Madras High Court
Thoththan Alias Periyakaruppan vs The State Rep. By on 22 April, 2010
Author: T.Mathivanan
Bench: T.Mathivanan
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 22/04/2010 CORAM THE HONOURABLE MR. JUSTICE T.MATHIVANAN Crl.A.(MD)No.70 of 2008 Thoththan alias Periyakaruppan ... Appellant Vs The State rep. by The Inspector of Police, All Women Police Station, Thirumangalam, Madurai District (Cr.No.2/2006) ... Respondent PRAYER This Criminal appeal is preferred under Section 374 of Code of Criminal Procedure to set aside the judgment of conviction dated 09.01.2007, and made in S.C.No.344 of 2006 on the file of the learned Judicial Sessions Judge, Mahalir Neethimandram, Madurai. !For Appellant ... Mr.A.P.Muthupandian ^For Respondent ... Mr.S.Muthuvenkatesh Govt. Advocate(Crl.Side) :JUDGMENT
The memorandum of criminal appeal is directed against the judgment dated 09.01.2007, and made in S.C.No.344 of 2006, on the file of the learned Session Judge, Mahalir Neethimandram, Madurai, convicting the accused under Section 376(2)(f) of I.P.C. and sentencing him to suffer 10 years of rigorous imprisonment and to pay a fine of Rs.3,000/- in default, to suffer one year rigorous imprisonment. Challenging the conviction and sentence, the accused has approached this court by way of this appeal.
2. The related facts and circumstances which giving rise to the memorandum of criminal appeal may be summarised briefly as follows:
2.1. P.W.2 is the victim girl. P.W.1 is the father of the victim girl. P.W.1 to P.W.3 and the accused namely, Thoththan @ Periyakaruppan are the residents of P.Ammapatty. The victim girl was aged about 10 years at the time of occurrence and she was studying in 5th standard in an elementary school in their village.
2.2. That on 04.03.2006, at about 1.00 p.m. P.W.2 had been to answer the call of nature near the cart track located by the side of her school. While she was passing urine, the accused came there and called her. When she went nearer to him, she was taken to the house of the accused which was under
construction. Thereafter, she was made to lie and the accused had then lifted her skirt and after removing his underwear, had committed sexual intercourse with her by inserting his penis into her vagina.
2.3. P.W.3, Chinnasamy is having his goat shed just on the southern side of the house of the accused. At about 1.00 p.m. he went to his goat shed for placing water to the lambs. While so, he heard the sound from the house of the accused which was under construction. When he went there, the victim girl was found laying on the floor and the accused was found committing sexual intercourse with her. Immediately, P.W.3 shouted at him and thereafter, the accused had come out of his house. Then, P.W.3 had asked the victim girl to go to her house. At about 6.00 p.m. when P.W.1, who is the father of the victim girl returned from his work spot, P.W.3 had disclosed the occurrence to him. On the next day, P.W.1 had informed the occurrence to the Panchayat President, namely, Jeyapraksh he in turn had told P.W.1 that he would ask the accused and settle the matter.
2.4. Subsequently P.W.1 and his wife had also enquired the victim girl and the victim girl had also narrated the incident to her parents. Since, the accused was not found in the village for about four or five days, on 09.03.2006, at about 2.00 p.m., P.W.1 along with P.W.2 had been to Thirumangalam All Women Police Station and lodged a written complaint before P.W.15, Inspector of police. On receipt of the complaint under Ex.P.1, P.W.15 had registered a case in Thirumangalam All Women Police Station Crime No.2 of 2006 under Section 376(2)(f) of I.P.C. The printed First Information Report was marked as Ex.P.19.
Then P.W.15 had taken up the case for investigation and examined P.W.1 and P.W.2 and recorded their statements. Then at about 4.30 p.m. She had proceeded to the place of occurrence viz., P.Ammapatty, inspected the same and prepared an observation Magazar, under Ex.P.20 and a rough sketch, under Ex.P.21, in the presence of P.W.4 and P.W.5. She had also examined the witness and recorded their statements.
2.5. On the basis of her requisition, the learned Judicial Magistrate Thirumangalam had issued a memo under Ex.P.12 directing to produce the victim girl for medical examination. That on 11.03.2006, at about 1.10 p.m. on the basis of the order of the learned Judicial Magistrate, Thirumangalam, under Ex.P.7, P.W.13 had produced the victim girl before P.W.8, Dr.Geetha, Civil Assistant Surgeon attached to Government Rajaji Hospital, Madurai. After completion of her examination, she had issued a certificate to that effect under Ex.P.8 with her opinion saying that -
(i) No injuries found on the private part of the victim girl.
(ii) White discharge from vaginal was collected in two glass slides.
(iii) Hymen intact but admits tip of a finger.
(iv) There is no evidence of recent sexual intercourse.
(v) No scratch, hair, were found on the external genetalia.
2.6. In Ex.P.8, P.W.8 Dr.Geetha has stated that the victim girl was not attained menarche. She has stated further that the girl was weighed about 25 kg, hight 136cm. Breast and Nipple not yet developed. Pubic & axillary hair absent. No external injuries seen over the breast, chest, external genetalia and thigh.
2.7. That on 14.03.2006, P.W.15 had given a requisition under Ex.P.11, to the learned Judicial Magistrate, Thirumangalam for the purpose of recording the statements of P.W.1 and P.W.3 and other witnesses. That on 20.03.2006 P.W.15 had produced P.W.1 to P.W.3 before the learned Judicial Magistrate, Thirumangalam for the purpose of recording their statements under Section 164 Cr.P.C. At about 3.00 p.m. on the same date, P.W.10, the learned Judicial Magistrate had recorded the statements of P.W.1 to P.W.3 after following all the formalities. The statement of P.W.1 to P.W.3 were marked as Ex.P.13 to Ex.P.15 respectively.
2.8. In pursuant to the request of the learned Judicial Magistrate, Thirumangalam, under Ex.P.9, P.W.13 Police Constable had produced the victim girl before P.W.9 Doctor Sumathi Radiologist, attached to the Government Rajaji Hospital, Maduari for ascertaining her age. After examination, P.W.9 had issued a certificate under Ex.P.10, stating that from the appearance the victim girl was above 12 years of age and was below 14 years of age on the date of examination.
2.9. Then in pursuant to the requisition of the learned Judicial Magistrate, Thirumangalam under Ex.P.5, the accused Thoththan @ Periyakaruppan was produced before P.W.7 Dr.Jeyasingh, Assistant Surgeon attached to Forensic Sciences Department, Government Medical College, Madurai, by P.W.14 Head constable. On examination, P.W.7 had given his opinion stating that there was nothing to suggest that he was impotent. There was also nothing to suggest that he underwent sexual intercourse 12 to 24 hours prior to his examination. To that effect a certificate under Ex.P6 was issued by P.W.7.
2.10. Then, on the basis of the requisition under Ex.P.16 given by the learned Judicial Magistrate, P.W.11 Scientific Assistant attached to Regional Forensic Sciences Laboratory, Madurai, had examined two microscope slides with whitish smear on each of them. During the course of examination, spermatozoa in the smears on the slides was not detected. After the completion of her investigation, P.W.15 had laid a final report on 29.05.2006 before the learned Judicial Magistrate, Thirumangalam against the accused under Section 376(2)(f) of IPC.
2.11. After the committal proceedings, the following two charges were framed against the accused:
(i)under Section 376(2)(f) of I.P.C.
(ii)under Section 506(i) of I.P.C.
When the ingredients of the charges were explained and questioned, the accused had pleaded innocent and claimed to be tried. Therefore, he was put on trial. The prosecution in order to establish the case had totally examined 15 witnesses and during the course of the examination Exs.P1 to P21 and M.O.1 series were marked.
2.12. On appraising the evidences both oral and documentary, the learned Additional Sessions Judge, Mahila Court, Madurai had found the accused guilty under Section 376(2)(f) of I.P.C. and further concluded that the offence under Section 506(i) of I.P.C. was not proved and therefore, the accused was acquitted of the charge under Section 506(i) of I.P.C. Being aggrieved by the judgment, the accused has approached this Court by way of this appeal.
3. P.W.3 is the only eye witness to the occurrence. Apart from this, the evidence of P.W.2 i.e. the testimony of victim girl plays a predominant role in this case. P.W.1 is the father of the victim girl P.W.2 and he was informed about the occurrence by P.W.3 and later when he enquired P.W.2, she had unfolded the incident.
4. The learned counsel appearing for the accused would submit that though the occurrence was taken place on 04.03.2006 at 1.00 p.m., it was reported to the police only on 09.03.2006 at 2.00 p.m. i.e. after the lapse of five days for which, the prosecuting agency had not given any satisfactory explanation. He would submit that P.W.8, Dr.Geetha had examined the victim girl and after her examination, she had issued Ex.P.8 certificate of examination for sexual offences. In which, she had opined that no injury was found on the external genetelia and there was also no rupture on the hymen. He has also submitted that as evident from Ex.P.8 certificate issued by P.W.8, there no evidence was found that the victim girl had undergone sexual intercourse recently and further, he would submit that the document Ex.P.8 would indicate that no seminal stain was found either on the inner garments or on the person of the victim girl. Therefore, he would submit that on the basis of the evidence given by P.W.1 to P.W.3 and P.W.8 it could not be concluded that the accused had committed rape upon the victim girl.
5. Further, he would submit that since the delay in lodging the complaint was not satisfactorily explained by the prosecuting agency, it could easily be concluded that the complaint under Ex.P.1 and the First Information Report Ex.P.19 could have been fabricated after confabulation.
6. While advancing his argument, the learned counsel appearing for the accused would submit that if at all the court comes to a conclusion that the accused had committed an offence, the finding might be given under Section 354 of I.P.C. instead of 376(2)(f) of I.P.C. The learned counsel also submitted that so far the accused had undergone 1. years of incarceration and that might be taken into consideration while sentencing the accused.
7. On the other hand, the learned Government Advocate(crl.side) would submit that when the accused was engaged in sexual intercourse with the victim girl, P.W.3 happened to see the occurrence directly and he only had shouted the accused and asked the victim girl to go to her house and subsequently, in the evening after returning from his work spot, he had told the incident to P.W.1 who is the father of the victim girl and therefore, there is no reason to discard the evidence of P.W.1 to P.W.3. He would further submit that there are several judicial pronouncements which would indicate that the testimony of prosecutrix alone would be sufficient to maintain the conviction on the accused in the cases of sexual assault.
8. He further submits that since the victim girl being a minor aged about 10 years at the time of occurrence, the court had to imagine the traumatic experience which the victim girl would have meted out at the hands of the accused at the time of occurrence. He would also argue that P.W.6 Panchayat Vice President had also corroborated with the evidence of P.W.1 to P.W.3 and that the testimonies were in consonance with the medical evidence given by P.W.8 Dr.Geetha. He would further submit that the testimony of P.W.1 to P.W.3 and P.W.6 were convincing, cogent and corroborate with each other and as such, the evidence of the Trial court need not be interfered with.
9. The alleged occurrence is said to have been taken place on 04.03.2006 at about 01.00 p.m. The place of occurrence is the house of the accused which was under construction at the time of occurrence. The accused, the victim girl, her father P.W.1 and P.W.3 are the residents of P.Ammapatti village. Insofar as this crime of rape is concerned, P.W.3 is said to be the direct eye witness. It is important to note here that though the occurrence was taken place on 04.03.2006 at about 01.00 p.m., the complaint under Ex.P1 in this regard was lodged by P.W.1 who is the father of the victim girl before P.W.15 Inspector of Police on 09.03.2006 at about 2.00 p.m. On receipt of the complaint P.W.15 had registered a case in Thirumangalam Police Station Crime No.2 of 2006 under Section 376(2)(f) of IPC. The First Information Report was marked as Ex.P19. On a comparative reading of Ex.P1 and Ex.P19 it would reveal that the First Information to the police pertaining to the occurrence was preferred only after five days. This delay of five days has not been disputed by the prosecuting agency.
10. The prime question to be resolved is:
"whether the delay in lodging the First Information to the concerned police in such a heinous crime - like rape is fatal to the prosecution case."
11. The learned counsel appearing for the accused has vehemently argued that if the occurrence was true what prevented P.W.1 from lodging the First Information to the police at the earliest point of time i.e. on 04.03.2006 itself. He has also adverted to that the abnormal delay in lodging the First Information has not been satisfactorily explained by the prosecuting agency and therefore, there was a reason to believe that the complaint under Ex.P1 and the First Information Report under Ex.P19 could have been fabricated after deliberation.
12. As evident from the testimonies of P.W.2 victim girl and P.W.3 who is the only eye witness to the occurrence, it is established that the occurrence was taken place at 01.00 p.m. on 04.03.2006. It is also established that at about 06.00 p.m. on the date of occurrence, P.W.3 had disclosed the occurrence to P.W.1. P.W.1 has also corroborated the evidence of P.W.3 by saying that on 04.03.2006 after his returning back to home from the workspot, P.W.3 came to his house and narrated the occurrence. On the next day, i.e. on 05.03.2006 P.W.1 had approached the Panchayat President and told about the occurrence. For that, he had replied that it would be settled in the presence of four or five persons. P.W.3 also stated that he had also accompanied P.W.1 when he had been to Panchayat President Jayaprakash and he had told that he would call for the accused Thothan and ask about his act. It is also revealed from the evidence of P.Ws.1 and 3 that the accused Thothan was absconding from the village and therefore, he was not found for about four or five days. Ultimately, on the advice given by the Panchayat President Jayaprakash, P.W.1 along with his daughter P.W.2 had been to Thirumangalam All Women Police Station and lodged a complaint before P.W.15.
13. At the time of occurrence, the victim girl was studying in fifth standard. She was apparently minor at the time of commission of crime. Generally, if any sexual assault is made against the girl child, that too, in the rural village, the parents and the elders of the family would approach the matter with due care and caution because, the girl's future is depending upon the actions which may be taken consequent to the crime. Therefore, it is quite natural in the rural area to narrate the incident before the village elders to call the culprit and settle the dispute there itself.
14. On careful appreciation of the testimonies of P.Ws.1,2 and 3, this Court is of view that the delay in lodging the First Information has been satisfactorily explained and there was no possibility of fiction or concoction of the prosecution story as the victim girl and P.W.3 have no malice against the accused. The evidence of P.Ws.1 and 3 have been corroborated by the evidence of P.W.6 Muthu Thevar. He would state that on 05.03.2006 when he along with the village President Jayaprakash and one Mariraj was sitting in the village common place, P.Ws.1 and 3 had come there and told that the accused Thothan had committed rape upon the daughter of P.W.1 and therefore they requested the village President to render justice. It is revealed from the testimonies of witnesses that the village President Jayaprakash had passed away and therefore he was not able to be called to give evidence.
15. In State of Himachal Pradesh v. Gian Chand (2001 Crl. L.J. 2548) it is held that "delay in lodging the FIR cannot be used as a ritualistic formula for doubting the prosecution case and discarding the same solely on the ground of delay in lodging the first information report. Delay has the effect of putting the Court in its guard to search if any explanation has been offered for the delay, and if offered, whether it is satisfactory or not. If the prosecution fails to satisfactorily explain the delay and there is possibility of embellishment in prosecution version on account of such delay, the delay would be fatal to the prosecution. However, if the delay is explained to the satisfaction of the Court, the delay cannot by itself be a ground for disbelieving and discarding the entire prosecution case."
16. On coming to the case on hand that the sequence of events soon following the crime and as described by the prosecution witnesses sounds quite natural and provides a satisfactory explanation for the delay. Thus the delay in making the FIR can be said to be satisfactorily explained and, therefore, would not cause any dent in the prosecution case.
17. As per the case of the prosecution the victim girl, at the time of occurrence, was aged about ten years. P.W.12 Smt.Udhayajohncy Rani, was the Head Mistress of P.Ammapatti Panchayat Union Elementary School, in which the victim girl (P.W.2) was studying at the time of occurrence. She would state that the victim girl was studying in that school upto fifth standard. She has given an age certificate under Ex.P18 after verification of school records along with the copy of school Attendance Register. In Ex.P18 it is stated that the birth date of the victim girl P.W.2 is 23.01.1995. It also reveals that the registration number of the victim girl is 1708. The xerox copy of the school Attendance Register would also indicate that the victim girl was studying in the above said school in fifth standard and was aged about 11 years at the time of occurrence.
18. Apart from that, P.W.9 Dr.Sumathi, Radiologist, has stated that when she had examined the victim girl x-rays were taken to ascertain her age and on scrutinisation of that x-rays, it was found that the victim girl was aged above 12 years and below the age of 14 years. She had also issued a certificate under Ex.P10 which would go to show that at the time of examination of the victim girl, she was found to be above 8 years of age and below 14 years of age. P.W.8 Dr.Geetha who had examined the victim girl on 11.03.2006 for the purpose of ascertaining the commission of rape would state that the victim girl was aged about 10 years at the time of occurrence. Therefore, the testimonies of P.W.9 Dr.Sumathi, Radiologist and P.W.8 Dr.Geetha and P.W.1 father of the victim girl would go to show that the victim girl P.W.2 was minor at the time of commission of crime.
19. Contrary to that the learned counsel appearing for the accused has canvassed that at the time of occurrence the age of the victim girl would have been 16 years and would not have been 10 years as alleged by the prosecution. But this portion of argument is left unproved. In order to show that the victim girl would have been more than 16 years of age at the time of occurrence, no documentary evidence was adduced on behalf of the defence. Hence, the argument advanced by the learned counsel for the accused is not sustainable.
With regard to constitution of the offence of rape
20. As discussed in the foregoing paragraphs, the victim girl P.W.2 was aged about 10 years at the time of occurrence. Whereas the age of the accused as per the evidence of P.W.7 Dr.Jeyasingh was 56 years at the time of occurrence. From the certificate issued by P.W.7 Dr.Jayasingh, it reveals that there is nothing to suggest that he is impotent. It is also stated under Ex.P6 that there is nothing to suggest that he underwent sexual intercourse 12 to 24 hours prior to his examination. It is also stated that the person could not collect the semen by masturbation. In Ex.P6 it is also stated that the accused Thothan @ Periyakaruppan was aged about 56 years at the time of occurrence.
21. It is revealed from the evidence of P.W.2 that on 04.03.2006 at about 01.00 pm P.W.2 victim girl went to pass urine near her school. When she was passing urine near a cart track, which is located by the side of her school, the accused came there and called her. When she went nearer to him, he took her to his house which was under construction at the time of occurrence. It was also located near the school of P.W2, then immediately the accused had lifted her skirt and he had also removed his underwear and then he had inserted his penis into the vagina of the victim girl and begun to have sexual intercourse.
22. The word inserted his penis into the vagina of the victim girl is made stress.
23. P.W.2 has also deposed that P.W.3 Chinnasamy had seen when the accused was having sexual intercourse with her. Thereafter, P.W.3 had shouted at the accused and asked the victim girl to go to her house. She would also state that the accused had subsequently gone to his house. It is also pertinent to note here that prior to the occurrence, the accused was also having sexual intercourse with the victim girl twice.
24. On coming to the evidence of P.W.3, it is revealed that he is having his goat shed on the southern side of the newly constructed house of the accused. That on 04.03.2006 at about 01.00 p.m., he had been to his goat shed for placing water for the lambs. While so, he heard some sound from the house of the accused which was under construction. When he went there, he had found that the victim girl was lying on the floor and the accused was found lying over her body and was having sexual intercourse with her after lifting his dothi. Immediately, P.W.3 had shouted at the accused and thereafter the accused had come out of his house and then P.W.3 had also shouted at the victim girl and asked her to go to her house. Thereafter, at about 06.00 p.m. he had informed the incident to the P.W.1 who is the father of the victim girl. Insofar as the commission of the crime is concerned, the evidence of P.W.2 who is the victim girl herein is of much importance. Similarly, the evidence of P.W.3 also assumes importance because he is the only eye witness for the occurrence at the time of commission of crime. Then only P.W1 being the father of the victim girl came to know about the occurrence through P.W.3 and thereafter, P.W.1 and his wife had enquired their daughter and she had also narrated the whole incident.
25. Insofar as this case is concerned, another question is arisen as to "whether conviction can be maintained on the basis of the testimonies of P.W.2 who being the child witness". On a careful scrutiny of the evidence of P.W.2, it is important to note here that her evidence is supported by the evidences of P.W.3 (who is the eye witness to the occurrence), P.W.1 and P.W.8 Dr.Geetha. P.W.10, the learned Judicial Magistrate, Melur, has deposed that on 20.03.2006 at about 3.00 p.m. he had recorded the statements of P.Ws.1 to 3 under Section 164 of Cr.P.C. so as to lend more assurance to the case of the prosecution. The statement of P.Ws.1,2 and 3 were marked as Exs.P13, 14 and 15 respectively. On a bare reading of Exs.P13, 14 and 15 it is obvious that the statements of P.Ws.1 to 3 which were given before P.W.10 the learned Judicial Magistrate, Melur, are fitted in fair congruence with the testimonies of P.Ws.1 to 3.
26. The learned counsel appearing for the accused while advancing his argument has submitted that P.W.8 Dr.Geetha at the time of examination of P.W.2 had not found any external injury on the person of the victim girl and that no seminal stain was also found either on the garments of the victim girl or on her vaginal part.
27. On coming to the evidence of P.W.8, she would state that at the time of examination of P.W.2 she had represented that she was carried away by a known old man called Thothan from the backyard of the school on 04.03.2006 and was attempted to sexual intercourse and there was injury in the inhoritan. P.W.8 Dr.Geetha had also stated that the victim girl was not attained menarche.
28. After her examination, she had issued a certificate under Ex.P8, in which, she had stated that no external injuries seen over the breast, chest, external genetalia and thigh. There was no bleeding or discharge. Hymen was found intact but admits tip of a finger. Uterus could not be made out and there was no bleeding or discharge from her private part and she had also stated that pevneum intact. She had also stated that there was no evidence of recent intercourse. Therefore, vaginal smear was collected in two glass slides and sent to microscopic examination.
29. P.W.11 is the Scientific Assistant Gr.II, attached to Regional Forensic Sciences Laboratory at Madurai. He had examined two microscopic slide with white smear on each of them which were received by him on 16.05.2006 from the learned Judicial Magistrate, Thirumangalam. After his examination, he had given a biological report dated 24.05.2006 which was marked under Ex.P17 in which, he would state that spermatozoa was not detected in the smears on the slides.
30. The learned counsel appearing for the accused has canvassed that there was no evidence of penetration and that the offence of rape has not been established beyond all reasonable doubts by the prosecuting agency and therefore, the accused has to be necessarily relieved from the clutches of charge under Section 376(2)(f) of IPC and if at all he is found guilty, it can be only under Section 354 of IPC and not under Section 376(2)(f) of IPC. This portion of argument has also no legs to stand because to constitute an offence of rape, the complete penetration is not necessary. There are several judicial pronouncements to support this concept.
(i) Gorakh Daji Ghadge v. The State of Maharashtra (1990 Cri.L.J.1380). In this case, rape was committed by the father of a child of 13 years. Under this circumstance, it is observed that seminal emission is not necessary to establish rape. What is necessary is that there must be penetration. Hence, the absence of blood or non-finding of any semen on the person of the victim girl cannot detract from her evidence.
(ii) In re, Anthony alias Bakthavatsalu, (AIR 1960 Madras 308 (V 47 C 100) also the learned counsel appearing for the appellant therein had advanced an argument that the facts may not amount to the completed offence of rape but only to an attempt at rape, and that the conviction under Section 376 IPC was therefore not sustainable. For this, a Division Bench of Madras High Court comprising Their Lordships Justice Ramasamy and Anantanarayanan, JJ has held that we have carefully considered the facts of evidence, and we are quite unable to agree. On the contrary, we are definitely of the view that the Bench of the Juvenile Court came to the correct conclusion here, even though it might superficially appear as if only an attempt at rape was involved upon the facts.
The explanation to Section 376 IPC is very clear. The authorities have uniformly laid it down that while there must be penetration in the technical sense the slightest penetration would be sufficient and a completed act of sexual intercourse is not at all necessary. As observed in Gour's "The Penal Law of India" 6th Edition (1955) Vol.II. P.1678: "Even vulval penetration has been held to be sufficient for a conviction for rape."
(iii) In Das Bernard v. State (1974 Cri.L.J.1098 (V.80 C.342) also it is held that "for the offence of rape to be committed it is not necessary that there should be complete penetration. Partial penetration within the labia majora of the vulva or pudendum with or without emission of semen is quite sufficient in law.
31. It is pertinent to note here that as per the evidence of P.W.8 Dr.Geetha, the hymen of the victim girl was found intact and in Ex.P8 she had also stated that the hymen was intact but admits tip of finger. In this regard, the learned counsel appearing for the appellant would argue that there were no external injuries on the vaginal part of the victim girl, there was no seminal stain and the hymen was also found intact and therefore, the offence of rape under Section 376 of IPC would not be attracted in this case.
32. As adumbrated supra, the testimonies of P.W.2 victim girl and P.W.3 eye witness and the other witnesses viz., P.W.1 the father of the victim girl and P.W.6 have corroborated with each other and their testimonies are also convincing and cogent. Since, no rupture was found in the hymen of the victim girl, it could not be stated that the offence of rape was not committed oo the victim girl by the accused.
33. In this regard it may be better to have the reference of the decision reported in A.W.Khan v. The State, (AIR 1962 Calcutta 641 (V 49 c 139). In this case also it was argued that the medical evidence shows that hymen of the victim girl was not ruptured. Under this circumstance, it is observed that "that is not conclusive as the medical authorities show that even when sexual intercourse hymen would be ruptured." On coming to the instant case on hand, as rightly concluded by the trial Court the offence of rape has been satisfactorily established. Further, there is no impediment to place reliance upon the evidence given by a child who happened to be the victim in this case. The evidence of P.W.2 has been satisfactorily substantiated and corroborated by the evidence of P.W.3 (direct eye witness to the occurrence).
34. In this respect, it may be appropriate to state here that according to the explanation to Section 375 of IPC, penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape. To constitute the offence of rape, it is not necessary that there should be complete penetration of penis with emission of semen and rupture of hymen. Partial penetration of penis with the labia majora or the vulva or pudendum 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 either to the genital part of victim or to the male organ. This principle has been well explained in Durgalal v. State of Rajasthan (2001 Cri. L.J. 3652).
35. In the given case on hand, the accused is a grown up man aged about 56 years at the time of occurrence. It is needless to state here that he can differentiate between right and wrong. He cannot escape from the clutches of the charge of the offence of rape as the conviction for the offence of rape can be well maintained on the testimonies of prosecutrix. Because her evidence is more reliable and the evidence of P.W.3 also natural and cannot be disbelieved.
36. The prosecutrix is an innocent girl was aged about 10 years at the time of occurrence. She had no malice against the accused to rope him in the criminality unnecessarily. As discussed earlier, the accused was aged about 56 years and had full knowledge of gravity of offence which was committed on innocent child of 10 years. There is no reason to conclude that the offence committed by the accused may be under the purview of Section 354 of IPC. Therefore, the finding of the Trial Court as against the accused under Section 376(2)(f) of IPC is proper and does not require any interference. The imposition of minimum sentence of ten years of rigorous imprisonment and fine amount of Rs.3,000/- in default to suffer another one year of rigorous imprisonment is proper.
37. In the result, the appeal is dismissed and the judgment of the Trial Court is confirmed. The Trial Court is directed to issue warrant to commit the accused to prison to suffer the remaining portion of sentence.
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