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1992 JLJ 377
(SUPREME COURT)
S. Ratnavel Pandian and M. Fathima Beevi, JJ.
Madan Gopal Kakkad v. Naval Dubey and another
Cr. Appeal No. 447 of 1988; Decided on 29.4.1992.
(2) Penal Code, 1860 -- S. 376 -- offence of rape -- testimony of prosecutrix not suffering from any basic infirmity --medical evidence forth coming -- no other corroboration need be insisted upon. 1952 SCR 377, 1988 (3) SCC 217 and 1980 (3) SCC 159 relied on. [Para 24
(3) Criminal P.C., 1973 -- S. 478 -- appeal against acquittal-- High Court has full power to review the evidence upon which the order of acquittal is founded -- it can reach to its own conclusions.
The High Court is clothed with the plenary powers to go through the entire evidence and to come to its own conclusions as warranted by the facts of the case concerned but, of course, subject to certain guidelines laid down by the judicial pronouncements. AIR 1934 PC 227 discussed. AIR 1953 SC 122, 1952 SCR 193, AIR 1954 SC 1, AIR 1956 SC 217, AIR 1963 SC 822,1971 (3) SCC 577,1973 (2) SCC 216, 1974 (4) SCC 258 and 1975 (3) SCC 150 relied on. [Paras 26 & 27
(4) Penal Code, 1860 -- S. 354 -- activities of the accused considered to be menance to the neighbours -- seriousness of the offence with a girl of 8 years not taken into account while awarding sentence of fine only -- is a miscarriage of justice.
(5) Evidence Act, 1872 -- S. 45 -- medical witness as an expert is called to assist the Court -- he is not a witness of fact -- his evidence is of advisory character -- it is a mere opinion evidence -- medical jurisprudence is not even an exact science.
A medical witness called in as an expert to assist the Court is not a witness of fact and the evidence given by the medical officer is really of an advisory character given on the basis of the symptoms found on examination. The expert witness is expected to put before the Court all materials inclusive of the data which induced him to come to the conclusion and enlighten the Court on the technical aspect of the case by explaining the terms of science so that the Court although, not an expert, may form its own judgment on those materials after giving due regard to the expert‘s opinion because once the expert‘s opinion is accepted, it is not the opinion of the medical officer but of the Court. 11 WR Cr. 25 and AIR 1977 SC 1307 relied on. [Paras 35 to 37
(6) Penal Code, 1860 -- S. 375 - Expl. -- rape -- slightest penetration even without emission of semen may constitute offence of rape -- complete act of sexual intercourse is not necessary.
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. Medical Jurisprudence Toxicology by Modi 21st Edn. P. 369, Textbook of Medical Jurisprudence and Toxicology by Parikh, Encyclopedia of Crime and Justice (Vol. 4) P. 1356, Halsbury‘s Statutes of England and Wales (4th Edn.) Vol. 12, (1841) 9 C and P 752, (1844) 1 Car and Kir 393, (1847) 9. LTOS 179, American Jurisprudence, Penal Code of California, Code 263, 26 Cr LJ 1925 Page 1185, AIR 1927 Lah. 735, 1934 PLR 35, 1957 CrLJ 469, 1974 Cr LJ 1098, AIR 1960 Mad. 308, Gour‘s "The Penal Law of India" 6th. Edn. P. 1678 and 1989 (1) SCR 432 relied on. [Paras 38 to 46
(7) Penal Code, 1860 -- S. 376 -- rape -- offence duly proved by prosecutrix, medical evidence and confession of accused -- accused a medical officer knowing meaning of word ‘rape‘ -- offence established beyond doubt. Judgment of High Court modified. [Paras 49 & 50
(8) Penal Code, 1860 -- S. 376 -- rape with minor girl of 8 years -- accused is not entitled to any remission in the sentence -- such accused are menance to civilized society -- should be mercilessly and inexorably punished. [Pams 57 & 58
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S. Ratnavel Pandian, J. -- 1. The factual matrix leading to the filing of this appeal which is quite simple gives an account of a sordid and obnoxious incident wherein the respondent, a medical practitioner who had created a private hell of his own was gratifying his animated passions and sexual pleasure by sexually assaulting and molesting young girls not only in utter disregard of the universal moral code, human dignity, his professional ethics and values but also in flagrant violation of the law of the country.
2. The brief facts of this shameless intrigue as unravelled by the prosecution at the trial are as follows:
3. The respondent/accused who just then graduated from the Medical College was staying with his family consisting of his parents, his brothers, his sister-in-law Smt. Tara Dubey and niece Richa Dubey, who is the daughter of the respondent's step- brother Niraj Dubey, in Adarsh Nagar, Jabalpur. His fother Bhagwan Dass Dubey (DW-2) was a retired Professor and his sister- in-law Tara Dubey (DW -1) was a lecturer. His another elder brother at the relevant time of this occurrence was working as Superintendent of Police in Rajgarh District. Opposite to his house at some distance Satish Bhasin (PW -9) and Sapna Bhasin (PW - 10) were residing with their minor daughter Priti. Within the same locality 3 or 4 houses away from the house of the respondent/accused, the appellant Madan Gopal Kakad (PW-5) was living with his wife, a German lady, by name, Elesabeth Kakkad (PW -6), his sister Veera (PW - 7) and his minor daughter Tulna Sheri (PW -13), a girl aged about 8 years and his younger son Pulkit. The family members of the respondent and PW-5 were on cordial relationship making frequent visits to the houses of each other.
4. Tulna Sheri (PW 13) the unfortunote victim in this case was studying in the third standard in St. Joseph Convent along with her class-mate Richa Dubey. Tulna used to come frequently to the house of the respondent to play with Richa Dubey and her other girl friends. Tarun Lata Joshi (PW-12) was living with her fother who was a tenant in the house of PW -5.
5. According to the prosecution, the respondent who had a crush on young girls used to develop friendship with the girls who used to come to his house to play with his niece Richa Dubey by narrating interesting stories from comic books. On the day of this deplorable incident, i.e. on 2.9.1982 at about 4 or 5 P.M. Richa Dubey called Tulna (PW-13) stating that her mother wanted her. Accordingly Tulna wearing underwear and jeans accompanied by her younger brother Pulkit went to the house of Richa, but found none except the respondent. The respondent found fault with Tulna for having come there in jeans accompanied by her brother. When the two girls, namely, Tulna and Richa started playing in the drawing room, the respondent whispered something in the ears of Richa, who then told Tulna that she had been asked by her uncle (the respondent) to take Pulkit outside and narrate him some stories and that the respondent would 'make love', presumably meaning that he would tell some lurid tales of sex to her thereby stimulating immoral thoughts so that Tulna might fall a prey to his lewd and lascivious behaviour. As soon as Richa went outside taking Pulkit, the respondent bolted the door from inside, completely stripped off himself; removed the jeans and underwear of Tulna and made her naked and asked Tulna to do fellatio, that is to suck his penis. Thereafter the respondent cuddled and pined Tulna close to him, and slightly inserted his penis into her vulva and started sucking her lips. Within a few seconds, he ejaculated and freed the girl from his clutches and thereafter put on his pyjamas and asked Tulna to wear her jeans. Again the respondent longing for his lascivious passion, laid down Tulna on a sofa in his drawing room and remained lying on her and closed her mouth so that the girl could not scream. A little later after wetting his sexual appetite he
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