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PETITIONER:

MADAN GOPAL KAKKAD

Vs.

RESPONDENT:

NAVAL DUBEY AND ANR.

DATE OF JUDGMENT29/04/1992

BENCH:

PANDIAN, S.R. (J)

BENCH:

PANDIAN, S.R. (J)

FATHIMA BEEVI, M. (J)

CITATION:

1992 SCR (2) 921 1992 SCC (3) 204

JT 1992 (3) 270 1992 SCALE (1)957

ACT:

Indian Penal Code, 1860 :

Ss. 375, 376-Rape-Accused-Medical graduate-Causing

slight penetration into vulva of 8 years girl without

rupturing hymen-Medical evidence indicating hymen intact,

abrasion on medial side of labia majora and redness around

labia minora-Offence-Whether constituted rape-Trial court

not accepting prosecution evidence recorded acquittal-Appeal

against acquattal-High Court held victim's evidence

satisfactory and found sufficient corroboration on material

aspects, believed extra-judicial confession of accused being

voluntary not obtained by force, coercion etc., but accepted

victim's evidence in part, convicted accused under s. 354

and sentenced him to fine of Rs. 3000 only-Legality of-

Conviction altered to one under s. 376 by Supreme Court.

penology-Sexual assault on female children-Accused

committed rape on 8 years girl-Conviction-Sentence to

commensurate with gravity of offence.

Indian Evidence Act, 1872 :

S. 24-Extra-judicial confession-Corroboration-Whether

necessary.

S. 45-Expert opinion-Medical witness-Evidence of-

Whether of advisory character-Legal opinion of witness as to

nature of offence-Whether can be accepted.

Code of Criminal Procedure, 1973 :

S. 378-Appeal against acquittal-High Court's

jurisdiction-Whether plenary and unlimited to review the

entire evidence.

^ The respondent, a medical graduate, was indulged in

gratifying his animated passions and sexual pleasures by

sexually assaulting and molest-

922

ing young girls.

HEADNOTE:

The victim girl (PW. 13) aged about 8 years was the

daughter of the neighbour of the respondent. She was a

friend of respondent's niece and both the children used to

play together. According to the prosecution case, on the

fateful day when respondent's niece and PW. 13 with her

younger brother were playing in respondent's drawing hall,

and there was no one else in the house, the respondent sent

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his niece with younger brother of PW. 13 outside. He bolted

the door from inside, completely stripped off himself, made

PW. 13 completely naked and asked her to do fellatio.

Thereafter he slightly inserted his penis into her vulva and

lay over her. After sometime he freed the child. While she

was leaving the drawing hall, the respondent threatened her

not to disclose his affairs to anyone. She, however,

narrated the incident to respondent's niece.

In the evening PW. 13 told her mother (PW. 6) that the

respondent had asked her to suck his private part. She did

not narrate the whole incident out of fear. The next day

when PW. 13 and respondent's niece were talking of the

incident, their friend PW. 12 came there. PW. 13 narrated

the incident to her and other girl friends. On the third

day, PW. 13 told the entire incident to her mother who

conveyed it to her neighbours PWs. 9 and 10 on telephone. At

about 9 p.m. when the appellant (PW.5), the father of the

victim girl, returned home and learnt about the occurrence,

he accompanied by PWs. 7,9 and 10 went to respondent's

house, but he was not there and they informed the brother

and sister-in-law of the respondent of the purpose of their

visit. They all waited there till midnight when the

respondent came. The respondent, assessing the situation,

voluntarily confessed his crime. He admitted that he raped

PW. 13 and also committed the same crime on earlier

occasions with his niece and other minor girls, but being a

doctor he had been careful enough not to rupture their

hymen. The brother of the respondent begged of PW. 5 and

others not to do anything till the arrival of his parents.

Next morning when respondent's parents reached, he again

admitted his abominable crime of sexual assault on PW. 13.

It took 2-3 days more to PW. 5 to get a written

complaint (Ext. P.7) lodged with the police through PW. 8.

The police investigation culminated in the trial of the

respondent for an offence of rape committed on PW. 13.

The trial court held that the prosecution against the

respondent was launched due to some enmity between the two

families and that the

923

prosecution did not adduce any acceptable evidence for

holding the respondent guilty of offence under s. 376 IPC.

It accordingly acquitted the respondent.

The State filed an appeal an against the acquittal

before the High Court. The complainant-appellant also filed

a criminal revision challenging the legality of the order of

acquittal. On the basis of an artical relating to the

incident published in a foreign magazine, a petition was

addressed to the Chief Justice of India with a copy to the

Chief Justice of the High Court concerned and on its basis

another criminal revision petition was registered. The High

Court disposed of all the three cases by a common judgment.

It accepted the oral testimony of prosecution witnesses and

the extra-judicial confession made by the respondent. It,

however, held the respondent guilty of an offence under s.

354 IPC and sentenced him to pay a fine of Rs. 3,000 only.

The complainant-appellant filed the appeal by special leave

to this Court. The State did not file any appeal.

It was contended on behalf of the appellant that the

High Court erred in holding the respondent guilty of a minor

offence under s. 354 IPC when all the necessary ingredients

to constitute an offence punishable under s. 376 IPC had

been satisfactorily established; and the sentence of fine

alone imposed was grossly inadequate and not commensurate

with the gravity of the offence committed by the respondent.

Allowing the appeal and setting aside the judgment of

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the High Court, this Court,

HELD : 1. The prosecution has satisfactorily

established its case that the respondent committed rape on

PW. 13 by proving all the necessary ingredients required to

make out an offence of rape punishable under Section 376

IPC. [p. 947 B]

2. When the evidence of PW. 13-that the respondent put

his male organ inside her vagina and clutched her and

thereafter she suffered pain-is taken with the evidence of

medical officer who found an abrasion on the medical side of

labia majora and redness present around the labia minora

with white discharge even after 5 days, it can be safely

concluded that there was partial penetration within the

labia majora or the vulva or pudenda which in the legal

sense is sufficient to constitute the offence of

924

rape. Moreover, the respondent himself confessed twice

admitting the commission of rape without rupturing the hymen

which confession is not disbelieved by the High Court. [p.

946 C; E-F]

3.1. The evidence of PW. 13 is amply corroborated not

only by the medical evidence and the evidence of PW. 12 but

also by the plenary confession of the respondent himself.

[p. 947 A]

3.2 Even in cases wherein there is lack of oral

corroboration to that of a prosecutrix, a conviction can be

safely recorded, provided the evidence of the victim does

not suffer from any basic infirmity, and the `probabilities

factor' does not render it unworthy of credence, and that as

a general rule, corroboration cannot be insisted upon,

except from the medical evidence, where, having regard to

the circumstances of the case, medical evidence can be

expected to be forthcoming. [pp. 939 GH; p. 940 A]

Rameshwar v. State of Rajasthan, [1952] SCR 377;

Bharwada Bhoginbhai Hirjibhai v. State of Gujarat, [1988] 3

SCC 217; Krishan Lal v. State of Haryana, [1980] 3 SCC 159,

referred to.

4.1 In order to constitute an offence of `Rape' as

envisaged by the first Explanation to s. 375 IPC, while

there must be penetration in the technical sence, the

slightest penetration would be sufficient and a complete act

of sexual intercourse is not at all necessary. [p. 945 D-H]

Parikh's Textbook of Medical Jurisprudence and

Toxicology; Encyclopedia of Crime and Justice (Vol.4) at

page 1356; Halsbury's Statutes of England and Wales (Fourth

Edition) Volume 12; Harris's Criminal Law (Twenty Second

Edition) at page 465; Gaur's "The Penal Law of India" 6th

Edn. (Vol. II) p. 1678; Code 236 of Penal Code of

California, referred to.

R.v.Hughes, [1841[ 9 C & P 752; R.v. Lines, [1844] 1

Car & Kir 393; R.v. Nicholls, [1847] 9 LTOS 179; Natha v.

Emperor, 26 Cr.L.J. [1925] page 1185; Abdul Majid v.

Emperor, AIR 1927 Lahore 735 (2); Mussammat Jantan v. The

Crown, [1934] Punjab Law Reporter (Vol. 36) p. 35;

Ghanashyam Mishra v. State, [1957] Cr.L.J. 469 AIR 1957

Orissa 78; D. Bernard v. State, [1974] Cr.L.J. 1098; Prithi

Chand v. State of Himachal Pradesh, [1989] 1 SCC 432; In re

Anthony, AIR 1960 Mad. 308, referred to.

4.2 In the instant case there is acceptable and

reliable evidence that

925

there was slight penetration though not a complete

penetration. [p. 946 B]

4.3. The medical officer was of the opinion that the

abrasion measuring one and a half inches in length found on

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the medial side of the labia majora and the redness around

the labia minora could have been caused on the date of

incident. [pp. 942 H; 943 A]

Merely because the inexperienced medical officer has

opined that it was an attempt to commit rape, probably on

the ground that there was no sign of complete penetration,

her legal opinion as to the nature of the offence committed

by the respondent cannot be accepted. (p. 943 CD]

4.4. A medical witness called in as an expert to assist

the Court is not a witness of fact and the evidence given

by the medical officer is really of an advisory character

given on the basis of the symptoms found on examination.

The expert witness is expected to put before the Court all

materials inclusive of the data which induced him to come to

the conclusion and enlighten the Court on the technical

aspect of the case by explaining the terms of science so

that the Court although, not an expert may form its own

judgment on those materials after giving due regard to the

expert's opinion because once the expert's opinion is

accepted, it is not the opinion of the medical officer but

of the Court. [p. 943 D-F]

R. v. Ahmed Ali, 11 WR Cr. 25; Pratap Misra v. State of

Orissa, AIR 1977 SC 1307, referred to.

Medical Jurisprudence and Toxicology, (Twenty First

Edition) by Modi, referred to.

5. Law does not require that the evidence of an extra-

judicial confession should in all cases be corroborated.

However, the confession of the respondent is amply

corroborated by the evidence of the victim (PW. 13) whose

testimony in turn is corroborated by PWs. 5, 6, 7, 9 and 10

and also by the medical evidence. [p. 939 B-C]

Piara Singh v. State of Punjab, [1978] 1 SCR 597,

referred to.

6. In view of s. 378 of the Code of Criminal Procedure,

1973 (corresponding to s. 417 of the old Code), in cases of

appeals against acquittal as a matter of jurisdiction, the

whole case is at large for review by the High Court both as

to the facts and the law and it is clothed with the plenary

926

powers to go through the entire evidence and to come to its

own conclusions of guilt or otherwise of the indicted

persons as the established facts warrant and to award

appropriate sentence which will be commensurate with the

gravity of the offence in case of conviction.

[pp. 940 DE; 941 EF]

Sheo Swarup and others v. King Emperor, AIR 1934 PC 227

(2) Wilayat Khan & Others v. State of U.P., AIR (2), 1953

S.C. 122; Surajpal Singh and others v. The State, [1952]

SCR 193; Tulsi Ram v. The State, AIR 1954 S.C.I.; Aher Raja

Khima v. State of Saurashtra, [1955] 2 SCR 1285; Radha

Kishan v. State of U.P., [1963] Supp. 1 SCR 408; Jadunath

Singh and others, etc. v. State of Uttar Pradesh, [1971] 3

SCC 577; Dharam Das v. State of U.P., [1973] 2 SCC 216;

Barati v. State of U.P., [1974] 4 SCC 258 and Sethu Madhavan

Nair v. State of Kerala, [1975] 3 SCC 150, referred to.

7.1. The findings of the High Court, rendered in

exercise of its appellate jurisdiction are findings of fact

which cannot be reopened in appeal especially when the

respondent has not challenged those findings and when there

is absolutely no reason muchless compelling reason for

holding that those findings are either in utter disregard of

the evidence or unreasonable and perverse or any part of the

evidence in favour of the respondent is jettisoned. [p. 936

FG]

7.2. Although the High Court was fully satisfied with

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the evidence of the victim PW. 13 and found sufficient

corroboration on all material particulars from the evidence

of PWs. 5, 6, 9, 10 and 12 and held the extrajudicial

confession given by the respondent as true and made

voluntarily and not obtained by any inducement, coercion or

threat and that there could be penetration without rupture,

yet, having accepted the entire prosecution evidence in

toto, it committed an error in entertaining a doubt with

regard to the accusation of rape holding that there was no

sign of injuries and that the offence was not one punishable

under s. 376 IPC or under s. 376 read with s. 511 IPC but

only one under s. 354 IPC.

[p. 936 A-C]

7.3. The High Court even after observing that "the

respondent's activities were menace to the neighbours" has

shown a misplaced sympathy to the respondent which has led

to the miscarriage of justice. The finding that the offence

is one of outraging the modesty of woman for which sentence

of imprisonment is not compulsory is erroneous and

untenable.

[p. 942 A-C]

927

8. Having regard to the seriousness and gravity of the

repugnant crime of rape perpetrated on PW. 13 who was 8

years old on the date of the commission of the offence,

while convicting the respondent under Section 376 IPC he is

sentenced to undergo rigorous imprisonment for a period of

seven years and to pay a fine of Rs. 25,000 to the victim

girl.

[p. 948 B-C]

9. Though all sexual assaults on female children are

not reported and do not come to light yet there is an

alarming and shocking increase of sexual offences committed

on children. This is due to the reasons that children are

ignorant of the act of the rape and are not able to offer

resistence and become easy prey for lusty brutes who display

the unscrupulous, deceitful and insidious art of luring

female children and young girls. Therefore, such offenders

who are menace to the civilised society should be

mercilessly and inexorably punished in the severest terms.

[p. 948 EF]

A.R. Antulay v. R.S. Nayak and Another, [1988] 2 SCC

602 at page 673, referred to.

JUDGMENT:

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.

447 of 1988.

From the Judgment and Order dated 5.9.1986 of the

Madhya Pradesh High Court in Criminal Appeal No. 1023/83.

Ms. Pinky Anand and D.N. Goburdhan for the Appellants.

B.P. Singh and umanath Singh for the Respondents.

The Judgment of the Court was delivered by

S. RATNAVEL PANDIAN, J. The factual matrix leading to

the filing of this appeal which is quite simple gives an

account of a sordid and obnoxious incident wherein the

respondent, a medical practitioner who had created a private

hell of his own was gratifying his animated passions and

sexual pleasure by sexually assaulting and molesting young

girls not only in utter disregard of the universal moral

code, human dignity, his professional ethics and values but

also in flagrant violation of the law of the country.

The brief facts of this shameless intrigue as

unravelled by the prosecution at the trial are as follows:

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The respondent/accused who just then graduated from the

Medical College was staying with the family consisting of

his parents, his brothers, his sister-in-law Smt. Tara Dubey

and niece Richa Dubey, who is the daughter of the

respondent's step-brother Niraj Dubey, in Adarsh Nagar,

Jabalpur. His father Bhagwan Dass Dubey (DW-2) was a

retired Professor and his sister-in-law Tara Dubey (DW-1)

was a lecturer. His another elder brother at the relevant

time of this occurrence was working as Superintendent of

Police in Rajgarh District. Opposite to his house at some

distance Satish Bhasin (PW-9) and Sapna Bhasin (PW-10) were

residing with their minor daughter Priti. Within the same

locality 3 or 4 houses away from the house of the

respondent/accused, the appellant Madan Gopal Kakad (PW-5)

was living with his wife, a German lady, by name, Elesabeth

Kakad (PW-6), his sister Veera (PW-7) and his minor daughter

Tulna Sheri (PW-13), a girl aged about 8 years and his

younger son Pulkit. The family members of the respondent

and PW-5 were on cordial relationship making frequent visits

to the houses of each other.

Tulna Sheri (PW-13) the unfortunate victim in this case

was studying in the third standard in St. Joseph Convent

along with her class-mate Richa Dubey. Tulna used to come

frequently to the house of the respondent to play with Richa

Dubey and her other girl friends. Tarun Lata Joshi (PW-12)

was living with her father who was a tenant in the house of

PW-5.

According to the prosecution, the respondent who had a

crush on young girls used to develop friendship with the

girls who used to come to his house to play with his niece

Richa Dubey by narrating interesting stories from comic

books. On the day of this deplorable incident, i.e. on

2.9.1982 at about 4 or 5 p.m. Richa Dubey called Tulna (PW-

13) stating that her mother wanted her. Accordingly Tulna

wearing underwear and jeans accompanied by her younger

brother Pulkit went to the house of Richa, but found none

except the respondent. The respondent found fault with

Tulna for having come there in jeans accompanied by her

brother. When the two girls, namely, Tulna and Richa

started playing in the drawing room, the respondent

whispered something in the ears of Richa, who then told

Tulna that she had been asked by her uncle (the respondent)

to take Pulkit outside and narrate him some stories and that

the respondent would `make love', presumably meaning that he

would tell some lurid tales of sex to her thereby

stimulating immoral thoughts so that Tulna might fall a prey

to his lewd and lascivious behaviour. As soon as Richa went

outside taking Pulkit,

929

the respondent bolted the door from inside, completely

stripped off himself; removed the jeans and underwear of

Tulna and made her naked and asked Tulna to do fellatio,

that is to suck his penis. Thereafter the respondent

cuddled and pined Tulna close to him, and slightly inserted

his penis into her vulva and started sucking her lips.

Within a few seconds, he ejaculated and freed the girl from

his clutches and thereafter put on his pyjamas and asked

Tulna to wear her jeans. Again the respondent longing for

his lascivious passion, laid down Tulna on a sofa in his

drawing room and remained lying on her and closed her mouth

so that the girl could not scream. A little later after

wetting his sexual appetite he got up; opened the door

allowed the girl to go out. While the girl was leaving the

drawing hall, the respondent threatened her not to disclose

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his affair to anyone, otherwise his elder brother who is a

high ranking police office would mercilessly beat her

parents. Tulna came out of the room and told Richa as to

what all happened inside the room.

In the evening of that day she told her mother (PW-6)

that the respondent was a dirty fellow and he had asked her

to suck his private part, to which PW-6 instructed not to go

to the house of respondent thereafter. However, Tulna did

not narrate the entire episode to her mother on the day of

the incident evidently out of fear. When Tulna again

narrated this incident to Richa, the latter told her that

her Chacha, referring to respondent, was like a dog and that

he used to do the same thing with her also by stripping of

her whenever she came from the school and whenever she was

lying on her bed and further told that the respondent when

asked as to why Tulna and Priti are in fair complexion, her

chacha replied that their complexion is fair because they

sucked his male organ and that if Richa also did the same

thing she would also become very fair in her complexion. PW-

12, Tarun Lata Joshi, who was present nearby seeing Tulna

and Richa whispering each other asked them what was the

matter. Tulna narrated the incident to her and other girl

friends. On the next day, seeing the respondent standing

near the gate of his house Tulna repeated the same remark

to her mother (PW-6). Thus on the third day, Tulna told her

mother the entire incident which took place in the drawing

hall of the house of the respondent on 2.9.1982.

On hearing this horrid episode, PW-6 was very much

annoyed and conveyed this painful and jarring piece of

information to PW-7 (Veera). Then PW-6, reeling under

terrible shock, telephoned to her neighbours

930

PWs 9 and 10 and informed them about the sexual abuse

perpetrated by the respondent on her daughter. At about

9.00 p.m. the appellant, Madan Gopal (PW-5) came to his

house and learnt about the occurrence. Faced with the

traumatic situation, the helpless panic stricken parents

who have been so deeply disturbed by the dehumanising act of

the respondent rushed with boiling blood to the house of the

respondent accompanied by PWs 7, 9 and 10 and searched for

the respondent, but could not find him there. They then

informed the purpose of their visit to the elder brother and

sister-in-law of the respondent who told PWs 5 and 6 that

the respondent had gone to a cinema hall and they would send

the respondent's younger brother to fetch him. All those

including the rightful indignanted parents of victim Tulna,

assembled in the house of the respondent, kept waiting till

mid night. The respondent after returning from the theatre

realising that the entire atmosphere was thick with the

charge of sexual molestation against him and finding him in

culde-sac voluntarily confessed his crime stating that he

had raped Tulna and also had committed the same kind of

sexual assault on earlier occassions with Richa, Priti and

other girls of that locality, but being a Doctor he had been

careful enough not to repture their hymen. When PW-5 on

being acerbated and mentally perturbed on hearing the

confessional statement rushed towards the respondent to

attack him, respondent's brother and sister-in-law fell at

the feet of PW-5 and pathetically beseeched not to do

anything till the arrival of the parents of the respondent

in the next morning.

Coming to know to the arrival of the father of the

respondent Bhagwan Dass (DW-2) with his wife on the next

morning, Madan Gopal, (PW-5) along with PWs 6, 9 and 10 met

DW-2 who took strong objection for PW-5's behaviour on the

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last night. When PW-5 informed DW-2 that his son

(respondent) had raped his minor daughter Tulna, DW-2 was

not prepared to believe their accusation. Thereafter at the

request of PW 5, he called his son and questioned him.

Though the respondent first abjured his complicity,

however, admitted his abominable crime of sexual assault on

Tulna. Thereupon Bhagwan Dass gave his stick to Madan Gopal

and said that it was for PW 5 either to show mercy or to

give corporeal punishment as he deemed fit and also made an

earnest appeal to PW-5 not to precipitate any action against

his son. Presumably, PW-5 and his family members thinking

that the police might not take any action against the

respondent since his brother was a Superintendent of Police

and his family was wielding a high influence in that area

and also fearing that any publicity

931

of this incident would bring only a disrepute to their

family and that the future life of their daughter would be

completely shattered, suffered in silence for 2 or 3 days,

without approaching any authority. However, on 7.9.1982 PW-

5 mustered his strength and decided to lodge a criminal

complaint against the respondent. Accordingly, he handed

over a written complaint Ext. P-7 to his friend. Subhash

Bhujbal (PW-8) and got it delivered at the police station.

On the strength of Ext. P-7 a case was registered by the

SHO of Goprakhpur Police Station (PW-11) and the

investigation was entrusted to ASI (PW-14). During the

course of the investigation the victim Tulna (PW-13) was

examined by Dr. Chitra Tiwari (PW-4) on 7.9.82 on being sent

by the police. According to PW-4 there was an abrasion on

the medial side of Labia Majora about 1-1/2" in length,

redness present around the labia minora with a white

discharge, and hymen was intact and admitted tip of little

finger. PW-4 has opined that an attempt to rape had been

made. Ext. P-6 is the medical certificate. PW-4 has

further stated that she prepared a slide for confirmation of

the white discharge found around labia minora. In the

cross-examination she has deposed that the white discharge

was not flowing out, but it was at the same place where she

noticed the redness and the discharge could have been as a

result of infection which itself could have caused the

redness found around labia minora. Further she has stated

that she did not find any crest on labia majora. The

Chemical Examiner after examination of the slide, sent his

report Ext. P-13 which did not reveal any seminal stains in

the virginal smear. PW-2, a Medical Officer examined the

respondent on 13.9.82 and found him as a virile person with

well built body capable of performing sexual inter-course,

but found no injuries on his person. The Investigating

Officer after examining all the witnesses and completing the

investigation filed the charge sheet against the respondent

for the offence of rape punishable under Section 376 IPC.

The respondent took his trial on the indictment that he

committed rape on Tulna between 4 and 5 p.m. on 2.9.82 in

the drawing hall of the house of respondent. The totality

of the evidence on the basis of which the prosecution rests

its case consists of three categories, namely, (1) the oral

testimony of the PW-13 corroborated by PWs 6 and 12; (2) the

extra-judicial confession made by the respondent on two

occassions; and (3) the medical evidence. Of the witnesses

examined Tulna (PW-13) alone speaks about the actual

commission of rape on her. Though Tulna reported this

unpleasant incident to Richa immediately after coming out of

the drawing

932

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hall, Richa has not been examined by the prosecution

obviously for the reason that Richa is none other than the

niece of the respondent himself. The next set of

corroborating witnesses who speak about the victim's

reporting about the incident are PW 6 and 12. On the

evening of the date of incident even though Tulna reported

to her mother that the respondent was a bad man and that he

asked her to suck his penis, she did not reveal the other

part of the incident relating to the commission of the rape

obviously fearing that her parents would beat her. It was

only on the third day, the mother (PW-6) came to know from

Tulna about the actual incident, presumably after the victim

girl started reporting this incident to PW-12 and to her

other playmates. The second category of evidence is the

extra-judicial confession made by the respondent before PWs

5, 6, 7, 9 and 10 in the house of the respondent himself

after he had been sent for from the cinema hall. According

to the above witnesses, this confession was made not only in

their presence, but also in the presence of the respondent's

brother and sister-in-law (DW-1). (It is but natural that

the brother and sister-in-law of the respondent would not

figure as witnesses on the side of the prosecution and

depose against the respondent.) According to the witnesses

the confession made by the respondent was thus:

"I have raped the girl, but I have not ruptured her

hymen. You should not be perplexed, I know what

are my limits, I am a doctor. You need not to go

to any doctor."

Thereafter on the next day morning the respondent made

the similar confession before his parents in the presence of

PWs 5, 6, 9 and 10 when PW-5 asked the respondent to tell

the truth before his father by catching hold of him. On the

two occasions the respondent confessed in English "I have

raped the girl but not ruptured her hymen". The last

category of the evidence is that of the Medical Officer (PW-

4), who examined the victim girl Tulna on 7.9.1982 and

opined that there was an attempt of rape on Tulna.

The Trial Court for the discussions made in its

judgment arrived at a conclusion that the prosecution

launched against the respondent on account of some enmity

between the two families and that the prosecution has not

adduced any acceptable evidence for holding the respondent

guilty of the offence under Section 376 IPC and consequently

acquitted the respondent. The reasons, assigned by the

Trial Court for such a conclusion

933

are based on its following findings:

(1) The evidence of PWs 5, 6, 7, 9 and 10 is highly

tainted and as such no safe reliance can be placed

on their testimony.

(2) The extra-judicial confession which the

respondent had retracted cannot be said to be free

from threat, coercion or promise.

(3) The extra-judicial confession as such seems to

be unnatural and it is wholly the product of an

illegal advice and false fabrication.

(4) The evidence of the victim (PW-13) is not

corroborated by other independent evidence.

(5) The First Information Report has been belatedly

lodged and there is no reasonable explanation for

such a delay.

On being aggrieved by the judgment of the Trial Court

acquitting the respondent, the State preferred an appeal

before the High Court challenging the order of acquittal.

It is seen from the judgment of the High Court that the

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complainant who is the appellant before this Court also

filed a revision in Criminal Revision No. 596/83 questioning

the legality of the order of acquittal and further one Jay

Rao of New York (U.S.A.) on the basis of an article relating

to this incident that appeared in a German Magazine called

`Der Spiegel' and after visiting Jabalpur sent a petition of

grievance addressed to the Chief Justice of India with a

copy to the Chief Justice of Madhya Pradesh. On the basis

of this petition, another revision in criminal Revision No.

599/83 was registered. The High Court disposed of the State

appeal and the two criminal revisions by a common judgment,

whereby it allowed the State appeal for the reasons assigned

therein accepting the oral testimony of the prosecution

witnesses particularly of PWs 6, 12 and 13 and the extra-

judicial confession made by the respondent. Now separate

orders were passed in the criminal revisions. However, the

High Court found the respondent guilty of the offence only

under Section 354 IPC and sentenced him to pay a fine of Rs.

3,000, in default to suffer simple imprisonment for 6 months

and also directed a sum of Rs. 2,000 out of the fine amount

if collected to be paid over as compensation to PW-5.

The State has not preferred any appeal before this

Court. However,

934

the father of the victim girl, namely PW-5, feeling

aggrieved by the judgment of the High Court has filed this

criminal appeal mainly on two grounds, namely, (1) The High

Court has erred in finding the respondent guilty of a minor

offence under Section 354 IPC when all the necessary

ingredients to constitute an offence punishable under

Section 376 IPC have been satisfactorily established; (2)

that the sentence of fine alone imposed by the High Court

under Section 354 IPC for this serious offence is grossly

inadequate and is not commensurate with the gravity of the

offence committed by the respondent. When the matter came

up for admission before this Court on 25.8.88, the following

order was made:

"Special leave granted, confined to the nature of

the offence and the sentence to be awarded."

It is pertinent to note that the respondent has

not challenged the findings of the High Court by filing an

appeal and as such the findings of the High Court rendered

with reference to the evidence adduced by the prosecution

and the conviction based upon those findings have reached

their finality so far as the respondent is concerned.

Before pondering over the question with regard to the

nature of the offence and the quantum of punishment to be

awarded, we feel that it is necessary to recall some of the

findings of the High Court.

1. The High Court after observing, "there is no

reason as to why a small innocent girl would have

laid such a serious charge against the respondent,

if it was not true", held that the evidence of

Tulna has been materially corroborated by her

friend Tarun Lata (PW 12).

2. Referring to the confession of the respondent,

it has been held by the High Court, "Though there

can be penetration without rupture, the absence of

any sign of injuries, negatives a case of rape with

a small girl".

3. As regards the evidence of Tulna, the Court has

held thus, "The statement of Tulna can be safely

accepted to the extend that the respondent after

undressing himself and Tulna, asked her to suck his

organ and he then lay over her. She has been fully

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corroborated by her mother Elsbeth, father

Madangopal,

935

friend Tarun Lata and neighbours Satish and Sapna.

They have no axe to grind against the respondent.

No adverse inference can be drawn for lodging the

report 5 days after the incident."

4. Then referring the corroboration required to the

extra judicial confession made by the respondent on

two occasions, the High Court has recorded the

following observation:

"After realising that his misdeeds have been

exposed and he can no longer hide himself, he had

not option but to confess. This was only option

left when he was cornered by his own neighbours

and relations..............................There

was no question of any coercion or inducement in

presence of his family members in his own

house......................The confession was

nothing but by way of repentance for the wrongs

done to the young girls and other girls. It

appears that the respondent was a perverted

person and was satisfying his sexual urge by

outraging modesty of young girls who fell easy

prey to his designs."

5. Commenting on the finding of the Trial Court as

regards the confession, the High Court has said,

"The evidence of extra-judicial confession has not

been accepted because the witnesses have not

repeated like parrots in the same words what the

respondent had uttered but the substance is the

same i.e. the respondent confessed that he had

violated (sic) the girl but not ruptured her

hymen. Whether the witnesses said the same thing

in Hindi or English would not make any difference".

6. Coming to the probity question of the evidence

of Tulna, the Court said thus:

"Although she was a child, she had modesty

alright and was ashamed to tell everything to her

mother. She was also not sure what would be the

reaction of her mother. Therefore, there was

hesitation on her part. But she did tell to her

classmate Richa and also to her friend Tarunlata

(PW 12) about it on the next day. Tarunlata has

corroborated her,.....................We are also

satisfied that Tarunlata has deposed regarding

what she was told by Tulna....................."

936

The above findings and observations made by the High

Court clearly show that the High Court was fully satisfied

with the evidence of the victim Tulna (PW 13) and found

sufficient corroboration on all material particulars from

the evidence of PWs 5, 6, 9, 10 and 12 and that the extra-

judicial confession given by the respondent was true and it

was not obtained by any inducement, coercion or threat but

on the other hand it was voluntarily made and that there

could be penetration without rupture. Having accepted the

entire evidence adduced by prosecution in toto, the High

Court nonetheless entertained a doubt with regard to the

accusation of rape holding there was no sign of injuries and

held that the offence is not one punishable under Section

376 IPC or under Section 376 read with 511 IPC but only one

under Section 354 IPC on the ground that the respondent has

outraged the modesty of Tulna by "feeling pleasure in

getting him and the victim made necked, asking unwary minor

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girls to fiddle with his organ" taking advantage of the

absence of the other adult family members in his house.

Coming to the question of sentence, the High Court gave the

following reason:

"The learned Govt. Advocate has nothing to say

about the sentence. There can be no doubt that the

act of the respondent is most reprehensible, he was

attempting to corrupt innocent and unwary minor

girls and his activities were menace to the

neighbours, but since he is now gainfully employed

and there is nothing to show that he is indulging

in his nefarious activities, no useful purpose will

be served by again sending him to jail and sentence

of fine will meet the ends of justice."

As we have pointed out in the preceding part of this

judgment, the findings of the High Court, rendered in

exercise of its appellate jurisdiction are findings of fact

which in our opinion cannot be reopened in this appeal

especially when the respondent has not challenged those

findings and when there is absolutely no reason muchless

compelling reason for holding that those findings are either

in utter disregard of the evidence or unreasonable and

perverse or any part of the evidence in favour of the

respondent is jettisoned. However, we would like to point

out that the trial court has allowed some inadmissible

evidence to be let in by the prosecution which evidence has

also been taken note of and discussed by the Courts below,

such as the statement alleged to have been made by Richa

(not examined) to Tulna about the respondent's abnormal

sexual behaviour with her

937

despite the fact she falls within the prohibited degree of

consanguinity and the evidence touching the character of the

respondent that he has sexually assaulted not only Richa and

Priti but also a number of minor girls. We, while analysing

and evaluating the evidence and considering the findings of

the High Court quo the sexual assault committed on PW 13 by

the respondent, proceed only on the basis of the evidence

legally permissible without being influenced by the

inadmissible evidence and some of the observations made

thereon by the Courts below. Before expressing our

independent opinion on the evidence, we give a brief

background of the status of the witnesses and the cordial

relationship between the family members of the respondent

and the witnesses.

The material prosecution witnesses are all highly

educated and respectable people of the same locality within

which the houses of the respondent and the witnesses are

situated. PW 5, the father of the victim girl had been in

Germany working in the field of journalism for nearly 18

years and he is well conversant with English, Germany and

Hindi languages. His wife PW 6 is a German lady who after

having settled in India has learnt to speak in Hindi. PW 7,

who is the sister of PW 5, is also a well educated lady

working as a Teacher in a School. PW 6 was enjoying the

facility of a telephone connection in his house. PW 9, a

Contractor and his wife PW 10, who are the parents of Priti

are very respectable people enjoying a high social status

and having their house near about the house of the

respondent, provided with all modern facilities including

telephone etc. It is said that the people in that locality

inclusive of the family members of the respondent used to

visit their house to make use of their telephone. In that

way the family members of the respondent, PWs 5, 9 and

others were having a very close and cordial relationship

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till this incident occurred. As earlier pointed out,

respondent's father was a retired Professor and his elder

brother was then occupying a key position in the Police

Force in the rank of a Superintendent of Police posted in

the district of Rajgarh during the relevant period. His

sister-in-law (DW-1) was a Lecturer and his uncle was a

leading lawyer. It is said that the family of the

respondent was wielding high influence in that area. There

is absolutely no evidence, even to remotely suggest, that

there was any enmity or any kind of misunderstanding between

the families of the respondent and PW 5 till this incident

to raise the accusing finger against the respondent either

by the little innocent girl (PW 13) or by PW 5 and to make

this ignoble allegations at the risk of their family honour

and the future prospects of PW 13. Of

938

course, the respondent has suggested a motive against PW 5

evidently drawing the same from the fertility of his

imagination that Tulna had told him that her parents were

getting money for spying for German Embassy and PW 5 after

coming to know of this disclosure of spying has fabricated

this false story of molestation of his minor daughter

fearing that he would be exposed to criminal prosecution by

the respondent's brother, the Superintendent of Police which

defence theory on the face of it has to be thrown overboard

and which in fact did not find acceptance at the hands of

the High Court.

Ms Pinky Anand, the learned counsel appearing for the

appellant having thoroughly marshalled the facts, presented

her persuasive submissions so eloquently in an effective and

at the same time in a very supplicatory manner by taking us

through the entire evidence very meticulously and pleaded

that the spine-chilling facts and the circumstances

surrounding the case do demand the interference of this

Court with the judgment of the High Court so that the wrong

done due to the erroneous conclusion of the High Court may

be remedied. Though Ms Pinky Anand initially put forth her

arguments on two alternative grounds, namely, that the

conviction should be altered into one under Section 376 IPC

or the sentence of fine imposed for the conviction under

Section 354 IPC which is grossly inadequate should be

enhanced. But she left out the alternative argument and

stressed the first part of her submission that the offence

made out is nothing short of rape punishable under Section

376 IPC. At one point of time, she feebly stated that at

least the offence will be falling under Section 376 read

with 511 IPC on the opinion of PW 4, if not under Section

376 IPC which submission she completely gave up subsequently

and proceeded vehemently contending that the offence of rape

within the definition of Section 375 is clearly made out.

The learned counsel appearing for the respondent took

much pain in strenuously opposing the plea, articulated by

Ms Pinky Anand and in supporting the impugned judgment. He

urged that the conclusion arrived at by the High Court is

the reasonable and plausible one and, therefore, that

conclusion need not be disturbed.

Though it is not necessary for us to enter upon a

reappraisal or reappreciation of the evidence since the

findings of fact of the High Court have not been challenged,

yet we after most carefully and closely scrutinis-

939

ing the galaxy of the proven facts, have no hesitation in

agreeing with the High Court that the extra-judicial

confession made by the respondent which is not shown to have

been obtained by coercion, promise of favour or false hope

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etc. is plenary in character and voluntary in its nature

acknowledging his guilt-i.e. the gravely incriminating fact

of the commission of rape on Tulna-in precise and explicit

words. This confession has been made in presence of a body

of person on two occasions inclusive of the family members

of the respondent as well as PWs 5, 6, 9 and 10. PW 7 was

present only on the first occasion along with other

witnesses. As ruled by this Court in Piara Singh v. State

of Punjab, AIR 1977 SC 2274 = [1978] 1 SCR 597 law does not

require that the evidence of an extra-judicial confession

should in all cases be corroborated. However, coming to the

facts of the case, the confession of the respondent is amply

corroborated by the evidence of the victim (PW 13) whose

testimony in turn is corroborated by PWs 5, 6, 7, 9 and 10

and also by the medical evidence.

As regards the evidence of PW 13 relating to the

incident, the High Court has accepted only one part of the

accusations, namely, that the respondent asked Tulna to be

an active agent of oral copulation by sucking his penis,

notwithstanding the fact that the High Court without any

compunction has accepted the evidence of PW 13 as being

substantially corroborated and the extra-judicial confession

of the respondent as being free from any vice and held that

"it is beyond comprehension that the complainant would have

laid a false and reckless charge against the respondent by

involving his own minor daughter Tulna in such unsavoury

incident for nothing not caring about her future and his own

reputation and honour. There is no reason as to why a small

innocent girl would have laid such a serious charge against

the respondent, if it was not true." In our considered

view, the High Court was not at all justified in reaching a

distorted conclusion which has resulted in miscarriage of

justice.

On a careful scanning of the entire records, we have no

reservation in accepting the evidence of PW-13 in its

entirety and the extra-judicial confession of the respondent

which clearly makes out a case for an offence under Section

376 IPC, the reasons for which we will discuss infra.

There are a series of decisions to the effect that even

in cases wherein there is lack of oral corroboration to that

of a prosecutrix, a conviction can be safely recorded,

provided the evidence of the victim does not suffer from

940

any basic infirmity, and the `probabilities factor' does not

render it unworthy of credence, and that as a general rule,

corroboration cannot be insisted upon, except from the

medical evidence, where, having regard to the circumstances

of the case, medical evidence can be expected to be

forthcoming. Vide Rameshwar v. State of Rajasthan, [1952]

SCR 377; Bharwada Bhoginbhai Hirjibhai v. State of Gujarat,

[1988] 2 SCC 217; Krishan Lal v. State of Haryana, [1980] 3

SCC 159.

We shall now briefly deal with the principles regarding

the powers of the High Court to review the evidence while

examining an order of acquittal sitting in its appellate

jurisdiction.

An appeal against acquittal provided under Section 378

of the Code of Criminal Procedure falls under Chapter XXIX

under the caption "Appeals". This Chapter covers Sections

372 to 394. Whilst Section 374 deals with the `Appeals from

Convictions', Section 377 deals with the `Appeal by the

State Government against sentence'. As stated above Section

378 of the new Code (corresponding to Section 417 of the old

Code) gives the High Court full power to review at large the

evidence upon which the order of acquittal was founded and

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to reach its own conclusions upon that evidence either by

reversing the order of acquittal or disposing of the same

otherwise as facts therein warrant. In other words, the

High Court is clothed with the plenary powers to go through

the entire evidence and to come to its own conclusions as

warranted by the facts of the case concerned but, of course,

subject to certain guidelines laid down by the judicial

pronouncements. The Privy Council in Sheo Swarup and others

v. King Emperor, AIR 1934 PC 227 (2) in dealing with the

power of the High Court to review the evidence and reverse

the acquittal held thus:

"Sections 417, 418 and 423 of the Code give to the

High Court full power to review at large the

evidence upon which the order full power to review

at large the evidence upon which the order of

acquittal was founded, and to reach the conclusion

that upon that evidence the order of acquittal

should be reversed. No limitation should be placed

upon that power, unless it be found expressly

stated in the Code. But in exercising the power

conferred by the Code and before reaching its

conclusions upon fact, the High Court should and

will always give proper weight and consideration to

such matters as (1) the views of the trial Judge as

to the credibility of the witnesses; (2) the

presumption

941

of innocence in favour of the accused, a

presumption certainly not weakened by the fact that

he has been acquitted at his trial; (3) the right

of the accused to the benefit of any doubt; and (4)

the slowness of an appellate court in disturbing a

seeing the witnesses."

In Wilayat Khan & Others v. State of U.P., AIR 1953

S.C.122 this Court while examining the scope of Sections

417 and 423 of the Code pointed out that even in appeals

against acquittal, the powers of the High Court are as wide

as in appeals from convictions. See also Surajpal Singh and

others v. The State, [1952] SCR 193; Tulsi Ram v. The

State, AIR 1954 S.C.I; Aher Raja Khima v. State of

Saurashtra, AIR 1956 S.C. 217 = [1955]2 SCR 1285; Radha

Kishan v. State of U.P., AIR 1963S.C.822 = [1963] Supp. 1

SCR 408 holding that an appeal from acquittal need not be

treated different from an appeal from conviction; Jadunath

Singh and others, etc. v. State of Uttar Pradesh, [1971] 3

SCC 577; Dharam Das v. State of U.P., [1973] 2 SCC 216;

Barati v. State of U.P., [1974] 4 SCC 258 and Sethu

Madhavan Nair v. State of Kerala, [1975] 3 SCC 150.

We think it not necessary to swell this judgment by

recapitulating all the decisions on this point, but suffice

to say that this Court has consistently taken the view that

in cases of appeals against acquittal as a matter of

jurisdiction, the whole case is at large for review by the

High Court both as to the facts and the law and that the

true legal position is that however circumspect and cautious

approach of the High Court may be in dealing with those

appeals by exercising its plenary and unlimited statutory

powers, the Court is undoubtedly to reach its own proper

conclusions of guilt or otherwise of the indicted persons as

the established facts warrant and to award appropriate

sentence which will be commensurate with the gravity of the

offence in case of conviction.

Reverting to the instant case, if the conclusion of the

High Court that the offence made out is only punishable

under Section 354 IPC, is scrutinised with reference to the

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evidence adduced by the prosecution and tested in the light

of the above principles of law laid down by this Court, in

our view, the conclusion under challenge is not a reasonable

and justifiable one since the totality of the evidence

demonstrably establishes a graver offence. Moreover, the

sentence of fine alone imposed by the High Court even

assuming that the offence is punishable under Section 354 is

942

grossly inadequate and is not commensurate with the serious

nature of the offence. Of course, this question of the

inadequacy of sentence under Section 354 does not come

within the purview of our consideration because we proceed

on the footing that the offence is not a mere outraging the

modesty of woman but much more than that. Further, we are

constrained to hold that the High Court even after abserving

that "the respondent's activities were menace to the

neighbours" has shown a misplaced sympathy to the respondent

which is patently reflected from the penultimate paragraph

of its judgment and which has led to the miscarriage of

justice. The impugned finding that the offence is one of

outraging the modesty of woman for which sentence of

imprisonment is not compulsory is erroneous and untenable.

The next crucial question that arises for our

consideration is whether the proved facts establish the

offence of rape or only attempt to commit rape. Before the

High Court, the learned Government Advocate appears to have

urged that the offence was punishable under Section 376 read

with 511 IPC though the charge was for a specific offence of

rape punishable under Section 376 IPC.

The medical officer, PW 4 who then only 28 years old,

on examining the victim after 5 days of the incident i.e.

7.9.82 has given her opinion as follows:

"From the above findings, it seems an attempt to

rape has been made."

In the cross-examination, the following answer is

brought out from the medical officer, PW 4:

"I concluded about attempt to rape, on account of

abrasion and redness on labia majora and minora

respectively."

It is true that this medical officer who could not have

gained much experience by that time has given her opinion

that the abrasion found would have been less than 2 days'

duration which opinion of course is not precise but

approximate and probable. Though the prosecutor who

conducted the case before the trial court has not put any

question clarifying her opinion in the re-examination, it

has been clearly brought out in the cross-examination itself

that the medical officer was basing her opinion on the

abrasion found on labia majora and minora. It means that

the medical

943

officer was of the opinion that the abrasion measuring one

and a half inches in length found on the medial side of the

labia majora and the redness around the labia minora could

have been caused even on 2.9.82. By this opinion, PW 4 has

given a margin of 5 days in fixing the probable duration of

the injury. The defence counsel has not further pursued and

put any question clarifying the subsequent answer given by

the medical officer regarding the duration of the injury.

Though in the grounds of appeal, it is specifically

stated that all ingredients for constituting an offence

within the ambit of Section 375, punishable under Section

376 IPC are made out, alternatively a hesitant plea is made

that the offence at any rate would not be less than Section

376 read with 511 IPC. We also prima facie were of the

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opinion that the offence may be punishable under Section

376 read with 511 IPC but after deeply going through the

evidence, we have no hesitation in holding that the offence

is nothing short of rape punishable under Section 376 IPC.

Merely because the inexperienced medical officer has opined

that it was an attempt to commit rape, probably on the

ground that there was no sign of complete penetration, we

are not inclined to accept PW 4's legal opinion as to the

nature of the offence committed by the respondent.

A medical witness called in as an expert to assist the

Court is not a witness of fact and the evidence given by the

medical officer is really of an advisory character given on

the basis of the symptoms found on examination. The expert

witness is expected to put before the Court all materials

inclusive of the data which induced him to come to the

conclusion and enlighten the Court on the technical aspect

of the case by explaining the terms of science so that the

Court although, not an expert may form its own judgment on

those materials after giving due regard to the expert's

opinion because once the expert's opinion is accepted, it is

not the opinion of the medical officer but of the Court.

Nariman, J. in R v. Ahmed ali 11 WR Cr. 25 while

expressing his view on medical evidence has observed as

follows:

"The evidence of a medical man or other skilled

witnesses, however, eminent, as to what he thinks

may or may not have taken place under particular

combination of circumstances, however, confidently,

he may speak, is ordinarily a matter of mere

opinion."

944

Fazal Ali, J. in Pratap Misra v. State of Orissa, AIR

1977 SC 1307 = [1977] 3 SCC 41 has stated thus:

".......it is well settled that medical

jurisprudence is not an exact science and it is

indeed difficult for any Doctor to say with

precision and exactitude as to when a particular

injury was caused......as to the exact time when

the appellants may have had sexual intercourse with

the prosecutrix."

We feel that it would be quite appropriate, in this

context, to reproduce the opinion expressed by Modi in

Medical Jurispurdence and Toxicology (Twenty First Edition)

at page 369 which reads thus:

"Thus 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 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 sufficent for the purpose of

the 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 such a case the medical officer should

mention the negative facts in his report, but

should not give his opinion that no rape had been

committed. Rape is crime and not a medical

condition. Rape is a legal term and not a diagnosis

to be made by the medical officer treating the

victim. The only statement that can be made by the

medical officer is that there is evidence of recent

sexual activity. Whether the rape has occurred or

not is a legal conclusion, not a medical one."

(emphasis supplied)

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In Parikh's Textbook 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."

945

In Encyclopedia of Crime and Justice (Vol.4) at page

1356, it is stated:

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

emission is unnecessary."

In Halsbury's Statutes of England and Wales (Forth

Edition) Volume 12, it 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. Vide R v. Hughes, [1841] 9 C & P 752 ; R v. Lines,

[1844] 1 Car & Kir 393 and R v. Nicholls, [1847] 9 LTOS 179.

See also Harris's Criminal Law (Twenty Second Edition)

at page 465.

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:

"Rape; essentials-Penetration sufficient. 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."

The First Explanation to Section 375 of India Penal

Code which defines `Rape' reads thus:

:Explanation-Penatration is sufficient to

constitute the sexual intercourse necessary to the

offence of rape."

In interpreting the above explanation whether complete

penetration is necessary to constitute an offence of rape,

various High Courts have taken a consistant view that even

the slightest penetration is sufficient to make out an

offence of rape and the depth of penetration is immaterial.

Reference may be made to Natha v. Emperor, 26 Cr. L.J.

[1925] page 1185; Abdul Majid v. Emperor, AIR 1927 Lahore

735 (2); Mussammat Jantan v. The Crown, (1934) Punjab Law

Reporter (Vol.36) page 35; Ghanashyam Mishra v. State,

(1957) Cr.L.J. 469 = AIR 1957 Orissa 78; D. Bernard v. State

(1947) CR.L.J. 1098. In re Anthony, AIR 1960 Mad. 308 it has

been held that while there must be penetration in the

technical sense, the slightest penetration would be

sufficient and a complete act of sexual intercourse is not

at all necessary. In Gour's "The Penal Law of India" 6th

Edn. 1955 (Vol. II) Page 1678, it is observed, "Even vulval

penetration has

946

been held to be sufficient for a conviction of rape."

Reference also may be made to Prithi Chand v. State of

Himachal Pradesh, [1989] 1 SCC 432 though the facts therein

are not similar to this case.

In the case on hand, there is acceptable and reliable

evidence that there was slight penetration though not a

complete penetration. The following evidence found in the

deposition of PW 13 irrefragably proves the offence of rape

committed by the respondent:

"Nawal uncle untied his pyjama and took out his

male organ and put it inside my vagina and clutched

me...........Nawal Chacha put his male organ inside

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my vagina and since it was fat it kept slipping

out. After that my vagina was paining."

".....When Nawal Uncle held apart, then there was

some white liquid coming out from his male organ...

..........

"Nawal Chacha pressed my mouth so I could not

scream."

In the cross-examination, the following answer is

given:

"I suffered pain by what Nawal Chacha did........."

When the evidence of PW 13 is taken with the evidence

of medical officer who found an abrasion on the medial side

of Labia Majora and redness present around the Labia Minora

with white discharge even after 5 days, it can be safely

concluded that there was partial penetration within the

labia majora or the vulva or pudenda which in the legal

sense is sufficient to constitute the offence of rape.

Moreover, the respondent himself has confessed twice

admitting the commission of rape without rupturing the hymen

which confession is not disbelieved by the High Court. The

respondent is a medical officer who has got the practical

knowledge of the anatomy of a human being and the tender

sexual organ of a young girl and who must have been quite

aware of the implication of his confession having fully

understood the meaning of the word `rape'. Therefore, as

admitted by the respondent himself, he without forcibly and

completely penetrating his penis into the vagina of PW 13

had slightly penetrated within the labia majora or vulva or

pudenda without rapturing the hymen and thereby his lust

after emission of semens. In this context, it is

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not necessary to enter into any nice discussion as to how

far the male organ has entered in the vulva or pudenda of PW

13 since it is made clear that there was penetration

attracting the provisions of Section 375 IPC. The evidence

of PW 13 is amply corroborated not only by the medical

evidence and the corroborating evidence of PW 12 but also

by the plenary confession of the respondent himself.

From the above discussion, we unreservedly hold that

the prosecution has satisfactorily established its case that

the respondent has committed rape on PW 13 by proving all

the necessary ingredients required to make out an offence of

rape punishable under Section 376 IPC.

In the result, we set aside the judgment of the High

Court convicting the respondent under Section 354 IPC and

sentencing him to pay a fine of Rs. 3,000 instead convict

the respondent under Section 376 IPC.

What would be the quantum of punishment that would meet

the ends of justice in the facts and circumstances of the

case, is the next question for our consideration.

It is very shocking to note from the judgment of the

High Court that the Government Advocate did not address on

the question of sentence. The High Court thought of

imposing fine only on the ground that the respondent "is now

gainfully employed and there is nothing to show that he is

indulging in his nefarious activities". We regret to say

that we are not able to understand the above reasons which

are not in conformity with the concept of sentencing policy

in a grave case of this nature.

We are told at the bar that the victim who is now 19

years old, after having lost her virginity still remains

unmarried undergoing the untold agony of the traumatic

experience and the deathless shame suffered by her.

Evidently, the victim is under the impression that there is

no monsoon season in her life and that her future chances

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 20 of 20

for getting married and settling down in a respectable

family are completely married.

Though the State has kept silence after the disposal of

the appeal by the High Court, the helpless panic stricken

father of the victim (PW 13) with a broken heart has entered

the portals of this Court and is tapping the door, crying

for justice.

It will be appropriate to refer the following

observation of Ranganath

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Mishra, J (as he then was) in his separate concurring

judgment sitting in the Seven-Judges Bench in A.R. Antulay

v. R.S. Nayak and Another, [1988] 2 SCC 602 at page 673:

"No man should suffer because of the mistake of the

Court.................Ex debito justitiae, we must

do justice to him. If a man has been wronged so

long as it lies within the human machinery of

administration of justice that wrong must be

remedied."

Accordingly, we, having regard to the seriousness and

gravity of this repugnant crime of rape perpetrated on PW 13

who was then 8 years old on the date of the commission of

the offence in 1982, while convicting the respondent under

Section 376 IPC sentence him to undergo rigorous

imprisonment for a period of seven years and to pay a fine

of Rs. 25,000 in default to suffer rigorous imprisonment for

1-1/2 years. The fine amount of Rs. 25,000 if realised

shall be paid to the victim girl who is now a major. If the

fine amount of Rs. 3,000 imposed by the High Court which we

have set aside, has already been paid that amount shall be

adjusted with the fine amount now imposed by us.

"JUSTICE DEMANDS, THE COURT AWARDS"

Before parting with the judgment, with deep concern, we

may point out that though all sexual assaults on female

children are not reported and do not come to light yet there

is an alarming and shocking increase of sexual offences

committed on children. This is due to the reasons that

children are ignorant of the act of rape and are not able to

offer resistence and become easy prey for lusty brutes who

display the unscrupulous, deceitful and insidious art of

luring female children and young girls. Therefore, such

offenders who are menace to the civilised society should be

mercilessly and inexorably punished in the severest terms.

We feel that Judges who bear the Sword of Justice

should not hesitate to use that sword with the utmost

severity, to the full and to the end if the gravity of the

offences so demand.

The appeal is allowed accordingly.

R.P. Appeal allowed.

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