Vinod vs The State Of M.P. on 29 June, 2017

1 Cr.A. No. 73/2005

HIGH COURT OF MADHYA PRADESH
BENCH AT GWALIOR
SINGLE BENCH
PRESENT:
HON’BLE MR. JUSTICE G.S. AHLUWALIA

Criminal Appeal No. 73/2005
Vinod
-Vs-
State of M.P.
_
Shri Pawan Vijaywargiya, Counsel for the appellant.
Shri Girdhari Singh Chauhan, Public Prosecutor for
the respondent/State.
_

JUDGMENT

(29/06/2017)
This appeal under Section 374 of Cr.P.C. has been
filed challenging the Judgment and Sentence dated 11-1-
2005 passed by Shri V.P. Singh, 2nd A.S.J. (Fast Track),
Sheopur in Sessions Trial No. 310/2004 by which the
appellant has been convicted under
Section 376(2)(f) of
I.P.C. and has been sentenced to under the rigorous
imprisonment of 10 years and a fine of Rs. 2000/- with
default imprisonment.

The necessary facts for the disposal of the present
appeal in short are that on 10-11-2003, the committed
rape on prosecutrix aged about 5 years.

According to the prosecution story, the prosecutrix,
aged about 5 years had gone to purchase chocolate,
2 Cr.A. No. 73/2005

where she met with a person, who took her on his cycle
near the canal, and committed rape on her. The
prosecutrix came back and was crying. She informed her
father about the incident. The F.I.R. was lodged and the
prosecutrix was sent for medical examination. The
statements of the witnesses were recorded, but as the
police failed to ascertain the identification of the accused,
therefore, closer report was filed. Subsequently, on the
basis of the statements of Golu, Santosh, Vishnu Kumar,
Salim, Girraj Prasad and Abdul, the matter was further
investigated. The appellant was arrested and on his
discloser statement, one cycle was seized. The appellant
was got medically examined and after completing the
investigation, the police filed the charge sheet against the
appellant.

The Trial Court by order dated 6-12-2004, framed
charge under
Section 376(2)(f) of I.P.C.

The appellant abjured his guilt and pleaded not
guilty.

The prosecution in order to prove its case examined,
Dr. Sheela Kushwaha (P.W.1), R.P. Goyal (P.W.2), Gotu
(P.W.3), Santosh (P.W. 4), Prosecutrix (P.W. 5), Vishnu
(P.W.6), Indra (P.W.7), D.S. Parihar (P.W.8), Dr.A.K. Garg
(P.W.9), and Y.S. Gurjar (P.W.10). The appellant did not
examine any witness in his defence.

Dr. A.K. Garg (P.W.9) has stated that a Board was
constituted by Civil Surgeon, to ascertain the age of the
prosecutrix. Dr. A.K. Dixit, Dr. S.K. Saxena were also the
members of the Board. After examination, the age of the
3 Cr.A. No. 73/2005

prosecutrix was found to be less then 14 years and from
physical appearance, the prosecutrix appeared to be 5-6
years. The report is Ex. P.12 and x-ray plate is Ex. P.13.

Dr. Sheela Kushwaha (P.W.1) has stated that She had
medically examined the prosecutrix. On medical
examination, tenderness and redness was found around
and inside the private part of the prosecutrix. Injuries on
Vulva, Vaginal wall and over whole private part were found
which were caused by hard and blunt object within 24
hours. The M.L.C. Report of the prosecutrix is Ex. P.2.

Thus, from the evidence of Dr. Sheela Kushwaha
(P.W. 1) and Dr. A.K. Garg (P.W.9), it is clear that the
prosecutrix was below the age of 14 years and on physical
appearance, She was appearing to be aged about 5-6
years, and on medical examination, injuries were found on
the private part of the prosecutrix. Thus, it is clear that
the prosecutrix was subjected to sexual assault.

Now, the moot question is that whether the appellant
has committed the offence under
Section 376(2)(ch) of
I.P.C. or not?

Gotu (P.W.4), Santosh did not support the
prosecution case and were declared hostile. They were
cross examined in detail by the public prosecutor, however,
nothing could be elicited from their cross examination,
which may corroborate the prosecution story.

Prosecutrix (P.W.5) has identified the appellant in the
Court as per the person who had committed rape on her.
It is stated by this witness that the appellant took her to a
distant place on his motor cycle and removed her
4 Cr.A. No. 73/2005

undergarments and also removed his undergarment and
lie down on the prosecutrix. He had also tried to insert
something in her private part. As the blood started oozing
out from the private part, therefore, the appellant brought
her back to her house. She went along with her father to
lodge the F.I.R. She was sent for medical examination.
She was cross examined and in cross examination, she
again said that it was the appellant who had committed
offence with her.

Vishnu (P.W. 6) is the father of the prosecutrix. He
has stated that his daughter had gone to a shop to
purchase chocolate at about 12 P.M. He came back to his
house at about 2:30 P.M. and the prosecutrix and his wife
were crying and lot of persons had gathered there. The
prosecutrix told him that one person had took her and also
noticed that blood was oozing out from the private part of
the prosecutrix. However, the prosecutrix did not inform
that who had taken her. A written complaint Ex. P.7 was
made by him and the F.I.R. is Ex. P.8. The spot map Ex.
P.6 was prepared. The cloths of the prosecutrix were
seized by seizure memo Ex. P. 9. This witness was cross
examined. Indra (P.W. 7) has also corroborated the
evidence of Vishnu (P.W. 6) and the prosecutrix (P.W.5).
She has specifically stated that the prosecutrix came back
to the house and she was crying and blood was coming
out from her private part and her cloths were stained with
blood. She was told by the prosecutrix that when She had
gone to purchase chocolate, at that time, She was
sexually violated by one person. The information of the
5 Cr.A. No. 73/2005

incident was given by this witness to the villagers and her
husband. D.S. Parihar (P.W. 8) and Y.S. Gurjar (P.W. 10)
have investigated the case.

READ  Durgesh Sharma Vs. Jayshree on 26 September, 2008

Thus, the entire prosecution story depends on the
solitary evidence of the prosecutrix (P.W.5). The fact that
the prosecutrix, immediately after coming to the house,
informed her mother, namely Indra (P.W. 7) and her
father, Vishnu (P.W.6), had informed that some body has
sexually violated her, coupled with the fact that in medical
examination, it was found by Dr. Sheela Kushwaha, that
by some hard and blunt object, injuries were caused on
the private part of the prosecutrix, it is clear that the
prosecutrix was subjected to rape/sexual violation by
some one.

Another question for determination is that whether
the appellant had committed rape on the prosecutrix or
not?

In M.L.C. Report Ex. P.2, Dr. Sheela Kushwaha
(P.W.1) had stated that on opening of vagina, hymen was
found intact. Thus, it is clear that the object which was
inserted inside the private part of the prosecutrix did not
reach to the hymen, therefore, the same was found intact.
If the evidence of the prosecutrix (P.W.5) is considered,
then it is clear that She has specifically stated by her that
after lying down on her, the appellant inserted something
in her private part and the blood started oozing out. Thus,
it is clear that immediately after something was inserted
inside the private part of the prosecutrix, blood started
oozing out. As the appellant had already removed his
6 Cr.A. No. 73/2005

undergarments and had also removed the undergarment
of the prosecutrix and was lying on the prosecutrix, it is
clear that the appellant had inserted his male organ inside
the private part of the prosecutrix. As the prosecutrix is
aged about 5-6 years, therefore, only slight penetration
could take place and the blood started oozing out,
therefore, the hymen was found intact.

In order to commit the offence of rape, complete
penetration of the male organ of the accused is not
necessary and slight penetration would be sufficient to
make out a case under Section 376 of I.P.C. The Supreme
Court in the case of Aman Kumar Vs. State of Haryana
reported in (2004) 4 SCC 379 has held as under :

7. Penetration is the sine qua non for an offence
of rape. In order to constitute penetration, there
must be evidence clear and cogent to prove that
some part of the virile member of the accused
was within the labia of the pudendum of the
woman, no matter how little (see Joseph Lines,
ICK 893). It is well known in the medical world
that the examination of smegma loses all
importance after twenty-four hours of the
performance of the sexual intercourse. [
See S.P.
Kohli (Dr) v. High Court of Punjab and Haryana
(1979) 1 SCC 212 ] In rape cases, if the gland of
the male organ is covered by smegma, it
negatives the possibility of recent complete
penetration. If the accused is not circumcised,
the existence of smegma around the corona
gland is proof against penetration, since it is
rubbed off during the act. The smegma
accumulates if no bath is taken within twenty-
four hours. The rupture of hymen is by no means
necessary to constitute the offence of rape. Even
a slight penetration in the vulva is sufficient to
constitute the offence of rape and rupture of the
hymen is not necessary. Vulva penetration with
or without violence is as much rape as vaginal
penetration. The statute merely requires
evidence of penetration, and this may occur with
7 Cr.A. No. 73/2005

the hymen remaining intact. The actus reus is
complete with penetration. It is well settled that
the prosecutrix cannot be considered as
accomplice and, therefore, her testimony cannot
be equated with that of an accomplice in an
offence of rape. In examination of genital
organs, state of hymen offers the most reliable
clue. While examining the hymen, certain
anatomical characteristics should be
remembered before assigning any significance to
the findings. The shape and the texture of the
hymen is variable. This variation, sometimes
permits penetration without injury. This is
possible because of the peculiar shape of the
orifice or increased elasticity. On the other hand,
sometimes the hymen may be more firm, less
elastic and gets stretched and lacerated earlier.
Thus a relatively less forceful penetration may
not give rise to injuries ordinarily possible with a
forceful attempt. The anatomical feature with
regard to hymen which merits consideration is its
anatomical situation. Next to hymen in positive
importance, but more than that in frequency, are
the injuries on labia majora. These, viz. labia
majora, are the first to be encountered by the
male organ. They are subjected to blunt forceful
blows, depending on the vigour and force used
by the accused and counteracted by the victim.
Further, examination of the female for marks of
injuries elsewhere on the body forms a very
important piece of evidence. To constitute the
offence of rape, it is not necessary that there
should be complete penetration of the penis with
emission of semen and rupture of hymen. Partial
penetration within the labia majora of the vulva
or pudendum with or without emission of semen
is sufficient to constitute the offence of rape as
defined in the law. The depth of penetration is
immaterial in an offence punishable under
Section 376 IPC.

Thus, it is clear that the evidence of the prosecutrix
finds full corroboration with the medical evidence.

The next question for determination is that whether
the appellant had committed rape on the prosecutrix or
8 Cr.A. No. 73/2005

not?

In the F.I.R. or in the case diary statements of the
witnesses, it is clear that some unknown person had
committed rape on her. The identification of the appellant
is based on his identification by the prosecutrix (P.W. 5) in
the Court. The police did not file any document to show
that the appellant was ever put for Test Identification
Parade. Now the question is that whether in absence of
T.I.P. by police, whether the identification of the accused in
the Court can be relied upon or not?

The Supreme Court in the case of Prakash Vs. State of
Karnataka reported in (2014) 12 SCC 133 has held as
under :

14. Two types of pre-trial identification evidence
are possible and they have been succinctly
expressed in Marcoulx v. R. (1976) 1 SCR 763
(Can SC) by the Supreme Court of Canada in the
following words:

“An important pre-trial step in many criminal
prosecutions is the identification of the accused
by the alleged victim. Apart from identification
with the aid of a photograph or photographs, the
identification procedure adopted by the police
officers will normally be one of two types: (i) the
show up–of a single suspect; (ii) the line-up
presentation of the suspect as part of a group.”
14.1. With reference to the first type of
identification evidence, the Court quotes Prof.
Glanville Williams from an eminently readable
and instructive article in which he says:

“… if the suspect objects [to an identification
parade] the police will merely have him
“identified” by showing him to the witness and
asking the witness whether he is the man. Since
this is obviously far more dangerous to the
accused than taking part in a parade, the choice
of a parade is almost always accepted.” 1963 Cri
Law Review 479
9 Cr.A. No. 73/2005

14.2. With reference to the second type of
identification evidence, Prof. Glanville Williams
says:

“Since identification in the dock is patently
unsatisfactory, the police have developed the
practice of holding identification parades before
the trial as a means of fortifying a positive
identification…. The main purpose of such a
parade from the point of view of the police is to
provide them with fairly strong evidence of
identity on which to proceed with their
investigations and to base an eventual
prosecution. The advantage of identification
parades from the point of view of the trial is that,
by giving the witness a number of persons from
amongst whom to choose, the prosecution seems
to dispose once and for all the question whether
the defendant in the dock is in fact the man seen
and referred to by the witness.1963 Cri Law
Review 479
14.3. A similar view was expressed by the
Canadian Supreme Court in Mezzo v. R. (1986) 1
SCR 802 (Can SC)

15. An identification parade is not mandatory
(
Ravi Kapur v. State of Rajasthan, (2012) 9 SCC

284) nor can it be claimed by the suspect as a
matter of right. (
R. Shaji v. State of Kerala,
(2013) 14 SCC 266 )The purpose of pre-trial
identification evidence is to assure the
investigating agency that the investigation is
going on in the right direction and to provide
corroboration of the evidence to be given by the
witness or victim later in court at the trial. (
Rameshwar Singh v. State of JK, (1971) 2 SCC
715 ) If the suspect is a complete stranger to the
witness or victim, then an identification parade is
desirable (
Mulla v. State of U.P., (2010) 3 SCC
508,
Kishore Chand v. State of H.P., (1991) 1
SCC 286 ) unless the suspect has been seen by
the witness or victim for some length of time.
(
State of U.P. v. Boota Singh, (1979) 1 SCC 31 )
In Malkhansingh v. State of M.P. (2003) 5 SCC
746 it was held: (SCC pp. 751-52, para 7)
“7. … The identification parades belong to the
stage of investigation, and there is no provision
in
the Code of Criminal Procedure which obliges
the investigating agency to hold, or confers a
10
Cr.A. No. 73/2005

right upon the accused to claim a test
identification parade. They do not constitute
substantive evidence and these parades are
essentially governed by
Section 162 of the Code
of Criminal Procedure. Failure to hold a test
identification parade would not make
inadmissible the evidence of identification in
court. The weight to be attached to such
identification should be a matter for the courts of
fact.”

16. However, if the suspect is known to the
witness or victim (
Jadunath Singh v. State of
U.P., (1970) 3 SCC 518) or they have been
shown a photograph of the suspect or the
suspect has been exposed to the public by the
media no identification evidence is necessary.
Even so, the failure of a victim or a witness to
identify a suspect is not always fatal to the case
of the prosecution.
In Visveswaran v. State
((2003) 6 SCC 73) it was held: (SCC p. 78, para

11)
“11. … The identification of the accused either in
a test identification parade or in court is not a
sine qua non in every case if from the
circumstances the guilt is otherwise established.
Many a time, crimes are committed under the
cover of darkness when none is able to identify
the accused. The commission of a crime can be
proved also by circumstantial evidence.”

In the present case, the prosecutrix has specifically
identified the appellant as the person who had committed
rape on her. There is no reason for the prosecutrix to
falsely implicate the appellant. Even no suggestion was
given by the appellant to the prosecutrix in her cross
examination. The prosecutrix has specifically stated in her
cross examination that She has seen the appellant for the
first time in the Court after the offence was committed.
Thus, the possibility of seeing the appellant prior to his
dock identification in the Court has also been ruled out.

11

Cr.A. No. 73/2005

As the identification in the Court is the substantive piece
of evidence, thus, it is held that the prosecution has
succeeded in establishing beyond reasonable doubt that it
was the appellant who had committed rape on the
prosecutrix.

Accordingly, the appellant is held guilty of
committing rape on the prosecutrix.

The Trial Court by judgment dated 11-1-2005 has
also held the appellant guilty of committing rape on the
prosecutrix and has convicted for offence under
Section
376(2)(f) of I.P.C.

So far as the question of sentence is concerned, the
minimum sentence provided for offence under
Section
376(2)(f) of I.P.C. is 10 years. The Trial Court has also
awarded sentence of 10 years which donot require any
interference.

Hence, the judgment and sentence dated 11-1-2005
passed by the Trial Court are maintained.

From the record of this appeal, it is clear that the
appellant was not granted bail.

Consequently, the appeal fails and is hereby
dismissed.

G.S. Ahluwalia
Judge

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