Offence of Rape; Shafi Vs. State [Kerala High Court, 15-06-2016]

Penal Code, 1860 – Ss. 450 & 376(f) – Rape Victim – Since he had attempted to commit rape of the girl of seven years, he had committed an offence punishable under Section 511 of 376 IPC. This was committed after trespassing into the house of the defacto complainant. Having regard to these facts, there is reason to interfere with the findings to that extent arrived at by the court below. Hence, a sentence of five years Rigorous Imprisonment will serve the interest of justice for offence under section 511 of 376 IPC. For offence proved under section 450 IPC also, he shall undergo RI for five years.

# Rape Victim


IN THE HIGH COURT OF KERALA AT ERNAKULAM

SUNIL THOMAS, J.

Crl.A.No.781 of 2011

Dated this the 15th day of June, 2016

AGAINST THE ORDER/JUDGMENT IN SC 450/2010 of IIIRD ADDITIONAL DISTRICT COURT (ADHOC), THODUPUZHA AGAINST THE ORDER/JUDGMENT IN CP 13/2008 of J.M.F.C. – I, IDUKKI

APPELLANT(S) / ACCUSED :

SHAFI

BY ADVS.SRI.P.VIJAYA BHANU (SR.) SRI.THOMAS J.ANAKKALLUNKAL SRI.M.REVIKRISHNAN

RESPONDENT(S) / COMPLAINANT :

STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,, ERNAKULAM.

R BY PUBLIC PROSECUTOR SRI.ABHIJITH LESILI

O R D E R

The sole accused, who stands convicted for offences punishable under

# Section 450 and Section 376(f) of IPC

in SC No.450/2010 of the third Additional Sessions Judge, Thodupuzha, is the appellant herein.

2. The allegation of the prosecution is that the accused, who is a 29 year old neighbour of the 7 year old victim girl, on 6/5/2007 at about 4p.m. trespassed into her house, while she was alone in the house and committed rape on her. FIS was laid on 8/5/2007 by her grandmother, with whom she was residing which was recorded by PW-12. The crime was registered and thereupon the accused was arrested. After completion of the investigation, final report was laid before the Magistrate and on committal, it was tried by the Sessions Court. The accused pleaded innocence. On the side of the prosecution, PW1 to PW15 were examined and ExtsP1 to P18 were marked. Mos 1 to 5 were identified. The court below, on an evaluation of the available records, found the accused guilty of both the offences, convicted and sentenced him to undergo RI for ten years with a fine of Rs.10,000/- and in default payment of fine, to undergo RI for one year for offence punishable under section 450 IPC and RI for ten years with a fine of Rs.10,000/- with a default sentence for the offence punishable under section 376(f) IPC. It was directed that both the sentences shall run concurrently.

3. Aggrieved by the conviction and sentence, the accused has preferred this appeal. Heard and examined the records.

4. The crux of the prosecution allegation was that the victim girl was the grand daughter of PW1 & PW3. PW3 was the husband of PW1 and the child had been living with them, for some time. PW3 was running a petty shop. On 6/5/2011, he had gone to the shop. Since he had to proceed elsewhere in the afternoon, PW1, proceeded to the shop in the afternoon, leaving her grand daughter to the custody of CW4, Chinnamma. While so, the girl is stated to have gone to the house of PW1 to fetch water. In the meanwhile, the accused who is a neighbour came to the house and assisted her in carrying the water. Thereafter, the accused is stated to have caressed her, pressed her private part and after removing her underwear, he pushed his private part into her private part. It was further stated that it resulted in ejaculation. Thereafter, she returned to the house of Chinnamma and the matter was reported to her. She cleaned her dress and private parts and thereafter matter was reported to the grandmother who returned home at about 6 pm. Ext.P1 FIS was laid on 8/5/2007.

5. The prosecution, to substantiate the allegation against the accused, heavily relied on the oral testimony of PW1, the grandmother, PW2 the victim, PW5 neighbour and PW11 who is also a neighbour. Essentially, the quality of evidence is such that direct evidence is available only from PW2, the victim. PW5 and PW11 are the persons, to whom PW2 had disclosed about the incident immediately after the incident. PW5 is a person who is stated to have noticed the presence of the accused in the locality on the relevant day.

6. The defence set up by the accused was one of total denial. He contended that PW5 was maintaining enmity towards him. According to him, PW5 was dealing in illicit arrack, which was reported to the police by him. Thereafter, he was maintaining enmity towards him. Further, he was also maintaining strained relationship with the grand father of the victim. On the date of the incident, he had gone on a trip for unloading granite and was working at the house of a friend. He returned only on the next day, when he allegedly came to know about the incident.

7. There is absolutely no evidence to substantiate the above defence. PW4 was a person who allegedly reached the spot on the date and time of the incident. But, he turned hostile and did not support the prosecution case. On the other hand, his version was to the effect that the the accused was employed in his house on the relevant day. In the above circumstance, the oral testimony of PWs 1,2, 5 & 11will have to be evaluated to decide whether the allegation against the accused has been proved beyond doubt.

8. PW1 in her evidence has deposed that on the date of the incident, she had entrusted the girl to the neighbour and had gone to the shop. When she returned in the evening at about 6p.m., the girl disclosed her about the incident. CW4 Chinnamma had stated that the matter was reported to her also, but she was reluctant to disclose the details of the incident. Thereafter, the girl disclosed the entire details to the grandmother.

9. PW2, the victim had also deposed in detail about the entire incident touching upon the actual commission of offence. The girl stated that on the relevant day, she was in the house of Chinnamma. In the afternoon, she had gone to the house of PW1 to fetch water, when she met the accused. He helped her in taking the water to the house and thereafter he took her to varanda, sat on the floor and placed her on his lap. He pressed her abdomen and buttock. Thereafter, he removed her underwear and pressed his private part against the private part of the girl. She felt pain and cried. After sometime, he left the place. She went to the house of CW3 and disclosed the above details to CW3 and also CW4 Chinnamma. Chinnamma had cleaned her private part and dress and thereafter when the grandmother came to the spot, reported the matter to her.

10. PW3 is the grandfather who has no direct information about the incident. He came to know about the incident on the next day only when it was conveyed by PW1. 11. PW5 is a neighbour, who deposed that he has a property near to the property of the victim. On the relevant day, he had gone to his property and was supervising the agricultural operations there. While so, he noticed the victim girl carrying water to her house. Thereafter, the accused came to the spot, took the water container from her and both proceeded to the house of the victim. After half an hour, he heard PW4 calling the accused from outside. He saw the accused thereupon going out and both proceeding towards Cheruthoni side. He also noticed the victim girl proceeding to the house of CW3. 12. PW11 who is a neighbour of the victim who also saw the accused in the house of the victim, going inside and after some time leaving the location. She also deposed that on the date of the incident, PW4 had trespassed into her house and had attacked her. 13. Learned counsel for the appellant vehemently contended that the prosecution case is not established by the oral testimony of eye witnesses. He also contended that the crucial witness Chinnamma was not examined. It was further contended that the medical and forensic materials also did not support the prosecution case. It was further contended that there was substantial delay in lodging the FIS, which cast serious doubt on the prosecution case.

14. It is true that there was a delay of two days in lodging the FIS. The incident happened on 6/5/2007 at about 4p.m. The FIS was laid only on 8/5/2007 by the grandmother. The explanation offered by PW1 is that they decided to consult the parents of the victim and hence, there was delay in lodging the FIS. PWs 1 & 3 in their evidence had justified the delay and had given a rational explanation. According to them, since the grand child was residing with them, they deemed it fit and proper to consult the parents of the victim. PW1 in her evidence had stated that the mother of the victim was in Ernakulam and the father was in Kanyakumari. Only after consulting them, the complaint was laid.

15. Having regard to the nature of the allegation, seriousness of the entire incident and the fact that the child was in the temporary custody of the grand parents when the incident allegedly took place, it is only normal for the grand parents to discuss with the parents of the victim before lodging the complaint. In a case of this nature, when the delay is sufficiently and satisfactorily explained, it cannot cast any serious doubt on the prosecution case, only on the ground of delay.

16. According to the prosecution, the child was seven years old at the time of the incident. To prove this fact, the prosecution relied on the oral testimony of PW6, who is the mother of the victim and Ext.P3 birth certificate. The above certificate was issued by the Registrar of Births and Deaths on the basis of the original records. It shows the date of birth of the child as 30/5/2000. The mother of the victim also deposed in accordance with the birth certificate. PW3 was not challenged in the cross examination and there was no challenge of any part of Ext.P3 or the oral testimony of PW6, touching upon the version relating to the birth certificate of the child. Hence, the prosecution has succeeded in establishing that the child was aged seven years at the time of the incident.

17. PW9 is the Secretary of the Vazhathoppu Panchayat. Through him Ext.P6 certificate issued by the Panchayat was proved. As per Ext.P6, the grandfather of the girl was the owner of house No.III/669. As per the evidence, the earlier house numbers were V/529, IX/406. The above document proves that the alleged incident happened in the house in the ownership and possession of the grandfather of the victim.

18. The medical evidence marshalled by the prosecution were in the form of Exts.P14 and P12 certificates. Ext.P14 was the potency certificate in relation to the accused issued by PW15. It proves that the physical examination established that there was nothing to show that the accused was incapable of performing the sexual act. Ext.P12 was the certificate issued by PW14 after the medical examination of the victim on 8/5/2007 at 7.45. Ext.P12 indicated that there were no injuries on the genitals of the victim. Vaginal swab was taken, but appears that those were not sent for chemical examination. It was recorded in Ext.P12 that there was no evidence of penetration. PW14 in her evidence deposed in accordance with the above certificate. However, she asserted that hymen was intact and reported that there was no evidence of penetration. On genital area there was no injury. MOs 1 & 2 were the dresses of the victim allegedly worn by her during the relevant time. MOs 3 to 5 were the dresses worn by the accused at the time of the incident. MOs 3 to 5 were seized by Ext.P13 seizure mahazar on 10/5/2007. Mos 1 and 2 were seized by Ext.P5 mahazar also dated 10/5/2007. Ext.P17 was the list of property by which Mos 1 to 5 were produced in the court. Ext.P18 is the forwarding note. The above material objects were forwarded for chemical analysis. Ext.P11 is the FSL report which shows that MO5 which was the underwear worn by the accused allegedly during the incident showed the presence of human semen. Seminal stains were not detected on the other material objects.

19. Relying on the above medical and forensic materials, the learned counsel for the accused vehemently contended that it disproved the prosecution case. According to the learned counsel for the accused, though the victim alleged that she was raped by the accused, the medical evidence did not support the prosecution case. There was absolutely no indication of penetration. It was further contended that only MO5 which was the undergarment worn by the accused was detected with the presence of semen. It was contended that this contradicted the version of the victim that the accused had committed rape of her. It was further contended by the learned counsel for the accused that,according to the victim, the sexual act resulted in emission of semen. But it was not detected from any of of the dresses worn by the victim during the relevant time.

20. It is pertinent to note that PW1 in her evidence had deposed that according to the girl, in the course of the incident the discharge fell on the petticoat of the girl. However, the child had no such version in evidence. Chinnamma had washed it and had cleaned her private parts. Dresses were again washed on the next day. PW2 in her evidence had also stated that the dress and her private parts were washed by Chinnamma. It is pertinent to note that even though the materials on record prove that there was emission, there is absolutely no material to show that in fact, it had spread on the dress of the victim as spoken by her. In fact, PW2 stated that before the sexual act was committed, the undergarment of the girl was removed by the accused. Hence, there was no chance of semen being detected on the undergarment of the victim. Evidently, the seminal strains were detected on the undergarment of the accused. That by itself may not prove that the accused committed rape.

21. Hence, the forensic materials are not of much help to the prosecution. It is also true that the medical evidence in the form of oral testimony of PW12 indicates that there was no evidence of penetration. It is to be noted that the girl was examined two days after the incident. There was no allegation that the girl had sustained any visible physical injury to be noticed by the doctor at the time of examination. It is pertinent to note that the version regarding the alleged act, which is consistently spoken by the victim, could not be demolished in the course of examination. Independently, the oral version of the girl has sufficient credibility, since it could not be demolished in the cross examination. The fact that the allegation of rape was immediately conveyed by the girl to two neighbours, who in turn apprised PW1 , is also on record. The versions of PWs5 and PW11 confirm the presence of the accused in the house of the victim during the relevant time. It is true that at first blush, the version of PW5 may appear to be artificial. He has given very meticulous details of all the persons who had passed through the road abutting the house of the victim during the relevant time. It may appear to be artificial that the witness had noticed all the persons who passed through the road and even recollected the dresses worn by the victim. He identified her dress also. However, it is pertinent to note that there is no reason to doubt the oral evidence of PW5. Even though it was alleged that PW5 was in enemical terms with the accused, there is no material to prove that. Version of PW5 indicates that he came to know about the incident on the next day itself. Hence, the facts which he noticed on the previous day could be imprinted clearly on his mind. Hence, there is no reason to doubt the version of PW5, though he has given very meticulous details of the accused during the relevant date,time and the place of the incident. PW11 has also confirmed the presence of the accused in the house of PW1.

22. Having regard to the above facts, there is absolutely no reason as to why the oral testimony of the witnesses should be discarded or eschewed. It is also true that the medical evidence did not support a theory of penetration. It has been consistently held by the Supreme Court in various decisions that actual penetration, whether partial or full, followed by emission or otherwise may constitute rape. In

# Mohammed v. State of Kerala [1987 (2) KLT 565]

referred to in

# Santhosh Madhavan v. Circle Inspector of Police (2008 (3) KLT 558)

it was held

“ to constitute the offence of rape, it should not be necessary that there should be complete penetration of the penis with emission of semen and rupture of the hymen, and even an attempt at penetration is sufficient. Partial penetration of the penis within the labia majora of the vulva or pudendum with or without emission of semen is sufficient for other purpose of law”.

This was reiterated in several cases including

# Ranjit Hazarika v. State of Assam, (1988) SCC (Crl.) 1725

and

# Amar Kumar and another v. State of Haryana, (2004) SCC Crl. 1266

It has been held that a minor penetration itself will be sufficient to constitute offence under Section 376. It was further held that non- rupture of hymen, absence of injury on victim’s private part, etc. do not belie the testimony of the victim. In

# Parminder Alias Ladka Pola v. State of Delhi(2014) 2 SCC 592

at para 10, the Hon’ble Supreme Court relied on a passage from Modi in Medical Jurisprudence and Toxicology (21 st Edn.) “Thus, to constitute the offence of rape it is not necessary that there should be complete penetration of penis with emission of semen and rupture of hymen. Partial penetration of the penis within the labia 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 the law. It is, therefore, quite possible to commit legally the offence of rape without producing any injury to the genital or leaving any seminal stains: Section 375 IPC defines the offence of “rape” and the Explanation to Section 375 IPC, states that -penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape. This Court has accordingly held in

# Wahid Khan v. State of M.P. (2010) 2 SCC 9 : (2010) 1 SCC Crl. 1208

that even the slightest penetration is sufficient to make out an offence of rape and depth of penetration is immaterial. In the aforesaid case, this Court has relied on the very same passage from Modi in Medical Jurisprudence and Toxicology (22nd Edn.) quoted above. Though medically slight penetration may not satisfy the test, legally it is sufficient to constitute offence under section 376. This has been held in

# Behru Lal v. State of Rajastan, 2004 Crl. LJ 1677

relied on by the court below. It is pertinent to note that PW2 in her evidence had stated that the accused sat on the floor, made her to sit on the lap and had pressed his private part against the “private part area” of the girl. The undergarment of the girl was removed. It is also pertinent to note that even though there is allegation that there was ejaculation and it fell in petticoat, this is not proved by forensic evidence. The girl had also stated that she felt pain and had cried. But corresponding injuries, not even bruises were seen on her private parts. Doctor had specifically ruled out evidence of penetration. Doctor did not even say that there was evidence of even slight penetration into the vulva. Hence the evidence of the accused at the most prove a case of attempt to commit rape in the absence of any reliable material to convincingly prove penetration, even to slightest.

23. Having regard to the above nature of allegation, it is only to be held that evidence on record clearly establishes an offence of a lesser degree than one alleged against the accused in the absence of clear evidence of penetration to any extent. Since he had attempted to commit rape of the girl of seven years, he had committed an offence punishable under Section 511 of 376 IPC. This was committed after trespassing into the house of the defacto complainant. Having regard to these facts, there is reason to interfere with the findings to that extent arrived at by the court below. Hence, a sentence of five years Rigorous Imprisonment will serve the interest of justice for offence under section 511 of 376 IPC. For offence proved under section 450 IPC also, he shall undergo RI for five years.

24. Having regard to these facts, the finding of the court below is liable to be interfered and is to be modified. Appeal is allowed in part modifying the conviction as one under Section 511 of 376 IPC and sentence imposed by the court below is modified to RI for five years and a fine of Rs.10,000/-, in default he shall undergo SI for two months. For offence punishable under Section 450 IPC he shall undergo RI for five years. Both sentences shall run concurrently. Set off granted.

Appeal is allowed in part as above. Accused if on bail, shall surrender to undergo remaining part of sentence.

Comments