeding profusely‑Medical examination of her vulva showing redness, swelling and tenderness Such signs of violence, held, go a long way to indicate rape being committed on her ‑ Mere fact of hymen remaining intact would not prove it a case of attempted rape‑Contention that presence of redness and swelling etc on vulva of victim not sufficient to prove commission of offence of rape with prosecutrix as such condition of vulva could be brought about or created by rubbing it with a hard substance to falsely implicate a, accused‑Held further, of no avail in circumstances.‑Conviction maintained.‑[Rape].

Muhammad Saeed for Appellant.

Rafique Mahmood Khan, Additional A.‑G. for the State.

Date of institution : 3rd October, 1981.

This is an appeal by Muhammad Aslam, appellant against his conviction and sentence thereof awarded to him under section 376, P. C. by a section 30 Magistrate, Dhirkote for a term extending to five years' rigorous imprisonment but no fine as warranted.

According to the prosecution, Mst. Zobaida, a minor girl of about 8/9 years of age while returning from the house of her mother's sister on 23rd June, 1978, when sh reached near the house of the appellant, a dog from his house was let loose, which rushed towards her who being terrified and dreaded took her way back to a forest nearby in order to save herself from the chasing dog, where she was assaulted by the accused‑appellant and after forcibly taking her 'shalwar' off committed rape on her person. She raised hue and cry attracting the arrival of an old lady Mst. Bahadur Bi by name who was nearby taking her buffalo somewhere to get the same mated. On seeing the aforesaid lady, the accused‑appellant ran away from the scene of occurrence. Mst. Bahadur Bibi noticed the painful condition of the child who was bleeding from her vagina due to alleged rape committed on her. The child narrated the entire incident to the old woman who asked her to go to her mother and inform her all about. the crime committed by the accused appellant. The victim then came to her mother, Mst. Begum Jan by name, at home, who was told all about the incident. The mother examined the girl and found that rape was committed on her as disclosed. She i.e. the little girl, was bleeding from the vagina. The shalwar' which were worn one after the other by the victim after the occurrence were besmeared with blood but were washed by the mother without knowing the implica tions thereto in relation to the proof of the crime.

The father of the victim was away from home who was awaited to take the matter to police and on whose return from Pindi, the first information report Exh. P.A. was lodged by him on 26th May, 1978 a: Police Station Dhirkote situated at a distance of about 12/13 miles.

The usual investigation was completed by the police and challan under section 3761511. P. C. was placed before the Court for trial against the accused‑appellant. Section 511, P. C. was brought into operation as the lady Doctor examining the girl, a victim, reported that the rape was tried on the girl.

The accused pleaded not guilty to the charge and further denied to have committed the offence of rape while examined under section 342, Cr. P. C. and further pleaded thereto that he being too small was not capable of having a sexual intercourse.

The prosecution examined Muhammad Ismail Khan, Mst. Zobaida, Mst. Babadur Bi, Mst. Begum Jan, Lady Doctor Mrs. Khawaja Shahmali. Syed Asghar Hussain Shah Head Constable and Sardar Muhammad Ashraf Khan, S. H. O. to establish the crime alleged against the accused appellant.

Muhammad Ismail, the complainant testified the report Exh. P. A. regarding the occurrence as it was disclosed to him by the victim and the mother of the victim who was informed of the commission of the crime as detailed above.

One Mst: Zahida, a minor girl of about 6,17 years of age was also cited as a witness to the occurrence who saw the accused‑appellant while assaulting Mst. Zubaida, the child. But this small girl being very closely related to the accused‑appellant, was not produced by the Prosecution. She was of very tender age who could not be expected at the relevant time to have stated the occurrence in the manner it was alleged to have happened. However, she was produced by the defence at the age of 9110 years in 1981 who refused to have seen any occurrence for which the accused‑appellant was challaned by the police. Mst. Bahadur Bi P. W. supported the prosecution case in toto. She witnessed the accused appellant lying on the person of the minor girl when she was attracted to the scene of occurrence by the noise raised by the victim on the assault having been made upon her while she (witness was moving with her buffalo near the scene of occurrence. The assailant on seeing the old lady, ran away from the scene of occurrence. The small girl was seen by the old lady who found her molested and raped by the accused‑appellant. Mst. Begum Jan, mother of the victim stated the incident as she was told by the daughter coupled with the circumstances noticed herself on personal examination of the victim. And she also found that the rape was committed on the child who was bleeding from her vagina profusely, The 'Shalwars' which were used by the victim after the occurrence, were stained with blood flowing out of her vagina but they were washed just to clean them.

The Lady Doctor Mrs. Khawaja Shahmali examined the girl who was then below the age of 12 years. The occurrence allegedly had taken place on 23rd June, 1978 but she‑the examinee, could be brought before the Lady Doctor at Muzaffarabad on 29th June, 1978 for her examination and on this date when she was medically examined, her vulva had redness and swelling on it and it was also found tender. The hymen was not ruptured. It was intact. It was for the hymen being intact that the Lady Doctor opined that rape was tried on the prosecutrix. Nothing of violence on lather parts of the body of the girl was described by the Lady Doctor. No vaginal swabs were taken out of the vagina of the girl, perhaps this was not done as she was examined after the expiration of a period of 6 days from the date of occurrence.

The contention of the, learned counsel for the appellant is that presence of redness and swelling etc. on the vulva of the girl, a victim, does not prove that the offence of rape was committed with her as according to him such a state or condition of vulva could be brought about or created by the parents of the girl by rubbing it with a hard substance to falsely implicate the accused appellant just to take away the property which was inherited by the mother of the accused‑appellant from a deceased person of the family of the complainant. And this being the position, the enmity between the two sides is admitted over the land inherited by the mother of the appellant. Such an instance involving falsity cited by Mr. Modi in his book from India where we have different clans out of whom some may not be keen or sensitive in respect of their honour and reputation to be damaged while falsely implicating a person in such an offence, inimical to them. But here to our land viz. Azad Kashmir we do not have such clans who may themselves spoil the reputation of their females and bring bad name to the entire family thereto while bringing false charges of rape committed upon the daughters who are virgins and are yet to choose their husbands, woman or girl of a spoiled reputation in such a manner may not easily and conveniently have a man or boy to marry and so no parents can resort to such a condemned recourse in order to gain wordly effects.

Muhammad Ismail, the maker of the first information report being the father of the unfortunate girl who was ravished by the appellant could not have even dreamed of a false case made against the ravisher of his daughter at the cost of the honour and reputation of his small daughter who was yet to find and marry a boy of good manners.

Mst. Bahadur Bibi is an old lady; no doubt she is related to the complainant but at the same time the appellant is also very much related to her. She being an old lady whose credendum and credibility could not be shaken by the defence in any manner, whatsoever cannot be believed to have told lies in order to falsely implicate the appellant. She could have had no motive, whatsoever, against the appellant. Her statement inspires confidence and nothing wrong can be attributed to her credence and credibility in having made the, statement against the appellant.

The act of penetration was clearly stated by the victim that male organ i.e. penis was penetrated into her vagina by the appellant which being very painful led to profuse bleeding. The manner to which the flowing out of blood from the vagina was seen by Mst. Bahadur Bibi, P. W. and the mother of the girl., undoubtedly, shows that Mst. Zobaida, a small girl was right in telling them that rape was committed with her. The signs of violence which were found on the vulva of the girl also go a long way to indicate that rape was committed on her. In case of a girl of tender age as the victim was here, the rupture of her hymen might not occur as is very well given by Mr. Modi in his book of Medical, Jurisprudence and so the Lady Doctor was mistaken in giving her opinion to the effect, that as hymen was intact, the commission of the offence of rape was not there but an attempt to rape. "In the small children the hymen being situated high up in the canal, is not usually ruptured, but may become red... She was not freshly examined. By the passage of time, the other marks of injuries liable to occur must have disappeared. The simple reason given by the Lady Doctor that the girl was tried for rape, is that of not rupturing of the hymen simpliciter and rupturing sometimes might not take place. That being so, the Lady Doctor was absolutely wrong in forming her opinion in relation to the offence actually committed. This is the case here. The vulva of the victim bore the marks of violence even after six days, viz. redness, swelling and tenderness, though the hymen remained intact, which evidently lead to the irresistible conclusion of rape committed with the female small.

The offence of rape committed by the accused‑appellant was fully established by the evidence of the victim which was further corroborated by the evidence of two women, namely, Mst. Bahadur Bi and Begum Jan, P. Ws. as well as by the report of the woman medical officer who on examination of the private part of the girl, discovered signs of violence on her vulva leading to the conclusion that forcible sexual intercourse was committed with the small girl

The contradiction in the dates of absence of the complainant from the house and his return from Pindi may be due to short memory of the father and the girl who is not in a position to remember material dates and much more the eagerness of the police incorporating wrong dates in the first information report to explain delay to lodging report but it does not effect adversely the merits of the case in the vivid described above in any manner so as to hold that no incident of rape had taken place at all.

The plea of the appellant that he was of very tender age at the time of occurrence of the incident, does not find support from the record and by his appearance before the Court, 1 do not think that he could have claimed this tenderness of age. At the time his statement under section 242, Cr. P. C.. was recorded by the trial Court on 26th December, 1978, he himself gave his age 17;18 years and so school certificate would not help him. According to it, even he was about 16 years of age at the time of occurrence but we find obviously that he was above the age of 16 years m any case at the time, the incident took place. In schools we do not generally have the correct age of a scholar entered at the time of his admission. He was quite capable of have sexual intercourse as he had even crossed the age of puberty at the relevant time. This is a crucial age of a boy to haunt an apposite sex in order to satisfy his lust and for this, the small child who could have had no power or strength to put up resistance to the bad act to be done on her person was picked up by him.

Therefore, I am not prepared to hold that a false case was made against the accused‑appellant in order to secure property from the mother of the appellant. The evidence of the defence witness namely Abdul Majid, a real brother of the appellant Mst. Zahida, a cousin and Muhammad Jamshaid is of no avail to the appellant. By the dispute, over the property, it cannot be held that the appellant was falsely involved in the case of rape by the parents of the victim. For the reasons already advanced while considering the prosecution evidence no weight lies in the balance of defence evidence. Under section 376, P. C. the trial court failed to pass punishment of fine in addition to the imprisonment passed against the appellant and thus a legal requirement of mandatory nature was not acted upon. Therefore, keeping in view the aforesaid circumstances of the case, I reduce the sentence of imprisonment from five years to four years and also pass a sentence of fine of Rs. 2,000 against the appellant in default of which he shall have to suffer a further rigorous imprisonment of one year.

That being so, this appal is dismissed, however, with a little bit of modification in the sentence awarded by the trial Court.

Appeal dismissed.

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