Suresh vs State of Haryana

K.K. Srivastava, J.

This is an appeal filed against judgment dated 20.7.1996 passed by Additional Sessions Judge, Sonepat convicting the appellant Suresh under Section 376 of India Penal Code and sentencing him to suffer rigorous imprisonment for seven years and to pay a fine of Rs. 2,000/ and in default of payment of fine to suffer further rigorous imprisonment for a period of six months.

Kumari Sheetal, aged about 12 years, the prosecutrix, daughter of Chaman Lal (PW10), a student of 6th standard had gone to Case herself near her Colony on 31.1.1995 at about 6.00 A.M. The appellant who was standing near a Kotha saw her coming and caught hold of her. The appellant lifted her inside the Kotha where after breaking the string of her Salwar and removing the same sexually assaulted her. The appellant had gagged her mouth by a piece of cloth. The cries of the prosecutrix, however, attracted her Aunt Smt. Roshni and one Smt. Premo (PW.5) to the scene of occurrence. The appellant took to his heels on seeing the aforesaid ladies approaching there. It is alleged that while running away from the place of occurrence the appellant threatened the prosecutrix that in case she divulged about this incident she would be killed. Smt. Roshni took her to the house. The father of the prosecutrix was away from his house and her mother was ill. The father returned home on 3.2.1995 and when he learnt about this incident he went to report the matter to the police and took the prosecutrix with him. The statement of the prosecutrix which is Exhibit PL, recorded by ASI Ram Avtar (PW.8) at Bahalgarh Chowk on the basis of which FIR Exhibit PL/1 was recorded against the appellant under Sections 376/506 of Indian Penal Code at Police Station Rai, the same day at 4.20 P.M. The prosecutrix was sent for medicolegal examination to General Hospital, Sonepat where Dr. R.R. Mittal, Medical Officer (PW.9) examined her the same day at 5.00 P.M. He found the general condition of the prosecutrix as nothing abnormal. The breast had partly developed. The pubic and auxilliary hairs were absent and there was no mark of injury on her body. On examination of vulva, no injury was found therein. There was no clotted blood present and there was no bleeding. The inspection was done after separation of labias (majora and minora) and no injury was detected. The hymen was found intact and did not admit a tip of finger. Per vaginal examination was not done. Two vaginal swabs were prepared form labias for detection of any kind of spermatozoa. The medicolegal report Exhibit PR together with the parcels having four seals containing the swabs and an envelope having six seals and sample seal were handed over to police constable who had escorted the prosecutrix to the hospital for medical examination. Appellant Suresh was apprehended by the Police and taken for medicolegal examination on 5.2.1995 at 8.00 P.M. before Dr. R.N. Tehlan (PW.3). According to the medicolegal report Exhibit PD prepared by Dr. Tehlan, there was nothing to suggest that the accused was incapable of performing sexual intercourse. However, he did not find any fresh mark of injury on the body and secondary sexual characters were well developed, like hairs on pubic area, chest and axilla. The male organs were well developed. The medicolegal report was handed over together with the underwear to the Police Officer accompanying the appellant. After completion of the investigations, the Investigating Officer submitted challan in the Court of the Committing Magistrate Shri A.S. Narang, Judicial Magistrate 1st Class, Sonepat who committed the case to the Court of Sessions vide his order dated 3.4.1995. The learned Additional Sessions Judge to whom the session trial was entrusted for trial, chargesheeted the accusedappellant under Section 376 of Indian Penal Code. The appellant was put on trial after his plea of not guilty to the charge was recorded.

The prosecution examined in all then witnesses. The prosecutrix Sheetal was examined as PW6, Smt. Premo as PW5, Chaman Lal, father of the prosecutrix as PW10 was declared hostile. The Medical Officers Dr. R.N. Tehlan as PW3 and Dr. R.R. Mittal as PW9 were also examined. Formal evidence of Swaraj Dahiya PW1, Physical Teacher, Government High School, Khewra, Sonepat was recorded. He proved the date of birth of the prosecutix as 16.11.1981 and proved the certificate as Exhibit PA bearing the signatures of Principal of the School. Shri A.S. Narang, Judicial Magistrate 1st Class, Ambala, PW2, was examined to prove the statement of the prosecutrix Kumari Sheetal recorded under Section 164 of Code of Criminal Procedure which is Exhibit PB. He formally proved his orders Exhibit PC/1 and PC/2 regarding the statement of the prosecutrix. He had also put questions to satisfy himself that the prosecutrix was intelligent enough to make her statement and this questionnaire was proved as Exhibit PC/3. Constable Rajesh Kumar, PW.4 was examined to prove site plan on the scale Exhibit PE regarding the place of occurrence which he had prepared at the instance of Kumari Sheetal. He showed Kotha with mark ''A'' as the property of one Mangat. This Kotha was not having doors and was surrounded by vacant land. There was no abadi in the neighbourhood. SI Pirthi Singh, PW.7 had submitted challan after completion of investigations which was initially done by ASI Ram Avtar (PW.8).

After recording the prosecution evidence the accusedappellant Suresh was examined under Section 313 of the Code of Criminal Procedure wherein he denied the prosecution evidence led against him and stated that he was innocent and was falsely implicated at the instance of Smt. Premo who bore enmity towards him. Though he stated that he will lead evidence in defence but he did not lead any evidence. The learned Additional Sessions Judge held that prosecutrix Kumari Sheetal had been subjected to rape by accused Suresh and since she was a minor aged below 16 years, her consent notwithstanding the offence of rape was duly established. Consequently, the accused was convicted under Section 376 of Indian Penal Code and sentenced to suffer rigorous imprisonment and to pay fine as indicated above. Feeling aggrieved against his conviction and sentence this appeal has been filed.

I have heard the learned counsel for the appellant and the learned AAG for the State of Haryanarespondent. I have been taken through the evidence on record and have carefully perused the judgment of the learned trial Judge.

The learned counsel for the appellant mainly argued that the evidence of the prosecutrix Kumari Sheetal is not corroborated by the Medical evidence inasmuch as the medical evidence specifically rules out the penetration and he drew the attention of the portion of the statement of Dr. Mittal (PW,.9) wherein he had specifically stated that hymen was found intact and did not admit a tip of finger. He further stated that he did not find any injury, clotted blood or bleeding even after separation of labias. He also stated about his opinion on the basis of the medicolegal report Exhibit PR that no sexual intercourse took place in such a condition with the prosecutrix. So far as the aforesaid submission is concerned, it may be pointed out at the very outset that the medical evidence specifically rules out penetration of the male organ in the vulva of the prosecutrix. The learned Additional Sessions Judge has dealt with the point of penetration and the report and evidence of Dr. Mittal (PW.9) at a great length. He also referred to the commentary of the Taylor''s Principles and Practice of Medical Jurisprudence and reproducing the commentary in para 22 it may be noticed as under :

"Mere redness of the labia minora is not indicative of recent sexual activity and it may be no more than an indication of lack of personal hygiene, especially in young girls. Swelling and tenderness of the labia minora may be indicative of sexual activity, but is certainly not indicative of lack of consent.

Frequently, even in the absence of frank hymenal tearing, there is abrasion and bruising of the hymen and the vaginal orifice. Such a finding is certainly consistent with penetration of the hymenal orifice, but it is often difficult to differentiate between digital and penile penetration. The differential diagnosis must depend on the extent of the bruising, the elasticity of the hymen, and the size of the hymenal orifice.

Penile penetration into the vaginal or the anus of a small child cannot be accomplished without considerable force, and this will very frequently result in some injury to the penis of the assailant."

He has repelled the arguments advanced by the learned counsel for the accusedappellant to the effect that before an act of rape is accomplished, an injury or bruises are must on the vaginal and penile parts of the victim and the offender respectively and in view of the definite findings of the Medical Officers who examined the prosecutrix and the accused, no injury was noticed on male organ or the vagina and that clinched the matter that no penetration took place. The learned counsel for the appellant had placed reliance on the judgment of the Apex Court rendered in the case of Charan Singh and another v. The State of Haryana, 1988 SC Cases 294 (HC) and Balwan Singh v. State of Haryana, 1994 Cr.LJ 2810. While repelling these arguments of the learned counsel for the accusedappellant, the learned trial Judge referred to the commentaries of various authors as under :

In Parikh''s Text Book 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."

In Encyclopedia of Crime and Justice (Vol. 4) at page 1356, it is stated :

".........even slight penetration is sufficient and emission is necessary."

In Halsbury''s Statutes of England and Wales (Forth Edition) Volume 12, it is 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."

In American Jurisprudence, It is stated that :

"Slight penetration is sufficient to complete the crime of rape."

Code 263 of Penal Code of California reads thus :

"The essential guilt of rape consists in the outrage to the person and feelings of the victim of the rape. Any sexual penetration, however slight, is sufficient to complete the crime."

In Gaur''s "The Penal Law of India" 6th Edn. 1955 (Vol. II) page 1678, it is observed :

"Even valuval penetration has been held to be sufficient for a conviction of rape."

In Modi''s Text Book of Medical Jurisprudence and Toxicology (21st Edn. page 369), it has been reported that :

" Thus to constitute the offence of rape it is not necessary that there should be complete penetration of penis with emission of semen and rapture 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 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 Taylor''s Principles and Practice of Medical Jurisprudence at page 69, rape is defined :

"as unlawful sexual intercourse by a man with a female other than his wife, without her consent. The merest penetration of the penis between the labia associated with the lack of consent is sufficient is constitute the offence."

A careful persual of the parts of the text books quoted in the judgment of the learned Additional Sessions Judge the consistent view of all the authorities is that the offence of rape is constituted even if there is the slightest penetration of the male organ in the vagina of the prosecutrix. I may mention that inspite of the great efforts made by the learned trial Judge to quote liberally from various text books and American law, he completely ignored the facts of the instant case and proceeded to record a finding of rape on the basis of comments from the various text books referred to above. In order to constitute the offence of rape, penetration of the male organ in the vulva of the vagina of the prosecutrix is a condition sine qua non. Rape is defined in the Indian Penal Code in Section 375 as under :

"Rape : A man is said to commit "rape" who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following descriptions :

First Against her will.

Secondly Without her consent.

Thirdly With her consent, when her consent has been obtained by putting her or any person in whom she is interested in fear of death or of hurt.

Fourthly With her consent, when the man knows that he is not her husband, and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.

Fifthly With her consent, when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent.

Sixthly With or without her consent, when she is under sixteen years of age.

Explanation Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape.

Exception Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape."

Explanation appended to Section 375 of Indian Penal Code clearly provides that penetration is sufficient to constitute sexual intercourse necessary to the offence of rape. In view of the definition of rape contained in Section 375 of Indian Penal Code there was hardly any need to refer to the American law on the subject. The commentaries of the various authors are the expert opinions expressed by those Authors and they cannot take the place of proof in order to record a clear, cogent and categorical finding of rape being committed on the prosecutrix. There has got to be a positive finding of penetration for constituting the sexual intercourse for the offence of rape. The question of penetration of the male organ in the vulva of the vagina is a question of fact and not of law. The learned Additional Sessions Judge did not disbelieve the evidence of the Medical Officer but proceeded to record the finding of penetration by holding that even the slight penetration was sufficient to constitute the offence of rape. It may be mentioned that the explanation appended to Section 375 of Indian Penal Code speaks about the penetration and is not qualified by the expression like slight or the like. Therefore, there has got to be a firm finding of the fact regarding the penetration and not a finding like slight penetration. Penetration is enough to indicate the intrusion into the vagina of the male organ. Now let us examine the evidence on record. The medical evidence has already been referred to above and for the sake of repetition it may be mentioned that both the Doctors, Dr. R.R. Mittal who examined the prosecutrix and Dr. R.N. Tehlan who examined the accused, found no fresh mark of injury on his body. There is nothing in evidence to show that he found any injury on his penis. The absence of injury to a large extent corroborates the argument of the learned counsel for the appellant that no penetration took place. In the instant case, the prosecutrix Kumari Sheetal was aged 12 years and according to the note appended by the learned trial Judge she was found to be intelligent enough to understand the nature of the question and that she gave relevant answers to the questions put to her generally to test her intelligence. The prosecutrix Sheetal has stated on oath in clear words that accused committed forcible rape on her. The other witness, namely, Smt. Premo (PW5) who entered the witness box, stated that she found accused coming out of the Kotha while pulling the Zip of his trousers and threatened them that if they reported the matter to anyone, they would be killed. Thereafter, she went inside the Kotha along with Mrs. Roshni and saw the prosecutrix Sheetal lying on the floor of the Kotha and her clothes were torn and she was bleeding from her private parts. This occurrence took place, according to the prosecution, on 31.1.1995. The FIR was registered on 3.2.1995 at 4.20 P.M. The medical examination of the prosecutrix took place the same day i.e. 3.2.1995. If in fact Sheetal, the prosecutrix was bleeding from her private part, the clothes would have in all reasonable probabilities stained with blood. The blood would have clotted and mark of injury must have been noticed by the Medical Officer Mr. Mittal (PW9). The statement of the prosecutrix Sheetal and Smt. Premo (PW5) regarding the bleeding of the vagina of the prosecutrix is, therefore, not corroborated by the medical evidence. The learned counsel for the appellant is, therefore, right in submitting that the statements of the prosecutrix and the witness Premo are not believable to that extent. There is nothing on record to show that any clothes of the prosecutrix were found strained with blood or stained with the semen emitted as a result of rape. Shri Chaman Lal, father of the prosecutrix Sheetal, who was examined as PW10, turned hostile and did not support the case of the prosecution regarding the commission of rape on his daughter.

In view of what has been discussed above, the learned trial Judge was evidently in error in recording a finding of slight penetration and consequently in holding the offence of rape under Section 376 of Indian Penal Code proved against the accused. So far as the statement of the prosecutrix Kumari Sheetal is concerned, her statement categorically proves that she was held by the accused and taken inside the Kotha. Thereafter, breaking the string of the salwar the same was removed and before the accused could commit the rape on her, the witnesses Smt. Premo and Roshni arrived there and the accused left Kotha and fled away. The evidence of the prosecution, thus, shows that the accused attempted to commit rape on the prosecutrix though he could not succeed even in penetrating the male organ inside the vulva of the vagina and therefore, no rape as defined under Section 375 of Indian Penal Code was committed. The appeal, thus, deserves to be partly accepted and is allowed partly. The conviction of the appellant is altered from Section 376 of Indian Penal Code to Section 376 read with Section 511 of Indian Penal Code. The sentence awarded by the learned trial Judge to the appellant is reduced to the sentence already undergone. The appeal is disposed of accordingly.