IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 1361 of 2002()
1. SURESH, S/O. DIVAKARAN,
... Petitioner
Vs
1. STATE OF KERALA, REPRESENTED BY PUBLIC
... Respondent
For Petitioner :SRI.PIRAPPANCODE V.SREEDHARAN NAIR
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
Dated :09/07/2010
O R D E R
M.SASIDHARAN NAMBIAR,J.
===========================
CRL.R.P.No. 1361 OF 2002
===========================
Dated this the 9th day of July,2010
ORDER
Petitioner was convicted and sentenced for
the offence under section 376 of Indian Penal
Code by Assistant Sessions Judge, Nedumangad in
S.C.147/2005 which was confirmed by the
Additional Sessions Judge, Thiruvananthapuram
in Crl.A.372/1996. Prosecution case is that
PW1 who was aged seven years, was studying in
second standard. She lost her mother. Her
father after second marriage was residing
separately. She was living with PW3 her
grandmother though not the direct grandmother,
and PW4 the sister of her father. On 13.4.1994
at about 1.30 p.m. petitioner came towards
their house and enquired to PW4 where was PW1,
under the guise that she could be given dates
to eat. PW4 called PW1. Petitioner asked PW1
Crl.R.P.1361/2002 2
to follow him to his house promising to give
dates. On reaching the house, petitioner made PW1
to enter his room. Thereafter she was made to lie
on the coat. Petitioner removed her under garments
and thereafter committed rape on her. When she
cried, petitioner made her to sit on his lap and
tried to have penal penetration. There was bleeding
from her vagina. Petitioner threatened her not to
disclose it to anybody. PW1 washed her private
parts and went to her house. She did not disclose
it to anybody. On 15.4.1994 she felt pain and also
difficulty to pass urine. She was thus compelled
to disclose it to PW3. She in turn along with PW4
took her to Primary Health Centre, Kanyakulangara.
PW2 the doctor examined her and prepared Ext.P2
wound certificate. she was admitted as an
inpatient. On getting information from the
hospital, PW8 the Head Constable of Vattappara
Police Station reached the Hospital and recorded
Ext.P1 First Information Statement based on which
crime was registered under Ext.P1 F.I. statement
Crl.R.P.1361/2002 3
for the offence under section 511 of 376 of Indian
Penal Code. PW9, the Sub Inspector of Police
investigated the case prepared Ext.P3 scene mahazar
and recovered M01, the bed sheet from the house
of the petitioner under Ext.P4 and also M0s 2 to 4
the dresses worn by PW1 at the time of incident
under Ext.P5 mahazar. PW10, the Circle Inspector
of Police, Venjaramood took over the investigation.
On investigation he found that the offence
committed is under section 376 of Indian Penal
Code. He submitted Ext.P9 report incorporating the
offence under section 376 of Indian Penal code. He
arrested the petitioner on 11.11.1994 and got him
examined by PW6 the Civil Surgeon, who issued
Ext.P6 potency certificate. After completing the
investigation charge for the offence under section
376 of Indian Penal code was laid, which was taken
cognizance and committed to the Sessions court.
Sessions Judge took the case on file and made it
over to the Assistant Sessions court, Nedumangad.
When charge for the offence under section 376 of
Crl.R.P.1361/2002 4
Indian Penal Code was framed and read over,
petitioner pleaded not guilty. Prosecution
examined Pws. 1 to 10 and marked Exts.P1 to P9 and
identified M0s 1 to 3. Though petitioner was
called upon to enter on his defence and adduce
evidence, he did not adduce any evidence.
2. Learned Assistant Sessions Judge on the
evidence held that evidence of PW1 corroborated by
PW2 establish that petitioner committed rape on PW1
a minor girl. After hearing the petitioner on the
question of sentence he was sentenced to rigorous
imprisonment for five years and a fine of Rs.5000/-
and in default rigorous imprisonment for a further
period of one year. Learned Sessions Judge in the
appeal reappreciated the evidence and found that
evidence of PW1 is trustworthy and reliable. He
confirmed the conviction and sentence for the
offence under section 376 of Indian Penal Code.
Revision is filed challenging the conviction and
sentence.
3. Learned counsel appearing for the
Crl.R.P.1361/2002 5
petitioner and the learned Public Prosecutor were
heard.
4. Learned counsel argued that courts below
did not appreciate the evidence in the proper
perspective. It was contended that though the
incident allegedly occurred on 13.4.1994, Ext.P1
First Information Statement was furnished only on
19.4.1994 and the inordinate delay was not properly
appreciated and on the evidence it should have been
found that the case of rape was subsequently
developed. Learned counsel pointed out that as per
Ext.P2 wound certificate, PW1 was admitted in the
hospital only on 18.4.1994 and was discharged on
22.4.1994 and the evidence of PW2, the doctor
establishes that there was no injury warranting
her admission or treatment as an inpatient for
seven days and in the nature of the case it is
clear that there is manipulation. It was pointed
out that Ext.P2 shows that the alleged cause of
injury is finger manipulation of external genital
by a man and not rape and till 19.4.1994 when
Crl.R.P.1361/2002 6
Ext.P1 First Information Statement was recorded,
there was no case of any rape and the entry in
Ext.P2 is made to support the prosecution case that
PW1 was under treatment when Ext.P1 First
Information Statement was recorded. Learned
counsel argued that the evidence of PW2 establishes
that there was no symptom of rape and when she was
asked whether she could find any sign of rape she
stated that there was no other sign of rape and
that answer was wrongly misinterpreted by the
courts below. It was argued that if a seven year
old girl was raped and that too with complete
penetration as deposed by PW1, there was
necessarily injuries on the private part of PW1
and Ext.P2 wound certificate does not show that
there was any such injury which should have been
there if the male organ of a thirty year old man
had entered into the vagina of PW1 as claimed by
her and in such circumstances, courts below should
not have relied on the evidence of PW1 to prove
that there was rape. Learned counsel argued that
Crl.R.P.1361/2002 7
entries regarding the date of admission and
discharge in Ext.P2 are in a different ink and
were created later and the prosecution case as such
cannot be believed. Leaned counsel also argued
that if necessary an opportunity may be granted to
further cross examine PW2 and to get the records
regarding the treatment of PW1 as an inpatient in
the hospital. Learned counsel also argued that the
evidence of PW1 shows that it is tutored version
and in such circumstances without corroboration her
evidence should not have been accepted. Learned
counsel argued that the medical records do not
support the evidence of PW1 and there is no
scientific evidence to establish the presence of
spermatozoa inside the vagina of PW1 or in the
dress worn by PW1 at that time or on the bed sheet
used while PW1 was allegedly raped and in such
circumstances, courts below should not have
convicted the petitioner.
5. Learned Public prosecutor pointed out that
the delay in lodging the First Information
Crl.R.P.1361/2002 8
Statement has to be appreciated in the background
of the case and that too bearing in mind that PW1
is a rustic girl who lost her mother and father is
living with his second wife separately. It was
pointed out that a rustic grandmother like PW3
would not like the case of rape being published
which would ultimately effect the future life of
the child and adversely affect the name of the
family and in such circumstances the non disclosure
of the factum of rape to the police immediately is
not fatal. It was pointed out that when the
statement of PW1 was recorded on 19.4.1994, she has
narrated the entire facts and her oral evidence
from the box fully corroborated that version and
there is no reason to disbelieve the evidence of
PW1. Learned Public Prosecutor relying on the
decision of the Apex Court in Bharwada Bhoginbhai
Hirjibai v. State of Gujarat (AIR 1983 SC 753)
argued that the position of PW1 is above that of
an injured and when the evidence of PW1 inspire
confidence, no corroboration is necessary and even
Crl.R.P.1361/2002 9
if assurance from other materials or evidence is
necessary, Ext.P2 wound certificate shows that
inspite of the fact that her examination was after
two days from the date of the incident, there was
redness on the vagina and it furnishes assurance
to the evidence of PW1 that she was raped by
petitioner. Learned Public Prosecutor pointed out
that when petitioner did not challenge the
evidence of PWs.1 and 2 with regard to the
treatment of PW1 as an inpatient in the hospital
and no question was put based on the entries
regarding the admission and discharge seen in
Ext.P2, it is futile for the petitioner to develop
a case based on Ext.P2 for the first time before
the revisional court and there is no necessity to
call for the records regarding the treatment of
PW1 as an inpatient or further examination of PW2.
It was argued that the evidence was properly
appreciated by the courts below and there is no
reason to interfere with the conviction.
6. The evidence of PW1 corroborated by her
Crl.R.P.1361/2002 10
Ext.P1 First Information Statement is that she was
subjected to rape at the house of the petitioner at
about 1.30 p.m. on 13.4.1994. The evidence of PW1
is that as petitioner threatened her not to
disclose the incident to anybody she did not
disclose the incident to others including PW3 or
PW4 . Her case is that after two days she felt
difficulty for urinating and also pain on her
abdomen. In such circumstances PW1 had to disclose
that fact to PW3. PW3 took PW1 to the Primary
Health Centre from where PW2 the doctor examined
her and prepared Ext.P2 wound certificate.
Evidence of PW2 establish that it was not disclosed
to PW2 that PW1 was subjected to rape or even an
attempt to commit rape. On the other hand, the
alleged cause of injury recorded in Ext.P2, though
this was not spoken to by PW2 as it was omitted to
be put to the witness either by the prosecutor or
the Judge is that ” finger manipulation of
external genital by a man”. As there was no
allegation of rape or attempt to commit rape, PW2
Crl.R.P.1361/2002 11
did not conduct a proper examination of PW1 as
would have been done in the case of a rape or
attempt to commit rape. PW2 did not even verify
whether hymen of PW1 was torn or whether there was
any injury to the hymen, evidently because she was
not informed about the allegation of rape. The
injury noted in Ext.P2 as deposed by PW2 is
“redness of vagina”. It is also recorded that PW1
had complained pain on abdomen and difficulty in
passing urine. The evidence of PW8, the Head
Constable with the evidence of PW1 establishes that
on getting information about the admission of the
petitioner at Primary health Centre on sexual
assault, PW8 proceeded to the hospital and reached
there at 4 p.m on 19.4.1994 and recorded Ext.P1
First Information Statement. In Ext.P1 First
Information statement PW1 has narrated the entire
incident, which was deposed by PW1 from the
witness box. There is no contradiction in her
evidence from the box to the version disclosed in
Ext.P1 First Information Statement.
Crl.R.P.1361/2002 12
7. The argument of the learned counsel is that
as the factum of committing rape was not disclosed
to the doctor and instead it was alleged that there
was finger manipulation of external genital by a
man in Ext.P2 wound certificate, it is to be found
that the case of rape was subsequently developed.
It is for that purpose learned counsel argued that
PW1 was subsequently admitted on 18.4.1994 as seen
from Ext.P2 to corroborate the statement in Ext.P1
that it was recorded while PW1 was being treated as
an inpatient in the hospital. As rightly pointed
out by the learned Public Prosecutor Ext.P2 wound
certificate was available with the counsel
appearing for the petitioner before the Sessions
Court when PW2 was examined. Still the counsel did
not cross examine PW2 with regard to the entries of
admission and discharge shown in Ext.P2. Ext.P2
shows that entire writings including the signature
in Ext.P2, except the date of admission as
18.4.1994 and date of discharge as 22.4.1994 are in
one and same handwriting, and ink. Evidently they
Crl.R.P.1361/2002 13
were written on 15.4.1994 when PW1 was examined.
Therefore entry in Column No.15 that the patient w
admitted was recorded along with the entry in the
other columns on 15.4.1994 at 9 a.m. Therefore I
have no doubt on the fact that PW1 was admitted in
the hospital on 15.4.1994 itself. It is more so,
when the evidence of Pws.1 and 3 on that aspect was
not challenged in cross examination and there was
no case for the petitioner before the trial court
or the appellate court that PW1 was not admitted in
the hospital on 15.4.1994 but was admitted only
subsequently for developing the case to one under
section 376 of Indian Penal Code.
8. The Supreme Court had occasion to consider
the failure in reporting the factum of rape,
When the doctor examined the prosecutrix in Madan
Lal v. State of Jammu and Kashmir JT (1997 (7) SC
357). That was a case where a IXth standard
student was subjected to rape by the Headmaster of
the school after she was made to go to his house on
21.5.1986. The prosecutrix was examined by the
Crl.R.P.1361/2002 14
doctor on 23.5.1986 and the doctor did not find any
mark of violence on any part of her body and on
local examination there was no mark of violence on
her private parts like vagina and the hymen was
intact. As argued by the learned counsel in this
case, reliance was placed on the evidence of
prosecutrix to the effect that there was
penetration to the extent of one inch, though when
cross examined she pointed out that depth as one
quarter of an inch or one quarter of inch and it
was argued that if there was penetration, hymen
would not have been intact. Their Lordships
cautioned that evidence is to be appreciated in
the light of the experience of a young girl who was
being subjected to sexual harassment for the first
time and too much cannot be imputed to her evidence
regarding penetration. The Supreme Court in
Bharwada Bhoginbhai Hirjibhai v. State of Gujarat
(AIR 1983 SC 753)considering the unsophisticated
society where a girl or woman in the tradition
bound non-permissive society of India would be
Crl.R.P.1361/2002 15
extremely reluctant even to admit that any incident
which is likely to reflect on her chastity had over
occurred, as she would be conscious of the danger
of being ostracized by the society or being looked
down by the society including by her own family
members, relatives, friends and neighbours, held
that she would feel extremely embarassed in
relating the incident to others being overpowered
by a feeling of shame on account of the upbringing
in a tradition bound society where by and large sex
is a taboo. Their Lordships held:-
“The parents of an unmarried
girl as also the husband and
members of the husband’s
family of a married woman,
would also more often than
not,want to avoid publicity
on account of the fear of
social stigma on the family
name and family honour. The
fear of the victim herself
Crl.R.P.1361/2002 16
being considered to be
promiscuous or in some way
responsible for the incident
regardless of her innocence.”
So also a rustic woman will not be disclosing the
incident which would affect the name and honour of
the family to a doctor when the prosecutrix is
being examined . It is in such circumstances, the
failure to disclose the factum of rape as such, in
Ext.P2 wound certificate is to be appreciated .
The contention of the petitioner was that with
regard to the property dispute with PW4 a case was
foisted. It is clear that when PW1 was first
examined by the doctor it was not disclosed that
she was raped or that there was an attempt to
commit rape. It could be for the reason that Pws.3
and 4 who brought PW1 to the doctor might have
intended not to get publicity on rape and for that
reason it was reported that cause was finger
manipulation on the vagina by a man. Unfortunately
for the failure to disclose the true facts, the
Crl.R.P.1361/2002 17
doctor did not properly examine PW1 to find out
whether there was any injury on the vagina
including hymen.
9. I have gone through the entire evidence of
PW1, PW3 and 4, in the light of Ext.P1 First
Information Statement. I agree with the findings
of the learned Assistant Sessions Judge and the
learned Sessions Judge that evidence of PW1 is
trustworthy, credible and reliable. The question
is in such circumstance is whether it is necessary
to have any corroboration. The Supreme Court in
Bhoginbhai Hirjibhai’s case (supra) held that
corroboration is not a sine qua non for a
conviction in a rape case the refusal to act on
the testimony of a victim of sexual assault for
the absence of corroboration as a rule is adding
insult to injury and if the evidence of the
prosecutrix inspire confidence, no corroboration is
necessary. The position has been reiterated by the
Apex Court in State of Punjab v. Gurmitsingh
(1996) 2 SCC 384). It was held that a girl in a
Crl.R.P.1361/2002 18
tradition bound non-permissive society in India,
would be extremely reluctant even to admit that any
incident which is likely to reflect on her chastity
had occurred, being conscious of the danger of
being ostracized by the society or being looked
down upon by the society. Her not informing the
teachers or her friends at the examination centre
under the circumstances cannot detract from her
credibility. In the normal course of human conduct,
an unmarried minor girl, would not like to give
publicity to the traumatic experience she had
undergone and would feel terribly embarassed in
relation to the incident to narrate it to her
teachers and others and in such circumstances the
failure to report the incident not immediately is
to be appreciated. Their Lordships in Amankumar v.
State of Haryana (2004) 4 SCC 379 clarified the
position thus:-
“It is well settled that a
prosecutrix complaining of
having been a victim of the
Crl.R.P.1361/2002 19
offence of rape is not an
accomplice after the crime.
There is no rule of law
that her testimony cannot
be acted upon without
corroboration in material
particulars. She stands on
a higher pedestal than an
injured witness. In the
latter case, there is
injury on the physical
form, while in the former
it is both physical as well
as psychological and
emotional. However, if the
court of facts finds it
difficult to accept th
version of the prosecutrix
on its face value, it may
search for evidence, direct
or circumstantial, which
Crl.R.P.1361/2002 20
would lend assurance to her
testimony. Assurance,
short of corroboration as
understood in the context
of an accomplice, would
suffice.”
In B.C.Deva v. State of Karnataka (2007) 12 SCC
122) their Lordships held that the plea that no
marks of injuries were found either on the person
of the accused or the person of the prosecutrix,
does not lead to any inference that the accused has
not committed forcible sexual intercourse on the
prosecutrix. Though the report of the gynacologist
pertaining to the medical examination of the
prosecutrix does not disclose any evidence of
sexual intercourse, yet even in the absence of any
corroboration by medical evidence, the oral
testimony of the prosecutrix, which is found to be
cogent, reliable, convincing and trustworthy has to
be accepted.
10. On a proper analysis of the evidence of PW1
Crl.R.P.1361/2002 21
it is absolutely clear that the version given by
PW1 that petitioner called her to his house
promising to give dates to eat and made her lie on
the coat and removed her dress and laid on her is
cogent, reliable, convincing and trustworthy which
is to be accepted. The question then is what is
the offence committed. The argument of the learned
counsel is that as there is no evidence to prove
penetration, an offence under section 376 of Indian
Penal Code is not attracted. It was argued that
the evidence of PW1 is to be believed to hold that
there was complete penetration. If that be the
case, when she was examined by PW2 two days
thereafter there would have been sufficient data
establishing penetration and therefore an offence
under section 376 of Indian Penal Code is not
attracted. Learned counsel also argued that when
Ext.P2 wound certificate does not show any sign of
rape and evidence of PW2 also does not show that
there was any symptom of rape, the courts below
were not justified in finding commission of an
Crl.R.P.1361/2002 22
offence under section 376 of Indian Penal Code. As
stated earlier Ext.P2 shows the injury found on
PW1 was “redness on vagina, complaint of pain on
abdomen and difficulty in passing urine.” When PW2
was examined, she was asked whether the redness
noted on the vagina can be caused by an attempt of
penetration of penis into the vagina. She said it
could be. Learned counsel pointed out that the
Sessions Judge has recorded in the judgment that
this answer was given after taking time and answers
given by PW2 in cross examination rules out any
rape. The relevant portion of cross examination
reads:
“I got no information
regarding rape. On
examination you have not
noticed any signs of rape
(Q). No other signs(A). You
did not see any symptoms of
rape (Q) No (A) Redness of
vagina difficulty to pass
Crl.R.P.1361/2002 23
urine would be caused by
infection.”
11. The argument of the learned counsel is that
the answer given by PW2 was not properly
appreciated by the courts below and there was no
evidence of committing rape. Though PW2 was asked
whether there was any symptom of rape on PW1 and
she answered in the negative, it is not clear
that what symptom was intended by the counsel as
well as by the doctor is not clear. But the
earlier question is clear and that is whether PW2
had noted any sign of rape when PW1 was examined by
the doctor. It was answered by the doctor as no
other sign was noted. As rightly found by the
courts below that answer could only be that no
other sign that what was recorded in Ext.P2 was
noted. If that be so, the answer is that apart
from the redness on vagina and the complain of pain
on the abdomen and difficulty in passing urine,
there was no other sign. The question is whether
Crl.R.P.1361/2002 24
the redness of vagina and pain on the abdomen
answer would make the evidence of PW1 not
believable or reliable.
12. Though PW1 deposed that there was complete
penetration, it is clear that if PW1 a child aged
seven years was subjected to rape and there was
complete penetration of the male organ of a thirty
year old man into the vagina of a seven year old
girl, there would be rupture of hymen and injury
to the vagina, apart from the redness of vagina
noted by the doctor. Modi’s Medical Jurisprudence
& Toxicology twenty second edition at page 504
dealt with the examination and the findings of the
victim of a sexual offence. The relevant portion
reads:-
“In small children, the
hymen is not usually
ruptured, but may become
red and congested along
with the inflammation and
bruising of the labia. If
Crl.R.P.1361/2002 25
considerable violence is
used, there is often
laceration of fourchette
and perinaeum”.
In the light of the medical evidence, a complete
penetration into the vagina of PW1 can only be
ruled out. But the question is whether a complete
penetration is necessary and if not whether there
is sufficient evidence to constitute an offence
under section 376 of Indian Penal Code.
13. Explanation to Section 375 of Indian Penal
Code provides that penetration during sexual
intercourse is sufficient to constitute an offence
of rape. Question is what is penetration and
whether it is necessary to penetrate the entire
penis into the vagina or a partial penetration will
be sufficient. A Learned single Judge of this Court
in Mohammed v. State of Kerala (1987 (2) KLT 565)
held that partial penetration of the penis within
the labia majora of the vulva or pudendum with or
without emission of semen is sufficient to
Crl.R.P.1361/2002 26
constitute an offence under Section 376 of Indian
Penal Code. The Honourable Supreme Court in State
of U.P. v. Babul Nath ((1994) 6 SCC 29) held “even
partial or slightest penetration of the male organ
within the labia majora or the vulva or pudendum
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
Sections 375 and 376 of Indian Penal Code. 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. A learned single Judge of this Court in
Mohammed Kunju v. State of Kerala (2007 (3) KLT
218) with due respect, did not follow the said
dictum and instead followed the decision in Madan
Lal v. State of Jammu & Kashmir (JT 1997 (7) SCC
357) and on the facts, held that as the medical
evidence clearly shows that there was no injury
over the external genitalia of PW6 nor was there
any discharge in her vagina and the hymen of the
Crl.R.P.1361/2002 27
girl was found intact, the offence attracted is
only 511 of 376 and not Section 376 of Indian Penal
Code. The observation of the Honourable Supreme
Court in Madan Lal’s case (supra), quoted by the
learned single Judge reads:
The difference between preparation and an attempt
to commit an offence consists chiefly in the grater
degree of determination and what is necessary to
prove an offence of an attempt to commit rape has
been committed is that the accused has gone
beyond the state of preparation. If an accused
strips a girl naked and then making her flat on the
ground undresses himself and then forcibly rubs
his erected penis on the private part of the girl but
fails to penetrate the same into vagina and on such
rubbing ejaculates himself then it is difficult for us
to hold that it was a case of merely assault under
Section 354 of Indian Penal Code and not an
attempt to commit rape under Section 376 read
with 511 of Indian Penal Code. In the facts and
circumstances of the present case, the offence of
an attempt to commit rape by accused has been
clearly established and the High Court rightly
convicted him under Section 376 read with 511 of
Indian Penal Code.
Another learned single Judge in Chenthamara v.
State of Kerala (2008 (4) KLT 290) followed the
dictum in Babul Nath’s case (supra) in the light of
the decision in Aman Kumar v. State of Haryana
Crl.R.P.1361/2002 28
((2004) 4 SCC 379) and held that penile accessing
would be sufficient to constitute penetration in
sexual intercourse, which is necessary for the
offence of rape and absence of actual entry of male
organ through the vagina, resulting in rupture of
hymen, etc. is not necessary. In Madan Lal’s case
(supra), the prosecution case was that the
Headmaster of the school called the prosecutrix, a
student of that school, to his house and thereafter
committed rape on her. The trial Judge, finding the
evidence of the prosecutrix unworthy, acquitted the
accused. In appeal, the High Court, after
scrutinising the evidence of the prosecutrix, held
that the statement was so convincing that it did
not require any corroboration and minor
discrepancies pointed out are irrelevant and
reversed the findings of the trail Judge and
convicted the accused for the offence under Section
376 read with Section 511 of Indian Penal Code. In
that case, medical evidence does not show any
injury to the vagina. The salwar of the
Crl.R.P.1361/2002 29
prosecutrix, which was seized and sent to the
chemical examiner, was sent to Forensic Science
Laboratory and the chemical and microscopical test
revealed presence of semen/Human Spermatozoa, which
was found to be corroborated by the evidence of
PW1. It is based on that evidence, the Honourable
Supreme Court held that the offence attracted is
511 of 376 of Indian Penal Code. In Aman Kumar’s
case (supra), it was held that an attempt to commit
an offence is an act or series of acts, which leads
inevitably to the commission of the offence,
unless, something, which the doer of the act
neither foresaw nor intended, happens to prevent
this and an attempt may be described to be an act
done in part-execution of a criminal design,
amounting to more than mere preparation, but,
falling short of actual consummation and
possession, except for failure to consummate, all
the elements of the substantive crime. In other
words, an attempt consists in it the intent to
commit a crime, falling short of, its actual
Crl.R.P.1361/2002 30
commission. Their Lordships held “in order to find
an accused guilty of an attempt with intent to
commit rape, court has to be satisfied that the
accused, when he laid hold of the prosecutrix, not
only desired to gratify his passions upon her
person, but that, he intended to do so at all
events and notwithstanding any resistance on her
part.” On the facts of the case, it was found that
there is no material to show that accused were
determined to have sexual intercourse in all events
and in that background, the offence cannot be said
to be an attempt to commit rape to attract
culpability under Section 376 read with Section 511
of Indian Penal Code, but, it would only amount to
an offence under Section 354 of Indian Penal Code.
The Honourable Supreme Court in Santhosh Kumar v.
State of M.P. (AIR 2006 SC 3098) held that to
constitute an offence of rape, it is not necessary
that there should be complete penetration of penis
without emission of semen and rupture of hymen and
partial penetration of penis within the labia
Crl.R.P.1361/2002 31
majora or the vulva or pudenda with or without
emission of semen or even an attempt at penetration
is quite sufficient for the purpose of law.
14. Though, in order to constitute an offence
under Section 375, punishable under Section 376 of
Indian Penal Code, penetration in the course of
sexual intercourse is necessary, it is not the
requirement of law that there should be a complete
penetration of penis inside the vagina. Even
partial penetration is sufficient. Partial
penetration of penis within the labia majora or the
vulva or pudenda by itself will constitute an
offence under Section 375 punishable under Section
376 of Indian Penal Code and it is not necessary
that there should be emission of semen.
15. The question is whether there is evidence
to prove such penetration as provided under Section
375 of Indian Penal Code. Even though PW1 deposed
that there was full penetration and that portion of
her evidence cannot be accepted, her evidence would
definitely establish that there was at least
Crl.R.P.1361/2002 32
partial penetration. Though learned counsel
vehemently argued that there is no evidence to
prove even partial penetration, Exhibit P2 would
certificate, with the evidence of PW2, would
necessarily support the evidence with regard to
partial penetration. As stated earlier, when PW1
was examined by PW2 and Exhibit P2 wound
certificate was prepared, it was not brought to the
notice of PW2 that there was rape or attempt to
commit rape. Therefore, PW2 did not examine
minutely the private parts of PW1 and instead noted
only the external injuries to the vagina, namely,
redness, in addition to the difficulty expressed by
PW1 for urination. If a girl like PW1, aged seven
years, was made to lie and erected penis of the
petitioner, aged 30 years, was sought to be
penetrated into her vagina and it partially entered
the vagina, necessarily, the redness noted by PW2,
even after two days of the incident, would be
there. Therefore, that aspect corroborates the
evidence of PW1 regarding at least partial
Crl.R.P.1361/2002 33
penetration.
16. The facts of Santhosh Kumar’s case (supra)
show that prosecution case was that the prosecutrix
was coming by a bus in search of a work and after
she boarded the bus, the conductor enquired where
she was going and when she informed him that she
was going in search of some work, he did not ask
for money and when the bus reached at the place and
she was trying to get down, he told her that she
may sleep in the bus itself rather than going
anywhere in the night, so that, in the morning, she
could arrange some work. The prosecutrix,
therefore, slept on the rear seat of the bus. After
the shops were closed, at about midnight, the
driver of the bus reached towards her and
thereafter pressed her breast and tried to remove
her dhoti and when she tried to raise alarm, the
conductor caught hold of her and gagged her and
then the driver committed rape on her and
thereafter, the conductor also committed rape on
her. The medical examination of the prosecutrix
Crl.R.P.1361/2002 34
showed that she received injuries on the front
portion of the body and also on her hands, but, no
injuries were found on the private parts of the
body. Their Lordships held ” the mere fact that no
injuries were found on the private parts of her
body cannot be a ground to hold that no rape was
committed upon her or that the entire prosecution
story is false” and ultimately, the conviction was
confirmed. Similarly, for the reason that there is
no medical evidence to prove that the hymen of PW1
was not torn and there was no injury to the hymen,
it cannot be said that there was no partial
penetration. As stated earlier, evidence of PW1
inspires confidence. It is credible and believable.
Evidence of PW1 establishes that petitioner had
undressed himself and removed the dress of PW1 up
to the waist and made her lie on the cot and
thereafter pushed the penis into her vagina.
Evidence also establish that there was actual entry
of penis at least partially into the vagina. It
would definitely constitute an offence under
Crl.R.P.1361/2002 35
Section 376 of Indian Penal Code. In such
circumstances, I find no reason to interfere with
the concurrent conviction of the petitioner for the
offence under Section 376 of Indian Penal Code.
Then the only question is regarding the
sentence. Argument of the learned counsel is that
petitioner was aged 30 years, who is having a wife
and child and the incident occurred in 1994 and at
this distant point of time, petitioner may not be
sent to prison and leniency be shown. It is already
found that petitioner, who is admittedly the father
of a child, having his wife, ignoring the fact that
PW1 is only a child, aged seven years, committed
rape on her. Such a person does not deserve any
leniency. In such circumstances, I find no reason
to interfere with the sentence also.
Revision fails and it is dismissed.
M.Sasidharan Nambiar
Judge
tpl/tkv
Crl.R.P.1361/2002 36
M.SASIDHARAN NAMBIAR
JUDGE
tpl/-
M.SASIDHARAN NAMBIAR, J.
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Crl.R.P.NO.1361 /02
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ORDER
9TH JULY 2010