(Per : HONOURABLE MR.JUSTICE JAYANT PATEL) 1. The present appeal is directed against the judgement and order passed by the learned Sessions Judge in Sessions Case No.86/2006, whereby the accused has been convicted (1) for the offence under Section 363 and the sentence has been imposed of seven (7) years R.I., with the fine of Rs.1,000/- (Rupees one thousand only) (and in default of fine of Rs.1,000/-, one (1) year R.I.); (2) for the offence under Section 354 and the sentence has been imposed of one (1) year R.I.; (3) for the offence under Section 323 and the sentence has been imposed of one (1) year R.I., and (4) for the offence under Section 376 of IPC and the sentence has been imposed of life- imprisonment with the fine of Rs.10,000/- (Rupees ten thousand only) plus Rs.10,000/- (Rupees ten thousand only), total Rs.20,000/- (Rupees twenty thousand only) (and in default of fine of Rs.20,000/-, two years' R.I.). It is also ordered that the amount of Rs.20,000/- be given as compensation to both the girls.
2. The short facts are that Iqbal Alibhai Pirzada – PW-1 filed the complaint with the Police Inspector, Joravar Nagar, stating that he has three daughters, out of which, one was Kausar, aged 7 years, second was Rukaiya, aged 4 years and third was Fiza, aged 2 years. When he was at his residence, his elder daughter Kausar was playing in the street and between 1.30 p.m., to 2.30 p.m., when he did not find Kausar outside his house, he enquired about her and he found that near Ratanpar Slop, near Sagar Hotel, his daughter was standing and when he saw her, he enquired from her as to where she was, then she said that she was playing in the street and at that time, one man had come and shown the
person molested with the finger and thereafter the clothes were put on. The complainant then conveyed the aforesaid to his family and on further enquiry, it was found that he was Kanubhai Dhirubhai Rajput – accused herein. Therefore, the complaint was filed.
3. The aforesaid complaint was investigated by the Police and ultimately charge-sheet was filed. The case was committed to the Sessions Court being Sessions Case No.86 of 2006. The prosecution, in order to prove the guilt of the accused, examined 21 witnesses, the details of whom are mentioned by the learned Sessions Judge at paragraph 4 of the judgement. The prosecution also produced the documentary evidence of 42 documents, the details of which are mentioned by the learned Sessions Judge at the very paragraph 4. The learned Sessions Judge thereafter recorded the statement of the accused under Section 313 of Cr.P.C., wherein the accused denied the offences and in his further statement, he stated that when he was going on road, the complainant and his family members had beaten him and he was carried to the police station and the complaint was filed, but he is innocent.
4. The learned Sessions Judge, thereafter heard the prosecution and the defence and found that the prosecution has been able to prove the case for the charged offences against the accused. The learned Sessions Judge thereafter heard the prosecution and the defence on the aspects of sentence and thereafter, the learned Sessions Judge delivered the aforesaid judgement and order. Under these circumstances, the present appeal before this Court.
5. We have heard the learned Counsel appearing for the appellant, Mr.Thakore and Mr.H.K. Patel, learned APP for the State. We have considered the record and proceedings and also the reasons recorded by the learned Sessions Judge.
6. The learned Counsel appearing for both the sides have taken us to the entire record and the evidences of the witnesses and the documentary evidences of the case.
7. The complainant – PW-1 has fully supported the case of the prosecution. It has also come on record that the temptation of Rs.10/- was given to both the victims and the accused had taken both the victims from the custody of the complainant – PW-1. In the cross-examination of the said complainant, the defence has not been able to bring about any material contradiction. Both the victims, though of a very tender age of 7 and 4 years, have been examined and the victims have also supported the case of the prosecution.
As per both the victims, the accused by showing temptation had taken them to the place near to Gin, where there was fencing. It has also come in evidence that the clothes of the victim were taken out and in the private part of the elder victim, the accused had inserted his finger, which resulted into bleeding and when the elder victim started crying the accused had given a fist blow. It has also come in evidence that the victim had also put off his clothes and she was asked to sit and at that time also, again the accused had inserted finger in the private part of the elder victim and again the bleeding had started. It has also come in evidence that there was discharge by the accused. The frock, which was put on by the elder victim was stained with blood and both the victims had started crying. Thereafter, the clothes were put on by the victims as well as by the accused and the accused left both the victims. In the evidence of younger victim – PW-12, there is improvement for inserting of finger in private part of younger victim too and the bleeding. The medical evidence of Dr. Ashwin – PW-13 supports the case of the prosecution for showing that private part of the elder victim sustained injuries and the vagina was reddish and there was swelling and the hymen was raptured and there was also bleeding. The said doctor has opined that there was penetration, but such penetration could also be with the finger. In the medical history given by the said witness – Dr. Ashwin no molestation was reported to the younger victim. Dr. Shailesh Jayanand Bhatt – PW-14, in his testimony, has deposed that he had examined younger victim and there were no blood stains found, nor there was any injury on the private part of the said younger victim. Dr. Dirajkumar Jagdishprasad Tiwari – PW-15 had examined the accused and in the medical history given to him, the accused admitted to insert private part into the private part of one girl out of two, but since there was discharge, he left the girls at a slop of Ratanpar. In our view, the testimony of Dr. Dirajkumar Jagdishprasad Ttiwari, so far it relates to medical history narrated by the accused is in contradiction to the statements of both the victims, inasmuch as the victims have not stated that any attempt was made to insert private part by the accused into the private parts of the victims. The other evidence of Dr. Dirajkumar Jagdishprasad Tiwari – PW-15 supports the case of the prosecution for showing the ejaculation and discharge of semen. The FSL report supports the case of the prosecution for showing the blood stains of the victim on her clothes, the blood found in the vaginal swab and also the blood found in the clothes of the victim and the presence of semen. Therefore, to that extent it can be said that the prosecution has been able to prove the case for the bleeding in the private part of the elder victim and the discharge of semen by the accused at the time of incident. The evidence of other witnesses namely; I.O., supports the case of the prosecution.
8. The aforesaid evidence goes to show that; (1) the prosecution has been able to prove the case for kidnapping of two minor girls – both the victims, by the accused, that too, by giving temptation of currency note of Rs.10/-; (2) that the private part of the victim was not only molested, but the hurt was caused; (3) there was penetration of finger into the vagina of elder victim, resulting into bleeding and sustaining injuries in the private part of the elder victim; and (4) the discharge of semen by the accused.
9. The learned Counsel for the appellant raised the contention that it was not a case for the offence under Section 376 of IPC, since there was no sexual intercourse, nor there was even any attempt to commit sexual intercourse by the accused. He submitted that as the ingredients of Section 376 of IPC for sexual intercourse were not satisfied, the conviction under Section 376 of IPC cannot be maintained.
10. Whereas the learned APP submitted that the evidence of taking off the clothes of both the minor girls, putting off the clothes by the accused, the medical history given before Dr. Dirajkumar – PW-15 by the accused for attempt to insert into the private part of the elder victim goes to show that the private part of the accused was inserted, hence the requirement of penetration and sexual intercourse for offence under Section 376 of IPC are satisfied. He submitted that since as per the medical history given by the accused to Dr. Diraj – PW-15, there was discharge, the attempt was not successful to commit sexual intercourse and, therefore, it was submitted by the learned APP that the conviction under Section 376 of IPC as held by the learned Sessions Judge was correct and the sentence is also correctly imposed, keeping in view the fact that it was a case of minor girl aged 7 years, who was raped by the accused.
11. In our view, even if the evidence is appreciated and re-appreciated, it can be said that the prosecution has been able to prove the case of penetration in the vagina of the elder victim and also the bleeding on account of the same, causing injury to the private part of the elder victim and it can also be said that on account of the said penetration, medical evidence shows, that the hymen of the elder victim was raptured, but such, even if it is accepted as it is, would not meet with the requirement for the commission of offence under Section 375 read with Section 376 of IPC, since the penetration was not with the physical organ of the accused into the vagina of the victim. At this stage, we may refer to the decision of the Apex Court in the case of Sakshi v. Union of India & Ors., reported in (2004) 5 SCC, 518.
12. The Apex Court had an occasion to examine the scope and ambit of Section 375 of IPC in the aforesaid decision and to consider as to whether all forms of penetration such as penile/vaginal penetration, penile/anal penetration, penile/oral penetration, finger/anal penetration, object/vaginal penetration would fall under Section 375 of IPC or not. It was observed in the said decision at paragraphs 18 and 19 as under:-
18. The main question which requires consideration is whether by a process of judicial interpretation the provisions of Section 375 IPC can be so altered so as to include all forms of penetration such as penile/vaginal penetration, penile/oral penetration, penile/anal penetration, finger/vagina and finger/anal penetration and object/vaginal penetration within its ambit. Section 375 uses the expression "sexual intercourse" but the said expression has not been defined. The dictionary meaning of the word "sexual intercourse" is hetrosexual intercourse involving penetration of the vagina by the penis. The Indian Penal Code was drafted by the First Indian Law Commission of which Lord Mecaulay was the President. It was presented to the Legislative Council in 1856 and was passed on October 6, 1860. The Penal Code has undergone very few changes in the last more than 140 years. Except for clause sixthly of Section 375 regarding the age of the woman (which in view of Section 10 denotes a female human being of any age) no major amendment has been made in the said provision. Subsection (2) of Section 376 and Sections 376A to 376D were inserted by Criminal Law (Amendment) Act, 1983 but subsection (2) of Section 376 merely deals with special types of situations and provides for a minimum sentence of 10 years. It does not in any manner alter the definition of 'rape' as given in Section 375 IPC. Similarly, Section 354 which deals with assault or criminal force to woman with intent to outrage her modesty and Section 377 which deals with unnatural offences have not undergone any major amendment.
19. It is well settled principle that the intention of the Legislature is primarily to be gathered form the language used, which means that attention should be paid what has been said as also to what has not been said. As a consequence a construction which requires for its support addition or substitution of words or which results in rejection of words as meaningless has to be avoided. It is contrary to all rules of construction to read words into an Act unless it is absolutely necessary to do so. Similarly it is wrong and dangerous to proceed by substituting some other words for words of the statute. It is equally well settled that a statute enacting an offence or imposing a penalty is strictly construed. The fact that an enactment is a penal provision is in itself a reason for hesitating before ascribing to phrases used in it a meaning broarder than that they would ordinarily bear. (Principles of Statutory Interpretation by Justice G.P. Singh p. 58 and 751 Ninth Edition). (Emphasis supplied)
13. Thereafter it was further observed at paragraph 22 as under:-
22. It may be noted that ours is a vast and big country of over 100 crore people. Normally, the first reaction of a victim of crime is to report the incident at the police station and it is the police personnel who register a case under the appropriate Sections of the Penal Code. Such police personnel are invariably not highly educated people but they have studied the basic provisions of the Indian Penal Code and after registering the case under the appropriate sections, further action in taken by them as provided in Code of Criminal Procedure. Indian Penal Code is a part of the curriculum in the law degree and it is the existing definition of "rape" as contained in Section 375 IPC which is taught to every student of law. A criminal case is initially handled by a Magistrate and thereafter such cases as are exclusively triable by Court of Session are committed the Court of Session. The entire legal fraternity of India, lawyers or Judges, have the definition as contained in Section 375 IPC engrained in their mind and the cases are decided on the said basis. The first and foremost requirement in criminal law is that it should be absolutely certain and clear. An exercise to alter the definition of rape, as contained in Section 375 IPC, by a process of judicial interpretation, and that too when there is no ambiguity in the provisions of the enactment, is bound to result in good deal of chaos and confusion, and will not be in the interest of society at large.(Emphasis supplied)
14. Further, in the concluding observations, the Apex Court at paragraph 26 observed thus:-
26. While making the above statement a rule of caution was sounded that while departing from a previous decision when it appears right to do so, the especial need for certainty as to criminal law shall be borne in mind. There is absolutely no doubt or confusion regarding the interpretation of provisions of Section 375 IPC and the law is very well settled. The inquiry before the Courts relate only to the factual aspect of the matter which depends upon the evidence available on the record and not on the legal aspect. Accepting the contention of the writ petitioner and giving a wider meaning to Section 375 IPC will lead to a serious confusion in the minds of prosecuting agency and the Courts which instead of achieving the object of expeditiously bringing a criminal to book may unnecessarily prolong the legal proceedings and would have an adverse impact on the society as a whole. We are, therefore, of the opinion that it will not be in the larger interest of the State or the people to alter the definition of "rape" as contained in Section 375 IPC by a process of judicial interpretation as is sought to be done by means of the present writ petition. (Emphasis supplied)
15. The aforesaid shows that for meeting with the requirement of Section 375, penile/vaginal penetration is a 'must' and the penetration of other types i.e. other than that of male sexual organ would not satisfy the requirement of the provisions of Section 375 of IPC.
16. In view of the aforesaid decision of the Apex Court, though the incident of penetration by fingering or with the help of finger to a minor girl aged about 7 years, may be not only highly immoral, but also disgusting in the society, but the definition of Section 375 cannot be stretched to include such an action to be named as 'sexual intercourse', which is the requirement as per the Act made by the Parliament. Therefore, we cannot agree with the findings recorded by the learned Sessions Judge that the prosecution had successfully proved the case for commission of offence under Section 376 of IPC.
17. The aforesaid would lead us to examine the aspects of commission of crime for the other charges namely under Sections 363, 354 and 323 of IPC. It may be recorded that the learned Sessions Judge has acquitted the accused for the offence under Section 366 of IPC and the State is not in appeal against such acquittal and, therefore, we need not discuss the said aspect. However, so far as the offence under Section 363 of IPC is concerned, the evidence does show that there was kidnapping by the accused of both the minor girls, one aged 7 years and another aged 4 years. The intention was also, if not under Section 376 of IPC, but was to outrage modesty, which is also an offence under Section 354 of IPC. The requirement of Section 354 of IPC is fully satisfied in the present case. Further, it has also come on record that the temptation was given to both the minor victims by showing currency note and thereafter they were taken away from the lawful guardianship of the complainant. Therefore, we find that the learned Sessions Judge has rightly held that the accused was guilty for the offence under Section 363 of IPC. Further, keeping in view the facts and circumstances of the case that the kidnapping was to commit offence and also for an act, which could be termed as heinous in the society, the maximum punishment provided for the offence under Section 363 of IPC has been rightly imposed by the learned Sessions Judge.
18. The learned Sessions Judge has also found that the accused was guilty for the offence under Section 323 and Section 354 of IPC. As observed by us and having considered the evidence, we find that the ingredients of Section 354 as well as Section 323 of IPC were fully satisfied and, therefore, the learned Sessions Judge has rightly held the accused guilty for both the offences. On the aspects of maximum sentence for the offence under Section 323 of IPC, the maximum sentence provided is of one year, which has been imposed by the learned Sessions Judge. However, for the offence under Section 354 of IPC, the maximum sentence provided is of two years, but the learned Sessions Judge has only imposed the sentence of one year. Since the State is not in appeal for enhancement of the sentence under Section 354 of IPC, we leave the matter at that stage. Suffice it to observe that in an offence under Section 354 of IPC, when the modesty of an young minor girl is outraged by penetrating into the private part, it would have called for maximum sentence and also fine.
19. In view of the aforesaid observations and discussions, the judgement and order passed by the learned Sessions Judge for holding the accused guilty for the offences under Sections 363, 354 and 323 of IPC and the sentence imposed upon the accused by the learned Sessions Judge are confirmed. However, the judgement and order of the learned Sessions Judge for holding the accused guilty for the offence under Section 376 of IPC deserves to be set aside and the same is set aside. Consequently, the sentence imposed for such offence shall also stand set aside. It is directed that if the sentence is already undergone by the accused, including the period of remission, then the appellant – accused shall be set to liberty, unless required for any other lawful purpose.
(Jayant Patel, J.) (Mohinder Pal, J.) vinod