Supreme Court: Defining the scope of the term ‘rape’ under Section 375
of Penal Code, 1860, the 2-judge bench of Hon’ble A.K. Patnaik and Gyan
Sudha Misra, JJ held that even the slightest penetration is sufficient
to make out an offence of rape and depth of penetration is immaterial.
Rejecting the contention of the appellant that the act was merely an
attempt to rape as the hymen of the prosecuterix was not ruptured, the
Court held that even though the hymen of the prosecutrix
was not ruptured, there was penetration which has caused bleeding in
the private parts of the prosecutrix as the non-rupture of hymen is not
sufficient to dislodge the theory of rape. [Parminder v. State of Delhi,
Criminal Appeal No. 133 of 2006, decided on January 16, 2014]1
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL No. 133 of 2006
This is an appeal by way of special leave under
Article 136 of the Constitution against the judgment dated
06.03.2003 of the Delhi High Court in Criminal Appeal No.
696 of 2002 by which the conviction of the appellant
under Sections 376 and 506 of the Indian Penal Code,
1860 (for short ‘IPC’) and the sentences imposed by the
trial court on the appellant have been maintained.
Facts:
Page 2
2. The facts very briefly are that on 30.01.2001 at
about 8.00 p.m., a young girl of about fourteen years
accompanied by her parents, lodged the First Information
Report (for short ‘the FIR’) in Police Station, Khajoori Khas,
Delhi, in which she stated as follows: She was a student of
Higher Secondary School and residing with her parents at
House No.131, Gali No.12, Khajoori Khas, Delhi. Opposite
to their house was the house of Sardar Jagir Singh. Babbo,
daughter of Sardar Jagir Singh, was her friend and she
used to visit the house of Sardar Jagir Singh to meet
Babbo. On 28.01.2001 at about 8.30 p.m., the lights in
the area went off and as the generator at the house of
Sardar Jagir Singh was on, the prosecutrix went to meet
Babbo. She enquired from the appellant, the son of
Sardar Jagir Singh, as to whether Babbo was in the house
and the appellant told her that Babbo was inside the
room. When she entered inside the room, the appellant
followed her into the room, bolted the room from inside
and forcibly put her on the cot. When she raised an alarm,
the appellant slapped her. He then took out her salwar
and underwear and raped her. He also threatened her
2
Page 3
with death if she narrated the incident to anybody. Out of
fear and shame, she did not narrate the incident to
anybody, but in the evening of 30.01.2001 she narrated
the incident to her mother.
3. On this statement of the girl (hereinafter referred
to as ‘the prosecutrix’), a case under Sections 376 and
506, IPC, was registered on 30.01.2001. The prosecutrix
was medically examined on the same night. On
examination of the X-rays report of the prosecutrix, the
doctor opined that her age was above fourteen years but
below sixteen years. Her clothes and vaginal swab were
sent to the Central Forensic Science Laboratory (for short
‘CFSL’) for analysis and as per the report from CFSL,
human semen and blood was detected on the underwear
of the prosecutrix, but no semen was detected in the
vaginal swab. After investigation, a charge-sheet was filed
against the appellant under Sections 342/354/376/506,
IPC. Charges, however, were framed only under Sections
376 and 506, IPC, and as the appellant pleaded not guilty,
the trial was conducted. At the trial, as many as fifteen
witnesses were examined on behalf of the prosecution
3
Page 4
including the prosecutrix. After considering the evidence
on record, the trial court convicted the appellant under
Sections 376 and 506, IPC. For the offence under Section
376, IPC, the trial court imposed the minimum sentence of
seven years rigorous imprisonment and a fine of
Rs.5,000/-, in default, rigorous imprisonment for one year
and for the offence under Section 506, IPC, the trial court
imposed a sentence of two years imprisonment and a fine
of Rs.5,000/- and in default, a rigorous imprisonment of
six months. The trial court further directed that the
sentences were to run concurrently. Aggrieved, the
appellant filed Criminal Appeal No.696 of 2002 in the High
Court, but by the impugned judgment the High Court has
dismissed the appeal.
Contentions of the parties:
4. At the hearing of this appeal, Mr. Jana Kalyan Das,
learned counsel for the appellant, submitted that at most
this is a case of attempt to rape and not rape and hence
the appellant should be held guilty under Sections
376/511, IPC, and not under Section 376, IPC. He referred
to the evidence of the prosecutrix (PW-1) as well as the
4
Page 5
medical evidence to support his submission that no
offence of rape as such has been committed of the
prosecutrix. He cited the decision of this Court in
Narender Kumar v. State (NCT of Delhi) [(2012 (7) SCC
171] for the proposition that even in a case of rape, the
onus is always on the prosecution to prove affirmatively
each ingredient of the offence it seeks to establish and
such onus never shifts and it is no part of the duty of the
defence to explain as to how and why in a rape case the
victim and other witnesses have falsely implicated the
accused. He submitted that in the event this Court finds
that the appellant is guilty of the attempt to rape and not
rape, he will be liable for half the sentence provided for
rape as will be clear from Section 511, IPC.
5. Mr. Das next submitted that the appellant while in
jail custody studied and passed Class 10 examination and
has also appeared in Class 12 examination as a candidate
from Central Jail, Tihar, Delhi, and has been released on
bail after undergoing three years and nine months of
sentence and has thereafter got married on 16.08.2007.
He further submitted that on 28.06.2008, a daughter has
5
Page 6
been born to him who is studying in lower K.G. Class and
on 13.06.2012, a second daughter has been born to him,
who is on the lap of her mother. The appellant has filed
on 12.02.2013 an affidavit stating all these facts. He
submitted that as the appellant is the sole bread earner of
the family and has been doing odd jobs in Delhi to earn a
living for the family, his family will suffer immensely if he
is to undergo imprisonment for the remaining period out
of the seven years imprisonment imposed on him by the
court. He submitted that under the proviso to Section
376(1), IPC, the court may, for adequate and special
reasons to be mentioned in the judgment, impose a
sentence of imprisonment for a term of less than seven
years. He submitted that on the facts and circumstances
stated above, this Court should reduce the sentence in
this case imposed on the appellant to the period already
undergone so that his family does not suffer. In support of
this submission, he cited the decisions of this Court in
State of Rajasthan vs. N.K. The Accused [(2000) 5 SCC
30], Sukhwinder Singh vs. State of Punjab [(2000) 9 SCC
6
Page 7
204] and Baldev Singh and Others vs. State of Punjab
[(2011) 13 SCC 705]
6. In reply, learned counsel for the State, Mr. Rakesh
Khanna submitted that the prosecution has discharged its
onus in establishing beyond reasonable doubt that the
appellant has committed rape on the prosecutrix. He
relied on the evidence of PW-1 as well as the report of the
CFSL to show that it was not a case of only attempt to
commit rape by the appellant. He submitted that the High
Court was, therefore, right in coming to the conclusion
that the appellant had committed rape on the prosecutrix.
7. On the question of sentence, Mr. Khanna
submitted that this is a case where an offence has been
committed on a minor girl and it is evident from the
statement of prosecutrix (PW-1) that on account of the
rape, her parents stopped her from going to school and
she had to study 8th Class privately. He submitted that
considering the serious nature of the sexual offence
committed by the appellant on a minor girl, this is not a fit
case in which this Court should invoke the proviso to
Section 376(1), IPC and reduce the minimum sentence of
7
Page 8
seven years for the offence of rape as provided in Section
376(1), IPC, to the period already undergone by the
appellant. He cited the decisions of this Court in State of
Madhya Pradesh vs. Bablu Natt [(2009) 2 SCC 272] and
State of Rajasthan vs. Vinod Kumar [(2012) 6 SCC 770] in
which this Court, after considering the language used in
the proviso to Section 376(1), IPC, has set aside the orders
of the High Court imposing sentences less than the
minimum sentence of seven years in cases of rape under
Section 376, IPC.
Findings of the Court:
8. The first question that we have to decide is
whether the High Court is right in coming to the
conclusion that the appellant was guilty under Section
376, IPC, for the offence of rape or whether the evidence
on record in this case only made out an offence of attempt
to rape under Section 376, IPC, read with Section 511, IPC.
We find that the High Court while coming to the conclusion
that the appellant was guilty of the offence of rape under
Section 376, IPC, has considered the evidence of the
prosecutrix (PW-1), the medical evidence and the report of
8
Page 9
CFSL. The prosecutrix has stated that the appellant
pushed her on the cot, put off her underwear and salwar
and forcibly raped her. The salwar and underwear of the
prosecutrix, which she was wearing at the time of
incident, were sent to CFSL for analysis and after
examination the CFSL had found in its report dated
30.04.2001 that there was human semen and blood on the
underwear of the prosecutrix referred to in the report as
Exhibit 4(B). Hence, there is corroboration of the
testimony of the prosecutrix that rape was committed on
her.
9. PW-15, the doctor who conducted the medical
examination of the prosecutrix on 31.01.2001, however,
has stated that there was no sign of injury on the
prosecutrix and the hymen was found intact. The High
Court has considered this evidence and has held that the
non-rupture of hymen is not sufficient to dislodge the
theory of rape and has relied on the following passage
from Modi in Medical Jurisprudence and Toxicology
(Twenty First Edition):
9
Page 10
“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 genital or leaving any seminal stains.”
Section 375, IPC, defines the offence of ‘rape’ and the
Explanation to Section 375, IPC, states that penetration is
sufficient to constitute the sexual intercourse necessary to
the offence of rape. This Court has accordingly held in
Wahid Khan v. State of Madhya Pradesh [(2010) 2 SCC 9]
that even the slightest penetration is sufficient to make
out an offence of rape and depth of penetration is
immaterial. In the aforesaid case, this Court has relied on
the very same passage from Modi in Medical
Jurisprudence and Toxicology (Twenty Second Edition)
quoted above. In the present case, even though the
hymen of the prosecutrix was not ruptured the High Court
has held that there was penetration which has caused
bleeding in the private parts of the prosecutrix as would
be evident from the fact that the underwear of the
10
Page 11
prosecutrix was stained by blood. In our considered
opinion, the High Court was right in holding the appellant
guilty of the offence of rape and there is no merit in the
contention of the learned counsel for the appellant that
there was only an attempt to rape and not rape by the
appellant.
10. The next question that we have to consider is
whether the Court should invoke the proviso to Section
376(1), IPC, and impose a sentence of imprisonment for a
term of less than seven years in this case. The proviso to
Section 376(1), IPC, as it stood prior to its amendment in
the year 2013 expressly states that the Court may impose
a sentence of imprisonment for a term of less than seven
years in an offence under Section 376(1), IPC, “for
adequate and special reasons to be mentioned in the
judgment”. We may now consider the cases cited by the
learned counsel for the parties in which this Court has
considered whether or not the proviso should be invoked
to reduce the sentence to less than the minimum
sentence in cases of rape.
11
Page 12
11. In State of Rajasthan vs. N.K. The Accused
(supra), cited by the learned counsel for the appellant, this
Court found that the accused had committed rape on the
prosecutrix who was a married woman. This Court found
that that the incident was of the year 1993 and the
accused was taken into custody by the police on
03.11.1993 and he was not allowed bail and during trial
and during hearing of the appeal, he remained in jail and
it was only on 11.10.1995 when the High Court acquitted
him of the charge that he was released from jail. This
Court held that though the accused had remained in jail
for a little less than two years and taking into
consideration the period of remission for which he would
have been entitled as well as the time which has elapsed
from the date of commission of the offence, the accused
should not be sent back to jail and reduced the sentence to
the period already undergone by him.
12. In Sukhwinder Singh vs. State of Punjab (supra),
cited by the learned counsel for the appellant, this Court
found that the prosecutrix was a consenting party to the
act of sexual intercourse and that she had willingly left her
12
Page 13
parents’ house to be with the appellant but she was found
to be “not more than sixteen years of age” and on that
account, the High Court had upheld the conviction of the
appellant. This Court held that as the prosecutrix had
since got married and she did not want the matter to be
carried any further and wanted to lead a happy and
healthy married life with her husband and had filed a
compromise petition to that effect, there were adequate
and special reasons to reduce the sentence to the period
already undergone by the accused.
13. In Baldev Singh and Others vs. State of Punjab
(supra), cited by the learned counsel for the appellant, the
accused was found guilty of gang rape under Section
376(2)(g), IPC, for which the minimum sentence was ten
years rigorous imprisonment. The proviso to Section
376(2), IPC, however, stated that the Court may, for
adequate and special reasons to be mentioned in the
judgment, impose a sentence of imprisonment of either
description for a term of less than ten years. This Court
held on the facts of the case that as the incident
happened in the year 1997 and as the parties have
13
Page 14
themselves entered into a compromise, the sentence be
reduced to the period already undergone in view of the
proviso to Section 376(2)(g), IPC.
14. In State of Madhya Pradesh vs. Bablu Natt (supra),
cited by the learned counsel for the State, this Court, on
the other hand, did not find good and adequate reasons to
reduce the sentence to less than the minimum sentence
of seven years under Section 376(1), IPC, because of the
fact that the prosecutrix was a minor and had been
subjected to rape and was compelled to live for several
days with the accused at Chhatarpur and set aside the
judgment of the High Court insofar as it imposed a
sentence of less than seven years.
15. In State of Rajasthan vs. Vinod Kumar (supra),
cited on behalf of the State, the accused-Vinod Kumar had
been convicted by the trial court under Section 376, IPC,
and sentenced to seven years imprisonment. The High
Court, however, reduced the sentence to five years
imprisonment without recording adequate and special
reasons for doing so. This Court held that the High Court
failed to ensure compliance with the mandatory
14
Page 15
requirement of the proviso to Section 376(1), IPC, to
record adequate and special reasons. This Court, after
considering the earlier decisions of this Court, held:
“23. Thus, the law on the issue can be
summarised to the effect that punishment
should always be proportionate/
commensurate to the gravity of offence.
Religion, race, caste, economic or social
status of the accused or victim are not the
relevant factors for determining the
quantum of punishment. The court has to
decide the punishment after considering all
aggravating and mitigating factors and the
circumstances in which the crime has been
committed. Conduct and state of mind of
the accused and age of the sexually
assaulted victim and the gravity of the
criminal act are the factors of paramount
importance. The court must exercise its
discretion in imposing the punishment
objectively considering the facts and
circumstances of the case.
24. The power under the proviso is not to be
used indiscriminately in a routine, casual and
cavalier manner for the reason that an
exception clause requires strict
interpretation. The legislature introduced the
imposition of minimum sentence by
amendment in IPC w.e.f. 25-12-1983,
therefore, the courts are bound to bear in
mind the effect thereof. The court while
exercising the discretion in the exception
clause has to record “exceptional reasons”
for resorting to the proviso. Recording of such
reasons is sine qua non for granting the
extraordinary relief. What is adequate and
special would depend upon several factors
15
Page 16
and no straitjacket formula can be laid
down.”
16. It is, therefore, clear that what is adequate and
special would depend upon several factors and on the
facts of each case and no straitjacket formula has been
laid down by this Court. The legislature, however, requires
the Court to record the adequate and special reasons in
any given case where the punishment less than the
minimum sentence of seven years is to be imposed. The
conduct of the accused at the time of commission of the
offence of rape, age of the prosecutrix and the
consequences of rape on the prosecutrix are some of the
relevant factors which the Court should consider while
considering the question of reducing the sentence to less
than the minimum sentence. In the facts of the present
case, we find that the prosecutrix was a student of eighth
class and was about 14 years on 28.01.2001 and she was
of a tender age. She had gone to the house of the
appellant looking for her friend Babbo, the sister of the
appellant. When she asked the appellant as to where the
sister of the accused was, he told her that she was in the
room and when she went inside the room, he followed her
16
Page 17
into the room, bolted the room from inside and forcibly put
her on the cot. The appellant then took out the salwar
and the underwear of the prosecutrix and raped her. As a
result of this incident, her parents stopped her from going
to the school and asked her to study eighth class
privately. Considering the age of the prosecutrix, the
conduct of the appellant and the consequences of the
rape on the prosecutrix, we do not think that there are
adequate and special reasons in this case to reduce the
sentence to less than the minimum sentence under
Section 376(1), IPC.
17. In the result, we do not find any merit in this
appeal and we accordingly dismiss the same.
.……………………….J.
(A. K. Patnaik)
………………………..J.
(Gyan Sudha Misra)
New Delhi,
January 16, 2014.
17
Print Page
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL No. 133 of 2006
This is an appeal by way of special leave under
Article 136 of the Constitution against the judgment dated
06.03.2003 of the Delhi High Court in Criminal Appeal No.
696 of 2002 by which the conviction of the appellant
under Sections 376 and 506 of the Indian Penal Code,
1860 (for short ‘IPC’) and the sentences imposed by the
trial court on the appellant have been maintained.
Facts:
Page 2
2. The facts very briefly are that on 30.01.2001 at
about 8.00 p.m., a young girl of about fourteen years
accompanied by her parents, lodged the First Information
Report (for short ‘the FIR’) in Police Station, Khajoori Khas,
Delhi, in which she stated as follows: She was a student of
Higher Secondary School and residing with her parents at
House No.131, Gali No.12, Khajoori Khas, Delhi. Opposite
to their house was the house of Sardar Jagir Singh. Babbo,
daughter of Sardar Jagir Singh, was her friend and she
used to visit the house of Sardar Jagir Singh to meet
Babbo. On 28.01.2001 at about 8.30 p.m., the lights in
the area went off and as the generator at the house of
Sardar Jagir Singh was on, the prosecutrix went to meet
Babbo. She enquired from the appellant, the son of
Sardar Jagir Singh, as to whether Babbo was in the house
and the appellant told her that Babbo was inside the
room. When she entered inside the room, the appellant
followed her into the room, bolted the room from inside
and forcibly put her on the cot. When she raised an alarm,
the appellant slapped her. He then took out her salwar
and underwear and raped her. He also threatened her
2
Page 3
with death if she narrated the incident to anybody. Out of
fear and shame, she did not narrate the incident to
anybody, but in the evening of 30.01.2001 she narrated
the incident to her mother.
3. On this statement of the girl (hereinafter referred
to as ‘the prosecutrix’), a case under Sections 376 and
506, IPC, was registered on 30.01.2001. The prosecutrix
was medically examined on the same night. On
examination of the X-rays report of the prosecutrix, the
doctor opined that her age was above fourteen years but
below sixteen years. Her clothes and vaginal swab were
sent to the Central Forensic Science Laboratory (for short
‘CFSL’) for analysis and as per the report from CFSL,
human semen and blood was detected on the underwear
of the prosecutrix, but no semen was detected in the
vaginal swab. After investigation, a charge-sheet was filed
against the appellant under Sections 342/354/376/506,
IPC. Charges, however, were framed only under Sections
376 and 506, IPC, and as the appellant pleaded not guilty,
the trial was conducted. At the trial, as many as fifteen
witnesses were examined on behalf of the prosecution
3
Page 4
including the prosecutrix. After considering the evidence
on record, the trial court convicted the appellant under
Sections 376 and 506, IPC. For the offence under Section
376, IPC, the trial court imposed the minimum sentence of
seven years rigorous imprisonment and a fine of
Rs.5,000/-, in default, rigorous imprisonment for one year
and for the offence under Section 506, IPC, the trial court
imposed a sentence of two years imprisonment and a fine
of Rs.5,000/- and in default, a rigorous imprisonment of
six months. The trial court further directed that the
sentences were to run concurrently. Aggrieved, the
appellant filed Criminal Appeal No.696 of 2002 in the High
Court, but by the impugned judgment the High Court has
dismissed the appeal.
Contentions of the parties:
4. At the hearing of this appeal, Mr. Jana Kalyan Das,
learned counsel for the appellant, submitted that at most
this is a case of attempt to rape and not rape and hence
the appellant should be held guilty under Sections
376/511, IPC, and not under Section 376, IPC. He referred
to the evidence of the prosecutrix (PW-1) as well as the
4
Page 5
medical evidence to support his submission that no
offence of rape as such has been committed of the
prosecutrix. He cited the decision of this Court in
Narender Kumar v. State (NCT of Delhi) [(2012 (7) SCC
171] for the proposition that even in a case of rape, the
onus is always on the prosecution to prove affirmatively
each ingredient of the offence it seeks to establish and
such onus never shifts and it is no part of the duty of the
defence to explain as to how and why in a rape case the
victim and other witnesses have falsely implicated the
accused. He submitted that in the event this Court finds
that the appellant is guilty of the attempt to rape and not
rape, he will be liable for half the sentence provided for
rape as will be clear from Section 511, IPC.
5. Mr. Das next submitted that the appellant while in
jail custody studied and passed Class 10 examination and
has also appeared in Class 12 examination as a candidate
from Central Jail, Tihar, Delhi, and has been released on
bail after undergoing three years and nine months of
sentence and has thereafter got married on 16.08.2007.
He further submitted that on 28.06.2008, a daughter has
5
Page 6
been born to him who is studying in lower K.G. Class and
on 13.06.2012, a second daughter has been born to him,
who is on the lap of her mother. The appellant has filed
on 12.02.2013 an affidavit stating all these facts. He
submitted that as the appellant is the sole bread earner of
the family and has been doing odd jobs in Delhi to earn a
living for the family, his family will suffer immensely if he
is to undergo imprisonment for the remaining period out
of the seven years imprisonment imposed on him by the
court. He submitted that under the proviso to Section
376(1), IPC, the court may, for adequate and special
reasons to be mentioned in the judgment, impose a
sentence of imprisonment for a term of less than seven
years. He submitted that on the facts and circumstances
stated above, this Court should reduce the sentence in
this case imposed on the appellant to the period already
undergone so that his family does not suffer. In support of
this submission, he cited the decisions of this Court in
State of Rajasthan vs. N.K. The Accused [(2000) 5 SCC
30], Sukhwinder Singh vs. State of Punjab [(2000) 9 SCC
6
Page 7
204] and Baldev Singh and Others vs. State of Punjab
[(2011) 13 SCC 705]
6. In reply, learned counsel for the State, Mr. Rakesh
Khanna submitted that the prosecution has discharged its
onus in establishing beyond reasonable doubt that the
appellant has committed rape on the prosecutrix. He
relied on the evidence of PW-1 as well as the report of the
CFSL to show that it was not a case of only attempt to
commit rape by the appellant. He submitted that the High
Court was, therefore, right in coming to the conclusion
that the appellant had committed rape on the prosecutrix.
7. On the question of sentence, Mr. Khanna
submitted that this is a case where an offence has been
committed on a minor girl and it is evident from the
statement of prosecutrix (PW-1) that on account of the
rape, her parents stopped her from going to school and
she had to study 8th Class privately. He submitted that
considering the serious nature of the sexual offence
committed by the appellant on a minor girl, this is not a fit
case in which this Court should invoke the proviso to
Section 376(1), IPC and reduce the minimum sentence of
7
Page 8
seven years for the offence of rape as provided in Section
376(1), IPC, to the period already undergone by the
appellant. He cited the decisions of this Court in State of
Madhya Pradesh vs. Bablu Natt [(2009) 2 SCC 272] and
State of Rajasthan vs. Vinod Kumar [(2012) 6 SCC 770] in
which this Court, after considering the language used in
the proviso to Section 376(1), IPC, has set aside the orders
of the High Court imposing sentences less than the
minimum sentence of seven years in cases of rape under
Section 376, IPC.
Findings of the Court:
8. The first question that we have to decide is
whether the High Court is right in coming to the
conclusion that the appellant was guilty under Section
376, IPC, for the offence of rape or whether the evidence
on record in this case only made out an offence of attempt
to rape under Section 376, IPC, read with Section 511, IPC.
We find that the High Court while coming to the conclusion
that the appellant was guilty of the offence of rape under
Section 376, IPC, has considered the evidence of the
prosecutrix (PW-1), the medical evidence and the report of
8
Page 9
CFSL. The prosecutrix has stated that the appellant
pushed her on the cot, put off her underwear and salwar
and forcibly raped her. The salwar and underwear of the
prosecutrix, which she was wearing at the time of
incident, were sent to CFSL for analysis and after
examination the CFSL had found in its report dated
30.04.2001 that there was human semen and blood on the
underwear of the prosecutrix referred to in the report as
Exhibit 4(B). Hence, there is corroboration of the
testimony of the prosecutrix that rape was committed on
her.
9. PW-15, the doctor who conducted the medical
examination of the prosecutrix on 31.01.2001, however,
has stated that there was no sign of injury on the
prosecutrix and the hymen was found intact. The High
Court has considered this evidence and has held that the
non-rupture of hymen is not sufficient to dislodge the
theory of rape and has relied on the following passage
from Modi in Medical Jurisprudence and Toxicology
(Twenty First Edition):
9
Page 10
“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 genital or leaving any seminal stains.”
Section 375, IPC, defines the offence of ‘rape’ and the
Explanation to Section 375, IPC, states that penetration is
sufficient to constitute the sexual intercourse necessary to
the offence of rape. This Court has accordingly held in
Wahid Khan v. State of Madhya Pradesh [(2010) 2 SCC 9]
that even the slightest penetration is sufficient to make
out an offence of rape and depth of penetration is
immaterial. In the aforesaid case, this Court has relied on
the very same passage from Modi in Medical
Jurisprudence and Toxicology (Twenty Second Edition)
quoted above. In the present case, even though the
hymen of the prosecutrix was not ruptured the High Court
has held that there was penetration which has caused
bleeding in the private parts of the prosecutrix as would
be evident from the fact that the underwear of the
10
Page 11
prosecutrix was stained by blood. In our considered
opinion, the High Court was right in holding the appellant
guilty of the offence of rape and there is no merit in the
contention of the learned counsel for the appellant that
there was only an attempt to rape and not rape by the
appellant.
10. The next question that we have to consider is
whether the Court should invoke the proviso to Section
376(1), IPC, and impose a sentence of imprisonment for a
term of less than seven years in this case. The proviso to
Section 376(1), IPC, as it stood prior to its amendment in
the year 2013 expressly states that the Court may impose
a sentence of imprisonment for a term of less than seven
years in an offence under Section 376(1), IPC, “for
adequate and special reasons to be mentioned in the
judgment”. We may now consider the cases cited by the
learned counsel for the parties in which this Court has
considered whether or not the proviso should be invoked
to reduce the sentence to less than the minimum
sentence in cases of rape.
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Page 12
11. In State of Rajasthan vs. N.K. The Accused
(supra), cited by the learned counsel for the appellant, this
Court found that the accused had committed rape on the
prosecutrix who was a married woman. This Court found
that that the incident was of the year 1993 and the
accused was taken into custody by the police on
03.11.1993 and he was not allowed bail and during trial
and during hearing of the appeal, he remained in jail and
it was only on 11.10.1995 when the High Court acquitted
him of the charge that he was released from jail. This
Court held that though the accused had remained in jail
for a little less than two years and taking into
consideration the period of remission for which he would
have been entitled as well as the time which has elapsed
from the date of commission of the offence, the accused
should not be sent back to jail and reduced the sentence to
the period already undergone by him.
12. In Sukhwinder Singh vs. State of Punjab (supra),
cited by the learned counsel for the appellant, this Court
found that the prosecutrix was a consenting party to the
act of sexual intercourse and that she had willingly left her
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Page 13
parents’ house to be with the appellant but she was found
to be “not more than sixteen years of age” and on that
account, the High Court had upheld the conviction of the
appellant. This Court held that as the prosecutrix had
since got married and she did not want the matter to be
carried any further and wanted to lead a happy and
healthy married life with her husband and had filed a
compromise petition to that effect, there were adequate
and special reasons to reduce the sentence to the period
already undergone by the accused.
13. In Baldev Singh and Others vs. State of Punjab
(supra), cited by the learned counsel for the appellant, the
accused was found guilty of gang rape under Section
376(2)(g), IPC, for which the minimum sentence was ten
years rigorous imprisonment. The proviso to Section
376(2), IPC, however, stated that the Court may, for
adequate and special reasons to be mentioned in the
judgment, impose a sentence of imprisonment of either
description for a term of less than ten years. This Court
held on the facts of the case that as the incident
happened in the year 1997 and as the parties have
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Page 14
themselves entered into a compromise, the sentence be
reduced to the period already undergone in view of the
proviso to Section 376(2)(g), IPC.
14. In State of Madhya Pradesh vs. Bablu Natt (supra),
cited by the learned counsel for the State, this Court, on
the other hand, did not find good and adequate reasons to
reduce the sentence to less than the minimum sentence
of seven years under Section 376(1), IPC, because of the
fact that the prosecutrix was a minor and had been
subjected to rape and was compelled to live for several
days with the accused at Chhatarpur and set aside the
judgment of the High Court insofar as it imposed a
sentence of less than seven years.
15. In State of Rajasthan vs. Vinod Kumar (supra),
cited on behalf of the State, the accused-Vinod Kumar had
been convicted by the trial court under Section 376, IPC,
and sentenced to seven years imprisonment. The High
Court, however, reduced the sentence to five years
imprisonment without recording adequate and special
reasons for doing so. This Court held that the High Court
failed to ensure compliance with the mandatory
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Page 15
requirement of the proviso to Section 376(1), IPC, to
record adequate and special reasons. This Court, after
considering the earlier decisions of this Court, held:
“23. Thus, the law on the issue can be
summarised to the effect that punishment
should always be proportionate/
commensurate to the gravity of offence.
Religion, race, caste, economic or social
status of the accused or victim are not the
relevant factors for determining the
quantum of punishment. The court has to
decide the punishment after considering all
aggravating and mitigating factors and the
circumstances in which the crime has been
committed. Conduct and state of mind of
the accused and age of the sexually
assaulted victim and the gravity of the
criminal act are the factors of paramount
importance. The court must exercise its
discretion in imposing the punishment
objectively considering the facts and
circumstances of the case.
24. The power under the proviso is not to be
used indiscriminately in a routine, casual and
cavalier manner for the reason that an
exception clause requires strict
interpretation. The legislature introduced the
imposition of minimum sentence by
amendment in IPC w.e.f. 25-12-1983,
therefore, the courts are bound to bear in
mind the effect thereof. The court while
exercising the discretion in the exception
clause has to record “exceptional reasons”
for resorting to the proviso. Recording of such
reasons is sine qua non for granting the
extraordinary relief. What is adequate and
special would depend upon several factors
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Page 16
and no straitjacket formula can be laid
down.”
16. It is, therefore, clear that what is adequate and
special would depend upon several factors and on the
facts of each case and no straitjacket formula has been
laid down by this Court. The legislature, however, requires
the Court to record the adequate and special reasons in
any given case where the punishment less than the
minimum sentence of seven years is to be imposed. The
conduct of the accused at the time of commission of the
offence of rape, age of the prosecutrix and the
consequences of rape on the prosecutrix are some of the
relevant factors which the Court should consider while
considering the question of reducing the sentence to less
than the minimum sentence. In the facts of the present
case, we find that the prosecutrix was a student of eighth
class and was about 14 years on 28.01.2001 and she was
of a tender age. She had gone to the house of the
appellant looking for her friend Babbo, the sister of the
appellant. When she asked the appellant as to where the
sister of the accused was, he told her that she was in the
room and when she went inside the room, he followed her
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into the room, bolted the room from inside and forcibly put
her on the cot. The appellant then took out the salwar
and the underwear of the prosecutrix and raped her. As a
result of this incident, her parents stopped her from going
to the school and asked her to study eighth class
privately. Considering the age of the prosecutrix, the
conduct of the appellant and the consequences of the
rape on the prosecutrix, we do not think that there are
adequate and special reasons in this case to reduce the
sentence to less than the minimum sentence under
Section 376(1), IPC.
17. In the result, we do not find any merit in this
appeal and we accordingly dismiss the same.
.……………………….J.
(A. K. Patnaik)
………………………..J.
(Gyan Sudha Misra)
New Delhi,
January 16, 2014.
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