Bhura Singh vs State Of Delhi
2011 Latest Caselaw 5646 Del

*              IN THE HIGH COURT OF DELHI AT NEW DELHI

+                        Crl. Appeal No.910/2006

%                     Date of Decision: 23.11.2011

Bhura Singh                                                 .... Appellant

                      Through: Mr. Amit Khanna, Advocate.

                                 Versus

State of Delhi                                            .... Respondent

                      Through: Mr.M.N.Dudeja, APP for the State.

                                 Ms.Meenakshi Lekhi, Advocate for the
                                 complainant/prosecutrix


CORAM:
HON'BLE MR. JUSTICE ANIL KUMAR
HON'BLE MR. JUSTICE V.K.SHALI

1.    Whether reporters of Local papers may be               YES
      allowed to see the judgment?
2.    To be referred to the reporter or not?                 YES
3.    Whether the judgment should be reported in             YES
      the Digest?


ANIL KUMAR, J.

1. The appellant has challenged his conviction in Sessions Case

No.115 of 2003, titled as „State v. Bhura‟, arising from the FIR No.350 of

2003, under Sections 323/325/ 342/ 354/ 387/ 376 Indian Penal

Code, PS Anand Vihar convicting the appellant under Sections 376,

326, 342 of the Indian Penal Code and sentencing the appellant to

undergo rigorous life imprisonment under Section 376 and 326 of the

Indian Penal Code and a fine of Rs.5,000/- and in default to undergo

simple imprisonment for three years. The appellant was further

sentenced to undergo rigorous imprisonment for one year for the offence

punishable under Section 342 of the Indian Penal Code.

2. The case of the prosecution in brief is that Ms.Rinchu, the

prosecutrix was working as a Private Nurse/Attendant, in Shanti

Mukund Hospital, situated within the bounds of Police Station Anand

Vihar. At the time of incident she was engaged to look after Sh. S.K.

Kaushik, an aged patient, in room No. 208, which is situated on the

second floor of the hospital. He was a paralytic patient and he was

unable to speak or move. Ms.Rinchu used to attend to him from 8 p.m.

to 8 a.m. everyday. On the night intervening 6/7th September, 2003,

Ms.Rinchu was lying on the side seat of the attendant and she was

feeling drowsy, because of which she drifted off to sleep. Suddenly, she

felt that somebody was fondling her breasts. She opened her eyes and

found that accused Bhura, who was a sweeper in the hospital and was

known to Ms.Rinchu for the last ten days, was present there. Ms.

Rinchu stood up on her feet and asked him to get out of the room.

When Bhura, the appellant, did not respond, she threatened to call the

sister-in-charge by ringing the bell. She then started moving her hands

towards the bell, but Bhura caught hold of her hands. The prosecutrix

then screamed but the accused had put his hand on her mouth and

gagged her. Consequently, Rinchu, the prosecutrix was unable to raise

her voice. In the meantime, Bhura dragged her towards the second

patient‟s bed in the room which was lying unoccupied. The prosecutrix

then threw up some blood and fell down on the floor as she became

unconscious. During the wee hours, at about 4:30 a.m., she regained

her consciousness. She then tried to open her eyes but she could not

see from her right eye. Thereafter, she opened her left eye and touched

her body and found that her panty, salwar and chunni had been

removed. With great difficulty, she picked her clothes and put them on.

She touched her surroundings and she realized that she was lying in

the bathroom with her blood which had spread from her mouth and her

eye ball. She reached the door of the bath room, however, found that it

was bolted from outside. She was too much in pain and shock, which

made her incapable of screaming and so she sat down taking the

support of the bathroom walls.

3. At about 6:30 a.m., a ward Boy, PW-8 Vyas Sharma arrived and

he opened the bathroom and found the prosecutrix. He brought her out

of the bathroom. Prosecutrix then informed him that she was raped by

the accused Bhura, the sweeper during the night. The Ward Boy and

Sister took her to the casualty and immediately tended to her eye, and

it was bandaged, as her eye was seriously injured. During the medical

examination of the prosecutrix, it also transpired that her menstrual

period had also started. Prosecutrix during medical examination

complained of severe pain in her private parts.

4. The police was informed, and the officials of the police

immediately reached the hospital. SI Kishore Pandey, was deputed as

the Investigating Officer of the case, and on arriving at Hospital he

found the victim, Ms.Rinchu under medical treatment. At that time the

doctors had declared her unfit for making a statement. SI Kishore

Pandey, therefore, recorded the statement of PW-8 Vyas Sharma, the

Ward Boy and got the present case registered. SI Kishore Pandey visited

the spot and found blood in the bathroom and floor of the room. He

recovered one chunni, blood stained bed sheets and clothes of the

prosecutrix. On 7th September 2003, prosecutrix was shifted to GTB

hospital for operation on her eyes. Her statement was thereafter,

recorded on 8th September, 2003.

5. It also transpired that accused Bhura had absconded from the

hospital since morning of the incident. SI, Kishore Pandey had gone to

the jhuggi of the accused situated in Seema Puri and found it locked.

However, at about 9:30 a.m. Bhura came to his Jhuggi and was

apprehended by the police. The accused was arrested at the instance of

Anil Saxena, who had deputed Bhura and the other members of the

staff in the hospital. Accused was then medically examined on 8th

September 2003. On 15th September, 2003 IO Kishore Pandey seized

the eye-ball of the prosecutrix, which had come out during the alleged

incident.

6. Accused was charged under Sections 354/ 506/376 of the IPC.

Later on the charges were altered by the then Learned Additional

Sessions Judge, Sh. J.M Malik by a detailed order dated 19th January

2005 to charges under Sections 376/ 342/ 326 of the IPC. The accused

pleaded not guilty to the charges framed against him and claimed trial.

7. The prosecution examined 21 witnesses in support of its case.

Thereafter, the entire evidence as well as the circumstances against the

appellant were put to him under Section 313 of the Crl. P.C. In his

statement under Section 313 the accused simply denied all the

circumstances and the evidence against him. He even denied his

presence at the spot and any knowledge about the matter. He stated

that at the time the incident had taken place he was present at his

house and that he had instead surrendered himself to the police in

presence of his brother Rajinder. The appellant did not lead any

evidence in defense.

8. On considering the evidence on record and the case of the

prosecution as well as the defense of the accused, the Trial Court held

that the prosecution had successfully proved beyond reasonable doubt

the charges under sections 376, 326 and 342 of the IPC and convicted

him for the same and sentenced him to undergo rigorous life

imprisonment under Sections 376 and 326 of the Indian Penal Code

and a fine of Rs.5,000/- and in default to undergo simple imprisonment

for three years. The appellant was further sentenced to undergo

rigorous imprisonment for one year for the offence punishable under

Section 342 of the Indian Penal Code. The appellant has filed the

present appeal against his order of conviction and sentence.

Appellant's Pleas:

9. The learned counsel for the appellant had questioned the veracity

of the allegations made by the prosecutrix contending that the

statement of the prosecutrix made to the police under Section 161 of

the Cr.P.C, Ex.PW 19/DA was delayed and hence no reliance can be

placed on the same. As per the learned counsel, the delay in recording

the statement was without any reason since as per the deposition of

PW-2 Dr. K.K Rajan, who categorically deposed that the prosecutrix was

conscious and in her senses on the day of the occurrence. According to

learned counsel for the appellant, the delay in recording the statement

of the prosecutrix casts a shadow of doubt on her version and therefore

the same should not form the basis of concluding the guilt of the

appellant.

10. The learned counsel for the appellant emphasized various alleged

inconsistencies in the deposition of the prosecutrix as PW-19, with the

statement recorded by the police under section 161 of the Cr.P.C, Ex.

PW 19/DA. According to the learned counsel, the alleged

inconsistencies are the improvements made by her with the sole

intention of falsely implicating the appellant in the present matter. The

learned counsel for the appellant has relied on Ramdas and Ors. v.

State of Maharastra (2007) 2 SCC 170 contending that conviction on

the sole basis of the testimony of prosecutrix is not sustainable when

the circumstances reflect shadow of doubt over the correctness of

prosecutrix version. Therefore the Learned Counsel contended that the

inconsistencies affected the very root of the matter and therefore the

appellant is entitled to the benefit of doubt and his conviction and

sentence by the Trial Court ought to be set aside.

11. The learned counsel has also emphatically relied on the

deposition of PW 3 Dr. Archana Bachchan, a consultant who had

medically examined the prosecutrix. The counsel contended that as per

the endorsement in the MLC and as per the deposition of PW 3 there

were no vaginal injuries and that the cervix was normal. The learned

counsel further contended that during the cross examination, PW 3 had

deposed that the history written on Ex PW 6/A (the MLC) which was

prepared on the very night of the incident at about 9:00 p.m. was on the

basis of version given by the prosecutrix, in which she had not named

the appellant or any other person nor had she disclosed that she was

having any pain in her private parts. Even in the answer to the query as

to who the culprit was, PW3 deposed that the prosecutrix had replied

that she did not know who it was. Thus according to the counsel the

name of the appellant has been included at a subsequent stage with the

clear intention of falsely implicating him in the matter.

12. It is further contended that the facts which would establish rape

of the prosecutrix have not been established nor substantiated from the

statement of PW-3. There was no injury found on the private parts of

the prosecutrix, nor were any semen stains found and the blood in the

vagina of the prosecutrix was on account of menstruation and not rape.

It is further emphasized that the tear on the hymen recorded in the

MLC as stated by PW-3 herself was not a fresh tear and thus could not

have been on account of alleged rape by the appellant. PW-3 had

explained the difference between menstrual blood and blood due to

rape. She had even deposed that the bloodstains on the prosecutrix

were of her menstrual blood and not of blood due to rape. PW-3 had

further deposed that in all probabilities there should have been injuries,

if there was intercourse for the first time. PW-3 had also stated that the

prosecutrix had never complained about pain in her private parts. The

learned counsel has also contended that according to him, since the

prosecutrix had been unmarried there ought to have been some vaginal

injury and that the trial court gravely erred in not taking the deposition

of PW-3 more seriously. Therefore, the learned counsel contended that

it is a settled law that conviction cannot be based on the sole testimony

of the prosecutrix, which is inconsistent and unsupported by the

medical evidence and evidence of other witnesses. To buttress his

argument he has relied on Sadashiv Ramrao Badbe v. State of

Maharashtra &Ors: (2006) 10 SCC 92, Dilip & Anr. v. State of Madhya

Pradesh: 2001(4) Crimes 105(SC), Vimal Suresh Komble v.

Chaluverapinake Apal S.P. & Anr: 2003 SCC (Cri.) 596, Yserumalla

Latchaiach vs. State of Andhra Pradesh: (2006) 3 SCC (Cri) 373, Mohd.

Habib v. State: 1988 CC cases 401 (HC), Zahroor Ali v. State of U.P:

1989 Cr.L.J. 1177 and State of Karnataka v. Mapilla P.P.Soapi: 2003 (3)

JCC 1543.

13. The learned counsel has also urged that the prosecutrix herself

had not deposed regarding any penetration as at the time of alleged

rape as she was unconscious. Thus the factum of penetration which is

imperative to substantiate the charge of rape had not been proved as

against the appellant. The prosecutrix had merely stated that she came

to her senses and realized that she had pain in her private parts.

However, this pain could have even been attributed to the menstruation

which the prosecutrix herself admitted, she was having at the time.

Thus according to the learned counsel there is absolutely no evidence of

any penetration by the appellant and therefore, the very base of the

prosecution‟s case is not proved against the appellant and is therefore

not sufficient to inculpate him.

14. Learned counsel has further contended that neither Smt. Lizzy

who was giving duty on the second floor, the place where allegedly the

prosecutrix was allegedly raped nor the patient Sh. S.K. Kaushik, for

whom the prosecutrix was engaged to take care of, have been examined.

The learned counsel also submitted that just because the patient was

unable to move or speak does not imply that he was in a coma and

therefore, should have been examined by the Police. Thus, it is

contended that this amounts to a major lacuna in the version

propounded by the prosecution and therefore the appellant is entitled to

the benefit of the same.

15. Learned counsel has further contended that the Trial court has

gravely erred in punishing the appellant under section 326 of the IPC

because, even if, it is to be believed that the appellant had in fact

caused grievous hurt to the prosecutrix, since neither the prosecutrix

has deposed about any weapon used, nor had the prosecution alleged

the same, as it is not the case of the prosecution that the appellant had

caused the injury by means of any instrument for shooting, stabbing or

cutting or that any instrument was used as a weapon of offence. Thus

the appellant can only be charged under Section 325 of IPC and not

under Section 326 of IPC. Thus it is contended that the learned Trial

judge has failed to differentiate between the ingredients of Section 325

& 326 of the IPC. As while under section 325 the punishment

prescribed is for causing grievous hurt, under section 326 of the IPC,

the punished prescribed is for causing grievous hurt by means of any

instrument for shooting, stabbing or cutting or any instrument which is

used as a weapon of offence. The learned counsel further contended

that since the appellant was not put the circumstance of causing harm

to the prosecutrix under Section 325, the same cannot be held in

evidence against him, as the non-examination of the accused under

Section 313 with respect to this circumstance has caused him a lot of

prejudice. Therefore, in light of the facts and circumstances it is

contended that the charges framed as against the appellant is

erroneous and hence it is ground in itself to quash the entire

proceedings.

16. Learned counsel has further urged that the prosecutrix herself

has held Shanti Mukund Hospital to be responsible for the permanent

loss caused to her eye for which even an FIR No. 447 of 2003 was also

registered under Section 336 of the IPC with the PS Anand Vihar, and

therefore, the appellant cannot be held responsible for the same and

that the case is just a ploy to make the appellant responsible for the

negligence of the hospital. Learned counsel has argued that there is

hardly any evidence against the appellant and that the prosecution has

miserably failed in proving its case against the appellant which has not

been properly considered by the Trial court in its decision, which is

merely based on conjectures and surmises put forward by the

prosecution.

Respondent/ State's pleas:

17. Per contra, learned counsel for the State, Mr. M. N. Dudeja, has

contended that the prosecution has on every aspect successfully proved

its case. It has been rightly concluded by the Trial Court about the guilt

of the appellant. The learned counsel also asserted that the testimony of

the prosecutrix is unimpeachable and therefore the Trial Court has

been absolutely justified in relying on the same. He vehemently argued

that the inconsistencies as alleged by the prosecution are minor and

immaterial, and that they do not under any circumstance exculpate the

appellant. He has relied on the judgment of Bharwada Bhoginbhai

Hirjibhai v. State of Gujarat AIR 1983 SC 753 in support of his

submission.

18. The learned counsel has also relied on the testimony of PW-9, AK

Saxena, who is the owner of a contract company under the name of

Baba House Keeping Services from where the appellant Bhura was

deputed. As per PW-9 on reaching the hospital he had come to know

that the appellant had fled after committing rape on the prosecutrix and

he even assisted the police in tracing out the appellant, who was

subsequently arrested vide arrest memo Ex PW 9/A. Therefore the

learned counsel contended that the very fact that the appellant had fled

after committing the offence is a relevant fact under Section 8 of the

Indian Evidence Act, 1872 and that the appellant was at the time of the

occurrence employed at the hospital has also been established.

19. The learned counsel further asserted that the prosecutrix had at

the very first instance informed the ward boy, PW-8 who had found her

in the locked bathroom, that she had been raped by Bhura the sweeper

boy. This has been categorically stated in the statement of the ward boy

given to the police, Ex PW 8/A. The learned prosecutor thus contended

that the name of the appellant has certainly not been subsequently

added in the investigation, and that he was the prime suspect since the

very start of the case.

20. It is further contended that since there is no doubt as to the

deposition of the prosecutrix there is no legal obligation on the part of

the prosecution to look for corroboration. In order to substantiate his

submission, the learned counsel has relied on the following judgments:

State of Himachal Pradesh v. Raghubir Singh (1993) 2 SCC 622,

Tulshidas Kanolkar v. State of Goa AIR 2004 SC 978, State of

Maharashtra v. Chandraprakash Kewlchand Jain AIR 1990 SC 658,

Madho Ram & Anr. v. The State of UP AIR 1975 SC 469, State of

Andhra Pradesh v. Gangula Satya Murthy AIR 1997 SC 1588, and Shri

Bodhisattwa Gautum v. Miss Subra Chakraborty AIR 1996 SC 922.

21. As per the learned counsel for the state, the other evidences on

the record, has also fully corroborated the allegations of the prosecutrix,

and consequently the guilt of the appellant has been established beyond

reasonable doubt. In any case the appellant has not been able to

impute any motive against the prosecutrix to have falsely implicated

him in the case. There was absolutely no evidence of any enmity

between the prosecutrix and the appellant, and therefore, there is no

reason to doubt the deposition of the prosecutrix.

Reasons

22. This court has perused the entire evidence on record and heard

the learned counsel for the parties in detail. This is a settled law that in

reversing the finding of conviction the High Court has to keep in view

the fact that the presumption of innocence is still available in favor of

the accused. Even if on fresh scrutiny and reappraisal of the evidence

and perusal of the material on record, if the High Court is of the opinion

that another view is possible or which can be reasonably taken, then

the view which favors the accused can be adopted. But the view taken

by the trial Court which had an advantage of looking at the demeanor of

the witnesses and observing his conduct in the Court is not to be

substituted ordinarily by another view which may be reasonably

possible in the opinion of the High Court. Reliance for this can be

placed on 2009(1) JCC 482=AIR 2009 SC 1242, Prem Kanwar v. State of

Rajasthan; 2008 (3) JCC 1806, Syed Peda Aowlia v. the Public

Prosecutor, High Court of A.P, Hyderabad; Bhagwan Singh and Ors v.

State of Madhya Pradesh, 2002 (2) Supreme 567; AIR 1973 SC 2622

Shivaji Sababrao Babade & Anr v. State of Maharashtra; Ramesh Babu

Lal Doshi v. State of Gujarat, (1996) 4 Supreme 167; Jaswant Singh v.

State of Haryana, 2000 (1) JCC (SC) 140. The Courts have held that the

golden thread which runs through the web of administration of justice

in criminal cases is that if two views are possible on the evidence

adduced in the case, one pointing to the guilt of the accused and the

other to his innocence, the view which is favorable to the accused

should be adopted. The paramount consideration of the Court is to

ensure that miscarriage of justice is prevented. A miscarriage of justice

which may arise from acquittal of the guilty is no less than from the

conviction of an innocent. So another view is possible on the basis of

pleas and contentions of the appellant is the point for consideration.

23. The backbone of the entire prosecution‟s story is undoubtedly the

evidence of the prosecutrix, PW-19. It is imperative to threadbare and

consider the veracity of this witness. The prosecutrix had deposed

about the incident, specifically on three important aspects which are as

follows: at the first stage is the statement made to the Ward boy, PW-8

who had found her in the bathroom and rescued her, and whose

statement was later on recorded by the police as Ex PW 8/A; secondly

her statement recorded by the police under Section 161 as Ex PW

19/DA; and finally her testimony before the court as PW-19. The

learned counsel for the appellant had contended that there are major

inconsistencies in all these statements made by the prosecutrix and

thus her testimony is devoid of any credibility and therefore it should

not be relied on.

24. At this stage it will be pertinent to examine each of the

statements made by the prosecutrix. In the statement made by the

prosecutrix to the Ward Boy, PW-8 when he rescued her, he

subsequently deposed to the police as Ex PW 8/A on 7th September,

2003 i.e. on the day of the incident categorically stating that the

prosecutrix had told him that it was the appellant Bhura, the sweeper

who had raped her and kept her locked in the bathroom. The relevant

portion of his testimony is as follows:

"Maine bedsheet va patient ki spunge karna that aur ek ladki Rinchu joki patient ki dekhbhal karti thi mujhe kamre mein nahi mili aur maine bathroom ka darwaza khola toh vah diwar ke saath baithi hui thi aur mujhe dekh kar boli ki Bhura naam ke sweeper ne meri izzat loot li hai jisne chehre par chot ke nishan the meine ..... sister-in- charge..... aur fir maine anya staff ke sath ladki Rinchu ko casuality mein le gaya. Bhura ki mere sath hi night duty thi."

25. Learned counsel for the appellant has attempted to discredit this

statement by alleging that PW-8 himself had deposed in Court during

his cross examination that he did not remember, if he had specifically

stated the name Bhura in the statement made to the police. Thus it was

contended that the name Bhura might have been added later on by the

police and that the appellant is falsely implicated in the matter.

However perusal of the original statement recorded by the police does

not show any signs of being tampered with, nor can the allegations that

additions were made to the statement by the police has been

substantiated. No such suggestions were given to the witnesses in the

cross examination. In any case PW-8 had also categorically deposed

that whatever he had stated to the police was recorded by them as Ex

PW 8/A. He further deposed that it was correct that he had read the

statement and then signed it. He also deposed that Bhura was the only

other sweeper on duty at the time. In the circumstances it cannot be

doubted that the appellant was specifically named in Ex PW 8/A. The

inconsistency with the statement given in the Court is minor and not

sufficient to discredit the testimony of Pw-8 who had first met the

prosecutrix after the incident.

26. It is a settled legal proposition that the evidence of a prosecution

witness cannot be rejected in entirety merely because the witness

turned hostile and he had to be cross examined by the prosecution. The

evidence of such witnesses cannot be treated as effaced or washed off

the record altogether but the same can be accepted to the extent it is

reliable. Reliance for this can be placed on Bhagwan Singh v. The State

of Haryana: AIR 1976 SC 202; Rabindra Kumar Dey v. State of Orissa:

AIR 1977 SC 170; Syad Akbar v. State of Karnataka: AIR 1979 SC 1848

and Khujji @ Surendra Tiwari v. State of Madhya Pradesh: AIR 1991 SC

1853.

27. The Trial Court therefore, could rely on the part of the testimony

of a witness who had turned hostile and such reliance cannot be faulted

on the ground that the witness had turned hostile and therefore the

entire testimony had to be rejected.

28. Regarding the statement of the prosecutrix made to the police on

8th September, 2003 under section 161 Cr.P.C., the prosecutrix has

supported the case of the prosecution. She had categorically stated that

it was Bhura the sweeper, who was known to her, who had raped and

injured her and subsequently locked her in the bathroom. The learned

counsel for the appellant has contended that this statement of the

prosecutrix too cannot be believed due the delay in recording it, in light

of the deposition of PW2, who in his cross-examination had stated that

the prosecutrix was not unconscious at the time of examination on the

date on the incident, that it was only since the prosecutrix was not

giving any statement that he wrote that she was unfit for statement,

because of which the statement of the prosecutrix was taken only on

the 8th September, 2003. Thus, it was contended that the delay in

recording the statement effects the credibility of its contents.

29. This plea on behalf of the appellant cannot be accepted. PW-21 SI

Kishore Pandey had categorically deposed that on the day of the

incident i.e. on 7th September, 2003 when he visited the hospital, he

found the prosecutrix admitted in the casualty and her eyes were

bandaged and that he was not allowed to talk to the patient. He had

also denied the suggestion that she was fit to make a statement on 7th

September, 2003 itself and that at his instance the concerned doctor

mentioned her unfit to make the statement on the MLC. As the mother

of the prosecutrix was available at that time, he had taken the

statement of the mother Kunju Moal PW-20, who had stated that her

daughter had told her that Bhura had beaten her and raped her in a

bathroom while she was unconscious and that the accused had run

away after bolting the door from outside. Thereafter on the next day, i.e.

on 8th September, 2003, PW-21 went to Shanti Mukand Hospital were

the prosecutrix was admitted and after getting the permission from Dr.

Mahmood, he had recorded the statement of the prosecutrix. The

prosecutrix had suffered grave physical injuries, as her eye was severely

damaged and was in need of immediate medical care at the time and

therefore she could not have possibly been capable of giving her

statement on the same day of the alleged incident. Therefore, the delay

of one day has been explained satisfactorily and cannot be ground to

doubt the credibility of statement given by the prosecutrix nor it can be

inferred in these circumstances that the implicating the appellant was

an afterthought on the part of the prosecutrix. There was no reason for

the prosecutrix to implicate the appellant in the facts and

circumstances.

30. The relevant portion of the testimony of the prosecutrix before the

Court as PW-19 is as follows:

"PW-19 Ms. Rinchu P.R. daughter of ShriP.V.Ramu, aged 19 years, Service, Resident of H.No.287/8-A, DDA Janta Flats, MayurKunj, Trilokpuri, Delhi, on S.A.

On 6.9.2004 again said 2003 I was working as a private Nurse attendant in Shanti Mukand Hospital. It was 1.00 A.M. (Night) I was attending to patient

S.K.Kaushal in room No.208, 2nd Floor of the said hospital. The said patient was paralytic and was unable to move. I used to attend him from 8.00 A.M. I was sitting on the satty near the patient. Suddenly I felt slumbrish and my eyes were closed. I realized that someone was touching and moving hand on my breast. I opened my eyes and found that Bhura Singh, accused present before the court, who was posted as a sweeper in the hospital, was present there before me. I asked him to get out of the room. The accused did not respond. I threatened him that I will call the sister and make a complaint against him. I moved my hand towards the bell but the accused caught hold of my hand. I started crying but the accused put his hand in my mouth. He dragged me to the other bed which was lying vacant. Thereafter I vomited blood. I then fell down and lost my senses. I regained consciousness at about 4.30 A.M. I tried to open my eye but I could not open it. I also felt that there was pain in my private part. I touched myself and found that my panty and Salwar were removed. Thereafter with great difficulty I put on my panty and Salwar which were lying nearby and I found myself in the bathroom of the room. I was bleeding from my eye and my eye ball of my right eye had come out and was hanging around the eye. I took the help of the wall and tried to open the door. It was bolted from outside. I was unable to speak because my throat had been pressed. At about 6.00 or 6.30 A.M. ward boy namely Vyas Sharma came in the room. He opened the door. I narrated the story to him and told him that I was raped by the accused and I was also given beatings by Bhura. He brought me out and made me to lie down on the sette I was having pain in abdomen and I was bleeding from my private part. I received injuries on my face and neck also. (At this stage the prosecutrix had removed her goggles and I find her that her right eye is badly hurt and it does not have the eye ball) A „Sister‟ came there. She took me to the casualty and my eye was bandaged. I did not get the proper treatment. Police came. I was got medically examined. I can identify my clothes which were seized by the police. (At this stage a sealed packet sealed with the seal of CFSL is opened and clothes are taken out). Panty Ex. P-I, brazier Ex. P-2, Salwar-Kurta Ex. P-3 and P-4 are the same which were seized vide memo Ex. PW-14/A."

31. Learned counsel for the appellant alleged that there are certain

inconsistencies in the testimony, with the statement of the prosecutrix

made to the police such as she did not mention that it was the "right

breast" that was fondled by the appellant in her statement before the

police, wherein she just mentioned "breast". Also she stated the word

"satty" to which the appellant had allegedly dragged her instead of the

word "bed" which is what is stated in her statement to the police.

However, these are minor inconsistencies and not sufficient to impeach

the testimony of the prosecutrix. While dealing with the inconsistencies

the Trial Court has relied on the judgment of State v. Gurmit Singh

AIR 1966 SC 1393 and held that in nervousness the prosecutrix

cannot be expected to have perfect memory and therefore the confused

stray sentences cannot be wrongly interpreted as „discrepancies and

contradiction‟ in her evidence and be a ground to not rely upon it.

32. This Supreme Court in Bharwada (supra) relied by the learned

counsel for the State, had held that much importance cannot be given

to minor discrepancies. Discrepancies which do not go to the root of the

matter and shake the basic version of the witnesses cannot be annexed

with undue importance. The Court had further observed as follows:

"We do not consider it appropriate or permissible to enter upon a reappraisal or reappreciation of the evidence in the context of the minor discrepancies painstakingly highlighted by learned Counsel for the appellant. Over much importance cannot be

attached to minor discrepancies. The reasons are obvious:

(1) By and large a witness cannot be expected to possess a photographic memory and to recall the details of an incident. It is not as if a video tape is replayed on the mental screen:

(2) Ordinarily it so happens that a witness is overtaken by events. The witness could not have anticipated the occurrence which so often has an element of surprise. The mental faculties therefore cannot be expected to be attuned to absorb the details.

(3) The powers of observation differ from person to person. What one may notice, another may not. An object or movement might emboss its image on one person's mind whereas it might go unnoticed on the part of another.

(4) By and large people cannot accurately recall a conversation and reproduce the very words used by them or heard by them. They can only recall the main purport of the conversation. It is unrealistic to expect a witness to be a human tape recorder.

(5) In regard to exact time of an incident, or the time duration of an occurrence, usually, people make their estimates by guess work on the spur of the moment at the time of interrogation. And one cannot expect people to make very precise or reliable estimates in such matters. Again, it depends on the time-sense of individuals which varies from person to person,

(6) Ordinarily a witness cannot be expected to recall accurately the sequence of events which take place in rapid succession or in a short time span. A witness is liable to get confused, or mixed up when interrogated later on.

(7) A witness, though wholly truthful, is liable to be overawed by the court atmosphere and the piercing cross examination made by counsel and out of nervousness mix up facts, get confused regarding sequence of events, or fill up details from imagination on the spur of the moment. The sub-

conscious mind of the witness sometimes so operates on account of the fear of looking foolish or being disbelieved though the witness is giving a truthful and honest account of the occurrence witnessed by him-Perhaps it is a sort of a psychological defence mechanism activated on the spur of the moment."

33. Thus statements given by the prosecutrix at different stages are

in conformity with each other and satisfactorily support the very core of

the prosecution‟s case. Terming the bed as „satty‟ and not stating that

the appellant had put his hand on her left breast and stating that he

had put her hand on her breast cannot be construed to be

inconsistency in any manner so as to doubt prosecutrix. Therefore,

reliance by Trial Court on the prosecutrix statement cannot be faulted

in any manner on the grounds canvassed before us by the counsel for

the appellant in any manner.

34. The Supreme Court has in a plethora of cases discussed the

evidentiary value of the testimony of the prosecutrix and that it is not to

be corroborated nor requires corroboration on every aspect.

35. In State of U.P. v. Pappu @ Yunus and Anr. AIR 2005 SC 1248,

the Apex Court held that even in a case where it is shown that the girl

is a girl of easy virtue or a girl of habitual to sexual intercourse, it may

not be a ground to absolve the accused from the charge of rape. It has

to be established that there was consent by her for that particular

occasion. Absence of injury on the prosecutrix may not be a factor that

leads the Court to absolve the accused. This Court further held that

there can be conviction on the sole testimony of the prosecutrix and in

case, the Court is not satisfied with the version of the prosecutrix, it can

seek other evidence, direct or circumstantial, by which it may get

assurance of her testimony. The Court held as under:

" It is well settled that a prosecutrix complaining of having been a victim of the offence of rape is not an accomplice after the crime. There is no rule of law that her testimony cannot be acted without corroboration in material particulars. She stands at a higher pedestal than an injured witness. In the latter case, there is injury on the physical form, while in the former it is both physical as well as psychological and emotional. However, if the court of facts finds it difficult to accept the version of the prosecutrix on its face value, it may search for evidence, direct or circumstantial, which would lend assurance to her testimony. Assurance, short of corroboration as understood in the context of an accomplice, would do.

36. In State of Punjab v. Gurmit Singh and Ors: AIR 1996 SC 1393,

also the Apex Court held that in cases involving sexual harassment,

molestation etc. the Court is duty bound to deal with such cases with

utmost sensitivity. Minor contradictions or insignificant discrepancies

in the statement of a prosecutrix should not be a ground for throwing

out an otherwise reliable prosecution case. Evidence of the victim,

regarding sexual assault is enough for conviction and it does not

require any corroboration unless there are compelling reasons for

seeking corroboration. The court may look for some assurances of her

statement to satisfy judicial conscience. The statement of the

prosecutrix is more reliable than that of an injured witness as she is not

an accomplice. The Court further held that the delay in filing FIR for

sexual offence may not be properly explained, but if found natural, the

accused cannot be given any benefit thereof. The Court held that:

" 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."

37. In State of Himachal Pradesh v. Raghubir Singh: (1993) 2 SCC

622, the Supreme Court held that there is no legal compulsion to look

for any other evidence to corroborate the evidence of the prosecutrix

before recording an order of conviction. Evidence has to be weighed and

not counted. Conviction can be recorded on the sole testimony of the

prosecutrix, if her evidence inspires confidence and there is absence of

circumstances which militate against her veracity. A similar view has

been reiterated by Supreme Court in Wahid Khan v. State of Madhya

Pradesh: (2010) 2 SCC 9, placing reliance on earlier judgment in

Rameshwar v. State of Rajasthan: AIR 1952 SC 54.

38. Thus, the law as laid down by the Supreme Court is that if the

statement of the prosecutrix is found to be worthy of credence and

reliable, then it requires no corroboration. The Court may convict the

accused on the sole testimony of the prosecutrix. However in all

cautiousness this court shall deal with the other evidences as well. The

learned counsel for the appellant had also contended that the very

presence of the appellant in the hospital on the day of the incident is

disputed and not established. The appellant has given the following

explanations under section 313 of Cr. P.C for the circumstances put to

him against him:

Q3: It is also in evidence against you that you were also deputed as Sweeper in Shanti Mukand Hospital through that firm. What have you to say?

Ans: It is incorrect

Q4: It is also in evidence against you that on the intervening night of 6/7.9.03 you were on duty in the said hospital. What have you to say?

Ans: It is incorrect

Q52: Have you anything else to say?

Ans: I have been implicated in this case falsely. I am innocent. Even I was not present even on the duty at that

time. I was in my house at the time. I myself surrendered before the police in the presence of my brother.

The relevance of Section 313 has been dealt with by the Supreme

Court in the judgment of Sanatan Naskar & Anr. Vs. State of West

Bengal: AIR 2010 SC 3570. The relevant portion is as follows:

"10. The answers by an accused under Section 313 of the Cr.P.C. are of relevance for finding out the truth and examining the veracity of the case of the prosecution. The scope of Section 313 of the Cr.P.C. is wide and is not a mere formality. Let us examine the essential features of this section and the principles of law as enunciated by judgments, which are the guiding factors for proper application and consequences which shall flow from the provisions of Section 313 of the Cr.PC. As already noticed, the object of recording the statement of the accused under Section 313 of the Cr.PC is to put all incriminating evidence to the accused so as to provide him an opportunity to explain such incriminating circumstances appearing against him in the evidence of the prosecution. At the same time, also permit him to put forward his own version or reasons, if he so chooses, in relation to his involvement or otherwise in the crime. The Court has been empowered to examine the accused but only after the prosecution evidence has been concluded. It is a mandatory obligation upon the Court and, besides ensuring the compliance thereof, the Court has to keep in mind that the accused gets a fair chance to explain his conduct. The option lies with the accused to maintain silence coupled with simplicitor denial or, in the alternative, to explain his version and reasons, for his alleged involvement in the commission of crime. This is the statement which the accused makes without fear or right of the other party to cross-examine him. However, if the statements made are false, the Court is entitled to draw adverse inferences and pass consequential orders, as may be called for, in accordance with law. The primary purpose is to establish a direct dialogue

between the Court and the accused and to put every important incriminating piece of evidence to the accused and grant him an opportunity to answer and explain. Once such a statement is recorded, the next question that has to be considered by the Court is to what extent and consequences such statement can be used during the enquiry and the trial. Over the period of time, the Courts have explained this concept and now it has attained, more or less, certainty in the field of criminal jurisprudence. The statement of the accused can be used to test the veracity of the exculpatory nature of the admission, if any, made by the accused. It can be taken into consideration in any enquiry or trial but still it is not strictly evidence in the case. The provisions of Section 313(4) of Cr.PC explicitly provides that the answers given by the accused may be taken into consideration in such enquiry or trial and put in evidence for or against the accused in any other enquiry into or trial for, any other offence for which such answers may tend to show he has committed. In other words, the use is permissible as per the provisions of the Code but has its own limitations. The Courts may rely on a portion of the statement of the accused and find him guilty in consideration of the other evidence against him led by the prosecution, however, such statements made under this Section should not be considered in isolation but in conjunction with evidence adduced by the prosecution."

39. The presence of the appellant on the day of the incident has been

established by the prosecution through the depositions of PW-8, PW-9

and PW-12. PW-8 had categorically deposed that he had seen the

appellant on the night intervening 6th/7th September, 2003 and had

worked with him up to 12:45 a.m. after which the appellant had left

saying that he had to clean the gallery. He further stated that apart

from Bhura there was no other sweeper on duty on the day of the

incident. PW-9, A.K. Saxena who runs a contracting company under the

name of Baba House Keeping Service had also deposed that he had

deputed Bhura in the Shanti Mukand Hospital. On hearing about the

rape he had also helped the police to trace out the appellant, who was

later on arrested near his house vide arrest memo Ex PW 9/A which

was witnessed by him. Thus the contention of the appellant that he had

surrendered himself in front of his brother Rajender is liable to be

repelled as neither had the appellant been able to prove this fact on

record nor has he lead any evidence establishing the same. Finally PW-

12 had further established the presence of the appellant on the night of

the incident as he produced the attendance register pertaining to Baba

House Keeping services, Ex PW 12/B which unquestionably stipulates

that Bhura, the appellant was on duty on the night intervening 6th/7th

September 2003. In light of the depositions of PW-8, 9 and 12 the

presence of the appellant on the night of the alleged offence has been

established beyond any reasonable doubt and plea to the contrary

cannot be accepted.

40. Learned counsel for the appellant has vehemently disputed the

factum of rape by placing heavy reliance on the testimony of PW-3 Dr.

Archana Bachchan. Relevant portion of her statement as Pw 3 is as

under:

"PW3: Dr.Archa Bacchan Recalled for further cross ON SA

XX By Sh.Mukesh Ahuja, Adv. a.c. And Sh.D.K.Yadav, Adv. for the accused.

Prosecutrix herself gave the history written on Ex. PW 6/A. Prosecutrix did not name any person. She did not disclose to me that she was having pain in her private parts. I enquired from the Prosecutrix who was the culprit but she replied that she did not know the person, but I did not record this fact in the MLC.

Court question: Why did not you record this fact on the MLC?

Ans: There appears to be fault on my part.

I prepared Ex. PW 6/A in the night at about 9 p.m. on 7.9.03. It is correct that I have not mentioned the time on Ex. PW 6/A. I did not have any discussion with Dr. S.K.Kangra. I had written there was slight bleedings from O.S. There were bloods stains in the vagina due to menstrual blood but not on the pubic hair. It is correct that there was no semen stains on the pubic hair of Prosecutrix. I did not find any trace of pubic hair on the clothes of the Prosecutrix.

Court question: How can you difference blood of menstrual or blood coming out due to rape?

Ans.: If the blood will be of rape, there should be some injury mark inside the vagina but if blood was coming through the opening of the uterus then it is only menstruation. Moreover, prosecution herself told that she was having menstruation.

Que.: Can there be any injury on the prosecutrix if she is in unconscious, while she is being raped?

Ans.: She can have injuries.

Court Que.: Under all probabilities?

Ans.: Yes. Because she was having intercourse for the first time.

Court Question: How can you say that she was having intercourse for the first time?

Ans.: Because she was unmarried girl.

The prosecutrix did not tell me that she was having pains in her private parts.

At this stage, ld. Addl. PP wants to re examine this witness. Heard. Permission granted.

XX By Ld. Addl. PP

Que.: Is it correct that at the time of examination of Rinchu you have mentioned her Hymen torn?

Ans.: It is correct. Hymen can be torn either by rape or otherwise.

This was not freshly torn.

Court Question: How can you say about this?

Ans.: If it is freshly torn, then there must be blood points and thereby must be blood stains on the margins of the hymen.

Court Que.: Have you mentioned all these facts in you report?

Ans.: I did not mention these facts in my report.

Court Que.: Why did you not mention these facts?

Ans.: I was not aware that I was to write all these things.

Court Que.: When you have examined victim?

Ans.: I have examined patient on 7.9.03.

Court Que.: How are you able to remember all these things orally?

Ans.: I remember it orally and have committed fault in not mentioning these things in the MLC.

XX By ld. def. counsel.

Nil.Oppt. granted.

RO&AC

ASJ 6.4.05

41. The deposition of PW-3 was recorded on 4th February, 2005 and

she was cross-examined on 6th April 2005, while the incident had taken

place on 6/7th September 2003. Almost 2 years had elapsed since the

incident had occurred. Pw 3 had not noted these facts and alleged that

she remembered them orally. She admitted that she committed fault in

not mentioning these facts in the MLC. In addition to this PW-3 has

based her opinion on the premise that injury is necessary under all

probabilities. She also presumed that the prosecutrix may not have had

any intercourse prior to the incident as she was not married. She stated

that the hymen was not freshly torn because if it had been freshly torn

then there must have been blood points. These relevant facts were not

mentioned by her in MLC.

42. The Trial court had made the following observations regarding the

testimony of PW-3:

"25. Now, I advert to the evidence of Dr.Archana Bachchan. She laid emphasis on three points. Firstly that the blood was of menstruation periods and could not have been there due to rape. Secondly, the hymen was torn prior to the above said alleged rape. Lastly, there was absence of injury.

26. To my mind, her assumptions are all wet. In Modi‟s Medical Jurisprudence and Toxicology. 21st Edition page 375 at Point 2, it is mentioned:

"Recently effused or dried blood may be found upon the genital organs or in the neighbourhood, and in recent cases there may be bleeding from the vagina, which is usually very slight. It should not be forgotten that the bleeding may be due to menstruation, which is possible to be induced by sexual intercourse."

This is a universally known fact that if the period of the prosecutrix are due, the same do occur with the rape or with voluntary sexual intercourse. There lies no rub for a lustful beast to rape a woman even if she is having periods.

27. Secondly, it is very difficult for the doctor to come to the conclusion whether the hymen is recently torn or was torn before the lapse of one month. Moreover, this is not incumbent that injury must be caused. The observations in Modi‟s Medical Jurisprudence and Toxicology, Page 369 were approved by the Apex Court, in Madan Gopal Kakkad v. Nanal Debeh, 1992, Supreme Court Cases (Crl.), 598 and it was held:

"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 purpose of the law. It is, therefore, quite possible to commit legally the offences of rape without producing any injury to the genitals or leaving any seminal stains. In such a case 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 that there is evidence of recent

sexual activity. Whether the rape has occurred or not is a legal conclusion, not a medical one.

In Parikh‟s Textbook of Medical Jurisprudence and Toxicology, 5th Edition, page 439, it is mentioned:

"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."

In the instant case, the prosecutrix was not in senses. The accused had enough time to remove semen stains and blood stains.

28. It is interesting to note that Dr.Archana Bachchan was examined on 4.2.2005. Accused was given an opportunity to cross-examine her but the proxy counsel Shri Yogender Kumar, Advocate, did not cross-examine her though an opportunity was granted to him at 2.40 PM on 4.2.2005. Thereafter, the accused changed his counsel and this witness was recalled for further cross-examination by Shri Mukesh Ahuja, Advocate and Shri D.K.Yadav, Advocate. Her cross-examination was conducted on 6.4.2005.

29. In Khujji @ Surender Tiwari v. State of Madhya Pradesh, AIR 1991 Supreme Court 1853, it was observed:-

"The High Court came to the conclusion and, in our opinion rightly, that during the one month period that elapsed since the recording of his examination-in-chief something transpired which made him shift his evidence on the question of identity to help the appellant. We are satisfied on a reading of his entire evidence that his statement in cross examination on the question of identity of the appellant and his companion is a clear attempt to wriggle out of what he had stated earlier in his examination in chief."

30. It must be borne in mind that during her cross-examination, Dr.Bachchan is somewhat confused. On the one hand, she stated that victim was having sexual intercourse for the first time. On the other hand, she stated that her hymen was torn since the last one month. It is also not understood why she tried to improve her story. She should have mentioned all these relevant facts in her report. Her statement that she could remember all these facts by heart, are not believable or trustworthy. She has tried to go out of the way to help the accused. If she is a genuine witness, she should have deposed all the facts during her examination-in-chief."

43. The Trial Court had witnessed the demeanour of the witness. The

Trial Court had held that PW-3 had made improvements in her

testimony. This has to be taken into consideration by this Court while

dealing with her deposition, which undoubtedly casts a suspicion on

the testimony of PW-3. The prosecutrix had stated that she had been

raped by the appellant. She had no animus to involve the appellant

falsely. Menstruation which is possible to be induced by sexual

intercourse has not been ruled out. It has not been put to the

prosecutrix in the cross examination that her periods were due during

the period the allegation of rape had been made by her. This is

universally known fact that if the periods are due, the same do occur

with rape or voluntary sexual intercourse. The Trial Court has relied on

the observations made in Modi's Medical Jurispurdence and Toxicolgy

which have not been successfully refuted by the counsel for the

appellant. The deposition of the Pw 3 is also based on her recollection

and such minutes facts and details which ought to have been recorded

by her, had not been recorded. The learned counsel for the appellant

has not been able to make out any cogent ground to refute the

reasoning of the Trial Court reproduced hereinabove. The deposition of

the said witness also has inherent contradiction as during the course of

cross examination she stated that the prosecutrix had sexual

intercourse for the first time and also stated that the hymen of the

prosecutrix was torn for about one month. Both the facts deposed by

Pw-3 cannot be reconciled and on the basis of such testimony, the

testimony of the prosecutrix cannot be disbelieved and impeached so as

to give any advantage to the appellant.

44. Regarding variance between medical evidence and ocular

evidence, it is no more res integra that oral evidence get primacy as the

medical evidence is opinionative. Medical evidence can be used to repel

the testimony of witnesses only if it is so conclusive as to rule out any

possibility of eyewitness's version true. The answers by Medical experts

cannot become last words in all the facts and circumstances. It was

held by the Supreme Court that to discard the testimony of an

eyewitness simply on the strength of opinion expressed by medical

witnesses is not conducive to administration of Criminal Justice in

Ramanand Yadav v. Prabhu NathJ ha and Ors 2003 IX AD (SC) 396,

where the following observations were made:

"18. So far as the alleged variance between medical evidence and ocular evidence is concerned it is trite law that oral evidence has to get primacy and medical evidence is basically opinionative. It is only when the medical evidence specifically rules out the injury as claimed to have been inflicted as per the oral testimony, then only in a given case the Court has to draw adverse inference.

19. The High Court has thus knocked out an eyewitness on the strength of an uncanny opinion expressed by a medical witness. Over dependence on such opinion evidence, even if the witness is an expert in the field, to checkmate the direct testimony given by an eyewitness is not a safe modus adaptable in criminal cases. It has now become axiomatic that medical evidence can be used to repel the testimony, of eyewitnesses, only if it is so conclusive as to rule out even the possibility of the eyewitness's version to be true. A doctor usually confronted with such questions regarding different possibilities or probabilities of causing those injuries or post-mortem features which he noticed in the medical report may express his views one way or the other depending upon the manner the question was asked. But the answers given by the witness to such questions need not become the last word on such possibilities, After all he gives only his opinion regarding such questions. But to discard the testimony of an eyewitness simply on the strength of such opinion expressed by the medical witness is not conducive to the administration of criminal justice."

45. Another relevant evidence in this case is the FSL report, Ex. PW

21 which categorically stipulates that the vaginal swab has confirmed

the detection of human semen. As per the MLC recorded by the PW-3

there is a small tongue bite Breast (N) and that there is an abrasion on

the posterior fourchette (portion between vagina and anus). Also the

prosecutrix herself stated that she was unconscious at the time, and

hence she could not have put up a proper resistance to deflect injuries

on her body or on that of the appellant. The conduct of the appellant

subsequent to the incident is also relevant under Section 8 of the

Indian Evidence Act, 1872. The appellant had fled and was not to be

seen in the hospital after the day of the incident which fact cannot be

ignored to infer the culpability of the appellant.

46. The precedent relied by the learned counsel for the appellant are

distinguishable. In Ramdas (supra) relied on by the learned counsel for

the appellant, the Supreme Court had held that the prosecutrix did not

appear to be a witness of sterling quality and hence conviction could

not be based on the sole testimony of the prosecutrix. However the facts

of the case are clearly distinguishable from the facts of the present case.

In the instant case the Supreme Court had observed that the

prosecutrix had tried to conceal certain facts from the court and had

also deviated from the case narrated in the FIR. In addition there was a

delay of 8 days which was not satisfactorily explained by the

prosecutrix. However in the present case there is no inordinate delay

and the prosecutrix has supported the case of the prosecution

thoroughly and her statement had been consistent. In any case the

testimony of the prosecutrix has been substantially corroborated. In

Sadashiv Ramrao (Supra), relied by the learned counsel for the

appellant, it had been contended that conviction could not be based on

the sole testimony of the prosecutrix, if it is unsupported or belied by

the medical evidence. In the instant case the version given by the

prosecutrix was unsupported by medical evidence and the surrounding

circumstances. No injury was found on the body and the private parts

of the prosecutrix. Even the doctor who examined her was unable to

give any opinion about the alleged sexual intercourse. Therefore, the

Supreme Court had held that the appellant was entitled to the benefit of

doubt and conviction was set aside. However, the facts of the present

case are clearly distinguishable from the facts of the matter relied on by

the appellant. In the instant case the court had observed the absence of

Spermatozoa in the vaginal swab of the prosecutrix and also the courts

had observed that it was highly improbable that the prosecutrix could

not make any noise or get out of the room and was sexually assaulted

by the appellant when there were many persons present in the near

vicinity. However in the present matter, semen had been detected on

the vaginal swab as per the FSL report and the sexual assault had

taken place at 1.00 A.M. i.e. at the dead of the night and there wasn‟t

anybody present in the vicinity. In any case the prosecutrix had been

grievously hurt and therefore, was rendered unconscious, because of

which she could not have raised a hue and cry.

47. Similarly, in Dilip (Supra), relied on by the learned counsel for

the appellant, the Supreme Court disbelieved the statement of the

prosecutrix, as it was contradicted by the statement of her own aunt

and the medical evidence, as well as the report of the forensic science

laboratory. In the case relied on by the appellant, the prosecutrix had

divulged the entire facts to her aunt, however, the aunt had deposed in

contradiction to the testimony of the prosecutrix. The Supreme Court

had observed that the „probabilities factor‟ operated against the

prosecutrix as it came on the record that she had stated that she could

not resist the two accused persons who had allegedly raped her as she

was over-awed at that time. The prosecutrix had complained that she

had sustained injuries and had also bled from her private part which

was not corroborated by the medical evidence and also no semen was

found on the vaginal swab. Apparently the present case is clearly

distinguishable.

48. In Vimal (Supra), also the Supreme Court had discarded the

evidence of the prosecutrix since it did not appear to be natural and

truthful. Her conduct after the alleged rape was considered to be un-

natural and not believable. There was also delay in lodging the FIR and

the medical evidence did not support the report of the chemical analyst,

as the prosecutrix had taken bath on the day of the alleged rape and

hence it would have been known to her that this would have caused for

the evidence to disappear. It was also notices that in the instant case

the accused in his examination under Section 313 of the Criminal

Procedure Code had stated that he was falsely implicated in the case

with the motive of extorting money. It was alleged that the prosecutrix

had demanded money from the accused and when he refused to give

the same she had threatened him with dire consequences. In the

present case the prosecutrix had no animus against the appellant nor

any motive has been alleged against the prosecutrix to implicate the

appellant. There is also no delay in lodging the FIR and the medical

record gives evidence of the struggle put up by the prosecutrix.

49. In Yerumalla (Supra), the Court disbelieved the prosecutrix since

no injury was found on the body part of the victim, hymen was found

intact and the vaginal smears did not detect any semen on them. The

ration of this case clearly does not apply to the present case. In Mohd.

Habib (Supra), the Supreme Court had rejected the testimony of the 21

year old prosecutrix as it was found to unreliable since there was no

inflammation or redness on the private part of the girl, nor was there

any injury on the male organ and the testimony of the eye witness did

not corroborate the version of the prosecutrix. The court had further

observed that the prosecution had not given any explanation as to why

the mother of the prosecutrix who had come to the spot immediately

after the occurrence, who might have known about the entire events as

it might have been told to her by the prosecutrix was not produced or

examined. The swab of the vagina of the prosecutrix also did not show

any seminal stain. However, in the instant matter the mother who had

come immediately after the prosecutrix was found had given her

statement on the day of occurrence and was also examined in court.

She has supported the prosecutrix‟s version in full form. The case relied

on by the counsel for the appellant does not support the pleas and

contentions raised on behalf of the appellant.

50. In the State of Karnataka v. Mapilla (Supra), the Supreme Court

had observed that the prosecution had not produced any medical report

regarding the examination of PW-3. There was no evidence whatsoever

to show that the doctor did prepare a medical report, hence the

testimony of the prosecutrix was not believed. The court had not

believed the prosecutrix as the alleged rape had taken place in the

proximity of many neighbours and therefore, it could not be accepted

that no one had come hearing the cries of the prosecutrix. In the

present matter the prosecutrix has deposed that she was grievously

hurt as her eyes were drastically damaged and she could not scream as

before the rape there was an attempt to throttle her and later on she

had become unconscious. In any case when such grievous hurt has

occasioned, it is only reasonable to accept that the prosecutrix had

become unconscious and therefore, was unable to raise any hue and

cry.

51. It must be remembered that a decision is only an authority for

what it actually decides. What is of the essence in a decision is its ratio

and not every observation found therein nor what logically follows from

the various observations made in it. The ratio of any decision must be

understood in the background of the facts of that case. It has been said

long time ago that a case is only an authority for what it actually

decides, and not what logically follows from it. It is well settled that a

little difference in facts or additional facts may make a lot of difference

in the precedential value of a decision. Considering the present facts

and circumstances, it may not be necessary to deal with precedents in

detail relied on by the parties in the facts and circumstances of the

present case as the present case is apparently distinguishable from the

fact situation of most of the precedents relied on by the parties. In

Ambica Quarry Works v. State of Gujarat and Ors. and Ambalal

Manibhai Patel &Ors. v State of Gujarat &Ors MANU/SC/0049/1986

the Supreme Court observed:-

"The ratio of any decision must be understood in the background of the facts of that case. It has been said long time ago that a case is only an authority for what it actually decides, and not what logically follows from it."

52. Similarly in Bhavnagar University v. Palitana Sugar Mills Pvt. Ltd.

(2003) 2 SC 111 (vide para 59), the Supreme had observed:-

"It is also well settled that a little difference in facts or additional facts may make a lot of difference in the precedential value of a decision."

53. The Supreme Court in Bharat Petroleum Corporation Ltd. and

Anr. v. N.R.Vairamani and Anr. (2004) 8 SCC 579 had also held that a

decision cannot be relied on without considering the factual situation.

In the same judgment the Supreme Court also observed:-

"Courts should not place reliance on decisions without discussing as to how the factual situation fits in with the fact situation of the decision on which reliance is placed. Observations of Courts are neither to be read as Euclid's theorems nor as provisions of the statute and that too taken out of their context. These observations must be read in the context in which they appear to have been stated. Judgments of Courts are not to be construed as statutes. To interpret words, phrases and provisions of a statute, it may become necessary for judges to embark into lengthy discussions but the discussion is meant to explain and not to define. Judges interpret statutes, they do not interpret judgments. They interpret words of statutes; their words are not to be interpreted as statutes."

54. In Padmasundara Rao Vs State of Tamil Nadu &Ors, JT 2002 (3)

SC 1, the Supreme Court had held as under:

"There is always a peril in treating the words of judgment as though they are words in a legislative enactment and it is to be remembered that judicial

utterances are made in setting of the facts of a particular case. Circumstantial flexibility, one additional or different fact may make a world of difference between conclusion in two cases."

55. In Rafiq Vs State of U.P, 1980 4 SCC 262, it was observed as

under:

"The ratio of one case cannot be mechanically applied to another case without having regard to the fact situation and circumstances obtaining in two cases."

56. Circumstantial flexibility, one additional or different fact may

make a world of difference between conclusions in two cases and

disposing of a case by blindly placing reliance on a decision is not

proper. This Court in view of the entire facts and circumstances, and

the evidence on the record, concludes that it undoubtedly points

towards the guilt of the appellant, and holds that the trial court has

rightly concluded on the guilt of the appellant under Section 376 and

342 of the IPC. The learned counsel for the appellant has not given any

cogent reasons for interfering with the finding of the Trial Court and

this court too does not find any illegality or perversity or un-

sustainability in the reasoning of the Trial Court.

57. With regard to the conviction of the appellant under section 326

of the IPC, the learned counsel has contended that the Trial court had

gravely erred in punishing the appellant under section 326 of the IPC. It

is contended that even if it is to be believed that the appellant had in

fact caused the injury to the eyes of the prosecutrix, since neither the

prosecutrix had deposed about any weapon used, nor is it the case of

the appellant that the appellant had caused the injury by means of any

instrument for shooting, stabbing or cutting or any instrument which

was used as a weapon of offence. It is asserted that the maximum

charge that can be framed against the appellant in the circumstances is

as under Section 325 and nothing more. Thus it is contended that the

learned Trial judge has failed to differentiate between the ingredients of

Section 325 & 326 of the IPC, since while in Section 325 the

punishment prescribed is for causing grievous hurt, on the other hand

under Section 326 of the IPC the punishment is prescribed for causing

grievous hurt by means of any instrument for shooting, stabbing or

cutting or any instrument which is used as a weapon of offence. The

learned counsel had even contended that since the appellant was not

put the circumstance of causing harm to the prosecutrix under Section

325 during his examination under section 313 of the Criminal

Procedure Code, the same cannot be held in evidence against him. It is

asserted that the non-examination of the accused under section 313

with respect to this circumstance has caused him a lot of prejudice.

Thus the appellant is even entitled to have the entire proceedings as

against him quashed or in the very least remitted back to the Trial

Court for re-hearing.

58. The injuries as suffered by the prosecutrix, PW-19 have been

established. The Trial court, held that the prosecutrix has been meted

out with cruel treatment from the appellant and that due to her injuries

the prosecutrix had lost her eyesight in one of her eyes while her second

eye was also severely injured. The injury to the eye of the prosecutrix is

also substantial. While PW-2, Dr. K.K. Rajan, Shanti Mukan Hospital,

Delhi was the first to examine the prosecutrix. He prepared the MLC Ex

PW2/A, in which he noted that the right eye was outside the orbit and

that the prosecutrix was unfit for making any statement at that time.

Thereafter, in the Court he deposed that one eye of the victim was fully

bandaged, while the other was partly bandaged. This fact is

corroborated by the deposition of PW3, Dr. Archana Bacchan,

Consultant as well, who endorsed in the MLC Ex PW 2/A that both the

eyes were dressed. PW-4, Dr. G.K. Dass, Professor GTB Hospital, Delhi

deposed that because the eye ball of the right eye of the prosecutrix was

hanging, but attached to the bony socket with conjunctiva and

underline soft tissues and no prospection of light was there, therefore

decision was taken by the Board members that it would be removed

with the consent of the patient and hence it was done accordingly. PW-6

Dr. S.K. Kangra, Consultant, Shanti Mukand Hospital had deposed

that the dressing was opened on 9th September, 2003 and when the

bandage was opened, the ball was found lying on the lid and there was

swelling of the lid, therefore an opinion was formed that the eye ball of

the patient should be immediately removed. Also while the prosecutrix

was being examined in Court, the Trial Judge had also observed that

during her deposition she removed her goggals and it was evident that

the right eye was badly hurt and that it did not have an eye ball. As

already considered above, the prosecutrix has imputed her injuries

caused by the appellant. But as she had become unconscious after

some time, she has not deposed in detail the manner in which she was

injured but it was on account of act of the appellant and attributable to

him. Thus even if no weapon was used, it has been established that

the injury was caused by the appellant. The learned counsel for the

State too has not been successful in pointing out any weapon used by

the appellant in causing injury to the prosecutrix that would justify the

conviction of the appellant under Section 326 of the IPC. Perusal of the

judgment of the Trial court also does not give any indication of any

weapon used by the appellant to inflict the grievous hurt on the

prosecutrix by any weapon. Thus the charge against the appellant

under Section 326 of the IPC is not made out and therefore, his

conviction and sentence under the said section has to be set aside.

59. Therefore if the appellant cannot be convicted and sentenced

under section 326 of IPC, then can he convicted u/s 325 of IPC is the

matter of prime concern, as it has been established without any doubt

that the injury had been caused by the appellant and that the act is

solely imputable to the appellant, since he has been unsuccessful in

destroying the deposition of the prosecutrix or proving any malafides on

her behalf. In the circumstances whether the charge can be amended at

the appellate stage or the conviction and sentence of the appellant

under section 326 of IPC has to be set aside is to be determined.

60. Section 464 of the Cr.P.C. stipulates the effect of omission to

frame, or absence of, or error in, charge. The Section contemplates that

no finding, sentence or order by a Court of competent jurisdiction shall

be deemed invalid merely on the ground that no charge was framed or

on the ground of any error, omission or irregularity in the charge

including any misjoinder of charges, unless, in the opinion of the Court

of appeal, confirmation or revision, a failure of justice has in fact been

occasioned thereby.

61. For this reliance can be placed on AIR 2008 SC 3069, Dumpala

Chandra Reddy v. Nimakayala Balireddy and Ors. Relying on Dalbir

Singh v. State of U.P, (2004) 5 SCC 334 the learned counsel for the

appellant has contended that having regard to Section 464 of the

Criminal Procedure Code conviction would be possible if (i) the accused

was aware of the basic ingredients of that offence; (ii) the main facts

sought to be established against him were explained to him clearly and

(iii) he got a fair chance to defend himself. It was held that in view of

Section 464 of Criminal Procedure Code, it is possible for the appellate

or revisional Court to convict the accused for an offence for which no

charge was framed unless the Court is of the opinion that a failure of

justice would in fact occasion. In order to judge whether a failure of

justice has been occasioned, it will be relevant to examine whether the

accused was aware of the basic ingredients of the offence for which he

is being convicted and whether the main facts sought to be established

against him were explained to him clearly and whether he got a fair

chance to defend himself.

62. In the circumstances this Court has to take into consideration

whether the amendment of the charge by this court is likely to cause

any failure of justice as against the appellant. Failure of justice is likely

to be caused if the appellant would not have been aware of the new

charge framed against him or the evidence in lieu of the charge is not

put to him in order to seek his explanation or defense on the same.

Since conviction under section 326 is not possible as no weapon of

offence has either been alleged by the prosecutrix nor has it been

contended by the prosecution nor established, therefore, would it be

appropriate to convict the appellant even under lesser charge under

section 325.

63. Whether the alteration of the charge is likely to cause any

prejudice to the appellant is not apparent on the face of the record as

under Section 313 during the examination of the appellant, it was

specifically put to him in Question no. 18 that it is also in evidence

against him that Kumari Rinchu was bleeding from her eye and that her

eye ball of the right eye had come out and was hanging outside the eye

on account of his acts and imputable to him. Thus it cannot be stated

that the appellant wasn‟t aware of the basic ingredients of the offence

under Section 325 being put against him. The prosecution has

established beyond all reasonable doubt that the damage to the eyes of

the prosecutrix was caused by the appellant based on the deposition of

the prosecutrix which has already been held to be unimpeachable. Also

the only defence led by the appellant is that the damage to the eye of

the prosecutrix is on account of the negligence on the part of the

hospital and not because of the appellant as has also been stated by the

prosecutrix in her FIR No. 447 of 2003 which was registered under

Section 336 of the IPC with the PS Anand Vihar. This plea of the

appellant cannot be accepted since the complaint of the prosecutrix is

regarding the manner in which her treatment was effected for which she

blames the Shanti Mukand Hospital. However for the injury in the first

place she has imputed the offence as against the appellant and it is not

the case of the appellant that the injury was self inflicted or by the

Hospital. The appellant has not been able to impute any motive as

against the prosecutrix to have falsely implicated him in the matter.

Therefore, in the facts and circumstances the appellant's conviction and

sentence under section 326 of IPC is set aside, however, the appellant is

convicted under section 325 of IPC.

64. Thus in view of the reasons detailed hereinabove, this Court does

not find any reason to interfere with the findings of the Trial Court,

except to the extent that the conviction and sentence under Section 326

of the IPC is set aside and thus sentence of the appellant under section

326 stipulating that the appellant shall undergo life imprisonment and

pay a fine of Rs. 5,000/- of IPC is set aside. The appellant, however, is

convicted under a lesser charge under Section 325 of the IPC, and is

also sentenced to undergo rigorous imprisonment for seven years and

to pay a fine of Rs. 5,000/- in the facts and circumstances. In default of

payment of fine, the appellant shall further undergo simple

imprisonment for one years.

65. The learned counsel for the appellant has not canvassed any

arguments with regard to appellant‟s conviction and sentence under

Section 342 of the IPC, therefore the conviction and sentence of the

appellant under section 342 of IPC to undergo RI for one year is upheld.

The appeal of the appellant for his conviction and sentence under

section 342 of IPC is dismissed. The appeal of the appellant against his

conviction and sentence under section 376 of IPC is also dismissed and

the sentence by the Trial Court for offense u/s 376 of IPC sentencing

the appellant to undergo life imprisonment and to pay a fine of

Rs.5,000/- and in default of payment of fine to further undergo SI for

three years is upheld. All the sentences shall run concurrently.

66. The plea of the learned counsel for the complainant/prosecutrix

that in case the appellant‟s conviction and sentence is upheld then he

should be held not entitled for remission or parole, cannot be accepted

in the facts and circumstances of the case. This plea on behalf of

complainant is rejected.

ANIL KUMAR, J.

November 23, 2011. V.K.SHALI, J.

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