@JUDGMENTTAG-ORDER
Aruna Jagadeesan, J.@mdashThis revision is filed against the order passed by the learned Judicial Magistrate No. 3, Madurai Cum learned
Principal Magistrate, Juvenile Justice Board, Madurai, in Cr.M.P. No. 243 of 2008 in J.C. No. 165 of 2006 refusing to discharge the
petitioner/accused from the charges. The petitioner/accused was charged for the offence punishable u/s 376(2)(F) of IPC. After completion of
investigation, the Inspector of Police, D2 Sellur Police Station, filed a charge sheet against the petitioner/juvenile accused. Aggrieved by the said
charges, the revision petitioner filed a petition for discharge on the file of the above said court and the same was dismissed by order dated
04.09.2013. Aggrieved by the same, the present revision has been filed. Mr. N. Anandapadmanabhan, learned counsel appearing for the
petitioner would submit that FIR was recorded as narrated by the father of the victim girl, who is neither a witness nor a person to whom the victim
directly confided.
2. It is submitted that the victim was enquired by the mother-in-law of the informant to whom she alleged to have made a statement who in turn
informed the same to the mother of the victim and she explained this to the informant/defacto complainant/the father of the victim. Therefore, the
learned counsel appearing for the petitioner would submit that it is not safe to rely upon such statement to put the accused on trial.
3. The learned counsel for the petitioner would further submit that medical report in the instant case is the most independent and vital document
wherein the Doctor has recorded what was stated by the victim to him at the time when she was brought to the Doctor which is diametrically
opposite to the version recorded in FIR. The medical records dated 17.07.2006 do not mention about any complaint of pain by the victim girl. The
statement recorded by the medical expert would show that the victim girl was not subjected to sexual intercourse. The learned counsel further
pointed out that as per the statement given by the victim girl to the Doctor it is seen that her dress was intact and there was no attempt to remove
the same, neither there was any penetration. Referring to the said statement, he would submit that there was no intercourse or penetration that is
legally required to attract the mischief of Section 376 of IPC.
4. The learned counsel contended that the necessary and essential ingredients of the offence u/s 376 IPC being the performance of intercourse that
becomes complete by penetration and the same is totally missing in the present case as found in the medical record prepared on the statement
given by the victim on 17.07.2006 and therefore, he would submit that prima facie the offence u/s 376 IPC is not at all attracted. He would further
contend that even if the prosecution case is taken as such it would attract only an offence u/s 354 IPC. Thus, the learned counsel for the petitioner
would submit that the court below without considering the said aspects has dismissed the petition for discharge which is liable to be set aside. He
would further plead that on the facts and circumstances and the medical report submitted by the prosecution the trial court can be directed to frame
charge under Sections 354 IPC instead of Section 376 IPC.
5. On the other hand, Mrs. S. Prabha, learned Government Advocate submitted that the trial court on analyzing the material placed on record
found sufficient material to presume that the victim girl has been subjected to sexual intercourse and therefore, the trial court has rightly dismissed
the petition for discharge and directed the juvenile accused put on trial.
6. Heard the rival submission made by both parties.
7. At the outset, it has to be pointed out that at the stage of framing of charges it has to be considered whether there is a ground for presuming
commission of offence or whether the charge is groundless. Therefore, all that is required at this stage is to see whether a prima facie case
regarding the commission of offence alleged is made out. The question whether the charge will eventually stand proved or not can be determined
only after evidence is recorded in the case. The case cannot be decided on the merits without giving the prosecution an opportunity to adduce
evidence against the accused. Surmises and assumptions at this stage without the assistance of evidence will lead to failure of justice.
8. It is true that Section 239 Cr.P.C. invest the Magistrate with jurisdiction of discharging the accused in an appropriate case but that right must be
judicially exercised. A roving enquiry into the merits and demerits in detail to decide whether a particular charge will ultimately stand scrutiny or not
cannot be had. The court can only consider the materials as it is without assessing their acceptability during trial on the assumption that they are
correct and they will be properly proved in the case. It is trite that the evaluation of the evidence will be only at the stage of trial. The materials
placed will not have the status of evidence. Viewed in the light of the above said legal principles, we have to see whether the contentions raised by
the learned counsel appearing for the petitioner are tenable.
9. The prime contention of the learned counsel appearing for the petitioner is that the statement recorded by the Doctor on 17.07.2006 disclosed
that she was called by a known person, who was her neighbour, to his home taken to the terrace along with her sister, where she was forced to lay
down, and removed his pants and he lay down on the girl who was fully dressed and the girl stated to have uttered the words ''cs;Bs
Bghfkhl;BlA;FJ'''' and he pressed over her abdomen. Thereafter, he left her after some time and the girl went off to play. The victim has also stated
that her dress was strained with blood. Referring to the above statement, the learned counsel would argue that there was no penetration to attract
the offence u/s 376 IPC and therefore, the petitioner/juvenile accused cannot be tried for the offence alleged against him.
10. His further contention is that the first informant namely the father of the victim girl had no direct information from the girl and the same was
passed on to him through his wife who in turn was informed by his mother-in-law. Therefore, he would submit that the statement recorded by the
Doctor assumes important and plays a vital document to come to a conclusion whether the charge u/s 376 IPC laid against the accused would be
maintainable.
11. I am afraid that I am unable to accept the contentions put forth by the learned counsel appearing for the petitioner. The statement recorded by
the Doctor from the victim girl clearly indicated that the victim girl was taken to terrace and was made to lay down and further he lay down on the
girl. The girl has stated that he uttered the words ''cs;Bs Bghfkhl;BlA;FJ'''' and on hearing so he had pressed over her private part and thereafter,
she was let and the girl went off to play. It is important to note that the girl has stated that her dress was strained with blood. The dress worn by the
girl was subjected to chemical analysis and the scientific expert has detected blood on the jatti, chemise (worn by the victim girl) and the jatti worn
by the accused/petitioner.
12. At this juncture, it is relevant to state that for satisfying the ingredients of rape, it is not necessary that there should be complete penetration.
The same is laid down by the Hon''ble Supreme Court in Ramkripal Charmakar Vs. State of Madhya Pradesh, and Guddu @ Santosh Vs. State
of Madhya Pradesh, . It is held that even partial or the slightest penetration is sufficient with or without emission and rupture of hymen or even an
attempt is sufficient to attract the offence u/s 376 IPC as envisaged in the ingredients which are essential for proving the charge of rape. To
constitute an offence of rape, neither Section 375 IPC nor the explanation attached thereto required that there should necessarily be complete
penetration of penis into the private part of the victim. In other words, to constitute an offence of rape, it is not at all necessary that there should be
complete penetration of the male organ into the private part of the victim with emission and rupture of hymen. Even partial or the slightest
penetration of male organ with labia majora labia minora, hymen torn and vaginal orifice with or without any emission of semen or even an attempt
of penetration into the private part of the victim would be quite enough for the purpose of Sections 375 and 376 of IPC. On being so, it is quite
possible to commit legally the offence of rape even without causing any injury to the gentiles of leaving any seminal stains.
13. In the instant case, the victim is only 8 years old at the time of occurrence. She cannot be expected to vividly narrate about the act at that age.
The medical report would clearly disclose that she had blood stain after the incident. That apart, the utterance made by her as ''cs;Bs
Bghfkhl;BlA;FJ'' would only mean that when she was asked by him, she had uttered that it was not going into her private part. From the above, it
may be presumed that there may not be complete penetration. However, in the light of the judgment of the Hon''ble Supreme Court cited supra,
complete penetration is not required and even slightest penetration is sufficient to attract the commission of offence. In this case, there is sufficient
evidence to presume that the victim girl has been subjected to sexual intercourse. That apart, it is relevant to state that very strong suspicion found
on material is sufficient to frame charge. The exercise at this stage is confined to consider the police report and the documents to decide whether
the allegations against the accused are groundless or whether there is ground for presuming that the accused has committed an offence.
Presumption can always be rebutted by the petitioner/accused for which he has the opportunity of participation in the trial. On the materials placed
on record a strong suspicion having been created in mind that the petitioner/accused might have committed this offence, it is difficult to discharge
the accused. Acceptability of the materials collected during investigation is at further stage during trial in the light of defence raised and the
possibility of those materials can be decided only when legal evidence is adduced by the prosecution. In short, the aspects which ought to have
been considered only at trial cannot be considered at this stage in taking the decision to order discharge.
14. I am of the clear view that there is sufficient material to presume that the victim girl has been subjected to sexual intercourse and therefore, the
plea that the accused was entitled for discharge for the offence u/s 376 IPC is not tenable. At this stage, it is also not possible to frame charge u/s
354 IPC in stead of Section 376 IPC since prima facie case is made out against the petitioner/accused. Therefore, the impugned order rejecting
the application for discharge passed by the learned Judicial Magistrate No. 3, Madurai cum Principal Magistrate, Juvenile Justice Board, Madurai
is proper and it cannot be held that the impugned order rejecting the application for discharge is either bad in law or without any material basis.
Accordingly, this revision is dismissed. Consequently, connected M.P. is also closed. However, it is made clear that the observations made by this
court would not affect the ultimate analysis and final verdict of the learned Judicial Magistrate No. 3, Madurai cum Principal Magistrate, Juvenile
Justice Board, Madurai.
