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CASE NO.: Appeal (crl.)  1368 of 2005

PETITIONER: Santosh Kumar

RESPONDENT: State of M.P.

DATE OF JUDGMENT: 25/08/2006

BENCH: G.P. Mathur & R.V. Raveendran

JUDGMENT: J U D G M E N T

G. P. MATHUR, J.

       Santosh Kumar has preferred this appeal, by special leave,  against the judgment and order dated 13.12.2004 of Madhya Pradesh  High Court, by which the appeal filed by him was dismissed and the  judgment and order dated 23.10.1989 of Sessions Judge, Raisen,  convicting him under Section 376(2)(g) IPC and imposing the  sentence of 10 years RI and a fine of Rs.500/- and in default to  undergo six months RI was affirmed.   2.      The case of the prosecution, in brief, is that the prosecutrix  Halki Bai, who was resident of village Modakpur had been deserted  by her husband and in order to maintain herself she was doing some  work as labour.   She came by a bus to Silvani in search of work in the  night of 20.5.1985. After she had boarded the bus the conductor  Munim Mishra enquired where she was going and when she informed  him that she was going to Silvani in search of some work, he did not  ask for money for issuing to her a ticket.  The bus reached Silvani at  about 10.00 p.m. and when she was trying to get down, Munim  Mishra told her that she may sleep in the bus itself rather than going  anywhere in the night and in the morning he would arrange some  work for her.  Halki Bai then slept on the rear seat of the bus.  At  about midnight, when all the shops at the bus stand had closed, the  driver of the bus, viz. Santosh Kumar (appellant) pressed her breasts  and started removing her dhoti which she was wearing.  When she  tried to raise an alarm, Munim Mishra caught hold of her hands and  also gagged her and then the appellant Santosh Kumar ravished her.   Thereafter, Santosh Kumar caught hold of her hands and Munim  Mishra ravished her.   Hearing her alarm, three constables who were  on patrol duty and some others came near the bus, but both the  accused managed to run away.   The policemen brought Halki Bai to  P.S. Silvani, where she lodged the FIR of the incident at 1.00 a.m. on  21.5.1985.  Halki Bai was sent for medical examination where PW.3  Dr. Z. Fezi examined her at 2.00 a.m. and prepared a medical  examination report which is Ex. P-8. After completion of the  investigation, charge sheet was submitted against both the accused  viz. Santosh Kumar (appellant) and Munim Mishra.

3.      The learned Sessions Judge framed charge under Section 376  IPC against both the accused, who pleaded not guilty and claimed to  be tried.   In order to establish its case, the prosecution examined 10  witnesses and filed some documentary evidence.   The appellant and  co-accused Munim Mishra in their statements under Section 313  Cr.P.C. denied the prosecution case and examined two witnesses in  their defence.  The learned Sessions Judge believed the case of the  prosecution and convicted and sentenced both the accused as stated

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earlier.  The appeal preferred by the accused was dismissed by the  High Court by the judgment and order dated 13.12.2004.   

4.      During trial the prosecution examined four witnesses of fact.    PW-10 Halki Bai in her deposition gave details of the incident and  stated that first she was ravished by the appellant Santosh Kumar and  then by Munim Mishra.   PW-1 Mukhtar Hasan, who was working as  a helper in the Forest Department, deposed that he was going to the  Range Office and at about 12.00 p.m. when he reached the bus stand,  he saw some persons standing near a bus which had come from Sagar.    Shortly thereafter, some police constables also came there.  He saw  Halki Bai and both the accused inside the bus.  Halki Bai informed  them that both the accused had ravished her.   The witness was  declared hostile and was cross-examined by the State counsel.  PW-7  Dinesh Kumar, who is a constable, deposed that he along with PW-8  Hari Narayan and Narayan Singh were on patrol duty and when they  reached near the bus stand, they heard the shrieks of a lady coming  from the bus.  They immediately rushed and entered the bus from the  rear side, when he saw that the appellant Santosh Kumar was catching  hold of the hands of the prosecutrix and Munim Mishra was  committing rape upon her.   Both the accused jumped from the bus  and ran away after seeing the police personnel.   Similar statement has  been given by PW-8 Hari Narayan, constable.   

5.      The prosecutrix PW-10 Halki Bai has clearly deposed in her  statement that both the accused, viz., Santosh Kumar and Munim  Mishra had ravished her one after another.   There is absolutely no  reason why Halki Bai would falsely implicate the accused as they  were strangers to her. The testimony of prosecutrix finds  corroboration from the testimony of two constables, namely, PW-7  Dinesh Kumar and PW-8 Hari Narayan.   PW-1 Mukhtar Hasan has  also supported a part of the prosecution case in his examination-in-  chief, namely, that after hearing the shrieks of a girl, he went inside  the bus where he found the two accused holding the hands of Halki  Bai.  He further deposed that Halki Bai had informed them that the  accused had ravished her.   Though PW-1 was declared as hostile, his  evidence is not to be treated as effaced from record and can be relied  upon in part.  In Sat Paul v. Delhi Administration AIR 1976 SC 294  after referring to several decisions on the point, it was held :-  " Even in a criminal prosecution when a witness is cross- examined and contradicted with the leave of the court, by  the party calling him, his evidence cannot, as a matter of  law, be treated as washed off the record altogether. It is  for the Judge of fact to consider in each case whether as a  result of such cross-examination and contradiction, the  witness stands thoroughly discredited or can still be  believed in regard to a part of his testimony. If the Judge  finds that in the process, the credit of the witness has not  been completely shaken, he may, after reading and  considering the evidence of the witness, as a whole, with  due caution and care, accept, in the light of the other  evidence on the record, that part of his testimony which  he finds to be creditworthy and act upon it. If in a given  case, the whole of the testimony of the witness is  impugned, and in the process, the witness stands squarely  and totally discredited, the Judge should, as matter of  prudence, discard his evidence in toto. "

       In Gura Singh v. State of Rajasthan AIR 2001 SC 330 it was  held :- " It is misconceived notion that merely because a witness  is declared hostile his entire evidence should be excluded  or rendered unworthy of consideration.  In a criminal trial  where a prosecution witness is cross-examined and  contradicted with the leave of the Court by the party

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calling him for evidence cannot, as a matter of general  rule, be treated as washed off the record altogether.   It is  for the Court of the fact to consider in each case whether  as a result of such cross-examination and contradiction  the witness stands discredited or can still be believed in  regard to any part of his testimony.  In appropriate cases  the Court can rely upon the part of testimony of such  witness if that part of the deposition is found to be  creditworthy. "

       Therefore, the testimony of PW-1 Mukhtar Hasan to the extent  that he went inside the bus after hearing the shrieks of Halki Bai and  that he saw the accused holding her hands and also the further fact  that Halki Bai immediately stated that the accused had committed rape  upon her can be believed.   The learned Sessions Judge and also the  High Court have placed reliance on his testimony as he is an  independent witness. Thus the oral evidence on record fully  establishes the case of the prosecution. 6.      Learned counsel for the appellant has submitted that the  medical evidence does not disclose that PW-10 Halki Bai had been  subjected to rape as there were no injuries on her private parts and,  therefore, the entire prosecution case becomes doubtful.  The  prosecutrix had been medically examined at 2.00 a.m. on 21.5.1985  by PW.3 Dr. Z. Fezi, Woman Assistant Surgeon, at Silvani.  She had  prepared a medical report, Ex.P-8 and the relevant part thereof is  being reproduced below :-   " Marks of External Injury on body :- (1)  Three abrasions  on breast right upper and outer quadrant which are nail  marks as they are crescenteric in shape of sizes 0.5 cm to  1.0 cm.   

(2)   Three abrasions on breast left upper and inner  quadrant which are nail marks as they are crescenteric in  shape of sizes 0.5 to 1.0 cm.  

(3)     One bruise left upper arm (below post fold of  axilla) Posterolaterally =" x =" red in colour.

Public Hair \026 Present, black in colour. External Genitals \026 No seminal stains, no bruising or  laceration seen. Hymen \026 Torn, several small granular tags present, no  fresh tear present.   Fourchette and posterior commissure  are intact.   Vagina \026 Admits two fingers with resistance.  No  laceration seen. Cervix \026 Firm, cleft transversely.  No laceration seen. Uterus \026 Retroverted, normal size, fornices clear.   Perineum \026 Normal. Opinion \026 (1)  No definite opinion regarding rape can be  given till report of vaginal smear is available.   

(2)     External injuries are of within 24 hours duration  and simple in nature.  

(3)     One sealed packet containing two slides of vaginal  smear another sealed packet containing clothes (sadi and  petticoat) and one sealed vial containing cutted public  hair \026 advised to send for chemical examination.  "  

       In her deposition the doctor has stated that the age of Halki Bai  was about 18 years and she was of average built having a height of  159 cms. and her weight was 100 pounds.   She has also deposed that  no definite opinion could be given regarding rape till the report of  vaginal smear was received.   It is noted by the High Court that till the

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conclusion of the session trial, the report of chemical examination had  not been received.   7.      The question, which arises for consideration, is whether the  proved facts establish the offence of rape.   It is not necessary for us to  refer to various authorities as the said question has been examined in  considerable detail in Madan Gopal Kakkad v. Naval Dubey (1992) 3  SCC 204 and paragraphs 37 to 39 of the said judgment are being  reproduced below:-  " 37. We feel that it would be quite appropriate, in this  context, to reproduce the opinion expressed by Modi in  Medical Jurisprudence and Toxicology (Twenty First  Edition) at page 369 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 that there is evidence of recent  sexual activity. Whether the rape has occurred or  not is a legal conclusion, not a medical one."

38.    In Parikhs Textbook of Medical Jurisprudence and  Toxicology, the following passage is found:

" 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."

39.    In Encyclopedia of Crime and Justice (Vol. 4) at  page 1356, it is stated: ".......even slight penetration is sufficient and emission is  unnecessary.  "

Therefore, absence of injuries on the private parts of a victim specially  a married lady cannot, ipso facto, lead to an inference that no rape has  been committed. 8.      The medical examination report of the victim shows that she  received injuries on front portion of the body and also on her hands.   The mere fact that no injuries were found on private parts of her body  cannot be a ground to hold that no rape was committed upon her or  that the entire prosecution story is false.   It may be noted that Halki  Bai is a married grown up lady and in such circumstances the absence  of injuries on her private parts is not of much significance.   

9.      The accused in their defence examined two witnesses.  DW-1  Gopi Aggarwal deposed that he has a hotel (restaurant) at a short  distance from Silvani bus stand and the same remains open till about  11.00 in the night.   The bus which is operated by the accused  normally stops in front of his hotel at about 9.00-10.00 p.m.  He

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further deposed that no incident in the said bus had taken place so  long as he was present in his hotel.   The evidence of DW-1 is of  neutral character and does not discredit the prosecution case.  DW-2  Gopi Lal Yadav has deposed that he works as a driver on a bus which  goes from Sagar to Silvani and normally his vehicle arrives at Silvani  at about 8.30 p.m. and stops in front of the hotel.   About 4-5 years  back while he was taking food in the hotel, he saw that some talks  were going on between Santosh appellant and a few police personnel  regarding payment of ’hafta’ (weekly payment).  After exchange of  some hot words had taken place, the police personnel caught hold of  the appellant and took him along with them.  At that time Munim  Mishra accused was not present as he had gone for the purpose of  repair of the tyre which had got punctured.  Like the appellant, DW-2  works as a driver of a bus operating on Sagar-Silvani route.  He did  not make any protest when the police personnel allegedly took the  appellant Santosh in their custody on the ground of non-payment of  ’hafta’.  Nor did he make any complaint to any superior authority  regarding the alleged high-handedness of the police personnel at any  subsequent point of time.   He has come out with his version of the  incident for the first time when he deposed in Court on 17.10.1989 i.e.  nearly 4-1/2 years after the incident.  The learned Sessions Judge and  also the High Court have rightly discarded the evidence of DW-2 and  we find no reason to take a different view.    10.     Having given our careful consideration to the submissions  made by learned counsel for the appellant, we are of the opinion that  the prosecution has established its case against the appellant beyond  any shadow of doubt.   The learned Sessions Judge and the High  Court have rightly convicted the appellant under Section 376(2)(g)  IPC and there is absolutely no ground which may warrant interference  by this Court.   The appeal is accordingly dismissed.