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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.