Khan Vs. State of M.P.  INSC 1766 (1 December 2009)
SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.1798
OF 2008 Wahid Khan .....Appellant Versus State of Madhya Pradesh
A minor girl aged about 12 years was subjected to rape by the
appellant on 14th October 1988. The appellant was charged and prosecuted for
commission of offence under Sections 366 and 376 of the Indian Penal Code (for
short, `IPC') and the co-accused Sneh Lata was charged under Sections 342 and
366, IPC in the Court of III Additional Sessions Judge, Bhopal in Sessions Case
Judgment was pronounced in the said Sessions Case on 17th May 1991
wherein and whereby co-accused Sneh Lata was acquitted of the charges levelled
against her, but the appellant was found guilty of commission of offence under
Section 376, IPC and was awarded seven years' rigorous imprisonment. Insofar as
the charge levelled against him under Section 366 was concerned, he was
acquitted by the said court.
Feeling aggrieved by the said judgment of conviction, appellant
preferred Criminal Appeal No.548 of 1991 in the High Court of Madhya Pradesh at
Jabalpur. Learned Single Judge, after considering the matter from all angles,
came to the conclusion that the findings recorded by the learned Sessions Judge
were based on material evidence available on record, thus, proceeded to confirm
the findings of guilt as also the punishment awarded to him by judgment dated
29th September 2006.
It is against this judgment, the present criminal appeal by
special leave has been preferred by him.
Facts, which are in short compass, are mentioned hereinbelow.
Although the prosecutrix-P.W.1 was resident of Gadarwara, she had
come to Bhopal about four months prior to the date of occurrence. In Bhopal,
she was staying with her relative. She had gone to an Ayurvedic Hospital for
treatment where she came in contact with acquitted co-accused Sneh Lata, who
showered love and affection on her. Thus, she was allured by Sneh Lata and went
to stay with her. The record shows that she was kept in wrongful confinement at
her house. She used to be beaten up and was not allowed to leave the house.
Many boys and girls used to visit the said house of Sneh Lata.
On 14th October 1988, she gave Rs.10/- to the prosecutrix, with
which the prosecutrix went to Bhopal Talkies to watch the matinee show. After
the movie, when she came out of the theatre, she found a few boys standing
there who started teasing her. In the meanwhile, the appellant- accused Wahid
came there in his auto who voluntarily offered to help her. She requested him
to drop her to her relative's place but instead of taking her to the house of
relative of the prosecutrix, he proceeded towards airport via Lal Ghati.
to stop the accused from proceeding in the wrong direction, but, he continued
to ply the auto-rickshaw. In the darkness, near bushes he stopped the auto and
used filthy language against her. He also threatened to kill her if she raised
hue and cry. After gagging her mouth, he took her to the nearby bushes and
removed her under-garments. He also removed his pants and under-garments and
committed rape on her. At that very point of time, some sharp light came
followed by two police personnel coming there and catching him red-handed while
performing intercourse with the prosecutrix.
Both of them were taken to the Bairagarh Police Station where FIR
(Exh. P-1) was lodged by the prosecutrix.
sent for her medical examination and accused was also sent for his medical
After usual investigation, chargesheet was filed against appellant
and co-accused Sneh Lata for commission of offences as mentioned hereinabove
for which they were tried and upon completion of trial, the appellant was found
guilty for commission of offence under Section 376 of the IPC.
The conviction of the appellant is founded on the evidence of
P.W.1-prosecutrix as also the evidence of P.W.3- B.B. Subba Rao, Sub-inspector
who had caught him red-handed while he was committing rape. Medical report
dated 15th October 1988 of the prosecutrix is on record. It records that her
hymen was found to be in tact whereas her private part admitted only tip of
little finger with difficulty. In the opinion of Dr. B. Biswas who had examined
her, no intercourse was done with her. But, for determination of her age, she
was sent to Forensic Department of Hamidia Hospital.
Biswas has not been examined by the prosecution.
At the time of medical examination of the prosecutrix, her medical
history was recorded, marked at Exh.P-9 which categorically records the manner
in which the appellant had committed rape on her.
P.W.1-prosecutrix had initially not supported prosecution case and
was declared hostile. But, on being confronted with her statement recorded
under Section 161, Code of Criminal Procedure, she narrated the true and
correct story and the manner in which rape was committed on her. She has
categorically deposed that the appellant removed her underwear, lied on her,
put his male organ into her private part and was moving up and down. According
to her, he committed bad act with her. It is mentioned by her that on account
of rape having been committed by the appellant, she was not being called by her
parents. She has also proved her FIR which was recorded on 14th October 1988.
To corroborate the evidence of prosecutrix, prosecution has
examined I.O. (P.W.3-B.B. Subba Rao), Sub- inspector of Police Station
Bairagarh. According to him, on 14th October 1988 he was on field duty with
regard to investigation of some other case and he received an information that
an auto driver was going in an auto at about 8 O'clock in the evening with a
girl towards airport road.
to him, on search, auto was found in abandoned condition on a secluded road.
The police officer has stated that he suspected some foul-play and went in
search of the owner of the same. What is mentioned by him is that near the
bushes, he found the auto-rickshaw parked by the side of the road and appellant
committing rape on the prosecutrix.
to him, the appellant was caught red-handed.
In his cross-examination conducted by learned counsel for the
appellant, which is more suicidal, he has deposed that both of them were found
to be in compromising position and were naked below the waist. It is mentioned
by him that the appellant was lying on the prosecutrix and was indulging in
sexual intercourse and he had seen the incident in the light of the vehicle in
which he was travelling. According to him, the site of incident was 2-3
furlongs away from the main road and as soon as the appellant was caught, stood
up and was found in a perplexed condition. He has further stated that they
thereafter put on their clothes and were brought to the police station, where
FIR was lodged by the prosecutrix. According to him, his auto-rickshaw was
seized on the same day and he was apprehended on next day.
Perusal of the record would show that Exh.P-1 (FIR) was lodged by
the prosecutrix herself on the date of the incident on 14th October 1988 at the
police station soon after the incident. When she was sent for medical
examination, she again narrated rape on her by the appellant before the medical
officer which finds place in her medical report Exh.P-9. Thus, the testimony of
the prosecutrix stands corroborated by her FIR and contents of Exh.P-9. To
further corroborate aforesaid evidence, the statement of P.W.3-B.B.
fully establishes that it was Wahid Khan who had committed rape on the
prosecutrix. As mentioned hereinabove, whatever little lacunae was there in the
prosecution story, has been cured in his cross-examination.
Cumulative reading of the aforesaid would prove beyond shadow of
doubt that it was the appellant who had committed offence of rape on minor girl
and had completely ravished her.
Shri Fakhruddin, learned senior counsel appearing for the
appellant strenuously contended before us that keeping in mind the medical
report of the prosecutrix reflecting her hymen was still in-tact, would be
indicative of the fact that no intercourse was at all committed on her.
According to him, looking to the totality of the facts and features of the case
and the evidence available on record, at best, it would establish a case
wherein the appellant could have been convicted only under Section 354 of IPC
but no case was made out for his conviction under Section 376 thereof.
On the other hand, Shri Sidhartha Dave, learned counsel appearing
along with Ms. Vibha Datta Makhija for the respondent-State contended that even
if full penetration had not been there, slight penetration itself is sufficient
and would complete the offence of rape as contemplated under Section 375 of the
IPC and thus both the courts below were justified in finding him guilty under
Section 376 of IPC and awarding him punishment accordingly.
The law on the point is now too well settled. No doubt, it is true
that Dr. B. Biswas, who had initially conducted the medical examination of the
prosecutrix, has not appeared on behalf of the prosecution to depose. But, that
alone is not sufficient to discard the prosecution story.
is not the sine qua non for conviction in a rape case.
In this regard, the most celebrated observations of Justice Vivian
Bose in the case of Rameshwar v. State of Rajasthan AIR 1952 SC 54 may be
rule, which according to the cases has hardened into one of law, is not that
corroboration is essential before there can be a conviction but that the
necessity of corroboration, as a matter of prudence, except where the
circumstances make it safe to dispense with it, must be present to the mind of
It is also a matter of common law that in Indian society any girl
or woman would not make such allegations against a person as she is fully aware
of the repercussions flowing therefrom. If she is found to be false, she would
be looked by the society with contempt throughout her life. For an unmarried
girl, it will be difficult to find a suitable groom. Therefore, unless an
offence has really been committed, a girl or a woman would be extremely
reluctant even to admit that any such incident had taken place which is likely
to reflect on her chastity. She would also be conscious of the danger of being
ostracized by the society.
indeed be difficult for her to survive in Indian society which is, of course,
not as forward looking as the western countries are.
Thus, in a case of rape, testimony of a prosecutrix stands at par
with that of an injured witness. It is really not necessary to insist for
corroboration if the evidence of the prosecutrix inspires confidence and
appears to be credible.
However, in the case in hand, even without the examination of
doctor, the evidence of prosecutrix stands fully corroborated by the evidence
of P.W.3-B.B. Subba Rao, Sub-inspector of the police station who had virtually
caught the appellant red-handed. Thus, even if doctor had not been examined it
would not throw or completely discard the prosecution story. The evidence of
prosecution witnesses is fully trustworthy and there is no reason to doubt
It was also contended by learned counsel for the appellant that
since hymen of the prosecutrix was found to be intact, therefore, it cannot be
said that an offence of rape was committed on her by the appellant. This
contention cannot be accepted as offence of rape has been defined in Section
375 of the IPC. Explanation to Section 375 reads thus :
- Penetration is sufficient to constitute the sexual intercourse necessary to
the offence of rape."
It has been a consistent view of this Court that even a slightest
penetration is sufficient to make out an offence of rape and depth of
penetration is immaterial.
It is appropriate in this context to reproduce the opinion
expressed by Modi in Medical Jurisprudence and Toxicology (Twenty Second
Edition) at page 495 which reads thus :
to constitute the offence of rape, it is not necessary that there should be
complete penetration of penis with emission of semen and rupture of hymen.
Partial penetration of the penis within the Labia majora or the vulva or
pudenda with or without emission of semen or even an attempt at penetration is
quite sufficient for the purpose of the law. It is therefore quite possible to
commit legally, the offence of rape without producing any injury to the
genitals or leaving any seminal stains.
In such a
case, the medical officer should mention the negative facts in his report, but
should not give his opinion that no rape had been committed. Rape is crime and
not a medical condition. Rape is a legal term and not a diagnosis to be made by
the medical officer treating the victim. The only statement that can be made by
the medical officer is to the effect whether there is evidence of recent sexual
the rape has occurred or not is a legal conclusion, not a medical one."
Similarly in Parikh's Textbook of Medical Jurisprudence and
Toxicology, 'sexual intercourse' has been defined as under :
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."
If the aforesaid facts are kept in mind, it cannot be disputed
that the act of the appellant would certainly constitute an offence of rape and
leaves no amount of doubt in our mind.
Learned counsel for the appellant placed reliance on a recent
judgment of this Court reported in (2007) 12 SCC 57 Radhu v. State of Madhya Pradesh
to contend that since evidence of prosecutrix was not corroborated, the
appellant should be extended benefit of doubt. Even after going through the
said judgment critically we do not find that any benefit can be extended to the
appellant. In the said case, there were several serious discrepancies in the
evidence of the prosecutrix which prompted the Court to call for corroboration.
In the present case, there is consistency in the evidence of prosecutrix, which
stands corroborated by the evidence of P.W.3-B.B. Subba Rao. He had no axe to
grind against the appellant.
In this case, the version of the prosecutrix right from lodging of
the FIR, till her examination by the doctor and till she deposed in court, had
been absolutely consistent.
this, to corroborate further, the evidence of P.W.3-B.B. Subba Rao is also on
record who had caught the appellant red-handed which fully establishes that it
was the appellant who had committed offence of rape.
Thus, looking to the matter from all angles, we are of the opinion
that there is no merit or substance in this appeal.
is accordingly hereby dismissed.
.....................J. [J.M. PANCHAL]
.....................J. [DEEPAK VERMA]
December 01, 2009.