SANTOSH KUMARversusSTATE OF M.P.

                             SANTOSH KUMAR                                       A
                                   v.
                              STATE OF M.P.

                             AUGUST 25, 2006

              [G.P. MATHUR AND R.V. RAVEENDRAN, JJ.]                             B


      Penal Code, 1860-Section 3 76-Accused committing rape on prosecutrix
inside a bus-Trial Court convicted the accused and sentenced him 10 years
rigorous imprisonment with fine-High Court confirming the conviction and C
sentence-Contention of absence of injuries in private parts of the prosecutrix
as per medical report-Correctness of-Held, testimcny of PW I, PW 7, PW8
and the prosecutrix supports the case of the prosecution-On facts, medical
examination report discloses injuries on the front portion of the body and
hands of the prosecutrix and hence, the absence of injuries on her private
parts cannot be a ground that no rape was committed-Hence, conviction of D
the accused upheld.

       On hearing shrieks coming from a bus, constables PW 7 and PW 8,
 who were on patrol duty, rushed and entered the bus and saw appellant
and another accused committing rape on prosecutrix (PW 10). On seeing
the constables, both the appellant and another accused jumped from the           E
bus and ran away. An FIR was registered and the police sent the
prosecutrix for medical examination. After investigation, prosecution filed
a chargesheet before trial court against the appellant and another acccused
for offence under section 376 IPC. PW 1, who became hostile, stated in
his examination-in-chief that on hearing the shrieks of a girl, he went inside   F
the bus where he found the two accused holding the hands of the
prosecutrix. PW 1 further stated that the prosecutrix had informed him
that the accused had ravished her. The trial court, relying on the testimony
of PWs 1, 7, 8 and 10 convicted both of them under section 376(2)(g) IPC
and sentenced them to IO years rigorous imprisonment with fine and
default stipulations. An appeal preferred by the appellant was dismissed         G
by High Court.

     In appeal to this Court, the appellant contended that the medical
report given by PW 3, doctor, does not disclose that PW 10 was subjected
to rape as there were no injuries on her private parts and hence the
                                  381                                            H
    382                    SUPREME COURT REPORTS [2006] SUPP. 5 S.C.R.

A prosecution failed to prove the case beyond all reasonable doubts.
          Dismissing the appeal, the Court

          HELD: I.I. The prosecutrix PW 10 has clearly deposed in her
    statement that both the accused had ravished her one after another. There
B   is absolutely no reason why she would falsely implicate the accused as they
    were strangers to her. The testimony of prosecutrix finds corroboration
    from the testimony of two constables PW 7 and PW 8. PW 1 also supported
    a part of the prosecution case in his examination-in-chief, namely, that
    after hearing the shrieks of girl, he went inside the bus where he found
C   the two accused holding the hands of PW 10. He further deposed that PW
    10 had informed them that the accused had ravished her. Though PW 1
    was declared as hostile, his evidence is not be treated as effaced from
    record and can be relied upon in part. Therefore, the testimony of PW 1
    can be believed. (374-F-GJ

D         Sat Paul v. Delhi Administration, AIR (1976) SC 294 and Gura Singh
    v. State of Rajasthan, AIR (2001) SC 330, referred to.

          1.2. The medical examination report of the prosecutrix shows that
    she received injuries on front portion of the body and also on her hands.
    The mere fact that no injuries v:ere found on private parts of her body
E   cannot be a ground to hold that no rape was committed upon her or that
    the entire prosecution story is false. The prosecutrix is a married, grown
    up lady and in such circumstances the absence of injuries on her private
    parts is not of much significance. (388-B-CI

          Madan Gopal Kakkadv. Naval Dubey, (1992( 3 SCC 204, referred to.
F
          1.3. The evidence of OW 1 is of neutral character and does not
    discredit the prosecution case. The trial court and the High Court rightly
    discarded the evidence of OW 2. The prosecution has established its case
    against the appellant beyond any shadow of doubt. (388-D; G; 389-AJ

G        CRJMINAL APPELLATE JURISDICTION : Criminal Appeal No, 1368
    of 2005.

         From the Judgment/Order dated 13.12.2004 of the High Court of Madhya
    Pradesh at Jabalpur in Criminal Appeal No. 1060 of 1989.

H         Kumud L. Dass (for S.B. Upadhyay) for the Appellant.
           SANTOSH KUMAR v. STATE OF M.P. [G.P. MATHUR, J.]             383
      R.P. Gupta and Pragati Neekhra Singh (for C.D. Singh) for the           A
 Respondent.

      The Judgment of the Court was delivered by

      G. P. MATHUR, J. Santosh Kumar has preferred this appeal, by special
leave, against the judgment and order dated 13.12.2004 of Madhya Pradesh      B
High Court, by which the appeal filed by him was dismissed and the judgment
and order dated 23.10.1989 of Sessions Judge, Raisen, convicting him under
Section 376(2)(g) IPC and imposing the sentence of I 0 years RI and a fine
of Rs.500/- and in default to undergo six months RI was affirmed.

       2. The case of the prosecution, in brief, is that the prosecutrix Halki C
 Bai, who was resident of village Modakpur had been deserted by her husband
 and in order to maintain herself she was doing some work as labour. She
 came by a bus to Silvani in search of work in the night of 20.5.1985. After
 she had boarded the bus the conductor Munim Mishra enquired where she
 was going and when she informed him that she was going to Silvani in search D
 of some work, he did not ask for money for issuing to her a ticket. The bus
 reached Silvani at about l 0.00 p.m. and when she was trying to get down,
 Munim Mishra told her that she may sleep in the bus itself rather than going
 anywhere in the night and in the morning he would arrange some work for
 her. Halki Bai then slept on the rear seat of the bus. At about midnight, when E
all the shops at the bus stand had closed, the driver of the bus, viz. Santosh
Kumar (appellant) pressed her breasts and started removing her dhoti which
she was wearing. When she tried to raise an alarm, Munim Mishra caught
hold of her hands and also gagged her and then the appellant Santosh Kumar
ravished her. Thereafter, Santosh Kumar caught hold of her hands and Munim
Mishra ravished her. Hearing her alarm, three constables who were on patrol F
duty and some others came near the bus, but both the accused managed to
run away. The policemen brought Halki Bai to P.S. Silvani, where she lodged
the FIR of the incident at 1.00 a.m. on 21.5.1985. Halki Bai was sent for
medical examination where PW.3 Dr. Z. Fezi examined her at 2.00 a.m. and
prepared a medical examination report which is Ex. P-8. After completion of G
the investigation, charge sheet was submitted against both the accused viz.
Santosh Kumar (appellant) and Munim Mishra.

      3. The learned Sessio;is Judge framed charge under Section 376 IPC
against both the accused, who pleaded not guilty and claimed to be tried. In
order to establish its case, the prosecution examined IO witnesses and filed H
some documentary evidence. The appellant and co-accused Munim Mishra in
    384                    SUPREME COURT REPORTS [2006) SUPP. 5 S.C.R.

A their statements under Section 313 Cr.P.C. denied the prosecution case and
    examined two witnesses in their defence. The learned Sessions Judge believed
    the case of the prosecution and convicted and sentenced both the accused as
    stated earlier. The appeal preferred by the accused was dismissed by the High
    Court by the judgment and order dated 13.12.2004.

B       4. During trial the prosecution examined four witnesses of fact. PW-I 0
  Halki Bai in her deposition gave details of the incident and stated that first
  she was ravished by the appellant Santosh Kumar and then by Munim Mishra.
  PW-I Mukhtar Hasan, who was working as a helper in the Forest Department,
  deposed that he was going to the Range Office and at about 12.00 p.m. when
C he reached the bus stand, he saw some persons standing near a bus which had
  come from Sagar. Shortly thereafter, some police constables also came there.
  He saw Halki Bai and both the accused inside the bus. Halki Bai informed
  them that both the accused had ravished her. The witness was declared hostile
  and was cross-examined by the State counsel. PW-7 Dinesh Kumar, who is
  a constable, deposed that he along with PW-8 Hari Narayan and Narayan
D Singh were on patrol duty and when they reached near the bus stand, they
  heard the shrieks of a lady coming from the bus. They immediately rushed
  and entered the bus from the rear side, when he saw that the appellant Santosh
  Kumar was catching hold of the hands of the prosecutrix and Munim Mishra
  was committing rape upon her. Both the accused jumped from the bus and
E ran away after seeing the police personnel. Similar statement has been given
  by PW-8 Hari Narayan, constable.

         5. The prosecutrix PW-10 Halki Bai has clearly deposed in her statement
  that both the accused, viz., Santosh Kumar and Munim Mishra had ravished
  her one after another. There is absolutely n<J reason why Halki Bai would
F falsely implicate the accused as they were strangers to her. The testimony of
  prosecutrix finds corroboration from the testimony of two constables, namely,
  PW-7 Dinesh Kumar and PW-8 Hari Narayan. PW-I Mukhtar Hasan has also
  supported a part of the prosecution case in his examination-in-chief, namely,
  that after hearing the shrieks of a girl, he went inside the bus where he found
G the two accused holding the hands of Halki Bai. He further deposed that
  Halki Bai had informed them that the accused had rav.ished her. Though PW-
   1 was declared as hostile, his evidence is not to be treated as effaced from
  record and can be relied upon· in part. In Sat Paul v. Delhi Administration,
  AIR ( 1976) SC 294 after referring to several decisions on the point, it was
  held :-
H
            SANTOSH KUMAR v. STATE OF M.P. [G.P. MA THUR, J.]               385
        "Even in a criminal prosecution when a witness is cross-examined A
        and contradicted with the leave of the court, by the party calling him,
        his evidence cannot, as a matter of law, be treated as washed off the
        record altogether. It is for the Judge of fact to consider in each case
        whether as a result of such cross-examination and contradiction, the
        witness stands thoroughly discredited or can still be believed in regard B
        to a part of his testimony. If the Judge finds that in the process, the
        credit of the witness has not been completely shaken, he may, after
        reading and considering the evidence of the witness, as a whole, with
        due caution and care, accept, in the light of the other evidence on the
        record, that part of his testimony which he finds to be creditworthy
        and act upon it. If in a given case, the whole of the testimony of the C
        witness is impugned, and in the process, the witness stands squarely
        and totally discredited, the Judge should, as matter of prudence, discard
        his evidence in toto."

      In Gura Singh v. State of Rajasthan, AIR (2001) SC 330 it was held:-
                                                                                   D
        "It is misconceived notion that merely because a witness is declared
        hostile his entire evidence should be excluded or rendered unworthy
        of consideration. In a criminal trial where a prosecution witness is
        cross-examined and contradicted with the leave of the Court by the
        party calling him for evidence cannot, as a matter of general rule, be
        treated as washed off the record altogether. It is for the Court of the    E
        fact to consider in each case whether as a result of such cross-
        examination and contradiction the witness stands discredited or can
        still be believed in regard to any part of his testimony. In appropriate
        cases the Court can rely upon the part of testimony of such witness
        if that part of the deposition is found to be creditworthy."               p
      Therefore, the testimony of PW-I Mukhtar Hasan to the extent that he
went inside the bus after hearing the shrieks of Halki Bai and that he saw the
accused ho Iding her hands and also the further fact that Halki Bai immediately
stated that the accused had committed rape upon her can be believed. The
learned Sessions Judge and also the High Court have placed reliance on his         G
testimony as he is an independent witness. Thus the oral evidence on record
fully establishes the case of the prosecution.

      6. Learned counsel for the appellant has submitted that the medical
evidence does not disclose that PW- I 0 Halki Bai had been subjected to rape
as there were no injuries on her private parts and, therefore, the entire H
    386                      SUPREME COURT REPORTS (2006] SUPP. 5 S.C.R.

A prosecution case becomes doubtful. The prosecutrix had been medically
    examined at 2.00 a.m. on 21.5.1985 by PW.3 Dr. Z. Fezi, Woman Assistant
    Surgeon, at Silvani. She had prepared a medical report, Ex.P-8 and the relevant
    part thereof is being reproduced below:-

                "Marks of External Injury on body :- ( 1) Three abrasions on
B               breast right upper and outer quadrant which are nail marks as
                they are crescenteric in shape of sizes 0.5 cm to 1.0 cm.
                 (2) Three abrasions on breast left upper and inner quadrant which
                 are nail marks as they are crescenteric in shape of sizes 0.5 to 1.0
                 cm.
c                (J) One bruise left upper arm (below post fold of axilla)
                 Posterolaterally Yi" x Yi" red in colour.
                 Public Hair - Present, black in colour.
                 External Genitals - No seminal stains, no bruising or laceration
D                seen.
                 Hymen - Torn, several small granular tags present, no fresh tear
                 present - Fourchette and posterior commissure are intact.
                 Vagina - Admits two fingers with resistance. No laceration seen.
                 Cervix - Firm, cleft transversely. No laceration seen.
E
                 Uterus - Retroverted, normal size, fornices clear.
                 Perineum - Normal.
                 Opinion - (I) No definite opinion regarding rape can be given
                 till report of vaginal smear is available.
F
                 (2) External injuries are of within 24 hours duration and simple
                 in nature.
                 (3) One sealed packet containing two slides of vaginal smear
                 another sealed packet containin~ clothes (sadi and petticoat) and
G                one sealed vial containing cutted public hair - advised to send
                 for chemical examination."

        In her deposition the doctor has stated that the age of Halki Bai was
  about 18 years and she was of average built having a height of 159 ems. and
  her weight was 100 pounds. She has also deposed that no definite opinion
H could be given regarding rape till the report of vaginal smear was received.
            SANTOSH KUMAR v. STATE OF M.P. [G.P. MATHUR, J.]                   387

It is noted by the High Court that till the conclusion of the session trial, the      A
report of chemical examination had not been received.

       7. The question, which arises for consideration, is whether the proved
facts establish the offence of rape. It is not necessary for us to refer to various
authorities as the said question has been examined in considerable detail in
Madan Gopal Kakkadv. Naval Dubey, [1992] 3 SCC 204 and paragraphs 37                  B
to 39 of the said judgment are being reproduced below:-

        "37. We feel that it would be quite appropriate, in this context, to
        reproduce the opinion expressed by Modi in Medical Jurisprudence
        and Toxicology (Twenty First Edition) at page 369 which reads thus:
                                                                                      c
            "Thus to constitute the offence of rape it is not necessary that
            there should be complete penetration of penis with emission of
            semen and 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 D
            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 E
            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 sexual
            activity. Whether the rape has occurred or not is a legal
            conclusion, not a medical one."
                                                                                      F
       38. In Parikhs Textbook of Medical Jurisprudence and Toxicology,
       the following passage is found:
            "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 G
            the offence of rape without producing any injury to the genitals
            or leaving any seminal stains."
       39. In Encyclopedia of Crime and Justice (Vol. 4) at page 1356, it is
       stated:
                                                                                      H
    388                     SUPREME COURT REPORTS [2006] SUPP. 5 S.C.R.

A          ".......even slight penetration is sufficient and emission is unnecessary."
    Therefore, absence of injuries on the private parts of a victim specially a
    married lady cannot, ipso facto, lead to an inference that no rape has been
    committed.

B          8. The medical examination report of the victim shows that she received
    injuries on front portion of the body and also on her hands. The mere fact
    that no injuries were found on private parts of her body cannot be a ground
    to hold that no rape was committed upon her or that the entire prosecution
    story is false. It may be noted that Halki Bai is a married grown up lady and
    in such circumstances the absence of injuries on her private parts is not of
c   much significance.

         9. The accused in their defence examined two witnesses. DW-1 Gopi
  Aggarwal deposed that he has a hotel (restaurant) at a short distance from
  Silvani bus stand and the same remains open till about 11.00 in the night.
D The bus which is operated by the accused normally stops in front of his hotel
  at about 9.00-10.00 p.m. He further deposed that no incident in the said bus
  had taken place so long as he was present in his hotel. The evidence of DW-
   I is of neutral character and does not discredit the prosecution case. DW-2
  Gopi Lal Yadav has deposed that he works as a driver on a bus which goes
  from Sagar to Silvani and normally his vehicle arrives at Silvani at about
E 8.30 p.m. and stops in front of the hotel. About 4-5 years back while he was
  taking food in the hotel, he saw that some talks were going on between
  Santosh appellant and a few police personnel regarding payment of 'hafta'
  (weekly payment). After exchange of some hot words had taken place, the
  police personnel caught hold of the appellant and took him along with them.
F At that time Munim Mishra accused was not present as he had gone for the
  purpose of repair of the tyre which had got punctured. Like the appellant,
  DW-2 works as a driver ofa bus operating on Sagar-Silvani route. He did not
  make any protest when the police personnel allegedly took the appellant
  Santosh in their custody on the ground of non-payment of 'hafta'. Nor did
   he make any complaint to any superior authority regarding the alleged high-
G handedness of the police personnel at any subsequent point of time. He has
  come out with his version of the incident for the first time when he deposed
   in Court on 17. I0.1989 i.e. nearly 4-Yz years after the incident. The learned
   Sessions Judge and also the High Court have rightly discarded the evidence
  of DW-2 and we find no reason to take a different view.

H          10. Having given our careful consideration to the submissions made by
               SANTOSH KUMAR v. STATE OF M.P. [G.P. MATHUR, J.]              389

    learned counsel for the appellant, we are of the opinion that the prosecution   A
    has established its case against the appellant beyond any shadow of doubt.
    The learned Sessions Judge and the High Court have rightly convicted the
    appellant under Section 376(2)(g) !PC and there is absolutely no ground
    which may warrant interference by this Court. The appeal is accordingly
    dismissed.
                                                                                    B
    B.S.                                                      Appeal dismissed.




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