STATE OF UTTAR PRADESHversusBABUL NATH

A                        STATE OF UTTAR PRADESH
                                    v.
                               BABUL NATH

                                 AUGUST 12, 1994

B               [DR. A.S. ANAND AND FAIZAN UDDIN, JJ.]

         Indian Penal Code, 1860 : ·Sections 375, 376-Rape--lngredients-
  Evidence-Appreciation of-Child victim aged about 5 Years-Found lying in
  semi-conscious condition in pool of bloorJ-Accused seen running away from
C scene. of occumnce--Medical Evidence establishing sexual assaulr-Convic-
  tion by Trial court-Acquittal by High Court-Held High Court fell into serious
  error in assessing evidence-Acquittal of accused totally unmeriterl-Courts to
  be sensitive in dealing with crimes against girl child.

          Code of Criminal Procedure, 1973 :
D
           Sections 154, 161-FIR-Statement made to police-Held not substan-
    tive piece of evidence-To be used only to corroborate or contradict the
    witness.

E         Constitution of India :

          Article 136-Appeal against acquitta~Appraisal of evidence-Held to
    be made if High Court erred in assessing evidence and its findings vitiated by
    error of law of procedure of found contrary to principles of natural justice or
    manifestly perverse, resulting into grave injustice.
F
          The respondent was charged and tried for an offence punishable
    under section 376 IPC for committing rape of a child aged about 5 years.
    The prosecution case was that at about 4 P.M. on 15.3.1977 PW 1 to PW
    3, while passing by the side of a grove, heard screams and cries of a girl.
    They reached the place of occurrence and saw the victim lying down on the
G   ground in a semi-conscious state with her private part profusely bleeding.
    They saw the respondent running away arranging his 'dhoti'. They ar-
    ranged for a small cot and took the girl thereon and proceeded on foot to
    the police station where PW 1 made a written report. The police registered
    the case against the accused and got the girl medically examined. The lady
H   doctor, after describing the injuries found on the private part of the victim,
                                          598
                  STATE v. BABUL [FAIZAN UDDIN.I.]                      599

opined that the girl was subjected to sexual intercourse. The trial court, A
relying on the evidence of PW l supported by the medical evidence,
convicted the accused of the offence charged and sentenced him for im-
prisonment for 5 years. On appeal, the High Court, disbelieving the
prosecution case, set aside the conviction and acquitted the accused.
Aggrieved, the State filed the appeal by the special leave.
                                                                               B
      Allowing the appeal, this Court

       HELD : l. The Trial Court rightly convicted and sentenced the
respondent as the oral evidence coupled with the medical evidence clearly
establishes that the respondent was responsible for sexual assault on the      C
girl aged about 5 years. The judgment of the High Court is based on
surmises and conjectures and its appreciation of evidence is absolutely
faulty. [607-B]

      2.1. This Court, in an appeal under Article 136 of the Constitution,
does not normally reappraise the evidence by itself and go into the question   D
of credibility of the witnesser, and the assessment of the evidence by the
Iligh Court is accepted as final unless the appreciation of evidence and
finding is vitiated by any error of law of procedure "or found contrary to
the principles of nature justice, errors of record and misreading of the
evidence, or where the conclusions of the High Court are manifestly            E
perverse and unsupportable from the evidence on record. [603-D, E]

      2.2. In the instant case, the evidence on record, particularly the
statement of the eye-witness, PW 1, as well as the medical evidence and
the law relating to the commission of offence of rape indicates that the
High Coor! fell into serious error in assessing the evidence correctly and     F
holding that the victim subjected only to an indecent assault and was not
subjected to sexual intercourse. [603-•", G]

      2.3 The High Court, while appreciating the evidence of the doctor, PW
6, observed that she conceded that the injuries found on the private part of G
the girl could also be caused by instrument like a piece of glass and on that
basis took the view that the opinion of the doctor that rape was committed
on the girl became doubtful. This finding is wholly unwarranted and per-
verse for the reason that simply because the injuries fonnd on the private
part of the girl could also be caused in several other ways than the sexual
assault on the victim cannot lead to the conclusion that the injuries on her H
    600                  SUPREME COURT REPORTS [1994) SUPP. 2 S.C.R.

A private part were not sustained by commission of rape bnt by some other
    instrument in the absence of any material to support such a conclusion. No
    piece of glass was found at or near the place of occurrence. On the contrary
    there is positive and convicting evidence showing that there was sexual
    assault on the girl. The doctor found the hymen completely torn, laceration
    on all sides of the vagina, fresh bleeding and blood stained discharged
B
    coming out. According to the evidence of the doctor a finger could be easily
    inserted inside part of the victim which otherwise was not possible in the
    case of a child aged 5 years. The High Court totally ignored this aspect of
    the matter. [603-H, 604-A to C, E, G, HJ

C         Medical jurisprndence by Modi, 21st Edn. p.376, referred to.

           2.4. Ingredients essential for proving a charge of rape are, the ac-
    complishment of the act with force and resistance. It is not at all necessary
    .that there shonld be complete penetration of the male organ with emission
D   of semen and rupture of hymen. It is quite possible to commit legally the
    offence of rape even withont causing any injury to the genitals or leaving
    any seminal stains. [605-C, D, El

          2.5. In the instant case there is more than enough evidence positively
    showing that there was sexual activity on the victim and she was snbjected
E   to sexual assault without which she would not have snstained injuries of
    the natnre found on her private part by the doctor who examined her.
                                                                      [605-E, F]

          2.6. As regards the evidence of the sole eye-witness PW 1, the obser-
    vations of the High Court that be fabricated the explanation for delay in
F   lodging the report and that be is not a reliable witness are not correct. The
    victim was totally a stranger for informant PW 1 and the other persons who
    attended on her. PW 1 deposed that on bearing cries of the girl when be
    alongwith other persons reached near the place of occurrence into the
    grove, be saw the girl lying in semi-conscious condition in a pool of blood
G   and the respondent running away arranging his 'dhoti'. The first tried to
    trace out the identity of the girl and her parentage and then managed for
    a small cot on which the girl could be taken to the Police Station which was
    at a distance of about 3-4 kms. They stayed for some time near his village
    on the expectation that some more villagers may also accompany them to
    the Police Station. The witness categorically stated the scores of persons
H   arrived and be bas also given the names of some of the persons. They
                  STATEv. BABUL[FAIZANUDDIN,J.]                          601

proceeded on foot to the Police Station where he lodged a written report.       A
According to the witness about 5-6 hours were spent in all this before
reaching the Police Station. There appears to be no apparent reason for
fabricating the explanation for the delay in lodging the report which was
bound to occur in the facts and circumstances of the case. The evidence of
PW 1 has to be accepted as the same has been corroborated by the medical        B
evidence. (605-F, G, 606-A, BJ

      2.7. The High Court, while holding that statement of PW 1 was not
consistent with the report lodged by him and the statement made to the
police under Section 161 Cr. P.C., lost sight of the fact that an FIR or a
written report is not substantive piece of evidence but it can be used only     C
to corroborate or contradict the maker thereof. PW 1 was not confronted
with the alleged inconsistent statements contained in his report or the
statement under section 161 Cr. P.C. [606-C, DJ

       3. The acquittal of the respondent was totally unmerited and such
unmerited acquittals, particularly in crimes against girl child encourage       D
the criminals. The Courts have, therefore, to be sensitive while dealing with
such cases but the High Court in this case appears to be far from being
sensitive while appreciating the material on record. [607-C-D]

      CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.                      E
648 of 1990.

     From the Judgment and Or<V:r dated 25.5.90 of the Allahabad High
Court in Cr!. A No. 1758 of 1979.

      Bimal Roy Jad and AS. Pundhir for the Appellant.
                                                                                F
      R.D. U padhyay for the Respondent.

     The Judgment of the Court was delivered by

      FAIZAN UDDIN, J, 1. The respondent Babul Nath a Young man of
32 years was charged and tried for an offence punishable under Section G
376 of the Penal Code for committing rape of Kumari Nirmala Devi, a child
aged about 5 years, in the afternoon of 15.3.1977 in the grove of one
Baleshwar Pathak in village Rampa within the jurisdiction of Police Station
Bhadohi, District Varanasi. In Sessions Trial No. 26178 the Session Judge,
Varansi found the respondent guilty of the offence charged with and, H
    602                  SUPREME COURT REPORTS (1994] SUPP. 2 S.C.R.

A   therefore, convicted him under Section 376 l.P.C. and sentenced him to
    suffer imprisonment for five years. On appeal by the respondent the High
    Court rejected the testimony of the sole eye- witness Ram Lakhan, PW 1,
    set aside the conviction and sentence imposed on the respondent and
    acquitted him of the charge of rape. The State of Uttar Pradesh has,
    therefore, approached this Court in appeal under Article 136 of the ·
B   constitution of India on grant of leave.

          2. The prosecution case as it emerges out of the written report made
    by Ram Lakhan,PW 1 is that on 153.1977 at about 4 PM when Ram
    Lakhan, PW 1, Jokhan Ram, PW 2, Kansraj, PW 3 and Kauleshwar white
C   passing by the side of the grove belonging to Baleshwar Pathak of village
    Rampa they heard screams and cries of some girl and, therefore, they
    rushed into the grove where they saw the girl Nirmala lying down on the
    ground in a semi-conscious state with her private part profusely bleeding
    and the respondent Babu! Nath was seen running away arranging his Dhoti
    for that place. They arranged for a Khatola (Small cot) and proceeded on
D   foot with the girl on Khatola to the Police Station, Bhadohi where Ram
    Lakhan, PW 1 made a written report Ext. Ka.l which was received by the
    Head Constable Awadh Narain Singh, PW 4. On the basis of said report
    Head Constable Awadh Narain Singh prepared a formal chik report Ext.
    KI. 2 and an offence under Section 376 I.P.C. was registered against the
E   respondent as per Ext. Ka. 3.

          3. Therefore, the girl was taken to the Hospital, Bhadohi same day ·
    where she was medically examined by Dr. (Mrs.) Santosh Kohali, PW 6 at
    10.30 PM. ·or. Kohali found the girl in semi-conscious state and her general
    condition was poor. Her pulse was 100 per minute. On external examina-
F   tion the doctor found hymen completely torn and there was laceration on
    all side of her vagina. There was fresh bleeding. On internal examination
    doctor noticed that a finger could be easily inserted in her private part.
    The blood stained discharge was coming out. In the opinion of the doctor
    the girl was subjected to sexual intercourse.

G          4. At the trial the appellant adjured his guilt and pleaded false
     implication. He took the plea that he was a barber by profession and since
     he had left shaving the beards of the complainant and the witness and,
     there being party bandi in the village he was falsely implicated on that
     account. The appellant, however, led no evidence in defence. The learned
H    Trial Judge relying on the evidence of the .solitary witness Ram Lakhan,
                      STATEv. BABUL[FAIZANUDDIN,J.]                         603

    PW 1 supported by the medical evidence found the appellant guilty for the A

.
"
    offence he was charged with and, therefore, convicted and sentenced him
    accordingly as said above. On appeal by the respondent, the High Court
    took a different view of the medical evidence as well as the evidence of the
    sole eye-witness Ram Lakhan, PW 1. The High Court was of the opinion
    that from the medical evidence a reasonable probability was made out that B
    the girl was subjected to indecent assault and it was not proved beyond
    reasonable doubt that she was subjected to sexual intercourse. With regard
    to the sole eye-witness Ram Lakhan, the High Court took the view that he
    lodged the report in the Police Station after more than 5 hours of the
    incident and the explanation for the delay in lodging the report was
    fabricated and that his evidence on two important facts was contradictory C
    to the written report lodged by him and that his evidence in court is not
    consistent with the First Information.Report and the statement made under
    Section 161 Cr. P.C. on these premises the High Court reversed the
    findings and recorded the order of acquittal of the respondent.
                                                                                    D
          5. At the very out set we may mention that in an appeal under Article
    136 of the Constitution this Court does not normally reappraise the
    evidence by itself and go into the question of credibility of the witnesses
    and the assessment of the evidence by the High Court is accepted by the
    Supreme Court as final unless, of course, the appreciation of evidence and      E
    finding is vitiated by any error of law of procedure or found contrary to
    the principles of natural justice, errors of record and mis-reading of the
    evidence, or where the conclusions of the High Court are manifestly
    perverse and unsupportable from the evidence on record. In the instant
    case, on a close scrutiny of the evidence on record particularly the state·
    men! of the eye-witness Ram Lakhan, PW 1 as well as the medical evidence        F
    and the law relating to the commission of offence of rape, we are of the
    definite view that the High Court fell into serious error in holding that the
    victim of this case was subjected only to an indecent assault and was not
    subjected to sexual intercourse. As regards the evidence of Ram Lakhan,
    PW 1 and his reliability, the High Court faultered in assessing him evidence    G
    correctly as well as in holding that he was not a reliable witness resulting
    into grave injustice.


        6. While appreciating the evidence of the lady doctors Smt. Kohali,
    PW 6 the High Court observed that the lady doctor conceded that the H
    604                   SUPREME COURT REPORTS [1994] SUPP. 2 S.C.R.

A   injuries found on the private part of the girl could also be caused by
    instrument like a piece of glass and on that basis took the view that the
    opinion of the lady doctor that rape was committed on the girl becomes
    doubtful. This finding is wholly unwarranted and perverse for the reason
    that simply because the injuries found on the private part of the girl could
    also be caused in several other ways than the sexual assault on the victim
B   cannot lead to the conclusion that the injuries on her private part were not
    sustained by commission of the rape but by some other instrument in the
    absence of any material to support such a conclusion. In the present case
    though the doctor deposed that the injuries could also be caused by
    instrument like piece of glass but there were neither circumstances nor any
c   material to conclude or even to suggest that the victim had sustained the
    injuries by any piece of glass. No piece of glass was found at or near the
    place of occurrence. On the contrary there is positive and convincing
    evidence showing that there was sexual assault on the girl and the finding
    that she was subjected only to indecent assault is absolutely incorrect.
D
           7. In order to see whether there was sexual assault on the girl we may
    have a look to the medical evidence. Doctor Smt. Santosh Kohali deposed
    that the victim girl was brought in the hospital in a semi-conscious state
    and her general condition was poor. On external examination of the girl
    the doctor found that the hymen was completely torn and there was
E   laceration on all sides of vagina. The doctor noticed that there was fresh
    bleeding in her private part. On internal examination the doctor found that
    a finger could easily be inserted in her privat~ part and blood stained
    discharge was coming out. Thus from the medical evidence it is clear that
    the girl was not only subjected to an indecent assault but there was sexual
F   activity and the girl was subject to sexual assault, otherwise the doctor
    would not have found the hymen completely tom, laceration on all sides
    of the vagina and fresh bleeding. There is yet another factor which goes to
    show that the girl was subjected to sexual intercourse. According to the
    evidence of lady doctor a finger cold be easily inserted inside her private
    part which otherwise was not possible in the case of a child aged 5 years
G   because according to the Medical Jurisprudence by Modi, 21st Edn. Page
    376, in a girl under 14 years of age the vaginal orifice is usually so small
    that it will hardly allow the passage of the little finger through her hymen.
    In the present case if the girl aged 5 years was not subjected to sexual
    intercourse the finger .could not have been easily inserted in her private
H   part as observed by the lady doctor. The High Court totally ignored this
                   STATEv. BABUL[FAIZANUDDIN,J.]                           605

aspect of the matter also and on wrong premises came to the conclusion A
that the victifil was subjected to indecent assault only.

       8. It may here be notice that section 375 of the l.P.C. defines rape
 and the explanation to Section 375 reads as follows : ·

         "Explanation: Penetration is sufficient to constitute the sexual          B
         intercourse necessary to the offence of rape."

 From the explanation reproduced above it is distinctly clear that in-
 gredients which are essential for proving a charge of rape are the ac-
 complishment of the act with force and resistance. To constitute the              C
 offence of rape neither Section 375 of l.P.C. not the explanation attached
 thereto require that there should necessarily be complete penetration of
 the penis into the private part of the victim/prosecutrix. In other words to
 constitute the offence of rape it is not at all necessary that there should be
 complete penetration of the male organ with emission of semen and
 rupture of hymen. Even partial or slightest penetration of the male organ         D
 within the labia majora or the vulva or pudenda with or without any
 emission of semen of even an attempt at penetration into the private part
 of the victim would be quite enough for the purpose of Section 375 and
 376 of I.P.C. that being so it is quite possible to commit legally the offence
 of rape even without causing any injury to the genitals or leaving any            E
 seminal stains. But in the present case before us as noticed above there is
 more than enough evidence positively showing that there was sextial activity
 on the victim and she was subjected to sexual assault without which she
 would not have sustained injuries of the nature found on her private part
 by the doctor who examined her.
                                                                                   F
        9. Now coming to the evidence of the sole eye-witness Ram Lakhan,
  PW 1 we find that the observations of the High Court that he fabricated
  the explanation for delay in lodging the report and that he is not a reliable
  witness .are not correct. It may be pointed out that the gid Nirmala Devi
  was totally a stranger for informant Ram. Lakhan PW 1, and the other
  persons who attended on her when she was found lying in semi-conscious           G
  state with injuries on her private part with profused bleeding. Ram Lakhan
· deposed that he, along with others took the girl and proceeded on foot to
  the Police Station. They first tried to trace out the identity of the girl and
  her parentage and then managed for {Khatola (Small cot) oil which the
  girl could be taken to the Police Station which was at a distance of about       H
    606                  SUPREME COURT REPORTS [1994) SUPP.2S.C.R.
                                                                                   I
A 3-4 Kms. from the place of occurrence, he stayed for some time near his
  village on the expectation that some more villagers may also join them for
  taking the victim to the Police Station. Ram Lakhan categorically stated
  that scores of persons arrived and he has also given the names of some of
  the persons. They proceeded to the Police Station where he lodged a
B written report. According to Ram Lakhan about 5-6 hours were spent in
  all this before reaching the Police Station. There appears to be no apparent
  reason for fabricating the explanation for the delay in lodging foe report
  which was· bound to occur in the fact and circumstances stated above.

          10. The evidence of Ram Lakhan has been held to be unreliable as
C the High Conrt found that his statement was not consistent with the report
   lodged by him and the statement made to the police under Section 161 Cr.
   P.C. But strangely enough the High Court lost sight of the fact that F.I.R.
   or the written report is not substantive piece of evidence but it can be used
   only to corroborate or contradict the maker thereof. Ram Lakhan, PW 1
D was not confronted with the alleged inconsistent statement contained in his
   report or in'his case diary statement under Section 161 Cr. P.C.,yet the
   High Court relied on those statements which is not permissible under the
   law unless inconsistent statements were put to the witness. In these cir-
   cumstances the reasons on the basis of which the High Court found Ram
   Lakhan as unreliable witness could not be accepted as the High Court
E made a wrong approach while appreciating the evidence of Ram Lakhan,
   Ram Lakhan deposed that while he and other persons were passing from
   near the grove of Baleshwar Pathak they heard the cries of the girl and,
   therefore, they rushed to the place. It took about 5-10 minutes to them to
   reach at the place of occurrence inside the grove and it appears that during
p this period of 5-10 minutes the respondent would have completed his
   sexual activity on the girl. According to the statement of Ram Lakhan when
   he reached into the grove and near the place of occurrence he saw the
   respondent running away from. the place of oceurrence arranging his Dhoti
   and the girl was found in semi-conscious condition in a pool of blood. This
   statement of Ram Lakhan is corri>borated from the medical evidence that
G we have already discussed in the earlier part of this judgment. Thus, the •
   evidence of Ram Lakhan PW 1 has to be accepted as the same has been
   corrobora.ted by the medical evidence. Not only this but even the other
 . witness who turned hostile, namely, Jokhan Ram PW 2, has also admitted
   that the girl was found in a semi-conscious condition and that he alongwith
H several persons iii.eluding .the witness Ram Lakhan, PW 1 had taken the
                  STATEv. BABUL[FAIZANUDDIN.J.]                        607

 unknown girl on a Khatola to the Police Station where Ram Lakhan had         A
lodged the written report. He also stated that they had reached the Police
Station at about 8.30. In view of these facts and circumstances the High
Court fell into a serious error in taking the view that the explanation for
the delay in lodging the report was fabricated or that the girl was not
subjected to sexual intercourse. The evidence of Ram Lakhan coupled with
                                                                              B
the medical evidence clearly goes to establish that the respondent was
responsible for sexual assault on the child Nirmala aged about 5 years
resulting into serious injuries "on her private part and, therefore, he was
rightly convicted and sentenced by the learned Trial Judge. The Judgment
of the High Court is based on surmises and conjectures and its apprecia-
tion of the medical. evidence is absolutely faulty. The acquittal of the      c
respondent was totally unmerited the such unmerited acquittals, particular-
ly in crimes against girl child encourage the criminals. The Courts have,
therefore, to be sensitive while dealing with such cases but the High Court
in this case appears to be far from being sensitive while appreciating the
material on the record.
                                                                              D
       11. In the facts and circumstances narrated above the appeal suc-
ceeds and is hereby allowed. The judgment and order of acquittal recorded
by the High Court is set aside and the judgment of the Trial Court holding
the respondent guilty for the offence punishable under Section 376 and
imposing a sentence of 5 years' rigorous imprisonment is restored. The E
respondent shall be taken into custody to serve the sentence. His bail bond
is hereby cancelled.

R.P.                                                      Appeal allowed.