The High Court of Sikkim recently comprising of a bench of Justice Jitendra Kumar Maheshwari observed that no offence under Section 376 of IPC can be made out, unless there was penetration to some extent. ( Mikal Bhujel alias Rubeen vs the State of Sikkim)
The Bench observed that penetration is a key component of the offence under Section 375, which is punishable under Section 376 of the Indian Penal Code, which is completely absent in this case. Without some level of penetration, no offence under Section 376 IPC can be established. It would not bring the appellant’s crime within the four corners of Section 375 of the Penal Code if there was no penetration to any extent.
Facts of the Case
The complaint was submitted by the minor victim. she revealed that one Jeewan Bhujel @ John of the same locality had sexually assaulted her on so many occasions. A FIR was registered under Section 376 of the IPC, 1860, with Section 6 of the POCSO Act. The victim gave birth to a boy child. Thereafter, the blood samples of the suspects were collected along with the blood samples of the victim as well as the newly born child and sent for DNA test. The samples revealed that John is the biological father and the victim is the biological mother.
Learned Trial Court after considering the evidence, recorded the finding that the allegation of commission of rape to prove the charge under Section 5 of the POCSO Act, i.e. aggravated penetrative sexual assault has been proved against Jeewan Bhujel @ John accused no.1 who was convicted and sentenced under Section 6 of the POCSO Act, while the accused/appellant Mikal Bhujel @ Rubeen was found guilty of charge of penetrative sexual assault under Section 3 of the POCSO Act, accordingly, convicted and sentenced under Section 4 of the POCSO Act, as described hereinabove.
This appeal was filed under Section 374 of the Code of Criminal Procedure, 1973 by the accused/appellant Mikal Bhujel @ Rubeen, challenging the judgment & the findings of conviction recorded by the learned Special Judge, Protection of Children from Sexual Offences Act, 2012. The sentence awarded directed the accused to undergo 7 years Rigorous Imprisonment.
Issue before the court
- Whether the Trial Court committed an error in convicting the appellant relying upon the testimony of the prosecutrix warranting interference in this appeal?
- Whether the alternative argument of appellant-counsel is having some force, in the facts and circumstances of the case?
Contention of the Parties
Learned Counsel on behalf of the appellant, Mr. B. Sharma has contended that in the FIR lodged by the mother of the victim on enquiring her, the name of the appellant has not been mentioned. Therefore, initially, the offence was registered only against John. The victim, in her statement under Section 161 Cr. P.C. implicated the appellant which is based on afterthought. It was urged in the statement of the victim under Sections 161 and 164 Cr. P.C. the allegation of rape/sexual assault has not been alleged but, in the Court statement, only the allegation of sexual assault indicating the incident has been alleged. The testimony of prosecutrix, PW-1 and the case of prosecution cannot be relied upon in particular when the said allegation has not been supported by medical and forensic evidence collected against the appellant. It was also urged that if we see the statement of the prosecutrix under Sections 161 and 164 Cr. P.C., she said “chara garyo” to her while, in the Court statement, it was stated that she was sexually assaulted and it would not cause a commission of offence as per the judgment of this Court in the case of State of Sikkim vs. Sashidhar Sharma reported in SLR (2019) SIKKIM 717. It is also contended that as per DNA report, the victim is the biological mother of the newly born baby boy, and the co-accused Jiwan Bhujel @ John is the biological father. Thus, the allegation of rape as alleged did not find support from the DNA report.
It was urged that if this Court is of the opinion that the testimony of the victim is worthy to rely in such a case looking to her testimony, the finding and conviction under Section 3 of the POCSO Act and the sentence under Section 4 of the POCSO Act are not tenable, hardly it may be a case of Section 7 of the POCSO Act and punishment under Section 8 of the POCSO Act is specified. Therefore, considering the alternative argument, the finding and conviction may be set aside and the sentence may be reduced as per Section 8 of the POCSO Act.
Per contra, Ms. Pema Bhutia, learned Assistant Public Prosecutor, contended that as per the allegation alleged by the prosecutrix, the Trial Court has considered the testimony of the prosecutrix which remain withstand to the allegation and there is no cross-examination of those allegation, therefore, the testimony of the victim has been rightly relied upon. The story of commission of rape as alleged by the prosecutrix has been proved and the appellant as well as co-accused, both have been convicted though for separate charges, believing the story of the prosecution, relying the testimony of the prosecutrix. Therefore, such findings do not warrant any interference. On the alternative contention, it is urged that looking to the testimony of the prosecutrix, the Trial Court has rightly convicted the appellant under Section 3, i.e. penetrative sexual assault, although the charge was under Section 5, i.e. aggravated penetrative sexual assault. The said finding of fact is just, to which interference in this appeal either on conviction or on sentence is not warranted.
Courts Observation & Judgment
The court observed, “As per the testimony of the victim so far as it relates to the appellant is concerned, it is said that when she entered into the room where the appellant was watching Television, she was asked to sit on bed and he bolted the door. After pushing her forcibly, he removed her apparels. Thereafter, the accused removed his clothes that he was then wearing and committed sexual assault. As per the testimony of the Doctor or in the scientific report, no evidence has been brought by the prosecution corroborating the said allegation against the appellant. Therefore, looking to the said testimony, the penetration of penis into vagina has not been proved except to alleging the sexual assault. In the said context, if we see the aforesaid provision of Section 7 of the POCSO Act then it is clear that when a person with sexual intent does any other act which involves physical contact without penetration is said to commit sexual assault. Therefore, to analyze the said testimony it is to be seen that what is the meaning of penetration of the penis.
…..the judgment of State of U.P. vs. Babul Nath reported in (1994) 6 SCC 29, wherein the difference of sexual assault or indecent assault has been clarified observing that complete penetration is not essential even partial or slightest penetration with or without emission of semen and rupture of hymen or even an attempt to penetration is sufficient, as per medical jurisprudence.”
The Court relied on Apex Court judgment in the case of Tarkeshwar Sahu vs. the State of Bihar. Wherein it was held that “the important ingredient of the offence under Section 375 punishable under Section 376 IPC is penetration which is altogether missing in the instant case. No offence under Section 376 IPC can be made out unless there was penetration to some extent. In the absence of penetration to any extent, it would not bring the offence of the appellant within the four corners of Section 375 of the Penal Code. Therefore, the basic ingredients for proving a charge of rape are the accomplishment of the act with force. Because of the Explanation to Section 375, mere penetration of the penis in the vagina is an offence of rape. Slightest penetration is sufficient for conviction under Section 376 IPC.”
The Court while partly allowing the petition opined that “the sexual assault has been committed by the accused/appellant with her and to such extend her testimony is in ocular and withstand to those allegations. Therefore, the testimony of the victim cannot be disbelieved to such an extent. Simultaneously, it cannot be ignored that in her testimony the allegation of penetration of virile to the pudendum has not come. However, it is only said that the appellant has sexually assaulted her.
Accordingly, this appeal is hereby allowed in part. The conviction of the appellant for the charge under Section 3 and the sentence so awarded by the impugned judgment is hereby set aside. As per the discussion made hereinabove, the appellant is held guilty for the charge under Section 7 of the POCSO Act and he is directed to undergo the sentence of three years Rigorous Imprisonment with fine of Rs.5000/-, in default, one month Rigorous Imprisonment. The judgment of the Trial Court stands modified in above terms.”
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