Reghunadhan Nair vs State Of Kerala

R.Narayana Pisharadi, J

The accused is the appellant. The appeal is directed against the judgment of the trial court, convicting and sentencing him for the offences punishable under Section 376 of the Indian Penal Code and also under Section 3 read with 4 of the Protection of Children from Sexual Offences Act, 2012 (for short 'the Act').

The prosecution case, in short, is as follows: A new house was being constructed by PW1, the mother of the victim girl. PW1, with her family, was residing in the temporary shed made in the same compound. PW1 and her husband had engaged the accused for doing the electrical work in the new house which was under construction. On 07.01.2013, at about 10.00 hours, while the accused was doing electrical work in the new house, the victim girl, who was aged eight years at that time, went there. The accused then caught hold of her and placed her on the iron ladder in the hall. He kissed her on the cheek and the chest and fondled her vagina. He brought down the panties worn by the child and inserted his penis into her vagina and thus committed penetrative sexual assault on her.

PW1 was not present there at the time of the incident. When she returned home, the victim girl told her about the act committed by the accused. Some neighbours, who had reached there hearing the child screaming, also came to know about the incident.

PW1 reported the matter to the police on the next day. On the basis of the statement given by PW1 with regard to the incident, Crime No.25/2013 of Nedumangad police station was registered against the accused for the offences punishable under Section 376 and also under Section 3(a) read with 4 of the Act. The victim girl was taken to the hospital and she was examined by the doctor at 14.50 hours on 08.01.2013.

After completing the investigation of the case, charge-sheet was filed against the accused for the offences punishable under Sections 450 and 376 of the I.P.C and also under Section 3(a) read with 4 of the Act.

The trial court framed charge against the accused for the offences mentioned above. He pleaded not guilty and claimed to be tried.

The prosecution examined eleven witnesses as PW1 to PW11 and marked Exts.P1 to P16 documents and MO1 to MO6 material objects. On the side of the accused, DW1 and DW2 were examined and Exts.D1, D1(a) and D2 documents were marked.

The trial court found the accused not guilty of the offence punishable under Section 450 of the I.P.C and acquitted him of that offence. The trial court found the accused guilty of the offences punishable under Section 376 of the I.P.C and also under Section 3 read with 4 of the Act and convicted him there under. The trial court sentenced the accused to undergo rigorous imprisonment for a period of seven years and to pay a fine of Rs.25,000/- and in default of payment of fine, to undergo rigorous imprisonment for a period of one year for the offence under Section 3 read with 4 of the Act. No separate sentence was awarded for the offence punishable under Section 376 of the I.P.C.

Aggrieved by the conviction entered against and the sentence imposed on him by the trial court, the accused has preferred this appeal.

Heard learned counsel for the appellant and also the learned Public Prosecutor and perused the records.

Conviction of the accused by the trial court is challenged by the learned counsel on the following grounds: (1) The First Information Statement (FIS) allegedly given by PW1 to the police officer does not bear her signature and therefore, it is inadmissible in evidence. (2) At the time of commission of the offences alleged by the prosecution, the accused was not present at the place of the alleged incident and he was then elsewhere. (3) Finger test is not a sure test to decide whether the victim was subjected to penetrative sexual assault (4) The under-garments of the victim and the accused, though seized by the police, were not sent for scientific examination. (5) The allegation against the accused that he committed sexual assault on the child by placing her on a ladder is false because such an act is humanly impossible. (6) It is a false case foisted upon the accused by the parents of the child in order to avoid payment of money due to him from them. (7) Medical certificate issued by the doctor reveals that only an attempt to commit sexual assault was made (8) Even if the entire evidence against the accused is accepted as true, it would only prove that the accused made only an attempt to commit rape or sexual assault.

Per contra, the learned Public Prosecutor has contended that the evidence of the child regarding the acts committed by the accused remains unchallenged in the cross-examination and her testimony, by itself, is sufficient to prove the offences alleged against the accused.

Out of the 11 witnesses examined by the prosecution, the material witnesses are PW1 to PW4 and PW7. PW2 is the victim girl. PW1 is her mother and PW3 is her father. PW4 is a neighbour who reached the scene immediately after the alleged incident. PW7 is the doctor who examined the victim girl at the hospital and issued Ext.P4 certificate.

The victim girl was aged 8 years at the time of the occurrence. When she gave evidence as PW2, she was aged 13 years.

PW2 has given evidence in examination-in-chief as follows: Her date of birth is 02.12.2004. The incident occurred on 07.01.2013. She was studying in the second standard at that time. On that day, at about 9:00 hours, she went to the new house which was under construction. Then, the accused was doing electrical work there. (PW2 identified the accused who was present in the court.) He caught hold of her and kissed her and fondled on her chest. He placed her on the ladder and forcibly inserted his penis into her vagina. She cried aloud and then he closed her mouth. He told her not to tell the incident to anybody. She ran into the shed, crying aloud and told her grandmother about the act committed by the accused. When her mother came back, weeping and hugging her mother, she narrated the incident to her.

The deposition of PW2 in the cross-examination consists of only five sentences. A translation of her deposition in the cross-examination would read as follows:

"January 7 was a Monday. I did not go to school on that day because I was not well. I did not go to hospital on that day. If it is stated that it is for the reason that no incident took place that I did not go to hospital on that day, it is not correct; it was on account of shame. You have concocted a false statement like this at the instance of your father and mother? (Q) No (A)."

The cross-examination of PW2, as above, would show that the whole evidence given by her in examination-in-chief, with regard to the acts committed by the accused, practically remains unchallenged.

The testimony of PW2 does not contain traces of tutoring. Her evidence appears to be natural and it inspires confidence. There is an impression of truth in the testimony of PW2.

In the above circumstances, it is really unnecessary to discuss the evidence given by PW1 and PW3 in detail. Suffice it to state that, their evidence shows that when they reached home, their daughter described her traumatic experience to them.

No contradiction or omission in the testimony of the above witnesses has been brought out in evidence and legally proved by the defence.

Now, the merits of the contentions raised by the learned counsel for the appellant shall be examined.

Absence of Signature of the Informant in the FIS

Ext.P7 is the FIS allegedly given by PW1 to the police. Ext.P7 does not bear the signature of PW1. The FIS was marked through PW10 Sub Inspector who recorded it. PW1 has deposed that she had given statement to the police and that Ext.P7 is the statement given by her.

Section 154(1) of the Code of Criminal Procedure, 1973 (for short 'the Code') states that, every information relating to the commission of a cognizable offence, if given orally to an officer in charge of a police station, shall be reduced to writing by him or under his direction, and be read over to the informant; and every such information, whether given in writing or reduced to writing as aforesaid, shall be signed by the person giving it, and the substance thereof shall be entered in a book to be kept by such officer in such form as the State Government may prescribe. The proviso to Section 154(1) of the Code was not in the statute when the FIS was recorded in this case.

What is the effect or consequence of omission by the informant to sign the FIS? In Ratanchand Radhakisondas v. State (AIR 1960 Bom 146 : 1960 Cri.L.J 461), it has been held as follows:

"Under Section 154 of the Criminal Procedure Code, every information relating to the commission of a cognizable offence, if given orally to an officer in charge of a police station, has to be reduced to writing by him or under his direction and has to be read over to the informant and every such information, whether given in writing or reduced to writing has to be signed by the person giving it and the substance thereof has to be entered in a book to be kept by the officer in such form as the State Government may prescribe in this behalf. Now, the admissibility of a first information report depends not on the fact that it is signed by the person making it, but on the fact that a first information report given in writing or taken down by a police officer would be a part of the official record as the substance of such information is to be entered in a book kept by the station officer in the form prescribed and that may attract the operation of the provisions of Section 35 of the Indian Evidence Act. The condition as to its being reduced to writing and that it shall be signed by the person giving it seems to us to be a mere matter of procedure and failure to observe the procedure as to signature would not make the information given, if it is reduced to writing, inadmissible. It is well settled, however, that a statement of an informant contained in the first information report is not substantive evidence. The information is only admissible to corroborate or contradict the testimony of the informant when he gives his evidence in court. The object of the first information report is to obtain early information of any alleged criminal activity, to record the circumstances before there is time for such circumstances to be forgotten or embellished and the report can be put in evidence when the informant is examined, if it is desired to do so". (emphasis supplied)

In State of Maharashtra v. Ahmed Gulam Nabi Shaikh (1997 Cri.L.J 2377), the Bombay High Court has held as follows:

"We would like to emphasise that the provisions contained in Section 154(1) Cr.P.C to the effect that after recording the FIR, signatures of the informant, which also include his thumb impression, have to be taken is a very salutary provision. If it is not strictly observed, dangerous consequences may ensue. Police Officers may prepare a FIR at the instance of an arch-enemy of an accused and falsely show it to be that of the informant. The object of having the signatures or thumb impression of the informant on the FIR after reading over the same to him is to thwart the possibility of such a malaise creeping in. Another object of this is to ensure that in case there is an omission in the FIR or the informant's statement in the trial Court is contrary to the recitals in the FIR, he may not be able to state that the FIR was not lodged by him and does not contain his version of the incident. However, in connection with the mandatory obligation on the part of the Officer who records the FIR under section 154(1) Cr.P.C to have the signatures or thumb impression of the informant on it, after recording it, we would like to point out that there is no inflexible requirement in law having universal application to all situations that it is always imperative to do so. Such an obligation has to be discharged by an Officer only if the informant is in a position to either sign or affix his thumb impression on the FIR. Assuming in a given case, the evidence is that after dictating the FIR, the informant became unconscious or his hands and legs, including his palms, soles and all the fingers and thumbs attached to them were bandaged then on the principle that the law does not compel the performance of the impossible Court would not fault the Officer for not taking signatures or thumb impression on the FIR. But as said earlier it is for the Officer who records the FIR and the prosecution to squarely satisfy the Court as to why in a given case the statutory obligation of taking signatures or thumb impression of the informant on the FIR has been given a go-by".

In Sahjad Ansari v. State of Jharkhand (2007 Cri.L.J 3086), the Jharkhand High Court has observed as follows:

"Mere absence of signature of the informant will not vitiate or nullify the FIR. Failure to observe the procedure laid down under Section 154 Cr.P.C for recording fard beyan does not render the statement of the maker thereof inadmissible. The insistence on the signature of the maker of the FIR is for the purpose of lending authenticity to the words or statement so recorded by the maker. The proof of such authenticity can also be given by the person in whose presence the statement of the maker of the fard beyan was recorded".

In Surendra Pal v. State of U.P:  (2010) 9 SCC 399, it has been held as follows:

"Yet another aspect of the matter: The first information report was not signed by PW1 (Kirpal Singh). It was scribed by one Ramveer on his dictation. The fact remains that the report was received by the Station House Officer and the FIR was issued immediately thereafter. It is of no consequence whether the first information report contained his signature or not".

(emphasis supplied)

Though in Ratanchand (supra) and  Surendra Pal (supra) the expression "FIR" has been used, on a careful perusal of these decisions it can be found that they have dealt with absence of signature of the informant in the first information statement (FIS) and not in the FIR registered by the police. The decision of the Supreme Court in Surendra Pal (supra) is authority for the proposition that absence of signature of the informant in the first information statement is of no consequence.

In the instant case, PW1 has given evidence that she had given statement to the police and Ext.P7 is that statement. It cannot be even imagined that PW10 Sub Inspector created a story of his own and recorded it as the statement of PW1. The first information statement contains narration of the incident in detail. It is not possible to believe that PW10 Sub Inspector imagined those details and prepared the document. The detailed narration about the incident in the first information statement would indicate that it is not the result of some fertile thinking on the part of the Sub Inspector who recorded it (See Khujji @ Surendra Tiwari v. State of M.P: AIR 1991 SC 1853). In fact, not even a suggestion was made to PW1 in the cross-examination that what is recorded in Ext.P7 is not the statement given by PW1.

Plea of Alibi

The accused has raised a plea that, at the time of the alleged incident, he was not present at the place of the occurrence. It is his plea that he was the Secretary of a Temple Committee and at the time of the alleged incident, he was engaged in collecting funds from the public along with other office-bearers of the Temple Committee, for the festival in the temple.

DW1 and DW2 were examined by the accused to prove the plea of alibi. DW1 is the person who became the Secretary of the Temple Committee subsequent to the arrest of the accused in this case. DW2 was the President of the Temple Committee.

DW1 has given evidence that the collection of funds for the festival in the temple was conducted from 05.01.2013 to 07.01.2013 and that the accused was in the squad of persons who were deputed to collect the money. DW2 has given evidence that the accused was present from 05.01.2013 to 08.01.2013 for collecting money for the festival in the temple.

The occurrence alleged by the prosecution had taken place between 9:00 and 10:00 hours on 07.01.2013. Neither DW1 nor DW2 has given evidence that the accused was with him during that particular time on 07.01.2013.

The Latin word alibi means "elsewhere". It is a rule of evidence recognized under Section 11 the Indian Evidence Act. The word alibi is used for convenience when an accused takes recourse to a defence line that when the occurrence took place he was so far away from the place of occurrence that it is extremely improbable that he would have participated in the crime. It is basic law that in a criminal case, in which the accused is alleged to have inflicted physical injury to another person, the burden is on the prosecution to prove that the accused was present at the scene and has participated in the crime. The burden would not be lessened by the mere fact that the accused had adopted the defence of alibi. The plea of the accused in such cases need be considered only when the burden has been discharged by the prosecution satisfactorily. But once the prosecution succeeds in discharging the burden it is incumbent on the accused, who adopts the plea of alibi, to prove it with absolute certainty so as to exclude the possibility of his presence at the place of occurrence. When the presence of the accused at the scene of occurrence has been established satisfactorily by the prosecution through reliable evidence, normally the Court would be slow to believe any counter evidence to the effect that he was elsewhere when the occurrence happened. But if the evidence adduced by the accused is of such a quality and of such a standard that the Court may entertain some reasonable doubt regarding his presence at the scene when the occurrence took place, the accused would, no doubt, be entitled to the benefit of that reasonable doubt. For that purpose, it would be a sound proposition to be laid down that, in such circumstances, the burden on the accused is rather heavy. It follows, therefore, that strict proof is required for establishing the plea of alibi (See Binay Kumar Singh v. State of Bihar : AIR 1997 SC 322).

It is well settled that a plea of alibi must be proved with absolute certainty so as to completely exclude the possibility of the presence of the person concerned at the place of occurrence. The plea of alibi postulates the physical impossibility of the presence of the accused at the scene of offence by reason of his presence at another place. The plea can therefore succeed only if it is shown that the accused was so far away at the relevant time that he could not be present at the place where the crime was committed.

In the instant case, the evidence that has been adduced by the accused to prove the plea of alibi is sketchy. It is not a case where the accused has proven with absolute certainty so as to exclude the possibility of his presence at the place of occurrence. The evidence adduced by the accused is not of such a quality that the Court would entertain even a reasonable doubt with regard to his presence at the scene of occurrence at the relevant time. The plea of alibi is to be established with certitude. In the instant case, nothing has been brought on record to prove physical impossibility of the presence of the accused to be at the scene of the offence by reason of his presence at another place. The plea can succeed only if it is shown that the accused was so far away at the relevant time that he could not be present at the place where the crime was committed. The evidence of DW1 and DW2 does not even suggest that the accused was with them at the time of the occurrence. The accused has not proved the plea of alibi.

Medical Evidence-Reliability

PW7 is the doctor who examined PW2 at the hospital at 14:50 hours on 08.01.2013 and issued Ext.P4 certificate. Her evidence, along with Ext.P4 certificate, shows that on examination of PW2, the following matters were noticed (1) tenderness on the vulva (2) congestion and minor injury on the posterior commissure (3) vagina admitted one finger (4) hymen appears intact (5) sign of penetration present.

Learned counsel for the appellant contended that the fact that the vagina of the victim girl admitted one finger does not indicate that the victim was subjected to penetrative sexual assault.

Two finger test violates the right of rape survivors to privacy, physical and mental integrity and dignity (See Lillu @ Rajesh v. State of Haryana : AIR 2013 SC 1784). In Sasi v. State of Kerala (2019 (3) KLT 561), a Division Bench of this Court has held that the finger test is not a sure test to give an opinion suggesting penetration.

In the instant case, it is not necessary for the prosecution to depend upon the observation of the doctor that the vagina of PW2 admitted one finger to prove penetrative sexual assault. There is other ample evidence to prove that fact.

In Ext.P4 certificate, the opinion given by the doctor was that there was evidence of recent sexual intercourse. But, when examined as PW7, her evidence was that there was attempt of sexual contact (assault).

The opinion of the doctor is not conclusive to determine whether penetrative sexual assault was actually committed or not. In Ranjit Hazarika v. State of Assam : (1998) 8 SCC 635, the Apex Court has held as follows:

"The prosecutrix deposed about the performance of sexual intercourse by the appellant and her statement has remained unchallenged in the cross examination. Neither the non rupture of the hymen nor the absence of injuries on her private parts, therefore, belies the testimony of the prosecutrix particularly when we find that in the cross examination of the prosecutrix, nothing has been brought out to doubt her veracity or to suggest as to why she would falsely implicate the appellant and put her own reputation at stake. The opinion of the doctor that no rape appeared to have been committed was based only on the absence of rupture of the hymen and injuries on the private parts of the prosecutrix. This opinion cannot throw out an otherwise cogent and trustworthy evidence of the prosecutrix".

(emphasis supplied)

The Apex Court, in B.C.Deva v. State of Karnataka : (2007) 12 SCC 122, has held that though the report of the Gynaecologist pertaining to the medical examination of the prosecutrix does not disclose any evidence of sexual intercourse, yet even in the absence of any corroboration of medical evidence, the oral testimony of the prosecutrix, which is found to be cogent, reliable, convincing and trustworthy shall be accepted.

The evidence of a medical man or other skilled witnesses, however, eminent, as to what he thinks may or may not have taken place under particular combination of circumstances, however, confidently, he may speak, is ordinarily a matter of mere opinion (See Madan Gopal v. Naval Dubey : (1992) 3 SCC 204).

Learned counsel for the appellant has pointed out that, in Ext.P4 certificate, the doctor has recorded the history of the case only as attempt of sexual assault and not as sexual assault.

The history of the case recorded by a doctor in the medical certificate cannot be the sole basis or the last word for making a finding regarding the commission of the offence by the accused. A doctor is not at all concerned as to the details of the offence committed. He is not concerned about who committed the offence. At that stage the doctor is required to fill up the relevant column in the certificate in a normal and concise manner after ascertaining the same. He is not expected to elicit from the victim or from those who brought him in the hospital the entire details of the incident and to record them in the medical certificate. It is a matter of common knowledge that entries in the medical certificate do not necessarily amount to a statement (See Babu v. State of A.P : (1994) 1 SCC 388).

Plea of Falsity of the Case

The accused has raised a plea that he had given money to PW1 and PW3 for construction of their new house and that the case is one foisted upon him by them to avoid repayment of money. This plea deserves outright rejection. No parent would put the reputation or honour of a girl child to risk to avoid repayment of a debt. Further, PW1 and PW3 have denied the suggestion made to them that they owed amount to the accused. There is absolutely no evidence to find that the accused had given any money to the parents of the child.

Another contention raised by the learned counsel for the appellant is that it was humanly impossible to commit the act alleged against the accused by placing the child on a ladder. This contention has no basis. It is raised only for the sake of raising a contention. At any rate, the trial court has negatived this contention stating valid reasons, after noticing the measurements of the ladder.

Another contention raised by the learned counsel for the appellant is that the undergarments of the child and the accused, though seized by the investigating officer, were not sent for scientific examination. The evidence of the investigating officer (PW11), along with Ext.P16 forwarding note, would show that the undergarments had been sent to the Forensic Science Laboratory for examination. It is true that, the report, if any, received from that laboratory was not tendered in evidence. However, in the instant case, the absence of such report of the Forensic Science Laboratory is of no consequence. The victim girl has not given any evidence that, while committing the sexual assault on her, the accused had ejaculated. Therefore, there was no possibility of the presence of any semen on the undergarments of the child or the accused.

Plea of Attempt only to Commit Rape?

Learned counsel for the appellant contended that, even if the entire evidence adduced by the prosecution is accepted, it would only prove that the accused made only an attempt to commit sexual assault on the child and that the evidence is not sufficient to prove that the accused committed rape or penetrative sexual assault.

Section 3(a) of the Act provides that, a person is said to commit penetrative sexual assault, if he penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a child or makes the child to do so with him or any other person. The extent or depth of penetration is immaterial. Penetration, even to a small extent, is sufficient to attract the offence under Section 3(a) of the Act.

"Rape", as defined under Section 375 of the I.P.C, as it stood prior to the amendment as per Act 13 of 2013, includes sexual intercourse with a woman, with or without her consent, when she is under sixteen years of age. The Explanation to this provision provided that penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape.

Penetration of even slightest degree will be sufficient to attract the offence of rape. To constitute the offence of rape, it is not necessary that there was complete penetration of the penis into the private part of the victim/prosecutrix. In other words, to constitute the offence of rape, it is not at all necessary that there should be complete penetration of the male organ with emission of semen and rupture of hymen. Even partial or slightest penetration of the male organ within the labia majora or the vulva or pudenda with or without any emission of semen or even an attempt at penetration into the private part of the victim would be quite enough. That being so, it is quite possible to commit the offence of rape even without causing any injury to the genitals or leaving any seminal stains (See State of U.P v. Babul Nath : (1994) 6 SCC 29).

The rupture of hymen is by no means necessary to constitute the offence of rape. Even a slight penetration in the vulva is sufficient to constitute the offence of rape and rupture of the hymen is not necessary. Vulva penetration, with or without violence, is as much rape as vaginal penetration. The statute merely requires evidence of penetration, and this may occur with the hymen remaining intact. The actus reus is complete with penetration. To constitute the offence of rape, it is not necessary that there should be complete penetration of the penis with emission of semen and rupture of hymen. Partial penetration within the labia majora of the vulva or pudendum with or without emission of semen is sufficient to constitute the offence of rape as defined in the law. The depth of penetration is immaterial in an offence punishable under Section 376 IPC (See Aman Kumar v. State of Haryana : AIR 2004 SC 1497).

This  Court,  in  Chenthamara v. State of Kerala (2008 (4) KHC 313 : 2008 (4) KLT 290) has held that penile vaginal entry namely actual passing of penis into the vagina is not essential to constitute rape and even penile access towards vagina, without there being any entry of penis into the vagina, would constitute rape, if penis gets physical contact in that process of access with any of the external portions of the female genital organ, such as, vulva, labia majora etc.

Later, in Kunjumon v. State of Kerala (2011 (4) KHC 72), the same learned Judge who rendered Chenthamara, has clarified that an attempt at penetration into vagina would amount to accessing of the vagina and even a slightest penetration into vulva or labia majora would constitute "rape", although there would be no vaginal penetration in such cases.

In Tarkeshwar Sahu v. State of Bihar: (2006) 8 SCC 560, the Apex Court has held that slight degree of penetration of the penis in vagina is sufficient to hold accused guilty for the offence under Section 375 IPC punishable under Section 376 IPC.

Regarding the offence under Section 3 of the Act, it may be noted that, in Ramesh v. State of Kerala (2020 (3) KHC 560 : 2020 (4) KLT 11), the evidence of the child witness revealed only that the accused placed his male genital organ at the external genitalia of the victim girl. This Court held that the act of the accused attracted the offence under Section 3(a) of the Act.

In the instant case, the evidence of the victim girl is that the accused forcibly inserted his penis into her vagina. Such an act of the accused would attract the offences punishable under Section 376 of the IPC and Section 3(a) read with 4 of the Act.

The substantive evidence, in the form of the testimony of the victim girl that the accused forcibly inserted his penis into her vagina, which remains unchallenged in the cross-examination, proves beyond reasonable doubt that the accused committed the offences punishable under Section 376 of the IPC and under Section 3(a) read with 4 of the Act.

In view of the provision contained in Section 42 of the Act, the trial court has not imposed any sentence on the accused for committing the offence punishable under Section 376 IPC. The trial court has imposed on the accused only the minimum sentence of rigorous imprisonment for a period of seven years for the offence under Section 3 read with 4 of the Act. The sentence of fine of Rs.25,000/- imposed on the accused by the trial court is also reasonable and it is not excessive.

The discussion above would lead to the conclusion that the appeal is without any merits and it is liable to be dismissed.

Consequently, the appeal is dismissed.