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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.192 OF 1990
(By State against acquittal)
The State of Maharashtra ).. Appellant
Versus
Suresh Shankar Jadhav, )
Age : 21 years, R/o. Gursale,
ig )
Tal. Khatav, Dist. Satara. ).. Respondent
(Org.Accused)
Shri P.S. Hingorani, Additional Public Prosecutor for the State.
Shri M.K. Kocharekar for the Respondent.
CORAM : SWATANTER KUMAR, C..J &
S.C. DHARMADHIKARI, J
JUDGMENT RESERVED ON : 15TH APRIL, 2009
JUDGMENT PRONOUNCED ON : 7TH MAY, 2009.
JUDGMENT : ( PER SWATANTER KUMAR, CJ )
The Accused Suresh Shankar Jadhav was charged for
an offence punishable under Section 376 of the Indian Penal Code
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hereinafter referred to as the "Code" and Section 57 of Bombay
Children Act, 1948. The learned Trial Court, vide its judgment
dated 30th November, 1989, found the accused not guilty and
acquitted him of the charge above-referred. The State being
aggrieved from the said judgment of acquittal recorded by the
Trial Court ( Iind Additional Sessions Judge, Satara ) filed an
application for leave to appeal which was granted by a Division
Bench of this Court on 25th June, 1990. The case came up for
regular hearing before another Division Bench of this Court and
the Court, vide its Judgment dated 4th May, 2007 upheld the order
of the Trial Court acquitting the accused of the offence punisable
under Section 376 of the Code, however, convicted him for an
offence punishable under Section 376 read with Section 511 of the
Code as well as Section 57 of the Bombay Children Act. The Court
sentenced the accused under Section 376 read with Section 511 of
the Code to suffer rigorous imprisonment for a period of five years
and to pay fine of Rs.3,000/- in default to suffer rigorous
imprisonment for three months. The Court also sentenced the
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accused under Section 57 of the Bombay Children Act to suffer
rigorous imprisonment for two years and to pay fine of Rs.1,000/-
in default to suffer rigorous imprisonment for one months. This
judgment of the Court was assailed by the accused in appeal
before the Supreme Court where the leave was granted and
Criminal Appeal No.1454 of 2007 was heard and the same was
disposed of by passing the following order :-
"THE Appeal above-mentioned being called on for
hearing before this Court on the 22nd day of October,
2007, UPON perusing the record and hearing counsel
for the parties herein, THIS COURT, inter alia, PASS the
following ORDER:
xxxxx xxxxx xxxxx
"Having heard the learned counsel for the
respective parties, we are inclined to remit the matter to
the High Court for a fresh decision, but we also make it
clear that the appellant before us shall be given a
specific date by the High Court on which date he shall
appear so that the matter can be taken up and disposed
of. The impugned judgment is thus set aside on the
aforesaid ground alone and the matter is remitted to
the High Court for fresh consideration. The appeal is,
accordingly, disposed of.
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Since the appellant has surrendered on 5th July,
2007 and there is an order of acquittal in his favour, he
shall be set at liberty forthwith and the appeal may
proceed before the High Court."
AND THIS COURT DOTH FURTHER ORDER that
this Order be punctually observed and carried into
execution by all concerned"
2. Resultantly, upon remand, this Appeal has came up for
hearing before this Bench. Various contentions have been raised,
the merit or otherwise of which can be examined by this Court but
before that, reference to the facts of case of prosecution would be
necessary.
3. The case of the prosecution reflect that the victim,
lodged a complaint with Vaduj Police Station on 11th August, 1987
stating that a person from her village by name Suresh Shankar
Jadhav had committed rape on her at 1.30 p.m. Thereafter, First
Information Report was recorded. This complaint came to be
registered as Crime No.78 of 1987 under Section 376 of the Code
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and Entry No.18 was made in the Station Diary. The victim was
examined during the trial as P.W.7 where she stated the facts
which are quite in line with the complaint lodged by her. The
prosecutrix was studying in 7th standard. Her father is a Tailor,
brother Mahesh is a Painter and elder sister Manjusha was doing
household work. According to her, on 11th August, 1987, she
along with her brother and sister was going to Balubai Devi of
Umbarda. She was going on cycle with her brother. They all met
in the temple Balubai. They were returning while walking upto
Umbarda, when Suresh Shankar Patil was coming from behind on
his cycle. Brother of the prosecutrix asked Suresh Patil to carry her
on his cycle. She was sitting on the bar of cycle and he had kept
some books etc. on the carrier of the cycle. The accused instead of
dropping the victim on the hillock of the road, carried her to his
house. The house was locked. The accused asked her to wait
there with his books and went to bring key from his land. After
nearly 5 to 10 minutes, he returned and after opening the lock, he
entered into the house and called the victim and told her that he
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would provide her with groundnuts. She went to the house of the
accused. According to the victim, the accused closed the door,
caught hold of her, made her lie on the ground on the gunny bag,
and after lifting her parkar, lowering her nicker and removing his
pant, he inserted his penis in the private part of the victim.
Because of this, there was bleeding from her private part. There
was some whitish liquid and blood spread over on gunny bags and
her clothes which were wiped out by the accused by using paper
from exercise book and threw it near the door. Thereafter, he
released the victim and opened the door. When the victim was
wearing the clothes, her brother came. Her brother inquired from
her as to what had happened. When the accused was asked by her
brother, the accused told him that the victim was eating
groundnuts in the house and then she went back with her brother
to the house.
4. On reaching their house, her brother told her mother
that something strange must have happened. Her mother asked
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her what was the matter and then she told about the incident to
her mother. She even washed her clothes and in the evening she
went to the Police Station with her mother to lodge the complaint.
To prove this version of the victim, the prosecution examined 12
witnesses including the Investigating Officer, Doctor, the panchas,
brother and mother of the victim and the victim herself, amongst
other witnesses.
5. The learned trial Court had framed charge against the
accused for committing an offence punishable under section 376 of
IPC and under section 57 of the Bombay Children Act vide charge
dated 23rd October, 1989 (Exhibit 3). Upon completion of the
prosecution evidence, statement of the accused was recorded
under section 313 of the Criminal Procedure Code (Exhibit 4)
wherein the accused stated that the prosecution story was false.
Finally, the learned trial court came to the conclusion that the
prosecution had failed to prove its case beyond reasonable doubt
and consequently, acquitted the accused of both the offences. As
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already noticed, the State has preferred present appeal against the
judgment of acquittal of which leave has been granted by the
court. It is contended on behalf of the State that the learned trial
court has ignored the relevant piece of oral as well documentary
evidence. The evidence of the expert (Doctor PW 11) was in total
contradiction to the other evidence and ought not to have been
relied upon solely to acquit the accused. It is also argued in the
alternative while relying upon the judgment of the Supreme Court
in the case of Premiya @ Prem Prakash v. State of Rajasthan, 2008
All MR (Cri) 3203 (SC) that the offence under section 354 read
with section 511 had been proved and the learned trial court in
any case should have convicted the accused for that offence. The
statement of the prosecutrix was fully corroborated and supported
by the statement of other witnesses i.e. Investigating Officer as
well as the report of the Chemical Analyser (Exhibit 41). As such,
there was no justification before the learned trial court to acquit
the accused of a heinous crime like raping a minor girl. However,
on the other hand, it is contended while relying upon Ghurey Lal
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v. State of U.P., 2008 All MR (Cri.) 2873 on behalf of the
respondent-accused that in case of an acquittal, normally the
Appellate Court should not interfere. It is also contended that there
was expert and other evidence which has been rightly taken note
of by the learned trial court in addition to the fact that the FIR
itself was lodged after great delay and that justifies the acquittal of
the accused and as such this court should not interfere in the
finding of the judgment under appeal.
6. At the very outset, we may look into the reasons
recorded by the learned trial court for acquitting the accused.
While making reference to the statements of the victim and other
witnesses, it placed great emphasis on the evidence of PW11 Dr.
Ashok Jagannath Pawar who stated that there has to be injuries on
the body and private parts of the victim and it was difficult to
admit small finger in the private part of the victim and pain has to
be there where penis penetrated in a private part by force and
there has to be rupture of the hymen which was not noticed by
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him during the medical examination. While relying upon the
judgment of Bhagat v. State of Maharashtra, 1986(2) Bombay
Crime Report, 175 and 1980 Cri.L.J. 111 and particularly
referring to the evidence of the doctor, the trial court observed:
"If we see evidence of doctor, who examined
complainant, it is quite contrary to the evidence of
complainant that accused committed rape on her by
inserting his penis in her private part completely. It is
submitted that witnesses may lie, but the circumstances
do not. If, there was profused bleeding from the private
part of the complainant, injuries bound to occur on the
private part as stated by doctor. When there was no
such injuries, there must be bleeding from her private
part. Further, it is submitted that vagina cavity was of
small and it was difficult to admit a small finger."
7. The Court also noticed that the Investigating Officer
had not taken the victim to the Public Health Centre which was
only at the distance of one furlong from the Police Station and had
taken the victim to Satara Civil Hospital. Primarily based on these
two factors, the Court recorded judgment of acquittal.
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8. We are unable to accept the reasoning recorded by the
learned trial court for variety of reasons which we shall shortly
discuss in some detail. The victim was examined as PW7 and her
statement is at Exhibit 22. The court noticed that the witness was
studying in the 7th standard and was aged nearly 13 years. After
asking her some formal questions, her statement was recorded.
She stood by her version as given in the FIR Exhibit 23 and stated
that on asking of her brother, the accused had made her to sit on
the rod of the cycle and instead of dropping her at the house at
Hillock, took her to his place. The house was locked. He asked
her to wait with the books which he was carrying at the carrier of
his cycle. He returned after 5/10 minutes with the key and asked
her to come to his house saying that he will give her groundnuts.
She followed the accused. He closed the door. After removing her
clothes, accused committed rape on her by inserting his penis into
her private part. Blood came out from the private part of the
victim and there was whitish liquid as well. Her brother had come
near the house of the accused while she was wearing her parkar.
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According to her, her clothes as well as clothes of the accused
contained blood and semen which was also cleaned by accused by
using paper from the exercise book. The accused told the brother
of the victim that she was taking groundnuts. Then she went to
her home. Upon enquiry by her mother, she told the incident and
then they went to the Police Station at about 7.30 in the evening
where her complaint was recorded and FIR was registered as
Exhibit 23. It may be noticed that in the cross-examination, a
question was put to the victim that she had sexual intercourse with
the accused even earlier to which she answered as follows:
"Still I have not attained M.C. There was no
occasion of incident of sexual intercourse with me any
time prior to the incident with anybody. All love me in
the house as I was youngest member in the house."
She admitted that she did not bite the accused or scratched her
fingers over the accused and she stated that she tried to escape
which the accused did not permit.
9. Her version has been fully supported by her brother
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who was examined as PW8 (Exhibit 24). According to her brother,
he had requested the accused if he could carry the victim on his
cycle who answered in the affirmative and victim was sitting on
the rod of the cycle. He asked the accused to drop her near a
Tekada (hillock). The accused carried the victim with him. When
the brother of the victim reached home, he found that she had not
reached the house. He, therefore, enquired with the mother and
then went to the fields of the accused where nobody was there
and then went to the house of the accused and when he entered
the house of the accused, he saw the accused coming out in a lungi
and when he made enquiry from him, he told that victim was
eating groundnuts and he saw that she was wearing `parkar'.
On
enquiry with the victim as to what had happened, she did not
speak and was crying. He took the victim on his cycle to his house
when victim told her mother what had happened. Both these
witnesses had identified the clothes which the accused was
wearing on the date of occurrence and the victim also identified
the lungi and other items which were recovered from the house of
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the accused. The mother was also examined as PW10 (Exhibit 29)
who supported the case of the prosecution. Despite the lengthy
cross-examination, nothing material came out from evidence of
these three witnesses.
10. Three panchanamas, one dated 11th August, 1987 and
two others dated 12th August, 1987 were proved by PW2, PW5 and
PW6 respectively. The place of incident was shown by the victim
and from the house it was noticed that there were baskets, four
gunny bags filled with groundnuts and the groundnuts had come
out of the gunny bags. The blood stained paper was recovered
from behind the door. It had reddish and white colours. The
gunny bag was found with the mark "Jai Kishan". All these items
were recovered vide panchanama Exhibit 11. It was proved by
PW2 Sudhakar. The clothes of the prosecutrix were recovered by
panchanama Exhibit 13. Vide Exhibit 15, the clothes of the
accused viz. pant which was blood stained and an old underwear
were seized and Lungi of the accused having 2-3 blood stains was
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recovered by Exhibit 16 on 18th August, 1987. All these recoveries
were made in the presence of panchas PW2, PW3, PW4 and PW5.
The cycle was also recovered and seized vide panchanama Exhibit
18 and the accused was arrested and upon his arrest, personal
search was conducted in the presence of pancha PW6. All these
panchas have supported the recoveries and stood by their
respective statements. PW6 Shingade has even stated that clothes
of the accused were stained with blood which were recovered from
his person at the time of his arrest.
11. Vide letter Exhibit 37, the Investigating Agency had
sent the clothes, paper, the old gunny bag, lungi and tubes
containing the blood samples and semen of the accused for
Chemical Analysis. The report of the Chemical Analyser was
received by the Investigating Agency and is proved in accordance
with law in court on 29th January, 1988 (Exhibit 41). Relevant
portion of the report reads as under:
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"Description of parcel.
-Eight sealed parcels seals intact and as per copy sent.
-One sealed phial seals intact and as per copy sent.
-One sealed small parcel and two sealed phial seals intact device-
-MEDICO LEGAL BOMBAY" and no copy sent.
Description of articles contained in parcel.
1. Paper wrapped in paper labelled .-1
2. Gunny bag wrapped in paper labelled .-2
3. Petticoat wrapped in paper labelled .-3
4. Petticoat wrapped in paper labelled.-4
5. Jangya wrapped in paper labelled.-5
6. Full pant wrapped in paper labelled.-6
7. Under pant wrapped in paper labelled.-7
8. Lungi wrapped in paper labelled.-8
9. Semen in a phial labelled Suresh Shankar Jadhav.
10.Blood in a phial labelled Suresh Shankar Jadhav.
11.Pubic hair wrapped in paper labelled Suresh Shankar Jadhav.
12.Blood in a phial labelled Kum. Manisha Uttam Chinchalkar.
----------------------------------------------------------------------------
RESULT OF ANALYSIS
–Exhibits (1) is stained with blood-
–Exhibit (2) has one blood stain about 1 cm in diameter at lower
end-
–Exhibit (3) has one small blood stain at upper side and appears
to be.-
-washed-
-Exhibits (4) and (5) are stained with blood at place and appear to
washed.-
-Exhibit (6) has two blood stains each of about 1 cm in diameter
on left-
-middle portion.
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-Exhibit (7) has moderate number of blood stains ranging from 0.1
to 5 cms-
-in diameter spread at places-
-Exhibit (8) has two blood stains each of about 1 cm in diameter at
middle portion.
–Exhibit (1) has one semen stain about 2 cms. in diameter at one
end-
–No semen is detected on exhibits (2),(3),(4),(5),(6),(7) and (8)-
–Blood detected on exhibits (1),(2),(3),(4),(5),(6),(7) and (8) is
human–
–Semen detected on exhibit (1) is human–
–Exhibits (3),(4),(5),(6) and (7) are stained with blood of `B’
group–
–Exhibit (1) is stained with semen of blood group `A’–
–Blood group of blood detected on exhibits (1), (2) and (8) can
not be determined as the results are inconclusive–
–Exhibits (9) and (10) are of blood group `A’ —
–Exhibit (12) is of blood group `B’–
–No semen is detected on exhibit (11)–
Sd/- F.J. Beriwale.
Asstt. Chemical Analyser to Govt.
Regional Forensic Science Laboratory,
Pune.”
12. From the bare reading of the above report, it is clear
that Exhibit 1 the paper was stained with blood and semen and it
was the same paper which was recovered from the site in question.
Blood was detected at Exhibits 1,2,3,4,5,6,7 and 8 which was
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stated to be the human blood. The blood group of accused Suresh
Shankar Jadhav was `A’ and that of the prosecutrix was `B’ and
Exhibit 1, the paper was found with semen of Group `A’. This
was the report of the Chemical Analyser which largely supported
the case of the prosecution except to the extent where it noticed
that it was not possible to give a determinative finding.
13.
The only evidence that did not fully support the case of
the prosecution was the statement of the doctor which has been
heavily relied upon by the learned trial court. According to the
said doctor (witness No.11 Exhibit 13), prosecutrix was brought to
the hospital by the police and he had examined her. He did not
notice any external injuries. Hymen was intact. The doctor stated
that upon examination the age of the girl was found to be
between 8 to 11 years. The Medical Officer also stated that semen
and blood stains get washed away, if they are washed. He also
stated that bleeding is possible from private part by mere
penetration by penis though hymen is not torn. He also admitted
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that he had not collected the swab in the case. The statement of
the doctor does suggest that the hymen was not torn and there
were no external injuries on the body of the victim. Firstly, it is
difficult to rely upon this expert witness as there seems to be
apparently some contradiction and some unreliability in the
statement of this witness. Doctor himself has stated that it is
possible that there could be bleeding by insertion of the penis in
the private part of the female without rupture of hymen.
Secondly, there was hardly any occasion for the doctor to record in
report Exhibit 31 that it was not a case of rape merely because
there were no bodily injuries and there was no discharge from the
Vagina and hymen was in tact. The reliance by the learned trial
court mainly upon the statement of this witness is not justifiable.
The statement of the expert witness should be read with the other
ocular and documentary evidence on record of the case. Merely
because there is some doubt created by the expert’s evidence in the
case of prosecution it may not necessarily justify passing of an
order of acquittal. In the present case, the statement of all the
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other witnesses and the circumstantial evidence clearly and
without doubt indicate and establish the guilt of the accused.
14. We may examine the law laid down by the Supreme
Court in relation to various aspects of the present case.
15. It may be noticed that the victim was examined by
another doctor after two days of the occurrence of the incident and
she had complained of severe back ache. This doctor was also
produced as witness No.9 at Exhibit 25. The doctor of course,
admitted that he had not examined her on the point of view of
rape but stated that she had come to him on 14.8.1987 and again
on 15.8.1987. He had collected the blood sample and given it to
the police. He stated that the yadi (letter) of the police described
it to be a case of rape and that the victim was complaining of back
pain and he gave her medical treatment and opined that such pain
is possible in the case of rape. Merely because the victim was not
examined at the Primary Health Centre but was taken to Civil
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Hospital later will not support defence of the accused and it cannot
be attributed to the victim who had suffered on account of offence
committed by the accused. This could hardly create doubt in the
case of the prosecution. The Civil Surgeon had asked the PSI as to
why prosecutrix was not examined in the Primary Health Centre
and it had come on record that there was no female doctor
available, therefore, victim was not instantaneously examined.
Whatever may be the reason but certainly this cannot be a ground
for giving benefit of doubt to the extent of acquittal of accused in
the case.
16. It is a settled principle now that sole statement of a
victim can be made the basis of conviction of an accused and in a
given case it may not be even necessary to have corroboration
from other sources provided the court finds that statement of the
witness satisfies the judicial conscience. Statement of prosecutrix
in rape case is not less reliable than that of the injured witness. It
would be more so where it is supported by the statement of other
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witness as well as expert evidence. In the case of State of Punjab
v. Gurmit Singh and another, (1996) 2 SCC 384, the Supreme
Court while stating the above principle of law even cautioned that
in cases involving sexual molestation, the court should deal with
such cases with utmost sensitivity and even minor contradiction or
discrepancies would not be sufficient to attach unreliability to the
statement of the victim. In the case of Ranjit Hazarika v. State of
Assam, (1998)8 SCC 635 while following the above judgment,
the Supreme Court further emphasized the need for reliance to be
placed upon the statement of the prosecutrix and held as under:
“6. The evidence of the prosecutrix in this case
inspires confidence. Nothing has been suggested by the
defence as to why she should not be believed or why
she would falsely implicate the appellant. We areunable to agree with the learned counsel for the
appellant that in the absence of corroboration of the
statement of the prosecutrix by the medical opinion, the
conviction of the appellant is bad. The prosecutrix of a
sex offence is a victim of a crime and there is norequirement of law which requires that her testimony
cannot be accepted unless corroborated. In State of
Punjab v. Gurmit Singh to which one of us (Anand, J.)
was a party, while dealing with this aspect observed:
(SCC pp. 395-96, para 8)
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“The courts must, while evaluating evidence,
remain alive to the fact that in a case of rape, no
self-respecting woman would come forward in a
court jut to make a humiliating statement against
her honour such as is involved in the commission
of rape on her. In cases involving sexual
molestation, supposed considerations which have
no material effect on the veracity of the
prosecution case or even discrepancies in the
statement of the prosecutrix should not, unless the
discrepancies are such which are of fatal nature, be
allowed to throw out an otherwise reliable
prosecution case. The inherent bashfulness of the
females and the tendency to conceal outrage of
sexual aggression are factors which the courts
should not overlook. The testimony of the victim
in such cases is vital and unless there are
compelling reasons which necessitate looking for
corroboration of her statement, the courts should
find no difficulty to act on the testimony of a
victim of sexual assault alone to convict an accused
where her testimony inspires confidence and is
found to be reliable. Seeking corroboration of her
statement before relying upon the same, as a rule,
in such cases amounts to adding insult to injury.
Why should the evidence of a girl or a woman who
complains of rape or sexual molestation be viewed
with doubt, disbelief or suspicion? The court while
appreciating the evidence of a prosecutrix may
look for some assurance of her statement to satisfy
its judicial conscience, since she is a witness who is
interested in the outcome of the charge levelled by
her, but there is no requirement of law to insist
upon corroboration of her statement to base
conviction of an accused. The evidence of a victim
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of sexual assault stands almost on a par with the
evidence of an injured witness and to an extent is
even more reliable. Just as a witness who has
sustained some injury in the occurrence, which is
not found to be self-inflicted, is considered to be a
good witness in the sense that he is least likely to
shield the real culprit, the evidence of a victim of a
sexual offence is entitled to great weight, absence
of corroboration notwithstanding. Corroborative
evidence is not an imperative component of
judicial reliance on the testimony of the
prosecutrix is not a requirement of law but a
guidance of prudence under given circumstances.
It must not be overlooked that a woman or a girl
subjected to sexual assault is not an accomplice to
the crime but is a victim of another person’s lust
and it is improper and undesirable to test her
evidence with a certain amount of suspicion,
treating her as if she were an accomplice.
Inferences have to be drawn from a given set of
facts and circumstances with realistic diversity and
not dead uniformity lest that type of rigidity in the
shape of rule of law is introducted through a new
form of testimonial tyranny making justice a
casualty. Courts cannot cling to a fossil formula
and insist upon corroboration even if, taken as a
whole, the case spoken of by the victim of sex
crime strikes the judicial mind as probable.”
We are in agreement with the aforesaid viewed.”
17. In the case of State of Punjab v. Ramdev Singh, (2004)
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1 SCC 421, the Supreme Court emphasized and while interfering
with the judgment of acquittal by the High Court stated that the
greater sense of responsibility is needed to be provided in cases of
charges of sexual assault on women, particularly of tender age and
children. The court even went to the extent and held that this is a
crime against basic human rights and violates the protection under
Article 21 and court should deal with cases of sexual offences
sternly and severely to protect constitutional command. In the
case of Dinesh Alias Buddha v. State of Rajasthan, (2006)3 SCC
771, the Supreme Court reiterated the principle that corroboration
is not a sine qua non for evidence of the victim which could be the
basis for conviction. Once as a whole, there is sufficient
circumstantial and other evidence, conviction cannot be avoided.
In that case, a girl of 12 years was raped and the court held thus-
“8. The offence of rape occurs in Chapter XVI IPC. It
is an offence affecting the human body. In that chapter,
there is a separate heading for “Sexual offences”, which
encompasses Sections 375, 376, 376-A, 376-B, 376-C
and 376-D IPC. “Rape” is defined in Section 375 IPC.
Sections 375 and 376 IPC have been substantially
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changed by the Criminal Law (Amendment) Act, 1983
and several new sections were introduced by the new
Act i.e. Sections 376-A, 376-B, 376-C and 376-D. The
fast sweeping changes introduced reflect the legislative
intent to curb with iron hand, the offence of rape which
affects the dignity of a woman. The offence of rape in
its simplest term is “the ravishment of a woman, without
her consent, by force, fear or fraud”, or as “the carnal
knowledge of a woman, by force against her will”. “Rape
or raptus” is when a man hath carnal knowledge of a
woman by force and against her will (Co. Litt. 123 b);
or, as expressed more fully, “rape is the carnal
knowledge of any woman, above the age of particular
years, against her will; or of a woman child, under that
age, with or against her will” (Hale P.C. 628). The
essential words in an indictment for rape are rapuit and
carnaliter cognovit; but carnaliter cognovit, nor any
other circumlocution without the word rapuit, are not
sufficient in a legal sense to express rape [1 Hen.6, 1a, 9
Edw. 4, 26 a (Hale P.C. 628)]. In the crime of rape,
“carnal knowledge” means the penetration to any the
slightest degree of the male organ of generation
(Stephen’s Criminal Law, 9th Edn., p. 262). In
Encyclopedia of crime and Justice (Vol. 4, p. 1356) it is
stated “… even slight penetration is sufficient and
emission is unnecessary”. In Halsbury’s statutes of
England and Wales, (4th Edn.), Vol.12, it is stated that
even the slightest degree of penetration is sufficient to
prove sexual intercourse. It is violation, with violence,
of the private person of a woman, an outrage by all
means. By the very nature of the offence it is an
obnoxious act of the highest order.
9. The physical scar may heal up, but the mental scar
will always remain. When a woman is ravished, what is
inflicted is not merely physical injury but the deep sense
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27
of some deathless shame. An accused cannot cling to a
fossil formula and insist on corroborative evidence, even
if taken as a whole, the case spoken to by the victim
strikes a judicial mind as probable. Judicial response to
human rights cannot be blunted by legal jugglery.”
18. In the case of State of T.N v. Ravi alias Nehru, (2006)
10 SCC, 534, the court held thus-
17. In Encyclopedia of Crime and Justice (Vol.4) at p.
1356, it is stated:
“…..even slight penetration is sufficient and
emission is unnecessary.”
18. It is now well-accepted principle of law that
conviction can be founded on the testimony of theprosecutrix alone unless there are compelling reasons for
seeking corroboration. It is also well-accepted principle
of law that corroboration as a condition for judicialreliance on the testimony of the prosecutrix is not a
requirement of law but a guidance of prudence. A
woman or a girl subjected to sexual assault is not an
accomplice to the crime but is a victim of another
person’ s lust and it is improper and undesirable to testher evidence with a certain amount of suspicion treating
her as if she were an accomplice. (See State of Punjab v.
Gurmit Singh.)
19. So also in Ranjit Hazarika v. State of Assam this
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28Court observed that non-rupture of hymen or the
absence of injury on the victim’s private parts does notbelie the testimony of the prosecutrix.
20. The evidence of a victim of sexual assault stands
on a par with the evidence of an injured witness. Just as
a witness who has sustained an injury is the best witness
in the sense that he is least likely to exculpate the realoffender, the evidence of a victim of a sex-offender is
entitled to great weight, absence of corroboration
notwithstanding. (See Bharwada Bhoginbhai hirjibhai v.
State of Gujarat.)”
19.
As far as undue emphasis placed by the learned trial
court on the statement of the doctor is concerned, it is also a
settled principle that where the statement of the prosecution is
corroborated by other evidence and inspires confidence, then even
non-examination of the doctor and non-production of doctor’s
report in an offence under section 376 of the IPC would not be
fatal to the case of the prosecution. (State of M.P. V. Dayal Sahu,
(2005)8 SCC 122). Similarly, in the case of State of Rajasthan
v.Biram Lal, (2005)10 SCC, 714, the Supreme Court again took
the view that non-production of Chemical Analyser’s report may at
best deprive the prosecution of the corroborative evidence but
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29
where other evidence is sufficient, it would not in any way
prejudice the case of the prosecution particularly when the
evidence of the prosecutrix is duly supported and corroborated by
other witnesses.
20. In a more recent judgment in the case of B.C. Deva
alias Dyava v. State of Karnataka, (2007)12 SCC 122 the Supreme
Court took the view that even where a medical evidence did not
disclose evidence of sexual intercourse and where there were no
injury marks on the body of accused or the prosecutrix but the
evidence of the prosecutrix and other witnesses was found to be
cogent, reliable, convincing and trustworthy, the conviction was
the correct conclusion. The court held as under:
“18. The plea that no marks of injuries were found
either on the person of the accused or the person of the
prosecutrix, does not lead to any inference that theaccused has not committed forcible sexual intercourse
on the prosecutrix. Though the report of the
gynaecologist pertaining to the medical examination of
the prosecutrix does not disclose any evidence of sexual
intercourse, yet even in the absence of any::: Downloaded on – 09/06/2013 14:35:18 :::
30corroboration of medical evidence, the oral testimony of
the prosecutrix, which is found to be cogent, reliable,convincing and trustworthy has to be accepted.
19. Though the FSL Report marked as Ext. C-1
pertaining to the undergarments of the accused and the
victim did not contain any seminal stains, yet the said
report cannot be given any importance because theunderwear of the accused was taken into possession by
the police on the next day of the incident when he was
arrested. There is no evidence brought on record to
show that the accused handed over the same underwearto the police, which he was wearing on the day of
incident or he had handed over some other underwearwhich was seized under mahazar (Ext. P-5) by the
police. The possibility of absence of seminal stains on
petticoat of the prosecutrix which she was wearing atthe time of the incident, could not be ruled out due to
the fact that the petticoat got drenched in the water and
the seminal stains might have been washed away.”
21. A very pertinent principle was stated by the Supreme
Court in the case of Madan Gopal Kakkad v. Naval Dubey and
another, (1992)3 SCC 204 where the court indicated that the
medical evidence by itself could be defective and could not be
relied upon in its entirety and held thus-
“34. A medical witness called in as an expert to assist
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31
the Court is not a witness of fact and the evidence given
by the medical officer is really of an advisory character
given on the basis of the symptoms found on
examination. The expert witness is expected to put
before the Court all materials inclusive of the data which
induced him to come to the conclusion and enlighten the
Court on the technical aspect of the case by explaining
the terms of science so that the Court although, not an
expert may form its own judgment on those materials
after giving due regard to the expert’s opinion because
once the expert’s opinion is accepted, it is not the
opinion of the medical officer but of the Court.
“35. Nariman, J. in Queen v. Ahmed Ally while
expressing his view on medical evidence has observed as
follows:
“The evidence of a medical man or other
skilled witnesses, however, eminent, as to what he
thinks may or may not have taken place under
particular combination of circumstances, however,
confidently, he may speak, is ordinarily a matter of
mere opinion.”
36. Fazal Ali, J. in Pratap Misra v. State of Orissa has
stated thus :
“…. (I)t is well settled that the medical
jurisprudence is not an exact science and it is
indeed difficult for any Doctor to say with
precision and exactitude as to when aparticular injury was caused … as to the exact
time when the appellants may have had secual
intercourse with the prosecutrix”.
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32
37. We feel that it would be quite appropriate, in this
context, to reproduce the opinion expressed by Modi inMedical Jurisprudence and Toxicology (Twenty-first
Edition) at page 369 which reads thus :
“Thus to constitute the offence of rapte it is
not necessary that there should be complete
penetration of penis with emission of semen andrupture of hymen. Partial penetratin of the penis
within the labia majora or the vulva or pudenda with
or without emission of semen or even an attempt at
penedtration is quite sufficeint for the purpose of thelaw. It is therefore quite possible to commit legally
the offence of rape without producing any injury tothe genitals or leaving any seminal stains. In such a
case the medical officer should mention the negative
facts in his report, but should not give his opinionthat nho rape had been committed. Rape is crime
and not a medical condition. Rape is a legal term
and not a diagnosis to be made by the medical
officer treating the victim. The only statement thatcan be made by thge medical officer is that there is
evidence of recent sexual activity. Whether the rapehas occurred or not is a legal conclusion, not a
medical one.”
38. In Parikh’s Textbook of Medical Jurisprudence and
Toxicology, the following passage is found:
“Sexual intercourse.- In law, this term is
held to mean the slightest degree of
penetration of the vulva by the penis with or
without emission of semen. It is therefore
quite possible to commit legally the offence of
rape without producing any injury to the::: Downloaded on – 09/06/2013 14:35:18 :::
33genitals or leaving any seminal stains.”
39. In Encyclopedia of Crime and Justice (Vol.4) AT
PAGE 1356, it is stated:
“….. [E]ven slight penetration is sufficient and
emission is unnecessary.”
40. In Halsbury’s Statutes of England and Wales,
(Fourth Edition), Volume 12, it is stated that even the
slightest degree of penetration is sufficient to prove
sexual intercourse within the meaning of Section 44 of
the Sexual Offences Act, 1956. Vide (1) R. v. Hughes;
(2) R. v. Lines and R. v. Nicholls.
ig s Criminal Law, (Twenty-second
41. See also Harris'
Edition) at page 465.
42. In American Jurisprudence, it is stated that slight
penetration is sufficient to complete the crime of rape.
Code 263 of Penal Code of California reads thus:
“Rape; essentials – Penetration sufficient.- The
essential guilt of rape consists in the outrage to
the person and feelings of the victim of the
rape. Any sexual penetration, however, slight,is sufficient to complete the crime.”
43. The First Explanation to Section 375 of Indian
Penal Code which defines `Rape’ reads thus:
“Explanation.- Penetration is sufficient to
constitute the sexual intercourse necessary to
the offence of rape.”
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34
44. In interpreting the above explanation whether
complete penetration is necessary to constitute anoffence of rape, various High Courts have taken a
consistent view that even the slightest penetration issufficient to make out an offence of rape and the depth
of penetration is immaterial. Reference may be made to
(1) Natha v. Emperor; (2) Abdul Majid v. Emperor; (3)
Mst. Jantan v. Emperor; (4) Ghanashyam Misra v. State;
(5) Das Bernard v. State. In re Anthony it has been held
that while there must be penetration in the technical
sense, the slightest penetration would be sufficient and a
complete act of sexual intercourse is not at all necessary.
In Gour’ s The Penal Law of India, 6th Edn. 1955 (Vol. II)
page 1878, it is observed, “Even vulval penetration hasbeen held to be sufficient for a conviction of rape.”
22. In the light of these principles, we have to examine the
facts of the present case. There is no doubt that other witnesses
including the report of the Chemical Analyser have fully
corroborated the statement of the victim in its entirety. Merely
because there are some small discrepancies or improvement in the
statements would be no ground to disbelieve the statement of the
victim and give advantage of acquittal to the accused. The doctor’s
statement is not the ultimate test to prove case of rape. The court
could not rely upon the statement of doctor when the entire case
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35
of the prosecution is otherwise supported by a cogent, reliable and
trustworthy evidence. There is no reason as to why the prosecutrix
should come out with false story at this tender age and suffer the
pain and agony of being subjected to such a henious offence.
According to the doctor the hymen was not torn and there was no
apparent injuries on the body of the victim.
23. The doctor has nowhere stated that upon examination,
he was of the opinion that there was no penetration of in any
nature whatsoever in relation to the victim. Merely because
hymen was not torn and there was no bodily injury by itself would
be no ground to reject the case of the prosecution particularly in
view of unequivocal and trustworthy statement of the victim and
the other witnesses and more particularly in view of the statement
of the panchas and Chemical Analyser’s report Exhibit 41.
24. The evidence in the present case sufficiently and
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36
undoubtedly indicates towards the guilt of the accused leaving no
scope to grant benefit of doubt to the accused. The accused had
taken the victim on his cycle at the request of the brother of the
victim but instead of dropping her at the stated place, took her to
his house and then raped her. The blood stained clothes of the
accused, the papers torn from an exercise book which was stained
with blood and semen were recovered and subjected to Chemical
Analysis which fully corroborates the statement of the victim. It is
interesting to note that in the statement made by the accused
under section 313 of Criminal Procedure Code, he alleged that the
case of the prosecution was false but even opted to offer no
explanation as to the fact that blood and semen of the same group
as that of the accused was found on the clothes and papers. Even
he denied in answer to question No.38 that his blood group was
`A’. Question No. 40 he answered as follows:
“Q.40 :-It is in evidence that your semen was collected
and was sent to C.A. It also content blood group `A’ ,
what you have to way?
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37
A. :-It is false.”
25. This shows that the accused has just taken a stand of
total denial during the trial before the court. We are unable to
accept this behaviour of the accused that he even denied collection
of semen and blood which was established by independent
witness i.e. the doctor.
26. The Investigating Officer has provided a complete
chain of events which resulted in commission of the crime which is
duly supported by trustworthy evidence. The purpose of section
313 Criminal Procedure Code is to put the evidence to the accused
and provide him an opportunity of explaining his conduct or offer
his case truthfully before the court. It is difficult for the court to
lose sight of the fact that here is a girl victim of the age of 11 to 13
years who has been subjected to such sexual assault by the
accused. The accused was known to the family of the victim and
that is why the brother of the victim requested him to carry her on
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38
his cycle and requested that she be dropped at the spot which the
accused did not accede to and opted to take her to his house where
he committed rape upon her. The reliance placed by the counsel
appearing for the respondent upon the judgment of the Supreme
Court in a case of Ghurey Lal (supra) is hardly of any help to the
accused. It is true that Supreme Court has held that the finding of
acquittal cannot be lightly interfered by the appellate court but has
carved out the exception where the court should not hesitate to
convert acquittal into conviction in the facts and circumstances of
the given case. Some of the circumstances spelt out by the
Supreme Court are :
(iii) The trial court’s
judgment is likely to result in
“grave miscarriage of justice”;
(v) The trial court’s
judgment was manifestly unjust
and unreasonable;
(vi) The trial court has ignored the evidence or
misread the material evidence or has ignored material
documents like dying declarations/report of the Ballistic
expert, etc.::: Downloaded on – 09/06/2013 14:35:18 :::
39
27. In our considered view, the trial court has ignored the
circumstantial evidence including the report of the Chemical
Analyser as well as evidence of other witnesses without stating any
appropriate reasons. It will be a case of grave miscarriage of
justice if the accused who has committed a rape upon 8 to 11 years
old girl is permitted to go scot free just because some part of the
doctor’s statement does not support the case of the prosecution.
The presence of semen of blood group of the accused on some of
the incriminating articles seized was a sufficient proof which fully
corroborate the statement of the victim as well as other witnesses.
The trial court should have examined the cumulative effect of the
entire ocular and documentary evidence placed before it.
28. The accused was also charged with an offence under
section 57 of the Bombay Children Act, 1948 which Act was in
force as on the date of commission of offence viz. August, 1987.
On the same evidence, the petitioner has to be held guilty of
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40
commission of the said offence in asmuch as he has indulged in
immoral behaviour with the girl under the age of 18 years and is
liable to suffer imprisonment as described thereunder. The age of
the girl has been proved beyond doubt to be under 18 years and
we have already found that accused had committed rape upon the
victim.
29. In view of our above detailed discussion, we are of the
considered view that the accused is guilty of the offence
punishable under section 376 of IPC and Section 57 of Bombay
Children Act, 1948 and the question of considering the alternative
argument that the accused should be punished under section 354
read with section 511 of IPC does not require any further
consideration. As we find that the accused is guilty of offence
under section 376 of IPC and Section 57 of Bombay Children Act,
1948, we direct the matter be listed for awarding quantum of
sentence. Order accordingly.
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41
CHIEF JUSTICE
S.C. DHARMADHIKARI, J.
uday/judgment09/criapp192-09.sxwfinal
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