IMPORTANT POINTS
Penetration is not essential ingredient of rape.
Sentence cannot reduced u/s 376(1), IPC without special and adequate reasons.

Judgment :-

A.K. Patnaik, J.

This is an appeal by way of special leave under Article 136 of the Constitution against the judgment dated 06.03.2003 of the Delhi High Court in Criminal Appeal No. 696 of 2002 by which the conviction of the appellant under Sections 376 and 506 of the Indian Penal Code, 1860 (for short ‘IPC’) and the sentences imposed by the trial court on the appellant have been maintained.

Facts:

2. The facts very briefly are that on 30.01.2001 at about 8.00 p.m., a young girl of about fourteen years accompanied by her parents, lodged the First Information Report (for short ‘the FIR’) in Police Station, Khajoori Khas, Delhi, in which she stated as follows: She was a student of Higher Secondary School and residing with her parents at House No.131, Gali No.12, Khajoori Khas, Delhi. Opposite to their house was the house of Sardar Jagir Singh. Babbo, daughter of Sardar Jagir Singh, was her friend and she used to visit the house of Sardar Jagir Singh to meet Babbo. On 28.01.2001 at about 8.30 p.m., the lights in the area went off and as the generator at the house of Sardar Jagir Singh was on, the prosecutrix went to meet Babbo. She enquired from the appellant, the son of Sardar Jagir Singh, as to whether Babbo was in the house and the appellant told her that Babbo was inside the room. When she entered inside the room, the appellant followed her into the room, bolted the room from inside and forcibly put her on the cot. When she raised an alarm, the appellant slapped her. He then took out her salwar and underwear and raped her. He also threatened her with death if she narrated the incident to anybody. Out of fear and shame, she did not narrate the incident to anybody, but in the evening of 30.01.2001 she narrated the incident to her mother.

3. On this statement of the girl (hereinafter referred to as ‘the prosecutrix’), a case under Sections 376 and 506, IPC, was registered on 30.01.2001. The prosecutrix was medically examined on the same night. On examination of the X-rays report of the prosecutrix, the doctor opined that her age was above fourteen years but below sixteen years. Her clothes and vaginal swab were sent to the Central Forensic Science Laboratory (for short ‘CFSL’) for analysis and as per the report from CFSL, human semen and blood was detected on the underwear of the prosecutrix, but no semen was detected in the vaginal swab. After investigation, a charge-sheet was filed against the appellant under Sections 342/354/376/506, IPC. Charges, however, were framed only under Sections 376 and 506, IPC, and as the appellant pleaded not guilty, the trial was conducted. At the trial, as many as fifteen witnesses were examined on behalf of the prosecution including the prosecutrix. After considering the evidence on record, the trial court convicted the appellant under Sections 376 and 506, IPC. For the offence under Section 376, IPC, the trial court imposed the minimum sentence of seven years rigorous imprisonment and a fine of Rs.5,000/-, in default, rigorous imprisonment for one year and for the offence under Section 506, IPC, the trial court imposed a sentence of two years imprisonment and a fine of Rs.5,000/- and in default, a rigorous imprisonment of six months. The trial court further directed that the sentences were to run concurrently. Aggrieved, the appellant filed Criminal Appeal No.696 of 2002 in the High Court, but by the impugned judgment the High Court has dismissed the appeal.

Contentions of the parties:

4. At the hearing of this appeal, Mr. Jana Kalyan Das, learned counsel for the appellant, submitted that at most this is a case of attempt to rape and not rape and hence the appellant should be held guilty under Sections 376/511, IPC, and not under Section 376, IPC. He referred to the evidence of the prosecutrix (PW-1) as well as the medical evidence to support his submission that no offence of rape as such has been committed of the prosecutrix. He cited the decision of this Court in Narender Kumar v. State