Criminal Appeal No. 738 of 1981.
From the Judgment and Order dated 29.8.1980 of the Himachal Pradesh High Court in Criminal Appeal No. 41 of 1980.
Balakrishna Gaur, Amicus Curiae for the Appellant.
K.G. Bhagat, Harish Kumar Sharma and Ms. A. Subhashini for the Respondent.
The Judgment of the Court was delivered by AHMADI, J.
The appellant Prithi Chand, a youth of about 18 years, was prosecuted for committing rape of PW I Kancha na Devi, a girl of tender age of 11 or 12 years, on the afternoon of 15th June, 1979 at a place known as Kutkharpati in village Kot, Tehsil Palampur of Himachal Pradesh.
The learned Sessions Judge convicted him under Section 376, I.P.C., and sentenced him to suffer imprisonment for life and to pay a fine of Rs.2,000, in default to suffer rigorous imprisonment for a further period of two years.
On appeal, the High Court while confirming his conviction under Section 376, I.P.C., reduced the substantive sentence from imprison ment for life to rigorous imprisonment for seven years but retained the order regarding payment of fine 126 and the punishment in default thereof.
Thereupon the appel lant has approached this Court under Article 136 of the Constitution of India.
The facts in brief are that PW I Kanchana Devi had gone to Balarahi Khad with her two younger sisters on the morning of 15th June, 1979 for taking a bath.
After the bath when she was returning to her residence the appellant met her on the way and asked her to permit him to have sexual inter course with her.
She resented this behaviour of the appel lant and with a view to avoiding him changed her route.
But the appellant intercepted her and offered her Rs.5 for permitting him to have sexual intercourse with her.
On the prosecutrix refusing the appellant physically lifted her and took her to a shallow place, removed her trousers (Salwar) and after removing his clothes committed rape on her, on account whereof she began to bleed profusely.
After satisfy ing his lust the appellant gave her a few leaves to wipe her vagina.
On hearing a call from PW 7 Sandhi Devi who was looking for her daughter, the appellant ran away.
The prose cutrix returned home.
Her trousers were stained with blood.
She narrated the incident to her mother PW 6 Vijaya Devi and thereafter to the other ladies of the village who had in the meanwhile collected at her residence.
The mother and the other ladies examined the vagina of the girl and found that the same was ruptured and bleeding.
As her father was not at home, her mother could not decide on the course of action.
On the return of her father PW 3 Bali Ram, she narrated the incident to him, whereupon the Sarpanch of the village PW 12 Chaturbhuj was informed about the incident who advised them to report the matter to the police in the morning since it was too late to travel to the Police Station.
On the next morning the prosecutrix, her parents and the Sarpanch went to the Police Station where the girl filed the report which is on record at Exhibit P A. PW I Kanchana Devi narrated the incident as stated above in detail in her deposition before the Court also.
Except for one or two minor omissions, her evidence is consistent with the report Exhibit P A. She has stated that on that afternoon the appellant forcibly lifted her and took her to the lower level where he had sexual intercourse with her.
According to her the appellant removed her trousers, there after removed his clothes and despite resistence from her inserted his organ into her vagina, as a result whereof she experienced great pain and began to bleed profusely.
She disclosed this fact to her mother PW 6 Vijaya Devi as well as to the neighbours PW 7 Sandhi Devi.
and PW 8 Phulan Devi.
On the return of her father PW 3 Bali Ram, she narrated the incident to him.
All these witnesses support the version of 127 the prosecutrix.
The Sarpanch PW 12 Chaturbhuj has also stated that when the prosecutrix was brought to him she was wearing a blood stained Salwar and had complained that the appellant had raped her.
PW 4 Julfi, Chowkidar of the vil lage stated that the prosecutrix had pointed out the place of occurence wherefrom blood stained leaves were attached by the police under seizure Memo exhibit P B. PW 5 Kishori Lal supports him.
The prosecutrix was examined by Dr. C.S. Vedwa, who had issued the Medical Certificate, exhibit P E dated 16th June, 1979.
The Medical Certificate shows that the prosecutrix had not developed secondary sex characters, auxiliary and pubic hair were absent and there were abrasions of 3 ' x 1/8 ' and 2 ' x 1/8 ' on the lumber region.
She also found signs of inflamation around the vulva; the vagina was bleeding, the hymen was absent with the edges torn and there was tender ness all around.
The hymen was bleeding on touch and the vagina admitted one finger with difficulty.
The girl 's Salwar was blood stained.
It was taken in a sealed packet along with two slides and swabs.
Unfortunately, this lady Doctor who had delivered a child was not available for giving evidence as she had proceeded on long leave.
The learned Sessions Judge felt that it would not be possible to secure her presence without undue delay, and therefore, permitted the prosecution to prove the certificate through PW 2 Dr. Kapila, who was conversant with her hand writing and signature, he having worked with her for about two years.
He stated that the carbon copy of the certificate Ex P E was prepared by Dr. Vedwa by one process and bears her signature.
The learned counsel for the appellant contended that this certificate was inadmissible in evidence since the prosecution has failed to prove that the original certifi cate was lost and not available.
Section 32 of the Evidence Act provides that when a statement, written or verbal, is made by a person in the discharge of professional duty whose attendance cannot be procured without an amount of delay, the same is relevant and admissible in evidence.
Besides, since one carbon copy was made by one uniform process the same was primary evidence within the meaning of explanation 2 to Section 62 of the Evidence Act.
Therefore the medical certificate exhibit P E was clearly admissible in evidence.
That apart, there is strong, reliable and dependable evidence of the prosecution witnesses which clearly proves that the prosecutrix was raped by the appellant.
PW 2, Dr. Kapila examined the appellant on 31st July, 1979.
He found him to be well nourished and well developed for his age, the beard had started to grow, pubic hair were present and the scrotum 128 and penis were well developed.
In the opinion of the witness the appellant was fit to indulge in sexual intercourse.
It was however argued that having regard to the girl 's age and the fact that her vagina admitted one finger with difficul ty, it is not possible to believe that there was penetra tion.
The argument overlooks the fact that in the absence of penetration there would not be absence of hymen with the edges torn and profuse bleeding from the vagina staining the Salwar.
Merely because the Doctor found that the vagina admitted one finger with difficulty, it cannot be inferred that there was no penetration as the muscles must have contracted by then.
The appellant, a robust man must have penetrated the vagina for otherwise there would not have been so much of bleeding.
Surprisingly no question was put to Dr. Kapila to solicit his opinion in this behalf.
PW 9 Dr. Mahajan examined the prosecutrix with a view to ascertaining her age.
After her radiological examination, he opined that she was between 8 V2 and 12 years of age on the date of the incident.
The evidence of this witnesses corrob orates the say of the prosecution witnesses that she was around 11 or 12 years of age on the date of the incident.
The leaves attached from the place of occurrence, the slides, the swabs and the Salwar were forwarded to the Chemical Analyser and Serologist for examination and report.
Exhibit P N shows that there was blood on the leaves and the Salwar.
However, no spermatozoa were found on any of the exhibits.
The report of the Serologist exhibit P O shows that the Salwar was stained with human blood while the origin of the blood stains on the leaves could not be determined on account of disintegration.
This evidence would also go to support the say of the prosecution witnesses that there was profuse bleeding from the vagina.
The learned counsel for the appellant submitted that there was delay in filing the First Information Report.
We do not think so.
Immediately after the incident was narrated to the mother and other ladies, a decision was taken to await the return of the father before deciding on the course of action.
On the arrival of the father the Sarpanch was contacted, who advised that the police should be informed about the incident.
The Sarpanch, however, stated that he would accompany them next morning since it was already dark.
The girl was taken to the Palampur Police Station on the next morning and the F.I.R. was lodged.
We, therefore, do not think that there was any delay in reporting the matter to the police.
129 It was next contended that the appellant was falsely involved due to a long standing enmity between the father of the appellant and that girl 's father.
The prosecutrix has in her deposition stated that the two families were not on talking or visiting terms, since their relations were strained.
It was suggested in the course of cross examina tion that Ratna, the son of PW 8 Phulan Devi was intimate with the prosecutrix and he had raped the girl.
In his statement under Section 313 of the Code of Criminal Proce dure, he put forth the case that when he returned to his village in the evening, he saw some ladies at the girl 's house and heard the girl saying that she was subjected to rape by Ratna.
It is not possible to believe that the prose cutrix and her parents would allow the real culprit to escape and falsely involve an innocent person for the com mission of the crime.
Except for the suggestion made in the cross examination of PW 8 Phulan Devi, Ratna 's mother and the statement under Section 3 13 of the Code of Criminal Procedure there is no other material on record which can give credence to the suggestion.
Lastly it was argued by reference to A.W. Khan vs State, A.I.R. 1962 Calcutta 641; Gorakh Daji Ghadge vs State of Maharashtra, and Padam Bahadur Darjee vs State of Sikkim, that since the girl was of tender age the possibility of her wrongly involving the appellant cannot be ruled out and this possibility is strengthened by prior enmity, absence of spermatozoa and infirm medical opinion.
We have already examined the argument of enmity as well as the so called infirmity in medical evidence.
Mere absence of spermatozoa cannot cast a doubt on the correctness of the prosecution case.
We have carefully gone through these decisions and we think they turn on the facts of each case.
In view of the above, we see no merit in this appeal and dismiss the same.
N.P.V. Appeal dismissed.


Summary:
It was alleged that the appellant, a youth of 18 years, forcibly lifted P.W. 1, a girl of tender age of 11, 12 years, took her to a shallow place, and committed rape on her, on account of which she began to bleed profusely; that on hearing the call of P.W. 7 the appellant ran away.
A report was lodged with the police next morning.
The girl was examined by a lady doctor, who issued a medical certificate.
The leaves collected from the place of occurrence, the slides, the swabs and the salwar were for warded to the Chemical Analyser and Serologist for examina tion and report.
The appellant was prosecuted for committing rape on P.W. 1.
The trial court convicted him under section 376 I.P.C. and sentenced him to suffer imprisonment for life and to pay a fine of Rs.2,000 in default to suffer rigorous imprisonment for a further period of two years.
On appeal, the High Court, while confirming the convic tion reduced the substantive sentence from imprisonment for life to rigorous imprisonment for seven years but retained the punishment in default thereof.
In the appeal before this Court, it was contended on behalf of the appellant that the carbon copy of the medical certificate given by the lady 124 doctor, who examined P.W. 1 was inadmissible in evidence, that having regard to the girl 's age and the fact that her vagina admitted one finger with difficulty, it was not possible to believe that there was penetration, that there was delay in filing the First Information Report, that since the girl was of a tender age the possibility of her wrongly involving the appellant could not be ruled out and that this possibility was strengthened by prior enmity, absence of spermatozoa, and infirm medical opinion.
Dismissing the appeal, HELD: 1.
Section 32 of the Evidence Act provides that when a statement written or verbal, is made by a person in the discharge of professional duty whose attendance cannot be procured without an amount of delay, the same is relevant and admissible in evidence.
[127F] In the instant case, the lady doctor, who examined P.W. 1 and issued the medical certificate was not available for giving evidence as she had proceeded on long leave.
In her absence, the trial Judge felt that it would not be possible to secure her presence without undue delay and therefore permitted the prosecution to prove the certificate through P.W. 2, who was conversant with her hand writing and signa ture.
Besides, since the carbon copy was made by one uniform process the same was primary evidence within the meaning of Explanation 2 to section 62 of the Evidence Act.
Therefore, the medical certificate was clearly admissible in evidence.
[127D G] 2.
In the absence of penetration, there would not be absence of hymen with the edges torn and profuse bleeding from the vagina staining the salwar.
Merely because the Doctor found that the vagina admitted one finger with diffi culty, it cannot be inferred that there was no penetration as the muscles must have contracted by then.
The appellant, a robust man must have penetrated the vagina for otherwise there would not have been so much of bleeding.
[128B C] 3.
Mere absence of spermatozoa cannot cast a doubt on the correctness of the prosecution case.
The report of the Chemical Analyser and Serologist supports the version of the prosecution witnesses that there was profuse bleeding from the vagina.
[129F; 128F] 4.
Immediately after the incident was narrated to the mother and other ladies, no decision could be taken because of the absence of the 125 father.
On his arrival, he informed the Sarpanch, who ad vised him to report it to the Police next day in the morn ing, since it was too late to travel to the Police Station at that hour and accordingly the F.I.R. was lodged on the next day.
Therefore, there is no delay in filing the F.I.R. [128G H] 5.
It is not possible to believe that the prosecutrix and her parents would allow the real culprit to escape and falsely involve an innocent person for the commission of the Crime.
Except for the suggestion made in the cross examina tion of P.W. 8 and the statement under section 313 of the Code of Criminal Procedure there is no material on record to give credence to the suggestion that the son of P.W. 8 was inti mate with the prosecutrix and he had raped the girl.
[129C] 6.
There is strong, reliable and dependable evidence of the prosecution witnesses which clearly proves that the prosecutrix was raped by the appellant.
In such circum stances, there can be no merit in the appeal.
[127G]