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CASE NO.: Appeal (crl.)  32 of 2007

PETITIONER: Rajendra Datta Zarekar

RESPONDENT: State of Goa

DATE OF JUDGMENT: 04/12/2007

BENCH: G.P. Mathur & G.S. Singhvi

JUDGMENT: J U D G M E N T

CRIMINAL APPEAL NO. 32 OF 2007

 G. P. MATHUR, J.

       This appeal has been preferred under Section 2(A) of the  Supreme Court (Enlargement of Criminal Appellate Jurisdiction) Act,  1970 against the judgment and order dated 16.8.2006 of Goa Bench of  Bombay High Court by which the appeal filed by the State was  allowed and judgment and order dated 28.7.2004 of First Ad hoc  Assistant Sessions Judge, Panaji in Sessions Case No. 1 of 2004  acquitting the accused was set aside.  The High Court convicted the  appellant Rajendra under Sections 376(2)(f) and 342 IPC and  sentenced him to ten years R.I. and a fine of Rs.10,000/- under the  first count and one month\022s R.I. and a fine of Rs.1,000/- under the  second count. 2.      The case of the prosecution, in brief, is that PW-2 Satyam Ahire  along with his wife PW-1 Pushpa and three children was residing in  Usgao in Ponda.  He was working as a security officer in Bethora  Industrial Estate.  In the evening of 14.10.2003 his eldest daughter  Supriya was studying at her home while the second daughter PW-8  Sonia, aged about six years, was playing in the courtyard of his house.   PW-4 Mohandas Gaonkar, uncle of Pushpa, owned some rooms close  by which were given on rent to some boys who were working in the  Nestle factory.  The accused Rajendra was living on rent in one of  these rooms.  At about 5.00 P.M. on 14.10.2003 PW-1 Pushpa heard  cries of her daughter Sonia from inside the room, which was in  occupation of the accused Rajendra.  She went to the room and found  it closed from inside and, therefore, she knocked at the door.  After  some time the accused Rajendra opened the door of the room.  She  enquired from the accused as to what he was doing inside the room  along with her daughter but he kept quiet.  On enquiry Sonia told her  mother that the accused Rajendra took her inside his room while she  was playing in the courtyard.  He closed the door, switched off the  light and forced her to lie down on the mat.  Thereafter the accused  removed her panty and also removed his own pant and lied down over  her.  He inserted his private part in the private part of Sonia and did  some movement.  Pushpa then brought Sonia to her own house and  called her sister and other family members.  After Satyam Ahire  (father of Sonia) had come back, they went to the Police Station,  Ponda where they reached at about 9.00 P.M.  The PSI of Ponda  Police Station sent them to Medical College where Sonia was  medically examined and the doctor confirmed that she had been  subjected to rape.  Thereafter a formal FIR was registered at 11.45

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P.M. on 14.10.2003 at P.S. Ponda.   3.      After the case had been registered at the police station the same  was investigated by PW-11 Shivram Vaigankar, PSI.  He recorded  statements of witnesses under Section 161 Cr.P.C.  The accused  Rajendra was arrested at 5.00 A.M. on 15.10.2003 and the clothes  which he was wearing were taken into custody.  He also took in  custody the clothes of the girl Sonia.  He prepared a site plan and  panchnama of the scene of occurrence in presence of two witnesses  and also seized a bed sheet and nylon mat.  A photograph of the room  was also taken.  After completing investigation he submitted charge- sheet under Sections 342 and 376 IPC against the accused Rajendra. 4.      The prosecution in support of its case examined 11 witnesses  before the trial court and filed some documentary evidence.  The  learned Assistant Sessions Judge, after appraisal of the evidence,  came to the conclusion that the case of the prosecution was not  established beyond doubt against the accused Rajendra and he  accordingly acquitted him by the judgment and order dated 28.7.2004.   Feeling aggrieved by the judgment and order of the learned Assistant  Sessions Judge the State preferred an appeal before the High Court.   The High Court, after a detailed consideration of the evidence,  allowed the appeal and reversed the judgment of acquittal recorded by  the Assistant Sessions Judge.  The High Court convicted the accused  under Section 376(2)(f) IPC and sentenced him to ten years R.I. and a  fine of Rs.10,000/- and in default to undergo six month\022s S.I..  He was  further convicted under Section 342 IPC and was sentenced to  undergo one month\022s R.I. and a fine of Rs.1,000/- and in default to  undergo 15 days\022 S.I. 5.      We have heard Mr. Vinay Navare, learned counsel for the  appellant Rajendra and Ms. A. Subhashini, learned counsel for the  State of Goa, and have perused the record. 6.      PW-4 Mohandas Gaonkar has deposed that he owns three  houses and has four rooms in one of his houses out of which one room  had been given on rent to some boys who were working in Nestle  factory.  The accused Rajendra, who was employed in Nestle factory,  had been given one room on rent and his duty hours were from 8.00  A.M. to 4.30 P.M.  On 14.10.2003 he returned from the market at  about 6.30 P.M. when PW-1 Pushpa, her sister and some others were  present there in the house.  Pushpa told him about the incident  regarding commission of rape by the accused Rajendra on Sonia  inside the room. 7.      PW-2 Satyam Ahire deposed that Mohandas Gaonkar is his  wife\022s uncle and is a close neighbour.  He had given one room in his  house to boys working in Nestle factory and the accused Rajendra was  a tenant in one such room.  On 14.10.2003 he had gone to the market  and returned from there after 5.00 P.M.  When he returned home he  found his daughter Sonia sweating and was in a very bad condition.   She was lying in bed.  His wife PW-1 Pushpa informed him that the  accused Rajendra had pulled Sonia inside his room and had  committed rape upon her.  He has further deposed that he then went to  police station by rikshaw and from there he was sent to medical  college for medical examination of Sonia. 8.      PW-1 Pushpa has given a detailed version of the incident.  She  has deposed that she has three children and Sonia, who is aged about  six years, is her second daughter.  Her uncle Mohandas Gaonkar lives  nearby and he had let out one of the rooms in his house to the accused  Rajendra.  In the evening of 14.10.2003 her elder daughter was  studying at home while Sonia was playing in the courtyard near the  house.  While she was preparing some eatables she heard the cries of  Sonia coming from the side of the house of her uncle Mohandas  Gaonkar.  She immediately rushed there and found that the room  which was under the tenancy of the accused Rajendra was closed from  inside.  She also heard the cries of Sonia coming from inside the  room.  She then knocked at the door which was opened by the accused  after about five minutes.  She enquired from the accused as to what  had happened but he kept quiet.  Sonia, who had rushed to her mother,

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informed her that she was taken inside the room by the accused and  thereafter he closed the room from inside and switched off the light.   The accused forced her to lie down on the mat and after removing her  panty also removed his pant and lied down over her.  He inserted his  private part inside her private part and did some movement.  Pushpa  then came to her own house and called her family members.  After her  husband had come back from the market she went to the police station  to lodge the report.  The FIR was lodged by her which is Exhibit 8.   The police referred her daughter Sonia to Goa Medical College for her  medical examination.  She went there where Sonia was medically  examined.  She was cross-examined at length but nothing material has  come out in the same which may throw any doubt regarding the  prosecution version of the incident.  In cross-examination she has said  that her husband was not present and had gone to market and he  returned from the market at about 5.30 P.M.  Sonia was crying loudly  and was having great difficulty in passing urine.  She has further  deposed that one day before her statement in court Sandesh, brother of  the accused Rajendra, and his mother had come to her house pleading  for mercy.  She denied the defence suggestion that she had some kind  of relations with the accused and used to borrow money from him and  had falsely implicated him as she wanted some more money from  him. 9.      The prosecutrix Sonia was examined as PW-8.  The learned  Assistant Sessions Judge put questions to her in order to ascertain  whether she was in a position to give statement in court.  After being  satisfied about her mental capacity, her statement was recorded.  The  learned Assistant Sessions Judge has noted that she wanted to be near  her mother at the time of recording her statement and that the accused  had been sent little away with the consent of his advocate so that the  witness may be comfortable.  Sonia stated that the accused Rajendra  was residing in the room near her house.  When she was near the  house of her aunty the accused came near her and pulled her inside his  room and closed it from inside.  He removed her panty and his own  pant and made her lie down on the mat.  He lied over her, inserted his  private part in her private part and did some movement.  She cried out  of pain.  After few minutes her mother came and knocked at the door.   After couple of minutes the accused opened the door.  She then  narrated the entire incident to her mother.  She identified the panty  and frock, which she was wearing at the time of the incident and were  seized by police, during the course of her statement in court.  She  further said that she was taken to the hospital for her medical  examination. 10.     PW-10 Dr. E.J. Rodrigues, Associated Professor in Forensic  Medicine, Medical College, Goa, examined Sonia at about 11.45 P.M.  on 14.10.2003 in the presence of Dr. Mrinalini, lecturer in the Medical  College.  He has deposed that the girl Sonia was of thin built having a  height of 97 cms. and weighing 26 kgs.  The gait of Sonia was slightly  painful.  Her genital development was of infant type nature.  Pubic  hairs were not erupted and there were no injuries on inner aspects of  thighs.  There was a bruise reddish 2 x 1.5 cms. area on right labia  majora and right labia minora, which was tender to touch.  There was  a laceration of 5 mm x 2 mm on right labia minora near the clitoris  which was tender to touch.  The hymen was intact.  There were no  fresh or old tears to hymen.  Hymnal opening admits tip of little  finger.  Hymnal border was bruised, edematous and tender to touch.   The vaginal contents and vaginal walls were normal.  He opined as  under: - \023I certify that on physical genetical examination there is  evidence of recent penetration.  Vaginal swabs and smear  slides were retained for serological examination.\024

11.     The same doctor also examined the accused Rajendra at 12.15  P.M. on 15.10.2003 at the request of police of Ponda Police Station in  the presence of Dr. Girish Kamat.  There were no injuries on his body.   His genital development was good.  His pubic hairs were black and

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not matted with blood or semen (preserved).  On physical and genital  examination there was nothing to suggest that Rajendra was incapable  of sexual intercourse.   12.     PW-3 Raju Sunktankar is the photographer who took  photographs of the room and he has proved the same.  PW-5 Tarun  Kumar is a panch witness of seizure of clothes of PW-8 Sonia and of  accused Rajendra.  PW-6 Narayan is the panch witness of seizure of  mattress and bed sheet.  PW-9 Sanjay had examined the blood group  of Sonia and of accused Rajendra.  PW-11 Shivram Vaigankar, PSI of  Ponda Police Station has deposed about the lodging of FIR by Pushpa  and registration of the case after he had received the medical  examination report of Sonia.  He has deposed about the various steps  taken by him during the course of investigation of the case. 13.     We have given above the gist of the evidence adduced by the  prosecution.  The evidence shows that the accused Rajendra was  living as tenant in a room in the house of PW-4 Mohandas Gaonkar,  who is uncle of PW-1 Pushpa.  The room in which the accused was  living is close to the house of the victim.  In the evening of  14.10.2003 when Sonia was playing outside the courtyard of her  house the accused pulled her and took her to his own room, bolted it  from inside and after removing the clothes of Sonia and his own pant  committed rape upon her.  The cries of Sonia attracted her mother  Pushpa who came there, knocked at the door and after some time the  accused opened the same.  Sonia was crying loudly and she narrated  the incident to her mother.  Pushpa went to the police station after her  husband PW-2 Satyam Ahire and some other relations had come  there.  The police sent Sonia to Medical College where she was  medically examined by PW-10 Dr. Rodrigues who certified that she  had been subjected to rape.  Thereafter the FIR of the incident was  registered at the police station at 11.45 p.m. the same night.  In spite  of fairly lengthy cross-examination nothing has come out in the  statements of Pushpa and Sonia which may throw even a slightest  doubt on the prosecution version of the incident.  There is no enmity  of any kind between Pushpa and the accused Rajendra which may  impel her to falsely implicate the accused.  Though a suggestion  regarding taking of some money by Pushpa from the accused has been  made and a further suggestion has been made that she wanted to have  some kind of relationship with the accused but the same has not at all  been made probable much established by any evidence.  The rape  leaves a permanent scar and has a serious psychological impact on the  victim and also her family members and, therefore, no one would  normally concoct a story of rape just to falsely implicate a person.  In  the present case there was not even an iota of evidence to show that  PW-1 Pushpa or her husband Satyam Ahire had any reason  whatsoever to falsely implicate the accused Rajendra.  We have  carefully gone through the evidence and in our opinion the evidence  lead by the prosecution fully establishes the case against the accused  Rajendra beyond any shadow of doubt.   14.     Learned counsel for the appellant has next submitted that the  doctor had found that the hymen of Sonia was intact and, therefore,  the charge for rape under Section 376 IPC as defined in Section 375  IPC has not been made out.  An identical question was considered by  a Bench of this Court in Santosh Kumar vs. State of M.P. JT 2006 (8)  SC 171, and para 10 of the report is reproduced below: - \02310.         The question, which arises for consideration, is  whether the proved facts establish the offence of rape.  It  is not necessary for us to refer to various authorities as  the said question has been examined in considerable  detail in Madan Gopal Kakkad v. Naval Dubey JT 1992  (3) SC 270 and paras 37 to 39 of the said judgment are  being reproduced below:  \02337.         We feel that it would be quite appropriate, in  this context, to reproduce the opinion expressed by  Modi in Medical Jurisprudence and Toxicology  (Twenty First Edition) at page 369 which reads

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thus:  \023Thus to constitute the offence of rape it is  not necessary that there should be complete  penetration of penis with emission of semen  and rupture of hymen. Partial penetration of  the penis within the labia majora or the  vulva or pudenda with or without emission  of semen or even an attempt at penetration is  quite sufficient for the purpose of the law.  It  is therefore quite possible to commit legally  the offence of rape without producing any  injury to the 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.\024  38.     In Parikh\022s Textbook of Medical  Jurisprudence and Toxicology, the following  passage is found:  \023Sexual intercourse. \027 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.\024  39.     In Encyclopedia of Crime and Justice (Vol.  4) at page 1356, it is stated:  \023... even slight penetration is sufficient and  emission is unnecessary.\024    Therefore, the absence of injuries on the private parts of a  victim specially a married lady cannot, ipso facto, lead to  an inference that no rape has been committed.\024

Here the victim was a very young girl of six years of age and it is  quite likely that full penetration did not take place as the accused is a  grown up person of over 20 years of age.  The injuries clearly indicate  that rape, as defined in Section 375 IPC, did take place.   15.     Learned counsel for the appellant further submitted that the  sentence of ten years R.I. awarded by the High Court is very severe  and the same may be reduced.  It may be mentioned here that Section  376(2)(f) IPC specifically provides that where the victim is less than  12 years of age the sentence awarded shall not be less than 10 years  but it may be for life and the accused shall also be liable to fine.  The  proviso, no doubt, says that the court may for adequate and special  reasons to be mentioned in the judgment, impose a sentence of  imprisonment for a term of less than ten years.  Here the victim PW-8  Sonia was aged about six years and, therefore, the case is fully  covered by clause (f) of sub-section (2) of Section 376 IPC and the  sentence awarded cannot be less than ten years unless there are  adequate and special reasons for doing so.  We do not find any  adequate or special reasons for imposing a sentence of less than ten  years.  Learned counsel for the appellant placed reliance on State of  Chhattisgarh vs. Derha (2004) 9 SCC 699, for reducing the sentence.   In the authority cited what weighed with the court was that the  accused was hardly eighteen years of age and had already served  about six and half years\022 imprisonment.  He was married and had a

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family.  In these circumstances the court considered it proper to  reduce the sentence to seven years.  Such is not the case here and,  therefore, we are legally bound to award a sentence of ten years R.I.   However, we feel that the fine of Rs.10,000/- awarded under Section  376(2)(f) IPC is excessive and the same is reduced to Rs.1,000/- and  the fine of Rs.1,000/- awarded under Section 342 IPC is set aside. 16.     In the result the appeal is dismissed with the modification that  the fine of Rs.10,000/- imposed under Section 376(2)(f) IPC is  reduced to Rs.1,000/- and the fine of Rs.1,000/- imposed under  Section 342 IPC is set aside.  The substantive sentence of ten years  R.I. awarded under Section 376(2)(f) IPC and one month R.I. under  Section 342 IPC are maintained.