REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.664  OF 2009 [Arising out of SLP (Crl.) No. 3855 of 2007]

Satyapal …Appellant

Versus

State of Haryana …Respondent

J U D G M E N T  

S.B. SINHA, J :

1. Leave granted.

2. Appellant was accused of a charge of commission of an offence under

Section  376  of  the  Indian  Penal  Code.   He  was  sentenced  to  undergo

rigorous imprisonment for seven years and to pay fine of Rs. 20,000/-.  In

default  of  payment  of  fine,  he  was  directed  to  undergo  further  rigorous

imprisonment for two years.

3.  The prosecution case is as under:

The  prosecutrix  was  a  minor.   She  was  aged  about  11  years.

Appellant  was  a  co-villager.   As  per  the  First  Information  Report,  on

5.02.1993 at about 8.00 a.m., she went to the fields to bring fodder.  When

she reached near the fields of one Nihala, the appellant came near her and

forcibly lifted her.  She raised an alarm but the appellant gagged her mouth

and started sexually assaulting her. After hearing the voice of her aunt, the

appellant left her and ran away.   

The learned trial Judge found the appellant guilty of commission of

the offence under Section 376 of the Indian Penal Code.  Aggrieved thereby

and dissatisfied therewith, the appellant filed an appeal before the Punjab

and Haryana High Court, which has also been dismissed by reason of the

impugned judgment.  

4. Mr. Brijender Chahar, learned senior counsel would, in support of the

appeal, raise the following contentions:

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(i) Having regard to the evidence of prosecutrix (PW-4), the courts

below committed a serious error in rejecting the medical evidence

as also the report of the Forensic Science Laboratory.

(ii) The materials brought on record, even if given face value, would

clearly establish that the appellant who had land dispute with the

family of the prosecutirx had been falsely implicated.

(iii) The ingredients of Section 376 of the Indian Penal Code having

not been established, the impugned judgments are liable to be set

aside.

5. Mr. Rajeev Gaur ‘Naseem’, learned counsel appearing on behalf of

the respondent, on the other hand, would urge:

(i) The land dispute between the parties cannot be a ground for false

implication  of  a  relation  for  commission  of  an  offence  of  this

nature.

(ii) The evidence of the prosecutirx,  who is a child  witness, having

been  found  to  be  convincing  and  her  evidence  having  been

corroborated by her aunt Khazani (PW-5), no interference with the

impugned judgments is warranted.

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(iii) The prosecutrix having been examined after 80 hours, the medical

report  as  also  the  evidence  must  be  considered  in  the  factual

context brought on record.

6. The  occurrence  took  place  on  5.02.1993  at  about  8  a.m.   The

prosecutrix went to the field to bring fodder.  She was admittedly a minor.

The learned Judge was satisfied that she was competent to depose.  In her

examination-in-chief,  she  supported  the  accusations  made  against  the

appellant in the First Information Report.

7. Our attention, however, was drawn to the following statements made

by her in her cross-examination:

“There  was no string  of  cloth  of  my underwear. My underwear was that of elastic and it was not broken.   I  was wearing the same underwear  and salwar,  which  were  smeared  with  blood,  after reaching home.  My underwear and salwar were got  changed  in  Bhiwani  after  reaching  the hospital.   The  accused  got  discharged  when performed  the  sexual  intercourse  and  that discharged material  had smeared my body at  the relevant place.  I had not taken a bath when I was brought to Civil Hospital, Bhiwani.  Some blood had fallen on the ground where the accused had performed the sexual intercourse with me…”

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8.  Khazani, her aunt (PW-5) witnessed a part of the occurrence.  She, in

her deposition, stated:

“Nirmala  prosecutrix  P.W.  is  my  real  sister’s daughter.  She resides in Khaparwas.  About six months and a week ago, I had gone to bring grass in the fields at about 8.00 or 8.30 a.m.  When I reached  in  the  field  of  Nihala,  Satyapal  accused had  removed  salwar  and  underwear  of  Nirmala and  had  shut  her  mouth  and  the  accused  was performing  sexual  intercourse  with  Nirmala  and while Nirmala had been laid down in the crop of gram in the side of a Tibbi (sand dune).  Nirmala was weeping and on seeing me, the accused ran away.   There  was  swelling  on  the  vagina  of Nirmala.   Nirmala  was  also  bleeding  and  I  got Nirmala  to  wear  her  underwear  and  salwar  and brought her home…”

9. Indisputably,  the  father  of  the  prosecutrix  was  not  in  the  village.

Rajesh,  elder  brother  of  the  prosecutrix  had  gone  to  village  Devrala  to

inform him.  After he came back, a panchayat was convened.  Evidently, the

family keeping in view the reputation of a minor girl did not intend to lodge

a First  Information Report straightway.  PW-5, in this connection,  in her

deposition stated:

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“My father-in-law was Man Singh and he had two brothers, namely, Ganpat and Mohar Lal.  Mohal Lal was issueless.  Mohar Lal had given his entire land to the sons of Ganpat and no land was given to the sons of Man Singh.  I do not know if this land  was  distributed  as  such  at  the  instance  of Sultan, father of the accused.  It is incorrect that there  was  a  water  dispute  from a  Nali  with  the accused.  We have a separate water channel.  I do not know if my husband was committing thefts.  I do not know if he was killed because of any thefts. It is incorrect that I killed my husband.  I have no interest  in  visiting  the  police.   However,  I  am pursuing  her  case,  as  she  is  my  real  sister’s daughter.   It  is  incorrect  that  I  got  the  accused falsely  implicated.   Rajesh,  elder  brother  of Nirmala  P.W.,  had  gone  to  village  Devrala  to inform her father.  There is a chowk in the heart of the  village  where  the  panchayat  was  convened. Sarpanch  and  others  were  with  us  in  the panchayat.  Member-Panchayats were also in that panchayat in the village.  We wanted that at least the accused should have apologized, but he did not agree.  Since it was a question of a stigma on the career of the girl, we did not want to come to the court initially…”

10. We may at  this  juncture  notice  the  evidence  of  Dr.  Savita  Bansal

(PW-6).  In her deposition, she stated:

“On external examination, there was no bleeding or  discharge  on  thigh  or  labia  majora.   Labia majora and minora were not properly developed. Posterior  commissure and fourchette were intact.

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Hymen  was  absent  and  represented  by  slightly swollen edges.   

Per speculum examination was not possible. On her vaginal examination, it admitted only little finger easily.  Two fingers were not possible to be admitted.   So  properly  her  vaginal  examination was not possible.  Vaginal rugosities were not well maintained.”

She, in her cross-examination,  clarified as to why she had reported

that there was a possibility of an attempt, stating:

“I  cannot  say  definitely  with  the  aforesaid observation  whether  there  was  actually  any attempt to commit sexual intercourse.  Therefore, I cannot say whether there was a penetration or not. Since  the  edges  of  the  vagina  were  swollen, therefore, I say that there could be a possibility of attempt and, therefore, I have said that possibility of the attempt to commit sexual intercourse cannot be ruled out.

Possibility  of  such  a  swelling,  as  in  this case, may be due to other reasons also.  It is not necessary  that  other  signs  are  also  available besides swelling if an attempt to rape is made.  In this  case,  since  the  girl  is  minor,  therefore,  the other  signs  were  not  possible.   As  I  have mentioned that hymen was absent, I mean that it was not freshly bleeding.  There was no bleeding of the hymen at all.  This amounts to absence of the hymen…”

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11. Before proceeding to discuss further, we may also notice that in the

report of the Chemical Examiner, it was stated that no semen was detected

on any of the exhibits sent to it.

12. The learned Trial Judge while recording the judgment of conviction

held:

“20. In my view, the entire version of prosecutrix Nirmala,  aged  about  10  years,  is  convincing, consistent and truthful.  It is not necessary for her to  explain  where  the  blood  had  gone  from  her private parts at the scene of occurrence.  She might have  washed  her  private  parts  after  urinating  or after going for toilet etc.  It is not the case that she did not go to toilet and did not pass any urine till she  was  medico-legally  examined.   It  is  not necessary that blood had fallen on her salwar…”

It was concluded:

“21. So,  such  cases  of  rape,  molestations  and other  offences  against  the  women  are  quite common and are not unusual.  Therefore, I over- rule the contentions of the learned counsel for the defence.   I  uphold  the  arguments  of  the learned Prosecutor,  who has urged that the statements of the prosecutrix and Smt. Khazani are truthful and with the help of medical evidence, they have been able  to  prove  the guilt  of  the  accused  and I  am convinced  that  this  is  a  case  of  rape  and  the prosecutrix has clearly stated in her statement that the  accused  took  out  his  penis  and  inserted  the

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same  in  her  private  parts.   This  part  of  the evidence  proves  the  case  against  the  accused clearly without any doubt.”

13. The High Court, in its judgment, opined:

(i) “Hymen was found  to  be  absent  when  the prosecutrix was medico-legally examined by Dr. Savita Bansal.  Said doctor further noticed that the same was represented by slightly swollen edges.  Although, the doctor could not say definitely whether there was actually any attempt to commit sexual intercourse or not, yet since the edges of the vagina were swollen, therefore, an opinion was given that  there  could  be  a  possibility  of  attempt  and, accordingly,  the  possibility  of  the  attempt  to  commit sexual intercourse could not be ruled out.”

(ii) “Coming to the report  of the FSL, as per which semen could not be detected on the clothes of the prosecutrix and the  vaginal  swabs,  it  may be  noted  that  complete penetration of the penis with emission of semen is not necessary to constitute the offence of rape.  Even partial penetration  was  sufficient  to  constitute  the  offence  of rape.  Absence of hymen is clear indication of the fact that there was penetration.  It may be that the penetration was partial or that there was no emission of semen by the appellant.”

(iii) “The  prosecutrix  has  clearly  stated  in  her  deposition before the Court that the accused had inserted his male organ in her vagina.  Moreover,  the absence of hymen cannot be explained by any other circumstance than the sexual  intercourse committed by the appellant  with the prosecutrix.”

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14. Mr. Chahar would contend that whereas the learned Trial Judge failed

to take into consideration the  medical  evidence,  the  opinion of  the  High

court is clearly contrary to the prosecution case.   

15. A case of this nature should be viewed having regard to the materials

brought  on  record  in  their  entirety.   We  have  noticed  hereinbefore  the

prosecution  case.   Indisputably,  the  prosecutrix  was  examined  medically

after a long time.  The explanation offered by PW-5 in this behalf, in our

opinion, is clear and sufficient.  Not only the father of the prosecutrix was

not in the village, he had to be sent for and came back to the village only on

the next day.  Evidently, for good reasons, they did not want to lodge a First

Information  Report  immediately.   A  panchayat  was  convened  and  only

when it did not yield any fruitful result, the First Information Report was

lodged.   

The evidence of the doctor appears to be wholly insufficient.  Even

she could not complete the medical examination.   

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Despite passage of a long time, an injury on the private parts of the

prosecutrix was found.  The doctor at least testified that there had been an

attempt  to  commit  rape.   While  saying  so,  she  found  the  hymen absent

which having regard to the medical jurisprudence is of some significance.    

16. In Modi’s Medical Jurisprudence, twenty-third edition, at pages 897

and 928, it is stated:

“At page 897: To constitute the offence of rape, it is  not  necessary  that  there  would  be  complete penetration  of  the penis  with  emission  of  semen and the rupture 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.

At page 928: 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 perineum.”

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17. The  prosecution  case  must  be  considered  having  regard  to  the

evidence of PW-5.  She detected the accused while committing the offence.

It was not complete.  Appellant is said to have fled away, hearing her voice.

18. The prosecutrix,  therefore,  may not  be  correct  when she made her

statements that she did not change her garments which does not appear to be

probable as sufficient time had elapsed and it is unthinkable that a little girl

would  continue  to  wear  her  cloth  for  80  hours  or  she  would  not  wash

herself.   

19. Fault in the judgment of the High Court could have been found out if

the  prosecutrix  was  a  major.   Having  regard  to  the  nature  of  medical

evidence as also the authorities noticed hereinbefore the conclusion arrived

at  by  the  High  court,  in  our  considered  opinion,  cannot  be  said  to  be

perverse.  Furthermore, for the purpose of satisfaction of the ingredients of

rape, it  is  not  necessary that  there should be complete penetration.  [See

Aman Kumar and Another v. State of Haryana (2004) 4 SCC 379]   

20. This  Court  can  take  judicial  notice  of  the  fact  that  ordinarily  the

family of the victim would not intend to get a stigma attached to the victim.

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Delay in lodging the First Information Report in a case of this nature is a

normal phenomenon.  Both the courts below apart from relying on a part of

the  testimony  of  the  prosecutrix  found  the  evidence  of  PW-5  to  be

absolutely reliable.  The medical evidence itself being a part of the evidence

is  required to be appreciated in the context  of ocular  evidence and other

circumstances surrounding thereto.

21. There  was  some  time  gap  between  the  occurrence  and  the

examination of the witnesses.   Some lapse of memory on the part  of the

child witness, therefore, is possible.   

22. We are, therefore, of the opinion that the impugned judgment does

not warrant any interference by this Court.

23. For  the  reasons  aforementioned,  there  is  no  merit  in  this  appeal,

which is dismissed accordingly.

………………………….J. [S.B. Sinha]

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..…………………………J.     [Dr. Mukundakam Sharma]

New Delhi; April 08, 2009

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