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2004 DIGILAW 1596 (MAD)

Sridhar v. State rep. by the Inspector of Police

2004-11-26

S.R.SINGHARAVELU

body2004
Judgment :- Sridhar, the appellant, was convicted for an offence under Section 376(2) IPC and sentenced to undergo rigorous imprisonment for a period of ten years and also to pay a fine of Rs.1,000/-, in default to undergo simple imprisonment for a period of two months. 2. The facts leading to the conviction are as follows:- (a) The victim girl Lakshmi, examined as P.W.2, was studying III standard at Corporation School, Nungambakkam, Chennai at the time of occurrence. P.Ws.1 and 3 are her parents. On the day of occurrence, i.e. on 08.09.2001 at about 3.00 p.m. the victim girl was induced with the offer of one rupee by the accused and was taken inside his house, situate at No.5, Kamatha Nagar, wherein the assault of forcible sexual intercourse was committed within closeted doors. (b) On the same day at about 7.15 p.m. while P.W.1, the father of the victim girl, who was working in a quarry, returned home after finishing his work, found her daughter weeping. Whereupon on questioning her, he ascertained the commission of the incident. Her statement was also corroborated by witnesses P.W.4, Sarala and one Dhanalakshmi. He then went to the Nungambakkam Police Station and lodged a complaint. Ex.P-1, with the Sub Inspector of Police (P.W.9). (c) On receipt of the complaint, the Sub Inspector of Police, registered a case in Crime No.999 of 2001 under Section 376 IPC. The first information report was marked as Ex.P-10. Then the matter was entrusted to the Inspector of Police for investigation. (d) Based upon Ex.P-10 the first information report, P.W.10, Inspector of Police took up investigation. He visited the place of occurrence and prepared the Observation Mahazar Ex.P-12 and rough sketch Ex.P-11. He examined the witnesses and recorded their statements. On 08.09.2001 at about 23.30 hours, he arrested the accused in his house. He recorded the confession statement given by the accused. He recovered the jatti M.O.1 of the accused under Ex.P-13 mahazar and also a cement colour jatti M.O.2 from the victim girl. Then he gave a requisition to the court, praying to send the seized material objects for chemical analysis. Based upon the request, the Judicial Magistrate addressed a letter Ex.P-14 to the Forensic Science Department. After examination, they sent a report Ex.P-15, opining that there were blood stains on both the jatties and that no semen was present on either of them. Based upon the request, the Judicial Magistrate addressed a letter Ex.P-14 to the Forensic Science Department. After examination, they sent a report Ex.P-15, opining that there were blood stains on both the jatties and that no semen was present on either of them. (e) P.W.8-Dr.Nazir Ahamed examined the victim girl on 09.09.2001 at about 00.40 a.m. and at that time the victim girl informed the Doctor that she was subjected to forcible sexual intercourse. She found abrasion over the external genetalia of the victim girl. The accident register copy is marked as Ex.P-7. The victim girl was then referred to the Kasturiba Gandhi Hospital. (f) At the Kasthuriba Gandhi Hospital, she was examined by P.W.7-Dr.K.Gomathy on 09.09.2001 at about 2.10 a.m and her opinion was that there might have been an attempt of rape on the victim girl, but she would not have been subjected to sexual intercourse. The said accident register copy was marked as Ex.P-5. The smear report from the Forensic Science Department is marked as Ex.P-6. (g) The accused was examined by P.W.8 on 09.09.2001 at about 1.10 a.m and the accused told the Doctor that he had sexual intercourse with the victim girl. The medical notes prepared after examination of the accused was marked as Ex.P-8. The accident register copy issued to the accused was marked as Ex.P-9. After completion of the investigation, P.W.10 filed the charge sheet against the accused for the offence under Section 376 IPC. (h) During the course of trial, on the side of prosecution, P.Ws.1 to 10 were examined. Exs.P-1 to P-15 were filed and M.Os.1 and 2 were marked. (i) The plea of the accused, while he was questioned under Section 313 of Cr.P.C. is one of total denial. (j) The trial court relied upon the evidence adduced by the prosecution and convicted the accused for the offence under Section 376 IPC and sentenced him thereunder. Aggrieved by the said conviction and sentence, the accused has filed this appeal. 3. Munusamy and Valli are the parents of the victim girl Lakshmi. They were examined as P.Ws.1 to 3. Although the age certificate for Lakshmi was not produced, her study in III standard at the Corporation School at Nungambakkam was not disputed. Therefore, her age during the time of occurrence would be round about 8 yrs and she was staying with her parents. They were examined as P.Ws.1 to 3. Although the age certificate for Lakshmi was not produced, her study in III standard at the Corporation School at Nungambakkam was not disputed. Therefore, her age during the time of occurrence would be round about 8 yrs and she was staying with her parents. On the day of occurrence, i.e. on 08.09.2001 at about 3.00 p.m. by way of inducement, the accused offered one rupee to the victim girl and took her inside his house and committed forcible sexual intercourse within closeted doors. At about 7.15 p.m. when P.W.1 returned home after his work, the victim informed as to what had happened. P.W.1 preferred a complaint to the Nungambakkam Police station. As per Ex.P-1, Arokiamary, the Sub Inspector of Police (P.W.9) upon receiving the complaint, registered a case in Crime No.999 of 2001 under Section 376 IPC and the printed copy of the FIR was marked as Ex.P-10. The Inspector of Police (P.W.10) conducted the investigation and filed the charge sheet. 4. As per the prosecution case, Lakshmi aged about 8 years was subjected to forcible sexual intercourse by the accused. The defence is that in order to detain the accused under Goondas Act, the prosecution has foisted several cases, including the instant one. But the evidence of P.W.1 and P.W.3, the parents of the victim, is about the information given by the victim, upon which a complaint through Ex.P-1 was lodged. P.W.6 corroborates the evidence of the former. She had deposed about the crying of the mother of the victim that the son of Tailor had committed rape upon the victim. That shows the subsequent conduct of the victim girl and her mother. The evidence of the victim girl P.W.2 is that the accused by paying one rupee called her inside the house and after removing her jatti, the accused spread himself over her. For a child like the victim aged 8 years, it may not be possible to describe the act and process of sexual intercourse in so many terms. But her specific evidence that accused after removing jatti of himself and the accused had spread over her and that thereafter there was pain and bleeding in the private parts of the girl, would go to show that there was sexual act committed by the accused. But her specific evidence that accused after removing jatti of himself and the accused had spread over her and that thereafter there was pain and bleeding in the private parts of the girl, would go to show that there was sexual act committed by the accused. As per Ex.P-15, the jatti which was recovered from the accused and that was recovered from the victim were found to have blood stains. Ex.P-7 and Ex.P-8 are the accident register copies issued by Royapettah Hospital and at Kasthuriba Government Hospital respectively. Ex.P-7 shows that there were abrasions over the external genetalia of the victim. Similarly Ex.P-8 shows that there was a tear on the fraenum of the penis and blood clot on the edges. This would go to show that there was force applied by the organ of male into female. Unlike P.W.7-Dr.Gomathi, P.W.8-Dr.Nazir Ahmed stated that there were abrasions over the external genetalia of the victim girl. Thus the injuries found upon the male and female organs would go to show that there was force applied by the organ of male into female. 5. Now the question arises, as to whether at all it would amount to rape as defined under Section 376 IPC, which reads as follows: 376(1)- Whoever, except in the cases provided for by sub-section (2), commits rape shall be punished with imprisonment of either description for a term which shall not be less than seven years but which may be for life or for a term which may extend to ten years and shall also be liable to fine unless the woman raped is his own wife and is not under twelve years of age, in which case, he shall be punished with imprisonment of either description for a term which may extend to two years or with fine or with both. Comments The sine qua non of the offence of rape is penetration, and not ejaculation. Ejaculation without penetration constitutes an attempt to commit rape and not actual rape. 6. The Government Advocate relied upon a case law reported to State of Punjab Vs. Comments The sine qua non of the offence of rape is penetration, and not ejaculation. Ejaculation without penetration constitutes an attempt to commit rape and not actual rape. 6. The Government Advocate relied upon a case law reported to State of Punjab Vs. Ramdev Singh (2004 SCC (Cri) 307), wherein it was held that courts have to display a greater sense of responsibility and to be more sensitive while dealing with charges of sexual assault on women, particularly of tender age and children, as the offence is violative of victim's fundamental right under Article 21 and the degree of proof in this regard is only a depth of assurance, short of corroboration as understood in the context of an accomplice would do and in cases of absence of visible injuries, this kind of offence was also held of no consequence. Such serious view was taken because a rapist not only causes physical injuries, but more indelibly leaves a scar on the most cherished possession of a woman i.e. her dignity, honour, reputation and not the least her chastity and that rape is not only a crime against the victim, but the entire society. It was further held that a socially sensitized judge is a better statutory armour in cases of crime against women. 7. It was further held in the above cases, based upon the observation made in State of Rajasthan Vs. N.K. ( 2000(5) SCC 30 ) and held that absence of injuries on the person of the prosecutrix is not necessarily an evidence of falsity of the allegation, or an evidence of consent on the part of the prosecutrix. The seriousness of the crime is felt as above. 8. Counsel for the accused relied upon case law reported in Aman Kumar and Another Vs. State of Haryana (2004 (2) Crimes 66 (SC), wherein it was held that penetration is a sine qua non for offence of rape and that depth of penetration is immaterial. That was a case of no penetration, in which it was argued that the offence under Section 376 r/w 511 IPC may get invoked. It is in that view there was description of intention, preparation and attempt to commit an offence. Mere intention to commit an offence not followed by any action, cannot constitute an offence. Preparation consists in devising or arranging the means or measures necessary for the commission of the offence. It is in that view there was description of intention, preparation and attempt to commit an offence. Mere intention to commit an offence not followed by any action, cannot constitute an offence. Preparation consists in devising or arranging the means or measures necessary for the commission of the offence. An attempt consists in it, the intent to commit a crime, falling short of, its actual commission. It is that which if not prevented would have resulted in the full consummation of the act attempted. Indecent assaults are often magnified into attempts of rape. In that particular case, the evidence of the prosecutrix and the Doctor does not specifically refer to penetration which is a sine qua non for the offence of rape. Therefore, the conviction for the offence of rape was set aside and Section 354 IPC was invoked. 9. In the present case also it was argued that there was no penetration. It should be first understood that in order to constitute penetration, there must be evidence clear and cogent to prove that some part of the virile member of the accused was within the labia of the pudendum of the woman. Even a slight penetration in vulva without rupturing the hymen is sufficient to constitute the offence of rape. So, there must be vulva penetration, with or without violence and that may be considered as equivalent to vaginal penetration. 10. In this context, it is to be construed that labia majora is the first to be encountered by the male organ. Thus it was observed in the above case law that to constitute an offence of rape, it is not necessary that there should be complete penetration of the penis with emission and rupture of hymen the depth of penetration is immaterial partial penetration within the labia majora of the vulva or pudendum with or without emission of semen, is sufficient to constitute an offence of rape, vulva is the outer portion of the genital vagina is next housed interior and hymen is still further interior housed and at last the uterus. Vulva may have a small opening, but whether the penis, even to a smaller extent had entered the area of vulva is the question before us. If it is yes, then there is rape and if it is otherwise, there is no rape. 11. Vulva may have a small opening, but whether the penis, even to a smaller extent had entered the area of vulva is the question before us. If it is yes, then there is rape and if it is otherwise, there is no rape. 11. Now, we will see whether this kind of penetration is available in this particular case. As per Ex.P-7, the accident register of the victim, excepting abrasion over the external genetalia, no other symptom of penetration is found. Even as per Ex.P-15, the report of the Forensic Science Department, the inner wear of the male and female were found to contain only blood and no semens. The bleeding may be due to the external abrasion found on the genetalia of the female organ and also the tearing of the fraenum of the penis as found in Ex.P-8, the accident register copy of the accused. Dr.K.Gomathy (P.W.7), did not say anything about the penetration into vulva, if not vaginal area. The tearing of the franeum of the penis also did not indicate penetration nor was there any symptom of penetration found in the vulva. In the absence of penetration at least into the vulva, even to a lesser degree, no offence of rape could be made out. 12. An attempt was made to give a wider meaning of Section 375 IPC, so as to include such kind of inhuman onslaught upon the victim girl of the minor age into the purview of Section 375 IPC by a process of judicial interpretation, by one Sakshi through a public interest litigation petition, which case was reported in Sakshi Vs. Union of India and others ( 2004 (5) Supreme 68 ), wherein it was held that an acceptance to the contention of the writ petitioner will lead to a serious confusion in the minds of the 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. Even the Law Commission, in its response, did not accept the said request, in view of Section 273 Cr.P.C. as in its opinion the principle of the said Section which is founded upon natural justice, cannot be done away in trials and inquiries concerning sexual offences. Even the Law Commission, in its response, did not accept the said request, in view of Section 273 Cr.P.C. as in its opinion the principle of the said Section which is founded upon natural justice, cannot be done away in trials and inquiries concerning sexual offences. In that way, permitting use of a videotype interview of the child's statement by the Judge and other such possibilities were found not congenial. Ultimately, the writ petition was disposed of with the hope and trust that the Parliament will give serious attention to the points highlighted by the petitioner and make appropriate legislation with all promptness, which it deserves. 13. Thus, we have no other way except to hold that penetration, which is a sine qua non for rape is not available in this case and the act of the accused, will only amount to offence under Section 354 IPC. Accordingly, the conviction and sentence imposed under Section 376 IPC is set aside and the conviction is modified to one under Section 354 IPC and the accused is accordingly sentenced to undergo two years rigorous imprisonment. 14. Accordingly, the appeal stands partly allowed.