K.M. Thaker, J.@mdashHeard Mr. Barad, learned advocate for the appellant and Mr. Dabhi, learned APP for the respondent.
2. This appeal under Section 374 of the Code of Criminal Procedure, 1973 is directed against the judgment and order dated 11.5.2010 passed by the learned Sessions Court, Anand in Sessions Case No. 112 of 2009 whereby the learned Court has recorded conviction against the appellant for offence punishable under section 376 of I.P.C. and has sentenced the appellant to undergo SI for 10 years and to pay fine of Rs. 500/- and in default to undergo SI for two and half years.
3. The case of the prosecution is that on 25.8.2009 at about 11.30 a.m., when the daughter of the complainant who is deaf and dumb and mentally challenged, had gone to the water pump to fetch water, the appellant forcibly committed sexual intercourse - rape on the said victim girl and then fled from the place of the incident. The mother of the victim girl lodged a complaint on 25.8.2009 stating and alleging that the appellant had sexually abused her daughter and committed offence under Section 376 of I.P.C.
4. According to the prosecution in the complaint lodged on 25.8.2009, the complainant alleged that her mentally challenged daughter - who is deaf and dumb - had gone to fetch water, the appellant approached her and gripped her in his arms and pushed her to the ground and after lifting her clothes he forcibly committed sexual intercourse - rape with her daughter against her wish and since one of her neighbors saw the appellant committing rape the appellant fled from the place of the incident. The complainant also alleged that having seen the appellant committing wrong with her daughter, the neighbor came to her and told her about the incident. Therefore, she, with her son, immediately rushed to the place of the incident and when they reached at the place of incident she saw that her daughter was crying and was putting on her clothes. The said complaint/FIR was registered and investigation commenced.
5. According to the prosecution, sufficient material was available on conclusion of the investigation and that, therefore, the charge-sheet came to be filed against the accused - appellant.
6. The case being triable by the learned Sessions Court, it was committed to the Court of learned Sessions Judge and was registered as Criminal Case No. 112 of 2009.
7. The learned trial Court framed the charge at Exh. 7 against the accused - appellant for commission of offence under section 376 .
8. The statement of the accused - appellant was recorded. Upon being asked by the learned trial Court, the accused pleaded not guilty and pleaded to be tried.
9. So as to bring home the charge and to prove the case against the appellant, the prosecution placed on record 13 documents and examined 8 witnesses including the medical officer who had examined the victim.
10. After examining the witnesses and on completion of the stage of evidence, all incriminating facts, evidence and circumstances were informed by the Court to the appellant and further statement of the appellant - accused under section 313 of the Code of Criminal Procedure was recorded, wherein the accused - appellant denied the case of the prosecution and he also submitted written statement and claimed that it may be treated as part of further statement. In his said further statement, the appellant claimed that when the daughter of the complainant had come to fetch water she had annoyed and instigated him and that, therefore, he had broken the pot of water which she had brought with her (to fill water) and then he had put mud on her hair, but he did not commit sexual intercourse, or any wrong, with her.
11. After considering the oral as well as documentary evidence available on record and the submissions by learned advocate for the appellant and the learned APP, the learned trial Court, by the judgment and order dated 11.5.2010 which is impugned in present appellant, found the appellant guilty and recorded conviction against him for the above-mentioned offence and sentenced him to undergo imprisonment as mentioned above. This appeal is directed against the said judgment.
12. Before proceeding further, it is necessary to mention that from the record it appears that during the proceeding before the learned trial Court, an application (Exh. 5) was submitted on behalf of the appellant who claimed that the case should be tried before the Juvenile Court. In the said application, an issue with regard to age of the accused was raised and it was claimed that the accused is under 18 years of age. The accused in the said application claimed that the applicant is illiterate and therefore, School Leaving Certificate is not available and therefore cannot be submitted to the learned trial Court and it was further claimed that his birth was also not registered and therefore the record from the Birth and Death Register related to the accused''s birth date was also not available and consequently that was also not placed on record and thus the application was not supported by any evidence. The said application was opposed by the learned Public Prosecutor in the learned trial Court who submitted that the statement of the accused''s mother was recorded and according to his mother''s statement, age of the accused, at relevant time, was 22 years. The learned trial Court considered the application and learned P.P.''s objections and after hearing learned advocate for the accused, the Court passed the order dated 8.3.2010 below Exh. 5 and rejected the application and held that the appellant''s age was not under 18 years of age. What is relevant is the fact that the said order dated 8.3.2010 has attained finality since the said order was not challenged at relevant time and has not been challenged until now by the appellant. Actually, after the Court noticed the above mentioned aspect, the learned advocate for the appellant declared and clarified that at that stage or at any time thereafter any appeal or criminal revision application was not filed against said order. Further, even during hearing of this appeal also the said order is not challenged or disputed and/or the said issue/dispute with regard to appellant''s age at the time of incident is not raised. Moreover, the learned advocate for the appellant has stipulated and declared that the appellant does not raise any defence or claim on that ground and/or the appellant does not challenge trial Court''s proceedings on the said ground, i.e. on the ground that at the relevant time, he was under 18 years of age and was juvenile. In view of the said stipulation and also because in absence of any contrary material indicating facts contrary to the fact on record and contrary to the conclusion/order (below Exh. 5) dated 8.3.2010 by the Court and since any cogent evidence, e.g. School Leaving Certificate or Birth Certificate or Ration Card or Aadhar Card or Election I-Card or any other material is not placed on record of present appeal, this Court has proceeded on the premise recorded by the learned trial Court, i.e. that the appellant was not minor and was not under age of 18 years at the time of incident.
13. Though the learned advocate for the appellant raised some factual contentions however in substance and in effect he submitted that the offence may be treated as/converted into offence under section 354 or section 376 /511 . He submitted that the offence for which the learned Court could have convicted is under section 354 or section 376 /511 and not under section 376 of I.P.C. The substance of the submission by learned advocate for the appellant is that the incident would fall within purview of section 354 of I.P.C.
14. Mr. Barad, learned advocate for the appellant has based his claim mainly on the contention that eyewitness has not supported the case of the prosecution and she did not support the evidence of victim''s mother - complainant and/or the case of prosecution and that she is declared hostile and that from the statement/deposition by the victim girl, it comes out that at the most, offence can be said to be an offence under section 354 and not under section 376 and that even FSL report also does not establish offence under section 376 and that there is no evidence to establish that sexual intercourse was actually completed, or even committed. Mr. Barad, learned advocate for the appellant has based his claim also on the contention that FIR was filed after 9 - 10 hours inasmuch as the incident occurred at or around 11.30 a.m. while the complainant reached the police station and lodged the complaint at or around 9.30 p.m. and she was taken to the doctor at about 11.30 p.m. Learned advocate for the appellant submitted that even if the statement of the victim is accepted and believed in totality, then also the alleged act would fall within the purview of section 354 and not under section 376 . Learned advocate for the appellant also submitted that if the medical evidence is considered in proper perspective, it does not support the charge of commission of offence under section 376 . Learned advocate for the appellant submitted that if the Court is not convinced to set aside the conviction, then in light of the facts of the case and evidence on record, the offence may be convicted offence under section 354 or section 376 /511 . So as to support the contention raised in light of provision under section 354 of I.P.C., learned advocate for the appellant relied on the decision in the case
15. Mr. Dabhi, learned APP has opposed the appeal and contentions raised by learned advocate for the appellant. Learned APP submitted that so far as the eyewitness act is concerned, though she turned hostile, however, entire evidence cannot be discarded since therefrom it has at least emerged that when the complainant reached the place of incident (after her neighbour - the eyewitness informed her about the incident), she saw that the victim girl was putting on her clothes and was crying. According to learned APP, presence of the victim girl and the appellant at the place of incident is established and the fact that the victim girl and accused were at the place of incident is undisputed, rather admitted position. Learned APP further submitted that merely because any trace of blood or semen is not found on the clothes of the victim girl or the accused, it does not lead to conclusion that the offence was not committed. Learned APP referred to the medical evidence and submitted that the certificate issued by the doctor establish that the victim girl''s hymen was ruptured and that she was subjected to sexual intercourse. Learned APP submitted that the appellant committed offence with helpless and physically handicapped girl who is deaf and dumb and mentally unstable. Learned APP also submitted that footwear of the accused was found and recovered from the place of incident which also establishes the presence of the accused and also corroborates the evidence of the mother of the victim girl. Learned APP also submitted that the accused was identified by the victim girl and she subsequently identified him in the Court as well. Learned APP submitted that looking to the physical condition of the victim girl and the nature and gravity of the offence, the sentence and penalty imposed by the Court is justified. Learned APP opposed the submissions of the learned advocate for the appellant that even if the prosecution''s case is believed and accepted, then also the offence would fall within the purview of section 354 and not section 376 or that the act of the accused does not amount to offence under section 376 . Learned APP submitted that the medical evidence has established that the appellant had committed sexual intercourse and therefore, offence under section 376 is established by medical evidence. Learned APP submitted that in the facts of the case, 10 hours delay in lodging the complaint is not fatal.
16. I have heard learned advocate for the appellant and learned APP and considered the submissions and evidence available on record.
17. The thrust of submission by the learned advocate for the appellant is that the offence should be treated and considered as offence under section 354 but not under section 376 of I.P.C.
17.1 The incident is said to have occurred at or around 11.30 a.m. on 25.8.2009 when the victim girl had gone to fetch water at the water pump. The complaint came to be lodged at or around 9.40 p.m. and at or around 11.30 p.m. the victim girl was taken to the CHC where the Medical Health Officer examined and treated the victim girl and according to the medical officer PW-1, victim girl was brought for examination and treatment at 11.30 p.m. on 25.8.2009 and according to the deposition of the doctor, she appeared mentally challenged, therefore, victim''s physical examination was conducted after taking consent of the victim''s mother. The PW-1 doctor also mentioned in his deposition that he had asked the details/history of the incident and he recorded the history in the case papers, on the basis of the details mentioned by the victim''s mother who told him (i.e. PW-1) that her neighbour Ramben Chauhan informed her that she had seen that the accused - appellant was committing sexual intercourse with her daughter.
17.2 In his evidence, PW-1 doctor mentioned that on examination of the victim girl, he noticed that there were nail marks on the back of the victim girl and also on left breast as well as on both hips.
17.3 PW-1 doctor also mentioned in his evidence that he noticed that there were scratch marks and bruises on hips of the victim girl and that her hymen was ruptured. There were bruises marks at victim''s elbow, however, there were no marks or any injury at the private parts of the victim and her clothes were not torn or soiled. She was referred to the gynecologist who had opined that her age was 21-22 years. PW-1 also opined that the type and nature of the injuries which were found on the body of the victim girl would occur if somebody was pushed and forced to lie down and subjected to forcible intercourse or forcible attempt to commit sexual intercourse. He also mentioned that after examining the gynecologist''s opinion, it was not possible to give clear and specific opinion as to whether the victim was subjected to forcible sexual intercourse or not.
17.4 PW-1 doctor also mentioned that he had also examined the accused - appellant. The PW-1 doctor also mentioned in his deposition that when he examined the appellant after the incident he had asked the history of the incident to the appellant when the appellant mentioned that the victim had called him near her and indicated to have sexual intercourse and therefore, he had committed the act, however, suddenly someone came there, the sexual intercourse was not completed and he had left the place of incident. PW-1 doctor also mentioned that he found nail marks/scratches on the back of the accused - appellant and on his left hip. PW-1 also noticed scratches on the back of the accused - appellant.
18. The prosecution then examined PW-2 mother of the victim girl who filed the complaint. The complainant - mother of the victim girl identified the appellant - accused in the Court. She mentioned in her evidence that the incident had occurred when her daughter had gone to fetch water at the water pump. She mentioned in her evidence that her neighbour Ramben saw her daughter near the water pump (which is close to Jakhoi Talavadi - a water-body) brought the victim to her and Ramben (Ramilaben) told her that the victim girl was crying near the ''nalli''. The complainant - PW-2 also mentioned in her evidence that after Ramben brought her daughter and handed her over, she asked her daughter as to what had happened and her daughter explained, by making signs and gesture, what the appellant had done with her. According to the complainant, her daughter explained that the accused - appellant had put his hands on her chest and pressed her chest and removed her clothes and committed sexual intercourse with her and then he ran away. PW-2 (mother of the victim) also mentioned during her cross-examination that the victim had taken steel pot (vessel) when she had gone to fetch water (and not a clay pot) with her. PW-2 also mentioned during her cross-examination that the details which she mentioned before the police while lodging the complaint, were the details which Ramilaben (Ramben - PW-3) had told. She also mentioned in her cross-examination that her daughter helps in household work. The complainant - PW-2 - accepted in her deposition that her daughter has not received any formal training to speak and express herself through sign - language. She also accepted in her evidence that her family and the family of the accused were not on talking terms and that she was against the appellant - accused meeting or being friendly with her daughter.
18.1 The PW-2 also mentioned that Ramben had told her that she had seen the accused - appellant lifting clothes of her daughter and committing sexual intercourse with her daughter and that when she shouted he put-on and tied his trouser and ran away so she and her son Ravji rushed to the water pump where they saw that the girl was crying and was putting on her inner-wear and she also saw accused''s footwear at the place of the incident.
19. The prosecution examined PW-3 at Exh. 20. However, she is declared hostile. The PW-3, Ramben, however, accepted and admitted that she had seen that the complainant''s daughter was coming from the direction where the water pump is fixed and that when she saw the complainant''s daughter - victim, the victim girl was crying.
20. The prosecution examined PW-4 as panch witness for recovery panchnama. In his evidence, PW-4 accepted that at the place of incident, black colour footwear was recovered by police. In his deposition, PW-4 (panch witness) for panchnama of place of incident mentioned that at the place of incident, it was seen that some bushes were crushed and due to rain, the land/mud were damp and wet and some marks indicating that something/someone was dragged were also visible. The prosecution examined PW-5 as panch witness for recovery of the clothes of the victim. In his cross-examination, PW-5 said that it is not true that the clothes, which he had seen, were stained or dirty.
21. The prosecution got deposition - evidence of the victim girl is recorded through one Ms. P.K. Gor. The deposition - evidence is recorded at Exh. 38. In this context, it is relevant to recall that the victim is deaf and dumb and also mentally challenged - disturbed, as claimed by her mother (and mentioned by PW-1) who examined her after the incident.
21.1 Ms. Gor was administered oath. The learned trial Court has expressly mentioned and recorded that the questions were put to the victim (through said Ms. Gor) by learned APP as well as learned advocate for the defence (i.e. for present appellant) and the replies given by the victim girl in signs were explained/interpreted and stated by said Ms. Gor and were recorded accordingly. The questions were put to the victim girl through Ms. Gor and replies given by the victim girl are recorded in form of answers. Ms. Gor mentioned that since last 16 years, she is rendering service as Principal in a school for deaf and dumb students and that there are about 311 deaf and dumb students in the school. Ms. Gor had asked the victim girl that where had she gone on the date of incident and the victim girl replied that she had gone to fetch water. Ms. Gor then asked the victim girl about what had happened and the victim girl explained by making signs that the appellant had pressed her chest and committed wrong/dirty ''thing'' to her. The victim girl also explained by making sign/gesture that the appellant had removed her clothes and that he had also pressed her mouth with his hand. Ms. Gor asked the victim girl that who had done such things with her and the victim girl continuously looked at the appellant indicating that the appellant had done the things which she explained. The cross-examination of victim girl was also conducted in similar manner. Ms. Gor mentioned that before the deposition commenced and before recording the evidence, she had met the victim girl and had also tried to understand the facts from the victim girl and whenever she experienced difficulty in understanding the sign or gesture by the victim girl, mother of the victim girl used to explain the sign/reply by the victim girl. When, on being asked by the defence to ask the victim girl as to whether her mother (the complainant) had explained/told her what reply should she give, and in reply the victim denied that her mother had said or explained her anything.
22. The panchnama recording physical condition of the accused - appellant was recorded at Exh. 39. The said panchnama (i.e. Exh. 39) was admitted by defence and accordingly, it was taken on record and duly exhibited as Exh. 39. It is relevant that according to the said panchnama (Exh. 39) the footwear which was recovered at the place of incident was shown to the appellant and he had identified the same as his footwear and accepted that the said footwear was his. He was asked to put-on the said footwear and it fitted him.
23. In the said panchnama Exh. 39, it is recorded that the appellant accepted that he had caught and held the victim girl and that he was astride her, however he saw a woman and therefore he ran away and at that time, his footwear (slipper/chupple) was left behind. In his evidence at Exh. 40, PW-8, i.e. the IO who recorded the panchnama Exh. 39 mentioned that the said panchnama Exh. 39 was recorded by him in presence of panch and it bears his signature and also of panch witnesses. In his cross-examination, PW-8 mentioned that at the place of incident, he did not find any pieces of broken water pot (clay pot), however, he did recover the footwear from the place of incident. The said PW-8, after considering Exh. 26, Exh. 39, Mark 4/10 and Mark 4/11, mentioned that the said Exh. 26 and Exh. 27 bears his signature.
24. The clothes of the victim and vaginal swab, nail and pubic hair were sent for FSL test/examination. The FSL report gives out that presence of semen was not found on sample No. 1 (dress/blouse - top of the victim girl) or sample No. 2 (victim girl''s pajama - bottom dress) or on sample Nos. 3, 4 and 5 (i.e. clothes of the appellant). According to FSL, presence of blood was found but presence of semen was not found on sample No. 6(3), i.e. vaginal swab or sample No. 6(4), i.e. pubic hair. The presence of blood found on vaginal swab [sample No. 6(3)] was found to be blood group ''B''. The victim''s blood group is ''B'', whereas accused''s blood group is ''AB''.
25. The certificate (Exh. 13) dated 25.8.2009 in respect of the victim issued by the Medical Officer at CHC who examined the victim girl, records that:
"Injury Marks:- Nail marks on the back (lower part), abrasion multiple on the back, nail mark on the it breast, nail mark on the both bullocks, abrasion on the bullock, abrasion on elbow.
Any stains over the body:- No stain over body.
Private Parts:- Hymen ruptured (illegible) Nail mark on the it breast. No other injury mark over private parts. No blood/stains over private parts. Labia majora, labia minor has not lost complete (illegible). Hymen opening admits 1 finger.
Opinion:- Whether intercourse has been done or not, after the gynecological (experts) opinion - No specific opinion regarding intercourse is done or not is given by gynecologist. So the opinion cannot be given by myself."
26. In his deposition, PW-1 doctor (who examined the appellant) mentioned that he had asked the appellant about the details/history of the incident and the appellant himself claimed that the victim had made sign and gesture and asked him to do sex (by sign) so he started doing sex then suddenly somebody came and he ran away and that full intercourse had not been done.
27. The doctor (PW-1) mentioned the said statement/details in the injury certificate dated 28.8.2009 issued by him after examining the appellant and he also mentioned the same facts in his deposition.
28. It is pertinent that all these incriminating aspects were put by the Court to the accused while recording his further statement. It is also relevant that while recording appellant''s further statement, the learned trial Court had put specific questions (questions No. 5 to 8) to the appellant and brought to his notice the deposition by PW-1 doctor and the details mentioned in the certificate and also about the marks found on his body as certified by the doctor, however, the appellant, without offering any reply/explanation, merely said that the deposition of the doctor and the certificate are incorrect.
29. It is also relevant that in his further statement (under section 313 of Cr.P.C.), the appellant - accused in his reply to the question by the Court as to whether the appellant desired to add or state anything, said that he desired to file his further statement in writing. In furtherance of the said statement, the accused submitted a statement (in writing) dated 26.4.2010. In his said statement, the appellant has mentioned that there was some dispute and ill-will between him and brother of victim''s brother in the matter of payment of his labour charges and that he had not committed rape or used any force. He also stated that the victim had come to fetch water and she instigated/annoyed him, therefore, he broke her water pot and also put mud in her hair but he had not committed rape. With reference to the further statement of the accused - appellant, it is relevant to recall the history of the incident mentioned by the appellant before the doctor who examined him.
30. The written statement tendered by the appellant (at the time when his further statement under section 313 was recorded) brings out that (a) the evidence by the victim''s mother that the victim girl had taken a water-pot to fetch water and had gone to the water pump to fetch water is corroborated and established; (b) the presence of the appellant at the place of incident when the victim reached the water pump is also established; (c) the evidence by PW-2 that the appellant had met the victim at the water pump, is also established.
31. The contents of said panchnama Exh. 39 supports and corroborates the deposition by the doctor and a conjoint reading of the said Exh. 39 and the written statement tendered by the appellant as part of his statement under section 313 also corroborates the deposition by the victim''s mother about what PW-3 had told her as well as the fact that he was actually astride the victim girl and since he saw PW-3, he did not complete sexual intercourse.
31.1 From conjoint reading of the deposition by PW-1 (wherein the doctor - PW-1 mentioned the history of incident narrated to him by the appellant) and the appellant''s statement under section 313 , the panchnama of place of the incident and the recovery panchnama, the presence of the appellant at the place of incident, his meeting and encounter with the victim are established.
31.2 It is appropriate to recall that the PW-1 doctor has mentioned in his deposition and in the certificate issued by him that while narrating the history of the incident, the appellant claimed before PW-1 doctor that since at the place of incident, the victim made certain sign and gesture whereby he understood that the victim had asked (by sign) him to do sex so he started doing sex then suddenly somebody came and he ran away and that sexual intercourse had not been completed.
31.3 From the facts and circumstances of the case and in light of the evidence available on record, more particularly the deposition by doctor (PW-1) examined the victim as well as the accused - appellant and in light of the certificate dated 25.8.2009 issued by the doctor and in light of the details mentioned by PW-1 in his deposition with regard to the history of the incident which the appellant had narrated before him and in light of the panchnama (Exh. 39) and the further statement of the appellant recorded by the learned trial Court under section 313 of the Code, it has emerged that-
(a) the fact that the victim girl had gone at the place of incident, is established;
(b) at the time when the victim girl reached the place of incident, the appellant - accused was present, is also established;
(c) the fact that the appellant met the victim and he had put mud in the hair of the victim, is established;
(d) the fact that the appellant''s footwear was found at and recovered at the place of incident (as mentioned in the panchnama Exh. 39), is also established and the said fact also establishes presence of the appellant - accused at the place of incident;
(e) In light of the history of the incident narrated by the appellant before the doctor, it has also come out that the appellant himself said that he was doing sex (with the victim) and someone suddenly came, so he ran away;
31.4 The learned counsel for the appellant relied on the decision in case of Raja vs. State of Rajasthan (supra). In the said decision, the High Court, after considering the evidence on record, convicted the appellant for offence punishable under section 354 . In the said decision, the High Court also recorded the conclusion that the prosecution had failed to prove that the act of the appellant went ahead of the act of preparation for commission of sexual intercourse and concluded that the prosecution had proved the offence under section 354 of I.P.C. but failed to prove the charge for offence under section 376 .
31.5 Whereas in present case it has come out from the evidence that the appellant had, after having made the victim lie down on the ground, removed his trouser and had lifted the clothes of the victim. It has also come on record that while narrating the incident before the doctor, the appellant himself mentioned that he was astride and above the victim and that ''he was doing sex but someone came and therefore it was not completed''.
31.6 Thus, in present case the appellant had, according to his own statement, went ahead of the act of mere ''preparation'' for commission of sexual intercourse and that, therefore, the said decision does not help the appellant. The said decision is based on peculiar and special facts of that case and extent of evidence on record.
31.7 In present case there is, on record, appellant''s statement before the doctor and according to the deposition of the Doctor (P.W. 1) the appellant had mentioned, during his narration of the history of the incident, that he had started sexual intercourse/sex with the victim and at that time some woman came, and that therefore, he ran away from the place of incident. He mentioned similar details before panch and the details mentioned by him are found in Exh. 39.
32. While on this count, it is also relevant and appropriate to recall that according to the deposition of the victim the appellant had pressed her chest and had removed her clothes and pressed her mouth with his hand.
32.1 The Doctor (P.W. 1) has recorded the details of the history of the incident mentioned by the appellant in the certificate. While recording the details of the history of the incident narrated by the appellant the doctor has mentioned that "Geetaben Chauhan called him and asked him to do sex (by sign) so he started doing sex then suddenly someone come and he ran away. According to full intercourse has not been done".
32.2 In light of such evidence and so as to find out whether the learned trial Court''s conclusion with regard to commission of offence under section 376 is correct and justified or not, it is appropriate to take into account the provision under Section 375 of the Indian Penal Code. The relevant part of Section 375 reads thus:
"375. Rape-A man is said to commit "rape" if he-
(a) ....
(b) .....
(c) manipulates any part of the body of a woman so as to cause penetration into the vagina, urethra or anus or any part of body of such woman or makes her to do so with him or any other person; or
(d) ..... "
Under the circumstances falling under any of the following seven descriptions:
"First: Against her will. Secondly: Without her consent.
Fourthly:-......
Fifthly:-......
Sixthly:-.......
Seventhly:-When she is unable to communicate consent."
32.3 On this count it is appropriate to note that in light of the provision under Section 376 of the Indian Penal Code read with Section 375 of the Indian Penal Code, it is not necessary, so as to prove the commission of the offence punishable under Section 376 of the Indian Penal Code, to establish that the act of sexual intercourse was complete and/or that the accused had ejaculated and there was discharge on account of the intercourse.
32.4 On this count it is appropriate to refer to the observations by Hon''ble Apex Court in the case of
32.5 It is relevant to mention that in the certificate dated 25.8.2009, the doctor mentioned that ''hymen ruptured ... ... (illegible)'' and in the certificate the doctor who examined the victim mentioned that ''hymen was not torn completely. A small 2-3 mm tear proximal to hymen on the post. vagina''. In view of such remarks in the certificates even if one proceeds on the premise that hymen was not ruptured completely but there was small tear of 2-3 mm, then also the appellant''s contention that he had not committed sexual intercourse, cannot be accepted and merely because the victim''s hymen was not completely ruptured, such fact cannot lead to and cannot justify conclusion or even inference that the offence punishable under section 376 read with section 375 was not committed. On this count, as mentioned above, it would be appropriate to refer to the observations in the case of Madan Gopal Kakkad (supra), wherein Hon''ble Apex Court observed, inter alia, that:
"14. 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 realizing 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 neighbors 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 ....................."
15. 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 I.P.C. or under section 376 read with 511 I.P.C. but only one under section 354 I.P.C. 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."
32.6 At this stage, it would be also appropriate to mention that in paragraphs No. 37 and 38 in the said decision, Hon''ble Apex Court made reference of the commentary from Modi''s Medical Jurisprudence and Toxicology (21st Edition) and also quoted from Parikh''s Textbook of Medical Jurisprudence and Toxicology, which read thus:
"37. We feel that it would be quite appropriate, in this context, to reproduce the opinion expressed by Modi in Medical Jurisprudence 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 sufficient for the purpose of the law. It is therefore quite possible to commit legally the offence of rape without producing any injury to the genitals or leaving any seminal stains. In such a case the medical officer should mention the negative facts in his report, but should not give his opinion that no rape had been committed. Rape is crime and not a medical condition. Rape is a legal term and not a diagnosis to be made by the medical officer treating the victim. The only statement that can be made by the medical officer is 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)
38. 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."
32.7 In para 39 of the decision, Hon''ble Apex Court referred to the Encyclopedia of Crime and Justice. In para 40, Hon''ble Apex Court referred to Halbury''s Statute (4th Edition). The said paras 39 and 40 of the decision read thus:
"39. In Encyclopedia of Crime and Justice (Vol. 4) at page 1356, it is stated:
" ..... even slight penetration is sufficient and emission is unnecessary."
40. 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"
32.8 In the said decision, Hon''ble Apex Court upturned the conclusion by High Court holding the accused guilty for offence punishable under section 354 of I.P.C. and held the accused guilty of offence under section 376 of I.P.C.
32.9 Whereas in present case, it has come out from the record, more particularly medical evidence i.e. deposition by Doctor and Certificates issued by Doctor after examination of the victim that hymen opening admitted one finger and that there was tear of 2-3 mm proximal to hymen on the Post. Vagina and there were nail marks on the back (lower part) abrasion and nail mark on left breast of the victim as well as nail mark on both the buttocks of the victim (according to certificate dated 28.05.2009, Page No. 85).
32.10 When deposition of the victim that the appellant removed her clothes and pressed her chest is considered in light of Section 375 of the Indian Penal Code - more particularly in light of clause (c) of said section coupled with the details mentioned by the appellant before the Doctor by narrating the history of the incident, wherein he mentioned that while he was doing sex suddenly somebody came, and therefore, he ran away and when Exh. 39 is taken into consideration and when the said aspects are examined conjointly and in totality, then it emerges that section 376 read with section 375 are attracted in this case and the offence under said provision is established and there is no justification to hold the appellant guilty for offence under section 354 . In the facts of the case this Court is of the view that the conclusion by the learned Trial Court is justified and cannot be faulted.
32.11 In light of the facts of present case and in view of evidence available on record, more particularly evidence by P.W. 1 (before whom the appellant narrated history of the incident), it emerges that from amongst the seven descriptions under section 375 , the descriptions viz. firstly and/or secondly and/or seventhly of Section 375 would be attracted and applicable in present case.
33. In the above mentioned judgment in case of Madan Gopal Kakkad (supra) Hon''ble Apex Court observed, inter alia, that:
"15. 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 I.P.C. or under section 376 read with 511 I.P.C. but only one under section 354 I.P.C. 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."
34. In this view of the matter, when evidence of PW-1 doctor who examined the accused and before whom the accused narrated the history of the incident, is considered, who has also mentioned in his deposition that he found the upper part of hymen torn and one finger penetration was possible forcefully and who also mentioned in his deposition that the marks of injury found on the body of the victim were such which would occur if the person was made to lie down and force was applied and when the certificate dated 25.8.2009 (page 85) issued by the doctor is considered along with evidence of PW-1 doctor and when the details mentioned by the accused while narrating the history before the doctor as well as when the panchnama Exh. 39 was drawn, are also considered conjointly, then the cumulative effect of such material and evidence on record leads the Court to the conclusion that in facts of present case, provision of section 376 read with section 375 is attracted and is applicable and the offence committed by the accused falls within purview of section 376 read with section 375 and this Court is not inclined to accept the plea of learned advocate for the appellant to hold that the offence falls within purview of section 354 of I.P.C. For the foregoing reasons, this Court is of the view that the offence falls within purview of section 376 read with section 375 of I.P.C.
35. In present case, on overall assessment of entire set of evidence, it emerges that the learned trial Court has not committed error in recording conclusion against the appellant and holding the appellant guilty for commission of the offence and the learned trial Court has also not committed error in concluding and holding that the offence committed by the appellant falls within purview of section 376 and is punishable under said section, i.e. section 376 of I.P.C.
36. So far as the sentence is concerned, learned advocate for the appellant submitted that the appellant has responsibility to look after his old mother and considering the report of the doctors, the sentence may be reduced to the extent undergone by the appellant.
In light of the facts and circumstances of the case and in view of the above discussion and for the foregoing reasons, the conviction recorded in the judgment and order dated 11.5.2010 passed by the learned Sessions Court, Anand in Sessions Case No. 112 of 2009 against the appellant holding him guilty and convicting him (i.e. original accused) for the offence punishable under section 376 read with section 375 of I.P.C., is confirmed. This Court has not disturbed the conclusion by learned Sessions Court, Anand in Session Case No. 112 of 2009 so far as the conviction of present appellant is concerned. However, so far as the sentence awarded by the learned Sessions Court, Anand in Sessions Case No. 112 of 2009 is concerned, this Court is of the view that having regard to the facts and circumstances of the case and considering the fact that the appellant has responsibility to look after his old mother, ends of justice will be met if the sentence awarded by the learned Sessions Court, Anand in Sessions Case No. 112 of 2009 by virtue of the judgment and order dated 11.5.2010 is modified/reduced to simple imprisonment for 7 years instead of 10 years simple imprisonment awarded by the learned trial Court. Therefore, it is directed that the judgment and order dated 11.5.2010 passed by the learned Sessions Court, Anand in Sessions Case No. 112 of 2009 is modified only so far as the sentence is concerned and the sentence awarded by the learned Sessions Court, Anand is hereby modified/reduced to simple imprisonment for 7 years instead of 10 years of simple imprisonment.
Consequently, in light of the above discussion and for the foregoing reasons, this Criminal Appeal No. 794 of 2014 is partly allowed qua the sentence, while the conviction is confirmed. The conviction as recorded by the Sessions Court, Anand against the appellant stands confirmed and the rest of the judgment and directions passed by the Sessions Court, Anand in light of section 428 of Code of Criminal Procedure are confirmed and maintained as it is and all other directions issued by the learned Sessions Court, Anand by judgment and order dated 11.5.2010 in Sessions Case No. 112 of 2009 shall operate as it is, i.e. as per the directions in the judgment and order dated 11.5.2010.
This Court is informed that the appellant, i.e. original accused - convict is in Jail/Custody, therefore, any other directions are not required to be passed. However, it is clarified that if the appellant is granted bail and if the appellant has not completed the sentence, then the bail and bail bond stand cancelled and the appellant shall immediately surrender to the Jail Authority and complete the sentence as directed by present judgment. If the appellant is on bail and he fails to surrender, the concerned learned trial Court shall issue non-bailable warrant to effect arrest of the appellant - convict. The Record & Proceedings to be sent to the concerned learned trial Court forthwith.
