Hira Lal vs State of Himachal Pradesh

Surinder Singh, J.—The appellant has laid challenge to the judgment of his conviction passed in Sessions Trial No. 61 of 2010, on 29.6.2011 by the learned Additional Sessions Judge, (FTC), Kullu, for the offence punishable u/s 376 of the Indian Penal Code, for committing rape on the prosecutrix (11), whereby he was sentenced to undergo rigorous imprisonment for a period of four years and to pay a fine of Rs. 10,000/ -, in default, to further undergo simple imprisonment for a period of one year. The period of detention already undergone by the appellant, hereinafter to be referred as "the accused" was set off as per the provision of Section 428 of the Code of Criminal Procedure. In short, the prosecution case can be stated thus. In the year 2010, the prosecutrix was studying in 6th standard.

(ii) On 25.6.2010, she did not go to School. Her elder sister (PW 3) Bhumi Devi had gone to Bhuntar and her mother had taken the cattle to Maugar Nalla. whereas, her brother had gone to attend a local deity function. She was alone and busy doing her school work while sitting in the verandah of the house.

(iii) Around 2 p.m., accused who is her cousin came to her house and asked for a glass of water to which she offered.

(iv) After taking water, the accused caught hold her from the waist, took her inside the room. Though, she raised hue and cry but accused gagged her mouth with one hand, laid her down, opened the string of her Salwar with another hand and committed rape, as a result of which her private part started oozing blood. She was in great pain and agony. The accused thereafter left her house.

(v) When PW7 Smt. Chobi Devi, mother of the prosecutrix reached home. She found the prosecutrix weeping. On having been asked, prosecutrix narrated the entire incident to her. PW7 aforesaid informed her another daughter Bhumi Devi telephonically and called her back to home. The clothes of the prosecutrix were stained with blood, which were replaced by the another set of clothes. Thereafter in the company of her sister and mother, prosecutrix went to the Police Station and lodged the F.I.R.

(vi) The prosecutrix was got medically examined from PW1 Dr. Abhilasha Thakur on the same day around 10.30 p.m. Doctor noticed that prosecutrix was walking in short steps, apparently because of pain. On clinical examination, no mark of violence on labia majora and thighs were found, but her private parts were bleeding. She also noticed that the hymen was torn at 6 O''clock position and the fresh bleeding was occurring from the tear. The tear was extending in the midline upto forchette. It was sutured after sedating the prosecutrix. Doctor took four vaginal smear slides from the posterior fornix and prosecutrix was referred for the radiological age. Doctor issued Medico Legal Certificate Ex. PW1/A. As per the opinion of the doctor obtained on the MLC Ext. PW1/A. there was evidence of physical interference with the external genitalia of the prosecutrix. The radiological age was assessed to be between 12 to 14 years.

(vii) The accused was arrested and he was also medically examined on 26.6.2010 from PW8 Dr. Rituvesh Negi. He noticed the following injuries on the person of the accused:-

Multiple abrasions over back, bright red coloured. No tenderness. No swelling. No signs of fracture were seen.

Contusion multiple over back horizontal and vertical. No signs of fracture. No tenderness seen.

Abrasion left forearm about 1.3cm x.1cm and 2 (2cm x.1cm).

These injuries were said to be caused within 48 hours. The doctor found the accused fit to perform sexual intercourse. His T-Shirt Ext. P9 and Pants Ext. P10 were taken into possession and issued MLC Ext. PW8/A.

(viii) The wearing apparels of the prosecutrix alleged to have been worn by her at the time of alleged incident and clothes of the accused were sent for forensic examination. As per report Ext. PW9/A, the human blood was detected on the wearing apparels of the prosecutrix and also on the pants of the accused, which was found insufficient for blood grouping examination.

(ix) During the investigation of this case, police took photographs Exts.P11 to P18 of the place of incident and also prepared site plan Ext. PW11/C.

After recording the statements of the witnesses and completing the investigation, accused was found involved in the alleged incident of rape on the prosecutrix, as such, challan was presented in the Court for his trial.

Finding a prima-facie case against the accused for the offence aforesaid, he was accordingly charge-sheeted, to which he pleaded not guilty and claimed trial.

To prove its case, prosecution examined its witnesses. The accused was also examined u/s 313 of the Code of Criminal Procedure. Though, he admitted that the prosecutrix was the student of 6th standard at that time residing with her mother in village Diyar, however, denied his presence on the day of alleged incident in the house of the prosecutrix and also the commission of alleged offence. In cross-examination of the witnesses, he has taken the defence of enmity that 20 days prior to the alleged incident, father of the prosecutrix had a fall from the verandah and died. The family of the accused person is alleged to have imputed the allegation on her mother that she was responsible for his death. That being so, the family of the prosecutrix had planted a false case against him. It has also been suggested to the prosecutrix as well as to her mother and sister in their cross-examination that the injuries on her private part were caused by them by inserting finger to create evidence against the accused. But when called upon to enter into his defence, he did not lead any evidence.

After completing the trial, learned trial Court, disbelieved the defence version, but while relying upon the statement of the prosecutrix alongwith supporting evidence, convicted and sentenced the accused as aforesaid, hence the present appeal.

Shri Rajiv Rai, learned Counsel for the accused vehemently argued that the learned trial Court wrongly placed reliance upon the testimony of the prosecutrix in view of the material contradictions in the FIR. He also ventilated that due to previous enmity, both the families were not in talking terms, therefore, there was no question of accused visiting the house of the prosecutrix and asking for water. Further he also made a reference to the cross-examination of the prosecutrix whereby she stated that the accused had come back to accompanied by her brother to her house after attending fair of the deity in the village. Therefore, the brother of prosecutrix was a material witness, but he was not examined. It also ventilated that there were no injury on the person of the prosecutrix showing any resistance and further that no semen was found either on the person of the prosecutrix or on her clothes. However, learned Counsel did not dispute the age of the prosecutrix at the relevant time, as alleged by the prosecution. But however put his reliance on Rahim Beg and Another Vs. State of U.P., , Bharwada Bhoginbhai Hirjibhai Vs. State of Gujarat, and 2007 Cr.L.J. 447.

On the other hand, Shri P.M. Negi, learned Deputy Advocate General supported the impugned judgment of conviction and sentence. He further submitted that the statement of the prosecutrix is corroborated by the statements of her mother and sister and further that there was fresh bleeding tear of hymen of the prosecutrix as noticed by PW1 Dr. Abhilasha Thakur and that the absence of other injuries on the person of the accused is not indicative of the fact that nothing had happened to the prosecutrix. It is also argued that the statement of the prosecutrix find corroboration from other material evidence on record, therefore, no interference is called for.

I have given my thoughtful consideration to the rival contentions of the parties and have carefully and cautiously re-assessed the evidence on record. I have surveyed the case law cited by the learned Counsel for the accused. It is of no help to the accused. However, I proceed to examine the case on its factual background.

As already stated above, the age of the prosecutrix is not disputed. Even PW1 Dr. Abhilasha Thakur stated that at the time of clinical examination the prosecutrix supplied her age to be 11 years. She at that time was student of 6th standard and her height was 4''8". The doctor clinically observed that prosecutrix had 14 teeth in upper and 14 in lower jaw. She was having very scanty axillary hair visualized with difficulty. Breasts were not developed and nipples were not differentiated from areola and even the menarche had not attained as yet. Pubic hair were also not present. Further, the radiological age is opined to be l2 to 14 years given on the basis of epiphysis of bones as proved by the doctor. The birth certificate is Ext. PW10/B reveals 6.6.1999 as her date of birth, her age is not disputed, therefore, she is held to be 11 years of age at the time of alleged incident.

Admittedly, the accused is her cousin. It is also admitted that 20 days prior to the alleged incident, the father of the prosecutrix had died. The deceased father as well as father of the accused both brothers were not pulling well for some time past and were not in talking terms with each other. Although before his death, he had attended a local deity function in the house of the accused, which was not liked by her mother and it is alleged that the father of the accused started blaming her mother that she had intentionally pushed him from the verandah and further that the family of the accused started proclaiming that they would lodge a report against her mother for causing death of her father. However, when the father of the prosecutrix had a fall, her mother took him to PGI, Chandigarh for treatment, but he could not survive. As admitted by the prosecutrix in her cross-examination, the matter qua the death of her father was also reported to the Panchayat, but she specifically denied that in order to save her skin, her mother cooked up a false story in collusion with PW3 Bhumi Devi against the accused and also denied that the injuries sustained on her private part were caused to her by her mother and sister by inserting fingers, to create evidence to implicate the accused. Though, she admitted the accused treated her as his younger sister. She also admitted that her brother was also with the accused in the on-going function of local deity in the village on the day of alleged incident and had returned from that function to their houses without mentioning its time. Against the aforesaid background, the statement of the prosecutrix requires to be approached cautiously and very carefully.

In FIR Ext. PW2/A lodged by the prosecutrix, she has given a detailed account of the incident and as PW2, she supported this version verbatim. She stated, in FIR that the accused had done "GALAT KAAM" with her, whereas in the statement before the Court, she stated that she was raped by the accused. Against the above background, the learned Counsel for the accused submitted, in the FIR she did not allege rape, therefore, it is a material contradiction, which causes a doubt, but in my opinion, this argument deserves to be rejected outright. Because the perusal of the FIR makes it clear that alleged "GALAT KAAM" stated by the prosecutrix is referable to rape. Even the prosecutrix when examined in the Court testified that when the accused visited her house, he asked her for water, to which she provided and after taking the water, accused dragged her from the waist. She raised hue and cry, but the accused gagged her mouth with one hand and opened the string of her Salwar with another hand and committed rape. This statement coupled with the assertion made in the FIR clearly demonstrates to what prosecutrix who is of a tender age intended to convey. She also stated that she had experienced pain. Blood also started oozing out from her private part. The whole story was narrated by her to her mother (PW7) and then to her elder sister Bhumi Devi (PW3). Her sister got her blood stained clothes changed, thereafter she alongwith her sister went to the Police Station and lodged the FIR Ext. PW2/A. She also testified that she was medically examined by the doctor and proved her signatures on the MLC Ext. PW1/A. She also identified her Salwar Ext. P2, shirt Ext. P3 and underwear Ext. P4 during the trial. In cross-examination, she denied that she was deposing against the accused in the Court under the pressure and influence of her mother.

PW7 Chobi Devi, her mother stated that on the day of alleged incident, she had taken the cattle to a Nalla leaving her daughter (prosecutrix) alone in the house. She also stated that her elder daughter PW3 Bhumi Devi had gone to Bhuntar and son to attend a religious function in the village. She returned alongwith cattle around 3 p.m. and noticed that the prosecutrix was weeping. On inquiry, she revealed about the incident of rape by the accused and further stated that she was experiencing pain. Her clothes were smeared with blood. Thereafter she rang up to PW3 Bhumi Devi and called her back to the house. She reached around 5 p.m. and enquired from the prosecutrix about the incident. Her clothes were changed by her and were kept in the house. Thereafter, the prosecutrix and PW3 her sister went to the Police Station to lodge a report. Next day, she handed over the blood stained clothes of the prosecutrix to the police, which were taken into possession vide memo Ext. PW3/A. She also identified the clothes of the prosecutrix during the trial, which were not disputed in the cross-examination. She specifically denied in cross-examination that she alongwith her daughter PW3 aforesaid cooked up a false case involving the prosecutrix and manipulating with her private part causing injury so as to rope the accused in a false case, but whatever condition of the prosecutrix she stated to have been noticed on her return to the house has not been disputed.

PW3 Bhumi Devi has offered material corroboration to her statement. She stated that on getting telephonic message of her mother, she reached home and noticed the blood stained clothes of her sister. She revealed about the incident as aforesaid to her. Thereafter, she changed the clothes of the prosecutrix, later which were handed over to the police as aforesaid. She admitted having accompanied the prosecutrix to the Police Station to lodge the FIR. She denied in cross-examination that she alongwith her mother had cooked up a false story against the accused as alleged.

PW1 Dr. Abhilasha Thakur found that the hymen was torn at 6 O''clock as aforesaid it was having fresh bleeding from the tear which was extending in the mid-line up to the forchette. She categorically stated that there was an evidence of physical interference with external genitalia. According to her, there can be other reasons for rupture of hymen besides sexual intercourse. She also stated that in case of rape of a victim of tender age by fully developed male, then there is possibility of injuries on labia majora and labia minora. Though, she observed the tear of the hymen, but its circumference was not measured. She further stated that the victim was in pain and bleeding at that time. There were clots of blood on the thighs which had stained her clothes. She denied that in the absence of the injuries on the person of the victim is suggestive that she was not sexually assaulted. She also stated that she did not mention in the MLC that the victim was crying when she was brought, but voluntarily stated that she was in pain and crying.

PW11 ASI Naresh Chand in cross-examination stated that when they visited the village, accused on seeing the police approaching his house tried to flee away, but on the identification of the mother of the prosecutrix. he was nabbed and brought to the Police Station and produced before the SHO. This shows his conduct subsequent to the incident. The accused was arrested and got medically examined. He denied that the police had cooked up a false story in connivance with the complainant.

On the scrutiny of the aforesaid evidence, I find a great deal of substance and consistency in the statement of the prosecutrix about the commission of the alleged offence by the accused. Her testimony is duly corroborated by the material particulars on record by the statements of mother, sister and the doctor as well. There is clear-cut interference with her private part, which is attributable to the sexual assault by the accused. The absence of other injuries except on the hymen is not indicative of the fact that nothing had happened with the prosecutrix. The only question is whether the prosecutrix was raped by the accused or as suggested in defence that her private parts were interfered with by her mother and sister.

The Apex Court in Rajendra Datta Zarekar v. State of Goa, 2008 Cr.L.J. 710, while relying upon the judgment of the Apex Court in Madan Gopal Kakkad Vs. Naval Dubey and Another, , quoted paras 37 and 38 of the said judgment took note of the medical aspect of the case quoting the authority in the field of medical, which are being reproduced below:

We feel that it would be quite appropriate, in this context, to reproduce the opinion expressed by Modi in Medical Jurisprudence and Toxicology (Twenty First Edition) at page 369 which reads thus:

Thus to constitute the offence of rape it is not necessary that there should be complete penetration of penis with emission of semen and rupture of hymen. Partial penetration of the penis within the labia majora or the vulva or pudenda with or without emission of semen or even an attempt at penetration is quite sufficient for the purpose of the law. It is therefore quite possible to commit legally the offence of rape without producing any injury to the 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 opinion that no 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 that can be made by the medical officer is that there is evidence of recent sexual activity. Whether the rape has occurred or not is a legal conclusion, not a medical one.

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 genitals or leaving any seminal stains.

In the instant case, the prosecutrix stated having committed rape by the accused. It is corroborated by fresh tear of hymen. The hymen is located deep into the vagina. Hence even a partial penetration by the male organ of the accused could cause damage to it, therefore, no other injury is required to further reinforce the statement of the prosecutrix. Despite the fact that both the families were not pulling on well with each other. But no one would concoct a false story of rape with respect to his female child especially when she is minor unmarried girl of tender years, using her to implicate the accused on false allegation of rape at the cost of her character, future, career and the honour of the family, that too by damaging the hymen of the prosecutrix by none else than the mother and her sister causing severe bleeding injury to her as alleged, which was so even after hours till her medical examination made her difficult to walk. Therefore, the defence as alleged was rightly rejected by the learned trial Court, the case of the prosecution stands proved as even a partial penetration amounts to rape. The absence of any other injury or the semen would not be sufficient to doubt the credibility of the prosecutrix, whose testimony stands corroborated in material particulars on record. The non-examination of her brother is also not fatal to the prosecution in the above circumstances. Therefore, in my opinion, there is nothing to doubt the version of the prosecutrix. As such, appeal is devoid of any merit, hence dismissed. Send down the records.