JUDGMENT
Mahesh Grover, J.
1. This is an appeal against the judgment of the Additional Sessions Judge, Kapurthala, dated 11-2-1999 by which the appellants Kuldeep Kumar and Avtar Singh were convicted and sentenced under the provisions of Section 376(g) of the Indian Penal Code (for short IPC) to undergo imprisonment for a period of 10 years and to pay a fine of Rs. 500/- each. In default of payment of fine, they were directed to undergo further RI for 3 months.
2. The occurrence in this case is said to have taken place on 1-10-1997 at about 9-30 p.m. when the prosecutrix aged about 13 years was forcibly lifted by the appellants when she had stepped out of her house to urinate. Avtar Singh is said to have gagged her mouth and thereafter he forcibly undressed her and committed sexual intercourse with her. Kuldeep Kumar also subjected her to rape. Harbhajan Kaur mother of the prosecutrix is said to have come to the house where the prosecutrix was locked in a room and upon her knocking at the door, the accused fled away after opening it.
3. An FIR is said to have been lodged on 3-10-1997 when the father of the prosecutrix returned back from Ludhiana where he had gone. Upon the lodging of the FIR on the statement of the prosecutrix, a case under Sections 376/342/34, IPC was registered against them.
4. After completion of the investigation, the police submitted a challan against the appellants pursuant to the provisions of Section 173, Cr. P.C. before the Court of JMIC, Phagwara, who committed the case to the Sessions Judge at Kapurthala.
5. Accordingly, the appellants were charged for having committed the offence under Section 376(g), IPC to which they pleaded not guilty and claimed trial.
6. In order to establish the charge against the appellants, the prosecution examined as many as 10 witnesses which included the testimony of the Medical Officer of Civil Hospital, Phagwara, who was examined as P.W. 2 as also the evidence of Dr. Jasmit Walia, Radiologist who was examined as P.W. 4.
7. The report of the Chemical Examiner was also produced in evidence as Exhibit PD.
8. In the statement recorded under Section 313, Cr. P.C. the appellants pleaded false implication and contended that on 2-10-1997 Sohan Singh, son-in-law of Prakash Ram, father of Avtar Singh alias Tari came from Zira to his in-laws at Jamalpur. Ram Parkash, father of the prosecutrix under the influence of liquor had an altercation with Sohan Singh, pursuant to which he is said to have suffered some injuries. In order to pre-empt any legal action by Sohan Singh, father of the prosecutrix lodged the present FIR against the appellants.
9. After perusal of the evidence before it, the trial Court came to the conclusion that the appellants were guilty of having committed the offence under Section 376(g) and convicted and sentenced them as detailed above.
10. The appellants aggrieved by the aforesaid conviction and sentence awarded to them by the trial Court have preferred the instant appeal.
11. It was contended by the learned Counsel for the appellants that the medical examination in the shape of testimony of P.W. 2 clearly ruled out the commission of offence of rape and at best if the statement of the prosecutrix is to be read along with the evidence of P.W. 2, it would establish an attempt to commit rape and, therefore, the offence would have to be read along with Section 511, IPC.
12. On the other hand, learned Counsel for the State contended that a reading of the testimony of the prosecutrix, who is of tender age of 13 years, does not suggest any exaggeration in the prosecution version and in view of this, no corroborative evidence is required to establish the guilt of the appellants.
13. I have heard the learned Counsel for the parties and have perused the record.
14. The testimony of Jaswinder Kaur, Medical Officer, P.W. 2 shows that there were no marks of injury on the person of the prosecutrix. She further went on to state that there is no sign suggestive of sexual intercourse having been committed with the prosecutrix and thereafter opined that an attempt for sexual intercourse cannot be ruled out. She also testified that the report of the Medical Examiner did not establish the presence of any semen.
15. The age of the prosecutrix according to her own showing is about 13 years whereas the report of Radiological Examiner establishes her age to be between 14 to 16 years. There is a categoric denial by Dr. Jasmit Walia, P.W. 4 when suggestions were put to her that the age of the prosecutrix could be 18 years. Having regard to the aforesaid evidence, the age of the prosecutrix was concededly less than 16 years of age which would imply that her consent was immaterial if she had been subjected to sexual intercourse.
16. In this view of the matter, when the medical opinion does not conclusively establish the sexual intercourse, the testimony of the prosecutrix has to be examined with great circumspection and care. This is more so because the appellants have pleaded false implication on account of some animosity resulting from an incident immediately preceding the present occurrence.
17. A perusal of the testimony of the defence witnesses reveals that they were related to appellants and interested witnesses and as such their testimony has to be viewed as being tainted more so when no such complaint was ever lodged with the police regarding the incident in which the father of Avtar Singh is said to have suffered some injury. That apart, it is not expected of a parent to make his daughter face the allegation of rape and that too a girl of such a tender age of 13 years. The plea of false implication, therefore, falls flat on its face.
18. Now to examine the testimony of the prosecutrix who appeared as P.W. 5, she has categorically stated that she was forcibly taken to the house of Kuldeep Kumar appellant by Avtar Singh alias Tari who had gagged her mouth and had also tied her arms. She is also consistent in her testimony that Tari had undressed her and forcibly raped her and then Kuldeep Kumar followed suit. She was subjected to confinement for a period of two and a half hours and was discovered in a naked condition by her mother. She also testified that her blood stained salwar was washed by her mother which deprived the prosecution of the crucial evidence.
19. Picking up the strains from the testimony of the prosecutrix, it is amply clear that there was absolutely no reason or motive for her to falsely implicate the appellants.
The Hon’ble Supreme Court in State of Rajasthan v. Biram Lal and State of M. P. v. Dayal Sahu has held that in offences such as these if the evidence of the prosecutrix is inspiring enough and then even if the circumstantial evidence is not so conclusive, the conviction can still be based solely on such a testimony of the prosecutrix. Needless to say that each case has to be examined in its own perspective to come to such a conclusion. In Dayal Sahu’s case (supra) it was held as under:
14. A plethora of decision by this Court as referred to above would show that once the statement of the prosecutrix inspires confidence and is accepted by the Courts as such, conviction can be based only on the solitary evidence of the prosecutrix and no corroboration would be required unless there are compelling reasons which necessitate the Courts for corroboration of her statement. Corroboration of testimony of the prosecutrix as a condition for judicial reliance is not a requirement of law but a guidance of prudence under the given facts and circumstances. It is also noticed that minor contradictions or insignificant discrepancies should not be a ground for throwing out an otherwise reliable prosecution case. Non-examination of doctor and non-production of doctor’s report would not be fatal to the prosecutrix case, if the statements of the prosecutrix and other prosecution witnesses inspire confidence. It is also noticed that the Court while acquitting the accused on benefit of doubt should be cautious to see that the doubt should be a reasonable doubt and it should not reverse the findings of the guilt on the basis of irrelevant circumstances or mere technicalities.”
In Biram Lal’s case (supra) the Hon’ble Supreme Court held in para 15 as under:
15. …It is not the law that in every case version of the prosecutrix must be corroborated in material particulars by independent evidence on record. It all depends on the quality of the evidence of the prosecutrix. If the Court is satisfied that the evidence of the prosecutrix is free from blemish and is implicitly reliable, then on the sole testimony of the prosecutrix, the conviction can be recorded. In appropriate cases, the Court may look for corroboration from independent source or from the circumstances of the case before recording an order of conviction….
20. The Supreme Court in Dayal Sahu & Biram Lal’s case (supra) has held that if the testimony of the prosecutrix is trustworthy, the Court need not look for other corroborative evidence to conclude that rape has been committed or not on her. The testimony of the prosecutrix, a young girl of 13 years is, in the opinion of this Court, trustworthy in the absence of any cogent evidence to suggest false implication of the appellants. The participation in the offence by the appellants is, therefore, conclusively established.
21. Even the learned Counsel for the appellants had by implication of his argument admitted the complicity of the appellants as the argument raised was that the offence of rape had not been concluded and it was at best only an attempt which should be inferred from the evidence on record.
22. Having thus come to the conclusion that the appellants were indeed involved in the incident, this Court now embarks upon to examine as to what offence has been committed by the appellants and whether the offence under Section 376(g) has been committed by the appellants or that only an attempt was made as pleaded by the learned Counsel for the appellants. The crucial evidence in this regard would be the medical testimony of P.W. 2 Dr. Jaswinder Kaur who found no marks of injury on the person of the prosecutrix. She also categorically ruled out the presence of any sexual activity as the vagina admitted 2 fingers with great difficulty. No fresh abrasion or tear was noticed and no bleeding or redness or discharge from the hymen was seen. On the strength of this, she has categorically opined that only an attempt could have been made.
23. The probability of the prosecutrix who was a young girl with innocent frame of mind having not comprehended the complete sexual act which is also strengthened from the medical evidence on record, cannot be ruled out.
24. The Court is left with no option but to enter into the realm of the probabilities. It thus seems that even though the appellants had forcibly taken the prosecutrix to a room, confined her there for two and a half hours and undressed her with a complete intention of committing sexual intercourse upon her, had ultimately only succeeded in making an attempt in furtherance of their heinous crime.
25. The medical testimony completely belies completion of sexual act to establish the charge of rape against the appellants.
26. In Ramkirpal son of Shyamlal Charmakar v. State of Madhya Pradesh 2007 AIR SCW 2198 : (2007 Cri LJ 2302), the Supreme Court held as follows:
A culprit first intends to commit the offence, then makes preparation for committing it and thereafter attempts to commit the offence. If the attempt succeeds he has committed the offence; if he fails due to reasons beyond his control, he is said to have attempted to commit the offence. Attempt to commit an offence can be said to begin when the preparations are complete and the culprit commences to do something with the intention of committing the offence and which is a step towards the commission of the offence. The moment he commences to do an act with the necessary intention, he commences his attempt to commit the offence. The word “attempt” is not itself defined, and must, therefore, be taken in its ordinary meaning. This is exactly what the provisions of Section 511 require. An” attempt to commit a crime is to be distinguished from an intention to commit it and from preparation made for its commission. Mere intention to commit an offence, not followed by any act cannot constitute an offence. The will is not to be taken for the deed unless there be some external act which shows that progress has been made in the direction of it, or towards maturing and effecting it. Intention is the direction of conduct towards the object chosen upon considering the motives which suggest the choice. Preparation consists in devising or arranging the means or measure necessary for the commission of offence. It differs widely from attempt which is the direct movement towards the commission after preparations are made. Preparation to commit an offence is punishable only when the preparation is to commit offences under Section 122 (waging war against the Government of India) and Section 399 (preparation to commit dacoity). The dividing line between a mere preparation and on attempt is sometimes this and has to be decided on the facts of each case. There is greater degree of determination in attempt as compared with preparation….
The sine qua non of the offence of rape is penetration and not ejaculation. Ejaculation without penetration constitutes an attempt to commit rape and not actual rape. Definition of “rape” as contained in Section 375, IPC refers to “sexual intercourse” and the explanation appended to the Section provides that penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape. Intercourse means sexual connection. In the instant case that connection has been clearly established, Courts below were perfectly justified in their view.
27. In view of the aforesaid, the conviction of the appellants is hereby modified from Section 376(g) to that under Section 376(g) read with Section 511, IPC.
28. Consequently, the sentence is to be toned down accordingly. The appellants are, therefore, directed to undergo RI for a period of 5 years.
29. However, keeping in view of the dastardly and the brazen act by which the appellants violated the innocence of a 13 year old girl, they shall also be required to pay a fine of Rs. 30,000/- each to the parents of the prosecutrix to be disbursed to the prosecutrix. In the event of failure of the appellants to deposit the aforesaid fine within a period of 4 months from today, they shall further be directed to undergo RI for one year.
30. With the aforesaid modification, this appeal stands disposed of