Bhupendra Sahu vs State of C.G.

Radhe Shyam Sharma, J.—This appeal is directed against judgment dated 26-4-2004 passed by Sessions Judge, Bastar at Jagdalpur in Sessions Trial No. 66/2004. By the impugned judgment, accused/appellant Bhupendra Sahu has been convicted and sentenced in the following manner with a direction to run the sentences concurrently:

Case of the prosecution, in brief, is as under:

Prosecutrix (PW-1) (In purview of Section 228A of the Indian Penal Code, name of the Prosecutrix is not being mentioned) has studied upto 3rd standard only. On 30-12-2003, at about 9 A.M., she was going to Police Line Jagdalpur for doing household work. The appellant met her near the shop of Rajendra Sindhi. He, having caught her hand, dragged her towards Toll-Tax Barrier. They boarded in a bus and went to Kondagaon. The appellant kept her there at the house of his maternal uncle, namely, Duryodhan, where he committed sexual intercourse with her twice. Prosecutrix (PW-1) narrated the incident to maternal aunt of the appellant, namely, Ahilya. On 31-12-2003, father of Prosecutrix (PW-1), namely, Pyarelal (PW-3) came to Kondagaon and took Prosecutrix (PW-1) back to home. Prosecutrix (PW-1) narrated the incident to Pyarelal (PW-3) and her mother Shantibai (PW-2). Prosecutrix (PW-1) lodged First Information Report (Ex. P-1) in Police Station Jagdalpur on 1-1-2004. Prosecutrix (PW-1) was sent to Maharani Hospital, Jagdalpur for medical examination vide Ex. P-6. Dr. Smt. Shashi Dhruw and Dr. Smt. A. Chandra examined her jointly. Thereafter, Dr. Smt. M. Tiwari (PW-9) gave her report (Ex. P-21). In Ex. P-21, she opined that hymen of Prosecutrix (PW-1) was intact and there was no mark of injury over perineum and vulva. She further opined that no opinion could be given about forceful sexual intercourse. Prosecutrix (PW-1) was sent to Maharani Hospital, Jagdalpur for X-Ray examination. Dr. Govind Singh (PW-7) took out her X-Ray and gave his report (Ex. P-20), in which, he opined that age of Prosecutrix (PW-1) was between 12 to 15 years. The appellant was also sent to Maharani Hospital, Jagdalpur for medical examination vide Ex. P-7. Dr. Smt. J. Gupta (PW-10) examined him and gave her report (Ex. P-7A), in which, she found that the appellant was capable of committing sexual intercourse.

In further investigation, site-plan (Ex. P-2) was prepared. School Transfer Certificate was seized from Prosecutrix (PW-1) vide Ex. P-3. Petticoat of Prosecutrix (PW-1) was also seized from her vide Ex. P-4. Underwear of the appellant was seized vide Ex. P-8. Vaginal slide and pubic hair and Prosecutrix (PW-1) were seized vide Ex. P-10. Pubic hair of the appellant was also seized vide Ex. P-9. The seized articles were sent to Forensic Science Laboratory, Raipur for examination vide Ex. P-17.

After completion of the investigation, charge sheet was filed against the appellant in the Court of Chief Judicial Magistrate, Jagdalpur, who, in turn, committed the case to the Court of Sessions Judge, Bastar at Jagdalpur, who conducted the trial and convicted and sentenced the appellant as mentioned above.

Shri Prafull Bharat, learned counsel for the appellant argued that on the date of incident, age of Prosecutrix (PW-1) was above 16 years. The documents produced by the prosecution relating to the age of Prosecutrix (PW-1) were not duly proved by it. He further argued that the finding recorded by the trial Court is perverse. He further argued that looking to the medical evidence that the hymen of Prosecutrix (PW-1) was intact, no sexual intercourse appears to had been committed with Prosecutrix (PW-1). He further argued that the evidence of Prosecutrix (PW-1) does not inspire confidence. His further argument is that Prosecutrix (PW-1) had accompanied the appellant to Kondagaon at her own will. The judgment and findings of the learned Sessions Judge are liable to be set aside and the appellant is entitled for acquittal. He placed reliance on Alamelu and Another Vs. State represented by Inspector of Police,

Shri Sandeep Yadav, learned Deputy Government Advocate for the State/respondent, supporting the impugned judgment, submitted that the conviction and sentence awarded by the learned Sessions Judge do not warrant any interference by this Court.

Having heard rival contentions of the parties at length, I have perused the record of Sessions Trial No. 66/2004.

Now, I shall examine whether on the date of incident the age of Prosecutrix (PW-1) was below 16 years or not?

Evidence of parents of a victim girl is material for proving her age. In the instant case, at the time of deposition of Prosecutrix (PW-1), her age was mentioned 14 years in her deposition sheet. In paragraph 9 of her deposition, she specifically deposed that she had studied upto 3rd standard. Pyarelal (PW-3), who is father of Prosecutrix (PW-1), deposed that the age of Prosecutrix (PW-1) was 13 years and she had studied upto 3rd standard only in Mata Mandir School, Patharaguda. Shantibai. (PW-2), who is mother of Prosecutrix (PW-1), specifically deposed that Prosecutrix (PW-1) was studying at Mata Mandir School, Patharaguda and her age was 14 years. Prosecutrix (PW-1) deposed that her father Pyarelal (PW-3) had taken her to the school for her admission. Pyarelal (PW-3) deposed that he had written dates of birth of his children on a piece of paper and kept the same at his house. He had also informed dates of birth of his children to the Kotwar.

Dr. Smt. M. Tiwari (PW-9) deposed that Prosecutrix (PW-1) was examined on 5-1-2004 and her age, on that date, was near about 13 years. Dr. Govind Singh (PW-7) deposed that he had taken out X-Ray of right wrist, right elbow, right shoulder and right buttock of Prosecutrix (PW-1) and found that her age was above 12 years and below 15 years.

A.S.I. K.D. Singh (PW-6) deposed that he had seized School Transfer Certificate (Ex. P-3) of Prosecutrix (PW-1), which was issued by Mata Mandir Primary School, Patharaguda. He further deposed that on 19-1-2004, he had seized Dakhil Kharij Panji of Mata Mandir Primary School, Patharaguda vide Ex. P-13.

Smt. Heeramani Salam (PW-8) deposed that she was posted as Assistant Teacher in Mata Mandir Primary School, Patharaguda since 1995. She further deposed that she had brought original Dakhil Kharij Register of Mata Mandir Primary School, Patharaguda, Jagdalpur with her. The said register was maintained since 1981. At serial No. 575 of the register, date of birth of Prosecutrix (PW-1) is mentioned in her school admission entry as 1-6-1990. She had also brought original declaration form submitted by Pyarelal (PW-3) at the time of admission of Prosecutrix (PW-1) in the school. In the declaration form also, the date of birth of Prosecutrix (PW-1) was mentioned as 1-6-1990. Certified copy of the Dakhil Kharij Panji was submitted in the case, which is Ex. P-21A. Looking to the evidence of Smt. Heeramani Salam (PW-8) and Ex. P-21A, it appears that the date of birth of Prosecutrix (PW-1) is 1-6-1990.

In Alamelu and another (supra), the Hon''ble Supreme Court observed thus:

The transfer certificate has been issued by a government school and has been duly signed by Headmaster therefore, it would be admissible in evidence u/s. 35 of the Evidence Act, 1872. However, the admissibility of such a document would be of not much evidentiary value to prove the age of the Prosecutrix in the absence of the material on the basis of which the age was recorded. The Supreme Court held that-the date of birth mentioned in the transfer certificate would have no evidentiary value unless the person, who made the entry or who gave the date of birth is examined. In the present case, though PW-10 admitted to issue the transfer certificate (Ex. P/15) on the basis of entry in the school register, but the entry in the school register, by which, the Prosecutrix was admitted in Class-6th, itself was not proved.

In State of Chhattisgarh Vs. Lekhram, the Hon''ble Supreme Court observed thus:

A register maintained in a school is admissible in evidence to prove date of birth of the person concerned in terms of Section 35 of the Evidence Act. Such dates of births are recorded in the school register by the authorities in discharge of their public duty. It may be true that an entry in the school register is not conclusive but it has evidentiary value. Such evidentiary value of a school register is corroborated by oral evidence in this case as the same was recorded on the basis of the statement of the mother of the Prosecutrix.

In Harpal Singh and Another Vs. State of Himachal Pradesh, the Hon''ble Supreme Court observed that the entry was made by the concerned official in the discharge of his official duties, that it is therefore clearly admissible u/s 35 of the Evidence Act and that it is not necessary for the prosecution to examine its author. From whatever angle we view the evidence.

In Shekara Vs. State of Karnataka, the Hon''ble Supreme Court observed as follows:

It is to be noted that PW 1 had produced the transfer certificate (Ext. P-9) and has stated that it pertains to the victim and her name has been entered in the certificate. Nothing has been elicited in her cross-examination to discard her evidence that Ext. P-9 pertains to the victim, that is, the daughter of PW 1. PW 12 had issued the transfer certificate and also stated in his evidence that he was working as headmaster of the school in question. He remembered to have seen her when she came for applying for the transfer certificate for her children and had issued the transfer certificate to her and that Ext. P-9, the transfer certificate was issued by him. It also bears the signature of the headmaster. He categorically stated that Ext. P-9 was issued on the basis of the entries made in the admission register and Ext. P-10 (a) as the relevant entry on the basis of which Ext. P-9 was issued.

In Arjun Singh Vs. State of H.P., , the Hon''ble Supreme Court observed as follows:

In State of Chhattisgarh Vs. Lekhram, it was held that the register maintained in a school is admissible evidence to prove the date of birth of the person concerned in terms of Section 35 of the Indian Evidence Act, 1872 (in short ''Evidence Act''). It may be true that the entry of the school register is not conclusive but it has evidentiary value.

In the instant case, the headmaster or teacher of the school, who made entry in Dakhil Kharij Panji, was not examined by the prosecution, but Smt. Heeramani Salam (PW-8) specifically deposed that the date of birth of the Prosecutrix (PW-1) was recorded in Dakhil Kharij Panji on the basis of declaration form produced by Pyarelal (PW-3) and Pyarelal (PW-3) also deposed that age of the Prosecutrix was near about 13 years. Pyarelal (PW-3) deposed that he had written dates of births of his children. He had also informed the dates of births of his children to the Kotwar. Ex. P-21A is a copy of Dakhil Kharij Panji, in which, date of birth of the Prosecutrix is mentioned as 1-6-1990. Dr. Govind Singh (PW-7) deposed that on the basis of X-Ray Report, he found that the age of the Prosecutrix was above 12 years and below 15 years. Therefore, from medical evidence also, it is established that the age of the Prosecutrix was below 16 years. According to Dakhil Kharij Panji (Ex. P-21 A), the date of birth of the Prosecutrix is 1-6-1990. The date of incident was 30-12-2003. It reveals that the age of the Prosecutrix (PW-1) was below 16 years on the date of incident.

Now, I shall examine whether the offence u/s 376 IPC was made out against the appellant?

Prosecutrix (PW-1) deposed that she studied upto 3rd standard. She was aged about 14 years on the date of her deposition. She knew the appellant present in the Court. The appellant was her real Jija (brother-in-law). She studied in Mata Mandir School, Jagdalpur. On the date of incident, she was returning from her work. At that time, the appellant met her near Mehattar Para and took her forcibly. He had gagged her mouth, therefore, she could not shout. He took her to the house of his maternal uncle and aunt situated at Kondagaon. She did not know their names. He committed rape with her at the house of his maternal uncle and aunt at Kondagaon. She prevented him from committing rape with her, but he did not stop and committed rape with her. He committed rape with her at Kondagaon twice.

Prosecutrix (PW-1) deposed that she was sent for medical examination. Dr. Smt. M. Tiwari (PW-9) deposed that she examined Prosecutrix (PW-1) along with Dr. Shashi Dhruw (Thakur) and Dr. Smt. A. Chandra. They gave their report (Ex. P-21). She further deposed that hymen of Prosecutrix (PW-1) was intact, no mark of injury was found over the perineum and vulva. She further deposed that no definite opinion could be given about the forceful sexual intercourse.

In Aman Kumar and Another Vs. State of Haryana, the Hon''ble Supreme Court observed as follows:

Penetration is the sine qua non for an offence of rape. In order to constitute penetration, there must be evidence clear and cogent to prove that some part of the virile member of the accused was within the labia of the pudendum of the woman, no matter how little (see Joseph Lines, IC & K 893). It is well known in the medical world that he examination of smegma loses all importance after twenty-four hours of the performance of the sexual intercourse. [See Dr. S.P. Kohli, Civil Surgeon, Ferozepur Vs. High Court of Punjab and Haryana, . In rape cases, if the gland of the male organ is covered by smegma, it negatives the possibility of recent complete penetration. If the accused is not circumcised, the existence of smegma around the corona gland is proof against penetration, since it is rubbed off during the act. The smegma accumulates if no bath is taken within twenty-four hours. The rupture of hymen is by no means necessary to constitute the offence of rape. Even a slight penetration in the vulva is sufficient to constitute the offence of rape and rupture of the hymen is not necessary. Vulva penetration with or without violence is as much rape as vaginal penetration. The statute merely requires evidence of penetration, and this may occur with the hymen remaining intact. The actus reus is complete with penetration. It is well settled that the Prosecutrix cannot be considered as accomplice and, therefore, her testimony cannot be equated with that of an accomplice in an offence of rape. In examination of genital organs, state of hymen offers the most reliable clue. While examining the hymen, certain anatomical characteristics should be remembered before assigning any significance to the findings. The shape and the texture of the hymen is variable. This variation, sometimes permits penetration without injury. This is possible because of the peculiar shape of the orifice or increased elasticity. On the other hand, sometimes the hymen may be more firm, less elastic and gets stretched and lacerated earlier. Thus a relatively less forceful penetration may not give rise to injuries ordinarily possible with a forceful attempt. The anatomical feature with regard to hymen which merits consideration is its anatomical situation. Next to hymen in positive importance, but more than that in frequency, are the injuries on labia majora. These, viz. labia majora, are the first to be encountered by the male organ. They are subjected to blunt forceful blows, depending on the vigour and force used by the accused and counteracted by the victim. Further, examination of the female for marks of injuries elsewhere on the body forms a very important piece of evidence. To constitute the offence of rape, it is not necessary that there should be complete penetration of the penis with emission of semen and rupture of hymen. Partial penetration within the labia majora of the vulva or pudendum with or without emission of semen is sufficient to constitute the offence of rape as defined in the law. The depth of penetration is immaterial in an offence punishable u/s 376 IPC.

In the instant case, Prosecutrix (PW-1) deposed that the appellant committed sexual intercourse with her twice. Had the appellant committed sexual intercourse with the Prosecutrix (PW-1) twice, some tenderness or injury would have occurred on labia majora of the vulva or pudendum, but medical evidence does not show that any sexual intercourse was committed with the Prosecutrix (PW-1). Dr. Smt. M. Tiwari (PW-9) specifically deposed that hymen was intact and no sign of sexual intercourse was present. Therefore, rape does not appear to had been committed, but attempt to commit rape is clearly established by the evidence of Prosecutrix (PW-1). Therefore, the appellant cannot be convicted u/s 376 IPC; instead, his offence is punishable u/s 376/ 511 IPC.

So far as offences under Sections 363 and 366 IPC are concerned, Prosecutrix (PW-1) deposed that on the date of incident, she was returning from her work. At that time, the appellant met her near Mehattar Para and took her forcibly. He had gagged her mouth, therefore, she could not shout. He took her to the house of his maternal uncle and aunt situated at Kondagaon. She did not know their names. He committed rape with her at the house of his maternal uncle and aunt at Kondagaon. In cross-examination, she further deposed that the incident took place at about 9 A.M. The appellant had met her near the Chowk. House of Mehattar was situated there. It is true to say that from the place where the appellant had met her, they went to Toll-Tax Barrier, Jagdalpur. As soon as they reached the Toll-Tax Barrier, a bus came there. They sat in the bus and went to Kondagaon.

Looking to the evidence of Prosecutrix (PW-1), it appears that she accompanied the appellant on her own will. It is also established that the age of the Prosecutrix (PW-1) was below 16 years on the date of incident. Therefore, consent of the Prosecutrix (PW-1) was of no consequence and was immaterial. Therefore, the learned trial Court rightly convicted the appellant under Sections 363 and 366 IPC.

Learned counsel for the appellant argued that the appellant remained in jail for about 1 year and 8 months. The Prosecutrix (PW-1) was a consenting party. The offence took place on 30-12-2003. The case remained pending for about 81/2 years. No useful purpose would be served in sending the appellant back to jail and it would be in the interest of justice if the appellant is sentenced for the offence u/s 376/ 511 IPC for the period already undergone by him.

From perusal of the record, it appears that the appellant remained in jail from 2-1-2004 to 7-9-2005, i.e., for about 1 year 8 months and 5 days. The offence was committed on 30-12-2003. The case remained pending for about 81/2 years. Looking to facts and circumstances of the case, I am of the view that ends of justice would be served if the appellant is sentenced for the offence u/s 376/ 511 IPC for the period already undergone by him. In the result, the appeal is partly allowed. The conviction and sentence awarded to the appellant under Sections 363 and 366 IPC are affirmed. The conviction and sentence awarded to him u/s 376 IPC are set aside. Instead thereof, he is convicted u/s 376/ 511 IPC and sentenced for the period already undergone by him. Presently, he is on bail. His bail bonds are cancelled and sureties stand discharged.