State of
U.P. Vs. Babul Nath [1994] INSC 427 (12 August 1994)
Faizan
Uddin (J) Faizan Uddin (J) Anand, A.S. (J)
CITATION:
1994 SCC (6) 29 JT 1994 (5) 105 1994 SCALE (3)734
ACT:
HEAD NOTE:
The
Judgment of the Court was delivered by FAIZAN UDDIN, J.- The respondent Babul Nath
a young man of 32 years was charged and tried for an offence punishable under
Section 376 of the Penal Code for committing rape on Kumari Nirmala Devi, a
child aged about 5 years, in the afternoon of 15-3-1977 in the grove of one Baleshwar
Pathak in Village Rampa within the jurisdiction of Police Station Bhadohi,
District Varanasi. In Sessions Trial No. 26 of 1978 the learned Session Judge, Varanasi found the respondent guilty of the
offence charged with and, therefore, convicted him under Section 376 IPC and
sentenced him to suffer imprisonment for five years. On appeal by the
respondent the High Court rejected the testimony of the sole eyewitness Ram Lakhan,
PW 1, set aside the conviction and sentence imposed on the respondent and acquitted
him of the charge of rape. The State of Uttar Pradesh has, therefore, approached this Court in appeal under
Article 136 of the Constitution of India on grant of leave.
32
2. The
prosecution case as it emerges out of the written report made by Ram Lakhan, PW
1, is that on 15-3-1977 at about 4 p.m. when Ram Lakhan, PW 1, Jokhan Ram, PW
2, Kansraj, PW 3 and Kauleshwar while passing by a the side of the grove
belonging to Baleshwar Pathak of Village Rampa they heard screams and cries of
some girl and, therefore, they rushed into the grove where they saw the girl Nirmala
lying down on the ground in a semiconscious state with her private part
profusely bleeding and the respondent Babul Nath was seen running away
arranging his Dhoti from that place. They arranged for a Khatola (small cot)
and proceeded on foot with the girl on Khatola to the Police Station, Bhadohi
where Ram Lakhan, PW 1, made a written report Ext. Ka-1 which was received by
the Head Constable Awadh Narain Singh, PW 4. On the basis of said report Head
Constable Awadh Narain Singh prepared a formal chik report Ext. Ka-2 and an
offence under Section 376 IPC was registered against the respondent as per Ext.
Ka-3.
3.
Thereafter, the girl was taken to the hospital, Bhadoh1 same day where she was
medically examined by Dr (Mrs) Santosh Kohali, PW 6, at 10.30 p.m. Dr Kohali
found the girl in semi-conscious state and her general condition was poor.
Her
pulse was 100 per minute. On external examination the doctor found hymen
completely torn and there was laceration on all sides of her vagina. There was
fresh bleeding. On internal examination doctor noticed that a finger could be
easily inserted in her private part. The bloodstained discharge was coming out.
In the opinion of the doctor the girl was subjected to sexual intercourse.
4. At
the trial the appellant abjured his guilt and pleaded false implication. He
took the plea that he was a barber by profession and since he had left shaving
the beards of the complainant and the witnesses and, there being party-bandi in
the village he was falsely implicated on that account. The appellant, however,
led no evidence in defence. The learned trial Judge relying on the evidence of
the solitary witness Ram Lakhan, PW 1, supported by the medical evidence found the
appellant guilty for the offence he was charged with and, therefore, convicted
and sentenced him accordingly as said above. On appeal by the respondent, the
High Court took a different view of the medical evidence as well as the
evidence of the sole eyewitness Ram Lakhan, PW 1. The High Court was of the
opinion that from the medical evidence a reasonable probability was made out
that the girl was subjected to indecent assault and it was not proved beyond
reasonable doubt that she was subjected to sexual intercourse. With regard to
the sole eyewitness Ram Lakhan, the High Court took the view that he lodged the
report in the police station after more than 5 hours of the incident and the
explanation for the delay in lodging the report was fabricated and that his
evidence on two important facts was contradictory to the written report lodged
by him and that his evidence in court is not consistent with the first
information report and the statement made under Section 161 CrPC. On these
premises the High Court reversed the findings and recorded the order of
acquittal of the respondent.
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5. At
the very outset we may mention that in an appeal under Article 136 of the
Constitution this Court does not normally reappraise the evidence by itself and
go into the question of credibility of the witnesses and the assessment of the
evidence by the High Court is accepted by the Supreme Court as final unless, of
course, the appreciation of evidence and finding is vitiated by any error of
law of procedure or found contrary to the principles of natural justice, errors
of record and misreading of the evidence, or where the conclusions of the High
Court are manifestly perverse and unsupportable from the evidence on record. In
the instant case, on a close scrutiny of the evidence on record particularly
the statement of the eyewitness Ram Lakhan, PW 1, as well as the medical
evidence and the law relating to the commission of offence of rape, we are of
the definite view that the High Court fell into serious error in holding that
the victim of this case was subjected only to an indecent assault and was not
subjected to sexual intercourse. As regards the evidence of Ram Lakhan, PW 1,
and his reliability, the High Court faulted in assessing his evidence correctly
as well as in holding that he was not a reliable witness resulting into grave
injustice.
6.
While appreciating the evidence of the lady doctor Smt Kohali, PW 6 the High
Court observed that the lady doctor conceded that the injuries found on the
private part of the girl could also be caused by instrument like a piece of
glass and on that basis took the view that the opinion of the lady doctor that
rape was committed on the girl becomes doubtful. This finding is wholly
unwarranted and perverse for the reason that simply because the injuries found
on the private part of the girl could also be caused in several other ways than
the sexual assault on the victim cannot lead to the conclusion that the
injuries on her private part were not sustained by commission of the rape but
by some other instrument in the absence of any material to support such a
conclusion. In the present case though the doctor deposed that the injuries
could also be caused by instrument like piece of glass but there were neither
circumstances nor any material to conclude or even to, suggest that the victim
had sustained the injuries by any piece of glass. No piece of glass was found
at or near the place of occurrence. On the contrary there is positive and
convincing evidence showing that there was sexual assault on the girl and the
finding that she was subjected to indecent assault is absolutely incorrect.
7. In
order to see whether there was sexual assault on the girl we may have a look to
the medical evidence. Doctor Smt Santosh Kohali deposed that the victim girl
was brought to the hospital in a semi-conscious state and her general condition
was poor. On external examination of the girl the doctor found that the hymen
was completely torn and there was laceration on all sides of vagina. The doctor
noticed that there was fresh bleeding in her private part. On internal
examination the doctor found that a finger could easily be inserted in her
private part and bloodstained discharge was coming out. Thus from the medical
evidence it is clear that the girl was not only subjected to an indecent
assault but there was sexual activity and the girl was subjected to sexual
assault, otherwise the doctor would not have found the 34 hymen completely
torn, laceration on all sides of the vagina and fresh bleeding. There is yet
another factor which goes to show that the girl was subjected to sexual
intercourse.
According
to the evidence of lady doctor a finger could be easily inserted inside her
private part which otherwise was not possible in the case of a child aged 5
years because according to the Medical Jurisprudence by Modi, 21st Edn., p.
376, in a girl under 14 years of age the vaginal orifice is usually so small
that it will hardly allow the passage of the little finger through her hymen.
In the present case if the girl aged 5 years was not subjected to sexual
intercourse the finger could not have been easily inserted in her private part
as observed by the lady doctor. The High Court totally ignored this aspect of
the matter also and on wrong premises came to the conclusion that the victim
was subjected to indecent assault only.
8. It
may here be noticed that Section 375 of the IPC defines rape and the
Explanation to Section 375 reads as follows:
"Explanation.- Penetration is sufficient to
constitute the sexual intercourse necessary to the offence of rape." From
the Explanation reproduced above it is distinctly clear that ingredients .Which
are essential for proving a charge of rape are the accomplishment of the act
with force and resistance. To constitute the offence of rape neither Section
375 of IPC nor the Explanation attached thereto require that there should
necessarily be complete penetration of the penis into the private part of the
victim/prosecutrix. In other words to constitute the offence of rape it is not
at all necessary that there should be complete penetration of the male organ
with emission of semen and rupture of hymen. Even partial or slightest
penetration of the male organ within the labia majora or the vulva or pudenda
with or without any emission of semen or even an attempt at penetration into
the private part of the victim would be quite enough for the purpose of
Sections 375 and 376 of IPC. That being so it is quite possible to commit
legally the offence of rape even without causing any injury to the genitals or
leaving any seminal stains. But in the present case before us as noticed above
there is more than enough evidence positively showing that there was sexual
activity on the victim and she was subjected to sexual assault without which
she would not have sustained injuries of the nature found on her private part
by the doctor who examined her.
9. Now
coming to the evidence of the sole eyewitness Ram Lakhan, PW 1, we find that
the observations of the High Court that he fabricated the explanation for delay
in lodging the report and that he is not a reliable witness are not correct. It
may be pointed out that the girl Nirmala Devi was totally a stranger for
informant Ram Lakhan PW 1 and the other persons who attended on her when she
was found lying in semi-conscious state with injuries on her private part with
profuse bleeding. Ram Lakhan deposed that he, along with others took the girl
and proceeded on foot to the police station. They first tried to trace out the
identity of the girl and her parentage and then managed for a Khatola (small
cot) on which the girl could be taken to the police station which was at a
distance of about 3-4 kms from the place 35 of occurrence. He stayed for
sometime near his village on the expectation that some more villagers may also
join them for taking the victim to the police station. Ram Lakhan categorically
stated that scores of persons arrived and he has also given the names of some
of the persons. They proceeded to the police station where he lodged a written
report. According to Ram Lakhan about 5-6 hours were spent in all this before
reaching the police station. There appears to be no apparent reason for
fabricating the explanation for the delay in lodging the report which was bound
to occur in the facts and circumstances stated above.
10.
The evidence of Ram Lakhan has been held to be unreliable as the High Court
found that his statement was not consistent with the report lodged by him and
the statement made to the police under Section 161 CrPC. But strangely enough
the High Court lost sight of the fact that FIR or the written report is not
substantive piece of evidence but it can be used only to corroborate or
contradict the maker thereof. Ram Lakhan, PW 1, was not confronted with the
alleged inconsistent statements contained in his report or in his case diary
statement under Section 161 CrPC, yet the High Court relied on those statements
which is not permissible under the law unless inconsistent statements were put
to the witness. In these circumstances the reasons on the basis of which the
High Court found Ram Lakhan as unreliable witness could not be accepted as the
High Court made a wrong approach while appreciating the evidence of Ram Lakhan.
Ram Lakhan deposed that while he and other persons were passing from near the grove
of Baleshwar Pathak they heard the cries of the girl and, therefore, they
rushed to the place. It took about 5- 10 minutes to them to reach at the place
of occurrence inside the grove and it appears that during this period of 5-10
minutes the respondent would have completed his sexual activity on the girl.
According to the statement of Ram Lakhan when he reached into the grove and
near the place of occurrence he saw the respondent running away from the place
of occurrence arranging his Dhoti and the girl was found in semiconscious
condition in a pool of blood. This statement of Ram Lakhan is corroborated from
the medical evidence that we have already discussed In the earlier part of this
judgment. Thus, the evidence of Ram Lakhan, PW 1, has to be accepted as the
same has been corroborated by the medical evidence. Not only this but even the
other witness who turned hostile, namely, Jokhan Ram, PW 2, has also admitted
that the girl was found in a semi-conscious condition and that he along with
several persons including the witness Ram Lakhan, PW 1, had taken the unknown
girl on a Khatola to the police station where Ram Lakhan had lodged the written
report. He also stated that they had reached the police station at about 8.30 p.m. In view of these facts and circumstances the High
Court fell into a serious error in taking the view that the explanation for the
delay in lodging the report was fabricated or that the girl was not subjected
to sexual intercourse. The evidence of Ram Lakhan 'coupled with the medical
evidence clearly goes to establish that the respondent was responsible for
sexual assault on the child Nirmala aged about 5 years resulting into serious
injuries on her private part and, therefore, he was rightly convicted and
sentenced by the learned trial 36 Judge. The judgment of the High Court is
based on surmises and conjectures and its appreciation of the medical evidence
is absolutely faulty. The acquittal of the respondent was totally unmerited and
such unmerited acquittals, particularly in crimes against girl child encourage
the criminals. The courts have, therefore, to be sensitive while dealing with
such cases but the High Court in this case appears to be far from being
sensitive while appreciating the material on the record.
11. In
the facts and circumstances narrated above the appeal succeeds and is hereby
allowed. The judgment and order of acquittal recorded by the High Court is set
aside and the judgment of the trial court holding the respondent guilty for the
offence punishable under Section 376 and imposing a sentence of 5 years'
rigorous imprisonment is restored. The respondent shall be taken into custody
to serve the sentence. His bail bond is hereby cancelled.
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