1. The appellant has challenged his conviction in Sessions Case No.115 of 2003, titled as „State v. Bhura’, arising from the FIR No.350 of 2003, under Sections 323/325/ 342/ 354/ 387/ 376 Indian Penal Code, PS Anand Vihar convicting the appellant under Sections 376, 326, 342 of the Indian Penal Code and sentencing the appellant to undergo rigorous life imprisonment under Section 376 and 326 of the Indian Penal Code and a fine of Rs.5,000/- and in default to undergo simple imprisonment for three years. The appellant was further sentenced to undergo rigorous imprisonment for one year for the offence punishable under Section 342 of the Indian Penal Code.
2. The case of the prosecution in brief is that Ms.Rinchu, the prosecutrix was working as a Private Nurse/Attendant, in Shanti Mukund Hospital, situated within the bounds of Police Station Anand Vihar. At the time of incident she was engaged to look after Sh. S.K. Kaushik, an aged patient, in room No. 208, which is situated on the second floor of the hospital. He was a paralytic patient and he was unable to speak or move. Ms.Rinchu used to attend to him from 8 p.m. to 8 a.m. everyday. On the night intervening 6/7th September, 2003, Ms.Rinchu was lying on the side seat of the attendant and she was feeling drowsy, because of which she drifted off to sleep. Suddenly, she felt that somebody was fondling her breasts. She opened her eyes and found that accused Bhura, who was a sweeper in the hospital and was known to Ms.Rinchu for the last ten days, was present there. Ms. Rinchu stood up on her feet and asked him to get out of the room. When Bhura, the appellant, did not respond, she threatened to call the sister-in-charge by ringing the bell. She then started moving her hands towards the bell, but Bhura caught hold of her hands. The prosecutrix then screamed but the accused had put his hand on her mouth and gagged her. Consequently, Rinchu, the prosecutrix was unable to raise her voice. In the meantime, Bhura dragged her towards the second patient’s bed in the room which was lying unoccupied. The prosecutrix then threw up some blood and fell down on the floor as she became unconscious. During the wee hours, at about 4:30 a.m., she regained her consciousness. She then tried to open her eyes but she could not see from her right eye. Thereafter, she opened her left eye and touched her body and found that her panty, salwar and chunni had been removed. With great difficulty, she picked her clothes and put them on. She touched her surroundings and she realized that she was lying in the bathroom with her blood which had spread from her mouth and her eye ball. She reached the door of the bath room, however, found that it was bolted from outside. She was too much in pain and shock, which made her incapable of screaming and so she sat down taking the support of the bathroom walls.
3. At about 6:30 a.m., a ward Boy, PW-8 Vyas Sharma arrived and he opened the bathroom and found the prosecutrix. He brought her out of the bathroom. Prosecutrix then informed him that she was raped by the accused Bhura, the sweeper during the night. The Ward Boy and Sister took her to the casualty and immediately tended to her eye, and it was bandaged, as her eye was seriously injured. During the medical examination of the prosecutrix, it also transpired that her menstrual period had also started. Prosecutrix during medical examination complained of severe pain in her private parts.
4. The police was informed, and the officials of the police immediately reached the hospital. SI Kishore Pandey, was deputed as the Investigating Officer of the case, and on arriving at Hospital he found the victim, Ms.Rinchu under medical treatment. At that time the doctors had declared her unfit for making a statement. SI Kishore Pandey, therefore, recorded the statement of PW-8 Vyas Sharma, the Ward Boy and got the present case registered. SI Kishore Pandey visited the spot and found blood in the bathroom and floor of the room. He recovered one chunni, blood stained bed sheets and clothes of the prosecutrix. On 7th September 2003, prosecutrix was shifted to GTB hospital for operation on her eyes. Her statement was thereafter, recorded on 8th September, 2003.
5. It also transpired that accused Bhura had absconded from the hospital since morning of the incident. SI, Kishore Pandey had gone to the jhuggi of the accused situated in Seema Puri and found it locked. However, at about 9:30 a.m. Bhura came to his Jhuggi and was apprehended by the police. The accused was arrested at the instance of Anil Saxena, who had deputed Bhura and the other members of the staff in the hospital. Accused was then medically examined on 8th September 2003. On 15th September, 2003 IO Kishore Pandey seized the eye-ball of the prosecutrix, which had come out during the alleged incident.
6. Accused was charged under Sections 354/ 506/376 of the IPC. Later on the charges were altered by the then Learned Additional Sessions Judge, Sh. J.M Malik by a detailed order dated 19th January 2005 to charges under Sections 376/ 342/ 326 of the IPC. The accused pleaded not guilty to the charges framed against him and claimed trial.
7. The prosecution examined 21 witnesses in support of its case. Thereafter, the entire evidence as well as the circumstances against the appellant were put to him under Section 313 of the Crl. P.C. In his statement under Section 313 the accused simply denied all the circumstances and the evidence against him. He even denied his presence at the spot and any knowledge about the matter. He stated that at the time the incident had taken place he was present at his house and that he had instead surrendered himself to the police in presence of his brother Rajinder. The appellant did not lead any evidence in defense.
8. On considering the evidence on record and the case of the prosecution as well as the defense of the accused, the Trial Court held that the prosecution had successfully proved beyond reasonable doubt the charges under sections 376, 326 and 342 of the IPC and convicted him for the same and sentenced him to undergo rigorous life imprisonment under Sections 376 and 326 of the Indian Penal Code and a fine of Rs.5,000/- and in default to undergo simple imprisonment for three years. The appellant was further sentenced to undergo rigorous imprisonment for one year for the offence punishable under Section 342 of the Indian Penal Code. The appellant has filed the present appeal against his order of conviction and sentence. Appellant's Pleas:
9. The learned counsel for the appellant had questioned the veracity of the allegations made by the prosecutrix contending that the statement of the prosecutrix made to the police under Section 161 of the Cr.P.C, Ex.PW 19/DA was delayed and hence no reliance can be placed on the same. As per the learned counsel, the delay in recording the statement was without any reason since as per the deposition of PW-2 Dr. K.K Rajan, who categorically deposed that the prosecutrix was conscious and in her senses on the day of the occurrence. According to learned counsel for the appellant, the delay in recording the statement of the prosecutrix casts a shadow of doubt on her version and therefore the same should not form the basis of concluding the guilt of the appellant.
10. The learned counsel for the appellant emphasized various alleged inconsistencies in the deposition of the prosecutrix as PW-19, with the statement recorded by the police under section 161 of the Cr.P.C, Ex. PW 19/DA. According to the learned counsel, the alleged inconsistencies are the improvements made by her with the sole intention of falsely implicating the appellant in the present matter. The learned counsel for the appellant has relied on Ramdas and Ors. v. State of Maharastra (2007) 2 SCC 170 contending that conviction on the sole basis of the testimony of prosecutrix is not sustainable when the circumstances reflect shadow of doubt over the correctness of prosecutrix version. Therefore the Learned Counsel contended that the inconsistencies affected the very root of the matter and therefore the appellant is entitled to the benefit of doubt and his conviction and sentence by the Trial Court ought to be set aside.
11. The learned counsel has also emphatically relied on the deposition of PW 3 Dr. Archana Bachchan, a consultant who had medically examined the prosecutrix. The counsel contended that as per the endorsement in the MLC and as per the deposition of PW 3 there were no vaginal injuries and that the cervix was normal. The learned counsel further contended that during the cross examination, PW 3 had deposed that the history written on Ex PW 6/A (the MLC) which was prepared on the very night of the incident at about 9:00 p.m. was on the basis of version given by the prosecutrix, in which she had not named the appellant or any other person nor had she disclosed that she was having any pain in her private parts. Even in the answer to the query as to who the culprit was, PW3 deposed that the prosecutrix had replied that she did not know who it was. Thus according to the counsel the name of the appellant has been included at a subsequent stage with the clear intention of falsely implicating him in the matter.
12. It is further contended that the facts which would establish rape of the prosecutrix have not been established nor substantiated from the statement of PW-3. There was no injury found on the private parts of the prosecutrix, nor were any semen stains found and the blood in the vagina of the prosecutrix was on account of menstruation and not rape. It is further emphasized that the tear on the hymen recorded in the MLC as stated by PW-3 herself was not a fresh tear and thus could not have been on account of alleged rape by the appellant. PW-3 had explained the difference between menstrual blood and blood due to rape. She had even deposed that the bloodstains on the prosecutrix were of her menstrual blood and not of blood due to rape. PW-3 had further deposed that in all probabilities there should have been injuries, if there was intercourse for the first time. PW-3 had also stated that the prosecutrix had never complained about pain in her private parts. The learned counsel has also contended that according to him, since the prosecutrix had been unmarried there ought to have been some vaginal injury and that the trial court gravely erred in not taking the deposition of PW-3 more seriously. Therefore, the learned counsel contended that it is a settled law that conviction cannot be based on the sole testimony of the prosecutrix, which is inconsistent and unsupported by the medical evidence and evidence of other witnesses. To buttress his argument he has relied on Sadashiv Ramrao Badbe v. State of Maharashtra &Ors: (2006) 10 SCC 92, Dilip & Anr. v. State of Madhya Pradesh: 2001(4) Crimes 105(SC), Vimal Suresh Komble v. Chaluverapinake Apal S.P. & Anr: 2003 SCC (Cri.) 596, Yserumalla Latchaiach vs. State of Andhra Pradesh: (2006) 3 SCC (Cri) 373, Mohd. Habib v. State: 1988 CC cases 401 (HC), Zahroor Ali v. State of U.P: 1989 Cr.L.J. 1177 andState of Karnataka v. Mapilla P.P.Soapi: 2003 (3) JCC 1543.
13. The learned counsel has also urged that the prosecutrix herself had not deposed regarding any penetration as at the time of alleged rape as she was unconscious. Thus the factum of penetration which is imperative to substantiate the charge of rape had not been proved as against the appellant. The prosecutrix had merely stated that she came to her senses and realized that she had pain in her private parts. However, this pain could have even been attributed to the menstruation which the prosecutrix herself admitted, she was having at the time. Thus according to the learned counsel there is absolutely no evidence of any penetration by the appellant and therefore, the very base of the prosecution’s case is not proved against the appellant and is therefore not sufficient to inculpate him.
14. Learned counsel has further contended that neither Smt. Lizzy who was giving duty on the second floor, the place where allegedly the prosecutrix was allegedly raped nor the patient Sh. S.K. Kaushik, for whom the prosecutrix was engaged to take care of, have been examined. The learned counsel also submitted that just because the patient was unable to move or speak does not imply that he was in a coma and therefore, should have been examined by the Police. Thus, it is contended that this amounts to a major lacuna in the version propounded by the prosecution and therefore the appellant is entitled to the benefit of the same.
15. Learned counsel has further contended that the Trial court has gravely erred in punishing the appellant under section 326 of the IPC because, even if, it is to be believed that the appellant had in fact caused grievous hurt to the prosecutrix, since neither the prosecutrix has deposed about any weapon used, nor had the prosecution alleged the same, as it is not the case of the prosecution that the appellant had caused the injury by means of any instrument for shooting, stabbing or cutting or that any instrument was used as a weapon of offence. Thus the appellant can only be charged under Section 325 of IPC and not under Section 326 of IPC. Thus it is contended that the learned Trial judge has failed to differentiate between the ingredients of Section 325 & 326 of the IPC. As while under section 325 the punishment prescribed is for causing grievous hurt, under section 326 of the IPC, the punished prescribed is for causing grievous hurt by means of any instrument for shooting, stabbing or cutting or any instrument which is used as a weapon of offence. The learned counsel further contended that since the appellant was not put the circumstance of causing harm to the prosecutrix under Section 325, the same cannot be held in evidence against him, as the non-examination of the accused under Section 313 with respect to this circumstance has caused him a lot of prejudice. Therefore, in light of the facts and circumstances it is contended that the charges framed as against the appellant is erroneous and hence it is ground in itself to quash the entire proceedings.
16. Learned counsel has further urged that the prosecutrix herself has held Shanti Mukund Hospital to be responsible for the permanent loss caused to her eye for which even an FIR No. 447 of 2003 was also registered under Section 336 of the IPC with the PS Anand Vihar, and therefore, the appellant cannot be held responsible for the same and that the case is just a ploy to make the appellant responsible for the negligence of the hospital. Learned counsel has argued that there is hardly any evidence against the appellant and that the prosecution has miserably failed in proving its case against the appellant which has not been properly considered by the Trial court in its decision, which is merely based on conjectures and surmises put forward by the prosecution.
Respondent/ State's pleas:
17. Per contra, learned counsel for the State, Mr. M. N. Dudeja, has contended that the prosecution has on every aspect successfully proved its case. It has been rightly concluded by the Trial Court about the guilt of the appellant. The learned counsel also asserted that the testimony of the prosecutrix is unimpeachable and therefore the Trial Court has been absolutely justified in relying on the same. He vehemently argued that the inconsistencies as alleged by the prosecution are minor and immaterial, and that they do not under any circumstance exculpate the appellant. He has relied on the judgment of Bharwada Bhoginbhai Hirjibhai v. State of Gujarat AIR 1983 SC 753 in support of his submission.
18. The learned counsel has also relied on the testimony of PW-9, AK Saxena, who is the owner of a contract company under the name of Baba House Keeping Services from where the appellant Bhura was deputed. As per PW-9 on reaching the hospital he had come to know that the appellant had fled after committing rape on the prosecutrix and he even assisted the police in tracing out the appellant, who was subsequently arrested vide arrest memo Ex PW 9/A. Therefore the learned counsel contended that the very fact that the appellant had fled after committing the offence is a relevant fact under Section 8 of the Indian Evidence Act, 1872 and that the appellant was at the time of the occurrence employed at the hospital has also been established.
19. The learned counsel further asserted that the prosecutrix had at the very first instance informed the ward boy, PW-8 who had found her in the locked bathroom, that she had been raped by Bhura the sweeper boy. This has been categorically stated in the statement of the ward boy given to the police, Ex PW 8/A. The learned prosecutor thus contended that the name of the appellant has certainly not been subsequently added in the investigation, and that he was the prime suspect since the very start of the case.
20. It is further contended that since there is no doubt as to the deposition of the prosecutrix there is no legal obligation on the part of the prosecution to look for corroboration. In order to substantiate his submission, the learned counsel has relied on the following judgments: State of Himachal Pradesh v. Raghubir Singh (1993) 2 SCC 622, Tulshidas Kanolkar v. State of Goa AIR 2004 SC 978, State of Maharashtra v. Chandraprakash Kewlchand Jain AIR 1990 SC 658, Madho Ram & Anr. v. The State of UP AIR 1975 SC 469, State of Andhra Pradesh v. Gangula Satya Murthy AIR 1997 SC 1588, andShri Bodhisattwa Gautum v. Miss Subra Chakraborty AIR 1996 SC 922.
21. As per the learned counsel for the state, the other evidences on the record, has also fully corroborated the allegations of the prosecutrix, and consequently the guilt of the appellant has been established beyond reasonable doubt. In any case the appellant has not been able to impute any motive against the prosecutrix to have falsely implicated him in the case. There was absolutely no evidence of any enmity between the prosecutrix and the appellant, and therefore, there is no reason to doubt the deposition of the prosecutrix. Reasons
22. This court has perused the entire evidence on record and heard the learned counsel for the parties in detail. This is a settled law that in reversing the finding of conviction the High Court has to keep in view the fact that the presumption of innocence is still available in favor of the accused. Even if on fresh scrutiny and reappraisal of the evidence and perusal of the material on record, if the High Court is of the opinion that another view is possible or which can be reasonably taken, then the view which favors the accused can be adopted. But the view taken by the trial Court which had an advantage of looking at the demeanor of the witnesses and observing his conduct in the Court is not to be substituted ordinarily by another view which may be reasonably possible in the opinion of the High Court. Reliance for this can be placed on 2009(1) JCC 482=AIR 2009 SC 1242, Prem Kanwar v. State of Rajasthan; 2008 (3) JCC 1806, Syed Peda Aowlia v. the Public Prosecutor, High Court of A.P, Hyderabad; Bhagwan Singh and Ors v. State of Madhya Pradesh, 2002 (2) Supreme 567; AIR 1973 SC 2622 Shivaji Sababrao Babade & Anr v. State of Maharashtra;Ramesh Babu Lal Doshi v. State of Gujarat, (1996) 4 Supreme 167; Jaswant Singh v. State of Haryana, 2000 (1) JCC (SC) 140. The Courts have held that the golden thread which runs through the web of administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favorable to the accused should be adopted. The paramount consideration of the Court is to ensure that miscarriage of justice is prevented. A miscarriage of justice which may arise from acquittal of the guilty is no less than from the conviction of an innocent. So another view is possible on the basis of pleas and contentions of the appellant is the point for consideration.
23. The backbone of the entire prosecution’s story is undoubtedly the evidence of the prosecutrix, PW-19. It is imperative to threadbare and consider the veracity of this witness. The prosecutrix had deposed about the incident, specifically on three important aspects which are as follows: at the first stage is the statement made to the Ward boy, PW-8 who had found her in the bathroom and rescued her, and whose statement was later on recorded by the police as Ex PW 8/A; secondly her statement recorded by the police under Section 161 as Ex PW 19/DA; and finally her testimony before the court as PW-19. The learned counsel for the appellant had contended that there are major inconsistencies in all these statements made by the prosecutrix and thus her testimony is devoid of any credibility and therefore it should not be relied on.
24. At this stage it will be pertinent to examine each of the statements made by the prosecutrix. In the statement made by the prosecutrix to the Ward Boy, PW-8 when he rescued her, he subsequently deposed to the police as Ex PW 8/A on 7th September, 2003 i.e. on the day of the incident categorically stating that the prosecutrix had told him that it was the appellant Bhura, the sweeper who had raped her and kept her locked in the bathroom. The relevant portion of his testimony is as follows:
"Maine bedsheet va patient ki spunge karna that aur ek ladki Rinchu joki patient ki dekhbhal karti thi mujhe kamre mein nahi mili aur maine bathroom ka darwaza khola toh vah diwar ke saath baithi hui thi aur mujhe dekh kar boli ki Bhura naam ke sweeper ne meri izzat loot li hai jisne chehre par chot ke nishan the meine ..... sister-in- charge..... aur fir maine anya staff ke sath ladki Rinchu ko casuality mein le gaya. Bhura ki mere sath hi night duty thi."
25. Learned counsel for the appellant has attempted to discredit this statement by alleging that PW-8 himself had deposed in Court during his cross examination that he did not remember, if he had specifically stated the name Bhura in the statement made to the police. Thus it was contended that the name Bhura might have been added later on by the police and that the appellant is falsely implicated in the matter. However perusal of the original statement recorded by the police does not show any signs of being tampered with, nor can the allegations that additions were made to the statement by the police has been substantiated. No such suggestions were given to the witnesses in the cross examination. In any case PW-8 had also categorically deposed that whatever he had stated to the police was recorded by them as Ex PW 8/A. He further deposed that it was correct that he had read the statement and then signed it. He also deposed that Bhura was the only other sweeper on duty at the time. In the circumstances it cannot be doubted that the appellant was specifically named in Ex PW 8/A. The inconsistency with the statement given in the Court is minor and not sufficient to discredit the testimony of Pw-8 who had first met the prosecutrix after the incident.
26. It is a settled legal proposition that the evidence of a prosecution witness cannot be rejected in entirety merely because the witness turned hostile and he had to be cross examined by the prosecution. The evidence of such witnesses cannot be treated as effaced or washed off the record altogether but the same can be accepted to the extent it is reliable. Reliance for this can be placed on Bhagwan Singh v. The State of Haryana: AIR 1976 SC 202;Rabindra Kumar Dey v. State of Orissa: AIR 1977 SC 170; Syad Akbar v. State of Karnataka: AIR 1979 SC 1848 and Khujji @ Surendra Tiwari v. State of Madhya Pradesh: AIR 1991 SC 1853.
27. The Trial Court therefore, could rely on the part of the testimony of a witness who had turned hostile and such reliance cannot be faulted on the ground that the witness had turned hostile and therefore the entire testimony had to be rejected.
28. Regarding the statement of the prosecutrix made to the police on 8th September, 2003 under section 161 Cr.P.C., the prosecutrix has supported the case of the prosecution. She had categorically stated that it was Bhura the sweeper, who was known to her, who had raped and injured her and subsequently locked her in the bathroom. The learned counsel for the appellant has contended that this statement of the prosecutrix too cannot be believed due the delay in recording it, in light of the deposition of PW2, who in his cross-examination had stated that the prosecutrix was not unconscious at the time of examination on the date on the incident, that it was only since the prosecutrix was not giving any statement that he wrote that she was unfit for statement, because of which the statement of the prosecutrix was taken only on the 8th September, 2003. Thus, it was contended that the delay in recording the statement effects the credibility of its contents.
29. This plea on behalf of the appellant cannot be accepted. PW-21 SI Kishore Pandey had categorically deposed that on the day of the incident i.e. on 7th September, 2003 when he visited the hospital, he found the prosecutrix admitted in the casualty and her eyes were bandaged and that he was not allowed to talk to the patient. He had also denied the suggestion that she was fit to make a statement on 7th September, 2003 itself and that at his instance the concerned doctor mentioned her unfit to make the statement on the MLC. As the mother of the prosecutrix was available at that time, he had taken the statement of the mother Kunju Moal PW-20, who had stated that her daughter had told her that Bhura had beaten her and raped her in a bathroom while she was unconscious and that the accused had run away after bolting the door from outside. Thereafter on the next day, i.e. on 8th September, 2003, PW-21 went to Shanti Mukand Hospital were the prosecutrix was admitted and after getting the permission from Dr. Mahmood, he had recorded the statement of the prosecutrix. The prosecutrix had suffered grave physical injuries, as her eye was severely damaged and was in need of immediate medical care at the time and therefore she could not have possibly been capable of giving her statement on the same day of the alleged incident. Therefore, the delay of one day has been explained satisfactorily and cannot be ground to doubt the credibility of statement given by the prosecutrix nor it can be inferred in these circumstances that the implicating the appellant was an afterthought on the part of the prosecutrix. There was no reason for the prosecutrix to implicate the appellant in the facts and circumstances.
30. The relevant portion of the testimony of the prosecutrix before the Court as PW-19 is as follows:
"PW-19 Ms. Rinchu P.R. daughter of ShriP.V.Ramu, aged 19 years, Service, Resident of H.No.287/8-A, DDA Janta Flats, MayurKunj, Trilokpuri, Delhi, on S.A.
On 6.9.2004 again said 2003 I was working as a private Nurse attendant in Shanti Mukand Hospital. It was 1.00 A.M. (Night) I was attending to patient S.K.Kaushal in room No.208, 2nd Floor of the said hospital. The said patient was paralytic and was unable to move. I used to attend him from 8.00 A.M. I was sitting on the satty near the patient. Suddenly I felt slumbrish and my eyes were closed. I realized that someone was touching and moving hand on my breast. I opened my eyes and found that Bhura Singh, accused present before the court, who was posted as a sweeper in the hospital, was present there before me. I asked him to get out of the room. The accused did not respond. I threatened him that I will call the sister and make a complaint against him. I moved my hand towards the bell but the accused caught hold of my hand. I started crying but the accused put his hand in my mouth. He dragged me to the other bed which was lying vacant. Thereafter I vomited blood. I then fell down and lost my senses. I regained consciousness at about 4.30 A.M. I tried to open my eye but I could not open it. I also felt that there was pain in my private part. I touched myself and found that my panty and Salwar were removed. Thereafter with great difficulty I put on my panty and Salwar which were lying nearby and I found myself in the bathroom of the room. I was bleeding from my eye and my eye ball of my right eye had come out and was hanging around the eye. I took the help of the wall and tried to open the door. It was bolted from outside. I was unable to speak because my throat had been pressed. At about 6.00 or 6.30 A.M. ward boy namely Vyas Sharma came in the room. He opened the door. I narrated the story to him and told him that I was raped by the accused and I was also given beatings by Bhura. He brought me out and made me to lie down on the sette I was having pain in abdomen and I was bleeding from my private part. I received injuries on my face and neck also. (At this stage the prosecutrix had removed her goggles and I find her that her right eye is badly hurt and it does not have the eye ball) A „Sister’ came there. She took me to the casualty and my eye was bandaged. I did not get the proper treatment. Police came. I was got medically examined. I can identify my clothes which were seized by the police. (At this stage a sealed packet sealed with the seal of CFSL is opened and clothes are taken out). Panty Ex. P-I, brazier Ex. P-2, Salwar-Kurta Ex. P-3 and P-4 are the same which were seized vide memo Ex. PW-14/A."
31. Learned counsel for the appellant alleged that there are certain inconsistencies in the testimony, with the statement of the prosecutrix made to the police such as she did not mention that it was the "right breast" that was fondled by the appellant in her statement before the police, wherein she just mentioned "breast". Also she stated the word "satty" to which the appellant had allegedly dragged her instead of the word "bed" which is what is stated in her statement to the police. However, these are minor inconsistencies and not sufficient to impeach the testimony of the prosecutrix. While dealing with the inconsistencies the Trial Court has relied on the judgment of State v. Gurmit Singh AIR 1966 SC 1393 and held that in nervousness the prosecutrix cannot be expected to have perfect memory and therefore the confused stray sentences cannot be wrongly interpreted as „discrepancies and contradiction’ in her evidence and be a ground to not rely upon it.
32. This Supreme Court in Bharwada (supra) relied by the learned counsel for the State, had held that much importance cannot be given to minor discrepancies. Discrepancies which do not go to the root of the matter and shake the basic version of the witnesses cannot be annexed with undue importance. The Court had further observed as follows: "We do not consider it appropriate or permissible to enter upon a reappraisal or reappreciation of the evidence in the context of the minor discrepancies painstakingly highlighted by learned Counsel for the appellant. Over much importance cannot be attached to minor discrepancies. The reasons are obvious:
(1) By and large a witness cannot be expected to possess a photographic memory and to recall the details of an incident. It is not as if a video tape is replayed on the mental screen:
(2) Ordinarily it so happens that a witness is overtaken by events. The witness could not have anticipated the occurrence which so often has an element of surprise. The mental faculties therefore cannot be expected to be attuned to absorb the details.
(3) The powers of observation differ from person to person. What one may notice, another may not. An object or movement might emboss its image on one person's mind whereas it might go unnoticed on the part of another.
(4) By and large people cannot accurately recall a conversation and reproduce the very words used by them or heard by them. They can only recall the main purport of the conversation. It is unrealistic to expect a witness to be a human tape recorder. (5) In regard to exact time of an incident, or the time duration of an occurrence, usually, people make their estimates by guess work on the spur of the moment at the time of interrogation. And one cannot expect people to make very precise or reliable estimates in such matters. Again, it depends on the time-sense of individuals which varies from person to person,
(6) Ordinarily a witness cannot be expected to recall accurately the sequence of events which take place in rapid succession or in a short time span. A witness is liable to get confused, or mixed up when interrogated later on.
(7) A witness, though wholly truthful, is liable to be overawed by the court atmosphere and the piercing cross examination made by counsel and out of nervousness mix up facts, get confused regarding sequence of events, or fill up details from imagination on the spur of the moment. The sub- conscious mind of the witness sometimes so operates on account of the fear of looking foolish or being disbelieved though the witness is giving a truthful and honest account of the occurrence witnessed by him-Perhaps it is a sort of a psychological defence mechanism activated on the spur of the moment."
33. Thus statements given by the prosecutrix at different stages are in conformity with each other and satisfactorily support the very core of the prosecution’s case. Terming the bed as „satty’ and not stating that the appellant had put his hand on her left breast and stating that he had put her hand on her breast cannot be construed to be inconsistency in any manner so as to doubt prosecutrix. Therefore, reliance by Trial Court on the prosecutrix statement cannot be faulted in any manner on the grounds canvassed before us by the counsel for the appellant in any manner.
34. The Supreme Court has in a plethora of cases discussed the evidentiary value of the testimony of the prosecutrix and that it is not to be corroborated nor requires corroboration on every aspect.
35. In State of U.P. v. Pappu @ Yunus and Anr. AIR 2005 SC 1248, the Apex Court held that even in a case where it is shown that the girl is a girl of easy virtue or a girl of habitual to sexual intercourse, it may not be a ground to absolve the accused from the charge of rape. It has to be established that there was consent by her for that particular occasion. Absence of injury on the prosecutrix may not be a factor that leads the Court to absolve the accused. This Court further held that there can be conviction on the sole testimony of the prosecutrix and in case, the Court is not satisfied with the version of the prosecutrix, it can seek other evidence, direct or circumstantial, by which it may get assurance of her testimony. The Court held as under:
" It is well settled that a prosecutrix complaining of having been a victim of the offence of rape is not an accomplice after the crime. There is no rule of law that her testimony cannot be acted without corroboration in material particulars. She stands at a higher pedestal than an injured witness. In the latter case, there is injury on the physical form, while in the former it is both physical as well as psychological and emotional. However, if the court of facts finds it difficult to accept the version of the prosecutrix on its face value, it may search for evidence, direct or circumstantial, which would lend assurance to her testimony. Assurance, short of corroboration as understood in the context of an accomplice, would do.
36. In State of Punjab v. Gurmit Singh and Ors: AIR 1996 SC 1393, also the Apex Court held that in cases involving sexual harassment, molestation etc. the Court is duty bound to deal with such cases with utmost sensitivity. Minor contradictions or insignificant discrepancies in the statement of a prosecutrix should not be a ground for throwing out an otherwise reliable prosecution case. Evidence of the victim, regarding sexual assault is enough for conviction and it does not require any corroboration unless there are compelling reasons for seeking corroboration. The court may look for some assurances of her statement to satisfy judicial conscience. The statement of the prosecutrix is more reliable than that of an injured witness as she is not an accomplice. The Court further held that the delay in filing FIR for sexual offence may not be properly explained, but if found natural, the accused cannot be given any benefit thereof. The Court held that:
" The courts should examine the broader probabilities of a case and not get swayed by minor contradictions or insignificant discrepancies in the statement of the prosecutrix, which are not of a fatal nature, to throw out an otherwise reliable prosecution case. If evidence of the prosecutrix inspires confidence, it must be relied upon without seeking corroboration of her statement in material particulars. If for some reason the court finds it difficult to place implicit reliance on her testimony, it may look for evidence which may lend assurance to her testimony, short of corroboration required in the case of an accomplice. The testimony of the prosecutrix must be appreciated in the background of the entire case and the trial court must be alive to its responsibility and be sensitive while dealing with cases involving sexual molestations."
37. In State of Himachal Pradesh v. Raghubir Singh: (1993) 2 SCC 622, the Supreme Court held that there is no legal compulsion to look for any other evidence to corroborate the evidence of the prosecutrix before recording an order of conviction. Evidence has to be weighed and not counted. Conviction can be recorded on the sole testimony of the prosecutrix, if her evidence inspires confidence and there is absence of circumstances which militate against her veracity. A similar view has been reiterated by Supreme Court in Wahid Khan v. State of Madhya Pradesh: (2010) 2 SCC 9, placing reliance on earlier judgment in Rameshwar v. State of Rajasthan: AIR 1952 SC 54.
38. Thus, the law as laid down by the Supreme Court is that if the statement of the prosecutrix is found to be worthy of credence and reliable, then it requires no corroboration. The Court may convict the accused on the sole testimony of the prosecutrix. However in all cautiousness this court shall deal with the other evidences as well. The learned counsel for the appellant had also contended that the very presence of the appellant in the hospital on the day of the incident is disputed and not established. The appellant has given the following explanations under section 313 of Cr. P.C for the circumstances put to him against him:
Q3: It is also in evidence against you that you were also deputed as Sweeper in Shanti Mukand Hospital through that firm. What have you to say?
Ans: It is incorrect
Q4: It is also in evidence against you that on the intervening night of 6/7.9.03 you were on duty in the said hospital. What have you to say?
Ans: It is incorrect
Q52: Have you anything else to say?
Ans: I have been implicated in this case falsely. I am innocent. Even I was not present even on the duty at that time. I was in my house at the time. I myself surrendered before the police in the presence of my brother. The relevance of Section 313 has been dealt with by the Supreme Court in the judgment of Sanatan Naskar & Anr. Vs. State of West Bengal: AIR 2010 SC 3570. The relevant portion is as follows:
"10. The answers by an accused under Section 313 of the Cr.P.C. are of relevance for finding out the truth and examining the veracity of the case of the prosecution. The scope of Section 313 of the Cr.P.C. is wide and is not a mere formality. Let us examine the essential features of this section and the principles of law as enunciated by judgments, which are the guiding factors for proper application and consequences which shall flow from the provisions of Section 313 of the Cr.PC. As already noticed, the object of recording the statement of the accused under Section 313 of the Cr.PC is to put all incriminating evidence to the accused so as to provide him an opportunity to explain such incriminating circumstances appearing against him in the evidence of the prosecution. At the same time, also permit him to put forward his own version or reasons, if he so chooses, in relation to his involvement or otherwise in the crime. The Court has been empowered to examine the accused but only after the prosecution evidence has been concluded. It is a mandatory obligation upon the Court and, besides ensuring the compliance thereof, the Court has to keep in mind that the accused gets a fair chance to explain his conduct. The option lies with the accused to maintain silence coupled with simplicitor denial or, in the alternative, to explain his version and reasons, for his alleged involvement in the commission of crime. This is the statement which the accused makes without fear or right of the other party to cross-examine him. However, if the statements made are false, the Court is entitled to draw adverse inferences and pass consequential orders, as may be called for, in accordance with law. The primary purpose is to establish a direct dialogue between the Court and the accused and to put every important incriminating piece of evidence to the accused and grant him an opportunity to answer and explain. Once such a statement is recorded, the next question that has to be considered by the Court is to what extent and consequences such statement can be used during the enquiry and the trial. Over the period of time, the Courts have explained this concept and now it has attained, more or less, certainty in the field of criminal jurisprudence. The statement of the accused can be used to test the veracity of the exculpatory nature of the admission, if any, made by the accused. It can be taken into consideration in any enquiry or trial but still it is not strictly evidence in the case. The provisions of Section 313(4) of Cr.PC explicitly provides that the answers given by the accused may be taken into consideration in such enquiry or trial and put in evidence for or against the accused in any other enquiry into or trial for, any other offence for which such answers may tend to show he has committed.
In other words, the use is permissible as per the provisions of the Code but has its own limitations. The Courts may rely on a portion of the statement of the accused and find him guilty in consideration of the other evidence against him led by the prosecution, however, such statements made under this Section should not be considered in isolation but in conjunction with evidence adduced by the prosecution."
39. The presence of the appellant on the day of the incident has been established by the prosecution through the depositions of PW-8, PW-9 and PW-12. PW-8 had categorically deposed that he had seen the appellant on the night intervening 6th/7th September, 2003 and had worked with him up to 12:45 a.m. after which the appellant had left saying that he had to clean the gallery. He further stated that apart from Bhura there was no other sweeper on duty on the day of the incident. PW-9, A.K. Saxena who runs a contracting company under the name of Baba House Keeping Service had also deposed that he had deputed Bhura in the Shanti Mukand Hospital. On hearing about the rape he had also helped the police to trace out the appellant, who was later on arrested near his house vide arrest memo Ex PW 9/A which was witnessed by him. Thus the contention of the appellant that he had surrendered himself in front of his brother Rajender is liable to be repelled as neither had the appellant been able to prove this fact on record nor has he lead any evidence establishing the same. Finally PW- 12 had further established the presence of the appellant on the night of the incident as he produced the attendance register pertaining to Baba House Keeping services, Ex PW 12/B which unquestionably stipulates that Bhura, the appellant was on duty on the night intervening 6th/7th September 2003. In light of the depositions of PW-8, 9 and 12 the presence of the appellant on the night of the alleged offence has been established beyond any reasonable doubt and plea to the contrary cannot be accepted.
40. Learned counsel for the appellant has vehemently disputed the factum of rape by placing heavy reliance on the testimony of PW-3 Dr. Archana Bachchan. Relevant portion of her statement as Pw 3 is as under:
"PW3: Dr.Archa Bacchan
Recalled for further cross
ON SA
XX By Sh.Mukesh Ahuja, Adv. a.c. And Sh.D.K.Yadav, Adv. for the accused.
Prosecutrix herself gave the history written on Ex. PW 6/A. Prosecutrix did not name any person. She did not disclose to me that she was having pain in her private parts. I enquired from the Prosecutrix who was the culprit but she replied that she did not know the person, but I did not record this fact in the MLC.
Court question: Why did not you record this fact on the MLC?
Ans: There appears to be fault on my part.
I prepared Ex. PW 6/A in the night at about 9 p.m. on 7.9.03. It is correct that I have not mentioned the time on Ex. PW 6/A. I did not have any discussion with Dr. S.K.Kangra. I had written there was slight bleedings from O.S. There were bloods stains in the vagina due to menstrual blood but not on the pubic hair. It is correct that there was no semen stains on the pubic hair of Prosecutrix. I did not find any trace of pubic hair on the clothes of the Prosecutrix.
Court question: How can you difference blood of menstrual or blood coming out due to rape?
Ans.: If the blood will be of rape, there should be some injury mark inside the vagina but if blood was coming through the opening of the uterus then it is only menstruation. Moreover, prosecution herself told that she was having menstruation.
Que.: Can there be any injury on the prosecutrix if she is in unconscious, while she is being raped? Ans.: She can have injuries.
Court Que.: Under all probabilities?
Ans.: Yes. Because she was having intercourse for the first time.
Court Question: How can you say that she was having intercourse for the first time?
Ans.: Because she was unmarried girl.
The prosecutrix did not tell me that she was having pains in her private parts.
At this stage, ld. Addl. PP wants to re examine this witness. Heard. Permission granted.
XX By Ld. Addl. PP
Que.: Is it correct that at the time of examination of Rinchu you have mentioned her Hymen torn?
Ans.: It is correct. Hymen can be torn either by rape or otherwise.
This was not freshly torn.
Court Question: How can you say about this?
Ans.: If it is freshly torn, then there must be blood points and thereby must be blood stains on the margins of the hymen.
Court Que.: Have you mentioned all these facts in you report?
Ans.: I did not mention these facts in my report. Court Que.: Why did you not mention these facts? Ans.: I was not aware that I was to write all these things.
Court Que.: When you have examined victim?
Ans.: I have examined patient on 7.9.03.
Court Que.: How are you able to remember all
these things orally?
Ans.: I remember it orally and have committed fault in not mentioning these things in the MLC. XX By ld. def. counsel.
Nil.Oppt. granted.
RO&AC
ASJ 6.4.05
41. The deposition of PW-3 was recorded on 4th February, 2005 and she was cross-examined on 6th April 2005, while the incident had taken place on 6/7th September 2003. Almost 2 years had elapsed since the incident had occurred. Pw 3 had not noted these facts and alleged that she remembered them orally. She admitted that she committed fault in not mentioning these facts in the MLC. In addition to this PW-3 has based her opinion on the premise that injury is necessary under all probabilities. She also presumed that the prosecutrix may not have had any intercourse prior to the incident as she was not married. She stated that the hymen was not freshly torn because if it had been freshly torn then there must have been blood points. These relevant facts were not mentioned by her in MLC.
42. The Trial court had made the following observations regarding the testimony of PW-3:
"25. Now, I advert to the evidence of Dr.Archana Bachchan. She laid emphasis on three points. Firstly that the blood was of menstruation periods and could not have been there due to rape. Secondly, the hymen was torn prior to the above said alleged rape. Lastly, there was absence of injury.
26. To my mind, her assumptions are all wet. In Modi’s Medical Jurisprudence and Toxicology. 21st Edition page 375 at Point 2, it is mentioned: "Recently effused or dried blood may be found upon the genital organs or in the neighbourhood, and in recent cases there may be bleeding from the vagina, which is usually very slight. It should not be forgotten that the bleeding may be due to menstruation, which is possible to be induced by sexual intercourse."
This is a universally known fact that if the period of the prosecutrix are due, the same do occur with the rape or with voluntary sexual intercourse. There lies no rub for a lustful beast to rape a woman even if she is having periods.
27. Secondly, it is very difficult for the doctor to come to the conclusion whether the hymen is recently torn or was torn before the lapse of one month. Moreover, this is not incumbent that injury must be caused. The observations in Modi’s Medical Jurisprudence and Toxicology, Page 369 were approved by the Apex Court, in Madan Gopal Kakkad v. Nanal Debeh, 1992, Supreme Court Cases (Crl.), 598 and it was held:
"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 purpose of the law. It is, therefore, quite possible to commit legally the offences of rape without producing any injury to the genitals or leaving any seminal stains. In such a case 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, 5th Edition, page 439, it is mentioned:
"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."
In the instant case, the prosecutrix was not in senses. The accused had enough time to remove semen stains and blood stains.
28. It is interesting to note that Dr.Archana Bachchan was examined on 4.2.2005. Accused was given an opportunity to cross-examine her but the proxy counsel Shri Yogender Kumar, Advocate, did not cross-examine her though an opportunity was granted to him at 2.40 PM on 4.2.2005. Thereafter, the accused changed his counsel and this witness was recalled for further cross-examination by Shri Mukesh Ahuja, Advocate and Shri D.K.Yadav, Advocate. Her cross-examination was conducted on 6.4.2005.
29. In Khujji @ Surender Tiwari v. State of Madhya Pradesh, AIR 1991 Supreme Court 1853, it was observed:-
"The High Court came to the conclusion and, in our opinion rightly, that during the one month period that elapsed since the recording of his examination-in-chief something transpired which made him shift his evidence on the question of identity to help the appellant. We are satisfied on a reading of his entire evidence that his statement in cross examination on the question of identity of the appellant and his companion is a clear attempt to wriggle out of what he had stated earlier in his examination in chief."
30. It must be borne in mind that during her cross-examination, Dr.Bachchan is somewhat confused. On the one hand, she stated that victim was having sexual intercourse for the first time. On the other hand, she stated that her hymen was torn since the last one month. It is also not understood why she tried to improve her story. She should have mentioned all these relevant facts in her report. Her statement that she could remember all these facts by heart, are not believable or trustworthy. She has tried to go out of the way to help the accused. If she is a genuine witness, she should have deposed all the facts during her examination-in-chief."
43. The Trial Court had witnessed the demeanour of the witness. The Trial Court had held that PW-3 had made improvements in her testimony. This has to be taken into consideration by this Court while dealing with her deposition, which undoubtedly casts a suspicion on the testimony of PW-3. The prosecutrix had stated that she had been raped by the appellant. She had no animus to involve the appellant falsely. Menstruation which is possible to be induced by sexual intercourse has not been ruled out. It has not been put to the prosecutrix in the cross examination that her periods were due during the period the allegation of rape had been made by her. This is universally known fact that if the periods are due, the same do occur with rape or voluntary sexual intercourse. The Trial Court has relied on the observations made in Modi's Medical Jurispurdence and Toxicolgy which have not been successfully refuted by the counsel for the appellant. The deposition of the Pw 3 is also based on her recollection and such minutes facts and details which ought to have been recorded by her, had not been recorded. The learned counsel for the appellant has not been able to make out any cogent ground to refute the reasoning of the Trial Court reproduced hereinabove. The deposition of the said witness also has inherent contradiction as during the course of cross examination she stated that the prosecutrix had sexual intercourse for the first time and also stated that the hymen of the prosecutrix was torn for about one month. Both the facts deposed by Pw-3 cannot be reconciled and on the basis of such testimony, the testimony of the prosecutrix cannot be disbelieved and impeached so as to give any advantage to the appellant.
44. Regarding variance between medical evidence and ocular evidence, it is no more res integra that oral evidence get primacy as the medical evidence is opinionative. Medical evidence can be used to repel the testimony of witnesses only if it is so conclusive as to rule out any possibility of eyewitness's version true. The answers by Medical experts cannot become last words in all the facts and circumstances. It was held by the Supreme Court that to discard the testimony of an eyewitness simply on the strength of opinion expressed by medical witnesses is not conducive to administration of Criminal Justice in Ramanand Yadav v. Prabhu NathJ ha and Ors 2003 IX AD (SC) 396, where the following observations were made:
"18. So far as the alleged variance between medical evidence and ocular evidence is concerned it is trite law that oral evidence has to get primacy and medical evidence is basically opinionative. It is only when the medical evidence specifically rules out the injury as claimed to have been inflicted as per the oral testimony, then only in a given case the Court has to draw adverse inference.
19. The High Court has thus knocked out an eyewitness on the strength of an uncanny opinion expressed by a medical witness. Over dependence on such opinion evidence, even if the witness is an expert in the field, to checkmate the direct testimony given by an eyewitness is not a safe modus adaptable in criminal cases. It has now become axiomatic that medical evidence can be used to repel the testimony, of eyewitnesses, only if it is so conclusive as to rule out even the possibility of the eyewitness's version to be true. A doctor usually confronted with such questions regarding different possibilities or probabilities of causing those injuries or post-mortem features which he noticed in the medical report may express his views one way or the other depending upon the manner the question was asked. But the answers given by the witness to such questions need not become the last word on such possibilities, After all he gives only his opinion regarding such questions. But to discard the testimony of an eyewitness simply on the strength of such opinion expressed by the medical witness is not conducive to the administration of criminal justice."
45. Another relevant evidence in this case is the FSL report, Ex. PW 21 which categorically stipulates that the vaginal swab has confirmed the detection of human semen. As per the MLC recorded by the PW-3 there is a small tongue bite Breast (N) and that there is an abrasion on the posterior fourchette (portion between vagina and anus). Also the prosecutrix herself stated that she was unconscious at the time, and hence she could not have put up a proper resistance to deflect injuries on her body or on that of the appellant. The conduct of the appellant subsequent to the incident is also relevant under Section 8 of the Indian Evidence Act, 1872. The appellant had fled and was not to be seen in the hospital after the day of the incident which fact cannot be ignored to infer the culpability of the appellant.
46. The precedent relied by the learned counsel for the appellant are distinguishable. In Ramdas (supra) relied on by the learned counsel for the appellant, the Supreme Court had held that the prosecutrix did not appear to be a witness of sterling quality and hence conviction could not be based on the sole testimony of the prosecutrix. However the facts of the case are clearly distinguishable from the facts of the present case. In the instant case the Supreme Court had observed that the prosecutrix had tried to conceal certain facts from the court and had also deviated from the case narrated in the FIR. In addition there was a delay of 8 days which was not satisfactorily explained by the prosecutrix. However in the present case there is no inordinate delay and the prosecutrix has supported the case of the prosecution thoroughly and her statement had been consistent. In any case the testimony of the prosecutrix has been substantially corroborated. In Sadashiv Ramrao (Supra), relied by the learned counsel for the appellant, it had been contended that conviction could not be based on the sole testimony of the prosecutrix, if it is unsupported or belied by the medical evidence. In the instant case the version given by the prosecutrix was unsupported by medical evidence and the surrounding circumstances. No injury was found on the body and the private parts of the prosecutrix. Even the doctor who examined her was unable to give any opinion about the alleged sexual intercourse. Therefore, the Supreme Court had held that the appellant was entitled to the benefit of doubt and conviction was set aside. However, the facts of the present case are clearly distinguishable from the facts of the matter relied on by the appellant. In the instant case the court had observed the absence of Spermatozoa in the vaginal swab of the prosecutrix and also the courts had observed that it was highly improbable that the prosecutrix could not make any noise or get out of the room and was sexually assaulted by the appellant when there were many persons present in the near vicinity. However in the present matter, semen had been detected on the vaginal swab as per the FSL report and the sexual assault had taken place at 1.00 A.M. i.e. at the dead of the night and there wasn’t anybody present in the vicinity. In any case the prosecutrix had been grievously hurt and therefore, was rendered unconscious, because of which she could not have raised a hue and cry.
47. Similarly, in Dilip (Supra), relied on by the learned counsel for the appellant, the Supreme Court disbelieved the statement of the prosecutrix, as it was contradicted by the statement of her own aunt and the medical evidence, as well as the report of the forensic science laboratory. In the case relied on by the appellant, the prosecutrix had divulged the entire facts to her aunt, however, the aunt had deposed in contradiction to the testimony of the prosecutrix. The Supreme Court had observed that the „probabilities factor’ operated against the prosecutrix as it came on the record that she had stated that she could not resist the two accused persons who had allegedly raped her as she was over-awed at that time. The prosecutrix had complained that she had sustained injuries and had also bled from her private part which was not corroborated by the medical evidence and also no semen was found on the vaginal swab. Apparently the present case is clearly distinguishable.
48. In Vimal (Supra), also the Supreme Court had discarded the evidence of the prosecutrix since it did not appear to be natural and truthful. Her conduct after the alleged rape was considered to be un- natural and not believable. There was also delay in lodging the FIR and the medical evidence did not support the report of the chemical analyst, as the prosecutrix had taken bath on the day of the alleged rape and Crl. A. No.910/2006 Page 41 of 54 hence it would have been known to her that this would have caused for the evidence to disappear. It was also notices that in the instant case the accused in his examination under Section 313 of the Criminal Procedure Code had stated that he was falsely implicated in the case with the motive of extorting money. It was alleged that the prosecutrix had demanded money from the accused and when he refused to give the same she had threatened him with dire consequences. In the present case the prosecutrix had no animus against the appellant nor any motive has been alleged against the prosecutrix to implicate the appellant. There is also no delay in lodging the FIR and the medical record gives evidence of the struggle put up by the prosecutrix.
49. In Yerumalla (Supra), the Court disbelieved the prosecutrix since no injury was found on the body part of the victim, hymen was found intact and the vaginal smears did not detect any semen on them. The ration of this case clearly does not apply to the present case. In Mohd. Habib (Supra), the Supreme Court had rejected the testimony of the 21 year old prosecutrix as it was found to unreliable since there was no inflammation or redness on the private part of the girl, nor was there any injury on the male organ and the testimony of the eye witness did not corroborate the version of the prosecutrix. The court had further observed that the prosecution had not given any explanation as to why the mother of the prosecutrix who had come to the spot immediately after the occurrence, who might have known about the entire events as it might have been told to her by the prosecutrix was not produced or examined. The swab of the vagina of the prosecutrix also did not show any seminal stain. However, in the instant matter the mother who had come immediately after the prosecutrix was found had given her statement on the day of occurrence and was also examined in court. She has supported the prosecutrix’s version in full form. The case relied on by the counsel for the appellant does not support the pleas and contentions raised on behalf of the appellant.
50. In the State of Karnataka v. Mapilla (Supra), the Supreme Court had observed that the prosecution had not produced any medical report regarding the examination of PW-3. There was no evidence whatsoever to show that the doctor did prepare a medical report, hence the testimony of the prosecutrix was not believed. The court had not believed the prosecutrix as the alleged rape had taken place in the proximity of many neighbours and therefore, it could not be accepted that no one had come hearing the cries of the prosecutrix. In the present matter the prosecutrix has deposed that she was grievously hurt as her eyes were drastically damaged and she could not scream as before the rape there was an attempt to throttle her and later on she had become unconscious. In any case when such grievous hurt has occasioned, it is only reasonable to accept that the prosecutrix had become unconscious and therefore, was unable to raise any hue and cry.
51. It must be remembered that a decision is only an authority for what it actually decides. What is of the essence in a decision is its ratio and not every observation found therein nor what logically follows from the various observations made in it. The ratio of any decision must be understood in the background of the facts of that case. It has been said long time ago that a case is only an authority for what it actually decides, and not what logically follows from it. It is well settled that a little difference in facts or additional facts may make a lot of difference in the precedential value of a decision. Considering the present facts and circumstances, it may not be necessary to deal with precedents in detail relied on by the parties in the facts and circumstances of the present case as the present case is apparently distinguishable from the fact situation of most of the precedents relied on by the parties. In Ambica Quarry Works v. State of Gujarat and Ors. and Ambalal Manibhai Patel &Ors. v State of Gujarat &Ors MANU/SC/0049/1986 the Supreme Court observed:-
"The ratio of any decision must be understood in the background of the facts of that case. It has been said long time ago that a case is only an authority for what it actually decides, and not what logically follows from it."
52. Similarly in Bhavnagar University v. Palitana Sugar Mills Pvt. Ltd. (2003) 2 SC 111 (vide para 59), the Supreme had observed:- "It is also well settled that a little difference in facts or additional facts may make a lot of difference in the precedential value of a decision."
53. The Supreme Court in Bharat Petroleum Corporation Ltd. and Anr. v. N.R.Vairamani and Anr. (2004) 8 SCC 579 had also held that a decision cannot be relied on without considering the factual situation. In the same judgment the Supreme Court also observed:-
"Courts should not place reliance on decisions without discussing as to how the factual situation fits in with the fact situation of the decision on which reliance is placed. Observations of Courts are neither to be read as Euclid's theorems nor as provisions of the statute and that too taken out of their context. These observations must be read in the context in which they appear to have been stated. Judgments of Courts are not to be construed as statutes. To interpret words, phrases and provisions of a statute, it may become necessary for judges to embark into lengthy discussions but the discussion is meant to explain and not to define. Judges interpret statutes, they do not interpret judgments. They interpret words of statutes; their words are not to be interpreted as statutes."
54. In Padmasundara Rao Vs State of Tamil Nadu &Ors, JT 2002 (3) SC 1, the Supreme Court had held as under:
"There is always a peril in treating the words of judgment as though they are words in a legislative enactment and it is to be remembered that judicial utterances are made in setting of the facts of a particular case. Circumstantial flexibility, one additional or different fact may make a world of difference between conclusion in two cases."
55. In Rafiq Vs State of U.P, 1980 4 SCC 262, it was observed as under:
"The ratio of one case cannot be mechanically applied to another case without having regard to the fact situation and circumstances obtaining in two cases."
56. Circumstantial flexibility, one additional or different fact may make a world of difference between conclusions in two cases and disposing of a case by blindly placing reliance on a decision is not proper. This Court in view of the entire facts and circumstances, and the evidence on the record, concludes that it undoubtedly points towards the guilt of the appellant, and holds that the trial court has rightly concluded on the guilt of the appellant under Section 376 and 342 of the IPC. The learned counsel for the appellant has not given any cogent reasons for interfering with the finding of the Trial Court and this court too does not find any illegality or perversity or un- sustainability in the reasoning of the Trial Court.
57. With regard to the conviction of the appellant under section 326 of the IPC, the learned counsel has contended that the Trial court had gravely erred in punishing the appellant under section 326 of the IPC. It is contended that even if it is to be believed that the appellant had in fact caused the injury to the eyes of the prosecutrix, since neither the prosecutrix had deposed about any weapon used, nor is it the case of the appellant that the appellant had caused the injury by means of any instrument for shooting, stabbing or cutting or any instrument which was used as a weapon of offence. It is asserted that the maximum charge that can be framed against the appellant in the circumstances is as under Section 325 and nothing more. Thus it is contended that the learned Trial judge has failed to differentiate between the ingredients of Section 325 & 326 of the IPC, since while in Section 325 the punishment prescribed is for causing grievous hurt, on the other hand under Section 326 of the IPC the punishment is prescribed for causing grievous hurt by means of any instrument for shooting, stabbing or cutting or any instrument which is used as a weapon of offence. The learned counsel had even contended that since the appellant was not put the circumstance of causing harm to the prosecutrix under Section 325 during his examination under section 313 of the Criminal Procedure Code, the same cannot be held in evidence against him. It is asserted that the non-examination of the accused under section 313 with respect to this circumstance has caused him a lot of prejudice. Thus the appellant is even entitled to have the entire proceedings as against him quashed or in the very least remitted back to the Trial Court for re-hearing.
58. The injuries as suffered by the prosecutrix, PW-19 have been established. The Trial court, held that the prosecutrix has been meted out with cruel treatment from the appellant and that due to her injuries the prosecutrix had lost her eyesight in one of her eyes while her second eye was also severely injured. The injury to the eye of the prosecutrix is also substantial. While PW-2, Dr. K.K. Rajan, Shanti Mukan Hospital, Delhi was the first to examine the prosecutrix. He prepared the MLC Ex PW2/A, in which he noted that the right eye was outside the orbit and that the prosecutrix was unfit for making any statement at that time. Thereafter, in the Court he deposed that one eye of the victim was fully bandaged, while the other was partly bandaged. This fact is corroborated by the deposition of PW3, Dr. Archana Bacchan, Consultant as well, who endorsed in the MLC Ex PW 2/A that both the eyes were dressed. PW-4, Dr. G.K. Dass, Professor GTB Hospital, Delhi deposed that because the eye ball of the right eye of the prosecutrix was hanging, but attached to the bony socket with conjunctiva and underline soft tissues and no prospection of light was there, therefore decision was taken by the Board members that it would be removed with the consent of the patient and hence it was done accordingly. PW-6 Dr. S.K. Kangra, Consultant, Shanti Mukand Hospital had that the dressing was opened on 9th September, 2003 and when the bandage was opened, the ball was found lying on the lid and there was swelling of the lid, therefore an opinion was formed that the eye ball of the patient should be immediately removed. Also while the prosecutrix was being examined in Court, the Trial Judge had also observed that during her deposition she removed her goggals and it was evident that the right eye was badly hurt and that it did not have an eye ball. As already considered above, the prosecutrix has imputed her injuries caused by the appellant. But as she had become unconscious after some time, she has not deposed in detail the manner in which she was injured but it was on account of act of the appellant and attributable to him. Thus even if no weapon was used, it has been established that the injury was caused by the appellant. The learned counsel for the State too has not been successful in pointing out any weapon used by the appellant in causing injury to the prosecutrix that would justify the conviction of the appellant under Section 326 of the IPC. Perusal of the judgment of the Trial court also does not give any indication of any weapon used by the appellant to inflict the grievous hurt on the prosecutrix by any weapon. Thus the charge against the appellant under Section 326 of the IPC is not made out and therefore, his conviction and sentence under the said section has to be set aside.
59. Therefore if the appellant cannot be convicted and sentenced under section 326 of IPC, then can he convicted u/s 325 of IPC is the matter of prime concern, as it has been established without any doubt that the injury had been caused by the appellant and that the act is solely imputable to the appellant, since he has been unsuccessful in destroying the deposition of the prosecutrix or proving any malafides on her behalf. In the circumstances whether the charge can be amended at the appellate stage or the conviction and sentence of the appellant under section 326 of IPC has to be set aside is to be determined.
60. Section 464 of the Cr.P.C. stipulates the effect of omission to frame, or absence of, or error in, charge. The Section contemplates that no finding, sentence or order by a Court of competent jurisdiction shall be deemed invalid merely on the ground that no charge was framed or on the ground of any error, omission or irregularity in the charge including any misjoinder of charges, unless, in the opinion of the Court of appeal, confirmation or revision, a failure of justice has in fact been occasioned thereby.
61. For this reliance can be placed on AIR 2008 SC 3069, Dumpala Chandra Reddy v. Nimakayala Balireddy and Ors. Relying on Dalbir Singh v. State of U.P, (2004) 5 SCC 334 the learned counsel for the appellant has contended that having regard to Section 464 of the Criminal Procedure Code conviction would be possible if (i) the accused was aware of the basic ingredients of that offence; (ii) the main facts sought to be established against him were explained to him clearly and (iii) he got a fair chance to defend himself. It was held that in view of Section 464 of Criminal Procedure Code, it is possible for the appellate or revisional Court to convict the accused for an offence for which no charge was framed unless the Court is of the opinion that a failure of justice would in fact occasion. In order to judge whether a failure of justice has been occasioned, it will be relevant to examine whether the accused was aware of the basic ingredients of the offence for which he is being convicted and whether the main facts sought to be established against him were explained to him clearly and whether he got a fair chance to defend himself.
62. In the circumstances this Court has to take into consideration whether the amendment of the charge by this court is likely to cause any failure of justice as against the appellant. Failure of justice is likely to be caused if the appellant would not have been aware of the new charge framed against him or the evidence in lieu of the charge is not put to him in order to seek his explanation or defense on the same. Since conviction under section 326 is not possible as no weapon of offence has either been alleged by the prosecutrix nor has it been contended by the prosecution nor established, therefore, would it be appropriate to convict the appellant even under lesser charge under section 325.
63. Whether the alteration of the charge is likely to cause any prejudice to the appellant is not apparent on the face of the record as under Section 313 during the examination of the appellant, it was specifically put to him in Question no. 18 that it is also in evidence against him that Kumari Rinchu was bleeding from her eye and that her eye ball of the right eye had come out and was hanging outside the eye on account of his acts and imputable to him. Thus it cannot be stated that the appellant wasn’t aware of the basic ingredients of the offence under Section 325 being put against him. The prosecution has established beyond all reasonable doubt that the damage to the eyes of the prosecutrix was caused by the appellant based on the deposition of the prosecutrix which has already been held to be unimpeachable. Also the only defence led by the appellant is that the damage to the eye of the prosecutrix is on account of the negligence on the part of the hospital and not because of the appellant as has also been stated by the prosecutrix in her FIR No. 447 of 2003 which was registered under Section 336 of the IPC with the PS Anand Vihar. This plea of the appellant cannot be accepted since the complaint of the prosecutrix is regarding the manner in which her treatment was effected for which she blames the Shanti Mukand Hospital. However for the injury in the first place she has imputed the offence as against the appellant and it is not the case of the appellant that the injury was self inflicted or by the Hospital. The appellant has not been able to impute any motive as against the prosecutrix to have falsely implicated him in the matter. Therefore, in the facts and circumstances the appellant's conviction and sentence under section 326 of IPC is set aside, however, the appellant is convicted under section 325 of IPC.
64. Thus in view of the reasons detailed hereinabove, this Court does not find any reason to interfere with the findings of the Trial Court, except to the extent that the conviction and sentence under Section 326 of the IPC is set aside and thus sentence of the appellant under section 326 stipulating that the appellant shall undergo life imprisonment and pay a fine of Rs. 5,000/- of IPC is set aside. The appellant, however, is convicted under a lesser charge under Section 325 of the IPC, and is also sentenced to undergo rigorous imprisonment for seven years and to pay a fine of Rs. 5,000/- in the facts and circumstances. In default of payment of fine, the appellant shall further undergo simple imprisonment for one years.
65. The learned counsel for the appellant has not canvassed any arguments with regard to appellant’s conviction and sentence under Section 342 of the IPC, therefore the conviction and sentence of the appellant under section 342 of IPC to undergo RI for one year is upheld. The appeal of the appellant for his conviction and sentence under section 342 of IPC is dismissed. The appeal of the appellant against his conviction and sentence under section 376 of IPC is also dismissed and the sentence by the Trial Court for offense u/s 376 of IPC sentencing the appellant to undergo life imprisonment and to pay a fine of Rs.5,000/- and in default of payment of fine to further undergo SI for three years is upheld. All the sentences shall run concurrently.
66. The plea of the learned counsel for the complainant/prosecutrix that in case the appellant’s conviction and sentence is upheld then he should be held not entitled for remission or parole, cannot be accepted in the facts and circumstances of the case. This plea on behalf of complainant is rejected.