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CASE NO.: Appeal (crl.)  582 of 2000

PETITIONER: State of Tamil Nadu

RESPONDENT: Ravi @ Nehru

DATE OF JUDGMENT: 04/07/2006

BENCH: H.K. SEMA & A.K. MATHUR

JUDGMENT: J U D G M E N T

H.K.SEMA,J                 This appeal is preferred by the State of Tamil Nadu  against the judgment and order dated 8.7.1999 passed by the  High Court.  The respondent-accused Ravi @ Nehru was  convicted by the Trial Court for an offence under Section 376  IPC and sentenced to seven years rigorous imprisonment and  a fine of Rs.2,500/- and in default to undergo rigorous  imprisonment of 2 years.  Aggrieved thereby he preferred  Criminal Appeal No.768 of 1992 before the High Court.  The  High Court by the impugned judgment and order has set aside  the order of conviction and acquitted the accused.  Hence this  appeal by special leave.                   Briefly stated the prosecution’s case is as follows:-                 On 23.10.1989 at about 3.30 p.m. PW-2 Arthi  (victim girl) aged about five years was going to her aunt’s  house along with other children.  At about 4.00 p.m. she came  running to her house and informed her mother PW-1 that the  accused took her to the bed room of his house and after  removing her underwear and his pant placed her on his lap  and pressed his male organ on her female organ.  She cried in  pain.  On hearing her cry, two persons who were watching  television in the front room of the house came there and  scolded the accused. PW-1 the mother of the victim girl  removed all the clothes of PW-2, which according to her  contained blood stains.  She also washed her clothes and gave  a bath to her daughter with the help of PWs 8 and 9    Thereafter, she took PW-2 along with PWs 8 and 9 to H.P.F.  Hospital where PW-7 Dr.Gavaramma was working.  PW-7 then  advised them to take the victim girl to a nearby government  hospital. After the arrival of the father of the victim girl at the  house PW-2 was taken to the government Hospital,  Udhagamandalam at about 10.30 p.m.  She was then referred  to children’s hospital.  PW-6 Dr.Radhabhai who was in charge  of the government hospital examined PW-2 at about 11.00  P.M.  PW-6 stated that at the time of examination, the victim  girl was in a conscious state of mind, there were no external  injuries, there were no blood stains on her dress, there was no  injuries on her female organ but hymen was ruptured and  there were no fresh bleedings from the female organ.                 PW-5 Dr.Lakshmanan examined the accused on  24.10.1989 at about 12.30 p.m. and found the following  injuries on him:- "1.There were bloodstains both on the top  portion and in the middle portion of the brief of  the accused.                   2. His penis was 3 inches in length and his

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urinary opening was normal and there were no  external injuries.  

3.  There was cut wound at the bottom portion  of his penis. When pressed at the place of this  cut wound, bloodstain was there.  There was  no sign of fresh semen.  Except this cut wound  on the penis, there is no injury anywhere  around the penis.  There were not bloodstains  on the pubic hair, which were = inch long.   Scrotum was normal.  When the frontal  portion was pressed, there was no oozing of  blood.  His penis was well-developed and he  possesses virility.  The certificate which I gave  was the 4th documents.  There is possibility for  a cut wound of the above sort to cause when  the penis is forced into the vagina.  This cut  wound might have caused before 12 hours of  and within 24 hours of the medical test  performed by me.  The certificate which I gave  this effect was document 5.  As the blood  sample of the accused has to be tested, I  directed for the same.  Test results showed  that his blood group is PRH \026 Positive."

In re-examination he stated:

"Chances for causing such type of cut wounds  are possible usually when the penis is in erect  condition."

               In the course of the Trial the prosecution examined  as many as 14 witnesses.  Exhibits P-1 to P-19 were marked  and M.Os. 1 to 6 were also produced before the Court.  No  defense witness was examined on behalf of the accused.  The  plea of the accused was total denial.   The Trial Court on  appreciation of the evidence and documents on record found  him guilty and sentenced him as aforestated.                 PW-2, the prosecutrix has stated in examination in  chief that she was studying in UKG and on the fateful day  after the school was over she went to her aunt’s house  (father’s sister’s house) at about 2 p.m.  On the way the  accused accosted her and took her stating that they would  watch TV.  She further stated that there were two other  persons watching TV and the accused took her to another  room and made her sit on his lap.  The accused then removed  his pant and brief and also removed the prosecutrix’s brief.   The accused pressed his sexual organ on her sexual organ.   Then she started weeping and the other two brothers scolded  the accused. The accused then ran away by putting his pant  and shirt.  Thereafter, the prosecutrix after putting her brief  went to the house sobbing.  She narrated the story to her  mother.  She also stated that on seeing her coming sobbing  her mother fainted and fell down and then PW-8 Kamalam and  PW-9 Rani received her clothes and drenched them in water.   She further stated that PWs 8 and 9 also washed her sexual  organ.  Her statement was well corroborated by PWs 1, 3, 6, 7,  8 and 9.                 At this stage, we may notice the evidence of PW-7  Dr.Gavaramma before whom she was first taken by PW-1 and  PW-8 Kamalam.  PW-7 stated that when the prosecutrix was  brought by PW-1 and one lady name Kamalam, her mother  was weeping and the prosecutrix was also weeping.  PW-7  advised them to go to Government Hospital.  PW-7 further

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stated that the small girl was crying due to pain.  PW-7 further  stated that the prosecutrix’s vagina was reddened.                   PW-6 Dr.Radhabahi was functioning as Asst.Civil  Surgeon in the government maternity hospital.  She examined  the prosecutrix on 23.10.1989 at about 11.00 p.m.  PW-6  found that there were no external injuries; there were no  stains in her dresses.  The skin-like tissue called hymen in her  vagina was torn. There was no fresh oozing of blood.  There  was no oozing of blood around her vagina.  PW-6 further  stated that she did not know as to when the hymen was torn.   She further stated that no external injury would be caused  during the sexual intercourse.  The doctor further opined that  the penis would not have gone inside the girl’s vagina.                  It will clearly appear from the testimony of PW-6  that the hymen of the prosecutrix was torn.  PW-6, however,  opined that the penis would not have gone inside the girl’s  vagina.  We are totally at a loss as to how this opinion would  have been recorded when the doctor categorically stated that  hymen in the vagina of the prosecutrix was found torn.                  It will be noticed that the statement of the  prosecutrix was also well corroborated by PW-3 who was at  the place of incident.  PW-3 is Sundaram.  He has stated that  he along with the accused and another person Anand went to  the house of the sister of accused to watch cricket match.  At  about 3.30 pm the accused went outside and came back with  PW-2 (the prosecutrix).  The accused took PW-2 to a room  inside.  On being questioned he told the girl’s name was Arthi.   After five minutes they heard crying sound from inside the  room.  He and Anand went inside the room and saw the  accused without pant and underwear and the prosecutrix’s  underwear was also removed.  The accused had made the  prosecutrix to sit on his lap and on seeing their entry the  accused released her.  The High Court unfortunately  disbelieves the creditworthy testimony of this witness as  artificial and unnatural.                 The High Court disbelieves the testimony of PW-2  the prosecutrix on the ground that her statement has not been  corroborated by PW-6 Asst.Civil Surgeon who examined the  prosecutrix in Govt. Maternity Hospital on 23.10.1989.   According to the High Court, the statement of the prosecutrix  is not corroborated by the evidence of PW-6 as there were no  external injuries, there were no blood stains on her dress,  there was no injury on her female organ, hymen was ruptured  and there was no fresh bleeding from the private parts.  The  doctor admitted that she was not in a position to state as to  how the hymen of the girl was torn.  She further stated that  the male organ would not have penetrated in a young girl’s  vagina.   The doctor further opined that there was no sign of  rape.  In our view, the finding of the High Court is absolutely  perverse and inconsistent with the evidence on record.  First of  all no opinion could be given by this doctor that there was no  sign of rape.  Regarding non presence of blood stains on her  vaginal part and on her wearing apparel it is the categorical  testimony of PWs 1, 8 and 9 that the prosecutrix was given  bath, her vagina was washed and her wearing apparel was  washed before taking her to doctor.  PW-6 having recorded  that hymen of the vagina was torn was not justified in giving  an opinion that the male organ would not have penetrated into  the young girl’s vagina.                  That apart, the High Court has completely  overlooked the testimony of PW-5 Dr.Lakshmanan, Asstt.  Medical Officer who conducted the medical test on the accused  Ravi on 24.10.1989.  On examination PW-5 found a cut  wound at the bottom portion of his penis.  When pressed at  the place of this cut wound, bloodstain was present.  The

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doctor further opined that his penis was well developed and he  possessed virility.  The doctor further opined that there was a  possibility for cut wound of the above sort to have been caused  when the penis is forced into the vagina.  Doctor further  opined that this cut wound might have been caused before 12  hours of and within 24 hours of the medical test.  In re- examination doctor clarified that chances for causing such  type of cut wounds are possible usually when the penis is in  erect position.                    Facts on record established that the accused was 22  years old and the prosecutrix was about 4 to 5 years old.  It is  well-established principle that when a fully developed man has  committed sexual assault with a minor girl aged about 4 or 5  years there is likelihood of an injury being caused on the  penis.  PW-5 found that there was cut wound at the bottom of  penis of the accused.  He further stated that when the cut  wound was pressed bloodstain was there.  He further stated  that the penis of the accused was fully developed and he  possessed virility. Doctor further opined that there was a  possibility of cut wound of the kind of accused when the penis  is forced into the vagina. It is unfortunate that this stark  testimony of PW-5 against the accused for which he has no  explanation, has escaped the notice of the High Court.                  In the case of Madan Gopal Kakkad   vs.  Naval  Dubey, (1992) 3 SCC 204, the accused was charged with the  rape of minor girl of  eight years.  This Court held that even  slightest penetration of penis into vagina without rupturing  the hymen would constitute rape.           We may also notice 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."

       In Parikh’s 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

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injury to the genitals or leaving any  seminal stains."

              In Encyclopedia of Crime and Justice (Vol.4) at page  1356, it is stated: "...even slight penetration is sufficient and  emission is unnecessary."                   It is now well-accepted principle of law that  conviction can be founded on the testimony of the prosecutrix  alone unless there are compelling reasons for seeking  corroboration.  It is also well accepted principle of law that  corroboration as a condition for judicial reliance on the  testimony of the prosecutrix is not a requirement of law but a  guidance of prudence. The woman or a girl subjected to sexual  assault is not an accomplice to the crime but is a victim of  another person’s lust and it is improper and undesirable to  test her evidence with a certain amount of suspicion treating  her as if she were an accomplice.   [ See State of Punjab   vs.   Gurmit Singh (1996) 2 SCC 384 ]                 So also in the case of  Ranjit Hazarika   vs.  State  of Assam (1998) 8 SCC 635, this Court observed that non- rupture of hymen or absence of injury on victim’s private parts  does not belie the testimony of the prosecutrix.                     The evidence of a victim of sexual assault stands on  par with evidence of an injured witness.  Just as a witness  who has sustained an injury is the best witness in the sense  that he is least likely to exculpate the real offender, the  evidence of a victim of a sex-offender is entitled to great  weight, absence of corroboration notwithstanding.  [ See  Bharwada Bhoginbhai Hirjibhai   vs.   State of Gujarat, AIR  1983 SC 753 ]                 Reverting back to the facts of the present case the  evidence of PW-2 the prosecutrix remains unimpeached.   There is no iota of evidence or even a suggestion that the  accused has been falsely implicated because of animosity.   Similarly, the evidence of PW-2 has been corroborated by the  evidence of PWs-1, 3, 5, 6, 7, 8 and 9. In the present case, the  ocular evidence of PWs is well corroborated with the medical  evidence.                   Thus, the High Court committed grave miscarriage  of justice in recording acquittal by reversing the conviction  recorded by the Trial Court.  The impugned order of the High  Court dated 8.7.1999 is accordingly set aside. The conviction  recorded by the Trial Court is restored. This appeal is  accordingly allowed. The respondent Ravi @ Nehru shall be  taken back into custody forthwith to serve out the remaining  part of the sentence.  Compliance report within one month.