REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.1798 OF 2008  

Wahid Khan …..Appellant

Versus

State of Madhya Pradesh …..Respondent

J U D G M E N T

Deepak Verma, J.

1. A minor girl aged about 12 years was subjected to  

rape by the appellant on 14th October 1988.  The appellant was  

charged  and  prosecuted  for  commission  of  offence  under  

Sections 366 and 376 of the Indian Penal Code (for short,  

‘IPC’)  and  the  co-accused  Sneh  Lata  was  charged  under  

Sections 342 and 366, IPC in the Court of III Additional  

Sessions Judge, Bhopal in Sessions Case No.53/89.

2. Judgment was pronounced in the said Sessions Case on  

17th May 1991 wherein and whereby co-accused Sneh Lata was  

acquitted  of  the  charges  levelled  against  her,  but  the  

appellant was found guilty of commission of offence under  

Section  376,  IPC  and  was  awarded  seven  years’  rigorous  

imprisonment.  Insofar as the charge levelled against him  

under Section 366 was concerned, he was acquitted by the said  

court.

3. Feeling aggrieved by the said judgment of conviction,  

appellant preferred Criminal Appeal No.548 of 1991 in the

High Court of Madhya Pradesh at Jabalpur.  Learned Single  

Judge, after considering the matter from all angles, came to  

the  conclusion  that  the  findings  recorded  by  the  learned  

Sessions Judge were based on material evidence available on  

record, thus, proceeded to confirm the findings of guilt as  

also the punishment awarded to him by judgment dated 29th  

September 2006.   

4. It  is  against  this  judgment,  the  present  criminal  

appeal by special leave has been preferred by him.   

5. Facts,  which  are  in  short  compass,  are  mentioned  

hereinbelow.

6. Although  the  prosecutrix-P.W.1  was  resident  of  

Gadarwara, she had come to Bhopal about four months prior to  

the date of occurrence.  In Bhopal, she was staying with her  

relative.   She  had  gone  to  an  Ayurvedic  Hospital  for  

treatment where she came in contact with acquitted co-accused  

Sneh Lata,  who showered love and affection on her.  Thus,  

she was allured by Sneh Lata and went to stay with her.  The  

record shows that she was kept in wrongful confinement at her  

house.  She used to be beaten up and was not allowed to leave  

the house.  Many boys and girls used to visit the said house  

of Sneh Lata.   

7. On  14th October  1988,  she  gave  Rs.10/-  to  the  

prosecutrix,  with  which  the  prosecutrix  went  to  Bhopal  

Talkies to watch the matinee show.  After the movie, when she  

came out of the theatre, she found a few boys standing there  

who started teasing her.  In the meanwhile, the appellant-

accused Wahid came there in his auto who voluntarily offered  

to help her.  She requested him to drop her to her relative's  

place but instead of taking her to the house of relative of  

the prosecutrix, he proceeded towards airport via Lal Ghati.  

She tried to stop the accused from proceeding in the wrong  

direction, but, he continued to ply the auto-rickshaw.  In  

the darkness, near bushes he stopped the auto and used filthy  

language against her.  He also threatened to kill her if she  

raised hue and cry.  After gagging her mouth, he took her to  

the nearby bushes and removed her under-garments.  He also  

removed his pants and under-garments and committed rape on  

her.  At that very point of time, some sharp light came  

followed by two police personnel coming there and catching  

him  red-handed  while  performing  intercourse  with  the  

prosecutrix.   

8. Both  of  them  were  taken  to  the  Bairagarh  Police  

Station where FIR (Exh. P-1) was lodged by the prosecutrix.  

She was sent for her medical examination and accused was also  

sent for his medical examination.   

9. After  usual  investigation,  chargesheet  was  filed  

against appellant and co-accused Sneh Lata for commission of  

offences as mentioned hereinabove for which they were tried  

and upon completion of trial, the appellant was found guilty  

for commission of offence under Section 376 of the IPC.   

10. The conviction of the appellant is founded on the  

evidence of P.W.1-prosecutrix as also the evidence of P.W.3-

B.B. Subba Rao, Sub-inspector who had caught him red-handed

while  he  was  committing  rape.   Medical  report  dated  15th  

October 1988 of the prosecutrix is on record.  It records  

that her hymen was found to be in tact whereas her private  

part admitted only tip of little finger with difficulty.  In  

the  opinion  of  Dr.  B.  Biswas  who  had  examined  her,  no  

intercourse was done with her.  But, for determination of her  

age, she was sent to Forensic Department of Hamidia Hospital.  

Dr. B. Biswas has not been examined by the prosecution.

11. At  the  time  of  medical  examination  of  the  

prosecutrix,  her  medical  history  was  recorded,  marked  at  

Exh.P-9 which categorically records the manner in which the  

appellant had committed rape on her.

12. P.W.1-prosecutrix  had  initially  not  supported  

prosecution case and was declared hostile.  But, on being  

confronted  with  her  statement  recorded  under  Section  161,  

Code of Criminal Procedure, she narrated the true and correct  

story and the manner in which rape was committed on her.  She  

has  categorically  deposed  that  the  appellant  removed  her  

underwear, lied on her, put his male organ into her private  

part  and  was  moving  up  and  down.   According  to  her,  he  

committed bad act with her.  It is mentioned by her that on  

account of rape having been committed by the appellant, she  

was not being called by her parents.  She has also proved her  

FIR which was recorded on 14th October 1988.

13. To  corroborate  the  evidence  of  prosecutrix,  

prosecution has examined I.O. (P.W.3-B.B. Subba Rao), Sub-

inspector of Police Station Bairagarh.  According to him, on

14th October  1988  he  was  on  field  duty  with  regard  to  

investigation  of  some  other  case  and  he  received  an  

information that an auto driver was going in an auto at about  

8 O’clock in the evening with a girl towards airport road.  

According  to  him,  on  search,  auto  was  found  in  abandoned  

condition on a secluded road.  The police officer has stated  

that he suspected some foul-play and went in search of the  

owner of the same.  What is mentioned by him is that near the  

bushes, he found the auto-rickshaw parked by the side of the  

road  and  appellant  committing  rape  on  the  prosecutrix.  

According to him, the appellant was caught red-handed.

14. In his cross-examination conducted by learned counsel  

for the appellant, which is more suicidal, he has deposed  

that both of them were found to be in compromising position  

and were naked below the waist.  It is mentioned by him that  

the appellant was lying on the prosecutrix and was indulging  

in sexual intercourse and he had seen the incident in the  

light of the vehicle in which he was travelling.  According  

to him, the site of incident was 2-3 furlongs away from the  

main road and as soon as the appellant was caught, stood up  

and  was  found  in  a  perplexed  condition.   He  has  further  

stated that they thereafter put on their clothes and were  

brought to the police station, where FIR was lodged by the  

prosecutrix.  According to him, his auto-rickshaw was seized  

on the same day and he was apprehended on next day.   

15. Perusal of the record would show that Exh.P-1 (FIR)  

was lodged by the prosecutrix herself on the date of the

incident on 14th October 1988 at the police station soon after  

the incident.  When she was sent for medical examination, she  

again  narrated  rape  on  her  by  the  appellant  before  the  

medical  officer  which  finds  place  in  her  medical  report  

Exh.P-9.   Thus,  the  testimony  of  the  prosecutrix  stands  

corroborated by her FIR and contents of Exh.P-9.  To further  

corroborate aforesaid evidence, the statement of P.W.3-B.B.  

Subba Rao fully establishes that it was Wahid Khan who had  

committed rape on the prosecutrix.  As mentioned hereinabove,  

whatever little lacunae was there in the prosecution story,  

has been cured in his cross-examination.   

16. Cumulative  reading  of  the  aforesaid  would  prove  

beyond shadow of doubt that it was the appellant who had  

committed offence of rape on minor girl and had completely  

ravished her.

17. Shri Fakhruddin, learned senior counsel appearing for  

the appellant strenuously contended before us that keeping in  

mind the medical report of the prosecutrix reflecting her  

hymen was still in-tact, would be indicative of the fact that  

no intercourse was at all committed on her.  According to  

him, looking to the totality of the facts and features of the  

case and the evidence available on record, at best, it would  

establish  a  case  wherein  the  appellant  could  have  been  

convicted only under Section 354 of IPC but no case was made  

out for his conviction under Section 376 thereof.

18. On  the  other  hand,  Shri  Sidhartha  Dave,  learned  

counsel appearing along with Ms. Vibha Datta Makhija for the

respondent-State contended that even if full penetration had  

not been there, slight penetration itself is sufficient and  

would  complete  the  offence  of  rape  as  contemplated  under  

Section 375 of the IPC and thus both the courts below were  

justified in finding him guilty under Section 376 of IPC and  

awarding him punishment accordingly.

19. The law on the point is now too well settled.  No  

doubt,  it  is  true  that  Dr.  B.  Biswas,  who  had  initially  

conducted the medical examination of the prosecutrix, has not  

appeared on behalf of the prosecution to depose.  But, that  

alone is not sufficient to discard the prosecution story.  

Corroboration is not the  sine qua non for conviction in a  

rape case.

20. In this regard, the most celebrated observations of  

Justice Vivian Bose in the case of  Rameshwar v.  State of  

Rajasthan AIR 1952 SC 54 may be quoted :

“The  rule,  which  according  to  the  cases  has  hardened into one of law, is not that corroboration  is essential before there can be a conviction but  that the necessity of corroboration, as a matter of  prudence, except where the circumstances make it safe  to dispense with it, must be present to the mind of  the judge….”

21. It  is  also  a  matter  of  common  law  that  in  Indian  

society any girl or woman would not make such allegations  

against a person as she is fully aware of the repercussions  

flowing therefrom.  If she is found to be false, she would be  

looked by the society with contempt throughout her life.  For  

an unmarried girl, it will be difficult to find a suitable  

groom.   Therefore,  unless  an  offence  has  really  been

committed, a girl or a woman would be extremely reluctant  

even to admit that any such incident had taken place which is  

likely  to  reflect  on  her  chastity.   She  would  also  be  

conscious of the danger of being ostracized by the society.  

It would indeed be difficult for her to survive in Indian  

society which is, of course, not as forward looking as the  

western countries are.

22. Thus, in a case of rape, testimony of a prosecutrix  

stands at par with that of an injured witness.  It is really  

not necessary to insist for corroboration if the evidence of  

the  prosecutrix  inspires  confidence  and  appears  to  be  

credible.

23. However,  in  the  case  in  hand,  even  without  the  

examination  of  doctor,  the  evidence  of  prosecutrix  stands  

fully corroborated by the evidence of P.W.3-B.B. Subba Rao,  

Sub-inspector of the police station who had virtually caught  

the appellant red-handed.  Thus, even if doctor had not been  

examined  it  would  not  throw  or  completely  discard  the  

prosecution story.  The evidence of prosecution witnesses is  

fully trustworthy and there is no reason to doubt genuineness  

thereof.

24. It  was  also  contended  by  learned  counsel  for  the  

appellant that since hymen of the prosecutrix was found to be  

in tact, therefore, it cannot be said that an offence of rape  

was  committed  on  her  by  the  appellant.   This  contention  

cannot be accepted as offence of rape has been defined in  

Section 375 of the IPC.  Explanation to Section 375 reads

thus :

“Explanation. -  Penetration  is  sufficient  to  constitute  the  sexual  intercourse  necessary  to  the  offence of rape.”

25. It has been a consistent view of this Court that even  

a slightest penetration is sufficient to make out an offence  

of rape and depth of penetration is immaterial.

26. It is appropriate in this context to reproduce the  

opinion  expressed  by  Modi  in  Medical  Jurisprudence  and  

Toxicology (Twenty Second Edition) at page 495 which reads  

thus :

“Thus,  to  constitute  the  offence  of  rape,  it  is  not  necessary  that  there  should  be  complete penetration of penis with emission of semen  and 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  the 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.  In such a case, the medical officer should mention  the negative facts in his report, but should not give  his opinion that no rape had been committed.  Rape is  crime and not a medical condition.  Rape is a legal  term and not a diagnosis to be made by the medical  officer treating the victim.  The only statement that  can be made by the medical officer is to the effect  whether there is evidence of recent sexual activity.  Whether  the  rape  has  occurred  or  not  is  a  legal  conclusion, not a medical one.”

[Emphasis supplied]

27. Similarly  in  Parikh's  Textbook  of  Medical  

Jurisprudence and Toxicology, 'sexual intercourse' has been  

defined 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.”

28.If the aforesaid facts are kept in mind, it cannot be  

disputed  that  the  act  of  the  appellant  would  certainly  

constitute an offence of rape and leaves no amount of doubt  

in our mind.

29.Learned counsel for the appellant placed reliance on a  recent judgment of this Court reported in (2007) 12 SCC 57  

Radhu v.  State of Madhya Pradesh  to contend that since  

evidence of prosecutrix was not corroborated, the appellant  

should be extended benefit of doubt.  Even after going  

through the said judgment critically we do not find that  

any benefit can be extended to the appellant.  In the said  

case,  there  were  several  serious  discrepancies  in  the  

evidence of the prosecutrix which prompted the Court to  

call for corroboration.  In the present case, there is  

consistency in the evidence of prosecutrix, which stands  

corroborated by the evidence of P.W.3-B.B. Subba Rao.  He  

had no axe to grind against the appellant.

30.In this case, the version of the prosecutrix right from  

lodging of the FIR, till her examination by the doctor and  

till she deposed in court, had been absolutely consistent.  

Not  only  this,  to  corroborate  further,  the  evidence  of  

P.W.3-B.B. Subba Rao is also on record who had caught the  

appellant red-handed which fully establishes that it was  

the appellant who had committed offence of rape.  

31.Thus, looking to the matter from all angles, we are of the  

opinion that there is no merit or substance in this appeal.  

The same is accordingly hereby dismissed.

.....................J. [J.M. PANCHAL]

.....................J. [DEEPAK VERMA]

New Delhi. December 01, 2009.