HIGHCOURTQFCHHATTISGARH.BILASPUR Crlminal Apoeal No. 55 of 2003 Guh^ Ram @ Bhoog Satnami Veysus State of Chhattisgarh JUDGMENT Post for: 17.05.2007 Sd/- Sunil Kumar Sinha Judge R^ HIGH COURT OF CHHATTISGARH, BILA8PUR APPELLANT RESPONDENT Crimiaal Appeal No. 55 pf 2003 Guha Ram @ Bhoog Satuami, aged about 35 yeai-s S/o Maagal Sataaiai, R/o /Village Patori, P.s. Rajim, Distt- Raipur (C.G.) Versus State of Chhattisgarh Through P.S. Ramim, Distt- Raipur (C.G.) lAppea! under Section 374 (21 of Cr.P.C.l Appearaiice: Shri F.S, Khare, counsel for tiie appellant. Shri Anui Sao, Govt. Advocate for the State, JUDGMENT (17.Q5.2QQ7) Susiil Kumar Sisiha, J. (1) This appeal is directed against the judgment of conviction and order ofsentence dated 24. 12.2002 passed iii Sessions Trial No. 265/2002 by tlie Sessions Judge, Raipiir, whereby, the said Court, after holding the appellaat guilty of the offence punishable under Section 376 I.P.C., sentenced him to undergo R.I. for 10 years aad to pay a fiae of Rs,100/-, m default of payinent of fine to fiu-tlier undergo R.I. for oue nxonth (same sentence in two coiints), wifh a fiirfher direction to run the sentences ofboth the counts concurreutly. (2) The brieffacts are that on 19.5.2002 and 21.5.2002, the prosecutorix namely- Sukaro Bai (P.W.-4), a girl aged about 15-16 years was subjected to forceful sexual iatercourse by Uie appellaat, who happens to be the step-father of the girl, The mother of the prosecutiix had mardecl tlie appeUant after deafh of her first husbaad nainely- Bansi. Sukaro Bai was the real daughter of Baasi. After fhe second Biardage of inofher of Sukaro Bai, she along with her mofher were residing witli the appeUaiit Her mother died 2 months prior to fhe date of Criminal Appeal No. 55 of2003 r ' iacident The allegations are that on 19.5.2002, iii fhe night, wheu she was sleepiag in the house at about 2 a.in., the appellaat coininitted forcefiil sexual io.tercourse agaio.st her and he also fhreatened her to life. Subsequently, 011 21.5.2002 at about 1.00 a.m., the appellant again committed forceful sexual iatercourse with. tlie prosecutrix. When she tded to raise the noise, fhe appeUaGt pressed her fhroat and fhreatened that if she inalces noise, he wiU kill her, On those days, fatlier of the appeUaat namely Maagal (grand father of ttie prosecutrix) had gone out of station. When he returaed back, tlie prosecutrix narrated fhe stoiy to hioi. She also narrated fhe story to one Budhidai, Gowri Bai aad Rahi Bai aad thereafter, a report was lodged to tlie police station. (3) Duriag tlie course of investigation, tlie prosecutiix was sent for medical exainination to Community Health Centre, Rajiin aad was exainiaed by Dr. Snehalata (P,W.-6). In her exammation, she found that her hymen was damaged aad therefore, she referred her for further exaiaio.ation by Medical CoUege Hospital, Raipur. Her report dated 25.5.2002 is Ex.-P/l. Therealler, the girl was agaia examined by Dr. (Snit.) Anita Yadu (P,W.-1) on 25.5.2002, who found fhat hyraeu was not inptured and reddishness was present over tlie hyixien and there were no extemal injiuies ou the body. She prepared a report vide Ex,-P/l, The victim was also seut for ossiticatiou test aad was examiaed by Dr. A.K. Gupta (P.W.-2), who took X-ray under Ex.-P/S aad submitted his report vide Ex.-P/2. Accordiag to his report, fhe girl was aged about 16 years, A traixsfer certificate of fhe girl (Ex.-P/S) was also seized, accordnig to which, her date of birthwas 7.11.1988. On 24.5.2002, the appeUantwas also sent for inedical exaiHiaatiou. He was examhied by Dr. Virendra Kumar Gu'ondia (P.W.-3), who prepared his report vide Ex.-P/4. Accordiag to fhe said report, there was an. abrasion, on the skiii oftlie penis which, accordixig to Doctor, niay have been caused durhig tiie course ofsexual iatercoiirse. He also opined tliat fhe appellaat was physically able to perfoi-m sexzial mtercourse. In '2^) Criminal Aooeal No. 55 of2003 farther Jiwestigation, aaother certilicate (Ex.-P/ll) was seized by the police, which would certify tliat according to Kotwari Panji, her date of birtih. was 7.11.1986. After usual iavestigation, the charge-sheet was iiled. (41 The Sessions Court recorded a fmdmg that the prosecutrix was below 16 years of age on tlie date of incident aad on the basis of her evidence, it further recoixled a l&admg tliat tlie forceful sexual mtercourses were committed agaiast her by the step-father on bvo occasions as is alleged by her. (5) Learaed counsel for fhe appeUaiif has not disputed tiie fiiidiag of age recorded by the Session Coiirt. He only ax'gued that tlie versiou of the prosecutodx is unreliable aad particularly in. view of tiie inedical evidence, ia which, flie hyio-eii was foiiiid intact, she should be disbeUeved. (61 On the other haad, leanied counsel for tlie State opposed fliese arguinents. He supported the judgnient of conviction aixd order of sentence passed by tlie Sessions Court. (7| I have heard leain.ed counsel for tlie parties at length aiid Iiave also perused tlie records oftlie sessions case. |8] Aclmittedly, fhe appellaat is tlie step-fafher of tlie prosecutrix. Accordmg to flie evidence oftlie prosecutrix, after 2 montlis from tlie date of death of her mofher, ou fhe lirst fatefi.il night, she was sleeping in her house. Siace the mother was dead, due to feai^ she was sleepiag ia fhe roonx along wifh appeUant. In fhe night, tlie appellant came to her aiid committed forceful sexual in.tercourse, When she tded to niake noise, he poured the clotties in. her moufli and ailer fhe intercourse, he tlireatened fhat she should not disclose this fact to aaybody else. She says fhat she did not disclose tiie fact to other persou due to fear. She furtlier deposed tliat thereafter, on Sunday's night, fhe appeUaiit agaia coiniaitted sexual uitercourse agaiast her. On fhat date, her graiid-fafher namely Maiigal was not in the house. When he retunied back, she narrated the story to Criminal Appeal No. 55 of2003 him aad she also narrated fhe stoty to her aunt namely Gowri Bai aad thereafter her grand-father namely Maiigal accompamed her to tibie poUce station aad tlie report was lodged. The defence has not been able to vitally assail the above evidence of the prosecutrix aad her evidence resiiams ititact, so far as tlie coniiiiissiou of forceful ititercoiirses by tlie appellant on fhe said t\vo occasions are coucemed, (9) Maiigal (P.W.-5), who is fhe fafher of fhe appeUant, has also deposed that wheu he returaed back to his house, fhe prosecutrix narrated tlie story to him sayiiig Uiat her step-father naiaely Guha Rani has coiainitted rape agamst her, on which, he said tliat now she wiU sleep along wifh hmi. On his saying like this, fhe appeUaiit retaliated and pressed hard that fhe prosecutdx wUl sleep along wifh hrai. He also assaulted the fafher ou this count In tiie eveniag at aboiit 5.00 p.in,, the appeUant caaie in drunken condition aad he started sayiag tliat he will kUl hixn. aad he wiU also kiU Sukaro Bai. He fiu'th.er deposed fhat whUe tlie prosecutrb^ was tellmg tlie siory regarding sexual iatercourse, she had also statecl that she was subjected to forceful iatercourse by tlie appeUaat on aii earMer occasion also. His evidence is also mtact on ttiese poitits, (10| The testimony of tihe prosecutrix is furtlier supported by Hiedical evidence of fcvo lady Doctors naaiely Dr. Snehalata (P.W.-6) and Dr. Anita Yadu (P.W.-l), who have stated that they had noticed some mjmy ou the hymen of tlie prosecutrix, thoiigh they have said fhat the hymen was not niptiired. (11) Learaed counsel for the appeUant pressecl hai'd sayiag that siace fhe hymen was mtact, therefore, tlie mtercourse had uot tskeu place and the conviction u/s 376 I.P.C, is not m accordaace wiUi law. (12) I have considered these pomts. (13) In fhe matter of Tar&eshwar Sahu vs. State of Bihar (now Jharkfaandl reported m (20061 8 SCC 560, the Apex Com-t held vide para 10 tliat under Section 375 of the I.P.C., six Criminal Appeal No. 55 of2003 ^^^: categories iadicated thereio. are tlie basic mgredients of fhe ofience. The Supreme Court obseived fhat ia fhe facts aad circuiastances of fhe said case^ where the prosecutiix was 12 years of age, her consent was irrelevant. The appeUant had forcibly taJken her to his Gumti with the mtention of committmg sexual mtercoiirse with her, The importaiit iagredient of the offence nnder Section 375 piinishable under Section 376 offhe I.P.C. is penetration which is altogeflier missiag ia tiie said case, tiie Apex Court said that no offence under Section 376 of ttie I.P.C. caa be inade out unless fhere was penetration to sorae extent. In fhe absence ofpenetration to any extent, it would not briiig tlie offence of the appeUaiit wifliia fhe four comers of Section 375 of fhe I.P,C. Therefore, tiie basic iagredients for proviag a charge ofrape ai'e the accoGipUshinent offhe act wifh force. The ofher mipoxlaat iagredient is penetration of tlie raale orgaii wifhia the labia xaajora or tlie vulva or pudenda witli or witliout any eimssion of seinen or even aa attenipt at penetration itito fhe private part of fhe victun coinpletely, partially or sUghUy would be enough for tiie purpose of Section 375 and 376 ofthe I.P.C. The Apex Court held ia para 13 that <tfln order to coustitute rape, what Section 375 IPC requu'es is raedical evidence of penetration aiid this niay occur aad the hynien remaia iatact. In view of fhe Explaaation to Section 375, mere penetration of peiiis ia vagiaa is an offence of rape. Slightest penetration is sufficient for conviction under Section 376 IPC." (14) In case of a girl of tender age, rupture of hymen, in the event of peneti'ation, is not as a matter of rule. In cases where the hymen is deep seated, it may not rupture though there may be a penetoration. In case of a forcible attempt to penetrate also, there are chaaces tiiat the hymen ofthe victim may not rupture particularly when it is deep seated. The presence ofredness aad mflammation over the vagma is at least a sign fhat either a coiaplete peneti-ation has taken place or a partial penetration has taJken place or a forcible attempt to peuetrate was made agamst the victiin. Modi opiaes in liis Medical Jiirisprudence r', 6 Criminal Appeal No. 55 of2003 that in sinatl chUdren, tlie hyaien is not iisiiaUy ruptured, but saay becoine red aiid congested along with fhe iaflamination aiid bruising of fhe labia. If cousiderable violence is used, fhere is often laceration oftlie fourchette and the permeuin, Please see Modfs Medical Jurisprudence aad Toxicoloffy, 23rd Bdn.i / page 928. \ (1S) In fhe case of Amaa Kuimar aad aaother vs< State of Haryasaa reported m 2004 Cr.L.R. (SC) 207 it has been observed by the Apex Court iii para 7 tliat <The rupture of hynxen is by no nieaas necessaiy to constitute fhe offence of rape. Even a slight penetratiou io. th.e vzilva is suf&cient to constitute fhe offence of rape aiid rupture of hyinen is not necessary. Vulva penetration with or without violence is as Biuch rape as vagiaal penetration, The statute inerely requires evidence of penetration, and tiiis niay occur wifh fhe hynien reniauiiug intact. The actus reus is coinplete wifh penetration. It is well settled fh.at tlie prosecutrix cannot be considered as acconiplice aad, fherefore, her testmiony caanot be equated with fhat of an accoiiipUce in aa offence of rape. In examio.ation of genital orgao-s, state of hymen offers fhe inost reUable clue. While examianig the hyraen, certaiii aaatoinical characterlstics shoiild be renieiabered before assigniag any signi&caiice to the flndings. The shape aiid the texture of the hyinen is vadable. This vadation, soinetimes pennits penetration witliout uijiuy, This is possible because of fhe pecidim' shape of the orifice or uicreased elasticity, On fhe otlier haiid, sometmies ttie hymen may be more farm, less elastic aad gets stretched and lacerated earUer. Thus a relatively less forceful penetration inay not give rise to iajuries ordiaarily possible wifli a forcefal attenipt. The aiiatoniical feature with regard to hynien which merits consideration is its aiiatomical situation. Next to hymen in positive importao.ee, but niore thaa fhat io. frequency, or the injuries on labia niajora. These, viz, labia majora are fhe first to be eucouutered by tlie niale orgaa. They are subjected to blunt forceful blows, depeudiag on the vigour and force used by tlie accused and counteracted by tiie victioi. Further, exaiiiination of the feinales Criminal Appeal No. 55 of2003 for inarks of iiijuries elsewhere on tiie body fomis a very miportaat piece of evidence. To constitute tiie offence of i-ape, it is not necessaiy fhat fhere should be coaiplete penetration of the penis wifh. eniission of senien and rupture of hyiaen. Parietal penetration wifhni the labia raajora of fhe vulva or pudendiiGl wifh or withoiit eniissiou of semen is sufficient to constitute fhe offence of rape as defmed ia fhe law, The depfh of penetration is irniiiaterial ui aa offence punishable zi/s. 376 IPC." (16) In light of the above decisions and also ia Mght of tlie prmciples ofinedicaljurisprudence, it caanot be held that siace flie hymen of the girl was iutact, tliis is not a case of peueti'ation eitlier partial or coniplete aad tlie ofience u/s 376 I.P,C. woiild not be made out. The iiyuiy on Uie hyinen aiid tlie un-assalled testimony offhe prosecutrix supported by testmiony offath.er of tlie appellant, who has deposed against his own son, inake it clear fliat m fact, fhe prosecutiix was subjected to forceful sexual iatercourse by fhe appellaat for t^vo tisiies. There was not reason wifh the father to depose agaiast his own son. The version of fhe prosecutarix uispires confidence of tlds Court so as to rely upon her and to base the conviction on her sole testunony, tliough she is corroborated by oral testimony of her graad fafher aiid niedical testiinony of two lady Doctors, who had exainuied her on two occasions, (17) There appears to be no iajBrmity iii fh.e findiag recorded by the Sessions Court that the appeUaat was guilty of offence punishable u/s 376 I.P.C. (ia two counts). (18) No otiier arguinents, except above was raised before nie. (19) There is no iiierit m. tiiis appeal, fhe same deserves to be and is accordiagly disinissed. The judginent of conviction aad order of sentence passed by the Court below are maiataiaed, Sd/- SunilKumarSinha Judge vatti