Delhi High Court
Veer Bahadur vs State on 1 April, 1995
Equivalent citations: 1995IIAD(DELHI)228, 1995CRILJ3169, 1995(3)CRIMES181, 1995(33)DRJ261
Author: S.D. Pandit
Bench: S.D. Pandit
JUDGMENT P.K. Bahri, J.
(1) The appellant, Veer Bahadur, S/o Tula Bahadur, a native of Nepal, has been convicted of offences punishable under Sections 363, 366 and 376 of Indian Penal Code vide judgment dated May 28, 1991 of an Additional Sessions Judge and by subsequent order dated May 29, 1991, he has been sentenced to undergo rigorous imprisonment for life and to pay a fine of Rs.1,000.00 and in default to undergo rigorous imprisonment for one year under Section 376 Indian Penal Code . and has been sentenced to undergo rigorous imprisonment for three years and to pay a fine of Rs.500.00 and in default of payment of fine, to further undergo rigorous imprisonment for six months under Section 366 and further sentenced to undergo rigorous imprisonment for one year for an offence punishable under Section 363 of the Indian Penal Code with the directions that all substantive sentences shall run concurrently. He has come up in appeal in challenging his conviction and the sentences.
(2) Facts of the case,in brief, are that Ram Chandra, PW1, his wife Radha having four children i.e. one son and three daughters and the youngest being Keema aged 11 months were living in House No. 76 in Village Singalpur,Shalimar Bagh,Delhi at the relevant time. Ram Chandra is a rickshaw puller while his wife is also earning by running a beetle shoping wooden khokha in Wazirpur Industrial Area. The appellant is also married and having three children.He along with his wife were residing in a nearby house No.82. The appellant's wife was employed as a home guard while appellant is only a carpenter by profession. At the relevant time,the two children of the appellant were living in Nepal with their grand parents. The appellant was aged about 42 years at the relevant time.
(3) Raj Singh, PW3, is also a neighbour living in House No.80 in that area. He was also having a shop in front portion of his house. PW4 is Karam Chand who is a respectable person of the said area and is also a Pradhan in that village and was living in House No.52 in that village.
(4) It was a Dusshera day of 1989 and the date was October 10. The prosecution case is that Radha was alone with her youngest daughter at her house in the evening when her other children had gone to witness the Dusshera celebrations and her husband had not returned from his work and as it was getting late, Radha, leaving her daughter Keema in the house, had gone to call back her other children from Ag Block and the time was 7 P.M. At about 7.30 P.M, she is stated to have returned without her children being found and Raj Singh told her that appellant had taken her daughter Keema to his house and Radha immediately proceeded to the house of the appellant and found the door of the room closed. She pushed it open with her hand and saw her daughter Keema lying on the floor bleeding from her private parts and her daughter was crying and she also found appellant naked and she raised an alarm which attracted the neighbours in large number and she suspected that appellant had committed rape on her young daughter.
(5) S.I.PURAN Chand, PW8, was patrolling in that area along with Constable Bir Singh and had found the crowd collected at the house of Karam Chand and he proceeded to record the statement of Radha, Ex.PW2/A and had got registered the case against the appellant vide F.I.R. No.207/89 which was registered at 10.45 P.M. Ex.PW8/B is the copy of the F.I.R. He had prepared the site plan, Ex.PW8/C and had seized from the room of the appellant, a blood stained bedsheet, Ex.P-3, underwear of appellant, Ex.P-4, which was again blood stained and converted the same into sealed parcel vide recovery memo Ex.PW2/B. Ex.P-1 & P-2 are the clothes of the little girl. He arrested the appellant and got medically examined the appellant as well as the defiled little girl from the medical experts.
(6) At first, Keema was taken to Dr.B.K.Sharma in Civil Hospital, Rajpur Road, Delhi. He had found the little girl to be fibule child conscious and he found swelling in the vaginal outlet and also noticed discharge of water type from the vagina. He referred the said child for examination by a female doctor. He had examined the child at about 12.25 A.M. and prepared the M.L.C, Ex.PW5/A. (7) The child was taken to Hindu Rao Hospital and was examined by Dr.Neerja at about 1.20 A.M. She found the general condition of the child as fair and the child was conscious. She did not find any external injury except in the vaginal region. She found, on local examination, white discharge coming from entroitus. She noticed fresh torn hymen and small laceration seen on the right side of the hymen. She did not notice any bleeding at that time but found the injury to be fresh. She took smear of the vaginal discharge and sealed it.
(8) The appellant was got medically examined from Dr.Ashok Jaiswal, PW7, Civil Hospital, Rajpur Road, Delhi. He did not find any injury on the person of the appellant and opined that he was capable of performing sexual intercourse and gave his report, Ex.PW7/A. He had taken the smear from the gland penis of the appellant and had taken some pubic hair and converted them into sealed parcel.
(9) The case property was sent to C.F.S.L. and the reports, Ex.PA & Pb, were received. On the vest and the underwear of the child as well as on the underwear of the appellant and bed-sheet, human blood of 'A' group was found. Semen could not be detected on any of the exhibits. The offences have been brought home to the appellant by the learned Additional Sessions Judge on placing implicit faith in the testimony of four material witnesses, PW1 to PW4 and duly corroborated with the medical report of the girl.
(10) The appellant could not engage any counsel, so we provided him a counsel at the State expense Sh.Avasthy, on our request, had agreed to act as counsel for the appellant. He has addressed us in quite an elaborate manner with all the vehemence at his command in trying to convince us that it was a false case and in the alternative he had argued that keeping in view the medical evidence, it could not be a case of 376 Indian Penal Code . at all and at the most it could be a case under Section 354 Indian Penal Code . He has drawn our attention to various contradictions appearing in the statements of the material witnesses which, according to him, make them unreliable witnesses. He has urged that there was enmity between the appellant and the family of the little child and on that score the appellant has been involved in this false case so that the tenanted room of the appellant may be got vacated and Ram Chandra may get the tenancy of that room.
(11) Learned counsel for the State, Mr.P.S.Sharma, on the other hand, has argued that no convincing evidence is present on the record which could show that any enmity existed between the appellant and the family of the victim. He has urged that the testimony of mother of the girl stands duly corroborated with the testimony of Raj Singh, a neighbour, who is an independent witness who has no reason to depose falsely against the appellant. He has also urged that even the Pradhan of the village gives corroboration to the version of the prosecution.
(12) PW1, Ram Chandra, was not present at the time of occurrence. He deposed that on learning about the incident, he rushed to his house and time was about 7.30 P.M. and he had found his little daughter bleeding profusely from her private parts and appellant stood apprehended by the villagers including Raj Singh and Pradhan of the Village was trying to inform the police.
(13) In cross-examination, he deposed that he was plying the rickshaw even on that day and he did not remember who had given him the intimation and it took about 10 minutes in his reaching the house after getting the information. It was suggested to him that he wanted to shift to the room of the appellant which suggestion was denied by him. He denied that there had taken place any quarrel between him and the appellant at any time. The only contradiction which has been brought about in his cross-examination is that while in the F.I.R, it was recorded that he had on that day not gone for plying the cycle rickshaw but was sitting at the beetle shop of the family while in Court both he and Radha had deposed that in fact he was plying the rickshaw on that day and the shop was closed because of Dusshera. We do not find that it is such a material discrepancy which could shatter the core of his statement and the statement of Radha. Although, it was suggested to the witness that there took place a quarrel a year earlier between the appellant and this witness but he denied this fact. In cross-examination, it was not suggested as to what could be the reason for the two persons to quarrel.
(14) Then, we have the testimony of Radha, PW2, the mother of the victim. She narrated the facts as had been mentioned by her in the F.I.R. The only discrepancy which has appeared in her testimony is that at first, in Court, she did not say that when she returned after searching for her other children, Raj Singh had only told that some person had taken her daughter while in the F.I.R, she had mentioned that Raj Singh named the appellant as the person who took her daughter few minutes before. But in cross-examination, she pointed out that Raj Singh had indicated the house of the appellant when informing that her daughter had been taken by a person. So, as a matter of fact, there is no discrepancy in what she stated to the police in the F.I.R. and what she had deposed in the Court if one keeps her complete statement made in Court in view.
(15) Another discrepancy pointed out is that in the F.I.R, she had mentioned that she herself had pushed open the door of the room of the appellant while in Court she mentioned that certain persons had collected outside the house of the appellant and the room stood bolted and appellant did not open that door for about half an hour and when the people threatened to break open the door that the appellant opened the door and he was naked at that time. In cross-examination, it has come out that the appellant was in the process of putting on his underwear when the door was pushed open. It appears that the appellant has little sense of time. The question of people gathering outside the room of the appellant could have arisen only after Radha would have seen her daughter in the room of the appellant and had noticed her precarious condition and that would have, in normal course, prompted her to raise alarm and collect the people. But on the core of the prosecution case, her testimony is completely in consonance with the facts mentioned in the F.I.R. It has come out that in the adjacent room in the same house another tenant was living who was native of Bihar and Radha stated that that tenant was present in his room. However, police had not recorded statement of that person. He is not shown to be aware of the occurrence, so non- examination of that witness would not prove fatal to the prosecution version against the appellant.( See Srichand Vs State of Maharashtra, ) (16) It was suggested to her by the appellant that Raj Singh was collecting rent from various tenants including the appellant but she expressed ignorance about this fact. She denied that there had been any quarrel between the appellant and her family at any time. Again, suggestion given was that she and her husband wanted to have the room in occupation of the appellant for their own use and that is why the appellant had been falsely implicated in this case which suggestion, of course, was denied by the witness. It appears to be totally improbable that the appellant and his family members, who were living in one room accommodation, would have desired to exchange the room with the room of the appellant. Both the rooms were in tenancy and nothing has come out to show as to who was the landlord of the said rooms.
(17) PW3, Raj Singh, is an immediate neighbour and he duly corroborates the version of the prosecution. He also saw appellant taking the little child of Radha to his own room and he informed Radha about this fact and then on Radha raising an alarm, he also reached the place of the appellant and found the little girl lying on the floor on a sheet and bleeding from her private parts. He also saw the appellant in the process of putting on his own underwear. It has come out that on earlier occasion also, once he had noticed the appellant taking the child of Radha to his room but at that time nothing untoward happened. A neighbour playing with a child of another neighbour is not an offence or a suspicious circumstance. The question is as to whether the appellant, on the day of occurrence, had perpetrated this crime or not.
(18) Nothing substantial came from his cross- examination which should show that this Raj Singh had any animus against the appellant. It is pertinent to point out that no question was put to Raj Singh that he had any connection with the room in the tenancy of the appellant or he had ever collected the rent. It has not been even suggested as to who has been the landlord of appellant.
(19) PW4, Karam Chand, the Pradhan of the village, also corroborates the material facts when he deposed that on that day at that time the appellant, Raj Singh, Radha and other people came to his place and he saw blood on the thighs of the child and he also noticed blood on the child's clothes and he was told about appellant having raped the said child in his room. He intervened so that the appellant might not be given beating by the people. He witnessed the proceedings of the police and signed the recovery memos. It has come out in cross-examination that at the time of the occurrence, appellant's wife was not there and she was on her duty as home guard on account of Dusshera function. There is no suggestion given to any of the witnesses that anyone else was present in the appellant's room when appellant and the victim were seen in that room in that condition.
(20) From the statements of these witnesses, certain facts stand established beyond any shadow of doubt that appellant on that day had taken Keema, little daughter of Radha, to his room and soon after when Radha and Raj Singh came there, the little girl was found bleeding from her private parts and the appellant was found in the process of wearing his underwear and the bed-sheet and the clothes of the little girl were found to be blood stained and later on in the C.F.S.L. report, it was discovered that even the underwear of the appellant was blood stained although no semen was detected on the clothes of the appellant or of the victim or on the bed-sheet.
(21) It would only mean that perhaps appellant had not made any discharge from his penis. This tell-tale evidence brought out from the statements of the aforesaid witnesses amply proved that appellant had with intention to molest the little girl, had taken her to his room and thus, ingredients of the offence mentioned in Section 366 of Indian Penal Code . stood amply proved.
(22) The only question which remains to be decided is whether the appellant has been rightly convicted for an offence punishable under Section 376 Indian Penal Code . In order to hold appellant guilty of offence of rape, as described under Section 375 of the Indian Penal Code , the prosecution has to prove beyond any shadow of reasonable doubt that there had taken place even slightest penetration of the penis of the appellant in the vagina of the victim.
(23) DR.SHARMA had found some swelling on the vaginal outlet of the little child and had noticed some discharge from the vagina. At that time, the child was not bleeding. The lady doctor had found, on closure examination of the child, that there were fresh torn hymen and small laceration on right side of her hymen and injury was fresh. She also noticed white discharge coming out from her private parts. In cross-examination, she did say that it may be or may not be possible that this laceration in the hymen could be caused by inserting the finger. She opined that it was not necessary that the male organ must also receive some bruises, abrasion or laceration while inserting the same in the vagina of the child. She opined that injury on the right side of the hymen is possible by partial penetration of a male organ.
(24) The learned counsel for the appellant has drawn our attention to the Taylor's Principles and Practice of Medical Jurisprudence, Thirteenth Edition, pages 75 to 86 which pertain to the injuries which are commonly noticeable on the female victim in case of assault and rape. At page 75, the learned author has mentioned that rupture of hymen on first penetration is, of course, very common but it is not inevitable. Where there is hymeneal tearing, the extent and position of the tear must be noted. As some authorities hold that hymenal tears due to digital penetration tend to be posterior in position, whilst tears due to penile penetration tend to be posterolateral. But the author has opined that it is merely a matter of chance as to the exact location of a tear, for in both types of penetration, the main stretching force is taken on the posterior quadrant of the hymen. The learned author also opined that tears due to digital penetration are frequently incomplete in that they do not extend to the margin of the hymen, and the same can be said for tears due to the insertion of tampons while tears due to penile penetration are complete in that they extend to margin but even this situation is not constant and digital tears caused by full finger penetration can extend to the hymenal margin and conversely penile tears with only limited penetration may be incomplete.
(25) The learned author also opined that if there is gross disproportion between the penetrating penis and the vagina, then the tears may extend beyond that margin of the hymen to the vaginal walls or the perineal body. He also opined that extended injury such as this is also found both on digital and penile penetration in the case of very young children. Ultimately, the author opined that it is often difficult to differentiate between digital and penile penetration as the differential diagnosis must depend upon the extent of bruising, the elasticity of the hymen, and the size of the hymenal orifice.
(26) At page 83, the learned author further opined that there can be no doubt that an object of the size of an adult erect penis can pass through the pelvic outlet, and at the commencement of penetration, the penis tends to compress the labia both anteriorly and laterally, producing bruising of both the labia minor a and the labia majora for in the infant there is only poor separation between the labia and the amount of bruising would depend upon the force used in attempting penetration. The smaller and the younger the infant, the more widespread the injuries that will result from attempted or complete penile penetration. Bruising of the labia with extensive haematoma production affecting particularly the anterior half is very common.
(27) It was also observed at page 84 that digital penetration of the infant vagina produces less compression of the soft tissues and the pattern of injury is different and there is frequently some scratching or bruising of the labia and vestibule, but because the compression of the soft tissues is largely absent, there is little shearing force applied to the mucosa and the characteristic circumferential tears are absent. It is also mentioned by the author that both the nerve and blood supply to the area of the genitals is very good and the bleeding response to genital injury is again brisk and almost immediate although there may be a few seconds delay before overt bleeding is visible. This delay may be sufficient to prevent blood soiling of the penetrating object if prompt withdrawal is accomplished. At page 86, the author remarked that penile penetration into the vagina or the anus of a small child cannot be accomplished without considerable force, and this will very frequently result in some injury to the penis of the assailant.
(28) Keeping in view these observations of the learned author and also similar observation made by Modi in his Medical Jurisprudence and Toxicology and Parekh's book of Medical Jurisprudence and Toxicology, the learned counsel for the appellant has argued that it was not a case of penis penetration and at the most, it was the case of digital penetration and for that the appellant could have been convicted for an offence punishable under Section 354 Indian Penal Code .
(29) As noticed above, it is not absolutely necessary that when penetration of penis takes place in the vagina of an infant, there must appear injuries on the male organ. Even otherwise, even if it is to be assumed that the hymen of the child has been torn not because of penile penetration but has been torn because of digital penetration, even then, in the present case, it is proved beyond shadow of reasonable doubt that the appellant had committed rape on the child as even slight penetration of appellant's penis within the labia majora or the vulva or pudenda of the child is sufficient to bring home the offence to the appellant. The doctor had noticed swelling on the vagina of the child and the lady doctor had found hymen being torn and lacerated a little. The appellant was found in naked condition and so also the little child when he was surprised by Radha when she pushed open the door of his room. So, keeping in view these facts, it has to be held that the appellant had committed rape on the said infant child and had taken this child to his room with such intention.
(30) In State of Uttar Pradesh Vs. Babul Nath, 1995 (1) C.C.Cases 17, the Supreme Court has held that to constitute the offence of rape, it is not at all necessary that there should be complete penetration of the male organ with emission of semen and rupture of hymen, even partial or slightest penetration of the male organ within the labia majora or the vulva or pudenda with or without any emission of semen or even an attempt of penetration into the private part of the victim would be quite enough for the purpose of Section 375 and 376 Indian Penal Code . It was further held that it was quite possible to commit legally the offence of rape even without causing any injury to the genitals or leaving any seminal stains. In the said case, the child was of five years and certain injuries were found on her private part including her hymen being completely torn and there was laceration on all sides of the vulva.
(31) So, keeping in view these facts, we hold that Additional Sessions Judge was right in convicting the appellant of offence of rape under Section 376 Indian Penal Code . Mere fact that at the time the underwear of the appellant was taken into possession, only white patches were seen by the police and the witnesses and no blood stain was seen on the said underwear by naked eye would not mean that the appellant had not perpetrated this crime of having some slight penetration of his penis in the private part of the victim and also indulging in digital penetration.
(32) We, hence, affirm the conviction of the appellant and also the sentence awarded to the appellant for offences punishable under Section 366 and 376 Indian Penal Code . but we set aside the sentence awarded under Section 363 because offence under Section 366 is aggravated offence and covers the offence under Section 363 and dismiss the appeal with above modification.