Siya Dulari Kol & Ors. vs State of MP & Ors.

This criminal appeal against conviction under Section 374 (2) of the Cr.P.C . is directed against the judgment dated 11.05.2005 passed by the 10th Additional Sessions Judge, Jabalpur in Sessions Trial No. 09/2005, whereby accused/appellant Jagdish was convicted under Section 376 (2) (g) of the I.P.C . and was sentenced to undergo imprisonment for life and to pay a fine in the sum of Rs.2,000/-. In default of payment of fine, he was directed to undergo rigorous imprisonment for a further period of six months.

The prosecution case before the trial Court may briefly be stated thus: The first informant, Rampyari @ Pyaribai (PW-1) is the

Mother of the prosecutrix, who was a 5 1/2 years old minor girl. At about 05:00 p.m. on 13.11.2004, when Pyaribai was sitting with her husband Sanilal (PW-4) in her courtyard, accused Jagdish came and took the prosecutrix on the pretext of feeding her biscuits. When the accused and the prosecutrix did not returned for about an hour, Pyaribai (PW-1) went towards the water tap to look for them. She saw the accused returning with the prosecutrix on his shoulders. When the accused handed over the prosecutrix to her mother Pyaribai, she started to cry. Thereafter, she brought her home and asked as to what happened- Whereon, the prosecutrix complained that she had severe pain in her stomach and vagina. She also told her that accused Jagdish had done something to her. As a result, she had difficulty in sitting and getting up. Pyaribai took out the panty of the prosecutrix and examined her private part. She found that it was bleeding and had swelling. Her frock and panty also had blood stains. Thereafter, Pyaribai reported the matter to her husband, brother-in-law, sister-in- law and neighbours, Suresh and Santram. She also informed about the matter to Sarpanch, Mohanlal (PW-5). Mohanlal reported the matter on telephone to P.S.-Bargi; whereon, Assistant-Sub-Inspector, Laxmikant Tiwari, who was on patrolling duty in the area, arrived on the spot. Pyaribai (PW-1) lodged Dehati Nalishi (Ex.P/1) of the incident. The prosecutrix was referred to Algin Hospital, Jabalpur. In the medico-legal examination, Dr. Sharda Mishra (PW-10) found that there were dried up semen like white stains on the vagina of the prosecutrix. There was a small wound and redness near clitoris, upon the vagina. Her panty had semen stains; however, her hymen was intact; therefore, the doctor had opined that an attempt of rape was made upon the prosecutrix. In the medico-legal examination of the accused it was found that the accused was capable of performing sexual intercourse and smegma was missing.

The trial Court framed a charge under Section 376 (2) (f) of the I.P.C .. The accused abjured the guilt and claimed to be tried. In his examination under Section 313 of the Cr.P.C., he took the plea of alibi and stated that at the time of the incident, he had gone to his Sister''s place. He has further stated that there was old enmity between his family and that of the prosecutrix and the father of the prosecutrix had burnt his house; therefore, he has been falsely implicated in the matter.

The trial Court recorded a finding to the effect that it was proved beyond reasonable doubt on the basis of the statements of the prosecutrix and that of Dr. Sharda Mishra (PW-10) that the prosecutrix was a 5 1/2 years old minor girl had been subjected to rape and not merely an attempt to commit rape by the accused; therefore, he was convicted under Section 376 (2) (g) of the I.P.C . and was sentenced as aforesaid.

Learned counsel for the appellant has challenged the conviction recorded and sentence imposed upon the appellant on the grounds that Pyaribai (PW-1), Mother of the prosecutrix has admitted in her cross-examination in (Para-7) that her Father-in-Law has been missing. He had gone along with the father of the accused Jagdish for negotiating a land deal and went missing thereafter. The police had interrogated the accused and his father in this regard. She also admitted that her family suspected the appellant and his father of wrong doing and there has been enmity between the two families. Ever since, there is no social contact between their families; therefore, it has been contended that due to aforesaid enmity, the appellant has been falsely implicated in the matter. It has further been contended that as per the prosecution case, at the time of the incident Pyaribai and her husband Sanilal were sitting in the courtyard and the appellant had taken the prosecutrix on the pretext of feeding her biscuits; however, in her court statement Pyaribai (PW-1) has stated that she and her husband were inside the house and her children were playing. When she came out, she found that the prosecutrix was missing; whereon, she searched for the prosecutrix. At that time, the appellant came carrying the prosecutrix in his lap. On the basis of aforesaid

discrepancies, it has been argued that since there was no social contact between the families of the prosecutrix and the appellant, it was highly improbable that the first informant Pyaribai and her husband Sanilal would allow the prosecutrix who was only 5 1/2 years old minor girl, to be taken away by the appellant on the pretext of feeding biscuits. Learned counsel for the appellant has laid special emphasis on the fact that Dr. Sharda Mishra (PW-10) had categorically stated in her testimony that the hymen of the prosecutrix was intact. She had also opined that the prosecutrix was subjected only to an attempt to commit rape. In the teeth of the aforesaid statements, learned trial Court grievously erred in holding that the prosecutrix was in fact raped. Therefore, it has been prayed that the conviction of the appellant be altered from one under Section 376 (2) (g) of the I.P.C . to one under Section 376 (2) (g) read with section 511 of the I.P.C..

Learned panel lawyer for the respondent State on the other hand has supported the impugned judgment and contended that the discrepancies pointed out by the learned counsel for the appellant do not dent the core of the prosecution story. It has further been argued that the prosecutrix was merely a 5 1/2 years old minor girl in the girls of that age. The hymen is located deep inside the vaginal orifice. It is also flexible; therefore, the trial Court was right in holding that merely because the hymen was found to be intact, it could not be said that no penetration had occurred. For the aforesaid argument, learned panel lawyer for the respondent State has placed reliance upon the Modi''s Medical Jurisprudence and Toxicology, 23rd Edition.

On perusal of the record and due consideration of the rival contentions, we are of the view that this appeal must succeed but only part. The charge was framed under Section 376 (2) (f) of the I.P.C .; but the appellant was inadvertently convicted under Section 376 (2) (g) of the I.P.C .; however, since the offence has been properly described in the charge, no prejudice had been caused to the appellant. The appellant has also not raised an issue in this regard. In these circumstances, the case would be considered in the ambit of Section 376 (2) (g) of the I.P.C . Moreover, the conviction is required to be altered from one under Section 376 (2) (g) of the I.P.C . to one under Section 376 (2) (g) read with section 511 of the I.P.C. because penetration has not been proved beyond reasonable doubt only attempt to penetrate has been proved. The reasons for our conclusion are as hereunder:

The 5 1/2 years old prosecutrix (PW-2) has stated that the appellant had taken her to a Canal and had sexual intercourse with her. In her testimony, she has used the obscene equivalent in Hinde for sexual intercourse. Though, she had failed to explain the meaning of that word, keeping in view her tender age, it is clear that what she really meant was that there was penis-vagina contact. Her mother, the first informant Rampyari @ Pyaribai (PW-1) has stated that she and her husband Sanilal were inside their house and their three children including the prosecutrix were playing outside. When she came out, she found that the prosecutrix was missing. Therefore, she looked for the prosecutrix in the neighbourhood. At that time, she saw that the appellant Jagdish was coming carrying the prosecutrix in his lap. She snatched her daughter from the appellant and brought her home. The prosecutrix was finding it difficult to walk. She was getting drowsy. Her daughter told her that the appellant Jagdish had taken her and had pulled her panty down. Thereafter, she had made her daughter lay on the Cot. She pulled her daughter''s panty down and examined her private part. She saw that she was bleeding from vagina and her Vagina had swollen. There were blood stains on her panty. The prosecutrix complained that she had pain in her vagina. Thereafter, the witness had informed about the matter to her husband Sanilal and other family members and also to neighbours. She also reported the matter to the Sarpanch, Mohanlal (PW-5). She also lodged Dehati Nalishi (Ex.P/1) of the incident. Bargi police had sent her daughter for medico-legal examination to Algin Hospital, Jabalpur.

Mohanlal (PW-5) has stated that at about 09:00 p.m. on the date of the incident, family members of Sanilal had gone to his house and had reported that accused Jagdish had committed rape upon the prosecutrix after taking her towards Canal. He had seen that the panty of the prosecutrix had blood stains. Thereafter, he informed about the incident to P.S.-Bargi on telephone.

Dr. Sharda Mishra (PW-10) has deposed that at about 01:40 p.m. on 14.11.2004, she had examined the prosecutrix, who was a 5 - years old girl. There were white dried up stains upon her vagina. The hymen was intact. On the left side of the equatalus, there was about 1- 2 m.m. long linear wound and there was redness around it. In her opinion, an attempt to commit rape was made upon the prosecutrix. Her medico-legal examination report in this regard is Ex.P/8. Dr. S.K. Pandey (PW-7) has stated that at about 02:45 p.m. on 14.11.2004, he had examined the appellant Jagdish and had found that the appellant was capable of performing sexual intercourse and smegma was missing from the glance of the penis. His examination report is Ex.P/5. In the report of the Forensic Science Laboratory, Sagar (Ex.P/13), it has been recorded by Assistant Chemical Examiner that semen and human spermatozoa were found in the vaginal smear and panty of the prosecutrix and underwear and pant of the appellant.

On the basis of aforesaid evidence, the trial Court recorded a finding that the appellant had committed rape upon the prosecutrix because in spite of the discrepancies pointed out by the learned counsel for the appellant, the statements of the proseuctrix (PW-2) and the mother of the prosecutrix (PW-1) were worthy of credence.

When we examine these findings in the light of the discrepancies highlighted by the learned counsel for the appellant, we find that though it is true that Pyaribai, mother of the prosecutrix had admitted in her cross-examination that there were inimical relations between the families of the prosecutrix on one hand and that of the appellant on the other since before the date of the incident; it appears

highly improbable that anyone would involve his or her 5 - years old daughter in such a dispute, causing injuries to her private part, smear her panty and vagina with semen and then come forward and claim that she was raped. Thus, it is clear that the existing enmity between the parties had played no part in the allegations leveled by the prosecutrix and her family upon the appellant.

It is also true that the genesis of the prosecution story differs slightly from the one unfolded in the Court by means of prosecution evidence inasmuch as according to the prosecution case, the prosecutrix was taken by the appellant from the presence of her parents and according to the deposition in the Court, she was taken from outside her house, without the knowledge of her parents. However, this discrepancy is not so grave as to convince the Court to ignore the categorical statements made by the prosecutrix and her mother and also the medico-legal and forensic evidence. In this view of the matter, in the opinion of this Court, the trial Court has rightly held that the incident had indeed occurred.

Now, the only question that remains for consideration is whether the act of the appellant amounted to rape or an attempt to commit rape- The best witness in this regard would have been the prosecutrix herself; however, since she was only about 5 years old on the date of the incident, she has only provided sketchy particulars. She could not have been expected to provide a more detailed account of what exactly happened. So the Court is left with only medical and the forensic evidence. So far as the appellant''s conviction is concerned, it is obvious that ejaculation had taken place because the presence of semen and human spermatozoa was detected on the vagina of the prosecutrix as also her panty and undergarments of the appellant but ejaculation, by itself, is not indicative of penetration. It may even take place outside the vagina without even slightest degree of penetration. Though, the mother of the prosecutrix namely Pyaribai has stated that on examination, she had found blood stains upon the panty of the

prosecutrix; however, no such blood stains were detected in the forensic examination. There was only a 1 or 2 m.m. wound near the clitoris and there was redness. Dr. Sharda Mishra (PW-10), who had examined the prosecutrix about 6-7 hours after the incident, had found her hymen intact and on the basis of aforesaid circumstances, had opined that merely an attempt to commit rape was made upon her.

It is true that the penetration, howsoever slight, is sufficient to constitute sexual intercourse. In Modi''s Medical Jurisprudence and Toxicology (23rd Edition), at page 876, in the Chapter relating to "Virginity, Pregnancy and Delivery", it is notes that the hymen is situated more deeply in children than in nubile girls and so it more often escapes injury in an attempted rape on children. At page 928 of the same edition, it has been recorded 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 fourchette and the perineum.

The trial Court had held that mere existence of intact hymen in a 5 1/2 years old girl is not an indicative of the fact that there was no penetration; therefore, the finding was recorded that the prosecutrix was indeed subjected to sexual intercourse. However, the doctor medico-legally examining the prosecutrix about 7 hours after the incident, has categorically stated that there was only an attempt to commit rape. No attempt was made by the prosecutor or the trial Court to elicit further information in this regard. No attempt was made to confront the doctor with a text book. The Supreme Court in the case of State of M.P. Vs. Sunny Rai, 2005 (1) JLJ 411 has held that opinion of the doctor cannot be discarded on the basis of text book, unless relevant passage of the book was put to the doctor. Likewise this Court in the case of Dhanua Vs. State of M.P., 2006 (1) JLJ 75 has observed that the trial Court considered the same passage from a text book and held that sometimes injuries caused by sharp and heavy object appear like lacerated wound because of thickness of the skin of the skull; however, this passage of the text book was not shown to the medical witness at the time of his evidence; therefore, the finding of the trial Court was not held to be sustainable.

Aforesaid authorities applied with full vigor to the case at hand, the opinion of the medical witness that there was no penetration and there was only an attempt to penetrate, goes in the favour of the appellant/accused. If the prosecutor or the Court deemed otherwise, it was incumbent upon them to have put the relevant passage from the text book to the doctor and to have obtained his opinion with reference to that passage but they failed to do so; therefore, it was not open to the trial Court to use that proposition.

In aforesaid view of the matter, this Court is of the view that the prosecution has failed to prove beyond reasonable doubt that there was even slightest penetration into the vagina of the prosecutrix by penis of the appellant; however, it is clear that there was an attempt to penetrate; as such, the conviction of the appellant for rape upon a 5 1/2 years old girl is not sustainable. It is liable to be converted into one for an attempt to commit rape.

Consequently, the appeal is partly allowed. The conviction of the appellant is converted into one under Section 376 (2) (f) read with section 511 of the I.P.C.. As a result, the sentence of imprisonment for life is reduced to one of rigorous imprisonment for a period of 7 years. The fine, as imposed by the trial Court is affirmed.

If the appellant has already undergone the imprisonment now imposed upon him, he shall be released forthwith, if not required in connection with any other case.