NATIONAL LEGAL RESEARCH DESK
Virender vs The State Of Nct Of Delhi on 18 September, 2009 – IN THE HIGH COURT OF DELHI – +Crl.A.No. 121/2008 Judgment reserved on : 18th September, 2009 Date of decision: 29th September, 2009
It would be useful to refer to certain observations of the Apex Court in the pronouncement reported at 2007 Crl.L.J. 4704 Radhu vs. State of Madhya Pradesh which succinctly laid down the applicable principles thus:-
“5. It is now well settled that a finding of guilt in a case of rape, can be based on the uncorroborated evidence of the prosecutrix. The very nature of offence makes it difficult to get direct corroborating evidence. The evidence of the prosecutrix should not be rejected on the basis of minor discrepancies and contradictions. If the victim of rape states on oath that she was forcibly subjected to sexual intercourse, her statement will normally be accepted, even if it is uncorroborated, unless the material on record requires drawing of an inference that there was consent or that the entire incident was improbable or imaginary. Even if there is consent, the act will still be a ‘rape’, if the girl is under 16 years of age. It is also well settled that absence of injuries on the private parts of the victim will not by itself falsify the case of rape, nor construed as evidence of consent. Similarly, the opinion of a doctor that there was no evidence of any sexual intercourse or rape, may not be sufficient to disbelieve the accusation of rape by the victim. Bruises, abrasions and scratches on the victim especially on the forearms, writs, face, breast, thighs and back are indicative of struggle and will support the allegation of sexual assault. The courts should, at the same time, bear in mind that false charges of rape are not uncommon. There have also been rare instances where a parent has persuaded a gullible or obedient daughter to make a false charge of a rape either to take revenge or extort money or to get rid of financial liability. Whether there was rape or not would depend ultimately on the facts and circumstances of each case.
In allegations of rape, a sexual offence, the ingredients of the offence must be considered. In this behalf, reference deserves to be made to Medical Jurisprudence and Toxicology (Twenty First Edition) by Modi 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 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.”
The necessary ingredients which are to be satisfied to bring home the charge under section 376 of the IPC have been stated in the pronouncement of the Apex Court in MANU/SC/844/2006 Santosh Kumar vs. State of U.P. The court placed reliance in para 7 on the texts on medical jurisprudence by Modi (considered above). Parikh and the Encyclopadia of Crime & Justice which were cited in paras 38 to 39 of Madan Gopal Kakkad v. Naval Dubey MANU/SC/0509/1992 : 2SCR921 as follows
“38. In Parikhs 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.
39. In Encyclopedia of Crime and Justice (Vol. 4) at page 1356, it is stated:
…even slight penetration is sufficient and emission is unnecessary.Therefore, 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.”
The essentials of the offence have been described in 2009 CriLJ 396 State of Punjab vs. Rakesh Kumar thus :-
“Rape” or “Raptus” is what a man hath carnal knowledge of a woman by force and against her will (Co. Litt.123-b); or as expressed more fully, ‘rape is the carnal knowledge of any woman, above the age of particular years, against her will; or of a woman child, under that age, with or against her will’ (Hale PC 628). The essential words in an indictment for rape are rapuit and carnaliter cognovit; but carnaliter cognovit, nor any other circumlocution without the word rapuit, are not sufficient in a legal sense to express rape; 1 Hon.6, 1a, 9 Edw. 4, 26a (Hale PC 628). In the crime of rape, ‘carnal knowledge’ means the penetration to any the slightest degree of he organ alleged tohave been carnally known by the male organ of generation (Stephen’s “Criminal Law” 9th Ed. p. 262). In ‘Encyclopodia of Crime and Justice’ (Volume 4, page 1356) it is stated “……even slight penetration is sufficient and emission is unnecessary”. In Halsbury’s Statutes of England and Wales (Fourth Edition) Volume 12, it is stated that even the slightest degree of penetration is sufficient to prove sexual intercourse. It is violation with violence of the private person of a woman-an- outrage by all means. By the very nature of the offence it is an obnoxiuos act of the highest order.”
In a judgment reported as far back as in AIR 1923 Lah 536 Regina vs. Ferrol; Natha, the court had ruled that to constitute an offence under section 375 IPC, there must be evidence of
penetration, which may occur and the hymen may remain intact. Vulval penetration is sufficient to constitute rape in India without actual seminal emission.This was reiterated in (1992) 3 SCC 204 Madan Gopal Kakkad vs. Naval Dubey wherein the Apex Court held that it is not essential that hymen should be ruptured, provided it is clear that there was penetration even if partial.
In this case, the Apex Court had expression concern that all sexual assaults on female children are not reported and do not come to light, there is an alarming and shocking increase of such cases. Children were ignorant of the act of rape and are not able to offer resistance and become easy pray by lusty brutes who display the unscrupulous, deceitful and insidiuos art of luring female children and young girls. Therefore, such offenders who are menace to the citilized society should be mercilessly and inexorably punished in the severest terms.
Thus in order for the offence of rape to be complete, it is essential to establish even slightest penetration. (Ref :MANU/SC/0080/1978 : 1978 CriLJ 1804 Dr. S.P. Kohli, Civil Surgeon, Ferozpur vs. High Court of Punjab & Haryana through Registrar.)
In MANU/SC/7825/2008 Moti Lal vs. State of M.P., the Apex Court had observed that a rapist not only violates the victim’s privacy and personal integrity, but inevitably causes serious psychological as well as physical harm in the process. Rape is not merely a physical assault — it is often destructive of the whole personality of the victim. A murderer destroys the physical body of his victim, a rapist degrades the very soul of the helpless female. The court, therefore, shoulders a great responsibility while trying an accused on charges of rape. They must deal with such cases with utmost sensitivity. The Courts should examine the broader probabilities of a case and not get swayed by minor contradictions or insignificant discrepancies .
The statement of prosecutrix in such cases deserves to be recorded with utmost sensitivity and care. Regard must be had to the trauma which the victim is undergoing as well as the unwarranted feeling of shame the victims of such offence feel. At the same time, the trial courts must discharge the onerous task of ensuring that the complete truth is brought on record so as to facilitate adjudication and the basic question that is complicity of the accused in the commission of the offence is correctly answered. The trial court must be satisfied that the prosecutrix has understood the essence of the acts which were committed by the accused which must be borne out from the recorded testimony. These must be sensitively brought out and recorded in the testimony of the victim.
It is to be noted that the embarrassment, and reservations of those concerned with the proceedings including the prosecutrix, witnesses, counsel may result in a camouflage of the trauma of the victim’s experience. The judge has to be conscious of these factors and rise above any such reservations to ensure that they do not cloud the real facts and the actions which are attributable to the accused persons. The trial courts must be alive to the onerous responsibility which rests on their shoulders and be sensitive in cases involving sexual abuse.
It is, therefore, necessary and incumbent on the court to sensitively examine a prosecutrix in a trial relating to commission of an offence under section 376 of the IPC to ensure that the prosecutrix understands and brings out in her deposition as to what has transpired. This requires a matured and sensitive handling by the court.
In Medical Jurisprudence and Toxicology (Law Practice & Procedure) authored by Dr. K.S. Narayan Reddy wherein at page 439 in the portion dealing with examination on the issue of ‘Rape on Children’, the author has observed thus:-
“….As the age and size of the infant increases, the pattern of injury will become less marked but the circumferential tears of the vestibular mucoas are found up to the age of six years or more. Full penile penetration produces bruising of the vaginal walls and frequently tears of the anterior and posterior vaginal walls. Anterior tears can involve the blader and the posterior tears the anorectal canal. Vaginal vault may rupture, and there may be vaginal herniation of abdominal viscera. The hymen may be entirely destroyed or may show lacerations. Blood may be oozing from the injured parts, or clots of blood may be found in the vagina. There may be mucopurulent discharge from the vagina. In digital penetration of the infant vagina, there is frequently some scratching or bruising of the labia and vestibule, but the circumferential tears are absent. The hymen shows a linear tear in the posterior or posterolateral quadrant, which may extend into the posterior vaginal wall and on to the skin of the perineum and may involve the perineal body. Ano-rectal canal is rarely involved. Bruising in the margins of tear and of anterior vaginal wall are common, but vaginal vault injury is rare. Any attempt to separate the thighs for examination causes great pain, because of the local inflammation. The child walks with difficulty due to pain. The absence of marks of violence on the genitals of the child, when an early examination is made is strong evidence that rape has not been committed.”
It was observed by Fazal Ali, J in MANU/SC/0120/1977 : 1977 CriLJ 817 Pratap Misra vs. State of Orissa that medical jurisprudence is not an exact science and it is 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.
In R vs. Ahmed Ali 11 WR Cr. 25 Nariman, J had made observations on medical evidence. It was stated by the learned Judge that 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. Even opinion with regard to rupture of a hymen has been held to be inclusive so far as commission of an offence of rape is concerned.
It is trite that medical evidence would at best be a matter of mere opinion. In the instant case certainly from the medical evidence brought on record, no conclusive finding with regard to the charge against the appellant can be returned.