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2004 DIGILAW 434 (PNJ)

Krishan v. State of Haryana

2004-04-07

NIRMAL SINGH

body2004
JUDGMENT Nirmal Singh, J. - This appeal is directed against the judgment and order dated 10/12.10.2000 passed by learned Additional Sessions Judge, Sonepat, whereby the appellant has been found guilty and convicted and sentenced to undergo RI for a period of ten years and to pay a fine of Rs. 5000/- under Section 376 Indian Penal Code. In default of payment of fine, he was further sentenced to undergo RI for two years. 2. The prosecution story, in brief, is that on 4.10.1998, prosecutrix Jeena, at about 9.10 AM, was going to the pond to wash the clothes. When she reached near the grove of Keekar trees, the accused emerged out of the cluster of the Keekar trees and pressed her mouth and took her in the grove of keekar trees and opened the string of her Salwar and raped her. She cried but the accused kept her mouth closed. On hearing her cries, Rahima wife of Hans Raj and wife of Ramesh came to the spot. The accused, on seeing them, ran away from the spot. 3. Rahima took the prosecutrix, Jeena, to the police post for registration of the case. Jeena made the statement, Ex.PB, before ASI Mukesh Kumar, on the basis of which FIR was registered. Jeena was also medically examined by PW-12 Dr. Purnima Ahuja. The accused was arrested and medically examined. 4. After completion of the investigation, accused was challaned and tried under Section 376 Indian Penal Code, to which he pleaded not guilty and claimed trial. 5. To prove its case, the prosecution examined C. Daya Nand as PW1, HC Ramesh Chander as PW2, SI Ram Chander as PW3, Vijay Kumar Patwari as PW4, Dr. Rahul Garg as PW5, Dr. S.K. Goshai as PW6, Dr. Anil Kumar, Dental Surgeon as PW7, complainant Jeena as PW8, Rahima as PW9, C. Ranjeet as PW10, HC Jai Pal as PW11, Dr. Purnima Ahuja as PW12 and C. Raj Singh as PW12A. 6. When the accused was examined under Section 313 Criminal Procedure Code to explain the incriminating circumstance appearing in the prosecution evidence, he denied simplicitor and pleaded false implication. The accused was called to lead evidence in defence but he did not examine any witness. 7. Purnima Ahuja as PW12 and C. Raj Singh as PW12A. 6. When the accused was examined under Section 313 Criminal Procedure Code to explain the incriminating circumstance appearing in the prosecution evidence, he denied simplicitor and pleaded false implication. The accused was called to lead evidence in defence but he did not examine any witness. 7. After hearing learned counsel for the accused and Public Prosecutor, the learned trial Court convicted and sentenced the appellant as stated in Paragraph 1 of the judgment, aggrieved by which, the present appeal has been filed. 8. Shri R.S. Malik, learned counsel for the appellant, assails the judgement of the learned trial Court on the ground that the learned trial Court has not appreciated the evidence on record in right perspective. He submitted that there is no legal or reliable evidence on record to bring home the charge under Section 376 Indian Penal Code, for which the appellant has been convicted. He pointed out that PW-12 Dr. Purnima Ahuja has medically examined prosecutrix, Jeena. He submitted that as per the medical examination of Jeena, hymen was intact. There was no injury on any part of the birth canal. The vagina was admitting only one finger. He further submitted that from this evidence, it cannot be said that Jeena was subjected to sexual inter-course by force. He further pointed out that there are material contradictions between the statement of Kumari Jeena and PW-9 Rahima, who alleged to have witnessed the occurrence. He submitted that the entire story has been concocted by father of the prosecutrix, Jeena, in connivance with Mukesh Kumar ASI as there was a dispute between father of the appellant, Fate Singh with the father of the prosecutrix and this fact has been admitted by the prosecutrix in her cross-examination. He further submitted that from the evidence on record, the offence under Section 376 Indian Penal Code is not made out and only offence under Section 376 read with Section 511 Indian Penal Code is made out and that too with the consent. He contended that if the appellant had attempted to forcibly commit rape on Jeena, then there must be some injury on the person of Jeena but no injury was found on her person. 9. He contended that if the appellant had attempted to forcibly commit rape on Jeena, then there must be some injury on the person of Jeena but no injury was found on her person. 9. On the other hand, Shri K.S. Chauhan, learned Deputy Advocate General, Haryana, submitted that the age of the prosecutrix was below 16 years and, therefore, her consent is immaterial. He further submitted that from the evidence on record, it has been proved that the appellant has not only tried to commit rape but had actually committed the rape. He also contended that Salwar of the prosecutrix as well as underwear of the appellant were taken into possession. As per the report of the Chemical Examiner, there were stains of semen on these clothes. He further contended that to constitute offence of rape, there may not be a complete penetration of penis with emission of semen and rapture of hymen. Even slight penetration is sufficient to constitute an offence of rape. He further contended that even without emission of semen, offence is complete if there is slight penetration. He further contended that from the report of the Chemical Examiner, it is established that there was emission of semen. He also contended that the appellant has rightly been convicted and sentenced by the learned trial Court. 10. I have heard learned counsel for the parties and perused the record. 11. The first point which is to be determined in this case is the age of the prosecutrix. The prosecutrix has appeared as PW-8. When her age was enquired, she was unable to tell her age. The learned trial Court has given a note as under : "The witness seems to be a simpleton who does not even know her approximate age. However, the witness is quite capable of understanding the questions put to her and providing rational answers to them." 12. PW-12 Dr. Purnima Ahuja has medically examined Jeena and she has given her age as 14 years. To determine the age of the prosecutrix, the prosecution has examined PW-6 Dr. S.K. Goshai. He has conducted ossification test on Jeena on the application moved by ASI Mahabir, Ex.PW/E1. After conducting the ossification test, he has given the age of the prosecutrix between 14-1/2 to 15-1/2 years. His report has been placed on record as Ex.PE. 13. Jeena was also produced before PW-7 Dr. S.K. Goshai. He has conducted ossification test on Jeena on the application moved by ASI Mahabir, Ex.PW/E1. After conducting the ossification test, he has given the age of the prosecutrix between 14-1/2 to 15-1/2 years. His report has been placed on record as Ex.PE. 13. Jeena was also produced before PW-7 Dr. Anil Kumar, Dental Surgeon, to assess her approximate age on the basis of dental examination. After examination, Dr. Anil Kumar came to the conclusion that Jeena was between 13 to 14 years of age and he also proved his report. Ex.PF. Therefore, from the ossification test conducted by PW-12 and the report of the dental surgeon, PW-7, it can safely be said that Jeena, prosecutrix, was below 16 years of age as the ossification test is the surest test. Consequently, the consent given by the prosecutrix is not material. The rape has been defined under Section 375 Indian Penal Code. The same reads as under:- "375. Rape. - A man is said to commit "rape" who except in the case hereinafter excepted has sexual intercourse with a woman under circumstances falling under any of the five following descriptions :- First. - Against her will. Secondly. - Without her consent Thirdly. - With her consent, when her consent has been obtained by putting her or any person in whom she is interested in fear of death, or to hurt. Fourthly. - With her consent, when the man knows that he is not her husband and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married. Fifthly. - With her consent, when at the time of giving such consent by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent. Sixthly. - With or without her consent, when she is under sixteen years of age." 14. When the sexual inter-course is with a woman, who is below 16 years of age, then the case is covered under Clause sixthly. 15. The next point which is to be determined in this case is whether the ocular version given by the prosecutrix Jeena PW-8 has been corroborated by medical evidence. PW-12 Dr. When the sexual inter-course is with a woman, who is below 16 years of age, then the case is covered under Clause sixthly. 15. The next point which is to be determined in this case is whether the ocular version given by the prosecutrix Jeena PW-8 has been corroborated by medical evidence. PW-12 Dr. Purnima Ahuja has deposed in her statement that she could not rule out the possibility of sexual intercourse. In her opinion, the hymen could be found intact in such cases as distensible hymen, which means stretchable. Prosecutrix Jeena has deposed in her statement that when she was on her way to the Village pond at about 9 A.M. to wash the clothes, then she saw the accused emerging out of the kikker bushes and pressed her mouth with his hand and pulled her into the kikker bushes. He then stripped her naked by pulling her Salwar out of her legs and committed rape upon her. She tried to resist the assault on her chastity but in vain. Even if there is a slightest penetration that constitutes an offence of rape. 16. In Parikhs Text Book of Medical Jurisprudence and Toxicology, it has been held as under :- "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." 17. In Gaurs "The Penal Law of India" 6th Edn. 1955 (Vol. II) Page 1678, it is observed as under :- "Even valuval penetration has been held to be sufficient for a conviction of rape." 18. In Modis Text Book of Medical Jurisprudence and Toxicology (21st Edn. Page 369), it has been reported that : "Thus to constitute the offence of rape it is not necessary that there should be complete penetration of penis with emission of semen and rapture 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 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." 19. 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 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." 19. In Taylors Principles and Practice of Medical Jurisprudence at Page 69, rape is defined as under :- "as unlawful sexual intercourse by a man with a female other than his wife, without her consent. The merest penetration of the penis between the labia associated with the lack of consent is sufficient to constitute the offence." 20. The appellant was also medically examined by PW-5 Dr. Rahul Garg. He has pointed out that there is nothing to suggest that the accused was unable to perform sexual intercourse. It is pertinent to mention here that underwear of the appellant and the Salwar of the prosecutrix were sent to the Forensic Science Laboratory for examination. As per the report of the Laboratory, Ex.PL, semen was detected on the salwar of the prosecutrix PW-8 and underwear of the appellant. This shows that there was emission of the semen. On the basis of semen on the salwar and underwear, the Court cannot come to the conclusion that there was a rape. In order to constitute the offence of rape, the penetration of the male organ in the vulva of the vagina of the prosecutrix is a condition sine-qua-non. In the instant case, PW-12 Dr. Purnima Ahuja has medically examined prosecutrix Jeena and has observed as under :- "The patient was conscious and well oriented, with secondary sexual characters partially developed. Pubic hair were also partially developed. There was no mark of injury anywhere on the part of her entire body. The examination of vulva also showed that there was no injury on it. The examination of vagina disclosed that the hymen was intact. There was no injury on any part of the birth canal. The vagina admitted one finger. The perinial tone was within normal limit." 21. The examination of vulva also showed that there was no injury on it. The examination of vagina disclosed that the hymen was intact. There was no injury on any part of the birth canal. The vagina admitted one finger. The perinial tone was within normal limit." 21. PW-8 Kumari Jeena has deposed in her statement that when she was on her way to the village pond at about 9 A.M. to wash the clothes, then she saw the appellant emerging out of the kikker bushes and pressed her mouth with his hand and pulled her into the kikker bushes. He then stripped her naked by pulling her salwar out of her legs and committed rape on her. No doubt, Jeena has stated in her statement that the appellant has committed rape on her but medical evidence shows that the appellant has failed to put his male organ in the vulva of vagina. Even there is no slightest penetration as per the medical evidence. If there would have been slightest penetration of the male organ in the vulva of the vagina of the prosecutrix, then there must be some injury or tenderness to the hymen or to her private part of the body. PW-8 Jeena has deposed in her statement that she suffered a cut on her private part. It also resulted in bleeding and her salwar was stained with blood. Her salwar was still in her legs when appellant raped her and that is why it received blood stains. She also deposed that blood has also fallen on the ground. The salwar of the prosecutrix was taken into possession. There were stains of blood. This part of the statement made by Jeena has not been corroborated by medical evidence. As it has been discussed above, PW-12 Dr. Purnima Ahuja has not found any injury on the private part of PW-8 Jeena. Therefore, PW-8 Jeena has improved her version but her entire version with regard to the occurrence cannot be discarded. 22. PW-9 Rahima, who is the eye witness of the occurrence, has also deposed that she alongwith Kailasho were on their way to the field for fetching fodder for the cattle at about 9 A.M. They heard the cries for help of Jeena. When they reached the place of cries, they found that the appellant had removed the salwar of Jeena and was grappling with her. When they reached the place of cries, they found that the appellant had removed the salwar of Jeena and was grappling with her. He was raping her and on seeing them, he ran away from there. Therefore, from the statement of PW-8 Jeena and PW-9 Rahima, it is proved that the appellant had taken Jeena from the way when she was going to the pond for washing the clothes. Then he removed her clothes and raped her but before committing rape on Jeena, Rahima alongwith Kailasho came to the spot and on seeing them, the appellant ran away from the spot. Therefore, I am of the view that the learned Additional Sessions Judge, Sonepat, was in error in convicting the appellant under Section 376 Indian Penal Code. Rather, from the facts and evidence on record, it is abundantly proved that the appellant has made an attempt to commit rape. 23. Therefore, the appeal of the appellant is partly accepted and the conviction and sentence of the appellant under Section 376 Indian Penal Code is set-aside and instead of that, he is convicted under Section 376 read with Section 511 Indian Penal Code and sentenced to undergo RI for 3 years with a fine of Rs. 1000/-. In default of payment of fine, he shall further undergo RI for three months. In case, the appellant has already undergone the sentence of three years, then his bail bonds and surety bonds be discharged. Appeal party allowed.