Holding

The Supreme Court held that the carbon copy of the medical certificate is admissible, the medical evidence of torn hymen and bleeding proves penetration, the lack of spermatozoa does not create reasonable doubt, the FIR filing was not delayed, and no evidence supports false implication, so the conviction under s.376 stands.

Summary

Prithi Chand, an 18‑year‑old, was convicted of raping a girl aged 11‑12 years. The prosecution relied on the victim’s testimony, a medical certificate showing a torn hymen and profuse bleeding, and forensic analysis that found blood but no spermatozoa. The defence challenged the admissibility of a carbon copy of the medical certificate, argued that the vagina admitting only one finger indicated no penetration, claimed the FIR was filed with undue delay, and suggested that family enmity meant the appellant was falsely implicated. The Supreme Court held that the carbon copy was admissible under Evidence Act s.32 and s.62, that the medical findings proved penetration despite the finger‑test, that the absence of spermatozoa did not raise reasonable doubt, that filing the FIR the next morning was not a delay, and that there was no material to support the claim of false implication. Consequently, the conviction under IPC s.376 was upheld and the appeal dismissed.

Issues considered

The admissibility of a carbon copy of a medical certificate under the Evidence Act.
Whether the medical observation that the vagina admitted one finger with difficulty negates penetration.
The effect of the absence of spermatozoa on the prosecution's case.
Whether filing the FIR the next morning constitutes an impermissible delay.
Whether alleged enmity between the families and an alternative suspect create reasonable doubt.

Legislation cited

Code of Criminal Procedure, 1973s. 154, s. 313
Indian Evidence Act, 1872s. 32, s. 62
Indian Penal Code, 1860s. 376

Subjects

rapeminormedical evidenceadmissibility of documentsforensic evidenceFIR delayfalse implicationenmityIPC s.376Evidence Act s.32Evidence Act s.62

Judgment

·--f. PRITHI CHAND
A
v.
STATE OF HIMACHAL PRADESH

JANUARY 17, 1989

~:.,- [S. NATARAJAN AND A.M. AHMADI, JJ.J B

Indian Penal Code, 1860: Section 376--Rape on minor girl-
I Penetration-Proof of-Medical opinion-Infirmity of-Absence of
~ spermatozoa-Whether can cast doubt on prosecution case-Allegation
of false implication due to enmity between parents of appellant and
prosecutrix-Whether valid.
c
~ Evidence.Act, 1872: Sections 32 & 62-Carbon copy of medical
cetificate-Admissibility of.

Criminal Procedure Code, 1973: Section 154-F./.R. lodged next
day morning, father of prosecutrix not being available and it was too D
late to travel to police station-Whether amounts to delay.

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 E

. 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 forwarded to the Chemical Analyser and
Serologist for examination and report.
F
The appellant was prosecuted for committing rape on P. W. J. 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 conviction
reduced the substantive sentence from imprisonment for life to rigorous G
~ 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
H
123
124 SUPREME COURT REPORTS 11989] 1 S.C.R.

doctor, who examined P. W. 1 was inadmissible in evidence, that having
A
regard to the girl's age and the fact that her vagina admitted one finger
with difficulty, it was not possihle to believe that there was penetration,
that there was delay in flling 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 streng-
B thened by prior enmity, absence of spermatozoa, and infirm medical
opinion.

Dismissing the appeal,

HELD: l. Section 32 of the Evidence Act provides that when
a statement written or verbal, is made by a person in the dis-
c charge of professional duty whose attendance cannot be procured
without an amount of delay, the same is relevant and admissible in
,..,I
evidence. l127F]

In the instant case, the lady doctor, who examined P.W. 1 and
D 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 signature.
Besides, since the carbon copy was made by one uniform process the
E 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. I127D-G]

2. In the absence of penetration, there would not be absence of '
-
,

F
hymen with the edges torn and profuse bleeding from the vagina stain-
ing the salwar. Merely because the Doctor found that the vagina admit-
\
ted one linger with difficulty, it cannot he inferred that there was no
penetration as the muscles must have contracted hy then. The appel-
lant, a robust man must have penetrated the vagina for otherwise there
would not have been so much of bleeding. [1288-C]

G 3. Mere absence of spermatozoa cannot cast a doubt on the cor-
rectness 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. I 129F; 128F]

4. Immediately atler the incident was narrated to the mother and
H other ladies, no decision could be taken because of the absence of the
PRITHJ CHAND v. STATE OF H.P. !AHMADI, J.] 125

'1··· father. On his arrival, he informed the Sarpanch, who advised him to
A
report it to the Police next day ill the morning; since it was too late to
travel to the Police Station at that hour and accordingly the F.l.R.
was lodged on the next day. Therefore, there is no delay in filing the
F.I.R. II28G-H)

5. it is not possible to beiieve iitiil the prosecutrix aiid her parents B
would allow the real culprit to escape aiid falsely involve an innocent
person for the commission of the Crime. Except for the suggestion made
in the cross-examination of P. W. 8 and the statement imder s. 313 of the
Code of Criminal Proc~dure titere is no material on record to give
credence to the suggestion that the soh of P. W. 8 was I rt ti mate with the
prosecutrix and he had raped the girl. Ii 29C I
c
"'{ 6. There is strong, reliable iiiltl dependable evidence of the pro-
secuti0i1 witnesses which clearly proves that the prosecutrix was raped
by the appellant. Iii such circuilistiinces, there call be rto merit in the
appeal. Il 27G)
D
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. 41of1980.
E

. Balakrishna Gaur, Amicus Curiae for the Appellant .

K.G. Bhagat, Hatish Kumar Sharma and Ms. A. Subhashini for
the Respondent. ·

The Judgment of the Coiltt was delivered by F

AHMADI, J. The appellant Prithi Chand, ·a youth of about 18
years, was prosecuted for committing rape of PW-1 Kaiiehana Devi, a
girl of tender age of 11 or 12 years, on the afternoon of 1Sih June, 1979
at a place known as Kutkharpati in village Kot; Tehsil Palamptir of
Himachal Pradesh. The learned Sessions Jtidge convicted him under G
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 imprison-
ment for a further period of two years, On appeal. the High Coutt
while confirming his conviction ilndet Section 376, I.P.C., tediiced the
substantive sentence fforh iirtprisonmeht fot life to tigdroils imprison-
ment for seven years but retained the order regarding payment of fine H
..
126 SUPREME COURT REPORTS [1989) 1 S.C.R.
~·
-t ·~
and the punishment in default thereof. Thereupon the appellant has
A
approached this Court tnder Article 136 of the Constitution of India.

The facts in brief are that PW-1 Kanchana Devi had gone to
Balarahi Khad with her two younger sisters on the morning of 15th
June, 1979 for talcing a bath. After the bath when she was returning to
B her residence the appellant met her on the way and asked her to permit 'f-.
him to have sexual-intercourse with her. She resented this behaviour
of the appellant 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 commit-
c led rape on her, on account whereof she began to bleed profusely.
After satisfying his lust the appellant gave her a few leaves to wipe her 'y
vagina. On hearing a call from PW-7 Sandhi Devi who was looking for '
her daughter, the appellant ran away. The prosecutrix returned home.
Her trousers were stained with blood. She narrated the incident to her
D 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,
E whereupon the Sarpanch of the village PW-12 Chaturbhuj was infor-
med 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. /~
\
F
PW-1 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 t!)ok her to the lower level where he had sexual intercourse
G 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
H narrated the incident to him. All these witnesses support the version of
PRITHI CHAND v. STAIB OF H.P. [AHMADI, J.] 127

·-f the prosecutrix. The Sarpanch PW-12 Chaturbhuj has also stated that A
' 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 village stated that the prosecutrix had
pointed out the place of oc~urence wherefrom blood stained leaves
were attached by the police under seizure Memo Ex. P-B. PW-5
Kishori Lal supports him. B
~-

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 sec-
\ ondary sex characters, auxillary 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 bleed-
c
"( ing, 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 D
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 pro-
)..._ secution 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 E
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 certificate was lost and not avail-
.} able. Section 32 of the Evidence Act provides that when a statement,
written or verbal, is made by a person in the discharge of professional F
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 G
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 H
128 SUPREME COURT REPORTS [1989] 1 S.C.R.

A and penis were well developed. In the opinion of the witness the appel-
lant 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 admit-
ted one finger with difficulty, it is not possible to believe that there was
penetration. The argument overlooks the fact that in the absence of
penetration there would not be absence of hymen with the edges_ tom
B 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.
c
PW-9 Dr. Mahajan examined the prosecutrix with a view to as- T
certaining her age. After her radiological examination, he opined that
she was between 8-Y2 and 12 years of age on the date of the incident.
The evidence of this witnesses corroborates the say of the prosecution
D 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
E 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-0 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 ihe
say of the prosecution witnesses that there was profuse bleeding from /\.
F 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
G 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.l.R. was lodged. We, therefore, do not think that there was any
H delay in reporting the matter to the police.
PRITIII CHAND v. STATE OF H.P. [AHMADI, J.J 129

It was next contended that the appellant was falsely involved .due A
to a long sianding enmity between the father of the appellant and the
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-examination that
Ratna, the son of PW-8 Phulan Devi was intimate with the prosecutrix
B
and he had raped the gift. In his statement under Section 313 of the
Code of Criminal Procedure, he put forth the case that when he re-
turned 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 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 c
made in the cross-examination of PW-8 Phulan Devi, Raina's mother
and the statement under Section 313 of the Code of Criminal Proce-
dure there is no other material on record which can give credence to
the suggestion.
D
Lastly it was argued by reference to A. W. Khan v. State, A.LR.
1962 Calcutta 641; Gorakh Daji Ghadge v. State of Maharashtra,
I1980] Criminal Law Journal, 1380 and Pa dam Bahadur Darjee v. State
I
of Sikkim, [1981] Criminal Law Journal, 1317 that since the girl was of
.l
!', tender age the possibility of her wrongly involving the appellant can-
not be ruled out and this possibility is strengthened by prior enmity,
absence of spermatozoa and infirm medical opinion. We have already E

. 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 tum on the facts of each
j. case.
F
In view of the above, we see no merit in this appeal and dismiss
the same.

N.P.V. Appeal dismissed.