The appellant was convicted for the offence under Sec.376 IPC and sentenced to undergo 7 years R.I and to pay a fine of Rs.3,000/-, in default, to undergo 6 months imprisonment.
2. The brief facts of the case is as follows:
P.W.1 Tmt.Subha and her husband Sivanesan are residing at Door No.11-A, Shanmugapuram, Thiruvottiyur, Chennai. They have 3 female children. The eldest of their daughter one Muthu Dharsini, was aged about 13 years at the time of occurrence. On 1.10.2007, P.W.1's husband Sivanesan was admitted in a private hospital. Therefore, P.W.1 was attending her husband in the hospital. Around 6.00 p.m, the two younger children of P.W.1 went out to attend the tuition. The said Muthu Dharsini, P.W.2 was alone in the house.
3. The appellant, who was the family friend of P.Ws.1 and 2, and had the acquaintance of around 10 years, visited the house around 6.45 p.m. The appellant is said to have taken the girl to the bed room, removed her nighty and had sexual intercourse with her. He left cautioning the girl not to tell any body. Around 7.30 p.m, P.W.1 came home and saw the girl crying. On enquiry, P.W.2 told the incident to P.W.1. She immediately contacted her brothers, P.Ws.3 and 4. Husband of P.W.1 was also intimated and he has got himself discharged from the hospital and reached home. P.Ws.1 to 4 went in search of the appellant whose house is on the next street. But the house was locked and he has left the house with family.
4. The next day morning, P.W.1 gave a complaint. P.W.14, who was the Inspector of Police at Ennore All Women Police Station., registered a case in Cr.No.11 of 2007 under Sec.376 IPC and commenced the investigation. The victim was subjected for medical examination. The Inspector of Police investigated and examined various witnesses. The appellant was arrested on 10.10.2007. He was also subjected for medical examination. After examination of the doctors and obtaining certificates, P.W.14 completed the investigation and laid a charge sheet before the learned Judicial Magistrate, Thiruvottiyur and the case was taken on file in PRC NO.56/2007.
5. On committal, the case was transferred to the learned Additional District and Sessions Judge, Ponneri.
6. On appearance of the appellant, charges were framed and the appellant denied the charges. The trial was conducted. In order to prove the case of the prosecution, 14 witnesses were examined, 11 documents were produced. On the basis of the evidence of the prosecutrix and the medical evidence, the learned Additional District Judge found the appellant guilty under Sec.376 IPC and sentenced to undergo 7 years RI and imposed a fine of Rs.3000/-.
7. The point for consideration is that whether the conviction and sentence passed by the learned Additional District and Sessions Judge, Fast Track Court No.IV, Ponneri is sustainable?
8. Mr. Shanmugavelayutham, learned senior counsel who appeared for the appellant submitted that the evidence of the prosecutrix and the medical evidence would not support the case of the prosecution for an offence under Sec.376 IPC. The learned senior counsel pointed out that first of all the age of the prosecutrix was not proved by acceptable evidence. The learned senior counsel also pointed out that the trial court has been carried away by the expert opinion for fixing the age of the prosecutrix between 13 and 14, whereas the upper age limit has to be fixed at more than 16.
9. The learned senior counsel further pointed out that the medical examination of the prosecutrix would suggest that there was no external or internal injuries and the internal examination would show that the prosecutrix was accustomed to sexual intercourse.
10. The learned senior counsel further submitted that there is nothing to suggest that the appellant had sexual intercourse and that to forcibly. The learned senior counsel further submitted that the evidence of the prosecutrix and the medical evidence are not specific about the sexual intercourse and therefore, the offence cannot be said to be rape. He relied on a decision reported in 2004 Crl.L.J 1399 (1) (Aman Kumar and another vs State of Haryana) , wherein the Apex Court has held as follows:
12. Though the prosecutrix's version in Court was of rape, when it is compared with the one given during investigation, certain irreconcilable discrepancies are noticed. The evidence regarding actual commission of rape is at variance from what was recorded by police during evidence. The evidence of P.W.11, the father who according to prosecution made departure from what he allegedly stated during investigation is to the effect that his wife P.W.9 told her that the prosecutrix was teased by the accused person. Merely because he was termed as a hostile witness his entire evidence does not get effected. Significantly, the evidence of prosecutrix and the doctor does not specifically refer to penetration which is sine qua non for the offence of rape.
11. The learned senior counsel relied on a decision reported in 2010 Crl LJ 3255 (Kailash Laxman Khamkar vs State of Maharashtra) "12. In the light of the rival contentions, the only question that falls for determination is whether the judgment and order of the trial court is legal and proper and can be sustained or not"
12. On the contrary, Mr.Hassan Mohammed Jinnah, the learned Additional Public Prosecutor would submit that the age of the victim was 13 years at the time of occurrence and the appellant is a known person and he had sexually assaulted the victim and it is a clear case of child abuse. The learned Additional Public Prosecutor pointed out that the sole testimony of the prosecutrix is enough to convict the accused. The learned Additional Public Prosecutor relied on decision reported in 2005 (5) SCC 194 (Kamalanantha and Others vs State of Tamil Nadu) , wherein, the Apex Court held that conviction can be based on the testimony of prosecutrix alone, without insisting on corroboration if the same inspires confidence.
13. He also relied on a decision 2008 1 SCC 234 (State of MP vs Babulal) , where, the Hon'ble Supreme Court observed as follows:
"18. As held by this Court in several cases, if a court of law finds evidence of prosecutrix truthful, trustworthy and reliable, conviction can be recorded solely on the basis of her testimony and no further corroboration is necessary".
14. Heard and perused the materials available on record.
15. In 2010 Crl.L.J 3255 (Kailash Laxman Khamkar vs State of Maharashtra), the Bombay High Court has relied on the decisions reported in AIR 2004 SC 1497, Aman Kumar and another vs State of Haryana and in AIR 2004 SC 1874 Koppula Venkat Rao vs Andhrapradesh, wherein the Hon'ble Supreme Court held "To constitute an offence of rape, it is not necessary that there should be complete penetration. Partial penetration is sufficient. The depth of penetration is immaterial but the sine quo non of the offence of rape is penetration. If that itself is not established and proved then, the charge cannot be said to be established. In these two cases the principle outlined are as under:
5. It is well settled that a prosecutrix complaining of having been a victim of the offence of rape is not an accomplice after the crime. There is no rule of law that her testimony cannot be acted without corroboration in material particulars. She stands at a higher pedestal than an injured on the physical form While in the former it is both physical as well as psychological and emotional. However, if the court of facts finds it difficult to accept the version of the prosecutrix on its face value, it may search for evidence, direct or circumstantial, which would lend assurance to her testimony. Assurance, short of corroboration as understood in the context of an accomplice would suffice.
16. In 2000 1 SCC 247, (State of H.P vs Lekh Raj and Another),, the Apex court referred the decision reported in 1996 2 SCC 384 State of Punjab vs Gurmit Singh, the Apex Court held as follows:
"21. Of late, crime against women in general and rape in particular is on the increase. It is an irony that while we are celebrating women's right in all spheres, we show little or no concern for her honour. It is a sad reflection on the attitude of indifference of the society towards the violation of human dignity of the victims of sex crimes. We must remember that a rapist not only violates the victim's privacy and personal integrity, but inevitably causes serious psychological as well as physical harm in the process. Rape is not merely a physical assault it is often destructive of the whole personality of the victim. A murderer destroys the physical body of his victim, a rapist degrades the very soul of the helpless female.
and further held "The courts must, while evaluating evidence, remain alive to the fact that in a case of rape, no self-respecting woman would come forward in a court just to make a humiliating statement against her honour such as is involved in the commission of rape on her. In cases involving sexual molestation, supposed considerations which have no material effect on the veracity of the prosecution case or even discrepancies in the statement of the prosecutrix should not, unless the discrepancies are such which are of fatal nature, be allowed to throw out an otherwise reliable prosecution case. The inherent bashfulness of the females and the tendency to conceal outrage of sexual aggression are factors which the courts should not overlook. The testimony of the victim in such cases is vital and unless there are compelling reasons which necessitate looking for corroboration of her statement, the courts should find no difficulty to act on the testimony of a victim of sexual assault alone to convict an accused where her testimony inspires confidence and is found to be reliable".
17. In 1992 3 SCC 204 (Madan Gopal Kakkad vs Naval Dubey and another), the Apex Court has held as follows:
"37. We feel that it would be quite appropriate, in this context, to reproduce the opinion expressed by Modi in Medical Jurisprudence 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 sufficient 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".
18. Therefore, it is well settled that penetration is the sine-qua non for an offence of rape. However, to constitute the offence of rape, it is not necessary that there should be complete penetration with emission of semen and rupture of hymen.
19. In the present case, the submission of the appellant is based on the evidence of the prosecutrix where she only states that "mg;bghGJ khiy 6/45 kzpastpy; MIh; vjphp ghyfpUc&;zd; tPl;ow;Fs; te;jhh;/ vdJ iel;oia fHw;wptpl;L vd;id bfLj;Jtpl;L brd;Wtpl;lhh;/"
20. It is also based on the evidence of the doctor who examined the prosecutrix. The medical evidence would show that there was no internal or external injuries, no bite or nail marks. The internal examination would show two old hymenal tears at 3 and 8 0 clock position and the doctor had observed that the vagina admits two fingers easily. Exs.P.4 and P.5 are the accident register and certificate of medical examination respectively.
21. Ex.P.1 is the complaint dated 6.10.2007. The mother of the prosecutrix has given the complaint. It would state that the prosexutrix had told the complainant that at the time of the occurrence, the appellant forcibly committed rape. Her evidence before the trial court is to the effect that the appellant had intercourse and fled the scene.
22. In a detailed cross examination, the prosecutrix would state that she resisted. Admittedly, neither the cloth of the prosecutrix nor the appellant were seized and subjected for chemical analysis. It is also pertinent to note that the vaginal smear was not collected and subjected for chemical analysis to find out the presence of semen.
23. The medical evidence would not reveal that there was a forcible penetration at the time of the occurrence. It will not even reveal that there was a penetration as narrated by the prosecutrix. Immediately after the occurrence the prosecutrix revealed to her mother stating that the appellant had sexual intercourse with her. The occurrence was on 1.10.2007 and the prosecutrix was subjected for medical examination on 8.10.2007, i.e., after a week. Therefore, the only evidence available is the evidence of the prosecutrix. It is well settled that the evidence of the prosecutrix alone is sufficient for the purpose of conviction provided if it is found to be reliable, cogent, credible and more importantly, if inspire confidence in the mind of the Court.
24. The prosecutrix would also state of an earlier incident where the appellant had committed the same offence. But she had not revealed the incident to anybody. The rupture of hymen and the observation that it allows two fingers freely may suggest that the prosecutrix might have had frequent or occasional contacts. At the same time, the doctor who examined the prosecutrix also stated that there may be many reasons for the rupture of hymen.
25. The evidence of the prosecutrix would show that at the earliest point of time, she had told P.W.1 that the appellant had sexual intercourse. Before the trial court she would state that " "mg;bghGJ khiy 6/45 kzpastpy; MIh; vjphp ghyfpUc&;zd; tPl;ow;Fs; te;jhh;/ vdJ iel;oia fHw;wptpl;L vd;id bfLj;Jtpl;L brd;Wtpl;lhh;/". In the cross examination, she would state that she resisted and shouted but the medical evidence did not support this version.
26. Penetration is the sine quo non for an offence of rape. In order to constitute penetration there must be clear and cogent evidence to prove that some part of the virile member of the accused was within the labia of the pudendum of the woman, no matter how little. It is well known in the medical world that the examination of smegma loses of importance after twenty four hours of the performance of the sexual intercourse. But vaginal smear may indicate foreign bodies.
27. As stated earlier, the medical evidence would not reveal that the prosecutrix was subjected for penetration and there is no internal or external injuries. The credibility and the reliability of the evidence of the prosecutrix has to be tested only based on her evidence. There are few disturbing circumstances in the evidence of the prosecutrix. Though her age is stated to be 13 to 14, it is pertinent to note that she had obtained puberty three years prior to the occurrence. Therefore, the lower limit of 13 years cannot be taken into consideration. The rupture of hymen would show that she was accustomed for the relationship. Though she claims about an earlier incident, she had not revealed the same to anybody and the oral evidence of the prosecutrix and the medical evidence will not reveal that there was penetration which shall constitute an offence.
28. Therefore, I am of the considered view that there is no medical evidence to suggest that there was penetration to constitute an offence of rape. Though the evidence of the prosecutrix alone is sufficient, in the present case, the evidence of the prosecutrix is not cogent, reliable and credible and does not inspire confidence to find the appellant guilty of the offence.
29. However,the evidence of the prosecutrix as its stand would only show that there was an indecent assault by the appellant over the prosecutrix which will attract the offence under Sec.354 IPC.
30. For the reasons stated above the criminal appeal is allowed in part and the conviction imposed on the appellant by the learned Additional District and Sessions Judge, Fast Track Court No.IV, Ponneri for the offence under Sec.376 IPC is set aside and the appellant is convicted for the offence under Sec.354 IPC instead of 376 IPC. The sentence of fine imposed on the appellant by the trial court is confirmed. The sentence of imprisonment is modified to the period already undergone. (18 months).
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1. The Fast Track Court No.IV, Ponneri
2. The Public Prosecutor, High Court, Madras
3. The Inspector of Police W-34, Ennore All Women Police Station Ennore, Chennai-57
4. The Superintendent, Central Prison, Puzhal G.M. AKBAR ALI,J., sr Pre-Delivery Judgment in C.A.No.478 of 2009] 23-12-2010