Punjab-Haryana High Court
Jagdev Singh vs State Of Haryana on 19 February, 2010
Author: A.N. Jindal
Bench: A.N. Jindal
IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH
Criminal Appeal No.738-SB of 1998
Date of decision: February 19, 2010
Jagdev Singh
.. Appellant
Vs.
State of Haryana
.. Respondent
Coram: Hon'ble Mr. Justice A.N. Jindal
Present: Mr. R.K. Handa, Advocate with
Mr. Madan Sandhu, Advocate for the appellant.
Mr. Rajiv Malhotra, Addl. A.G. Haryana for the respondent.
A.N. Jindal, J
Prosecutrix (name not disclosed) aged about 11 years old was
allegedly ravished on 5.9.1997 at about 3.00 p.m. by the accused-appellant
Jagdev Singh (herein referred as 'the accused'). As such, he was prosecuted,
convicted vide judgment dated 17.8.1998 passed by the learned Additional
Sessions Judge, Karnal, and sentenced to undergo rigorous imprisonment
for seven years and to pay fine of Rs.10,000/- which was to be paid as
compensation to the prosecutrix.
The facts as culled out from the statement (Ex.PJ) made by
Mahi Pal complainant (herein referred as 'the complainant') are that the
prosecutrix being younger to his sons was about 11 years old and was
mentally retarded. However, he had two more daughters younger to her.
On 5.9.1997, at about 3.00 p.m. the prosecutrix had gone to the sugarcane
field for easing herself, but did not return for some time, then he along with
Kailash son of Jug Lal his neighbourer went to the field. After reaching
near the field, they heard cries of the prosecutrix. While going deep into the
sugarcane crop, they saw the accused without payjama and the prosecutrix
without salwar and the latter was committing rape upon the prosecutrix.
When they tried to catch the accused, he fled away. Thereafter, he got her
daughter to wear the salwar. On this statement made by Mahi Pal Ex.PJ,
ruqa was sent, on the basis of which FIR Ex.PJ/1 was recorded on the same
Criminal Appeal No.738-SB of 1998 -2-
***
day at about 7.15 p.m. The investigation was handled by Man Singh SI, who prepared the rough site plan Ex.PK, took into possession salwar of the prosecutrix and other articles into possession. The accused was arrested on the next day. After recording statement of the witnesses and on receipt of the report of the Forensic Science Laboratory Ex.PA, challaned the accused.
The accused was charged under Section 376 (2) (f) IPC, to which he pleaded not guilty and claimed trial.
In order to substantiate the charges, the prosecution examined Dr. Shashi Prabha (PW1), Dr. S.L. Chandna (PW2), Dr. Ravinder Kumar Arora (PW3), Dr. Sham Wadhwa (PW4), Dr. Y.K.Sethi (PW5), Mahi Pal PW6), prosecutrix (PW7) Kailash (PW8) and Man Singh SI (PW9).
When examined under Section 313 Cr.P.C. the accused denied all the incriminating circumstances appearing against him and pleaded his false implication in the case.
On scrutiny, the court while holding that though the doctor has stated against the prosecution regarding "no evidence of penetration and sexual activities", yet, offence of rape could be made out. The relevant observations made by the trial court are as under :-
" ...... It may further be highlighted in this context that in case of rape, complete penetration of the penis, emission of semen and rupture of hymen is not necessary to constitute the offence of rape and even an attempt at penetration into the private part of the victim would be quite enough for attracting Section 375 IPC........"
There is no dispute with regard to the fact that even slight penetration was sufficient to complete the offence of rape, but the court has failed to make the distinction whether there was penetration or attempt of penetration into vagina of the prosecutrix, and appears to have been moved by the emotions taking note of the fact that the prosecutrix was minor and mentally retarded. Admittedly, the prosecutrix was about 11 years old and was little mentally retarded, but she was declared to be competent witness. Therefore, inference could be drawn that the degree of mental retardation Criminal Appeal No.738-SB of 1998 -3- *** was not too high to record a finding that she was unable to understand the things, by the court, therefore, it cannot be said that she could not make out any difference between the "carnal intercourse" or "no intercourse". It has come in evidence that the prosecutrix while appearing as PW7 did not give true fact situation prevailing at that time. The statement of the prosecutrix suffers from many material improvements and infirmities. She without disclosing, the year, date, time, place of occurrence and the circumstances as to how she happened to be present at such place, jumped to say only that on the day of occurrence the accused forcibly committed sexual intercourse with her and thereafter he went away. This statement made by the prosecutrix runs counter to the statement of Mahi Pal (PW6) who is very categoric that at the time when rape was being committed he along with Kailash (PW8) went to the field and spotted the accused. They tried to catch him, however, he fled away. He does not talk of arrival of the police at the time of rape but to the contrary, the prosecutrix speaks about the same.
Be that it may, the prosecutrix was minor aged about 11 years but she disclosed her age as 9 years. Such demeanor of the witness, which could be assessed from her statement, appears to be obvious for the reason that she was mentally retarded. Since her statement of being raped by the accused runs counter to the medical evidence, therefore, she appears to have stated so for being mentally retarded and being tutored by her father. She did not choose to make a lengthy statement explaining the circumstances, but stuck to one word that "she was raped by the accused" and nothing has been said by her beyond that. Had she been quite well, her testimony could outrightly be discarded being un-trustworthy witness, but she having suffered some mental disease and without any animus against the accused could not be believed to say everything incorrect, as such it would be difficult to throw out her whole version and I have to read her testimony in the backdrop of medical evidence. While considering the medical evidence as well as other evidence collected by the prosecution could clearly rule out the act of rape on the part of the accused. Dr. Shashi Prabha (PW1), who medico-legally examined the prosecutrix on the same day, at about 5.50 p.m. i.e. just after two hours of the occurrence, observed as under :-
Criminal Appeal No.738-SB of 1998 -4-*** " On examination, the patient was conscious, pulse 72 p.m. B.P. 120/80 mm of mercury. She came walking. She was wearing some clothes as she was wearing at the time of assault. No marks of injury was present on any part of the body.
M.H. Menache not attained as told by the father. Secondary sex character not developed. Pubic and axillary hair not present. Breast not developed at present.
Local Examination: No mark of injury was present in the buttock, back, thigh, lower abdomen and perineum labia majora and minora were healthy. Hymen was intact. Tip of the little finger could not be introduced. Two slides were prepared with the discharge taken from the vagina and around vaginal orifice. She experienced pain on introduction of swab stick.
P/R examination done with right index finger. Size of the uterus could not be made out. Advised ultrasound the uterus appendages. Patient was referred to radiologist for determination of the age.
Handed over to Police:
1. A packet containing two slides and bearing three seals of packet containing salwar and bearing six seals. Sample of Seal, copy of the PMR No. SPF/97 dated 5.9.1997, forwarding letter.
There is no evidence of penetration. I have perused the report of FSL Ex.PA. Report of MLR Ex.PB is the true carbon copy which bears my signatures. On the request of the application by Man Singh SI Ex.PC.
xx xx xx There is no mark of injury on the vagina. From the FSL report and my report there is no evidence sexual activity."
Criminal Appeal No.738-SB of 1998 -5-*** Dr. S. L. Chandna, (PW2) Medical Officer, General Hospital, Karnal, who medico-legally examined the accused had stated that there was no mark of any injury all over the body. Penis was of normal size. No mark of injury on glans penis, no smegma present. The hair from the pubic region taken in a viol for examination. Dr. Sham Wadhwa (PW4) Radiologist who after examining the prosecutrix gave her age between 9 to 12 years. Regarding mental status of the prosecutrix, Dr. Y.K. Sethi (PW5) Medical Officer, G.H. Karnal opined that she was suffering from border line mental retardation. She is able to remember and re-call the situation. On the date when he examined the prosecutrix she was able to speak. It is settled by now that the testimony of the prosecutrix cannot be treated at par with the accomplice and due to the said act of rape upon her body. She does not suffer any physical injury, but it is both physical as well as psychological and emotional assault which she suffers, but at the same time, in cases of grave offence resulting into serious consequences, the court has to scrutinize the evidence of the prosecutrix with a mathematical precision that if the testimony of the prosecutrix is found, safe and trustworthy and finds corroboration from the oral as well as documentary, direct and circumstantial evidence, the accused could be convicted. But, here in this case, the testimony of two witnesses examined by the prosecution namely Mahi Pal (PW6) as well as the prosecutrix (PW7) run counter to each other. At the cost of repetition the prosecutrix has not admitted the presence of her father and Kailash (PW8), whereas, Mahi Pal (PW6) has projected himself to a witness to the rape. We may not bank upon the statement of the prosecutrix for the reason that she was suffering from retardation, though there are no reasons to do so as Dr. Y.K. Sethi (PW5) has stated that she could re-call the situation and she is not suffering from such mental retardation to such an extent that she was unable to explain the things. Any way, the testimony of Mahi Pal (PW6) could be believed if it runs consistent with the medical evidence, but his testimony does not stand to scrutiny during cross examination when he states that he had noticed the accused performing sexual intercourse and the accused had managed to run away despite their efforts to apprehend him, as these facts are not found in the FIR got recorded by him. Any way, from the medical evidence as Criminal Appeal No.738-SB of 1998 -6- *** referred to above, the case of rape is not proved at all. Rape is defined in Section 375, 376, 376A, 376B, 376C and 376D. The fast sweeping changes introduced reflect the legislative intent to curb with iron hand, the offence of rape which affects the dignity of a woman. In other words, it is 'the ravishment of a woman, without her consent by force, fear or fraud', or as 'the carnal knowledge of a woman by force against her will'. 'Rape or Raptus' is when a man hath carnal knowledge of the woman by force and against her will; or, as expressed more fully, 'rape is the carnal knowledge of any woman, above the age of particular years, against her will; or of a woman child, under that age, without or against her will'. (Hale P.C. 628). The essential words in an indictment for rape are rapuit and carnaliter cognovit; but carnaliter cognovit, nor any other circumlocution without the word rapuit, are not sufficient in a legal sense to express rape; (1 Hen. 6, la, 9 Edw.4, 26 a (Hale P.C. 628). In the crime of rape, 'carnal knowledge' means the penetration to any the slightest degree of the organ alleged to have been carnally known by the male organ of generation (Stephens Criminal Lw, 9th Ed., p.262). In "Encyclopedia of Crime and Justice"
(Volume 4, page 1356), it is stated"..... even slight penetration is sufficient and emission is unnecessary". In Halsbury's Statutes of England and Wales (Fourth Edition) Volume 12, it is stated that even the slightest degree of penetration is sufficient to prove sexual intercourse. It is violation, with violence, of the private part of a woman, an outrage by all means. By the very nature of the offence it is an obnoxious act of the high order. There is not a grave distinction and a dividing line between mere preparation, attempt to commit rape and rape itself, which could be elaborated and distinguished as false.
Penetration is the sine qua non for an offence of rape. In order to constitute penetration, there must be evidence clear and cogent to prove that some part of the virile member of the accused was within the labia of the pudendum of the woman, no matter how little. In other words, a little penetration into vagina would be suffice to hold 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. Rape could be committed with no rupture of Criminal Appeal No.738-SB of 1998 -7- *** hymen, but from the missing of hymen inference could be drawn with regard to commission of rape unless it is proved on the record that the hymen went missing for other reasons. Relatively less forceful penetration may not give rise to injuries ordinarily possible with a forceful attempt. Next to hymen in positive importance, but more than that in frequency are the injuries on labia majora and labia minora which are encountered by the male organ. The other important factor for determining the act of rape is the place, situation and the circumstances in which it occurred. Marks of injuries elsewhere on the body also play significant role and are of an important piece of evidence to determine the factum of rape.
It is also fundamental in the medical jurisprudence that smegma loses all importance after twenty four hours of the performance of the sexual intercourse. If the gland of the male organ is covered by smegma, it negatives the possibility of recent complete penetration. If the accused is not circumcised the existence of smegma round the corona gland is proof against penetration since it is rubbed off during the act. The smegma accumulates if no bath is taken within 24 hours. The Apex Court also dealt with the offence of rape in detail while elaborating the circumstances for constituting the offence of rape and negativing it, in case Aman Kumar and Anr. vs. State of Haryana, 2004 (1) RCR (Criminal) 925.
Now coming to the constituents of the offence. There are three stages leading towards the commission of the crime viz. intention, preparation and attempt. Mere intention and preparation to commit an offence is not a crime except in few cases of attempt to commit dacoity and seduction. Thus, the principal stage towards commission of crime is if the overt act is done after due preparation then it would have to be treated as attempt to commit the crime. If the attempt succeeds he commits the rape, however, if he fails, due to the reasons beyond his control, then it would amount to mere an attempt. The attempt in other words is said to begin when the preparation are complete and the accused commences to do something to complete his object. The moment he attempts to do it with the said intention and is little short to complete the offence, then anything short of commission of crime to remain is an attempt.
The will is not taken for deed unless there is some external act Criminal Appeal No.738-SB of 1998 -8- *** which shows that progress has been in the direction of it, or towards maturing and effecting it. Intention could be said to be the direction of conduct towards the object chosen upon considering the motive which suggest the choice. Preparation consists in devising or arranging the means and measures necessary for commission of offence.
Similarly, attempt begins when the preparation are complete and the accused commences to do something to complete his object. In the instant case, I am fully convinced that the trial court took wrong view while giving new dimensions to the rape without distinguishing the "act of rape"
and "attempt to rape" stating that though even attempt of penetration amounts to rape without its entry into vagina. No evidence suggests that the accused attempted for penetration. Had labia minora and labia majora or other external sensitive part of the vaginal organ i.e. valva would have been swollen, effected due to the act committed by the accused, as projected by the witnesses, then it could be said that there was some penetration. But in the absence of a slightest injury to the vaginal organ orother parts of her body, no inference with regard to penetration could be drawn. Mere presence of semen on the external part of the vaginal organ are not proof of the fact that the offence of rape stood completed. There may be hundred circumstances in which the discharge took place over the vagina before he could penetrate his male organ and that may also be a cause that he could not complete the offence. There may also be some outside reasons viz interference or apprehension thereof from some outsider that he could not commit the crime and fled away before progressing his preparation towards the commission of crime. The other circumstances i.e. keeping in view the fact that the prosecutrix was in the sugarcane field and lying on a hard surface and in that situation if the accused proceed to commit rape, then she must have suffered some scratches on the posterior part of her body i.e. buttocks or on the back. But, the doctor did not testify if she had any marks of violence on the outer part of her body.
Dr. Modi, in Medical Jurisprudence and Toxicology, 23rd Edition at page 928, observed 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, Criminal Appeal No.738-SB of 1998 -9- *** there is often laceration of the fourchette and the perineum. But, in the present case, no such symptoms were found by the doctor at the time of medical examination of the prosecutrix.
Now while re-evaluating the evidence of Mahi Pal (PW6) that he spotted the accused committing the crime, it cannot be believed at all in the light of the medical evidence. However, at the same time, the prosecutrix though was little mentally retarded cannot be disbelieved to say that the accused happened to be with her in the sugarcane field and from the testimony made by her as a whole, inference could be drawn that the accused after removing salwar of the prosecutrix was when in the process of committing rape, heard some noise from the outside and fled away without completing the offence. The presence of semen on the external part of the vagina prove that the accused certainly did overt act towards the commission of the crime, as such, he could be held guilty of the offence under Section 376 read with Section 511 IPC.
Now coming to the question of offence, it is well settled by now that if the accused is charged for a major offence and he is not found guilty for such charge, still he could be convicted for the minor offence if the facts established indicate that he had committed such minor offence. Reliance, if any, could be placed on the judgment delivered in case State of Maharashtra v. Rajendra Jawanmal Gandhi 1997 (4) RCR (Cri.) 320 :
(1997) 8 SCC 386, Tarkeshwar Sahu v. State of Bihar 2006 (4) RCR (Criminal) 603 : 2006 (3) Apex Criminal 427 : (2006) 8 SCC 560. It is also well settled by now that when a person is charged for which he has not been convicted, but he has committed attempt thereof, then he could be sentenced for the attempt though he was not separately charged for that.
The Apex Court in case Shamnshed M. Multtani v. State of Karnataka 2001 (1) RCR (Criminal) 617 : (2001) 2 SCC 577 came to the conclusion that when an accused is charged with a major offence and ingredients of major offence are not proved then he could be convicted for the minor offence if the ingredients of the minor offence are available. The Apex Court in the recent judgment delivered in case Pandharinath vs. State of Maharashtra 2009 (3) RCR (Criminal) 596, while relying on the aforesaid judgments observed that if against a particular accused the offence Criminal Appeal No.738-SB of 1998 -10- *** under Section 376 IPC is not made out, but lessor offence under Section 376 read with Section 511 IPC is made out, then the court is not prevented from taking re-course and punishing the accused for the commission of such lessor offence. An attempt to commit rape is lessor offence than that of rape and there is no bar for converting the act of the accused from Section 376 to 376 read with Section 511 IPC.
For the aforesaid reasons, while differing with the findings returned by the trial court, I partly accept this appeal, set aside the impugned judgment and convert the offence committed by the accused from 376 IPC to Section 376 read with Section 511 IPC. Since the accused had already undergone more than one year of the substantive sentence, therefore, I deem it appropriate in the peculiar circumstances of the case, to modify the sentence to the period already undergone by him without altering the sentence of fine.
February 19, 2010 (A.N. Jindal) deepak Judge