9911796707
TMI Blog1992 (4) TMI 256X X X X Extracts X X X X X X X X Extracts X X X X ..... ce Richa Dubey, who is the daughter of the respondent's step-brother Niraj Dubey, in Adarsh Nagar, Jabalpur. His father Bhagwan Dass Dubey (DW-2) was a retired Professor and his sister-in-law Tara Dubey (DW-1) was a lecturer. His another elder brother at the relevant time of this occurrence was working as Superintendent of Police in Rajgarh District. Opposite to his house at some distance Satish Bhasin (PW-9) and Sapna Bhasin (PW-10) were residing with their minor daughter Priti. Within the same locality 3 or 4 houses away from the house of the respondent/accused, the appellant Madan Gopal Kakad (PW-5) was living with his wife, a German lady, by name, Elesabeth Kakad (PW-6), his sister Veera (PW-7) and his minor daughter Tulna Sheri (PW-13), a girl aged about 8 years and his younger son Pulkit. The family members of the respondent and PW-5 were on cordial relationship making frequent visits to the houses of each other. Tulna Sheri (PW-13) the unfortunate victim in this case was studying in the third standard in St. Joseph Convent along with her class-mate Richa Dubey. Tulna used to come frequently to the house of the respondent to play with Richa Dubey and her other girl fri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dent was a dirty fellow and he had asked her to suck his private part, to which PW-6 instructed not to go to the house of respondent thereafter. However, Tulna did not narrate the entire episode to her mother on the day of the incident evidently out of fear. When Tulna again narrated this incident to Richa, the latter told her that her Chacha, referring to respondent, was like a dog and that he used to do the same thing with her also by stripping of her whenever she came from the school and whenever she was lying on her bed and further told that the respondent when asked as to why Tulna and Priti are in fair complexion, her chacha replied that their complexion is fair because they sucked his male organ and that if Richa also did the same thing she would also become very fair in her complexion. PW- 12, Tarun Lata Joshi, who was present nearby seeing Tulna and Richa whispering each other asked them what was the matter. Tulna narrated the incident to her and other girl friends. On the next day, seeing the respondent standing near the gate of his house Tulna repeated the same remark to her mother (PW-6). Thus on the third day, Tulna told her mother the entire incident which took place ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st abjured his complicity, however, admitted his abominable crime of sexual assault on Tulna. Thereupon Bhagwan Dass gave his stick to Madan Gopal and said that it was for PW 5 either to show mercy or to give corporeal punishment as he deemed fit and also made an earnest appeal to PW-5 not to precipitate any action against his son. Presumably, PW-5 and his family members thinking that the police might not take any action against the respondent since his brother was a Superintendent of Police and his family was wielding a high influence in that area and also fearing that any publicity of this incident would bring only a disrepute to their family and that the future life of their daughter would be completely shattered, suffered in silence for 2 or 3 days, without approaching any authority. However, on 7.9.1982 PW- 5 mustered his strength and decided to lodge a criminal complaint against the respondent. Accordingly, he handed over a written complaint Ext. P-7 to his friend. Subhash Bhujbal (PW-8) and got it delivered at the police station. On the strength of Ext. P-7 a case was registered by the SHO of Goprakhpur Police Station (PW-11) and the investigation was entrusted to ASI (PW-14 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... incident even though Tulna reported to her mother that the respondent was a bad man and that he asked her to suck his penis, she did not reveal the other part of the incident relating to the commission of the rape obviously fearing that her parents would beat her. It was only on the third day, the mother (PW-6) came to know from Tulna about the actual incident, presumably after the victim girl started reporting this incident to PW-12 and to her other playmates. The second category of evidence is the extra-judicial confession made by the respondent before PWs 5, 6, 7, 9 and 10 in the house of the respondent himself after he had been sent for from the cinema hall. According to the above witnesses, this confession was made not only in their presence, but also in the presence of the respondent's brother and sister-in-law (DW-1). (It is but natural that the brother and sister-in-law of the respondent would not figure as witnesses on the side of the prosecution and depose against the respondent.) According to the witnesses the confession made by the respondent was thus: I have raped the girl, but I have not ruptured her hymen. You should not be perplexed, I know what are my limi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sion No. 599/83 was registered. The High Court disposed of the State appeal and the two criminal revisions by a common judgment, whereby it allowed the State appeal for the reasons assigned therein accepting the oral testimony of the prosecution witnesses particularly of PWs 6, 12 and 13 and the extra- judicial confession made by the respondent. Now separate orders were passed in the criminal revisions. However, the High Court found the respondent guilty of the offence only under Section 354 IPC and sentenced him to pay a fine of ₹ 3,000, in default to suffer simple imprisonment for 6 months and also directed a sum of ₹ 2,000 out of the fine amount if collected to be paid over as compensation to PW-5. The State has not preferred any appeal before this Court. However, the father of the victim girl, namely PW-5, feeling aggrieved by the judgment of the High Court has filed this criminal appeal mainly on two grounds, namely, (1) The High Court has erred in finding the respondent guilty of a minor offence under Section 354 IPC when all the necessary ingredients to constitute an offence punishable under Section 376 IPC have been satisfactorily established; (2) that the se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce of his family members in his own house......................The confession was nothing but by way of repentance for the wrongs done to the young girls and other girls. It appears that the respondent was a perverted person and was satisfying his sexual urge by outraging modesty of young girls who fell easy prey to his designs. 5. Commenting on the finding of the Trial Court as regards the confession, the High Court has said, The evidence of extra-judicial confession has not been accepted because the witnesses have not repeated like parrots in the same words what the respondent had uttered but the substance is the same i.e. the respondent confessed that he had violated (sic) the girl but not ruptured her hymen. Whether the witnesses said the same thing in Hindi or English would not make any difference . 6. Coming to the probity question of the evidence of Tulna, the Court said thus: Although she was a child, she had modesty alright and was ashamed to tell everything to her mother. She was also not sure what would be the reaction of her mother. Therefore, there was hesitation on her part. But she did tell to her classmate Richa and also to her friend Tarunlata (PW 12) a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... would like to point out that the trial court has allowed some inadmissible evidence to be let in by the prosecution which evidence has also been taken note of and discussed by the Courts below, such as the statement alleged to have been made by Richa (not examined) to Tulna about the respondent's abnormal sexual behaviour with her despite the fact she falls within the prohibited degree of consanguinity and the evidence touching the character of the respondent that he has sexually assaulted not only Richa and Priti but also a number of minor girls. We, while analysing and evaluating the evidence and considering the findings of the High Court quo the sexual assault committed on PW 13 by the respondent, proceed only on the basis of the evidence legally permissible without being influenced by the inadmissible evidence and some of the observations made thereon by the Courts below. Before expressing our independent opinion on the evidence, we give a brief background of the status of the witnesses and the cordial relationship between the family members of the respondent and the witnesses. The material prosecution witnesses are all highly educated and respectable people of the same ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thrown overboard and which in fact did not find acceptance at the hands of the High Court. Ms Pinky Anand, the learned counsel appearing for the appellant having thoroughly marshalled the facts, presented her persuasive submissions so eloquently in an effective and at the same time in a very supplicatory manner by taking us through the entire evidence very meticulously and pleaded that the spine-chilling facts and the circumstances surrounding the case do demand the interference of this Court with the judgment of the High Court so that the wrong done due to the erroneous conclusion of the High Court may be remedied. Though Ms Pinky Anand initially put forth her arguments on two alternative grounds, namely, that the conviction should be altered into one under Section 376 IPC or the sentence of fine imposed for the conviction under Section 354 IPC which is grossly inadequate should be enhanced. But she left out the alternative argument and stressed the first part of her submission that the offence made out is nothing short of rape punishable under Section 376 IPC. At one point of time, she feebly stated that at least the offence will be falling under Section 376 read with 511 I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rge against the respondent by involving his own minor daughter Tulna in such unsavoury incident for nothing not caring about her future and his own reputation and honour. There is no reason as to why a small innocent girl would have laid such a serious charge against the respondent, if it was not true. In our considered view, the High Court was not at all justified in reaching a distorted conclusion which has resulted in miscarriage of justice. On a careful scanning of the entire records, we have no reservation in accepting the evidence of PW-13 in its entirety and the extra-judicial confession of the respondent which clearly makes out a case for an offence under Section 376 IPC, the reasons for which we will discuss infra. There are a series of decisions to the effect that even in cases wherein there is lack of oral corroboration to that of a prosecutrix, a conviction can be safely recorded, provided the evidence of the victim does not suffer from any basic infirmity, and the `probabilities factor' does not render it unworthy of credence, and that as a general rule, corroboration cannot be insisted upon, except from the medical evidence, where, having regard to the circ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s trial; (3) the right of the accused to the benefit of any doubt; and (4) the slowness of an appellate court in disturbing a seeing the witnesses. In Wilayat Khan Others v. State of U.P., AIR 1953 S.C.122 this Court while examining the scope of Sections 417 and 423 of the Code pointed out that even in appeals against acquittal, the powers of the High Court are as wide as in appeals from convictions. See also Surajpal Singh and others v. The State, [1952] SCR 193; Tulsi Ram v. The State, AIR 1954 S.C.I; Aher Raja Khima v. State of Saurashtra, AIR 1956 S.C. 217 = [1955]2 SCR 1285; Radha Kishan v. State of U.P., AIR 1963S.C.822 = [1963] Supp. 1 SCR 408 holding that an appeal from acquittal need not be treated different from an appeal from conviction; Jadunath Singh and others, etc. v. State of Uttar Pradesh, [1971] 3 SCC 577; Dharam Das v. State of U.P., [1973] 2 SCC 216; Barati v. State of U.P., [1974] 4 SCC 258 and Sethu Madhavan Nair v. State of Kerala, [1975] 3 SCC 150. We think it not necessary to swell this judgment by recapitulating all the decisions on this point, but suffice to say that this Court has consistently taken the view that in cases of appeals against acqu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ears old, on examining the victim after 5 days of the incident i.e. 7.9.82 has given her opinion as follows: From the above findings, it seems an attempt to rape has been made. In the cross-examination, the following answer is brought out from the medical officer, PW 4: I concluded about attempt to rape, on account of abrasion and redness on labia majora and minora respectively. It is true that this medical officer who could not have gained much experience by that time has given her opinion that the abrasion found would have been less than 2 days' duration which opinion of course is not precise but approximate and probable. Though the prosecutor who conducted the case before the trial court has not put any question clarifying her opinion in the re-examination, it has been clearly brought out in the cross-examination itself that the medical officer was basing her opinion on the abrasion found on labia majora and minora. It means that the medical officer was of the opinion that the abrasion measuring one and a half inches in length found on the medial side of the labia majora and the redness around the labia minora could have been caused even on 2.9.82. By this o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eed difficult for any Doctor to say with precision and exactitude as to when a particular injury was caused......as to the exact time when the appellants may have had sexual intercourse with the prosecutrix. We feel that it would be quite appropriate, in this context, to reproduce the opinion expressed by Modi in Medical Jurispurdence and Toxicology (Twenty First Edition) at page 369 which reads thus: Thus to constitute the offence of rape it is not necessary that there should be complete penetration of penis with emission of semen and rupture of hymen. Partial penetration of the penis within the Labia majora or the vulva or pudenda with or without emission of semen or even an attempt at penetration is quite sufficent for the purpose of the law. It is therefore quite possible to commit legally the offence of rape without producing any injury to the genitals or leaving any seminal stains. In such a case the medical officer should mention the negative facts in his report, but should not give his opinion that no rape had been committed. Rape is crime and not a medical condition. Rape is a legal term and not a diagnosis to be made by the medical officer treating the victim. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re Anthony, AIR 1960 Mad. 308 it has been held that while there must be penetration in the technical sense, the slightest penetration would be sufficient and a complete act of sexual intercourse is not at all necessary. In Gour's The Penal Law of India 6th Edn. 1955 (Vol. II) Page 1678, it is observed, Even vulval penetration has been held to be sufficient for a conviction of rape. Reference also may be made to Prithi Chand v. State of Himachal Pradesh, [1989] 1 SCC 432 though the facts therein are not similar to this case. In the case on hand, there is acceptable and reliable evidence that there was slight penetration though not a complete penetration. The following evidence found in the deposition of PW 13 irrefragably proves the offence of rape committed by the respondent: Nawal uncle untied his pyjama and took out his male organ and put it inside my vagina and clutched me...........Nawal Chacha put his male organ inside my vagina and since it was fat it kept slipping out. After that my vagina was paining. .....When Nawal Uncle held apart, then there was some white liquid coming out from his male organ... .......... Nawal Chacha pressed my mouth so I c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the Government Advocate did not address on the question of sentence. The High Court thought of imposing fine only on the ground that the respondent is now gainfully employed and there is nothing to show that he is indulging in his nefarious activities . We regret to say that we are not able to understand the above reasons which are not in conformity with the concept of sentencing policy in a grave case of this nature. We are told at the bar that the victim who is now 19 years old, after having lost her virginity still remains unmarried undergoing the untold agony of the traumatic experience and the deathless shame suffered by her. Evidently, the victim is under the impression that there is no monsoon season in her life and that her future chances for getting married and settling down in a respectable family are completely married. Though the State has kept silence after the disposal of the appeal by the High Court, the helpless panic stricken father of the victim (PW 13) with a broken heart has entered the portals of this Court and is tapping the door, crying for justice. It will be appropriate to refer the following observation of Ranganath Mishra, J (as he then was) ..... X X X X Extracts X X X X X X X X Extracts X X X X
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