q H!GH CGURT OF CHHAETI$GARH, BILSPUR £REMIHAL A?PEAL No. 1414 9f 2000 Max:193 Kumér Yadav Vs. ‘ Stats af Madhy‘a Pradesh (Now Chhattx'sgm‘h} JUDGMENT Past fcn 02.07.20G7 Sd/- 7 SUNIL KUMAR SINH‘ Judge A A EIGH CQURT OF Clil'LA’A‘TISGARH, BILASPUR CRIME§AL APPEAL N6. 1414 0f 2000 APPELLANT Mansj Kumar Yaiiav, 8,10 Ishwaxi Yadav, Agcd about 18 years, Rf o Village Ghumka, District Rajnandgaon Versus REsPQNDEHT Sta‘te. of Madhya Pradesh (Now Chhattisgm‘h) through : Police Station Ghumka, Disu‘ict- Rajnazldgacm (C.G.) {Agwea! ugde! seciion 374 e! Cr.P.C.§ x rigpearanée: Ms. Nirupama Bajpai, ceunsel far the. agaellemt Shri Sushil Dubey; Govt. Advocata, {Gr 1116 Stata. JUDGMENT {02.0712og7) §UNEL KUMAR S!NI-!A, J. Bemg aggl‘iamd with ths judgmant of conviction and oMer 9f S€11t€11C€ datad 15.4.2000, §assed by tha Had. Additional S€sgi0ns Judge, Rajnemdgaaa {CG} in S$Ssigns Tyial N0.1O,’2000, whsmby me said Court convictai the ap13ellant under S€c1im1 376 (2} {i} LRC‘ and sentaaced him ta undargo RI. fer 10 wars and t9 pay a fine of Rs.2,000/-, in default Gf paymsnt Sf fine 10 furfher underge RI. for 1 year, the. appelleult has pmfermd this criminal appeal. (2g The bxief facts; aye that the pmsecutrix/victim- Sukhmemi, aged abeui 5-‘7 years, was playing near her house in village- Ghumka at about 4.00 pm. 4.11.99. The. appellant, wha is a neighbaur, came aver there and teak her ta the Khotha {piace 0f keegiag cattles} of Gne Chetai} Ladhi and after laying down her 911 the. gi‘aund and. removing her Clothea, tried to peneuate his \7/ aegis inte her Vagina by usihg force. When the girl smited .ryi‘ag, she wae stcphed by him anti when the discharge teak €1§ O (IV, ,, Cr.A. N0. 1414 9f 2000 iplacg, he. ran away from the Flace of occuryence. The girl nanated th€ Sgtory immadiately to Kal1ta Lsdhi and Bahal Verma axld when her parents came at abauf 5,00 pin, she. alga marrated the stary to than. T115 repay: was Edged on S. 11,99. {3) During this cam‘sa cf invasfjgation, the. girl was sent for J ? madical examination and was examinad by Dr. {Stat} Shsl § Khara (PAM-11), who preyaxgd her repent Ex.-P/ 15. According tn s her, there were. no externa} injuries on the. person of the Kiictim. ,._ ‘‘ V On ‘ local examnlation her Eabia majora and labia minora were. ‘ found intact. There was. reddishnesa at the inner aapect of labia minoya. However, the hymen was intact According to her ‘ onininn, an attempt might have been made for commission of rano. The. appeHant was also sent for medical examination and was examined by Br. Mittn'lesh Chondhaly (P.W‘-5), who gave his report Ex-P/ 4. According to him there were no signs which may suggest that the boy was impotent -i.e. he was capable of performing sexual intercourse, {4-} The conviction of the anpellant is based upon the evidence of the prosecntrix (P.W.~2) and her father Ramchandra (P.W.—1) as also the evidence of lady Doctor (Snit) Shel Khare (P.W.-11) and the Head Mistress of the school Sint. Saroj Mikka (P.W.~10), who has proved the date of birth of the victim as 15. 10,93 as per entry EX.—P/ 14‘ Learned counsel for the apnellant has not disputed the age of the prosecntrix. Moreover, her date. of birth has been established by P.W.~10 Smt. Saroj Mikka, who has prove-:1 the entry of school register EX.P]14, the. cony of which has been retained as EXv-PI 14 C. Not only this, the father of the. picsecntrix namely Ramchandra (P.W.-1)h¢s also stated in Para-l of his examination that the prosecntrix was aged about 7 years on the date of his examination, which took place on 1.32000. Therefore, it was established that the prosecntrix;’victim was aged about é~7 years on the date of incident. t5; \ Cr.A. N0. 14M 0f 2090 (63 80 far as; cammissicn of sexual interceursa is concsnmd, v learned connsel for the appellant argued that since the hymen of the girl was iatact and them ig no avideacs of pentatration, marefore, tha yerfermemce {3f forwful i11te1~¢0111‘se has 119i bsea 9r9v€d alaé the. convictioa of the amaenaglt vitiatss. (T) So far as questioa ailhymen behlg mtact is c011cen1ed, in case 0f a girl 0f tender age, ruptum of hyman, in the. want cf “geaéityan‘en, is not as a matter 5f nllg, 131 casa$ whem 111$ 1137:1163 is glee}; Sgaigd, it may 11m llwtaré: thaugh mere may ba a pazaetration, In C335 Q- a fomiblg attempt to iaeaeirate also, mere are chemcea- that the hymen 0f the Victim may 11m rapture particularly $41311 it is deep seated. The presence of redness a11d :iailammatien over the vagina is at leaet a eign that eithey a cempleie peeeh‘atim} hae taken§1aee er a pardal penetratien lms taken place or a fomible attempt to i3e11etraie was made against the xrictim. Modi agines 1'11 hie Medical Jurisprudence that in Small children, the hymen is net usually ruptured, but may became. red and cougeeted along with the inflammatien \aiid bruisiiig of the labia. If considerable violence is used, there is often laeeyatian 9f the fourchette and the herineum. Please see Medi’s Medical Jurisaxudeaee and Taxieolegy, g3”! Edm, gage 928, {£3 In the case of Aman Kumar and anether vs. state e§ gawana i‘enoi’ted in 2004 CLLR. {SC} 267 it has been absewed hy the Apex Cotut in para 7 that “The nletm‘e of hymen is by n9 means necessmy to constitute the oE'ence of rape. Even a slight penea‘ation in the aulva is suilicient to constitute the offence of rape and r'upture of hymen is not necessaty. Vulva penetration with or Without violence is as much rape as vaginal penehation. The statute merely mquires evideace of \Ev// r‘ penetration, and this may occur with the hymen remaining intact. The acme reus is complete with penen‘ation. it is well settled that the prosecutrix cannot be considered as 4 (Tr.A,_ Na. 1414 of 2000 accomplice mld, thargfore, hm‘ tesfhnoay can'not be equated with that of an accomplice 311 an offergcc 9f rap€. 111 exammation of genitai organs, state of hymen o§ers the most Igliable (3111s. Whils Examining tho hyman, cer‘nain anatomical Characterisfics shank} 13a mmambercd before assigning any significance to £116 findmge. The s11a13e and fhe texture of 1 the hymen is variable. This variation, sometimes permits pelletration without mjuxy. This is imssible because of the yeculiar shaye of the orLfice or increased dasticity. On the other hand, somefimee the hymen may be more firm, less eiasiic and gets stretcheci and lacerated earlier, Thus a ,reiatively 11ess forceful penetration may not forceful attempt. The ailatomieal £eature with regard to hymen which merits consideration is its anatomical situation. Next to hymen in positive importance, but more than that in frequency, or the injun'es on labia majora. These, Viz. labia majora are the first to be encountered by the male organ. They are subjected to blunt forceful blows, depending on the vigour ami force used by the accused and counteracted by the actim Further, examination of the females for marks of injuries elsewhere‘on the body forms a very important piece of evidence. To constitute the offence of rape, it is not necessary that there should be complete penetration of the penis with emission of semen and rupture of hymen. Parietal penetration within the labia majora of the vulva or pudendum with or without emission of semen is sufiicient to constitute the ogence of rape as defined in the law. The depth of penetration is immaterial in an otfence punishable u/ s. 376 IPC.” {9} in the matter of Tarkeshwer sahu vs. State of Biliar {new Jkarkhand) reported in @996} 8 36C 560, the Apex Court held vicie’para 10 that under Secn‘on 375 of the I.P.C., six categories indicated therein are the basic ingredients of the onenc‘e. The Supreme Court observed that in the facts and circumstances o the said case, where the prosecutrix was 12 ~‘years of age, her consent was irrelevant. The appellant had £ give rise to injuries ordinarily oossible with a @7 f 5 'Cr. A. N0. 1414 Gf 2GOG { §forcib1y taken her £0 his Gumti with the. intention sf cammittma §s43§ma1 intercourx with hen The importamt mgrésdmnt of the ioEexma u11da1" Sectian 375 §unishab1€ under Sétctlon 376 of me IIPC' file Apfx Cour? sad that 119 oifsnr‘e undEr Sectlon 376 of tLe WP C call he made OLt unle33 thaw was: penatratton to 301113 J am at In €11? abeencs of § 11€t1~=m911 to 83y extent 1t would 110i V 131136 the oifence o£ the appeLant wmm‘ the foul conleis of :§e;:133n 375 of the 1P C Tbelefox force, The ofher 1121}301‘ta31t mg; edlem 13 penetrauon of the. male ‘ otghh within‘the labia majora or the vulva or pudenda with or : without any ° emission of semen or even an attempt at 3 penetration into the private part of the victim completely, partially or slightly would he enough for the pnrpbse of Section i 3375 and 376 ofthe LRC. The Apex Court held in para 13 that the basy’ mowdveme fer 1 momnc a Cha3 6e 9f lape ale the accamphsbment of the act wrath “in ovéelrto constimte rape, What Section 375 1P» requnes iS medical evidence of penetrauon and th1s may occur and the nymen lemam mfac‘k In mew of the Explanation to Secuon @75 mere penetratlon of pen1s m vagma xs an offence o; lape Shghtest neeetrauon 1s sufiiment for eonwcnon under Secuon Q76 IPF " (m: In the present case, the. victim has deposed about attempted to perform sexual i11tercourse by makixlg gesture, oarticularly by pointing towayds her vagina. She. has stated that the aiapellant had removed his own clothee including his underwear and he had also removed hey linden/veal" and thereafter, he laid down over her and did like that due to which, she. felt 11mins in her vagina. Though she has hot clearly stated about the ’peneh‘ation by using penis but ever all evidence of the Witnesees would Show that the appellant had attempted to commit complete penetration against her. The version of the ptoeecuttix is sunported by the evidence of lady Dr, (Suit) Shel Khare (RWQll), who had noticed reddishhees on the inner penetration which is; altogether missing h: the. said ease, 6 CrA. Na. 1414 0f 2900 aspact of labia minora which Sugge£t$ That durmg the course of 1 attempt to commit camplete penetraticsn, a sh’ghtsgt penetraticn has takea placg, which has causad. injmjr i0 the. inner aspect 9f laga 111311013, dus ts which, the victim sustained pains at the. itima ‘ of ths Said paneuation agd m me facts and. circumgtancgs iof the case, ‘in 111$ og'nion of this Cmu‘t, thg said. act of the ;appdla11t would be classifledgs commission of rapg as defined hinder Sgctian 375 IPC. ‘ (11% Siiice the. victim was aged about 6-7 years e11 ths date of iiicidsnt, iliai means 811s was undar 12 years 0f age, the ‘Sessiens Court has rightly held him guilty of od‘ence punishable wider Sectien ‘376 (2} (i) IPC. {12% There appeai‘s t0 be no raifumity in the judgment of canvictioii a11d Qi‘der 0f sentence passed by the Sessions Court, The aspeal is devcid of merits aiid the same. is accmdingly dismissed, Sd/— ' t 1 SUN'IL KUMAR SINHAI Judge i / y Jiatt‘i