Kuldip Singh vs State of Punjab

Harbans Singh Rai, J.

Kuldip Singh son of Ajit Singh, resident of Bhagwan Dass Colony, Netaji Nagar, Ludhiana, aged about 19 years, a student of 10th Class, has been convicted for an offence under section 376, Indian Penal Code, by Additional Sessions Judge, Ludhiana, vide his order dated September, 22, 1986, for committing rape on Kumari Neetu, daughter of Raunak Raj aged about 9 years on March 9, 1986, at about 10.00 a.m. in his house and sentenced to imprisonment for life and a fine of Rs. 100/ and in default of payment of fine to undergo further R.I. for one month. Feeling aggrieved against the order of conviction, the appellant has come to this Court in appeal.

Prosecution story, as gathered from prosecution evidence, is that Neetu resided with her parents in a shopcumhouse in Bhagwan Dass Colony, Netaji Nagar, Ludhiana. Kuldip Singh appellant resided in a house in front of house of Neetu. Bittu is younger brother of Kuldip Singh. On March 9, 1986, at about 10.00 a.m. Bittu took Neetu to his house saying that they will play there. Kuldip Singh was present in the house. He sent Bittu to get some parts of his stove from bazar. That left Kuldip Singh alone in the house alongwith Neetu. The appellant took Neetu to a room of his house, laid her on the bed and loosened her pajami (trouser). The appellant loosened his pant and laid on her and tried to put (according to Neetu) his part from where he urinates into her part from where she urinates. She felt pain and started bleeding. The appellant also started bleeding. Somebody knocked the door of the house of the appellant from outside. He opened the door. Neetu left his house and want to her house. In her house, she informed her parent what had happened in the house of the appellant. Nothing was done till evening as parents of Neetu waited for Hans Raj PW. On arrival of Hans Raj, Raunak Raj PW father of Neetu, reported the matter to the police. On the basis of his statement Exhibit PJ a case was registered and ASI Nirmal Singh, Incharge Police Post, Salemtabri, took up the investigation, inspected the place of occurrence and prepared rough site plan. He got Neetu medically examined and arrested the appellant on March 10, 1986. The appellant was interrogated and on interrogation, he made a disclosure statement to the effect that he had kept concealed a shirt and pant stained with blood in the store of his house and could get the same recovered. His statement was reduced into writing and he got shirt Exhibit P3, and pant Exhibit P4 recovered in pursuance of his disclosure statement. These clothes were sealed into a parcel and taken into possession.

After completion or investigation, the appellant was challaned, tried and convicted as mentioned earlier.

Prosecution in this case mainly depends on the testimony of Neetu and medical evidence, apart from the report of the Chemical Examiner. Neetu PW 8 has stated in her statement that she was called to the house of the accused by Bittu, who is a younger brother of the appellant, and on her reaching the house, Bittu was sent to bazar by the appellant and after Bittu left appellant laid her on the bed and committed rape. There is not history of strained relations or enmity between the families. In the absence of any enmity or motive which could prompt someone on the side of prosecution to persuade Neetu to make a statement against the appellant, her testimony deserves acceptance. The learned defence counsel has also not seriously challenged the factum of incident, but has argued that even if the version given by Neetu is accepted, the offence committed will not be rape, but an attempt to commit rape.

We have gone through the evidence with the help of the learned counsel for the parties.

Anita alias Neetu prosecutrix was medicolegally examined by Dr. Santosh Kataria PW 1 on March 9, 1986 at 9.00 p.m. Dr. Kataria found that the girl was about 8 to 9 years old, general condition satisfactory and her external genitalia was normal. There was mild laceration over the left labia minora. Hymen was intact. Vagina was normal and admitted tip of little finger. There was no other injury over the genitalia or any other part of the body. She further stated that the injury was fresh which meant within six hours and it could not be of more than six hours duration. As the injury was small, she could not measure its dimensions. She also stated that from the injury mentioned above, the possibility of penetration was less likely. Even when confronted with the fact that semen was present on the swabs, she stuck to the version that the medicolegal report suggests that possibility of sexual intercourse having been committed with the prosecutrix was less. Dr. Ujagar Singh PW 13 examined appellant on March 10. 1986, at 3.30 p.m. and found the appellant to be well built, well nourished, having well developed penis and testis. Slight smagma was present under the prepuce. Franum was partially broken with swollen and red margins. Dr. Ujagar Singh found the appellant to be capable of performing sexual intercourse. He found the following injuries on the person of the appellant :

Abrasion 2" x 1" on the right side of cheek with brownish scab.

Abrasion 11/4" x 1/2" on the left anterior superior iliac spine with brownish scab.

Two abrasions 1" x 1/2" on the left anterior superior.

Dr. Ujagar Singh further stated that the injury to franum is not possible without rapture of the hymen of a 10 years old girl in the event of sexual intercourse.

Anita alias Neetu is 8/10 years of age. At such a tender age the hymen is distantly pleced and is above the vaginal canal. In girls under 14 years age vaginal orifice is usually so small that it would hardly allow the passage of little finger. Dr. Kataria stated in her statement that vagina of the prosecutrix admitted tip of the little finger. In case of sexual intercourse the hymen may not remain intact if the vaginal orifice is big enough to admit two fingers. In case of girls of less then 14 years the distensibility of the vaginal orifice has to be taken in view. If penetration takes place in the case of girls of such an age then there can be expected to be widespread damage of the fourchette, hymen, labla majora, labia minora, vulva and the vaginal canal. In this case, the doctor only noted a mild laceration over the left labia minora. In the case of penetration, these organs could not escape injuries. It appears that taking these criteria into consideration Dr. Santosh Kataria was rightly of the view that the possibility of the penetration is less.

Dr. Ujagar Singh examined appellant on March 10, 1986, and found franum partially broken with swollen and red margins. It has been argued by the learned counsel for the State that partial breaking of the franum with swollen and red margines suggests that there had been penetration. But Dr. Ujagar Singh in his crossexamination has ruled out this possibility in this case when he stated that the injury to the franum is not possible without rapture of the hymen of a 10 years old girl. Hymen of Anita alias Neetu was found to be intact. In view of the statement of the doctor, prosecution cannot get any benefit out of the injury to the franum as hymen of Neetu was intact. So this injury possibly was not the result of this incident. Swabs, Kamiz and Salwar of Neetu were sent for chemical examination. Semen was found on swabs, but no spermatozoa was found on kamiz and Salwar.

The circumstance that only a mild laceration was noticed over the left labia minora and there was no other injury to any other organ, when seen in the light of the opinion of the doctor that the possibility of penetration is less and the injury found on the person of the accused had also not been connected with the incident, it can be deduced that penetration had not taken place and an attempt was made by the appellant to ravish Kumari Neetu. In that case, the offence under section 376, Indian Penal Code, is not made out. The act of the accused amounted only to an attempt to commit rape. The appellant had taken off his pant and had made an attempt to thrust his male organ in the private part of the prosecutrix. In that process, mild laceration to left labia minora was caused to Neetu. This laceration clearly indicates making of an attempt to commit rape.

In view of the discussion above, the conviction of the appellant is upheld but it is altered from one under Section 376 to one under Section 376/511, Indian Penal Code.

The learned Counsel for the appellant has argued that the appellant is below 21 years of age and is in custody since March, 1986, and has prayed that he may be dealt with under Section 5 of the Punjab Borstal Act, 1926. Section 5 of this Act provides that when offender below the age of 21 years is convicted and it is found to be expedient then he may be ordered to be detained in a Borstal Institute instead of sending him to jail.

The learned counsel for the State has not been able to point out any circumstance which may disentitle the appellant from the benefit of the Borstal Act. As the appellant has already been in custody for the last one year and 10 months, the ends of justice would be squarely met if he is ordered to be detained in Borstal Institute for three years. It is, therefore, ordered that the conviction of the appellant is altered from section 376 to one under Section 376 read with section 511 Indian Penal Code and he is ordered to be detained in a Borstal Institute for three years.

Consequently, this appeal is disposed of in the terms indicated above.