T.P.S. Mann, J.@mdashThe appellant Satyapal has filed the present appeal against the judgment and order dated 31-3-1994 passed by Sessions Judge, Bhiwani, whereby he was convicted u/s 376, I.P.C. and sentenced to undergo R.I. for seven years and to pay a fine of Rs. 20,000/-. In default of payment of fine, he was directed to undergo further R.I. for two years. The amount of fine of Rs. 20,000/-, on its payment, was directed to be given to the prosecutrix.
2. As per the FIR, which was lodged at the instance of the prosecutrix, aged about 11 years, she went to the fields to bring fodder on 5-2-1993 at about 8.00 a.m. When she reached near the fields of Nihala, the appellant came near her and after forcibly lifting her, removed her to fields, which adjoined the path. She raised an alarm but the appellant gagged her mouth. He broke the string of her salwar and started sexually assaulting her. She did her level best to object to the same but the appellant committed rape upon her forcibly and against her wishes. After some time, she saw her mausi coming from the side of the village. The appellant left her and ran away. Her mausi came near her and removed her to the house. At that time father of the prosecutrix was away to another village. He was summoned back. The people of the village were gathered and an effort was made to settle the matter at the brotherhood level. However, the parents of the appellant did not listen to any sane advise. Finally, the prosecutrix, while accompanied by her father, mausi and Sarpanch of the village, reached Police Post Kairu and made a statement Ex. PD before ASI Partap Singh, Incharge, Police Post on 6-2-1993 at 8.30 a.m. On the basis of the same, formal FIR No. 38, Ex. PD/2, dated 6-2-1993 was registered at Police Station Tosham at 9.10 a.m. Special report was also sent to the Ilaqa Magistrate, which was received on the same day at 12.30 p.m.
3. The investigation of the case was then taken up by ASI Partap Singh, who got the prosecutrix medico-legally examined from a lady doctor. He recorded the statements of father and mausi of the prosecutrix and prepared rough site plan Ex. PJ of the place of occurrence. The appellant was arrested by him on 8-2-1993 and was got medically examined vide his request Ex. PA/1. After the completion of the investigation, the challan was presented in the Court.
4. On 17-5-1993, learned Sessions Judge, Bhiwani framed charge u/s 376, I.P.C. against the appellant that on 5-2-1993, he committed sexual intercourse with the prosecutrix forcibly and without her consent. The appellant pleaded not guilty and claimed trial.
5. The prosecution examined Dr. Ramphal PW 1, who deposed about the medical examination of the appellant. As per his report Ex. PA, there was nothing to suggest that the appellant was incapable of performing sexual intercourse. Dr. S.K. Anand PW2, proved skiagrams Ex. P1 to P3 and on its basis he opined that the prosecutrix was of the age of more than 10 years and less than 13 years. Mani Ram, Patwari PW3 proved scaled site plan Ex. PC. The prosecutrix was produced in the witness-box as PW 4. After making sure that the prosecutrix was competent to depose, the trial Court administered her the oath and then recorded her statement. During her deposition as PW4, she reiterated the version, which was Initially given by her in statement Ex. PD. Mausi of the prosecutrix, while being examined as PW5, stated that when she went to bring grass from the fields at about 8.00/ 8.30 a.m. and reached near the field of Nihala, she saw the appellant performing sexual intercourse with the prosecutrix, who at that time was laid down in the crop of gram by the side of sand dune. At that time, the prosecutrix was weeping. However, on seeing PW5, the appellant ran away. Thereafter, she found a swelling on the vagina of the prosecutrix, which was also bleeding. She made her wear her underwear and salwar and brought her home. She sent a message to the father of the prosecutrix, who came back. Thereafter, a gathering of the respectables and panchayat was held and they were told that the prosecutrix had been raped. However, no action was taken and in fact nobody listened to them. Accordingly, on the next day of the occurrence, they went to the police. Her statement was also recorded by the police.
6. Dr. Savita Bansal PW 6 medico-legally examined the prosecutrix on 6-2-1993. She found that her general condition was average Patient was conscious. Pulse, B.P. and chest were normal Teeth were 28 in number About menstrual history, menarche was not started Breasts and secondary sex characteristics were not well developed. Pubic hair were very scanty. There was no external injury on the body or external genital organs. On external examination, there was no bleeding or discharge on thigh or labra majora. Labia majora and minora were not properly developed. Posterior commissure and fourchette were intact. Hymen was absent and represented by slightly swollen edges. Per speculum examination was not possible On per vaginal examination, it admitted only little finger easily. Two fingers were not possible to be admitted. In the opinion of the doctor, the possibility of sexual intercourse could not be ruled out.
7. ASI Partap Singh PW 7 was the Investigating Officer of the case and he deposed regarding the various steps taken by him during the investigation, including the arrest of the appellant and after completion of the investigation, presenting the challan in the Court.
8. The prosecution tendered in evidence affidavit Ex. PL of C. Ram Kumar besides report Ex. PG of Forensic Science Laboratory, Madhuban (for short ''FSL'').
9. After the closure of the evidence, the trial Court examined the appellant u/s 313, Cr. P.C. All the incriminating material was put to him but he denied its correctness He claimed that he had been falsely implicated due to enmity and misunderstanding However, no evidence was led in defence.
10. After hearing learned Counsel for the parties and going through the material placed before it, the trial Court convicted and sentenced the appellant as mentioned above. Hence, the present appeal
11. The main thrust of the defence, while challenging the conviction and sentence of the appellant is that Dr. Savita Bansal PW 6 did not find any injury, whatsoever, on the person of the prosecutrix on 6-2-1993. Though the hymen was found to be absent, yet it was stated by Dr. Savita Bansal PW 6 in her cross examination that by mentioning the same, she meant that it was not freshly bleeding. Moreover, there was no bleeding of the hymen at all. It was also submitted that if the appellant, who was a grown up person, had committed rape upon a young girl of 10/11 years of age, there ought to be injuries on his male organ. Dr. Ramphal PW 1 did not observe any such injury. Attention was also drawn to report Ex. PG given by FSL that semen could not be detected on the clothes of the prosecutrix and the swabs taken by the doctor.
12. Learned State counsel submitted that the absence of hymen was clear indication of the fact that the prosecutrix had been subjected to sexual intercourse. The prosecutrix was a young girl of 10/11 years of age. Absence of any injury on male organ of the appellant by itself was not sufficient to doubt the credibility of the prosecution version when no such question was put by the defence to Dr. Ramphal P.W. 1 regarding the same. Moreover, the appellant was medically examined on 8-2-1993 at 3.30 p.m. and by that time about 80 hours had elapsed since the time of the occurrence and whatever injury marks could be there on the male organ of the appellant, would have disappeared. Further that absence of semen on the clothes of the prosecutrix and the vaginal swabs would not be sufficient to conclude that no rape had been committed by the appellant as it was not the requirement of law that sexual intercourse has to be completed by the appellant before he could be convicted for the offence u/s 376, I.P.C., as mere penetration was sufficient to arrive at such a conclusion.
13. I have heard learned Counsel for the parties and gone through the evidence brought on the record.
14. The prosecutrix described herself to be 11 years of age when her statement Ex. PD was recorded by ASI Partap Singh. She again described her age similarly at the time of her medico-legal examination by Dr. Savita Bansal P.W. 6 on 6-2-1993 at 1.10 p.m. The prosecutrix was also subjected to radiological examination for determining her skeletal age. As per his report Ex. PB, Dr. S.K. Anand P.W. 2 gave an opinion that the age of the prosecutrix was more than ten years but less than 13 years. No evidence to the contrary has been led by the appellant to show that the prosecutrix was more than 16 years of age. The physical appearance of the prosecutrix was also noticed by Dr. Savita Bansal and from that also it can be easily and safely concluded that the prosecutrlx was about 11 years of age,
15. Hymen was found to be absent when the prosecutrix was medico legally examined by Dr. Savita Bansal. Said doctor further noticed that the same was represented by slightly swollen edges. Although, the doctor could not say definitely whether there was actually any attempt to commit sexual intercourse or not, yet since the edges of the vagina were swollen, therefore, an opinion was given that there could be a possibility of attempt and, accordingly, the possibility of the attempt to commit sexual intercourse could not be ruled out.
16. The prosecutrix, while being examined as P.W. 4, clearly stated in her deposition that the appellant after breaking the string of her salwar and shutting her mouth, took out his penis and inserted it in her private parts. She started bleeding from her private parts. She also stated that she was laid down on the ground with her face upwards when the appellant was performing sexual intercourse with her forcibly. The testimony of the prosecutrix was corroborated by her mausi, who appeared as P.W. 5, when she stated that she saw the appellant having removed the salwar and underwear of her niece and after shutting her mouth, he was performing sexual intercourse with her. At that time, the prosecutrix had been laid clown in the field in which crop of gram was standing. She also stated that after the appellant ran away, she saw swelling on the vagina of the prosecutrix. She was also found bleeding from her private parts.
17. Coming to the report of the FSL, as per which semen could not be detected on the clothes of the prosecutrix and the vaginal swabs, it may be noted that complete penetration of the penis with emission of semen is not necessary to constitute the offence of rape. Even partial penetration was sufficient to constitute the offence of rape. Absence of hymen is clear indication of the fact that there was penetration. It may be that the penetration was partial or that there was no emission of semen by the appellant.
18. Llearned Counsel for the appellant submitted that in view of the opinion of Dr. Savita Bansal P.W. 6 that the possibility of attempt of sexual intercourse could not be ruled out, no offence u/s 376. I.P.C. was made out and the appellant could, at the most, be held guilty u/s 354, I.P.C.
19. The prosecutrix has clearly stated in her deposition before the Court that the accused had inserted his male organ in her vagina. Moreover, the absence of hymen cannot be explained by any other circumstance than the sexual intercourse committed by the appellant with the prosecutrix.
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21. The Court also held that a slight penetration in the vulva was sufficient to constitute the offence of rape and even rupture of the hymen was not necessary. Vulva penetration with or without violence was as much rape as vaginal penetration. Relevant observation is as follows:
Penetration is the sine qua non for an offence of rape. In order to constitute penetration, there must be evidence clear and cogent to prove that some part of the virile member of the accused was within the labia of the pudendum of the woman, no matter how little (See Joseph Lines IC and K 893).
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The rupture of hymen is by no means necessary to constitute the offence of rape. Even a slight penetration in the vulva is sufficient to constitute the offence of rape and rupture of the hymen is not necessary. Vulva penetration with or without violence is as much rape as vaginal penetration. The statute merely requires evidence of penetration, and this may occur with the hymen remaining intact. The actus reus is complete with penetration. It is well settled that the prosecutrix cannot be considered as accomplice and, therefore, her testimony cannot be equated with that of an accomplice in an offence of rape.
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Next to hymen in positive importance, but more than that in frequency, are the injuries on labia majora. These viz. labia majora are the first to be encountered by the male organ. They are subjected to blunt forceful blows, depending on the vigour and force used by the accused and counteracted by the victim. Further, examination of the females for marks of injuries elsewhere on the body forms a very important piece of evidence. To constitute the offence of rape, it is not. necessary that, there should be complete penetration of the penis with emission of semen and rupture of hymen. Partial penetration within the labia majora of the vulva or pudendum with or without emission of semen is sufficient to constitute the offence of rape as defined in the law. The depth of penetration is immaterial in an offence punishable u/s 376, I.P.C.
22. In view of the above, it is safe to conclude that it was the appellant, who forcibly committed sexual intercourse with the prosecutrix and, thus, making himself liable for the offence of rape punishable u/s 376, I.P.C.
23. For the offence u/s 376, I.P.C, the legislature has provided minimum sentence of seven years. However, for adequate and special reasons, the Court may impose a lesser sentence. The facts and circumstances of the present case as shown would not justify the imposition of a sentence lesser than the one prescribed by law. The prosecutrix was a young girl of 10/11 years of age. She had not even reached her puberty. The menarche had not started. Breast and secondary sex characteristics were not well developed. Pubic hair were very scanty. The appellant, thus, does not deserve any concession on the question of sentence also.
24. For the foregoing reasons, the conviction and sentence of the appellant u/s 376, I.P.C. are maintained. The appeal is, accordingly, dismissed.
25. The appellant is on bail. On 13-1-1998, this Court had also directed the appellant to deposit half of the fine and in that case the proceedings for realisation of the fine were directed to remain stayed during the pendency of the appeal.
26. Accordingly, the appellant be taken into custody forthwith for serving the remainder of the sentence imposed upon him. Steps be taken to recover the entire amount of Rs. 20,000/- imposed upon the appellant as fine. Once the said amount of fine is recovered, the same be paid to the prosecutrix.
