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2006 Supreme(SC) 406
2006(2) Supreme 204
SUPREME COURT OF INDIA
(From Madhya Pradesh High Court)
S.B. Sinha and P.P. Naolekar, JJ.
Guddu @ Santosh—Appellant
versus
State of Madhya Pradesh—Respondent
Criminal Appeal No. 1491 of 2005
Decided on 27-4-2006
Counsel for the Parties :
For the Appellant : S.K. Dubey, Sr. Advocate, L.S. Chauhan, Chandra Mohan Snisetty, Dr. Kailash Chand, Advocates.
For the Respondent : Ms. Vibha Datta Makhija, Advocate.
IMPORTANT POINT
When the accused has been convicted only under Section 376/511 IPC, the proper sentence that should have been awarded to him was imprisonment for 5 years.
Headnote:Indian Penal Code, 1860—Section 376/511—Attempt to commit rape on a minor girl—Reduction of sentence to 5 years imprisonment—Prosecution case that parents of girl being labourers had gone out of their house in search of work leaving her alone there when appellant came there, put off her Chaddi, pulled down his trousers and sat upon her—When her grandfather came, appellant fled away—Mother of the prosecutix had seen redness in her private part as also blood coming out therefrom—FIR was lodged on the next day—Statement made by prosecutrix corroborated by statements of her mother and grandfather—On medical examination, doctor found a swelling over her private parts and it had become reddish—Although her hymen was intact but also had become red—Whether High Court was justified in convicting appellant for commission of offence u/s 376/511 IPC—Held, Yes—Whether High Court committed an error in sentencing appellant to rigorous imprisonment for a term of 10 years—Held, Yes—Proper sentence that should have been awarded to him was imprisonment for 5 years.
Held : It is not a case where merely a preparation had been undergone by the appellant as contended by the learned counsel. Evidently, the appellant made an attempt to criminally assault the prosecutrix. In fact, from the nature of the medical evidence an inference could also have been drawn by the High Court that there had been penetration. The High Court failed to notice that even slight penetration was sufficient to constitute an offence of rape. The redness of the hymen would not have been possible but for penetration to some extent.(Para 14)
In the instant case, the appellant cannot be said to have intended to commit an indecent assault on the prosecutrix. The fact of the matter clearly demonstrates that his conduct was indicative of his determination to gratify his passion. He would not have been able to do so far one reason or the other, but the same in this established fact situation actual commission or at least attempt to commit the offence cannot be said to have been made out.(Para 15)
The High Court, however, in our opinion, committed an error in sentencing the appellant to rigorous imprisonment for a term of 10 years. The appellant has been convicted only under Section 376/511 of the IPC and thus the proper sentence that should have been awarded to him was imprisonment for 5 years.(Para 19)
ORDER
The appellant herein was charged with commission of an offence under Section 376 of the IPC for committing rape on a minor girl Sushma. Her parents are labourers. They had been occupying a portion of the premises belonging to the father of the appellant herein, as tenant. On 2.1.1995, they had gone out of their house in search of work. Sushma was all alone in the house. The appellant taking advantage of the absence of the parents of the prosecutrix, came there, took her to Tapariya, put off her Chaddi and he also pulled down his trousers and sat upon her. When her grandfather came, he fled away. When the parents of Sushma came back, they were informed about the said incident by her. The mother of the prosecutrix had been redness in her private part as also blood coming out therefrom.
2. First Information Report was lodged on the next day i.e. on 3.1.1995. The prosecutrix was sent for medical examination and one Dr. Smt. Sunita Jain examined her. The said doctor was examined before the learned Trial Judge as PW-2. In her evidence she stated :
“I medically examined Sushma D/o Mukesh on 3.1.1995 at 12.15 noon and found no any external injury over her body. Swelling was there over her private part and that became red. Hymen of her private part was intact. Hymen of her private part became red. I cannot give definite opinion that in earlier past whether there had been any intercourse happened with that lady.”
3. The only question which was put to PW-2 in cross-examination was a suggestion which was in the following terms :
“By biting of ant, swelling and redness may come at 3-4 places of the private parts.”
4. Apart from the mother and grandfather, the prosecutrix examined herself. She being below 12 years of age, the learned Sessions Judge satisfied himself that she was capable of testifying as a witness. In her evidence, the prosecutrix stated :
“On that Tapariya was closed, which Guddu opened. Guddu sat over me by removing my underwear. After the incident my father reached there, I narrated about the incident to my father. I was medically examined.”
5. On the aforementioned statement she was not cross-examined.
6. The mother of the prosecutrix also examined herself as PW-7. In her examination-in-chief, she stated :
“Sushama is my daughter. I know the accused earlier before one year. I and my husband went out for labour work. On that day we did not get labour work. Therefore, we came back home at 10 a.m. Sushma told that Guddu opened the lock of Tapariya, put off my underwear and sat over me. Blood was stained in the underwear of Sushama. I told all about facts to my husband.”
7. Yet again she had not been cross-examined on the said point.
8. PW-3 is the grandfather of the prosecutrix. His evidence before the learned Trial Judge was as under :
“I know Sushama, Mukesh and Guddu. Sushama is my granddaughter. Mukesh is my son. About one year before at 10-11 A.M. When I was returning home after working on Kothi No. 28. At home Sushama told me that Guddu came. He opened the lock of Tapariya, took me inside. Later on he put off his pant and put off my underwear and sat over me. When I came, on that point of time Guddu came out from Tapariya, when I caught hand of Guddu then he shown me knife.”
He was also not cross-examined.
9. The learned Trial Judge, however, recorded a judgment of acquittal opinion :
“But, here that principle is not applicable because as per prosecution account explicitly committed rape over Sushama, and adduced the evidence that accused committed rape over the prosecutrix. Dr. Smt. Jain in her evidence did not tell this that blood was oozing from the private part of Sushama. If accused would have committed rape on the prosecutrix then the hymen of private parts of Sushama would have ruptured. But as per Dr. Smt. Jain hymen of private part of Sushama was intact. There are so many reasons of redness over private part. Hence, on the basis of the redness only no presumption of cohabitation can be reached.”
10. The learned Trial Ju
