Rajasthan High Court - Jaipur
Madan Lal vs State on 14 August, 2012
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR. ** S.B.CRIMINAL APPEAL NO.1004/2008 (Madan lal VS. State) Date of Judgment : 14/08/2012 HON'BLE DR.JUSTICE SMT.MEENA V.GOMBER Mr.Harendra Singh Sinsinwar,for the appellant. Mr.Sanjeev Kumar Mahala, Public Prosecutor for the State.
REPORTABLE The appellant-Madan Lal has preferred this appeal against the judgment and order dated 22.4.2008 passed by learned Special Judge, SC/ST (POA) Act Cases, Sikar in special case no. 262/2006 whereby he was convicted and sentenced as under:
(i)03 years' rigorous imprisonment along with fine of Rs.200/- in default whereof to further undergo 15 days' additional simple imprisonment for offence under Sec.363 IPC;
(ii)05 years' rigorous imprisonment along with fine of Rs.300/- in default whereof to further undergo one month's additional simple imprisonment for offence under Sec.366A IPC;
(iii)07 years rigorous imprisonment along with fine of Rs.500/- in default whereof to further undergo two months' additional simple imprisonment for offence under Sec.376 IPC; and
(iv)03 years rigorous imprisonment along with fine of Rs.100/-, in default whereof to further undergo 15 days' additional simple imprisonment for offence under Sec.3(i)(xii) of SC/ST Act.
All the sentences were ordered to run concurrently and benefit of Section 428 of the Code of Criminal Procedure (herein-after for short referred to as 'the Code') Briefly stated facts of the case are that on the written report Ex.P-5 submitted by complainant Kana Ram at P.S. Khatu Shyamji on 26.9.2006 at about 4.10 pm to the effect that accused Madanlal, who was a tenant in the neighbouring house, abducted his minor girl Renu on 23.9.2006 at about 12 in the afternoon. Case was registered for offences under Sections 363 & 366 IPC and formal FIR No.101/2006 Ex.P-6 was chalked.
During the course of investigation, his daughter Renu was recovered vide Ex.P7 from Guna (M.P.) and was handed over to her mother PW-11 Sitadevi vide Ex.P4. Her statements (Ex.D5) under Section 164 of the Code were recorded, wherein she deposed her age as 13 years. Her school record with regard to her age was seized which showed her date of birth as 12.12.1992. She was medically examined by gynecologist who prepared report Ex.P12. Her oscillation test for determination of age was conducted and her age as per radiological report Ex.P.14, was found to be more than 15 and less than 17 years. The appellant was arrested vide Ex.P1. He was medically examined and was found capable of performing sec vide Ex.P15.The clothes of the prosecutrix as also vaginal smear, vaginal swabs etc were sealed and sent for forensic laboratory report. The clothes of accused were also seized vide Ex.P2. FSL & serological report Ex.P19 & Ex.P20 were recovered and after usual investigation, police filed charge-sheet against the accused appellant for offences under Sections 363, 366/366A, 376 IPC and under Sec.3(i)(xii) of SC/ST Act.
The case being triable by Sessions, was committed and transferred to the Court of Special Judge, who, after hearing the charge arguments, read over the charges for offences mentioned herein-above to the appellant, which were denied by him and trial was claimed.
In order to prove its case, prosecution examined as many as 19 witnesses and exhibited 21 documents. After the prosecution evidence was completed, statements of appellant under Section 313 of the Code were recorded wherein he alleged false implication, but did not lead any defence. He, however, exhibited 10 documents as Ex.D1 to Ex.D-10. Learned trial court, after hearing the parties, and on the basis of record, convicted and sentenced the appellant for the offences in the manner mentioned herein-above.
It is this judgment which has been assailed by way of present appeal by the appellant on following grounds :-
i) First submission advanced by the learned counsel for the appellant was predicated to the delay in filing the FIR. It was submitted that the report was lodged on 26th September for the incident alleged to have occurred on 23rd September 2006 and said delay had not been explained.
ii) Second submission advanced by the learned counsel for the appellant was that the learned trial court has committed error in holding the prosecutrix as minor because as per her oscillation test, she is opined to be 15 to 17 years, which, with a margin of two years makes her major.
iii) Third submission made by the learned counsel for appellant was that the prosecutrix was a consenting party and went of her free will.
iv) The most powerful submission made by the learned counsel for the appellant was predicated on the MLC of Kumari Renu and the testimony of PW-13 Dr. Sushila Sharma.
Learned counsel urged that the MLC of Kumari Renu positively showed hymen being intact. He further urged that the MLC as also the testimony of PW-13 equally categorically show that no fresh bleeding was nearing the vagina or near the hymen. No external injury whatsoever was noted in or around the private parts of Kumari Renu.
Referring to the medical jurisprudence, learned counsel highlighted that in the case of adolescent girls, narrowness of the vaginal canal makes it inevitable that before the hymen is torn, the male organ has to inflict blunt forceful blows on the labia majora and vaginal canal but here there was no fresh injury on any of them which shows that the appellant had been falsely implicated.
Per contra, learned Public Prosecutor supporting the impugned judgment, argued that there is ample evidence on record i.e. statements of prosecutrix PW-7 Renu, her statements recorded under Sec. 164 of the Code read along with statements of PW-13 Dr.Sushila Sharma, and other formal evidence of PW-17 Birbal, FSL report etc. go to prove the case against the appellant.
So far as delay in lodging the report is concerned, learned Public Prosecutor, appearing on behalf of State, argued that it was a matter of a young girl and, therefore, every parent tries to search the girl with the relatives etc. and that the delay in this case has been explained. Moreover, three days' delay in rape cases cannot be said to be inordinate and lodging of FIR with delay does not affect the cases of such offences.
As regards the age of prosecutrix, it was submitted by learned Public Prosecutor that best evidence can be the birth certificate but in absence thereof, it could be school certificate and if that is not available, then only opinion of doctor is to be seen. In this case, school certificate of prosecutrix has been produced and proved by PW-4 Minakshi Pareek, Head Mistress alongwith S.R.Register Ex.P9, and admission form Ex.P-10. In school record, date of birth of prosecutrix is shown as 12.12.1992, therefore, on the date of incident i.e. 23.9.2006, prosecutrix was less than 14 years and thus prosecutrix, being minor, even if consented, was immaterial in the eye of law.
I have heard learned counsel for the parties, perused the impugned judgment and considered the rival arguments advanced by both the sides.
As per prosecution, appellant who was a tenant in the neighbouring house of complainant Kana Ram (father of prosecutrix), took away the prosecutrix Renu with him on 23.9.2006 at about 12 noon after enticing her. Prosecutrix was minor at that time. He kept the prosecutrix with him till 27th September 2006. During this period he had sexual intercourse with her against her wishes. Thus the appellant has committed offence under Sections 363/366A/376 IPC.
The prosecutrix Renu was examined in the Court as PW-7. Her statements were also recorded under Section 164 of the Code of Criminal Procedure (hereinafter for short referred to as 'the Code'). She was medically examined by PW-13 Dr.Sushila Sharma Gynecologist and her clothes as also vaginal swabs were seized for forensic report. FSL and Serological reports Ex.P19 & Ex.P20 showed negative reports. Though semen on the underwear of the appellant was found. Medical report Ex.P12 was prepared. The accused was also examined for potency test which was found positive. The oscillation test of the prosecutrix was conducted and as per ragiological report her age was determined between 15 to 17 years.
Learned Trial Court relying on the statements of prosecutrix PW-7 Renu, Dr.Sushila Sharma PW-13, her mother PW-11 Sita Devi, father PW-3 Kanaram, PW-4 Meenakshi Pareek, Head Mistress held that the prosecutrix was minor and she had been enticed by the accused for committing sexual intercourse and that the accused did commit rape upon her.
Before proceeding further, it is deemed necessary to deal with the submission of learned counsel for appellant with regard to delay in lodging the FIR. The prosecutrix, as per PW-3 Kana Ram, was found missing around 12 noon on 23.9.2006 and the parents looked for her in their relatives' houses and thereafter they lodged the report on 26.9.2006. Learned trial court has dealt with this argument in its judgment and rejected on the ground that Hon'ble Apex Court has, time and again, held that delay in lodging FIR is immaterial in rape cases.
In my opinion also, the submission advanced by learned counsel for appellant overlooks the fact that in India parents of young girls are slow and hesitant to complain. The reluctance to go to the police is because of society's attitude in such cases which casts doubts and shame upon the prosecutrix rather than comfort or sympathies her. Therefore, delay in lodging complaint in such cases does not necessarily indicate that the complainant 's version is false.
Thus in my considered view, learned trial court has rightly rejected this argument.
Second submission was with regard to the age of the prosecutrix. According to the learned counsel, as per medical report she was at the verge of maturity and learned trial court has ignored this fact.
On the basis of record, learned trial court has held the age of the prosecutrix to be less than 16 on the date of commission of offence. Reliance was placed by learned trial court on the statements of PW-4 Minakshi Pareek, who was the Head-Mistress of the school where prosecutrix studied. Learned trial court has relied on the school record with regard to the age, although as per her oscillation test, statements of Dr. Sushila Sharma PW-13 and Dr. B.L. Chaudhary PW-18, her age was determined above 15 years and less than 17 years. It is cardinal principle of law with regard to medical opinion that the age can be two years on the either side, therefore, age determined on the basis of medical examination has to be taken from the side which gives benefit to the accused. But when there is a documentary evidence with regard to the age, then the age entered in the school register, at the time of admission, is said to be the best proof for the age of a person. There was no reason to disbelieve the documentary evidence which pertained to July 2002 and which has been proved by PW-4 Minakshi Pareek, Head-Mistress. When the school record is available, age determined by the medical officer becomes secondary.
In these circumstances, on the basis of school record, age of the prosecutrix at the time of commission of offence has been correctly determined by the learned trial court as less than 16 years and in the case of a girl of age less than 16 years, if taken out of his/her guardianship without consent, offence under Section 363 IPC is made out and in such a situation, consent of the prosecutrix does not matter and in this case the legal guardianship was of her parents as she was less than 16 years and, therefore, without their consent if the prosecutrix accompanied the accused appellant, offence under Section 363 IPC was complete. Therefore, learned trial court has not committed any error by recording the finding of guilt of accused appellant.
In view of Section 361 IPC, learned trial Judge was also of the view that appellant had taken away the prosecutrix with him from the protection of her lawful guardian with intention to marry her and knowing fully well that she would be subjected to sexual intercourse, therefore, he was liable to be convicted under Section 363/366A IPC as well does not, in my considered view warrant interference.
The learned Trial Court has also found the appellant guilty of offence under Section 3(i)(xii) of SC/ST Act for being in a position to dominate the will of the prosecutrix Renu (who belongs to the said caste) and for using that position to exploit her sexually. In the light of foregoing discussion with regard to the evidence of PW-7 and other related evidence, I concur with the view taken by the learned Trial Court in this regard. Hence the conviction and sentence awarded under Sec.3(i)(xii) SC/ST Act does not warrant any interference.
So far as other argument with regard to offence under Section 366/366A and 376 IPC is concerned, age of the prosecutrix has been held to be less than 16 at the time of offence. Kumari Renu, prosecutrix was examined as PW-7. She deposed that on 23.9.2006 at about 12.30 night the accused Madanlal who was their next door neighbour took her under the threat of life of her parents from Khatu Shyamji to Jaipur, then to Kota, to Baran and thereafter to Guna and committed rape upon her in his brother's house at Guna. The prosecutrix has categorically stated that first of all the appellant took her to his sister's house in Guna and when she did not allow him to stay, he left for brother's house leaving behind the prosecutrix with the sister and then in the evening he came back and took her to brother's house. The appellant also slept in that room and committed sexual intercourse against her wishes. It is on her shrieks that Guna police had been informed and on receipt of information Khatu Shyamji Police went to Guna and brought the prosecutrix and the accused to Khatu Shyamji on 27.9.2006. The prosecutrix was medically examined on 28.9.2006. PW-13 Dr.Sushila Sharma, gynecologist examined her and prepared report Ex.P-12, found her hymen was intact. No injury was found on Labia majora and minora. Vagina could admit one finger with difficulty. Vaginal wall or vulna did not have any injury. Nor was there any injury present on the Private parts or other parts of the body. No fresh vaginal bleeding was seen and the prosecutrix is reported to have been menstruating since preceding three days and the menstruating blood stains were found over the vagina.
In the gynecologist's opinion the prosecutrix was not used to the act of sexual intercourse. With regard to recent act of sexual intercourse, the opinion was kept pending till the receipt of FSL report. Ex.P-19 FSL report and Ex.P-20 Serological reports gave negative reports as only semen was found on the underwear of the accused. As per Ex.P-3 recovery memo of prosecutrix, she was only wearing Salwar, Jumper (Kamiz) and Chunni. It is specifically mentioned in Ex.P-3 "????????????????????????????????|" It is also clear from Ex.P-2 that the underwear along with baniyan of accused were seized. The heading note of Ex.P-2 reads as under:
"???? ????? ?? ????? ? ?? ?????? ???? ??? ??? ???????? ?????? S/o ????? ...... ???? "
SHO, PS- ???? ???????
.... ......
Thus item No.4 from packet 'B' shown as Chaddi in FSL report Ex.P-19 on which human semen was detected, is that of accused and not of the prosecutrix as no underwear (Chaddi) was being worn by her. Ex.P-19 further shows that no semen was found on articles I, 2 & 3 (Salwar Jumper & Chunni of Prosecutrix) and 5. Other exhibits from NIL 1 packet S.No.6 to 12 which were sent to serology division, gave negative results as shown in Ex.P-20.
In these circumstances the finding of learned Trial Court that semen was found on the underwear of prosecutrix is against the record. The learned Trial Court, while recording finding of conviction of appellant for offence under Section 376 IPC rejected the argument of learned counsel for the accused that prosecutrix's statements were not corroborated by medical evidence, in the ground that if the testimony of prosecutrix is otherwise reliable, does not need any corroboration. Learned Trial Court also rejected this argument referring to this court's decision reported in RCC 2000 page 1313 titled as Balram Vs.State of Rajasthan wherein it was held that in case of adolescent girls it is not necessary that hymen should rupture. The argument of learned counsel for appellant was that it is true that as per medical jurisprudence the hymen in case of adolescent girls is situated posteriorly and is placed higher up in the vaginal canal, which is narrow and therefore in the case of adolescent girls, narrowness of vaginal canal makes it inevitable that before the hymen is torn, the male organ has to inflict blunt forceful blows on the Labia Majora, minor and vaginal canal but here there was no injury to any of them. According to him no vaginal bleeding or injury to any private parts or any body part was found. In these circumstances medical evidence is inconsistent with the evidence of prosecutrix and therefore the prosecution cannot be said to have proved its case beyond reasonable doubt. Hence the benefit of doubt should be given to the accused.
I have considered these arguments in the light of Medical Jurisprudence. Medical Jurisprudence (15th Edition) by Dr.R.M.Jhala and V.B.Raj at page 469 opines as under:
In young girls under the age of 12 years the hymen is situated relatively more posteriorly (in backward position) and higher up in a narrow vaginal canal. This prevents the hymen from coming in contact with the male organ in forceful penetration of the organ. This also saves the hymen from bearing the brunt of the blow and thus it escapes injury. Thus absence of injury to hymen in a girl under 12 years does not rule out the act of rape.
Labia Majora Next to hymen in positive importance but more than that in frequency are the injuries on Labia Majora. These viz., Labia Majora are the first to be encountered by the male organ. They are subjected to blunt forceful blows, depending on the vigour and force used by the accused and counteracted by the victim. In case of girl under 12 years, where examination of hymen may not prove useful, examination of Labia Majora give conclusive evidence. The narrowness of the canal makes it inevitable for the male organ to inflict blunt forceful blows on the Labia. Such blows invariably lead to contusion, because of looseness and vascularity. The interesting feature of such contusion is its vividness especially on the side it forms inner wall of vagina. Against the pink background of the mucous membrane, dark red contusion is visible even on initial inspection.
Thus, Medical Jurisprudence evidences that in adolescent girls the hymen is situated relatively more posteriorly and for said reason there is a possibility of rape being committed without the hymen being torn; the converse whereof would be that if the hymen of an adolescent girl is torn due to rape, the penetration has to be a deep penetration. The Medical Jurisprudence guides that the Labia Majora are the first to be encountered by the male organ and they are subjected to blunt forceful blows, depending on the vigour and the force used by the accused and counter acted by the victim, contusion being evident to the naked eye. Dr. Sushila Sharma PW-13 who examined Kumari Renu on 28.9.2006, found no injuries on Labia Majora, Vaginal Canal and around the hymen and hymen was intact.
In the case in hand, the prosecutrix has been proved to have been enticed on 23.9.06 around 12.00 Noon and she has been recovered and brought from Guna to Khatu Shyamji on 27.9.2006, and her medical examination was conducted on 28.9.2006. According to the statements of prosecutrix PW-7 Renu, she was taken first from Khatu Shyamji to Jaipur, from Jaipur to Kota, Kota to Baran and then Guna (by bus only), and thereafter from Guna to the appellant's sister house and on being scolded by her, the appellant left the sister's house and went to the brother's house and came in the evening to the sister's house to take her to brother's house. In her statement, she has come with the case that she slept one night to the sister's house; meaning thereby that she must have slept on 24.9.2006 in the sister's house and on 25.9.2006, she has been taken to the brother's house and she has deposed that appellant committed sexual intercourse in the brother's house on that night, and on her shrieks, police was informed by somebody and they both were taken to Guna police. This establishes that offence of rape upon her must have been committed on 25.9.2006 and according to Medical Jurisprudence & Toxicology 17 Edition, page 355 Modi and also as held in 1995 Cr.L.R. 676 (Jagdish Prasad Vs. State) at page 681 as under:
In case of a girl less than 14 years of age the distensibility of the vaginal orifice has to be taken in view. If penetration takes place in case of girl of such an age, then there can be expected to be wide-spread damages of the fourchette, hymen libia majora, libia minor, vulva and vaginal canal Further as per Medical jurisprudence :
It is impossible to conceive the forcible intercourse should take place in a child without bruising, effusion of blood, or a laceration of the private part. The size of male organ must necessarily cause some local injury in an attempt to enter the vagina of a child. If violation takes place within 2 or 3 days appearance as presented by part may be as follows:
(a) Reddening or frank inflamation with abrasion or tearing of the lining-membrane, introitus or of the vagina.
(b) Mucupurluent discharge from the vagina of a yellowish or greenish-yellow colour, staining the clothing: the urethra may possibly share in the inflamation.
(c in recent case blood may be cozing from the injured parts or clots of blood may be found in the vulva.
(d) the hymen may be entirely destroyed or may show laceration:- Tylor's Principal and Practice of Medical Jurisprudence 12th Edn.page 60.
The examination of hymen and its state of injury is the most reliable evidence in the rape case. According to medical jurisprudence and medical science Hymen is a fold of skin stretching across two walls of the vagina. It has its physiological and anatomical variations but almost and always present in some form or other in the virgin and CONGENITAL absence of the hymen is very rare thus intact hymen (virgo intacta) is usually a classical sign of virginity- (Sexual offence: Medical Jurisprudence & Toxicology at page 430 HWV Cox) In these circumstances, it is clear that the medical evidence with regard to commission of rape is inconsistent with the evidence of prosecution. Therefore, it is found that the reasoning of learned Trial Judge given in this regard has ignored the features in the evidence as noted by this court herein above. Therefore, the finding of conviction recorded by learned Trial Court with regard to offence punishable under Sec.376 IPC is not sustainable. However the ingredients of offence of committing assault to outrage the modesty of a woman is made out. Hence appellant is held guilty of offence punishable under Sec.354 IPC.
In view of foregoing discussion, the appeal filed by appellant is partly allowed. The conviction and sentence awarded to the appellant for offence under Section 376 IPC is set aside and the appellant is acquitted of offence under Section 376 IPC. Instead he is found guilty for offence punishable under Sec.354 IPC and is sentenced to three years' and a fine of Rs.2000/- in default to further undergo one month's simple imprisonment. All the sentences to run concurrently.
The appellant's conviction and sentence awarded by learned Trial Court for offences under Section 363/366A IPC and Sec.3(i)(xii) of SC/ST Act are upheld.
As per the nominal roll the appellant Madanlal has already suffered incarceration of 5 years 10 months and 16 days. He shall be released forthwith, if not required in any other case. The appellant Madan Lal, on being released from jail, would furnish bail bonds in terms of Section 437A Cr.P.C. before the Trial Court in the sum of Rs.30,000/- with two sureties of Rs.15,000/- each to the satisfaction of the Trial Court.
Copy of this order be sent to the appellant Madanlal through the Superintendent of concerned Jail.
(Dr.MEENA V.GOMBER),J.
Sandeep/-
[All corrections made in the judgment/order have been incorporated in the judgment/order being emailed.] Deepankar Bhattacharya PS