STATE OF TAMIL NADUversusRAVI @NEHRU

A                           STATE OF TAMIL NADU
                                      v.
                               RAVI @NEHRU

                                   JULY 4, 2006

B                     [H.K. SEMA AND A.K. MATHUR, JJ.]


           Penal Code, 1860-Section 376-Rape of a minor girl aged 5 years-
    Doctor ·who examined the victim girl (P W-6) stated that the hymen of girl was
C   ruptured, however opined that male organ could not have penetrated the
    girl's vagina-Doctor who examined accused (PW-5) stated that the cut wound
    on the penis of accused might have been caused when penis was forced into
    the vagina-Conviction by trial court-Set aside by High Court-On appeal,
    Held: Finding of High Court is perverse and inconsistent with evidence on
    record-Evidence of victim is corroborated by eyewitness and other witnesses-
D   Ocular evidence is well corroborated with the medical evidence-High Court
    committed grave miscarriage ofjustice in recording acquittal by disbelieving
    the testimony of victim girl on the ground that her testimony was not
    corroborated by PW-6 and also by not noticing the testimony of PW-5.

          According to prosecution, accused took PW-2, victim girl aged 5
E   years to a roora and after removing her underwear pressed his male organ
    on her female organ. She cried in pain, on hearing which, two persons
    came there and scoldled the accused. The accused then ran away.
    Thereafter, the prosecutrix went to her house sobbing and narrated the
    story to her mother PW-I. PW-1 washed her clothes, which contained
F   bloodstains and gave her bath with the help of PWs 8 and 9. PWs 8 and
    9 also washed her sexuial organ. She took PW-2 to government hospital.
    PW-6, In-charge of the government hospital after examining PW-2 stated
    that she was in a conscious state of mind, there were no external injuries,
    there were no blood stains on her dress, there was no injuries on her female
G   organ but hymen was ruptured and there were no fresh bleedings from
    the female organ. PW-6, however, opined that the penis would not have
    gone inside the girl's 'Vagina and that there was no sign of rape. PW-5,         '·
    Asstt. Medical Officer examined accused the next day and found some cut
    on the bottom portion of his penis.

H                                        156
                 STATE OFT AMIL NADU v. RA VI@ NEHRU                    157
     Trial Court found accused guilty of rape. High Court set aside            A
conviction holding that the statement of prosecutrix is not corroborated
by the evidence of PW-6. Hence the present appeal.

      Allowing the appeal, the Court

        HELD: 1. The finding of the High Court is absolutely perverse and      B
  inconsistent with the evidence on record. First of all no opinion could be
 given by PW-6 that there was nc sign of rape. Regarding non presence of
  blood stains on her vaginal part and on her wearing apparel, it is the
  categorical testimony of PWs 1, 8 and 9 that the prosecutrix was given
  bath, her vagina was washed and her wearing apparel was washed before        C
  taking her to doctor. PW-6 having recorded that hymen of the vagina was
  torn was not justified in giving an opinion that the male organ would not
. have penetrated into the young girl's vagina. [16~-C-D]

       2. The High Court has completely overlooked the testimony of PW-
5, Asstt. Medical Officer who conducted the medical test on the accused.       D
The accused was 22 years old and the prosecutrix was about 4 to 5 years
old. It is well-established principle that when a fully developed man has
committed sexual assault with a minor girl aged about 4 or 5 years there
is likelihood of an injury being caused on the penis. PW-5 found that there
was cut wound at the bottom of penis of the accused and when the cut
wound was pressed bloodstain was there. He further stated that the penis       E
of the accused was fully developed and he possessed virility. Doctor further
opined that there was a possibility of cut wound of the kind of accused
when the penis is forced into the vagina. It is unfortunate that this stark
testimony of PW-5 against the accused for which he has no explanation,
has escaped the notice of the High Court. [162-E, G-H; 163-A]
                                                                               F
      Madan Copa/ Kakad v. Naval Dubey, [1992] 3 SCC 204, referred to.

      Modi in Medical Jurisprudence and Toxicology (Twenty First Edition);
Parikh 's Textbook of Medical Jurisprudence and Toxicology; Encyclopaedia
of Crime and Justice (Vol.4), referred to.
                                                                               G
      3.1. It is now well-accepted principle of law that conviction can be
founded on the testimony of the prosecutrix alone unless there are
compelling reasons for seeking corroboration. It is also well accepted
principle of law that corroboration as a condition for judicial reliance on
the testimony of the prosecutrix is not a requirement of law but a guidance    H
    158                       SUPREME COURT REPORTS (2006) SUPP. 3 S.C.R.

A of prudence. The woman or a girl subjected to sexual as~ault is not an
    accomplice to the crime but is a victim of another person's lust and it is
    improper and undesirable to test her evidence with a certain amount of
    suspicion treating her as if she were an accomplice. (164-A-B(

          3.2. The evidence of a victim of sexual assault stands on par with
B evidence of an injured witness. Just as a witness who has sustai!led an
    injury is the best witness in the sense that he is least likely to ex cul pate
    the real offender, the evidence of a victim of a sex-offender is entitled to
    great weight, absence of c:orroboration notwithstanding. (164-DJ

          4. The evidence of PW-2 the prosecutrix remains unimpeached.
C There is no iota of evidenc:e or even a suggestion that the accused has been
    falsely implicated because of animosity. Similarly, the evidence of PW-2
    has been corroborated by the evidence of PWs-1, 3, 5, 6, 7, 8 and 9. In
    the present case, the ocular evidence of PWs is well corroborated with the
    medical evidence. The statement of the prosecutrix was also well
D   corroborated by PW-3 who was at the place of incident. The High Court
    unfortunately disbelieves the creditworthy testimony of this witness as
    artificial and unnatural. Thus, the High Court committed grave
    miscarriage of justice in recording acquittal by reversing the conviction
    recorded by the Trial Court. (164-E, 161-E, G-H; 164-FJ

E         State of Punjab v. Gurmit Singh, (1996) 2 SCC 384; Ranjit Hazarika
    v. State ofAssam, (1998) 8 SCC 635 and Bharwada Bhoginbhai Hirjibhai v.
    State of Gujarat, AIR (1983) SC 753, relied on.

         CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 582
    of 2000.
F
           From tht) Judgment and Order dated 8.7.1999 of the High Court of
    Jud.icature at Madras, in Cr!. Appeal No. 768 of 1992.

          Subramonium Pras.ad, Abhay Kumar, Jai Kumar and R. Gopal Krishna
G for the Appellant.
          S. Arvind and V. Balachandran for the Respondent.

          The Judgment of the Court was delivered by

          H.K. SEMA, J. 'fbis appeal is preferred by the State of Tamil Nadu
H
         STATE OF TAMIL NADUv. RAVl@NEHRU [H.K. SEMA, J.]                ] 59

against the judgment and order dated 8. 7.1999 passed by the High Court. The    A
respondent-accused Ravi @ Nehru was convicted by the Trial Court for an
offence under Section 376 IPC and sentenced to seven years rigorous
 imprisonment and a fine of Rs.2,500/- and in default to undergo rigorous
 imprisonment of 2 years. Aggrieved thereby he preferred Criminal Appeal
No.768 of 1992 before the High Court. The High Court by the impugned
judgment and order has set aside the order of conviction and acquitted the      B
accused. Hence this appeal by special leave.

     Briefly stated the prosecution's case is as follows:-

      On 23.10.1989 at about 3.30 p.m. PW-2 Arthi (victim girl) aged about C
five years was going to her aunt's house along with other children. At about
4.00 p.m. she came running to her house and informed her mother PW-I that
the accused took her to the bed room of his house and after removing her
underwear and his pant placed her on his lap and pressed his male organ on
her female organ. She cried in pain. On hearing her cry, two persons who
were watching television in the front room of the house came there and D
scolded the accused. PW- I the mother of the victim girl removed all the
clothes of PW-2, which according to her contained blood stains. She also
washed her clothes and gave a bath to her daughter with the help of PWs 8
and 9. Thereafter, she took PW-2 along with PWs 8 and 9 to H.P.F. Hospital
where PW-7 Dr. Gavaramma was working. PW-7 then advised them to take
the victim girl to a nearby government hospital. After the arrival of the father E
of the victim girl at the house PW-2 was taken to the government Hospital,
Udhagamandalam at about 10.30 p.m. She was then referred to children's
hospital. PW-6 Dr. Radhabhai who was in charge of the government hospital
examined PW-2 at about 11.00 P.M. PW-6 stated that at the time of
examination, the victim girl was in a conscious state of mind, there were no F
external injuries, there were no blood stains on her dress, there was no injuries
on her female organ but hymen was ruptured and there were no fresh bleedings
from the female organ.

     PW-5 Dr. Lakshmanan examined the accused on 24.10.1989 at about
12.30 p.m. and found the following injuries on him:-                            G
       "I.There were bloodstains both on the top portion and in the middle
       portion of the brief of the accused.

       2. His penis was 3 inches in length and his urinary opening was
       normal and there were no external injuries.                              H
    160                       SUPREME COURT REPORTS [2006) SUPP. 3 S.C.R.

A           3. There was cut wound at the bottom portion of his penis. When
            pressed at the place of this cut wound, bloodstain was there. There
            was no sign of fresh semen. Except this cut wound on the penis, there
            is no injury anywhere around the penis. There were not bloodstains
            on the pubic hair, which were Yi inch long. Scrotum was normal.
            When the frontal portion was pressed, there was no oozing of blood.
B           His penis was well-developed and he possesses virility. The certificate
            which I gave was the 4th documents. There is possibility for a cut
            wound of the above sort to cause when the penis is forced into the
            vagina. This cut wound might have caused before 12 hours of and
            within 24 hours of the medical test performed by me. The certificate
c           which I gave this effect was document 5. As the blood sample of the
            accused has to be tested, I directed for the same. Test results showed
            that his blood group is ?RH-Positive."

            In re-examination lne stated:

           "Chances for causing such type of cut wounds are possible usually
D
           when the penis is in erect condition."

          In the course of the Trial the prosecution examined as many as 14
    witnesses. Exhibits P-1 to P-19 were marked and M.Os. I to 6 were also
    produced before the Court. No defense witness was examined on behalf of
E   the accused. The plea of the accused was total denial. The Trial Court on
    appreciation of the evidence and documents on record found him guilty and
    sentenced him as aforestated.

        PW-2, the prosecutrix has stated in examination in chief that she was
  studying in UKG and on the fateful day after the school was over she went
F to her aunt's house (father's sister's house) at about 2 p.m. On the way the
  accused accosted her and took her stating that they would watch TV. She
  further stated that there were two other persons watching TV and the accused
  took her to another room and made her sit on his lap. The accused then
  removed his pant and brief and also removed the prosecutrix's brief. The
G accused pressed his sexual organ on her sexual organ. Then she started weeping
  and the other two brothers scolded the accused. The accused then ran away
  by putting his pant and shirt. Thereafter, the prosecutrix after putting her
  brief went to the house sobbing. She narrated the story to her mother. She
  also stated that on seeing her coming sobbing her mother fainted and fell
  down and then PW-8 Kamalam and PW-9 Rani received her clothes and
H drenched them in water. She further stated that PWs 8 and 9 also washed her
         STATE OF TAMIL NADUv. RAVI@NEHRU [H.K. SEMA, J.)                  161

sexual organ. Her statement was well corroborated by PWs I, 3, 6, 7, 8 and        A
9.

      At this stage, we may notice the evidence of PW-7 Dr.Gavaramma
before whom she was first taken by PW-I and PW-8 Kamalam. PW-7 stated
that when the prosecutrix was brought by PW-I and one lady name Kamalam,
her mother was weeping and the prosecutrix was also weeping. PW-7 advised         B
them to go to Government Hospital. PW-7 further stated that the small girl
was crying due to pain. PW-7 further stated that the prosecutrix's vagina was
reddened.

      PW-6 Dr.Radhabahi was functioning as Asst. Civil Surgeon in the
government maternity hospital. She examined the prosecutrix on 23 .10.1989        C
at about 11.00 p.m. PW-6 found that there were no external injuries; there
were no stains in her dresses. The skin-like tissue called hymen in her vagina
was torn. There was no fresh oozing of blood. There was no oozing of blood
around her vagina. PW-6 further stated that she did not know as to when the
hymen was tom. She further stated that no external injury would be caused         D
during the sexual intercourse. The doctor further opined that the penis would
not have gone inside the girl's vagina.

      It will clearly appear from the testimony of PW-6 that the hymen of the
prosecutrix was torn. PW-6, however, opined that the penis would not have
gone inside the girl's vagina. we· are totally at a loss as to how this opinion   E
would have been.recorded when the doctor categorically stated that hymen
in the vagina of the prosecutrix was found torn.

       It will be noticed that the statement of the prosecutrix was also well
corroborated by PW-3 who was at the place of incident. PW-3 is Sundaram.          F
He has stated that he along with the accused and another person Anand went
to the house of the sister of accused to watch cricket match. At about 3.30
pm the accused went outside and came back with PW-2 (the prosecutrix).
The accused took PW-2 to a room inside. On being questioned he told the
girl's name was Arthi. After five minutes they heard crying sound from
inside the room. He and Anand went inside the room and saw the accused            G
without pant and underwear and the prosecutrix's underwear was also removed.
The accused had made the prosecutrix to sit on his lap and on seeing their
entry the accused released her. The High Court unfortunately disbelieves the
creditworthy testimony of this witness as artificial and unnatural.

     The High Court disbelieves the testimony of PW-2 the prosecutrix on          H
    162                      SUPREME COURT REPORTS (2006] SUPP. 3 S.C.R.

A the ground that her statement has not been corroborated by PW-6 Asst.Civil
  Surgeon who examined the prosecutrix in Govt. Maternity Hospital on
  23.10.1989. According to the High Court, the statement of the prosecutrix is
  not corroborated by the evidence of PW-6 as there were no external injuries,
  there were no blood stains on her dress, there was no injury on her female
B organ, hymen was ruptured and there was no fresh bleeding from the private
  parts. The doctor admitted that she was not in a position to state as to how
  the hymen of the girl was torn. She further stated that the male organ would
  not have penetrated in a young girl's vagina. The doctor further opined that
  there was no sign of rape. In our view, the finding of the High Court is
  absolutely perverse and inconsistent with the evidence on record. First of all
C no opinion could be given by this doctor that there was no sign of rape.
  Regarding non presence of blood stains on her vaginal part and on her wearing
  apparel it is the categorical testimony of PWs I, 8 and 9 that the prosecutrix
  was given bath, her vagina was washed and her wearing apparel was washed
  before taking her to doctor. PW-6 having recorded that hymen of the vagina
  was torn was not justified in giving an opinion that the male organ would not
D have penetrated into the young girl's vagina.

          That apart, the High Court has completely overlooked the testimony of
    PW-5 Dr.Lakshmanan, Asstt. Medical Officer who conducted the medical
    test on the accused Ravi on 24.10.1989. On examination PW-5 found a cut
E   wound at the bottom portion of his penis. When pressed at the place of this
    cut wound, bloodstain was present. The doctor further opined that his penis
    was well developed and he possess.ed virility. The doctor further opined that
    there was a possibility for cut wound of the above sort to have been caused
    when the penis is forced into the vagina. Doctor further opined that this cut
    wound might have been caused bdore 12 hours of and within 24 hours of
F   the medical test. In re-examination doctor clarified that chances for causing
    such type of cut wounds are possible usually when the penis is in erect
    position.

        Facts on record established that the accused was 22 years old and the
  prosecutrix was about 4 to 5 years old. It is well-established principle that
G when a fully developed man has committed sexual assault with a minor girl
  aged about 4 or 5 years there is likelihood of an injury being caused on the
  penis. PW-5 found that there was cut wound at the bottom of penis of the
  accused. He further stated that wh,:n the cut wound was pressed bloodstain
  was there. He further stated that the penis of the accused was fully developed
H and he possessed virility. Doctor further opined that there was a possibility
         STATE OF TAMIL NADU v. RA VI @NEHRU [H.K. SEMA, .I.]                163
of cut wound of the kind of accused when the penis is forced into the vagina.       A
It is unfortunate that this stark testimony of PW-5 against the accused for
which he has no explanation, has escaped the notice of the High Court.

      In the case of Madan Gopal Kakkad v. Naval Dubey, [ 1992] 3 SCC
204, the accused was charged with the rape of minor girl of eight years. This
Court held that even slightest penetration of penis into vagina without rupturing   B
the hymen would constitute rape.

      We may also notice 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        D
       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           E
       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."

       In Parikh 's Textbook of Medical Jurisprudence and Toxicology, the           F
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 the offence
       of rape without producing any injury to the genitals or leaving any          G
       seminal stains."

     In Encyclopedia a/Crime and Justice (Vol. 4) at page 1356, it is stated:

       " ... even slight penetration is sufficient and emission is unnecessary."
                                                                                    H
    164                       SUPREME COURT REPORTS (2006] SUPP. 3 S.C.R.
                                                                                       ;
A          It is now well-accepted principle of law that conviction can be founded
    on the testimony of the prosecutrix alone unless there are compelling reasons
    for seeking corroboration. It is also well accepted principle of law that
    corroboration as a condition for judicial reliance on the testimony of the
    prosecutrix is not a requirement of law but a guidance of prudence. The
B   woman or a girl subjected to sexual assault is not an accomplice to the crime
    but is a victim of another person's lust and it is ·improper and undesirable to
    test her evidence with a certain amount of suspicion treating her as if she
    were an accomplice. [See State of Punjab v. Gurmit Singh, [1996] 2 SCC
    384].

c 635, this
        So also in the case of Ranjit Hazarika v. State of Assam, (1998) 8 SCC
            Court observed that non-rupture of hymen or absence of injury on
    victim's private parts does not belie the testimony of the prosecutrix.

          The evidence of a victim of sexual assault stands on par with evidence
    of an injured witness. Just as a witness who has sustained an injury is the best
D   witness in the sense that he is least likely to exculpate the real offender, the
    evidence of a victim of a sex-offender is entitled to great weight, absence of
    corroboration notwithstanding. [See Bharwada Bhoginbhai Hirjibhai v. State
    of Gujarat, AIR (1983) SC 753.

          Reverting back to the facts of the present case the evidence of PW-2
E   the prosecutrix remains unimpeached. There is no iota of evidence or even
    a suggestion that the accused has been falsely implicated because of animosity.
    Similarly, the evidence of PW-2 has been corroborated by the evidence of
    PWs-1, 3, 5, 6, 7, 8 and 9. In th<: present case, the ocular evidence of PWs
    is well corroborated with the medical evidence.

F         Thus, the High Court committed grave miscarriage of justice in recording
    acquittal by reversing the conviction recorded by the Trial Court. The
    impugned order of the High Court dated 8.7.1999 is accordingly set aside.
    The conviction recorded by the Trial Court is restored. This appeal is
    accordingly allowed. The respondent Ravi @ Nehru shall be taken back into
G   custody forthwith to serve out the remaining part of the sentence. Compliance
    report within one month.

    D.G.                                                          Appeal allowed.