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2006 DIGILAW 703 (GAU)

Pekar Gamlin v. State of Arunachal Pradesh

2006-08-01

ANIMA HAZARIKA, I.A.ANSARI

body2006
JUDGMENT A. Hazarika, J. 1. This appeal has been preferred under Regulation 27 of the Assam Frontier (Administration of Justice) Regulation, 1945 (for short the Regulation) read with Section 482 of the Code of Criminal Procedure, against the judgment and order dated 24.6.2003, passed by the court of learned Additional Sessions Judge (FTC), Basar, Arunachal Pradesh, in BSR/SESS No. 57/2002, convicting the accused-Appellant under Section 376(2) IPC and sentencing him to suffer rigorous imprisonment for 12 years and a fine of Rs. 5000/- (Rupees five thousand) only, in default of payment, further R.I. for 6 (six) months to run concurrently with the substantive sentence. The learned court below also imposed a fine of Rs. 1000/- for conviction under Section 448 IPC and in default to undergo R.I. for 2 (two) months. 2. Simultaneously, a reference has also been made by the learned Additional Sessions Judge, (FTC), Basar, Arunachal Pradesh for confirming the sentence of 12 years R.I. imposed on the accused under Section 376(2) IPC. This reference has been made under Section 30(1) of the Assam Frontier (Administration of Justice) Regulation 1945, which is registered as Criminal (Hills) Reference No. 1/03. 3. Both the Criminal Appeal No. 306/2003 and Criminal (Hills) Reference No. 1/2003 are taken up together, as they arise out of the same judgment and order dated 24.6.2003 passed in BSR/SESS No. 57/2002. 4. The prosecution case was initiated on a written complaint lodged by one Shri Kemmar Ango, on 18.9.1992, before the Officer-in-Charge, Along Police Station, alleging that on the preceding day i.e. on 17.9.1992, at about 7.30 P.M., one Shri Pekar Gamlin (i.e. the Appellant herein) entered into the house of the informant, at Labour Colony near Air Field, Along, in the absence of the informant and committed rape on his 7 (seven) years old daughter, as a result of which the victim sustained severe injuries on her private parts and had to be hospitalized. 5. On receipt of the said complaint, the same was treated as FIR and police registered Along P.S. Case No. 56/92 under Section 448 / 376 IPC. After completion of the investigation, the police submitted the charge sheet, on 26.2.93, under Section 448 / 376 IPC. Since the case was exclusively triable by the Court of Sessions, the learned Judicial Magistrate, First Class, Along, by his order, dated 19.7.1994, committed the case to the Court of Sessions. After completion of the investigation, the police submitted the charge sheet, on 26.2.93, under Section 448 / 376 IPC. Since the case was exclusively triable by the Court of Sessions, the learned Judicial Magistrate, First Class, Along, by his order, dated 19.7.1994, committed the case to the Court of Sessions. Subsequently, the case was transferred to the Court of the learned Addl. Sessions Judge, Fast Track Court, Basar, Arunachal Pradesh, for trial and disposal. 6. The learned Trial Court, upon hearing the parties, framed charges under Sections 448 and 376 IPC. The charges were read over and explained to the accused to which he pleaded not guilty and claimed to be tried. 7. During the course of trial, prosecution examined as many as six witnesses including the Medical Officer and the Investigating Officer, while the defence adduced no evidence. 8. P.W. 1 (Shri Kemmar Ango) is the informant and the father of the victim girl. He has deposed that on 17.9.1992, at about 5 P.M., he went to attend a party, at Along, leaving his victim daughter, who was aged about seven years, alone at home. The wife of P.W. 1 was in Eyi village at that time. On his return to his home, at about 8/8.30 P.M., P.W. 1 found that his daughter was lying on bed and weeping. She reported to P.W. 1 that his friend had raped her, and that was how she got injured and that she knows the culprit. P.W. 1, thereafter, took her to hospital for treatment and, on the same day, he went to the house of the accused-Appellant along with one Tapu Takana, who happened to be a neighbour of P.W. 1 and a co-employee, and, in presence of Tapu Takana, called the accused person to come to his house on the next day morning. On the next day, in the morning, P.W. 1, again, went to the house of the accused-Appellant and brought him to the house of P.W. 1. On being asked, his victim daughter told that the accused-Appellant was the person, who had committed rape on her. On being so identified, the accused-Appellant touched the feet of P.W. 1 and begged to be pardoned. Then P.W. 1 lodged an Ejahar with the Police, which is marked as P. Ex. 1. On being asked, his victim daughter told that the accused-Appellant was the person, who had committed rape on her. On being so identified, the accused-Appellant touched the feet of P.W. 1 and begged to be pardoned. Then P.W. 1 lodged an Ejahar with the Police, which is marked as P. Ex. 1. In his cross-examination, P.W. 1 further stated that one Rana had told him that he had seen the accused coming out of the house of P.W. 1. 9. P.W. 2 is the victim girl. During her examination, she has deposed that on the fateful evening, she was alone at home and she was reading. At that time, the lights went off and, hence, she lighted a lamp and went to sleep, but before she could fall asleep, the accused entered into her room, gagged her mouth and threatened by asking her not to cry or shout, whereupon the accused put off the lamp and took off her panty. Thereafter, he took off his pant and committed rape on her. P.W. 2 has further deposed that she felt pain and blood oozed out, because of which she kept lying on her bed. After some time, a friend of her father, who was known as Rana uncle, entered her room and, calling her "Api", asked about her father. She told him that her father had gone to a party. When her father returned home, she narrated the entire incident to him and her father (P.W. 1) took her to the hospital for treatment. During her cross-examination, P.W. 2 has stated that her date of birth is some time in the month of April, 1985. 10. P.W. 3, who was posted as EAC (J) at Along, is the officer, who recorded the confessional statement (P. Ext. 2) of the accused-Appellant on 18.9.92. In his confessional statement, the accused-Appellant confessed his guilt and said that he was ashamed of his deed. 11. P.W. 4 is the doctor, who was posted, at the relevant time, as Medical Officer at District Hospital, Along. P.W. 4 has deposed that he had examined P.W. 2, i.e. the victim girl. 2) of the accused-Appellant on 18.9.92. In his confessional statement, the accused-Appellant confessed his guilt and said that he was ashamed of his deed. 11. P.W. 4 is the doctor, who was posted, at the relevant time, as Medical Officer at District Hospital, Along. P.W. 4 has deposed that he had examined P.W. 2, i.e. the victim girl. P.W. 4 has also deposed that at the time of examination of the victim, she was aged about seven years and on local examination, he found dried blood stains on the right thigh and on both the labia major as of the victim girls Labia minor showed signs of inflammation and tenderness P.W. 4 further found that the hymen was intact, but it was inflamed all around and tender on palpitation. P.W. 4, however, found no bruise on the person of the victim. On close examination, he found signs of recent sexual act. P. Ext. 3 is the medical report and P. Ext. 3(a) is his signature. During his cross-examination, P.W. 4 stated that there was no actual penetration. 12. P.W. 5 (Sukh Bahadur Rana) is the friend of P.W. 1. He deposed that on the day of occurrence, when he visited the house of P.W. 1, it was completely dark inside the house. Then he lighted a match stick near the door of the kitchen and he saw the accused coming out of the house of P.W. 1. He asked the accused as to what he (i.e. the accused) was doing there, but the accused) did not give any reply. Upon entering into the house, P.W. 5 found P.W. 2 lying on her bed. When P.W. 2 was asked by P.W. 5 as to where her father was, P.W. 2 did not reply and when P.W. 5 came out of the house of P.W. 1, he saw the accused standing outside the house of P.W. 1. Thereafter, P.W. 5 returned to his house. While on his way back home, he, again, saw the accused coming behind him. On the same night, P.W. 1 informed P.W. 5 that somebody had raped his daughter. On being so informed, P.W. 5 told P.W. 1 about the incident of the meeting the accused at the house of P.W. 1 in the evening. 13. P.W. 6 Shri Kagum Nomuk is the Investigating Officer, who was serving as S.I. at Along Police Station on 18.9.92. On being so informed, P.W. 5 told P.W. 1 about the incident of the meeting the accused at the house of P.W. 1 in the evening. 13. P.W. 6 Shri Kagum Nomuk is the Investigating Officer, who was serving as S.I. at Along Police Station on 18.9.92. According to this witness's evidence, after receipt of the written complaint from P.W. 1, a case was registered being Along P.S. Case No. 56/92 under Section 448 / 376 IPC. After having registered the case, the O/C, Along P.S., endorsed him to investigate the case. Accordingly, P.W. 6 investigated the case. During the course of investigation, he visited the place of occurrence, examined the witnesses including the victim girl, sent the victim to the District Hospital, Along, for medical examination and arrested the accused. As the accused offered to confess his guilt, the accused sent to the court for recording his confessional statement. Thereafter, P.W. 6 collected the medical report and confessional statement and after completion of investigation, submitted the charge sheet under Section 448 / 376 IPC against the accused. 14. After the examination of the prosecution witnesses, the accused was examined under Section313 Code of Criminal Procedure, wherein he stated that when he was taken to the house of P.W. 1 on 18th morning, he told the girl that she might have mistaken his identity and that he begged P.W. 1 to pardon him, not because of the fact that he had committed the offence of rape on his daughter. The accused did not, however, offer any explanation as to why he had begged pardon. Regarding making of the confessional statement, the accused has staled that on being threatened by the officer-in-Charge, he had made the confession. 15. We have heard Mr. Boje and Mr. G. Singh, learned Counsel for the accused-Appellant. Also heard Mr. A. Phukan, learned Amicus Curiae. We have also heard Mrs. Aparajita Sharma, learned P.P., Arunachal Pradesh. 16. Mr. M. Boje, learned Counsel appearing for the accused-Appellant, has strenuously argued that the prosecution has miserably failed to prove the case inasmuch as there are material contradictions in the evidence of P.W. 1 and P.W. 5. Moreover, the statements of prosecution witness Nos. 1, 5 and 6 are all hearsay evidence and, hence, their evidence is inadmissible in law. Mr. M. Boje, learned Counsel appearing for the accused-Appellant, has strenuously argued that the prosecution has miserably failed to prove the case inasmuch as there are material contradictions in the evidence of P.W. 1 and P.W. 5. Moreover, the statements of prosecution witness Nos. 1, 5 and 6 are all hearsay evidence and, hence, their evidence is inadmissible in law. Further-more, P.W. 4 (the Doctor), who had examined the victim girl, unambiguously admitted, during his cross-examination, that there was no actual penetration. Therefore, the question of the accused having committed rape on P.W. 2, contends Mr. Boje, does not arise at all. Under such circumstances, the impugned order of conviction and sentence are not sustainable in law and the same are liable to be set aside; so submits the learned Counsel for the accused-Appellant. 17. The learned Amicus Curiae has vehemently argued that the accused cannot be held liable for commission of offence of rape and, drawing attention of the Court to the evidence of P.W. 1, P.W. 2 and P.W. 4, submitted that there are material contradictions in the evidence of P.W. 2, the prosecutrix, and the evidence of the doctor, P.W. 4, in particular, on the point of alleged rape, for, the doctor has opined, pointed out the learned Amicus Curiae, that there was no actual penetration and, therefore, the ingredients of Section 376 IPC is absent and the accused ought not to have been held to have committed the offence of rape, more so, when there is no rupture of the hymen of the victim girl. In support of his submission, the learned Amicus Curiae has relied upon a decision reported in (2004) 4 SCC 379 (Aman Kumar and Anr. v. State of Haryana) 18. Referring to the decision in Aman Kumar (Supra), the learned Amicus Curiae has submitted that in the absence of rupture of the hyman of virgina, the offence of rape is incomplete, more so, when there was no penetration, though the prosecution has established the factum of attempt to commit rape on prosecutrix. Therefore, the case, according to the learned Amicus Curiae, falls under Section354 IPC and the accused can be convicted under Section 354 IPC for a term, which may be extended up to two years or with fine or both. Therefore, the case, according to the learned Amicus Curiae, falls under Section354 IPC and the accused can be convicted under Section 354 IPC for a term, which may be extended up to two years or with fine or both. Moreover, in the face of the facts complained of, even if accepted, the sentence passed against the accused-Appellant is excessive and requires interference by this Court. 19. Having heard the learned Counsel for the parties including the learned Amicus Curiae, we notice that the evidence of the victim girl (P.W. 2), who was aged about seven years only at the time of occurrence, is very natural and she has narrated the entire incident before the Court without any hesitation. We also notice that the deposition of P.W. 2 was recorded on 21st day of November, 2002; but even after the passage of ten long years, there is no change in her testimony inasmuch as she has vividly described, at the trial, without any hesitation, the sexual assault on her by the accused-Appellant. The evidence of P.W. 2 has remained wholly unshaken in' material particulars. This apart, her evidence is simple in nature and the same, being coherent and consistent, inspires immense confidence. Also the evidence of P.W. 1, P.W. 2, P.W. 4 and P.W. 5 corroborate the material aspects of the evidence of P.W. 2. 20. The learned PP has also drawn our attention to the extra-judicial confession made by the accused-Appellant before P.W. 1. The learned P.P. also submits that it is, now, well settled that law does not require that the evidence of an extra judicial confession should, in all cases, be corroborated, more so, when the accused-Appellant, in his statement under Section 313 Code of Criminal Procedure, has himself stated that he begged pardon from P.W. 1, though the accused-Appellant did not say as to why he had begged pardon from P.W. 1. The learned P.P. further submitted that the accused-Appellant has confessed his guilt vide P. Ext. 2(C). We find considerable force in the submissions so made by the learned Public Prosecutor. 21. On the point of penetration, the learned P.P. has submitted that even partial penetration within the lebia major a or the vulva or pudenda with or without emission of semen or even an attempt of penetration, is quite sufficient to constitute an offence under Section 376 IPC. 21. On the point of penetration, the learned P.P. has submitted that even partial penetration within the lebia major a or the vulva or pudenda with or without emission of semen or even an attempt of penetration, is quite sufficient to constitute an offence under Section 376 IPC. In support of her submission, the learned PP has relied on the decision of the Apex Court reported in (1992) 3 SCC 204 (Madan Gopal Kakkacl v. Naval Dubey and Anr.) and another decision reported in 1997 CrLJ 786 (The State of Maharastra v. Savala Sagu Kakare and Anr.) 22. Relevant paragraphs of Madan Gopal Kakkad (Supra) are quoted hereunder: 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 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 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. 38. 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 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. 39. In Encyclopedia of Crime and Justice (Vol. 4) at page 1356. it is stated: ...Even slight penetration is sufficient and emission is necessary. 40. It is therefore quite possible to commit legally the offence of rape without producing any injury to the genitals or leaving any seminal stains. 39. In Encyclopedia of Crime and Justice (Vol. 4) at page 1356. it is stated: ...Even slight penetration is sufficient and emission is necessary. 40. In Halsbury's Statutes of England and Wales, (Fourth Edition) Volume 12. it is stated that even the slightest degree of penetration is sufficient to prove sexual intercourse within the meaning of Section 44 of the Sexual Offence Act, 1956. Vide (1) R.V. Hughes. (2) R.V. Lines and R.V. Nicholls. 42. 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 outrange to the person and feelings of the victim of the rape. Any sexual penetration, however slight, is sufficient to complete the crime. 43. The first Explanation to Section 375 of Indian Penal Code which defines "Rape" reads thus, Explanation - Penetration is sufficient to constitute the sexual intercourse necessary to the offence or rape. 44. In interpreting the above explanation whether complete penetration is necessary to constitute an offence of rape, various High Courts have taken a consistent 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 (1) Natha v. Emperor, (2) Abdul Majid v. Emperor, (3) Mst. Jantan v. Emperor, (4) Ghanashyam Misra v. State, (5) Das Bernard v. State. In re Anthony it has been held that while there must be penetration in 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 been held to be sufficient for a conviction of rape. 56. Accordingly, we, having regard to the seriousness and gravity of this repugnant crime of rape perpetrated on P.W. 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 realized shall be paid to the victim girl who is not a major. If the fine amount of Rs. 3000/- 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. 57. Before parting with the judgment, with deep concern, we may point out that though all sexual assault 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 resistance 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 civilized society should be mercilessly and inexorably punished in the servant term. 23. The decision cited and relied on by the learned P.P., Arunachal Pradesh, reported in 1997 Crl. L.J. 786, relates to commission of offence of rape, wherein the learned Trial Court acquired the accused on the basis of the medical report, which is reproduced below: On my examination (both chemical and radiological) I have observed the following facts. 1. There are no signs of recent forceful intercourse except the injuries on the back which are as follows; There are in all, four abrasions on back in lumber region measuring (1) 1" x 1" (2) 1" x 1/2" 3rd and 4th 1/2" x 1/2" scab formation present. Age of the injuries: within one week not more than 72 hours. Probable cause; Hard and rough surface. 2. There are no injuries on genital organs or breasts. 3. By chemical and radiological examination her age is between 14 (Fourteen) and 15 (Fifteen) years. 24. Against the acquittal of the accused persons, in Savala Sagu (Supra), the State of Maharastra went on appeal before the High Court. Probable cause; Hard and rough surface. 2. There are no injuries on genital organs or breasts. 3. By chemical and radiological examination her age is between 14 (Fourteen) and 15 (Fifteen) years. 24. Against the acquittal of the accused persons, in Savala Sagu (Supra), the State of Maharastra went on appeal before the High Court. The High Court, after going through the evidence of the prosecutrix and the surrounding circumstances, came to the conclusion that the evidence of the prosecutrix is reliable and set aside the order of acquittal by holding that the doctor had conducted the medical examination in most perfunctory manner, which prompted the learned trial Judge to reject the testimony of the prosecutrix on the ground that the medical report does not disclose any injury on the private parts. The High Court has held that the medical report does not demolish the credibility of the prosecutrix; hence, reversed the judgment. 25. The decision cited in Madan Gopal (Supra) by the learned P.P., Arunachal Pradesh, finds approval in Aman Kumar and Anr. v. State of Haryana (Supra), relied upon by the learned Amicus Curiae, wherein, the Apex Court has held that the prosecutrix, complaining of having been a victim of the offence of rape, is not an accomplice after the crime. Her testimony can be acted upon without corroboration in material particulars. The prosecutrix stands on a higher pedestal than an injured witness. However, if the court 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. In the present case, the evidence on record, more particularly, the evidence of prosecutrix and the medical evidence would go to show that her testimony can be acted upon without any corroboration and we, too, agree with the submissions made by the learned P.P., Arunachal Pradesh. 26. Relying upon the decision of Aman Kumar and Anr. (supra), the question of penetration for alleged commission of offence under Section 376 IPC has been raised by the counsel of the Appellant and the learned Amicus Curiae argued that since the doctor has opined that there was no penetration, the offence is not complete, and therefore, the Appellant cannot be convicted under Section 376 IPC; rather, the Appellant can be convicted under Section 354 IPC. 27. 27. The question raised has been answered by the Apex Court in Aman Kumar (Supra) itself, wherein the Apex Court has held that the depth of penetration is immaterial in an offence punishable under Section 376 IPC. Even a slight penetration in the vulva is sufficient to constitute the offence of rape and rupture of the hymen is not necessary. Vulva penetration, with or without violence, is as much rape as vaginal penetration. In the instant case, the evidence of the prosecutrix would show that some part of the virile member of the accused was within the labia of the pudendum of the prosecutrix, which sufficiently constitute penetration within the meaning of Section 375 IPC. Therefore, the decision cited by the learned Amicus Curiae in Aman Kumar (supra) do not support the case of the defence and this Court has no hesitation to hold that the prosecution has proved the commission of offence of rape by the accused Appellant. 28. The offence of rape is not merely an offence affecting the human body. While "Rape" is defined in Section 375 of IPC, Section 376 IPC prescribes punishment for rape. Sections 375 and 376 of IPC have undergone a significant change by the Criminal Laws (Amendment Act), 1983. Extra dimension has been added to the offence of rape by way of introducing several new Sections, such as, Sections376A, 376B, 376C and 376D. The introduction of sweeping changes by the said Amendment Act, 1983, reflects the legislative intent to curb, with an iron hand, the offence of rape, which affects the dignity of women. Rape is not only a crime against the person of a woman, but it is a crime against the entire society. It degrades and humiliates the victim and when the victim is a helpless innocent child or minor, it leaves behind a traumatic experience for the whole life. It is needless to mention here that in the instant case, the victim girl was aged about seven years only and she will have to bear the memory of such a traumatic experience for her entire life. 29. In the instant case, on a case scrutiny of the materials on record and arguments advanced by the counsel of the parties, we are of the firm opinion that the prosecution has been able to prove the guilt of the accused-Appellant beyond all reasonable doubt. 30. 29. In the instant case, on a case scrutiny of the materials on record and arguments advanced by the counsel of the parties, we are of the firm opinion that the prosecution has been able to prove the guilt of the accused-Appellant beyond all reasonable doubt. 30. Now the question that requires consideration, as urged by the learned Amicus Curiae, is as to whether the punishment of sentence of R.I. for twelve years requires any interference. The evidence on record would show that the offence had been committed on 17.9.92 and on 18.9.92, the very next day, the accused sought apology by touching the feet of P.W. 1 with a request to pardon him. The accused had, thereafter, made confessional statement, on 21.9.92, admitting the guilt, which would go to show that the accused was guilty of committing the crime. 31. However, considering the case in its entirely and keeping in mind the fact that while committing the offence of rape, the age of the accused was 29 years and by now the accused has attained the age of 43 years, and he has children and wife, we, while upholding the conviction of the accused-Appellant, modify the sentence to R.I. for 10 (Ten) years and a fine of Rs. 5000/- and, in default, further R.I. for six months. We also sentence the accused-Appellant to pay a fine of Rs. 1000/- for his conviction under Section 448 IPC and, in default, to undergo R.I. for 2 (Two) months. Both the sentences, so ordered, shall run concurrently. 32. In the result, the appeal is partly allowed. While the conviction of the accused-Appellant under Sections 448 and 376 IPC is maintained, his sentence is reduced and modified as directed hereinabove. 33. The reference as well as the appeal shall accordingly stand disposed of. 34. Send down the records. 35. Fee of Amicus Curiae is quantified at Rs. 3000/-.