Mahesh Kumar and anr. Vs. State of Rajasthan - Court Judgment

S.C. Mital, J.

1. Appellants Mahesh Kumar and Billa alias Virendra Kumar stand convicted under Sections 363 and 376, I.P.C. and sentenced to 1 year rigorous imprisonment, Rs. 2007- fine or in default 3 months' simple imprisonment and 10 years' rigorous imprisonment and Rs. 500/- fine or in default 3 months' simple imprisonment respectively by judgment dated 31 -8-96 rendered by learned Sessions Judge, Hanurnangarh in Sessions Case No. 35/95. Aggrieved by the aforesaid conviction and sentence, the appellants have preferred this appeal.

2. The incident took place in the intervening night of 21st and 22nd May, 1995 in Sangariya town. The prosecutrix Annu is the daughter of Roshan, Lal Arora resident of Ganganagar and she had come to meet her maternal grand parents at Sangariya. During the night she was sleeping on a cot in front of the house and her maternal ' father Munshi Ram and maternal mother Smt. Rukmani Devi (P. W. 2) were sleeping nearby her cot. Rukmani Devi woke up at about 12.30 and did not find Annu on the cot. She told her husband Munshi Ram and also called her son Om Prakash from his house. Om Prakash his son Vijay Kumar and neighbours Nihal Chandra, Mohan Lal and Rajendra went out to search her. Annu was even weeping and coming behind Dhanesh Cotton Mills. She was brought to home and when asked, she narrated that two boys forcibly took her by gagging her mouth at the point of knife towards the bushes near Railway boundary. She further stated that both the boys committed rape upon her. She did not know the boys prior to the occurrence, but she came to know their names Mahesh and Bijla because they were calling each other's name during the incident; Jitendra Kumar son of Roshan Lal, maternal uncle of the prosecutrix had seen both the appellants standing near their house at about 11.30 p.m. The appellants were not found during the night at their residence when Om Prakash and others tried to apprehend them.

3. The First Information Report Ex. P-l was lodged by Om Prakash maternal uncle of the prosecutrix at 6.30 a.m. on 22-5-95 at Police Station, Sangariy a where offences under Sections 363, 366 and 376, I.P.C. were registered for investigation. The site inspection map Ex. P-3 and inspection note Ex. P-3A were prepared by the Investigating Officer Richpal Singh, S.H.O., Sangariyaon the same day. Dr. Sushila Choudhary examined the person of Annu alias Anju prosecutrix and found the following injuries :-

Abrasions :

1. 1' x 1 /8' on right side of face started from right side of upper lip longitudinally;

2. On left side of nose 1/8' x 1/4' .1' below labella of nose;

3. On right side of nose 1/8' x 1/4' .1 1/2' below labella of nose;

4. There was no mark of any injury on private parts, breast, thighs, vulva. There was no tear and slight whitish dischafge was found in between labia majoraand minora. Vaginal swab and smear was taken and clothes, underwear, pant and Kurta were seized, sealed and were sent for chemical examination. In her medical report Ex. P-4 Dr. Sushila Choudhary opined that possibility of rape could not be ruled out. However, she reserved her final opinion after receiving the chemical examiner's report. The report received from State Forensic Science Laboratory, Rajasthan, Jaipur has been exhibited as Ex. P-I9. Human semen was detected in vaginal swab, vaginal smear, pant and underwear. However, semen was not detected on pubic hair and kurta. The appellants were medically examined on 23-5-95 by Dr. Krishan Kumar Sharma (P.W. 5) who was of the opinion that there was no reason to hold that the appellants were incapable of performing sexual intercourse. On the basis of X-Ray plates taken for determining the age of prosecutrix Dr. Sharma opined that the age of the prosecutrix was 12-13 years. A school certificate was obtained from Sri Guru Nanak Girls Senior Section School, Sri Ganganagar in which her date of birth was mentioned as 31-8-82. After completing the investigation, charge-sheet was submitted against the appellants in the Court of Additional Chief Judicial Magistrate, Sangariya, who committed the case for trial to Sessions Judge, Hanumangarh.

5. The appellants were charged for the offences under Sections 363 and 376(2)(g), I.P.C. They pleaded not guilty and claimed trial. In their statements under Section 313, Cr.P.C. the appellants stated that they have been implicated in a false case because they reported against Om Prakash the maternal uncle of the prosecutrix for running a gambling den.

6. The prosecution examined the prosecutrix Annu alias Anju PW 7, Dr. Sushila Choudhary PW 4 and Dr. Krishan Kumar Sharma PW 5 to . prove the medical examination reports, informant Om Prakash maternal uncle PW 1, Smt. Rukmani Devi maternal grand mother PW 2, Jitendra Kumar son of maternal uncle, Roshan Lal PW 3, Rajendra Kumar neighbour PW 6, Richhpal Singh, Investigating Officer PW 8, H.C. Vinod Kumar PW 9, Malkhana In-charge, and Jhabar Mal, F.C. PW 10. The appellants did not produce any witness in defence. The learned trial Court after hearing the arguments and appreciation of the evidence recorded the conviction and sentence as stated above.

7. The learned counsel for the appellants vehemently argued that the statement of Annu alias Anju is not trustworthy and the prosecution story against the appellants is highly improbable and, therefore, unacceptable. The medical examination report and other circumstances do not provided corroboration to the sole testimony of the prosecutrix. It is argued that on medical examination hymen was found intact and no injury was noticed on the private parts and other parts of the body except the face of the prosecutrix. In any event, the offence does not go beyond the precincts of attempt to commit rape i.e. 376 read with 511, I.P.C. because the prosecution has failed to prove the fact of penetration. Reliance has been placed on 1976 Cri LJ 452 (Punjab & Haryana) (Suresh Chand v. The State of Haryana) and 1974 Cri LJ 1098 (Goa, Daman & Diu) (Das Bernard v. State).

8. The learned Public Prosecutor supported the impugned judgment and contended that the prosecution has brought home the guilt to the accused by the statement of the prosecutrix corroborated by the statement of Dr. Sushila Choudhary and State Forensic Science Laboratory report Ex.PI9.

9. I have given my thoughtful consideration to the arguments advanced and perused the evidence on record. PW 7 Kumari Ruchi alias Anju alias Annu has deposed that, she was sleeping outside the house on a cot. Two boys came at about 12 O'clock in the night. They threatened her by knife and gagged her mouth by hands. She was forcibly taken towards the bushes near the Railway boundary. She identified the appellants in the court and stated that both of them committed forcible sexual intercourse with her. The appellants told her that they have not completed their act as yet thereupon she put on her pant and ran from that place. Her maternal uncle Om Prakash and some other persons met on the way and she narrated the whole incident to them.

10. Om Prakash is the maternal uncle of the prosecutrix. He has deposed that Annu had come from Ganganagar and stayed there for 15 days. Thereafter she went to the house of his parents before two days of this occurrence. On 21st May 1995 in the night at about 12.30 his mother Rakmani Devi informed him that Annu was not on her cot. He and his son Vijay Kumar awakened neighbours Mohanlal, Rajendra Kumar, Nihar Chand and started searching Annu. At about 1.15 a.m. Annu was coming from the side of Dhanesh Cotton Mills and she was weeping and told that while she was sleeping, two boys threatened her by knife and took her in the bushes near Railway boundary. She could not raise cries as they gagged her 'mouth. Both the boys were calling their names as Mahesh and Billa and committed forcible sexual intercourse with her. He lodged First Information Report Ex.Pl in the morning at Police Station, Sangariya. Smt. Rukmani Devi maternal mother has supported this version saying that when she did not find Annu on the cot, she informed her son Om Prakash. Om Prakash and his son Vijay Kumar and neighbours Nihal Chand, Mohanlal and Rajendra started to search Annu and came with her after about an hour. Annu told her about the above incident. Jitendra (PW 3) and Rajendra Kumar (PW 6) have also deposed that Annu narrated to them that boys named Mahesh and Billa took her forcibly towards the Railway boundary and committed forcible sexual intercourse with her.

11. The statements of the above witnesses is supported by the medical evidence through Dr. Sushila Choudhary. She noticed three abrasions on right side face above right lip, left and right side of the nose. This supports the version of the prosecutrix that her mouth was gagged as a result of that she received injuries. There was slight redness on the outer side of vagina for which Dr. Choudhary replied in the cross-examination that such redness cannot result due to scratching or cleaning the portion by the prosecutrix. Learned Counsel for the appellants strenuously argued that the version of the prosecutrix is not acceptable because had there been an incident as stated by her then she would have definitely suffered injuries on the back and other parts of the body including the private parts. He further argued that the hymen was found intact and it completely negatives the prosecutrix version about sexual intercourse with her. Learned Counsel for the appellants has drawn my attention to page 435 of the Book Glaister' s Medical Jurisprudence and Toxicology Edited by the late Edgar Rentoul and Hamilton Smith (Thirteenth Edition). It has been observed that when there has been forcible attempted penetration or complete penetration, the rupture of the hymen will be present as a rule and it will be invariably accompanied by some degree of, bleeding. In the case of infant or young child there may be a tear from the fourchette posteriorly to the rectum if an attempt has been made at penetration. It has also been observed in this book that both the character and extent of injury will depend upon the nature of the hymen, the extent of penetration and the amount of force used. The hymen remains unruptured in odd cases after coitus and during resultant pregnancy and remains intact until ruptured by the birth of the child, In such cases the hymen is of annular and distensilc type which permits the entry without rupture. Therefore, in my opinion, in cases of slight degree of penetration the hymen can remain intact and particularly in the ease of a young child because hymen is situated a tittle deep. Therefore, I am of the view that unruptured hymen do not always lead to the inference that forcible sexual intercourse was not committed with the prosecutrix. It shows that force was not used and it remained intact due to slight degree of penetration. Even the slight degree of penetration is sufficient to constitute the offence under Section 376, I,P.O. Taylor's Principles and Practice of Medical Jurisprudence Edited by A. Keith Marit (Thirteenth Edition) also deal this on page 7.5 that rupture of the hymen on first penetration is of course very common, but it is not inevitable, for the thin elastic hymen is quite capable of stretching to accommodate penetration. In the instant case, State Forensic Science Laboratory Chemical Report Ex.P 19 clearly mentions that human semen was detected in vaginal smear and swab, which amply proves the fact of penetration. The prosccutrix did not sustain injury on other parts of the body because she was not in a position to offer resistance and it is not established that she was thrown or laid on hard surface or thorny Place, Annu has slated that there were bushes at the place of occurrence but it does not convey that she was thrown or laid on a hard or thorny surface. It simply shows that bushes were surrounding the place of occurrence. Hence she did not suffer injuries on her back and the private parts.

12. Reliance has been placed on Suresh Chand v. The State of Haryana 1976 Cri LJ 452 (Punj & Har). In this case the age of the prosecutrix was 8 years. It was noticed that fourchette was lacerated, but hymen was not injured. The vaginal orifice was too small and did not even admit little finger. The medical officer was of the definite view that it was an attempt to commit sexual intercourse. The act of the accused, therefore, amounted only to an attempt to commit rape. But in the present case the age of the prosecutrix is 12 to 13, years and there is definite chemical examiner's report regarding presence of human semen in the vaginal swab and smear which take the case beyond an attempt only because it establishes an act of penetration and emission. Whereas in the above referred ease no semen was found on the vaginal swab by the chemical examiner. Therefore, the case cited before us is distinguishable from die present case

13. In the case of Das Bernard v. State 1974 Cri LJ 1098 (Goa, Daman & Din) the medical evidence was that the hymen was intact and there was congestion in the inner side of labia majora. The posterior commissural and fourchette were intact. The congestion of the vaginal wall outside the hymen and underneath the labia majora was reddish which was a fresh injury. The medical officer on the basis of the above indications drew the conclusion that an attempt to sexual intercourse was probably made to the extent of applying force upto level of' hymen. It was also opined by the medical officer that complete penetration was. ruled out as the hymen was found intact. The swab collected from the prosecutrix had no sperms according to the report of the chemical analyses. No semen was detected on the clothes of the prosecutrix. In the above state of affairs, it was held that the fact of penetration was not free from doubt in view of the medical evidence as well as the statement of the prosecutrix. In the instant case there is clearly a report of the chemical examiner that human semen was detected from the vaginal swab and smear. The prosecutrix has also clearly deposed about penetration. Hence the fact of penetration is proved in this case beyond reasonable doubt. The above referred case also stands on different footing and renders no help to the appellants.

14. I do not see any reason to discard the testimony of prosecutrix Annu and the statements of Om Prakash, Vijay Kumar, Suit Rukmani Devi and Rajendra Kumar. The learned trial Court has rightly held their statements trustworthy. There is no contradiction in the testimony of the prosecutrix and the medical evidence. I am of the view that the prosecution has proved beyond reasonable doubt on the basis of the evidence on record that both the appellants forcibly took Annu out of the lawful guardianship of her maternal grand parents and ravished her, thereby committed the offences under Section 363 and 376, Clause (2)(g) of the Indian Penal Code. Explanation 1 of Section 376, I.P.C. provides that when a woman is raped by one or more in a group of persons acting in furtherance of their common intention, each of the persons shall be deemed to have committed gang rape within the meaning of Sub-section (2) of the said Section. In the present case both the accused formed common intention to commit the said offence and in furtherance of the common intention they removed Annu out of the lawful guardianship of her grand parents and committed rape upon her. I do not find any infirmity in the impugned judgment and sentence passed against the appellants.

15. In the result, the appeal is hereby dismissed. Appeal dismissed.