1992 Supreme(SC) 370

SUPREME COURT OF INDIA
S. Ratnavel Pandian and M. Fathima Beevi, JJ.
Madan Gopal Kakkad - Appellant
versus
Naval Dubey & Anr. - Respondents
Crl. Appeal No. 447 of 1988
Decided on 29.4.1992

IMPORTANT POINTS
1. Considering that there is an alarming and shocking increase of sexual offences committed on children, such offenders who are menace to the civilized society should be mercilessly and inexorably punished in the severest terms.
2. Partial penetration is sufficient in the legal sense to constitute the sexual intercourse sufficient to constitute offence of rape.

Headnote:(i) Indian Penal Code, 1860 - Sections 354 and 376 - Conviction u/s 354 - Appeal with regard to the nature of the offence and the quantum of punishment to be awarded – Extra judicial confession made by the respondent, a medical practitioner, is voluntary in its nature acknowledging his guilt - The confession is amply corroborated by the evidence of the victim girl, 8 years of age, whose testimony is corroborated by material witnesses and by the medical evidence. Acceptable and reliable evidence that there was slight penetration though not a complete penetration - In legal sense this is sufficient to constitute the offence of rape - The accused, a medical officer has twice admitted the commission of rape without rupturing the hymen. Prosecution has satisfactorily establish its case that the respondent has committed rape by proving an the necessary ingredients - Conviction u/s 376 Sentence of R.I. for a period of seven years and a fine of Rs. 25,000/-, to be paid to the victim girl who is now a major.

       Held: When the evidence of P.W. 1 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 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 know ledge 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 P.W. 13 had slightly penetrated within the labia majora or vulva or pudenda without rupturing the hymen and thereby satisfied his lust after emission of semen’s. In this context, it is not necessary to enter into any nice discussion as to how far the male organ has entered in the vulva or pudenda of P.W. 13 since it is made clear that there was penetration attracting the provisions of section 375 I.P.C. The evidence of P.W. 13 is amply corroborated not only by the medical evidence and the corroborating evidence of P.W. 12 but also by the plenary confession of the respondent himself. (Para 25)

       Further held: 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. (para 28)

       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 death less shame suffered by her. Evidently, the victim is under the impression that there is no monsoon season in her life and that her future chance for getting married and setting down in respectable family are complete marred (Para 29)

       Though the State has kept silence after the disposal of the appeal by the High Court, the helpless panic stricken father of toe victim (P.W. 13) with a broken heart has entered the portals of this Court and is tapping the door crying for justice. (Para 30)

       (ii) Evidence - Medical Evidence - A medical witness called in as an expert to assist the Court is not a witness of fact - Evidence given by the medical officer is of an advisory character. (Paras 23 & 24)

       (iii) Criminal Procedure Code, 1973 Section 378 - Appeal against acquittal - Powers of the High Court to review the evidence while examining an order of acquittal sitting in its appellate jurisdiction.

       Held: 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 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 the award appropriate sentence which will be commensurate with the gravity of the offence in case of conviction. (para 20)