Full Judgment Text
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CASE NO.:
Appeal (crl.) 1016 of 1997
PETITIONER:
Aman Kumar and Anr.
RESPONDENT:
State of Haryana
DATE OF JUDGMENT: 10/02/2004
BENCH:
DORAISWAMY RAJU & ARIJIT PASAYAT.
JUDGMENT:
JUDGMENT
ARIJIT PASAYAT,J
Two appellants faced trial for having allegedly
committed rape on a girl of tender age whose name need not
be indicated and she can be described as the victim or the
prosecutrix. The trial Court found the accused persons
guilty of offence punishable under Section 376 (2)(g) of the
Indian Penal Code, 1860 (in short the ’IPC’). They were each
sentenced to undergo imprisonment for 10 years and to pay a
fine of Rs.500/-each with default stipulation. In appeal,
the conviction and sentence were upheld.
Prosecution version in a nutshell is that on 5.8.1993
the prosecutrix had gone to the field to ease herself at
about 10.00 a.m. When she had reached near the field, the
accused persons caught hold of her right arm and dragged her
forcibly to the field. Accused Shiv Dayal shut her mouth
with her chuni and both the accused persons thereafter
forcibly raped her. They threatened to kill her if she told
about the incident to anybody. She went to her house weeping
and narrated the incident to her mother. One Karan Singh had
seen the accused persons going away from the field. Since
the father (PW-11) and brother of the prosecutrix were not
at home the mother (PW-9) described the incident to a
member of the Panchayat (PW-12). Report was lodged with
police on 7.8.1993. Investigation was undertaken. The
prosecutrix was medically examined and the accused persons
after arrest were also medically examined. After completion
of investigation, charge sheet was filed for alleged
commission of offence punishable under Section 376/506 IPC.
As the accused persons pleaded innocence, the trial was
held. Thirteen witnesses were examined to further the
prosecution version. The prosecutrix was examined as PW-7
while her mother was examined as PW-9 and father as PW-11.
The accused persons pleaded that they have been falsely
implicated. As Ran Singh, the brother of the prosecutrix had
mis-appropriated funds of a temple and the accused persons
had made a grievance, a meeting was held on 5.8.1993 where
the allegations were specifically made. On 6.8.1993, Ran
Singh and his friends had stopped the accused-Aman and had
given him lathi blows. The accused Shiv Dayal and others had
come to his rescue and he was taken to the hospital where he
remained till 12.8.1993. On the basis of a complaint made by
Ami Chand, brother of accused Aman, a case had also been
instituted against Ran Singh and Others. The accused persons
examined a doctor who stated that on 6.8.1993 he had
examined accused Aman and found several injuries on his
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person. Another witness was examined to show about the
assaults by Ran Singh and others. During trial,
interestingly except the prosecutrix no other witness of
relevance including the mother of the prosecutrix, her
father and Karan Singh who had supposedly seen the accused
persons going away from the field immediately after the
occurrence, supported the prosecution version. The trial
Court held that even though the mother of the prosecutrix
and other witnesses whose evidence would have thrown some
light had not supported the prosecution version, yet the
testimony of the prosecutrix herself was considered
sufficient for the conviction to be made and accordingly
conviction was done as afore-stated. Similar was the view
taken by the High Court in the appeal filed by the accused
persons.
In support of the appeal, learned counsel for the
appellants submitted that the prosecution version is highly
improbable. Though the prosecutrix’s evidence alone can form
the foundation of conviction, yet in the background facts of
the present case, it is clearly indicated that there was
false implication on account of differences between the
accused persons and the brother of the prosecutrix, and the
Courts below should not have acted on her evidence.
Furthermore, the evidence of the prosecutrix even if
accepted does not prove commission of rape and the medical
evidence also supports such a view. At the most, on the
evidence taken on its entirety, and even if accepted to be
true, it can be said that there was a preparation to commit
rape, but the act was not actually done.
Per contra, learned counsel for the State submitted
that in our traditional bound country a rural girl of tender
age would not tarnish or damage her own reputation and image
merely because her brother had any dispute with or animosity
against the accused persons by volunteering to falsely claim
that she had been raped and defiled. According to him, the
evidence not only shows the intention to commit the rape, an
attempt to do it and successful completion thereof.
Therefore, the evidence of PW-7 cannot be discarded. The
reasons as to why some of the prosecution witnesses
including the mother of the prosecutrix did not support the
prosecution case during the stage of trial, have been
noticed by the trial Court and the High Court. It has been
noted that on the date of their evidence, the case against
brother of the prosecutrix was posted and it appeared that
compromise had been arrived at to bury the hatchets.
Therefore, the Courts below were not prepared to give much
weight to the evidence of those who turned hostile, or
consider it to be a just ground to discard the evidence of
the prosecutrix for purpose of rejecting the case of the
prosecution.
It is well settled that a prosecutrix complaining of
having been a victim of the offence of rape is not an
accomplice after the crime. There is no rule of law that her
testimony cannot be acted without corroboration in material
particulars. She stands at 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 the version of the prosecutrix
on its face value, it may search for evidence, direct or
circumstantial, which would lend assurance to her testimony.
Assurance, short of corroboration as understood in the
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context of an accomplice would suffice.
The offence of rape occurs in Chapter XVI of IPC. It is
an offence affecting the human body. In that Chapter, there
is a separate heading for "Sexual offences", which
encompass Sections 375, 376, 376A, 376B, 376C and 376D.
"Rape" is defined in Section 375. Sections 375 and 376
have been substantially changed by Criminal Law (Amendment)
Act, 1983, and several new sections were introduced by the
new Act, i.e. 376A, 376B, 376C and 376D. The fast sweeping
changes introduced reflect the legislative intent to curb
with iron hand, the offence of rape which affects the
dignity of a woman. The offence of rape in its simplest term
is ’the ravishment of a woman, without her consent, by
force, fear or fraud’, or as ’the carnal knowledge of a
woman by force against her will’. ’Rape or Raptus’ is when a
man hath carnal knowledge of a woman by force and against
her will (Co.Litt. 123 b); or, as expressed more fully,
’rape is the carnal knowledge of any woman, above the age of
particular years, against her will; or of a woman child,
under that age, with or against her will’. (Hale P.C. 628)
The essential words in an indictment for rape are rapuit and
carnaliter cognovit; but carnaliter cognovit, nor any other
circumlocution without the word rapuit, are not sufficient
in a legal sense to express rape: (1 Hen. 6, 1a, 9 Edw. 4,
26 a (Hale P.C.628). In the crime of rape, ’carnal
knowledge’ means the penetration to any the slightest degree
of the organ alleged to have been carnally known by the male
organ of generation (Stephens Criminal Law, 9th
Ed.,p.262). In "Encyclopedia of Crime and Justice" (Volume
4, page 1356), it is stated "......even slight penetration
is sufficient and emission is unnecessary". In Halsburys’
Statutes of England and Wales (Fourth Edition) Volume 12, it
is stated that even the slightest degree of penetration is
sufficient to prove sexual intercourse. It is violation,
with violence, of the private person of a woman, an outrage
by all means. By the very nature of the offence it is an
obnoxious act of the high order.
Penetration is the sine qua non for an offence of rape.
In order to constitute penetration, there must be evidence
clear and cogent to prove that some part of the virile
member of the accused was within the labia of the pudendum
of the woman, no matter how little (See Joseph Lines IC & K
893). It is well-known in the medical world that the
examination of smegma loses all importance after twenty four
hours of the performance of the sexual intercourse. (See Dr.
S.P. Kohli, Civil Surgeon, Ferozepur v. High Court of Punjab
and Haryana thr. Registrar (1979) 1 SCC 212). In rape cases,
if the gland of the male organ is covered by smegma, it
negatives the possibility of recent complete penetration. If
the accused is not circumcised, the existence of smegma
round the corona gland is proof against penetration, since
it is rubbed off during the act. The smegma accumulates if
no bath is taken within twenty four hours. The rupture of
hymen is by no means necessary to constitute the offence of
rape. Even a slight penetration in the vulva is sufficient
to constitute the offence of rape and rupture of the hymen
is not necessary. Vulva penetration with or without violence
is as much rape as vaginal penetration. The statute merely
requires evidence of penetration, and this may occur with
the hymen remaining intact. The actus reus is complete with
penetration. It is well settled that the prosecutrix cannot
be considered as accomplice and, therefore, her testimony
cannot be equated with that of an accomplice in an offence
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of rape. In examination of genital organs, state of hymen
offers the most reliable clue. While examining the hymen,
certain anatomical characteristics should be remembered
before assigning any significance to the findings. The
shape and the texture of the hymen is variable. This
variation, sometimes permits penetration without injury.
This is possible because of the peculiar shape of the
orifice or increased elasticity. On the other hand,
sometimes the hymen may be more firm, less elastic and gets
stretched and lacerated earlier. Thus a relatively less
forceful penetration may not give rise to injuries
ordinarily possible with a forceful attempt. The anatomical
feature with regard to hymen which merits consideration is
its anatomical situation. Next to hymen in positive
importance, but more than that in frequency, are the
injuries 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
and force used by the accused and counteracted by the
victim. 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. Partial
penetration within the labia majora of the vulva or pudendum
with or without emission of semen is sufficient to
constitute the offence of rape as defined in the law. The
depth of penetration is immaterial in an offence punishable
under Section 376 IPC.
The plea relating to applicability of Section 376 read
with Section 511, IPC needs careful consideration. In every
crime, there is first, intention to commit, secondly
preparation to commit it, thirdly, attempt to commit it. If
the third stage, that is, attempt is successful, then the
crime is complete. If the attempt fails the crime is not
complete, but law punishes the person attempting the act.
Section 511 is a general provision dealing with attempts to
commit offences not made punishable by other specific
sections. It makes punishable all attempts to commit
offences punishable with imprisonment and not only those
punishable with death. An attempt is made punishable,
because every attempt, although it falls short of success,
must create alarm, which by itself is an injury, and the
moral guilt of the offender is the same as if he had
succeeded. Moral guilt must be united to injury in order to
justify punishment. As the injury is not as great as if the
act had been committed, only half the punishment is awarded.
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 it 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.
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Mere intention to commit an offence, not followed by any
act, cannot constitute an offence. The will is not 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
measures necessary for the commission of the 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 an attempt is sometimes thin and has to
be decided on the facts of each case. There is a greater
degree of determination in attempt as compared with
preparation.
An attempt to commit an offence is an act, or a 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. 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, possessing,
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
commission. It may consequently be defined as that which if
not prevented would have resulted in the full consummation
of the act attempted. The illustrations given in Section 511
clearly show the legislative intention to make a difference
between the cases of a mere preparation and an attempt.
In order to find an accused guilty of an attempt with
intent to commit a 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. Indecent assaults are often
magnified into attempts at rape. In order to come to a
conclusion that the conduct of the accused was indicative of
a determination to gratify his passion at all events, and in
spite of all resistance, materials must exist. Surrounding
circumstances many times throw beacon light on that aspect.
Though the prosecutrix’s version in Court was of rape,
when it is compared with the one given during investigation,
certain irreconcilable discrepancies are noticed. The
evidence regarding actual commission of rape is at variance
from what was recorded by police during evidence. The
evidence of PW-11, the father who according to prosecution
made departure from what he allegedly stated during
investigation is to the effect that his wife PW-9 told her
that the prosecutrix was teased by the accused persons.
Merely because he was termed as a hostile witness his entire
evidence does not get effected. Significantly, the evidence
of prosecutrix and the doctor does not specifically refer to
penetration which is sine qua non for the offence of rape.
There is no material to show that the accused were
determined to have sexual intercourse in all events. In the
aforesaid background, the offence cannot be said to be an
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attempt to commit rape to attract culpability under Section
376/511 IPC. But the case is certainly one of indecent
assault upon a woman. Essential ingredients of the offence
punishable under Section 354 IPC are that the person
assaulted must be a woman, and the accused must have used
criminal force on her intending thereby to outrage her
modesty. What constitutes an outrage to female modesty is
nowhere defined. The essence of a woman’s modesty is her
sex. The culpable intention of the accused is the crux of
the matter. The reaction of the woman is very relevant, but
its absence is not always decisive. Modesty in this Section
is an attribute associated with female human beings as a
class. It is a virtue which attaches to a female owing to
her sex. The act of pulling a woman, removing her dress
coupled with a request for sexual intercourse, is such as
would be an outrage to the modesty of a woman, and
knowledge, that modesty is likely to be outraged, is
sufficient to constitute the offence without any deliberate
intention having such outrage alone for its object. As
indicated above, the word ’modesty’ is not defined in IPC.
The Shorter Oxford Dictionary (Third Edn.) defines the word
’modesty’ in relation to woman as follows:
"Decorous in manner and conduct; not
forward or lowe; Shame-fast; Scrupulously
chast."
Modesty can be described as the quality of being
modest; and in relation to woman, "womanly propriety of
behaviour; scrupulous chastity of thought, speech and
conduct." It is the reserve or sense of shame proceeding
from instinctive aversion to impure or coarse suggestions.
As observed by Justice Patterson in Rex v. James Llyod
(1876) 7 C&P 817. In order to find the accused guilty of an
assault with intent to commit a rape, court must 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. The point of
distinction between an offence of attempt to commit rape
and to commit indecent assault is that there should be some
action on the part of the accused which would show that he
was just going to have sexual connection with her.
In that view of the matter, it would be appropriate to
set aside the conviction of the appellants under Section 376
(2)(g) and convict them under Section 354 read with Section
34 IPC. Custodial sentence of two years each, with a fine of
Rs.500/- each and a default stipulation of three months
rigorous imprisonment in case of failure to pay the fine
would meet the ends of justice. The appeal is allowed to the
extent indicated above.