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2010 DIGILAW 82 (CHH)

Premlal v. State of Madhya Pradesh

2010-03-09

PRITINKER DIWAKER

body2010
JUDGMENT This appeal is directed against the judgment dated 18.12.1990 passed by Additional Sessions Judge, Mahasamund, in Sessions Trial No. 195/1989 convicting the accused/appellant for the offences punishable under Sections 450 and 376 IPC and sentencing him to undergo rigorous imprisonment for three years and five years respectively on each count. 2. Case of the prosecution in brief is that on 8.3.1989 FIR (Ex. P-1) was lodged by the prosecutrix (PW-1) aged about 16 years alleging that on 7.3.1989 when she was all alone in her house, at about 12 noon accused/appellant entered her house, bolted the door from inside, threw her on the ground, inserted a piece of cloth in her mouth, upturned her sari and committed forcible sexual intercourse with her. 3. In order to establish the guilt of the accused/appellant the prosecution has examined 15 witnesses. Statement of the accused/appellant was also recorded under Section 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. In addition to this, two witnesses namely Jagdish Kumar and Nathuram (DW- 1 and DW-2 respectively) have also been examined by the defence in support of its case. 4. After hearing the parties the trial Court has convicted and sentenced the accused / appellant for the offences as mentioned above. 5. Heard counsel for the parties and perused the material available on record including the judgment under challenge. 6. Counsel for the appellant submits that present appears to be a case of consent and false implication of the accused/appellant at the hands of the prosecutrix. He further submits that if it is not a case of consent, then plea of alibi is available to him as two defence witnesses named above have categorically stated in their evidence that on the date of incident the appellant was not present on the spot and had gone outside the village to work in a canal project. According to the counsel for the appellant, even the medical report of the prosecutrix does not support the case of the prosecution as her hymen was found to be intact and no external or internal injury was found on her body. He submits that as there are material contradictions and omissions in the statement of the prosecutrix, based on that the accused/appellant cannot be convicted for the offences alleged against him. 7. He submits that as there are material contradictions and omissions in the statement of the prosecutrix, based on that the accused/appellant cannot be convicted for the offences alleged against him. 7. On the other hand counsel for the respondent/State supports the judgment impugned and submits that plea of consent and alibi cannot be taken together. As regards absence of injury and non- rupture of hymen, he submits that as at the relevant time the prosecutrix was a minor girl, possibility of her hymen being deep seated resulting in its being intact cannot be ruled out. He submits that FSL report Ex. P-10 also supports the case of the prosecution where presence of spermatozoa was confirmed on the petticoat of the prosecutrix and underwear of the accused. 8. Prosecutrix (PW-1) has stated in her evidence that on the date of incident at about 12 noon when she was alone in her house as her parents had gone to the field, accused/appellant made an entry to her house, closed the door from inside, inserted a piece of cloth in her mouth, threw her on the ground and committed forcible sexual intercourse with her after upturning her sari and then fled away. After some time one Meghraj Sahu (PW-2), a young boy aged about 9 years came to her house and asked her as to who had come to her house and she told him that accused/appellant had come to her house and after committing forcible sexual intercourse with her he fled away. When at about 4 p.m. her parents returned from the field, she narrated the entire incident to them and thereafter on the second day the report was lodged. During investigation, torn blouse and piece of cloth which was inserted in her mouth were seized. In cross examination also, she remains firm to the statement made by her in the examination in chief. She has categorically denied the theory of consent to the act of the accused/appellant. Meghraj Sahu (PW-2) aged about 9 years has also stated in his evidence that on the date of incident he saw the accused entering the house of the prosecutrix and closing the door from inside. He has further stated that after about half an hour the accused/appellant had come out of her house. Meghraj Sahu (PW-2) aged about 9 years has also stated in his evidence that on the date of incident he saw the accused entering the house of the prosecutrix and closing the door from inside. He has further stated that after about half an hour the accused/appellant had come out of her house. Though this witness has denied that thereafter he had a talk with the prosecutrix, he supports the case of the prosecution that the accused/appellant had entered the house of the prosecutrix and closed the door from inside. Mother of the prosecutrix namely Bodra Bai (PW-3) and her father Ikshharam (PW-12) have also supported the case of the prosecution stating that when they returned from the field, they found the prosecutrix crying and on being asked she informed them as to what had happened to her by narrating entire incident to them. Tulsiram (PW-4) and Tirathram (PW- 5) have also supported the case of the prosecution. Pyarelal (PW-6) - has stated that a sealed packet was seized in his presence vide seizure memo Ex. P- 3. Ram Kumar (PW-7) - the witness of seizure of petticoat and torn blouse of the prosecutrix vide Ex. P-4 and Ajuram (PW-10) witness of seizure of broken bangles vide Ex. P-9 have also supported the case of the prosecution. Dr. S.R. Wankhede (PW-11) who had medically examined the accused/appellant has stated in his evidence that he was capable of performing sexual intercourse. Dr. S.C. Bishnoi (PW- 14) who had conducted ossification test of the prosecutrix has opined that at the relevant time she was aged about 15-16 years. Dr. Jaishree Gopinathan (PW-15) who had examined the prosecutrix has stated that at the relevant time she was a girl of tender age and her breasts were not fully developed. She has stated that the undergarments produced before her were stained with spermatozoa. According to this witness hymen of the prosecutrix was intact and no opinion regarding rape on her could be given. She has however denied that the prosecutrix was habitual to sexual intercourse. 9. Evidence of the prosecutrix, according to the considered opinion of this Court, being completely trustworthy inspires full confidence of this Court and nothing has been brought on record by the defence to discredit or discord the same. 10. She has however denied that the prosecutrix was habitual to sexual intercourse. 9. Evidence of the prosecutrix, according to the considered opinion of this Court, being completely trustworthy inspires full confidence of this Court and nothing has been brought on record by the defence to discredit or discord the same. 10. Thus in view of the factual backdrop of the case adumbrated above it remains undisputed that in the absence of the parents of the prosecutrix, the accused/appellant had entered her house with an intention to commit the offence of rape and therefore this Court finds no illegality in the judgment impugned so far as it relates to conviction of the appellant under Section 450 IPC. 11. 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 fourchette and the perineum. Please see Modi's Medical Jurisprudence and Toxicology, 23rd Edn., page 928. In the matter of Aman Kumar and another v. State of Haryana reported in 2004 Cr.L.R (SC) 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. 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 major a. These, viz. labia major a 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 major a 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." 12. Thus, in the light of the facts of the case, evidence adduced by the prosecution and the legal position detailed above, the argument of the counsel for the appellant that the prosecutrix was not subjected to rape as her hymen was found intact, being without force is liable to be struck down. Thus, in the light of the facts of the case, evidence adduced by the prosecution and the legal position detailed above, the argument of the counsel for the appellant that the prosecutrix was not subjected to rape as her hymen was found intact, being without force is liable to be struck down. It is struck down as such. Secondly, the plea of consent and that of alibi taken by the appellant simultaneously being contrary to the provisions of law cannot be taken together and thus this argument raised by the Counsel for the appellant has also to go and it goes as such. Accordingly, this Court reaches the conclusion that the findings recorded by the Court below convicting and sentencing the accused/appellant as described above being based on the material available on record, requires no interference in appeal. 13. The appeal thus has no substance at all and accordingly it meets the fate of dismissal. Judgment impugned receives affirmation. Appellant is reported to be on bail. His bail bonds stand cancelled. He be dispatched to jail to serve out the remaining part of the sentence imposed on him.