Wahid Khan v. State Of Madhya Pradesh .

Deepak Verma, J.— A minor girl aged about twelve years was subjected to rape by the appellant on 14-10-1988. The appellant was charged and prosecuted for commission of the offence under Sections 366 and 376 of the Penal Code, 1860 (for short “IPC”) and the co-accused Sneh Lata was charged under Sections 342 and 366 IPC in the Court of the Third Additional Sessions Judge, Bhopal in Sessions Case No. 53 of 1989.

2. The judgment was pronounced in the said sessions case on 17-5-1991 wherein and whereby co-accused Sneh Lata was acquitted of the charges levelled against her, but the appellant was found guilty of commission of offence under Section 376 IPC and was awarded seven years' rigorous imprisonment. Insofar as the charge levelled against him under Section 366 was concerned, he was acquitted by the said court.

3. Feeling aggrieved by the said judgment of conviction, the appellant preferred Criminal Appeal No. 548 of 1991 in the High Court of Madhya Pradesh at Jabalpur. The learned Single Judge, after considering the matter from all angles, came to the conclusion that the findings recorded by the learned Sessions Judge were based on material evidence available on record, thus, proceeded to confirm the findings of guilt as also the punishment awarded to him by judgment dated 29-9-2006. It is against this judgment, the present criminal appeal by special leave has been preferred by him.

4. The facts, which are in short compass, are mentioned hereinbelow: although the prosecutrix, PW 1 was a resident of Gadarwara, she had come to Bhopal about four months prior to the date of occurrence. In Bhopal, she was staying with her relative. She had gone to an ayurvedic hospital for treatment where she came in contact with acquitted co-accused Sneh Lata, who showered love and affection on her. Thus, she was allured by Sneh Lata and went to stay with her. The record shows that she was kept in wrongful confinement at her house. She used to be beaten up and was not allowed to leave the house. Many boys and girls used to visit the said house of Sneh Lata.

5. On 14-10-1988, she gave Rs 10 to the prosecutrix, with which the prosecutrix went to Bhopal Talkies to watch the matinee show. After the movie, when she came out of the theatre, she found a few boys standing there who started teasing her. In the meanwhile, the appellant-accused, Wahid came there in his auto who voluntarily offered to help her. She requested him to drop her to her relative's place but instead of taking her to the house of the relative of the prosecutrix, he proceeded towards the airport via Lal Ghati. She tried to stop the accused from proceeding in the wrong direction, but he continued to ply the autorickshaw.

6. In the darkness, he stopped the auto near bushes and used filthy language against her. He also threatened to kill her if she raised a hue and cry. After gagging her mouth, he took her to the nearby bushes and removed her undergarments. He also removed his pants and undergarments and committed rape on her. At that very point of time, some sharp light came followed by two police personnel coming there and catching him red-handed while performing intercourse with the prosecutrix. Both of them were taken to Bairagarh Police Station where FIR (Ext. P-1) was lodged by the prosecutrix. She was sent for her medical examination and the accused was also sent for his medical examination.

7. After usual investigation, a charge-sheet was filed against the appellant and co-accused Sneh Lata for commission of offences as mentioned hereinabove for which they were tried and upon completion of trial, the appellant was found guilty for commission of offence under Section 376 IPC.

8. The conviction of the appellant is founded on the evidence of PW 1 prosecutrix as also the evidence of PW 3, B.B Subba Rao, Sub-Inspector who had caught him red-handed while he was committing rape. The medical report dated 15-10-1988 of the prosecutrix is on record. It records that her hymen was found to be intact whereas her private part admitted only the tip of little finger with difficulty. In the opinion of Dr. B. Biswas who had examined her, no intercourse was done with her. But, for determination of her age, she was sent to the Forensic Department of Hamidia Hospital. Dr. B. Biswas has not been examined by the prosecution. At the time of medical examination of the prosecutrix, her medical history was recorded, marked at Ext. P-9 which categorically records the manner in which the appellant had committed rape on her.

9. PW 1 prosecutrix had initially not supported the prosecution case and was declared hostile. But, on being confronted with her statement recorded under Section 161, Code of Criminal Procedure, she narrated the true and correct story and the manner in which rape was committed on her. She has categorically deposed that the appellant removed her underwear, laid on her, put his male organ into her private part and was moving up and down. According to her, he committed bad act with her. It is mentioned by her that on account of rape having been committed by the appellant, she was not being called by her parents. She has also proved her FIR which was recorded on 14-10-1988.

10. To corroborate the evidence of prosecutrix, the prosecution has examined IO (PW 3 B.B Subba Rao), Sub-Inspector of Police Station Bairagarh. According to him, on 14-10-1988 he was on field duty with regard to investigation of some other case and he received an information that an auto driver was going in an auto at about 8 o'clock in the evening with a girl towards the airport road. According to him, on search, the auto was found in abandoned condition on a secluded road. The police officer has stated that he suspected some foul play and went in search of the owner of the same. What is mentioned by him is that near the bushes, he found the autorickshaw parked by the side of the road and the appellant committing rape on the prosecutrix. According to him, the appellant was caught red-handed. In his cross-examination conducted by learned counsel for the appellant, which is more suicidal, PW 3 has deposed that both of them were found to be in a compromising position and were naked below the waist. It is mentioned by him that the appellant was lying on the prosecutrix and was indulging in sexual intercourse and he had seen the incident in the light of the vehicle in which he was travelling.

11. According to PW 3, the site of the incident was 2-3 furlongs away from the main road and as soon as the appellant was caught, he stood up and was found in a perplexed condition. He has further stated that they thereafter put on their clothes and were brought to the police station, where FIR was lodged by the prosecutrix. According to him, his autorickshaw was seized on the same day and he was apprehended on the next day. Perusal of the record would show that Ext. P-1 (FIR) was lodged by the prosecutrix herself on the date of the incident on 14-10-1988 at the police station soon after the incident.

12. When she was sent for medical examination, she again narrated rape on her by the appellant before the medical officer which finds place in her medical report, Ext. P-9. Thus, the testimony of the prosecutrix stands corroborated by her FIR and contents of Ext. P-9. To further corroborate the aforesaid evidence, the statement of PW 3 B.B Subba Rao fully establishes that it was Wahid Khan who had committed rape on the prosecutrix. As mentioned hereinabove, whatever little lacunae was there in the prosecution story, has been cured in his cross-examination.

13. Cumulative reading of the aforesaid would prove beyond any shadow of doubt that it was the appellant who had committed offence of rape on the minor girl and had completely ravished her.

14. Shri Fakhruddin, learned Senior Counsel appearing for the appellant strenuously contended before us that keeping in mind the medical report of the prosecutrix reflecting her hymen was still intact, would be indicative of the fact that no intercourse was at all committed on her. According to him, looking to the totality of the facts and features of the case and the evidence available on record, at best, it would establish a case wherein the appellant could have been convicted only under Section 354 IPC but no case was made out for his conviction under Section 376 thereof.

15. On the other hand, Shri Siddhartha Dave, learned counsel appearing along with Ms Vibha Datta Makhija for the respondent State contended that even if full penetration had not been there, slight penetration itself is sufficient and would complete the offence of rape as contemplated under Section 375 IPC and thus both the courts below were justified in finding him guilty under Section 376 IPC and awarding him punishment accordingly.

16. The law on the point is now too well settled. No doubt, it is true that Dr. B. Biswas, who had initially conducted the medical examination of the prosecutrix, has not appeared on behalf of the prosecution to depose. But, that alone is not sufficient to discard the prosecution story. Corroboration is not the sine qua non for conviction in a rape case. In this regard, the most celebrated observations of Vivian Bose, J. in Rameshwar v. State of Rajasthan AIR 1952 SC 54, 1952 Cri LJ 547 may be quoted: (AIR p. 57, para 19)

“19. … The rule, which according to the cases has hardened into one of law, is not that corroboration is essential before there can be a conviction but that the necessity of corroboration, as a matter of prudence, except where the circumstances make it safe to dispense with it, must be present to the mind of the Judge.…”

17. It is also a matter of common law that in Indian society any girl or woman would not make such allegations against a person as she is fully aware of the repercussions flowing therefrom. If she is found to be false, she would be looked at by the society with contempt throughout her life. For an unmarried girl, it will be difficult to find a suitable groom. Therefore, unless an offence has really been committed, a girl or a woman would be extremely reluctant even to admit that any such incident had taken place which is likely to reflect on her chastity. She would also be conscious of the danger of being ostracised by the society. It would indeed be difficult for her to survive in Indian society which is, of course, not as forward-looking as the western countries are.

18. Thus, in a case of rape, the testimony of a prosecutrix stands on a par with that of an injured witness. It is really not necessary to insist for corroboration if the evidence of the prosecutrix inspires confidence and appears to be credible. However, in the case in hand, even without the examination of the doctor, the evidence of the prosecutrix stands fully corroborated by the evidence of PW 3 B.B Subba Rao, Sub-Inspector of the police station who had virtually caught the appellant red-handed. Thus, even if the doctor had not been examined it would not throw or completely discard the prosecution story. The evidence of the prosecution witnesses is fully trustworthy and there is no reason to doubt genuineness thereof.

19. It was also contended by learned counsel for the appellant that since hymen of the prosecutrix was found to be intact, therefore, it cannot be said that an offence of rape was committed on her by the appellant. This contention cannot be accepted as the offence of rape has been defined in Section 375 IPC. Explanation to Section 375 reads thus:

“Explanation.—Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape.”

It has been a consistent view of this Court that even the slightest penetration is sufficient to make out an offence of rape and depth of penetration is immaterial.

20. It is appropriate in this context to reproduce the opinion expressed by Modi in Medical Jurisprudence and Toxicology (22nd Edn.) at p. 495 which reads thus:

“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 the purpose of the law. 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 such a case, the medical officer should mention the negative facts in his report, but should not give his opinion that no rape had been committed. Rape is a 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 to the effect whether there is evidence of recent sexual activity. Whether the rape has occurred or not is a legal conclusion, not a medical one.”

(emphasis supplied)

21. Similarly in Parikh's Textbook of Medical Jurisprudence and Toxicology, “sexual intercourse” has been defined as under:

“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.”

22. If the aforesaid facts are kept in mind, it cannot be disputed that the act of the appellant would certainly constitute an offence of rape and leaves no amount of doubt in our mind.

23. The learned counsel for the appellant placed reliance on a recent judgment of this Court in Radhu v. State of M.P (2007) 12 SCC 57 to contend that since the evidence of the prosecutrix was not corroborated, the appellant should be extended the benefit of doubt. Even after going through the said judgment critically we do not find that any benefit can be extended to the appellant. In the said case, there were several serious discrepancies in the evidence of the prosecutrix which prompted the court to call for corroboration.

24. In the present case, there is consistency in the evidence of the prosecutrix, which stands corroborated by the evidence of PW 3 B.B Subba Rao. He had no axe to grind against the appellant. In this case, the version of the prosecutrix right from lodging of the FIR, till her examination by the doctor and till she deposed in court, had been absolutely consistent. Not only this, to corroborate further, the evidence of PW 3 B.B Subba Rao is also on record who had caught the appellant red-handed which fully establishes that it was the appellant who had committed offence of rape.

25. Thus, looking to the matter from all angles, we are of the opinion that there is no merit or substance in this appeal. The same is, accordingly, hereby dismissed.