Bombay High Court

The State Of Maharashtra, Through ... vs Surajprasad @ Rajkumar S/O ... on 11 August, 2017

Bench: Ravi K. Deshpande

                                      1            Appeal67-15&48-16.odt        



      IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                          NAGPUR BENCH : NAGPUR



                  CRIMINAL APPEAL NO.67 OF 2015
                              WITH
                  CRIMINAL APPEAL NO. 48 OF 2016
                                ...


CRIMINAL APPEAL NO.67 OF 2015


The State of Maharashtra,
through the Police Station Officer,
Ghuggus Police Station,
Tahsil and District Chandrapur.               ..             APPELLANT


                               .. Versus ..

Surajprasad @ Rajkumar s/o
Shivcharan Roy, aged about 49 years,
Occupation: Driver, R/o Sukaluthana,
Tahs. and District Chhindwara (M.P.)
presently Opposite Bank of India,
Chandrapur, Tah. and District
Chandrapur.                          ..                    RESPONDENT



Mr.S.M. Ukey, Additional Public Prosecutor for Appellant.
Mr. R.P. Thote, Advocate (Appointed) for Respondent.
                   ....


CRIMINAL APPEAL NO.48 OF 2016


Surajprasad @ Rajkumar s/o
Shivcharan Roy, aged about 50 years,
Occupation: Driver, R/o Sukaluthana,
Tahsil and District Chhindwara (M.P.)
presently Opposite Bank of India,



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Chandrapur, Tah. and District
Chandrapur.                                        ..             APPELLANT


                               .. VERSUS..


The State of Maharashtra,
through Police Station Officer,
Police Station, Ghuggus,
Tah. and District Chandrapur.                      ..             RESPONDENT


Mr. R.P. Thote, Advocate (Appointed) for Appellant.
Mr.S.M. Ukey, Additional Public Prosecutor for Respondent.

                                          ....


CORAM         : R.K. Deshpande & Manish Pitale, JJ.
RESERVED ON   : August 08, 2017
PRONOUNCED ON : August 11, 2017.



JUDGMENT (per Manish Pitale, J. )

By this judgment we are disposing of two appeals.

Criminal Appeal No. 48 of 2016 has been filed by the accused

challenging the judgment and order dated 18.12.2014 passed

by the Special Court, Chandrapur in Special (Child) Case No. 8

of 2013, whereby the accused-appellant has been convicted

under Section 376(2)(f)(i) of the Indian Penal Code ( "IPC")

read with Sections 4 and 6 of the Protection of Children from

Sexual Offences Act, 2012 ("POCSO Act") and sentenced to

suffer rigorous imprisonment for 10 years and to pay fine of

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Rs.1,000/- and in default to suffer rigorous imprisonment for 3

months. Criminal Appeal No.67 of 2015 has been filed by the

State praying for enhancement of punishment, claiming that

the sentence imposed on the accused of rigorous

imprisonment for 10 years is inadequate, in the facts and

circumstances of the case.

2. The prosecution case is that on 14.07.2013 the

accused, stepfather of the victim/complainant (hereinafter

referred to as "the prosecutrix"), came to his house at about 1

p.m. and gave to Rs.10/- to the prosecutrix and Rs.2/- each to

her brothers for purchasing snacks from the grocery shop. The

children, including the prosecutrix, returned home at about

2.30 p.m., when the accused asked his sons to go and play

outside the house.

3. The accused then called the prosecutrix inside the

house, closing the door from inside and he put her on a mat on

the floor. He then removed her slack and knicker and

threatened her. The accused laid the prosecutrix on the mat

and upon removing his pant, he inserted his penis in the vagina

of the prosecutrix. Due to pain, she started weeping, upon

which her mother came to the house and knocked the door.

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The accused wore his clothes, opened the door and after

quarreling with the mother of the prosecutrix, he left the

house.

4. The mother (PW2) and a neighbor Vandana (PW4)

claimed to have seen the aforesaid incident from gap in the

door of the house.

5. The prosecutrix went along with her mother to the

Police Station and lodged an oral report on the same day i.e. on

14.07.2013, pursuant to which first information report (FIR

Exh.20) was registered on the same day against the accused

for having committed the offences under Sections 376(2)(f)

and 506 of the I.P.C. and Sections 4 and 6 of the POCSO Act.

The allegation by the prosecutrix, being a minor, of rape

against her own stepfather was a serious matter and the

investigating authority immediately referred her for medical

examination.

6. The prosecutrix was medically examined by the

Medical Officer Dr. Dipti (PW9) on 14.07.2013 at the General

Hospital in Chandrapur. The said doctor issued a medical

certificate (Exh.45) certifying that there was redness present

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on labia majora, labia minora all over and that hymen was

freshly torn at the 3, 9 and 6 'O' clock position.

7. The Investigating Officer arrested the accused and

seized his clothes and they were sent for chemical analysis. It

is relevant to mention here that the accused was also

medically examined and it was found that he was capable of

sexual intercourse.

8. In order to prove its case, the prosecution examined

10 witnesses, of whom PW2 (mother of the prosecutrix) and

PW3 (neighbor) are eyewitnesses to the incident. PW5 is the

Headmistress of the School, who has proved the date of birth

of the prosecutrix as 8.8.2003 to show that she was aged 9

years on the date of the incident. PW8 is the Investigating

Officer and PW9 is the Doctor who had examined the

prosecutrix and issued the medical certificate.

9. The Special Court considered the case of the

prosecution as well as the defence raised on behalf of the

accused. It found that the prosecution had been able to prove

its case beyond reasonable doubt and that there was sufficient

material on record to prove the guilt of the accused. On this

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basis, the Special Court convicted and sentenced the accused

as aforesaid.

10. As stated above, the accused as well as the State

have filed appeals before this court against the aforesaid

judgment and order of the Special Court. The two appeals are

being considered and decided by this common judgment.

As Regards Criminal Appeal No.48 of 2016.

11. In support of the appeal filed by the

accused/appellant, Mr. R.P. Thote, learned counsel submitted

that there were contradictions in the evidence and material on

record and that the Special Court erred in convicting and

sentencing the accused. He contended that the version of the

prosecutrix was not corroborated by other witnesses, that

there was no evidence to prove penetration in the instant case

to constitute the offence of rape as defined in Section 375 of

the Indian Penal Code, that the prosecutrix herself had stated

in her deposition that her mother had brushed her vagina by

finger before taking her to the hospital for medical

examination, thereby explaining the redness on parts of vagina

and further that the accused was falsely implicated because

the mother of the prosecutrix, i.e. wife of the accused, used to

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regularly fight and quarrel with him and that it was at her

behest that the prosecutrix had launched a false case against

him. The learned counsel for the accused/appellant also

contended that the chemical analysis reports (Exhs. 39 and 40)

showed that neither blood nor semen was detected on the

clothes of the accused or the vaginal swab, thereby showing

that the allegation of rape made against him was false.

12. As against this, Mr. S.M. Ukey, learned Additional

Public Prosecutor appearing for the respondent/State

submitted that there was ample evidence and material on

record to prove the case against the accused and that the

Special Court was justified in convicting and sentencing the

accused. The learned A.P.P. for the respondent/State heavily

relied upon the evidence of PW2, PW3 (prosecutrix), PW4 and

PW9 to support his contentions. On the question of the

requirement of penetration in respect of offence of rape as

defined in Section 375 of the I.P.C., the learned A.P.P. for the

respondent/State relied upon judgments of the Hon'ble

Supreme Court in the case of State of U.P. .vs. Babul Nath

- (1994) 6 Supreme Court Cases 29 and in the case of

Aman Kumar and another .vs. State of Haryana - (2004)

4 Supreme Court Cases 379.

8 Appeal67-15&48-16.odt

13. We have heard the learned counsel for the parties at

length. A perusal of Section 375 of the I.P.C. would show that

one of the most important facets in the definition of rape is

penetration into parts of the body of a woman as specified in

the said provision. Thus, it becomes necessary to examine the

evidence and material on record to come to a finding as to

whether there was penetration in the instant case for the

offence of rape to be proved against the accused. In order to

do that, it would be advantageous to understand the position of

law, as laid down by the Hon'ble Supreme Court with regard to

the question of penetration in the context of the offence of

rape, defined in Section 375 of the Indian Penal Code.

14. In its judgment in the case of State of U.P. .vs.

Babul Nath (supra), the Hon'ble Supreme Court has held as

follows:-

"8. It may here be noticed that Section 375 of the IPC defines rape and the Explanation to Section 375 reads as follows:

"Explanation.- Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape."

From the Explanation reproduced above it is distinctly clear that ingredients which are

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essential for proving a charge of rape are the accomplishment of the act with force and resistance. To constitute the offence of rape neither Section 375 of IPC nor the Explanation attached thereto require that there should necessarily be complete penetration of the penis into the private part of the victim/prosecutrix. In other words to constitute the offence of rape it is not at all necessary that there should be complete penetration of the male organ with emission of semen and rupture of hymen. Even partial or slightest penetration of the male organ within the labia majora 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 Sections 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. But in the present case before us as noticed above there is more than enough evidence positively showing that there was sexual activity on the victim and she was subjected to sexual assault without which she would not have sustained injuries of the nature found on her private part by the doctor who examined her. "

15. It has been further held by the Hon'ble Supreme

Court in the case of Aman Kumar and another .vs. State of

Haryana (supra) as follows:-

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"7. .........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 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

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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.

16. The aforesaid position of law and a perusal of Section

375 of the I.P.C. would show that in order to constitute the

offence of rape, it is not at all necessary that there should be

complete penetration of the male organ with emission of

semen or rupture of hymen. It has been held that even a

partial or slightest penetration of the male organ within the

labia majora or the vulva without any emission of semen,

would be quite enough for the purpose of Sections 375 and 376

of the I.P.C.

17. Applying the said position of law to the facts of the

present case, it would be evident that the accused has indeed

committed rape on the prosecutrix and that he is liable for

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conviction under Section 376(2)(f) (i) of the I.P.C. , being a

relative of the prosecutrix and the fact that she was less than

16 years of age at the time of the incident. The fact that there

has been penetration in the instant case is clear from the

medical evidence wherein the Doctor (PW9) has found that

there is redness all over the various parts of vagina and that

hymen has suffered fresh rupture at the 3,6 and 9 'O' clock

position. In fact the Doctor has deposed on the basis of

examination of the prosecutrix on the very day of the incident

that there was sexual intercourse committed with the

prosecutrix. Thus, there is no substance in the contention

raised by the learned counsel for the accused- appellant that in

the absence of penetration, there was no rape committed on

the prosecutrtix in the present case.

18. The contention raised on behalf of the learned

counsel for the accused-appellant that the evidence of the

prosecutrix was not corroborated, cannot be accepted. An

analysis of the evidence on record would show that there were

two eyewitnesses to the incident i.e. PW2 Tarabai Roy (mother

of the prosecutrix) and PW4 Vandana Chaudhari (neighbor).

PW2 (mother of prosecutrix) stated in her deposition that when

she returned home and found the door of the house closed

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from inside, she knocked on the door and at that time PW4

(neighbour) was also accompanying her. As the accused did

not open the door, PW2 stated that she saw from the gap in the

door that the prosecutrix was lying on the mat and the accused

was lying on her. The slack and knicker of the prosecutrix was

lying outside and that the accused did not have his full pant on

his person. PW2 then deposed that she shouted, upon which

the accused wore his pant and opened the door. He quarreled

with her and left the house.

19. Similarly PW4 (neighbour) stated in her deposition

that she along with PW2 saw the incident and that the accused

was found establishing sex with his own daughter. The other

details were stated by PW4 in the same manner as narrated by

PW2. The version of the said two eyewitnesses fully

corroborates the narration of the incident given by the

prosecutrix. In the cross-examination, the version of the said

eyewitnesses has not been shaken. Even otherwise, in the case

of proving the offence of rape uncorroborated testimony of the

prosecutrix is sufficient. It has been held by the Hon'ble

Supreme Court in the case of State of Himachal Pradesh

.vs. Raghubir Singh (1993) 2 Supreme Court Cases 622

that there is no legal compulsion to look for corroboration of

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the evidence of the prosecutrix before recording an order of

conviction and that conviction can be recorded on the sole

testimony of the prosecutrix.

20. In the instant case, not only is the evidence of the

prosecutrix sufficient to prove the guilt of the accused, the

evidence of the two aforesaid eyewitnesses fully supports the

case of the prosecution. Apart from this, the medical evidence

on record shows that there was injury to the vagina of the

prosecutrix and that the hymen was found freshly torn, thereby

proving that she had suffered forcible sexual intercourse

amounting to rape, at the hands of the accused-appellant.

21. The contention raised by the learned counsel for the

accused-appellant that the version of the prosecution and the

medical evidence was rendered suspicious due to the

statement of the prosecutrix in cross-examination that before

being taken to the hospital for medical examination, her

mother by finger had brushed her vagina. It was sought to be

suggested by the learned counsel for the accused-appellant

that the redness found on the vagina during medical

examination was due to the said reason. The said contention

deserves to be rejected because the detailed medical

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certificate (Exh.45) showing redness on various parts of vagina

and tearing of the hymen clearly point towards forcible sexual

intercourse suffered by the prosecutrix. The Doctor (PW9) who

examined the prosecutrix, entered the witness box and gave

details of the injuries suffered by the prosecutrix, clearly

stating that in her opinion there was sexual intercourse. Hence

the said contention of the learned counsel for the accused-

appellant is rejected.

22. The further contention raised on behalf of the

accused that he had been falsely implicated by the mother of

the prosecutrix as she used to have regular quarrels with him,

is also unsustainable. We find it difficult to believe that a

mother would use her own daughter as a tool to falsely

implicate her husband, only because there was some

matrimonial discord between the two.

23. In view of the above, it is clear that the Special Court

has correctly appreciated the facts on record, while convicting

the accused/appellant. The Special Court has correctly found

that offence under Section 376(2)(f)(i) of the I.P.C. read with

Sections 4 and 6 of the POCSO Act stood proved, because the

prosecutrix was only 9 years old when the incident took place.

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24. The facts that have been proved on record show that

the prosecutrix was a minor at the time of the incident. PW5,

Headmistress of the school where the prosecutrix was

studying, proved that the date of birth of the prosecutrix was

8.8.2003. This fact was proved on the basis of the school

record thereby clearly establishing that the prosecutrix was

only 9 years old when the incident took place. Thus, being a

minor the requirements for applying the provisions of the

POCSO Act were clearly satisfied in the present case and,

therefore, the findings given by the Special Court do not

deserve any interference. Accordingly, we confirm the order of

the Special court of conviction under the said provisions passed

against the accused-appellant and we dismiss the appeal.

AS REGARDS CRIMINAL APPEAL NO.67 OF 2015.

25. This appeal has been filed by the State praying for

enhancement of sentence imposed upon the accused. It is the

case of the State that the minimum sentence of rigorous

imprisonment for 10 years imposed by the Special Court

against the accused is not sufficient and that in the facts and

circumstances of the case, he ought to be sentenced for life

imprisonment under Section 376(2)(f)(i) of the I.P.C. read with

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Sections 4 and 6 of the POCSO Act.

26. The learned counsel for the State submits that the

accused has committed a heinous crime against the

prosecutrix as she was a minor aged only 9 years at the time of

the incident. The accused being the stepfather of the

prosecutrix and a person in a position of trust and authority

over her has committed a reprehensible act, which deserves

the maximum punishment. Reliance has been placed on the

judgment of the Hon'ble Supreme Court in the case of Shyam

Narain .vs. State (NCT of Delhi - (2013) 7 Supreme

Court Cases 77.

27. As against this, the learned counsel for the accused

has submitted that the Special Court has correctly imposed the

minimum sentence in the present case.

28. In order to decide whether the quantum of sentence

imposed by the Special Court is sufficient and whether

enhancement is necessary, it would be relevant to appreciate

the position of law in this regard laid down by the Hon'ble

Supreme Court in the case of Shyam Narain .vs. State (NCT

of Delhi) (supra). The relevant portions of the judgment read

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as follows:-

"14. Primarily it is to be borne in mind that sentencing for any offence has a social goal. Sentence is to be imposed regard being had to the nature of the offence and the manner in which the offence has been committed. The fundamental purpose of imposition of sentence is based on the principle that the accused must realise that the crime committed by him has not only created a dent in his life but also a concavity in the social fabric. The purpose of just punishment is designed so that the individuals in the society which ultimately constitute the collective do not suffer time and again for such crimes. It serves as a deterrent. True it is, on certain occasions, opportunities may be granted to the convict for reforming himself but it is equally true that the principle of proportionality between an offence committed and the penalty imposed are to be kept in view. While carrying out this complex exercise, it is obligatory on the part of the Court to see the impact of the offence on the society as a whole and its ramifications on the immediate collective as well as its repercussions on the victim.

........

26. It is seemly to note that the legislature,

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while prescribing a minimum sentence for a term which shall not be less than ten years, has also provided that the sentence may be extended upto life. The legislature, in its wisdom, has left it to the discretion of the Court. Almost for the last three decades, this Court has been expressing its agony and distress pertaining to the increased rate of crimes against women. The eight year old girl, who was supposed to spend time in cheerfulness, was dealt with animal passion and her dignity and purity of physical frame was shattered. The plight of the child and the shock suffered by her can be well visualised. The torment on the child has the potentiality to corrode the poise and equanimity of any civilized society. The age old wise saying that "child is a gift of the providence" enters into the realm of absurdity. The young girl, with efflux of time, would grow with traumatic experience, an unforgettable shame. She shall always be haunted by the memory replete with heavy crush of disaster constantly echoing the chill air of the past forcing her to a state of nightmarish melancholia. She may not be able to assert the honour of a woman for no fault of hers.

27. Respect for reputation of women in the society shows the basic civility of a civilised society. No member of society can afford to

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conceive the idea that he can create a hollow in the honour of a woman. Such thinking is not only lamentable but also deplorable. It would not be an exaggeration to say that the thought of sullying the physical frame of a woman is the demolition of the accepted civilized norm, i.e., "physical morality". In such a sphere, impetuosity has no room. The youthful excitement has no place. It should be paramount in everyone's mind that, on one hand, the society as a whole cannot preach from the pulpit about social, economic and political equality of the sexes and, on the other, some perverted members of the same society dehumanize the woman by attacking her body and ruining her chastity. It is an assault on the individuality and inherent dignity of a woman with the mindset that she should be elegantly servile to men. Rape is a monstrous burial of her dignity in the darkness. It is a crime against the holy body of a woman and the soul of the society and such a crime is aggravated by the manner in which it has been committed. We have emphasised on the manner because, in the present case, the victim is an eight year old girl who possibly would be deprived of the dreams of "Spring of Life" and might be psychologically compelled to remain in the "Torment of Winter". When she suffers, the collective at large also suffers. Such a singular crime

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creates an atmosphere of fear which is historically abhorred by the society. It demands just punishment from the court and to such a demand, the courts of law are bound to respond within legal parameters. It is a demand for justice and the award of punishment has to be in consonance with the legislative command and the discretion vested in the court."

29. In the earlier part of this common judgment we have

already found that the conviction of the accused for the afore-

mentioned offences as imposed by the Special Court is

correct. Having found the accused guilty of the charges

leveled against him, we have given our thoughtful

consideration to the aspect of enhancement of sentence, as

prayed by the appellant-State. A perusal of the judgment and

order of the Special Court would show that while discussing the

aspect of imposition of sentence on the accused, the Special

Court found as follows:-

"Certainly, victim is unfortunate step daughter of the accused. She was aged about 9 years on the date of incident. She was school going child. She was leading her life under the protection of accused. But he himself has breached the trust of the victim, rather society. It was the duty of the accused to

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give nutritious food, proper education, care and protection to develop victim as a member of better society. However, accused has committed heinous offence. If the accused is shown leniency, it will give wrong signal in the society. So, he has to be dealt with deterrently so as to prevent others to commit such heinous offence."

Thus, it is evident that the Special Court had found that the

accused did not deserve any leniency in the matter of imposing

sentence upon him for having committed offences under

Section 376 (2)(f)(i) of the I.P.C. and Sections 4 and 6 of POCSO

Act.

30. Applying the law as laid down by the Hon'ble

Supreme Court, it would be evident that having given the

aforesaid findings even on the question of sentence against the

accused, the Special Court clearly fell in error in awarding the

minimum sentence of rigorous imprisonment of 10 years. We

are of the opinion that in the facts and circumstances of the

present case, the accused has committed a barbaric act of