Kerala High Court
Suresh vs State Of Kerala on 9 July, 2010
Author: M.Sasidharan Nambiar
Bench: M.Sasidharan Nambiar
IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 1361 of 2002()
1. SURESH, S/O. DIVAKARAN,
... Petitioner
Vs
1. STATE OF KERALA, REPRESENTED BY PUBLIC
... Respondent
For Petitioner :SRI.PIRAPPANCODE V.SREEDHARAN NAIR
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
Dated :09/07/2010
O R D E R
M.SASIDHARAN NAMBIAR,J.
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CRL.R.P.No. 1361 OF 2002
===========================
Dated this the 9th day of July,2010
ORDER
Petitioner was convicted and sentenced for the offence under section 376 of Indian Penal Code by Assistant Sessions Judge, Nedumangad in S.C.147/2005 which was confirmed by the Additional Sessions Judge, Thiruvananthapuram in Crl.A.372/1996. Prosecution case is that PW1 who was aged seven years, was studying in second standard. She lost her mother. Her father after second marriage was residing separately. She was living with PW3 her grandmother though not the direct grandmother, and PW4 the sister of her father. On 13.4.1994 at about 1.30 p.m. petitioner came towards their house and enquired to PW4 where was PW1, under the guise that she could be given dates to eat. PW4 called PW1. Petitioner asked PW1 Crl.R.P.1361/2002 2 to follow him to his house promising to give dates. On reaching the house, petitioner made PW1 to enter his room. Thereafter she was made to lie on the coat. Petitioner removed her under garments and thereafter committed rape on her. When she cried, petitioner made her to sit on his lap and tried to have penal penetration. There was bleeding from her vagina. Petitioner threatened her not to disclose it to anybody. PW1 washed her private parts and went to her house. She did not disclose it to anybody. On 15.4.1994 she felt pain and also difficulty to pass urine. She was thus compelled to disclose it to PW3. She in turn along with PW4 took her to Primary Health Centre, Kanyakulangara. PW2 the doctor examined her and prepared Ext.P2 wound certificate. she was admitted as an inpatient. On getting information from the hospital, PW8 the Head Constable of Vattappara Police Station reached the Hospital and recorded Ext.P1 First Information Statement based on which crime was registered under Ext.P1 F.I. statement Crl.R.P.1361/2002 3 for the offence under section 511 of 376 of Indian Penal Code. PW9, the Sub Inspector of Police investigated the case prepared Ext.P3 scene mahazar and recovered M01, the bed sheet from the house of the petitioner under Ext.P4 and also M0s 2 to 4 the dresses worn by PW1 at the time of incident under Ext.P5 mahazar. PW10, the Circle Inspector of Police, Venjaramood took over the investigation. On investigation he found that the offence committed is under section 376 of Indian Penal Code. He submitted Ext.P9 report incorporating the offence under section 376 of Indian Penal code. He arrested the petitioner on 11.11.1994 and got him examined by PW6 the Civil Surgeon, who issued Ext.P6 potency certificate. After completing the investigation charge for the offence under section 376 of Indian Penal code was laid, which was taken cognizance and committed to the Sessions court. Sessions Judge took the case on file and made it over to the Assistant Sessions court, Nedumangad. When charge for the offence under section 376 of Crl.R.P.1361/2002 4 Indian Penal Code was framed and read over, petitioner pleaded not guilty. Prosecution examined Pws. 1 to 10 and marked Exts.P1 to P9 and identified M0s 1 to 3. Though petitioner was called upon to enter on his defence and adduce evidence, he did not adduce any evidence.
2. Learned Assistant Sessions Judge on the evidence held that evidence of PW1 corroborated by PW2 establish that petitioner committed rape on PW1 a minor girl. After hearing the petitioner on the question of sentence he was sentenced to rigorous imprisonment for five years and a fine of Rs.5000/- and in default rigorous imprisonment for a further period of one year. Learned Sessions Judge in the appeal reappreciated the evidence and found that evidence of PW1 is trustworthy and reliable. He confirmed the conviction and sentence for the offence under section 376 of Indian Penal Code. Revision is filed challenging the conviction and sentence.
3. Learned counsel appearing for the Crl.R.P.1361/2002 5 petitioner and the learned Public Prosecutor were heard.
4. Learned counsel argued that courts below did not appreciate the evidence in the proper perspective. It was contended that though the incident allegedly occurred on 13.4.1994, Ext.P1 First Information Statement was furnished only on 19.4.1994 and the inordinate delay was not properly appreciated and on the evidence it should have been found that the case of rape was subsequently developed. Learned counsel pointed out that as per Ext.P2 wound certificate, PW1 was admitted in the hospital only on 18.4.1994 and was discharged on 22.4.1994 and the evidence of PW2, the doctor establishes that there was no injury warranting her admission or treatment as an inpatient for seven days and in the nature of the case it is clear that there is manipulation. It was pointed out that Ext.P2 shows that the alleged cause of injury is finger manipulation of external genital by a man and not rape and till 19.4.1994 when Crl.R.P.1361/2002 6 Ext.P1 First Information Statement was recorded, there was no case of any rape and the entry in Ext.P2 is made to support the prosecution case that PW1 was under treatment when Ext.P1 First Information Statement was recorded. Learned counsel argued that the evidence of PW2 establishes that there was no symptom of rape and when she was asked whether she could find any sign of rape she stated that there was no other sign of rape and that answer was wrongly misinterpreted by the courts below. It was argued that if a seven year old girl was raped and that too with complete penetration as deposed by PW1, there was necessarily injuries on the private part of PW1 and Ext.P2 wound certificate does not show that there was any such injury which should have been there if the male organ of a thirty year old man had entered into the vagina of PW1 as claimed by her and in such circumstances, courts below should not have relied on the evidence of PW1 to prove that there was rape. Learned counsel argued that Crl.R.P.1361/2002 7 entries regarding the date of admission and discharge in Ext.P2 are in a different ink and were created later and the prosecution case as such cannot be believed. Leaned counsel also argued that if necessary an opportunity may be granted to further cross examine PW2 and to get the records regarding the treatment of PW1 as an inpatient in the hospital. Learned counsel also argued that the evidence of PW1 shows that it is tutored version and in such circumstances without corroboration her evidence should not have been accepted. Learned counsel argued that the medical records do not support the evidence of PW1 and there is no scientific evidence to establish the presence of spermatozoa inside the vagina of PW1 or in the dress worn by PW1 at that time or on the bed sheet used while PW1 was allegedly raped and in such circumstances, courts below should not have convicted the petitioner.
5. Learned Public prosecutor pointed out that the delay in lodging the First Information Crl.R.P.1361/2002 8 Statement has to be appreciated in the background of the case and that too bearing in mind that PW1 is a rustic girl who lost her mother and father is living with his second wife separately. It was pointed out that a rustic grandmother like PW3 would not like the case of rape being published which would ultimately effect the future life of the child and adversely affect the name of the family and in such circumstances the non disclosure of the factum of rape to the police immediately is not fatal. It was pointed out that when the statement of PW1 was recorded on 19.4.1994, she has narrated the entire facts and her oral evidence from the box fully corroborated that version and there is no reason to disbelieve the evidence of PW1. Learned Public Prosecutor relying on the decision of the Apex Court in Bharwada Bhoginbhai Hirjibai v. State of Gujarat (AIR 1983 SC 753) argued that the position of PW1 is above that of an injured and when the evidence of PW1 inspire confidence, no corroboration is necessary and even Crl.R.P.1361/2002 9 if assurance from other materials or evidence is necessary, Ext.P2 wound certificate shows that inspite of the fact that her examination was after two days from the date of the incident, there was redness on the vagina and it furnishes assurance to the evidence of PW1 that she was raped by petitioner. Learned Public Prosecutor pointed out that when petitioner did not challenge the evidence of PWs.1 and 2 with regard to the treatment of PW1 as an inpatient in the hospital and no question was put based on the entries regarding the admission and discharge seen in Ext.P2, it is futile for the petitioner to develop a case based on Ext.P2 for the first time before the revisional court and there is no necessity to call for the records regarding the treatment of PW1 as an inpatient or further examination of PW2. It was argued that the evidence was properly appreciated by the courts below and there is no reason to interfere with the conviction.
6. The evidence of PW1 corroborated by her Crl.R.P.1361/2002 10 Ext.P1 First Information Statement is that she was subjected to rape at the house of the petitioner at about 1.30 p.m. on 13.4.1994. The evidence of PW1 is that as petitioner threatened her not to disclose the incident to anybody she did not disclose the incident to others including PW3 or PW4 . Her case is that after two days she felt difficulty for urinating and also pain on her abdomen. In such circumstances PW1 had to disclose that fact to PW3. PW3 took PW1 to the Primary Health Centre from where PW2 the doctor examined her and prepared Ext.P2 wound certificate. Evidence of PW2 establish that it was not disclosed to PW2 that PW1 was subjected to rape or even an attempt to commit rape. On the other hand, the alleged cause of injury recorded in Ext.P2, though this was not spoken to by PW2 as it was omitted to be put to the witness either by the prosecutor or the Judge is that " finger manipulation of external genital by a man". As there was no allegation of rape or attempt to commit rape, PW2 Crl.R.P.1361/2002 11 did not conduct a proper examination of PW1 as would have been done in the case of a rape or attempt to commit rape. PW2 did not even verify whether hymen of PW1 was torn or whether there was any injury to the hymen, evidently because she was not informed about the allegation of rape. The injury noted in Ext.P2 as deposed by PW2 is "redness of vagina". It is also recorded that PW1 had complained pain on abdomen and difficulty in passing urine. The evidence of PW8, the Head Constable with the evidence of PW1 establishes that on getting information about the admission of the petitioner at Primary health Centre on sexual assault, PW8 proceeded to the hospital and reached there at 4 p.m on 19.4.1994 and recorded Ext.P1 First Information Statement. In Ext.P1 First Information statement PW1 has narrated the entire incident, which was deposed by PW1 from the witness box. There is no contradiction in her evidence from the box to the version disclosed in Ext.P1 First Information Statement. Crl.R.P.1361/2002 12
7. The argument of the learned counsel is that as the factum of committing rape was not disclosed to the doctor and instead it was alleged that there was finger manipulation of external genital by a man in Ext.P2 wound certificate, it is to be found that the case of rape was subsequently developed. It is for that purpose learned counsel argued that PW1 was subsequently admitted on 18.4.1994 as seen from Ext.P2 to corroborate the statement in Ext.P1 that it was recorded while PW1 was being treated as an inpatient in the hospital. As rightly pointed out by the learned Public Prosecutor Ext.P2 wound certificate was available with the counsel appearing for the petitioner before the Sessions Court when PW2 was examined. Still the counsel did not cross examine PW2 with regard to the entries of admission and discharge shown in Ext.P2. Ext.P2 shows that entire writings including the signature in Ext.P2, except the date of admission as 18.4.1994 and date of discharge as 22.4.1994 are in one and same handwriting, and ink. Evidently they Crl.R.P.1361/2002 13 were written on 15.4.1994 when PW1 was examined. Therefore entry in Column No.15 that the patient w admitted was recorded along with the entry in the other columns on 15.4.1994 at 9 a.m. Therefore I have no doubt on the fact that PW1 was admitted in the hospital on 15.4.1994 itself. It is more so, when the evidence of Pws.1 and 3 on that aspect was not challenged in cross examination and there was no case for the petitioner before the trial court or the appellate court that PW1 was not admitted in the hospital on 15.4.1994 but was admitted only subsequently for developing the case to one under section 376 of Indian Penal Code.
8. The Supreme Court had occasion to consider the failure in reporting the factum of rape, When the doctor examined the prosecutrix in Madan Lal v. State of Jammu and Kashmir JT (1997 (7) SC
357). That was a case where a IXth standard student was subjected to rape by the Headmaster of the school after she was made to go to his house on 21.5.1986. The prosecutrix was examined by the Crl.R.P.1361/2002 14 doctor on 23.5.1986 and the doctor did not find any mark of violence on any part of her body and on local examination there was no mark of violence on her private parts like vagina and the hymen was intact. As argued by the learned counsel in this case, reliance was placed on the evidence of prosecutrix to the effect that there was penetration to the extent of one inch, though when cross examined she pointed out that depth as one quarter of an inch or one quarter of inch and it was argued that if there was penetration, hymen would not have been intact. Their Lordships cautioned that evidence is to be appreciated in the light of the experience of a young girl who was being subjected to sexual harassment for the first time and too much cannot be imputed to her evidence regarding penetration. The Supreme Court in Bharwada Bhoginbhai Hirjibhai v. State of Gujarat (AIR 1983 SC 753)considering the unsophisticated society where a girl or woman in the tradition bound non-permissive society of India would be Crl.R.P.1361/2002 15 extremely reluctant even to admit that any incident which is likely to reflect on her chastity had over occurred, as she would be conscious of the danger of being ostracized by the society or being looked down by the society including by her own family members, relatives, friends and neighbours, held that she would feel extremely embarassed in relating the incident to others being overpowered by a feeling of shame on account of the upbringing in a tradition bound society where by and large sex is a taboo. Their Lordships held:-
"The parents of an unmarried girl as also the husband and members of the husband's family of a married woman, would also more often than not,want to avoid publicity on account of the fear of social stigma on the family name and family honour. The fear of the victim herself Crl.R.P.1361/2002 16 being considered to be promiscuous or in some way responsible for the incident regardless of her innocence."
So also a rustic woman will not be disclosing the incident which would affect the name and honour of the family to a doctor when the prosecutrix is being examined . It is in such circumstances, the failure to disclose the factum of rape as such, in Ext.P2 wound certificate is to be appreciated . The contention of the petitioner was that with regard to the property dispute with PW4 a case was foisted. It is clear that when PW1 was first examined by the doctor it was not disclosed that she was raped or that there was an attempt to commit rape. It could be for the reason that Pws.3 and 4 who brought PW1 to the doctor might have intended not to get publicity on rape and for that reason it was reported that cause was finger manipulation on the vagina by a man. Unfortunately for the failure to disclose the true facts, the Crl.R.P.1361/2002 17 doctor did not properly examine PW1 to find out whether there was any injury on the vagina including hymen.
9. I have gone through the entire evidence of PW1, PW3 and 4, in the light of Ext.P1 First Information Statement. I agree with the findings of the learned Assistant Sessions Judge and the learned Sessions Judge that evidence of PW1 is trustworthy, credible and reliable. The question is in such circumstance is whether it is necessary to have any corroboration. The Supreme Court in Bhoginbhai Hirjibhai's case (supra) held that corroboration is not a sine qua non for a conviction in a rape case the refusal to act on the testimony of a victim of sexual assault for the absence of corroboration as a rule is adding insult to injury and if the evidence of the prosecutrix inspire confidence, no corroboration is necessary. The position has been reiterated by the Apex Court in State of Punjab v. Gurmitsingh (1996) 2 SCC 384). It was held that a girl in a Crl.R.P.1361/2002 18 tradition bound non-permissive society in India, would be extremely reluctant even to admit that any incident which is likely to reflect on her chastity had occurred, being conscious of the danger of being ostracized by the society or being looked down upon by the society. Her not informing the teachers or her friends at the examination centre under the circumstances cannot detract from her credibility. In the normal course of human conduct, an unmarried minor girl, would not like to give publicity to the traumatic experience she had undergone and would feel terribly embarassed in relation to the incident to narrate it to her teachers and others and in such circumstances the failure to report the incident not immediately is to be appreciated. Their Lordships in Amankumar v. State of Haryana (2004) 4 SCC 379 clarified the position thus:-
"It is well settled that a prosecutrix complaining of having been a victim of the Crl.R.P.1361/2002 19 offence of rape is not an accomplice after the crime.
There is no rule of law that her testimony cannot be acted upon without corroboration in material particulars. She stands on a higher pedestal than an injured witness. In the latter case, there is injury on the physical form, while in the former it is both physical as well as psychological and emotional. However, if the court of facts finds it difficult to accept th version of the prosecutrix on its face value, it may search for evidence, direct or circumstantial, which Crl.R.P.1361/2002 20 would lend assurance to her testimony. Assurance, short of corroboration as understood in the context of an accomplice, would suffice."
In B.C.Deva v. State of Karnataka (2007) 12 SCC
122) their Lordships held that the plea that no marks of injuries were found either on the person of the accused or the person of the prosecutrix, does not lead to any inference that the accused has not committed forcible sexual intercourse on the prosecutrix. Though the report of the gynacologist pertaining to the medical examination of the prosecutrix does not disclose any evidence of sexual intercourse, yet even in the absence of any corroboration by medical evidence, the oral testimony of the prosecutrix, which is found to be cogent, reliable, convincing and trustworthy has to be accepted.
10. On a proper analysis of the evidence of PW1 Crl.R.P.1361/2002 21 it is absolutely clear that the version given by PW1 that petitioner called her to his house promising to give dates to eat and made her lie on the coat and removed her dress and laid on her is cogent, reliable, convincing and trustworthy which is to be accepted. The question then is what is the offence committed. The argument of the learned counsel is that as there is no evidence to prove penetration, an offence under section 376 of Indian Penal Code is not attracted. It was argued that the evidence of PW1 is to be believed to hold that there was complete penetration. If that be the case, when she was examined by PW2 two days thereafter there would have been sufficient data establishing penetration and therefore an offence under section 376 of Indian Penal Code is not attracted. Learned counsel also argued that when Ext.P2 wound certificate does not show any sign of rape and evidence of PW2 also does not show that there was any symptom of rape, the courts below were not justified in finding commission of an Crl.R.P.1361/2002 22 offence under section 376 of Indian Penal Code. As stated earlier Ext.P2 shows the injury found on PW1 was "redness on vagina, complaint of pain on abdomen and difficulty in passing urine." When PW2 was examined, she was asked whether the redness noted on the vagina can be caused by an attempt of penetration of penis into the vagina. She said it could be. Learned counsel pointed out that the Sessions Judge has recorded in the judgment that this answer was given after taking time and answers given by PW2 in cross examination rules out any rape. The relevant portion of cross examination reads:
"I got no information regarding rape. On examination you have not noticed any signs of rape (Q). No other signs(A). You did not see any symptoms of rape (Q) No (A) Redness of vagina difficulty to pass Crl.R.P.1361/2002 23 urine would be caused by infection."
11. The argument of the learned counsel is that the answer given by PW2 was not properly appreciated by the courts below and there was no evidence of committing rape. Though PW2 was asked whether there was any symptom of rape on PW1 and she answered in the negative, it is not clear that what symptom was intended by the counsel as well as by the doctor is not clear. But the earlier question is clear and that is whether PW2 had noted any sign of rape when PW1 was examined by the doctor. It was answered by the doctor as no other sign was noted. As rightly found by the courts below that answer could only be that no other sign that what was recorded in Ext.P2 was noted. If that be so, the answer is that apart from the redness on vagina and the complain of pain on the abdomen and difficulty in passing urine, there was no other sign. The question is whether Crl.R.P.1361/2002 24 the redness of vagina and pain on the abdomen answer would make the evidence of PW1 not believable or reliable.
12. Though PW1 deposed that there was complete penetration, it is clear that if PW1 a child aged seven years was subjected to rape and there was complete penetration of the male organ of a thirty year old man into the vagina of a seven year old girl, there would be rupture of hymen and injury to the vagina, apart from the redness of vagina noted by the doctor. Modi's Medical Jurisprudence & Toxicology twenty second edition at page 504 dealt with the examination and the findings of the victim of a sexual offence. The relevant portion reads:-
"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 Crl.R.P.1361/2002 25 considerable violence is used, there is often laceration of fourchette and perinaeum".
In the light of the medical evidence, a complete penetration into the vagina of PW1 can only be ruled out. But the question is whether a complete penetration is necessary and if not whether there is sufficient evidence to constitute an offence under section 376 of Indian Penal Code.
13. Explanation to Section 375 of Indian Penal Code provides that penetration during sexual intercourse is sufficient to constitute an offence of rape. Question is what is penetration and whether it is necessary to penetrate the entire penis into the vagina or a partial penetration will be sufficient. A Learned single Judge of this Court in Mohammed v. State of Kerala (1987 (2) KLT 565) held that partial penetration of the penis within the labia majora of the vulva or pudendum with or without emission of semen is sufficient to Crl.R.P.1361/2002 26 constitute an offence under Section 376 of Indian Penal Code. The Honourable Supreme Court in State of U.P. v. Babul Nath ((1994) 6 SCC 29) held "even partial or slightest penetration of the male organ within the labia majora or the vulva or pudendum 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 Indian Penal Code. 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. A learned single Judge of this Court in Mohammed Kunju v. State of Kerala (2007 (3) KLT
218) with due respect, did not follow the said dictum and instead followed the decision in Madan Lal v. State of Jammu & Kashmir (JT 1997 (7) SCC
357) and on the facts, held that as the medical evidence clearly shows that there was no injury over the external genitalia of PW6 nor was there any discharge in her vagina and the hymen of the Crl.R.P.1361/2002 27 girl was found intact, the offence attracted is only 511 of 376 and not Section 376 of Indian Penal Code. The observation of the Honourable Supreme Court in Madan Lal's case (supra), quoted by the learned single Judge reads:
The difference between preparation and an attempt to commit an offence consists chiefly in the grater degree of determination and what is necessary to prove an offence of an attempt to commit rape has been committed is that the accused has gone beyond the state of preparation. If an accused strips a girl naked and then making her flat on the ground undresses himself and then forcibly rubs his erected penis on the private part of the girl but fails to penetrate the same into vagina and on such rubbing ejaculates himself then it is difficult for us to hold that it was a case of merely assault under Section 354 of Indian Penal Code and not an attempt to commit rape under Section 376 read with 511 of Indian Penal Code. In the facts and circumstances of the present case, the offence of an attempt to commit rape by accused has been clearly established and the High Court rightly convicted him under Section 376 read with 511 of Indian Penal Code.
Another learned single Judge in Chenthamara v. State of Kerala (2008 (4) KLT 290) followed the dictum in Babul Nath's case (supra) in the light of the decision in Aman Kumar v. State of Haryana Crl.R.P.1361/2002 28 ((2004) 4 SCC 379) and held that penile accessing would be sufficient to constitute penetration in sexual intercourse, which is necessary for the offence of rape and absence of actual entry of male organ through the vagina, resulting in rupture of hymen, etc. is not necessary. In Madan Lal's case (supra), the prosecution case was that the Headmaster of the school called the prosecutrix, a student of that school, to his house and thereafter committed rape on her. The trial Judge, finding the evidence of the prosecutrix unworthy, acquitted the accused. In appeal, the High Court, after scrutinising the evidence of the prosecutrix, held that the statement was so convincing that it did not require any corroboration and minor discrepancies pointed out are irrelevant and reversed the findings of the trail Judge and convicted the accused for the offence under Section 376 read with Section 511 of Indian Penal Code. In that case, medical evidence does not show any injury to the vagina. The salwar of the Crl.R.P.1361/2002 29 prosecutrix, which was seized and sent to the chemical examiner, was sent to Forensic Science Laboratory and the chemical and microscopical test revealed presence of semen/Human Spermatozoa, which was found to be corroborated by the evidence of PW1. It is based on that evidence, the Honourable Supreme Court held that the offence attracted is 511 of 376 of Indian Penal Code. In Aman Kumar's case (supra), it was held that an attempt to commit an offence is an act or series of acts, which leads inevitably to the commission of the offence, unless, something, which the doer of the act neither foresaw nor intended, happens to prevent this and an attempt may be described to be an act done in part-execution of a criminal design, amounting to more than mere preparation, but, falling short of actual consummation and possession, except for failure to consummate, all the elements of the substantive crime. In other words, an attempt consists in it the intent to commit a crime, falling short of, its actual Crl.R.P.1361/2002 30 commission. Their Lordships held "in order to find an accused guilty of an attempt with intent to commit rape, court has to be satisfied that the accused, when he laid hold of the prosecutrix, not only desired to gratify his passions upon her person, but that, he intended to do so at all events and notwithstanding any resistance on her part." On the facts of the case, it was found that there is no material to show that accused were determined to have sexual intercourse in all events and in that background, the offence cannot be said to be an attempt to commit rape to attract culpability under Section 376 read with Section 511 of Indian Penal Code, but, it would only amount to an offence under Section 354 of Indian Penal Code.
The Honourable Supreme Court in Santhosh Kumar v. State of M.P. (AIR 2006 SC 3098) held that to constitute an offence of rape, it is not necessary that there should be complete penetration of penis without emission of semen and rupture of hymen and partial penetration of penis within the labia Crl.R.P.1361/2002 31 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.
14. Though, in order to constitute an offence under Section 375, punishable under Section 376 of Indian Penal Code, penetration in the course of sexual intercourse is necessary, it is not the requirement of law that there should be a complete penetration of penis inside the vagina. Even partial penetration is sufficient. Partial penetration of penis within the labia majora or the vulva or pudenda by itself will constitute an offence under Section 375 punishable under Section 376 of Indian Penal Code and it is not necessary that there should be emission of semen.
15. The question is whether there is evidence to prove such penetration as provided under Section 375 of Indian Penal Code. Even though PW1 deposed that there was full penetration and that portion of her evidence cannot be accepted, her evidence would definitely establish that there was at least Crl.R.P.1361/2002 32 partial penetration. Though learned counsel vehemently argued that there is no evidence to prove even partial penetration, Exhibit P2 would certificate, with the evidence of PW2, would necessarily support the evidence with regard to partial penetration. As stated earlier, when PW1 was examined by PW2 and Exhibit P2 wound certificate was prepared, it was not brought to the notice of PW2 that there was rape or attempt to commit rape. Therefore, PW2 did not examine minutely the private parts of PW1 and instead noted only the external injuries to the vagina, namely, redness, in addition to the difficulty expressed by PW1 for urination. If a girl like PW1, aged seven years, was made to lie and erected penis of the petitioner, aged 30 years, was sought to be penetrated into her vagina and it partially entered the vagina, necessarily, the redness noted by PW2, even after two days of the incident, would be there. Therefore, that aspect corroborates the evidence of PW1 regarding at least partial Crl.R.P.1361/2002 33 penetration.
16. The facts of Santhosh Kumar's case (supra) show that prosecution case was that the prosecutrix was coming by a bus in search of a work and after she boarded the bus, the conductor enquired where she was going and when she informed him that she was going in search of some work, he did not ask for money and when the bus reached at the place and she was trying to get down, he told her that she may sleep in the bus itself rather than going anywhere in the night, so that, in the morning, she could arrange some work. The prosecutrix, therefore, slept on the rear seat of the bus. After the shops were closed, at about midnight, the driver of the bus reached towards her and thereafter pressed her breast and tried to remove her dhoti and when she tried to raise alarm, the conductor caught hold of her and gagged her and then the driver committed rape on her and thereafter, the conductor also committed rape on her. The medical examination of the prosecutrix Crl.R.P.1361/2002 34 showed that she received injuries on the front portion of the body and also on her hands, but, no injuries were found on the private parts of the body. Their Lordships held " the mere fact that no injuries were found on the private parts of her body cannot be a ground to hold that no rape was committed upon her or that the entire prosecution story is false" and ultimately, the conviction was confirmed. Similarly, for the reason that there is no medical evidence to prove that the hymen of PW1 was not torn and there was no injury to the hymen, it cannot be said that there was no partial penetration. As stated earlier, evidence of PW1 inspires confidence. It is credible and believable. Evidence of PW1 establishes that petitioner had undressed himself and removed the dress of PW1 up to the waist and made her lie on the cot and thereafter pushed the penis into her vagina. Evidence also establish that there was actual entry of penis at least partially into the vagina. It would definitely constitute an offence under Crl.R.P.1361/2002 35 Section 376 of Indian Penal Code. In such circumstances, I find no reason to interfere with the concurrent conviction of the petitioner for the offence under Section 376 of Indian Penal Code.
Then the only question is regarding the sentence. Argument of the learned counsel is that petitioner was aged 30 years, who is having a wife and child and the incident occurred in 1994 and at this distant point of time, petitioner may not be sent to prison and leniency be shown. It is already found that petitioner, who is admittedly the father of a child, having his wife, ignoring the fact that PW1 is only a child, aged seven years, committed rape on her. Such a person does not deserve any leniency. In such circumstances, I find no reason to interfere with the sentence also.
Revision fails and it is dismissed.
M.Sasidharan Nambiar
Judge
tpl/tkv
Crl.R.P.1361/2002 36
M.SASIDHARAN NAMBIAR
JUDGE
tpl/-
M.SASIDHARAN NAMBIAR, J.
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Crl.R.P.NO.1361 /02
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ORDER
9TH JULY 2010