Every Criminal Act of Rape or an Attempt thereof does Involve an Indecent Assault [JUDGMENT]

Penal Code, 1860 - Ss. 376 & 506 (1) - Protection of Children from Sexual Offences Act, 2012 - Ss. 4 & 6 - Every criminal act of rape or an attempt thereof does involve an indecent assault. In order to amount to an attempt to commit an offence, the act of the accused must have proceeded beyond the stage of preparation. If the act of the accused does not constitute anything beyond preparation and falls short of an attempt, he may escape the liability under Sections 376 and 511 of the IPC, and may be liable to be convicted only for an offence amounting to an indecent assault. [Para 76]

Penal Code, 1860 - Ss. 376 & 506 (1) - Protection of Children from Sexual Offences Act, 2012 - Ss. 4 & 6 - No girl or her parents would come forward to make humiliating statement against the honour of the girl, therefore, the evidence of the prosecutrix and her parents should not be discarded lightly. [Para 83]

Penal Code, 1860 - Ss. 376 & 506 (1) - Protection of Children from Sexual Offences Act, 2012 - Ss. 4 & 6 - if an accused is charged of a major offence but is not found guilty thereunder, he can be convicted of minor offence, if the facts established indicate that such minor offence has been committed. [Para 86]

Criminal Procedure Code, 1973 - Section 235 (2) - Judgment of acquittal or conviction - Whether the Appeal Court, converting the judgment of acquittal into conviction, must hear the accused on the question of sentence - Whether the provisions of section 248(2) of the Code also apply to the Appeal Court - Held, the appeal Court, on finding the accused guilty of the charge for the first time, must hear the accused on the nature and quantum of sentence. [Para 109]

The Probation of Offenders Act, 1958 - Sections 4 and 6 - Power of court to release certain offenders on probation of good conduct - Restrictions on imprisonment of offenders under twenty-one years of age - Report of the Probation Officer - Hearing the accused on the point of sentence is mandatory. [Para 110 - 115]
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA and HONOURABLE MR.JUSTICE A.C. RAO
Date : 12/03/2019
R/CRIMINAL APPEAL NO. 934 of 2018 With R/CRIMINAL APPEAL NO. 1342 of 2018
RANJANBEN MAHESHBHAI VASAVA
Versus
STATE OF GUJARAT & 1 other(s) 
Appearance: MS SHILPA R SHAH(796) for the Appellant(s) No. 1 HCLS COMMITTEE(4998) for the Opponent(s)/Respondent(s) No. 2 MADANSINGH O BAROD(3128) for the Opponent(s)/Respondent(s) No. 2 MR. H. K. PATEL, ADDL. PUBLIC PROSECUTOR(2) for the Opponent(s)/Respondent(s) No. 1 
J U D G M E N T 
(PER : HONOURABLE MR.JUSTICE J.B.PARDIWALA)
1. As both the captioned appeals are against the selfsame judgment and order of acquittal passed by the Trial Court, those were heard analogously and are being disposed of by this common judgment and order.
2. The Criminal Appeal No.1342 of 2018 is at the instance of the State of Gujarat, whereas the Criminal Appeal No.934 of 2018 has been filed by the original complainant (victim's mother) under section 372 of the Code of Criminal Procedure, 1973.
3. Both the appeals, referred to above, are directed against an order of acquittal dated 3rd May, 2018 passed by the Special & Addl. Sessions Judge, Bharuch in the Special POCSO Case No.45 of 2016. By the impugned judgment passed by the Special & Addl. Sessions Judge, Bharuch, the original accused came to be acquitted of having committed the offences punishable under sections 376 and 506 (1) of the IPC and sections 4 and 6 of the Protection of Children from Sexual Offences Act, 2012 (for short “POCSO”).
4. Case of the prosecution
4.1 The prosecution case, which unfolded during the course of the trial is that on 14th June, 2016, the victim, a six year old girl, after returning home from her school, was playing outside her house along with her friends. The accused is also residing nearby the house of the victim. It is the case of the prosecution that while the victim was playing with her friends, the accused took her to his house and locked the door from inside. Thereafter, the accused removed the clothes of the victim, and he too, took off his clothes. The accused applied some oil on the private part of the victim and, thereafter, raped the victim. The accused is also alleged to have threatened the victim by saying that if she would disclose to anyone, she would be thrown in the river. The victim, thereafter, somehow, managed to escape from the clutches of the accused and straightway went running to her house and disclosed about the incident to her mother, namely, Ranjanben Maheshbhai Vasava. The mother, on learning about the incident from her minor daughter, examined the private part of the victim and noticed that there was swelling and redness. Thereafter, the mother of the victim immediately confronted the accused as regards the incident. The accused denied before the mother of the victim having indulged in any such act as complained by the victim. The father of the victim, on his return to home from his job, went straight in search of the accused. However, the accused was not found. As the victim was unable to pass urine, the parents, along with the victim, went straight to the police station, and at the police station, the mother lodged the first information report for the offences enumerated above.
4.2 On the first information report being lodged by the P.W. 12, i.e, the mother of the victim, the investigation had commenced. The victim was taken to the General Hospital, Bharuch with a police Yadi for the medical examination.
4.3 The medical certificate of the victim issued by the Doctor is at Exh.37. The accused was arrested on the next day, i.e, on 15th June, 2016 and he too was taken to the Civil Hospital, Bharuch with a police Yadi for medical examination. The accused, while narrating the history before the Doctor, stated that on 14th June, 2016, he was playing with the victim in the evening between 3:00 and 4:00 O' clock and, thereafter, he brought the victim at his house and started playing with her after closing the door. The medical certificate of the medical examination of the accused is at Exh.40. The victim, thereafter, was taken to the Court of the Judicial Magistrate, First Class, Bharuch for the recording of her statement under section 164 of the Cr.P.C. The victim was put forward before the 5th Addl. JMFC, Bharuch, who, in turn, recorded the statement of the victim under section 164 of the Cr.P.C. The Panchnama of the place of occurrence, Exh.25, was drawn in the presence of the two Panch witnesses. The clothes of the victim were collected by drawing the Panchnama, Exh.21 in the presence of the two Panch witnesses. The Muddamal articles collected by the Investigating Officer in the course of the investigation were sent to the FSL for chemical analysis. The statements of various witnesses were recorded under section 161 of the Cr.P.C.
4.4 On conclusion of the investigation, a charge-sheet was filed against the accused in the court of the learned JMFC, Bharuch. As the case was exclusively triable by the Special Court, Bharuch, the JMFC, Bharuch committed the case to the Sessions Court under section 209 of the Cr.P.C. The Sessions Court framed the charge against the accused Exh.7 and the statement of the accused was recorded. The accused did not admit the charge and claimed to be tried.
4.5 The prosecution adduced the following oral evidence in support of its case; 

Sr. No. Name of the witness Exhibit 
1 Deposition of the complainant Ranjanben Maheshbhai Vasava 12
2 Deposition of the victim 14 
3 Deposition of the witness- Maheshbhai Kishanbhai Vasava 16
4 Deposition of Bhupatbhai Gunvantbhai Patanvadiya 17
5 Deposition of the witness-Himmatbhai Madhavbhai Parmar 22
6 Deposition of the Panch Shivkumar Sudaipal 23 
7 Deposition of the Panch Bhupendrabhai Jagdishbhai Vasava 26
8 Deposition of the Panch Kiranbhai Rayjibhai Parmar 27
9 Deposition of the Panch Maheshbhai Sukhabhai Rathod 30
10 Deposition of the witness-Sanjaybhai Natwarbhai Vasava 31
11 Deposition of the witness Laxmiben Natwarbhai Vasava 32
12 Deposition of the witness- Thakorbhai Ganpatbhai Patel 33
13 Deposition of the witness Rupesh Jayramprasad Divakar 35
14 Dr. Vinodkumar Brijnandan Upadhyay 38 
15 Dr. Bijal Dilipkumar Rami 42 
16 Head Constable Mukeshbhai Shankarlal Mistri 45
17 Deposition of the witness Bharatsinh Ranjitsinh Gohil (Investigating Officer) 49
18 Deposition of the witness Kirankumar Dahyabhai Rathod (Investigating Officer) 59

4.6 The following pieces of the documentary evidences were adduced by the prosecution; 

Sr. No. Details of the Documentary evidence Exhibit 

1 The original complaint of the complainant- Ranjanben Maheshbhai Vasava 13
2 The Panchnama of the clothes of the victim wore at the time of the incident. 18
3 Signed copy of the Panch 19 
4 Signed copy of the Panch 20 
5 The Panchnama of the clothes of the victim 21 
6 The Panchnama of the scene of offence 25 
7 The Panchnama of the video DVD collected of the questions put to the victim, which was videographed. 29
8 The Yadi for the medical examination of the victim 36
9 The medical certificate of the victim issued by the Civil Hospital 37
10 The Yadi for the medical examination of the accused. 39
11 The medical certificate of the accused. 40 
12 Yadi written to register the offence. 46 
13 Extract note of the station diary 47 
14 Order of handing over of the investigation. 48 
15 The certificate of the victim issued by the S.S.G 50
16 The report regarding visit of place of offence. 51 
17 Forwarding note. 52 
18 The receipt of receiving of Muddamal. 53 
19 Report of the chemical analysis 53 
20 Report of the biology analysis 55 
21 Report of the serological analysis 56 

4.7 After completion of the oral as well as the documentary evidence of the prosecution, the statement of the accused under section 313 of the Cr.P.C was recorded, in which, the accused stated that the complaint was a false one and he was innocent.
4.8 At the conclusion of the trial, the learned Trial judge acquitted the accused of the offences he was charged with.
4.9 Being dissatisfied, the State of Gujarat as well as the mother of the victim have come up with their respective acquittal appeals.
5. Submissions on behalf of the State:
5.1 Mr. H.K. Patel, the learned APP appearing for the State vehemently submitted that the Trial Court committed a serious error in acquitting the accused by holding that the prosecution has failed to prove its case against the accused beyond reasonable doubt. The learned APP would submit that the Trial Court committed a serious error in disbelieving the case put up by the prosecution on the ground that no injuries were noticed on the private part of the accused as well as on the private part of the victim. The learned APP pointed out that there is an incriminating admission by the accused before the Doctor while narrating the history and such an incriminating admission goes to show that the accused had taken the victim to his house and, thereafter, had closed the door. The learned APP would submit that immediately, thereafter, the victim ran to her house and disclosed about the sexual assault before her mother. The learned APP would submit that the immediate disclosure of the event by the victim to her mother is a relevant fact under section 6 of the Evidence Act. He submitted that the medical opinion on record is to the effect that although no signs of force were noticed, yet the vaginal penetration could not be ruled out. The learned APP also pointed out that the hymen of the victim was found to be torn. Mr. Patel submitted that the statement of the victim recorded under section 164 of the Cr.P.C corroborates her oral evidence before the Court. He submitted that the victim of rape is not an accomplice. Her testimony can be acted upon without corroboration in material particulars. He submitted that just because no injuries or swelling or redness was noticed on the private part of the victim at the time of her medical examination, by itself, would not be sufficient to disbelieve the entire case of the prosecution. Mr. Patel severely criticized the judgment of the Trial Court by submitting that the Trial Court committed a serious error in disbelieving the case on the erroneous impression that normally an injury would be caused to the male organ when sexual act is committed by a fully developed male with a girl of tender age who is virgin and as there was no injury of any nature noticed on the genitals of the accused, the case put up by the prosecution becomes doubtful. He submitted that it is not necessary that the male organ must suffer injury when sexual act is committed by a fully developed male with a girl of tender age. Mr. Patel submitted that this normally may be so, but is not a universal proposition of law.
5.2 In such circumstances, referred to above, Mr. Patel submitted that there being merit in this acquittal appeal, the same may be allowed, the judgment and order of acquittal passed by the Trial Court be quashed and set aside and the accused may be held guilty of the offence of rape punishable under section 376 of the IPC and be appropriately punished.
6. Submissions on behalf of the original complainant; 

6.1 Ms. Shilpa Shah, the learned counsel appearing for the original complainant vehemently submitted that the Trial Court completely misdirected itself while appreciating the evidence of the child witness, who herself is the victim. By and large, Ms. Shah has adopted all the submissions canvassed by the learned APP appearing on behalf of the State. Ms. Shah vehemently submitted that the Trial Court committed a serious error in arriving at the conclusion that the victim was tutored by her mother before she entered the witness box. Ms. Shah submitted that the Trial Court completely misread a part of the cross-examination of the victim wherein the victim has deposed that she was told by her mother to depose before the court exactly what the accused had done with her and also as told as told to her by her mother. Ms. Shah submitted that assuming for the moment that the mother of the victim might have said so, by any stretch of imagination, it cannot be said that the mother tried to tutor the victim with a view to give false evidence against the accused on account of the alleged enmity between the two families. Ms. Shah submitted that the Trial Court committed a serious error in disbelieving the entire case on the assumption that as the mother of the victim was at an inimical terms with the accused and his family, just with a view to teach a lesson to the accused and seek revenge, a false case came to be instituted against the accused. Ms. Shah would submit that the parents of a minor girl, who is a victim of sexual assault, would be extremely reluctant even to admit that any incident which is likely to reflect on her chastity had ever occurred. If the victim is a minor, the parents would apprehend that it would be difficult to secure an alliance with a suitable match from a respectable or an acceptable family. Ms. Shah also submitted that the Trial Court committed a serious error in appreciating the medical evidence on record. The doctor, in clear terms, has noted in the medical certificate that the hymen was torn, and although there were no signs of force, yet the vaginal penetration could not be ruled out. Ms. Shah,in the last, submitted that the impugned judgment of the Trial Court is absolutely silent so far as the incriminating admission of the accused before the doctor in the form of history is concerned. Ms. Shah submitted that the Trial Court should have kept in mind while appreciating the oral evidence on record, more particularly of the victim and the mother of the victim, that it would be difficult to find out a case which is bereft of embellishments, exaggeration, contradictions and inconsistencies. According to Ms. Shah, all the said things are natural. Minor contradiction or some exaggeration is bound to appear when ignorant and illiterate women are giving evidence. A prosecutrix, and that too, a minor girl, aged six years, is not an accomplice and her statement does not require a corroboration within the meaning of section 114-B (114-A) of the Evidence Act. The prosecutrix is a victim like any other victim of any other offence. In such circumstances, referred to above, Ms. Shah prays that there being merit in the acquittal appeal filed by the mother of the victim, the same may be allowed, the judgment and order of acquittal passed by the Trial Court be quashed and set aside and the accused deserves to be held guilty of the offence of rape punishable under section 376 of the IPC and should be appropriately punished.
7. Submissions on behalf of the accused: 

7.1 Mr. Madansinh Barod, the learned counsel appearing for the accused vehemently submitted that since the accused has been acquitted, we, in exercise of our appellate jurisdiction, should not interfere in the order of the Trial Court. He would submit that the view taken by the Trial Court is a reasonably possible view and, in such circumstances, the appellate court should not substitute it by its own view merely because that view is also possible on the facts of the case. Mr. Barod submitted that the presumption of innocence of an accused is strengthened by his acquittal. He would submit that there are no strong and compelling circumstances on record which rebut that presumption and conclusively establish the guilt of the accused. He submitted that the order of acquittal passed by the Trial Court cannot be termed as perverse or totally against the weight of the evidence.
7.2 Mr. Barod submitted that the Trial Court has acquitted the accused mainly on three grounds. First, the inconsistencies in the oral evidence of the victim and the mother of the victim; Secondly, the medical evidence on record is nil; and thirdly, on the ground that the prosecution is frivolous and instituted with an oblique motive on account of the enmity between the accused and the mother of the victim. Mr. Barod submitted that on all the above three counts, the Trial Court has assigned cogent reasons and, therefore, this Court may not disturb the well reasoned judgment of the Trial Court.
7.3 Mr. Barod submitted that even if the entire case of the prosecution is accepted as it is or is believed to be true, it is not one of rape, but at the most, it could be said to be a case of an indecent assault punishable under section 354 of the IPC. Mr. Barod went to the extent of submitting that it is not even a case of an attempt to commit rape punishable under section 376 read with section 511 of the IPC.
7.4 According to Mr. Barod, the submission canvassed by the State as well as by the complainant as regards the incriminating admission alleged to have been made by the accused before the doctor at the time of his medical examination in the form of a history is inadmissible in evidence. Mr. Barod submitted that at the time of the medical examination of the accused, the accused was in the police custody as he was already arrested. He submitted that any statement made by an accused while in police custody in the nature of an extra-judicial confession before a third person including the doctor would be hit by sections 25 and 26 of the Evidence Act.
7.5 Mr. Barod further submitted that a suggestion put by a defence counsel to a witness in his cross-examination has no evidentiary value, and even if the same is incriminating in any manner, would not bind the accused as the defence counsel could not be said to have any implied authority to admit the guilt or the facts incriminating the accused. Mr. Barod submitted that if the suggestions are taken as a whole, they definitely would go to show that the victim was in company of the accused and she came home running and narrated about the act alleged to have been committed by the accused inside his house at the earliest. However, according to Mr. Barod, such suggestions should be ignored and on the basis of such suggestions, no inference can be drawn against the accused that he admitted the facts referred to in the suggestions. Mr. Barod submitted that such suggestions could be a part of the defence strategy to impeach the credibility of the witness. He submitted that the proof of guilt required of the prosecution does not depend on the suggestion made to a witness. Mr. Barod submitted that the judgment and order passed by the Trial Court, acquitting the accused, may not be disturbed and both the acquittal appeals deserve to be dismissed.
8. Evidence on record: 

8.1 We may start with the first information report, Exh.13, lodged by the mother of the victim, i.e, the P.W. 1. The first information report lodged by the mother of the victim dated 14th June, 2016 at 21:30 hours in the late evening reads thus:
“My name is Ranjanben, wife of Maheshbhai Kishanbhai Vasava, Hindu, age - 30 years, occupation - Asha worker, residing at Kothi Faliya, Zadeshwar, Taluka and District - Bharuch, Mobile No. 95868 27359 

On being asked personally, I state the facts of my complaint that I have been residing with my family at the aforesaid address. I have been working as Asha Worker at Shukaltirth Primary Health Centre past two months. If there are any cases of delivery in the village, I have to take the patients to Bharuch Civil or Shukaltirth. When I submit the bill of the case, I get remuneration of Rs. 30/- per case from the Shukaltirth P.H.C. My husband has been working in Niti Vishwakarma company at Tulsidham. I have two daughters. The elder daughter is Reshma and younger daughter is XXXXX, aged 6 years and 11 months. Her date of birth is 07/07/2009. Presently, she is studying in standard 2 at Kanya Shala in Zadeshwar. In this manner, I earn my livelihood.
Today in the morning at about ten o'clock, weight and height of malnutritioned children had to be measured at Kubai Tekri Anganwadi. The programme concluded at about half past one. Meantime, my both daughters returned to the house from the school at about half past twelve. I had breakfast with my daughters. My younger daughter XXXXX went with Ankush, son of Alpesh, who resides five to six houses far, for playing at two o'clock in the afternoon. My elder daughter went to the house of Hiral Pravinbhai for playing.
Thereafter, I went to fetch water from the hand pump near my house at about quarter to four o'clock. When I returned home after fetching water, my daughter XXXXX came running to house at about four o'clock. She was extremely scared and her clothes were smeared with soil. Therefore, I inquired with her that, "XXXXX, what has happened?" XXXXX told me that, "When I and Ankush were playing near his house, Jinka uncle took me to his house and closed the door. Thereafter, he removed my clothes. Jinka uncle also removed his clothes. He made me lie down on the ground. He applied oil on my vaginal part. Thereafter, he told me that, "If you scream, I will throw you in the river.” By saying so, when Jinka uncle tried to insert something in my vagina, I felt pain.” Hearing this, I got disturbed. So, I examined private part of my daughter XXXXX. It was swollen and had become reddish. XXXXX has not passed urine till now. She stated that she feels pain in her private part. Thereafter, I went to inquire with Jinka @ Sunilbhai Rameshbhai Vasava, residing in my locality, and asked him as to what act you have committed with my daughter XXXXX. Upon that, he replied to me that, "I have not done anything.” and saying so he went away.
Thereafter, my husband returned home from the job at six o'clock in the evening. As he was informed about this incident, he went to the village to inquire about Sunil Rameshbhai Vasava @ Jinka, but he was not found. Thereafter, as XXXXX was not able to urinate, we, both, decided to lodge the complaint with the police in this regard. At present, I have come to the police station with my husband for lodging the complaint.
Sunil @ Jinka Rameshbhai Vasava, residing at the Kothi Faliya, Zadeshwar, Taluka & District - Bharuch, took my daughter XXXXX, aged 6 years, 11 months, to his house between half past three and four o'clock in the evening, while she was playing near his house, and closed the door and threatened her that, "If you scream, I will throw you in the river.” and forcefully committed sexual intercourse with her and thereafter, he went away somewhere. Therefore, it is my lawful complaint against him. My witnesses are those persons, whose names have been mentioned in the complaint and whose names are revealed during the investigation.
8.2 We shall now look into the statement of the victim recorded by the 5th Addl. J.M.F.C., Bharuch under section 164 of the Cr.P.C. The statement reads thus:
“My name is XXXXX Maheshbhai. I do not know as to how old I am. I am studying in the second standard. I am residing in Kothi Faliya. My father is working and mother is a housewife.
On that day, I returned from school and went to play at Ankush's house. Ankush, Kaliyo, Ganesh and I were playing there. Thereafter, suddenly, all began to run. Thereafter, Jino Kako arrived in the backyard of Ankush. He picked me up and took me to his house. Thereafter, he closed the door. He applied oil into my vagina and removed my clothes. He removed his clothes also. Thereafter, he committed sexual intercourse. Thereafter, he opened the door. I ran away to my house from there. Thereafter, I told my mother that, Jina Kaka had closed the door and committed sexual intercourse (Gaand Mari). Thereafter, my mother, father and I went to the police station. Thereafter, I was taken to the hospital.
Date:22/06/2016 Before me, Time: 05:15 hours Sd/-(Illegible) XXXXX 5th JMFC, Bharuch Signature of Victim 

8.3 We shall now go straight to the oral evidence of the mother of the victim, i.e, the P.W. 1-Ranjanben Maheshbhai Vasava, Exh.12. The P.W. 1, in her evidence, has deposed that the victim happens to be her daughter. The victim was born on 7th July, 2009. At the time of the incident, the victim was a second standard student studying in the Kanya Shala. The incident had occurred on 14th June, 2016. On the day of the incident, at about 4:00 O'clock in the evening, the P.W. 1 had gone to fetch water at the hand pump installed in the locality. At that point of time, the victim came home with lot of fright in her. The P.W. 1 noticed that there was lot of dust on the clothes and head of her daughter. She inquired with her daughter as to what had happened. The daughter replied that while she was playing with Ankush near his house, the accused took her to his house. The accused closed his house and took off her clothes. The accused also took off his clothes and tried to insert something in the private part of the victim. Some oil was also applied by the accused on the private part of the victim and the victim was threatened that if she would shout or scream, then she would be thrown in the river. The P.W. 1 has deposed that on hearing all this from her daughter, she immediately examined the private part of her daughter. She has deposed that the private part of her daughter was found to be red and swollen. The P.W. 1 immediately, thereafter, went to the accused and confronted him about the incident. On the P..W 1 inquiring with the accused as to why he had done such a thing with his daughter, the accused denied having done anything to her daughter and that the daughter was speaking lies. The P.W. 1 has further deposed that on her husband arriving home from the job, the entire incident was narrated before him. The husband also went out in search of the accused. However, the accused was not to be found. The victim was unable to pass urine. Thereafter, they all went to the police station and lodged the first information report. The P.W. 1 has deposed that her first information report was taken down by the police and she also handed over the clothes of her daughter. Thereafter, they all went to the Bharuch Civil Hospital for the medical examination of the victim and, thereafter, to the S.S.G. Hospital, Vadodara for further medical examination. She has deposed that, thereafter, her daughter, i.e, the victim was produced before the Magistrate and the Magistrate recorded the statement of her daughter. In the cross-examination by the defence counsel, she has deposed that there are many people residing in the vicinity of her house and the locality is quite populated. A suggestion was put to the P.W. 1 by the defence counsel, and in reply to such suggestion, the P.W. 1 deposed that when her daughter came home crying and very much frightened, the people residing in the neighbourhood were also present. The P..W.1 denied the suggestion put to her by the defence counsel that she used to pick up quarrel quite often with the mother of the accused. She admitted that there is only one hand pump in the locality and the mother of the accused also comes to fetch water from the hand pump. To a suggestion put to her, she deposed that it was true that at the time of the incident, the victim was playing near the house of Ankush. She has deposed in her cross-examination that when she examined the private part of the victim, she noticed something greasy on her private part. She has deposed that after examining the private part of the victim, she did not deem fit to go to a doctor. She has deposed that the mother of the accused was not present at her house at the time of the incident. Few other suggestions put by the defence have been denied.
8.4 The prosecution, thereafter, examined P.W. 2, i.e, the victim. Her evidence is at Exh.14. Since the oral evidence of the victim is very short, we propose to reproduce the entire evidence:
Spl. POCSO Case No.53/2016 
Exhibit – 14 
Deposition of P.W.No. 36 

I do hereby on solemn affirmation state that, 

My name :- Victim 
Father’s name :- Maheshbhai Vasava 
Religion :- Hindu 
Age about :- 08 Years, 
Occupation :- Study 
Res. at :- Kothi Faliya District :- Bharuch.
============================== 
Examination-In-Chief by the Ld. A.P.P. Mr. G.R.Parmar 

As the victim is eight years old and considering her age, her deposition is not found proper to be recorded in the court room but it is found proper to be recorded in the chamber at 02:45 hours in the noon. Therefore, the victim, her mother, Ld. Government Pleader Mr. G.R.Parmar and his Junior Pinalben Parmar and Ld. advocate of the accused Ms. Artiben Mistry are present in the chamber today. The accused has been made to stand outside the door of the chamber in such a way that the victim cannot see him and he cannot hear the questions put to the victim.
Question: What is your name ? 
Answer: Victim 
Question: What is your mother's name ? 
Answer: Vasava Ranjanben.
Question: What is your father's name ? 
Answer: Maheshbhai Vasava 
Question: Where do you live ? 
Answer: Kothi Faliya, Bharuch.
Question: How many sisters do you have ? 
Answer: I have one sister.
Question: What is your sister's name ? Answer: Reshma.
Question: In which standard and in which school are you studying ? 
Answer: I am studying in third standard in Girls school.
Question: Did you go to school on the day of incident ? 
Answer: Yes, I went to school.
Question: At what time did you return from school ? 
Answer: I returned at five o'clock.
Question: When does the five o'clock occur ? 
Answer: In the evening.
Question: Where did you go after returning from school ? 
Answer: I went to Jinka's house to play with the other boys.
Question: Who other persons were there ? 
Answer: No other person except Jinka was there. Now, I state that, I was playing with the other boys.
Question: Where did you go while playing ? 
Answer: Jinko took me to his house.
Question: Did other boys come with you ? 
Answer: No.
Question: Who was there at Jinka's house ? 
Answer: No other person was there.
Question: What did Jinka do in the house ?
Answer: Jinka closed the door and removed my clothes.
Thereafter, he applied coconut oil into my vagina and committed sexual intercourse (Gaand Mari). Thereafter, he told me that, if you tell this to anyone, I will throw you in the river.
Question: What happened to you thereafter ? 
Answer: I felt burning sensation in my private part.
Question: Where did you go thereafter ? 
Answer: Thereafter, I went to my house and told it to my mother.
Question: Did you feel anything else in your private part? 
Answer: I was feeling nothing else. 
The accused person, alongwith other three accused persons produced today from the custody, is brought inside the chamber from the door of the chamber. As the accused person is instructed to identify the victim, he has identified the victim.
Ld. advocate for the accused person has produced the written questions to be asked to the victim. It is produced and given Exhibit No.15. These questions are asked to the victim through court.
On the day of incident, my school time was from ten o'clock to five o'clock in the evening. I returned from school at five o'clock. When I returned home from the school, my mother was present at home. I do not know as to at what time, I went to play at Ankush's home. Ankush and Kaliyo were playing with me. We all were playing outside the house of Ankush. At that time, Ankush's parents were not at home. I know Jinka past many days. The house of Jinka is little far from the house of Ankush. Jinko was not playing with me or other children. Jinko took me to his house without saying anything to me. When Jinko took me, Ankush was standing next to me. When Jinko took me to his house, no one was present in his house.
My mother and Jinka's mother had quarreled. I do not know the reason for the quarrel. Jinka's mother had quarrel with my mother before this incident. I do not know as to why the quarrel took place. It is not true that, Jinka had not committed any evil act with me.
Police came to me and asked me as to what Jinka had committed with me. My mother took me to the hospital. I do not know as to which hospital she took me. Doctors did not inquire with me. I did not state anything to the doctors. Police did not take me to any other place except the hospital.
My mother told me to state the fact about the act committed by Jinka Kaka as stated by her. “ 

8.5 We shall now look into the evidence of the P.W. 13, Dr. Rupesh Jayramprakash Divakar, Exh.35. Dr. Divakar, in his evidence, has deposed that on 14th June, 2016, he was discharging his duties as a medical officer at the Civil Hospital, Bharuch. At that time, the victim was brought at the Civil Hospital with a Yadi issued by the “C” Division Police Station, Bharuch. The Yadi was issued for the purpose of medical examination. The victim was accompanied by her mother and a woman police constable. The doctor has deposed that the victim was of a very tender age and her menstruation had not started. There was no pregnancy. On inquiring with the victim as to what had happened, the victim was unable to give any answer as she was crying a lot. In such circumstances, the doctor inquired with the mother of the victim as to what had happened and the mother narrated before the doctor about the incident. The P.W. 13, Dr. Divakar inquired with the victim as to whether the penis had gone inside her private part and whether there was any ejaculation of semen or not. The victim replied that she had no idea about the same. The doctor has deposed that the clothes were changed. The undergarments were also changed. The victim had taken bath. Her pulse and temperature were found to be normal. No injuries were noticed on the body of the victim. As there was no gynecologist at the Bharuch Civil Hospital, the victim was referred to the S.S.G Hospital, Vadodara. The samples of nails, saliva, blood and vaginal swab were collected and those were forwarded to the FSL at Surat for chemical analysis. In the cross-examination, the doctor has deposed that the mother of the victim had informed him that there was lot of burning sensation felt by the victim. He has deposed that no swelling was found or noticed on the private part of the victim. At the end of his cross-examination, he has deposed that he had not examined the private part of the victim. 
8.6 The prosecution examined P.W. 14, Dr. Vinod Upadhyay, Exh.38. This doctor has deposed as regards the medical examination of the accused. Dr. Upadhyay, in his evidence, has deposed that on 15th June, 2016, he was on duty as a medical officer at the Civil Hospital, Bharuch. At that point of time, the accused was brought with a police Yadi issued by the “C” Division Police Station for medical examination. Dr. Upadhyay has deposed that on inquiring with the accused as to what had happened, the accused replied “yesterday, in the evening, i.e, on 14th June, 2016 between 3:00 and 4:00 O'clock, I was playing with the victim and, thereafter, I took the victim to my house to play and closed the door” He has deposed that on examination of his private part, it was found that the same was normal. The erection and ejaculation reflections were found to be normal. The samples of nails, saliva, blood and swab were collected and those were sent to the FSL, Surat for chemical analysis. The medical examination of the accused revealed that he had no medical or any surgical sickness. No fresh or old infection on the skin was found or noticed. Mentally, the accused was stable and was found to be absolutely normal. He was found to be fit to perform sexual intercourse. The doctor issued the medical certificate in this regard at Exh.40. In the cross-examination of Dr. Upadhyay, only one question was put by the defence counsel. The question is in the nature of a suggestion. The reply of Dr. Upadhyay to such suggestion was that it was true that except what had been stated in the case papers in the form of history, no further history was given by the accused. He has deposed that no traces of oil were noticed on the private part of the accused.
8.7 The prosecution, thereafter, examined P.W. 15, Dr. Bijal Dilipkumar Rami, Exh.42. Dr. Rami, in her evidence, has deposed that on 14th June, 2016, she was on duty as a medical officer at the S.S.G. Hospital, Vadodara. The victim was brought at the hospital with a police Yadi issued by the “C” Division Police Station, Bharuch for medical examination. Dr. Rami has deposed that the victim was accompanied by her mother and a lady police constable. Dr. Rami has deposed that she inquired with the victim as to what had happened and the victim narrated before her that on 14th June, 2016, while she was at her house, the accused picked her up and took her to his house. The accused, thereafter, took off her clothes. Dr. Rami has deposed that it was also conveyed to her by the victim that such a thing had happened on two to three occasions in the past and, thereafter, as some noise was heard outside the house, the accused released the victim and the victim, thereafter, ran away to her house. She has deposed that on inquiring with the victim whether the penis had gone inside her private part and whether there was any ejaculation of semen, the victim replied that she had no idea about the same. Dr. Rami has deposed that the hymen of the victim was found torn. According to her, there were no signs of any force and, in such circumstances, it was difficult for her to give any opinion whether the victim was subjected to sexual intercourse or not. Dr. Rami issued the medical certificate in this regard which has been admitted at Exh.44. In her crossexamination, she has deposed that it was true that she did not noticed anything greasy on the private part of the victim.
8.8 The prosecution, in the last, examined P.W. 17- Bharatsinh Ranjitsinh Gohil, Exh.49, i.e, the Investigating Officer. The Investigating Officer, in his evidence, has given more than a fair idea about the entire investigation carried out by him. In his cross-examination, the Investigating Officer has deposed that while the statement of the victim was being recorded in the question answer form, the mother of the victim was present. He denied the suggestion put to him that he had not recorded the statements of the people residing in the neighborhood of the victim. All other suggestions put by the defence have been denied by the Investigating Officer.
8.9 In the medical certificate, Exh.44, issued by the S.S.G Hospital, Vadodara, the following has been noted: 

Urethral meatus and vestibule Normal 
Labia Majora Normal 
Labia Minora Normal 
Fourchette & introitus Normal 
Hymen perineum Hymen torn 
External urethral meatus Normal 
Penis - 
Scrotum - 
Testes - 
Clitoro penis - 
Labio scrotum - 
Any other - No signs of force Vaginal penetration cannot be ruled out.”
ANALYSIS 

9. Having heard the learned counsel appearing for the parties and having gone through the materials on record, the only question that falls for our consideration is whether the Trial Court committed any error in acquitting the accused of the offence of rape.
10. We are conscious of the fact that we are deciding an acquittal appeal. The principles relating to the powers of the Appellate Court while dealing with an appeal against the acquittal have been enumerated by the Apex Court in Chandrappa and others v. State of Karnataka (2007) 4 SCC 415 : (2007 Cri LJ 2136). The Apex Court held as follows :- 

"15. Bare reading of Section 378 of the present Code (Appeal in case of acquittal) quoted above, makes it clear that no restrictions have been imposed by the Legislature on the powers of the appellate Court in dealing with appeals against acquittal. When such an appeal is filed, the High Court has full power to reappreciate, review and reconsider the evidence at large, the material on which the order of acquittal is founded and to reach its own conclusions on such evidence. Both questions of fact and of law are open to determination by the High Court in an appeal against an order of acquittal.
16. It cannot, however, be forgotten that in case of acquittal, there is a double presumption in favour of the accused. Firstly, the presumption of innocence available to him under the fundamental principle of criminal jurisprudence that every person should be presumed to be innocent unless he is proved to be guilty by a competent Court of law. Secondly, the accused having secured an acquittal, the presumption of his innocence is certainly not weakened but reinforced, reaffirmed and strengthened by the trial Court.”
11. Thereafter the Apex Court culled out the following principles :- 

"42. From the above decisions, in our considered view, the following general principles regarding powers of appellate Court while dealing with an appeal against an order of acquittal emerge; 

(1) An appellate Court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded; 

(2) The Code of Criminal procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate Court on the evidence before it may reach its own conclusion, both on questions of fact and of law; 

(3) Various expressions, such as, 'substantial and compelling reasons', 'good and sufficient grounds', 'very strong circumstances', distorted conclusions' 'glaring mistakes', etc. are not intended to curtail extensive powers of an appellate Court in an appeal against acquittal. Such phraseologies are more in the nature of 'flourishes of language' to emphasize the reluctance of an appellate Court to interfere with acquittal than to curtail the power of the Court to review the evidence and to come to its own conclusion.
(4) An appellate Court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent Court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial Court.
(5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate Court should not disturb the finding of acquittal recorded by the trial Court.”
12. The Supreme Court in the case of K. Venkateshwarlu vs. State of A.P., reported in 2012 Cri.L.J., 4388. has succinctly explained the scope of an acquittal appeal. We may quote the relevant observations:
5. The High Court has set aside order of acquittal. This court has repeatedly stated what should be the approach of the High Court while dealing with an appeal against acquittal. If the view taken by the trial court is a reasonably possible view, the High Court cannot set it aside and substitute it by its own view merely because that view is also possible on the facts of the case. The High Court has to bear in mind that presumption of innocence of an accused is strengthened by his acquittal and unless there are strong and compelling circumstances which rebut that presumption and conclusively establish the guilt of the accused, the order of acquittal cannot be set aside. Unless the order of acquittal is perverse, totally against the weight of evidence and rendered in complete breach of settled principles underlying criminal jurisprudence, no interference is called for with it. Crime may be heinous, morally repulsive and extremely shocking, but moral considerations cannot be a substitute for legal evidence and the accused cannot be convicted on moral considerations. The present appeal needs to be examined in light of above principles. “ 

13. Keeping in mind the aforesaid principles, we have considered the case in hand. At the cost of repetition, we state that we are aware that we are dealing with an appeal against the acquittal. We have, therefore, dealt with the evidence, both oral and documentary, in detail.
14. Before we deal with the rival contentions of the parties, it would be appropriate to refer to the relevant findings recorded by the learned Sessions Judge while acquitting the accused.
“(16) Gynecologist Bijalben Dilipkumar states in her deposition vide Exhibit-42 that the victim was asked as to whether the penis was inserted into her private part or not and whether ejaculation took place or not? I do not know about it. She has also stated that on examining the victim, her hymen was found ruptured. As per my opinion, there did not appear to be any marks of use of force, therefore, it cannot be stated clearly as to whether physical intercourse took place or not. When any adult person commits physical intercourse with a young girl aged six years, marks of injuries would certainly be found on the private part of the victim. In this case, no marks of any injury were noticed. Moreover, there can also be many other reasons for the rupture of hymen apart from physical intercourse. Thus, as there did not appear any such signs of injury in the vagina of the victim, it cannot be believed that the victim was subjected to sexual intercourse and the doctor has also opined that it cannot be stated clearly regarding the same. Thus, the case of the Prosecution is not corroborated by the medical evidence.
(18) Moreover, the victim also states in her crossexamination that my mother had told me to state what she had stated about what Jinakaka had done with her. Thus, it appears that the mother of the victim had taught her as to what type of deposition the victim should give. As per various Judgments of the Hon'ble High Court, the deposition of the child witness should be taken into consideration minutely and cautiously and with utmost care and it should be analyzed. Looking to the fact as stated above by the victim as to how the evil act was committed with her and as to how her mother had told what should be stated in the deposition, the deposition of the victim does not appear to be trustworthy and such fact is also corroborated by the deposition of the doctor. Thus, the deposition of this victim is not believable and cannot be relied upon.
(19) The accused has taken defense that there is only one hand-pump in his area and quarrels used to ensue over the issue of water quite often between the mother of the accused and the mother of the victim and therefore, the accused has been falsely implicated in this case. The complainant has admitted in her cross examination that there is only one hand-pump in her area and the mother of the accused also came there to fetch water. However, she has denied the fact that quarrel used to ensue quite often in the past with the mother of the accused, but the victim has stated in her cross examination that quarrel took place between my mother and mother of Jinka, I don't know as to why the quarrel took place, but the quarrel took place between my mother and mother of Jinka before the present incident. Thus, the defense side has tried to bring on record as to why he has been implicated in this case, which is corroborated by the cross examination of the victim and the complainant.
(23) Serological report is received at Ex:56 about the clothes and the medical samples of the accused and the victim which were sent to F.S.L., Surat. But, it does not mention presence of semen of the accused on the clothes of the victim or vaginal swab. Thus, scientific evidence also has not corroborated the fact of Prosecution case.
(24) Moreover, it is an important fact that when an adult male commits intercourse with a six year old minor girl, some injuries would be caused on private parts of the male, or scratches occur or it turns reddish. The investigating officer has also carried out medical examination of the accused and the said medical examiner namely Dr. Vinodbhai Upadhyay has been examined at Ex:38. He has not stated any fact as to whether there were signs of injuries on private parts of the accused. Therefore, as there are no signs of injuries on private parts of the accused, it may be possible that he did not state any such fact. Thus, the said fact also raises suspicion about the case of Prosecution. “ 

15. Having regard to the evidence on record, it is established beyond any doubt that on the date of the incident, something happened inside the house of the accused. If the accused claims to be absolutely innocent or claims to have been falsely implicated in the alleged offence, then we are afraid such a claim gets falsified by the incriminating admission of the accused himself before the doctor in the form of history given by him in the course of his medical examination. Unfortunately, this part of the evidence does not appear to have been even looked into or touched by the Trial Court. We do not find any merit in the contention of Mr. Barod, the learned counsel appearing for the accused that the history given before the doctor by the accused should be ignored or should not be looked into as the same is inadmissible in evidence. Mr. Barod has confused himself with the confession and admission. It is true that if the history given by the accused before the doctor is strictly in the nature of a confession, then such confession would be inadmissible in evidence being hit by sections 25 and 26 of the Evidence Act. However, if the history is in the nature of an incriminating admission, then the same would be admissible and relevant under section 21 of the Evidence Act. In the case on hand, the accused cannot escape from the fact that he made an incriminating admission before the doctor admitting his presence on the date of the incident at the relevant point of time and also admitting the fact that the victim was in his company and that he took the victim to his house and closed the door. What happened thereafter inside the house is the only thing which needs to be looked into closely. The matter does not rest at the stage of incriminating admission alone before the doctor in the form of history. In the crossexamination of the P.W. 1, the mother of the victim, a very damaging suggestion has been put to her by the defence counsel and the reply to such suggestion establishes the fact that the victim being frightened came home crying. We also take notice of the suggestion put by the defence to the P.W. 14, Dr. Vinodkumar Upadhyay. In the cross-examination of Dr. Upadhyay, a suggestion was put by the defence that except the history recorded in the medical papers, no further history was given by the accused. The suggestion was accepted by Dr. Upadhyay and Dr. Upadhyay has deposed that it was true that except the history noted in the case papers, no other history was given by the accused which is suggestive of the fact that the accused has accepted that he stated before the doctor while narrating the history that on the date of the incident, he was playing with the victim and, thereafter, he took the victim to his house and closed the house. At this stage, we shall deal with the contention canvassed by Mr. Barod as regards the evidentiary value of such suggestions by the defence counsel.
16. A Division Bench of this Court, to which, one of us J.B. Pardiwala, J., was a party in the case of Tarjubhai Narsingbhai Rathwa vs. State of Gujarat, 2014 (I) GLH 781 had the occasion to consider the evidentiary value of any concession or admission of a fact by a defence counsel. We quote the relevant observations made in the said judgment:
25. At this stage, we deem it necessary to deal with an important submission canvassed by Mr.Darji appearing for the accused-appellant. Mr.Darji strenuously submitted that a suggestion put by a defence counsel to a witness in his cross-examination has no evidentiary value and even if the same is incriminating in any manner would not bind the accused as the defence counsel has no implied authority to admit the guilt or the facts incriminating the accused. Mr.Darji submitted that if the suggestions are taken as a whole they definitely points towards the guilt of the accused establishing his presence at the time of the incident with a knife but that, by itself, would not be sufficient to hold the accused guilty of the offence of murder. In short, the sum and substance of the submission of Mr.Darji is that such suggestions should be ignored and on the basis of such suggestions no inference can be drawn against the accused that he admitted the facts referred to in the suggestions. Mr.Darji further submitted that such suggestions could be a part of the defence strategy to impeach the credibility of the witness. According to Mr.Darji the proof of guilt required of the prosecution does not depend on the suggestion made to a witness.
26. Although Mr.Darji placed no reliance on any precedent to fortify his submission yet a little research on our own revealed that a Division Bench of this High Court in the case of Koli Trikam Jivraj and Another v. The State of Gujarat reported in 1969 Criminal Law Journal 409 has taken such a view that the suggestions put in cross-examination are no evidence at all against the accused and on the basis of such suggestions no inference can be drawn against the accused that he admitted the facts referred to in the suggestions.
27. We are afraid we are unable to persuade ourselves to subscribe to the views expressed by their Lordships in the case of Koli Trikam Jivraj (supra) but as the decision is of a Division Bench and binding to a coordinate Bench we must discuss the same and ascertain whether the view taken in it still holds good in light of the Supreme Court decisions later in point of time.
28. In Koli Trikam Jivraj (supra) during the course of cross-examination questions were put to witnesses, namely, Dharamsinh and Premji by the lawyer of the accused which unmistakably indicated that the accused nos.1 and 2 admitted that a fight had taken place between them on one side and Dharamsinh and Talsinh on the other during the night of the occurrence. In the cross-examination of Dharamsinh, it was suggested by the lawyer of the accused that Talsinh and he had severely beaten the accused nos.1 and 2 and he was falsely implicating the accused in order to save themselves from a case that might be filed against them.
A similar suggestion was also made in the crossexamination of Premji Prag and the suggestion was as follows:
“Q: Is it true that your two sons beat accused Nos. 1 and 2 very severely outside your vadi land? 

28.1 The answer was as under: A.: It is not true that my two sons Dharamshi and Talshi severely belaboured accused No. 1, No. 2 outside my vadi. I did not come to know either from Dharamshi or from Chhagan that they had beaten the opponents. It is not true that I wanted to concoct the evidence in this case," 

28.2 The trial Court took into consideration such suggestions and held the accused persons guilty by making the following observations: This line of cross-examination as pointed out earlier would unmistakably show that accused Nos. 1 and 2 admit that a fight did take place between them on one side and Dharamshi and Talshi on the other side during the night of occurrence. If that is proper inference to be drawn, then field of inquiry becomes very narrow. Only question then remains is whether that fight took place inside vadi land of Premji Prag or outside it If it took place inside vadi land of Premji Prag, why accused Nos. 1 and 2 came inside vadi land on the night of occurrence and that too at unearthly hour of midnight . . . .Evidence against accused Nos. 1 and 2 is that they admit that a fight had taken place between them and Dharamshi and Talshi on the other hand. The question asked in the crossexamination of Dharamshi and Premji Prag is to the effect that Dharamshi and Talshi, sons of Premji, beat accused Nos. 1 and 2 during the night of the occurrence just outside their vadi land. This question leaves no room for doubt that accused Nos. 1 and 2 admit that fight did take place between accused Nos. 1 and 2 on the one hand and Dharamshi and Talshi on the other hand. Mr. Shah had urged that statement of accused has to be accepted as a whole or has to be rejected as a whole. That principle does not arise in this case at all because I am not accepting inculpatory part of the statement and rejecting exculpatory part as inherently improbable.”
28.3 During the course of arguments, the learned Public Prosecutor appearing for the State highlighted before their Lordships the observations, referred to above, made by the trial Court and submitted that the view taken by the trial Court relying on such suggestions was correct and the conviction deserved to be confirmed.
28.4 The Division Bench did not agree with the submission canvassed by the learned Public Prosecutor and negatived the same by observing as under: 15. To put it shortly Mr. Nanavati in advancing this argument merely repeated the main ground on which the conviction of the appellants was based by the learned Sessions Judge viz., that the accused No. 1 and accused No. 2 admitted their presence at the scene of the offence and that they were beaten by Dharamshi and Talshi. If the lawyer of the accused puts a suggestion to a prosecution witness that a particular event happened, or happened in a particular manner, then it cannot be implied that the lawyer commits himself to such an assertion. Suggestions put in cross-examination are no evidence at all and on the basis of such suggestions no inference can be drawn against the accused that he admitted the facts referred to in the suggestions. It is possible that in putting suggestions the lawyer of the accused, if he thinks fit and proper, may not put the entire case of the accused in the cross examination of a prosecution witness.
16. Moreover the lawyer who appears for the accused keeping in mind the facts of the case that he defends, has the right to take up a defence that he thinks just and proper. In Nga Ba Sein v. Emperor, 37 Cri LJ 293 = (AIR 1936 Rang 1), the facts were that the accused was charged for committing murder of his brother-in-law. The defence taken by the accused was that he had not caused the injury. In the Sessions Court the lawyer appearing for the accused openly advised his client to admit the assault and plead the right of private defence but the accused was stubborn and persisted in denying altogether his liability In the crime. The learned Sessions Judge did not allow the lawyer to take up the plea of right of self-defence and the High Court hearing the appeal observed:-- 

"Moreover, in this particular case it is not correct to say that the right of self-defence was not pleaded. It was pleaded by the pleader who was appearing for the appellant and if the pleader of the accused cannot set up a defence on his behalf, then I would ask what is the use of his appearing at the trial at all. The accused himself may on his own behalf take up a line of defence but it is equally open to his pleader on his behalf to take up another and alternative line of defence.” 

Therefore, the accused is entitled to the benefit of the plea set up by the lawyer but it cannot be said that the plea or defence which his lawyer puts forward must bind the accused. The reason is that in a criminal case a lawyer appears to defend the accused and has no implied authority to make admissions against his client during the progress of the litigation either for the purpose of dispensing with proof at the trial or incidentally as to any facts of the case. See Phipson's Manual of Evidence, Eighth Edition Page 134. It is, therefore, evident that the role that a defence lawyer plays in a criminal trial is that of assisting the accused in defending his case. The lawyer has no implied authority to admit the guilt or facts incriminating the accused. The argument of Mr. Nanavati that suggestion put by the lawyer of the accused in the cross-examinations of the prosecution witnesses amounts to an admission under Section 18 of the Indian Evidence Act cannot be accepted.
17. Now in the present case it is in evidence that the question that Dharamshi and Talshi had caused injuries to the appellants was even put to Premji Prag who was not an eye-witness to the incident. It seems question in form of suggestion had been put in the crossexamination of the prosecution witness for question's sake. In their statements under Section 342 accused No.  1 and accused No. 2 stated that on the night of occurrence the bullock of accused No. 1 had gone away from his yadi land and, therefore, they had gone in the search of the bullock, in the field situated within the revenue limits of village Khakhoi. When they were passing through one field two persons came there, beat them and they fell down. The accused did not know who these persons were or to which village they belonged. Thus it was not the case of the accused in their statements that they were beaten near the field of Premji Prag and at the time at which Dharamshi and Talshi were beaten. It was not their case that there was a fight between them and their assailants. The suggestions put by their lawyer in cross examination of Dharamshi and Talshi were thus not adopted by the accused in their statements under Section 342 of the Criminal Procedure Code. It is also to be noted that the attention of the appellants was not drawn while recording their statements under Section 342 of the Criminal Procedure Code to these denials of the suggestions put in the crossexamination of Dharamshi and Premji and no circumstance can be used against the accused unless he has been given an opportunity to explain the same. Thus from mere fact that suggestions were made in the cross examination of the prosecution witnesses to the effect that Dharamshi and Talshi had beaten the appellants outside the vadi land, no inference can be drawn that the accused had admitted the same.
18. There is another principle which is equally to be borne in mind that suggestions made in the crossexamination of prosecution witnesses cannot be used to fill in the gaps in the evidence of prosecution. Burden lies on the prosecution to prove the guilt of the accused. Such suggestions cannot stand higher than the statement of the accused under Section 342 of the Criminal Procedure Code. The statement of the accused under Section 342 of the Criminal Procedure Code cannot be used against the accused unless the prosecution proves its case against him by satisfactory evidence. At times it is used only to lend an assurance to the case of the prosecution case but it can never be used to fill in the gap in the evidence of prosecution. The learned Sessions Judge was obviously, in our opinion, in error in relying on the suggestions put in the cross-examination of prosecution witnesses Dharamshi and Premji by the lawyer of the accused, accepting them as statements of the accused and binding on them, and treating the case put forward therein as a circumstance against the accused. In the present case the evidence led by the prosecution is totally insufficient to prove that the accused had committed the crime and no question of lending assurance to prosecution arises. The circumstance that suggestions were put to the prosecution witnesses in their cross-examinations that Dharamshi and Talshi beat the accused Nos. 1 and 2 outside their vadi cannot be used against the accused to fill in the gap in the evidence of prosecution.
29. To our mind, with great respect, the views expressed by Their Lordships in Koli Trikam Jivraj (supra) does not lay down the correct proposition of law in view of the subsequent decisions of the Supreme Court on the issue in question.
30. In Tarun Bora alias Alok Hazarika v. State of Assam reported in 2000 Cri.LJ 4076, a three Judge Bench of the Supreme Court was dealing with an appeal against the order passed by the Designated Court, Guwahati, in TADA Sessions case wherein the appellant was convicted under Section 365 of the Indian Penal Code read with Section 3 (1) and 3 (5) of the Terrorists and Disruptive Activities (Prevention) Act.
30.1 The Supreme Court while considering the evidence on record took note of a suggestion which was put to one of the witnesses and considering the reply given by the witness to the suggestion put by the accused, arrived at the conclusion that the presence of the accused was admitted. We quote with profit the following observations made by the Supreme Court in paragraph 15, 16 and 17: 

15. The witness further stated that during the assault, the assailant accused him of giving information to the army about the United Liberation Front of Assam (ULFA). He further stated that on the third night he was carried away blind-folded on a bicycle to a different place and when his eyes were unfolded, he could see his younger brother-Kumud Kakati (P.W.-2) and his wife Smt. Prema Kakati (P.W.-3). The place was Duliapather, which is about 6-7 kms. away from his village Sakrahi. The witness identified the appellant-Tarun Bora and stated that it is he who took him in an ambassador car from the residence of Nandeswar Bora on the date of the incident.
16. In cross-examination the witness stated as under :
“Accused-Tarun Bora did not blind my eyes nor he assaulted me.”
17. This part of cross-examination is suggestive of the presence of accused-Tarun Bora in the whole episode. This will clearly suggest the presence of the accused- Tarun Bora as admitted. The only denial is the accused did not participate in blind-folding the eyes of the witness nor assaulted him.
31. In Rakeshkumar alias Babli v. State of Haryana reported in AIR 1987 SC 690, the Supreme Court was dealing with an appeal against the judgment of the High Court affirming the order of the Sessions Judge whereby the appellant and three other persons were convicted under Section 302 read with Section 34 of the Indian Penal Code. While re-appreciating the evidence on record, the Supreme Court noticed that in the crossexamination of the PW 4, Subesing, a suggestion was made with regard to the colour of the shirt worn by one of the accused persons at the time of the incident. The Supreme Court taking into consideration the nature of the suggestion put by the defence and the reply arrived at the conclusion that the presence of the accused namely Dharam Vir was established on the spot at the time of occurrence. We quote with profit the following observations made by the Supreme Court in paragraph 8 and 9 as under: 

8. P.W. 3, Bhagat Singh, stated in his examination-inchief that he had identified the accused at the time of occurrence. But curiously enough, he was not crossexamined as to how and in what manner he Could identify the accused, as pointed out by the learned Sessions Judge. No suggestion was also given to him that the place was dark and it was not possible to identify the assailants of the deceased.
9. In his cross-examination, P.W. 4, Sube Singh, stated that the accused Dharam Vir. was wearing a shirt of white colour. It was suggested to him on behalf of the accused that Dharam Vir was wearing a shirt of cream colour. In answer to that suggestion, P.W. 4 said "It is not correct that Dharam Vir accused was wearing a shirt of cream colour and not a white colour at that time.”
The learned Sessions Judge has rightly observed that the above suggestion at least proves the presence of accused Dharam Vir, on the spot at the time of occurrence.
32. Thus, from the above it is evident that the suggestion made by the defence counsel to a witness in the crossexamination if found to be incriminating in nature in any manner would definitely bind the accused and the accused cannot get away on the plea that his counsel had no implied authority to make suggestions in the nature of admissions against his client.
33. Any concession or admission of a fact by a defence counsel would definitely be binding on his client, except the concession on the point of law. As a legal proposition we cannot agree with the views expressed by Their Lordships of this Court in Koli Trikam Jivraj (supra) that an answer by a witness to a suggestion made by the defence counsel in the cross-examination does not deserve any value or utility if it incriminates the accused in any manner. At the same time, we are also unable to agree with the views expressed by Their Lordships of this Court that a statement of an accused recorded under Section 313 of the Criminal Procedure Code does not deserve any value of utility if it contains inculpatory admissions. “ 

17. Thus, having regard to the position of law as discussed above as regards the evidentiary value of the suggestions which may be put by the defence to a witness in his crossexamination, it is established that the accused was in company of the victim and he had taken the victim to his house and locked the same. This is suggestive of the fact that for sometime, the accused and the victim were together all alone inside the house of the accused. The defence itself has brought on record that at the relevant point of time, the mother of the accused was not at her house.
18. We also take notice of one another incriminating circumstance emerging from the evidence on record. The mother of the victim, in her evidence, has deposed that the victim came home running very much frightened and disclosed before her about the act alleged to have been committed by the accused. As noted above, this, in fact, has been brought on record by the defence itself that the victim came home crying and was very much frightened. Thus, something happened inside the house of the accused and as soon as the victim was able to get herself released from the clutches of the accused, she ran straight to her home and disclosed about the incident before her mother. The statement of the victim shortly after the incident is admissible under section 6 of the Evidence Act as “res gestae”.
19. The subject treated in English and American books under the head of 'Res Gestae' is found spread over Sections 6, 7, 8 and 9 and partially over Section 14 of the Indian Evidence Act. Sir James Stephen defined 'res gestae' as a group of facts so connected together as to be referred to by a single name, as a crime, a contract, a wrong or any other subject of enquiry which may be in issue. The rule of the evidence is admit res gestae and exclude res inter alios. Illustrations deducible from the decided cases reveal that a statement of wife: immediately upon a hurt received and before she had time to devise anything to her own advantage, was held admissible. The statement of a victim shortly after he sustained injuries that the accused inflicted them was held admissible under Section 6. State of excitement may well continue to exist after the exciting fact has ended and it is this human factor that renders declaration made under excitement admissible in proof of the exciting fact. The declaration, though subsequent to the occurrence, is yet held admissible because the Judge of fact is persuaded to accept the assumption that the influence of the exciting fact continued till the declaration was made, there being proximity of time between the exciting fact and the declaration. The test is to exclude the possibility of fabrication or the possibility of anything having been devised to one's own advantage, meaning thereby that there was a substantial contemporaneity between the declaration and the fact though the declaration may be made during or immediately before or after its occurrence. If a Judge of fact is convinced that the interval, howsoever slight, between a declaration and the fact, is one that probabilised fabrication, the declaration ceases to be part of res gestae. On the contrary, the interval, not short, but is such as permits deduction of an inference that declarant was stilt under excitement of the fact, the declaration would be part of res gestae.
20. The requirement of section 6 of the Evidence Act is that the statement must have been made contemporaneously with the act or immediately after it and not at such an interval of time as to make it a narrative of the past events or to allow time for fabrication. It, therefore, follows that the statements by the victim to her mother were spontaneous. They were made when she was still under excitement of the incident that had taken place with her. She was very much frightened and was crying. The statements would certainly be admissible under sections 6 and 8, Illus. (J) of the Evidence Act. Situations may rise where a statement though not admissible under section 6, may yet be admissible under section 8 as evidence of the conduct or as a former statement corroborating the testimony of a witness under section 157 of the Evidence Act. It can be said that the statement of the victim made to her mother is admissible under sections 6 and 8 of the Evidence Act. Yet, we hasten to add that even if the statement would have been excluded from consideration under section 6 of the Evidence Act, it would certainly be admissible under section 157 of the Evidence Act.
21. We now proceed to consider whether we should accept the testimony of the victim being a child witness as a whole and hold the accused guilty of the offence of rape.
22. Before we proceed to evaluate the evidence on record, both oral as well as the documentary, we may give a fair idea as regards the position of law.
23. In the cases of rape, the law does not require corroboration and, therefore, if the evidence of the prosecutrix is believed, there is no bar to convict the accused on her testimony alone. To put it in other words, there is no such law which requires corroboration before the statement of the prosecutrix is acted upon. Indisputably, a prosecutrix is a competent witness (vide section 118 of the Evidence Act). She is not an accomplice within the domain of section 133 of the Evidence Act. Thus, her statement, as such, does not require a corroboration within the meaning of section 114-B (114-A) of the Evidence Act which provides that an accomplice is unworthy of credit unless she is corroborated in material particulars. The prosecutrix is a victim like any other victim of any other offence. Hence, the same weight is to be attached to her statement which requires to be attached to the statement of an injured person. Therefore, if the statement of the prosecutrix is quite clear and unequivocal on the point as to who has ravished her, there is no reason, whatsoever, as to why the said statement, without any corroboration from any quarter, whatsoever, cannot form the basis of conviction. Thus, her statement is to be scrutinized like the statement of any other witness and if there is a ring of truth about it and if it inspires confidence, the Courts would be under an obligation to rely thereupon. In that eventuality, they need not look for corroboration. There is another aspect of the matter. Such type of offences like molestation and rape are committed on the sly. The accused like the case on hand are always on the look out for secluded places which are not frequent by the public for the commission of such type of offences. Thus, more often, than not, no other ocular witness, to corroborate the testimony of a prosecutrix would be available in such circumstances.
24. We are fortified in our above view by the observations of their Lordships of the Supreme Court as reported in State of Maharashtra v. Chanderprakash Kewalchand Jain, (1990) 1 SCC 550: (1990) Cri. LJ 889), wherein Hon'ble Mr. Justice Ahmadi, speaking for the Court observed as under:
We think it proper, Having regard to the increase in the number of sex-violation cases in the recent past, particularly cases of molestation and rape in custody, it is proper to remove the notion, if it persists, that the testimony of a woman who is a victim of sexual violence must ordinarily be corroborated in material particulars except in the rarest of rare cases. To insist on corroboration except in the rarest of rare cases is to equate a woman who is a victim of the lust of another with an accomplice to a crime and thereby insult womanhood. It would be adding insult to injury to tell a woman that her story of woe will not be believed unless it is corroborated in material particulars as in the case of an accomplice to a crime. Ours is a conservative society where it concerns sexual behaviour. Ours is not a permissive society as in some of the Western and European countries. Our standard of decency and morality in public life is not the same as in those countries. It is, however, unfortunate that respect for womanhood in our country is on the decline and cases of molestation and rape are steadily growing...... Courts must also realize that ordinarily a woman, more so a young girl, will not stake her reputation by levelling a false charge concerning her chastity.”.
25. The above view was reiterated in Karnel Singh vs. State of M.P., (1995) 6 JT (SC) 437: (AIR 1995, SC2472) vide para 8.
26. In Bharvada Bhoginbhai Hirjibhai v. State of Gujarat, AIR 1983 SC 753 : 1983 Cri LJ 1096, the Supreme Court observed thus (at page 756) of AIR :
“Corroboration is not the sine qua non for a conviction in a rape case. In the Indian setting, refusal to act on the testimony of a victim of sexual assault in the absence of corroboration as a rule is adding insult to injury. Why should the evidence of the girl or the woman who complains of rape or sexual molestation be viewed with the aid of spectacles fitted with fences tinged with doubt, disbelieve or suspicion? To do so is to justify the charge of male chauvinism in a male dominated society. (at page 757) of AIR A girl or a woman in the tradition bound non-permissive society of India would be extremely reluctant even to admit that any incident which is likely to reflect on her chastity had ever occurred. She would be conscious of the danger of being ostracized by the society or being looked down by the society including by her own family members, relatives, friends and neighbours. She would face the risk of losing the love and respect of her own husband and near relatives, and of her matrimonial home and happiness being shattered. If she is unmarried, she would apprehend that it would be difficult to secure an alliance with a suitable match from a respectable or an acceptable family. In view of these and similar factors the victims and their relatives are not too keen to bring the culprit to book. And when in the face of these factors the crime is brought to light there is a built-in assurance that the charge is genuine rather than fabricated.”
27. From the above quoted observations of the Supreme Court it is clear that the law does not require corroboration and, therefore, if the evidence of the prosecutrix is believed, there is no bar to convict the accused on her testimony alone.
28. Rameshwar Kalyan Singh v. State of Rajasthan, AIR 1952 SC 54 : 1952 Cri LJ 547, is a case where the accused Rameshwar was charged with committing rape on a young girl of eight years of age. In that case while dealing with the issue whether the conviction of an accused in a rape case become illegal merely because it is based on the uncorroborated testimony of the prosecutrix, the Supreme Court held thus (at page 57) of AIR :
“The rule, which according to the cases has hardened into one of law, is not that corroboration is essential before there can be a conviction but that the necessity of corroboration, as a matter of prudence, except where the circumstances make it safe to dispense with it must be present to the mind of the judge, and in jury cases must find place in the charge, before a conviction without corroboration can be sustained. The tender years of the child, coupled with other circumstances appearing in the case, such, for example, as its demeanour, unlikelihood of tutoring and so forth, may render corroboration necessary but that is a question of fact in every case. The only rule of law is that this rule of prudence must be present to the mind of the judge or the jury as the case may be and be understood and appreciated by him or them. There is no rule of practice that there must, in every case, be corroboration before a conviction can be allowed to stand.”
29. In Shaikh Zakir v. State of Bihar, AIR 1983 SC 911 : 1983 Cri LJ 1285, the Supreme Court held that if a conviction is based on the evidence of a prosecutrix without any corroboration it will not be illegal on that sole ground.
30. Section 157 of the Evidence Act provides :
In order to corroborate the testimony of a witness, any former statement made by such witness relating to the same fact at or about the time when the fact took place, or before any authority legally competent to investigate the fact may be proved.”
31. In Rameshwar Singh's case (supra) the statement of the victim girl aged about eight years before her mother about the rape committed on her about four hours after the incident was received as corroborative evidence. The reason for the delay was that the victim girl's mother was not at home when she went there. In that context the "at or about" condition was considered by the Supreme Court and on such consideration the Supreme Court observed that the main test is whether the statement was made as early as can reasonably be expected in the circumstances of the case and before there was opportunity for tutoring or concoction.
32. What should be the approach of a court while assessing the medical evidence is indicated by the following observations of the Supreme Court in Chimanbhai Ukabhai v. State of Gujarat, AIR 1983 SC 484 : 1983 Cri LJ 822 at page 487 of AIR :
Ordinarily, the value of medical evidence is only corroborative. It proves that the injuries could have been caused in the manner alleged and nothing more. The use which the defence can make of the medical evidence is to prove that the injuries could not possibly have been caused in the manner alleged and thereby discredit the eye-witnesses. Unless, however, the medical evidence in its turn goes so far that it completely rules out all possibilities whatsoever of injuries taking place in the manner alleged by eye-witnesses, the testimony of the eye-witnesses cannot be thrown out on the ground of alleged inconsistency between it and the medical evidence.”
33. The Apex Court in Suryanarayana v. State of Karnataka, 2001 Cri LJ 705, has held as under (paras 5 to 7) :-- 

"Admittedly, Bhavya (P.W. 2), who at the time of occurrence was about four years of age, is the only solitary eye-witness who was rightly not given the oath. The time and place of the occurrence and the attending circumstances of the case suggest no possibility of there being any other person as an eye-witness. The evidence of the child witness cannot be rejected per se, but the Court, as a rule of prudence, is required to consider such evidence with close scrutiny and only on being convinced about the quality of the statements and its reliability, base conviction by accepting the statement of the child witness. The witness of P.W. 2 cannot be discarded only on the ground of her being of teen age. The fact of being P.W. 2 a child witness would require the Court to scrutinize her evidence with care and caution. If she is shown to have stood the test of cross-examination and there is no infirmity in her evidence, the prosecution can rightly claim a conviction based upon her testimony alone, corroboration of the testimony of a child witness is not a rule but a measure of caution and prudence. Some discrepancies in the statement of a child witness cannot be made the basis of discarding the testimony. Discrepancies in the deposition, if not in material particulars, would lend credence to the testimony of a child witness who, under the normal circumstances, would like to mix up what the witness saw with What he or she is likely to imagine to have seen. While appreciating the evidence of the child witness the Courts are required to rule out the possibility of the child being tutored. In the absence of any allegation regarding tutoring or using the child witness for ulterior purposes of the prosecution, the Court has no option but to rely upon the confidence inspiring testimony of such witness for the purposes of holding the accused guilty or not. This Court in Panchhi v. State of U. P., (1998) 7 SCC 177 : 1998 AIR SCW 2777 : AIR 1998 SC 2726 : 1998 Cri LJ 4044 : 1998 All LJ 2018 held that the evidence of the child witness must be evaluated more carefully and with greater circumspection because a child is susceptible to be swayed by what others tell him and thus an easy prey to tutoring. The evidence of the child witness must find adequate corroboration before it is relied upon as the rule of corroboration before it is relied upon as the rule of corroboration is of practical wisdom than of law (vide Prakash v. State of M. P. (1992) 4 SCC 225 : 1992 AIR SCW 2582 : AIR 1993 SC 65 : 1992 Cri LJ 3703. Baby Kandayanathi v. State of Kerala, 1993 Supp (3) SCC 667: 1993 AIR SCW 2192 : AIR 1992 SC 2275 : 1993 Cri LJ 2605 Raja Ram Yadav v. State of Bihar, (1991) 9 SCC 287 : 1996 AIR SCW 1882 : AIR 1996 SC 1613 : 1996 Cri LJ 2307; Dattu Ramrao Sakhare v. State of Maharashtra, (1987) 5 SCC 341. To the same effect is the judgment in State of U. P. v. Ashok Dixit, (2000) 3 SCC 70 : 2,000 AIR SCW 548 : AIR 2000 SC 1066 : 2000 Cri LJ 1436 : 2000 All LJ 700.”
34. In view of the aforesaid decision of the Apex Court, the evidence of the prosecutrix cannot be rejected on the sole ground that she is a child. The only legal requirement is that the evidence of the child witness must be evaluated with utmost care which is being done in the instant case.
35. The Supreme Court in the case of Aman Kumar & Anr. vs. State of Haryana, (2004) 4 SCC 379 had observed in paras-5 to 11 as under:
5. It is well settled that a prosecutrix complaining of having been a victim of the offence of rape is not an accomplice after the crime. There is no rule of law that her testimony cannot be acted without corroboration in material particulars. She stands at a higher pedestal than an injured witness. In the latter case, there is injury on the physical form, while in the former it is both physical as well as psychological and emotional. However, if the court of facts finds it difficult to accept the version of the prosecutrix on its face value, it may search for evidence, direct or circumstantial, which would lend assurance to her testimony. Assurance, short of corroboration as understood in the context of an accomplice would suffice.
6. The offence of rape occurs in Chapter XVI of IPC. It is an offence affecting the human body. In that Chapter, there is a separate heading for "Sexual offences", which encompass Sections 375, 376, 376A, 376B, 376C and 376D. "Rape" is defined in Section 375. Sections 375 and 376 have been substantially changed by Criminal Law (Amendment) Act, 1983, and several new sections were introduced by the new Act, i.e. 376A, 376B, 376C and 376D. The fast sweeping changes introduced reflect the legislative intent to curb with 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 P.C. 628) The essential words in an indictment for rape are rapuit and carnaliter cognovit; but carnaliter cognovit, nor any other circumlocution without the word rapuit, are not sufficient in a legal sense to express rape: (1 Hen. 6, 1a, 9 Edw. 4, 26 a (Hale P.C.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 (Stephens Criminal Law, 9th Ed.,p.262). In "Encyclopedia of Crime and Justice" (Volume 4, page 1356), it is stated "......even slight penetration is sufficient and emission is unnecessary". In Halsburys' Statutes of England and Wales (Fourth Edition) Volume 12, it is stated that even the slightest degree of penetration is sufficient to prove sexual intercourse. It is violation, with violence, of the private person of a woman, an outrage by all means. By the very nature of the offence it is an obnoxious act of the high order.
7. Penetration is the sine qua non for an offence of rape. In order to constitute penetration, there must be evidence clear and cogent to prove that some part of the virile member of the accused was within the labia of the pudendum of the woman, no matter how little (See Joseph Lines IC & K 893). It is well-known in the medical world that the examination of smegma loses all importance after twenty four hours of the performance of the sexual intercourse. (See Dr. S.P. Kohli, Civil Surgeon, Ferozepur v. High Court of Punjab and Haryana thr. Registrar (1979) 1 SCC 212). In rape cases, if the gland of the male organ is covered by smegma, it negatives the possibility of recent complete penetration. If the accused is not circumcised, the existence of smegma round the corona gland is proof against penetration, since it is rubbed off during the act. The smegma accumulates if no bath is taken within twenty four hours. 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. It is well settled that the prosecutrix cannot be considered as accomplice and, therefore, her testimony cannot be equated with that of an accomplice in an offence of rape. In examination of genital organs, state of hymen offers the most reliable clue. While examining the hymen, certain anatomical characteristics should be remembered before assigning any significance to the findings. The shape and the texture of the hymen is variable. This variation, sometimes permits penetration without injury. This is possible because of the peculiar shape of the orifice or increased elasticity. On the other hand, sometimes the hymen may be more firm, less elastic and gets stretched and lacerated earlier. Thus a relatively less forceful penetration may not give rise to injuries ordinarily possible with a forceful attempt. The anatomical feature with regard to hymen which merits consideration is its anatomical situation. Next to hymen in positive importance, but more than that in frequency, are the injuries on labia majora. These, viz. labia majora are the first to be encountered by the male organ. They are subjected to blunt forceful blows, depending on the vigour and force used by the accused and counteracted by the victim. Further, examination of the females for marks of injuries elsewhere on the body forms a very important piece of evidence. 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.
8. The plea relating to applicability of Section 376 read with Section 511, IPC needs careful consideration. In every crime, there is first, intention to commit, secondly preparation to commit it, thirdly, attempt to commit it. If the third stage, that is, attempt is successful, then the crime is complete. If the attempt fails the crime is not complete, but law punishes the person attempting the act. Section 511 is a general provision dealing with attempts to commit offences not made punishable by other specific sections. It makes punishable all attempts to commit offences punishable with imprisonment and not only those punishable with death. An attempt is made punishable, because every attempt, although it falls short of success, must create alarm, which by itself is an injury, and the moral guilt of the offender is the same as if he had succeeded. Moral guilt must be united to injury in order to justify punishment. As the injury is not as great as if the act had been committed, only half the punishment is awarded.
9. A culprit first intends to commit the offence, then makes preparation for committing it and thereafter attempts to commit the offence. If the attempt succeeds, he has committed the offence; if it fails due to reasons beyond his control, he is said to have attempted to commit the offence. Attempt to commit an offence can be said to begin when the preparations are complete and the culprit commences to do something with the intention of committing the offence and which is a step towards the commission of the offence. The moment he commences to do an act with the necessary intention, he commences his attempt to commit the offence. The word 'attempt' is not itself defined, and must, therefore, be taken in its ordinary meaning. This is exactly what the provisions of Section 511 require. An attempt to commit a crime is to be distinguished from an intention to commit it; and from preparation made for its commission. Mere intention to commit an offence, not followed by any act, cannot constitute an offence. The will is not be taken for the deed unless there be some external act which shows that progress has been made in the direction of it, or towards maturing and effecting it. Intention is the direction of conduct towards the object chosen upon considering the motives which suggest the choice. Preparation consists in devising or arranging the means or measures necessary for the commission of the offence. It differs widely from attempt which is the direct movement towards the commission after preparations are made. Preparation to commit an offence is punishable only when the preparation is to commit offences under Section 122 (waging war against the Government of India) and Section 399 (preparation to commit dacoity). The dividing line between a mere preparation and an attempt is sometimes thin and has to be decided on the facts of each case. There is a greater degree of determination in attempt as compared with preparation.
10. An attempt to commit an offence is an act, or a series of acts, which leads inevitably to the commission of the offence, unless something, which the doer of the act neither foresaw nor intended, happens to prevent this. An attempt may be described to be an act done in part execution of a criminal design, amounting to more than mere preparation, but falling short of actual consummation, and, possessing, except for failure to consummate, all the elements of the substantive crime. In other words, an attempt consists in it the intent to commit a crime, falling short of, its actual commission. It may consequently be defined as that which if not prevented would have resulted in the full consummation of the act attempted. The illustrations given in Section 511 clearly show the legislative intention to make a difference between the cases of a mere preparation and an attempt.
11. In order to find an accused guilty of an attempt with intent to commit a rape, Court has to be satisfied that the accused, when he laid hold of the prosecutrix, not only desired to gratify his passions upon her person, but that he intended to do so at all events, and notwithstanding any resistance on her part. Indecent assaults are often magnified into attempts at rape. In order to come to a conclusion that the conduct of the accused was indicative of a determination to gratify his passion at all events, and in spite of all resistance, materials must exist.
Surrounding circumstances many times throw beacon light on that aspect. “ 

36. The Supreme Court in the case of Rajkumar vs. State of M.P., 2014 Cri.L.J. 1943 has explained regarding the admissibility of the evidence of a child witness observing as under:
8. It is a settled legal proposition of law that every witness is competent to depose unless the court considers that he is prevented from understanding the question put to him, or from giving rational answers by reason of tender age or extreme old age or disease or because of his mental or physical condition. Therefore, a court has to form an opinion from the circumstances as to whether the witness is able to understand the duty of speaking the truth, and further in case of a child witness, the court has to ascertain that the witness might have not been tutored. Thus, the evidence of a child witness must be evaluated more carefully and with greater circumspection because a child is susceptible to be swayed by what others tell him. The trial court must ascertain as to whether a child is able to discern between right or wrong and it may be ascertained only by putting the questions to him. In State of Madhya Pradesh v. Ramesh & Anr., (2011) 4 SCC 786, after considering a large number of its judgments came to the conclusion as under:
“In view of the above, the law on the issue can be summarized to the effect that the deposition of a child witness may require corroboration, but in case his deposition inspires the confidence of the court and there is no embellishment or improvement therein, the court may rely upon his evidence. The evidence of a child witness must be evaluated more carefully with greater circumspection because he is susceptible to tutoring. Only in case there is evidence on record to show that a child has been tutored, the Court can reject his statement partly or fully. However, an inference as to whether child has been tutored or not, can be drawn from the contents of his deposition.” (See also: Suryanarayana v. State of Karnataka, AIR 2001 SC 482): (2011 AIR SCW 81).”
37. The Supreme Court in State of Punjab v. Gurmit Singh, (1996) 2 SCC 384, while dealing with this aspect, observed as under:
“The courts must, while evaluating evidence, remain alive to the fact that in a case of rape, no self-respecting woman would come forward in a court just to make a humiliating statement against her honour such as is involved in the commission of rape on her. In cases involving sexual molestation, supposed considerations which have no material effect on the veracity of the prosecution case or even discrepancies in the statement of the prosecutrix should not, unless the discrepancies are such which are of fatal nature, be allowed to throw out an otherwise reliable prosecution case. The inherent bashfulness of the females and the tendency to conceal outrage of sexual aggression are factors which the courts should not overlook. The testimony of the victim in such cases is vital and unless there are compelling reasons which necessitate looking for corroboration of her statement, the courts should find no difficulty to act on the testimony of a victim of sexual assault alone to convict an accused where her testimony inspires confidence and is found to be reliable. Seeking corroboration of her statement before relying upon the same, as a rule, in such cases amounts to adding insult to injury. Why should the evidence of a girl or a woman who complains of rape or sexual molestation be viewed with doubt, disbelief or suspicion? The court while appreciating the evidence of a prosecutrix may look for some assurance of her statement to satisfy its judicial conscience, since she is a witness who is interested in the outcome of the charge leveled by her, but there is no requirement of law to insist upon corroboration of her statement to base conviction of an accused. The evidence of a victim of sexual assault stands almost on a par with the evidence of an injured witness and to an extent is even more reliable. Just as a witness who has sustained some injury in the occurrence, which is not found to be self-inflicted, is considered to be a good witness in the sense that he is least likely to shield the real culprit, the evidence of a victim of a sexual offence is entitled to great weight, absence of corroboration notwithstanding. Corroborative evidence is not an imperative component of judicial credence in every case of rape. Corroboration as a condition for judicial reliance on the testimony of the prosecutrix is not a requirement of law but a guidance of prudence under given circumstances. It must not be overlooked that a woman or a girl subjected to sexual assault is not an accomplice to the crime but is a victim of another person's lust and it is improper and undesirable to test her evidence with a certain amount of suspicion, treating her as if she were an accomplice. Inferences have to be drawn from a given set of facts and circumstances with realistic diversity and not dead uniformity lest that type of rigidity in the shape of rule of law is introduced through a new form of testimonial tyranny making justice a casualty. Courts cannot cling to a fossil formula and insist upon corroboration even if, taken as a whole, the case spoken of by the victim of sex crime strikes the judicial mind as probable.”
38. In Madan Lal v. State of J. & K.:(1997) 4 SCC 677 : (1998) Cri. L.J. 667), the apex Court held that we do not think that the prosecutrix's evidence can be examined by picking one sentence in the cross-examination to find out whether she is a truthful witness or not?' In the above case also, the victim girl was aged 13 years and she stated that there had been penetration into vagina whereas the doctor who examined the prosecutrix stated that there was no mark of violence on her private parts and the hymen was intact and on examination of the vaginal smear no living or dead sperm was found on the slide and therefore she opined that no definite opinion could be given regarding the attempt to sexual intercourse. It was also a case where an order of acquittal passed by the Sessions Judge was set aside by the High Court. When the accused was convicted for the offence under Section 376, I.P.C. read with 511, I.P.C., the Apex Court on reappraisal of the evidence of prosecutrix held as follows:
It is thus apparent from the entire reading of the prosecutrix's evidence that the accused had rubbed his penis with the vagina of the prosecutrix and tried to penetrate but could not succeed in penetrating and ultimately got himself discharged and the hot semen fell on the thighs of the prosecutrix. The statement made by the prosecutrix on which Mr. Jain relied might have been made on account of the inexperience of the young girl who was being subjected to sexual harassment for the first time and the same cannot be read in isolation bereft of what she stated just previous to the aforesaid statement. Having given our anxious consideration and having scrutinized the evidence of the prosecutrix we are in agreement with the High Court that her evidence is that of a truthful witness, which gives an account of the incident that happened to a rustic girl who was traumatized on account of sexual harassment meted out to her by none other than her own school Headmaster. Her evidence can be inhesitatingly accepted by the Court and has rightly been accepted by the High Court for sustaining a conviction for the charge under attempt to commit rape.”
39. In the above case, it was found on evidence that there was no penetration as such and semen was not found inside the vagina but was only on the thighs of the girl and therefore, the accused was convicted only for the offence under Section 376 read with 511, I.P.C.
40. In Koppula Venkat Rao v. State of A.P., (2004) 3 SCC 602 : 2004 Cri. LJ 1804, the apex Court while explaining the distinction between committing the offence and attempt to commit the offence of rape held as follows:
The sine qua non of the offence of rape is penetration, and not ejaculation. Ejaculation without penetration constitutes an attempt to commit rape and not actual rape. In the above case, even according to the prosecution, the accused ejaculated before actual intercourse. However, the trial Court and the High Court convicted the accused for the offence under Section 376, I.P.C. and the apex Court altered the same to Section 376, I.P.C. read with 511, I.P.C. on the ground that the commission of actual rape has not been established. It was held that 'a culprit first intends to commit the offence, then makes preparation for committing it and thereafter attempts to commit the offence. If the attempt succeeds, he has committed the offence; if it fails due to reasons beyond his control, he is said to have attempted to commit the offence.”
41. In the case of Munna Vs. State of Madhya Pradesh, 2014 (10) SCC 254, the Hon'ble Apex Court held as under:- "11. Thus, while absence of injuries or absence of raising alarm or delay in FIR may not by itself be enough to disbelieve the version of prosecution in view of the statutory presumption under Section 114-A of the Evidence Act but if such statement has inherent infirmities, creating doubt about its veracity, the same may not be acted upon. We are conscious of the sensitivity with which heinous offence under Section 376 IPC has to be treated but in the present case the circumstances taken as a whole create doubt about the correctness of the prosecution version. We are, thus, of the opinion that a case is made out for giving benefit of doubt to the accused.”
42. The Supreme Court in Raju and others Vs. State of Madhya Pradesh, (2008) 15 SCC 133 has held that the accused must be protected against the possibility of false implication. It has been further held that in so far as the allegations of rape are concerned, the evidence of prosecutrix must be examined as that of an injured witness whose presence at the spot is probable but it can never be presumed that her statement should without exception be taken as the gospel truth. It was held:
“10. The aforesaid judgments lay down the basic principle that ordinarily the evidence of a prosecutrix should not be suspect and should be believed, the more so as her statement has to be evaluated at par with that of an injured witness and if the evidence is reliable, no corroboration is necessary. Undoubtedly, the aforesaid observations must carry the greatest weight and we respectfully agree with them, but at the same time they cannot be universally and mechanically applied to the facts of every case of sexual assault which comes before the Court.
11. It cannot be lost sight of that rape causes the greatest distress and humiliation to the victim but at the same time a false allegation of rape can cause equal distress, humiliation and damage to the accused as well. The accused must also be protected against the possibility of false implication, particularly where a large number of accused are involved. It must, further, be borne in mind that the broad principle is that an injured witness was present at the time when the incident happened and that ordinarily such a witness would not tell a lie as to the actual assailants, but there is no presumption or any basis for assuming that the statement of such a witness is always correct or without any embellishment or exaggeration.”
43. In Tameezuddin alias Tammu Vs. State (NCT of Delhi), (2009) 15 SCC 566, it has been held that though evidence of the prosecutrix must be given predominant consideration, but to hold that this evidence has to be accepted even if the story is improbable and belies logic, would be doing violence to the very principles which govern the appreciation of evidence in a criminal matter. It had been held as follows:
“9. It is true that in a case of rape the evidence of the prosecutrix must be given predominant consideration, but to hold that this evidence has to be accepted even if the story is improbable and belies logic, would be doing violence to the very principles which govern the appreciation of evidence in a criminal matter. We are of the opinion that story is indeed improbable.”
44. In Narender Kumar Vs. State (NCT of Delhi), (2012) 7 SCC 171, the Apex Court had held that minor or insignificant inconsistencies, discrepancies or contradictions in the statement of prosecutrix are inconsequential. However, if the statement of the prosecutrix suffers from serious infirmities, inconsistencies and deliberate improvements on material points, no reliance can be placed thereon. It has further been held that the onus of proof is on the prosecution to establish each ingredient of the offence beyond reasonable doubt on the basis of cogent evidence and materials on record. The sole testimony of the prosecutrix can be relied upon for the purpose of conviction without any corroboration if the same inspires confidence, but if the court finds it difficult to accept the version of the prosecutrix on its face value, it may look for corroboration by other evidence, direct or circumstantial. The Court must appreciate the evidence in its totality with utmost sensitivity. It was held:
“20. It is a settled legal proposition that once the statement of prosecutrix inspires confidence and is accepted by the court as such, conviction can be based only on the solitary evidence of the prosecutrix and no corroboration would be required unless there are compelling reasons which necessitate the court for corroboration of her statement. Corroboration of testimony of the prosecutrix as a condition for judicial reliance is not a requirement of law but a guidance of prudence under the given facts and circumstances. Minor contradictions or insignificant discrepancies should not be a ground for throwing out an otherwise reliable prosecution case.
21. A prosecutrix complaining of having been a victim of the offence of rape is not an accomplice after the crime. Her testimony has to be appreciated on the principle of probabilities just as the testimony of any other witness; a high degree of probability having been shown to exist in view of the subject matter being a criminal charge. However, if the court finds it difficult to accept the version of the prosecutrix on its face value, it may search for evidence, direct or substantial, which may lend assurance to her testimony. (Vide: Vimal Suresh Kamble v. Chaluverapinake Apal S.P. & Anr.,AIR 2003 SC 818;and Vishnu v. State of Maharashtra, AIR 2006 SC 508) The basic principle is when allegations of rape are made ordinarily, the evidence of prosecutrix should be believed and should be evaluated at par with that of an injured person but when the statement appears to be not convincing and creates doubts about its veracity the Courts should have to look for corroboration from some source. “ 

45. Normally, no girl or her parents would come forward to make humiliating statement against the honour of the girl, therefore, the evidence of the prosecutrix and her parents should not be discarded lightly. The testimony of the victim in case of sexual offence is vital and unless there are compelling reasons which necessitated looking for corroboration of her statement, the Court should find no difficulty to act on the testimony of the victim of sexual assault.
46. It is true that in the case on hand, on medical examination, no injury or swelling or blood or semen was found on the penis of the appellant, but on this ground alone, the entire case of the prosecution cannot be disbelieved. It is not necessary that there should always be marks of injuries on the penis of the accused.
47. By relying on the decision of the Supreme Court in the case of Rahim Beg & Mahadeo vs. The State of U.P., AIR 1973 SC 343, the learned counsel appearing for the appellant submitted that if a fully developed male is accused of having committed rape of a minor girl of tender age and if no injuries are noticed on the penis, then it points towards the innocence of the accused.
48. We are afraid, it would be too much to say so. In Rahim Beg (Supra), it appears from para-20 of the judgment that the Court came to such conclusion on the basis of the opinion of the doctor. Normally, an injury is caused to the male organ when sexual act is committed by a fully developed male with a girl of tender age who is virgin. However, this is not a universal phenomenon.
49. It is relevant to quote para-9 at page 380 of the Modi's Medical Jurisprudence and Toxicology, Twenty-first Edition :-- 

"9. Injuries to the genital parts may result from force exerted by the accused or from forces applied by the victim. In addition to scratches of lacerations on the penis caused by the finger nails of the victim during a struggle, an abrasion or laceration may be discovered on the prepupe or glans penis, but more often on the fraenum, due to the forcible introduction of the organ into the narrow vagina of a virgin especially of a child, but it is not necessary that there should always be marks of injuries on the penis in such cases. “ 

50. To put it simply, it all depends on the quality of the evidence of the prosecutrix. If the Court is satisfied that the evidence of the prosecutrix is free from blemish and is implicitly reliable., then on the sole testimony of the prosecutrix, the conviction can be recorded. In appropriate cases, the Court may look for corroboration from the independent course or from the circumstances of the case before recording an order of conviction.
51. Considering the fact that we are looking into the evidence of a six year old victim, we are of the view that we should examine the evidence of the victim closely keeping in mind the medical evidence on record.
52. The medical evidence practically is nil in this matter. It is true that in the medical certificate, Exh.44, the hymen is shown to be torn. At the same time, the labia majora and labia minora were found to be normal. All other parts were found to be normal. Indisputably, there was no bleeding. No semen was found in the vaginal swab or on the clothes of the victim including the clothes of the accused. It appears that there was no ejaculation. Even, for the time being, if we believe that the accused tried to insert his penis in the private part of the victim, at the same time, the doctor has not ruled out the vaginal penetration. Unfortunately, neither the Trial Court nor the public prosecutor nor the defence counsel put any question to the doctor regarding the hymen which was found to be torn.
53. The learned APP appearing for the State and Ms. Shah, the learned counsel appearing for the complainant submitted that the hymen was found torn. According to both, this could be only on account of the forceful penetration by the accused in the private part of the victim.
54. Its difficult for us to straightway accept such submission. The Medical Jurisprudence by Dr. R.M. Jhala and justice V.B. Raju, Fourth Edition, gives a fair idea about the hymen and Labia Majora. We quote as under: 

'Hymen:- In examination of the genital organs, the state of hymen offers the most reliable clue. While examining the hymen certain anatomical characteristics should be remembered before assigning any significance to the findings. The shape and the texture of the hymen is variable. This variation, sometimes, permits penetration without injury. This is possible because of the peculiar shape of the orifice or increased elasticity. On the other hand, sometimes the hymen may be more firm, less elastic and gets stretched, and lacerated earlier. Thus a relatively less forceful penetration may give rise to injuries ordinarily possible with a forceful attempt. The anatomical feature with regard to hymen which merits consideration, is its anatomical situation, specially in girls under the age of 12 years. In young girls under the age of 12 years the hymen is situated relatively more posteriorly (in backward position) and higher up in a narrow vaginal canal. This prevents the hymen from coming in contact with the male organ in forceful penetration of the organ. This also saves the hymen from bearing the brunt of the blow and thus it escapes injury. Thus absence of injury to hymen in a girl under 12 years does not rule out the act of rape.
Labia Majora:-Next to hymen in positive importance but more than that in frequency are the injuries on labia majora. These, viz., labia majora are the first to be encountered by the male organ. They get blunt forceful blow, depending on the vigour and force used by the accused and counteracted by the victim. In case of girls under 12 years where examination of hymen may not prove useful, examination of labia majora gives conclusive evidence. The narrowness of the canal makes it inevitable for the male organ to inflict blunt, forceful blow on the labia. Such blow invariably leads to contusion, because of looseness and vascularity. The interesting feature of such contusion is its vividness specially on the side it forms inner wall of vagina. Against the pink background of the mucous membrane dark and contusion is visible even on initial inspection. This is also an important point to be remembered in post mortem examination with history of rape. Apart from this, the contusion gives rise to pain and is tender on palpation. Sometimes specially in the case of young girls, such contusion is accompanied by laceration of vulva. Such tear, because of uneven and excessive force invariably used in acts of rape, is eccentric and more often in lower half. This is because of relatively increased stretching power of the upper half of vagina or increased rigidity of the lower part.”
55. We find a bit difficult to take the view that the hymen was found torn only on account of the alleged forceful sexual assault. We say so because all other parts were found to be absolutely normal. No redness or swelling or any other abnormal features were noted by the doctor at the time of the medical examination of the victim. The victim, in the case on hand, was just six years old at the time of the incident. In young girls under the age of 12 years, the hymen is situated relatively more posteriorly (in backward position) and higher up in a narrow vaginal canal. This prevents the hymen from coming in contact with the male organ in forceful penetration of the organ.
56. As noted above, the doctor could have clarified or opined whether the tear was old or fresh. The hymen may get ruptured on account of many reasons. Even while playing, if the girl would have a heavy fall or gets herself hit with any hard object, the same may lead to rupture of hymen.
57. In fact, the condition of the hymen should not be considered as the conclusive determination whether rape is committed or not. Even, in the cases where the hymen of the victim is found to be intact, the charge for rape under section 376 IPC as defined in section 375 IPC could be said to be made out if there are other circumstances or materials on record to indicate that there was penetration.
58. An identical question was considered by the Supreme Court in Santosh Kumar vs. State of M.P. 2006 (8) JT SC 171, and para 10 of the report is reproduced below:
10. The question, which arises for consideration, is whether the proved facts establish the offence of rape. It is not necessary for us to refer to various authorities as the said question has been examined in considerable detail in Madan Gopal Kakkad v. Naval Dubey JT 1992 (3) SC 270 and paras 37 to 39 of the said judgment are being reproduced below: 37. We feel that it would be quite appropriate, in this context, to reproduce the opinion expressed by Modi in Medical Jurisprudence and Toxicology (Twenty First Edition) at page 369 which reads thus:
“Thus to constitute the offence of rape it is not necessary that there should be complete penetration of penis with emission of semen and rupture of hymen. Partial penetration of the penis within the labia majora or the vulva or pudenda with or without emission of semen or even an attempt at penetration is quite sufficient for the purpose of the law. It is therefore quite possible to commit legally the offence of rape without producing any injury to the genitals or leaving any seminal stains. In such a case the medical officer should mention the negative facts in his report, but should not give his opinion that no rape had been committed. Rape is crime and not a medical condition. Rape is a legal term and not a diagnosis to be made by the medical officer treating the victim. The only statement that can be made by the medical officer is that there is evidence of recent sexual activity. Whether the rape has occurred or not is a legal conclusion, not a medical one.”
59. In Parikhs Textbook of Medical Jurisprudence and Toxicology, the following passage is found:
Sexual intercourse. In law, this term is held to mean the slightest degree of penetration of the vulva by the penis with or without emission of semen. It is therefore quite possible to commit legally the offence of rape without producing any injury to the genitals or leaving any seminal stains. “ 

In Encyclopedia of Crime and Justice (Vol.4) at page 1356, it is stated:
... even slight penetration is sufficient and emission is unnecessary.”
60. Therefore, the absence of injuries on the private parts of a victim specially a married lady cannot, ipso facto, lead to an inference that no rape has been committed.
61. We may also refer to the Medical Jurisprudence and Toxicology by Glaister, Eleventh Edition on the subject. In Chapter-XIV, titled rape and other sexual crimes, the learned Author has stated as under: 

'Local evidence of rape:-We turn now to consider the signs in the sexual parts of a virgin female which when found would support the examiner in concluding that rape had been committed.
These are:- Recent rupture of the hymen Presence of blood, fresh or dried, about the vulva.
Marks of bruising, abrasions, or inflammation of the parts.
Presence of semen in the vagina.
Additional signs such as discomfort in walking or frequency of micturition may be present in certain cases, especially in young girls.
When there has been forcible attempted penetration or complete penetration of the vagina, evidence of rupture of the hymen will be present, as a rule, but both the character and extent of the injury will vary in different cases depending upon the nature of the hymen, the disproportion between the male and female parts, the extent of the penetration, and the amount of force used.
The site of rupture presents a teat, or a series of stellate tears, in the membrane marked in recent cases by a blood-stained or inflamed line or lines.
Rupture of the hymen is almost invariably accompanied by some degree of bleeding. The severed edges do not unite, but become rounded off in the process of healing which, in the case of slight tears, occurs in from two to three days; more extensive tears take a longer period to heal, usually about seven to ten days or even slightly longer, depending upon circumstances. It is not possible to date an injury of the hymen after it has completely healed. In women who are habituated to intercourse, and in those who have borne children, the remains of the hymen constitute what are known as carunculae myrtiformes which are situated round and close to the vaginal orifice and present the appearance of different-sized small, round, fleshy projections or tags.
Attention should be paid to the presence of blood above the vulva, thighs, and pubic area of the body, and on the clothing. Whether blood is present or not, and if, present, the amount will depend upon the extent of the injury and the vascularity of the hymen. It sometimes happens that, from the unusual quantity of effused blood, the examiner may be led to suspect that the assailant has also received injury to his genitals. In three cases which we examined, the quantity of blood found on the girls' underclothing, and at the place where the crime was committed, was greater than would reasonably have been expected from an inquiry to the hymen. On examination of the suspected males who had been apprehended, a recent rupture of the fraenum of the penis is found in each case. Apart from such injury to the male, coitus may cause considerable bleeding where, in the hymen, a small vessel has been incompletely torn.
We have not seen this in rape, but we have seen it in the case of the first coitus of marriage. The examiner should be on the alert, however, that he is not deceived by a false charge of rape, and that the presence of blood is not merely menstrual. There will be corroborative evidence of rape should bruising or abrasions of the genitals be found, since either of these conditions is indicative of violence.”
62. Keeping in mind the aforesaid medical evidence on record, we now proceed to consider the evidence of the victim. The victim is very clear in her statement recorded by the learned JMFC, Bharuch under section 164 of the Cr.P.C. However, we have noticed one very unusual word used by the victim. The word, in Gujarati, used by the victim is “Gaand”. The plain meaning of this word would be “ass (anus)”. We wonder why the victim has used this particular word. It is not even the case of the prosecution that the accused indulged into carnal intercourse with the victim. It could be the understanding of a small innocent girl. But she is very clear that oil was applied on her private part. Her clothes were removed. The accused also took of his clothes and, thereafter, the accused committed the act. In her oral evidence on oath before the Trial Court, she has stuck to what she stated in her section 164 Cr.P.C. statement except one improvement and, i.e, with regard to the threats administered by the accused. We have also noticed that practically, there is no crossexamination of the victim. Practically the entire examinationin- chief of the victim has gone unchallenged. All that the defence counsel tried to put to the victim in her crossexamination is with regard to the enmity of the accused with her mother. On the contrary, we take notice of one suggestion put to the victim in her cross-examination, and the reply to such suggestion goes against the accused. The reply to the suggestion put by the defence establishes that the accused had taken the victim at his house. Even before Dr. Rupesh Jayramprakash Divakar (PW 13), the history given by the mother is consistent with the version of the victim in her section 164 Cr.P.C. statement as well as the oral evidence of the victim before the Court. Dr. Bijal Rami (PW 15), however, has deposed about the history narrated by the victim, which is somewhat incomplete or inconsistent with the original version of the victim. Before Dr. Rami, the victim stated that the accused had taken her to his house. The accused took off her clothes, and in the past also, two to three times, he had done so. Thereafter, as some noise was heard outside the house, the accused left the victim and the victim ran away to her house. Dr. Rami (PW 15) is also of the view that it is difficult to opine whether there was actual sexual intercourse or not.
63. The victim has clearly stated in her examination-in-chief that the accused took off her clothes, and he too, took off his clothes. The victim has also clearly stated in her examinationin- chief as regards the threats administered by the accused to her at the time of the commission of the act.
64. There is no suggestion in the cross-examination on the part of the accused to the aforesaid statement of the victim that the accused did not remove her clothes. She had categorically stated in her examination-in-chief that the accused had removed her clothes. If the respondent-accused had removed her clothes and he had not rebutted this statement of the victim in her examination-in-chief, it is something which goes against the accused.
65. In the aforesaid context, we may quote the observations made by the Supreme Court, very much apt to the facts of the present case, in the case of Pandharinath vs. State of Maharashtra, (2009) 14 SCC 537. We quote paras-15 and 16 as under; 

“15. The prosecutrix has clearly stated in her examination in chief that on waking up she found the accused-appellant sitting near her legs and the accusedappellant removed her under garments and gagged her mouth. Subsequently, the accused-appellant felt sorry for the incident and also apologized for the same.
16. There is no suggestion in the cross-examination on the part of the accused to the aforesaid statement of the prosecutrix that the accused did not remove her cloth. She had categorically stated in her examination-in-chief that the accused had removed her clothes. The accusedappellant had also stated that the prosecutrix should forgive him for his acts against which no suggestion was put to the effect that he did not seek such an apology. If the accused- appellant had removed her clothes and he had not rebutted this statement of the prosecutrix in his examination-in-chief, it is definitely a case of attempt to rape. “ 

66. Now, here once again, we reiterate the well settled position of law that there need not be full penetration of the penis in the vagina of the victim. Even the 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 law. The depth of penetration is immaterial in an offence punishable under Section 376 IPC. We are clear, at least, on one aspect that the accused did made an attempt to penetrate. However, from the medical evidence on record, it appears that it just remained at the stage of an attempt. Penetration does not seem to have taken place. There was definitely an attempt to commit rape. The distinction between an attempt of rape and rape is very subtle. When an attempt to penetrate is made, but no penetration takes place, it can be said to be an attempt to rape; but when an attempt to penetrate is made and a slight penetration takes place, the same would constitute rape. Although, the doctor, in the medical certificate, Exh.44, has opined that vaginal penetration cannot be ruled out, but there is no further elaboration in this regard in the oral evidence of the doctor. On what basis, such an opinion has been expressed in the certificate is not forthcoming.
67. As stated above, if we go by the case of the prosecution that the hymen was found torn on account of the forceful penetration, then there is no explanation why no laceration, redness, swelling or abrasion was found on the Labia Majora, Labia Minora and other private parts.
68. As to how the evidence of a witness has to be appreciated, the Supreme Court observes as follows in State of U.P. v. M.K. Anthony, AIR 1985 SC 48: (1985 Cri. LJ 493).
"While appreciating oral evidence of a witness, the approach must be whether the evidence of the witness read as whole appears to have a ring of truth. Once that impression is formed, it is undoubtedly necessary for the Court to scrutinise the evidence more particularly keeping in view the deficiencies, drawbacks and infirmities pointed out in evidence as a whole, and evaluate them to find out whether it is agains the general tenor of the evidence given by the witness and whether the earlier evaluation of the evidence is shaken as to render it unworthy of belief," 

69. In Sardul Singh vs. State of Haryana, AIR 2002 SC 3462, it is observed as under:
There cannot be a prosecution case with a cast iron perfection in all respects and it is obligatory for the Courts to analyse, sift and assess the evidence on record, with particular reference to its trustworthiness and truthfulness, by a process of dispassionate judicial scrutiny adopting an objective and reasonable appreciation of the same, without being obsessed by an air of total suspicion of the case of the prosecution. What is to be insisted upon is not implicit proof. It has often been said that evidence of interested witnesses should be scrutinized more carefully to find out whether it has a ring of truth and if found acceptable and seems to inspire confidence, too, in the mind of the Court, the same cannot be discarded totally merely on account of certain variations or infirmities pointed or even additions and embellishments noticed, unless they are of such nature as to undermine the substratum of the evidence and found to be tainted to the core. Courts have a duty to undertake a complete and comprehensive appreciation of all vital features of the case and the entire evidence with reference to the broad and reasonable probabilities of the case also in their attempt to find our proof beyond reasonable doubt".
70. At page 439 of the book, Medical Jurisprudence and Toxicology by Dr. K.S. Narayana Reddy, with regard to rape on children, the following information is given:
In young children there are few or no signs of general violence, for the child usually has no idea of what is happening, and also incapable of resisting. The hymen is deeply situated, and as the vagina is very small, it is impossible for the penetration of the adult organ to take place. Usually, the penis is placed either within the vulva or between the thighs. As such, the hymen is usually intact and there may be little redness and tenderness of the vulva. As the penis enters the genitals, it tends to compress the labia both anteriorly and laterally, producing bruising of both the labia minora and the labia majora. The amount of bruising will depend upon the force used".
71. The doubts entertained by the Trial Judge were based on the fact that the medical evidence is nil and the victim appeared to be tutored by her mother on account of the enmity with the mother of the accused.
72. With regard to doubts entertained by the Courts, the observations of the Supreme Court in the case of State of U.P. vs. Krishna Gopal, AIR 1988 SC 2154: (1989 Cri. LJ 288) are as under:
“A person has, no doubt, a profound right not to he convicted of an offence which is not established by the evidential standard of proof beyond reasonable doubt.
Though this standard is a higher standard, there is, however, no absolute standard. What degree of probability amounts to "proof is an exercise particular to each case. Doubts would be called reasonable if they are free from a zest for abstract speculation. Law cannot afford any favourite other than truth. To constitute reasonable doubt, it must be free from an over emotional response. Doubts must be actual and substntial doubts as to the guilt of the accused person arising from the evidence, or from the lack of it, as opposed to mere vague apprehensions. A reasonable doubt is not an imaginary, trivial or a merely possible doubt; but a fair doubt based upon reason and common sense.
The concepts of probability, and the degrees of it, cannot obviously be expressed in terms of units to be mathematically enumerated as to how many of such units constite proof beyond reasonable doubt. There is an unmistakable subjective element in the evalution of the degrees of probability and the quantum of proof. Forensic probability must, in the last analysis, rest on a robust commonsense and, ultimately, on the trained intutions of the judge. While the protection given by the criminal process to the accused persons is not be eroded, at the same time, uniformed legitimisation of trivalities would make a mockery of administration of criminal justice".
73. The following observations of the Supreme Court in the case of Shivaji Sahebrao Bobade & Anr. v. State of Maharashtra, AIR 1973 SC 2622: (1973 Cri. LJ 1783) need to be kept in mind by all the Trial Courts while appreciating evidence in criminal trials.
"Even at this stage we may remind ourselves of a necessary social perspective in criminal cases which suffers from insufficient forensic appreciation. The dangers of exaggerated devotion to the rule of benefit of doubt at the expense of social defence and to the soothing sentiment that all acquittals are always good regardless of justice to the victim and the community, demand especial emphasis in the contemporary context of escalating crime and escape. The judicial instrument has a public accountability. The cherished principles or golden thread of proof beyond reasonable doubt which runs tro: the web of our law should not be stretched morbidly to embrace every hunch, hesitancy and degree of doubt. The excessive solicitude reflected in the attitude that a thousand guilty men may go but one innocent martyr shall not suffer is a false dilemma. Only reasonable doubts belong to the accused. Otherwise any practical system of justice will then break down and lost credibility with the community. The evil of acquitting a guilty person light-heartedly as a learned author has sapiently observed, goes much beyond the simple fact that just one guilty person has gone unpunished. If unmerited acquittals become general, they tend to lead to a cynical disregard of the law, and this in turn leads to a public deamdn for harsher legal presumptions against indicted 'persons' and more severe punishment of those who are found guilty. Thus too frequent acquittals of the guilty may lead to a ferocious penal law, eventually eroding the judicial protection of the guiltless. For all these reasons it is true to say, with Viscount Simon, that "a miscarriage of justice may arise from the acquittal of the guilty no less than from the conviction of the innocent...”
In short our jurisprudential enthusiasm for presumed innocence must be moderated by the pragmatic need to make criminal justice potent and realistic. A balance has to be struck between chasing chance possibilities as good enough to set the delinquent free and chopping the logic of preponderant probability to punish marginal innocents.”
74. Mr. Barod sought to contend that there is contradiction in the form of omission between the statement of the victim as recorded under section 164 Cr.P.C and her evidence in the court. Apart from the fact that it is difficult to say that there is material contradiction between the evidence of the victim and her statement, recorded under section 164, Cr.P.C., we must point out that the contradiction, if any, cannot be used in favour of the defence, when the defence, while crossexamining the victim, did not draw the attention of the victim to the contents of her previous statement and, hence, without giving any opportunity to the victim to have her say in the matter, in the manner as is suggested by section 145 of the Evidence Act, it would not only be unwise but highly prejudicial to the prosecution if we attribute, now, any importance to the contradiction, if any, between the evidence of the victim and her statement, recorded under section 164 Cr.P.C, when no opportunity has been given to the victim to have her say in the matter.
75. The evidence of PW 2, Exh.14, who is a child witness, though indicates that the appellant committed a dastardly act of making an attempt to violate minor girl, but the evidence is not conclusive to establish beyond all reasonable doubt that an offence of rape within the meaning of section 375 IPC was committed in this case. Penetration is sufficient to constitute the sexual intercourse necessary to commit the offence of rape, but the same must be established by the prosecution by leading appropriate evidence. We do not rule out that no act was committed by the appellant herein to violate the person of the victim girl. The victim girl has herself stated that she was made naked by the appellant and the appellant also removed his undergarments with a positive intention to commit rape which, however, could not be established conclusively in view of the medical evidence as recorded by the PW Nos.13 and 15 respectively. From the evidence of the victim girl, coupled with the other circumstances on record, we are of the view that the appellant herein made an attempt to commit rape upon the victim girl, but the evidence as to commission of the offence of rape is not conclusive. This is not a case of just an indecent assault upon the victim punishable under section 354 of the IPC.
76. Every criminal act of rape or an attempt thereof does involve an indecent assault. In order to amount to an attempt to commit an offence, the act of the accused must have proceeded beyond the stage of preparation. If the act of the accused does not constitute anything beyond preparation and falls short of an attempt, he may escape the liability under Sections 376 and 511 of the IPC, and may be liable to be convicted only for an offence amounting to an indecent assault. Their Lordships of the Supreme Court observed in Abhayanand Mishra vs. State of Bihar, AIR 1961 SC 1698 : (1961 (2) Cri. LJ 822);
“There is a thin line between the preparation for and an attempt to commit an offence. Undoubtedly, a culprit first intends to commit the offence, then makes preparation for committing it and thereafter attempts to commit the offence. If the attempt succeeds, he has committed the offence; if it fails due to reasons beyond his control, he is said to have attempted to commit the offence. Attempt to commit an offence, therefore, can be said to begin when the preparations are complete and the culprit commences to do something with the intention of committing the offence and which is a step towards the commission of the offence. The moment he commences to do an act with the necessary intention, he commences his attempt to commit the offence. A person commits the offence of 'attempt to commit a particular offence' when (i) he intends to commit that particular offence; and (ii) he, having made preparations and with the intention to commit the offence, does an act towards its commission; such an act need not be the penultimate act towards the commission of that offence but must be an act during the course of committing that offence.”
77. In every crime, there is first, intention to commit, secondly preparation to commit it, thirdly, attempt to commit it. If the third stage, that is, attempt is successful, then the crime is complete. If the attempt fails the crime is not complete, but law punishes the person attempting the Act, Section 511 is a general provision dealing with attempts to commit offences not made punishable by other specific sections. It makes punishable all attempts to commit offences punishable with imprisonment and not only those punishable with death. An attempt is made punishable, because every attempt, although it falls short of success, must create alarm, which by itself is an injury, and the moral guilt of the offender is the same as if he had succeeded. Moral guilt must be united to injury in order to justify punishment. As the injury is not as great as if the act had been committed, only half the punishment is awarded.
78. Attempt to commit an offence can be said to begin when the preparations are complete and the culprit commences to do something with the intention of committing the offence and which is a step towards the commission of the offence. The moment he commences to do an act with the necessary intention, he commences his attempt to commit the offence. The word "attempt" is not itself defined, and must, therefore, be taken in its ordinary meaning. This is exactly what the provisions of Section 511 require. An attempt to commit a crime is to be distinguished from an intention to commit it, and from preparation made for its commission. Mere intention to commit an offence, not followed by any act, cannot constitute an offence. The will is not to be taken for the deed unless there be some external act which shows that progress has been made in the direction of it, or towards maturing and effecting it. Intention is the direction of conduct towards the object chosen upon considering the motives which suggest the choice. Preparation consists in devising or arranging the means or measures necessary for the commission of the offence. It differs widely from attempt which is the direct movement towards the commission after preparations are made.
79. An attempt to commit an offence is an act, or a series of acts, which leads inevitably to the commission of the offence, unless something, which the doer of the act neither foresaw nor intended, happens to prevent this. An attempt may be described to be an act done in part execution of a criminal design, amounting to more than more preparation, but falling short of actual consummation, and, possessing, except for failure to consummate, all the elements of the substantive crime. In other words, an attempt consists in it the intent to commit a crime, falling short of, its actual commission or consummation/completion. It may consequently be defined as that which if not prevented would have resulted in the full consummation of the act attempted. The illustrations given in Section 511 clearly show the legislative intention to make a difference between the cases of a mere preparation and an attempt
80. In order to find an accused guilty of an attempt with intent to commit a rape. Court has to be satisfied that the accused, when he laid hold of the prosecutrix, not only desired to gratify his passions upon her person, but that he intended to do so at all events, and notwithstanding any resistance on her part. Indecent assaults are often magnified into attempts at rape. In order to come to a conclusion that the conduct of the accused was indicative of a determination to gratify his passion at all events, and in spite of all resistance, materials must exist. Surrounding circumstances many times throw beacon light on that aspect. (See Koppula Venkat Rao vs. State of Andhra Pradesh, 2004 (3) SCC 602).
81. The defence put forward by the accused that he has been falsely implicated in a serious offence like rape on a minor girl on account of the enmity between the mother of the victim and the mother of the accused is also very hard to digest. Having regard to the materials on record, we find the defence quite unpalatable.
82. In cases, where the accused claims that a false case has been foisted against him, often suggestions are made to some of the prosecution witnesses alleging malice on their part of illwill against the accused. Suggestion may be also with regard to the ill-will between the accused and the victim or the complainant in whom the witness may be interested. When there are materials to support such allegation, eviedence of such witness has to be either considered with caution or may be rejected as tainted depending on the acceptability of such material. But, where there are no materials to support such suggestion, evidence of a witness cannot be rejected only on suspicion. It is only if the malice or ill-will suggested is so strong as to probabalise the possibility of the victim or the complainant hoisting a false case, that, suggestion assumes importance and the deposition of the witness has to be carefully scrutinised to decide about the acceptability or otherwise of the evidence of such witness.
83. At the cost of repetition, we state that normally, no girl or her parents would come forward to make humiliating statement against the honour of the girl, therefore, the evidence of the prosecutrix and her parents should not be discarded lightly.
84. In Radhakrishna Nagesh vs. State of A.P., (2013) 11 SCC 688, the Supreme Court has held thus:
Penetration itself proves the offence of rape, but the contrary is not true i.e. even if there is no penetration, it does not necessarily mean that there is no rape. The Explanation to Section 375 IPC has been worded by the legislature so as to presume that if there was penetration, it would be sufficient to constitute sexual intercourse necessary for the offence of rape. Penetration may not always result in tearing of the hymen and the same will always depend upon the facts and circumstances of a given case. The Court must examine the evidence of the prosecution in its entirety and then see its cumulative effect to determine whether the offence of rape has been committed or it is a case of criminal sexual assault or criminal assault outraging the modesty of a girl. “
85. On consideration of the evidence as discussed above, we find the appellant guilty for commission of the offence under section 376 read with section 511 IPC.
86. It is well settled legal position that if an accused is charged of a major offence but is not found guilty thereunder, he can be convicted of minor offence, if the facts established indicate that such minor offence has been committed. Reference in this regard may be made to the decision of this Court in State of Maharashtra v. Rajendra Jawanmal Gandhi, (1997) 8 SCC 386; and Tarkeshwar Sahu v. State of Bihar, (2006) 8 SCC 560.
87. It is true that there was no charge under Section 376 read with Section 511 IPC. However, under Section 222 of the CrPC 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.
88. The Supreme Court in Shamnsaheb M. Multtani v. State of Karnataka, (2001) 2 SCC 577 had an occasion to deal with Section 222 of the CrPC. The Court came to the conclusion that when an accused is charged with a major offence and if the ingredients of major offence are not proved, the accused can be convicted for minor offence, if ingredients of minor offence are available. The Supreme Court observed as follows in relevant para:
16. What is meant by `a minor offence' for the purpose of Section 222 of the Code? Although the said expression is not defined in the Code it can be discerned from the context that the test of minor offence is not merely that the prescribed punishment is less than the major offence. The two illustrations provided in the section would bring the above point home well. Only if the two offences are cognate offences, wherein the main ingredients are common, the one punishable among them with a lesser sentence can be regarded as minor offence vis-`-vis the other offence.”
89. So, if it appears to the Court that Section 376 IPC is not applicable but a lesser offence under 376 read with 511 IPC is made out, the court is not prevented from taking recourse to and punishing the accused for the commission of such lesser offence. The attempt to commit rape is lesser offence than that of rape, and there is no bar of converting the act of the accused from Section 376 to Section 511.
90. Therefore, both the appeals are partly allowed. The judgment and order of acquittal passed by the Special & Addl. Sessions Judge, Bharuch is hereby quashed and set aside. The accused appellant is held guilty for attempt to commit rape punishable under section 376 read with section 511 of the IPC. As we are holding the respondent-accused guilty of an attempt to commit rape, the respondent-accused cannot be held guilty of the offences punishable under sections 4 and 6 of the POCSO Act, 2012. The order of acquittal passed by the Trial Court so far as the offences under the POCSO Act are concerned, is hereby affirmed.
91. The next step in the process is to pass an appropriate order of sentence. Before we proceed to pass an appropriate order of sentence, it will be in the fitness of things, and in tune with the provision of section 235 of the Cr.P.C. to hear the accused before we appropriately punish him for the offence.
92. At this stage, the learned APP appearing for the State as well as Ms. Shah, the learned counsel appearing for the complainant submitted that there is no need to hear the accused on the point of sentence. Both the learned counsel submitted that section 235(2) of the Cr.P.C. are attracted only at the stage of trial and not when the matter is before the Appeal Court. Both the learned counsel placed reliance on a decision of the Supreme Court in the case of Shankar Kerba Jadhav & Ors. vs. The State of Maharashtra, AIR 1971 SC 840.
93. On the other hand, Mr. Barod, the learned counsel appearing for the respondent-accused submitted that the provisions of section 235(2) of the Code are mandatory and the breach thereof would not be a mere irregularity curable under section 465 of the Code. Besides the same, Mr. Barod submitted that the respondent-accused, at the time of the commission of the offence, was below 21 years of age and as he has been convicted for attempt to commit rape punishable under section 376 read with section 511 of the IPC, section 6 of the Probation of Offenders Act, 1958 will apply with all force. In such circumstances, according to Mr. Barod, this Court should call for the report of the Probation Officer and, thereafter, hear the accused on the point of sentence and take an appropriate decision.
94. The question that falls for decision is whether the Appeal Court, converting the judgment of acquittal into conviction, must hear the accused on the question of sentence. In other words, whether the provisions of section 248(2) of the Code also apply to the Appeal Court.
95. The Law Commission in its 48th Report said : -
45. It is now being increasingly recognised that a rational and consistent sentencing policy requires the removal of several deficiencies in the present system.
One such deficiency is the lack of comprehensive information as to the characteristics and background of the offender. The aims of sentencing themselves obscure - become all the more so in the absence of information on which the correctional process is to operate. The public as well as the Courts themselves are in dark about judicial approach in this regard.
We are of the view that the taking of evidence as to the circumstances relevant to the sentencing should be encouraged and both the prosecution and the accused be allowed to co-operate in the process.....”
96. The recommendations of Law Commission were incorporated in Sub-section (2) of Section 235 for trial before Court of Session and in Sub-section (2) of Section 248 for trials of warrant cases, of the Code of 1973.
97. Section 248(2) runs as under : -
Where, in any case under this Chapter, the Magistrate finds the accused guilty, but does not proceed in accordance with the provisions of Section 325 or Section 360 he shall, after hearing the accused on the question of sentence, pass sentence upon him according to law.”
98. Section 235(2) of the Code runs as under : -
If the accused is convicted, the Judge shall, unless he proceeds in accordance with the provisions of Section 360, hear the accused on the question of sentence, and then pass sentence on him according to law.”
99. In Tarlok Singh v. State of Punjab, AIR 1977 SC 1747, it was observed that Section 235(2) makes a departure from the previous Code on account of humanist consideration to personalise the' sentence to be awarded. The object of the provision is to give a fresh opportunity to the convicted person to bring to the notice of the Court such circumstances as may help the Court in awarding an appropriate sentence having regard to the personal, social and other circumstances of the case.
100. The scope of Section 235(2) was examined in Santa Singh v. The State of Punjab, AIR 1976 SC 2386, and it was observed as under : -
The Court must in the first instance deliver a judgment convicting or acquitting the accused. If the accused is acquitted, no further question arises. But, if he is convicted, then the Court has to hear the accused on the question of sentence and then pass a sentence on him according to law. When a judgment is rendered convicting the accused, he is, at that stage, to be given an opportunity to be heard in regard to the sentence and it is only after hearing him that the Court can proceed to pass the sentence.”
101. The Supreme Court held that the provisions of Section 235(2) are mandatory and the breach thereof cannot be ignored as inconsequential, nor can it be described as mere irregularity curable Under Section 465.
102. The scope and importance of Section 248(2) was examined in Mohammad Giasuddin v. State of Andhra Pradesh, AIR 1977 SC 1926, wherein it was observed as under : -
There is need on the part of judges to see that sentencing ceases to be downgraded to Cindrella status.
The new Criminal Procedure Code gives an opportunity to both parties to bring to the notice of the Court facts and circumstances, which will help personalise the sentence from a reformative angle. It is fundamental to put such a provision to dynamic judicial use.”
103. The aforesaid cases and catena of other cases, with which I do not propose to burden this judgment, leave no manner of doubt that hearing on the nature and quantum of punishment is a condition precedent for passing sentence on the accused found guilty of the offence charged. The provisions are mandatory and their breach vitiates the sentence.
104. It was next argued that the provisions of Section 235(2) are attracted only at the stage of trial and not when the matter is before the appeal Court. It is, therefore, essential to examine the powers of the appeal Court. Sub-section (a) of Section 386 of the Code runs as under : -
"(a) in an appeal from an order of acquittal, reverse such order and direct that further enquiry be made, or that the accused be retried or committed for trial, as the case may be, or find him guilty and pass sentence on him according to law"
105. The words "pass sentence according to law" were interpreted in Shankar Kerba Jadhav and Ors. v. The State of Maharashtra, AIR 1971 SC 840, wherein the Court observed :- "An appeal is a creature of a Statute and the powers and jurisdiction of the appellate Court must be circumscribed by the words of the statute. At the same time a Court of appeal is a "Court of error" and its normal function is to correct the decision appealed from and its jurisdiction should be co-extensive with that of the trial Court. The words 'sentence according to law' mean any sentence that could be given for the offence, but in imposing sentence, the appeal court should not impose sentence more severer than the accused should have got if he were convicted by the Magistrate. In other words the appeal Court should not exceed the maximum limit of sentence which the trial Magistrate is empowered to impose.”
106. In Dagdu and Ors. v. State of Maharashtra, AIR 1977 SC 1579, the Supreme Court held :
The imperative language of Sub-section (2) of Section 235, Criminal Procedure Code leaves no room for doubt that after recording the finding of guilt and the order of conviction, the Court is under an obligation to hear the accused on the question of sentence unless it releases him on probation of good conduct or after admonition Under Section 360. The mandate of Section 235(2) must be obeyed in its letter and spirit. But if, for any reason, it omits to do so and the accused makes a grievance of it in the higher Court, it would be open to that Court to remedy the breach by giving a hearing to the accused on the question of sentence.”
The Court may, in appropriate cases, have to adjourn the matter in order to give to the accused sufficient time to produce the necessary data and to make his contentions on the question of sentence. That, perhaps, must inevitably happen where the conviction is recorded for the first time by a higher Court. For a proper and effective implementation of the provision contained in Section 235(2), it is not always necessary to remand the matter to the Court which recorded the conviction.
Remand is an exception, not the rule, and ought to be avoided as far as possible in the interests of expeditious, though fair, disposal of cases.”
107. The decision of the Supreme Court in Shankar Kerba Jadhav (supra), relied upon by the learned APP as well as by the learned counsel appearing for the complainant would not save the situation. That was a case in which the accused was convicted by the trial Court but was acquitted in appeal by the Sessions Judge. The State filed appeal against his acquittal. The High Court allowed the appeal and after setting aside the acquittal convicted him. The High Court awarded sentence higher than passed by the trial Court. In appeal before the Supreme Court, it was argued that it was not open to the High Court exercising the appellate jurisdiction Under Section 423(1)(a) of the Code of Criminal Procedure to enhance the sentence passed by the trial Magistrate and that even if the High Court was competent to do so, the appellants should have been asked to show cause why the sentence imposed on them by the Magistrate should not be enhanced and in the absence of such opportunity no enhancement of sentence was competent. Repelling this argument, the Supreme Court observed : -
"Where in an appeal from an order of acquittal preceded by an order of sentence, the accused is given notice of appeal and actually takes part in the hearing before the High Court, it would be superfluous to give him notice to show cause why a sentence within the competence of the trial Magistrate should not be passed. The accused knows or ought to know that the High Court was bound to form its own conclusions on the material before it and award a sentence which the merits of the case demanded within the limit of the trial Court's jurisdiction.”
The absence of a show cause notice does not violate any known principle of natural justice.”
108. This was a case under the repealed Code of Criminal Procedure, 1898. The observations applied to a case wherein the appeal against acquittal was preceded by a conviction and sentence by the trial Court and in such a case, show cause notice was not essential. By implication, the learned counsel for the accused argued that, in an appeal against acquittal which was not preceded by a conviction and sentence, rules of natural justice by issue of show cause notice ought to be observed. Some force does appear in the submission of the learned counsel for the accused. However, when the law has already been laid down, in Dagdu's case (supra), with reference to Code of 1973, we need not engage ourselves with regard to the provisions of repealed Code.
109. In view of the foregoing discussions, we are of the opinion, that the appeal Court, on finding the accused guilty of the charge for the first time, must hear the accused on the nature and quantum of sentence as required by Section 235(2) of the Code.
110. Sections 4 and 6 of the Probation of Offenders Act, 1958 reads thus;
“Sec.4:- Power of court to release certain offenders on probation of good conduct.— (1) When any person is found guilty of having committed an offence not punishable with death or imprisonment for life and the court by which the person is found guilty is of opinion that, having regard to the circumstances of the case including the nature of the offence and the character of the offender, it is expedient to release him on probation of good conduct, then, notwithstanding anything contained in any other law for the time being in force, the court may, instead of sentencing him at once to any punishment direct that he be released on his entering into a bond, with or without sureties, to appear and receive sentence when called upon during such period, not exceeding three years, as the court may direct, and in the meantime to keep the peace and be of good behaviour: Provided that the court shall not direct such release of an offender unless it is satisfied that the offender or his surety, if any, has a fixed place of abode or regular occupation in the place over which the court exercises jurisdiction or in which the offender is likely to live during the period for which he enters into the bond.
(2) Before making any order under sub-section (1), the court shall take into consideration the report, if any, of the probation officer concerned in relation to the case.
(3) When an order under sub-section (1) is made, the court may, if it is of opinion that in the interests of the offender and of the public it is expedient so to do, in addition pass a supervision order directing that the offender shall remain under the supervision of a probation officer named in the order during such period, not being less than one year, as may be specified therein, and may in such supervision order, impose such conditions as it deems necessary for the due supervision of the offender.
(4) The court making a supervision order under subsection (3) shall require the offender, before he is released, to enter into a bond, with or without sureties, to observe the conditions specified in such order and such additional conditions with respect to residence, abstention from intoxicants or any other matter as the court may, having regard to the particular circumstances, consider fit to impose for preventing a repetition of the same offence or a commission of other offences by the offender.
(5) The court making a supervision order under subsection (3) shall explain to the offender the terms and conditions of the order and shall forthwith furnish one copy of the supervision order to each of the offenders, the sureties, if any, and the probation officer concerned.”
Sec.6:-Restrictions on imprisonment of offenders under twenty-one years of age.— (1) When any person under twenty-one years of age is found guilty of having committed an offence punishable with imprisonment (but not with imprisonment for life), the court by which the person is found guilty shall not sentence him to imprisonment unless it is satisfied that, having regard to the circumstances of the case including the nature of the offence and the character of the offender, it would not be desirable to deal with him under section 3 or section 4, and if the court passes any sentence of imprisonment on the offender, it shall record its reasons for doing so.
(2) For the purpose of satisfying itself whether it would not be desirable to deal under section 3 or section 4 with an offender referred to in sub-section (1) the court shall call for a report from the probation officer and consider the report, if any, and any other information available to it relating to the character and physical and mental condition of the offender.”
111. In the aforesaid context, we may refer to and rely upon the decision of the Supreme Court in the case of Satyabhan Kishore & Anr. vs. The State of Bihar, AIR 1972 SC 1554, wherein the Supreme Court has observed as under;
In Rattan Lal v. State of Punjab Court, after examining Section 11 of the Act, held that the language of that section was comprehensive enough to enable this Court either to apply Section 6 on its own whenever it was applicable, or direct the High Court to do so. Section 3 of the Act confers on the Court discretion in the case of a person found guilty of having committed an offence punishable under Section 379 or Section 380 or Section 381 or Section 404 or Section 420 of the Penal Code or any offence punishable with imprisonment of not more than two years or with fine or both under the Code or any other law provided there is no previous conviction proved against such an offender, if the court by which he is found guilty is of opinion that having regard to the circumstances of the case, including the nature of the offence and the character of the offender it is expedient to do so, to release him after due admonition. Section 4 likewise gives discretion to the court in cases where a person is found guilty of an offence provided it is one which is not punishable with death or imprisonment of life and the court by which such offender is found guilty is of opinion, having regard to the circumstances of the case and the nature of the offence, that it is expedient to release him on probation on good conduct, to direct that instead of sentencing him to any punishment he should be released on entering into a bond with or without sureties to appear and receive sentence when called upon during such period not exceeding three years as the court may direct and in the meantime to keep peace and be of good behavior Sub-section (2) of Section 4 requires the court to take into consideration the report, if any, of the probation officer in relation to the case before passing an order under Sub-section (1).
9. Whereas Sections 3 and 4 leave it to the discretion of the court to make an order as provided therein, Section 6 provides that where a person under 21 years of age is found guilty of an offence punishable with imprisonment (but not with imprisonment for life), the court by which he is found guilty shall not sentence him to imprisonment, unless it is satisfied, having regard to the circumstances of the case, including the nature of the offence, that it would not be desirable to deal with him under Section 3 or Section 4, and if the court passes any sentence of imprisonment on such offender it shall record its reasons for doing so. Under Sub-section (2), the court, for the purpose of satisfying itself whether it would not be desirable to deal with such an offender under Section 3 or Section 4, shall call for a report from the probation officer and consider such report, if any, and any other information available to it relating to the character and physical and mental condition of the offender. Section 6 thus lays down an injunction, as distinguished from the discretion under Sections 3 and 4 not to impose a sentence of imprisonment upon an offender of the class covered by the section unless for reasons to be recorded by it, the court finds it undesirable to proceed with him under Section 3 or Section 4. “
112. Thus, in view of the above, we will have to call for the report of the Probation Officer as mandated under section 6(2) of the Act, 1958.
113. The Registry is directed to immediately call for the report of the Probation Officer, District: Bharuch as regards the respondent-accused and shall ensure that the same reaches this Court on or before 18th March, 2019.
114. Mr. Barod, the learned counsel appearing for the respondent-accused shall inform the respondent-accused to personally remain present before this Court on 18th March, 2019. We, therefore, adjourn the case to 18th March, 2019 for hearing the accused-Sunilbhai Rameshbhai Vasava on the question of sentence. If on that day, he fails to appear before this Court, we shall hear his counsel on the question of sentence.
115. The Registry shall notify this matter on 18th March, 2019 for the purpose of hearing the accused on the point of sentence.
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