Delhi High Court

Mohinder Singh Bhati vs State on 11 August, 2009

Author: G. S. Sistani

              IN THE HIGH COURT OF DELHI AT NEW DELHI

    +                        Crl. A. 171/2009

                             Date of pronouncement 11th August, 2009

#   Mohinder Singh Bhatti                           ....  Appellant
               Through            :     Mr. K.B. Rohatgi, Advocate.

                        Versus

    STATE (NCT OF DELHI)                           .... Respondent
              Through             :     Mr. Lovkesh Sawhney, APP for the
                                        State.




    CORAM: HON'BLE MR. JUSTICE G.S. SISTANI

        1. Whether reporters of local papers may be allowed to see the
           Judgment ?                                    Yes
        2. To be referred to the Reporter or not?        Yes
        3. Whether the Judgment should be reported in the Digest? Yes

    G.S. SISTANI, J.

1. The present appeal is directed against the judgment dated

13.01.2009 and order on sentence dated 17.01.2009, passed by

the learned Additional Sessions Judge, Delhi, in FIR No. 37/07, PS

Khajuri Khas, under section 376, Indian Penal Code, 1860

(hereinafter referred to as, "IPC"). By virtue of the said judgment,

the appellant was convicted under section 376, IPC and

sentenced to Rigorous Imprisonment (hereinafter referred to as,

"RI")for a period of seven (7) years with a fine of Rs.5,000/-. In

default of the payment of fine, the said appellant was directed to

undergo a further Simple Imprisonment (hereinafter referred to

as, "SI") for a period of six (6) months. The appellant was also

sentenced to undergo RI for a period of six (6) months and a fine

of Rs. 500/- under section 506, IPC. In default of the payment of

fine, the appellant was directed to undergo SI for a period of

three (3) months.

2. The facts of the case as noticed by the learned Trial Court, briefly

stated are.

3. On 20.01.2007 at about 3:07 p.m., an information of commission

of rape was received by the Duty Officer of Police Station Khajuri

Khas, through Constable Satbir- No.1910, PCR. On receipt of this

information, ASI Sunita along with ASI Rajinder and lady

Constable Lakshmi reached House No.1502, the alleged house of

the appellant. On reaching there, the victim, her mother (Sudha),

and one Smt. Pushpa Chamoli met them. The SHO reached at the

spot and Crime team was informed. The victim, her mother and

Smt. Chamoli along with the police officials went to the house of

appellant, Mohinder, but he was not found present at his house.

Thereafter, the police officials took the victim to the police

station Khajuri Khas, where her statement was recorded.

Thereafter, the victim was taken to GTB Hospital, she was got

medically examined and MLC bearing No.C-260/07 was obtained.

On the basis of the statement of the victim, and in view of the

opinion of the Doctor on the MLC, the present case was

registered. Investigation was undertaken, site plan was prepared,

photographs of the place of occurrence were taken and the

appellant was arrested on 26.01.2007. Personal search of the

appellant was got done, the disclosure statement of the

appellant was recorded, and one bed sheet was recovered at his

instance. The appellant was medically examined, blood sample

was taken, however, the appellant failed to give his semen

sample. On 07.02.2007, statement of the victim was recorded

under Section 164, Cr.P.C. On 13.02.2007, TIP of the appellant

was scheduled to be fixed, but the appellant refused to join the

proceedings. The samples were sent to the FSL and eventually,

the appellant was sent for trial wherein he pleaded not guilty.

Post trial, the appellant was found guilty of the offence under

section 376, IPC read with section 506, IPC.

4. Learned counsel for the appellant submits that the learned trial

court has gravely erred in overlooking vital admitted facts. It is

contended that the evidence of the victim is neither reliable nor

trustworthy, and even otherwise there are vital discrepancies in

the statement made by the victim (PW-1) under Section 161 of

the Cr.P.C.; statement recorded under Section 164 of the Cr.P.C.;

as well as the statement made by her in evidence before the

Court.

5. It is contended by the learned counsel for the appellant that the

victim did not name the appellant before the Doctor, who had

recorded the MLC nor was the appellant named at the time of

recording of the statement of the victim under Section 164 of the

Cr.P.C. Learned counsel submits that according to the statement

of the prosecutrix (victim, PW-1), at the time of commission of

crime, she did not know the name of the appellant which she

admittedly learnt after many days had elapsed since the day of

the incident and that too because the people were addressing

the appellant by that name, and as such, this is a case of

mistaken identity.

6. Learned counsel for the appellant has contended that the

appellant has been falsely implicated by the victim, as she was

known to extract money from persons. It is also contended that

the age of the prosecutrix has not been established by any

cogent or reliable evidence. Besides, the mother of the victim

has admitted that she cannot tell the date, month and year of

the birth of her children.

7. Learned counsel has contended that the story, as unfolded by

the victim, is altogether improbable. Learned counsel submitted

that even if the testimony of PW-1 is believed, the only case

which is made out against the appellant is of attempt to rape

falling under Section 354 of the IPC and not under Section 376 of

the IPC. It is contended that even according to the prosecutrix,

the act of inter-course was never performed inasmuch as the

appellant put his penis in her place of passing urine, she

shouted, which scared the appellant and whereafter the

appellant immediately left her and ran away.

8. Learned counsel for the appellant submits that PW-4 is only a

chance witness. Learned counsel for the appellant further

contended that the salwar produced as evidence before the Court

and alleged to have been worn by the prosecutrix at the time of

the commission of crime did not belong to the victim, inasmuch as

the same has been observed by the learned trial court itself. He

submits that the salwar is inadmissible in evidence and contrarily

the trial court has drawn an adverse inference against the

appellant with regard to the presence of human semen found on

the salwar. It is submitted that no other article, having traces of

human semen, has been exhibited.

9. Learned counsel further contends that the scientific evidence does

not support the case of the prosecution. He submits that on

medical examination, hymen was found intact and no injury was

found on the body of the victim. Merely because semen was found

in the vagina, the same cannot connect the appellant to the crime

as the sample of semen of the appellant was not taken, which duly

finds mention in the MLC. Learned counsel further submits that

finding of semen on the bed-sheet cannot also support the case of

the prosecution as it has been wrongly held that the bed-sheet

was recovered at the instance and on the disclosure statement of

the appellant. Counsel further submits that in view of the fact that

the act was not completed, rape cannot be held to have been

made out. Moreover, the Doctor, who had examined the appellant,

was not produced for his evidence.

10. Learned counsel for the State, per contra, submits that it has

repeatedly been held by the Apex Court that the sole testimony of

the victim, if reliable, can be a ground for conviction of the

accused. Learned counsel contends that the victim has supported

the case of the prosecution, her evidence is material, reliable and

trustworthy. Counsel further contends that the evidence of the

victim was unshaken during cross-examination.

11. Learned counsel for the State submits that contention of the

appellant that other cases are pending against the victim is

baseless in view of the fact that no defence evidence has been led

in support of this allegation. It is further submitted that it cannot

be a case of mistaken identity as in the statement under Section

313 of the Cr.P.C., the appellant has clearly stated that he had

refused to pay the victim as she used to make false allegations,

and this shows that the appellant was not unknown to the victim

and vice-versa. Learned counsel for the State contends that the

victim has correctly described the incident and identified the

appellant.

12. Learned counsel for the State submits that besides the evidence of

the victim, the case of the prosecution stands corroborated by the

scientific as well as medical evidence. The blood sample of the

appellant was taken and according to the MLC, the appellant is

capable of performing sexual intercourse. Learned counsel for the

State submits that the appellant had refused to take part in the

Test Identification Parade (TIP) and he had also refused to give his

semen sample. Both these facts certainly affect the credibility of

the case of the appellant and incriminate him. In support of his

arguments, learned counsel for the State has relied upon the case

of Aman Kumar and Another Vs. State of Maharashtra,

reported at 2004 Supreme Court Cases (Cri.) 1266. Counsel has

also relied upon Ranjit Hazarika Vs. State of Assam, reported

at (1998) 8 SCC 635.

13. It would be useful to analyse the evidence of material witnesses.

PW-1, victim (name withheld) daughter of late Ashok Kumar,

deposed in her examination-in-chief that she knew appellant,

Mohinder, who was running a milk diary and keeping buffaloes

near the house of Smt.Chamoli. PW-1 stated that her mother

used to work in the house of Smt.Chamoli and she used to go to

her house for studies. PW-1 stated that she did not remember

the month but said that it was on the 20th of the month in the

year 2007 at about 1:30 pm. when she had gone to make dung

cakes in the dairy of appellant, Mohinder and when she was

making dung cakes, appellant Mohinder called her and asked to

put the empty balti (bucket) in his room and when she had gone

to do the same, the appellant held her hand, dragged her inside

his room, and started pressing her breasts by putting his hands

inside her clothes. Appellant Mohinder forcibly laid her on the

bed and when she tried to make noise, the appellant shut off her

mouth with his hand. Thereafter the appellant untied her salwar

and removed the same. The appellant unchained his pants took

out his penis and inserted the same in the place of her passing

urine. It pained her a lot, as a result of which she raised noise

and the appellant ran away from there threatening to kill her, if

she disclosed about this incident to anyone. PW-1 (victim) has

further stated that thereafter she went to the house of

Smt.Chamoli and informed her and her mother about the

incident. Smt.Chamoli informed the police on telephone. The

police officials came to them and accompanied the victim, her

mother, Smt.Sudha and Smt.Chamoli to the house of appellant,

Mohinder, but he was not found to be there. Thereafter the police

took them to the police station Khajori Khas and recorded her

statement Ex.PW-1/A, which bears her thumb impression as well

as her signatures at point A and X respectively. Thereafter she

was taken to the hospital and got medically examined. Her

salwar was taken in the possession in the hospital itself. A

sealed parcel bearing the seal of FSL was produced and opened

in the Court and a salwar of Yellow colour (Ex.P-1) was taken out.

However, PW-1 (victim) categorically did not identify the said

salwar (Ex.P-1) as the same which she had allegedly been

wearing at the time of the incident. The length of the salwar was

also compared with the height of PW-1 and it was found that the

salwar was proportionately very big. The Court also observed: "it

is so clear that the said salwar produced in the court cannot be

the salwar which the prosecutrix might be wearing at the time of

the occurrence." PW-1 admitted that the signatures on this

statement, Ex.PW-1/B, are her signatures at point „A‟. PW-1

further identified the metal bucket, as the same, which appellant

Mohinder had asked her to put in his room.

14. PW-1 was cross-examined by learned counsel for the appellant

and she deposed that at the time of recording of her statement

in the Court, one bhaiyaji used to bring her to the court. She

stated that bhaiyaji was not in her relation and was introduced to

her by Ms. Laleima, who is an Advocate from Rape Crisis Cell of

Delhi, Commission for Women. PW-1 further stated that she was

not a tutored witness. Initially, PW-1 had not named appellant,

Mohinder, at the place of occurrence when she had narrated

about the incident to her mother and Smt. Chamoli, as she did

not remember the same at that point of time. However, PW-1

denied the suggestion that she did not name appellant,

Mohinder, as he had not committed the crime but it was some

other unknown person. As per PW-1, immediately, after the

occurrence, she had reported the matter to her mother and Smt.

Chamoli. Police reached there after some time and she was

taken to the hospital for her medical examination. PW-1 stated

that she had not given the name of the appellant to the Doctor

who prepared her MLC and further it was correct that she did not

know the name of the appellant, who had committed rape upon

her, at the time of preparation of MLC. At that stage, a court

question was put to this witness: "Did you know the accused of

rape by face? Ans.: Yes. I knew the accused of rape by face. He

is present in the Court and his name is Mohinder."

15. PW-1 also stated during her cross-examination that the police

had recorded her statement, Ex.PW-1/A on her dictation and not

at the dictiation of anybody else. She learnt the name of

appellant as Mohinder, as people were addressing him by that

name. She came to know the name of the appellant after many

days of the occurrence. Further as PW-1, she had not given the

name of appellant as Mohinder in her statement, Ex.PW-1/B,

recorded by the Magistrate, although on that date her mother

and Smt. Chamoli had accompanied her to the court. She further

stated to not remember whether she had disclosed the place of

occurrence as Dairy in her statement, Ex.PW-1/B, recorded by

the Magistrate. PW-1 was confronted with Ex.PW-1/B, wherein

there was no mention of the place of occurrence as Dairy. PW-1

accepted that it was correct to say that there are several Dairies

where buffaloes are kept near her residence but there were no

such dairies near the place where her mother used to work at the

house of Smt. Chamoli. PW-1 stated that in and around the days

of occurrence of the incident, she was working in two houses, but

she did not know the house numbers and the gali wherein they

were situated. She stated that it was wrong to suggest that the

occurrence of rape had taken place at any of the aforesaid two

houses. She also denied the suggestion that no occurrence had

taken place at the dairy of appellant, Mahender, or that

appellant, Mahender, had not committed rape upon on her. She

stated that she was not deposing falsely at the instance of her

mother or Smt. Chamoli.

16. PW-2, Smt. Sudha (mother of the prosecutrix) has stated on oath

that she knew appellant, Mohinder, who was running a milk dairy

and keeping buffaloes near the house of Smt.Chamoli. As per

PW-2, she used to work as a maid servant in the house of

Smt.Chamoli and that her daughter (victim) used to go to her

house for studies. PW-2 has stated that on 20.1.2007, while she

was working in the house of Smt.Chamoli, her daughter came to

her and told that while she had gone to the dairy of Mohinder, at

around 1:30 noon, appellant, Mohinder asked her to put the

empty metal bucket in his room. At that time when her daughter

had gone to do so, appellant dragged her inside and raped her.

While this incident was narrated by her daughter, Smt.Chamoli

was also present there and she had also heard the complaint of

her daughter. As per PW-2, Smt.Chamoli had informed the police

telephonically. The police came to them and accompanied to the

dairy of Mohinder, but he could not be found there. Thereafter

police took them to the police station, where the statement of

her daughter (victim) was recorded.

17. In the cross-examination by learned counsel for the appellant,

PW-2, deposed that she has two children, namely, one son and

one daughter. Her son is two years elder to her daughter

(victim). PW-2 denied the suggestion that the age of the

prosecutrix was more than 18 years at the time of the incident.

She further stated that her daughter (victim) used to remain with

her or with Smt.Chamoli and that she was not working anywhere.

PW-2 stated that no one had tutored her about the date of the

incident and further that she had come to the court on her own

and no body had escorted her. When her daughter victim had

narrated the incident to her and Smt.Chamoli, soon after the

occurrence, her daughter had named the appellant, Mohinder

and had also described the place of occurrence as the dairy of

Mohinder. Further when Smt.Chamoli had telephonically

informed the PCR, she had named the accused as Mohinder and

the place of occurrence as dairy of Mohinder. Police had recorded

her statement. PW-2 further deposed that she had told the name

of the appellant to the doctor, at the time of medical

examination of her daughter. She denied the suggestion that

she did not know the name of the appellant till the medical

examination of her daughter. And that it was wrong to suggest

that she did not know the name of the appellant even till the

recording of the statement of her daughter by the Magistrate.

PW-2 also denied that the appellant present in the Court had not

committed rape with her daughter, victim or that some other

unknown person had raped her daughter. She further stated that

this was not a case of mistaken identity and she has not falsely

implicated the appellant at the instance of Smt.Chamoli and local

police. PW-2 on seeing the salwar, Ex.PW-1, submitted that she

was not sure whether the said salwar was the same which her

prosecutrix, daughter, was wearing at the time of the

occurrence.

18. PW-3, Dr. Monika (Senior Resident, GTB Hospital Delhi) deposed

in her examination-in-chief that on 20.1.2007, at about 5:30 pm

prosecutrix, daughter of Ashok Rai, aged 11 years was brought

for her medical examination by a lady constable, Police Station

Khajori Khas. Mother of the victim, namely, Smt.Sudha was also

accompanying the victim. The alleged history was given by the

victim herself and the same is mentioned in the MLC. On

examination no marks of injury were found on the body of the

prosecutrix. PW-3 further stated that on local examination,

external genetalia was healthy and hymen was intact. Smears

were made from vulva and slides were handed over to the lady

constable. Salwar of the prosecutrix was also sealed and handed

over to the lady constable. This victim was further advised for

bone x-ray. As per PW-3, the MLC (Ex.PW-3/A) was prepared by

her and bears her signatures at point (A).

19. In the cross-examination by counsel for the appellant, PW-3

deposed that at the time of medical examination, mother of the

prosecutrix was also present. PW-3 further stated that it was

wrong to suggest that age of the prosecutrix was 18 years.

20. PW-4, Smt.Pushpa Chamoli has deposed in her examination-in-

chief that she runs a school under the name and style of RD

Convent School, Sonia Vihar, Delhi. Smt. Sudha used to work in

her school, in the year 2007. On 20.1.2007 Sudha was present in

her house and daughter of Sudha namely, victim, came weeping

to her house. Her mother was also present in the house, where

she was doing the domestic work. Her mother brought the

victim before PW-4. PW-4, stated that at that time, she noticed

that the clothes of victim were dirty. The victim informed her

about the detail of the incident which had occurred to her and

she also named the appellant. Thereafter PW-4 informed the PCR

in the presence of the victim and her mother. PCR officials came

to their house and thereafter she along with the victim and her

mother along with the police officials of PCR went to the house of

the appellant, who was not present there at that point of time,

however, the mother of the appellant was there. After some

time local police also came at the spot. As per PW-4, from the

spot they along with the police came to the police station and

thereafter they came to GTB hospital along with lady constable,

Laxmi. In GTB hospital the victim was medically examined and

her MLC was prepared by the doctor and a case was registered

by the police on the statement of the victim and the statement of

PW-4 was also recorded by the police. PW-4 further stated that

she saw the appellant, Mohinder for the first time in the Court

today. PW-4 was cross-examined by the learned counsel for the

appellant, wherein she deposed that after the incident Sudha

was residing in her house for a period of 2-3 months for security

purposes. She stated to not have any record of Smt. Sudha was

working in her house or in the school. During hearing the

incident, prosecutrix disclosed the name of the appellant as well

as the place of the incident. She stated that it was incorrect to

suggest that she was deposing falsely or that at the time of the

incident, the prosecutrix was aged about 18 years.

21. PW-5, Constable Gianender, deposed on oath that on

26.01.2007, he was posted in police Station Khajuri Khas, PW-5

affirmed that the appellant was arrested on a secret information

received by him along with PW-6 and HC Jagpal Singh while they

were on patrolling duty on the area. As per PW-5, he was sent

with the appellant to GTB Hospital, so as to get him medically

examined. After the examination, the Doctor, had given him two

sealed parcels, which were handed over by him to ASI Sunita

who seized the same vide memo, Ex.PW-5/A. Learned APP for

the State re-examined this witness, wherein he stated that it was

correct to say that the appellant had produced one bed-sheet

and one steel bucket from his house and the same were taken

into possession vide memo, Ex.PW-5/B. PW-5 further identified

the unsealed metal bucket, Ex.P-2, as the same which was

produced by the appellant. The appellant also identified the bed

sheet, as Ex.P-3. In the cross-examination by counsel for the

appellant, PW-5 stated that it was correct to say that in his

statement under Section 161, Cr.P.C. he had not stated that one

bucket and bed sheet were produced by the appellant from his

house. PW-5 however, denied the suggestion that he was

deposing falsely with respect to identification of the bucket and

the bed sheet.

22. PW-6, SI Satender Tomar, deposed on oath that on 26.01.2007,

he was posted at Police Station Khajuri Khas at about 7.30 a.m.,

when he was present near Zero Pushta, Nanak Sar Picket, an

informer met him and gave information that the person involved

in a rape case would come from third Pushta from Cronica Road

and if a raid is conducted he could be apprehended. On this

information, a trap was raid and about 8.50 a.m., the appellant

was apprehended vide arrest memo, Ex.PW-6/A, and his personal

search was conducted vide Ex.PW-6/B, and he made his

disclosure statement, Ex.PW-6/C. PW-6 was cross-examined by

the counsel for the appellant wherein he denied that no such

information was received by him or that he was deposing falsely.

23. PW-9, ASI Sunita, deposed that on 20.01.2007, she was posted at

Polcie Station Khajuri Khas. On that day, D.D. No.14-A was given

to her for investigation of this case and she along with Ct. Satish

and lady Ct. Laksmi went to Bhagatji ka Mandir, Sonia Vihar,

Delhi, where the complainant (victim); her mother, Sudha; and

Smt. Chamoli met them. From the spot they all went to house

No.B-1502, Gali No.21. PW-9 stated that she recorded the

statement of the victim, as Ex.PW-1/A and she along with lady

Constable Lakshmi, the mother of the victim and Smt. Chamoli

went to GTB Hospital for the medical examination of the victim.

Thereafter, she obtained the MLC of victim and lady constable

handed over her three sealed parcels which were seized by her

vide Memo Ex.PW-8/A. Further on 26.01.2007, she had seized

one bed sheet and bucket from the house of the appellant vide

Memo Ex.PW-5/B. PW-9 also identified the said case property

interalia bucket and the bed-sheet. As per PW-9, during the

course of the investigation she had also moved an application for

Test Identification Parade (TIP) of the appellant on 12.02.2007,

but the appellant had refused to participate in the Test

Identification Parade.

24. I have heard learned counsel for the parties, perused the

material on record and gone through the evidence of the

witnesses. The contentions of learned counsel for the appellant

may be summed up as under:

a. evidence of the prosecutrix (victim, PW-1) is neither reliable nor trustworthy.

b. even if the testimony of PW-1 is believed, the only case which is made out against the appellant is under Section 354, IPC.

c. admittedly, the victim did not know the name of the appellant, and it is a case of mistaken identity. d. victim was known to extract money from persons. e. age of the prosecutrix has not been established. f. PW-4 is only a chance witness.

g. salwar produced before the Court, did not belong to the victim and is inadmissible as evidence. h. scientific evidence does not support the case of the prosecution

25. The contention of learned counsel for the State may be summed

up as under:

a. the evidence of victim is material, reliable and trustworthy and further the testimony of this victim was unshaken in the cross-examination. b. victim has completely described the incident and identified the appellant and is not a case of mistaken identity.

c. sole testimony of the victim, if reliable, can be the ground for conviction of the accused.

d. prosecution stands corroborated by the scientific as well as medical evidence.

e. blood sample of the appellant was taken and according to the MLC, appellant is capable of performing sexual intercourse.

f. appellant had refused to take part in the Test Identification Parade (TIP) and also refused to give his semen sample. Both these facts certainly incriminate him.

26. The first submission of learned counsel for the appellant is that

PW-1, victim is unreliable as there are vital discrepancies in her

statement and that no offence under Section 376 of the IPC is

made out. Mr. Rohatgi, learned counsel for the appellant further

submits that the reading of the statement of the victim would not

show that there was any penetration and at best only a case

under Section 354 of the IPC is made out. It is trite law that

penetration is a sine qua non for establishing the offence of rape.

But it has also been simultaneously held that complete

penetration with emission of semen and rupture of hymen is not

necessary. Even a slight penetration in vulva with or without

violence is sufficient to constitute the offence of rape. In the case

of Aman Kumar and Another Vs. State of Haryana, reported

at (2004) 4 SCC 379, it has been held as under:

"6. The offence of rape occurs in Chapter XVI IPC. It is an offence affecting the human body. In that chapter, there is a separate heading for "sexual offences", which encompass Sections 375, 376, 376- A, 376-B, 376-C and 376-D. "Rape" is defined in Section 375. Sections 375 and 376 have been substantially changed by the Criminal Law (Amendment) Act, 1983, and several new sections were introduced by the new Act i.e. Sections 376-A, 376-B, 376-C and 376-D. The fast sweeping changes introduced reflect the legislative intent to curb with an iron hand, the offence of rape which affects the dignity of a woman. The offence of rape in its simplest term is "the ravishment of a woman, without her consent, by force, fear or fraud", or as "the carnal knowledge of a woman by force against her will". "Rape or raptus" is when a man hath carnal knowledge of a woman by force and against her will (Co Litt 123 b); or, as expressed more fully, "rape is the carnal knowledge of any woman, above the age of particular years, against her will; or of a woman child, under that age, with or against her will". (Hale PC 628) The essential words in an indictment for rape are rapuit and carnaliter cognovit; but carnaliter cognovit, nor any other circumlocution without the word rapuit, are not sufficient in a legal sense to express rape. [1 Hen. 6, 1a, 9 Edw. 4, 26 a (Hale PC

628)] In the crime of rape, "carnal knowledge" means the penetration to any the slightest degree of the organ alleged to have been carnally known by the male organ of generation. (Stephen's Criminal Law, 9th Edn., p. 262) In Encyclopaedia of Crime and Justice (Vol. 4, p. 1356), it is stated "... even slight penetration is sufficient and emission is unnecessary". In Halsbury's Statutes of England and Wales (4th Edn.), Vol. 12, it is stated that even the slightest degree of penetration is sufficient to prove sexual intercourse. It is violation, with violence, of the private person of a woman, an outrage by all means. By the very nature of the offence it is an obnoxious act of the highest order."

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 Haryana1.] ............. 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."

27. Applying the aforesaid principles laid in Aman Kumar (supra) to

facts of this case, the statement of the victim, does not leave any

room for doubt that there was penetration in this case. PW-1

(victim) in her statement has clearly stated that in the year 2007

at about 1:30 p.m., she had gone to make dung cakes in the

dairy of appellant, Mohinder. When she was making dung cakes,

appellant, Mohinder, called her and asked her to put empty

bucket in his room and when she went to the room the appellant,

the appellant caught hold of her by her hand and dragged her

inside his room, pressed her breast by putting his hands inside

her clothes, forcibly laid her on his bed and when she tried to

raise a noise, he shut off her mouth with his hands, untied her

salwar and removed the same. The appellant unchained his

pants, took out his penis and inserted the same in the place of

her passing urine. It pained her a lot, as a result of which, she

raised a noise, on which the appellant ran away from there

threatening to kill her in the event she disclosed this incident to

(1979) 1 SCC 212 : 1979 SCC (Cri) 252

anyone. The submission of learned counsel for the appellant that

the act, which has been described, cannot be termed as rape, is

fallible inasmuch as the prosecutrix has categorically stated that

the appellant inserted his penis in the place of her passing urine

and it pained her a lot, which would clearly show penetration and

can be not termed as attempt to rape.

28. There is also no force in the contention of learned counsel for the

appellant that the age of the victim was Eighteen years at the

time of the incident of rape. When the statement of the

prosecutrix (victim) was recorded under Section 164 of the

Cr.P.C., the learned Magistrate has categorically noted that the

age of the prosecutrix was Eleven years. Even PW-3, Dr. Monika,

Sr. Resident, GTB Hospital Delhi, has stated in the MLC that the

age of the prosecutrix was Eleven years. PW-3 further denied

the suggestion that the prosecutrix was of Eighteen years of age.

In any case, it is not the defence of the appellant that the victim

had consented for sexual intercourse.

29. Learned counsel for the appellant has next submitted before me

that the identity of the appellant is in doubt in view of the fact

that the victim did not name him at the first opportunity

available when she was taken for her medical examination

before the Doctor nor she named the appellant in her statement

made under Section 164 of the Cr.P.C. Although PW-1 had stated

in her evidence before the Court that she had not given the

name of the appellant to the Doctor who had prepared her MLC

and further it was correct that she did not know the name of the

appellant, who had committed rape upon her, at the time of her

recording of her statement under section 164 Cr.P.C. However, a

careful reading of the statement made by the victim before the

Magistrate, under section 164 Cr.P.C., would show that the victim

had clearly described the sequence of events at the time when

she was raped, and had further stated that she could easily

identify the culprit, if he was brought before her. During trial,

when the victim was being cross-examined by the counsel for the

appellant, a court question was put to the victim: "Did you know

the accused of rape by face? The victim replied in affirmative to

this question and stated "Yes. I knew the accused of rape by

face. He is present in the Court and his name is Mohinder." This

shows that the victim clearly identified the appellant as the

culprit. The victim also deposed in her cross-examination that

the police had recorded her statement, Ex.PW-1/A on her

dictation and not at the dictation of anybody else. She learnt the

name of appellant as Mohinder, as people were addressing him

by that name. She came to know the name of the appellant after

many days of the occurrence. PW-1 also denied the suggestion

that no occurrence had taken place at the dairy of appellant,

Mohinder or that appellant, Mohinder, had not committed rape

upon on her. Further, in my considered opinion, the statement

made by the appellant under Section 313 of Cr.P.C.,

automatically dispels any false notions, as to the correctness of

the identification by the victim and whether the appellant was

known to the victim or not. The appellant had stated under

Section 313 of the Cr.P.C., that the prosecutrix (victim) was in

the habit of extracting money by making false allegations

against innocent persons, and when the appellant had refused to

pay the money, he was falsely implicated in this case. The

appellant has not only failed to lead any evidence in support of

his contention that an eleven year old minor girl (victim) used to

extract money in such a manner, but the very fact that the

appellant has alleged against the victim goes to show that he

knew the victim and he was present at the time of the incident.

As already observed in the cross-examination by counsel for the

appellant, the victim denied the suggestion that she did not

know the name of the appellant, Mohinder, or that the appellant,

Mohinder, (present in Court) had not committed rape upon her,

or there was some unknown person. In fact in the later portion of

her cross-examination, the victim has categorically stated that

she knew the appellant by face and "he is present in the Court".

The victim further identified her statement, Ex.PW-1/B, and

admitted her signatures at point „A‟. The victim further identified

the metal bucket, as the same, which appellant Mohinder had

asked her to put in his room. Merely because the salwar, which

was produced in the Court was of large size and admittedly could

not be the size of the victim, that by itself alone cannot be a

ground to disbelieve the case of the prosecution. In any case

this salwar was neither identified by the victim or her mother.

Any mix up of the salwar by the prosecution cannot be of any

help to the appellant. The victim has been consistent in her

statement recorded under Section 164 of the Cr.P.C. as well as

the statement given by her in evidence before the Court. The

victim denied that she was a tutored witness. She has withstood

the cross-examination and there is no room for doubt that the

victim has correctly identified the appellant as the person who

committed the heinous crime of rape upon her, ravished her

physically and left a mental scar forever. Soon after the

statement of the victim was recorded, the police had visited the

house of the appellant, who was not found; but his mother was

available. This would also show that the victim was aware and

correctly identified the person and place of occurrence. The

appellant can, thus, gain no advantage from the fact that the

victim did not name appellant before the doctor at the time of

recording of the MLC.

30. It is settled proposition of law that a victim of rape is not an

accomplice; her testimony can be acted upon without

corroboration in material particulars; a victim of rape is treated

at a higher pedestal than an injured person; and a conviction in a

rape case can safely be awarded on the sole testimony of the

prosecutrix. The only caveat here is that her version should be

reliable, trustworthy and should inspire confidence. In case the

Court finds it difficult to place implicit reliance on her testimony,

it may look for evidence which may lend assurance to her

testimony. In the case of Madho Ram and Anr. Vs. The State

of UP reported at AIR 1973 SC 469, the Apex Court observed

that:

"The only rule of law is the rule of prudence, namely, the advisability of corroboration should be present in the mind of the judge or the jury, as the case may be. There is no rule of practice that there must, in every case, be corroboration before the conviction can be allowed to stand."

In the case of State of Rajasthan Vs. N.K., reported at (2000) 5 SCC

30 the Supreme Court has observed:

"A plethora of decisions by this Court as referred to above would show that once the statement of the prosecutrix inspires confidence and is accepted by the Courts as such, conviction can be based only on the solitary evidence of the prosecutrix and no corroboration would be required unless there are compelling reasons which necessitate the Courts for corroboration of her statement. Corroboration of testimony of the prosecutrix as a condition for judicial reliance is not a requirement of law but a guidance of prudence under the given facts and circumstances. It is also noticed that minor contradictions or insignificant discrepancies should not be a ground for throwing out an otherwise reliable prosecution case. Non-examination of doctor and non-production of doctor„s report would not be fatal to the prosecution case, if the statements of the prosecutrix and other prosecution witnesses inspire confidence."

31. Similarly, in State of Rajasthan Vs. Biram Lal, reported at

(2005) 10 SCC 714, the Supreme Court held that if the sole

testimony of the prosecutrix is free from blemish and implicitly

reliable, then a conviction can be recorded on that basis. It was

observed as follows:

"It is not the law that in every case version of the prosecutrix must be corroborated in material particulars by independent evidence on record. It all depends on the quality of the evidence of the prosecutrix. If the Court is satisfied that the evidence of the prosecutrix is free from blemish and is implicitly reliable, then on the sole testimony of the prosecutrix, the conviction can be recorded. In appropriate cases, the Court may look for corroboration from independent source or from the circumstances of the case before recording an order of conviction."

32. In the case of State of Punjab v. Gurmit Singh reported at

(1996) 2 SCC 384, regarding a rape victim, the Apex Court

held:

"8. .........The courts must, while evaluating evidence, remain alive to the fact that in a case of rape, no self-respecting woman would come forward in a court just to make a

humiliating statement against her honour such as is involved in the commission of rape on her. In cases involving sexual molestation, supposed considerations which have no material effect on the veracity of the prosecution case or even discrepancies in the statement of the prosecutrix should not, unless the discrepancies are such which are of fatal nature, be allowed to throw out an otherwise reliable prosecution case. The inherent bashfulness of the females and the tendency to conceal outrage of sexual aggression are factors which the courts should not overlook. The testimony of the victim in such cases is vital and unless there are compelling reasons which necessitate looking for corroboration of her statement, the courts should find no difficulty to act on the testimony of a victim of sexual assault alone to convict an accused where her testimony inspires confidence and is found to be reliable. Seeking corroboration of her statement before relying upon the same, as a rule, in such cases amounts to adding insult to injury. Why should the evidence of a girl or a woman who complains of rape or sexual molestation, be viewed with doubt, disbelief or suspicion? The court while appreciating the evidence of a prosecutrix may look for some assurance of her statement to satisfy its judicial conscience, since she is a witness who is interested in the outcome of the charge levelled by her, but there is no requirement of law to insist upon corroboration of her statement to base conviction of an accused. The evidence of a victim of sexual assault stands almost on a par with the evidence of an injured witness and to an extent is even more reliable........"

"21. ......It is a sad reflection on the attitude of indifference of the society towards the violation of human dignity of the victims of sex crimes. We must remember that a rapist not only violates the victim‟s privacy and personal integrity, but inevitably causes serious psychological as well as physical harm in the process. Rape is not merely a physical assault -- it is often destructive of the whole personality of the victim. A murderer destroys the physical body of his victim, a rapist degrades the very soul of the helpless female. The courts, therefore, shoulder a great responsibility while trying an accused on charges of rape. They must deal with such cases with utmost sensitivity. The courts should examine the broader probabilities of a case and not get swayed by minor contradictions or insignificant discrepancies in the statement of the prosecutrix, which are not of a fatal nature, to throw out an otherwise reliable prosecution case. If evidence of the prosecutrix inspires confidence, it must be relied upon without seeking corroboration of her statement in material particulars. If for some reason the court finds it difficult to place implicit reliance on her testimony, it may look for evidence which may lend assurance to her testimony, short of corroboration required in the case of an accomplice. The testimony of the prosecutrix must be appreciated in the background of the entire case and the trial court must be alive to its responsibility and be sensitive while dealing with cases involving sexual molestations." [Emphasis supplied]

"22. ......The provisions of Evidence Act regarding relevancy of facts notwithstanding, some defence counsel adopt the strategy of continual questioning of the prosecutrix as to the details of the rape. The victim is required to repeat again and again the details of the rape incident not so much as to bring out the facts on record or to test her credibility but to test her story for inconsistencies with a view to attempt to twist the

interpretation of events given by her so as to make them appear inconsistent with her allegations. The court, therefore, should not sit as a silent spectator while the victim of crime is being cross-examined by the defence. It must effectively control the recording of evidence in the court. While every latitude should be given to the accused to test the veracity of the prosecutrix and the credibility of her version through cross- examination, the court must also ensure that cross-examination is not made a means of harassment or causing humiliation to the victim of crime. A victim of rape, it must be remembered, has already undergone a traumatic experience and if she is made to repeat again and again, in unfamiliar surroundings what she had been subjected to, she may be too ashamed and even nervous or confused to speak and her silence or a confused stray sentence may be wrongly interpreted as "discrepancies and contradictions" in her evidence."

33. In the case of State of Punjab (supra), the Apex Court has

observed that the court should be sensitive while dealing with a

case involving sexual molestation. Rape is not merely a physical

assault, it is often destructive of the whole personality of the

victim. A word of caution has come to ensure that during cross-

examination when the victim is required to repeat again and

again the details of the rape incident, the Court should not sit as

a silent spectator, to allow the victim to be harassed, humiliated,

while she is asked to repeat her traumatic experience. In the

facts of this case, it is seen that the victim has clearly described

the incident and to say that a further detailed account should

have been given, which would show penetration is not a

requirement, the victim could not have been allowed to be

humiliated and called upon to narrate her experience in further

details. In the same vein every latitude was given to the

appellant to test the veracity of the prosecutrix and the

credibility of her version through cross-examination. I find the

version of the victim to be reliable and trustworthy. Soon after

the incident of rape, the victim informed her mother (PW-2) at

the house of Smt. Chamoli, who lost no time and immediately

reported the matter to the police. The police witnesses have also

deposed that an information regarding commission of rape was

received by the Duty Officer of Police Station Khajuri Khas,

through Constable Satbir- No.1910, PCR. Without any delay the

victim was taken to GTB hospital for her medical examination.

This fact stands affirmed by PW-3, Dr. Monika (Senior Resident,

GTB Hospital, Delhi) who has deposed that on 20.1.2007, at

about 5:30 pm, prosecutrix, daughter of Ashok Rai, aged 11

years was brought for her medical examination by a lady

constable, Police Station Khajori Khas. Mother of the victim,

namely, Smt.Sudha was also accompanying the victim. PW-3 has

also deposed that the alleged history of rape by someone was

given by the victim herself, who had not taken bath and not

changed clothes since then. PW-1 has also been corroborated by

PW-2, Sudha, the mother of the victim, who has also stated

against the appellant that he is responsible for having raped her

daughter. PW-2 stated that on 20.1.2007, when she was working

in the house of Smt. Chamoli, her daughter had told her, that

while she (victim) had gone to the dairy of Mohinder, for making

dung cakes, at about 1:30 p.m. the appellant asked her daughter

(victim) to put the empty metal bucket in his room. When her

daughter had gone to do so, appellant Mohinder, dragged her

daughter inside the room and thereafter raped her. While this

incident was being narrated by her daughter, Smt. Chamoli was

also present there and had heard the complaint of her daughter.

Smt. Chamoli informed the police on the telephone and

thereafter the police officials came and accompanied them to the

dairy of appellant, Mohinder, but he was not found there. PW-2

withstood the cross-examination and was unshaken in her

testimony that her daughter has informed her about the incident

that the appellant was responsible for having raped her

daughter. PW-4, Smt. Chamoli, has also corroborated the case of

the prosecution that PW-1 (victim), had informed about the

incident to her mother (PW-2), in her (PW-4) presence. There is

no merit in the contention of learned counsel for the appellant

that simply because PW-4 is a chance witness, her version is to

be discarded.

34. I have carefully perused the medical as well as the scientific

evidence on record. Learned counsel for the appellant has

submitted that there is nothing on record to connect the

commission of crime with the appellant. There is nothing to

suggest that the semen which was detected in the vulva of the

victim was that of the appellant and further as per the MLC,

there was no injury on the person of the victim and the hymen of

the victim was intact. On the contrary, learned counsel for the

State has submitted that it is the appellant, who had refused to

give his semen sample. Although I find that as per the MLC of the

victim, there was no injury mark and the hymen of the victim

was intact, however, I am not convinced by the contention of the

counsel for the appellant that this factum is proof enough that no

rape was committed. In „the Essentials of Forensic Medicine‟ by

Dr. K.S. Narayan Reddy, 25th Ed., Ch. 16 (Virginity, Pregnancy

and Delivery), it has been stated that merely because the hymen

is intact, it does not connote that a girl has not been subjected to

sexual intercourse. Relevant portion reads as under:

"Medico-legal Aspects: The presence of un- ruptured hymen is a presumption, but is not an absolute proof of virginity. The diagnosis of virginity is difficult and in many cases a physical examination of the genital organs may not be helpful. With an intact hymen, there are true virgins and false virgins. The hymen is present always in a virgin in some form or other, but very rarely may be absent congenitally. The principle signs of virginity are: (1) An intact hymen. (2) A normal condition of the fourchette and posterior commissure. (3) A narrow vagina with rugose walls. These signs taken together, may be regarded as evidence of virginity but taken singly they cannot be so regarded.

The hymen is usually ruptured at the time of the first coitus, and at first only presents a torn appearance. Hymen may not be ruptured even after repeated acts of coitus if it is loose, folded and elastic, or thick, tough and fleshy, which permit displacement, distortion and stretching without rupture. Cases have been recorded of women having sexual relations, of pregnant women and even prostitutes in whom the hymen was intact. In women who are used to coitus, and in those who have borne children, the hymen is destroyed and small, round, fleshy projections or tags, known as carunculae hymenates or myrtiformes are formed round the hymenal ring."

35. Further in the case of Ranjit Hazarika Vs. State of Assam,

reported at (1998) 8 SCC 635, the Apex Court has observed

that merely because there were no injuries on the person of the

victim and the hymen was intact, does not lead to a corollary

that there was no coitus. It was held as under:

"5. The argument of the learned counsel for the appellant that the medical evidence belies that testimony of the prosecutrix and her parents does not impress us. The mere fact that no injury was found on the private parts of the prosecutrix or her hymen was found to be intact does not belie the statement of the prosecutrix as she nowhere stated that she bled per vagina as a result of the penetration of the penis in her vagina. She was subjected to sexual intercourse in a standing posture and that itself indicates the absence of any injury on her private parts. To constitute the offence of rape, penetration, however slight, is sufficient. The prosecutrix deposed about the performance of sexual intercourse by the appellant and her statement has remained unchallenged in the cross-examination. Neither the non-rupture of the hymen nor the absence of injuries on her private parts, therefore, belies the testimony of the prosecutrix particularly when we find that in the cross- examination of the prosecutrix, nothing has been brought out to doubt her veracity or to suggest as to why she would falsely implicate the appellant and put her own reputation at stake. The opinion of the doctor that no rape appeared to have been committed was based only on the absence of rupture of the hymen and injuries on the private parts of the prosecutrix. This opinion cannot throw out an otherwise cogent and trustworthy evidence of the prosecutrix. Besides, the opinion of the doctor appears to be based on "no reasons".

36. In another case, B.C. Deva v. State of Karnataka, reported at

(2007) 12 SCC 122, inspite of the fact that no injuries were

found on the person of the prosecutrix, yet finding her version to

be reliable and trustworthy, the Apex Court upheld the conviction

of the accused.

"18. The plea that no marks of injuries were found either on the person of the accused or the person of the prosecutrix, does not lead to any inference that the accused has not committed forcible sexual intercourse on the prosecutrix. Though the report of the

gynaecologist pertaining to the medical examination of the prosecutrix does not disclose any evidence of sexual intercourse, yet even in the absence of any corroboration of medical evidence, the oral testimony of the prosecutrix, which is found to be cogent, reliable, convincing and trustworthy has to be accepted."

37. Taking into consideration the facts of this case in terms of the

observations contained in Essentials of Forensic Medicine

(supra); Ranjit Hazarika (supra); B.C. Deva (supra), to lay

down a general proposition that where there are no injuries or

that the hymen is intact, connotes that no penetration has taken

place and a finding of acquittal is bound to be given, would be an

incomplete interpretation of the law surrounding the offence of

rape. As also observed in the aforegoing paras., even a slight

penetration in vulva with or without violence is sufficient to

constitute the offence of rape. In this case, not only in the

statements under Section 161, Cr.P.C. and 164 Cr.P.C. but also in

the evidence before the Court the victim has clearly described

the incident and has also identified the appellant as a culprit.

Even at the time of the examination in the hospital, as per the

MLC, the victim had herself given her history of having been

subjected to rape by someone in the afternoon of that day. Thus

the submission of learned counsel for the appellant that the MLC

of the victim did not show any fresh injuries and that the hymen

was intact, can be of no help to the appellant in view of the fact

that the testimony of the victim is reliable and trustworthy.

Further, the scientific evidence placed on record clearly

corroborates the case of the prosecution that the victim had

been subjected to rape by the appellant. The vaginal swabs of

the victim were sent for examination to the Forensic Science

Laboratory (FSL) and as per the report, Ex.PW-9/E, human semen

was detected on Exhibits 1, 2, 3, and 5. Exhibits 1 and 2 are the

two micro slides that were prepared by the doctor, after

collecting smears from the vulva at the time of the examination

of the victim. The two slides were prepared without any delay

and human semen has been detected in the vulva. Exhibit 5, the

bed sheet, which was spread on the bed at the time of

commission of rape and on which the alleged incident took place,

had been recovered at the instance of the appellant, and was

also found positive for semen. This also connects the appellant

with the commission of offence as per section 27 of the Evidence

Act. In the case of Nisar Khan Vs. State of Uttaranchal

reported at (2006) 9 SCC 386, it was held as under:

"It is now well-settled principle of law that the recovery pursuant to the disclosure statement made by the accused under Section 27 of the Evidence Act is admissible in evidence. In Dhananjoy Chatterjee v. State of W.B.2 it is held that the entire statement made by an accused person before the police is inadmissible in evidence being hit by Sections 25 and 26 but that part of his statement which led to the discovery of the articles is clearly admissible under Section 27 of the Act. It is also held that the Court must disregard the inadmissible part of the statement and take note only of that part of his statement which distinctly relates to the discovery of the articles pursuant to the disclosure statement made by the accused. It is further held that the discovery of the fact in this connection includes the discovery of an object found, the place from which it is produced and the knowledge of the accused as to its existence.

(1994) 2 SCC 220 : 1994 SCC (Cri) 358.

7. In Golakonda Venkateswara Rao v. State of A.P.3 this Court reiterated the view and held that the discovery statement of an accused leading to recovery of crime articles from concealed place, even though the discovery statement and the recovery memo did not bear the accused‟s signature, the fact of recovery from the well and dug out was from a place which was pointed out by the appellant and, therefore, such discovery was voluntary. That the recovery was in consequence to the information given was fortified and confirmed by the discovery of the apparel worn and skeletal remains of the deceased and, therefore, the information and statement cannot be held to be false. .........."

38. In the MLC of the appellant, it has been stated that blood sample

of the appellant, Mohinder, was collected, but semen sample

could not be collected. In the circumstances of this case, the fact

that the appellant had not only failed to give his semen sample,

but also refused for the Test Identification Parade, certainly nails

the appellant. Taking into consideration the evidence of the

victim, which is consistent, reliable and trustworthy, which by

itself can be the sole ground for conviction, however, her

evidence stands fully corroborated by the medical and scientific

evidence as well as the fact that the appellant had refused the

TIP, no semen sample was given; and having regard to the

settled position of law, I am convinced that the appellant is