/}^ J HIGH COURT OF CHHATTISGARH. BILASPUR Crimlaal Appeal No.9 of 2003 APPELLANT: (In Jail) RESPONDENT: Yadu Kumar. Patel, S/o Radhelal Patel, Aged about 22 years, R/o Bama, Thaiia Arjuiii, Distdct - Dhaintad • Verszis - State of Chhattisgai'h, Through D.M. Dhaintari. (Crimmal appeal under Section 374 (2) ofthe Cr.P.C.) Appearaace: Mr. Arun Kochar, counsel for tlie appeUaiit Mr, Arun Sao, Govt. Advocate for the State/respondent ORAL JUDGMENT (16-5-2007) Suail Kumar Siaha, J. 1. This appeal is directed against fhe judgnient of conviction aad order of sentence dated 30-11-2002 passed in Sessions Trial No.274/2002 by fhe Additional Sessions Judge, Dhaintad,whereby,the said Court, after holdmg fhe appeUant guUty of offence punishable under Section 376 (1) pfthe l.P.C, sentenced him to undergo R.I. for ten years aud pay a fine of Rs.10,000/-, in default of payment of fine to further undergo R.I. for one yeai'. 2. Case of the prosecution is tliat on 27-4-2002 at about 12 noon, fhe prosecutiix (PW-11) had gone to take bafh near a motor pump mstalled ia her fields. Atter takiag bath^when she was wearing clothes, fliis appeUaat caiae over fhere, caught hold of the prosecutiix and after piittiag off her clofhes, got her lay down on a cot (which was there ia flie Jhala, a srnaU hut, near the pump) aiid committed forceful sexual mtercourse against her. When the prosecutrix made hue aad ciy, Shatrughaa (PW-2), whose fields are also situated ia the nearby locality, came over there aiid saw fhat ttie appeUaat was lymg on the prosecutrix^who was lying on the cot^which was fhere ia tlie Jhala, The appellant ran away from the place of occurrence afiter seeing Criminal Appeal No.9 of 2003 \-< 1 Shatrughaa. Just thereafter, three girls nainely, Pushpa, Phoolkuuwar & Savitti also reached to fhe place of occurrence aad took the prosecutrix to her house, Father of tiie proseciitrix had gone to attend a laardage. He was caUed fronx tlie inairiage house aad fhe story was narrated to hroi by the prosecutrix. Thereafter, tlie report Ex. P-15 was lodged by ttie prosecutiix at about 3 p.m. on the same day, 3. Durmg fhe course of investigation, fhe prosecutrix was sent for aiedical exam.iaation aad was exaoitaed by Dr. (Smt) Asha Tripathi (PW-3) who prepared her report Ex. P-7. Accordiag to her obseryation, the proseczitorix was aged about 13 years, Her secondar^^ sexual characters were not fully developed, Auxiliary hairs aiid pubic hairs were very few aiid her breasts were also not developed. In the iatenial exaxaiiiation, she found dry blood on flie periiieuni, labia minora aiid labia majora were also not fuUy developed. There was one scratch inark ia tlie vulva admeasuriiig 1/6W x 1/4?\ Vulva was inflaiaed and reddish ia colour aad she was coniplaiaiiig paias whlle touching fhe iallained portions. Soine white secretion was also seen iii vulva, however, hynien of the girl was not ruptured. Clothes of fhe prosecutrix were seized under Ex. P-2. Her inark sheets of Class-V (Ex. P-4) aiid traiister certificate (Ex.P-5) were also seized under Ex. P-3. Adiaission register of the school was also seized aiid copy of its relevaiit page was collected as Ex. P-13. Accordiiig to this register aad also according to tlie other school certificates, her date of birtli was 17-2-1990, according to which, she would be aged about 12 years 2 inonfhs aad 10 days. Site plaa was prepared iinder Ex.P-6. AppeUaat Yadu Kuinar Patel was arrested and he was also raedically examiaed by Dr. D.S. Dev (PW-8) who prepared his report Ex,P-ll, accorduxg to which he was able to perfoi-m sexual intercourse, 4. After coinpletion of usuaJ nivestigation, charge sheet was llled agaiast the appeUaat ia fhe Court of Chief Judicial Magisti-ate, Dhamtari, who ia tura coiniaitted the case to tiie Court of Sessions, from where the zaatter was received on traasfer by fhe Court of Additioual Sessions Judge, Dhaintari, who conducted torial aiid passed the iaipugned judgment of conviction aad order of sentence on 30-11-2002, It is agaiiist this judgBient of conviction mid order of sentence^ awarded to tlie appellant, tlie appellaat has preferred this appeal. Criminal Appeal No.9 of 2003 5. Convictioii of the appellaat is based iipon fhe testiinony of tiie prosecutrix (PW-11), Shatrughaa (PW-2) aiid szipporting evidence of her inother & father along with fhe evidence of Dr. (Srat,) Asha Tripathi (PW-3), The Additional Sessions Judge recorded a fiiidiag that the prosecutdx was aged about 12 years & 2 raonfhs on the date of mcident aad thereafter, he also recorded a fmdiiig tliat she was subjected to forceful sexual intercourse by ttie appellaat, as such, the appeUantwas guUty ofoffence under Section 376 offhe I.P.C. 6. Learaed counsel for the appellaat does not dispute tihie liadiag pertainiag to fhe date of birfh of tlie prosecutrix. He only raised a poiat that as per the inedical report of the prosecutiix, her hyraen was iatact, fherefore, it was not a case of penetration, as such, the appellaiit caanot be convicted under Section 376 (1) of the I,P.C. His subniission is that at fhe xaost, it may be a case of atteinpt to coinmit penetration and tlie offence would faU under Section 376/ 511 of the I,P.C. Altematively, he also argues that ftie sentence awarded to the appeUaat i.e. RJ. for ten years is too harsh ni the preseut facts and cn'cumstaaces of tliis case which may be rcduced to miaimum, preferably to tiie period already undergone by Uie appeUaat which conxes to about 5 years. 7. On the ofher haad, leanied State Counsel opposc^d these arguments. He supports tlie judgment of coiiviction aiid order of sentence awarded by the tdal Court. 8. I have heai'd leanied counsel for tlie parties at length aad perused ttie record ofthe sessions Court. 9. So far as offence under Section 376 of ttie I,P.C. is concemed, the prosecutidx (PW-11) deposed that on the fatefal day she had gone to take bath uear fhe siiotor pumip of her fields aiid when after taking batti she was weariag clothes, fhe appellant came titiere, caught hold of her aad fhrew her 021 fhe cot which was there in fhe Jhala nem' the inotor pu2np and after undressiag her, he coinmitted forceful sexual iiitercourse agaiast her. She has also stated tliat when she suade hue aiid cry, Shatrughaii (PW-2) caine over tiiere aad witnessed the occun'ence. She has further stated that three other ladies namely, Crunmal Appeal No.9 of 2003 Pushpa Bai (PW-13), Phoolkiinwar (PW-14) &, Saviti-i also came to the place of occurrence aad tliey have takeii her to fhe house, She has lurtlier stated that at fhat time, her fatlier was not present, wlien her fatlier came she naiTated tlie stoiy to him aiid tliereafter, tlie report \vas lodged. Tliis evidesice of tiie prosecutrix is supposled by the evidence of Shatn.ighan (PW-2) wlio stated that when he heard the noise of prosecutrix, he went towards the Jhala and he could see that tlie appellant was lymg over tlie prosecutrix aiid botii were on a cot. He had a talk witli tlie appeUaat as to how he is doiag like tliis^on which the appeUant got dowu from tiie cot aad raii away. 10.0tlier two witaesses namely, Pushpa Bai & Phoolkunwax' were also exanimed as PW-13 & PW-14, respectively, but they have tumed hostile. The prosecutrix has been cross-exaaimed at length aad many questions pertainiag to the maaner of commission of sexual intercourse were put to her, but fhe outcoixie of her evidence is tliat accordiag to her, she was subjected to forceful sexual mtercourse by tiie appellmit who had made complete penetration and ftiereat'ter only she was left by him. 11. Leai-aed counsel for fhe appellaat madiily raises the pomt tliat it was not a case of rape or penetration as accordmg to the medical report of fhe prosecutnx, hymen of the prosecutrix was intact aad iajuiy on the private part would only be a suggestive of attempt to comnut rape or tiy to commit penetration aud m such a situation, offence under Section 376 ofthe I.P.C. would not be made out agamst tiie appeUaat. 12.In the matter of Tarkeshwar Sahu vs. State of Bihar (now Jharkhaadl reported ia (20061 8 SCC 560, fhe Apex Court held vide para 10 that under Section 375 of the I.P.C., six categories indicated therein are the basic ingredients of the offence. The Supreme Court observed that m the facts aad circumstances of the said case, where the prosecutorix was 12 years of age, her consent was irrelevaat. The appeUant had forcibty taken her to his Gumti with the iatention of committmg sexual intercoiirse mth her. The important ingredient of the ofiTence under Section 375 punishable under Section 376 of the I.P.C. is penetration which is altogether missing in the said case, the Apex Court said that no ofience under Section 376 ofthe I.P.C. caii be Cruniaal Appeal No.9 of 2003 nxade out unless there was penetration to sorae extent. lu fhe absence of penetration to aay extent, it would not brmg fhe ofience of the appellaat within the four coraers of Section 375 of fhe I.RC. Therefore, the basic iagrediente for proving a charge of rape are the accoinpMshnient of fhe act with force. The ofher importaiit ingredient is penetration offhe male orgaa withm fhe labia majora or tiie vulva or pudenda with or without aiiy einission of senien or even an attempt at peneti'ation iato the private part of tlie victiia comipletely, partiaUy or sUghtly would be enough for the purpose ofSection 375 aad 376 ofthe I.P,C. The Apex Court also referred the earUer decision rendered by it m fhe matter of Stccte qf U.P. vs. Bdbul Ncsth reported ia (19941 6 SCC 29, In that case, the Apex Coiirt had dealt with fhe basic iagredients of the ofienee zinder Section 375 ia the following words: "8. It raay here be noticed tliat Section 375 IPC defines rape aad fhe explaiiation to Section 375 reads as foUows: 'Explanation,— Penetration is siifiicient to constitiite fhe sexual intercourse necessary to the offence ofrape/ From fhe Explaiiation reprodiiced above it is distijictly clear that mgredients which are esseutial for provmg a charge of rape are the accoBipMshm.ent of the act with force aad resistaace, To constitute fhe offence of rape neitih.er Section 375 IPC uor ttie Explaaation attached thereto reqziire fh.at there should necessarily be coinplete penetration oftlie penis iato the private part oftlie victiim of the prosecutrix. In ofher words to constitute fhe offeuce ofrape it is uot at all necessaiy that fhere should be coiaplete penetration of the inale orgaii with eiiiission of sexuen aad rapture of hyinen, Even partial or sMghtest penetaration of fhe niale orgaa within fhe labia inajora or the vulva or pudenda witli or without aay exnission of senien or even aii atteinpt at penetration into fhie private part of the victim would be quite enough for fhe purpose of Sections 375 and 376 IPC. That being so it is quite possible to commit legally the ofience of rape even wifhout causiag any iajur)r to the genitals or leaviag aay seniiaal stams. Biit iii the present case before us as noticed above fhere is more thaa enough evidence positively showmg that therc was sexual activity on fhe victiin and she was subjected to sexual assault wifhout which she would uot have sustained iiijuries of fhe nature found on her private part by the doctor who examdiied her/' 13. It also referred to aaother decision rendered by fhe Kerala High Court m. the matter of State of Kerala vs. Kuadumkara Goviadaa reported ia 1969 Cri.L.J. 818, in which the said Court observed as iinder: Crimmal Appeal No.9 of 2003 "The crux of tlie offence under Section 376 IPC is rape and it postulates a sexiial uitercourse. The word "iatercourse" meaas sexual connection. It niay be defined as inutual frequent action by inexnbers of independent orgaiiization, By a rsietaphor fhe word "intercourse" like the word &comiuerce'? is appUed to the relation of sexes. In iatercourse fhere is teinporaiy visitation of one orgaaization by a laeinber of fhe other orgaxiization for certain clearly deJGued aiid lixnited objects. The priraary object oftlie visitmg orgaiiization is to obtaio. euphoria by nieaas of a detent of fhe uerves consequent on tlie sexiial crisis. There is no uitercourse unless fhe visiting ineniber is enveloped at least partiaUy by tlie visited organization, for iiitercourse connotes reciprocity. In iatercoiu'se bet^veen fhighs tlie visitiag niale organ is enveloped at least partially by flie organism visited, the tldghs; fhe fhighs are kept togefher and tight." 14. Quotiag atl these judginents, fhe Apex Court held ia para 13 that "In order to constitute rape, what Section 375 IPC requires is inedical evidence of penetration and this niay occur and tlie hyinen remiaia iiitact In view of the Explanation to Section 375, mere penetration of penis in vagiaa is aa offence of rape. SUghtest penetration is sufficient for conviction under Section 376 IPC/' 15. For penetration, tiie Apex Court said that accordiiig to Concise Oxford Dictionary "peuett'ate" meaiis "liad access iiito or through, pass tlirough", 16.In case of a girl of tender age, rupture of hyinen, ia fhe event of penetration, is not as a matter of rule. In cases where fhe hymen is deep seated, it raay not nipture fhough tiiere inay be a penetration. In case of a forcible attempt to penetrate also, fhere ai-e chaaces tiiat the hymen of the victim may not rupture particularly when it is deep seated. The presence ofredness aad ioflaaiination over the vagiaa is at least a sign fhat either a conxplete penetration has taken place or a pai-tial penetration has taken place or a forcible atteinpt to penetrate was niade agaiast fhe victisn. Modi opiaes ia his Medical Jurisprudence fhat ia smaU children, the hyinen is not usually ruptured, but inay becoine red aad congested along with the uiflainiiiation aad braisio.g of fhe labia. If considerable violence is used, fhere is often laceration of fhe fourchette and tlie perineuin. Please see Modfs Medical Jurisprudence and Toxlcology, 23rd Bda., oage 928. Cnminal Appeal No.9 of 2003 'K. 17.In the case of Amau Kumsur aad another vs, State of Haryaaa reported m 2004 Cr.L.R. (80 207 it has been observed by the Apex Court ia para 7 tliat 'The nipture of hyiaen is by no ineans necessaiy to constitute ttie offence ofrape. Even a sUght penetration ia fhe viilva is sufficient to constitute the offence of rape and rupture of hymen is uot necessaxy, Vulva peneteration with or without violence is as much rape as vagiaal penetoration, The statute mierely requires evidence of penetration, aiid this may occur with tibie hymen reixiainiag iiitact. The actus reus is coinplete witli penetration. It is weU settled tiiat the prosecutnx caninot be considered as accoiaplice aiid, therefore, her testtmony caanot be equated wifh that of aa accoinplice ia aa offence of rape, In examiriatiou of genital organs, state of hynien offers fhe niost reUable clue. Wliile examiaiag tiie hymen, certaia anatoinical characteristics should be reineiiibered before assigniag aiiy significaace to thie fuidiags. The shape and tlie texture of fhe hyiaen is variable. This vadation, soraetiines permits peuetration without nijury. This is possible because of the pecuUar shape of the orifice or iacreased elasticity. On the ofher haad, soinetiiaies the hynien inay be inore finn, less elastic and gets stretched mid lacerated earUer, Thus a relatively less forceful penetration niay not give rise to injuries ordniarily possible with a forceful atteaipt. The aaatoBiical feature with regard to hyinen which nierits consideration is its aiiatoixiical situation, Next to hymen in positive importaiice, bzit more thaa that m frequency, or ftie iujuries on labia majora. These, viz. labia majora are fhe first to be encountered by tiie male orgaa. They are subjected to bluut forceful blows, depending on fhe vigour and force used by fhe accused aad counteracted by fhe victhn. Further, exainitiation of fhe fem.ales for inarks of iajuries elsewhere on fhe body forms a veiy iniportarit piece of evidence. To constitute the offence of rape, it is not necessary fhat fhere should be complete penetration of the penis with emission of semen aad rupture of hymen, Padetal penetration wifhin the labia m.ajora of fhe vulva or pudenduni with or wittiout eniission of semen is sufllcient to constitute the ofience of rape as defined in the law. The depfh of penetration is immaterial in aii offence pzinishable u/s. 376 IPC." 18. In the Mght ofabove decisions of the Supreme Court aad furfher ia the light of otih.er medico legal decision, it caiinot be held that siace hymen of fhe gui was mtact, it was not a case of penetration eiflier partial or complete aad offence uuder Section 376 of the I.P.C. would not be made out. Ofher attendmg circumstaxices i.e. evidence of the prosecutrix, evidence of the eyewitaess aad fhe supportiag medical Criminal Appeal No.9 of 2003 ^ ^ evidence, which shows iajuries on private part of tlie prosecutrix, make it clear ftiat ia fact, it was a case ofpartial penetration aiid m the facts aad circumstaaces offhe case, offence under Section 376 ofthe I.P.C. would be made out agamst the appeUaat. The argument advaaced by leanied couusel for fhe appellant has ^@ ^orc^ and tlie same caanot be entertaiaed. 19.Lastly, commg to tlie quaiitum of seutence, leamed couusel for the appellaat refers to the decision of fhe Apex Court rendered ia the matter of State of Chhattissarh vs. Derha reported iii (20041 9 SCC 699. In the said case, rape was committed against a girl aged about 8 years aiid fhe accused was aged about 18 years on tlie date ofiticident aad he had also ser^ed about 6 ^ yeai's imprisonment consequent to tlie sentence imposed on him aiid was having a faisiily. In such circumstaaces, the Apex Court vide pax'a 8 of fhe judgment, while allowio.g tlie appeal of ttie State ajid setting aside flie judgnient of the High Court, reduced tlie seutence to 7 years R.I. from 10 yeai's. 20.The pnnciple ofproportion between ciime aad punishnient is goveraed by fhe "Doctrine of just deseii\ The doctrme is the foundation of crmiiaal sentence which is ultiraately awarded for punishnient to the wrong doer. What one really deserves should be fhe punishnient for haviag coinniitted a crrme is tlie underlyio.g principle. The punishiaent inust not be disproportioiiately great is coroUar}r of "just deserf' which is govemed by the same principle which says tliat there caiinot be a punishiaent wittiout guUt and the basic elenient behiad the priiiciple is the proportion betaveen crixae aad punishinent. The lesser is the gravity of the crhne, tlie siaaller would be the punishment aad the greater is tiie gravity of the crioie, the higher would be the punishment, subject to fhe aacillary factors for detenniaing the proportion of the same, fhough atl further subject to fhe statutoiy obUgatious speci&cally provided by law hi force. 21. In case on haad, admittedly the appeUaiit was aged about 22 yeai's on fhe date ofincident aad tlie girl was aged ui between 12 aad 13 years. The appellaiit is m jaU siace. the first date of his arrest i.e. 8-5-2002, tlxereby he has already undergone tlie sentence for a period of about five years aad in. fhe facts aad circiunstatices of fhis case, I deeni it Crimmal Appeal No.9 of 2003 appropriate to reduce his senteuce froin 10 years to 7 years which would serve the ends ofjustice beiag fhe quaiitumi "just deserf^. 22. In tlie result, the appeal is partly allowed. Convictioa awai'ded to tlie appeUaut zmder Section 376 (l)ofthe I,P.C. is coiifirmed, however, his sentence is reduced froni 10 years R.I. to 7 years R.I. Sentence ofline ofRs.10,000/- is also reduced to Rs.5,000/-, ia clefault ofpayinent of fine, tlie appellaiit shall further undergo R.I, for one year xaore. Iftlie ainoiuit of fine is deposited, fliat shall be paid to fhe prosecutrix (PW- 11) as per the direction of Uie Sessions Court vide pai'a 36 of the iinpugned judgnient, however, fhe aniount contaiaed in para 36 as Rs.8,000/- shall be read as Rs.5,000/-. The appeUant shall be entiUed to set off aiid he shall be entitied to aay legal reiuission permissible ia law for haviag already served the above sentence of iinprisonnient. Soma Sd/- Sunil Kumar Sinha Judge