IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA THURSDAY, THE 11TH NOVEMBER 2010 / 20TH KARTHIKA 1932 CRL.A.No. 153 of 2010(D) ------------------------ SC.499/2008 of SPL. COURT (NDPS ACT CASES), THODUPUZHA CP.56/2008 of JUDL. MAGI. OF FIRST CLASS-I (FOREST OFFENCES), THODUPUZHA .................... APPELLANT(S): -------------- KUNJUMON, S/O.THANKAPPAN, C.NO.7723, CENTRAL PRISON, VIYYUR, TRICHUR. BY ADV. ADV.SYLAJA S.L.[STATE BRIEF] RESPONDENT(S): --------------- STATE OF KERALA PUBLIC PROSECUTOR (SRI. K.S. SIVAKUMAR) THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 11/11/2010, THE COURT ON 11/11/2010 DELIVERED THE FOLLOWING: K. HEMA, J ------------------------------------------ Crl.Appeal.No.153 OF 2010 ---------------------------------------- Dated this the 11th day of November, 2010 J U D G M E N T A child aged just 10 years is allegedly raped by her own father. The father stood trial for offence under Section 376 (2) (f) of Indian Penal Code ('IPC' for short). After trial, he was found guilty by Additional Sessions Court and sentenced to undergo rigorous imprisonment for 10 years and to pay fine of Rs.25,000/- and in default, to undergo rigorous imprisonment for one year. Fine amount if realised, was ordered to be paid to PW2, the victim as compensation. Set off was also allowed. The said conviction and sentence are challenged in this appeal. 2. Prosecution case, briefly: PW2 is born in the wedlock of appellant and CW3 and she was residing with her father, grand mother (PW1), and brother. Her mother was away, working at Bangalore in connection with her job. On the crucial day, on 11.11.2006 in the evening, PW2 had gone to her maternal aunt's house to watch TV and while she was returning, she met appellant on the way and they came home together. At that time, nobody [Crl.A.153/2010] 2 was present in the house. PW1, the grandmother of PW2 had gone to a neighbouring house to get eggs. 3. On reaching home, by about 6.30 pm., appellant asked PW2 to remove her underwear and when she refused, he made her lie on the bed in the bedroom, switched off the light, removed her undergarments and committed rape on her despite the resistance. In the meantime, PW1 returned to the house and found that the lights were switched off. She had switched on the lights before she left the house for getting eggs. She went to the bed room and switched on the light when she found appellant and PW2 lying on the cot and appellant sliding away from the body of PW2. Immediately, PW1 lifted PW2 from the bed and appellant was questioned. 4. PW1 informed the victim's mother and appellant's mother also about the incident. PW2 was taken to the house of PW3, a neighbour. PW3 examined private part of PW2 and found some redness etc., in her private part and asked the girl to be taken to the doctor. Since it was late on that day, complaint was lodged only on the next day, on 13.11.2006. A case was registered and thereafter, PW2 was taken to the doctor for medical examination. After investigation, a charge was laid against appellant. 5. Prosecution examined PW1 to PW12 and marked Ext.P1 to P9 and MO1 to MO5. The accused did not adduce any [Crl.A.153/2010] 3 evidence, but he only stated that he is innocent. He marked Ext.D1, a portion of the statement of PW2 given to the police. On an analysis of the evidence in detail and by placing reliance upon a decision of this court reported in Chenthamara Vs. State of Kerala 2008(4) KLT 375, trial court found that there was partial penetration and the act committed by accused constitute rape. The contention of the appellant that offence made out is only under Section 377 IPC, since no semen was detected etc., was rejected. 6. This appeal was filed from jail and appellant was undefended. Hence, Smt. S.L. Sylaja was appointed as State Brief. Heard both sides. Perused the records. Learned counsel for appellant argued that medical evidence and medical certificate, Ext.P5 show that there was no signs of recent penetration. It is also argued that as per Ext.P9, no sperm and semen was detected in vaginal smear and swab and hence, if at all the entire case of prosecution is admitted accused can be convicted only for offence under Section 377 IPC or for an attempt to rape and not for rape. 7.Learned public prosecutor argued that evidence of PW1 and PW2 is not discredited and it is more than sufficient to hold that there was actual rape on the victim by the accused. As per the medical evidence, there was congestion of the vulva and [Crl.A.153/2010] 4 hence, offence committed by accused squarely falls under Section 376 IPC and not under Section 377 IPC. It cannot also be said to be a mere attempt to rape, it is argued. 8. On going through evidence of PW2, the alleged victim I find that she has supported the prosecution in full. She is a child aged only 10 years and there is no dispute regarding the age. The birth certificate is Ext.P4. She deposed that during the time of occurrence, she was residing in the house along with her grandmother (PW1), father (appellant) and brother. She also stated that on the date of occurrence, in the evening, she had gone to the house of CW5, who is her mother's sister to watch TV. By about 6 – 6.30 pm, while she was coming back, she met the accused on the way and they proceeded to the house together. At that time, her grand mother (PW1) was not in the house. 9. PW2 further deposed that on reaching home, accused shut the door and switched off the light. He then, called her to the cot and asked her to remove the underwear. Since she was not willing, she was scolded and was made to lie on the cot. The accused lied on top of her, lifted the skirt and committed rape. By the time, PW1 came to the house and switched on the light, when he lifted himself from her and lied on the bed. At that time, some white liquid was there on her thigh. [Crl.A.153/2010] 5 10. PW2 also deposed that PW1 scolded appellant and took her to appellant's mother's house. She was also taken to the house of PW3, who examined her private part, where she had pain. PW3 stated that her private part was swollen and it was reddish. PW3 asked PW2 to be taken to hospital. On the next day, she was taken to the police station and from there, to hospital. 11. PW1 is the grandmother of PW2. She deposed that she is residing in colony and that appellant was residing with her. During the relevant time, her daughter CW3 (mother of PW2) was at Banglore. On 11.11.2006 at about 6.30 pm, while she was coming back after getting eggs from her relative's house, she found that there was no light in the house. Before leaving the house she had switched on the light, since there was no body in the house. PW2 had gone to her elder daughters house to watch cinema. 12. PW1 also deposed that on reaching home and on finding that lights were switched off, she went to the bed room and opened the door. She switched on the light, when she found that PW2 and accused were lying on the cot in the bedroom and accused was moving out of PW2's body to the bed and the skirt of PW2 was found lifted up. PW1 also deposed that there was no cloth on the lower portion of the child's body. She made PW2 to [Crl.A.153/2010] 6 get up. She also suspected that accused had subjected PW2 to some sexual act. She also found some white matter on the thigh of PW2. 13. PW1 deposed that she questioned accused why he had done so. She also asked PW2 about the incident, while she explained what transpired. She went out for making phone call to CW3 and on the way she also went to PW3. At that time accused's mother was along with her. PW3 examined PW2 and said that there was reddish colour in the private part. PW2 also said that there was pain in the private part. It was decided to show her in the hospital. PW3 gave evidence that she examined PW2's private part and found that there was redness and slight swelling there and advised to go to doctor. 14. The evidence of PW1 to PW3 has corroborated each other in all material particulars. They were cross examined at length but their version stand undiscredited. PW8, the doctor deposed that PW2 was examined by her on 12.11.2006 at about 5 p.m., and that her vulva congested. (The incident happened on 11.11.2006 at about 7.30 p.m). The evidence of PW8 shows that though the girl was examined on the next day of the incident, at that time also, her vulva was found congested. According to PW8, it may be due to local pressure. 15. There can be no doubt that the evidence of PW1 to PW3 [Crl.A.153/2010] 7 is corroborated by medical evidence also. From the evidence given by PWs 1 and PW2 coupled with evidence of PW3 itself, it is clear that accused committed had penile-vulval penetration on PW2 but, as found by the trial court, ejection took place only on the thigh, since by the time, PW1 came to the room and accused slipped off from PW2's body and lied on the bed. 16. However, PW8, the doctor deposed in the cross- examination that there was no signs of penetration. In Ext.P5 also, she said that there is no evidence of recent/past vaginal penetration. It was also argued by the defence counsel that semen or sperm was detected in the vaginal swab and slides, as per the chemical analysis report, Ext.P9. In such circumstances, it is vehemently argued that there cannot be any rape. Even if the entire prosecution case is admitted, it can only be a case falling under Section 377 IPC or an attempt to rape, it is submitted. 17. I cannot accept the above argument for various reasons. On a reading of the deposition of PW8, it appears that the doctor is under the impression that “vaginal penetration” is the “actual penetration” which is essential to constitute “rape”. According to PW8, in cases in which, there is no rupture of hymen, partial penetration is possible in between vulva, but it will not amount to “actual penetration”. The doctor's opinion that there was no “actual penetration” is founded on a wrong [Crl.A.153/2010] 8 impression that to constitute rape, there must be vaginal penetration, with rupture of hymen, emission etc. 18. In the opinion of certain medical experts and according to a layman, sexual intercourse or rape requires complete act of penetration into the “vagina”, rupture of hymen and also ejection. In common parlance, there may not be any sexual intercourse, without vaginal penetration, rupture of hymen and also ejection. While deciding whether the offence of rape under Section 376 IPC is committed or not, such opinion has no relevance at all. Sexual intercourse and rape have a different meaning and connotations, as per law particularly, under under Section 375 IPC. 19. It is not for a medical expert or a common man to say whether vaginal penetration, rupture of hymen etc., are essential to constitute rape under Section 376 IPC. A medical expert may say whether or not, there is any evidence of recent sexual activity, involving the private part or body of the victim. She may also report evidence of injury, if any, on the body of the victim particularly, the private part and express the opinion as to cause of such injury. She may also say whether there is penetration into any portion of the private part. But, a medical expert is not competent to say whether a particular type of penetration is necessary to constitute sexual intercourse or rape, as stated in [Crl.A.153/2010] 9 Section 376 IPC. 20. In Modi in Medical Jurisprudence and Toxicology, 21st Edn. at page 369 observed thus: “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”. Taking all the above facts into consideration, I find that the medical opinion or evidence showing that there was no evidence of “actual penetration” (meaning, “vaginal penetration”) is not sufficient to discard the prosecution case, holding that there is no rape. 21. Offence of “rape” is not a medical condition. It is not a diagnosis to be made by a medical expert, who examines the victim. “Rape” is a an offence defined under Section 375 IPC and it is a legal term. It has nothing to do with the ordinary impressions of a layman or a medical expert about sexual intercourse or rape. What type of penetration will constitute sexual intercourse or rape under Section 376 IPC is to be decided by the court and not by a medical expert. The court has to decide whether the act committed by accused constitute “rape”, as per law, based on the evidence in each case. 22. A close reading of Section 375 IPC, particularly, the [Crl.A.153/2010] 10 Explanation makes it clear that to constitute an offence of rape, vaginal penetration is not necessary. Even though in common parlance, it is understood that to have sexual intercourse and rape, there must be penile-vaginal penetration, legally it is not so. Even if the sexual act falls short of complete entry of male organ into vagina (vaginal penetration), rupture of hymen or ejection, to a common man or to a medical expert, it may only be an attempt of rape. But, legally, the position is not so. 23. The Supreme Court in Madan Gopal v. Naval Dubey, 1992 (3) SCC 204) placed reliance upon Gour's 'The Penal Law of India', 6th Edn. 1955 (Vol.II), page 1678, it is observed that even vulval penetration is held to be sufficient for a conviction of rape. In a case in which there was no rupture of hymen but there was only penile penetration within the labia majora or vulva with or without emission of semen, the Supreme Court held that such acts constitute evidence of rape. 24. In various other cases also, it was held that even “vulval penetration” is sufficient to convict a person for rape and that the depth of penetration is immaterial (Vide Natha v. Emperor (1925) 26 Criminal L J 1185), Abdul Majid v. Emperor (AIR 1927 Lah 735(2), Mst. Jantan v. Emperor, (1934) 36 Punj LR 35), Ghanashyam Misra v. State, 1957 Cri L J 469, Das Bernard v. State (1974 Cri LJ 1098). In re Anthony (AIR 1960 [Crl.A.153/2010] 11 Mad 308), it was held that the slightest penetration will be sufficient and a complete act of sexual intercourse is not at all necessary to constitute the offence of rape. There are decisions of this Court also to the above effect. 25. In Aman Kumar v. State of Haryana (2004 (4) SCC 379), the Supreme Court held that, “to constitute offence, it is not necessary that there should be complete penetration of penis with emission of semen and rupture of hymen. Partial penetration within labia majora or vulva or pudendum with or without emission of semen is sufficient to constitute offence of rape as defined in law”. In State of U.P. v. Babulnath 1994 (6) SCC 29), the Supreme Court held thus: “Even partial or slightest penetration of the male organ within labia majora with or the vulva or pudenda with or without any emission of semen or even an attempt at penetration into the private part of the victim would be quite enough for the purpose of Section 375 and 376 of IPC. That being so, it is quite possible to commit legally the offence of rape even without causing any injury to the genitals or leaving any seminal stains”. 26. The Supreme Court (Babulnath's case) has made it very clear that partial or slightest penetration of the male organ within labia majora with or the vulva or pudenda without any emission of semen, is also “rape”, as per Section 376 IPC. In a layman's view, the above acts may only be an attempt to rape, since there is no vaginal penetration in such cases. But, [Crl.A.153/2010] 12 according to Supreme Court, such an attempt of penetration into the private part is sufficient to constitute “rape”, under Section 376 IPC, if on such attempt there is slightest penetration into labia majora (Labia Majora is the hairy exterior part of the female genital organ) vulva etc,. Thus, vaginal penetration is not a must for rape under Section 376 IPC, but if there is an attempt to vaginal penetration whereby, there is penetration into other external portions of the female private part, offence of rape will be made out. 27. In Chenthamara v. State of Kerala ( 2008 (4) KLT 290), I have considered this aspect in some other angle. The scope of the definition of offence of rape and the expression “penetration” referred to in Explanation to Section 375 IPC were probed into. In my considered opinion, to attract offence of rape under Section 376 of IPC, it is not necessary to have vaginal penetration, but it is enough if there is vaginal accessing by male organ. In the course of accessing of vagina by the male organ, if it comes into contact with any of the external portions of female genital organ such as, vulva or pudendum, labia majora etc., without there being an actual entry of male organ into vagina, such penile accessing of vagina will constitute “rape”. 28. In cases involving only penile accessing of vagina, and thereby male organ come into contact with other external [Crl.A.153/2010] 13 portions of female private part, such as vulva, labia majora etc., such an act of penile-accessing of vagina may amount to an attempt of penetration into vagina. But such act will also constitute "rape" under Section 375 IPC and it is not a mere attempt to rape. To put it short, vaginal penetration is not necesary to constitute offence under Section 376 IPC. 29.Though ordinarily, to common man , “penile-vaginal entry” is essential to constitute sexual intercourse, “penile- accessing” of vagina, by penetrating into the other external portions of female private part like vulva etc. is sufficient as per law to attract offence of “rape”, by virtue of the Explanation to S.375 IPC. This is exactly the reason why, the Supreme Court repeatedly held that that even slightest penetration into vulva or labia majora constitutes "rape", even though in such a case there is no vaginal penetration. 30. The gender sensitised Indian Judiciary including the Supreme Court has given a practical and pragmatic meaning to the offence of "rape" under Section 375 IPC . Penetration of male organ into the external portions of female private part such as labia majora or vulva is also sufficient to constitute rape. The offence of rape shall not be measured in inches or millimetre of penile penetration into the vagina. If a man intrudes into the privacy of the body of a female, particularly the private part, the court need not look into whether the male [Crl.A.153/2010] 14 organ entered vagina by millimetre or inch, to decide whether there is "rape" or not, as per law. It is enough if the male organ penetrates into or accesses external portions of the female private part other than vagina. This is the message given in various decisions of the Supreme Court and this Court. Therefore, any attempt made by the courts to dilute the above well settled legal position will result in gross gender injustice. 31. The relevant portion from Chenthamara, is extracted as follows: “16.........by virtue of the Explanation to S.375 IPC, an actual passing of penis through vagina (“penile-vaginal entry”) is not quite essential to constitute offence of “rape”, “Penile-accessing” into/towards vagina is sufficient (ie., penis finding access into/towards vagina, without there being any entry of penis through vagina, and during such process, penis getting contact with any of the external portions of the female genital organ) to constitute “rape”, as laid down in the Explanation to S.375 IPC. The expression “penetration”, which is referred to in the Explanation to S.375 IPC, according to me, is such “penile-accessing” which I have explained above. 17.Thus,“penetration” referred to in S.375 IPC is something lesser in extent, nature and degree than what is ordinarily understood by the word “penetration”, in common parlance, in the context of sexual intercourse. By virtue of the Explanation to S.375 IPC, in legal parlance for the sexual intercourse which is necessary for the offence of “rape”, penile-vaginal entry is not a must, but even in the absence of such entry or rupture of hymen, [Crl.A.153/2010] 15 offence of “rape” can be committed”. 32. So, in cases in which, there is only penile accessing of vagina and thereby, only penetration of male organ into vulva or labia majora, without there being even any partial slight or complete entry into the “vagina”, such an act will squarely come under Section 375 IPC and it is not merely an attempt to rape. In this case, there is ample evidence to show that there was penile accessing of vagina by the male organ by force and in that process, it had come into contact with vulva, causing congestion and redness thereon, by local pressure. Even though there was no “actual vaginal penetration or even partial penetration into vagina, rupture of hymen or ejection into vagina, offence committed by appellant is clearly “rape” under Section 376 IPC and not merely an attempt to rape, as argued. It is not an offence under Section 377 IPC also. 33. Now, coming to absence of semen or sperm in vaginal swab and slides I find that prosecution itself has no case there was emission of semen into vagina. As per evidence of PW2, the child victim, she noticed some white liquid on her thigh, after the incident. PW1 also stated that she found white matter on PW2's thigh or reaching the scene. PW2 has no case that any emission took place within the vagina. In fact, there was no chances for such emission also. [Crl.A.153/2010] 16 34. As learned Additional Sessions Judge rightly observed, evidence also reveals that before there could be emission of semen into vagina, grand mother came to the scene and semen fell on the thigh, while the accused withdrew from the act. Therefore, in the absence of any evidence to show that during the act of rape there was ejection into the vagina, the absence of sperm or semen in the vaginal swab and slides is of no consequence at all. At any rate, such absence is not at all sufficient at all to disbelieve evidence of the child, PW2 or PW1. It is also to be noted that vaginal swab and slides were collected only on the next day of the accident, that too, after about 23 hours of the incident. 35. Taking all these facts into consideration, I hold that the act committed by the accused amounts to offence under Section 376(2)(f) of IPC and not merely an attempt to rape or unnatural offence, under Section 377 IPC. The conviction is therefore, only sustainable. The appellant, however, requests for reducing the sentence. The sentence imposed on appellant is to undergo rigorous imprisonment for 10 years and to pay fine of Rs.25,000/- and in default to undergo one year imprisonment. 36. The offence under Section 376(2)(f) of IPC is rape on a child under 12 years of age. The proviso to Section 376 (2) of IPC permits imposing sentence lesser than 10 years, for [Crl.A.153/2010] 17 adequate and special reasons to be mentioned in the judgment. However, the offence under Section 376(2) of IPC is punishable with rigorous imprisonment for a term