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SUPREME COURT OF INDIA
R. BANUMATHI, VINEET SARAN, JJ.
State of Madhya Pradesh - Appellant
Versus
Preetam - Respondent
Criminal Appeal No. 2229 of 2011
Decided On : 29-08-2018
(Para 9)
(2007) 12 SCC 122 – Relied upon
(b) Indian Penal Code, 1860 – Section 375 – Rape – With or without consent of prosecutrix if she is aged below 16 years – Instantly her age of 12 years as per school record not believed by courts below as the person admitting prosecutrix in school was not examined – Held, it is not possible in each and every case to examine such person – However, medical evidence putting her age between 13 - 17 years – Held, it could therefore be at the most 15 years – Therefore High Court erred in reversing conviction by trial court. (Para 12, 13)
(c) Criminal trial – Delay in lodging FIR – Not fatal to prosecution case if duly explained. (Para 14)
(d) Indian Penal Code, 1860 – Section 376 – Sentence – Occurrence of 1993 – Minimum sentence of 7 years – Could be reduced for special reasons – Having regard to the passage of time and other facts and circumstances of the case, sentence of imprisonment of seven years reduced to a period of four years. (Para 16)
Facts of the case:
On 6th March, 1993 at about 9.00 p.m. the prosecutrix along with her two sisters i.e. Hirkanbai and Anitabai had gone outside the village to a field to attend nature’s call and while returning back the respondent-accused is alleged to have forcibly taken the prosecutrix to the field and committed rape on her.
Since the Moti Ram (PW-2) who is father of Hirkanbai (PW3) and also uncle (chacha) of the prosecutrix was not in the village, on his return a complaint was lodged on 8th March, 1993. The prosecutrix was medically examined on 9th March, 1993.
The trial court convicted the respondent-accused under Section 376 I.P.C. and sentenced him to undergo imprisonment for a period of seven years.
On appeal, the High Court has reversed the verdict of conviction.
Finding of the Court;
Impugned judgment cannot be sustained.
Result: Appeal preferred by the State allowed.
JUDGMENT :
R. Banumathi, J.
1. This appeal arises out of judgment and order dated 6th January, 2010 passed by the High Court of Madhya Pradesh at Jabalpur in Criminal Appeal No.228 of 1995 in which the High Court reversed the verdict of the conviction under Section 376 I.P.C. and also the sentence of imprisonment of seven years and acquitted the respondent-accused.
2. Despite service of notice, the respondent has not chosen to appear and contest this appeal. Accordingly Ms. Nidhi, Advocate, has been appointed by the Supreme Court Legal Services Committee as amicus to contest the appeal on behalf of the respondent.
3. We have heard Ms. Swarupama Chaturvedi, learned counsel appearing for the appellant-State and Ms. Nidhi, learned amicus, and also perused the impugned judgment and the evidence/materials on record.
4. The facts of the case in a nutshell are as follows. On 6th March, 1993 at about 9.00 p.m. the prosecutrix (PW-1) along with her two sisters i.e. Hirkanbai (PW-3) and Anitabai had gone outside the village to a field to attend nature’s call and while returning back the respondent-accused is alleged to have forcibly taken the prosecutrix to the field and committed rape on her.
5. Since the Moti Ram (PW-2) who is father of Hirkanbai (PW3) and also uncle (chacha) of the prosecutrix was not in the village, on his return a complaint was lodged on 8th March, 1993. The prosecutrix was medically examined on 9th March, 1993 by Dr. U.S. Vasnik (PW-6), who has noted that the hymen of prosecutrix was torn; swelling was present on the edges of torn hymen. Dr. U.S. Vasnik (PW-6) has opined that though vagina of the prosecutrix was admitted two fingers easily, the prosecutrix felt pain and the doctor (PW-6) has opined that the prosecutrix was subjected to sexual intercourse within 2-3 days of examination.
6. Based upon the evidence of prosecutrix (PW-1) and Mangrulal (PW-4) who went to the place of occurrence after having been told by Anita and saw the accused running from there and also on the evidence of Dr. U.S. Vasnik (PW-6), the trial court convicted the respondent-accused under Section 376 I.P.C. and sentenced him to undergo imprisonment for a period of seven years.
7. On appeal, the High Court has reversed the verdict of conviction on the grounds:-
(i) There was no external injury on the person of prosecutrix (PW-1) which is indicative of her consent for the sexual intercourse and, therefore, the story of forcible rape does not find support from the medical evidence;
(ii) There was delay in registration of the FIR.
8. As pointed out earlier as per PW-6-Dr. Vasnik’s evidence the hymen of the prosecutrix (PW-1) was torn and swelling was present in the vagina having redness. Doctor has noticed that even though vagina admitted of two fingers, the prosecutrix felt pain which is suggestive that the prosecutrix was subjected to sexual intercourse only in the occurrence.
9. It is fairly well-settled that in the absence of external injury on the person of the prosecutrix, it cannot be concluded that the incident had taken place with the consent of the prosecutrix. It depends upon the facts and circumstances of each case. In B.C. Deva alias Dyava v. State of Karnataka, (2007) 12 SCC 122, this Court has held that absence of injury on the person of the victim of rape does not lead to an inference that the accused did not commit forcible sexual intercourse. It was further held that even in the absence of external injury, the oral testimony of the prosecutrix that she was subjected to rape, cannot be ignored.
10. In the present case evidence of prosecutrix (PW-1) is supported by the medical evidence and also by the evidence of Mangrulal (PW-4) who saw the accused running away from the scene of occurrence. Insofar as the consent of the prosecutrix (PW-1) pointed out by the High Court is concerned, we find it difficult to agree with the view taken by the High Court. In her chief examination, Dr. U.S. Vasnik (PW-6) has stated that the age of the victim cou
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