Santosh Kumar Vs. State of M.P  Insc 538 (25 August 2006)
Mathur & R.V. Raveendran G. P. Mathur, J.
Kumar has preferred this appeal, by special leave, against the judgment and
order dated 13.12.2004 of Madhya Pradesh High Court, by which the appeal filed
by him was dismissed and the judgment and order dated 23.10.1989 of Sessions
Judge, Raisen, convicting him under Section 376(2)(g) IPC and imposing the
sentence of 10 years RI and a fine of Rs.500/- and in default to undergo six
months RI was affirmed.
The case of the
prosecution, in brief, is that the prosecutrix Halki Bai, who was resident of
village Modakpur had been deserted by her husband and in order to maintain
herself she was doing some work as labour. She came by a bus to Silvani in
search of work in the night of 20.5.1985. After she had boarded the bus the
conductor Munim Mishra enquired where she was going and when she informed him
that she was going to Silvani in search of some work, he did not ask for money
for issuing to her a ticket. The bus reached Silvani at about 10.00 p.m. and when she was trying to get down, Munim Mishra
told her that she may sleep in the bus itself rather than going anywhere in the
night and in the morning he would arrange some work for her. Halki Bai then
slept on the rear seat of the bus. At about midnight, when all the shops at the bus stand had closed, the driver of the bus,
viz. Santosh Kumar (appellant) pressed her breasts and started removing her
dhoti which she was wearing. When she tried to raise an alarm, Munim Mishra
caught hold of her hands and also gagged her and then the appellant Santosh
Kumar ravished her.
Santosh Kumar caught hold of her hands and Munim Mishra ravished her. Hearing
her alarm, three constables who were on patrol duty and some others came near
the bus, but both the accused managed to run away. The policemen brought Halki Bai
to P.S. Silvani, where she lodged the FIR of the incident at 1.00 a.m. on 21.5.1985. Halki Bai was sent for medical
examination where PW.3 Dr. Z. Fezi examined her at 2.00 a.m. and prepared a medical examination report which is Ex. P-8.
After completion of the investigation, charge sheet was submitted against both
the accused viz. Santosh Kumar (appellant) and Munim Mishra.
The learned Sessions
Judge framed charge under Section 376 IPC against both the accused, who pleaded
not guilty and claimed to be tried. In order to establish its case, the
prosecution examined 10 witnesses and filed some documentary evidence. The
appellant and co-accused Munim Mishra in their statements under Section 313 Cr.P.C.
denied the prosecution case and examined two witnesses in their defence. The
learned Sessions Judge believed the case of the prosecution and convicted and
sentenced both the accused as stated earlier. The appeal preferred by the
accused was dismissed by the High Court by the judgment and order dated
During trial the
prosecution examined four witnesses of fact.
Bai in her deposition gave details of the incident and stated that first she
was ravished by the appellant Santosh Kumar and then by Munim Mishra. PW-1 Mukhtar
Hasan, who was working as a helper in the Forest Department, deposed that he
was going to the Range Office and at about 12.00 p.m. when he reached the bus stand, he saw some persons standing near a bus
which had come from Sagar.
thereafter, some police constables also came there. He saw Halki Bai and both
the accused inside the bus. Halki Bai informed them that both the accused had
ravished her. The witness was declared hostile and was cross-examined by the
State counsel. PW-7 Dinesh Kumar, who is a constable, deposed that he along
with PW-8 Hari Narayan and Narayan Singh were on patrol duty and when they
reached near the bus stand, they heard the shrieks of a lady coming from the
bus. They immediately rushed and entered the bus from the rear side, when he
saw that the appellant Santosh Kumar was catching hold of the hands of the prosecutrix
and Munim Mishra was committing rape upon her. Both the accused jumped from the
bus and ran away after seeing the police personnel. Similar statement has been
given by PW-8 Hari Narayan, constable.
PW-10 Halki Bai has clearly deposed in her statement that both the accused,
viz., Santosh Kumar and Munim Mishra had ravished her one after another. There
is absolutely no reason why Halki Bai would falsely implicate the accused as
they were strangers to her. The testimony of prosecutrix finds corroboration
from the testimony of two constables, namely, PW-7 Dinesh Kumar and PW-8 Hari Narayan.
PW-1 Mukhtar Hasan has also supported a part of the prosecution case in his
examination-in- chief, namely, that after hearing the shrieks of a girl, he
went inside the bus where he found the two accused holding the hands of Halki Bai.
He further deposed that Halki Bai had informed them that the accused had
ravished her. Though PW-1 was declared as hostile, his evidence is not to be
treated as effaced from record and can be relied upon in part. In Sat Paul v.
Delhi Administration AIR 1976 SC 294 after referring to several decisions on
the point, it was held :-
Even in a criminal prosecution when a witness is cross- examined and
contradicted with the leave of the court, by the party calling him, his
evidence cannot, as a matter of law, be treated as washed off the record
altogether. It is for the Judge of fact to consider in each case whether as a
result of such cross-examination and contradiction, the witness stands
thoroughly discredited or can still be believed in regard to a part of his
testimony. If the Judge finds that in the process, the credit of the witness
has not been completely shaken, he may, after reading and considering the
evidence of the witness, as a whole, with due caution and care, accept, in the
light of the other evidence on the record, that part of his testimony which he
finds to be creditworthy and act upon it. If in a given case, the whole of the
testimony of the witness is impugned, and in the process, the witness stands
squarely and totally discredited, the Judge should, as matter of prudence,
discard his evidence in toto. " In Gura Singh v. State of Rajasthan AIR
2001 SC 330 it was held :-
is misconceived notion that merely because a witness is declared hostile his
entire evidence should be excluded or rendered unworthy of consideration. In a
criminal trial where a prosecution witness is cross-examined and contradicted
with the leave of the Court by the party calling him for evidence cannot, as a
matter of general rule, be treated as washed off the record altogether. It is
for the Court of the fact to consider in each case whether as a result of such
cross-examination and contradiction the witness stands discredited or can still
be believed in regard to any part of his testimony. In appropriate cases the
Court can rely upon the part of testimony of such witness if that part of the
deposition is found to be creditworthy. " Therefore, the testimony of PW-1
Mukhtar Hasan to the extent that he went inside the bus after hearing the
shrieks of Halki Bai and that he saw the accused holding her hands and also the
further fact that Halki Bai immediately stated that the accused had committed
rape upon her can be believed. The learned Sessions Judge and also the High
Court have placed reliance on his testimony as he is an independent witness.
Thus the oral evidence on record fully establishes the case of the prosecution.
for the appellant has submitted that the medical evidence does not disclose
that PW-10 Halki Bai had been subjected to rape as there were no injuries on
her private parts and, therefore, the entire prosecution case becomes doubtful.
The prosecutrix had been medically examined at 2.00 a.m. on 21.5.1985 by PW.3 Dr. Z. Fezi, Woman Assistant Surgeon,
at Silvani. She had prepared a medical report, Ex.P-8 and the relevant part
thereof is being reproduced below :- " Marks of External Injury on body
on breast right upper and outer quadrant which are nail marks as they are crescenteric
in shape of sizes 0.5 cm to 1.0 cm.
on breast left upper and inner quadrant which are nail marks as they are crescenteric
in shape of sizes 0.5 to 1.0 cm.
One bruise left
upper arm (below post fold of axilla) Posterolaterally =" x =" red in
Hair Present, black in colour.
Genitals No seminal stains, no bruising or laceration seen.
several small granular tags present, no fresh tear present. Fourchette and
posterior commissure are intact.
Admits two fingers with resistance. No laceration seen.
Firm, cleft transversely. No laceration seen.
Retroverted, normal size, fornices clear.
opinion regarding rape can be given till report of vaginal smear is available.
injuries are of within 24 hours duration and simple in nature.
packet containing two slides of vaginal smear another sealed packet containing
clothes (sadi and petticoat) and one sealed vial containing cutted public hair advised
to send for chemical examination. "In her deposition the doctor has stated
that the age of Halki Bai was about 18 years and she was of average built
having a height of 159 cms. and her weight was 100 pounds. She has also deposed
that no definite opinion could be given regarding rape till the report of
vaginal smear was received. It is noted by the High Court that till the
conclusion of the session trial, the report of chemical examination had not
which arises for consideration, is whether the proved facts establish the
offence of rape. It is not necessary for us to refer to various authorities as
the said question has been examined in considerable detail in Madan Gopal Kakkad
v. Naval Dubey (1992) 3 SCC 204 and paragraphs 37 to 39 of the said judgment
are being reproduced below:-
"We feel that it would be quite
appropriate, in this context, to reproduce the opinion expressed by Modi in
Medical Jurisprudence and Toxicology (Twenty First Edition) at page 369 which
to constitute the offence of rape it is not necessary that there should be
complete penetration of penis with emission of semen and rupture of hymen.
Partial penetration of the penis within the Labia majora or the vulva or
pudenda with or without emission of semen or even an attempt at penetration is
quite sufficient for the purpose of the law. It is therefore quite possible to
commit legally the offence of rape without producing any injury to the genitals
or leaving any seminal stains. In such a case the medical officer should
mention the negative facts in his report, but should not give his opinion that
no rape had been committed. Rape is crime and not a medical condition. Rape is
a legal term and not a diagnosis to be made by the medical officer treating the
victim. The only statement that can be made by the medical officer is that
there is evidence of recent sexual activity. Whether the rape has occurred or
not is a legal conclusion, not a medical one."
38. In Parikhs Textbook of Medical
Jurisprudence and Toxicology, the following passage is found:
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 Encyclopedia of Crime and Justice
(Vol. 4) at page 1356, it is stated:
slight penetration is sufficient and emission is unnecessary. " Therefore,
absence of injuries on the private parts of a victim specially a married lady
cannot, ipso facto, lead to an inference that no rape has been committed.
examination report of the victim shows that she received injuries on front
portion of the body and also on her hands.
mere fact that no injuries were found on private parts of her body cannot be a
ground to hold that no rape was committed upon her or that the entire
prosecution story is false. It may be noted that Halki Bai is a married grown
up lady and in such circumstances the absence of injuries on her private parts
is not of much significance.
The accused in
their defence examined two witnesses. DW-1 Gopi Aggarwal deposed that he has a
hotel (restaurant) at a short distance from Silvani bus stand and the same
remains open till about 11.00 in the night. The bus which is operated by the
accused normally stops in front of his hotel at about 9.00-10.00 p.m. He further deposed that no incident in the said bus had
taken place so long as he was present in his hotel. The evidence of DW-1 is of
neutral character and does not discredit the prosecution case. DW-2 Gopi Lal Yadav
has deposed that he works as a driver on a bus which goes from Sagar to Silvani
and normally his vehicle arrives at Silvani at about 8.30 p.m. and stops in front of the hotel. About 4-5 years back while
he was taking food in the hotel, he saw that some talks were going on between Santosh
appellant and a few police personnel regarding payment of 'hafta' (weekly
payment). After exchange of some hot words had taken place, the police
personnel caught hold of the appellant and took him along with them. At that
time Munim Mishra accused was not present as he had gone for the purpose of
repair of the tyre which had got punctured. Like the appellant, DW-2 works as a
driver of a bus operating on Sagar-Silvani route. He did not make any protest
when the police personnel allegedly took the appellant Santosh in their custody
on the ground of non-payment of 'hafta'. Nor did he make any complaint to any
superior authority regarding the alleged high-handedness of the police
personnel at any subsequent point of time. He has come out with his version of
the incident for the first time when he deposed in Court on 17.10.1989 i.e.
nearly 4-1/2 years after the incident. The learned Sessions Judge and also the
High Court have rightly discarded the evidence of DW-2 and we find no reason to
take a different view.
Having given our careful
consideration to the submissions made by learned counsel for the appellant, we
are of the opinion that the prosecution has established its case against the
appellant beyond any shadow of doubt. The learned Sessions Judge and the High
Court have rightly convicted the appellant under Section 376(2)(g) IPC and
there is absolutely no ground which may warrant interference by this Court. The
appeal is accordingly dismissed.