Holding

The accused committed rape under Section 376 IPC (with attempt under Section 511 IPC) and must be convicted accordingly, not merely under Section 354 IPC.

Summary

The accused Rajendra Jawanmal Gandhi was charged with raping an eight‑year‑old girl. The trial court convicted him under Section 376 IPC and sentenced him to seven years' rigorous imprisonment. The Bombay High Court set aside the rape conviction, finding only an attempt and convicting him under Section 354 IPC, also reducing the sentence. On appeal, the Supreme Court held that the facts demonstrated an attempt to commit rape, which under Section 511 IPC allows conviction for the completed offence of rape under Section 376 IPC, and therefore restored the rape conviction, imposing five years' rigorous imprisonment and a fine of Rs.40,000, while upholding the conviction under Section 57 of the Bombay Children Act. The Court also emphasized that media pressure must not prejudice the trial and that sentencing must reflect the gravity of the crime. The State's appeal was allowed and the accused's appeal dismissed.

Issues considered

The appropriate charge: whether the conduct amounted to rape under Section 376 IPC or only to an offence under Section 354 IPC.
Whether conviction for attempt under Section 511 IPC permits conviction for the substantive offence of rape even if attempt was not separately charged.
Whether the sentence of seven years imposed by the trial court complied with the statutory minimum of ten years for rape of a minor.
The validity of the conviction under Section 57 of the Bombay Children Act.
The effect of public and media pressure on the fairness of the trial.

Legislation cited

Code of Criminal Procedure, 1973s. 222
Indian Penal Code, 1860s. 350, s. 354, s. 376, s. 511

Subjects

rapeattempt to rapeminor childSection 376 IPCSection 511 IPCSection 354 IPCBombay Children Actsentencingpublic pressuremedia trial

Judgment

A STATE OF MAHARASHTRA
v.
RAJENDRA JA WANMAL GANDHI ETC.

SEPTEMBER 11, 1997

B [M.K. MUKHERJEE AND D.P. WADHWA, JJ.)

Indian Penal Code, 1860-Sec. 37615111354-Bombay Children Act .
1948-Sec. 57.

c Rape-Committed on a minor girl-Medical Examination-
Examination of witness-Conviction by Trial Court-On appeal High Court
upselling the conviction under sec. 376 IPC and convicting the accused
under sec. 354 IPC-The offence Held, was attempt to commit offence of
rape-Conviction altered to one under sec. 3761511 !PC-A person charged
D for an offence may be convicted for al/empt to commit that offence even if
al/empt is not separately charged-Code of Criminal Procedure, 1973, Sec.
222.

Criminal Trial :

E Offence ofsexual assault on minor children-Role ofsocial organisations
and press, electronic media Etc.-Held, procedure established by law lo be
followed, otherwise it will lead to miscarriage of justice.

The respondent-accused was prosecuted for offence under sec.376
Indian Penal Code 1860 and sec. 57 of the Bombay Children Act, 1948 for
F having committed rape on a minor girl of 8 years of age.

The Prosecution case was that when the prosecutrix, a student of class
IV was coming home from a private tuition, the accused caught hold of her on
a secluded spot and pushed her inside the Maruti Car. Thereafter the accused
pulled down her nicker and laid her on the seat of the car. The accused then
G opened the zip of his pant and started pressing his penis on her private part.
Thereafter the accused urinated and the girl felt wetness on her private part.
After the girl was released she came home weeping and narrated the incident
to her parents. The parents of the girl examined her private part and the
garments and noticed the sticky substance on the midi frock as well as on
H the nicker.
68
STATE OF MAHARASHTRA v. R.J. GANDHI 69
There was redness on her private part. The girl w.as given bath and was A
sent to school as usual. After returning from school the girl complained of
pain in her private part and she was taken to a family Doctor. The Doctor
noticed inflammation of Lubium minus and without fully examining the
prosecutrix advised the father to take her to a Civil Surgeon as it was a Medico
legal case. The Medical Officer at the Civil Hospital examined the girl and B
certified that rape was committed on her. The incidence appeared in the
newspaper and there was immediate outcry in the public. The Civil Surgeon
under intense public pressure formed a panel of three private Doctors to again
examine the prosecutrix.

The Trial Court after examining the evidence held that the accused was C
guilty of the offence of rape and convicted the accused a!1d sentenced him to
undergo 7 yrs. rigorous imprisonment and to pay a fine of Rs. 5,000. On
appeal, the High Court upset the conviction under sec. 376 IPC and instead
convicted the accused for an offence under sec. 354 IPC and sec. 57 of the
Bombay Children Act, 1948. Hence the present appeal.
D
Allowing the appeal, this Court

HELD : 1. The accused has committed the offence under sec. 376/511
Indian Penal Code, 1860. [87-H]

The circumstances show that the accused intended to commit rape on E
the girl. In the commission of that crime, he laid the girl on the seat in the
Maruti Car and then laid himself over her. He pulled down her nicker and
also opened the zip of his pant and took out his male organ. He pressed his
male organ on the private part of the girl. But since he discharged, he could
not penetrate and was unable to complete the offence ofrape. However, it is
clear that he did attempt to commit rape. [81-B] F
2. The High Court is right in its approach that from the medical
evidence and the statement of the prosecutrix and attendant circumstances, it
cannot be said that there was penetration and there was, therefore, no sexual
intercourse though the ingredients of attempt to commit offence of rape are
there. Therefore, the High Court after having come to the conclusion that G
the accused was guilty of an offence under section 376/511 IPC could not
have convicted the accused for an offence under section 354 IPC.(80-G; 87-E]

3. Section 511 IPC provides punishment for attempting to commit
offences punishable with imprisonment for life or other imprisonment. In this
case since the girl was under 12 yrs. of age and the Sessions Judge having H
70 SUPREME COURT REPORTS [1997] SUPP. 4 S.C.R.

A found that offence of rape had been committed could not have awarded sentence
of 7 years when the law prescribes minimum sentence of rigorous imprison-
ment for a term not less than 10 years unless exceptional circumstances
exbted. Though there was no charge under sec. 376 read with sec. 511 IPC
under section 222 of the Code of Criminal Procedure when a person is
B charged for an offence he may be convicted of an attempt to commit such
offence although the attempt is not separately charged. [87-F-G]

Bharwada Bhoginbhai Hirjibhai v. State of Gujarat, (1983) Cri L.J.
1096; State ofHimachal Pradesh v. Raghubir Singh, [1993] 2 SCC 622; State
of Punjab v. Gurmit Singh and Ors., [1996] 2 SCC 384; State of Mahrashtra
C v. Prakash and Anr., Am (1992) SC 1275; State of UP. v. Babu/ Nath, [1994]
.
6 SCC 29 and Madan Gopal Kakkad v. Naval Dubey and Anr., [1992] 3 SCC
204, referred to.
4. A heinous crime has been committed and the accused must suffer
for his consequences. A rapist not only violates the victim's personal integrity
but leaves indelible marks on the very soul of the helpless female. The girl of
D 8 years must have undergone a traumatic experience. Keeping the objects of
the amendment to IPC in view and the law as it exists today, the decisions of
this Court on the question of sentence, the message is loud and clear that no
person who commits or attempts to commit rape shall escape punishment.
[88-C-DI
E 5. The High Court has rightly held that a great harm had been caused
to the girl by unnecessary publicity and taking out morcha by the public. Even
the case had to be transferred from Kohlapur to Satara under the orders of
this Court. There is procedure established by law governing the conduct of
trial of a person accused of an offence. A trial by press, electronic media or
F public agitation is very antithesis of rule of law. It can well lead to miscarriage
of justice. [88-E]
'
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 838
of 1997.
From the Judgment and Order dated 4.10.94 of the Bombay High Court
G in Crl. A. No. 693of1989.
WITH
Criminal Appeal No. 840/97.
Ms. Indira Jaisingh and Sanjay Parikh for the Appellants.
H M.S. Nargolkar and S.M. Jadhav for the State of Maharashtra.
STATE OF MAHARASHTRA v. R.J. GANDHI [D.P. WADHWA, J.] 71
U.R. Lalit, A.P. Mayee and Prashant Kumar for the Respondents. A
The Judgment of the Court was delivered by :

D.P. WADHWA, J. Leave granted.

Rajendra Jawanmal Gandhi (the accused) was convicted by the Sessions B
Judge, Satara for offences under Section 376 Indian Penal Code (IPC) and
Section 57 of the Bombay Children Act, 1948 for having committed rape on
a girl of eight years of age and sentenced to undergo rigorous imprisonment
for 7 years and to pay fine of Rs. 5,000 and in default of payment of fine to
undergo rigorous imprisonment for six months and for offence under Section
57 of the Bombay Children Act, he was sentenced to undergo rigorous C
imprisonment for one year and fine of Rs. 500 and in default thereof rigorous
imprisonment for one month. The substantive sentences were ordered to run
concurrently. Maruti Car in which the offence of rape was committed was
ordered to be forfeited and confiscated to the State. The accused appealed
to the Bombay High Court against his conviction and sentence. A Division D
Bench of the High Court by judgment dated October 4, 1994 upheld the
conviction of the accused under Section 57 of the Bombay Children Act and
upset the conviction under Section 376 !PC and instead convicted him for an
offence under section 3 54 IPC and sentenced him to suffer rigorous
imprisonment which he had already undergone (which was 33 days in all) and
to pay fine of Rs. 40,000. In default of payment of fine, the accused was E
sentenced to undergo rigorous imprisonment for three months. It was ordered
that out of the fine so realised, a sum of Rs. 25,000 shall be paid to the
complainant who was father of the girl. For an offence under Section 57 of
the Bombay Children Act, sentence was reduced to imprisonment already
undergone and the accused was not required to undergo any separate F
imprisonment for this offence. The Maruti Car was ordered to be returned to
the accused and the order of forfeiture and confiscation was set aside.

The matter did not end at that. Nagrik Kirti Samiti, Kolhapur which had
been formed was agitated about the acquittal of the accused for an offence
under Section 376 IPC. The Convener of the Samiti, Mr. P.D. Hankare represented G
to the State Government to file an appeal to this Court against the acquittal
of the accused under Section 376 IPC. In the meantime, the accused had
deposited the fine of Rs. 40,000 as ordered by the High Court and out of this
amount a sum of Rs. 25,000 had been withdrawn by the father of the girl.
Perhaps this was the consideration for the State Government not to file any
appeal in the Supreme Court. Since there was no response from the State H
72 SUPREME COURT REPORTS [1997] SUPP. 4 S.C.R.

A Government, Mr. P.O. Hankare, Convener of the Nagarik Kirti Samiti, Kolhapur
approached this Court. He was granted permission to file special leave petition
against the conviction and sentence on the accused by the High Court and
as afore mentioned, after notice of this appeal was served upon the State of
Maharashtra and the accused, both filed separate appeals in this Court. While
B the State of Maharashtra filed appeal against the conviction and sentence of
the accused by the High Court praying for his conviction under Section 376
!PC and for enhancement of his sentence of minimum of 10 years, the accused
filed appeal against his very conviction and sentence under Section 354 IPC
and 57 of the Bombay Children Act.

C Since the State itself has filed an appeal praying for conviction of the
accused under Section 376 IPC and for his punishment under Section 376 (f)
as the girl child was less than 12 years of age, leave granted to P.O. Hankare,
Convener, Nagrik Kirti Samiti, Kolhalpur loses its significance and we direct
that the leave be revoked.

D It may be noticed at the outset that the offence was committed at
Kolhapur and the accused was to be tried there in the court of Session. But
because of public outcry, the plea of the accused that he may not get fair trial
at Kolhapur was accepted and the case was transferred to the file of Sessions
Judge, Satara.
E
Bdore we consider the rival contentions, we may set out the relevant
provisions of law under which the accused was tried :

Section 375 and Section 376 in relevant part is as under :

F "375. Rape. A man is said to commit "rape" who, except in the
case hereinafter excepted, has sexual intercourse with a woman under
circumstances falling under any of the six foliowing descriptions :

First-Against her will.

Secondly.-Without her consent.
G
Thirdly.-With her consent, when her consent has been obtained by
putting her or any person in whom she is interested in fear of death
or of hurt.

Fourthly.~With her consent, when the man knows that he is not her
H husband, and that her consent is given because she believes that he
STATE OF MAHARASHTRA v. R.J. GANDHI [D.P. WADHWA, J.) 73
is another man to whom she is or believes herself to be lawfully A
married.

Fifthly.-With her consent, when, at the time of giving such consent,
by reason of unsoundness of mind of intoxication or the adm inistr-
ation by him personally or through another of any stupefying or
unwholesome substance, she is unable to understand the nature and B
consequences of that to which she gives consent.

Sixthly.-With or without her consent, when she is under sixteen
years of age.

Explanation.-Penetration is sufficient to constitute the sexual C
intercourse necessary to the offence of rape.
Exception.-Sexual intercourse by a man with his own wife, the wife
not being under fifteen years of age, is not rape.
376. Punishment for rape.-(!) whoever, except in the cases provided D
for by sub-section (2), commits rape shall be punished with
imprisonment of either description for a term which shall not be less
than seven years but which may be for life or for a term which may
extend to ten years and shall also be liable to fine unless the woman
raped is his own wife and is not u_nder twelve years of age, in which
case, he shall be punished with imprisonment of either description for E
a term which may extend to two years or with fine or with both :
Provided that the court may, for adequate and special reasons to be
mentioned in the judgment, impose a sentence or imprisonment for a
term of less than seven years.
F
(2) whoever,-

(a)·················································································
(b) ................................................................................ .

(c) ················································································· G
(d) ................................................................................ .

(e) ................................................................................ .

(f) commits rape on a woman when she is under twelve years of age;
or H
74 SUPREME COURT REPORTS [1997] SUPP. 4 S.C.R.

A (g) ·················································································
shall be punished with rigorous impri~onment for a term which shall
not be less than ten years but which may be for life and shall also
be liable to fine :

B Provided that the court may, for adequate and special reasons to be
mentioned in the judgment, impose a sentence of imprisonment of
either description for a term of less than ten years."

Section 57 of the Bombay Children Act, 1948 is as under :

"57. Whoever seduces or indulges in immoral behaviour with a girl
c under the age of eighteen years shall, on conviction be punished with
imprisonment of either description for a term which may extend to two
years or with fine which may extend to one thousand rupees or with
both."

D "Immoral behaviour" is defined under Section 4G) of this Act and it
includes any act or conduct which is indecent or obscene.

The accused was charged for having committed rape on a girl of 8 years
of age in a Maruti Car of chocolate colour on a road leading to Ragala Park
at Kolhapur at about 9.30 A.M. on September 24, 1986, thus committing
E offences punishable under Sections 376 IPC and 57 of the Bombay Children
Act.

In support of the charge the prosecution examined as many as 24
witnesses. The material witnesses would, however, be (!) the complainant
Shrikant Deshpande, father of the girl, (2) prosecutrix, (3) Police Inspector
F Labde who initially investigated the case, (4) Dr. Mrs. Sahastrabuddha (family
doctor of the complainant), (5) Dr. Gunda (Medical Officer, Civil Hospital,
Kolhapur), (6) Dr. Hoshing (Civil Surgeon, Kolhapur), (7) Vishakha Kulkarni
(who gave the registration number of the Maruti car of chocolate colour), (8)
Parashuram Jadhav (earlier registered owner of the car but had sold the same
G to the company of which accused was a Director), (9) Meena Bomvankar
(Additional S.P., Kolhapur) and (10) Police Inspector Katamble (investigating
Officer).

The prosecutrix, student of 4th class, had gone for tuition at 8.15 A.M.
on September 24, 1986 to a private teacher in the colony where she was living
H with her parents. After her private tuition which was from 8.15 a.m. to 9.15
STATE OF MAHARASHTRA v. R.J. GANDHI [D.P. WADHWA, J.] 75
a.m. she was coming back to her home and then was to go to school with A
other children in a cycle rickshaw hired for the purpose. When the prosecutrix
was going on the colony road at the intersection of this road and a by-lane,
which was a st:cluded spot, the accused caught-hold of her on the pretext that
her assistance was required for pulling either the pipe or the wires in the
Maruti car which was standing there. The girl was pushed inside the car. At
that time she was wearing a midi-frock and a nicker. The accused pulled down B
her nicker and laid her on the seat in the car. She did try to resist by saying
that she should be allowed to go and that she would be late in reaching home.
The accused then opened the zip of his pant and started pressing his penis
on her private part. When the girl cried that she wouid be late in reaching
home, the accused said 'wait', 'one second'. According to her, thereafter the C
accused urinated. She felt wetness on her private part. After the girl was
released she came home weeping. She embraced her father and narrated the
whole incident to him. The parents of the girl examined her private part and
the garments and noticed the sticky substance (semen) on some part of the
midi frock as well as on the nicker. There was redness on her private part. The
girl described the person who committed such bashful act on her. Shrikant D
Deshpande, the father of the girl, took her on his scooter and came to the
spot where the incident took place but there was no body. They returned
home. The mother of the girl gave her bath and she went to her school as
usual. Deshpande, however, did not stop at that and he made more enquiries.
He went to the spot again and there then he was told by Vishakha Kulkarni, E
a college student, who was living in the vicinity that a Maruti Car of chocolate
colour was seen there which bore registration No. MGR-942. Deshpande went
to RTO and came to know that the car was registered in name of Parashuram
Jadhav. Thereafter he met Meena Bornvankar, Additional S.P. who at the
relevant time was holding the charge or' S.P. Kolhapur. She sent him to the
police station to lodge a formal complaint. Parashuram Jadhav was traced. F
From his interrogation, it transpired that the Maruti car had been sold by him
and further investigation revealed that at the relevant time it was in the
possession of the accused.

At about 7.30 P.M. on the same day Deshpande took her daughter to G
a family doctor Dr. Mrs. Sahastrabuddha for examination as after returning
from the school the prosecutrix was complaining of pain in her private part.
Dr. Mrs. Sahastrabuddha had been informed in the morning of the incident
of rape. She noticed inflammation oflabium minus (labia-minora). It appears,
as held by the Sessions Judge, that this doctor did not fully examine the
prosecutrix for when she was apprised that Deshpande had lodged a report H
..

76 SUPREME COURT REPORTS (1997) SUPP. 4 S.C.R.

A with the police she advised him to get the girl examined by the Civil Surgeon
as it was a medico·legal case. Dr. Gunda was the Medical Officer at Civil
Hospital, Kolhapur and he examined the prosecutrix at 9 P.M. on September
24, 1986 itself. This he did on the basis of Police 'yadi'. On examination he
found:

B "(i) Labia·minora was inflammed and reddened.

(ii) External urethral meatus was reddened and swollen.

(iii) Hymen was intact.

(iv) P.V. examination was not possible. He therefore took the swab
c from introitus (opening of the vagina) and not from inside the vagina."

He, however, did not issue the medico· legal certificate on the same day.
On October 2, 1986, he issued the certificate and under the head "Chief
complaints" he had written: "Complains of burning micturition since afternoon
D today". Then on the following day he certified that rape was committed with
the following report :

"Conclusion-Committed rape.

This conclusion I have drawn after clinical examination of the girl."

E Report about the incident appeared in the newspaper of the town on
the following day, i.e., September 25, 1986 and there was an immediate outcry
in the public and 'morchas' taken out.

Dr. Hoshing was the Civil Surgeon, Kolhapur, who, it would appear
under intense public pressure, formed a panel of three private doctors to
F again examine the prosecutrix. The panel exan1ined her on September 29, 1986.
This panel consisted of Dr. Naganonkar, M.D. in Gynaecologist, Dr. Kudalkar ·
and Mr. Maladkar, both senior doctors and the result of their examination is
as under :
...
"(i) Labia·minora inflammed.
G
(ii') External urethral meatus inflammed.

(iii) Fourchette showed abrasions with signs of inflammation.

(iv) Infected linear vertichi tear on right para·urethral region, and

H (v) Tear of hymen at 3' O'clock·position."
STATE OF MAHARASHTRA v. R.J. GANDHI (D.P. WADHWA, J.] 77

The midi-frock and the nicker of the prosecutrix were taken into A
possession in the course of investigation and so also the underwear, T-shirt
and pant which the accused was wearing at the time he was taken into
custody. The semen stain of Blood Group B were found on the nicker of the
prosecutrix. The semen stains of blood group B were also found at the spot
where the penis of the accused was touching his underwear. The blood group B
of the accused is of Group B.

It may be noticed that the Trial Court came heavily on the conduct of
Dr. Gunda, the Medical Officer in his not submitting the medical report at the
earliest and also to an extent of Dr. Houshing, the Civil Surgeon. It justified
the medical examination of the prosecutrix on 29.9.1986 by panel of private C
doctors.

The Trial Court also noticed the following observations in the
commentary on Medical Jurisprudence :

"More redness of the labia minors is not indicative of recent sexual D
activity and it may no more than an indication of a lack of personal
hygine, especially in young girls."

After examining the evidence and considering the arguments advanced,
it came to the conclusion· that it was the accused who indulged in sexual
intercourse with the prosecutrix and that there was penetration. The Court, E
therefore, held that the accused was guilty of an offence of having committed
rape on the prosecutrix. The Trial Court also found that it was proved that
the accused indulged in immoral behaviour with the prosecutrix. It, therefore,
convicied the accused and sentenced him as aforesaid.

The accused appealed to the High Court. It did not agree with the trial F
Court that considering the statement of the prosecutrix, examination of the
cloths she was wearing and the medical evidence, any offence ofrape within
l the meaning of Section 375 !PC was committed. The High Court noticed the
medical examination of the prosecutrix in the following words :
G
"The girl was taken to the family doctor Shashika la Sahastrabudhe
(P.W.7) by her father in the evening at 7.30 p.m. who clinically examined
her and found her private part has become reddish. In the night of
24th September, I 986 at about 9 p.m. , 'X; was examined by Dr. Gunda
(P.W. 14)-Medical Officer, Civil Hospital. He has also deposed that
the case papers are at Ex. 56. He says that on internal examination of . H
78 SUPREME COURT REPORTS [1997] SUPP. 4 S.C.R.

A 'X' both labia-minora were found inflammed (reddened) and external
urethal meatus was reddened and swollen. Hymen was intact."

The High Court then referred to the cloths which the prosecutrix was
wearing at the time of the crime and it was found that there were two semen
stains on her under-garments. The High Court also examined the cloths of the
B accused and it found that the semen stains found on the under-garment of
the prosecutrix and underwear of the accused were of the same blood group
'B' which was the blood group of the accused. One semen stain on the
underwear of the girl was about two centimeter diameter near the waste band
of her under-garment. From the examination of the evidence, the High Court
C also came to the conclusion that it was the accused who indulged in the
perpetration of the crime which was committed on September 24, 1986 at about
9.30 a.m. as was the charge laid by the prosecution. On the question, if it was
a rape or an offence under Section 354 IPC outraging the modesty of a
woman, the High Court referred to the statement of the prosecutrix and that
of her father, Deshpande who lodged the FIR. As to what the FIR recorded,
D we may refer to the following observations of the High Court :

"In the FIR, Ex. 26 filed by the father, it is mentioned that the girl
informed that the accused slept her on seat and then he slept on her
body and began to struggle with her. The accused then pulled away
her under-pant and pulled the chain of his pant and took out his
E
male organ and put it on her private part and pressed it. Her private
part was then aching. After some time he passed his urine on her
private part and he rubbed his organ to her frock. Then she took her
under-pant upwards and came home running. However, the C.A. report,
Ex. 82, shows that there was no semen found on the frock. The
F evidence of the girl, her father and the FIR show that the legs of the
accused were on the road. The nicker of the girl was only pulled and
not removed. This is also clear from the C.A. report, Ex. 82, that her
nicker was having two stains of semen. If the nicker would have been
removed then there would have been no stains as it is not the case
of the prosecution that it was used by the accused for wiping his
G
organ. Her legs were neither separated nor lifted. The evidence shows
that he took out his organ and pressed it against her body and within
seconds he discharged."

The High Court then noticed that the girl was given a bath and she
H went to school and that she only complained of some pain or burning
'
STATE OF MAHARASHTRA v. R.J. GANDHI (D.P. WADHWA, J.] 79
sensation and that if there was anything serious noticed by the parents on A
examination, they would not have allowed her to go to school and rather
taken her immediately to doctor. When the parents examined her private part,
they found only reddishness. Her father took her to the family doctor Mrs.
Sahastrabudde at about 7.30 p.m. on the same day and the doctor only
noticed some portion of her private part had become red. No blood was
noticed. Then the girl was examined by Dr. Gunda at about 9.00 p.m. on that B
very day. After examining the report of Dr.' Gunda, the High Court concluded
that that clearly ruled out the actual rape. The High Court disapproved the
constitution of the panel of doctors which it held was done under pressure
from the public and that Dr. Houshing, civil surgeon succumbed to that
pressure. The High Court was critical of the statement of Dr. Nagavkar who C
was member of the panel. High Court referred to the fact that at the time of
examination by the panel of three doctors neither Dr. Sahastrabuddha nor Dr._
Gunda was called. Dr. Nagavkar stated that some respectable citizens of
Kolhapur had approached him with a request to come for examination of the
girl. No reason was recorded as to why it was necessary to re-examine the
girl. High Court noticed that Dr. Nagavkar was evasive when he was asked D
whether he could say that the injuries noticed by the panel were present on
September 24, 1986. He however, admitted that if tear was beyond the superficial
layer, then it was bound to bleed. As there was no bleeding it was an abrasion
involving superficial layer. He admitted that such abrasion was possible due
to scratching. He also agreed that rupture of hymen was almost invariably E
accompanied by bleeding and that bleeding was brisk, immediate and visible.
Dr. Nagavkar also agreed with the proposition that cloths put on immediately
would have blood stains. High Court commented that Dr. Nagvakar was
"required to make various acrobatics just to support the opinion and that
while doing so he virtually admit.ted that there was no rape." The High Court
held that there was no rupture of hymen and the girl was virgin. The accused F
was also examined and there was no injury to his private part. It noticed the
statement of Dr. Nagavkar where he agreed with the opinion in Medical
Jurisprudence quoted above and further that "exercisation of this type is
common in young children as a result of poor local hygiene, scratching due
to worm infection". For all these reasons the High Court rejected the conclusion G
arrived at by the panel of doctors. As to the conduct of Dr. Gunda which we
have noticed above, the High Court was of the opinion that it seemed that
he was required to bow before public·pressure and the internal official pressure.
It, therefore, rejected opinion given by him on 3.10.1986 which certified that
the rape was committeed. The High Court said that a great dis-service had
been done to the little girl because of public agitation and which tended to H
80 SUPREME COURT REPORTS [1997] SUPP. 4 S.C.R.

A make the future of the girl bleak. The Court, therefore, held that there was no
rape as contemplated by Section 375 committed or proved. Then the High
Court concluded .that in its opinion, the evidence on record would, at the
most, show that the accused attempted to commit rape. But then added that
''however, as the evidence shows that her nicker was not completely removed,
her legs were not separated or lifted and the act was sought to be done
B standing on the road, we hold that the act of the accused would fall within
Section 354 of !PC and that he used criminal force as covered by Section 350
of !PC knowing full well that it would cause injury to the girl. He knew that
it would thereby outrage the modesty of the girl. He pulled down her nicker
and opened his pant and laid himself on her and discharged. The girl suffered
C pain. Therefore, we find that the accused guilty under Section 354 of !PC."
On the question if an offence under Section 57 of the Bombay Children Act
was committed, the High Court held that similarly as in the case of the offence
under Section 354 !PC, the offence of the accused would also fall under
Section 57 of that Act. The Court, therefore, held that the accused acted
indecently and was thus guilty under Section 57 of the Bombay Children Act,
D 1948.

Both the sessions court and the High Court accepted the prosecution
evidence as to how and who committed the crime. They, however differ on
the approach as to what offence was committed. While the trial court holds
E the accused guilty of an offence under Section 376 !PC, the High Court holds
him guilty under Section 354 !PC. Both the courts did not attach any importance
to the discrepancies in the statements of the witnesses which were insignificant
and did not damage or impair the case of the prosecution. The courts have
considered all the relevant circumstances to come to the conclusion that crime
was committed and it was the accused who did so. The High Court, however,
F does say that there was attempt to commit rape which would be an offence
falling under Section 376 read with Section 511 !PC. But by some curious
reasoning, the High Court proceeds to hold the accused guilty for an offence
under Section 354 !PC. We think that the High Court is right in its approach
that from the medical evidence and the statement of the prosecutrix and
G attendant circumstances, it cannot be said that there was penetration and
there was, therefore, no sexual intercourse though the ingredients of attempt
to· commit offence of rape are there. The High Court had set aside the order
of the sessions court confiscating the Maruti Car in which the offence of
attempt to rape was committed as the car was owned by a company of which
the accused was a Director. Since there is no appeal against this part of the
H order, we need not go into the scope and intent of Section 452 Cr. P.C. if the
STATE OF MAHARASHTRA v. R.J. GANDHI [D.P. WADHWA, J.) 81

court could order confiscation of the car, it having been "used for the A
commission" of the offence ofrape particularly ifthe car had been owned by
the accused.

The circumstances show that the accused intended to commit rape on
the girl. In the commission of that crime, he laid the girl on the seat in the B
Maruti Car and then laid himself over her. He pulled down her nicker and also
opened the zip of his pant and took out his male organ. He pressed his male
organ on the private part of the girl. But since he discharged, he could not
penetrate and was unable to complete the offence of rape. However, it is clear
that he did attempt to comnit rape.
c
In Bharwada Bhoginbhai Hirjibhai v. State of Gujarat, [1983] Cri. L.J.
1096 the accused had been convicted for the offence under Section 376 read
with Section 511 IPC and was sentenced to two and a half years rigorous
imprisonment. He was accused ofhaving committed the offence against girls
of 10 to 12 years of age. The Supreme Court said that the acwsed had
behaved in shockingly and indecent manner. The magnitude of his offence D
cannot be over-emphasised. The Supreme Court further noticed that the
incident occurred some seven years back and the appellant had lost its job
in view of the conviction recorded by the High Court. The accused was also
having a daughter of the same age at the time he committed the crime. This
Court was of the view that the accused must have suffered great humiliation E
in the society: The prospects of getting a suitable match of his own daughter
had perhaps been marred in view of the stigma in the wake of the finding of
guilt recorded against him in the context of such on offence. Taking into
account the cumulative effect of these circumstances, and an overall view of
the matter, the Court said that the ends of justice would be satisfied if the
substantive sentence imposed by the High Court for the offence under Section F
376 read with Section 511 IPC was reduced from one of two and a half years
to one of 1S months' rigorous imprisonment.

In 1983, law was amended prescribing more severe punishments for the
perpetrators of the crimes of rape and other sexual offences. G

The Law Commission of India in his 42nd report on Indian Penal Code
submitted in June 1971 suggested amendments to Sections 375 and 376 !PC,
expanding the definition of rape and providing for more severe punishment.
The Commission also suggested incorporation of other offences relating to
sexual offences in the IPC. In its 69th report on the Indian Evidence Act, 1872, H
82 SUPREME COURT REPORTS [1997] SUPP. 4 S.C.R.

A the Law Commission had also recommended reform in the law. Nothing,
however, was done and law not amended. Then the subsequent Law
Commission in its 84th report suggested changes in the law on rape and allied
offences and amendments to the laws of procedure and evidence. The
Commission submitted its report in April 1980 to the Central Government.
B After that the IPC, Cr.P.C. and Evidence Act were amended by the Criminal
Laws (Amendment) Act, 1983. In the statements of objects and reasons while
presenting the Bill, it was mentioned that recommendations of the Law
Commission had been examined in consultation with the State Governments
and suggestions on the subject received. It was mentioned that the changes
proposed in the Bill had been formulated principally on the basis of the
C following considerations:

"(I) the law should be made more stringent without jeopardising
considerations of fair trial;

(2) the definition of rape should be amended to remove certain
loopholes and inadequacies and to ensure that consent should
D be vitiated unless it is real and given out of free choice;
(3) minimum punishments for rape should be prescribed;

(4) the prosecutrix should be protected from the glare of embarrassing
publicity during the investigatory as well as trial stage and any
E information leading to identification of the victim should not be
disclosed;
(5) in the case of rape by a police officer or by a group of persons
or by a person having a custodial control by virtue of his special
position over the victim, once it is proved that sexual intercourse
p has taken place, the onus should be on the accused to prove
that the sexual intercourse was with the consent of the woman."

It will be useful to quote the following passage from the 84th Report
of the Law Commission :

"It is often stated that a woman who is raped undergoes two "rises-
G the rape and the subsequent trial. While the first seriously wounds
her dignity, curbs her individuality, destroys her sense of security and
may often ruin her physically, the second is no less potent of mischief,
inasmuch as it not only forces her to re-live through the traumatic
experience, but also does so in the glare of publicity in a totally alien
H atmosphere, with the whole apparatus and paraphernalia of the criminal
• STATE OF MAHARASHTRA v. R.J. GANDHI [D.P. WADHWA, J.] 83
justice system focused upon her. A
In particular, it is now well established that sexual activities with
young girls of immature age have a traumatic effect which often
persists through life, leading subsequently to disorders, unless there
are counter-balancing factors in family life and in social attitudes
which could act as .a cushion against such traumatic effects. B
Rape is' the 'ultimate violation of the self'. It is a humiliating event
in a woman's life which leads to fear for existence and a sense of
powerlessness. The victim needs sampathy and safety and a sense of
re-assurance. In the absence of public sensitivity to these needs, the C
experience of figuring in a report of the offence may itself become
another assault.

Forcible rape is unique among crimes, in the manner in which its
victims are dealt with by the criminal justice system. Raped women
have to undergo certain tribulations. These begin with their treatment D
by the police and continue through a male-dominated criminal justice
system. Acquittal of many de facto guilty rapists adds to the sense
of injustice.

In effect, the focus of the ,law upon corroboration, consent and
character of the prosecutrix mid a standard of proof of guilt going E
beyond reasonable doubt have resulted in 11n increasing alienation of
the general public from the legal system, who find the law and legal
language difficult to understand and who thiqk that the courts are not
run so well as one would expect."

We may now refer to a few cases on Section 376 !PC decided by this F
Court after the Amending Act of 1983.

In State of Himachal Pradesh v. Raghubir Singh, [1993] 2 SCC 622
(judgment delivered on February 18, 1993) the Supreme Court set aside the
acquittal of the respondent by the High Court holding him guilty of an G
offence under Section 376 !PC for having committed rape of the prosecutrix.
Then the Court considered the question of awarding of proper sentence. It
noted that the occurrence took place on August 2, 1982, more than a decade
ago and that the Sessions Judge after recording the conviction under Section
376 IPC had sentenced the respondent to suffer RI for five years. The State
had not moved the High Court for any enhancement of the sentence. The H
84 SUPREME COURT REPORTS [1997] SUPP. 4 S.C.R.

A Court, therefore, felt that the ends of justice would be met if the sentence to
be imposed on the respondent was confined to five years RI as was awarded
by the Sessions Judge. The Court also then observed as under:

"We may emphasise that though for such an offence a more severe
sentence would have been desirable but we have restricted ourselves
B to the maintenance of the sentence as imposed by the learned Sessions
Judge for the reason that the State did not seek any enhancement of
the sentence by filing an appropriate petition in the High Court or in
this Court and for over a period of seven years, while the case has
remained pending here, no notice had been issued to the acquitted

c respondent to show cause as to why in the event of his acquittal
being set aside, a more deterrent sentence, than the one imposed by
the Sessions Judge, be not imposed upon him and without putting
him on such a notice; the Court cannot enhance the sentence. If the
notice were to issue now, it would further delay the disposal of the
case and we do not consider that to be a proper course to be adopted.
D The more stringent minimum sentence prescribed for an offence under
Section 376 IPC was also incorporated in the Code by an amendment
only with effect from December 1983 after the offence in the present
case had been committed."

In State ofPunjab v. Gurmit Sin[jliand Others, [1996] 2 SCC 384 which
E was an appeal under Section 14 of the Terrorist Affected Areas (Special
Courts) Act, 1984 against the judgment of the Additional Judge, Special
Court, Ludhiana dated June I, 1985 acquitting the respondents of the charges
of abduction and rape, the Court set aside the acquittal and convicted the
respondents for offences under Sections 363/366/368 and 376 IPC. On the
F question of sentence the Court observed as under :

"So far as the sentence is concerned, the court has to strike a just
balance. In this case the occurrence took place on 30-3-1984 (more
than 11 years ago). The respondents were aged between 21-24 years
of age at the time when the offence was committed. We are informed
that the respondents have not been involved in any other offence
G
after they were acquitted by the trial court on 1-6-1985, more than a
decade ago. All the respondents as well as the prosecutrix must have
by now got married and settled down in life. These are some of the
factors which we need to take into consideration while imposing an
appropriate sentence on the respondents. We accordingly sentence
H the respondents for the offence under Section 376 IPC to undergo five
STATE OF MAHARASHTRA v. R.J. GANDHI [D.P. WADHWA, J.] 85
years' Rl each and to pay a fine of Rs.5000 each and in default of A
payment of fine to 1 year's RI each. For the offence under Section 363
!PC we sentence them to undergo three years' RI each but impose no
separate sentence for the offence under Sections 366/368 IPC. The
substantive sentences of imprisonment shall, however, run
concurrently."
B
The following observations in this judgment would also be relevant :

"Of late, crime against women in general and rape in particular is on
the increase. It is an irony that while we are celebrating women's
rights in all spheres, we show little or no concern for her honour. It C
is a sad reflection on the attitude of indifference of the society towards
the violation of human dignity of the victims of sex crimes. We must
remember that a rapist not only violates the victim's privacy and
personal integrity, but inevitably causes serious psychological as well
as physical harm in the process. Rape is not merely a physical assault
·it is often destructive of the whole personality of the victim. A murderer D
destroys the physical body of his victim, a rapist degrades the very
soul of the helpless female. The courts, therefore shoulder a great
responsibility while trying an accused on charges of rape. They must
deal with such cases with utmost sensitivity. The courts should
examine the broader probabilities of a case and not get swayed by E
minor contradictions or insignificant discrepancies in the statement of
the prosecutrix, which are not of a fatal nature, to throw out an
otherwise reliable prosecution case. If evidence of the prosecutrix
inspires confider.ce, it must be relied upqn without seeking
corroboration of. her statement in material particulars. If for some
reason the Court finds it difficult to place implicit reliance on her F
testimony, it may look for evidence which may lend assurance to her
testimony, short of corroboration required in the case of an accomplice.
The testimony of the prosecutrix must be appreciated in the background
of the entire case and the trial court must be alive to its responsibility
and· be sensitive while dealing with cases involving sexual G
molestations.''

In State of Maharashtra v. Prakash and another, AIR (1992) SC 1275
the Court set aside the acquittal by the High Court of the respondents for
offence under Section 376 read with Section 34, !PC as well as under Section
342 read with Section 34, IPC. The Extra Additional Sessions Judge, Amravati H
86. SUPREME COURT REPORTS [1997] SUPP. 4 S.C.R.

A had, however, convicted the respondents and sentenced them to rigorous
imprisonment for three years on the first count and for two months on the
second count. After having set aside the acquittal of the respondents the
Court on the question of sentence said as under :

"We are aware that the offence had taken place in the year 1978 and
B that they were acquitted by the High Court as far back as August,
1981 and we are reversing the acquittal after a lapse of more than I 0
years but hav\ng regard to the nature of the offence and the
circumstances in which it was perpetrated, we are of the opinion that
the respondents deserve no mercy. They should suffer for their deed."
c
In State of U.P. v. Babu/ Nath, [1994] 6 SCC 29 the Sessions Judge
convicted the respondent for offence under Section 376 !PC for having
committed rape on a minor girl aged about 5 years and sentenced him to suffer
imprisonment for five years. On appeal by the respondent, the High Court,
however, acquitted him of the charge of rape. This Court set aside the
D acquittal and held respondent guilty of an offence punishable under Section
376 !PC and restored the sentence imposed by the Sessions Judge. It may be
noted that the offence was committed in March 1977 and the appeal was
decided by this Court in August 1994.

E In Madan Gopal Kakkad v. Naval Dubey and another, [1992] 3 SCC
204 the trial Court acquitted the respondent for an offence under Section 376
IPC for having committed rape on a girl child of 8 years of age. Aggrieved
by the judgment of the trial court the State filed an appeal before the High
Court challenging the order of acquittal. Father of the child also filed a
criminal revision in the High Court questioning the legality of the order of
F acquittal. It appears one Jay Rao ofNew York (U.S.A.) wrote the report of this
incident in a German Magazine called "Der Spiegel" and after visiting Jabalpur
sent a petition of grievance addressed to the Chief Justice of India with a
copy to the Chief Justice of Madhya Pradesh. On the basis of this petition
another criminal revision was also registered. The High Court disposed of the
G appeal and two criminal revisions by a common judgment, whereby it allowed
the State appeal, held respondent guilty of an offence under Section 354 IPC
and sentenced him to pay a fine of Rs. 3,000 and in default. to suffer simple
imprisonment for six months. The High Court also directed that a sum of Rs.
2,000 out of the fine amount ifrealised be paid over as compensation to father
of the child who was petitioner in the criminal revision. No separate orders
H were passed in the two criminal revisions. The State did not prefer any further
STATE OF MAHARASHTRA v. R.J. GANDHI [D.P. WADHWA, J.) 87
appeal before this Court. However, the father of the victim girl, who was the A
complainant and also petitioner in the criminal revision before the High Court,
filed criminal appeal in this Court. He felt aggrieved by the judgment of the
High Court on the ground that the High Court had erred in finding the
respondent guilty of a minor offence under Section 354 IPC when all the
necessary ingredients to constitute an offence punishable under Section 376 B
IPC had been satisfactorily established and that the sentence of mere fine
under Section 354 IPC for such a serious offence was grossly inadequate and
was not commensurate with the gravity of the offence committed by the
respondent. This Court after examining the whole evidence and law on the
subject held the respondent guilty of an offence under Section 376 IPC and
set aside his conviction under Section 354 IPC. The Court then addressed C
itself to the quantum of punishment which would meet the ends of justice in
the facts and circumstances of the case. The offence in this case was committed
in September 1982 and the judgment was delivered in April 1992 by this Court.
The Court having regard to the seriousness and gravity of the repugnant
crime of rape perpetrated on a girl child of 8 years of age sentenced the
respondent to rigorous imprisonment for a period of seven years and to pay D
a fine of Rs. 25,000 and in default to suffer rigorous imprisonment for 1-1/2
years. It was further directed that the amount of fine of Rs. 25,000 if realised
shall be paid to the victim girl who was now a major.

In our opinion, therefore, the High Court after having come to the E
conclusion that the accused was guilty of an offence under Section 376/511
of the !PC could not have convicted the accused for an offence under Section
354 !PC. Section 5 ll lPC provides punishment for attempting to commit
offences punishable with imprisonment for life or other imprisonment. In this
case since the gir I was under 12 years of age and the Sessions Judge having
found that offence of rape had been committed could not have awarded F
sentence of 7 years when the law prescribes minimum sentence of rigorous
imprisonment for a term not less than l 0 years, unless exceptional
circumstances existed. However, we find that the State or the complainant did
not come up in appeal in the High Court for enhancement of the sentence.
Though there was no charge under Section 376 read Section 511 IPC, under G
Section 222 of the Code of Criminal Procedure when a person is charged for
an offence he may be convicted of an attempt to commit such offence
although the attempt is not separately charged.

Having come to the conclusion that the accused committed an offence
under Section 376/511 !PC, the question arises as to what sentence should H
88 SUPREME COURT REPORTS [1997] SUPP. 4 S.C.R.

A be imposed upon him. It was submitted before us that the time when the
offence was committed the accused had also a daughter of 8 years of age.
If that be so perversion of mind of the accused does not appear to have any
limit. It was submitted that a long time had elapsed since the offence was
committed and that in terms of the judgment of the High Court the accused
B deposited Rs. 40,000 out of which Rs. 25,000 had already been withdrawn by
the father of the prosecutrix. It was submitted that if the Court came to the
conclusion that the sentence had to be enhanced then amount of fine could
be raised. We, however, do not think so. A heinous crime has been committed
and the accused must suffer for his consequences. A rapist not only violates
the victim's personal integrity but leaves indelible marks on the very soul of
C the helpless female. The girl of 8 years must have undergone a traumatic
experience. The question of imposition of sentence after lapse of 11 years of
the offence troubled our mind a great deal. Keeping the objects of the
amendment to IPC in view and the law as it exists today, the decisions of this
Court referred to above on the question of sentence, the message is loud and
clear that no person who. commits or attempts to commit rape shall escape
D punishment.

We agree with the High Court that a great harm had been caused to the
girl by unnecessary publicity and taking out morcha by the public. Even the
case had to be transferred from Kohlapur to Satara under the orders of this
E Court. 'There is procedure established by law governing the conduct of trial
of a person accused of an offence. A trial by press, electronic media or public
agitation is very antithesis of rule of-law. It can well lead to miscarriage of
justice. A judge has to guard himself against any such pressure and he is to
be guided strictly by rules of law. If he finds the person guilty of an offence
he is then to address himself to the question of sentence to be awarded to
F him in accordance with the provisions of law. While imposing sentence of fine
and directing payment of whole or certain portion of it to the person aggrieved,
the court has also to go into the question of damage caused to the victim
and even to her family. As a matter of fact the crime is not only against the
victim it is against the whole society as well. Since late, there has been spurt
G in crime relating to sexual offences.

Considering the whole aspect of the matter, we are of the opinion that
sentence of five years rigorous imprisonment and fine of Rs. 40,000 will meet
the ends of justice. The fine has already been paid, out of that Rs. 25,000 has
been withdrawn by the father of the girl as per direction of the High Court
H which we uphold. We, therefore, allow the appeal of the State to convert the
STATE OF MAHARASHTRA v. R.J. GANDHI [D.P. WADHWA, J.] 89
conviction of the accused-respondent from under Section 354 !PC to that A
under Section 376/511 !PC and sentence him as aforesaid. Since fine has
already been paid, no sentence of imprisonment in lieu of payment thereof
need be imposed. The conviction and sentence of the accused under Section
57 of the Bombay Children Act as ordered by the High Court shall, however,
stand. The sentences shall run concurrently. In this view of the matter, appeal B
filed by the accused is dismissed. The accused will be taken into custody and
would undergo the remaining portion of his sentence.

S.V.K.l. Appeal allowed.