CRIMINAL APPEAL N0.339 of 2005 HIGE COURT OF CHEATTISGARH AT BILAgPUR PQST 0N1? DECEMBER 2007 J / JUDGMENT Sd/4 iendra Mishra ug ‘ K \ ‘ Dhr Jde ‘ APPELLAM (in Jail} Gokul Kumar Uikey ?’ersus RESPONDEHT ‘ State ofCG This criminal appeal is directed against the judgment of convictinn and arder of sentenee dated 11th January 2005 passed in S.T.No.227f 04 whereby learned IV Additienal Sessions Judge, Bastar at Jagdalpur has convicted the appellant under Section 876(2)(g) and 84 1,’ 34 of the IPC and sentenced him to undergo RI for ten years and SI for one month respectively. Both the sentences have been directed to run concurrentlv. 2. Case of the prosecution as per First Information Report is that on 2 1. 1.2004 at about 5.0G p.111. when the prosecutrix was returning from the school with her friend Ku. Savita, appellant Gokul and Shravan caught them in the forest. Savita managed t0 dee from there, however, both of them took the prosecutrix towards forest Where firstly Gokul and thereafter Shravan raped her. While Gokul was. committing rape Shravan was holding her hands and legs and While Shravan was committing rape Gokul was holding her. When she tried to shout, she was threatened of life and her mouth was gagged. At that time Santuram reached and both of them iled from there. While she was going with Santuram, she met her father and Punau on Way. to Whom she narrated about the incident. Thereafter. Panchayat was convened in the village on the next day and First Information Report. of Ex.Pf 1 was lodged on 23.1.2004 at about 11.25 hours. \ ,./ HIGH COURT OF CHHATTISGARH AT BILASPUR CRIMINAL APPEAL 110.339 of 2005 f APPELLANT (1n Jail) i : Gokul Kumax Uikey, Sf 0 Ghasiamm Uikey, age 19 years, R/n. Nakapara Todasi PIS. Dhanura, Distt. Bagta: (CG) Vgrszis RE$FGEBEET : . 8tate of CG fhrough : RS. Dhanora, Distt. Bastar (Q9) Premnt: Mr. Pravjn Das, counsel for the appdlant. Mr. Sandip Yadav, Dy. Govt. Advocate for the State! respondent. J U D G M E N T (J7W‘l-136cember 2007) ' Dhirendra Mishra, J /"\ 917 3. The nrosecutrix was $6111: for msdical examination t0 Block Medical O c€xg Keshkal Wham Dr. Smt. Chandra Rac (PW—4) examined her and gave her report of EXP] 5. She was also sent. for ossiiication test to Maharani Hospital, Jagdalpul‘ Where Dr. Govind Singh (PWj 10) examined her and gave his report of EXP] 1 1. The annellant was also sent for medical examixlation and Dr. R.O.P. Pillai examined him and gave his report of EXP! 1 1'. The Wearing apparels i.e. underwear of the prosecutrix and underwear of both the accused persons and vaginal slides of the proaecutrix seized during .J investigation were sent for chemical examination to Forensic Science Laboratory, Raipur and report of F.S.L. is Ex.Pf23. 4. After completing investigation charge sheet was iiled against the appellant Ln the Court of Judicial Magistrate First Class, Kondagaon from where learned Additional Sessions Judge received the case on transfer for trial Whereas charge sheet against delinquent juvenile Shravan was nled before the Juvenile Justice Board. 5. During trial the yrosecution examined 11 Witnesses in all. Thereafter. statement of the accused was recorded under Section 318 of the Cr.P.C. in which he denied the circumstances. appearing against him in the prosecution case and pleaded innocence and false implication on account of enmity between village Patte and village Todasi. However, learned trial Court after hearing counsel for the respective parties, convicted and sentenced the accused; appellant as mentioned in paragraph 1 of this judgment. 6. Learned counsel for the appellant submitted that the trial Court on the basis of report of the radiologist has assessed age of the . prosecutrix 'between 12—16 years and further on the basis of statements of the prosecutrix (PW— 1), Ku. Savita [PW-2), Santuram (PW—3), Renuram (PW—5) and Punauram (PW~6) has held that the prosecutrix was raped by the appellant. It is further argued that. the prosecutrix has claimed that the appellant and co-accused Sliravan committed rape with her one by one, as a result of which she sustained abrasions on her hack, hands and waist and also sustained internal injuries over her vagina, blood started oozing, the intercourse was painliil: her skirt, blouse, underwear were drenched in blood and that when she was examined by the lady doctor bleeding i ‘ Mn 2% ‘)4 was thcrf: in the vagma etc. but hm” version is contradicted by the medical evidence as Dr. Smt. Chandra Rao (PW—4] who examined her on 25.1.2004'i11 hex report of Ex.P]6 clearly mentioned that on internal examination she fcund that labia majora and minora were healthy, there was no sign of rape or recent intercourse. The version of the prosecutrix is further contradicted by the report of F.S.L. in which it has been mentioned that underwear of the prosecutrix, her vaginal slides and underwear of the appellant did not contain human sperm. PW—2 Ku. Savita has also claimed that after the incident she saw that skirt and blouse of the prosecutrix were drenched in blood. The other two Witnesses namely Santuram (PW—3) and Ranuram (PW— 5} have not seen the incident and they have only stated that the appellant was outrag‘ng the modesty of the prosecutrix. She has made material improvements in her statement before the Court from her diary statement of EXDI l and FIR. p. i. Reliance is placed on the judgment in the matter of Ghosa Ban Singh and etc.’Vs. State of Bihar reported in 2004 Cri.L.J. 569. 8. On the other hand, learned counsel for the Statejrespondent supported impugned judgment of the trial Court and placed reliance on the judgments in the matters of Aman Kumar and another Vs. State of Harvana, 2004 AIR SCW 82’? and Medan Gopal Kakkad Vs. Naval Dubey and another, 1992 JLJ 377. 9. I have heard learned counsel for both the parties and have perused the material available on record as' also the impugned judgment. Conviction of the appellant is based on the statements of the prosecutrix {PW— 1), Ku. Savita (PW—2) and Santuram (PW—S). It is also based on the statements of her father Renuram (PW—5) and Punauram (PW—6). 10. 11. In substance, the evidence of the prosecutrix is that she was the student of Class—VII on the date of incident. While she was returning irom the school at about 5.00 p.m. on foot with her friend Savita, all of a sudden the appellant and co—acoused Shravan appeared and caught them on way. Gokul caught the prosecutrix whereas Savita was caught by Shravan. However, Savita mana ed to back and she was 16ft only coming there. doctor and she was feeling pain. 01 Ram {PW—4) in her report has spe notitxa any external or intarnal britweau village Tadasi and Padde. him, Gokul left the prasacutrix aim 1 H16 contrary, Dr. Smt. Chandra cmcaHy stated that $116 did not He was going on foot. On seeing {ted from there. AccuSed Shravan Thamafter, he and fathér of the prosecutrix narrated about the incident to father of Gokul in his house. Some contradictions in his diary statement of Ex.Dj omisssions and 3 regarding having witnessed Gokul doing Wrong things with the prosecutrix etc. have been 9ointed out. 14. PW—S Renuram — father of the prosecutrix and PW—6 Punauram are Witnesses of the fact that the prosecuUix narrated about the incident t0 them immediately after the incident and thereafter Panchayat was convened in the village in relatio incident. n to the same 15. in the matter of Ghosa Ban Sinah (supra) the accused persons four in numher forcibly took the prosecutrix: a 17 year-old-girl, towards the school after intimidating her and out of fear she went with them. Thereafter, all of them raped her one after the other. In thekmeantime, their three friends also came there and th ravished her. corroboration to her testimony, absence of any injury on vulva and vagina and that medical evidence was not in conformity with the manner of ravishment as deposed by the informant, acquitted the appellants by extending them benefit of doubt with an observation that the defence version of false implication cannot be ruled out. l6. In the matter of Amcm Kumar (supra) two accused persons caught the prosecutrix near held and forcibly raped her after shutting her mouth with her chunm'. On return she narrated about the incident to her mother, who described the incident to a member of the Panchayat and thereafter, report was lodged after two days. In ey also The High Court considering the total absence of this caser it has been held that to constitute the oh‘ence of rape, it is not necessary that there should be complete penetration of the penis with emission of semen and rupture of hymen. Partial penetration Within the labia majora of the vulva or pudendum with or without emission of semen is sufficient to constitute the onence of rape as defined in the law. Paragraph 7 of the above judgment is being reproduced hereunder: rape. “$7. Penetration In order to is constizma the sine penetration, qua non for there an offence must be of "‘ evidence clear and cogent to prove that some part of the ‘ \ l/a "‘ yin'ie member of éhe accused waS within fhe Iabia of the pudendum ofthe woman, m) miter haw lime (See Joseph Lines 1C (3’5 K 893}. 1t is weibkmwn in the madmal warld mat t " examimtiorz of smegma: Ica‘es all impmtance after twenty faur hours of the yerformance of the sexual? intercourse. {See Dr. SP. Kohli, Cit/i! Surgeon, Femzepur Vs. High Caw‘t of Punjab and Haryana thr. Registrar, {19?9) 1 SCC 212]. In rape cases, ifthe glcmd ofthe maie organ is cavemcz by smeg:m, it negatives the posm'brlity of recent complete penetration. 1f the accused is not circumcised the existence of smegma mwld the comm; gland is pmof against penetration, since it is rubbed off during the aci. ’Hle smegma accumuiates if no baih is taker» within twenéy four hours. The rupture of hymen is by no means necessary to constitute the ojjence of rape. Evan a slight penetration in the vulva is sufficient to constitute the offence of rape and rupture ofthe hymen i$ not necessary. Vulva penetration with or without vioience is as much rape as vaginsi penetratian. The statute merely requires evidence Qfpenetmtt’on, and this may occur with the hymen remaining intact. The actus mus is comptete with penetration. It is well settled that the prosecutrix cannot be considered as accomplice and, therefore, her testimony cannot be equated with that of an aceomplice in an offence or rape. In examination ofgenital organs, state of hymen offers the mosi reliabie clue. While examining £he hymen, certain anatomicai charactenistics should be rema‘mbeied before assigoina are signiacame is the findings. i‘he shape and the texture of the hymen is variable. This vaiiaiion, sometimes pemlits penetration withoui injury. ’Ihis is possibie hecause of the peculiar shape of ihe mirice or increased elasticity. On the other hand, sometimes the hymen may be more arm, less elasiic and aets stretched and laceraied eariier. ’Ihus a relatively iess forceful peneiraiion may no: give rise to injuries ordinarily possible with a foroeful attempz. ’Ihe anatomical feaiure wiih regard to hymen which merits consideration is its anatomical situafion. Nexi i0 hymen is positive importance but more ihan that in frequency are the injuries on labia majora. These, w labia ‘mjora are the jirst to be encowitered by the male organ. Yhey are subjected to blunt forcejid blows, depending on the vigour and force used by the accused and counteracted by the victim. Further, examination ofthe females jor marks of injuries elsewhere on the body forms a verg important piece of evidence. To constitute the ojfeace of rape, it is not necessary that there shouid be complete penetration of the penis with emission ofsemen and rupture of humen Partial penetration withirzythe Zabia majora of the viilva or pudendum with or without emisa’on ofsemeri is sufficient to constitute the ohence of rape as deJ‘ined in the law, The depth of penetration is immaterial in an offence punishable under Section 376, IPC. 17. In the matter of Madam Gopal Kakkad (supra) the prosecutrix was the student of third standaxd, she used to go frequentlv to the r. d gz house of the accus€d to nlav with hex friend Richa. On the dam of incident the accused bolted the d0or of ihe mom &om inside Where he and the pmsecutrix were alone. He completely stripped OE himself, removed the undergarments of the prosecutrix and thereafter, elightly inserted his penis intti her vulva. The matter was narrated by the prosecutrix to her mother and ultimately, the matter was reported to the police after 2—3 days. 011 medical examination abrasion and reddishness on labia_majora and minora respectively, were found and the doctor opined that from the above nuding it seems that an attempt to rape has been made. The Hon’ble Supreme Court referring to Modi’s Medical Jurisprudence and Toxiooiogy {Twenty First Ediiion) haa held in paragraph 38 of the above judgnent as under and convicted the accused uj s 376 of the IPC: “38. Thus to constitute the offence of rape it is not ne‘eeaswy that thew shozdd be com“£ate penetration of penis with emission of semen and rupture of hymen. Partial penetration ofihe penis within the Labia majom or the vulva orpudonda with or without emission ofsemen or oven an atterrgoi at penetration is quite suj]icient for the purpose of the (aw. It is; therefore, quite possibie to commit Iegal£y the qffenoe of rape without producing any injury to o‘w gem'tais or leaving any seminal stains. In such a caoe the medical Ojiicer should mention the negative facts in his report, but shouid not give his opinion that no rage had been Committed. Rape is crime and not a medicoi condition. Rope is a iegai term and not a diagnosis to be made by the medicai oficer treating the victim. 7716 only Siatenwnt that can be made by the medical officer is that there is evidence of recent semml activity. Whether the rape has occurred or not is a ieaai conclusion, not a medical one. " 18. 111 the present case, the prosecutrix version in the Court was of rape by two accused persons. She has claimed complete penetration by both the accused persons and has also claim ed that as a result of penetration blood started oozing from her private part and her skirt, underwear and blouse were drenched in blood. She has further claimed that she sustained numerous abrasions over her wrists. waist, hands and back. The above version of the prosecutrix stands contradicted by the medical evidence which is at complete variance, though she was examined after four davs of the incident. The prosecutrix has claimed that even on the date of her medical examination, there was slight bleeding from her vagina but the lady doctor who has examined her, has not noticed any external or internal injury or bleeding over person of the pro3ecutrix. On th€ contrarv, shs has stated that labia majora and milmra of ths prOSecutrix were healthy, the hymen was intact and there was no Sign of rape 0r recent sexual mtercourse on her person. In the instant case, absence of any injury 1'11 the labia majora and opinion of the dnctor that labia majora and minora were healthy at the time of examination: negatives the possibility of slightest penetration also. 19. It is true that the nrosecutrix 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 upon without corroboration in material narticulars. She stands at a higher pedestal than an injured Witness. However, in the instant case it is very difncult to accept the version of the prosecutrix on its face value as her version is contradicted bv the medical evidence in material particulars. She has claimed that she has been ravished by two accused persons on the ground, as a result of which she sustained numerous abrasions on her person, however, the medical evidence totally contradicts her testimony. Moreover, her testimony also fails to inspire conEdence as the-ESL. report regarding presence of human sperm or blood on the underwear of the prosecutrix and the appellant and her vagnal slides is also negative. 20. Learned counsel for the State] respondent argued that there is a clear evidence of attempt to commit rape. Apart from the prosecutrix, PW—2 Savita is a Witness of the fact that both the accused persons dragged the prosecutrix towards forest and PW—3 Santuram has himself seen the appellant lying over the prosecutrix and doing Wrong things to her. In the matter of Amcm Kumar (supra) while dealing with attempt to commit rape, it has been held that in every crime, there is hrst, intention to commit, secondly preparation to commit it, thirdly, attempt to commit it. Ifthe third stage, that is, attempt is successful, then the crime in complete. If the attempt fails the crime is not complete, but law' punishes the person attempting the act. In the present case, there is evidence that both the accused persons were waiting for the prosecutrix and her friendin the forest, as soon as they reached there, both of them pounced upon them, dragged the prosecutrix towards the forest and after undressing her hrstly Gokul made an attempt in the presence of Shravan and thsreafter, Shravan madc an attempt in the presencs of Gokul. Thus intention of the accused pm‘sons, their preparatiun to crJmmit the ()Eence and thirdly, their attempt to commit it, have been estabh'3hed &om the statements ofthe prosecutrix and her friend Sunita (PW-2). 21. However, in the abeence of reliable evidence of slightest penetration, We have already held that evidence of the proseoutrix that she was subjected to rape by the appellant does not inspire confidence. But: we haée no hesitation to hold that the appellant unsucoes sfully attempted to commit rape with the prosecutrix and as such, act of the appellant constitutes an offence punishable under Section 376 (2)(g) read With Section 511 of the 1P0. So far as conviction of the aypellant under Section 341f34 of the IPC is concerned. in View of the evidence available on record, the‘same does not call for interference. 22. In the result, the appeal is partly allowed. Conviction and sentence of the appellant under Section 341j34 of the IPC is maintained. However, conviction of the appellant under Section 376(2)(g) of the IPC is altered to Section 376(2)(g) read with 511 of the IPC and in niace of 10 years’ RI he is sentencedto undergo RI for 5 years. Judge [$122007 J , , Sdl- 'Dhirendra Mishra \ i