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PETITIONER: PRITHI CHAND

       Vs.

RESPONDENT: STATE OF HIMACHAL PRADESH

DATE OF JUDGMENT17/01/1989

BENCH: AHMADI, A.M. (J) BENCH: AHMADI, A.M. (J) NATRAJAN, S. (J)

CITATION:  1989 AIR  702            1989 SCR  (1) 123  1989 SCC  (1) 432        JT 1989 (1)   106  1989 SCALE  (1)74

ACT:      Indian  Penal  Code, 1860: Section  376--Rape  on  minor girlPenetration-Proof     of--Medical     opinion--Infirmity of--Absence of spermatozoa--Whether can cast doubt on prose- cution  case--Allegation of false implication due to  enmity between parents of appellant and prosecutrix--Whether valid.     Evidence  Act,  1872: Sections 32 & 62--Carbon  copy  of medical cetificate--Admissibility of.     Criminal  Procedure  Code,  1973:  Section   154--F.I.R. lodged  next  day morning, father of prosecutrix  not  being available   and  it  was  too  late  to  travel  to   police station--Whether amounts to delay.

HEADNOTE:     It was alleged that the appellant, a youth of 18  years, forcibly  lifted  P.W.  1, a girl of tender age  of  11,  12 years,  took her to a shallow place, and committed  rape  on her, on account of which she began to bleed profusely;  that on  hearing  the call of P.W. 7 the appellant  ran  away.  A report was lodged with the police next morning.     The  girl  was examined by a lady doctor, who  issued  a medical certificate. The leaves collected from the place  of occurrence,  the slides, the swabs and the salwar were  for- warded to the Chemical Analyser and Serologist for  examina- tion and report.     The appellant was prosecuted for committing rape on P.W. 1.  The  trial court convicted him under s. 376  I.P.C.  and sentenced  him to suffer imprisonment for life and to pay  a fine of Rs.2,000 in default to suffer rigorous  imprisonment for a further period of two years.     On appeal, the High Court, while confirming the  convic- tion reduced the substantive sentence from imprisonment  for life  to rigorous imprisonment for seven years but  retained the punishment in default thereof.     In  the  appeal before this Court, it was  contended  on behalf of the appellant that the carbon copy of the  medical certificate given by the lady 124 doctor,  who examined P.W. 1 was inadmissible  in  evidence, that  having regard to the girl’s age and the fact that  her vagina  admitted  one  finger with difficulty,  it  was  not

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possible  to believe that there was penetration, that  there was delay in filing the First Information Report, that since the girl was of a tender age the possibility of her  wrongly involving the appellant could not be ruled out and that this possibility  was  strengthened by prior enmity,  absence  of spermatozoa, and infirm medical opinion. Dismissing the appeal,     HELD:  1. Section 32 of the Evidence Act  provides  that when  a statement written or verbal, is made by a person  in the  discharge of professional duty whose attendance  cannot be procured without an amount of delay, the same is relevant and admissible in evidence. [127F]     In the instant case, the lady doctor, who examined  P.W. 1  and issued the medical certificate was not available  for giving  evidence as she had proceeded on long leave. In  her absence, the trial Judge felt that it would not be  possible to  secure  her presence without undue delay  and  therefore permitted  the prosecution to prove the certificate  through P.W. 2, who was conversant with her hand-writing and  signa- ture. Besides, since the carbon copy was made by one uniform process the same was primary evidence within the meaning  of Explanation  2 to s. 62 of the Evidence Act. Therefore,  the medical  certificate  was clearly  admissible  in  evidence. [127D-G]     2.  In  the absence of penetration, there would  not  be absence  of hymen with the edges torn and  profuse  bleeding from  the  vagina staining the salwar.  Merely  because  the Doctor found that the vagina admitted one finger with diffi- culty,  it cannot be inferred that there was no  penetration as the muscles must have contracted by then. The  appellant, a  robust man must have penetrated the vagina for  otherwise there would not have been so much of bleeding. [128B-C]     3.  Mere absence of spermatozoa cannot cast a  doubt  on the  correctness of the prosecution case. The report of  the Chemical Analyser and Serologist supports the version of the prosecution  witnesses that there was profuse bleeding  from the vagina. [129F; 128F]     4.  Immediately after the incident was narrated  to  the mother and other ladies, no decision could be taken  because of the absence of the 125 father.  On his arrival, he informed the Sarpanch,  who  ad- vised  him to report it to the Police next day in the  morn- ing,  since it was too late to travel to the Police  Station at  that hour and accordingly the F.I.R. was lodged  on  the next day. Therefore, there is no delay in filing the  F.I.R. [128G-H]     5.  It is not possible to believe that  the  prosecutrix and  her parents would allow the real culprit to escape  and falsely involve an innocent person for the commission of the Crime. Except for the suggestion made in the  cross-examina- tion of P.W. 8 and the statement under s. 313 of the Code of Criminal  Procedure there is no material on record  to  give credence to the suggestion that the son of P.W. 8 was  inti- mate with the prosecutrix and he had raped the girl. [129C]     6. There is strong, reliable and dependable evidence  of the  prosecution  witnesses which clearly  proves  that  the prosecutrix  was  raped by the appellant.  In  such  circum- stances, there can be no merit in the appeal. [127G]

JUDGMENT:     CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 738 of 1981.

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   From  the  Judgment  and Order dated  29.8.1980  of  the Himachal  Pradesh  High Court in Criminal Appeal No.  41  of 1980. Balakrishna Gaur, Amicus Curiae for the Appellant.     K.G.  Bhagat, Harish Kumar Sharma and Ms. A.  Subhashini for the Respondent. The Judgment of the Court was delivered by     AHMADI, J. The appellant Prithi Chand, a youth of  about 18 years, was prosecuted for committing rape of PW-I Kancha- na  Devi,  a girl of tender age of 11 or 12  years,  on  the afternoon of 15th June, 1979 at a place known as Kutkharpati in  village  Kot, Tehsil Palampur of Himachal  Pradesh.  The learned  Sessions  Judge convicted him  under  Section  376, I.P.C.,  and sentenced him to suffer imprisonment  for  life and to pay a fine of Rs.2,000, in default to suffer rigorous imprisonment  for a further period of two years. On  appeal, the High Court while confirming his conviction under Section 376, I.P.C., reduced the substantive sentence from imprison- ment  for life to rigorous imprisonment for seven years  but retained the order regarding payment of fine 126 and the punishment in default thereof. Thereupon the  appel- lant  has  approached this Court under Article  136  of  the Constitution of India.     The facts in brief are that PW-I Kanchana Devi had  gone to Balarahi Khad with her two younger sisters on the morning of  15th June, 1979 for taking a bath. After the  bath  when she was returning to her residence the appellant met her  on the  way and asked her to permit him to  have  sexual-inter- course  with her. She resented this behaviour of the  appel- lant and with a view to avoiding him changed her route.  But the  appellant  intercepted  her and offered  her  Rs.5  for permitting  him to have sexual-intercourse with her. On  the prosecutrix refusing the appellant physically lifted her and took  her to a shallow place, removed her trousers  (Salwar) and  after  removing his clothes committed rape on  her,  on account whereof she began to bleed profusely. After satisfy- ing his lust the appellant gave her a few leaves to wipe her vagina.  On  hearing a call from PW-7 Sandhi  Devi  who  was looking for her daughter, the appellant ran away. The prose- cutrix returned home. Her trousers were stained with  blood. She narrated the incident to her mother PW-6 Vijaya Devi and thereafter to the other ladies of the village who had in the meanwhile  collected  at her residence. The mother  and  the other ladies examined the vagina of the girl and found  that the same was ruptured and bleeding. As her father was not at home,  her mother could not decide on the course of  action. On the return of her father PW-3 Bali Ram, she narrated  the incident to him, whereupon the Sarpanch of the village PW-12 Chaturbhuj was informed about the incident who advised  them to  report the matter to the police in the morning since  it was  too late to travel to the Police Station. On  the  next morning  the prosecutrix, her parents and the Sarpanch  went to the Police Station where the girl filed the report  which is on record at Exhibit P-A.     PW-I Kanchana Devi narrated the incident as stated above in  detail in her deposition before the Court  also.  Except for  one or two minor omissions, her evidence is  consistent with  the  report Exhibit P-A. She has stated that  on  that afternoon the appellant forcibly lifted her and took her  to the  lower level where he had sexual intercourse  with  her. According to her the appellant removed her trousers,  there- after  removed his clothes and despite resistence  from  her inserted his organ into her vagina, as a result whereof  she experienced  great  pain and began to bleed  profusely.  She

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disclosed  this fact to her mother PW-6 Vijaya Devi as  well as to the neighbours PW-7 Sandhi Devi. and PW-8 Phulan Devi. On the return of her father PW-3 Bali Ram, she narrated  the incident to him. All these witnesses support the version of 127 the  prosecutrix.  The Sarpanch PW-12  Chaturbhuj  has  also stated that when the prosecutrix was brought to him she  was wearing  a blood stained Salwar and had complained that  the appellant  had raped her. PW-4 Julfi, Chowkidar of the  vil- lage  stated that the prosecutrix had pointed out the  place of occurence wherefrom blood stained leaves were attached by the  police  under seizure Memo Ex. P-B.  PW-5  Kishori  Lal supports him.     The prosecutrix was examined by Dr. C.S. Vedwa, who  had issued  the  Medical Certificate, Ex. P-E dated  16th  June, 1979. The Medical Certificate shows that the prosecutrix had not developed secondary sex characters, auxiliary and  pubic hair  were absent and there were abrasions of 3’ x 1/8’  and 2’  x  1/8’ on the lumber region. She also  found  signs  of inflamation  around the vulva; the vagina was bleeding,  the hymen  was absent with the edges torn and there was  tender- ness  all  around. The hymen was bleeding on touch  and  the vagina  admitted  one  finger with  difficulty.  The  girl’s Salwar  was blood stained. It was taken in a  sealed  packet along  with two slides and swabs. Unfortunately,  this  lady Doctor  who  had  delivered a child was  not  available  for giving  evidence  as she had proceeded on  long  leave.  The learned Sessions Judge felt that it would not be possible to secure  her  presence without undue  delay,  and  therefore, permitted  the prosecution to prove the certificate  through PW-2  Dr. Kapila, who was conversant with  her  hand-writing and  signature,  he  having worked with her  for  about  two years. He stated that the carbon copy of the certificate  Ex P-E  was prepared by Dr. Vedwa by one process and bears  her signature.  The learned counsel for the appellant  contended that this certificate was inadmissible in evidence since the prosecution  has failed to prove that the original  certifi- cate was lost and not available. Section 32 of the  Evidence Act  provides that when a statement, written or  verbal,  is made by a person in the discharge of professional duty whose attendance  cannot be procured without an amount  of  delay, the  same is relevant and admissible in  evidence.  Besides, since  one carbon copy was made by one uniform  process  the same was primary evidence within the meaning of  explanation 2  to Section 62 of the Evidence Act. Therefore the  medical certificate Ex. P-E was clearly admissible in evidence. That apart, there is strong, reliable and dependable evidence  of the  prosecution  witnesses which clearly  proves  that  the prosecutrix was raped by the appellant.     PW-2,  Dr. Kapila examined the appellant on  31st  July, 1979.  He found him to be well nourished and well  developed for his age, the beard had started to grow, pubic hair  were present and the scrotum 128 and penis were well developed. In the opinion of the witness the  appellant was fit to indulge in sexual intercourse.  It was however argued that having regard to the girl’s age  and the fact that her vagina admitted one finger with  difficul- ty,  it is not possible to believe that there  was  penetra- tion. The argument overlooks the fact that in the absence of penetration  there  would not be absence of hymen  with  the edges torn and profuse bleeding from the vagina staining the Salwar.  Merely  because the Doctor found  that  the  vagina admitted  one finger with difficulty, it cannot be  inferred that  there  was  no penetration as the  muscles  must  have

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contracted  by then. The appellant, a robust man  must  have penetrated  the  vagina for otherwise there would  not  have been  so much of bleeding. Surprisingly no question was  put to Dr. Kapila to solicit his opinion in this behalf.     PW-9 Dr. Mahajan examined the prosecutrix with a view to ascertaining her age. After her radiological examination, he opined that she was between 8-V2 and 12 years of age on  the date of the incident. The evidence of this witnesses corrob- orates  the  say of the prosecution witnesses that  she  was around 11 or 12 years of age on the date of the incident.     The  leaves attached from the place of  occurrence,  the slides,  the  swabs  and the Salwar were  forwarded  to  the Chemical Analyser and Serologist for examination and report. Exhibit P-N shows that there was blood on the leaves and the Salwar.  However,  no spermatozoa were found on any  of  the exhibits.  The report of the Serologist Ex. P-O  shows  that the Salwar was stained with human blood while the origin  of the  blood stains on the leaves could not be  determined  on account  of disintegration. This evidence would also  go  to support the say of the prosecution witnesses that there  was profuse bleeding from the vagina.     The  learned  counsel for the appellant  submitted  that there  was delay in filing the First Information Report.  We do not think so. Immediately after the incident was narrated to  the  mother and other ladies, a decision  was  taken  to await the return of the father before deciding on the course of  action.  On the arrival of the father the  Sarpanch  was contacted,  who advised that the police should  be  informed about  the incident. The Sarpanch, however, stated  that  he would accompany them next morning since it was already dark. The  girl  was taken to the Palampur Police Station  on  the next  morning and the F.I.R. was lodged. We,  therefore,  do not  think that there was any delay in reporting the  matter to the police. 129    It  was  next contended that the  appellant  was  falsely involved due to a long standing enmity between the father of the appellant and that girl’s father. The prosecutrix has in her  deposition  stated that the two families  were  not  on talking  or  visiting  terms,  since  their  relations  were strained.  It was suggested in the course of  cross-examina- tion  that Ratna, the son of PW-8 Phulan Devi  was  intimate with  the  prosecutrix  and he had raped the  girl.  In  his statement  under Section 313 of the Code of Criminal  Proce- dure,  he  put forth the case that when he returned  to  his village  in  the evening, he saw some ladies at  the  girl’s house  and heard the girl saying that she was  subjected  to rape by Ratna. It is not possible to believe that the prose- cutrix  and  her  parents would allow the  real  culprit  to escape  and falsely involve an innocent person for the  com- mission of the crime. Except for the suggestion made in  the cross-examination  of PW-8 Phulan Devi, Ratna’s  mother  and the  statement  under Section 3 13 of the Code  of  Criminal Procedure  there  is no other material on record  which  can give credence to the suggestion.    Lastly it was argued by reference to A.W. Khan v.  State, A.I.R.  1962  Calcutta 641; Gorakh Daji Ghadge v.  State  of Maharashtra,  [1980]  Criminal Law Journal, 1380  and  Padam Bahadur  Darjee  v.  State of Sikkim,  [1981]  Criminal  Law Journal,  1317  that since the girl was of  tender  age  the possibility of her wrongly involving the appellant cannot be ruled  out  and this possibility is  strengthened  by  prior enmity,  absence of spermatozoa and infirm medical  opinion. We  have already examined the argument of enmity as well  as the  so called infirmity in  medical evidence. Mere  absence

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of spermatozoa cannot cast a doubt on the correctness of the prosecution  case.  We  have carefully  gone  through  these decisions and we think they turn on the facts of each case. In  view  of the above, we see no merit in this  appeal  and dismiss the same. N.P.V.                                Appeal dismissed. 130