Appellate Court would interfere only if findings of the learned trial court are manifestly absurd or based on
wrong appreciation of law
CRL. APPEAL 37/2009 Page 1 of 10
HIGH COURT OF DELHI: NEW DELHI
+ CRL. APPEAL No. 37/2009
%
Judgment reserved on 7th July, 2010
Judgement delivered on 15th July, 2010
SHANKAR KUMAR ……Appellant
Through: Mr. Sumeet Verma, Adv.
Versus
STATE (N.C.T.) OF DELHI ....Respondent
Through: Mr. M.P. Singh, APP for State
Coram:
HON’BLE MR. JUSTICE A.K. PATHAK
1. Whether the Reporters of local papers Not necessary
may be allowed to see the judgment?
2. To be referred to Reporter or not? Not necessary
3. Whether the judgment should be
reported in the Digest? Yes
A.K. PATHAK, J.
1. Appellant has been convicted under Section 366/376 IPC by
learned trial court and sentenced to undergo rigorous imprisonment
for ten years and fine of Rs. 1,000/- and in default to face simple
imprisonment for one month under Section 366 IPC; rigorous
imprisonment for ten years and fine of Rs. 1,000/- and in default to
face simple imprisonment for one month under Section 376 IPC.
Both the sentences have been directed to run concurrently and
benefit of Section 428 CrP.C has also been given to the Appellant.CRL. APPEAL 37/2009 Page 2 of 10
2. Aggrieved by his conviction Appellant has preferred this
appeal.
3. Briefly stated, facts of the case are that FIR under Section 376
of Indian Penal Code (IPC) was registered in the Police Station
Pandav Nagar on the basis of statement of Shyam Lal, father of the
prosecutrix aged about 3 years, wherein he had stated that on 17th
March, 2005 at about 8:30 pm he was sitting outside his juggi
bearing no. 197, Dr. Ambedkar Camp, Mayur Vihar Phase – I, Delhi
along with his daughter; he went inside the juggi for a short while
and on his return he noticed that his daughter was missing; He
along with three or four persons of the locality went out in search of
his missing daughter towards Delhi Police Apartment where they
heard scream of a girl child coming from the side of a nala; He went
towards that side and saw the accused lying on his daughter and
doing “galat kaam”; He and the persons accompanying him
separated the accused from his daughter; He noticed that his
daughter was bleeding; Accused was thrashed by the persons
accompanying him. Thereafter, he took his daughter to Lal
Bahadur Shastri Hospital where she was medically examined.
4. On clinical examination of the prosecutrix, dust and grass
material was found around her v**gina and external genitalia. On
separation of labias fresh marks of injury were noticed around the
v**ginal orifice. Vaginal swab, grass and dust material was collected
by the doctor and sealed and handed over to the Investigating
Officer. Doctor opined that injury was possible due to fall or s*xual CRL. APPEAL 37/2009 Page 3 of 10
assault. As per CFSL report neither blood nor semen was detected
in the v**ginal swab and clothes of the prosecutrix.
5. Accused was also medically examined wherein multiple
bruises and abrasion in red colour all over his body were noticed
besides tenderness over his nasal bridge with clot in both nostrils.
One Clean Lacerated Wound measuring 1 cm x 0.2 cm over the
right cheek with fresh clot was also noticed. Underwear and vest of
the accused besides his blood sample were sealed by the doctor and
handed over to Investigating Officer. Accused told the doctor that
he had sustained injuries on being assaulted by the mob.
6. Prosecution has examined eight witnesses in all. Shyam Lal
was examined as PW1. Another eye witness Sandhya Verma was
examined as PW2. Dr. R.N. Dass, who had medically examined the
accused, was produced as PW4. He proved the MLC of the accused
as PW4/A. Dr. Chandrakanta Arya, who had medically examined
the prosecutrix, was produced as PW6. She proved the MLC of the
prosecutrix as Ex.PW6/A and her opinion as PW6/B. SI V.K.
Sharma, Investigation Officer of the case, was examined as PW8.
All other witnesses are formal in nature being Police officials who
had either recorded the FIR, participated in the arrest of the
accused or were with the Investigating Officer during the
investigation.
7. After prosecution closed its evidence, entire incriminating
material, which had come on record, was put to the accused and CRL. APPEAL 37/2009 Page 4 of 10
his statement was recorded under Section 313 Cr.P.C. Accused
simply denied his involvement in the offence. He claimed himself to
be innocent. According to him, father of the prosecutrix was
inimical towards him as they had a quarrel on some earlier
occasion. Accused did not lead any evidence in his defence.
8. Learned trial court has found the testimony of PW 1 and PW2
trustworthy and reliable, duly corroborated by the medical evidence,
since fresh injury was noticed on the v**ginal orifice of the
prosecutrix. It was held that injury marks on v**ginal orifice
indicated that the penetration was made by the accused; Absence
of blood and semen in the v**ginal swab would not by itself wash
away the guilt of the accused. Plea of accused that he was falsely
implicated by the father of the prosecutrix due to an earlier quarrel
was discarded on the ground that no such suggestion was put to
PW1, inasmuch as, no evidence was led by the accused on this
point. Rather in his cross examination, PW1 had admitted that he
had no enmity with the accused. On the basis of evidence adduced
before it learned trial court concluded that it is the Appellant who
had kidnapped and raped the prosecutrix, consequently, convicted
him under Section 366/376 IPC.
9. I have also perused the depositions of PW1 and PW2 and find
them to be trustworthy and reliable, inasmuch as, their version is
duly corroborated by the medical evidence, as the injuries were
found on the v**ginal orifice of the prosecutrix. As per PW1 and
PW2, incident had taken place near a nala. Dust and grass CRL. APPEAL 37/2009 Page 5 of 10
material found around the v**ginal orifice of the prosecutrix
supports this version. That apart, injuries found on the person of
accused also support the version of these two witnesses that he was
given beatings by the mob after they found accused raping the
prosecutrix. I also find that PW1 has fully corroborated his
statement recorded by the Police as contained in the FIR Ex. PW3/A
recorded on the date of the incident. He has fully supported the
prosecution case. He has deposed that on 17th March, 2005 at
about 8:30 pm he was sitting outside his juggi along with his
daughter aged about three years. He went inside the jhuggi for a
short while and when he came out he found his daughter missing.
He along with three/four persons went towards Delhi Police
Apartments. Sandhya Verma had also joined them. They heard
shrieks of a girl child coming from the side of the nala. He along
with his companions went towards that side and found the accused,
who was also residing in the same area, committing rape of his
daughter by lying upon her. His daughter was naked below her
frock and the accused was wearing baniyan only. They separated
accused from his daughter. Accused was caught hold of by the
persons accompanying him and was thrashed. His this version has
been duly supported by the PW2 Sandhya Verma. As already stated
above, medical evidence corroborates this version, as on the
separation of labias fresh mark of injuries were found around the
v**ginal orifice i.e. v**ginal cavity. PW6 Dr. Chandra Kanta Arya has
opined that the injuries were possible by s*xual assault. In these CRL. APPEAL 37/2009 Page 6 of 10
circumstances, I do not find any reason to disbelieve the statements
of PW1 and PW2. In my view, their statements have rightly been
accepted by the learned trial court.
10. Learned Amicus Curiae has vehemently contended that in
absence of presence of blood and semen in the v**ginal swab it
cannot be said that accused had committed rape upon the
prosecutrix. PW1 had stated that his daughter was bleeding but no
blood was noticed by the doctor. I am of the view that this
contention needs to be rejected outrightly being devoid of any merit.
It is not necessary that in each and every rape case ejaculation has
to take place. It cannot be said that unless there is emission of
seminal fluid, rape is not complete. Similarly, it cannot be said that
for rape to be complete, there must be full penetration. Even slight
penetration without emission would be sufficient to complete the
offence of rape. Absence of blood is also of no consequence as it
might wash away while victim passes urine. In my view, to
constitute the offence of rape it is not necessary that there should
be complete penetration of the male organ with emission of semen
and the rupture of hymen. Partial penetration of the penis within
the labia majora or even an attempt at penetration is quite sufficient
for the purpose of rape. In this context, opinion expressed by Modi
in Medical Jurisprudence and Toxicology (Twenty First
Edition) 369, would be relevant and is thus quoted as under :-
“Thus to constitute the offence of rape it is not
necessary that there should be complete
penetration of penis with emission of semen and CRL. APPEAL 37/2009 Page 7 of 10
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 that there is evidence of recent s*xual
activity. Whether the rape has occurred or not
is a legal conclusion, not a medical one.”
11. Similar view has been expressed in Parikh’s Textbook of
Medical Jurisprudence and Toxicology, which reads as under:-
“Sexual 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.”
12. The first explanation to Section 375 of Indian Penal Code,
which defines rape also provides that “penetration is sufficient to
constitute the offence of rape”.
13. In Pappu vs. State NCT of Delhi reported in
Manu/DE/0924/2010 a Division Bench of this Court in the similar
facts, held as under :-
“That no blood was detected on the v**ginal
swab of Kumari „P‟ and no semen was detected
therein is neither here nor there in view of the
ocular evidence of afore-noted four witnesses;
the testimony of Dr.Sangeeta Kumari PW-3 and
the MLC Ex. PW-3/A of Kumari „P‟. It is CRL. APPEAL 37/2009 Page 8 of 10
possible that the young infant and unfortunate
victim passed urine and thereby diminishing
the possibility of blood being detected in her
v**ginal swab. As regards no semen being
detected therein, there is no law that unless
there is ejaculation, rape is not complete.
There is no law that for rape to be complete
there must be full penetration.”
14. In the backdrop of the above legal position, I am of the view
that non availability of blood and semen in the v**ginal swab of
prosecutrix, by itself, would not indicate that no rape had been
committed by the accused. Injuries on the v**ginal orifice of the
prosecutrix clearly demonstrates that penetration was there, even
though it may be without emission of the seminal fluid. Arguments
of the learned Amicus Curiae to the contrary are hereby rejected.
15. Learned Amicus Curiae next contended that the presence of
Sandhya Verma at the spot is doubtful. She appears to be a stock
witness as she has admitted in her cross examination that she had
appeared in several other cases as well. I do not find any force in
this contention either. PW3 Sandhya Verma claim herself to be a
social worker. She had been espousing the cause of the down
trodden and the oppressed class. In this background she has
deposed that when she notices any injustice being done to a
member of deprived classes she raises her voice and does not
hesitate in appearing in their support in court. Her this statement
would not make her a stock witness of the Police, inasmuch as, in
answer to next very question she denied that she had been regularly
appearing in court as a witness. Her presence at the place of
incident cannot be found suspicious as she had produced the CRL. APPEAL 37/2009 Page 9 of 10
accused before the Police officials in the hospital immediately after
the incident and a categorical assertion has been made in this
regard by PW8 SI V.K. Sharma. PW8 has deposed that Sandhya
Verma along with five-seven people came in the hospital and
produced Shankar (accused) who was arrested by him. In his cross
examination PW8 has reiterated this fact by saying that accused
was handed over by Sandhya Verma in the hospital.
16. Learned trial court has awarded minimum sentence to the
Appellant as envisaged under Section 376 (2) IPC which provides
that if a person commits rape on a woman under twelve years of age
he shall be punished with rigorous imprisonment for a term which
shall not be less than ten years. Proviso to this Section empowers
the Court to impose a sentence of imprisonment of less than ten
years but for adequate and special reasons to be recorded. In this
case no special reason has been brought forward to award lesser
sentence than what has been prescribed under the Act. Appellant
has committed rape upon a child of tender age which itself shows
depravity on his part. Thus sentence awarded by the learned trial
court need not to be interfered with.
17. It is well settled that Appellate Court would interfere only if
findings of the learned trial court are manifestly absurd or based on
wrong appreciation of law. I find the judgment of the trial court to
be in consonance with the evidence adduced before it and the law
applicable on such facts. I do not find any material illegality, CRL. APPEAL 37/2009 Page 10 of 10
irregularity or perversity in the impugned judgment and the order
on sentence.
18. Accordingly, appeal is dismissed.
19. A copy of this order be sent to Superintendent Jail with the
direction that the same be served on the Appellant.
A.K. PATHAK, J
July 15, 2010
ga
