P.K. Musahary, J.
1. By a judgment dated 31.03.2006 passed in Sessions Trial No. S.T. 52(W.T./A) of 2005 by the learned Addl. Sessions Judge, West Tripura, Agartala, Court No. 2, the accused appellant was convicted under Section 376(1) IPC and sentenced to suffer R.I. for seven years and to pay a fine of Rs. 2.000/- in default to suffer RI for another six months. Being aggrieved by and dissatisfied with the same, the accused appellant has preferred this appeal.
2. The prosecution case as unfolded during the trial, in short is that on 04.10.2004 the prosecutrix was admitted to GB Hospital, Agartala for treatment of her jaundice. When she was undergoing treatment, the accused Shri Ratan Acharjee visited the said hospital as arranged by the father of the prosecutrix for her treatment with charms and incantation. He treated the prosecutrix in this way for three consecutive days and there after asked her to attend his house for continuation of the treatment as per his method. The prosecutrix was discharged from the GB Hospital on 09.10.2004. She went to the house of the accused appellant on 14.10.2004 at about 5 PM to 5:30 PM accompanied by her two brothers. The accused appellant took her inside the room and shut the door and started incantation. The prosecutrix showed her lot of books of Mantras and told her that she was suffering from venereal disease inside lower abdomen. In order to recover from the disease, she was asked by the accused to abide by his instructions. She was then asked to open her 'Choose'. After she opened the same, she was asked to open her panty but she did not agree. The accused insisted and he himself opened the panty and started incantations. At one time, the accused entered his finger into her vagina and also penetrated his penis. Thus she was raped by the accused. She was asked by the accused not to divulge the fact to anybody and warned her that if she does so, her family members would be ruined. Thereafter, the accused appellant asked the prosecutrix to attend the treatment for 21 more days. Out of fear, she did not tell her brothers who were waiting outside. Out of fear, she did not tell about the incident to anybody on 14.10.2004 but on the next day, i.e. on 15.10.2004 she disclosed everything to her elder sister and then reported to the police by lodging a written FIR with the Officer-in-Charge, Women Police Station, Agartala.
3. On receipt of the said FIR, on 15.10.2004 at about 16.45 hours, the OC registered Agartala Women Police PS Case No. 60/04 under Section 376 IPC. The OC of the Women Police Station, Smti Manidipa Das (PW 12) herself took the charge of investigation of the case. During the course of investigation, she visited the place of occurrence and prepared a hand sketch map with index, arranged medical examination of the victim and also arranged chemical examination of the vaginal swab of the prosecutrix. The IO also arranged for medical examination of the accused to test his sexual capability. The IO also seized some articles and forwarded the same to the Court. During the course of investigation, the IO also examined some witnesses and recorded their statements under Section 161 Cr.P.C. On completion of investigation, the IO, having found strong prima facie case against the accused, submitted charge-sheet under Section 376 IPC. The learned Trial Court framed charge under Section 376(1) IPC against the accused on 19.09.2005 which was read over and explained to him in Bengalee and the accused pleaded not guilty and claimed to stand trial. The prosecution, in order to prove its case, examined as many as 12 witnesses including the victim and the Medical Officer. The defence did not examine any witness during the trial.
4. At the outset, I would say that my conscience would not allow to indicate the name of the prosecutrix keeping in view the social object of preventing social victimization or ostracism of the victim of a sexual offence for which Section 228(A) IPC has been enacted and also keeping in view the golden advice rendered by the Apex Court in the case of State of Punjab v. Ramdev Singh reported in : AIR2004SC1290 . Hence, I would prefer to call the prosecutrix as victim only in the judgment.
5. This is a case where the accused appellant has been convicted primarily on the basis of the evidence of the victim who was examined as PW 1. She herself was the informant. In her oral evidence she reaffirmed the allegations made in the FIR (Ext. 1) and also the statements made before the Magistrate under Section 164(1) Cr PC (Ext. 2). The victim was subjected to thorough and searching cross examination by the defence counsel particularly on the question of probabilities of commission of rape on her. In the cross-examination, the victim stated that there were some outsiders sitting in the varanda of the room waiting for treatment. To enter into the room, one has to go through the varanda. The wife and daughter of the accused were at home at the time of the incident. There was another room adjacent to the worship room from where sound of talking was coming. She saw one male person being treated by the accused while she arrived at the house of the accused with her two brothers. She stated that she did not know that the treatment was with the method of sexual intercourse. At first she did not feel like raising alarm when the door was locked from inside thinking that it was a part of the treatment. Although, she was intending to raise alarm while she was asked to open her choose, but when the accused opened her panty she tried to resist whereupon the accused applied force telling that this was a part of treatment. She returned home along with her two brothers namely, (PW 3) Bijoy (not examined). The victim did not say anything to her aforesaid brothers about the alleged incident after coming out from the treatment room of the accused.
6. Mr. Samrat Kar Bhowmik, learned Counsel for the accused appellant, based on this piece of evidence, argued that the story of rape was as improbable as unreliable. According to him, a man cannot indulge in an act of commission of rape in his house while his won wife and daughter were present and more particularly, while the victim's own brothers were also awaiting outside. Mr. Kar Bhowmik, learned Counsel for the accused appellant further improved his argument by referring to hand sketch map, which according to him does not indicate existence of any shutter in the door and the door could have been opened and the duty to prove such fact lies with the prosecution. This point has been discussed thoroughly by the learned Trial Court in paragraphs 31 and 32 of its judgment, which I find very reasonable and acceptable. To quote the relevant portion:.The evidence however, shows that the accused shut the door immediately after the victim girl took entry into the room. This fact of shutting the door was also strongly corroborated by the evidence of PW3, the brother of the victim girl. If therefore follows that it cannot be said straightway about the non-existence of door shutter. The investigating Officer while deposing as PW 12 has categorically stated that A in the sketch map indicates worship room of the accused. There is only one worship room. D and E indicates doors of A. Situated thus, their appears to be sufficient corroborating evidence to establish the fact that the doors have shutters. Further more, one cannot think a door without shutter or otherwise it could be hardly a passage and not a door. These witnesses has stated that the worship rooms had doors. Therefore, it can convincely be said that there was existence of doors with shutter.
32. The 'probability factor' argued by the learned Counsel Sri Samrat Kar Bhowmik does not find much importance in as much as soon after closing of the doors the inner part of the worship room becomes wholely saggregated with the outside view. The out side at that point of time does not have any assess inside the room and the happenings going on therein.
I would simply add. As per sketch map (Ext. 7), the bedroom, marked B is located at the extreme end of the house in the North while the worship room i.e. the place of occurrence is at the other extreme end in his house, marked A. The wife and daughter who lived in the bedroom at the far end of the house are not concerned with the visiting patient in the worship room. This in my view makes the possibility of the case stronger against the accused.
7. In his submissions, Mr. Samrat Kar Bhowmik, learned Counsel for the accused appellant raised a question as to what prevented the victim from raising hallah or crying for help, which could have been heard by her brothers waiting outside, while the accused made an attempt to commit rape on her. According to him this very conduct of the prosecutrix improbables the alleged rape. It appears to be an impressive argument but looking at the totality of the prevailing situation, it becomes totally unacceptable. First of all, one should not forget that the accused is a married man of about 48 years of age with vast experience and skill in sex. As soon as the prosecutrix arrived at his house, he made her two brothers waiting outside, took her inside, closed the door, asked her to do as directed by him, warned not to disclose to anybody otherwise her family members would be destroyed, removed her panty inspite of her protest, inserted his finger in the vagina telling her it was a part of treatment of female disease called Gynecology, then ultimately raped her inserting his panis in her vagina. The learned Trial Court had aptly observed in paragraph 40 of his judgment in the following words:.Taking advantage of her such mental state of affair the accused committed the intercourse. It is presumed that the accused was a skilled man and did his skill with all his confidence. His skilness did not stop there while it comes to the deposition of the PW1 that immediately after the intercourse the accused asked her to stand immediately. The accused also did not forget to exercise his skill by asking the victim girl to smile. The accused further booked the girl for more 21 days to give similar treatment.
I would again add to above. The accused in his statement made under Section 313 CrPC stated that the victim being a classmate of his daughter used to visit his house regularly and the victim's brothers visited his house on 14.10.2004, i.e., on the following day of Kali Puja to take 'Prasad' along with others. The house of the accused as stated by the victim in cross-examination is at a distance but within the working range. The accused tried to build up a story in his defence putting a suggestion on the victim that she had some affairs with one Suman, elder son of her close neighbour Hiran Sutradhar and she was found in the evening of 12.10.2004 in a compromising position with Suman, which the accused happened to see in the adjacent house of Suman and the accused threatened the prosecutrix to report the matter to her father for which, out of grudge she has brought against him this false allegation of rape on ha The suggestion was denied by the prosecutrix. The defence projected this story without any basis inasmuch as, no evidence was laid in support of the same. The defence story sounds simply unbelievable as the accused did not disclose as to how he could see the prosecutrix and the said Suman in compromising position, an act which was done inside others house.
8. Mr. Samrat Kar Bhowmik, learned Counsel for the accused appellant strenuously argued that the absence of injuries on the body of the prosecutrix improbables the prosecution version on rape. Referring to medical report (Ext. 6), he submitted that no external injury was seen on the body of the prosecutrix. According to medical report, her hymen was found intact and the vagina was admitting the tip of little finger with discomfort. There was no injury tear on vagina. Not even external injury was seen including inner aspect of thigh and breast. No injury marks were seen on any part of the body. The oral evidence of PW 9 Dr. Pranab Choudhury who examined the victim conforms with the said medical report. It was testified by the Medical Officer, PW 9 that there was no evidence of penetration of vagina, in this case, therefore, the learned Counsel argued that the evidence of victim on rape is not supported by medical evidence and on the basis of her sole testimony no conviction and sentence can be ordered by the learned Trial Court. He, further submits that in a rape case, the accused could be convicted on the sole testimony of the prosecutrix if it is capable of inspiring confidence in the mind of the Court. In support of his submission, he cited the following cases-
1. Yerumalla Latchaiah v. State of Andhra Pradesh reported in (2006) 3 SCC (Cri) 373.
2. Sadashiv Ramrao Hadbe v. State of Maharashtra reported in : (2006)10SCC92 .
3. Narayan v. State of Maharashtra reported in : 2007CriLJ2733 .
4. Vimal Suresh Kamble v. Chaluvera Pinake Apal reported in : 2003CriLJ910 .
5. Dilip v. State of MP reported in : 2001CriLJ4721 .
6. Siba Ram Barua v. State of Assam reported in 2006(2) GLT 614.
7. Parag Sahcia @ Ridip Saikia v. State of Assam reported in 2006 (Supp) GUT 490.
8. Nabin Bora v. State of Assam reported in 2004 (1) GLT 478
9. Dungar v. State of Rajasthan reported in 2002 Cri. LJ 386.
9. The learned Counsel for the accused appellant placed the medico legal meaning of 'Coitus' and 'Intercourse' from the Stedman 's Medical Dictionary (25th Edition, Illustrated), published by Williams & Wilkins and the Concise Oxford Dictionary of Current English (6th Edition) edited by JB Sykes, published by Delhi Oxford University Press. According to Mr. Kar Bhowmik, learned Counsel for the accused appellant, when a robust man aged about 48 years like the accused whose erect penis as per evidence of PW8. Dr. who examined the accused would be atleast 6 inches in circumference and around 8 inches in length had a sexual intercourse with a girl aged only 17 years, whose vagina as per medical report (Ext. 6) could admit only the tip of the little finger, the hymen should have been ruptured laceration and radiate tears. He relied upon the opinion given in Modi's Medical Jurisprudence and Toxicology (22nd Edition) edited by B.V. Subrahmanyam, which is quoted below:
In nubile virgins, the hymen, as a result of complete sexual intercourse, is usually lacerated, having one or more radiate tears (more so in posterior half) the edges of which are red, swollen and painful, and bleed on touching, if examined within a day or two after the act. These tears heal within five or six days and after eight to ten days, become shrunken and look like small tags of tissue. Frequent sexual intercourse and parturition completely destroy the hymen, which is represented by several small tags of tissue, which are called carunculae hymenealis or myrtiformes. In cases where the hymen is intact and not lacerated, it is absolutely necessary to note the distensibility of the vaginal orifice in the number of fingers passing into vagina without any difficulty. The possibility of sexual intercourse having taken place without rupturing the hymen may be inferred if the vaginal orifice is capacious enough to admit easily the passage of two fingers.
10. The submission of the learned Counsel for the accused appellant is that the hymen of the victim being found intact, it can easily be concluded that there was no penetration of the penis of the accused. Penetration is the sine quo non in the case of rape and if the prosecution fails to prove the penetration, the accused is entitled to acquittal.
11. Per contra, Mr. Ghosh, learned Addl. PP submits that penetration does not necessarily mean full penetration of the penis. It also does not require that hymen must be ruptured due to penetration. Mr. Ghosh refers to and relied on passage at page 446 of HWV Cox, Medical Jurisprudence and Toxicology, Sixth Edition, the relevant portion of which may be quoted below:
(G) Indications of Penetration-...Partial penetration of the penis within the labia majora of the vulva or pudendum, with or without emission of semen with or without any injury to the hymen is sufficient to constitute the offence of rape. Perfect or absolute penetration is not required to be proved, and the absence or presence of hymen is not conclusive either way. The statute merely requires medical evidence of penetration, and this may occur even if the hymen is intact. But the Courts are reluctant to believe that there could be penetration without the hymen, which is so very near the entrance, having been ruptured. Vulval penetration is as much rape as the vagination penetration.
12. In this context, the learned Addl. PP refers to the opinion of the Medical Officer, PW 9 contained in Ext. 6 PW 9, who examined the victim deposed that he collected the vaginal swabs and handed over to the police. After receipt of the vaginal swabs report, he found no evidence of penetration of vagina but according to his opinion, chance of rape cannot be ruled out exclusively. The victim's categorical statement made in the FIR and her evidence about the allegation of rape, according to Mr. Ghosh, had been fully supported by the medical evidence and the charge against the accused has been proved beyond reasonable doubt and he has been rightly convicted and sentenced by the learned Trial Court on proper appreciation of evidence on record which warrants no interference by this Court.
13. The rival submissions of the learned Counsel for the parties have necessitated this Court to consider the provision of law pertaining to offence of rape for arriving at a correct decision. The offence of 'Rape' is defined under Section 375 IPC, which is quoted below:
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 following descriptions:
First:- Against her will.
Secondly-Without her consent.
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 husband, and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.
Fifthly--With her consent, when at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and 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 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.
The important ingredients of the offence under Section 375 punishable under Section 376 IPC are the penetration of the penis of the accused into the vagina of the victim. In the instant case, admittedly, the hymen of the victim was found intact and no injury was found on her vagina. According to this, the penetration of penis of the accused into the vagina of the victim is a must, but then relevant question is as to how much penetration is necessary and whether hymen must be ruptured. The first explanation of Section 375 IPC is silent about this question. The explanation simplyprovides that penetration is sufficient to constitute sexual intercourse necessary for the offence of rape. The Hon'ble Supreme Court had the occasion to discuss the similar issues in the case of State of MP v. Munna Choubey reported in : 2005CriLJ913 . Paragraph 7 of the judgment in the aforesaid case may be quoted gainfully below:
The offence of rape occurs in Chapter XVI IPC. It is an offence affecting the human body. In that chapter, there is a separate heading for 'Sexual offence', which encompasses Sections 375, 376, 376-A, 376-B, 376-C and 376-D. 'Rape' is defined in Section 375. Sections 375 and 376 have been substantially changed by the Criminal Law (Amendment) Act, 1983, and several new sections were introduced by the new Act i.e. Sections 376-A, 376-B, 376-C and 376-D. The fact that sweeping changes were introduced reflects the legislative intent to curb with an iron hand, the offence of rape which affects the dignity of a woman. The offence of rape in its simplest term is 'the ravishment of a woman, without her consent, by force, fear or fraud', or as 'the carnal knowledge of a woman by force against her will.' 'Rape' or 'raptus' is when a man hath carnal knowledge of a woman by force and against her will (Co. Litt. 123-b): or as expressed more fully, 'rape is the carnal knowledge of any woman, above the age of particular years, against her will; or of a woman child, under that age, with or against her will' (Hale PC 628). The essential words in an indictment for rape are repuit and carnaliter cognovit; but carnaliter cognovit, nor any other circumlocution without the word repuit, are not sufficient in a legal sense to express rape; 1 Hon. 6, la, 9Edw. 4, 26a (Hale PC 628). In the crime of rape, 'carnal knowledge' means the penetration to any the slightest degree of the organ alleged to have been carnally known by the male organ of generation (Stephen's Criminal Law, 9th Edn., p. 262). In Encyclopedia of Crime and Justice (Vol. 4 p. 1356) it is stated'...even slight penetration is sufficient and emission is unnecessary'. In Halsbury' Statutes of England and Wales (4th Edn.), Vol. 12, it is stated that even the slightest degree of penetration is sufficient to prove sexual intercourse. It is violation with violence of private person of a woman- an outrage by all means. By the very nature of the offence it is an obnoxious act of the highest order.
14. The Apex Court, in the subsequent case of Tarkeshwar Sahu v. State of Bihar reported in : (2006)8SCC560 , held further clearly that rupture of hymen is not necessary. Paragraphs 13 and 14 of the judgment in the said case may also be quoted gainfully as under:
13. In order to constitute rape, what Section 375 IPC requires is medical evidence of penetration, and this may occur and the hymen remain intact. In view of the Explanation to Section 375, mere penetration of penis in vagina is an offence of rape. Slightest penetration is sufficient for conviction under Section 376 IPC.
14. Position of law in England is the same. To constitute the offence of rape, there must be a penetration. Even the slightest penetration will be sufficient. Where a penetration was proved, but not of such a depth as to injure the hymen, still it was held to be sufficient to constitute the crime of rape. This principle has been laid down in R.v. M'Rue4 and R.v. Allen 5. In R.v. Hughes6 and R.v. Lines7, the Court has taken the view that' proof of the rupture of the hymen is unnecessary'. In R. v. Marsden, the Court has laid down that 'it is now unnecessary to prove actual emission of seed; sexual intercourse is deemed complete upon proof of penetration only.
15. In paragraph 21 of the said judgment, it has also been held that in view of the catena of judgment of the Indian and English Course, it is abundantly clear that slight degree of penetration of the penis in the vagina is sufficient to hold the accused guilty for the offence under Section 375 punishable under Section 376 IPC. The most important and most appropriate observation may be read from paragraph 10 of the said judgment in the following lines:.other important ingredient is 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 completely. partially or slightly would be enough for the purpose of Sections 375 and 376 IPC.
(emphasize supplied)
16. The latest legal position from the aforesaid judgment rendered by the Apex Court stands thus: Even an attempt to penetrate penis into the vagina by force with mere vulval penetration without rupture of hymen is enough for convicting an accused under Section 376 IPC.
17. In this case, the victim stated categorically that the accused removed the victim's panty inspite of her protest. To put in her words - 'initially he got his finger entered my vagina but latter he started entering his penis.' This is definitely an act of attempt to rape. The defence put no specific suggestion to the prosecutrix in cross-examination that the accused did not indulge himself in such obnoxious act with her. It was inevitable that the accused attempted to penetrate his penis into the vagina of the victim. It is immaterial whether the penis penetrated fully orpartially into the victim's vagina. It is not at all material whether the hymen has been ruptured or not. Not even material whether marks of injury, better say, marks of violence, are found or not on the body of the victim. What is material is just vulval penetration, not the vaginal penetration. Looking at the medical report and on reading the evidence of the victim, one fact is found proved that there was no vaginal penetration. At the same time looking at the attempt made by the accused it is also found probable that there was, at least, vulval penetration amounting to rape within the statutory meaning under Section 375 IPC.
18. The medical evidence proved the fact that the victim was in the state of virginity having found her hymen intact Inexperience in sex and terrified by the violent sexual assault by the accused, the victim took the vulval penetration for vaginal one and stated so in a little exaggeration which must not be branded as false evidence so as to treat it as untrustworthy or unreliable. After all, why should a virgin in her just late teens from a tradition bound Hindu Bengalee Society deposed falsely against the accused at her extreme risk of being condemned to mental death and social ostracization. To disbelieve her evidence would tantamount to adding insult to physical and mental injuries already inflicted on her. I find the victim to be a witness of sterling quality with her evidence inspiring the confidence of the Court for recording the conviction of the accused. I cannot afford to disbelieve the victim's evidence and convert the order of conviction and sentence as passed by the learned Trial Court to acquittal.
19. On careful appreciation and re-appreciation of evidence on record, hearing the learned Counsel for the parties and applying the principles of law enunciated by the Apex Court as discussed earlier. I would uphold and conform the judgment dated 31.03.2006 passed by the learned Trial Court convicting and sentencing the accused appellant. The accused appellant has been unsuccessful to persuade this Court to interfere with the said judgment of the learned Trial Court and as such the present appeal is liable to be dismissed. Accordingly, the same is dismissed. The lower Court records may be returned immediately.