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Cr.A.No.1164/2005

IN THE HIGH COURT OF MADHYA PRADESH PRINCIPAL
SEAT AT JABALPUR

Criminal Appeal No.1164/2005

Jagdish, S/o Ramji Gond
Aged about 27 years,
R/o Village Muhas Chouraha,
P.S. Bargi, District-Jabalpur (M.P.)

Appellant
Vs.

State of Madhya Pradesh,
Through P.S. Bargi,
District- Jabalpur, (M.P.)

Respondent
…………………………………………………………………………………………………
Present: Hon’ble Shri Justice Rajendra Mahajan
Hon’ble Shri Justice C.V. Sirpurkar
…………………………………………………………………………………………………
Shri K.S. Rajput, counsel for the appellant.
Shri Yogendra Das Yadav, Panel Lawyer for the
respondent/State.
………………………………………………………………………………………………
JUDGMENT

(19-06-2017)
Per C.V. Sirpurkar, J:

1. This criminal appeal against conviction under Section 374 (2)
of the Cr.P.C. is directed against the judgment dated 11.05.2005
passed by the 10th Additional Sessions Judge, Jabalpur in Sessions
Trial No. 09/2005, whereby accused/appellant Jagdish was convicted
under Section 376 (2) (g) of the I.P.C. and was sentenced to undergo
imprisonment for life and to pay a fine in the sum of Rs.2,000/-. In
default of payment of fine, he was directed to undergo rigorous
imprisonment for a further period of six months.

2. The prosecution case before the trial Court may briefly be
stated thus: The first informant, Rampyari @ Pyaribai (PW-1) is the
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Mother of the prosecutrix, who was a 5 ½ years old minor girl. At
about 05:00 p.m. on 13.11.2004, when Pyaribai was sitting with her
husband Sanilal (PW-4) in her courtyard, accused Jagdish came and
took the prosecutrix on the pretext of feeding her biscuits. When the
accused and the prosecutrix did not returned for about an hour,
Pyaribai (PW-1) went towards the water tap to look for them. She saw
the accused returning with the prosecutrix on his shoulders. When the
accused handed over the prosecutrix to her mother Pyaribai, she
started to cry. Thereafter, she brought her home and asked as to what
happened? Whereon, the prosecutrix complained that she had severe
pain in her stomach and vagina. She also told her that accused Jagdish
had done something to her. As a result, she had difficulty in sitting and
getting up. Pyaribai took out the panty of the prosecutrix and
examined her private part. She found that it was bleeding and had
swelling. Her frock and panty also had blood stains. Thereafter,
Pyaribai reported the matter to her husband, brother-in-law, sister-in-
law and neighbours, Suresh and Santram. She also informed about the
matter to Sarpanch, Mohanlal (PW-5). Mohanlal reported the matter
on telephone to P.S.-Bargi; whereon, Assistant-Sub-Inspector,
Laxmikant Tiwari, who was on patrolling duty in the area, arrived on
the spot. Pyaribai (PW-1) lodged Dehati Nalishi (Ex.P/1) of the
incident. The prosecutrix was referred to Algin Hospital, Jabalpur. In
the medico-legal examination, Dr. Sharda Mishra (PW-10) found that
there were dried up semen like white stains on the vagina of the
prosecutrix. There was a small wound and redness near clitoris, upon
the vagina. Her panty had semen stains; however, her hymen was
intact; therefore, the doctor had opined that an attempt of rape was
made upon the prosecutrix. In the medico-legal examination of the
accused it was found that the accused was capable of performing
sexual intercourse and smegma was missing.

3. The trial Court framed a charge under Section 376 (2) (f) of
the I.P.C.. The accused abjured the guilt and claimed to be tried. In his
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examination under Section 313 of the Cr.P.C., he took the plea of alibi
and stated that at the time of the incident, he had gone to his Sister’s
place. He has further stated that there was old enmity between his
family and that of the prosecutrix and the father of the prosecutrix had
burnt his house; therefore, he has been falsely implicated in the matter.

4. The trial Court recorded a finding to the effect that it was
proved beyond reasonable doubt on the basis of the statements of the
prosecutrix and that of Dr. Sharda Mishra (PW-10) that the prosecutrix
was a 5 ½ years old minor girl had been subjected to rape and not
merely an attempt to commit rape by the accused; therefore, he was
convicted under Section 376 (2) (g) of the I.P.C. and was sentenced as
aforesaid.

5. Learned counsel for the appellant has challenged the
conviction recorded and sentence imposed upon the appellant on the
grounds that Pyaribai (PW-1), Mother of the prosecutrix has admitted
in her cross-examination in (Para-7) that her Father-in-Law has been
missing. He had gone along with the father of the accused Jagdish for
negotiating a land deal and went missing thereafter. The police had
interrogated the accused and his father in this regard. She also
admitted that her family suspected the appellant and his father of
wrong doing and there has been enmity between the two families. Ever
since, there is no social contact between their families; therefore, it has
been contended that due to aforesaid enmity, the appellant has been
falsely implicated in the matter. It has further been contended that as
per the prosecution case, at the time of the incident Pyaribai and her
husband Sanilal were sitting in the courtyard and the appellant had
taken the prosecutrix on the pretext of feeding her biscuits; however,
in her court statement Pyaribai (PW-1) has stated that she and her
husband were inside the house and her children were playing. When
she came out, she found that the prosecutrix was missing; whereon,
she searched for the prosecutrix. At that time, the appellant came
carrying the prosecutrix in his lap. On the basis of aforesaid
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Cr.A.No.1164/2005

discrepancies, it has been argued that since there was no social contact
between the families of the prosecutrix and the appellant, it was highly
improbable that the first informant Pyaribai and her husband Sanilal
would allow the prosecutrix who was only 5 ½ years old minor girl, to
be taken away by the appellant on the pretext of feeding biscuits.
Learned counsel for the appellant has laid special emphasis on the fact
that Dr. Sharda Mishra (PW-10) had categorically stated in her
testimony that the hymen of the prosecutrix was intact. She had also
opined that the prosecutrix was subjected only to an attempt to commit
rape. In the teeth of the aforesaid statements, learned trial Court
grievously erred in holding that the prosecutrix was in fact raped.
Therefore, it has been prayed that the conviction of the appellant be
altered from one under Section 376 (2) (g) of the I.P.C. to one under
Section 376 (2) (g) read with section 511 of the I.P.C..

6. Learned panel lawyer for the respondent State on the other
hand has supported the impugned judgment and contended that the
discrepancies pointed out by the learned counsel for the appellant do
not dent the core of the prosecution story. It has further been argued
that the prosecutrix was merely a 5 ½ years old minor girl in the girls
of that age. The hymen is located deep inside the vaginal orifice. It is
also flexible; therefore, the trial Court was right in holding that merely
because the hymen was found to be intact, it could not be said that no
penetration had occurred. For the aforesaid argument, learned panel
lawyer for the respondent State has placed reliance upon the Modi’s
Medical Jurisprudence and Toxicology, 23rd Edition.

7. On perusal of the record and due consideration of the rival
contentions, we are of the view that this appeal must succeed but only
part. The charge was framed under Section 376 (2) (f) of the I.P.C.;
but the appellant was inadvertently convicted under Section 376 (2)

(g) of the I.P.C.; however, since the offence has been properly
described in the charge, no prejudice had been caused to the appellant.
The appellant has also not raised an issue in this regard. In these
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Cr.A.No.1164/2005

circumstances, the case would be considered in the ambit of Section
376 (2) (g) of the I.P.C. Moreover, the conviction is required to be
altered from one under Section 376 (2) (g) of the I.P.C. to one under
Section 376 (2) (g) read with section 511 of the I.P.C. because
penetration has not been proved beyond reasonable doubt only attempt
to penetrate has been proved. The reasons for our conclusion are as
hereunder:

8. The 5½ years old prosecutrix (PW-2) has stated that the
appellant had taken her to a Canal and had sexual intercourse with her.
In her testimony, she has used the obscene equivalent in Hinde for
sexual intercourse. Though, she had failed to explain the meaning of
that word, keeping in view her tender age, it is clear that what she
really meant was that there was penis-vagina contact. Her mother, the
first informant Rampyari @ Pyaribai (PW-1) has stated that she and
her husband Sanilal were inside their house and their three children
including the prosecutrix were playing outside. When she came out,
she found that the prosecutrix was missing. Therefore, she looked for
the prosecutrix in the neighbourhood. At that time, she saw that the
appellant Jagdish was coming carrying the prosecutrix in his lap. She
snatched her daughter from the appellant and brought her home. The
prosecutrix was finding it difficult to walk. She was getting drowsy.
Her daughter told her that the appellant Jagdish had taken her and had
pulled her panty down. Thereafter, she had made her daughter lay on
the Cot. She pulled her daughter’s panty down and examined her
private part. She saw that she was bleeding from vagina and her
Vagina had swollen. There were blood stains on her panty. The
prosecutrix complained that she had pain in her vagina. Thereafter, the
witness had informed about the matter to her husband Sanilal and
other family members and also to neighbours. She also reported the
matter to the Sarpanch, Mohanlal (PW-5). She also lodged Dehati
Nalishi (Ex.P/1) of the incident. Bargi police had sent her daughter for
medico-legal examination to Algin Hospital, Jabalpur.

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9. Mohanlal (PW-5) has stated that at about 09:00 p.m. on the
date of the incident, family members of Sanilal had gone to his house
and had reported that accused Jagdish had committed rape upon the
prosecutrix after taking her towards Canal. He had seen that the panty
of the prosecutrix had blood stains. Thereafter, he informed about the
incident to P.S.-Bargi on telephone.

10. Dr. Sharda Mishra (PW-10) has deposed that at about 01:40
p.m. on 14.11.2004, she had examined the prosecutrix, who was a 5 ½
years old girl. There were white dried up stains upon her vagina. The
hymen was intact. On the left side of the equatalus, there was about 1-
2 m.m. long linear wound and there was redness around it. In her
opinion, an attempt to commit rape was made upon the prosecutrix.
Her medico-legal examination report in this regard is Ex.P/8. Dr. S.K.
Pandey (PW-7) has stated that at about 02:45 p.m. on 14.11.2004, he
had examined the appellant Jagdish and had found that the appellant
was capable of performing sexual intercourse and smegma was
missing from the glance of the penis. His examination report is Ex.P/5.
In the report of the Forensic Science Laboratory, Sagar (Ex.P/13), it
has been recorded by Assistant Chemical Examiner that semen and
human spermatozoa were found in the vaginal smear and panty of the
prosecutrix and underwear and pant of the appellant.

11. On the basis of aforesaid evidence, the trial Court recorded a
finding that the appellant had committed rape upon the prosecutrix
because in spite of the discrepancies pointed out by the learned
counsel for the appellant, the statements of the proseuctrix (PW-2) and
the mother of the prosecutrix (PW-1) were worthy of credence.

12. When we examine these findings in the light of the
discrepancies highlighted by the learned counsel for the appellant, we
find that though it is true that Pyaribai, mother of the prosecutrix had
admitted in her cross-examination that there were inimical relations
between the families of the prosecutrix on one hand and that of the
appellant on the other since before the date of the incident; it appears
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highly improbable that anyone would involve his or her 5 ½ years old
daughter in such a dispute, causing injuries to her private part, smear
her panty and vagina with semen and then come forward and claim
that she was raped. Thus, it is clear that the existing enmity between
the parties had played no part in the allegations leveled by the
prosecutrix and her family upon the appellant.

13. It is also true that the genesis of the prosecution story differs
slightly from the one unfolded in the Court by means of prosecution
evidence inasmuch as according to the prosecution case, the
prosecutrix was taken by the appellant from the presence of her
parents and according to the deposition in the Court, she was taken
from outside her house, without the knowledge of her parents.
However, this discrepancy is not so grave as to convince the Court to
ignore the categorical statements made by the prosecutrix and her
mother and also the medico-legal and forensic evidence. In this view
of the matter, in the opinion of this Court, the trial Court has rightly
held that the incident had indeed occurred.

14. Now, the only question that remains for consideration is
whether the act of the appellant amounted to rape or an attempt to
commit rape? The best witness in this regard would have been the
prosecutrix herself; however, since she was only about 5 years old on
the date of the incident, she has only provided sketchy particulars. She
could not have been expected to provide a more detailed account of
what exactly happened. So the Court is left with only medical and the
forensic evidence. So far as the appellant’s conviction is concerned, it
is obvious that ejaculation had taken place because the presence of
semen and human spermatozoa was detected on the vagina of the
prosecutrix as also her panty and undergarments of the appellant but
ejaculation, by itself, is not indicative of penetration. It may even take
place outside the vagina without even slightest degree of penetration.
Though, the mother of the prosecutrix namely Pyaribai has stated that
on examination, she had found blood stains upon the panty of the
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Cr.A.No.1164/2005

prosecutrix; however, no such blood stains were detected in the
forensic examination. There was only a 1 or 2 m.m. wound near the
clitoris and there was redness. Dr. Sharda Mishra (PW-10), who had
examined the prosecutrix about 6-7 hours after the incident, had found
her hymen intact and on the basis of aforesaid circumstances, had
opined that merely an attempt to commit rape was made upon her.

15. It is true that the penetration, howsoever slight, is sufficient to
constitute sexual intercourse. In Modi’s Medical Jurisprudence and
Toxicology (23rd Edition), at page 876, in the Chapter relating to
“Virginity, Pregnancy and Delivery”, it is notes that the hymen is
situated more deeply in children than in nubile girls and so it more
often escapes injury in an attempted rape on children. At page 928 of
the same edition, it has been recorded that 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 the
perineum.

16. The trial Court had held that mere existence of intact hymen in
a 5 ½ years old girl is not an indicative of the fact that there was no
penetration; therefore, the finding was recorded that the prosecutrix
was indeed subjected to sexual intercourse. However, the doctor
medico-legally examining the prosecutrix about 7 hours after the
incident, has categorically stated that there was only an attempt to
commit rape. No attempt was made by the prosecutor or the trial Court
to elicit further information in this regard. No attempt was made to
confront the doctor with a text book. The Supreme Court in the case of
State of M.P. Vs. Sunny Rai, 2005 (1) JLJ 411 has held that opinion
of the doctor cannot be discarded on the basis of text book, unless
relevant passage of the book was put to the doctor. Likewise this Court
in the case of Dhanua Vs. State of M.P., 2006 (1) JLJ 75 has
observed that the trial Court considered the same passage from a text
book and held that sometimes injuries caused by sharp and heavy
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object appear like lacerated wound because of thickness of the skin of
the skull; however, this passage of the text book was not shown to the
medical witness at the time of his evidence; therefore, the finding of
the trial Court was not held to be sustainable.

17. Aforesaid authorities applied with full vigor to the case at
hand, the opinion of the medical witness that there was no penetration
and there was only an attempt to penetrate, goes in the favour of the
appellant/accused. If the prosecutor or the Court deemed otherwise, it
was incumbent upon them to have put the relevant passage from the
text book to the doctor and to have obtained his opinion with reference
to that passage but they failed to do so; therefore, it was not open to
the trial Court to use that proposition.

18. In aforesaid view of the matter, this Court is of the view that
the prosecution has failed to prove beyond reasonable doubt that there
was even slightest penetration into the vagina of the prosecutrix by
penis of the appellant; however, it is clear that there was an attempt to
penetrate; as such, the conviction of the appellant for rape upon a 5 ½
years old girl is not sustainable. It is liable to be converted into one for
an attempt to commit rape.

19. Consequently, the appeal is partly allowed. The conviction of
the appellant is converted into one under Section 376 (2) (f) read with
section 511 of the I.P.C.. As a result, the sentence of imprisonment for
life is reduced to one of rigorous imprisonment for a period of 7 years.
The fine, as imposed by the trial Court is affirmed.

20. If the appellant has already undergone the imprisonment now
imposed upon him, he shall be released forthwith, if not required in
connection with any other case.

{Rajendra Mahajan} {C.V. Sirpurkar}
Judge Judge
sh
IN THE HIGH COURT OF MADHYA PRADESH PRINCIPAL
SEAT AT JABALPUR

Criminal Appeal No.1164/2005

Jagdish
Vs.
State of M.P.

:::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::

JUDGMENT

For consideration

{C.V. Sirpurkar}
JUDGE
/06/2017

Hon’ble Shri Justice Rajendra Mahajan

{Rajendra Mahajan}
JUDGE

Post for: /06/2017

{C.V. Sirpurkar}
JUDGE