Makhan Lal Dongare vs State of Chhattisgarh

Pritinker Diwaker, J.—This appeal is directed against judgment dated 25-11-2004 passed by the Sessions Judge, Rajnandgaon, in Sessions Trial No. 176/2004 convicting the appellant for the offences punishable under Sections 450, 376 (2)(f), 201 and 506-B of the Indian Penal Code and sentencing him to undergo rigorous imprisonment for one year, ten years, six months and six months on each respective count. Facts of the case in brief are that on 14-7-2004 FIR (Ex. P-9) was lodged by Sumitra (PW-3), the mother of the prosecutrix alleging that on 11-7-2004 when she returned home from her work, she was informed by the prosecutrix (PW-1) aged about 6 years that when she was alone in her house, accused/appellant made an entry therein, removed her frock and committed sexual intercourse with her. It is further alleged that when the intercourse was being committed by the accused/appellant, she had acute pain in her private part. After completion of the investigation charge sheet was filed against the accused/appellant.

So as to hold the accused/appellant guilty, prosecution has examined as many as 11 witnesses. Statement of the accused/appellant was also recorded u/s 313 of the Code of Criminal Procedure in which he denied the charges levelled against him and pleaded his innocence and false implication in the case.

After hearing the parties the trial Court has convicted and sentenced the accused/ appellant for the offences mentioned above.

Heard counsel for the parties and perused the material available on record including the judgment impugned.

Counsel for the appellant submits that the appellant has been falsely implicated in the case as there was some dispute between him and the father of the prosecutrix regarding fencing of the house. He submits that this fact has been admitted by the prosecutrix (PW-1). He further submits that though the incident is said to have taken place on 11-7-2004, report of the same was lodged on 14-7-2004 and thus there is inordinate delay in lodging the FIR which has not been satisfactorily explained by the prosecution. Lastly he submits that the medical report of the prosecutrix also does not support the case of the prosecution as according to the statement of Dr. (Smt.) Sushma Kumre (PW-7) the hymen of the prosecutrix was found to be intact. Accused/appellant was also sent for medical examination to District Hospital, Rajnandgaon where Dr. K. Jain (PW-6) examined him and opined that he was capable of performing sexual intercourse. He further submits that as the prosecution has failed to establish the act of penetration and that the hymen of the prosecutrix remained intact, at the most the appellant may be convicted u/s 376/511 IPC.

On the other hand counsel for the respondent/State supports the impugned judgment and submits that the delay in lodging the FIR has been duly explained by Sumitra (PW-3) who has stated that as the accused/appellant had threatened the prosecutrix to kill her, prompt report could not be lodged. He further submits that so far as the dispute of fencing is concerned, no person of common prudence would involve his/her daughter in such an offence and spoil her entire life. He submits that this witness has categorically denied the suggestion put by the defence counsel in respect of there being any previous dispute between the parties. He submits that statement of the prosecutrix is duly corroborated by the medical evidence and therefore, the conviction and sentence awarded to the appellant is just and reasonable.

Perusal of the material available on record shows that the prosecutrix (PW-1) has categorically stated that when on the date of incident she was in her house along with her younger brother, accused made an entry thereto, gave some eatables to her younger brother and sent him to another room, closed the doors, made her lie on the cot, removed her undergarment as well as that of his own, got over her and then inserted his private part into her private part as a result of which there was bleeding which the accused had washed out with soap and asked her that if she disclosed the incident to any one, she would be cut into pieces and thrown into the brook, Thereafter in the evening, the prosecutrix narrated the incident to her mother who reported the matter to the police. Mother of the prosecutrix namely Sumitra (PW-3) has staled in her evidence that when she returned home from her work-place, the prosecutrix told her about her being subjected to sexual intercourse by the accused/appellant. She has further stated that prosecutrix showed her private part to her where there was swelling and blood was also present. According to this witness, the accused/appellant had threatened the prosecutrix to be killed if she disclosed incident to any one. This witness has however denied any previous enmity with the accused on account of erection of fencing.

Dr. (Smt.) Sushma Kumre (PW-7) who examined the prosecutrix has stated in her evidence that the labia majora and labia minora were not developed, there was abrasion and redness in the internal part of labia minora, her vagina entered the little Finger tip with difficulty and the hymen was intact. This witness has further stated that at the time of examination the prosecutrix was aged about 6 years.

The contention of the counsel for the appellant that as the hymen of the prosecutrix was found intact, it can be presumed that the prosecutrix was not subjected to forcible sexual intercourse, has no force because it is a settled position that 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. 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. As regards delay in lodging the FIR, it stands satisfactorily explained by the statements of the prosecutrix and her mother Sumitra (PW-3) in which they have stated that the accused had threatened the prosecutrix that disclosure of the incident to anyone would be of dire consequences to her. Further contention of the counsel for the appellant regarding false implication of the appellant due to be erection of fencing stands struck down for the reason that no person of common prudence would come forth with such a mean allegation endangering the entire further of his/her daughter. Though the entire evidence of the prosecutrix as well as the medical evidence available on record does not establish the commission of actual rape, the same is sufficient to prove that an attempt to commit rape was made by the appellant.

So far as the question of hymen being intact is concerned, in case of a girl of tender age, rupture of hymen, in the event of penetration, is not as a matter of rule. In cases where the hymen is deep seated, it may not rupture though there may be a penetration, to case of a forcible attempt to penetrate also, there are chances that the hymen of the victim may not rupture particularly when it is deep seated. The presence of redness and inflammation over the vagina is at least a sign that either a complete penetration has taken place or a partial penetration has taken place or a forcible attempt to penetrate was made against the victim. Modi opines in his Medical Jurisprudence that in small children, the hymen is not usually ruptured, but may become red and congested along with the inflammation and bruising of the labia. If considerable violence is used, there is often laceration of the fourchette and the perineum. Please see Modi''s Medical Jurisprudence and Toxicology, 23rd Edn., page 928.

In the mater of Aman Kumar and Another Vs. State of Haryana, it has been held by the Supreme Court as under:

Para 7--the rupture of hymen is by no means necessary to constitute the offence of rape. Even a slight of penetration in the vulva is sufficient to constitute the offence of rape and rupture of 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. In examination of genital organs, state of hymen offers the most reliable clue. While examining the hymen, certain anatomical characteristics should be remembered before assigning any significance to the findings. The shape and the texture of the hymen is variable. This variation, sometimes permits penetration without injury. This is possible because of the peculiar shape of the orifice or increased elasticity. On the other hand, sometimes the hymen may be more firm, less elastic and gets stretched and lacerated earlier. Thus a relatively less forceful penetration may not give rise to injuries ordinarily possible with a forceful attempt. The anatomical feature with regard to hymen which merits consideration is its anatomical situation. Next to hymen in positive importance, but more than that in frequency, or 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 IPC.

In the matter of Koppula Venkat Rao Vs. State of Andhra Pradesh, , it has been held by the Apex Court that when the evidence of the prosecutrix is considered in the proper perspective and it becomes clear that commission of actual rape has not been established but the evidence is sufficient to prove that attempt to commit rape was made, the conviction has to be altered from section 376 IPC to section 376/511 IPC.

Thus after putting the entire evidence available on record particularly the evidence of the prosecutrix to judicial scanner, this Court reaches the conclusion that the act of the appellant squarely falls within the parameters of Section 376(2) (f)/511 coupled with other sections and not u/s 376 (2)(f) coupled with other sections of the Indian Penal Code. Accordingly the conviction of the appellant is altered to sections 376/511 coupled with conviction under other sections of the IPC and the appellant is sentenced to undergo RI for five years instead of RI for ten years u/s 376/511. Rest of the findings recorded by the trial Court including the sentence of fine shall remain undisturbed. Consequently, the appeal partly succeeds to the extent indicated above.