Wahid Khan vs State Of M.P

Wahid Khan .....Appellant

Versus

State of Madhya Pradesh .....Respondent

J U D G M E N T

Deepak Verma, J.

1. A minor girl aged about 12 years was subjected to

rape by the appellant on 14th October 1988. The appellant was

charged and prosecuted for commission of offence under

Sections 366 and 376 of the Indian Penal Code (for short,

`IPC') and the co-accused Sneh Lata was charged under

Sections 342 and 366, IPC in the Court of III Additional

Sessions Judge, Bhopal in Sessions Case No.53/89.

2. Judgment was pronounced in the said Sessions Case on

17th May 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,

appellant preferred Criminal Appeal No.548 of 1991 in the High Court of Madhya Pradesh at Jabalpur. 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 29th

September 2006.

4. It is against this judgment, the present criminal

appeal by special leave has been preferred by him.

5. Facts, which are in short compass, are mentioned

hereinbelow.

6. Although the prosecutrix-P.W.1 was 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.

7. On 14th October 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 relative of

the prosecutrix, he proceeded towards airport via Lal Ghati.

She tried to stop the accused from proceeding in the wrong

direction, but, he continued to ply the auto-rickshaw. In

the darkness, near bushes he stopped the auto and used filthy

language against her. He also threatened to kill her if she

raised hue and cry. After gagging her mouth, he took her to

the nearby bushes and removed her under-garments. He also

removed his pants and under-garments 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.

8. Both of them were taken to the Bairagarh Police

Station where FIR (Exh. P-1) was lodged by the prosecutrix.

She was sent for her medical examination and accused was also

sent for his medical examination.

9. After usual investigation, chargesheet was filed

against 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 of the IPC.

10. The conviction of the appellant is founded on the

evidence of P.W.1-prosecutrix as also the evidence of P.W.3-

B.B. Subba Rao, Sub-inspector who had caught him red-handed while he was committing rape. Medical report dated 15th

October 1988 of the prosecutrix is on record. It records

that her hymen was found to be in tact whereas her private

part admitted only 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 Forensic Department of Hamidia Hospital.

Dr. B. Biswas has not been examined by the prosecution.

11. At the time of medical examination of the

prosecutrix, her medical history was recorded, marked at

Exh.P-9 which categorically records the manner in which the

appellant had committed rape on her.

12. P.W.1-prosecutrix had initially not supported

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, lied 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 14th October 1988.

13. To corroborate the evidence of prosecutrix,

prosecution has examined I.O. (P.W.3-B.B. Subba Rao), Sub-

inspector of Police Station Bairagarh. According to him, on 14th October 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 airport road.

According to him, on search, 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 auto-rickshaw parked by the side of the

road and appellant committing rape on the prosecutrix.

According to him, the appellant was caught red-handed.

14. In his cross-examination conducted by learned counsel

for the appellant, which is more suicidal, he has deposed

that both of them were found to be in 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. According

to him, the site of incident was 2-3 furlongs away from the

main road and as soon as the appellant was caught, 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 auto-rickshaw was seized

on the same day and he was apprehended on next day.

15. Perusal of the record would show that Exh.P-1 (FIR)

was lodged by the prosecutrix herself on the date of the incident on 14th October 1988 at the police station soon after

the incident. 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

Exh.P-9. Thus, the testimony of the prosecutrix stands

corroborated by her FIR and contents of Exh.P-9. To further

corroborate aforesaid evidence, the statement of P.W.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.

16. Cumulative reading of the aforesaid would prove

beyond shadow of doubt that it was the appellant who had

committed offence of rape on minor girl and had completely

ravished her.

17. 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 in-tact, 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 of IPC but no case was made

out for his conviction under Section 376 thereof.

18. On the other hand, Shri Sidhartha 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 of the IPC and thus both the courts below were

justified in finding him guilty under Section 376 of IPC and

awarding him punishment accordingly.

19. 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.

20. In this regard, the most celebrated observations of

Justice Vivian Bose in the case of Rameshwar v. State of

Rajasthan AIR 1952 SC 54 may be quoted :

"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...."

21. 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 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 ostracized 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.

22. Thus, in a case of rape, testimony of a prosecutrix

stands at 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.

23. However, in the case in hand, even without the

examination of doctor, the evidence of prosecutrix stands

fully corroborated by the evidence of P.W.3-B.B. Subba Rao,

Sub-inspector of the police station who had virtually caught

the appellant red-handed. Thus, even if doctor had not been

examined it would not throw or completely discard the

prosecution story. The evidence of prosecution witnesses is

fully trustworthy and there is no reason to doubt genuineness

thereof.

24. It was also contended by learned counsel for the

appellant that since hymen of the prosecutrix was found to be

in tact, therefore, it cannot be said that an offence of rape

was committed on her by the appellant. This contention

cannot be accepted as offence of rape has been defined in

Section 375 of the IPC. Explanation to Section 375 reads thus :

"Explanation. - Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape."

25. It has been a consistent view of this Court that even

a slightest penetration is sufficient to make out an offence

of rape and depth of penetration is immaterial.

26. It is appropriate in this context to reproduce the

opinion expressed by Modi in Medical Jurisprudence and

Toxicology (Twenty Second Edition) at page 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 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]

27. 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."

28.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.

29.Learned counsel for the appellant placed reliance on a recent judgment of this Court reported in (2007) 12 SCC 57

Radhu v. State of Madhya Pradesh to contend that since

evidence of prosecutrix was not corroborated, the appellant

should be extended 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. In the present case, there is

consistency in the evidence of prosecutrix, which stands

corroborated by the evidence of P.W.3-B.B. Subba Rao. He

had no axe to grind against the appellant.

30.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

P.W.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.

31.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.

.....................J. [J.M. PANCHAL]

.....................J. [DEEPAK VERMA] New Delhi.

December 01, 2009.