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2004 DIGILAW 1475 (RAJ)

Kishan Lal v. State of Rajasthan

2004-10-07

KHEM CHAND SHARMA

body2004
Honble SHARMA, J. –This criminal appeal by appellant Kishan Lal sent through Supreintendent, Central Jail, Kota arises out of the judgment dated 19.6.2000 passed by the Additional Sessions Judge, Aklera, district Jhalawar, by which, the learned trial Judge has convicted the appellant under Section 376, 363 and 366 IPC and sentenced him to undergo rigorous imprisonment for 7 years with a fine of Rs. 500/- on the first court, to undergo rigorous imprisonment for two years with a fine of Rs. 500/- on the second count and to undergo rigorous imprisonment for 3 years with a fine of Rs. 500 on the third count. In default of payment of fine the appellant was to undergo simple imprisonment for one month on each count. (2). Succinctly stated that facts of the case are that on 5.1.1999, complainant Sardar Bai (PW4) W/o Prabhu Lal Gujar submitted a written report, Ex.P3 at Police Station Ghatoli, alleging therein that on 4.11.99 her daughter Kabbu Bai aged about 14 years was at home. In the evening, accused Kishan Lal enticed her and took her away with him and has not returned as yet. She alleged that accused took her daughter at about 4.00 PM to the camp (Dera) near Chandpuria and from there, he absconded with her daughter. On this report, police registered a case for offence under Section 363 and 366 IPC vide FIR, E.P10 and proceeded with the investigation. (3). The girl was recovered on 5.1.99 at 5.50 PM. Her Petticoat and underwear of accused appellant were seized, vide Exts. 5 and 7 respectively. She was subjected to medical examination. The accused was arrested and he was also subjected to medical examination. After usual investigation the police submitted a charge sheet against the appellant. (4). The learned Trial Court, on the basis of evidence and material collected during investigation, framed charged against the appellant for offence under Sections 363, 366 and 376 IPC. The appellant denied the charges and claimed trial. (5). In order to prove its case, the prosecution examined 9 witnesses and got exhibited some documents. The accused was then examined under Section 313 Cr.P.C. He did not examine any witness in his defence. (6). At the conclusion of trial, the learned trial Judge found the prosecution case, as alleged proved and accordingly convicted and sentenced the appellant in the manner stated herein above. Hence the present appeal against conviction. (7). The accused was then examined under Section 313 Cr.P.C. He did not examine any witness in his defence. (6). At the conclusion of trial, the learned trial Judge found the prosecution case, as alleged proved and accordingly convicted and sentenced the appellant in the manner stated herein above. Hence the present appeal against conviction. (7). I have heard learned counsel for the parties and perused the impugned judgment, the evidence and material on record. (8). In assailing the conviction, learned Amicus Curiae vehemently argued that the Trial Court has committed serious error in basing conviction of the appellant on the evidence of prosecutrix. Learned counsel argued that the testimony of prosecutrix does not find support from the medical evidence and it cannot be said that rape was committed on the prosecutrix. There is no other evidence except the evidence of prosecutrix, to establish the charge. (9). Per contra, learned Public Prosecutor has supported the judgment of the Trial Court and has contended that finding of guilt is based on proper appreciation of evidence and it may not be interfered with. (10). I have considered the rival submissions. In the cases involving sexual assault, it is well settled that a prosecutrix complaining of having been a victim of offence of rape is not an accoplice after the crime. There is no rule of law that her testimony cannot be accepted upon without corroboration in material particulars. She stands on a higher pedestal than an injured witness. If the court of facts finds it difficult to accept the version of the prosecutrix on its face value, it may search for evidence, direct or circumstantial, which would lend assurance to her testimony. Assurance, short of corroboration as understood in the context of an accomplice, would suffice. (11). The edifice of the entire prosecution case solely rested on the evidence of prosecutrix and that of medical evidence. Therefore, it is essential to scrutinize her evidence minutely. She has deposed that Kishan Lal kidnapped her and forcibly took her from the forest where she was grazing buffalows and thereatened to kill her and her family members. He put off her clothes and committed rape. According to her the accused took considerable time in performing sexual intercourse. On his discharge her petticoat (Ghaghra) got drenched. She further deposed that accused forcibly committed rape on her. She resisted when accused started committing offence. He put off her clothes and committed rape. According to her the accused took considerable time in performing sexual intercourse. On his discharge her petticoat (Ghaghra) got drenched. She further deposed that accused forcibly committed rape on her. She resisted when accused started committing offence. She also pushed him and the accused caught her hands. He was physically strong as compared to her and that he over powered her. In the night, the accused took her to the house of one Lodha in village Kaliya Khedi and in the morning while she was being taken to the house of accused, the police apprehended both of them at Barakhedi crossing. She stated that accused took her to the hills and the place where he committed rape, there was neither any field nor any house and there was none except the accused and the prosecutrix. She stated that she was married in her childhood. In cross examination, the prosecutrix stated that she had raised an alarm at the time when accused committed rape on her. She admitted that she did not receive any injury. (12). From the evidence of prosecutrix it appears that appellant was successful in performing complete intercourse with the prosecutrix and in performing sexual intercourse against her will, he took sufficient time. It is further evident that prosecutrix did not sustain any injury. Since there is no evidence, except the version of the prosecutrix, as to the commission of rape, it would be necessary to analyse the medical evidence. The injury report, Ex. P3 indicates that apparently there was no injury mark on the body of prosecutrix. No injury marks were found on breast, arm, thigh and buttock. The report further indicates that hymen was also intact. The doctor who prepared the injury report has mentioned that no definite opinion can be given whether sexual intercourse has been performed or not. PW. 2 Dr. Vishnu Prasad who examined the prosecutrix to find our whether rape was committed or not, has categorically deposed that there was no mark of any short of injury on the person of prosecutrix. According to him the labia majora and labia minora were in contact with each other and there was no injury mark on vulva, labia majora and labia minora. Her hymen was also intact. (13). According to him the labia majora and labia minora were in contact with each other and there was no injury mark on vulva, labia majora and labia minora. Her hymen was also intact. (13). Having considered the medical evidence, it cannot be said that appellant committed rape and the he was successful in performing complete sexual intercourse as alleged by the prosecutrix. Now, the question that emerges for my consideration is as to what offence the appellant has committed. (14). The medical evidence indicates that hymen of the prosecutrix was intact. To constitute the offence of rape it is not necessary that there should be complete intercourse. The statute merely requires evidence of penetration and this may occur with the hymen remaining intact. To proceed further it would be profitable to first understand about the external generative organs and labia majora etc. (15). The external generative organs consist of the mons veneris, the labia majora and minora, the clitoris, the vestibul, the hymen and vaginal orifice the external urethral meatus and the perineum. All these structures are generally included in the term `Vulva. The labia majora are usually thick, firm, elastic and well rounded and lie in contact with each other, so as to cover completely the Vulva. The labia minora are soft, small and rose coloured and clitoris is small. The vagina is a fibromusculer canal, forming the female copulatory organ. The term `vagina means sheath. It extends from vulva to the uterus. (16). Penetration is sine qua non for 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. The rapture of hymen by no means necessary to constitute the offence of rape. Even a slight penetration in vulva is sufficient to constitute the offence of rape. Vulva penetration with or without voilence is as much rape as vaginal penetration. The actus reus is complete with penetration. Labia majora are first to be encountered by the male organ. They are subjected to blunt forceful blows. (17). In Aman Kumar vs. State of Haryana (1), there lordships of the Supreme Court had an occasion to consider the question as to in what circumstances the penetration would constitute the offence of rape. The actus reus is complete with penetration. Labia majora are first to be encountered by the male organ. They are subjected to blunt forceful blows. (17). In Aman Kumar vs. State of Haryana (1), there lordships of the Supreme Court had an occasion to consider the question as to in what circumstances the penetration would constitute the offence of rape. in doing so their Lordships made elaborate discussion on Vulva and labia majora and observed as under: ``The statute merely requires evidence of penetration, and this may occur with the hymen remaining intact. The prosecutrix cannot be considered as accomplice and, therefore, he testimony cannot be equated with that of an accomplice in an offence of rape. In examination of genital organs, state of hemen 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 texure of the hymen is variable. This variation, sometimes permit 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 ordinary possible with a forceful attempt. The anatomical features with regard to hymen which merits considerations 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 vigorous 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 under Section 376 IPC. (18). It is thus evident that while examining the hymen, certain anatomical characteristics have to be remembered before assigning significance to the findings. The depth of penetration is immaterial in an offence punishable under Section 376 IPC. (18). It is thus evident that while examining the hymen, certain anatomical characteristics have to be remembered before assigning significance to the findings. It is also clear that shape and texture of the hymen is variable. Sometimes this variation permits penetration without injury because of peculiar shape of the orifice or increased elasticity. On the contrary, sometimes the hymen may be more firm, less elastic and gets stretched and lacerated earlier. Relatively less forceful penetration may not give rise to injuries ordinarily possible with a forceful attempt. Here in the present case, as per the version of the prosecutrix there was complete sexual intercourse. Her age has been stated to be 14-16 years. Undoubtedly, she was married in her childhood but her `Gona had not taken place till the offence was alleged to be committed and that she was a virgin girl. There is no medical evidence as regards shape of the orifice or elasticity, whether increased or less elastic. PW2 Dr. Vishnu Prasad Gupta who examined the prosecutrix did not notice any kind of injuries either on her body or on her private parts. He found the hymen intact and labia majora and labia minor were in contact with each and were not separated. He did not notice injury even on vulva i.e., labia majora and minora. Since there was no injury even on labia majora and minora, it cannot be said that there was slight penetration. The version of the prosecutrix that there was complete sexual intercourse cannot at all be believed, as the medical evidence is suggestive of the fact that there was no slightest penetration. Since the prosecutrix was a virgin girl and had there been penetration to some extent, there would have slight redness or swelling on the labia majora and minora but that too is not indicated in the medical evidence. (19). For the reasons aforesaid, I find it highly difficult to accept the version of the prosecutrix. Her testimony does not find corroboration with any evidence either direct or circumstantial, which could lead assurance to her testimony. The Trial Court, in my considered view has committed serious error in arriving at a conclusion of guilt against the appellant on the basis of sole testimony of prosecutrix, which has been found to be unreliable and not worthy of acceptance. The Trial Court, in my considered view has committed serious error in arriving at a conclusion of guilt against the appellant on the basis of sole testimony of prosecutrix, which has been found to be unreliable and not worthy of acceptance. Even her testimony is in contradiction with the statement of PW5 Phool Singh, cousin brother of the prosecutrix and nephew of the complainant. This witness has deposed entirely a different story. He has deposed that prosecutrix was grazing buffalows in the forest, from where the accused took her away. When she raised an alarm, he went to her, but the accused took her away. On his return he informed his aunt in the evening. The witness then stated that he had seen the accused committing rape on the prosecutrix. He was also grazing vows at the hills. he stated that accused was draging her to a `Talai. He went there on hearing her cries. Accused Kishan Lal had squeesed her mouth. When he came running, both of them ran away. On being rebuked, she stooped and ran away. From his statement, it is event that he had witnessed the incident, whereas, according to the prosecutrix there was no body. She has categorically denied the presence of any person at the place and time when accused committed rape on her. Surprisingly enough, her statement does not stand in corroboration with the statement of her mother PW4 Sardara Bai, who, in her cross examination has deposed that she neither saw nor heard about the rape committed on her daughter. In this view of the matter, I am of the firm opinion that conviction of the appellant cannot be maintained and he deserves acquittal. (20). In the result, this appeal is allowed. The conviction of the appellant is set aside and he is acquitted of the offence charged with. The appellant is in jail and he be released forthwith, if not required in any other case.