Crl.A. 28/2010 BEFORE THE HON’BLE MR JUSTICE I.A. ANSARI This is an appeal against the judgment and order, dated 11.12.2009, pass ed, in Sessions Case No.193(K)/2007, by the learned Additional Sessions Judge (F TC) No.2, Kamrup, Guwahati, convicting the accused-appellant under Section 376(2 )(f) IPC and sentencing him to suffer rigorous imprisonment for ten years and pa y a fine of Rs.2000/- and, in default of payment of fine, rigorous imprisonment for a further period of two months. 2. The case of the prosecution may, in brief, be described thus : (i) The victim MK, who is aged about 8 years, is a neighbour of the accused-appellan t, their houses being situated at a distance of about 100 meters from each other . On 26.11.2003, at about 1.00 P.M., the accused, on the false pretext of giving banana, called MK, the alleged victim girl, to his house and had sexual interco urse with her. She reported the matter to her parents and, then, MA, father of t he alleged victim, warned the accused not to indulge in such activities in futur e, but once again, on 30.08.2004, the accused had indulged in sexual intercourse with MK, whereupon MK’s father MA convened a sitting of the elders of his villa ge; but as his co-villagers could do nothing, he filed a First Information Repo rt, on 09.08.2004, with Boko Police Station and a case was accordingly registere d under Section 376 IPC against the present accused-appellant. (ii) During the course of investigation, MK was medically examined and, on co mpletion of investigation, charge-sheet was submitted, under Section 376 IPC, ag ainst the accused. (iii) At his trial, the accused pleaded not guilty to the charge framed agains t him under Section 376 IPC. (iv) In support of their case, prosecution examined 8 witnesses. The accused was, then, examined under Section 313 Cr.P.C. and, in his examination aforementi oned, the accused denied that he had committed the offence alleged to have been committed by him, the case of the defence being that of total denial and the acc used having been falsely implicated due to land dispute, which he has with the i nformant. The defence too adduced evidence by examining two witnesses. (v) Having found the accused-appellant guilty of the offence under Section 3 76(2)(f) IPC, the learned trial Court convicted him accordingly and passed sente nce against him as mentioned above. Aggrieved by his conviction and the sentence passed against him, the accused has preferred this appeal. 3. I have heard Mr. K. K. Mahanta, learned Senior Counsel, appearing on beh alf of the accused-appellant, and Mrs. A. Begum, learned Additional Public Prose cutor, Assam. 4. While considering the present appeal, it needs to be noted that it has b een strenuously argued, on behalf of the accused-appellant, that PW 3, who is al leged to be the victim of rape, did not complain, at any stage, that she had suf fered any injury or pain and even the medical evidence on record does not indica te that she (PW 3) had received any injury on her body including her vagina. In such circumstances, according to Mr. Mahanta, the offence of rape cannot be bel ieved to have been committed on a 8 (eight) year old girl, because any sexual i ntercourse with her would have caused injury to her vaginal area. 5. Controverting the above submissions made on behalf of the accused-appell ant, Mrs. A. Begum, learned Additional Public Prosecutor, has submitted that it is not necessary that in every case of sexual intercourse, penetration into vagi na would cause injury. 6. Before proceeding further, it needs to be borne in mind that this Court cannot start with the presumption that penetration by a man with a child, whethe r the child offers or does not offer resistance, would invariably and without op tion, cause injury on the vaginal area. In fact, the case at hand is one, where the child (PW 3) does not even complain that she had felt pain or cried out. Her evidence, being pivotal in nature around which revolves the entire case of the prosecution, needs to be carefully looked into. 7. The evidence of MK (PW3) is that about three years ago, while she was pl aying on the road with other children, namely, Moushumi and Momi, the accused ca lled her to his house, she caught hold of the legs of the bed, which the accused used. The accused lifted her and positioned her on his bed and the accused, the n, opened her pant and entered his sexual organ into her vagina. After two days of the said incident, the accused, again, called her to his house on the pretext of giving chocolate and did the same act, whereupon she reported both the incid ents to her parents. Her father lodged a case with the police, police interrogat ed her and took her to Guwahati for medical examination. 8. In her cross-examination, PW3 clarified that at the relevant point of ti me, she was playing with her sister, Mouishumi, and another girl named Momi and at the time of occurrence, she was a student of Class-III. In her cross-examinat ion, she has, however, clarified that she does not remember the date of the seco nd occurrence, but it was the day of Idd and they had invited people on the occa sion of Idd. PW 3 has deposed that she does not remember after how many days, p olice interrogated her. I may pause here to point out that though PW3 has depose d that the second sexual intercourse, which the accused-appellant had with her, after two days, the fact of the matter remains that the FIR as well as the uncon troverted evidence of MA, father of MK, shows that the date of the Idd was 26.11 .2003. According to, however, the evidence of MA, father of MK, and the FIR lodg ed by him shows that the first occurrence took place on 26.11.2003 before the da te of Idd and the second occurrence took place on 30.08.2004. Hence, PW3 being a child can have possibly failed to correctly recall the dates and it is not some thing, which would make the Court reject her evidence lock, stock and barrel as unbelievable and unreliable. 9. What is, however, important to note is that PW 3 has deposed that she di d not even cry at the time of occurrence, nor she called anyone and that she was not afraid of what the accused had done. She has, however, denied that she has made a false complain to her parents. 10. What becomes clear from the cross-examination of PW 3 is that she did no t cry, she did not call anybody and she was not afraid of what the accused had d one. This shows that PW 3 was, though a minor, did not offer any resistance. How ever, as she was a minor, the accused would still remain guilty of commission of offence of rape if he had sexual intercourse with her inasmuch as Section 375 s tates that a man is said to commit rape, who has sexual intercourse with a woman , amongst others, with or without her consent, when she is under 16 years of age . The Explanation to section 375 clearly bring out that penetration is sufficien t to constitute a sexual intercourse necessary to constitute the offence of rape . 11. In the case at hand, it is the evidence of PW 3 that the accused positio ned her on his bed and put his sexual organ into her vagina, and on the second o ccasion too, he committed the same act. Is this evidence of PW 3 safe to rely up on? 12. While considering the above aspect of the case, it may be pointed out th at, according to Mr. Mahanta, learned Senior counsel, appearing on behalf of the accused-appellant, the evidence of the doctor (PW 7) shows that there was no si gn of sexual intercourse on the person of PW 3. 13. It is important to note that the defence declined to cross-examine the d octor (PW 7), who had, admittedly, examined MK (PW 3) on 01.07.2008. His evidenc e is as under: (i) Evidence of recent sexual intercourse not detected on her person. Howeve r, labial separations (genital) suggest attempted sexual intercourse. (ii) Her age is about 8(eight) years and below 10(ten) years. (iii) She was not pregnant at the time of examination. Genital Examination : Genital organs - Developed. Vulva - Healthy, slightly separated posteriorly on lithotomic position. Hymen - Intact, Hymeneal orifice admits tip of little finger. Vagina - Healthy. No injury detected. Vaginal smear was taken and examination did not show presence of sperm on micros copic examination. No abnormality detected on her mental condition. Intelligence and memory found average. 14. In the backdrop of what has been discussed above, when we scrutinize the evidence of doctor (PW 7), it clearly emerges that, according to him, labial se paration was suggestive of attempted sexual intercourse. It is no doubt true tha t, according to PW 7, the alleged victim’s vulva was healthy, though slightly se parated posteriorly on lithotomic position. The fact remains that in every case of penetration, injury is not necessary, particularly, when a person, who is sub jected to sexual intercourse, does not offer any physical resistance. The presen t one is a case, wherein no resistance was, admittedly, offered by PW 3. 15. While considering the present appeal, what also needs to be noted is tha t when a woman or a child offers resistance, the chances of injury increases. Wh en, therefore, a woman willingly has sexual intercourse with a man or unwillingl y has sexual intercourse with a man, because of the fear, which may have been pu t to, there may not be injury caused to the vaginal area of her body. This is an aspect, which is extremely important to be borne in mind, in the present case, inasmuch as the child in the present case (i.e., PW 3) gave no indication that s he resisted or struggled to free herself. In fact, her description of the occurr ence shows that she had no clear idea as to what was being done to her. She has also clarified in her cross-examination that she did not even cry at the time of occurrence or called anyone. What is startling to note is that she was not even afraid of what the accused-appellant was doing. These pieces of evidence, which have been elicited by the defence, go to show the innocence of the child. 16. In the circumstances, as indicated above, if the evidence of the child i s believed, the accused-appellant can be safely held to have committed the offen ce of rape. What is, however, important to note is that, according to the medica l evidence on record, labial separation suggests attempted sexual intercourse. W hat, now, needs to be borne in mind is that the medical evidence clearly shows l abial separation with the hymen intact. 17. It is contended, on behalf of the appellant, by Mr. Mahanta that hymen w ould have stood torn with the penetration into the vagina of the victim. There c an be no doubt that without penetration, there cannot be an offence of rape. The medical evidence shows that there was labial separation, which is indicative of penetration. The penetration need not be full for constituting the offence of r ape, the fact that there was no complete penetration is not really material so l ong as the evidence given by PW 3 and which has remained wholly unshaken in her cross-examination, is that the accused did cause penetration howsoever little it may be in the orifice of the child. 18. I do not find that anything could be specifically brought out from the c ross-examination of PW 3 to show that what she had deposed was untrue or false o r that she was tutored. It was not even suggested to her (PW3) or her father tha t PW3 had been tutored to give evidence in the manner, which she has done. 19. There is no doubt that while appreciating the evidence of a child witne ss, the Court has to be careful and ascertain with care and circumspection if sh e has been tutored. In the present case, nothing surfaces from the evidence on r ecord to show that the child (PW 3) was tutored. Far from this, the evidence giv en by her father (PW 1) not only corroborated but strengthened her evidence inas much as her father’s evidence is that on the day of the festival of Idd, i.e. on 26.11.2003, the accused took his daughter (PW 3), aged about 8 (eight) years, t o his house and had sexual intercourse with her and while his daughter revealed the incident to him (PW1), he warned the accused. However, according to the evid ence of PW 1, the accused, again, on 30.8.2004, took PW 3 to his house on the pr etext of giving chocolate, took her to bed and indulged in sexual intercourse an d when he came to know about the said incident from his daughter, he went to th e house of the accused and asked him about the incident and though the accused d enied the same, he, sometime thereafter, came along with his mother to the house of PW 1, confessed his guilt and asked him (PW 1) not to file any case, but he (PW 1) informed some of the villagers about the incident and when the public ask ed him to file a case, he filed the case. 20. What is, now, of immense importance to note is that the evidence given b y PW 1, that though the accused had, at first, denied the occurrence, he came al ong with his mother (PW1) and confessed his guilt and asked PW 1 not to file any case, has not been denied or disputed by the defence in the cross-examination. Thus, the evidence, given by PW 1, to the effect that the accused did confess hi s guilt and requested PW 1 not to file a case is an admitted fact. 21. Since it is the specific evidence of PW 3 that she reported the incident to her parents, the evidence of PW 1 cannot be regarded as hearsay and this pie ce of evidence if considered in the light of the fact that the accused had confe ssed his guilt and asked PW1 not to file a case, there remains no room for doubt that the accused did have sexual intercourse, though may be partially, with PW 3. It has been submitted, with some justification, by Mr. Mahanta that once the accused had denied, there was no reason for him to feel remorse and confess his guilt. It needs to be noted, in this regard, that according to the evidence of PW 1, that the accused made the confession of his guilt for the purpose of ensur ing that no case is filed against him. There is nothing in the evidence on recor d to show that PW 1 or anyone, on his behalf, had induced the accused to make su ch a confession. The evidence of PW 1, at least, goes to prove that the accused admitted the fact that he did have sexual intercourse with PW 3. Though PW 1 has also been put to cross-examination, nothing was pointed out, on behalf of the a ppellant, to show that his evidence cannot be believed in, or relied upon. I see , therefore, no reason to discard or reject the evidence of PW 1. 22. Coming to the evidence of PW 2, I notice that, according to his evidence , the accused went to the house of PW 2 and told him that he had committed rape on the daughter of PW 1 and he has, thus, committed a wrong but he urged on PW 2 to request PW 1 not to lodge any case and the matter be solved by way of compro mise, whereupon PW 2 called PW 1, but no compromise could be reached. By way of cross-examination of PW 2 also, nothing was brought on record to show that he wa s not to be believed or could not have been believed. Thus, even the evidence o f PW2 shows that the accused did make extra-judicial confession to PW2 that he h ad sexual intercourse with the daughter of PW1. To this extent, the evidence of PW2 has remained unshaken. In fact, he has been left out without being effective ly cross-examined. The evidence, thus, of PW2 cannot be ignored and even his evi dence is sufficient to conclude that the accused himself confessed to have had s exual intercourse with his daughter. 23. In tune with the evidence of PW 2, PW 4 has also deposed that the accuse d met him with a request to talk to PW 1 not to lodge any case, but he (PW 4) di d not talk to PW 1. From the evidence of PW 4, what, at least, clearly comes out is that the accused did go to PW 4 too with the request that PW 1 be requested not to lodge any case. This is, thus, a circumstance, which goes against the acc used. 24. As far as PW 5 is concerned, his evidence is that on hearing the occurre nce of commission of rape on PW 1’s daughter by the accused-appellant, he went t o the house of PW 1 to discuss the matter with him and asked him to leave the ma tter and not to lodge a case, but PW 1 did not listen to him. From the evidence of PW2, PW4 and PW5, what becomes clear is that though the FIR was lodged, in th e present case, on 09.08.2004, the fact of the matter remains that the claim of PW1 that his daughter had been subjected to rape by the accused-appellant was kn own to his villagers and it is not a case, wherein a belated FIR, without any fa ctual disclosure, has been made. 25. As far as PW 6 is concerned, his evidence is that on the day of the occu rrence, he was present at his house and at that time, he saw the accused begging apology by falling at the feet of PW 1 and that the complaint raised against th e accused was that he had committed rape on PW 1’s daughter. In his cross-examin ation, PW 6 has clarified that except noticing the incident of seeking apology b y touching the feet of PW1 by the accused, he had not seen anything else. This p iece of evidence, which has remained unshaken, gives credence to the evidence of PW 1 that the accused did come to him, confessed his guilt and requested him no t to lodge the case. 26. Though the defence has also adduced evidence by examining two witnesses, what needs to be noted is that, according to DW 1, he knows both, the accused a nd also PW 1, and he is a relative of both of them. DW 1 clearly stated that he does not know anything about the incident, but he admits that PW1 had called a v illage mel (i.e., sitting of the villagers) accusing Rustom (i.e. the accused-ap pellant) of commission of rape on his (PW 1’s) daughter. DW 1 has, however, clai med that PW 1 could not give any evidence before the public that his daughter ha s been subjected to rape. What is, however, important to note is that DW 1 is no t a co-villager of the accused-appellant and/or PW 1. He, therefore, claims to h ave gone to the house of PW 1 on the day of the occurrence to buy cow and had st ayed at the house of the accused-appellant. This shows the close relation, whic h DW 1 enjoyed with the accused-appellant. When asked in the cross-examination a s to how he happened to meet the accused, at the house of the accused, on 30.8.2 004, when it was a day of Idd, DW1 replied by saying that he went to his father -in-law’s house to celebrate Idd and, then, went to buy a cow at Batipara. It is very unlikely that on the day of Idd, DW 1, instead of celebrating Idd, at his house, would come to his father-in-law’s house and even if one believes that h e went to his father-in-law’s house to celebrate Idd, it is, again, difficult to believe that on the same day, he went to buy a cow. This apart, according to DW 1, he had stayed in the house of the accused on the night of 30.8.2004, whereas the clear evidence of PW 1, which has not been disputed by the defence, is that the occurrence had taken place on 30.8.2004, which was the day of Idd. 27. Coming to the evidence of DW 2, it needs to be noted that, according to this witness, there is a land dispute between the appellant and PW 1 regarding b oundary of the land and that PW 1 used to cut the southern side of the land of t he appellant and there used to be quarrel every year between them. No such evide nce has come from other witnesses. It has, therefore, come, for the first time, from the evidence of DW 2 that there used to be quarrel twice a year between the appellant and PW 1. DW 2 also agrees that he heard about the incident on the da y of Idd that there was a mel (i.e. a meeting of the village people), there was no foundation laid for the evidence given by DW 2 that he used to quarrel twice a year with regard to the boundary of the land. 28. Reverting back to Mr. Mahanta’s contention that penetration, it may be n oted, is sine qua non for the offence of rape. There must be convincing evidence on record that some part of the virile member of the accused was within the lab ia of the pudendum of the female person, no matter how little such part was with in the labia of the pudendum. What is, however, of utmost importance to note is that rupture of hymen is not at all necessary for the purpose of constituting th e offence of rape inasmuch as even slightest penetration, in the vulva, is suffi cient to constitute the offence of rape. Vulva penetration, with or without viol ence, is as much rape as vaginal penetration. The statute demands evidence of pe netration howsoever little it may be and this may occur even with the hymen rema ining intact. One may, in this regard, refer to the case of Aman Kumar Vs. State of Haryana, reported in (2004) 4 SCC 379, wherein the relevant observations app earing read as under: 7. Penetration is the sine qua non for an offence of rape. In order to constitu te 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, no matter how little (see Joseph Lines, IC&K 893). & & & & & & & & &. The r of hymen is by no means necessary to constitute the offence of rape. Even a sli ght 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 violen ce is as much rape as vaginal penetration. The statute merely requires evidence of penetration, and this may occur with the hymen remaining intact. The actus re us is complete