Madan Gopal
Kakkad Vs. Naval Dubey & Anr [1992] INSC 140 (29 April 1992)
Pandian,
S.R. (J) Pandian, S.R. (J) Fathima Beevi, M. (J)
CITATION:
1992 SCR (2) 921 1992 SCC (3) 204 JT 1992 (3) 270 1992 SCALE (1)957
ACT:
Indian
Penal Code, 1860 :
Ss.
375, 376-Rape-Accused-Medical graduate-Causing slight penetration into vulva of
8 years girl without rupturing hymen-Medical evidence indicating hymen intact,
abrasion on medial side of labia majora and redness around labia minora-Offence-Whether
constituted rape-Trial court not accepting prosecution evidence recorded
acquittal-Appeal against acquattal-High Court held victim's evidence
satisfactory and found sufficient corroboration on material aspects, believed
extra-judicial confession of accused being voluntary not obtained by force,
coercion etc., but accepted victim's evidence in part, convicted accused under
s. 354 and sentenced him to fine of Rs. 3000 only-Legality of- Conviction
altered to one under s. 376 by Supreme Court.
penology-Sexual
assault on female children-Accused committed rape on 8 years
girl-Conviction-Sentence to commensurate with gravity of offence.
Indian
Evidence Act, 1872 :
S.
24-Extra-judicial confession-Corroboration-Whether necessary.
S.
45-Expert opinion-Medical witness-Evidence of- Whether of advisory
character-Legal opinion of witness as to nature of offence-Whether can be
accepted.
Code
of Criminal Procedure, 1973 :
S.
378-Appeal against acquittal-High Court's jurisdiction-Whether plenary and
unlimited to review the entire evidence.
^ The
respondent, a medical graduate, was indulged in gratifying his animated
passions and sexual pleasures by sexually assaulting and molest- 922 ing young
girls.
HEAD NOTE:
The
victim girl (PW. 13) aged about 8 years was the daughter of the neighbour of
the respondent. She was a friend of respondent's niece and both the children
used to play together. According to the prosecution case, on the fateful day
when respondent's niece and PW. 13 with her younger brother were playing in
respondent's drawing hall, and there was no one else in the house, the
respondent sent his niece with younger brother of PW. 13 outside. He bolted the
door from inside, completely stripped off himself, made PW. 13 completely naked
and asked her to do fellatio.
Thereafter
he slightly inserted his penis into her vulva and lay over her. After sometime
he freed the child. While she was leaving the drawing hall, the respondent
threatened her not to disclose his affairs to anyone. She, however, narrated
the incident to respondent's niece.
In the
evening PW. 13 told her mother (PW. 6) that the respondent had asked her to
suck his private part. She did not narrate the whole incident out of fear. The
next day when PW. 13 and respondent's niece were talking of the incident, their
friend PW. 12 came there. PW. 13 narrated the incident to her and other girl
friends. On the third day, PW. 13 told the entire incident to her mother who
conveyed it to her neighbours PWs. 9 and 10 on telephone. At about 9 p.m. when
the appellant (PW.5), the father of the victim girl, returned home and learnt
about the occurrence, he accompanied by PWs. 7,9 and 10 went to respondent's
house, but he was not there and they informed the brother and sister-in-law of
the respondent of the purpose of their visit. They all waited there till midnight when the respondent came. The respondent, assessing
the situation, voluntarily confessed his crime. He admitted that he raped PW.
13 and also committed the same crime on earlier occasions with his niece and
other minor girls, but being a doctor he had been careful enough not to rupture
their hymen. The brother of the respondent begged of PW. 5 and others not to do
anything till the arrival of his parents.
Next
morning when respondent's parents reached, he again admitted his abominable
crime of sexual assault on PW. 13.
It
took 2-3 days more to PW. 5 to get a written complaint (Ext. P.7) lodged with
the police through PW. 8.
The
police investigation culminated in the trial of the respondent for an offence
of rape committed on PW. 13.
The
trial court held that the prosecution against the respondent was launched due
to some enmity between the two families and that the 923 prosecution did not
adduce any acceptable evidence for holding the respondent guilty of offence
under s. 376 IPC.
It
accordingly acquitted the respondent.
The
State filed an appeal an against the acquittal before the High Court. The
complainant-appellant also filed a criminal revision challenging the legality
of the order of acquittal. On the basis of an artical relating to the incident
published in a foreign magazine, a petition was addressed to the Chief Justice
of India with a copy to the Chief Justice of the High Court concerned and on
its basis another criminal revision petition was registered. The High Court
disposed of all the three cases by a common judgment.
It
accepted the oral testimony of prosecution witnesses and the extra-judicial
confession made by the respondent. It, however, held the respondent guilty of
an offence under s.
354
IPC and sentenced him to pay a fine of Rs. 3,000 only.
The
complainant-appellant filed the appeal by special leave to this Court. The
State did not file any appeal.
It was
contended on behalf of the appellant that the High Court erred in holding the
respondent guilty of a minor offence under s. 354 IPC when all the necessary
ingredients to constitute an offence punishable under s. 376 IPC had been
satisfactorily established; and the sentence of fine alone imposed was grossly
inadequate and not commensurate with the gravity of the offence committed by
the respondent.
Allowing
the appeal and setting aside the judgment of the High Court, this Court,
HELD :
1. The prosecution has satisfactorily established its case that the respondent
committed rape on PW. 13 by proving all the necessary ingredients required to
make out an offence of rape punishable under Section 376 IPC. [p. 947 B]
2.
When the evidence of PW. 13-that the respondent put his male organ inside her
vagina and clutched her and thereafter she suffered pain-is taken with the
evidence of medical officer who found an abrasion on the medical side of labia majora
and redness present around the labia minora with white discharge even after 5
days, it can be safely concluded that there was partial penetration within the
labia majora or the vulva or pudenda which in the legal sense is sufficient to
constitute the offence of 924 rape. Moreover, the respondent himself confessed
twice admitting the commission of rape without rupturing the hymen which
confession is not disbelieved by the High Court. [p. 946 C; E-F] 3.1. The
evidence of PW. 13 is amply corroborated not only by the medical evidence and
the evidence of PW. 12 but also by the plenary confession of the respondent
himself.
[p.
947 A]
3.2
Even in cases wherein there is lack of oral corroboration to that of a prosecutrix,
a conviction can be safely recorded, provided the evidence of the victim does
not suffer from any basic infirmity, and the `probabilities factor' does not
render it unworthy of credence, and that as a general rule, corroboration
cannot be insisted upon, except from the medical evidence, where, having regard
to the circumstances of the case, medical evidence can be expected to be
forthcoming. [pp. 939 GH; p. 940 A] Rameshwar v. State of Rajasthan, [1952] SCR 377;
Bharwada
Bhoginbhai Hirjibhai v. State of Gujarat, [1988] 3 SCC 217; Krishan Lal v. State of Haryana, [1980] 3 SCC 159, referred to.
4.1 In
order to constitute an offence of `Rape' as envisaged by the first Explanation
to s. 375 IPC, while there must be penetration in the technical sence, the
slightest penetration would be sufficient and a complete act of sexual
intercourse is not at all necessary. [p. 945 D-H] Parikh's Textbook of Medical
Jurisprudence and Toxicology; Encyclopedia of Crime and Justice (Vol.4) at page
1356; Halsbury's Statutes of England and Wales (Fourth Edition) Volume 12;
Harris's Criminal Law (Twenty Second Edition) at page 465; Gaur's "The
Penal Law of India" 6th Edn. (Vol. II) p. 1678; Code 236 of Penal Code of
California, referred to. R.v.Hughes, [1841[ 9 C & P 752; R.v. Lines, [1844]
1 Car & Kir 393; R.v. Nicholls, [1847] 9 LTOS 179; Natha v. Emperor, 26 Cr.L.J.
[1925] page 1185; Abdul Majid v. Emperor, AIR 1927 Lahore 735 (2); Mussammat Jantan v. The
Crown, [1934] Punjab Law Reporter (Vol. 36) p. 35; Ghanashyam
Mishra v. State, [1957] Cr.L.J. 469 AIR 1957 Orissa 78; D. Bernard v. State,
[1974] Cr.L.J. 1098; Prithi Chand v. State of Himachal Pradesh, [1989] 1 SCC
432; In re Anthony, AIR 1960 Mad. 308, referred to.
4.2 In
the instant case there is acceptable and reliable evidence that 925 there was
slight penetration though not a complete penetration. [p. 946 B]
4.3.
The medical officer was of the opinion that the abrasion measuring one and a
half inches in length found on the medial side of the labia majora and the
redness around the labia minora could have been caused on the date of incident.
[pp. 942 H; 943 A] Merely because the inexperienced medical officer has opined
that it was an attempt to commit rape, probably on the ground that there was no
sign of complete penetration, her legal opinion as to the nature of the offence
committed by the respondent cannot be accepted. (p. 943 CD]
4.4. A
medical witness called in as an expert to assist the Court is not a witness of
fact and the evidence given by the medical officer is really of an advisory
character given on the basis of the symptoms found on examination.
The
expert witness is expected to put before the Court all materials inclusive of
the data which induced him to come to the conclusion and enlighten the Court on
the technical aspect of the case by explaining the terms of science so that the
Court although, not an expert may form its own judgment on those materials
after giving due regard to the expert's opinion because once the expert's
opinion is accepted, it is not the opinion of the medical officer but of the
Court. [p. 943 D-F] R. v. Ahmed Ali, 11 WR Cr. 25; Pratap Misra v. State of Orissa, AIR 1977 SC 1307, referred to.
Medical
Jurisprudence and Toxicology, (Twenty First Edition) by Modi, referred to.
5. Law
does not require that the evidence of an extra- judicial confession should in
all cases be corroborated.
However,
the confession of the respondent is amply corroborated by the evidence of the
victim (PW. 13) whose testimony in turn is corroborated by PWs. 5, 6, 7, 9 and
10 and also by the medical evidence. [p. 939 B-C] Piara Singh v. State of Punjab, [1978] 1 SCR 597, referred to.
6. In
view of s. 378 of the Code of Criminal Procedure, 1973 (corresponding to s. 417
of the old Code), in cases of appeals against acquittal as a matter of
jurisdiction, the whole case is at large for review by the High Court both as
to the facts and the law and it is clothed with the plenary 926 powers to go
through the entire evidence and to come to its own conclusions of guilt or
otherwise of the indicted persons as the established facts warrant and to award
appropriate sentence which will be commensurate with the gravity of the offence
in case of conviction.
[pp.
940 DE; 941 EF] Sheo Swarup and others v. King Emperor, AIR 1934 PC 227 (2) Wilayat
Khan & Others v. State of U.P., AIR (2), 1953 S.C. 122; Surajpal Singh and
others v. The State, [1952] SCR 193; Tulsi Ram v. The State, AIR 1954 S.C.I.; Aher
Raja Khima v. State of Saurashtra, [1955] 2 SCR 1285; Radha Kishan v. State of
U.P., [1963] Supp. 1 SCR 408; Jadunath Singh and others, etc. v. State of Uttar
Pradesh, [1971] 3 SCC 577; Dharam Das v. State of U.P., [1973] 2 SCC 216; Barati
v. State of U.P., [1974] 4 SCC 258 and Sethu Madhavan Nair v. State of Kerala,
[1975] 3 SCC 150, referred to.
7.1.
The findings of the High Court, rendered in exercise of its appellate
jurisdiction are findings of fact which cannot be reopened in appeal especially
when the respondent has not challenged those findings and when there is
absolutely no reason muchless compelling reason for holding that those findings
are either in utter disregard of the evidence or unreasonable and perverse or
any part of the evidence in favour of the respondent is jettisoned. [p. 936 FG]
7.2. Although the High Court was fully satisfied with the evidence of the
victim PW. 13 and found sufficient corroboration on all material particulars
from the evidence of PWs. 5, 6, 9, 10 and 12 and held the extrajudicial confession
given by the respondent as true and made voluntarily and not obtained by any
inducement, coercion or threat and that there could be penetration without
rupture, yet, having accepted the entire prosecution evidence in toto, it
committed an error in entertaining a doubt with regard to the accusation of
rape holding that there was no sign of injuries and that the offence was not
one punishable under s. 376 IPC or under s. 376 read with s. 511 IPC but only
one under s. 354 IPC. [p. 936 A-C] 7.3. The High Court even after observing
that "the respondent's activities were menace to the neighbours" has
shown a misplaced sympathy to the respondent which has led to the miscarriage
of justice. The finding that the offence is one of outraging the modesty of
woman for which sentence of imprisonment is not compulsory is erroneous and
untenable. [p. 942 A-C] 927
8. Having
regard to the seriousness and gravity of the repugnant crime of rape
perpetrated on PW. 13 who was 8 years old on the date of the commission of the
offence, while convicting the respondent under Section 376 IPC he is sentenced
to undergo rigorous imprisonment for a period of seven years and to pay a fine
of Rs. 25,000 to the victim girl. [p. 948 B-C]
9.
Though all sexual assaults on female children are not reported and do not come
to light yet there is an alarming and shocking increase of sexual offences
committed on children. This is due to the reasons that children are ignorant of
the act of the rape and are not able to offer resistence and become easy prey
for lusty brutes who display the unscrupulous, deceitful and insidious art of
luring female children and young girls. Therefore, such offenders who are
menace to the civilised society should be mercilessly and inexorably punished
in the severest terms. [p. 948 EF] A.R. Antulay v. R.S. Nayak and Another,
[1988] 2 SCC 602 at page 673, referred to.
CRIMINAL
APPELLATE JURISDICTION : Criminal Appeal No. 447 of 1988.
From
the Judgment and Order dated 5.9.1986 of the Madhya Pradesh High Court in
Criminal Appeal No. 1023/83.
Ms.
Pinky Anand and D.N. Goburdhan for the Appellants.
B.P.
Singh and umanath Singh for the Respondents.
The
Judgment of the Court was delivered by S. RATNAVEL PANDIAN, J. The factual
matrix leading to the filing of this appeal which is quite simple gives an
account of a sordid and obnoxious incident wherein the respondent, a medical
practitioner who had created a private hell of his own was gratifying his
animated passions and sexual pleasure by sexually assaulting and molesting young
girls not only in utter disregard of the universal moral code, human dignity,
his professional ethics and values but also in flagrant violation of the law of
the country.
The
brief facts of this shameless intrigue as unravelled by the prosecution at the
trial are as follows:
928
The respondent/accused who just then graduated from the Medical College was
staying with the family consisting of his parents, his brothers, his
sister-in-law Smt. Tara Dubey and niece Richa Dubey, who is the daughter of the
respondent's step-brother Niraj Dubey, in Adarsh Nagar, Jabalpur. His father Bhagwan
Dass Dubey (DW-2) was a retired Professor and his sister-in-law Tara Dubey
(DW-1) was a lecturer. His another elder brother at the relevant time of this
occurrence was working as Superintendent of Police in Rajgarh District.
Opposite to his house at some distance Satish Bhasin (PW-9) and Sapna Bhasin
(PW-10) were residing with their minor daughter Priti. Within the same locality
3 or 4 houses away from the house of the respondent/accused, the appellant Madan
Gopal Kakad (PW-5) was living with his wife, a German lady, by name, Elesabeth Kakad
(PW-6), his sister Veera (PW-7) and his minor daughter Tulna Sheri (PW-13), a
girl aged about 8 years and his younger son Pulkit. The family members of the
respondent and PW-5 were on cordial relationship making frequent visits to the
houses of each other.
Tulna
Sheri (PW-13) the unfortunate victim in this case was studying in the third
standard in St. Joseph Convent along with her class-mate Richa Dubey. Tulna
used to come frequently to the house of the respondent to play with Richa Dubey
and her other girl friends. Tarun Lata Joshi (PW-12) was living with her father
who was a tenant in the house of PW-5.
According
to the prosecution, the respondent who had a crush on young girls used to
develop friendship with the girls who used to come to his house to play with
his niece Richa Dubey by narrating interesting stories from comic books. On the
day of this deplorable incident, i.e. on 2.9.1982 at about 4 or 5 p.m. Richa Dubey called Tulna (PW- 13) stating that her mother
wanted her. Accordingly Tulna wearing underwear and jeans accompanied by her
younger brother Pulkit went to the house of Richa, but found none except the
respondent. The respondent found fault with Tulna for having come there in
jeans accompanied by her brother. When the two girls, namely, Tulna and Richa
started playing in the drawing room, the respondent whispered something in the
ears of Richa, who then told Tulna that she had been asked by her uncle (the
respondent) to take Pulkit outside and narrate him some stories and that the
respondent would `make love', presumably meaning that he would tell some lurid
tales of sex to her thereby stimulating immoral thoughts so that Tulna might
fall a prey to his lewd and lascivious behaviour. As soon as Richa went outside
taking Pulkit, 929 the respondent bolted the door from inside, completely
stripped off himself; removed the jeans and underwear of Tulna and made her
naked and asked Tulna to do fellatio, that is to suck his penis. Thereafter the
respondent cuddled and pined Tulna close to him, and slightly inserted his
penis into her vulva and started sucking her lips.
Within
a few seconds, he ejaculated and freed the girl from his clutches and
thereafter put on his pyjamas and asked Tulna to wear her jeans. Again the
respondent longing for his lascivious passion, laid down Tulna on a sofa in his
drawing room and remained lying on her and closed her mouth so that the girl
could not scream. A little later after wetting his sexual appetite he got up;
opened the door allowed the girl to go out. While the girl was leaving the
drawing hall, the respondent threatened her not to disclose his affair to anyone,
otherwise his elder brother who is a high ranking police office would
mercilessly beat her parents. Tulna came out of the room and told Richa as to
what all happened inside the room.
In the
evening of that day she told her mother (PW-6) that the respondent was a dirty
fellow and he had asked her to suck his private part, to which PW-6 instructed
not to go to the house of respondent thereafter. However, Tulna did not narrate
the entire episode to her mother on the day of the incident evidently out of
fear. When Tulna again narrated this incident to Richa, the latter told her
that her Chacha, referring to respondent, was like a dog and that he used to do
the same thing with her also by stripping of her whenever she came from the
school and whenever she was lying on her bed and further told that the
respondent when asked as to why Tulna and Priti are in fair complexion, her chacha
replied that their complexion is fair because they sucked his male organ and
that if Richa also did the same thing she would also become very fair in her
complexion. PW- 12, Tarun Lata Joshi, who was present nearby seeing Tulna and Richa
whispering each other asked them what was the matter. Tulna narrated the
incident to her and other girl friends. On the next day, seeing the respondent
standing near the gate of his house Tulna repeated the same remark to her
mother (PW-6). Thus on the third day, Tulna told her mother the entire incident
which took place in the drawing hall of the house of the respondent on
2.9.1982.
On
hearing this horrid episode, PW-6 was very much annoyed and conveyed this
painful and jarring piece of information to PW-7 (Veera). Then PW-6, reeling
under terrible shock, telephoned to her neighbours 930 PWs 9 and 10 and
informed them about the sexual abuse perpetrated by the respondent on her
daughter. At about 9.00 p.m. the appellant, Madan Gopal (PW-5) came to his
house and learnt about the occurrence. Faced with the traumatic situation, the
helpless panic stricken parents who have been so deeply disturbed by the dehumanising
act of the respondent rushed with boiling blood to the house of the respondent
accompanied by PWs 7, 9 and 10 and searched for the respondent, but could not
find him there. They then informed the purpose of their visit to the elder
brother and sister-in-law of the respondent who told PWs 5 and 6 that the
respondent had gone to a cinema hall and they would send the respondent's
younger brother to fetch him. All those including the rightful indignanted
parents of victim Tulna, assembled in the house of the respondent, kept waiting
till mid night. The respondent after returning from the theatre realising that
the entire atmosphere was thick with the charge of sexual molestation against
him and finding him in culde-sac voluntarily confessed his crime stating that
he had raped Tulna and also had committed the same kind of sexual assault on
earlier occassions with Richa, Priti and other girls of that locality, but
being a Doctor he had been careful enough not to repture their hymen. When PW-5
on being acerbated and mentally perturbed on hearing the confessional statement
rushed towards the respondent to attack him, respondent's brother and
sister-in-law fell at the feet of PW-5 and pathetically beseeched not to do
anything till the arrival of the parents of the respondent in the next morning.
Coming
to know to the arrival of the father of the respondent Bhagwan Dass (DW-2) with
his wife on the next morning, Madan Gopal, (PW-5) along with PWs 6, 9 and 10
met DW-2 who took strong objection for PW-5's behaviour on the last night. When
PW-5 informed DW-2 that his son (respondent) had raped his minor daughter Tulna,
DW-2 was not prepared to believe their accusation. Thereafter at the request of
PW 5, he called his son and questioned him.
Though
the respondent first abjured his complicity, however, admitted his abominable
crime of sexual assault on Tulna. Thereupon Bhagwan Dass gave his stick to Madan
Gopal and said that it was for PW 5 either to show mercy or to give corporeal
punishment as he deemed fit and also made an earnest appeal to PW-5 not to
precipitate any action against his son. Presumably, PW-5 and his family members
thinking that the police might not take any action against the respondent since
his brother was a Superintendent of Police and his family was wielding a high
influence in that area and also fearing that any publicity 931 of this incident
would bring only a disrepute to their family and that the future life of their
daughter would be completely shattered, suffered in silence for 2 or 3 days,
without approaching any authority. However, on 7.9.1982 PW- 5 mustered his
strength and decided to lodge a criminal complaint against the respondent.
Accordingly, he handed over a written complaint Ext. P-7 to his friend. Subhash
Bhujbal (PW-8) and got it delivered at the police station.
On the
strength of Ext. P-7 a case was registered by the SHO of Goprakhpur Police
Station (PW-11) and the investigation was entrusted to ASI (PW-14). During the
course of the investigation the victim Tulna (PW-13) was examined by Dr. Chitra
Tiwari (PW-4) on 7.9.82 on being sent by the police. According to PW-4 there
was an abrasion on the medial side of Labia Majora about 1-1/2" in length,
redness present around the labia minora with a white discharge, and hymen was
intact and admitted tip of little finger. PW-4 has opined that an attempt to
rape had been made. Ext. P-6 is the medical certificate. PW-4 has further
stated that she prepared a slide for confirmation of the white discharge found
around labia minora. In the cross-examination she has deposed that the white
discharge was not flowing out, but it was at the same place where she noticed
the redness and the discharge could have been as a result of infection which
itself could have caused the redness found around labia minora. Further she has
stated that she did not find any crest on labia majora. The Chemical Examiner
after examination of the slide, sent his report Ext. P-13 which did not reveal
any seminal stains in the virginal smear. PW-2, a Medical Officer examined the
respondent on 13.9.82 and found him as a virile person with well built body
capable of performing sexual inter-course, but found no injuries on his person.
The Investigating Officer after examining all the witnesses and completing the
investigation filed the charge sheet against the respondent for the offence of
rape punishable under Section 376 IPC.
The
respondent took his trial on the indictment that he committed rape on Tulna
between 4 and 5 p.m. on 2.9.82 in the drawing hall of
the house of respondent. The totality of the evidence on the basis of which the
prosecution rests its case consists of three categories, namely, (1) the oral
testimony of the PW-13 corroborated by PWs 6 and 12; (2) the extra-judicial
confession made by the respondent on two occassions; and (3) the medical evidence.
Of the witnesses examined Tulna (PW-13) alone speaks about the actual
commission of rape on her. Though Tulna reported this unpleasant incident to Richa
immediately after coming out of the drawing 932 hall, Richa has not been
examined by the prosecution obviously for the reason that Richa is none other
than the niece of the respondent himself. The next set of corroborating
witnesses who speak about the victim's reporting about the incident are PW 6
and 12. On the evening of the date of incident even though Tulna reported to
her mother that the respondent was a bad man and that he asked her to suck his
penis, she did not reveal the other part of the incident relating to the
commission of the rape obviously fearing that her parents would beat her. It
was only on the third day, the mother (PW-6) came to know from Tulna about the
actual incident, presumably after the victim girl started reporting this
incident to PW-12 and to her other playmates. The second category of evidence
is the extra-judicial confession made by the respondent before PWs 5, 6, 7, 9
and 10 in the house of the respondent himself after he had been sent for from
the cinema hall. According to the above witnesses, this confession was made not
only in their presence, but also in the presence of the respondent's brother
and sister-in-law (DW-1). (It is but natural that the brother and sister-in-law
of the respondent would not figure as witnesses on the side of the prosecution
and depose against the respondent.) According to the witnesses the confession
made by the respondent was thus:
"I
have raped the girl, but I have not ruptured her hymen. You should not be
perplexed, I know what are my limits, I am a doctor. You need not to go to any
doctor." Thereafter on the next day morning the respondent made the
similar confession before his parents in the presence of PWs 5, 6, 9 and 10
when PW-5 asked the respondent to tell the truth before his father by catching
hold of him. On the two occasions the respondent confessed in English "I
have raped the girl but not ruptured her hymen". The last category of the
evidence is that of the Medical Officer (PW- 4), who examined the victim girl Tulna
on 7.9.1982 and opined that there was an attempt of rape on Tulna.
The
Trial Court for the discussions made in its judgment arrived at a conclusion
that the prosecution launched against the respondent on account of some enmity
between the two families and that the prosecution has not adduced any
acceptable evidence for holding the respondent guilty of the offence under
Section 376 IPC and consequently acquitted the respondent. The reasons,
assigned by the Trial Court for such a conclusion 933 are based on its
following findings:
(1)
The evidence of PWs 5, 6, 7, 9 and 10 is highly tainted and as such no safe
reliance can be placed on their testimony.
(2)
The extra-judicial confession which the respondent had retracted cannot be said
to be free from threat, coercion or promise.
(3)
The extra-judicial confession as such seems to be unnatural and it is wholly
the product of an illegal advice and false fabrication.
(4)
The evidence of the victim (PW-13) is not corroborated by other independent
evidence.
(5)
The First Information Report has been belatedly lodged and there is no
reasonable explanation for such a delay.
On
being aggrieved by the judgment of the Trial Court acquitting the respondent,
the State preferred an appeal before the High Court challenging the order of
acquittal.
It is
seen from the judgment of the High Court that the complainant who is the appellant
before this Court also filed a revision in Criminal Revision No. 596/83
questioning the legality of the order of acquittal and further one Jay Rao of
New York (U.S.A.) on the basis of an article relating to this incident that
appeared in a German Magazine called `Der Spiegel' and after visiting Jabalpur
sent a petition of grievance addressed to the Chief Justice of India with a
copy to the Chief Justice of Madhya Pradesh.
On the
basis of this petition, another revision in criminal Revision No. 599/83 was
registered. The High Court disposed of the State appeal and the two criminal
revisions by a common judgment, whereby it allowed the State appeal for the
reasons assigned therein accepting the oral testimony of the prosecution
witnesses particularly of PWs 6, 12 and 13 and the extra- judicial confession
made by the respondent. Now separate orders were passed in the criminal
revisions. However, the High Court found the respondent guilty of the offence
only under Section 354 IPC and sentenced him to pay a fine of Rs. 3,000, in
default to suffer simple imprisonment for 6 months and also directed a sum of Rs.
2,000 out of the fine amount if collected to be paid over as compensation to
PW-5.
The
State has not preferred any appeal before this Court. However, 934 the father
of the victim girl, namely PW-5, feeling aggrieved by the judgment of the High
Court has filed this criminal appeal mainly on two grounds, namely, (1) The
High Court has erred in finding the respondent guilty of a minor offence under
Section 354 IPC when all the necessary ingredients to constitute an offence
punishable under Section 376 IPC have been satisfactorily established; (2) that
the sentence of fine alone imposed by the High Court under Section 354 IPC for
this serious offence is grossly inadequate and is not commensurate with the
gravity of the offence committed by the respondent. When the matter came up for
admission before this Court on 25.8.88, the following order was made:
"Special
leave granted, confined to the nature of the offence and the sentence to be
awarded." It is pertinent to note that the respondent has not challenged
the findings of the High Court by filing an appeal and as such the findings of
the High Court rendered with reference to the evidence adduced by the prosecution
and the conviction based upon those findings have reached their finality so far
as the respondent is concerned.
Before
pondering over the question with regard to the nature of the offence and the
quantum of punishment to be awarded, we feel that it is necessary to recall
some of the findings of the High Court.
1. The
High Court after observing, "there is no reason as to why a small innocent
girl would have laid such a serious charge against the respondent, if it was
not true", held that the evidence of Tulna has been materially
corroborated by her friend Tarun Lata (PW 12).
2.
Referring to the confession of the respondent, it has been held by the High
Court, "Though there can be penetration without rupture, the absence of
any sign of injuries, negatives a case of rape with a small girl".
3. As
regards the evidence of Tulna, the Court has held thus, "The statement of Tulna
can be safely accepted to the extend that the respondent after undressing
himself and Tulna, asked her to suck his organ and he then lay over her. She
has been fully corroborated by her mother Elsbeth, father Madangopal, 935
friend Tarun Lata and neighbours Satish and Sapna.
They
have no axe to grind against the respondent.
No
adverse inference can be drawn for lodging the report 5 days after the
incident."
4.
Then referring the corroboration required to the extra judicial confession made
by the respondent on two occasions, the High Court has recorded the following
observation:
"After
realising that his misdeeds have been exposed and he can no longer hide
himself, he had not option but to confess. This was only option left when he
was cornered by his own neighbours and
relations..............................There was no question of any coercion or
inducement in presence of his family members in his own
house......................The confession was nothing but by way of repentance
for the wrongs done to the young girls and other girls. It appears that the
respondent was a perverted person and was satisfying his sexual urge by outraging
modesty of young girls who fell easy prey to his designs."
5.
Commenting on the finding of the Trial Court as regards the confession, the
High Court has said, "The evidence of extra-judicial confession has not
been accepted because the witnesses have not repeated like parrots in the same
words what the respondent had uttered but the substance is the same i.e. the
respondent confessed that he had violated (sic) the girl but not ruptured her
hymen. Whether the witnesses said the same thing in Hindi or English would not
make any difference".
6.
Coming to the probity question of the evidence of Tulna, the Court said thus:
"Although
she was a child, she had modesty alright and was ashamed to tell everything to
her mother. She was also not sure what would be the reaction of her mother.
Therefore, there was hesitation on her part. But she did tell to her classmate Richa
and also to her friend Tarunlata (PW 12) about it on the next day. Tarunlata
has corroborated her,.....................We are also satisfied that Tarunlata
has deposed regarding what she was told by Tulna....................." 936
The above findings and observations made by the High Court clearly show that
the High Court was fully satisfied with the evidence of the victim Tulna (PW
13) and found sufficient corroboration on all material particulars from the
evidence of PWs 5, 6, 9, 10 and 12 and that the extra- judicial confession
given by the respondent was true and it was not obtained by any inducement,
coercion or threat but on the other hand it was voluntarily made and that there
could be penetration without rupture. Having accepted the entire evidence
adduced by prosecution in toto, the High Court nonetheless entertained a doubt
with regard to the accusation of rape holding there was no sign of injuries and
held that the offence is not one punishable under Section 376 IPC or under
Section 376 read with 511 IPC but only one under Section 354 IPC on the ground
that the respondent has outraged the modesty of Tulna by "feeling pleasure
in getting him and the victim made necked, asking unwary minor girls to fiddle
with his organ" taking advantage of the absence of the other adult family
members in his house.
Coming
to the question of sentence, the High Court gave the following reason:
"The
learned Govt. Advocate has nothing to say about the sentence. There can be no
doubt that the act of the respondent is most reprehensible, he was attempting
to corrupt innocent and unwary minor girls and his activities were menace to
the neighbours, but since he is now gainfully employed and there is nothing to
show that he is indulging in his nefarious activities, no useful purpose will
be served by again sending him to jail and sentence of fine will meet the ends
of justice." As we have pointed out in the preceding part of this
judgment, the findings of the High Court, rendered in exercise of its appellate
jurisdiction are findings of fact which in our opinion cannot be reopened in
this appeal especially when the respondent has not challenged those findings
and when there is absolutely no reason muchless compelling reason for holding
that those findings are either in utter disregard of the evidence or
unreasonable and perverse or any part of the evidence in favour of the
respondent is jettisoned. However, we would like to point out that the trial
court has allowed some inadmissible evidence to be let in by the prosecution
which evidence has also been taken note of and discussed by the Courts below,
such as the statement alleged to have been made by Richa (not examined) to Tulna
about the respondent's abnormal sexual behaviour with her 937 despite the fact
she falls within the prohibited degree of consanguinity and the evidence
touching the character of the respondent that he has sexually assaulted not
only Richa and Priti but also a number of minor girls. We, while analysing and
evaluating the evidence and considering the findings of the High Court quo the
sexual assault committed on PW 13 by the respondent, proceed only on the basis
of the evidence legally permissible without being influenced by the
inadmissible evidence and some of the observations made thereon by the Courts
below. Before expressing our independent opinion on the evidence, we give a
brief background of the status of the witnesses and the cordial relationship
between the family members of the respondent and the witnesses.
The
material prosecution witnesses are all highly educated and respectable people
of the same locality within which the houses of the respondent and the
witnesses are situated. PW 5, the father of the victim girl had been in Germany working in the field of journalism
for nearly 18 years and he is well conversant with English, Germany and Hindi languages. His wife PW 6
is a German lady who after having settled in India has learnt to speak in Hindi. PW 7, who is the sister of PW
5, is also a well educated lady working as a Teacher in a School. PW 6 was
enjoying the facility of a telephone connection in his house. PW 9, a
Contractor and his wife PW 10, who are the parents of Priti are very
respectable people enjoying a high social status and having their house near
about the house of the respondent, provided with all modern facilities
including telephone etc. It is said that the people in that locality inclusive
of the family members of the respondent used to visit their house to make use
of their telephone. In that way the family members of the respondent, PWs 5, 9
and others were having a very close and cordial relationship till this incident
occurred. As earlier pointed out, respondent's father was a retired Professor
and his elder brother was then occupying a key position in the Police Force in
the rank of a Superintendent of Police posted in the district of Rajgarh during
the relevant period. His sister-in-law (DW-1) was a Lecturer and his uncle was
a leading lawyer. It is said that the family of the respondent was wielding
high influence in that area. There is absolutely no evidence, even to remotely
suggest, that there was any enmity or any kind of misunderstanding between the
families of the respondent and PW 5 till this incident to raise the accusing
finger against the respondent either by the little innocent girl (PW 13) or by
PW 5 and to make this ignoble allegations at the risk of their family honour
and the future prospects of PW 13. Of 938 course, the respondent has suggested
a motive against PW 5 evidently drawing the same from the fertility of his
imagination that Tulna had told him that her parents were getting money for
spying for German Embassy and PW 5 after coming to know of this disclosure of
spying has fabricated this false story of molestation of his minor daughter
fearing that he would be exposed to criminal prosecution by the respondent's
brother, the Superintendent of Police which defence theory on the face of it
has to be thrown overboard and which in fact did not find acceptance at the
hands of the High Court.
Ms
Pinky Anand, the learned counsel appearing for the appellant having thoroughly marshalled
the facts, presented her persuasive submissions so eloquently in an effective
and at the same time in a very supplicatory manner by taking us through the
entire evidence very meticulously and pleaded that the spine-chilling facts and
the circumstances surrounding the case do demand the interference of this Court
with the judgment of the High Court so that the wrong done due to the erroneous
conclusion of the High Court may be remedied. Though Ms Pinky Anand initially
put forth her arguments on two alternative grounds, namely, that the conviction
should be altered into one under Section 376 IPC or the sentence of fine
imposed for the conviction under Section 354 IPC which is grossly inadequate
should be enhanced. But she left out the alternative argument and stressed the
first part of her submission that the offence made out is nothing short of rape
punishable under Section 376 IPC. At one point of time, she feebly stated that
at least the offence will be falling under Section 376 read with 511 IPC on the
opinion of PW 4, if not under Section 376 IPC which submission she completely
gave up subsequently and proceeded vehemently contending that the offence of
rape within the definition of Section 375 is clearly made out.
The
learned counsel appearing for the respondent took much pain in strenuously
opposing the plea, articulated by Ms Pinky Anand and in supporting the impugned
judgment. He urged that the conclusion arrived at by the High Court is the
reasonable and plausible one and, therefore, that conclusion need not be
disturbed.
Though
it is not necessary for us to enter upon a reappraisal or reappreciation of the
evidence since the findings of fact of the High Court have not been challenged,
yet we after most carefully and closely scrutinis- 939 ing the galaxy of the
proven facts, have no hesitation in agreeing with the High Court that the
extra-judicial confession made by the respondent which is not shown to have
been obtained by coercion, promise of favour or false hope etc. is plenary in
character and voluntary in its nature acknowledging his guilt-i.e. the gravely
incriminating fact of the commission of rape on Tulna-in precise and explicit
words. This confession has been made in presence of a body of person on two
occasions inclusive of the family members of the respondent as well as PWs 5,
6, 9 and 10. PW 7 was present only on the first occasion along with other
witnesses. As ruled by this Court in Piara Singh v. State of Punjab, AIR 1977 SC 2274 = [1978] 1 SCR
597 law does not require that the evidence of an extra-judicial confession
should in all cases be corroborated. However, coming to the facts of the case,
the confession of the respondent is amply corroborated by the evidence of the
victim (PW 13) whose testimony in turn is corroborated by PWs 5, 6, 7, 9 and 10
and also by the medical evidence.
As
regards the evidence of PW 13 relating to the incident, the High Court has
accepted only one part of the accusations, namely, that the respondent asked Tulna
to be an active agent of oral copulation by sucking his penis, notwithstanding
the fact that the High Court without any compunction has accepted the evidence
of PW 13 as being substantially corroborated and the extra-judicial confession
of the respondent as being free from any vice and held that "it is beyond
comprehension that the complainant would have laid a false and reckless charge
against the respondent by involving his own minor daughter Tulna in such unsavoury
incident for nothing not caring about her future and his own reputation and honour.
There is no reason as to why a small innocent girl would have laid such a
serious charge against the respondent, if it was not true." In our
considered view, the High Court was not at all justified in reaching a
distorted conclusion which has resulted in miscarriage of justice.
On a
careful scanning of the entire records, we have no reservation in accepting the
evidence of PW-13 in its entirety and the extra-judicial confession of the
respondent which clearly makes out a case for an offence under Section 376 IPC,
the reasons for which we will discuss infra.
There
are a series of decisions to the effect that even in cases wherein there is
lack of oral corroboration to that of a prosecutrix, a conviction can be safely
recorded, provided the evidence of the victim does not suffer from 940 any
basic infirmity, and the `probabilities factor' does not render it unworthy of
credence, and that as a general rule, corroboration cannot be insisted upon,
except from the medical evidence, where, having regard to the circumstances of
the case, medical evidence can be expected to be forthcoming. Vide Rameshwar v.
State of Rajasthan, [1952] SCR 377; Bharwada Bhoginbhai
Hirjibhai v. State of Gujarat, [1988] 2 SCC 217; Krishan Lal v.
State of Haryana, [1980] 3 SCC 159.
We
shall now briefly deal with the principles regarding the powers of the High
Court to review the evidence while examining an order of acquittal sitting in
its appellate jurisdiction.
An
appeal against acquittal provided under Section 378 of the Code of Criminal
Procedure falls under Chapter XXIX under the caption "Appeals". This
Chapter covers Sections 372 to 394. Whilst Section 374 deals with the `Appeals
from Convictions', Section 377 deals with the `Appeal by the State Government
against sentence'. As stated above Section 378 of the new Code (corresponding
to Section 417 of the old Code) gives the High Court full power to review at
large the evidence upon which the order of acquittal was founded and to reach
its own conclusions upon that evidence either by reversing the order of
acquittal or disposing of the same otherwise as facts therein warrant. In other
words, the High Court is clothed with the plenary powers to go through the
entire evidence and to come to its own conclusions as warranted by the facts of
the case concerned but, of course, subject to certain guidelines laid down by
the judicial pronouncements. The Privy Council in Sheo Swarup and others v.
King Emperor, AIR 1934 PC 227 (2) in dealing with the power of the High Court
to review the evidence and reverse the acquittal held thus:
"Sections
417, 418 and 423 of the Code give to the High Court full power to review at
large the evidence upon which the order full power to review at large the
evidence upon which the order of acquittal was founded, and to reach the
conclusion that upon that evidence the order of acquittal should be reversed.
No limitation should be placed upon that power, unless it be found expressly
stated in the Code. But in exercising the power conferred by the Code and
before reaching its conclusions upon fact, the High Court should and will
always give proper weight and consideration to such matters as
(1) the
views of the trial Judge as to the credibility of the witnesses;
(2) the
presumption 941 of innocence in favour of the accused, a presumption certainly
not weakened by the fact that he has been acquitted at his trial;
(3) the
right of the accused to the benefit of any doubt; and
(4) the
slowness of an appellate court in disturbing a seeing the witnesses."
In Wilayat
Khan & Others v. State of U.P., AIR 1953
S.C.122 this Court while examining the scope of Sections 417 and 423 of the
Code pointed out that even in appeals against acquittal, the powers of the High
Court are as wide as in appeals from convictions. See also Surajpal Singh and
others v. The State, [1952] SCR 193; Tulsi Ram v. The State, AIR 1954 S.C.I; Aher
Raja Khima v. State of Saurashtra, AIR 1956 S.C. 217 = [1955]2 SCR 1285; Radha Kishan
v. State of U.P., AIR 1963S.C.822 = [1963] Supp. 1 SCR 408 holding that an
appeal from acquittal need not be treated different from an appeal from
conviction; Jadunath Singh and others, etc. v. State of Uttar Pradesh, [1971] 3
SCC 577; Dharam Das v. State of U.P., [1973] 2 SCC 216; Barati v. State of U.P., [1974] 4 SCC 258 and Sethu Madhavan Nair v. State
of Kerala, [1975] 3 SCC 150.
We
think it not necessary to swell this judgment by recapitulating all the
decisions on this point, but suffice to say that this Court has consistently
taken the view that in cases of appeals against acquittal as a matter of
jurisdiction, the whole case is at large for review by the High Court both as
to the facts and the law and that the true legal position is that however
circumspect and cautious approach of the High Court may be in dealing with
those appeals by exercising its plenary and unlimited statutory powers, the
Court is undoubtedly to reach its own proper conclusions of guilt or otherwise
of the indicted persons as the established facts warrant and to award
appropriate sentence which will be commensurate with the gravity of the offence
in case of conviction.
Reverting
to the instant case, if the conclusion of the High Court that the offence made
out is only punishable under Section 354 IPC, is scrutinised with reference to
the evidence adduced by the prosecution and tested in the light of the above
principles of law laid down by this Court, in our view, the conclusion under
challenge is not a reasonable and justifiable one since the totality of the
evidence demonstrably establishes a graver offence. Moreover, the sentence of
fine alone imposed by the High Court even assuming that the offence is
punishable under Section 354 is 942 grossly inadequate and is not commensurate
with the serious nature of the offence. Of course, this question of the
inadequacy of sentence under Section 354 does not come within the purview of
our consideration because we proceed on the footing that the offence is not a
mere outraging the modesty of woman but much more than that. Further, we are
constrained to hold that the High Court even after abserving that "the
respondent's activities were menace to the neighbours" has shown a
misplaced sympathy to the respondent which is patently reflected from the
penultimate paragraph of its judgment and which has led to the miscarriage of
justice. The impugned finding that the offence is one of outraging the modesty
of woman for which sentence of imprisonment is not compulsory is erroneous and
untenable.
The
next crucial question that arises for our consideration is whether the proved
facts establish the offence of rape or only attempt to commit rape. Before the
High Court, the learned Government Advocate appears to have urged that the
offence was punishable under Section 376 read with 511 IPC though the charge
was for a specific offence of rape punishable under Section 376 IPC.
The
medical officer, PW 4 who then only 28 years old, on examining the victim after
5 days of the incident i.e. 7.9.82 has given her opinion as follows:
"From
the above findings, it seems an attempt to rape has been made." In the
cross-examination, the following answer is brought out from the medical
officer, PW 4:
"I
concluded about attempt to rape, on account of abrasion and redness on labia majora
and minora respectively." It is true that this medical officer who could
not have gained much experience by that time has given her opinion that the
abrasion found would have been less than 2 days' duration which opinion of
course is not precise but approximate and probable. Though the prosecutor who
conducted the case before the trial court has not put any question clarifying
her opinion in the re-examination, it has been clearly brought out in the
cross-examination itself that the medical officer was basing her opinion on the
abrasion found on labia majora and minora. It means that the medical 943
officer was of the opinion that the abrasion measuring one and a half inches in
length found on the medial side of the labia majora and the redness around the
labia minora could have been caused even on 2.9.82. By this opinion, PW 4 has
given a margin of 5 days in fixing the probable duration of the injury. The defence
counsel has not further pursued and put any question clarifying the subsequent
answer given by the medical officer regarding the duration of the injury.
Though
in the grounds of appeal, it is specifically stated that all ingredients for
constituting an offence within the ambit of Section 375, punishable under
Section 376 IPC are made out, alternatively a hesitant plea is made that the
offence at any rate would not be less than Section 376 read with 511 IPC. We
also prima facie were of the opinion that the offence may be punishable under
Section 376 read with 511 IPC but after deeply going through the evidence, we
have no hesitation in holding that the offence is nothing short of rape
punishable under Section 376 IPC.
Merely
because the inexperienced medical officer has opined that it was an attempt to
commit rape, probably on the ground that there was no sign of complete
penetration, we are not inclined to accept PW 4's legal opinion as to the
nature of the offence committed by the respondent.
A
medical witness called in as an expert to assist the Court is not a witness of
fact and the evidence given by the medical officer is really of an advisory
character given on the basis of the symptoms found on examination. The expert
witness is expected to put before the Court all materials inclusive of the data
which induced him to come to the conclusion and enlighten the Court on the
technical aspect of the case by explaining the terms of science so that the
Court although, not an expert may form its own judgment on those materials
after giving due regard to the expert's opinion because once the expert's
opinion is accepted, it is not the opinion of the medical officer but of the
Court.
Nariman,
J. in R v. Ahmed ali 11 WR Cr. 25 while expressing his view on medical evidence
has observed as follows:
"The
evidence of a medical man or other skilled witnesses, however, eminent, as to
what he thinks may or may not have taken place under particular combination of
circumstances, however, confidently, he may speak, is ordinarily a matter of
mere opinion." 944 Fazal Ali, J. in Pratap Misra v. State of Orissa, AIR 1977 SC 1307 = [1977] 3 SCC 41
has stated thus:
".......it
is well settled that medical jurisprudence is not an exact science and it is
indeed difficult for any Doctor to say with precision and exactitude as to when
a particular injury was caused......as to the exact time when the appellants
may have had sexual intercourse with the prosecutrix." We feel that it
would be quite appropriate, in this context, to reproduce the opinion expressed
by Modi in Medical Jurispurdence and Toxicology (Twenty First Edition) at page
369 which reads thus:
"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 sufficent 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 that
there is evidence of recent sexual activity. Whether the rape has occurred or
not is a legal conclusion, not a medical one." (emphasis supplied) In
Parikh's 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 the offence of rape without
producing any injury to the genitals or leaving any seminal stains." 945
In Encyclopedia of Crime and Justice (Vol.4) at page 1356, it is stated:
".....even
slight penetration is sufficient and emission is unnecessary." In Halsbury's
Statutes of England and Wales (Forth Edition) Volume 12, it
stated that even the slightest degree of penetration is sufficient to prove
sexual intercourse within the meaning of Section 44 of the Sexual Offences Act
1956. Vide R v. Hughes, [1841] 9 C & P 752 ; R v. Lines, [1844] 1 Car &
Kir 393 and R v. Nicholls, [1847] 9 LTOS 179.
See
also Harris's Criminal Law (Twenty Second Edition) at page 465.
In
American Jurisprudence, it is stated that slight penetration is sufficient to
complete the crime of rape.
Code
263 of Penal Code of California reads thus:
"Rape;
essentials-Penetration sufficient. The essential guilt of rape consists in the
outrage to the person and feelings of the victim of the rape.
Any
sexual penetration, however slight, is sufficient to complete the crime."
The First Explanation to Section 375 of India Penal Code which defines `Rape'
reads thus:
:Explanation-Penatration is sufficient to
constitute the sexual intercourse necessary to the offence of rape." In
interpreting the above explanation whether complete penetration is necessary to
constitute an offence of rape, various High Courts have taken a consistant view
that even the slightest penetration is sufficient to make out an offence of
rape and the depth of penetration is immaterial.
Reference
may be made to Natha v. Emperor, 26 Cr. L.J. [1925] page 1185; Abdul Majid v.
Emperor, AIR 1927 Lahore 735 (2); Mussammat Jantan v. The
Crown, (1934) Punjab Law Reporter (Vol.36) page 35; Ghanashyam Mishra v. State,
(1957) Cr.L.J. 469 = AIR 1957 Orissa 78; D. Bernard v. State (1947) CR.L.J.
1098. In re Anthony, AIR 1960 Mad. 308 it
has been held that while there must be penetration in the technical sense, the
slightest penetration would be sufficient and a complete act of sexual
intercourse is not at all necessary. In Gour's "The Penal Law of India" 6th Edn. 1955 (Vol. II) Page
1678, it is observed, "Even vulval penetration has 946 been held to be
sufficient for a conviction of rape." Reference also may be made to Prithi
Chand v. State of Himachal
Pradesh, [1989] 1 SCC
432 though the facts therein are not similar to this case.
In the
case on hand, there is acceptable and reliable evidence that there was slight
penetration though not a complete penetration. The following evidence found in
the deposition of PW 13 irrefragably proves the offence of rape committed by
the respondent:
"Nawal
uncle untied his pyjama and took out his male organ and put it inside my vagina
and clutched me...........Nawal Chacha put his male organ inside my vagina and
since it was fat it kept slipping out. After that my vagina was paining."
".....When Nawal Uncle held apart, then there was some white liquid coming
out from his male organ...
..........
"Nawal
Chacha pressed my mouth so I could not scream." In the cross-examination,
the following answer is given:
"I
suffered pain by what Nawal Chacha did........." When the evidence of PW
13 is taken with the evidence of medical officer who found an abrasion on the
medial side of Labia Majora and redness present around the Labia Minora with
white discharge even after 5 days, it can be safely concluded that there was
partial penetration within the labia majora or the vulva or pudenda which in
the legal sense is sufficient to constitute the offence of rape.
Moreover,
the respondent himself has confessed twice admitting the commission of rape
without rupturing the hymen which confession is not disbelieved by the High
Court. The respondent is a medical officer who has got the practical knowledge
of the anatomy of a human being and the tender sexual organ of a young girl and
who must have been quite aware of the implication of his confession having
fully understood the meaning of the word `rape'. Therefore, as admitted by the
respondent himself, he without forcibly and completely penetrating his penis
into the vagina of PW 13 had slightly penetrated within the labia majora or
vulva or pudenda without rapturing the hymen and thereby his lust after
emission of semens. In this context, it is 947 not necessary to enter into any
nice discussion as to how far the male organ has entered in the vulva or
pudenda of PW 13 since it is made clear that there was penetration attracting
the provisions of Section 375 IPC. The evidence of PW 13 is amply corroborated
not only by the medical evidence and the corroborating evidence of PW 12 but
also by the plenary confession of the respondent himself.
From
the above discussion, we unreservedly hold that the prosecution has
satisfactorily established its case that the respondent has committed rape on
PW 13 by proving all the necessary ingredients required to make out an offence
of rape punishable under Section 376 IPC.
In the
result, we set aside the judgment of the High Court convicting the respondent
under Section 354 IPC and sentencing him to pay a fine of Rs. 3,000 instead
convict the respondent under Section 376 IPC.
What
would be the quantum of punishment that would meet the ends of justice in the
facts and circumstances of the case, is the next question for our
consideration.
It is
very shocking to note from the judgment of the High Court that the Government
Advocate did not address on the question of sentence. The High Court thought of
imposing fine only on the ground that the respondent "is now gainfully
employed and there is nothing to show that he is indulging in his nefarious
activities". We regret to say that we are not able to understand the above
reasons which are not in conformity with the concept of sentencing policy in a
grave case of this nature.
We are
told at the bar that the victim who is now 19 years old, after having lost her
virginity still remains unmarried undergoing the untold agony of the traumatic
experience and the deathless shame suffered by her.
Evidently,
the victim is under the impression that there is no monsoon season in her life
and that her future chances for getting married and settling down in a
respectable family are completely married.
Though
the State has kept silence after the disposal of the appeal by the High Court,
the helpless panic stricken father of the victim (PW 13) with a broken heart
has entered the portals of this Court and is tapping the door, crying for
justice.
It
will be appropriate to refer the following observation of Ranganath 948 Mishra,
J (as he then was) in his separate concurring judgment sitting in the
Seven-Judges Bench in A.R. Antulay v. R.S. Nayak and Another, [1988] 2 SCC 602
at page 673:
"No
man should suffer because of the mistake of the Court.................Ex debito
justitiae, we must do justice to him. If a man has been wronged so long as it
lies within the human machinery of administration of justice that wrong must be
remedied." Accordingly, we, having regard to the seriousness and gravity
of this repugnant crime of rape perpetrated on PW 13 who was then 8 years old
on the date of the commission of the offence in 1982, while convicting the
respondent under Section 376 IPC sentence him to undergo rigorous imprisonment
for a period of seven years and to pay a fine of Rs. 25,000 in default to
suffer rigorous imprisonment for 1-1/2 years. The fine amount of Rs. 25,000 if realised
shall be paid to the victim girl who is now a major. If the fine amount of Rs.
3,000 imposed by the High Court which we have set aside, has already been paid
that amount shall be adjusted with the fine amount now imposed by us.
"JUSTICE
DEMANDS, THE COURT AWARDS" Before parting with the judgment, with deep
concern, we may point out that though all sexual assaults on female children
are not reported and do not come to light yet there is an alarming and shocking
increase of sexual offences committed on children. This is due to the reasons
that children are ignorant of the act of rape and are not able to offer resistence
and become easy prey for lusty brutes who display the unscrupulous, deceitful
and insidious art of luring female children and young girls. Therefore, such
offenders who are menace to the civilised society should be mercilessly and
inexorably punished in the severest terms.
We
feel that Judges who bear the Sword of Justice should not hesitate to use that
sword with the utmost severity, to the full and to the end if the gravity of
the offences so demand.
The
appeal is allowed accordingly.
R.P.
Appeal allowed.
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