Ram Naresh vs State of Uttarakhand

Hon''ble Servesh Kumar Gupta, J.—This is a jail appeal preferred by the convict appellant, being in caption, challenging the judgment and order dated 09.01.2008 rendered by Additional Sessions Judge, Dehradun in Sessions Trial No. 155 of 2006 titled as State Vs. Ram Naresh. In the said judgment, learned Additional Judge has found the appellant guilty for the offence u/s 363, 366, 376 IPC. Appellant was sentenced to undergo 7-year rigorous imprisonment along with fine of Rs. 5,000/- u/s 363 IPC and in default of payment of fine, he was directed to undergo one year''s additional imprisonment. He has been sentenced to undergo 7-year rigorous imprisonment nay fine Rs. 5000/- u/s 366 IPC and in default of payment of fine, he has been directed to undergo one year''s additional imprisonment. He has been sentenced to undergo 10-year rigorous imprisonment nay fine of Rs. 10,000/- u/s 376 IPC and in default of payment of fine, he has been directed to undergo 2-year''s additional imprisonment.

The incident relates back to 02.08.2006 at about 07.00 p.m., within the territorial jurisdiction of Police Station Patel Nagar, District Dehradun. The victim is an infant baby of 3-4 year of age while accused is a man of 33-year. Family of the victim and accused resided in tenanted rooms situated diagonally within the same precinct. Father of victim Allauddin was a labour and had left his house on the fateful day in the morning. When he reached to his abode at about 07.00 p.m. in the evening, he noticed that his 3-year old daughter named Nagma was lying on the ground and his wife & children were weeping. On being asked the reason, it was disclosed by Nazima (his wife) that Ram Naresh (neighbour), resident of Seewan, Bihar Province, took Nagma to his room and raped her. Hearing the screams, they rushed to the room of Ram Naresh. When accused felt presence of Nazima and Haseena (sister of victim) outside the gate of his room, he opened the door of room and escaped from the spot shoving the incumbents and leaving the victim inside room. They noticed that blood was oozing from the private part of Nagma. She was indicating, as if, she was suffering with pain. After hearing Nazima, Allauddin lodged the First Information Report at Police Station, which is Exhibit Ka-1 (Chick First Information Report is Exhibit Ka- 11) on the same day at about 08.20 p.m. After investigation police submitted charge sheet against Ram Naresh for the offence u/s 376, 511 IPC, which is Exhibit Ka-10.

Prosecution has examined PW1 Allauddin, PW2 Nazima, PW3 Haseena, PW4 Sub Inspector K.S. Gabriyal, PW5 Dr. Padma Rawat and PW6 Dr. G.S. Rana Radiologist. After recording the evidence, statement of Ram Naresh was recorded u/s 313 Cr.P.C. in which he denied the occurrence. Accused appellant in his defence disclosed that Allauddin has taken some money to perform marriage of his sister and when money was demanded back instead of returning the debt he was falsely implicated.

Before analyzing and scrutinizing the oral testimony, it is significant to note down the medical report of victim Nagma, who was examined by the Dr. Padma Rawat on the same day i.e. on 02.08.2006 at 10.00 p.m. in Doon Mahila Hospital, Dehradun. She has noted that there was no mark of injury over the body of victim. She has further noted that there was no mark of injury on private part of victim and her hymen was intact and she was of the view that no definite opinion regarding rape could be given. For age estimation, victim Nagma was sent to Dr. G.S. Rana, Radiologist at Doon Hospital and the medical examination report prepared by Dr. G.S. Rana is Exhibit Ka-13. In the supplementary report, which is about vaginal smear, it has been noticed that no spermatozoa was found. As per radiologist report, after examination of various bones joints her age was detected to be 3-4 year. These supplementary reports are Exhibit Ka- 15 and Ka-16. It is also pertinent to mention that one stained blue check lungi and one stained white bed sheet were taken into possession by the Investigating Officer and the same were sent to Forensic Science Laboratory, Uttaranchal for examination, report of which is Exhibit Ka- 18. After intensive scientific examination of these two clothes, semen could not be detected on either of the clothes while hymen blood was detected on them.

Accused Ram Naresh was charged for offence u/s 363, 366, 376 IPC by the learned Sessions Judge, Dehradun and after recording the evidence, so deposed by the prosecution, he has been convicted as aforementioned.

Learned Amicus Curiae defending the appellant has argued that it was not a case of kidnapping, abducting or inducing a woman to compel her for marriage, as learned Sessions Judge has found him guilty. This Court agrees with this contention because victim at the relevant time was playing along with her elder sister Haseena, aged about 12-year just outside the gate of her house, so at the most it can be said that she was taken away by accused for the alleged mischievous offence and the offence is said to be covered u/s 361 IPC punishable u/s 363 IPC. Learned Amicus Curiae further contended that as regards to the commission of rape is concerned as alleged, no such heinous offence was actually committed because doctor''s report, which was rendered just after the incident, manifests that no injury was found either on the private part or elsewhere in the body of victim and her hymen was intact.

Learned Brief Holder has asserted that for the offence of rape even a slightest penetration is enough to make out the offence. He has relied upon the precedent of Hon''ble Apex Court in the case of State of U.P. Vs. Babul Nath, . In that case too, the victim was of 5-year but the doctor found hymen of the victim completely torn, laceration on all sides of vagina and fresh bleeding was found. From evidence of lady doctor, it was found that a finger could be easily inserted inside the private part of the victim. In that case, the Hon''ble Apex Court has held that the victim was subjected to sexual assault and not merely indecent assault. The Court further held that to constitute the offence of rape, as defined u/s 375 IPC, it is nowhere required that there should necessarily be complete penetration of the penis into the private part of the victim/prosecutrix. In other words to constitute the offence of rape it is not at all necessary that there should be complete penetration of the male organ with emission of semen and rupture of hymen. Even partial or slightest penetration of the male organ within the labia majora or the vulva or pudenda with or without any emission of semen or even an attempt at penetration into the private part of the victim would be quite enough for the purpose of Sections 375 and 376 of IPC. That being so it is quite possible to commit legally the offence of rape even without causing any injury to the genitals or leaving any seminal stains.

The injury report although disclosed the absence of any injury or the emission of semen either on lungi or on the bed sheet recovered from the spot but the fact remains that as per the chemical examination report, some bloodstains were found in both the above clothes. This was obviously the result of attempt, on the part of accused, to commit rape upon the victim. Since the victim was of very tender age i.e. 3-4 years so Court can presuppose that the tenderness or softness of her hymen should have been of the highest degree. Had there been any little force used by the accused on this soft membrane it must have been ruptured by all means. So it can be inferred that there was not even the slightest penetration. At the best this can be said that accused was attempting to commit rape putting his male organ on private part of the victim and this caused oozing of some blood as has been reported by the chemical analyst. So it is not sufficient to make out a complete offence u/s 375 IPC punishable u/s 376 IPC. There was not even a partial or slightest penetration, as has been held by Hon''ble Apex Court to be a condition precedent for punishing for the offence u/s 376 IPC.

PW1 Allauddin was not eyewitness, he has simply reported the incident to police, as per version of his wife Nazima and has proved the same. PW2 Nazima was also not the ocular witness but has deposed that as she knocked the door of Ram Naresh, who was residing in the same vicinity at a distance of some paces, he opened the door and took to his heels and he straightway went to Seewan from where he was nabbed by the police on 08.08.2006. PW3 Haseena aged about 12-year sister of victim, who has corroborated the testimony of her mother PW2 Nazima. PW4 Sub Inspector K.S. Gabriyal, was the Investigating Officer, who has submitted the chargesheet and proved the same in the court. PW5 Dr. Padma Rawat has medically examined the victim just after the incident and proved the injury report submitted by her. PW6 Dr. G.S. Rana Radiologist has medically determined the age of victim and proved the same.

So having a panoptic view, this court finds that no offence u/s 366 is made out. The only offence made out against the appellant is u/s 363, 376 read with 511 IPC. Thus, the appeal is partly allowed. The conviction and sentence as awarded by the trial court is set aside while conviction u/s 363 IPC is restored and conviction u/s 376 IPC is modified to that of u/s 376 read with 511 IPC.

Learned Amicus Curiae has prayed mercy for the appellant with the facts that he is in jail since 08.08.2006, thus, almost 5 year 7 month have already elapsed in caption. He has five children to look after and bring up. So it has been pleaded that sentence already undergone will be enough to meet the ends of justice. This Court taking all the circumstances into account modifies the sentence as under:

i. For the offence u/s 363 IPC appellant will undergo 3-year imprisonment nay a fine of Rs. 2000/- and in default of payment of fine, he shall further undergo 3-month simple imprisonment.

ii. For the offence u/s 376 read with 511 IPC appellant will undergo 5-year and 3-month rigorous imprisonment along with a fine of Rs. 5000/- and in default of payment of fine, he will further undergo 4-month simple imprisonment. Both the sentence shall run concurrently.

The period, under caption, will be adjusted to the sentence awarded by this Court. Let the copy of this judgment be forwarded to the Superintendent of District Jail, Dehradun for compliance. Lower court record be sent back.