Satrughna vs State of Madhya Pradesh

Pritinker Diwaker, J.—This appeal has been preferred against the judgment and order dated 12.12.1996 passed by Additional Sessions Judge, Baloda Bazar, in Sessions Trial No. 203/1993 convicting the accused/appellant u/s 376 IPC and sentencing him to undergo rigorous imprisonment for ten years and pay fine of Rs. 1000/-, in default of payment of fine to further undergo rigorous imprisonment for one year. Facts of the case in brief are that on 16.3.1993 at about 6.45 p.m. FIR Ex. P-1 was lodged by the prosecutrix aged about 6 years at the relevant time alleging that on that day at about 1.30 p.m. when she returned from the school, in her house the accused/appellant was lying on a cot and on being called by him she went near his cot. At that time she was not wearing underwear but skirt only. When she went to the accused/appellant, he caught hold of her and inserted his private part into that of her on account of which she felt pain and started bleeding but even then he did not leave her. On hearing her cries, her sister Lata Bai came there and on seeing her the accused/appellant ran away. Based on this FIR, offence u/s 376 IPC was registered against the accused/appellant. Prosecutrix was medically examined on 17.3.1993 by Dr. (Smt.) Bhanudeshlahra (PW-9) vide report Ex. P-12 and after completion of investigation, charge sheet was filed by the police on 4.5.1993.

In support of its case, prosecution has examined 10 witnesses. Statement of the accused/appellant was also recorded u/s 313 of the Code of Criminal Procedure in which he denied the charge levelled against him and pleaded his innocence and false implication in the case. This apart, one Firtin Bai (DW-1) has also been examined by the defence in support of its case.

After hearing the parties, the Court below has convicted and sentenced the accused/appellant as mentioned in paragraph No. 1 of this judgment.

Counsel for the accused/appellant submits that a very improbable story has been put forth by the prosecution and the medical report of the prosecutrix also does not support the case of the prosecution as the doctor medically examining the prosecutrix has categorically stated that only an attempt to rape has been made with her. According to the counsel for the accused/appellant as the accused/appellant refused to marry the elder sister of the prosecutrix, he has been implicated in a false case. He submits that hymen of the prosecutrix was intact, no external or internal injury was found on her person and therefore accused/appellant cannot be convicted u/s 376 and at the most his act would fall u/s 376/511 IPC and as he has already remained in jail for about four years, sentence imposed on him may be reduced to the period already undergone by him.

On the other hand, counsel for the respondent/State supports the judgment impugned and submits that as the prosecutrix has categorically described the manner in which she was ravished by the accused/appellant that while answering the query Ex. P-(13) it has been made clear by the doctor vide Ex. P-13-A that tenderness may be possible because of rape and that slight penetration may not cause rupture, the conviction of the accused/appellant is just and proper. He submits that from the evidence it is apparent that during medical examination the prosecutrix was not co-operative and therefore her close internal examination was not possible and that could be the reason that the internal injury could not be ascertained because of which bleeding might have resulted. He submits that there is no reason to disbelieve the version of a tender aged girl here who has been brutally ravished.

Heard counsel for the parties and perused the material available on record.

Prosecutrix (PW-3) aged about 8 years at the time of recording evidence has stated that she knew the accused/appellant who happens to be her brother in relation. At the time of incident she was studying in class I. According to her, when the accused/appellant had come to her house to call her, her sister was sleeping in a small cot and she herself on a big cot. She has stated that after coming over to the cot in which she used to sleep, the accused/appellant inserted his private part into that of her and on hearing her cries her sister came there, abused the accused/appellant and when she went to call her mother, he ran away from the spot. On account of the incident, her private part is stated to have started bleeding. According to this witness, after her mother came there, she narrated the entire incident to her who took her to the-police station and then to the hospital. In cross examination she has stated that the incident had taken place about a year back but she did not remember the day and month of that. She has further stated that after the accused/appellant came to her house, her sister cooked food and all of them including the accused had taken it. According to her, after taking food the accused/appellant went to sleep in the room in which she was sleeping whereas her sister was sleeping in another room. The accused/appellant bolted the door from inside and after the incident he ran away. In paragraph No. 4 she has stated that her private part started bleeding profusely and the skirt and blouse which she was wearing were stained with blood. On hearing her cries, her sister came there and on seeing her accused/appellant ran away. Incident was informed by her sister to her mother and subsequently by her also. Thereafter, she was taken to police station by Manglu, village Kotwar and her mother and report was lodged as described by her mother and she signed the same. She has stated that sometime she used to wear underwear and sometime not. She has stated that there was a talk for her sister''s marriage with the accused/appellant. Thereafter she has stated that her sister''s marriage with the accused/appellant was not to be solemnized. She has further stated that her mother had told all her three sisters as to in what manner the statement was to be given in the Court. According to this witness, her mother had told all her sisters to state in the Court that accused/appellant had inserted his private part into that of her. Savitri Bai (PW-4) - the mother of the prosecutrix has stated that she knew the accused/appellant and he was her sister''s son. According to this witness, on the date of incident she had gone to the field along with number of villagers and at that time. At about 11 a.m. when she came back to her house, the accused/appellant was already there and after touching her feet when he told her to go, she asked him to stay for some time as the sun was very bright. Then after taking meals she again went to the filed where at about 3 p.m. her other daughter Lata came and informed her that the accused/appellant had committed sexual intercourse with the prosecutrix. After she came back to her house, accused/appellant was not there and the prosecutrix was lying on the cot and was weeping and her clothes and bed were smeared with blood. At that time, according to this witness, her husband had gone to Baloda Bazar. Thereafter, her brother-in-law Manglu came and asked her not to weep and take care of the prosecutrix. Village Kotwar was called and then a decision was taken to lodge the report. She lodged the report as per the information given by Lata and when she saw the prosecutrix, blood was coming out from her private part and then Manglu after lifting the prosecutrix to his lap took her to police station. She has denied the fact that she was interested in marrying her other daughter to accused/appellant and as the appellant and her daughter happen to brother and sister, no marriage can take place in their society. She has denied that there was any dispute because of non performance of marriage of her daughter to the accused/appellant and for that the appellant has been implicated in a false case. Shyamji (PW-1) has stated that on the date of incident when he was sitting in the courtyard, mother of the prosecutrix came to him and informed that the accused/appellant had committed bad work with the prosecutrix and then he advised her to lodge the report. Mother of the prosecutrix tried to show that the prosecutrix was bleeding but he refused to see the same. According to him, at the relevant time age of the prosecutrix might be 3-4 years. Jagmohan (PW-2) - the father of the prosecutrix has stated that on the date of incident when he returned from Baloda Bazar, he was informed by one Phool Kumari that his wife and daughter (the prosecutrix) had gone to police station and by the time he reached police station, he came to know that report was already lodged by his wife against the accused/appellant for commission of rape on the prosecutrix. He has however denied that he wanted to marry one of his daughters to the accused/appellant. Lakhandas (PW-5) - the village Kotwar is the witness to seizure of undergarment and clothes of the accused/appellant vide Ex. P-2 and P-3. Manglu (PW-6) - brother-in-law of Savitri Bai (PW-4) has stated that when he was in his house, mother of the prosecutrix came there weeping and informed that blood was coming out from the private part of her daughter (prosecutrix) and that the appellant had committed rape on her. According to him, he also saw the prosecutrix lying unconscious on a cot and blood was coming out from her private part. Thereafter, he took the prosecutrix to the hospital on his lap where on regaining consciousness she informed him that the accused/appellant had inserted his private part into that of her. In cross examination, this witness remained firm to what he has stated in the examination-in-chief. GR. Sinha (PW-7) is the investigating officer who has duly supported the case of the prosecution. Dr. Sitaram Banjare (PW-8) is the witness who medically examined the accused/appellant and gave his report Ex. P-10 opining that he was capable of performing sexual intercourse. This witness had also advised for chemical examination of certain clothes vide Ex. P-8 and P-9. Dr. (Smt.) Bhanudeshlahra (PW-9) is the witness who medically examined the prosecutrix and gave her report Ex. P-12 quoted below as it is:

Labia majora-No any injury on labia majora, tenderness slight.

Labia minora-No any injury on labia minora, tenderness slight.

Vagina-No any injury present on vagina, slight tenderness.

Hymen-present.

Opinion

(i) No any injury, slight tenderness present.

(ii) No any injury surrounding the vagina, slight tenderness.

(iii) No any external injury on the body

In the Court this witness has stated that the prosecutrix was not co-operative at the time of her medical examination and after much difficulty she could examine her. According to her, there was no injury on labia majora and labia minora, hymen was intact, menstrual cycle had not started and secondary sexual characters were not developed. She has stated that an attempt to rape was made but rape was not done. She has stated that vide Ex. P-13 a query was made to her which she had answered vide report Ex. P-13-A quoted below at verbatim:

(i) "That slight tenderness of L. majora and L. minora & vagina may produce by rape.

(ii) May be produced by penis.

(iii) That girl is un-co-operative instrumentation, is not possible for examination may be due to slight penetration hymen may not rupture.

(iv) No any injury seen on hymen.

In the Court she has categorically stated that as the prosecutrix was not cooperating, it was difficult to insert any instrument and that with slight penetration hymen may not rupture. When prosecutrix was brought before her, she was not bleeding and that in case of complete penetration, hymen would have torn and there would be injury in labia majora and labia minora. Dhiraji (PW-10) has not supported the case of the prosecution and has been declared hostile. Firtin Bai (DW-1) -mother of the accused/appellant has stated that Savitri Bai (PW-4) is her sister and she had requested her for the marriage of one of her daughters with her (this witness''s)) son and as she refused for that, a threat was given by her (Savitri Bai) as a result of which there was some dispute also.

Perusal of the material available on record thus clearly shows that the accused/appellant has sexually assaulted the prosecutrix-a tender aged girl of six years of age at that time. Evidence of the prosecutrix that after calling her near his cot the accused/appellant subjected her to forcible sexual intercourse and on hearing her sheiks her elder sister came there, abused him and then he fled a way from the scene, appears to be quite natural. Even mother of the prosecutrix namely Savitri Bai (PW-4) has stated that after receiving the information from her other daughter when she came home, the prosecutrix was lying on the cot and her clothes and bed were smeared with blood. In addition to this, statement of Manglu (PW-8) that when he was in his house, mother of the prosecutrix came there weeping and informed that blood was coming out from the private part of her daughter (prosecutrix) and that the appellant had committed rape on her and that he also saw the prosecutrix lying unconscious on a cot and blood was coming out from her private part, he took the prosecutrix to the hospital on his lap where on regaining consciousness she informed him that the accused/appellant had inserted his private part into that of her, also corroborates the evidence of the prosecutrix and her mother on material particulars. Though the medical evidence says that no injury on the person of the prosecutrix was found and hymen was intact, lady doctor (PW-9) medically examining her has categorically stated that as the prosecutrix was not co-operating at the time of medical examination, instrument could not be inserted, and all this shows that the prosecutrix must have been in severe painful situation and on account of which she did not co-operate the doctor in the course of her medical examination.

So far as the question of hymen being intact is concerned, in case of a girl of tender age, rupture of hymen, in the event of penetration, is not as a matter of rule. In cases where the hymen is deep seated, it may not rupture though there may be a penetration. In case of a forcible attempt to penetrate also, there are chances that the hymen of the victim may not rupture particularly when it is deep seated. The presence of redness and inflammation over the vagina is at least a sign that either a complete penetration has taken place or a partial penetration has taken place or a forcible attempt to penetrate was made against the victim. Modi opines in his Medical Jurisprudence that in small children, the hymen is not usually ruptured, but may become red and congested along with the inflammation and bruising of the labia. If considerable violence is used, there is often laceration of the four chattel and the perineum. Modi''s Medical Jurisprudence and Toxicology, 23rd Edn., page 928 may be referred to. In the matter of Aman Kumar and another v. State of Haryana reported in 2004 Cr.L.R.(SO 207 it has been held by the Supreme Court as under:

Para 7 - the rupture of hymen is by no means necessary to constitute the offence of rape. Even a slight of penetration in the vulva is sufficient to constitute the offence of rape and rupture of 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, or 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 females 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 of offence of rape as defined in the law. The depth of penetration is immaterial in an offence punishable u/s. 376 IPC.

The argument of the defence counsel that prosecutrix is a tutored witness is not so convincing because her mother simply appears to have refreshed the things in term of the FIR as her statement in the Court was recorded after about one year from the date of incident. It is to be noted that at the time of incident the prosecutrix was aged about 6 years and at the time of recording of evidence 8 years. Moreover, in query report Ex. P-13 the doctor (PW-9) has stated that the tenderness in labia majora and labia minora of the prosecutrix might be produced by penis. Thus taking into consideration the overall material available on record, this Court is of the considered opinion that the findings recorded by the Court below are based on due appreciation of the evidence of the witnesses and the defence has utterly failed to prove the plea of false implication of the accused/appellant by adducing the evidence to the contrary. As a result, the appeal being without substance is liable to be dismissed and it is dismissed as such. Judgment impugned is hereby maintained. Accused/appellant is on bail. His bail bonds stand cancelled. He be sent to jail forthwith to serve out the remaining sentence imposed on him by the Court below.