Santosh vs The State (N.C.T. Of Delhi)
2011 Latest Caselaw 938 Del

          IN THE HIGH COURT OF DELHI: NEW DELHI

+              CRL. APPEAL 26/2009

%              Judgment decided on: 17th February, 2011

SANTOSH                                                 .....APPELLANT

                          Through:   Mr. A.J. Bhambhani, Ms. Nisha
                                     Bhambhani, Mr. Victor Bhambhani
                                     and Ms. Lakshita Sethi, Advs.
                                 Versus

THE STATE (N.C.T. of DELHI)                           .....RESPONDENT

                          Through: Mr. Arvind Gupta, APP for the State


Coram:
HON'BLE MR. JUSTICE A.K. PATHAK

       1. Whether the Reporters of local papers                  No
          may be allowed to see the judgment?

       2. To be referred to Reporter or not?                     No

       3. Whether the judgment should be                         No
          reported in the Digest?

A.K. PATHAK, J. (Oral)

1. Appellant has been convicted under Sections

376(2)(f)/323/506 of the Indian Penal Code by the Trial Court;

sentenced to undergo rigorous imprisonment for 10 years with fine

of `2,500/- and in default of payment of fine to undergo simple

imprisonment for one month for the offence under Section 376(2)(f);

sentenced to undergo rigorous imprisonment for one year for the

offence under Section 506; rigorous imprisonment for three months

for the offence under Section 323 IPC. All the sentences have been

ordered to run concurrently. Appellant has been granted benefit of

Section 428 Cr.P.C.

2. It is this judgment which is under challenge in this appeal.

3. Prosecutrix has been examined as PW3. Her father Bhanu

Choudhary has been examined as PW7. Smt. Leela Devi, mother of

the prosecutrix, has been examined as PW6. Dr. Nupur Gupta,

who had clinically examined the prosecutrix, has been examined as

PW2. Dr. Shiva Prasad, who had medically examined the

appellant, has appeared in the witness box as PW10. These are the

material witnesses, on the basis of whose testimonies Trial Court

has returned a definite finding that appellant had committed rape

upon the prosecutrix aged about 8 years, thus, committed offence

under Section 376(2)(f) IPC.

4. I have perused the statements of PW3, PW6 and PW7

recorded in court as also by the Investigating Officer (IO) during the

investigation. Besides this, I have also perused the statement of

prosecutrix under Section 164 Cr.P.C. recorded by the Metropolitan

Magistrate and that of PW2 Dr. Nupur Gupta together with MLC of

the prosecutrix Ex. PW2/A. On scrutiny of above material I am of

the view that Trial Court was not right in reaching a conclusion

that appellant had committed rape upon the prosecutrix, inasmuch

as, no evidence had come on record to suggest that appellant had

penetrated his male organ into the private part of the

victim/prosecutrix.

5. FIR in question was registered on the basis of statement of

PW7 Bhanu Choudhary. In the FIR, PW7 Bhanu Choudhary had

stated that on 25th March, 2006 at about 9:30 pm, when he

reached home after work, he found his daughter missing. He made

a search for his daughter, and while doing so he reached behind

his jhuggi where garbage used to be thrown. There he found one

boy molesting his daughter. (Actual word used by PW7 is "ched

chaad"). He asked the said boy as to what he was doing with his

daughter at which appellant threatened him that in case he

informed about the incident to anyone he would kill him. On his

raising alarm, other persons of the locality arrived there and caught

hold of the appellant. Public persons gave beatings to the

appellant. He informed the police on telephone. Police officials

arrived at the spot and apprehended the appellant. On inquiry,

name of appellant was disclosed as "Santosh".

6. After FIR was registered, statement of prosecutrix was also

recorded on 26th March, 2006 itself, wherein she did not level any

allegation of rape. She had stated that the appellant, who was her

neighbour, took her behind her house; it was dark there; when she

tried to raise alarm appellant gagged her mouth. Thereafter, he

started fondling her cheeks. He intimately touched her private

parts and other parts of body. At that stage, she raised alarm. Her

father arrived there and apprehended the appellant. Police also

arrived at the spot. To the similar effect is the statement under

Section 161 Cr.P.C. of PW6, Leela Devi.

7. After about one and a half month of the incident, statement

of the prosecutrix under Section 164 Cr.P.C. was recorded by

Metropolitan Magistrate wherein she has made improvements. For

the first time she stated that appellant had removed her under

wear. Thereafter, he opened zip of his pant and took out his male

organ and struck the same on her vagina. To the similar effect is

her deposition in the court. First of all there is material

improvement in her these statements vis-à-vis her statement under

Section 161 Cr.P.C. recorded immediately after the incident.

Secondly, even in her subsequent statements she has not said that

the appellant had made any attempt to insert his male organ in her

vagina or had inserted the same. The evidence with regard to

penetration of male organ into the private parts of

victim/prosecutrix is totally missing. No medical evidence with

regard to penetration has also come on record. PW2 Dr. Nupur

Gupta has not whispered a single word as to there was any

possibility of rape or attempt of rape. No such mention is there

even in the MLC Ex.PW2/A. PW2 Dr. Nupur Gupta has stated that

on local examination of prosecutrix she did not notice any injury

marks. Hymen was not torn. Vaginal swab and under garments of

the prosecutrix were taken and sent to CFSL but no traces of

semen were found on the vaginal swab or on the under garment of

prosecutrix. In the MLC, it has been mentioned that vagina admits

tip of little finger with great difficulty. This evidence also ruled out

penetration.

8. Explanation to Section 375 IPC makes it clear that

Penetration is necessary to constitute the sexual intercourse which

is a requisite for the offence of rape. Penetration is the sine qua

non for an offence of rape. Penetration of male organ into the

private part of the prosecutrix is necessary to constitute the offence

of rape. Even slightest penetration, with or without emission of

semen, is sufficient to constitute the offence of rape and rupture of

hymen is not necessary. In Tarkeshwar Sahu Vs. State of Bihar

(Now Jharkhand) 560 SCC (2006) 8 SCC, Supreme Court has

held that no offence under Section 376 can be made out unless

there was penetration to some extent. Absence of penetration, to

any extent, would not bring the offence against the accused within

the four corners of Section 375 of the Indian Penal Code. The other

important ingredient is 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 completely, partially or slightly would be enough for the

purpose of Sections 375 and 376 IPC. In Aman Kumar and Anr.

Vs. State of Haryana AIR 2004 SC 1497, Supreme Court held

that penetration is 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 women, no matter how little. 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. In the said case since evidence of

penetration was missing, Supreme Court converted the offence

under Section 376(2)(g) into offence under Section 354 IPC.

9. Coming back to present case, there is no evidence to indicate

that the appellant had penetrated his male organ in the vagina of

the prosecutrix. Thus, in my view, appellant cannot be held guilty

of offence under Section 376 IPC. No material has come on record

to show that accused was determined to have sexual intercourse in

all events. In Aman Kumar's case (supra), Supreme Court has held

that 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 attempt to commit

rape to attract culpability under Section 376/511 IPC. In the

present case, no offence of attempt to commit rape can be made

out. As regards ingredients of offence under Section 354 IPC is

concerned, the same are made out in this case. There is sufficient

evidence on record that appellant had outraged the modesty of

woman i.e. prosecutrix. The statements of PW3, PW6 and PW7

had been consistent that appellant had taken the prosecutrix with

him behind her house and molested her. 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, fondling with her, touching her cheeks,

private parts and other parts of body would be an outrage to the

modesty of such woman. Knowledge that modesty is likely to be

outraged is sufficient to constitute the offence without any

deliberate intention in this regard. In this case, even while deposing

in the court, prosecutrix has stated that appellant had fondled her

cheeks, private parts and other parts of the body. His this act

would certainly amount to outraging the modesty of a woman.

Accordingly, appellant is convicted under Section 354 IPC.

10. So far as conviction of the appellant under Section 323 IPC is

concerned, the same cannot be maintained as no injury was found

on the person of the prosecutrix as per the MLC. In her initial

statement, she had not stated that appellant had given beating to

her. However, conviction of the appellant under Section 506 IPC is

maintained as it is as PW7 has made a categorical statement that

after he found appellant molesting his daughter, he asked the

appellant as to what he was doing, at which he threatened him that

in case he disclosed this fact to anyone he would kill him.

11. In view of above discussions, conviction of the appellant

under Section 376(2)(f) IPC and the sentence awarded therein is set

aside. Conviction of the appellant under Section 323 IPC and

sentence awarded therein is also set aside. Appellant is convicted

under Section 354 IPC and sentenced to rigorous imprisonment for

two years with fine of Rs.2,500/- and in default of payment of fine

to undergo simple imprisonment for one month. As regards

conviction under Section 506 IPC is concerned, the same is

maintained as it is. Both the sentences shall run concurrently.

12. Appeal is disposed of in the above terms.

13. Copy of this order be sent to Superintendent Jail for serving

on the appellant as also for compliance.

A.K. PATHAK, J.

FEBRUARY 17, 2011 ga