Satyapal Vs. State of
Haryana  INSC 707 (8 April 2009)
IN THE SUPREME COURT
OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.664 OF 2009
[Arising out of SLP (Crl.) No. 3855 of 2007] Satyapal ...Appellant Versus State
of Haryana ...Respondent
S.B. SINHA, J :
was accused of a charge of commission of an offence under Section 376 of the
Indian Penal Code. He was sentenced to undergo rigorous imprisonment for seven
years and to pay fine of Rs. 20,000/-. In default of payment of fine, he was
directed to undergo further rigorous imprisonment for two years.
prosecution case is as under:
The prosecutrix was a
minor. She was aged about 11 years.
Appellant was a
co-villager. As per the First Information Report, on 5.02.1993 at about 8.00
a.m., she went to the fields to bring fodder. When she reached near the fields
of one Nihala, the appellant came near her and forcibly lifted her. She raised
an alarm but the appellant gagged her mouth and started sexually assaulting
her. After hearing the voice of her aunt, the appellant left her and ran away.
The learned trial
Judge found the appellant guilty of commission of the offence under Section 376
of the Indian Penal Code. Aggrieved thereby and dissatisfied therewith, the
appellant filed an appeal before the Punjab and Haryana High Court, which has
also been dismissed by reason of the impugned judgment.
Brijender Chahar, learned senior counsel would, in support of the appeal, raise
the following contentions:
3 (i) Having regard
to the evidence of prosecutrix (PW-4), the courts below committed a serious
error in rejecting the medical evidence as also the report of the Forensic
(ii) The materials
brought on record, even if given face value, would clearly establish that the
appellant who had land dispute with the family of the prosecutirx had been
(iii) The ingredients
of Section 376 of the Indian Penal Code having not been established, the
impugned judgments are liable to be set aside.
Rajeev Gaur `Naseem', learned counsel appearing on behalf of the respondent, on
the other hand, would urge:
(i) The land dispute
between the parties cannot be a ground for false implication of a relation for
commission of an offence of this nature.
(ii) The evidence of
the prosecutirx, who is a child witness, having been found to be convincing and
her evidence having been corroborated by her aunt Khazani (PW-5), no
interference with the impugned judgments is warranted.
(iii) The prosecutrix
having been examined after 80 hours, the medical report as also the evidence
must be considered in the factual context brought on record.
occurrence took place on 5.02.1993 at about 8 a.m. The prosecutrix went to the
field to bring fodder. She was admittedly a minor.
The learned Judge was
satisfied that she was competent to depose. In her examination-in-chief, she
supported the accusations made against the appellant in the First Information
attention, however, was drawn to the following statements made by her in her
"There was no
string of cloth of my underwear.
My underwear was that
of elastic and it was not broken. I was wearing the same underwear and salwar,
which were smeared with blood, after reaching home. My underwear and salwar
were got changed in Bhiwani after reaching the hospital. The accused got
discharged when performed the sexual intercourse and that discharged material
had smeared my body at the relevant place. I had not taken a bath when I was
brought to Civil Hospital, Bhiwani. Some blood had fallen on the ground where
the accused had performed the sexual intercourse with me..."
her aunt (PW-5) witnessed a part of the occurrence. She, in her deposition,
prosecutrix P.W. is my real sister's daughter. She resides in Khaparwas. About
six months and a week ago, I had gone to bring grass in the fields at about
8.00 or 8.30 a.m. When I reached in the field of Nihala, Satyapal accused had
removed salwar and underwear of Nirmala and had shut her mouth and the accused
was performing sexual intercourse with Nirmala and while Nirmala had been laid
down in the crop of gram in the side of a Tibbi (sand dune). Nirmala was
weeping and on seeing me, the accused ran away. There was swelling on the
vagina of Nirmala. Nirmala was also bleeding and I got Nirmala to wear her
underwear and salwar and brought her home..."
the father of the prosecutrix was not in the village.
Rajesh, elder brother
of the prosecutrix had gone to village Devrala to inform him. After he came
back, a panchayat was convened. Evidently, the family keeping in view the
reputation of a minor girl did not intend to lodge a First Information Report
straightway. PW-5, in this connection, in her deposition stated:
father-in-law was Man Singh and he had two brothers, namely, Ganpat and Mohar
Lal. Mohal Lal was issueless. Mohar Lal had given his entire land to the sons
of Ganpat and no land was given to the sons of Man Singh. I do not know if this
land was distributed as such at the instance of Sultan, father of the accused.
It is incorrect that there was a water dispute from a Nali with the accused. We
have a separate water channel. I do not know if my husband was committing thefts.
I do not know if he was killed because of any thefts.
It is incorrect that
I killed my husband. I have no interest in visiting the police. However, I am
pursuing her case, as she is my real sister's daughter. It is incorrect that I
got the accused falsely implicated. Rajesh, elder brother of Nirmala P.W., had
gone to village Devrala to inform her father. There is a chowk in the heart of
the village where the panchayat was convened.
Sarpanch and others
were with us in the panchayat. Member-Panchayats were also in that panchayat in
the village. We wanted that at least the accused should have apologized, but he
did not agree. Since it was a question of a stigma on the career of the girl,
we did not want to come to the court initially..."
may at this juncture notice the evidence of Dr. Savita Bansal (PW-6). In her
deposition, she stated:
examination, there was no bleeding or discharge on thigh or labia majora. Labia
majora and minora were not properly developed.
Posterior commissure and
fourchette were intact.
7 Hymen was absent
and represented by slightly swollen edges.
examination was not possible.
On her vaginal
examination, it admitted only little finger easily. Two fingers were not
possible to be admitted. So properly her vaginal examination was not possible.
Vaginal rugosities were not well maintained."
She, in her
cross-examination, clarified as to why she had reported that there was a
possibility of an attempt, stating:
"I cannot say
definitely with the aforesaid observation whether there was actually any
attempt to commit sexual intercourse. Therefore, I cannot say whether there was
a penetration or not.
Since the edges of
the vagina were swollen, therefore, I say that there could be a possibility of
attempt and, therefore, I have said that possibility of the attempt to commit
sexual intercourse cannot be ruled out.
Possibility of such a
swelling, as in this case, may be due to other reasons also. It is not
necessary that other signs are also available besides swelling if an attempt to
rape is made. In this case, since the girl is minor, therefore, the other signs
were not possible. As I have mentioned that hymen was absent, I mean that it
was not freshly bleeding. There was no bleeding of the hymen at all. This
amounts to absence of the hymen..."
proceeding to discuss further, we may also notice that in the report of the
Chemical Examiner, it was stated that no semen was detected on any of the
exhibits sent to it.
learned Trial Judge while recording the judgment of conviction held:
"20. In my view,
the entire version of prosecutrix Nirmala, aged about 10 years, is convincing,
consistent and truthful. It is not necessary for her to explain where the blood
had gone from her private parts at the scene of occurrence. She might have
washed her private parts after urinating or after going for toilet etc. It is
not the case that she did not go to toilet and did not pass any urine till she
was medico-legally examined. It is not necessary that blood had fallen on her
It was concluded:
"21. So, such
cases of rape, molestations and other offences against the women are quite
common and are not unusual. Therefore, I over- rule the contentions of the
learned counsel for the defence. I uphold the arguments of the learned
Prosecutor, who has urged that the statements of the prosecutrix and Smt.
Khazani are truthful and with the help of medical evidence, they have been able
to prove the guilt of the accused and I am convinced that this is a case of
rape and the prosecutrix has clearly stated in her statement that the accused
took out his penis and inserted the 9 same in her private parts. This part of
the evidence proves the case against the accused clearly without any
High Court, in its judgment, opined:
(i) "Hymen was
found to be absent when the prosecutrix was medico-legally examined by Dr.
Savita Bansal. Said doctor further noticed that the same was represented by
slightly swollen edges. Although, the doctor could not say definitely whether
there was actually any attempt to commit sexual intercourse or not, yet since
the edges of the vagina were swollen, therefore, an opinion was given that
there could be a possibility of attempt and, accordingly, the possibility of
the attempt to commit sexual intercourse could not be ruled out."
(ii) "Coming to
the report of the FSL, as per which semen could not be detected on the clothes
of the prosecutrix and the vaginal swabs, it may be noted that complete
penetration of the penis with emission of semen is not necessary to constitute
the offence of rape. Even partial penetration was sufficient to constitute the
offence of rape. Absence of hymen is clear indication of the fact that there
was penetration. It may be that the penetration was partial or that there was
no emission of semen by the appellant."
prosecutrix has clearly stated in her deposition before the Court that the
accused had inserted his male organ in her vagina. Moreover, the absence of
hymen cannot be explained by any other circumstance than the sexual intercourse
committed by the appellant with the prosecutrix."
Chahar would contend that whereas the learned Trial Judge failed to take into
consideration the medical evidence, the opinion of the High court is clearly
contrary to the prosecution case.
case of this nature should be viewed having regard to the materials brought on
record in their entirety. We have noticed hereinbefore the prosecution case.
Indisputably, the prosecutrix was examined medically after a long time. The
explanation offered by PW-5 in this behalf, in our opinion, is clear and
sufficient. Not only the father of the prosecutrix was not in the village, he
had to be sent for and came back to the village only on the next day.
Evidently, for good reasons, they did not want to lodge a First Information
Report immediately. A panchayat was convened and only when it did not yield any
fruitful result, the First Information Report was lodged.
The evidence of the
doctor appears to be wholly insufficient. Even she could not complete the medical
11 Despite passage
of a long time, an injury on the private parts of the prosecutrix was found.
The doctor at least testified that there had been an attempt to commit rape.
While saying so, she found the hymen absent which having regard to the medical
jurisprudence is of some significance.
Modi's Medical Jurisprudence, twenty-third edition, at pages 897 and 928, it is
"At page 897: To
constitute the offence of rape, it is not necessary that there would be
complete penetration of the penis with emission of semen and the 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 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.
At page 928: In small
children, the hymen is not usually ruptured, but may become red and congested along
with the inflammation and bruising of the labia. If considerable violence is
used, there is often laceration of the fourchette and perineum."
prosecution case must be considered having regard to the evidence of PW-5. She
detected the accused while committing the offence.
It was not complete.
Appellant is said to have fled away, hearing her voice.
prosecutrix, therefore, may not be correct when she made her statements that
she did not change her garments which does not appear to be probable as
sufficient time had elapsed and it is unthinkable that a little girl would
continue to wear her cloth for 80 hours or she would not wash herself.
in the judgment of the High Court could have been found out if the prosecutrix
was a major. Having regard to the nature of medical evidence as also the
authorities noticed hereinbefore the conclusion arrived at by the High court,
in our considered opinion, cannot be said to be perverse. Furthermore, for the
purpose of satisfaction of the ingredients of rape, it is not necessary that
there should be complete penetration. [See Aman Kumar and Another v. State of
Haryana (2004) 4 SCC 379]
Court can take judicial notice of the fact that ordinarily the family of the
victim would not intend to get a stigma attached to the victim.
13 Delay in lodging
the First Information Report in a case of this nature is a normal phenomenon.
Both the courts below apart from relying on a part of the testimony of the
prosecutrix found the evidence of PW-5 to be absolutely reliable. The medical
evidence itself being a part of the evidence is required to be appreciated in
the context of ocular evidence and other circumstances surrounding thereto.
was some time gap between the occurrence and the examination of the witnesses.
Some lapse of memory on the part of the child witness, therefore, is possible.
are, therefore, of the opinion that the impugned judgment does not warrant any
interference by this Court.
the reasons aforementioned, there is no merit in this appeal, which is
[Dr. Mukundakam Sharma]