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The Indian Penal Code
Section 228A in The Indian Penal Code
Section 376(2)(f) in The Indian Penal Code
Section 376 in The Indian Penal Code
Section 375 in The Indian Penal Code

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Gauhati High Court
State Of Mizoram vs Zoduhliana on 6 May, 2005
Equivalent citations: 2005 CriLJ 3756
Author: B Katakey
Bench: R Misra, B Katakey

JUDGMENT B.P. Katakey, J.

1. This reference under Rule 9 of the Rules for the Regulation of the Procedure of officers appointed to administer Justice in the Lushai Hills 1937 as well as the criminal appeal from jail are directed against the judgment of conviction dated 21-1-2003 passed by the learned Additional District Magistrate (Judicial) Aizawl district. Aizawl in case No. Crl. Tr. No. 2398/ 2000 convicting the accused/appellant in criminal appeal No. 1/03(J), under Section 376(2)(f) of the Indian Penal Code and sentencing him to undergo rigorous imprisonment for a period of 10 years and to pay a fine of Rs. 3000/- in default to undergo rigorous imprisonment for further 3 (three) months.

2. The prosecution story in brief is that on 21-12-2000 at about 10.50 p.m. a first information report was submitted by PI Rochungnungi of Tlangnuam, Aizawl in Kulikawn police out post intimating that on that same night in between 8.30 to 9 p.m. her daughter who was 11 years old was raped by the accused/appellant. The police upon receipt of the first information registered Aizawl P.S. Case No. 810/2000 against the accused/appellant and took up the case for investigation. During investigation the accused was arrested. The investigating officer recorded the statement of the victim girl as well as the other witnesses and also got the victim and the accused examined by the doctor. Upon completion of investigation the charge-sheet: was filed against the accused/appellant. The learned Additional District Magistrate (Judicial) thereafter framed the charge under Section 341/376(2)(f) of the Indian Penal Code against the accused/appellant, who having pleaded not guilty the trial commenced.

3. During trial the prosecution in order to bring home the charge against the accused/appellant examined five witnesses including the victim, the mother of the victim, who was the first informant, the doctor who medically examined the victim and the accused and also investigating the officer who conducted the investigation. The learned trial Magistrate thereafter recorded the statement of the accused under Section 313 of the Criminal Procedure. Upon completion of the trial the learned trial Magistrate convicted the accused/appellant under Section 376(2)(f) of the Criminal Procedure Code and sentence him to undergo rigorous imprisonment for 10(ten) years and to pay fine of Rs. 3000/- in default to undergo rigorous imprisonment for further period of 3 (three) months.

4. We have heard Mr. C. Lalramzauva, learned Counsel for the appellant in Criminal Appeal No. 1/03(J), who is the respondent in criminal reference No. 2/03 and also Mr. N. Sailo learned Public Prosecutor, Mizoram.

5. The learned Counsel for the accused/ appellant has challenged the judgment of conviction recorded by the learned trial Magistrate on two grounds :

(i) The accused/appellant was not called upon to enter into defence and adduce any evidence he may have in support thereof, as required under Section 233 of the Criminal Procedure Code and as such the entire trial is vitiated because of non-compliance of the said mandatory provision.

(ii) The prosecution has failed to prove that there was penetration of the male organ of generation so as to constitute the rape "within the meaning of Section 375 of the Indian Penal Code and the doctor upon medical examination of the accused/appellant having found that there was no injuries on the male organ of the accused, he ought to have been acquitted from the charge under Section 376(2)(f), IPC by giving the benefit of doubt and by accepting the defence person that there was no penetration of male organ of generation but penetration by means of his finger only.

6. The factual matrix of this appeal is related to sordid and oboxious incidents where the accused/appellant was at the relevant point of time about 22 years old and known to the victim family, with a view to satisfy his animated persons sexual pleasure sexually assaulted a young girl of 11 years old who was at the relevant point of time a student of class V of a school. The victim who was examined as P.W. 2 by the learned trial Court has vividly described how she was sexually assaulted by the accused/ appellant thereby violating her fundamental right guaranteed under Article 21 of the Constitution of India. The victim during her deposition identified the accused/appellant and stated that on 21-12-2000 at about 8 to 9 p.m. the accused, who is a friend of her mother, came to their residence as usual and after staying for sometime asked her to see him off outside and thought the victim did not want to go out, as she was asked by her parents not to go out after dusk, the accused pulled her forcibly towards the middle school where he made her to sit on the school veranda. The accused then forcibly removed her stocking in spite of her protest and had sexual intercourse with her against her consent. The victim has also specifically stated in her deposition that the accused penetrated his male organ of generation inside her vagina for which she fell tremendous pain and cried. Subsequently when her mother asked she informed her that accused had sexually assaulted her. During cross-examination has denied the suggestion that she was interested of having sex with the accused but as accused was drunk he could not do anything but touch her private part with his finger.

7. P.W. 1, Rochugnungi, the mother of the victim, who lodged the first information in her deposition has stated that on 21-12-2000 between 8 to 9 p.m. accused came to their residence and when she was being in the kitchen after sometime he forcibly took out the victim from the house. Then she along with P.W. 3 Lalchungnunga, went out to look for the victim and while searching for the daughter they heard her cry and on hearing the same, P.W. 3 ran towards the school followed by her. They found both the accused and the victim in the school campus and when asked the accused told her that he did not have any sex with victim and then accused started the bike and drove away. On returning home she saw the victims skirt was covered with blood and when asked whether the accused has committed anything, the victim has informed her that the accused raped her. In her cross-examination she denied the suggestion that the victim invited accused to have sex and as he was in a drunken condition he could not do anything with her except touching her private parts with finger.

8. P.W. 3 who was present when the accused took away the victim from her house, in his deposition has stated that accused came to the house of the victim at about 8 p.m. after staying for about fifteen minutes he asked the victim to see him off and caught hold to her hand and went out together. When she informed about the same to the mother of the victim both of them went together in search of her and upon hearing the cry they ran towards the middle school and found the victim standing on the veranda and crying and the accused standing near her. He has also, deposed that he found the victim's underwear and stockings on the ground and thereafter took the victim to her house and there saw the blood stain on the back of the skirt and when asked about what has happened she told that she was raped by the accused. The accused during the cross-examination of this witness could not bring any contradiction. This witness has also denied the suggestion that he did not hear the victim's cry.

9. Both the accused and the victim were medically examined by doctor Lalramsanga who was examined as P.W. 4 during the trial. This witness in his deposition has exhibited the report of the medical examination of the victim as exhibit P-2 and that of the accused as exhibit P-3. It appears from the exhibit P-2 that the doctor on genital examination has found bruising of labia minora and rapture of hymen. However the doctor on genital examination of the accused has not found scratches or laceration on penis or abrasion or laceration on penis.

10. The learned Counsel of the accused/ appellant has placed much reliance on the medical examination report of the accused, which was exhibited as exhibit P-3 and on the finding recorded by the doctor on genital examination to the effect that there was no scratches or laceration or abrasion on penis and hence submitted that had there been the penetration of male organ of generation there would have definitely been the injury on such organ and in absence of the same, it cannot be said that there was penetration so as to constitute the offence of rape within the meaning of Section 375 of IPC. Learned Counsel for the appellant has further submitted that as the defence taken by the accused, as it appears from the cross-examination of the witnesses examined on behalf of the prosecution, it supported by the medical evidence, the accused is at least entitled to the benefit of doubt and hence acquittal. The learned Counsel in support of his contention has placed reliance on a decision of the Apex Court in Rahim Beg v. State of U.P., .

11. In the instant case the victim has categorically stated about the penetration of the male organ of generation and the said statement is duly corroborated by the medical evidence i.e. exhibit P. 2 where bruising of labia minora and rupture of hymen was found. The version of the prosecutrix was also stated by the evidence of P.W. 1, the mother of the victim and also the evidence of P.W. 3, who was present when the accused took away the victim from her house on the pretext of seeing him off against her will. The prosecutrix version is also corroborated by the evidence of P.Ws. 1 and 3 who have stated about the blood-stain in the skirt, presence of accused and victim in the school veranda where the offence was committed and disclosure of said incident by the victim to the mother i.e. P.W. 1.

12. In Rahim Beg (1972 Cri LJ 1260) (supra) the Apex Court in fact and circumstances of the said case has acquitted the appellant therein as there was no injury detected by the doctor on the male organ and in absence of said injuries on the male organ of the accused who were allegedly committed rape of a girl who is virgin and whose hymen was intact, by holding that absence of such injury points to the innocence of the accused. In the instant case there is positive evidence on record about the penetration of male organ by the accused and such evidence is duly corroborated by the medical evidence as well as by other circumstantial evidence. Hence the decision in Rahim Beg case is not applicable in the facts and circumstances of the instant case.

13. In Modi's Medical Jurisprudence and Toxicology (twenty first edition) it has been observed as under :

"9. Injuries to the genital parts may result from force exerted by the accused or from forces applied by the victim. In addition to scratches or lacerations on the penis caused by the finger nails of the victim during a struggle an abrasion or a laceration may be discovered on the prepuce or glans penis but more often on the frenum, due to the forcible introduction of the organ into the narrow vagina of a virgin especially of a child but it is not necessary that there should always be marks of injuries on the penis in such cases".

According to the Modi's Medical Jurisprudence, therefore, it is not necessary that there should always be marks of injuries on the penis in such cases. In Sakshi v. Union of India, on which the learned counsel for the appellant has placed reliance, the Apex Court has held that if the hymen is ruptured by inserting a finger it would not amount to rape and for the purpose of constituting rape the penetration of the vagina by the male organ of generation is a must". We have already discussed the evidence on record wherefrom it is abundantly clear that there was penetration of male organ of generation into the vagina of the victim and therefore, the rape within the meaning of Section 375, IPC is complete.

14. In Madan Gopal Kakkad v. Naval Dubey in Bhupinder Sharma v. State of Himachal Pradesh, the Apex Court has held that even the slightest penetration to any slightest degree of the male organ into the vagina even without rupturing the hymen would constitute rape within the meaning of Section 375 IPC. In Bhupinder Sharma (supra) the Apex Court has further held that a woman or a girl who is raped not an accompliance and corroboration is not the sine quo non for conviction in a rape case. It has further been held to insist on corrobation, except in the rarest of rare cases, is to equate one who is a victim of the lust of another with an accompliance to a crime and thereby insult womenhood. It would be adding insult to injury to tell the women that her claim of rape will not be believed unless it is corroborated in material particulars as in the case of an accomplice to a crime.

15. The Apex Court in State of Karnataka v. Puttaraja reported in, has held that leniency in the matter involving sexual offence is not only undesirable but also against public interest and such type of offences are to be dealt with severity and with iron hands. Showing leniency in such matter would really be a case of misplaced sympathy.

16. In State of H.P. v. Shree Kant Shekari, the Apex Court had also held that there is rule no of law that the victim's testimony cannot be acted upon without corroboration in material particulars. It has further been held that the victim is standing in higher pedestal than an injured witness and if the Court on facts finds it difficult to accept the version of the prosecutrix on its face value it may search for evidence direct or circumstantial, which would lend assurance to her testimony and assurance, short of corroboration, as understood in the context of an accomplice, would suffice. The Apex Court in the said case has explained as to how the fundamental right of the victim guaranteed under Article 21 of the Constitution of India is violated by sexual violence, relevant portion of which is quoted below.

"3. Sexual violence apart from being a dehumanizing act is an unlawful intrusion on the right of privacy and sanctity of a female. It is a serious blow to her supreme honour and offends her self-esteem and dignity. It degrades and humiliates the victim and where the victim is a helpless innocent child or a minor, it leaves behind a traumatic experience. A rapist not only causes physical injuries but more indelibly leaves a scar on the most cherished possession of a women i.e. her dignity, honour, reputation and not the least her chastity. Rape is not only a crime against the person of a women, it is a crime against the entire society. It destroys as noted by this Court in Bodhisattwa Gautam v. Subhra Chakraborty, () the entire psychology of a woman and pushes her into deep emotional crisis. It is a crime against basic human rights, and is also violative of the victim's most cherished of the fundamental rights, namely the right to life contained in Article 21 of the Constitution. The Courts are, therefore, expected to deal with cases of sexual crime against women with utmost sensitivity. Such cases need to be dealt with sternly and severely. A socially sensitized Judge, in our opinion is a better statutory armour in cases of crime against women than long clauses of penal provisions, containing complex exceptions and provisos."

17. As discussed above the prosecutrix in her deposition has specifically stated about the penetration of the male organ by the accused appellant into her vagina and the same was duly corroborated by the medical evidence i.e. exhibit-P-2. Merely because no injuries on the male organ of the accused was found it cannot be said that he has not committed the rape of the victim as there may not always be marks of injuries on the male organ as injuries to the genital parts may result from force extended by the accused or from force applied by the victim. There is no reason why the prosecutrix evidence is to be disbelieved. The accused in fact admitted the taking away the victim from her house to the middle school where the occurrence took place but the defence case is that the accused penetrated his finger into the private parts of the victim and not his organ of generation. By taking into account the entire evidence on record i.e. the deposition of P.Ws. 1, 2 and 3, the defence taken by the accused is not at all believable and on the other hand the prosecution has been able to prove the commission of rape on the victim by the accused beyond all reasonable doubt.

18. The other submission of the learned Counsel for the appellant is that the trial conducted against the appellant is vitiated due to non-compliance of provision contained in Section 233 of the Criminal Procedure Code in as much as the accused was not called upon to enter into his defence and adduce any evidence.

19. The accused during the course of the trial never at any point of time prayed for examination of any defence witness. The defence taken by the accused appellant during the trial as it appears from the cross-examination of the prosecution witnesses is that there was no penetration of the male organ but the accused penetrated his finger into the vagina of the victim. The accused to substantiate his plea of defence has placed reliance on medical evidence i.e. exhibit P-3. The accused therefore, has disclosed his defence fully and coupled with the fact that he never at any point of time after his examination under Section 313 of the Criminal Procedure Code sought for examination of any defence witness, no prejudice has been caused to the accused/appellant in not calling upon the accused to enter into defence. The failure to call upon the accused to enter into defence is a mere irregularity and unless prejudice is shown to have caused it will not vitiate the proceeding. A Division bench of this Court in Criminal Appeal No. 11 of 2002 (J), decided on 24th February, 2005, Shri Vanlalrawna v. State of Mizoram has also held to that effect. Therefore, the contention of the learned Counsel for the appellant cannot be accepted. Hence rejected.

20. In view of the aforesaid discussion we are of the view that the learned trial Court has rightly convicted the accused/appellant under Section 376(2)(f), IPC and hence we confirmed the judgment of conviction and the sentence of imprisonment awarded by the learned trial Court and dismissed the appeal filed by the appellant.

21. We have noticed that in the judgment passed by the learned trial Court, the name of the victim girl is disclosed. We have also noticed in some other cases tried by the learned trial Court under Section 376, IPC that the names of the victim girls are mentioned in the judgment.

22. Section 228-A of the Indian Penal Code makes disclosure of the identity of a victim of certain offences punishable. Printing or publishing name or any matter which may make known the identity of any person against whom offence under Sections 376, 376-A, 376-B, 376-C or 376-D, IPC is alleged or found to have been committed can be punished. The Apex Court in State of Karnataka v. Puttaraja, has held that though Section 228-A, IPC does not put any restriction to print or publish the name of victim of such offences in the judgment by the High Court or the Supreme Court, but keeping in view the social object of preventing social victimisation or ostracism of the victim of a sexual offence for which Section 228-A, IPC has been enacted it would be appropriate that in the judgment, be they of Supreme Court, High Court or the lower Court, the name of the victim should not be indicated. In State of H.P. v. Shree Kant Shekari (2004 Cri LJ 4232) (supra), the Apex Court has reiterated that position. The relevant portion of the judgment in Puttaraja case is quoted below (para 4) :

"2. We do not propose to mention the name of the victim. Section 228-A of the Indian Penal Code 1860 (in short "IPC") makes disclosure of identity of victim of certain offences punishable. Printing or publishing name or any matter which may make known the identity of any person against whom an offence under Section 376, 376-A, 376-B, 376C or 376-D is alleged or found to have been committed can be punished. True it is, the restriction does not relate to printing or publication of the judgment by the High Court or the Supreme Court. But keeping in view the social object of preventing social victimization or ostracism of the victim of a sexual offence for which Section 228-A has been connected, it would be appropriate that in the judgments, be it of this Court the High Court or the Lower Court the name of the victim should not be indicated. We have chosen to describe her as the victim in the judgment."

23. In view of the aforesaid legal position, we direct that the learned trial Court shall not in future indicate the name of the victim of the offences under Sections 376, 376-A, 376-B, 376C or 376-D of the Indian Penal Code in the judgment. Registrar of this Bench is to send a copy of this judgment to the Registrar General of this Court for the purpose of circulating the same to all the Courts below for their guidance and compliance. Registry is also directed to circulate a copy of this judgment to all the Courts in the State of Mizoram for their guidance and compliance.

24. Registry is directed to send down the records immediately.