Madhya Pradesh High Court
Vinod vs The State Of M.P. on 29 June, 2017
Author: G.S. Ahluwalia
Bench: G.S. Ahluwalia
1 Cr.A. No. 73/2005
HIGH COURT OF MADHYA PRADESH
BENCH AT GWALIOR
SINGLE BENCH
PRESENT:
HON'BLE MR. JUSTICE G.S. AHLUWALIA
Criminal Appeal No. 73/2005
Vinod
-Vs-
State of M.P.
______________________________________________
Shri Pawan Vijaywargiya, Counsel for the appellant.
Shri Girdhari Singh Chauhan, Public Prosecutor for
the respondent/State.
______________________________________________
JUDGMENT
(29/06/2017) This appeal under Section 374 of Cr.P.C. has been filed challenging the Judgment and Sentence dated 11-1- 2005 passed by Shri V.P. Singh, 2nd A.S.J. (Fast Track), Sheopur in Sessions Trial No. 310/2004 by which the appellant has been convicted under Section 376(2)(f) of I.P.C. and has been sentenced to under the rigorous imprisonment of 10 years and a fine of Rs. 2000/- with default imprisonment.
The necessary facts for the disposal of the present appeal in short are that on 10-11-2003, the committed rape on prosecutrix aged about 5 years.
According to the prosecution story, the prosecutrix, aged about 5 years had gone to purchase chocolate, 2 Cr.A. No. 73/2005 where she met with a person, who took her on his cycle near the canal, and committed rape on her. The prosecutrix came back and was crying. She informed her father about the incident. The F.I.R. was lodged and the prosecutrix was sent for medical examination. The statements of the witnesses were recorded, but as the police failed to ascertain the identification of the accused, therefore, closer report was filed. Subsequently, on the basis of the statements of Golu, Santosh, Vishnu Kumar, Salim, Girraj Prasad and Abdul, the matter was further investigated. The appellant was arrested and on his discloser statement, one cycle was seized. The appellant was got medically examined and after completing the investigation, the police filed the charge sheet against the appellant.
The Trial Court by order dated 6-12-2004, framed charge under Section 376(2)(f) of I.P.C.
The appellant abjured his guilt and pleaded not guilty.
The prosecution in order to prove its case examined, Dr. Sheela Kushwaha (P.W.1), R.P. Goyal (P.W.2), Gotu (P.W.3), Santosh (P.W. 4), Prosecutrix (P.W. 5), Vishnu (P.W.6), Indra (P.W.7), D.S. Parihar (P.W.8), Dr.A.K. Garg (P.W.9), and Y.S. Gurjar (P.W.10). The appellant did not examine any witness in his defence.
Dr. A.K. Garg (P.W.9) has stated that a Board was constituted by Civil Surgeon, to ascertain the age of the prosecutrix. Dr. A.K. Dixit, Dr. S.K. Saxena were also the members of the Board. After examination, the age of the 3 Cr.A. No. 73/2005 prosecutrix was found to be less then 14 years and from physical appearance, the prosecutrix appeared to be 5-6 years. The report is Ex. P.12 and x-ray plate is Ex. P.13.
Dr. Sheela Kushwaha (P.W.1) has stated that She had medically examined the prosecutrix. On medical examination, tenderness and redness was found around and inside the private part of the prosecutrix. Injuries on Vulva, Vaginal wall and over whole private part were found which were caused by hard and blunt object within 24 hours. The M.L.C. Report of the prosecutrix is Ex. P.2.
Thus, from the evidence of Dr. Sheela Kushwaha (P.W. 1) and Dr. A.K. Garg (P.W.9), it is clear that the prosecutrix was below the age of 14 years and on physical appearance, She was appearing to be aged about 5-6 years, and on medical examination, injuries were found on the private part of the prosecutrix. Thus, it is clear that the prosecutrix was subjected to sexual assault.
Now, the moot question is that whether the appellant has committed the offence under Section 376(2)(ch) of I.P.C. or not?
Gotu (P.W.4), Santosh did not support the prosecution case and were declared hostile. They were cross examined in detail by the public prosecutor, however, nothing could be elicited from their cross examination, which may corroborate the prosecution story.
Prosecutrix (P.W.5) has identified the appellant in the Court as per the person who had committed rape on her. It is stated by this witness that the appellant took her to a distant place on his motor cycle and removed her 4 Cr.A. No. 73/2005 undergarments and also removed his undergarment and lie down on the prosecutrix. He had also tried to insert something in her private part. As the blood started oozing out from the private part, therefore, the appellant brought her back to her house. She went along with her father to lodge the F.I.R. She was sent for medical examination. She was cross examined and in cross examination, she again said that it was the appellant who had committed offence with her.
Vishnu (P.W. 6) is the father of the prosecutrix. He has stated that his daughter had gone to a shop to purchase chocolate at about 12 P.M. He came back to his house at about 2:30 P.M. and the prosecutrix and his wife were crying and lot of persons had gathered there. The prosecutrix told him that one person had took her and also noticed that blood was oozing out from the private part of the prosecutrix. However, the prosecutrix did not inform that who had taken her. A written complaint Ex. P.7 was made by him and the F.I.R. is Ex. P.8. The spot map Ex. P.6 was prepared. The cloths of the prosecutrix were seized by seizure memo Ex. P. 9. This witness was cross examined. Indra (P.W. 7) has also corroborated the evidence of Vishnu (P.W. 6) and the prosecutrix (P.W.5). She has specifically stated that the prosecutrix came back to the house and she was crying and blood was coming out from her private part and her cloths were stained with blood. She was told by the prosecutrix that when She had gone to purchase chocolate, at that time, She was sexually violated by one person. The information of the 5 Cr.A. No. 73/2005 incident was given by this witness to the villagers and her husband. D.S. Parihar (P.W. 8) and Y.S. Gurjar (P.W. 10) have investigated the case.
Thus, the entire prosecution story depends on the solitary evidence of the prosecutrix (P.W.5). The fact that the prosecutrix, immediately after coming to the house, informed her mother, namely Indra (P.W. 7) and her father, Vishnu (P.W.6), had informed that some body has sexually violated her, coupled with the fact that in medical examination, it was found by Dr. Sheela Kushwaha, that by some hard and blunt object, injuries were caused on the private part of the prosecutrix, it is clear that the prosecutrix was subjected to rape/sexual violation by some one.
Another question for determination is that whether the appellant had committed rape on the prosecutrix or not?
In M.L.C. Report Ex. P.2, Dr. Sheela Kushwaha (P.W.1) had stated that on opening of vagina, hymen was found intact. Thus, it is clear that the object which was inserted inside the private part of the prosecutrix did not reach to the hymen, therefore, the same was found intact. If the evidence of the prosecutrix (P.W.5) is considered, then it is clear that She has specifically stated by her that after lying down on her, the appellant inserted something in her private part and the blood started oozing out. Thus, it is clear that immediately after something was inserted inside the private part of the prosecutrix, blood started oozing out. As the appellant had already removed his 6 Cr.A. No. 73/2005 undergarments and had also removed the undergarment of the prosecutrix and was lying on the prosecutrix, it is clear that the appellant had inserted his male organ inside the private part of the prosecutrix. As the prosecutrix is aged about 5-6 years, therefore, only slight penetration could take place and the blood started oozing out, therefore, the hymen was found intact.
In order to commit the offence of rape, complete penetration of the male organ of the accused is not necessary and slight penetration would be sufficient to make out a case under Section 376 of I.P.C. The Supreme Court in the case of Aman Kumar Vs. State of Haryana reported in (2004) 4 SCC 379 has held as under :
7. Penetration is the sine qua non for an offence of rape. In order to constitute penetration, there must be evidence clear and cogent to prove that some part of the virile member of the accused was within the labia of the pudendum of the woman, no matter how little (see Joseph Lines, IC&K 893). It is well known in the medical world that the examination of smegma loses all importance after twenty-four hours of the performance of the sexual intercourse. [See S.P. Kohli (Dr) v. High Court of Punjab and Haryana (1979) 1 SCC 212 ] In rape cases, if the gland of the male organ is covered by smegma, it negatives the possibility of recent complete penetration. If the accused is not circumcised, the existence of smegma around the corona gland is proof against penetration, since it is rubbed off during the act. The smegma accumulates if no bath is taken within twenty-
four hours. The rupture of hymen is by no means necessary to constitute the offence of rape. Even a slight penetration in the vulva is sufficient to constitute the offence of rape and rupture of the hymen is not necessary. Vulva penetration with or without violence is as much rape as vaginal penetration. The statute merely requires evidence of penetration, and this may occur with 7 Cr.A. No. 73/2005 the hymen remaining intact. The actus reus is complete with penetration. It is well settled that the prosecutrix cannot be considered as accomplice and, therefore, her testimony cannot be equated with that of an accomplice in an offence of rape. In examination of genital organs, state of hymen offers the most reliable clue. While examining the hymen, certain anatomical characteristics should be remembered before assigning any significance to the findings. The shape and the texture of the hymen is variable. This variation, sometimes permits penetration without injury. This is possible because of the peculiar shape of the orifice or increased elasticity. On the other hand, sometimes the hymen may be more firm, less elastic and gets stretched and lacerated earlier. Thus a relatively less forceful penetration may not give rise to injuries ordinarily possible with a forceful attempt. The anatomical feature with regard to hymen which merits consideration is its anatomical situation. 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. Further, examination of the female for marks of injuries elsewhere on the body forms a very important piece of evidence. To constitute the offence of rape, it is not necessary that there should be complete penetration of the penis with emission of semen and rupture of hymen. Partial penetration within the labia majora of the vulva or pudendum with or without emission of semen is sufficient to constitute the offence of rape as defined in the law. The depth of penetration is immaterial in an offence punishable under Section 376 IPC.
Thus, it is clear that the evidence of the prosecutrix finds full corroboration with the medical evidence.
The next question for determination is that whether the appellant had committed rape on the prosecutrix or 8 Cr.A. No. 73/2005 not?
In the F.I.R. or in the case diary statements of the witnesses, it is clear that some unknown person had committed rape on her. The identification of the appellant is based on his identification by the prosecutrix (P.W. 5) in the Court. The police did not file any document to show that the appellant was ever put for Test Identification Parade. Now the question is that whether in absence of T.I.P. by police, whether the identification of the accused in the Court can be relied upon or not?
The Supreme Court in the case of Prakash Vs. State of Karnataka reported in (2014) 12 SCC 133 has held as under :
14. Two types of pre-trial identification evidence are possible and they have been succinctly expressed in Marcoulx v. R. (1976) 1 SCR 763 (Can SC) by the Supreme Court of Canada in the following words:
"An important pre-trial step in many criminal prosecutions is the identification of the accused by the alleged victim. Apart from identification with the aid of a photograph or photographs, the identification procedure adopted by the police officers will normally be one of two types: (i) the show up--of a single suspect; (ii) the line-up presentation of the suspect as part of a group."
14.1. With reference to the first type of identification evidence, the Court quotes Prof. Glanville Williams from an eminently readable and instructive article in which he says:
"... if the suspect objects [to an identification parade] the police will merely have him "identified" by showing him to the witness and asking the witness whether he is the man. Since this is obviously far more dangerous to the accused than taking part in a parade, the choice of a parade is almost always accepted." 1963 Cri Law Review 479 9 Cr.A. No. 73/2005 14.2. With reference to the second type of identification evidence, Prof. Glanville Williams says:
"Since identification in the dock is patently unsatisfactory, the police have developed the practice of holding identification parades before the trial as a means of fortifying a positive identification.... The main purpose of such a parade from the point of view of the police is to provide them with fairly strong evidence of identity on which to proceed with their investigations and to base an eventual prosecution. The advantage of identification parades from the point of view of the trial is that, by giving the witness a number of persons from amongst whom to choose, the prosecution seems to dispose once and for all the question whether the defendant in the dock is in fact the man seen and referred to by the witness.1963 Cri Law Review 479 14.3. A similar view was expressed by the Canadian Supreme Court in Mezzo v. R. (1986) 1 SCR 802 (Can SC)
15. An identification parade is not mandatory (Ravi Kapur v. State of Rajasthan, (2012) 9 SCC
284) nor can it be claimed by the suspect as a matter of right. ( R. Shaji v. State of Kerala, (2013) 14 SCC 266 )The purpose of pre-trial identification evidence is to assure the investigating agency that the investigation is going on in the right direction and to provide corroboration of the evidence to be given by the witness or victim later in court at the trial. ( Rameshwar Singh v. State of J&K, (1971) 2 SCC 715 ) If the suspect is a complete stranger to the witness or victim, then an identification parade is desirable (Mulla v. State of U.P., (2010) 3 SCC 508,Kishore Chand v. State of H.P., (1991) 1 SCC 286 ) unless the suspect has been seen by the witness or victim for some length of time.
(State of U.P. v. Boota Singh, (1979) 1 SCC 31 ) In Malkhansingh v. State of M.P. (2003) 5 SCC 746 it was held: (SCC pp. 751-52, para 7) "7. ... The identification parades belong to the stage of investigation, and there is no provision in the Code of Criminal Procedure which obliges the investigating agency to hold, or confers a 10 Cr.A. No. 73/2005 right upon the accused to claim a test identification parade. They do not constitute substantive evidence and these parades are essentially governed by Section 162 of the Code of Criminal Procedure. Failure to hold a test identification parade would not make inadmissible the evidence of identification in court. The weight to be attached to such identification should be a matter for the courts of fact."
16. However, if the suspect is known to the witness or victim (Jadunath Singh v. State of U.P., (1970) 3 SCC 518) or they have been shown a photograph of the suspect or the suspect has been exposed to the public by the media no identification evidence is necessary. Even so, the failure of a victim or a witness to identify a suspect is not always fatal to the case of the prosecution. In Visveswaran v. State ((2003) 6 SCC 73) it was held: (SCC p. 78, para
11) "11. ... The identification of the accused either in a test identification parade or in court is not a sine qua non in every case if from the circumstances the guilt is otherwise established. Many a time, crimes are committed under the cover of darkness when none is able to identify the accused. The commission of a crime can be proved also by circumstantial evidence."
In the present case, the prosecutrix has specifically identified the appellant as the person who had committed rape on her. There is no reason for the prosecutrix to falsely implicate the appellant. Even no suggestion was given by the appellant to the prosecutrix in her cross examination. The prosecutrix has specifically stated in her cross examination that She has seen the appellant for the first time in the Court after the offence was committed. Thus, the possibility of seeing the appellant prior to his dock identification in the Court has also been ruled out.
11 Cr.A. No. 73/2005As the identification in the Court is the substantive piece of evidence, thus, it is held that the prosecution has succeeded in establishing beyond reasonable doubt that it was the appellant who had committed rape on the prosecutrix.
Accordingly, the appellant is held guilty of committing rape on the prosecutrix.
The Trial Court by judgment dated 11-1-2005 has also held the appellant guilty of committing rape on the prosecutrix and has convicted for offence under Section 376(2)(f) of I.P.C.
So far as the question of sentence is concerned, the minimum sentence provided for offence under Section 376(2)(f) of I.P.C. is 10 years. The Trial Court has also awarded sentence of 10 years which donot require any interference.
Hence, the judgment and sentence dated 11-1-2005 passed by the Trial Court are maintained.
From the record of this appeal, it is clear that the appellant was not granted bail.
Consequently, the appeal fails and is hereby dismissed.
G.S. Ahluwalia Judge