RAJENDRA DATTA ZAREKARversusSTATE OF GOA

                                                                             )




A                     RAJENDRADAITA ZAREKAR
                                      v.
                              STATE OF GOA

                           DECEMBER 4, 2007
B
               [G.P. MATHUR AND G.S. SINGHVI, JJ.]


        Penal Code, 1860:
C       ss. 375, 376(2)(f) and 342-Rape of minor girl-Held: To
  constitute offence of rape, partial penetration or even attempt at
  penetration is sufficient Prosecutrix was six years old and it was quite
  likely that full penetration did not take place as accused was grown
  up person-Injuries clearly indicate that rape, as defined in s.375, did
D take place-Plea offalse implication also not sustainable-Rape leaves
  permanent scar and has serious psychological imaact on victim and
  also her family members and, therefore, no one would normally concoct
  story ofrape just to falsely implicate person-Conviction and sentence
  of JO years R.l upheld-Crime against women.
E       Sentence/Sentencing:
        Rape ofminor girl-Victim aged about six years-Imposition of
  sencence of JO years R.1.-Reduction of-Held: No adequate and
  special reasons for reducing quantum ofsentence-Penal Code, 1860-
F ss. 375 and 376(2)(j)-Crime against women.
       Prosecution case was that the prosecutrix aged about 6 years
  was playing in the courtyard of her house when the accused living
  nearby took her inside his room and committed rape on her. PW-1,
  the mother ofprosecutrix, heard cries of her daughter from inside
G the room ofaccused. The room was bolted from inside. She knocked
  at the door and accused opened it only after some time. The
  prosecutrix told her mother about the crime committed by accused
  on her. She called her husband and other relations. When husband
  reached home, they lodged FIR. After completing investigation,
H                                    840
                RAJENDRADATIAZAREKAR v. STATE                          841


     accused was charged under ss. 342 and 376 IPC.                          A

          The Sessions Judge held that the case of prosecution was not
     established against the accused and accordingly acquitted him. On
     appeal, High Court convicted the accused under s. 376(2)(f) IPC and
     sentenced him to 10 years R.I. and fine of Rs.10,000/-. He was B
     further convicted u/s.342 and sentenced one month's R.I. and fine
     of Rs.1000/-.
          In appeal to this Court, appellant contended that be was falsely
     implicated; that the hymen ofprosecutrix was intact and therefore
     the charge ofrape under s. 376IPC as defined in s.375 IPC bas not C
     been made out and that the sencence of 10 years R.I. awarded by
     High Court was very severe.
          Dismissing the appeal, the Court
          HELD: 1. In spite of fairly lenghty cross-examination, nothing D
     came outin the statements of PW-land prosecutrix to throw even a
     slightest doubt on the prosecution version of the incident. There was
     no enmity of any kind between PW-1 and the accused which might
     impel her to falsely implicate the accused. Though a suggestion
     regarding taking of some money by PW-1 from the accused was made E
     and a further suggestion was made that she wanted to have some
     kind of relationship with the accused but the same was not at all made
     probable much established by any evidence. The rape leaves a
     permanent scar and bas a serious psychological impact on the victim
-1   and also her family members and, therefore, no one would normally F
     concoct a story of rape just to falsely implicate a person. There was
     not even an iota of evidence to show that PW-1 or her husband had
     any reason whatsoever to falsely implicate the accused.
                                                        [Para 13] [848-C-F]
          2. To constitute the offence of rape it is not necessary that there G
     should be complete penetration with emission of semen and rupture
     of hymen. Partial penetration with or without emission of semen or
     even an attempt at penetration is quite sufficient for the purpose of
     the law. The victim was a very young girl of six years of age and it
     is quite likely that full penetration did not take place as the accused H
    842            SUPREME COURT REPORTS               [2007] 12 S.C.R.


A is a grown up person of over 20 years of age. The injuries clearly
  indicate that rape, as defined in s.375 IPC, did take place.
                                           [Para 14) [849-C-D; 850-C)

          Santosh Kumar v. State ofMP. JT (2006) 8 SC 171, relied on.
B       3. S. 376(2)(t)IPC specifically provides that where the victim is
  less than 12 years of age, the sentence awarded shall not be less
  than 10 years but it may be for life and the accused shall also be
  liable to fine. The proviso, no doubt, says that the court may for
  adequate and special reasons to be mentioned in the judgment,
C impose a sentence of imprisonment for a term ofless than ten years.
  Here the victim PW-8 was aged about six years and, therefore, the
  case is fully covered by clause (t) of sub-section(2) of s. 376 IPC and
  the sentence awarded cannot be less than ten years unless there
  are adequate and special reasons for doing so. There are no
D adequate and special reasons for imposing a sentence ofless than
  ten years. However, the fine of Rs. 10,000/- awarded under s.
  376(2)(t) IPC is excessive and the same is reduced to Rs.1,000/- and
  the fine ofRs.1,000/-awarded under S. 342IPC is set aside.
                                   [Paras 15and16) [850-D-H; 851-A]
E         State of Chhattisgarh v. Derha, [2004) 9 SCC 699, held
    inapplicable

         CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
    32 of2007.
F        From the Judgment and final Order dated 16.8.2006 of the High
    Court of Judicature at Bombay, Bench at Goa in Criminal Appeal No.
    04 of2005.
          Vinay Navare and Naresh Kumar for the Appellant.
G         A. Subhashini for the Respondent.
          The Judgment of the Court was delivered by
        G.P. MATHUR, J. 1. This appeal has been preferred under Section
    2(A) of the Supreme Court (Enlargement of Criminal Appellate
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        J
            RAJENDRADAITAZAREKAR v. STATE[G.P.MATHUR,J.] 843
t
            Jurisdiction) Act, 1970 against the judgment and order dated 16.8.2006 A
            of Goa Bench of Bombay High Court by which the appeal filed by the
            State was allowed and judgment and order dated 28.7.2004 of First Ad
            hoc Assistant Sessions Judge, Panaji in Sessions Case No. 1 of2004
            acquitting the accused was set aside. The High Court convicted the
 .J.,       appellant Rajendra under Sections 376(2)(f) and 342 IPC and sentenced B
            him to ten years R.I. and a fine of Rs.10,000/- under the first count and
            one month's R.I. and a fine of Rs.1,000/- under the second count.
                 2. The case of the prosecution, in brief, is that PW-2 Satyam Ahire
           along with his wife PW-1 Pushpaand three children was residing in Usgao
           in Ponda. He was working as a security officer in Bethora Industrial c
           Estate. In the evening of 14.10.2003 his eldest daughter Supriya was
           studying at her home while the second daughter PW-8 Sonia, aged about
        , six years, was playing in the courtyard of his house. PW-4 Mohandas
-y         Gaonkar, uncle of Pushpa, owned some rooms close by which were given
           on rent to some boys who were working in the Nestle factory. The D
           accused Rajendra was living on rent in one of these rooms. At about 5.00
           P.M. on 14.l 0.2003 PW-I Pushpa heard cries of her daughter Sonia
           from inside the room, which was in occupation of the accused Rajendra.
           She went to the room and found it closed from inside and, therefore, she
           knocked at the door. After some time the accused Rajendra opened the E
           door of the room. She enquired from the accused as to what he was doing
           inside the room along with her daughter but he kept quiet. On enquiry
         , Sonia told her mother that the accused Rajendra took her inside his room
           while she was playing in the courtyard. He closed the door, switched off
-i
           the light and forced her to lie down on the mat. Thereafter the accused F
           removed her panty and also removed his own pant and lied down over
           her. He inserted his private part in the private part of Sonia and did some
           movement. Pushpa then brought Sonia to her own house and called her
           sister and other family members. After Satyam Ahire (father of Sonia)
          had come back, they went to the Police Station, Ponda where they G
 'I       reached at about 9.00 P.M. The PSI of Ponda Police Station sent them
           to Medical College where Sonia was medically examined and the doctor
           confirmed that she had been subjected to rape. Thereafter a formal FIR
           was registered at 11.45 P.M. on 14.10.2003 at P.S. Ponda.
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    844           SUPREME COURT REPORTS                  [2007] 12 S.C.R.


A       3. After the case had been registered at the police station the same
  was investigated by PW-11 Shivram Vaigankar, PSI. He recorded
  statements of witnesses under Section 161 Cr.P.C. The accused Rajendra
  was arrested at 5.00 A.M. on 15.10.2003 and the clothes which he was
  wearing were taken into custody. He also took in custody the clothes of
B the girl Sonia. He prepared a site plan and panchnama of the scene of
  occurrence in presence of two witnesses and also seized a bed sheet and
  nylon mat. A photograph of the room was also taken. After completing
  investigation he submitted charge-sheet under Sections 342 and 376 IPC
  against the accused Rajendra.
c       4. The prosecution in support of its case examined 11 witnesses
  before the trial court and filed some documentary evidence. The learned
  Assistant Sessions Judge, after appraisal of the evidence, came to the
  conclusion that the case of the prosecution was not established beyond
  doubt against the accused Rajendra and he accordingly acquitted him by
D the judgment and order dated 28.7.2004. Feeling aggrieved by the
  judgment and order of the learned Assistant Sessions Judge the State
  preferred an appeal before the High Court. The High Court, after a
  detailed consideration of the evidence, allowed the appeal and reversed
  the judgment of acquittal recorded by the Assistant Sessions Judge. The
E High Court convicted the accused under Section 376(2)(£) IPC and
  sentenced him to ten years R.I. and a fine ofRs.10,000/- and in default
  to undergo six month's S.I.. He was further convicted under Section 342
  IPC and was sentenced to undergo one month's R.I. and a fine of
  Rs.1,000/- and in default to undergo 15 days' S.I.
F
         5. We have heard Mr. Vinay Navare, learned counsel for the
    appellant Rajendra and Ms. A Subhashini, learned counsel for the State
    of Goa, and have perused the record.
       6. PW-4 Mohandas Gaonkar has deposed that he owns three
G houses and has four rooms in one of his houses out of which one room
  had been given on rent to some boys who were working in Nestle factory.
  The accused Rajendra, who was employed in Nestle factory, had been
  given one room on rent and his duty hours were from 8.00 A.M. to 4.30
  P.M. On 14. l 0.2003 he returned from the market at about 6.30 P.M.
H when PW-1 Pushpa, her sister and some others were present there in
    RAJENDRADATIAZAREKAR v. STATE[G.P.MATHUR,J.] 845


    the house. Pushpa told him about the incident regarding commission of A
    rape by the accused Rajendra on Sonia inside the room.
         7. PW-2 Satyam Ahire deposed that Mohandas Gaonkar is his
    wife's uncle and is a close neighbour. He had given one room in his house
    to boys working in Nestle factory and the accused Rajendra was a tenant B
    in one such room. On 14.10.2003 he had gone to the market and returned
    from there after 5.00 P.M. When he returned home he found his daughter
    Sonia weatping and was in a very bad condition. She was lying in bed.
    His wife PW-1 Pushpa informed him that the accused Rajendra had pulled
    Sonia inside his room and had committed rape upon her. He has further
    deposed that he then went to police station by rikshaw and from there C
    he was sent to medical college for medical examination of Sonia.
           8. PW-1 Pushpa has given a detailed version of the incident. She
     has deposed that she has three children and Sonia, who is aged about
     six years, is her second daughter. Her uncle Mohandas Gaonkar lives          D
     nearby and he had let out one of the rooms in his house to the accused
     Rajendra. In the evening of 14.l 0.2003 her elder daughter was studying
     at home while Sonia was playing in the courtyard near the house. While
     she was preparing some eatables she heard the cries of Sonia coming
     from the side of the house of her uncle Mohandas Gaonkar. She                E
     immediately rushed there and found that the room which was under the
    tenancy of the accused Rajendra was closed from inside. She also heard
    the cries of Sonia corning from inside the room. She then knocked at the
    door which was opened by the accused after about five minutes. She
    enquired from the accused as to what had happened but he kept quiet.          F
i   Sonia, who had rushed to her mother, informed her that she was taken
    inside the room by the accused and thereafter he closed the room from
    inside and switched off the light. The accused forced her to lie down on
    the mat and after removing her panty also removed his pant and lied down
    over her. He inserted his private part inside her private part and did some   G
    movement. Pushpa then came to her own house and called her family
    members. After her husband had come back from the market she went
    to the police station to lodge the report. The FIR was lodged by her which
    is Exhibit 8. The police referred her daughter Sonia to Goa Medical
    College for her medical examination. She went there where Sonia was
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    846           SUPREME COURT REPORTS                   [2007] 12 S.C.R.


A medically examined. She was cross-examined at length but nothing
  material has come out in the same which may throw any doubt regarding
  the prosecution version of the incident. In cross-examination she has said
  that her husband was not present and had gone to market and he returned
  from the market at about 5.30 P.M. Sonia was crying loudly and was
B having great difficulty in passing urine. She has further deposed that one
  day before her statement in court Sandesh, brother of the accused
  Rajendra, and his mother had come to her house pleading for mercy. She
  denied the defence suggestion that she had some kind of relations with
  the accused and used to borrow money from him and had falsely implicated
c him as she wanted some more money from him.
       9. The prosecutrix Sonia was examined as PW-8. The learned
  Assistant Sessions Judge put questions to her in order to ascertain whether
  she was in a position to give statement in court. After being satisfied about
  her mental capacity, her statement was recorded. The learned Assistant
D Sessions Judge has noted that she wanted to be near her mother at the
  time of recording her statement and that the accused had been sent little
  away with the consent of his advocate so that the witness may be
  comfortable. Sonia stated that the accused Rajendra was residing in the
  room near her house. When she was near the house of her aunty the
E accused came near her and pulled her inside his room and closed it from
  inside. He removed her panty and his own pant and made her lie down
  on the mat. He lied over her, inserted his private part in her private part
  and did some movement. She cried out of pain. After few minutes her
  mother came and knocked at the door. After couple of minutes the
F accused opened the door. She then narrated the entire incident to her
  mother. She identified the panty and frock, which she was wearing at the
  time of the incident and were seized by police, during the course of her
  statement in court. She further said that she was taken to the hospital for
  her medical examination.
G
         10. PW-I 0 Dr. E.J. Rodrigues, Associated Professor in Forensic
    Medicine, Medical College, Goa, examined Sonia at about 11.45 P.M.
    on 14.10.2003 in the presence of Dr. Mrinalini, lecturer in the Medical
    College. He has deposed that the girl Sonia was of thin built having a
    height of97 ems. and weighing 26 kgs. The gait of Sonia was slightly
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      ~
          RAJENDRADATTAZAREKAR v. STATE[G.P.MATHUR,J.] 847

1
          painful. Her genital development was of infant type nature. Pubic hairs A
          were not erupted and there were no injuries on inner aspects of thighs.
          There was a bruise reddish 2 x 1.5 ems. area on right labia majora and
          right labia minora, which was tender to touch. There was a laceration of
          5 mm x 2 mm on right labia minora near the clitoris which was tender to
;I
          touch. The hymen was intact. There were no fresh or old tears to hymen. B
          Hymnal opening admits tip oflittle finger. Hymnal border was bruised,
          edematous and tender to touch. The vaginal contents and vaginal walls
          were normal. He opined as under: -
                 "I certify that on physical genetical examination there is evidence
                 of recent penetration. Vaginal swabs and smear slides were retained   c
                 for serological examination."
               11. The same doctor also examined the accused Rajendra at 12.15
          P.M. on 15.10.2003 at the request of police of Ponda Police Station in
          the presence of Dr. Girish Kamat. There were no injuries on his body. D
          His genital development was good. His pubic hairs were black and not
          matted with blood or semen (preserved). On physical and genital
          examination there was nothing to suggest that Rajendra was incapable of
          sexual intercourse.
                12. PW-3 Raju Sunktankar is the photographer who took E
          photographs of the room and he has proved the same. PW-5 Tarun
          Kumar is a panch witness of seizure of clothes of PW-8 Sonia and of
          accused Rajendra. PW-6 Narayan is the panch witness of seizure of
          mattress and bed sheet. PW-9 Sanjay had examined the blood group of
          Sonia and of accused Rajendra. PW-11 Shivram Vaigankar, PSI of Ponda F
          Police Station has deposed about the lodging of FIR by Pushpa and
          registration of the case after he had received the medical examination
          report of Sonia. He has deposed about the various steps taken by him
                                                          '
          during the course of investigation of the case.
                                                                                  G
                13. We have given above the gist of the evidence adduced by the
...       prosecution. The evidence shows that the accused Rajendra was living
          as tenant in a room in the house of PW-4 Mohandas Gaonkar, who is
          uncle of PW-1 Pushpa. The room in which the accused was living is close
          to the house of the victim. In the evening of 14.10.2003 when Sonia was
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    848           SUPREME COURT REPORTS                    [2007] 12 S.C.R.


A playing outside the courtyard of her house the accused pulled her and
  took her to his own room, bolted it from inside and after removing the
  clothes of Sonia and his own pant committed rape 1:1pon her. The cries of
  Sonia attracted her mother Pushpa who came there, knocked at the door
  and after some time the accused opened the same. Sonia was crying loudly
B and she narrated the incident to her mother. Pushpa went to the police
  station after her husband PW-2 Satyam Ahire and some other relations
  had come there. The police sent Sonia to Medical College where she was
  medically examined by PW-10 Dr. Rodrigues who certified that she had
  been subjected to rape. Thereafter the FIR of the incident was registered
C at the police station at 11.45 p.m. the same night. In spite offairly lengthy
  cross-examination nothing has come out in the statements of Pushpa and
  Sonia which may throw even a slightest doubt on the prosecution version
  of the incident. There is no enmity of any kind between Pushpa and the
  accused Rajendra which may impel her to falsely implicate the accused.
D Though a suggestion regarding taking of some money by Pushpa from
  the accused has been made and a further suggestion has been made that
  she wanted to have some kind of relationship with the accused but the
  same has not at all been made probable much established by any evidence.
  The rape leaves a permanent scar and has a serious psychological impact
E on the victim and also her family members and, therefore, no one would
  normally concoct a story of rape just to falsely implicate a person. In the
  present case there was not even an iota of evidence to show that PW-1
  Pushpa or her husband Satyam Ahire had any reason whatsoever to falsely
  implicate the accused Rajendra. We have carefully gone through the
F evidence and in our opinion the evidence lead by the prosecution fully
  establishes the case against the accused Rajendra beyond any shadow
  of doubt.
        14. Learned counsel for the appellant has next submitted that the
  doctor had found that the hymen of Sonia was intact and, therefore, the
G charge for rape under Section 376 IPC as defined in Section 375 IPC
  has not been made out. An identical question was considered by a Bench
  of this Court in Santosh Kumar v. State ofMP., JT (2006) 8 SC 171,
  and para 10 of the report is reproduced below: -
          " 10. The question, which arises for consideration, is whether the
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       RAJENDRADAITAZAREKAR v. STATE[G.P.MATHUR,J.] 849
  1
           proved facts establish the offence of rape. It is not necessary for A
           us to refer to various authorities as the said question has been
           examined in considerable detail in Madan Gopal Kakkad v. Naval
           Dubey, JT (1992) 3 SC 270 and paras 37 to 39 of the said
           judgment are being reproduced below:
                                                                                 B
  "'           "37. We feel that it would be quite appropriate, in this context,
               to reproduce the opinion expressed by Modi in Medical
               Jurisprudence and Toxicology (Twenty First Edition) at page
               369 which reads thus:
                    "Thus to constitute the offence of rape it is not necessary c
                   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 D
                   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. In such a case the
                   medical officer should mention the negative facts in his
                   report, but should not give his opinion that no rape had
                                                                                 E
                   been committed. Rape is crime and not a medical
                   condition. Rape is a legal term and not a diagnosis to be
                   made by the medical officer treating the victim. The only
                   statement that can be made by the medical officer is that
                   there is evidence of recent sexual activity. Whether the
                                                                                 F
                   rape has occurred or not is a legal conclusion, not a
                   medical one."
           38. In Parikh's Textbook of Medical Jurisprudence and Toxicology,
           the following passage is found:
               "Sexual intercourse. - In law, this term is held to mean the G
               slightest degree of penetration of the vulva by the penis with
               or without emission of semen. It is therefore quite possible to
               commit legally the offence of rape without producing any injmy
               to the genitals or leaving any seminal stains."
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    850           SUPREME COURT REPORTS                   [2007) 12 S.C.R.

A              39. In Encyclopedia of Crime and Justice (Vol. 4) at page
               1356, it is stated:
               "... even slight penetration is sufficient and emission is
               unnecessary."
B          Therefore, the absence of injuries on the private parts of a victim
           specially a married lady cannot, ipso facto, lead to an inference
           that no rape has been committed."

  Here the victim was a very young girl of six years of age and it is quite
  likely that full penetration did not take place as the accused is a grown
C up person of over 20 years of age. The injuries clearly indicate that rape,
  as defined in Section 375 IPC, did take place.
        15. Learned counsel for the appellant further submitted that the
  sentence of ten years R.I. awarded by the High Court is very severe and
D the same may be reduced. It may be mentioned here that Section
  376(2)(f) IPC specifically provides that where the victim is less than 12
  years of age the sentence. awarded shall not be less than I0 years but it
  may be for life and the accused shall also be liable to fine. The proviso,
  no doubt, says that the court may for adequate and special reasons to be
E mentioned in the judgment, impose a sentence of imprisonment for a term
  ofless than ten years. Here the victim PW-8 Sonia was aged about six
  years and, therefore, the case is fully covered by clause (f) of sub-section
  (2) of Section 376 IPC and the sentence awarded cannot be less than
  ten years unless there are adequate and special reasons for doing so. We
F do not find any adequate or special reasons for imposing a sentence of         'r
  less than ten years. Learned counsel for the appellant placed reliance on
  State of Chhattisgarh v. Derha, [2004] 9 SCC 699, for reducing the
  sentence. In the authority cited what weighed with the court was that the
  accused was hardly eighteen years of age and had already served about
G six and half years' imprisonment. He was married and had a family. In
  these circumstances the court considered it proper to reduce the sentence
  to seven years. Such is not the case here and, therefore, we are legally
  bound to award a sentence often years R.I. However, we feel that the
  fine ofRs.10,000/- awarded under Section 376(2)(f) IPC is excessive
  and the same is reduced to Rs.1,000/- and the fine ofRs.1,000/- awarded
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RAJENDRADATTAZAREKAR v. STATE[G.P.MATHUR,J.] 851


under Section 342 IPC is set aside.                                     A
      16. In the result the appeal is dismissed with the modification that
the fine ofRs.10,000/- imposed under Section 376(2)(f) IPC is reduced
to Rs.1,000/- and the fine ofRs.1,000/- imposed under Section 342 IPC
is set aside. The substantive sentence often years R.I. awarded under B
Section 376(2)(f) IPC and one month R.I. under Section 342 IPC are
maintained.
D.G.                                               Appeal dismissed.