Prithi
Chand Vs. State of Himachal Pradesh [1989] INSC 17 (17 January 1989)
Ahmadi,
A.M. (J) Ahmadi, A.M. (J) Natrajan, S. (J)
CITATION:
1989 AIR 702 1989 SCR (1) 123 1989 SCC (1) 432 JT 1989 (1) 106 1989 SCALE (1)74
ACT:
Indian
Penal Code, 1860: Section 376--Rape on minor girl Penetration-Proof of--Medical
opinion--Infirmity of--Absence of spermatozoa--Whether can cast doubt on prose-
cution case--Allegation of false implication due to enmity between parents of
appellant and prosecutrix--Whether valid.
Evidence
Act, 1872: Sections 32 & 62--Carbon copy of medical cetificate--Admissibility
of.
Criminal
Procedure Code, 1973: Section 154--F.I.R.
lodged
next day morning, father of prosecutrix not being available and it was too late
to travel to police station--Whether amounts to delay.
HEAD NOTE:
It was
alleged that the appellant, a youth of 18 years, forcibly lifted P.W. 1, a girl
of tender age of 11, 12 years, took her to a shallow place, and committed rape
on her, on account of which she began to bleed profusely; that on hearing the
call of P.W. 7 the appellant ran away. A report was lodged with the police next
morning.
The
girl was examined by a lady doctor, who issued a medical certificate. The
leaves collected from the place of occurrence, the slides, the swabs and the salwar
were for- warded to the Chemical Analyser and Serologist for examina- tion and
report.
The
appellant was prosecuted for committing rape on P.W. 1. The trial court
convicted him under s. 376 I.P.C. and sentenced him to suffer imprisonment for
life and to pay a fine of Rs.2,000 in default to suffer rigorous imprisonment
for a further period of two years.
On
appeal, the High Court, while confirming the convic- tion reduced the
substantive sentence from imprisonment for life to rigorous imprisonment for
seven years but retained the punishment in default thereof.
In the
appeal before this Court, it was contended on behalf of the appellant that the
carbon copy of the medical certificate given by the lady 124 doctor, who
examined P.W. 1 was inadmissible in evidence, that having regard to the girl's
age and the fact that her vagina admitted one finger with difficulty, it was
not possible to believe that there was penetration, that there was delay in
filing the First Information Report, that since the girl was of a tender age
the possibility of her wrongly involving the appellant could not be ruled out
and that this possibility was strengthened by prior enmity, absence of
spermatozoa, and infirm medical opinion.
Dismissing
the appeal,
HELD:
1. Section 32 of the Evidence Act provides that when a statement written or
verbal, is made by a person in the discharge of professional duty whose
attendance cannot be procured without an amount of delay, the same is relevant
and admissible in evidence. [127F] In the instant case, the lady doctor, who
examined P.W. 1 and issued the medical certificate was not available for giving
evidence as she had proceeded on long leave. In her absence, the trial Judge
felt that it would not be possible to secure her presence without undue delay
and therefore permitted the prosecution to prove the certificate through P.W.
2, who was conversant with her hand-writing and signa- ture. Besides, since the
carbon copy was made by one uniform process the same was primary evidence
within the meaning of Explanation 2 to s. 62 of the Evidence Act. Therefore,
the medical certificate was clearly admissible in evidence. [127D-G]
2. In
the absence of penetration, there would not be absence of hymen with the edges
torn and profuse bleeding from the vagina staining the salwar. Merely because
the Doctor found that the vagina admitted one finger with diffi- culty, it
cannot be inferred that there was no penetration as the muscles must have
contracted by then. The appellant, a robust man must have penetrated the vagina
for otherwise there would not have been so much of bleeding. [128B-C]
3.
Mere absence of spermatozoa cannot cast a doubt on the correctness of the
prosecution case. The report of the Chemical Analyser and Serologist supports
the version of the prosecution witnesses that there was profuse bleeding from
the vagina. [129F; 128F]
4.
Immediately after the incident was narrated to the mother and other ladies, no
decision could be taken because of the absence of the 125 father. On his
arrival, he informed the Sarpanch, who ad- vised him to report it to the Police
next day in the morn- ing, since it was too late to travel to the Police
Station at that hour and accordingly the F.I.R. was lodged on the next day.
Therefore, there is no delay in filing the F.I.R. [128G-H]
5. It
is not possible to believe that the prosecutrix and her parents would allow the
real culprit to escape and falsely involve an innocent person for the
commission of the Crime. Except for the suggestion made in the cross-examina- tion
of P.W. 8 and the statement under s. 313 of the Code of Criminal Procedure
there is no material on record to give credence to the suggestion that the son
of P.W. 8 was inti- mate with the prosecutrix and he had raped the girl. [129C]
6.
There is strong, reliable and dependable evidence of the prosecution witnesses
which clearly proves that the prosecutrix was raped by the appellant. In such
circum- stances, there can be no merit in the appeal. [127G]
CRIMINAL
APPELLATE JURISDICTION: Criminal Appeal No. 738 of 1981.
From
the Judgment and Order dated 29.8.1980 of the Himachal Pradesh High Court in
Criminal Appeal No. 41 of 1980.
Balakrishna
Gaur, Amicus Curiae for the Appellant.
K.G. Bhagat,
Harish Kumar Sharma and Ms. A. Subhashini for the Respondent.
The
Judgment of the Court was delivered by AHMADI, J. The appellant Prithi Chand, a
youth of about 18 years, was prosecuted for committing rape of PW-I Kancha- na Devi,
a girl of tender age of 11 or 12 years, on the afternoon of 15th June, 1979 at
a place known as Kutkharpati in village Kot, Tehsil Palampur of Himachal
Pradesh. The learned Sessions Judge convicted him under Section 376, I.P.C.,
and sentenced him to suffer imprisonment for life and to pay a fine of Rs.2,000,
in default to suffer rigorous imprisonment for a further period of two years.
On appeal, the High Court while confirming his conviction under Section 376,
I.P.C., reduced the substantive sentence from imprison- ment for life to
rigorous imprisonment for seven years but retained the order regarding payment
of fine 126 and the punishment in default thereof. Thereupon the appel- lant
has approached this Court under Article 136 of the Constitution of India.
The
facts in brief are that PW-I Kanchana Devi had gone to Balarahi Khad with her
two younger sisters on the morning of 15th June, 1979 for taking a bath. After the bath
when she was returning to her residence the appellant met her on the way and
asked her to permit him to have sexual-inter- course with her. She resented
this behaviour of the appel- lant and with a view to avoiding him changed her
route. But the appellant intercepted her and offered her Rs.5 for permitting
him to have sexual-intercourse with her. On the prosecutrix refusing the
appellant physically lifted her and took her to a shallow place, removed her
trousers (Salwar) and after removing his clothes committed rape on her, on
account whereof she began to bleed profusely. After satisfy- ing his lust the
appellant gave her a few leaves to wipe her vagina. On hearing a call from PW-7
Sandhi Devi who was looking for her daughter, the appellant ran away. The
prose- cutrix returned home. Her trousers were stained with blood.
She
narrated the incident to her mother PW-6 Vijaya Devi and thereafter to the other
ladies of the village who had in the meanwhile collected at her residence. The
mother and the other ladies examined the vagina of the girl and found that the
same was ruptured and bleeding. As her father was not at home, her mother could
not decide on the course of action.
On the
return of her father PW-3 Bali Ram, she narrated the incident to him, whereupon
the Sarpanch of the village PW-12 Chaturbhuj was informed about the incident
who advised them to report the matter to the police in the morning since it was
too late to travel to the Police Station. On the next morning the prosecutrix,
her parents and the Sarpanch went to the Police Station where the girl filed
the report which is on record at Exhibit P-A.
PW-I Kanchana
Devi narrated the incident as stated above in detail in her deposition before
the Court also. Except for one or two minor omissions, her evidence is
consistent with the report Exhibit P-A. She has stated that on that afternoon
the appellant forcibly lifted her and took her to the lower level where he had
sexual intercourse with her.
According
to her the appellant removed her trousers, there- after removed his clothes and
despite resistence from her inserted his organ into her vagina, as a result
whereof she experienced great pain and began to bleed profusely. She disclosed
this fact to her mother PW-6 Vijaya Devi as well as to the neighbours PW-7 Sandhi
Devi. and PW-8 Phulan Devi.
On the
return of her father PW-3 Bali Ram, she narrated the incident to him. All these
witnesses support the version of 127 the prosecutrix. The Sarpanch PW-12 Chaturbhuj
has also stated that when the prosecutrix was brought to him she was wearing a
blood stained Salwar and had complained that the appellant had raped her. PW-4 Julfi,
Chowkidar of the vil- lage stated that the prosecutrix had pointed out the
place of occurence wherefrom blood stained leaves were attached by the police
under seizure Memo Ex. P-B. PW-5 Kishori Lal supports him.
The prosecutrix
was examined by Dr. C.S. Vedwa, who had issued the Medical Certificate, Ex. P-E
dated 16th June, 1979. The Medical Certificate shows that the prosecutrix had
not developed secondary sex characters, auxiliary and pubic hair were absent
and there were abrasions of 3' x 1/8' and 2' x 1/8' on the lumber region. She
also found signs of inflamation around the vulva; the vagina was bleeding, the
hymen was absent with the edges torn and there was tender- ness all around. The
hymen was bleeding on touch and the vagina admitted one finger with difficulty.
The girl's Salwar was blood stained. It was taken in a sealed packet along with
two slides and swabs. Unfortunately, this lady Doctor who had delivered a child
was not available for giving evidence as she had proceeded on long leave. The
learned Sessions Judge felt that it would not be possible to secure her
presence without undue delay, and therefore, permitted the prosecution to prove
the certificate through PW-2 Dr. Kapila, who was conversant with her
hand-writing and signature, he having worked with her for about two years. He
stated that the carbon copy of the certificate Ex P-E was prepared by Dr. Vedwa
by one process and bears her signature. The learned counsel for the appellant
contended that this certificate was inadmissible in evidence since the
prosecution has failed to prove that the original certifi- cate was lost and
not available. Section 32 of the Evidence Act provides that when a statement,
written or verbal, is made by a person in the discharge of professional duty
whose attendance cannot be procured without an amount of delay, the same is
relevant and admissible in evidence. Besides, since one carbon copy was made by
one uniform process the same was primary evidence within the meaning of
explanation 2 to Section 62 of the Evidence Act. Therefore the medical
certificate Ex. P-E was clearly admissible in evidence. That apart, there is
strong, reliable and dependable evidence of the prosecution witnesses which
clearly proves that the prosecutrix was raped by the appellant.
PW-2,
Dr. Kapila examined the appellant on 31st July, 1979. He found him to be well nourished
and well developed for his age, the beard had started to grow, pubic hair were
present and the scrotum 128 and penis were well developed. In the opinion of
the witness the appellant was fit to indulge in sexual intercourse. It was
however argued that having regard to the girl's age and the fact that her
vagina admitted one finger with difficul- ty, it is not possible to believe
that there was penetra- tion. The argument overlooks the fact that in the
absence of penetration there would not be absence of hymen with the edges torn
and profuse bleeding from the vagina staining the Salwar. Merely because the
Doctor found that the vagina admitted one finger with difficulty, it cannot be
inferred that there was no penetration as the muscles must have contracted by
then. The appellant, a robust man must have penetrated the vagina for otherwise
there would not have been so much of bleeding. Surprisingly no question was put
to Dr. Kapila to solicit his opinion in this behalf.
PW-9
Dr. Mahajan examined the prosecutrix with a view to ascertaining her age. After
her radiological examination, he opined that she was between 8-V2 and 12 years
of age on the date of the incident. The evidence of this witnesses corrob-
orates the say of the prosecution witnesses that she was around 11 or 12 years
of age on the date of the incident.
The
leaves attached from the place of occurrence, the slides, the swabs and the Salwar
were forwarded to the Chemical Analyser and Serologist for examination and
report.
Exhibit
P-N shows that there was blood on the leaves and the Salwar. However, no
spermatozoa were found on any of the exhibits. The report of the Serologist Ex.
P-O shows that the Salwar was stained with human blood while the origin of the
blood stains on the leaves could not be determined on account of
disintegration. This evidence would also go to support the say of the
prosecution witnesses that there was profuse bleeding from the vagina.
The
learned counsel for the appellant submitted that there was delay in filing the
First Information Report. We do not think so. Immediately after the incident
was narrated to the mother and other ladies, a decision was taken to await the
return of the father before deciding on the course of action. On the arrival of
the father the Sarpanch was contacted, who advised that the police should be
informed about the incident. The Sarpanch, however, stated that he would
accompany them next morning since it was already dark.
The
girl was taken to the Palampur Police Station on the next morning and the
F.I.R. was lodged. We, therefore, do not think that there was any delay in
reporting the matter to the police.
129 It
was next contended that the appellant was falsely involved due to a long standing
enmity between the father of the appellant and that girl's father. The prosecutrix
has in her deposition stated that the two families were not on talking or
visiting terms, since their relations were strained. It was suggested in the
course of cross-examina- tion that Ratna, the son of PW-8 Phulan Devi was
intimate with the prosecutrix and he had raped the girl. In his statement under
Section 313 of the Code of Criminal Proce- dure, he put forth the case that
when he returned to his village in the evening, he saw some ladies at the
girl's house and heard the girl saying that she was subjected to rape by Ratna.
It is not possible to believe that the prose- cutrix and her parents would
allow the real culprit to escape and falsely involve an innocent person for the
com- mission of the crime. Except for the suggestion made in the
cross-examination of PW-8 Phulan Devi, Ratna's mother and the statement under
Section 3 13 of the Code of Criminal Procedure there is no other material on
record which can give credence to the suggestion.
Lastly
it was argued by reference to A.W. Khan v. State, A.I.R. 1962 Calcutta 641; Gorakh
Daji Ghadge v. State of Maharashtra, [1980] Criminal Law Journal, 1380 and Padam
Bahadur Darjee v. State of Sikkim, [1981] Criminal Law Journal, 1317 that since
the girl was of tender age the possibility of her wrongly involving the
appellant cannot be ruled out and this possibility is strengthened by prior
enmity, absence of spermatozoa and infirm medical opinion.
We
have already examined the argument of enmity as well as the so called infirmity
in medical evidence. Mere absence of spermatozoa cannot cast a doubt on the
correctness of the prosecution case. We have carefully gone through these
decisions and we think they turn on the facts of each case.
In
view of the above, we see no merit in this appeal and dismiss the same.
N.P.V.
Appeal dismissed.
Back