The judgment is about a rape of a minor where appeal of accused was rightly denied. All the courts starting from sessions court, High court, and Supreme Court have examined the statements, evidences etc and they all point to the crime. Any sexual intercourse with girl less than 16 years old is automatically defined as Rape as per Sec 375, (5)
But the disturbing part is the unnecessary statement in the judgment that an Indian woman will not lie about rape. I will cover that issue separately. Here is the full judgment below with the particular statement in bold.
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.1798 OF 2008
Wahid Khan …..Appellant
State of Madhya Pradesh …..Respondent
J U D G M E N T
Deepak Verma, J.
1. A minor girl aged about 12 years was subjected to
rape by the appellant on 14th October 1988. The appellant was
charged and prosecuted for commission of offence under
Sections 366 and 376 of the Indian Penal Code (for short,
‘IPC’) and the co-accused Sneh Lata was charged under
Sections 342 and 366, IPC in the Court of III Additional
Sessions Judge, Bhopal in Sessions Case No.53/89.
2. Judgment was pronounced in the said Sessions Case on
17th May 1991 wherein and whereby co-accused Sneh Lata was
acquitted of the charges levelled against her, but the
appellant was found guilty of commission of offence under
Section 376, IPC and was awarded seven years’ rigorous
imprisonment. Insofar as the charge levelled against him
under Section 366 was concerned, he was acquitted by the said
3. Feeling aggrieved by the said judgment of conviction,
appellant preferred Criminal Appeal No.548 of 1991 in the
High Court of Madhya Pradesh at Jabalpur. Learned Single
Judge, after considering the matter from all angles, came to
the conclusion that the findings recorded by the learned
Sessions Judge were based on material evidence available on
record, thus, proceeded to confirm the findings of guilt as
also the punishment awarded to him by judgment dated 29th
4. It is against this judgment, the present criminal
appeal by special leave has been preferred by him.
5. Facts, which are in short compass, are mentioned
6. Although the prosecutrix-P.W.1 was resident of
Gadarwara, she had come to Bhopal about four months prior to
the date of occurrence. In Bhopal, she was staying with her
relative. She had gone to an Ayurvedic Hospital for
treatment where she came in contact with acquitted co-accused
Sneh Lata, who showered love and affection on her. Thus,
she was allured by Sneh Lata and went to stay with her. The
record shows that she was kept in wrongful confinement at her
house. She used to be beaten up and was not allowed to leave
the house. Many boys and girls used to visit the said house
of Sneh Lata.
7. On 14th October 1988, she gave Rs.10/- to the
prosecutrix, with which the prosecutrix went to Bhopal
Talkies to watch the matinee show. After the movie, when she
came out of the theatre, she found a few boys standing there
who started teasing her. In the meanwhile, the appellant-accused Wahid
came there in his auto who voluntarily offered
to help her. She requested him to drop her to her relative’s
place but instead of taking her to the house of relative of
the prosecutrix, he proceeded towards airport via Lal Ghati.
She tried to stop the accused from proceeding in the wrong
direction, but, he continued to ply the auto-rickshaw. In
the darkness, near bushes he stopped the auto and used filthy
language against her. He also threatened to kill her if she
raised hue and cry. After gagging her mouth, he took her to
the nearby bushes and removed her under-garments. He also
removed his pants and under-garments and committed rape on
her. At that very point of time, some sharp light came
followed by two police personnel coming there and catching
him red-handed while performing intercourse with the
8. Both of them were taken to the Bairagarh Police
Station where FIR (Exh. P-1) was lodged by the prosecutrix.
She was sent for her medical examination and accused was also
sent for his medical examination.
9. After usual investigation, chargesheet was filed
against appellant and co-accused Sneh Lata for commission of
offences as mentioned hereinabove for which they were tried
and upon completion of trial, the appellant was found guilty
for commission of offence under Section 376 of the IPC.
10. The conviction of the appellant is founded on the
evidence of P.W.1-prosecutrix as also the evidence of P.W.3-
B.B. Subba Rao, Sub-inspector who had caught him red-handed while he
was committing rape. Medical report dated 15th
October 1988 of the prosecutrix is on record. It records
that her hymen was found to be in tact whereas her private
part admitted only tip of little finger with difficulty. In
the opinion of Dr. B. Biswas who had examined her, no
intercourse was done with her. But, for determination of her
age, she was sent to Forensic Department of Hamidia Hospital.
Dr. B. Biswas has not been examined by the prosecution.
11. At the time of medical examination of the
prosecutrix, her medical history was recorded, marked at
Exh.P-9 which categorically records the manner in which the
appellant had committed rape on her.
12. P.W.1-prosecutrix had initially not supported
prosecution case and was declared hostile. But, on being
confronted with her statement recorded under Section 161,
Code of Criminal Procedure, she narrated the true and correct
story and the manner in which rape was committed on her. She
has categorically deposed that the appellant removed her
underwear, lied on her, put his male organ into her private
part and was moving up and down. According to her, he
committed bad act with her. It is mentioned by her that on
account of rape having been committed by the appellant, she
was not being called by her parents. She has also proved her
FIR which was recorded on 14th October 1988.
13. To corroborate the evidence of prosecutrix,
prosecution has examined I.O. (P.W.3-B.B. Subba Rao), Sub-
inspector of Police Station Bairagarh. According to him, on 14th October
1988 he was on field duty with regard to
investigation of some other case and he received an
information that an auto driver was going in an auto at about
8 O’clock in the evening with a girl towards airport road.
According to him, on search, auto was found in abandoned
condition on a secluded road. The police officer has stated
that he suspected some foul-play and went in search of the
owner of the same. What is mentioned by him is that near the
bushes, he found the auto-rickshaw parked by the side of the
road and appellant committing rape on the prosecutrix.
According to him, the appellant was caught red-handed.
14. In his cross-examination conducted by learned counsel
for the appellant, which is more suicidal, he has deposed
that both of them were found to be in compromising position
and were naked below the waist. It is mentioned by him that
the appellant was lying on the prosecutrix and was indulging
in sexual intercourse and he had seen the incident in the
light of the vehicle in which he was travelling. According
to him, the site of incident was 2-3 furlongs away from the
main road and as soon as the appellant was caught, stood up
and was found in a perplexed condition. He has further
stated that they thereafter put on their clothes and were
brought to the police station, where FIR was lodged by the
prosecutrix. According to him, his auto-rickshaw was seized
on the same day and he was apprehended on next day.
15. Perusal of the record would show that Exh.P-1 (FIR)
was lodged by the prosecutrix herself on the date of the
incident on 14th October 1988 at the police station soon after
the incident. When she was sent for medical examination, she
again narrated rape on her by the appellant before the
medical officer which finds place in her medical report
Exh.P-9. Thus, the testimony of the prosecutrix stands
corroborated by her FIR and contents of Exh.P-9. To further
corroborate aforesaid evidence, the statement of P.W.3-B.B.
Subba Rao fully establishes that it was Wahid Khan who had
committed rape on the prosecutrix. As mentioned hereinabove,
whatever little lacunae was there in the prosecution story,
has been cured in his cross-examination.
16. Cumulative reading of the aforesaid would prove
beyond shadow of doubt that it was the appellant who had
committed offence of rape on minor girl and had completely
17. Shri Fakhruddin, learned senior counsel appearing for
the appellant strenuously contended before us that keeping in
mind the medical report of the prosecutrix reflecting her
hymen was still in-tact, would be indicative of the fact that
no intercourse was at all committed on her. According to
him, looking to the totality of the facts and features of the
case and the evidence available on record, at best, it would
establish a case wherein the appellant could have been
convicted only under Section 354 of IPC but no case was made
out for his conviction under Section 376 thereof.
18. On the other hand, Shri Sidhartha Dave, learned
counsel appearing along with Ms. Vibha Datta Makhija for the
respondent-State contended that even if full penetration had
not been there, slight penetration itself is sufficient and
would complete the offence of rape as contemplated under
Section 375 of the IPC and thus both the courts below were
justified in finding him guilty under Section 376 of IPC and
awarding him punishment accordingly.
19. The law on the point is now too well settled. No
doubt, it is true that Dr. B. Biswas, who had initially
conducted the medical examination of the prosecutrix, has not
appeared on behalf of the prosecution to depose. But, that
alone is not sufficient to discard the prosecution story.
Corroboration is not the sine qua non for conviction in a
20. In this regard, the most celebrated observations of
Justice Vivian Bose in the case of Rameshwar v. State of
Rajasthan AIR 1952 SC 54 may be quoted :
“The rule, which according to the cases has
hardened into one of law, is not that corroboration
is essential before there can be a conviction but
that the necessity of corroboration, as a matter of
prudence, except where the circumstances make it safe
to dispense with it, must be present to the mind of
21. It is also a matter of common law that in Indian
flowing therefrom. If she is found to be false, she would be
looked by the society with contempt throughout her life. For
groom. Therefore, unless an offence has really been
committed, a girl or a woman would be extremely reluctant
even to admit that any such incident had taken place which is
likely to reflect on her chastity. She would also be
conscious of the danger of being ostracized by the society.
It would indeed be difficult for her to survive in Indian
society which is, of course, not as forward looking as the
western countries are.
22. Thus, in a case of rape, testimony of a prosecutrix
stands at par with that of an injured witness. It is really
not necessary to insist for corroboration if the evidence of
the prosecutrix inspires confidence and appears to be
23. However, in the case in hand, even without the
examination of doctor, the evidence of prosecutrix stands
fully corroborated by the evidence of P.W.3-B.B. Subba Rao,
Sub-inspector of the police station who had virtually caught
the appellant red-handed. Thus, even if doctor had not been
examined it would not throw or completely discard the
prosecution story. The evidence of prosecution witnesses is
fully trustworthy and there is no reason to doubt genuineness
24. It was also contended by learned counsel for the
appellant that since hymen of the prosecutrix was found to be
in tact, therefore, it cannot be said that an offence of rape
was committed on her by the appellant. This contention
cannot be accepted as offence of rape has been defined in
Section 375 of the IPC. Explanation to Section 375 reads thus :
“Explanation. – Penetration is sufficient to
constitute the sexual intercourse necessary to the
offence of rape.”
25. It has been a consistent view of this Court that even
a slightest penetration is sufficient to make out an offence
of rape and depth of penetration is immaterial.
26. It is appropriate in this context to reproduce the
opinion expressed by Modi in Medical Jurisprudence and
Toxicology (Twenty Second Edition) at page 495 which reads
“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 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 to the effect
whether there is evidence of recent sexual activity.
Whether the rape has occurred or not is a legal
conclusion, not a medical one.”
27. Similarly in Parikh’s Textbook of Medical
Jurisprudence and Toxicology, ‘sexual intercourse’ has been
defined 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.”
28.If the aforesaid facts are kept in mind, it cannot be
disputed that the act of the appellant would certainly
constitute an offence of rape and leaves no amount of doubt
in our mind.
29.Learned counsel for the appellant placed reliance on a
recent judgment of this Court reported in (2007) 12 SCC 57
Radhu v. State of Madhya Pradesh to contend that since
evidence of prosecutrix was not corroborated, the appellant
should be extended benefit of doubt. Even after going
through the said judgment critically we do not find that
any benefit can be extended to the appellant. In the said
case, there were several serious discrepancies in the
evidence of the prosecutrix which prompted the Court to
call for corroboration. In the present case, there is
consistency in the evidence of prosecutrix, which stands
corroborated by the evidence of P.W.3-B.B. Subba Rao. He
had no axe to grind against the appellant.
30.In this case, the version of the prosecutrix right from
lodging of the FIR, till her examination by the doctor and
till she deposed in court, had been absolutely consistent.
Not only this, to corroborate further, the evidence of
P.W.3-B.B. Subba Rao is also on record who had caught the
appellant red-handed which fully establishes that it was
the appellant who had committed offence of rape. 31.Thus, looking to the
matter from all angles, we are of the
opinion that there is no merit or substance in this appeal.
The same is accordingly hereby dismissed.
December 01, 2009.