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PETITIONER: MADAN GOPAL KAKKAD

       Vs.

RESPONDENT: NAVAL DUBEY AND ANR.

DATE OF JUDGMENT29/04/1992

BENCH: PANDIAN, S.R. (J) BENCH: PANDIAN, S.R. (J) FATHIMA BEEVI, M. (J)

CITATION:  1992 SCR  (2) 921        1992 SCC  (3) 204  JT 1992 (3)   270        1992 SCALE  (1)957

ACT:      Indian Penal Code, 1860 :      Ss.   375,  376-Rape-Accused-Medical   graduate-Causing slight  penetration  into  vulva of  8  years  girl  without rupturing  hymen-Medical evidence indicating  hymen  intact, abrasion  on medial side of labia majora and redness  around labia  minora-Offence-Whether constituted  rape-Trial  court not accepting prosecution evidence recorded acquittal-Appeal against   acquattal-High   Court   held  victim’s   evidence satisfactory and found sufficient corroboration on  material aspects, believed extra-judicial confession of accused being voluntary not obtained by force, coercion etc., but accepted victim’s  evidence in part, convicted accused under  s.  354 and  sentenced  him  to fine of Rs.  3000 only-Legality  of- Conviction altered to one under s. 376 by Supreme Court.      penology-Sexual  assault  on  female   children-Accused committed  rape  on  8  years  girl-Conviction-Sentence   to commensurate with gravity of offence.      Indian Evidence Act, 1872 :      S.  24-Extra-judicial  confession-Corroboration-Whether necessary.      S.   45-Expert  opinion-Medical  witness-Evidence   of- Whether of advisory character-Legal opinion of witness as to nature of offence-Whether can be accepted.      Code of Criminal Procedure, 1973 :      S.    378-Appeal   against    acquittal-High    Court’s jurisdiction-Whether  plenary  and unlimited to  review  the entire evidence. ^     The respondent, a medical  graduate, was  indulged  in gratifying  his  animated passions and sexual  pleasures  by sexually assaulting and molest-                                                        922 ing young girls.

HEADNOTE:      The  victim  girl (PW. 13) aged about 8 years  was  the daughter  of  the  neighbour of the respondent.  She  was  a friend  of respondent’s niece and both the children used  to play  together.  According to the prosecution case,  on  the fateful  day  when respondent’s niece and PW.  13  with  her younger  brother were playing in respondent’s drawing  hall, and there was no one else in the house, the respondent  sent

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his niece with younger brother of PW. 13 outside. He  bolted the door from inside, completely stripped off himself,  made PW.  13  completely  naked and asked  her  to  do  fellatio. Thereafter he slightly inserted his penis into her vulva and lay  over her. After sometime he freed the child. While  she was leaving the drawing hall, the respondent threatened  her not  to  disclose  his  affairs  to  anyone.  She,  however, narrated the incident to respondent’s niece.      In the evening PW. 13 told her mother (PW. 6) that  the respondent  had asked her to suck his private part. She did not  narrate  the whole incident out of fear. The  next  day when  PW.  13  and respondent’s niece were  talking  of  the incident,  their friend PW. 12 came there. PW.  13  narrated the  incident  to her and other girl friends. On  the  third day,  PW.  13  told the entire incident to  her  mother  who conveyed it to her neighbours PWs. 9 and 10 on telephone. At about  9 p.m. when the appellant (PW.5), the father  of  the victim girl, returned home and learnt about the  occurrence, he  accompanied  by  PWs. 7,9 and 10  went  to  respondent’s house,  but he was not there and they informed  the  brother and sister-in-law of the respondent of the purpose of  their visit.  They  all  waited  there  till  midnight  when   the respondent  came. The respondent, assessing  the  situation, voluntarily  confessed his crime. He admitted that he  raped PW.  13  and  also  committed  the  same  crime  on  earlier occasions with his niece and other minor girls, but being  a doctor  he  had  been careful enough not  to  rupture  their hymen.  The  brother of the respondent begged of PW.  5  and others  not to do anything till the arrival of his  parents. Next  morning  when respondent’s parents reached,  he  again admitted his abominable crime of sexual assault on PW. 13.      It  took  2-3  days  more to PW. 5  to  get  a  written complaint  (Ext. P.7) lodged with the police through PW.  8. The  police  investigation culminated in the  trial  of  the respondent for an offence of rape committed on PW. 13.      The  trial court held that the prosecution against  the respondent  was launched due to some enmity between the  two families and that the                                                        923 prosecution  did  not  adduce any  acceptable  evidence  for holding  the respondent guilty of offence under s. 376  IPC. It accordingly acquitted the respondent.      The  State  filed an appeal an  against  the  acquittal before the High Court. The complainant-appellant also  filed a criminal revision challenging the legality of the order of acquittal.  On  the  basis of an  artical  relating  to  the incident  published  in a foreign magazine, a  petition  was addressed  to the Chief Justice of India with a copy to  the Chief Justice  of the High Court concerned and on its  basis another criminal revision petition was registered. The  High Court disposed of all the three cases by a common  judgment. It accepted the oral testimony of prosecution witnesses  and the  extra-judicial confession made by the  respondent.  It, however,  held the respondent guilty of an offence under  s. 354  IPC and sentenced him to pay a fine of Rs. 3,000  only. The complainant-appellant filed the appeal by special  leave to this Court.  The State did not file any appeal.      It  was contended on behalf of the appellant  that  the High Court erred in holding the respondent guilty of a minor offence under s. 354 IPC when all the necessary  ingredients to  constitute  an offence punishable under s. 376  IPC  had been  satisfactorily established; and the sentence  of  fine alone  imposed was grossly inadequate and  not  commensurate with the gravity of the offence committed by the respondent.      Allowing  the appeal and setting aside the judgment  of

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the High Court, this Court,      HELD   :   1.  The   prosecution   has   satisfactorily established  its case that the respondent committed rape  on PW. 13 by proving all the necessary ingredients required  to make  out  an offence of rape punishable under  Section  376 IPC. [p. 947 B]      2. When the evidence of PW. 13-that the respondent  put his  male  organ  inside her vagina  and  clutched  her  and thereafter  she suffered pain-is taken with the evidence  of medical officer who found an abrasion on the medical side of labia  majora and redness present around the  labia   minora with  white  discharge even after 5 days, it can  be  safely concluded  that  there was partial  penetration  within  the labia  majora  or the vulva or pudenda which  in  the  legal sense is sufficient to constitute the offence of                                                        924 rape.  Moreover,  the  respondent  himself  confessed  twice admitting the commission of rape without rupturing the hymen which  confession is not disbelieved by the High Court.  [p. 946 C; E-F]      3.1.  The evidence of PW. 13 is amply corroborated  not only by the medical evidence and the evidence of PW. 12  but also  by the  plenary confession of the respondent  himself. [p. 947 A]      3.2  Even  in  cases  wherein there  is  lack  of  oral corroboration to that of a prosecutrix, a conviction can  be safely  recorded, provided the evidence of the  victim  does not suffer from any basic infirmity, and the  ‘probabilities factor’ does not render it unworthy of credence, and that as a  general  rule,  corroboration cannot  be  insisted  upon, except  from the medical evidence, where, having  regard  to the  circumstances  of  the case, medical  evidence  can  be expected to be forthcoming. [pp. 939 GH; p. 940 A]      Rameshwar  v.  State  of  Rajasthan,  [1952]  SCR  377; Bharwada Bhoginbhai Hirjibhai v. State of Gujarat, [1988]  3 SCC 217; Krishan Lal v. State of Haryana, [1980] 3 SCC  159, referred to.      4.1  In  order to constitute an offence  of  ‘Rape’  as envisaged  by  the first Explanation to s.  375  IPC,  while there  must  be  penetration in  the  technical  sence,  the slightest penetration would be sufficient and a complete act of sexual intercourse is not at all necessary. [p. 945 D-H]      Parikh’s   Textbook   of  Medical   Jurisprudence   and Toxicology;  Encyclopedia  of Crime and Justice  (Vol.4)  at page 1356; Halsbury’s  Statutes of England and Wales (Fourth Edition)  Volume  12; Harris’s Criminal Law  (Twenty  Second Edition)  at page 465; Gaur’s "The Penal Law of  India"  6th Edn.  (Vol.  II)  p.  1678;  Code  236  of  Penal  Code   of California, referred to.      R.v.Hughes,  [1841[ 9 C & P 752; R.v. Lines,  [1844]  1 Car  & Kir 393; R.v. Nicholls, [1847] 9 LTOS 179;  Natha  v. Emperor,  26  Cr.L.J.  [1925]  page  1185;  Abdul  Majid  v. Emperor,  AIR 1927 Lahore 735 (2); Mussammat Jantan  v.  The Crown,   [1934]  Punjab  Law  Reporter  (Vol.  36)  p.   35; Ghanashyam  Mishra  v. State, [1957] Cr.L.J.  469  AIR  1957 Orissa 78; D. Bernard v. State, [1974] Cr.L.J. 1098;  Prithi Chand v. State of Himachal Pradesh, [1989] 1 SCC 432; In  re Anthony, AIR 1960 Mad. 308, referred to.      4.2  In  the  instant  case  there  is  acceptable  and reliable evidence that                                                        925 there   was  slight  penetration  though  not   a   complete penetration. [p. 946 B]      4.3.  The medical officer was of the opinion  that  the abrasion measuring one and a half inches in length found  on

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the  medial side of the labia majora and the redness  around the  labia  minora  could have been caused on  the  date  of incident.  [pp. 942 H; 943 A]      Merely  because the inexperienced medical  officer  has opined  that it was an attempt to commit rape,  probably  on the  ground that there was no sign of complete  penetration, her legal opinion as to the nature of the offence  committed by the respondent cannot be accepted. (p. 943 CD]      4.4. A medical witness called in as an expert to assist the  Court is not a witness of fact and the  evidence  given by  the medical officer is really of an  advisory  character given  on  the basis of the symptoms found  on  examination. The  expert witness is expected to put before the Court  all materials inclusive of the data which induced him to come to the  conclusion  and enlighten the Court  on  the  technical aspect  of  the case by explaining the terms of  science  so that  the  Court although, not an expert may  form  its  own judgment  on those materials after giving due regard to  the expert’s  opinion  because  once  the  expert’s  opinion  is accepted,  it is not the opinion of the medical officer  but of the Court. [p. 943 D-F]      R. v. Ahmed Ali, 11 WR Cr. 25; Pratap Misra v. State of Orissa, AIR 1977 SC 1307, referred to.      Medical  Jurisprudence  and Toxicology,  (Twenty  First Edition) by Modi, referred to.      5. Law does not require that the evidence of an  extra- judicial  confession  should in all cases  be  corroborated. However,   the  confession  of  the  respondent   is   amply corroborated  by the evidence of the victim (PW.  13)  whose testimony in turn is  corroborated by PWs. 5, 6, 7, 9 and 10 and also by the medical evidence. [p. 939 B-C]      Piara  Singh  v.  State of Punjab, [1978]  1  SCR  597, referred to.      6. In view of s. 378 of the Code of Criminal Procedure, 1973 (corresponding to s. 417 of the old Code), in cases  of appeals  against acquittal as a matter of jurisdiction,  the whole case is at large for review by the High Court both  as to the facts and the law and it is clothed with the plenary                                                        926 powers to go through the entire evidence and to come to  its own  conclusions  of  guilt or  otherwise  of  the  indicted persons  as  the  established facts  warrant  and  to  award appropriate  sentence  which will be commensurate  with  the gravity of the offence in case of conviction.                                         [pp. 940 DE; 941 EF]      Sheo Swarup and others v. King Emperor, AIR 1934 PC 227 (2)  Wilayat Khan & Others v. State of U.P., AIR  (2),  1953 S.C.  122; Surajpal Singh and others v.  The  State,  [1952] SCR 193; Tulsi Ram v.  The State, AIR 1954 S.C.I.; Aher Raja Khima  v.  State  of Saurashtra, [1955] 2  SCR  1285;  Radha Kishan  v. State of U.P., [1963] Supp. 1 SCR  408;  Jadunath Singh  and others, etc. v. State of Uttar Pradesh, [1971]  3 SCC  577;  Dharam Das v. State of U.P., [1973]  2  SCC  216; Barati v. State of U.P., [1974] 4 SCC 258 and Sethu Madhavan Nair v. State of Kerala, [1975] 3 SCC 150, referred to.      7.1.  The  findings  of the  High  Court,  rendered  in exercise of its appellate jurisdiction are findings of  fact which  cannot  be  reopened in appeal  especially  when  the respondent has not challenged those findings and when  there is  absolutely  no  reason muchless  compelling  reason  for holding that those findings are either in utter disregard of the evidence or unreasonable and perverse or any part of the evidence in favour of the respondent is jettisoned. [p.  936 FG]      7.2.  Although the High Court was fully satisfied  with

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the  evidence  of  the victim PW. 13  and  found  sufficient corroboration on all material particulars from the  evidence of  PWs.  5,  6, 9, 10 and 12  and  held  the  extrajudicial confession  given  by  the  respondent  as  true  and   made voluntarily and not obtained by any inducement, coercion  or threat and that there could be penetration without  rupture, yet,  having  accepted the entire  prosecution  evidence  in toto,  it  committed an error in entertaining a  doubt  with regard  to the accusation of rape holding that there was  no sign of injuries and that the offence was not one punishable under  s. 376 IPC or under s. 376 read with s. 511  IPC  but only one under s. 354 IPC.                                                [p. 936 A-C]      7.3.  The  High Court even after  observing  that  "the respondent’s  activities were menace to the neighbours"  has shown  a misplaced sympathy to the respondent which has  led to the miscarriage of justice.  The finding that the offence is one of outraging the modesty of woman for which  sentence of   imprisonment  is  not  compulsory  is   erroneous   and untenable.                                                 [p. 942 A-C]                                                        927      8. Having regard to the seriousness and gravity of  the repugnant  crime  of rape perpetrated on PW. 13  who  was  8 years  old  on the date of the commission  of  the  offence, while convicting the respondent under Section 376 IPC he  is sentenced to undergo  rigorous imprisonment for a period  of seven  years and to pay a fine of Rs. 25,000 to  the  victim girl.                                                [p. 948 B-C]      9.  Though all sexual assaults on female  children  are not  reported  and  do not come to light  yet  there  is  an alarming and shocking increase of sexual offences  committed on  children.  This is due to the reasons that children  are ignorant  of the act of the rape and are not able  to  offer resistence and become easy prey for lusty brutes who display the  unscrupulous,  deceitful and insidious  art  of  luring female children and young girls.  Therefore, such  offenders who   are  menace  to  the  civilised  society   should   be mercilessly  and inexorably punished in the severest  terms. [p. 948 EF]      A.R.  Antulay v. R.S. Nayak and Another, [1988]  2  SCC 602 at page 673, referred to.

JUDGMENT:      CRIMINAL  APPELLATE JURISDICTION : Criminal Appeal  No. 447 of 1988.      From  the  Judgment  and Order dated  5.9.1986  of  the Madhya Pradesh High Court in Criminal Appeal No. 1023/83.      Ms. Pinky Anand and D.N. Goburdhan for the Appellants.      B.P. Singh and umanath Singh for the Respondents.      The Judgment of the Court was delivered by      S.  RATNAVEL PANDIAN, J. The factual matrix leading  to the  filing  of this appeal which is quite simple  gives  an account  of  a  sordid and obnoxious  incident  wherein  the respondent, a medical practitioner who had created a private hell  of  his own was gratifying his animated  passions  and sexual  pleasure by sexually assaulting and molesting  young girls  not  only in utter disregard of the  universal  moral code, human dignity, his professional ethics and values  but also in flagrant violation of the law of the country.      The   brief  facts  of  this  shameless   intrigue   as unravelled by the prosecution at the trial are as follows:

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                                                      928      The respondent/accused who just then graduated from the Medical  College was staying with the family  consisting  of his parents, his brothers, his sister-in-law Smt. Tara Dubey and   niece  Richa  Dubey,  who  is  the  daughter  of   the respondent’s  step-brother  Niraj Dubey,  in  Adarsh  Nagar, Jabalpur.   His  father  Bhagwan Dass  Dubey  (DW-2)  was  a retired  Professor and his sister-in-law Tara  Dubey  (DW-1) was  a lecturer.  His another elder brother at the  relevant time  of  this occurrence was working as  Superintendent  of Police  in Rajgarh District.  Opposite to his house at  some distance Satish Bhasin (PW-9) and Sapna Bhasin (PW-10)  were residing  with their minor daughter Priti.  Within the  same locality  3  or  4  houses  away  from  the  house  of   the respondent/accused,  the appellant Madan Gopal Kakad  (PW-5) was living with his wife, a German lady, by name,  Elesabeth Kakad (PW-6), his sister Veera (PW-7) and his minor daughter Tulna  Sheri  (PW-13),  a girl aged about 8  years  and  his younger  son Pulkit.  The family members of  the  respondent and PW-5 were on cordial relationship making frequent visits to the houses of each other.      Tulna Sheri (PW-13) the unfortunate victim in this case was  studying  in the third standard in St.  Joseph  Convent along  with her class-mate Richa Dubey.  Tulna used to  come frequently to the house of the respondent to play with Richa Dubey and her other girl friends.  Tarun Lata Joshi  (PW-12) was living with her father who was a tenant in the house  of PW-5.      According to the prosecution, the respondent who had  a crush  on  young girls used to develop friendship  with  the girls  who used to come to his house to play with his  niece Richa  Dubey  by narrating interesting  stories  from  comic books.   On  the day of this deplorable  incident,  i.e.  on 2.9.1982 at about 4 or 5 p.m.  Richa Dubey called Tulna (PW- 13)  stating that her mother wanted her.  Accordingly  Tulna wearing  underwear   and jeans accompanied  by  her  younger brother  Pulkit went to the house of Richa, but  found  none except  the  respondent.  The respondent  found  fault  with Tulna  for  having come there in jeans  accompanied  by  her brother.   When  the  two girls,  namely,  Tulna  and  Richa started   playing  in  the  drawing  room,  the   respondent whispered  something  in the ears of Richa,  who  then  told Tulna that she had been asked by her uncle (the  respondent) to take Pulkit outside and narrate him some stories and that the respondent would ‘make love’, presumably meaning that he would   tell  some  lurid  tales  of  sex  to  her   thereby stimulating immoral thoughts so that Tulna might fall a prey to his lewd and lascivious behaviour.  As soon as Richa went outside taking Pulkit,                                                        929 the  respondent  bolted  the door  from  inside,  completely stripped  off  himself; removed the jeans and  underwear  of Tulna  and  made her naked and asked Tulna to  do  fellatio, that  is  to  suck his  penis.   Thereafter  the  respondent cuddled and pined Tulna close to him, and slightly  inserted his  penis  into  her vulva and started  sucking  her  lips. Within a few seconds, he ejaculated and freed the girl  from his  clutches  and thereafter put on his pyjamas  and  asked Tulna  to wear her jeans.  Again the respondent longing  for his  lascivious  passion, laid down Tulna on a sofa  in  his drawing room and remained lying on her and closed her  mouth so  that  the girl could not scream.  A little  later  after wetting  his  sexual  appetite he got up;  opened  the  door allowed the girl to go out.  While the girl was leaving  the drawing hall, the respondent threatened her not to  disclose

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his  affair to anyone, otherwise his elder brother who is  a high  ranking  police  office  would  mercilessly  beat  her parents.   Tulna came out of the room and told Richa  as  to what all happened inside the room.      In  the evening of that day she told her mother  (PW-6) that the respondent was a dirty fellow and he had asked  her to suck his private part, to which PW-6 instructed not to go to  the house of respondent thereafter.  However, Tulna  did not  narrate the entire episode to her mother on the day  of the  incident  evidently  out of  fear.   When  Tulna  again narrated  this  incident to Richa, the latter told her  that her Chacha, referring to respondent, was like a dog and that he  used to do the same thing with her also by stripping  of her  whenever she came from the school and whenever she  was lying  on her bed and further told that the respondent  when asked as to why Tulna and Priti are in fair complexion,  her chacha  replied that their complexion is fair  because  they sucked  his male organ and that if Richa also did  the  same thing she would also become very fair in her complexion. PW- 12,  Tarun Lata Joshi, who was present nearby  seeing  Tulna and  Richa  whispering each other asked them  what  was  the matter.   Tulna narrated the incident to her and other  girl friends.   On the next day, seeing the  respondent  standing near  the gate of his house  Tulna repeated the same  remark to her mother (PW-6).  Thus on the third day, Tulna told her mother  the entire incident which took place in the  drawing hall of the house of the respondent on 2.9.1982.      On  hearing  this horrid episode, PW-6  was  very  much annoyed  and  conveyed  this painful and  jarring  piece  of information  to  PW-7  (Veera).  Then  PW-6,  reeling  under terrible shock, telephoned to her neighbours                                                        930 PWs  9  and  10 and informed them  about  the  sexual  abuse perpetrated  by  the respondent on her daughter.   At  about 9.00  p.m.  the appellant, Madan Gopal (PW-5)  came  to  his house  and  learnt  about the occurrence.   Faced  with  the traumatic  situation, the helpless  panic  stricken  parents who have been so deeply disturbed by the dehumanising act of the respondent rushed with boiling blood to the house of the respondent  accompanied by PWs 7, 9 and 10 and searched  for the  respondent,  but could not find him there.   They  then informed the purpose of their visit to the elder brother and sister-in-law  of the respondent who told PWs 5 and  6  that the respondent had gone to a cinema hall and they would send the  respondent’s younger brother to fetch him.   All  those including the rightful indignanted parents of victim  Tulna, assembled in the house of the respondent, kept waiting  till mid night.  The respondent after returning from the  theatre realising  that   the entire atmosphere was thick  with  the charge of sexual molestation against him and finding him  in culde-sac  voluntarily confessed his crime stating  that  he had  raped  Tulna and also had committed the  same  kind  of sexual  assault on earlier occassions with Richa, Priti  and other girls of that locality, but being a Doctor he had been careful  enough  not to repture their hymen.  When  PW-5  on being  acerbated  and  mentally  perturbed  on  hearing  the confessional  statement  rushed towards  the  respondent  to attack  him, respondent’s brother and sister-in-law fell  at the  feet  of  PW-5 and pathetically  beseeched  not  to  do anything  till the arrival of the parents of the  respondent in the next morning.      Coming  to  know to the arrival of the  father  of  the respondent  Bhagwan  Dass (DW-2) with his wife on  the  next morning, Madan Gopal, (PW-5) along with PWs 6, 9 and 10  met DW-2  who took strong objection for PW-5’s behaviour on  the

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last   night.   When  PW-5  informed  DW-2  that   his   son (respondent)  had raped his minor daughter Tulna,  DW-2  was not prepared to believe their accusation.  Thereafter at the request  of  PW  5, he called his son  and  questioned  him. Though   the  respondent  first  abjured  his    complicity, however, admitted his abominable crime of sexual assault  on Tulna.  Thereupon Bhagwan Dass gave his stick to Madan Gopal and  said  that it was for PW 5 either to show mercy  or  to give corporeal punishment as he deemed fit and also made  an earnest appeal to PW-5 not to precipitate any action against his  son.  Presumably, PW-5 and his family members  thinking that  the  police  might not take  any  action  against  the respondent since his brother was a Superintendent of  Police and  his family was wielding a high influence in  that  area and also fearing that any publicity                                                        931 of  this  incident  would bring only a  disrepute  to  their family  and that the future life of their daughter would  be completely  shattered, suffered in silence for 2 or 3  days, without approaching any authority.  However, on 7.9.1982 PW- 5  mustered  his strength and decided to  lodge  a  criminal complaint  against the respondent.  Accordingly,  he  handed over  a written complaint Ext. P-7 to his  friend.   Subhash Bhujbal  (PW-8) and got it delivered at the police  station. On  the strength of Ext.  P-7 a case was registered  by  the SHO   of   Goprakhpur  Police  Station   (PW-11)   and   the investigation  was  entrusted to ASI  (PW-14).   During  the course  of  the investigation the victim Tulna  (PW-13)  was examined by Dr. Chitra Tiwari (PW-4) on 7.9.82 on being sent by  the police.  According to PW-4 there was an abrasion  on the  medial  side of Labia Majora about  1-1/2"  in  length, redness  present  around  the  labia  minora  with  a  white discharge,  and hymen was intact and admitted tip of  little finger.   PW-4 has opined that an attempt to rape  had  been made.   Ext.  P-6  is the  medical  certificate.   PW-4  has further stated that she prepared a slide for confirmation of the  white  discharge  found around labia  minora.   In  the cross-examination  she has deposed that the white  discharge was not flowing out, but it was at the same place where  she noticed  the redness and the discharge could have been as  a result  of  infection  which itself could  have  caused  the redness  found around labia minora.  Further she has  stated that  she  did  not find any crest  on  labia  majora.   The Chemical  Examiner after examination of the slide, sent  his report Ext.  P-13 which did not reveal any seminal stains in the  virginal smear.  PW-2, a Medical Officer  examined  the respondent on 13.9.82 and found him as a virile person  with well  built body capable of performing sexual  inter-course, but  found  no injuries on his  person.   The  Investigating Officer after examining all the witnesses and completing the investigation filed the charge sheet against the  respondent for the offence of rape punishable under Section 376 IPC.      The respondent took his trial on the indictment that he committed  rape on Tulna between 4 and 5 p.m. on  2.9.82  in the  drawing hall of the house of respondent.  The  totality of the evidence on the basis of which the prosecution  rests its case consists of three categories, namely, (1) the  oral testimony of the PW-13 corroborated by PWs 6 and 12; (2) the extra-judicial  confession  made by the  respondent  on  two occassions; and (3) the medical evidence.  Of the  witnesses examined  Tulna  (PW-13)  alone  speaks  about  the   actual commission  of  rape  on her.   Though  Tulna  reported this unpleasant incident to Richa immediately after coming out of the drawing                                                     932

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hall,  Richa  has  not  been  examined  by  the  prosecution obviously  for the reason that Richa is none other than  the niece   of  the  respondent  himself.   The  next   set   of corroborating   witnesses  who  speak  about  the   victim’s reporting  about  the  incident are PW 6  and  12.   On  the evening  of the date of incident even though Tulna  reported to her mother that the respondent was a bad man and that  he asked  her to suck his penis, she did not reveal  the  other part of the incident relating to the commission of the  rape obviously  fearing that her parents would beat her.  It  was only  on the third day, the mother (PW-6) came to know  from Tulna about the actual incident, presumably after the victim girl  started  reporting this incident to PW-12 and  to  her other  playmates.   The second category of evidence  is  the extra-judicial confession made by the respondent before  PWs 5,  6,  7, 9 and 10 in the house of the  respondent  himself after he had been sent for from the cinema hall.   According to the above witnesses, this confession was made not only in their presence, but also in the presence of the respondent’s brother  and sister-in-law (DW-1).  (It is but natural  that the  brother and sister-in-law of the respondent  would  not figure  as  witnesses  on the side of  the  prosecution  and depose against the respondent.)  According to the  witnesses the confession made by the respondent was thus:          "I have raped the girl, but I have not ruptured her          hymen.   You should not be perplexed, I  know  what          are  my limits, I am a doctor.  You need not to  go          to any doctor."      Thereafter on the next day morning the respondent  made the similar confession before his parents in the presence of PWs  5, 6, 9 and 10 when PW-5 asked the respondent  to  tell the truth before his father by catching hold of him.  On the two  occasions the respondent confessed in English  "I  have raped  the  girl  but not ruptured  her  hymen".   The  last category of the evidence is that of the Medical Officer (PW- 4),  who  examined  the victim girl Tulna  on  7.9.1982  and opined that there was an attempt of rape on Tulna.      The  Trial  Court  for  the  discussions  made  in  its judgment  arrived  at  a  conclusion  that  the  prosecution launched  against the respondent on account of  some  enmity between  the two families and that the prosecution  has  not adduced  any acceptable evidence for holding the  respondent guilty of the offence under Section 376 IPC and consequently acquitted  the  respondent.  The reasons,  assigned  by  the Trial Court for such a conclusion                                                        933 are based on its following findings:          (1) The evidence of PWs 5, 6, 7, 9 and 10 is highly          tainted and as such no safe reliance can be  placed          on their testimony.          (2)   The  extra-judicial  confession   which   the          respondent had retracted cannot be said to be  free          from threat, coercion or promise.          (3) The extra-judicial confession as such seems  to          be  unnatural  and it is wholly the product  of  an          illegal advice and false fabrication.          (4)  The  evidence  of the victim  (PW-13)  is  not          corroborated by other independent evidence.          (5) The First Information Report has been belatedly          lodged  and there is no reasonable explanation  for          such a delay.      On  being aggrieved by the judgment of the Trial  Court acquitting  the  respondent, the State preferred  an  appeal before  the High Court challenging the order  of  acquittal. It  is  seen from the judgment of the High  Court  that  the

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complainant  who  is the appellant before  this  Court  also filed a revision in Criminal Revision No. 596/83 questioning the  legality of the order of acquittal and further one  Jay Rao of New York (U.S.A.) on the basis of an article relating to  this incident that appeared in a German Magazine  called ‘Der Spiegel’ and after visiting Jabalpur sent a petition of grievance  addressed  to the Chief Justice of India  with  a copy  to the Chief Justice of Madhya Pradesh.  On the  basis of this petition, another revision in criminal Revision  No. 599/83 was registered.  The High Court disposed of the State appeal and the two criminal revisions by a common  judgment, whereby it allowed the State appeal for the reasons assigned therein  accepting  the oral testimony  of  the  prosecution witnesses  particularly of PWs 6, 12 and 13 and  the  extra- judicial  confession made by the respondent.   Now  separate orders were passed in the criminal revisions.  However,  the High  Court found the respondent guilty of the offence  only under Section 354 IPC and sentenced him to pay a fine of Rs. 3,000, in default to suffer simple imprisonment for 6 months and also directed a sum of Rs. 2,000 out of the fine  amount if collected to be paid over as compensation to PW-5.      The State has not preferred any appeal before this Court.  However,                                                        934 the  father  of  the  victim  girl,  namely  PW-5,   feeling aggrieved  by the judgment of the High Court has filed  this criminal appeal mainly on two grounds, namely, (1) The  High Court has erred in finding the respondent guilty of a  minor offence  under  Section  354  IPC  when  all  the  necessary ingredients  to  constitute  an  offence  punishable   under Section  376 IPC have been satisfactorily  established;  (2) that  the sentence of fine alone imposed by the  High  Court under  Section 354 IPC for this serious offence  is  grossly inadequate  and is not commensurate with the gravity  of the offence  committed by the respondent.  When the matter  came up for admission before this Court on 25.8.88, the following order was made:          "Special  leave granted, confined to the nature  of          the offence and the sentence to be awarded."      It  is pertinent to note that the  respondent  has not  challenged the findings of the High Court by filing  an appeal  and as such the findings of the High Court  rendered with  reference to the evidence adduced by the   prosecution and  the conviction based upon those findings  have  reached their finality so far as the respondent is concerned.      Before  pondering over the question with regard to  the nature  of the offence and the quantum of punishment  to  be awarded, we feel that it is necessary to recall some of  the findings of the High Court.          1.  The  High Court after observing, "there  is  no          reason  as to why a small innocent girl would  have          laid such a serious charge against the  respondent,          if  it  was not true", held that  the  evidence  of          Tulna  has  been  materially  corroborated  by  her          friend Tarun Lata (PW 12).          2.  Referring to the confession of the  respondent,          it  has been held by the High Court, "Though  there          can be penetration without rupture, the absence  of          any sign of injuries, negatives a case of rape with          a small girl".          3. As regards the evidence of Tulna, the Court  has          held  thus, "The statement of Tulna can  be  safely          accepted  to the extend that the  respondent  after          undressing himself and Tulna, asked her to suck his          organ and he then lay over her.  She has been fully

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        corroborated   by   her  mother   Elsbeth,   father          Madangopal,                                                        935          friend Tarun Lata and neighbours Satish and  Sapna.          They  have no axe to grind against the  respondent.          No  adverse inference can be drawn for lodging  the          report 5 days after the incident."          4. Then referring the corroboration required to the          extra judicial confession made by the respondent on          two  occasions,  the High Court  has  recorded  the          following observation:            "After  realising  that his  misdeeds  have  been            exposed and he can no longer hide himself, he had            not option but to confess.  This was only  option            left  when he was cornered by his own  neighbours            and  relations..............................There            was no question of any coercion or inducement  in            presence  of  his  family  members  in  his   own            house......................The   confession   was            nothing  but by way of repentance for the  wrongs            done  to  the young girls and  other  girls.   It            appears  that  the  respondent  was  a  perverted            person  and  was satisfying his  sexual  urge  by            outraging  modesty of young girls who  fell  easy            prey to his designs."          5. Commenting on the finding of the Trial Court  as          regards  the confession, the High Court  has  said,          "The evidence of extra-judicial confession has  not          been  accepted  because  the  witnesses  have   not          repeated  like parrots in the same words  what  the          respondent  had  uttered but the substance  is  the          same  i.e.  the respondent confessed  that  he  had          violated  (sic)  the  girl but  not   ruptured  her          hymen.   Whether the witnesses said the same  thing          in Hindi or English would not make any difference".          6.  Coming to the probity question of the  evidence          of Tulna, the Court said thus:            "Although  she  was  a  child,  she  had  modesty            alright and was ashamed to tell everything to her            mother.  She was also not sure what would be  the            reaction  of  her mother.  Therefore,  there  was            hesitation on her part.  But she did tell to  her            classmate Richa and also to her friend  Tarunlata            (PW 12) about it on the next day.  Tarunlata  has            corroborated her,.....................We are also            satisfied  that Tarunlata has  deposed  regarding            what she was told by Tulna....................."                                                        936      The  above findings and observations made by  the  High Court  clearly show that the High Court was fully  satisfied with  the  evidence of the victim Tulna (PW  13)  and  found sufficient  corroboration on all material  particulars  from the  evidence of PWs 5, 6, 9, 10 and 12 and that the  extra- judicial confession given by the respondent was true and  it was  not obtained by any inducement, coercion or threat  but on  the  other hand it was voluntarily made and  that  there could  be penetration without rupture.  Having accepted  the entire  evidence adduced by prosecution in toto,  the   High Court  nonetheless  entertained a doubt with regard  to  the accusation of rape holding there was no sign of injuries and held  that the offence is not one punishable  under  Section 376 IPC or under Section 376 read with 511 IPC but only  one under Section 354 IPC on the ground that the respondent  has outraged  the  modesty  of Tulna  by  "feeling  pleasure  in getting him and the victim made necked, asking unwary  minor

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girls  to  fiddle with his organ" taking  advantage  of  the absence  of  the other adult family members  in  his  house. Coming to the question of sentence, the High Court gave  the following reason:          "The  learned  Govt. Advocate has  nothing  to  say          about the sentence.  There can be no doubt that the          act of the respondent is most reprehensible, he was          attempting  to  corrupt innocent and  unwary  minor          girls  and  his  activities  were  menace  to   the          neighbours, but since he is now gainfully  employed          and  there is nothing to show that he is  indulging          in his nefarious activities, no useful purpose will          be served by again sending him to jail and sentence          of fine will meet the ends of justice."      As  we  have pointed out in the preceding part  of this judgment,  the  findings  of the  High  Court,  rendered  in exercise of its appellate jurisdiction are findings of  fact which  in  our  opinion cannot be reopened  in  this  appeal especially  when  the  respondent has not  challenged  those findings  and  when there is absolutely no  reason  muchless compelling reason for holding that those findings are either in  utter  disregard  of the evidence  or  unreasonable  and perverse  or  any  part of the evidence  in  favour  of  the respondent is  jettisoned.  However, we would like to  point out  that  the  trial court has  allowed  some  inadmissible evidence to be let in by the prosecution which evidence  has also  been taken note of and discussed by the Courts  below, such  as  the statement alleged to have been made  by  Richa (not  examined)  to Tulna about  the  respondent’s  abnormal sexual behaviour with her                                                        937 despite  the fact she falls within the prohibited degree  of consanguinity and the evidence touching the character of the respondent that he has sexually assaulted not only Richa and Priti but also a number of minor girls.  We, while analysing and evaluating the evidence and considering the findings  of the High Court quo the sexual assault committed on PW 13  by the  respondent, proceed only on the basis of  the  evidence legally   permissible  without  being  influenced   by   the inadmissible  evidence  and some of  the  observations  made thereon   by  the  Courts  below.   Before  expressing   our independent  opinion  on  the  evidence,  we  give  a  brief background  of the status of the witnesses and  the  cordial relationship  between the family members of  the  respondent and the witnesses.      The  material  prosecution  witnesses  are  all  highly educated and respectable people of the same locality  within which  the  houses of the respondent and the  witnesses  are situated.   PW 5, the father of the victim girl had been  in Germany  working  in the field of journalism for  nearly  18 years  and he is well conversant with English,  Germany  and Hindi  languages.  His wife PW 6 is a German lady who  after having settled in India has learnt to speak in Hindi.  PW 7, who  is  the sister of PW 5, is also a  well  educated  lady working  as  a Teacher in a School.  PW 6 was  enjoying  the facility  of a telephone connection in his house.  PW  9,  a Contractor and his wife PW 10, who are the parents of  Priti are  very respectable people enjoying a high  social  status and  having  their  house  near  about  the  house  of   the respondent,  provided with all modern  facilities  including telephone etc.  It is said that the people in that  locality inclusive  of the family members of the respondent  used  to visit  their house to make use of their telephone.  In  that way  the  family members of the respondent,  PWs  5,  9  and others  were  having a very close and  cordial  relationship

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till  this  incident  occurred.   As  earlier  pointed  out, respondent’s  father was a retired Professor and  his  elder brother  was  then occupying a key position  in  the  Police Force  in the rank of a Superintendent of Police  posted  in the  district  of Rajgarh during the relevant  period.   His sister-in-law  (DW-1)  was a Lecturer and his  uncle  was  a leading  lawyer.   It  is  said  that  the  family  of   the respondent was wielding high influence in that area.   There is  absolutely no evidence, even to remotely  suggest,  that there was any enmity or any kind of misunderstanding between the  families of the respondent and PW 5 till this  incident to  raise the accusing finger against the respondent  either by  the little innocent girl (PW 13) or by PW 5 and to  make this ignoble allegations at the risk of their family  honour and the future prospects of PW 13.  Of                                                       938 course,  the respondent has suggested a motive against PW  5 evidently  drawing  the  same  from  the  fertility  of  his imagination  that Tulna had told him that her  parents  were getting  money for spying for German Embassy and PW 5  after coming  to know of this disclosure of spying has  fabricated this  false  story  of molestation  of  his  minor  daughter fearing that he would be exposed to criminal prosecution  by the respondent’s brother, the Superintendent of Police which defence theory on the face of it has to be thrown  overboard and  which in fact did not find acceptance at the  hands  of the High Court.      Ms  Pinky Anand, the learned counsel appearing for  the appellant having thoroughly marshalled the facts,  presented her persuasive submissions so eloquently in an effective and at the same time in a very supplicatory manner by taking  us through  the entire evidence very meticulously  and  pleaded that   the  spine-chilling  facts  and   the   circumstances surrounding  the  case do demand the  interference  of  this Court with the judgment of the High Court so that the  wrong done due to the erroneous conclusion of  the High Court  may be remedied.  Though Ms Pinky Anand initially put forth  her arguments  on  two  alternative grounds,  namely,  that  the conviction should be altered into one under Section 376  IPC or  the  sentence of fine imposed for the  conviction  under Section  354  IPC  which is  grossly  inadequate  should  be enhanced.   But  she left out the alternative  argument  and stressed  the first part of her submission that the  offence made  out is nothing short of rape punishable under  Section 376  IPC.  At one point of time, she feebly stated  that  at least  the offence will be falling under Section   376  read with  511 IPC on the opinion of PW 4, if not  under  Section 376 IPC which submission she completely gave up subsequently and proceeded vehemently contending that the offence of rape within the definition of Section 375 is clearly made out.      The  learned counsel appearing for the respondent  took much  pain in strenuously opposing the plea, articulated  by Ms Pinky Anand and in supporting the impugned judgment.   He urged  that the conclusion arrived at by the High  Court  is the  reasonable  and  plausible  one  and,  therefore,  that conclusion need not be disturbed.      Though  it  is  not necessary for us to  enter  upon  a reappraisal  or  reappreciation  of the evidence  since  the findings of fact of the High Court have not been challenged, yet we after most carefully and closely scrutinis-                                                        939 ing  the galaxy of the proven facts, have no  hesitation  in agreeing  with  the  High  Court  that  the   extra-judicial confession made by the respondent which is not shown to have been  obtained by coercion, promise of favour or false  hope

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etc.  is  plenary in character and voluntary in  its  nature acknowledging his guilt-i.e. the gravely incriminating  fact of  the commission of rape on Tulna-in precise and  explicit words.  This confession has been made in presence of a  body of  person on two occasions inclusive of the family  members of  the respondent as well as PWs 5, 6, 9 and 10.  PW 7  was present  only  on  the  first  occasion  along  with   other witnesses.   As ruled by this Court in Piara Singh v.  State of Punjab, AIR 1977 SC 2274 = [1978] 1 SCR 597 law does  not require  that the evidence of an  extra-judicial  confession should in all cases be corroborated.  However, coming to the facts of the case, the confession of the respondent is amply corroborated  by  the evidence of the victim (PW  13)  whose testimony  in turn is corroborated by PWs 5, 6, 7, 9 and  10 and also by the medical evidence.      As  regards  the  evidence of PW  13  relating  to  the incident,  the High Court has accepted only one part of  the accusations,  namely, that the respondent asked Tulna to  be an  active  agent of oral copulation by sucking  his  penis, notwithstanding  the  fact that the High Court  without  any compunction  has  accepted the evidence of PW  13  as  being substantially corroborated and the extra-judicial confession of the respondent as being free from any vice and held  that "it is beyond comprehension that the complainant would  have laid  a false and reckless charge against the respondent  by involving  his  own minor daughter Tulna in  such  unsavoury incident for nothing not caring about her future and his own reputation and honour.  There is no reason as to why a small innocent girl would have laid such a serious charge  against the  respondent,  if it was not true."   In  our  considered view, the High Court was not at all justified in reaching  a distorted  conclusion which has resulted in  miscarriage  of justice.      On a careful scanning of the entire records, we have no reservation  in  accepting  the evidence  of  PW-13  in  its entirety and the extra-judicial confession of the respondent which clearly makes out a case for an offence under  Section 376 IPC, the reasons for which we will discuss infra.      There are a series of decisions to the effect that even in cases wherein there is lack of oral corroboration to that of  a  prosecutrix,  a conviction can  be  safely  recorded, provided the evidence of the victim does not suffer from                                                        940 any basic infirmity, and the ‘probabilities factor’ does not render it unworthy of credence, and that as a general  rule, corroboration  cannot  be  insisted upon,  except  from  the medical evidence, where, having regard to the  circumstances of  the  case,  medical  evidence  can  be  expected  to  be forthcoming.   Vide Rameshwar v. State of Rajasthan,  [1952] SCR 377; Bharwada Bhoginbhai Hirjibhai v. State of  Gujarat, [1988] 2 SCC 217; Krishan Lal v. State of Haryana, [1980]  3 SCC 159.      We shall now briefly deal with the principles regarding the  powers of the High Court to review the  evidence  while examining  an  order of acquittal sitting in  its  appellate jurisdiction.      An appeal against acquittal provided under Section  378 of  the Code of Criminal Procedure falls under Chapter  XXIX under  the caption "Appeals".  This Chapter covers  Sections 372 to 394. Whilst Section 374 deals with the ‘Appeals  from Convictions’,  Section  377 deals with the  ‘Appeal  by  the State Government against sentence’.  As stated above Section 378 of the new Code (corresponding to Section 417 of the old Code) gives the High Court full power to review at large the evidence  upon which the order of acquittal was founded  and

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to  reach its own conclusions upon that evidence  either  by reversing  the order of acquittal or disposing of  the  same otherwise  as  facts therein warrant.  In other  words,  the High Court is clothed with the plenary powers to go  through the  entire evidence and to come to its own  conclusions  as warranted by the facts of the case concerned but, of course, subject  to  certain guidelines laid down  by  the  judicial pronouncements.  The Privy Council in Sheo Swarup and others v.  King  Emperor, AIR 1934 PC 227 (2) in dealing  with  the power  of the High Court to review the evidence and  reverse the acquittal held thus:          "Sections 417, 418 and 423 of the Code give to  the          High  Court  full  power to  review  at  large  the          evidence upon which the order full power to  review          at  large  the  evidence upon which  the  order  of          acquittal was founded, and to reach the  conclusion          that  upon  that evidence the  order  of  acquittal          should be reversed.  No limitation should be placed          upon  that  power,  unless it  be  found  expressly          stated  in the Code.  But in exercising  the  power          conferred   by  the Code and before  reaching   its          conclusions  upon fact, the High Court  should  and          will always give proper weight and consideration to          such matters as (1) the views of the trial Judge as          to  the  credibility  of  the  witnesses;  (2)  the          presumption                                                        941          of   innocence   in  favour  of  the   accused,   a          presumption certainly not weakened by the fact that          he  has been acquitted at his trial; (3) the  right          of the accused to the benefit of any doubt; and (4)          the slowness of an appellate court in disturbing  a          seeing the witnesses."      In  Wilayat  Khan & Others v. State of U.P.,  AIR  1953 S.C.122    this Court while examining the scope of  Sections 417  and  423 of the Code pointed out that even  in  appeals against acquittal, the powers of the High Court are as  wide as in appeals from convictions.  See also Surajpal Singh and others  v.   The  State, [1952] SCR 193; Tulsi  Ram  v.  The State,  AIR  1954  S.C.I;  Aher  Raja  Khima  v.  State   of Saurashtra,  AIR  1956 S.C. 217 = [1955]2  SCR  1285;  Radha Kishan  v. State of U.P., AIR 1963S.C.822 = [1963]  Supp.  1 SCR  408 holding that an appeal from acquittal need  not  be treated  different from an appeal from conviction;  Jadunath Singh  and others, etc. v. State of Uttar Pradesh, [1971]  3 SCC  577;  Dharam Das v. State of U.P., [1973]  2  SCC  216; Barati  v.  State  of  U.P., [1974] 4  SCC  258   and  Sethu Madhavan Nair v. State of Kerala, [1975] 3 SCC 150.      We  think  it not necessary to swell this  judgment  by recapitulating all the decisions on this point, but  suffice to say that this Court has consistently taken the view  that in  cases  of  appeals  against acquittal  as  a  matter  of jurisdiction,  the whole case is at large for review by  the High  Court  both as to the facts and the law and  that  the true legal position is that however circumspect and cautious approach  of  the High Court may be in  dealing  with  those appeals  by exercising its plenary and  unlimited  statutory powers,  the  Court is undoubtedly to reach its  own  proper conclusions of guilt or otherwise of the indicted persons as the  established  facts  warrant and  to  award  appropriate sentence which will be commensurate with the gravity of  the offence in case of conviction.      Reverting to the instant case, if the conclusion of the High  Court  that the offence made out  is  only  punishable under Section 354 IPC, is scrutinised with reference to  the

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evidence adduced by the prosecution and tested in the  light of  the above principles of law laid down by this Court,  in our view, the conclusion under challenge is not a reasonable and  justifiable  one  since the totality  of  the  evidence demonstrably  establishes a graver offence.   Moreover,  the sentence  of  fine  alone imposed by  the  High  Court  even assuming that the offence is punishable under Section 354 is                                                        942 grossly inadequate and is not commensurate with the  serious nature  of  the offence.  Of course, this  question  of  the inadequacy  of  sentence  under Section 354  does  not  come within  the purview of our consideration because we  proceed on the footing that the offence is not a mere outraging  the modesty  of woman but much more than that.  Further, we  are constrained to hold that the High Court even after abserving that  "the  respondent’s  activities  were  menace   to  the neighbours" has shown a misplaced sympathy to the respondent which  is patently reflected from the penultimate  paragraph of  its  judgment and which has led to  the  miscarriage  of justice.   The impugned finding that the offence is  one  of outraging  the  modesty  of  woman  for  which  sentence  of imprisonment is not compulsory is erroneous and untenable.      The   next  crucial  question  that  arises   for   our consideration  is  whether the proved  facts  establish  the offence of rape or only attempt to commit rape.  Before  the High Court, the learned Government Advocate appears to  have urged that the offence was punishable under Section 376 read with 511 IPC though the charge was for a specific offence of rape punishable under Section 376 IPC.      The  medical officer, PW 4 who then only 28 years  old, on  examining the victim after 5 days of the  incident  i.e. 7.9.82 has given her opinion as follows:          "From  the above findings, it seems an  attempt  to          rape has been made."      In  the  cross-examination,  the  following  answer  is brought out from the medical officer, PW 4:          "I  concluded about attempt to rape, on account  of          abrasion  and  redness on labia majora  and  minora          respectively."      It is true that this medical officer who could not have gained  much experience by that time has given  her  opinion that  the abrasion found would have been less than  2  days’ duration  which  opinion  of  course  is  not  precise   but approximate   and  probable.   Though  the  prosecutor   who conducted  the case before the trial court has not  put  any question  clarifying her opinion in the  re-examination,  it has been clearly brought out in the cross-examination itself that  the  medical  officer was basing her  opinion  on  the abrasion  found on labia majora and minora.  It  means  that the medical                                                        943 officer  was of the opinion that the abrasion measuring  one and a half inches in length found on the medial side of  the labia  majora and the redness around the labia minora  could have been caused even on 2.9.82.  By this opinion, PW 4  has given a margin of 5 days in fixing the probable duration  of the injury.  The defence counsel has not further pursued and put  any question clarifying the subsequent answer given  by the medical officer regarding the duration of the injury.      Though  in  the grounds of appeal, it  is  specifically stated  that  all ingredients for constituting  an   offence within  the ambit of Section 375, punishable  under  Section 376 IPC are made out, alternatively a hesitant plea is  made that the offence at any rate would not be less than  Section 376  read  with 511 IPC.  We also prima facie  were  of  the

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opinion  that the  offence may be punishable  under  Section 376  read  with 511 IPC but after deeply going  through  the evidence, we have no hesitation in holding that the  offence is  nothing short of rape punishable under Section 376  IPC. Merely because the inexperienced medical officer has  opined that  it  was  an attempt to commit rape,  probably  on  the ground  that there was no sign of complete  penetration,  we are  not inclined to accept PW 4’s legal opinion as  to  the nature of the offence committed by the respondent.      A medical witness called in as an expert to assist  the Court is not a witness of fact and the evidence given by the medical officer is really of an advisory character given  on the basis of the symptoms found on examination.  The  expert witness  is expected to put before the Court  all  materials inclusive  of  the  data which induced him to  come  to  the conclusion  and enlighten the Court on the technical  aspect of  the case by explaining the terms of science so that  the Court  although, not an expert may form its own judgment  on those  materials  after giving due regard  to  the  expert’s opinion because once the expert’s opinion is accepted, it is not the opinion of the medical officer but of the Court.      Nariman,  J.  in  R v. Ahmed ali 11  WR  Cr.  25  while expressing  his  view on medical evidence  has  observed  as follows:          "The  evidence  of a medical man or  other  skilled          witnesses,  however, eminent, as to what he  thinks          may  or may not have taken place  under  particular          combination of circumstances, however, confidently,          he  may  speak,  is ordinarily  a  matter  of  mere          opinion."                                                        944      Fazal Ali, J. in Pratap  Misra v. State of Orissa,  AIR 1977 SC 1307 = [1977] 3 SCC 41 has stated thus:          ".......it    is   well   settled   that    medical          jurisprudence  is  not an exact science and  it  is          indeed  difficult  for  any  Doctor  to  say   with          precision  and exactitude as to when  a  particular          injury  was caused......as to the exact  time  when          the appellants may have had sexual intercourse with          the prosecutrix."      We  feel  that it would be quite appropriate,  in  this context,  to  reproduce  the opinion expressed  by  Modi  in Medical Jurispurdence and Toxicology (Twenty First  Edition) at page 369 which reads thus:          "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 sufficent for the purpose  of          the law.  It is therefore quite possible to  commit          legally  the offence of rape without producing  any          injury  to  the  genitals or  leaving  any  seminal          stains.  In such a case the medical officer  should          mention  the  negative  facts in  his  report,  but          should  not give his opinion that no rape had  been          committed.   Rape  is  crime  and  not  a   medical          condition. Rape is a legal term and not a diagnosis          to  be  made by the medical  officer  treating  the          victim.  The only statement that can be made by the          medical officer is that there is evidence of recent          sexual activity.  Whether the rape has occurred  or          not is a legal conclusion, not a medical one."                                          (emphasis supplied)

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    In  Parikh’s   Textbook of  Medical  Jurisprudence  and Toxicology, the following passage is found:          "Sexual  intercourse: In law, this term is held  to          mean  the  slightest degree of penetration  of  the          vulva  by  the penis with or  without  emission  of          semen.   It is therefore quite possible  to  commit          legally  the offence of rape without producing  any          injury  to  the  genitals or  leaving  any  seminal          stains."                                                        945      In  Encyclopedia of Crime and Justice (Vol.4)  at  page 1356, it is stated:           ".....even  slight penetration is  sufficient  and emission is unnecessary."      In  Halsbury’s  Statutes of England  and  Wales  (Forth Edition) Volume 12, it stated that even the slightest degree of  penetration  is sufficient to prove  sexual  intercourse within the meaning of Section 44 of the Sexual Offences  Act 1956.   Vide R v. Hughes, [1841] 9 C & P 752 ; R  v.  Lines, [1844] 1 Car & Kir 393 and R v. Nicholls, [1847] 9 LTOS 179.      See also Harris’s Criminal Law (Twenty Second  Edition) at page 465.      In  American  Jurisprudence, it is stated  that  slight penetration  is  sufficient to complete the crime  of  rape. Code 263 of Penal Code of California reads thus:          "Rape;   essentials-Penetration  sufficient.    The          essential guilt of rape consists in the  outrage to          the person and feelings of the victim of the  rape.          Any   sexual   penetration,  however   slight,   is          sufficient to complete the crime."      The  First  Explanation to Section 375 of  India  Penal Code which defines ‘Rape’ reads thus:          :Explanation-Penatration    is    sufficient     to          constitute the sexual intercourse necessary to  the          offence of rape."      In interpreting the above explanation whether  complete penetration  is necessary to constitute an offence of  rape, various High Courts have taken a consistant view  that  even the  slightest  penetration  is sufficient to  make  out  an offence of rape and the depth of penetration is  immaterial. Reference  may  be  made to Natha v. Emperor,  26  Cr.  L.J. [1925]  page 1185; Abdul Majid v. Emperor, AIR  1927  Lahore 735  (2); Mussammat Jantan v.  The Crown, (1934) Punjab  Law Reporter  (Vol.36)  page  35; Ghanashyam  Mishra  v.  State, (1957) Cr.L.J. 469 = AIR 1957 Orissa 78; D. Bernard v. State (1947) CR.L.J. 1098. In re Anthony, AIR 1960 Mad. 308 it has been  held  that  while there must  be  penetration  in  the technical   sense,  the  slightest  penetration   would   be sufficient  and a complete act of sexual intercourse is  not at  all necessary.  In Gour’s "The Penal Law of  India"  6th Edn. 1955 (Vol. II) Page 1678, it is observed, "Even  vulval penetration has                                                        946 been held to be sufficient for a conviction of rape."      Reference also may be made to Prithi Chand v. State  of Himachal Pradesh, [1989] 1 SCC 432 though the facts  therein are not similar to this case.      In  the case on hand, there is acceptable and  reliable evidence  that  there was slight penetration  though  not  a complete  penetration.  The following evidence found in  the deposition of  PW 13 irrefragably proves the offence of rape committed by the respondent:          "Nawal  uncle  untied his pyjama and took  out  his          male organ and put it inside my vagina and clutched          me...........Nawal Chacha put his male organ inside

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        my  vagina  and since it was fat it  kept  slipping          out. After that my vagina was paining."          ".....When  Nawal Uncle held apart, then there  was          some white liquid coming out from his male organ...          ..........          "Nawal  Chacha  pressed  my mouth so  I  could  not          scream."      In  the  cross-examination,  the  following  answer  is given:          "I suffered pain by what Nawal Chacha did........."      When  the evidence of PW 13 is taken with the  evidence of medical officer who found an abrasion on the medial  side of Labia Majora and redness present around the Labia  Minora with  white  discharge even after 5 days, it can  be  safely concluded  that  there was partial  penetration  within  the labia  majora  or the vulva or pudenda which  in  the  legal sense  is   sufficient to constitute the  offence  of  rape. Moreover,  the  respondent   himself  has  confessed   twice admitting the commission of rape without rupturing the hymen which confession is not disbelieved by the High Court.   The respondent  is a medical officer who has got  the  practical knowledge  of  the anatomy of a human being and  the  tender sexual  organ of a young girl and who must have  been  quite aware  of  the implication of his  confession  having  fully understood  the meaning of the word ‘rape’.   Therefore,  as admitted by the respondent himself, he without forcibly  and completely  penetrating his penis into the vagina of  PW  13 had slightly penetrated within the labia majora or vulva  or pudenda  without rapturing the hymen  and thereby  his  lust after emission of semens.  In this context, it is                                                        947 not  necessary to enter into any nice discussion as  to  how far the male organ has entered in the vulva or pudenda of PW 13  since  it  is  made clear  that  there  was  penetration attracting  the provisions of Section 375 IPC. The  evidence of  PW  13  is amply corroborated not only  by  the  medical evidence   and the corroborating evidence of PW 12 but  also by the plenary confession of the respondent himself.      From  the above discussion, we unreservedly  hold  that the prosecution has satisfactorily established its case that the  respondent has committed rape on PW 13 by  proving  all the necessary ingredients required to make out an offence of rape punishable under Section 376 IPC.      In  the result, we set aside the judgment of  the  High Court  convicting the respondent under Section 354  IPC  and sentencing  him to pay a fine of Rs. 3,000  instead  convict the respondent under Section 376 IPC.      What would be the quantum of punishment that would meet the  ends of justice in the facts and circumstances  of  the case, is the next question for our consideration.      It  is very shocking to note from the judgment  of  the High  Court that the Government Advocate did not address  on the  question  of  sentence.   The  High  Court  thought  of imposing fine only on the ground that the respondent "is now gainfully  employed and there is nothing to show that he  is indulging  in his nefarious activities".  We regret  to  say that  we are not able to understand the above reasons  which are not in conformity with the concept of sentencing  policy in a grave case of this nature.      We  are told at the bar that the victim who is  now  19 years  old,  after having lost her virginity  still  remains unmarried  undergoing  the  untold agony  of  the  traumatic experience   and  the  deathless  shame  suffered  by   her. Evidently, the victim is under the impression that there  is no  monsoon  season in her life and that her future  chances

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for  getting  married  and settling down  in  a  respectable family are completely married.      Though the State has kept silence after the disposal of the  appeal by the High Court, the helpless  panic  stricken father of the victim (PW 13) with a broken heart has entered the  portals of this Court and is tapping the  door,  crying for justice.      It   will  be  appropriate  to  refer   the   following observation of Ranganath                                                        948 Mishra,  J  (as  he then was)  in  his  separate  concurring judgment  sitting in the Seven-Judges Bench in A.R.  Antulay v. R.S. Nayak and Another, [1988] 2 SCC 602 at page 673:          "No man should suffer because of the mistake of the          Court.................Ex debito justitiae, we  must          do  justice  to him. If a man has been  wronged  so          long  as  it  lies within the  human  machinery  of          administration  of  justice  that  wrong  must   be          remedied."      Accordingly,  we, having regard to the seriousness  and gravity of this repugnant crime of rape perpetrated on PW 13 who  was then 8 years old on the date of the  commission  of the  offence in 1982, while convicting the respondent  under Section   376   IPC  sentence  him   to   undergo   rigorous imprisonment  for a period of seven years and to pay a  fine of Rs. 25,000 in default to suffer rigorous imprisonment for 1-1/2  years.   The fine amount of Rs.  25,000  if  realised shall be paid to the victim girl who is now a major.  If the fine amount of Rs. 3,000 imposed by the High Court which  we have  set aside, has already been paid that amount shall  be adjusted with the fine amount now imposed by us.      "JUSTICE DEMANDS, THE COURT AWARDS"      Before parting with the judgment, with deep concern, we may  point  out that though all sexual  assaults  on  female children are not reported and do not come to light yet there is  an  alarming and shocking increase  of  sexual  offences committed  on   children.  This is due to the  reasons  that children are ignorant of the act of rape and are not able to offer  resistence and become easy prey for lusty brutes  who display  the  unscrupulous, deceitful and insidious  art  of luring  female  children and young girls.   Therefore,  such offenders who are menace to the civilised society should  be mercilessly and inexorably punished in the severest terms.      We  feel  that  Judges who bear the  Sword  of  Justice should  not  hesitate  to use that  sword  with  the  utmost severity,  to the full and to the end if the gravity of  the offences so demand.      The appeal is allowed accordingly. R.P.                                        Appeal allowed.                                                        949