Holding

The prosecution proved all essential ingredients of rape, making the accused guilty of an offence under IPC s.376, and the conviction under s.354 was set aside.

Summary

The appellant, Madan Gopal Kakkad, sought to overturn a High Court judgment that convicted Naval Dubey, a medical graduate, only of outraging a woman's modesty under IPC s.354 and imposed a fine. The victim, an eight‑year‑old girl, testified that the accused stripped her, forced oral sex and slightly penetrated her vulva without rupturing the hymen. The prosecution's case rested on the victim's testimony, corroboration by relatives and neighbours, an extra‑judicial confession by the accused, and medical evidence of a labial abrasion and redness. The Supreme Court held that the evidence established all elements of rape under IPC s.376, that the confession was voluntary and duly corroborated, and that a medical officer's opinion is advisory, not determinative of the legal nature of the offence. Consequently, the conviction under s.354 was set aside, the accused was convicted under s.376, and sentenced to seven years' rigorous imprisonment and a fine of Rs.25,000. The appeal was allowed.

Issues considered

Whether the facts constitute the offence of rape punishable under IPC s.376 despite the absence of hymen rupture and only slight penetration.
Whether the extra‑judicial confession of the accused is admissible and requires corroboration.
Whether the medical expert's opinion can be treated as a legal conclusion on the nature of the offence.
Whether the High Court erred in convicting the accused under IPC s.354 instead of s.376.
Whether a fine alone is a commensurate sentence for the offence.

Legislation cited

Code of Criminal Procedure, 1973s. 378
Indian Evidence Act, 1872s. 24, s. 45
Indian Penal Code, 1860s. 354, s. 375, s. 376, s. 511

Subjects

rapechild sexual assaultextra‑judicial confessionmedical evidenceappeal against acquittalIPC s.376IPC s.354sentencecorroborationIndian Evidence ActCrPC s.378

Judgment

MADAN GOPAL KAKKAD A
v.
NAVAL DUBEY AND ANR.

APRIL 29, 1992

(S. RATNAVEL PANDIAN AND M. FATHIMA BEEVI, JJ.J B

Indian Penal Code, 1860 :

Ss. 375, 376-Rape-Accused-Medical ·graduate-Causing slight
penetmtion into vulva of 8 years girl without rupturing hymen-Medical C
evidence indicating hymen intact, abrasion on medial side of labia majora
and redness around labia minora--0/fence-Whether constituted rape-Trial
court not accepting prosecution evidence recorded acquitta~Appeal against
acquittal-High Court held victim's evidence satisfactory and found sufficient
comiboration on material aspects, belit!Ved extra-judicial confession of ac-
cused being voluntary not obtained by force, coercion etc., but accepted D
victim's evidence in part, convicted accused under s. 354 and sentenced him
to fine of Rs. 3()(}() only-Legality of-Conviction altered to one under s. 376
by Supreme Court.

Penology-Sexual assault on female children-Accused committed rape E
on 8 years girl-Conviction-Sentence to commensurate with gravity of of-
fence.

Indian Evidence Act, 1872 :

S. 24-£xtra-judicial confession-Co"oboration--Whether necessary. F
S. 45--Expert opinion-Medical witnesj'---£vidence of-Whether of ad-
visory character-Legal opinion of witness as to nature of offence-Whether
c~ be accepted.

Code of Criminal Procedure, 1973 : G
S. 378-Appeal against acquittaHligh Court's jurisdiction-Whether
plenary and unlimited to review the entire evidence.

The respondent, a medical graduate, was indulged in gratifying his
animated passions and sexual pleasures by sexually assaulting and molest· H
921
922 SUPREME COURT REPQR'J'S [1992) 2 S.C.R.

A ing young girls.

The victim girl (PW. 13) aged about 8 years was the daughter of the
neighbour of the respondent. She was a friend of n:spondent's niece and
both the children used to play together. According to the prosecution case,
on the fateful day when respondent's niece and_ PW. 13 with her younger
B brother were playing in respondent's drawing hall, and there was no one
else in the house, the respondent sent his niece with younger brother of
PW. 13 outside. He bolted the door from inside, completely stripped off
hilqself, made PW. 13 completely naked and asked her to do fellatio.
Thereafter he slightly inserted his penis into her vulva and lay over her.
C After sometime he freed the child. While she was leaving the drawing hall,
the respondent threatened her not to disclose bis affairs to anyone. She,
however, narrated the incident to respondent's niece.

In the evening PW. 13 told her mother (PW. 6) that the respondent
had asked her to suck his private part. She did not narrate the whole
D incident out of fear. The next day when PW. 13 and respondent's niece were
talking of the incident, their friend PW. 12 came there. PW. 13 narrated the
incident to her _and other girl friends. On the third day, PW. 13 told the
entire incident to her mother who conveyed it to her neighbours PWs. 9 and
10 on telephone. >'\t about 9 p.m. when the appellant (PW. 5), the father of the
E victim girl, returned home and learnt about the occurrence, he accompanied
by PWs. 7, 9, and 10 went to respondent's house, but be was not there and
they informed the brother and sister-in-law of the respondent of the purpose
of their visit. They all waited there till midnight when the respondent came.
The respondent, assessing the situation, voluntarily confessed his crime. He
admitted that he raped PW. 13 and also committed the same crime on
F earlier occasions with his niece and other minor girls, but being a doctor he
had been careful enough not to rupture their hymen. The brother of the
respondent begged of PW. 5 and others not to do anything till the arrival of
his parents. Next morning when respondent's parents reached, he again
admitted his abominable crime of sexual assault on PW. 13.
G
It took 2-3 days more to PW. S to get a written complaint (Ext. P.7)
lodged with the police through PW. 8. The police investigation culminated
in the trial of the respondent for an offence of rape committed on PW. 13.

The trial court held that the prosecution against the respondent was
H launched due to some enmity between the two families and that the
MADAN KAKKAD v. NAVAL DUBEY 923

proseeution did not adduce any acceptable evidence for holding the A
~ respondent guilty of offence under s. 376 IPC. It accordingly acquitted the
respondent.

The State filed an appeal against the acquittal before the High
Court. The complainant-appellant also filed a criminal revision challeng·
J ing the legality of the order of acquittal. On the basis of an artical relating B
-....( to the incident published in a foreign magazine, a petition was addressed
to the Chief Justice of India with a copy to the Chief Justice of the High

--
Court concerned and on its basis another criminal revision petition was
registered. The High Court disposed of aH the three cases by a common
judgment. It accepted the oral testimony of' prosecution witnesses and the c
} extra-judicial confession made .. by the res1>ondent. It, however, held the
respondent guilty of an offence under s. 354 IPC and sentenced him to
).- pay a fine of Rs. 3,000 only. The complainant-appellant filed the appeal
. , .
by special leave to this Court. The State did not file any appeal.
D
It was contended on behalf of the appellant that the High Court
erred in hoiding the respondent guilty of a minor offence under s. 354 IPC
when all the necessary ingredients to constitute an offence punish.able
under s. 376 IPC had been satisfactorily established; and the sentence of
fine alone imposed was grossly inadequate and not commensurate with the
gravity of the offence committed by the respondent. E

' Allowing the appeal and setting aside the judgment of the High
Court, this Court,

HELD : 1. The prosecution has satisfactorily established its case that
the respondent committed i·ape on PW. 13 by proving all the necessary
F
ingredients required to make out an offenice of rape punishable under
.' Section 376 IPC. [p. 947 B]
-+-r 2. When the evidence of PW. 13- that the respondent put his male
organ inside her vagina and clutched her and thereafter she suffered G
pain - is taken with the evidence of medical officer who found an abrasion
on the medial side of labia majora and redness present around the labia
minora with white discharge even after 5 days, it can be safely concluded
,_
I. that there was partial penetration within the labia majora or the vulva or
pudenda which in the legal sense is sufficient to constitute the offence of H
924 SUPREME COURT REPORTS [1992] 2 S.C.R.

A rape. Moreover, the respondent himself confessed twice admitting the .>.
commission of rape without rupturing the hymen which confession is not
disbelieved by the High Court. [p. 946 C; E-F]

3.1. The evidence of PW. 13 is amply corroborated not only by the
medical evidence and tl~e evidence of PW. 12 but also by the plenary
B confession of the respondent himself. [p. 947 A]
l

3.2. Even in cases wherein there is lack of oral corroboration to that
of a prosecutrix, a conviction can be safely recorded, provided the evidence
of the victim does not suffer from any basic infirmity, and the 'probabilities
C factor' does not render it unworthy of credence, and that as a general rule,
corroboration cannot be insisted upon, except from the medical evidence, ·--\
where, having regard to the circumstances of the case, medical evidence
can be expected to be forthcoming. [pp.939 GH; p. 940 A]

Rameshwar v. State of Rajasthan, [1952] SCR 377; Bharwada
D Bhoginbhai Hirjibhai v. State of Gujarat, [1988] 3 SCC 217; Krishan Lal v.
State of Haryana, [1980] 3 SCC 159, referred to.

4.1. In order to constitute an offence of 'Rape' as envisaged by the
first Explanation to s. 375 IPC, while there must be penetration in the
E technical sence, the slightest penetration would be sufficient and a com-
plete act of sexual intercourse is not at all necessary. [p. 945 D-H]

Parikh's Textbook of Medical Jurisprudence and Toxicology; En-
cyclopedia of Crime and Justice (Vol.4) at page 1356; Halsbury's Statutes of
England and Wales (Fourth Edition) Volume 12; Harris's Criminal Law
F (Twenty Second Edition) at page 465; Gaur's "The Penal Law of India" 6th
Edn. (Vol. II) p. 1678; Code 236 of Penal Code of California, referred to.

R. v. Hughes, [1841] 9 C & P 752; R~ v. Lines, [1844] 1 Car & Kir 393;
R.v. Nicholls, [1847] 9LTOS179; Natha v. Emperor, 26 Cr.LJ. (1925] page
G 1185;Abdul Majidv.Emperor, AIR 1927 Lahore 735 (2);MussammatJantan
v. The Crown, [1934) Punjab Law Reporter (Vol. 36) p. 35; Ghanashyam
Mishra v. State, [1957] Cr.LJ. 469 AIR 1957 Orissa 78; D. Bernard v. State,
[1974] Cr.LJ. 1098; Prithi Chand v. State of Himachal Pradesh, (1989] 1
SCC 432; In re Anthony, AIR 1960 Mad. 308, referred to.

H 4.2. In the instant case there is acceptable and reliable evidence that
MADAN KAKKAD v. NAVAL DUBEY 925

there was slight penetration though not a complete penetration. [p. 946 B] A
---l
4.3. The medical officer was of the opinion that the abrasion measur-
ing one and a half inches in length found on the medial side of the labia
majora and the redness around the labia minora could have been caused
on the date of incident. [pp. 942 H; 943 A]
B
--< Merely because the inexperienced medical officer has opined that it
was an attempt to commit rape, probably on the ground that there was no
sign of complete penetration, her legal opinion as to the nature of the

....... offence committed by the respondent cannot be accepted. [p. 943 CD]
c
4.4. A medical witness called in as an expert to assist the Court is
t
not a witness of fact and the evidence given by the medical officer is really
~- of an advisory character given on the basis of the symptoms found on
examination. The expert witness is expected to put before the Court all
materials inclusive of the data which induced him to come to the con-
clusion and· enlighten the Court on the technical aspect of the case by D
explaining the terms of science so that the Court although, not an expert
may form its own judgment on those materials after giving due regard to
the expert's opinion because once the expert's opinion is accepted, it is not
the opinion of the medical officer but of the Court. [p. 943 D-F)

R. v. Ahmed Ali, 11 WR Cr. 25; Pratap Misra v. State of Orissa, AIR E
r 1977 SC 1307, referred to.

Medical Jurisprudence and Toxicology, (Twenty First Edition) by
Modi, referred to.

5. Law does not require that the evidence of an extra-judicial confes- F
sion should in all cases be corroborated. However, the confession of the
respondent is amply corroborated by the evidence of the victim (PW. 13)
whose testimony in turn is corroborated by PWs. 5, 6, 7, 9and10 and also
by the medical evidence. [p. 939 B-C]
G
Piara Singh v. State of Punjab, [1978] 1 SCR 597, referred to.

6. In view of s. 378 of the Co9e of Criminal Procedure, 1973 (cor-
responding to s. 417 of the old' C~de), in cases of appeals against acquittal
~ as a matter of jurisdiction, the whole case is at large for review by the High
Court both as to the facts- and the law and it is -clothed with the plenary H
926 SUPREME COURT REPORTS [1992] 2 S.C.R.

A powers to go through the entire evidence and to come to its own con-
clusions of guilt or otherwise of the indicted persons as the established
facts warrant and to award appropriate sentence which will be commen·
surate with the gravity of the offence in case of conviction.
[pp. 940 DE; 941 EF]
B Sheo Swamp and others v. King Emperor, AIR 1934 PC 227 (2);
Wilayat Khan & Others v. State of U.P., AIR 1953 S.C. 122; Surajpal Singh
and others v. The State, [1952] SCR 193; Tulsi Ram v. The State, AIR 1954
S.C.1.; Aher Raja Khima v. State of Saurashtra, [1955] 2 SCR 1285; Radha
Kishan v. State of U.P., [1963] Supp. 1SCR408; Jadunath Singh and others,
etc. v. State of Uttar Pradesh, [1971] 3 SCC 577; Dharam Das v. State of
C U.P., [1973] 2 SCC 216; Barati v. State of U.P., [1974) 4 SCC 258 and Sethu
Madhavan Nair v. State of Kera/a, [1975) 3 SCC 150, referred to.

7.1. The findings of the High Court, rende~d in exercise of its ..(
appellate jurisdiction are findings of fact which cannot be reopened in
D appeal especially when the respondent has not challenged those findings
and when there is absolutely no reason muchless compelling reason for
holding that those findings are either in utter disregard of the evidence or
unreasonable and· perverse or any part of the evidence in favour of the
respondent is jettisoned. [p. 936 FG]

E 7.2. Although the High Court was fully satisfied with the evidence of
the victim PW. 13.and found sufficient corroboration on all ~aterial
particulars from the evidence of PWs. 5, 6, 9, 10 and 12 and held the extra-
judicial confession given by the respondent as true and made voluntarily
and not obtained by any inducement, coercion or threat and that there
could be penetration without rupture, yet, having accepted the entire
F prosecution evidence in toto, it com~itted an error in entertaining a doubt
with regard to the accusation of rape holding that there was no sign of
injuries and that the offence was not one punishable under s. 376 IPC or
under s. 376 read with s. 511 IPC but only one under s. 354 IPC. -~
' .
[p. 936 A·C]
G 7.3. The High Court even after obsening that "the respondent's
activities were menace to the neighbours" has shown a misplaced sympathy
to the respondent ,....ch has led to the miscarnage of justice. The finding
that the offence Is one of outraging the modesty of woman for which
sentence of lmpris0mnent is not compulsory is erroneous and untenable.
H (p. 94Z A-CJ
MAJ;>AN KAKKAD v. NAVAL DUBEY [PANDIAN, J.] 927

8. Having regard to the seriousness and gravity of the repugnant A
crime of rape perpetrated on PW. 13 who was 8 years old on the date of
the commission of the offence, while convicting the respondent under
Section 376 IPC be is sentenced to undergo rigorous imprisonment for a
period of seven years and to pay a fine of Rs. 25,000 to the victim girl.
[p. 948 B-CJ B
9. Though all sexual assaults on female children are not reported
and do not come to light yet there is an alarming and shocking increase
of sexual offences committed on children. This is due to the reasons that
children are ignorant of the act of rape and are not able to offer resistence
and become easy prey for lusty brutes who display the unscrupulous, C
~
I deceitful and insidious art of luring female children and young girls.
Therefore, such offenders who are menace to the civilised society should
·).-·
be mercilessly and inexorably punished in the severest terms. [p. 948 EF]

A.R. Antulay v. R.S. Nayak and Another, (1988) 2 SCC 602 at page
673, referred· to. D
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.
447of1988.

From the Judgment and Order dated 5.9.1986 of the Madhya
Pradesh High Court in Criminal Appeal No. 1023/83. E
Ms. Pinky Anand and D.N. Goburdhan for the Appellants.
B.P. Singh and Umanath Singh for the Respondents.

The Judgment of the Court was delivered by F

S. RATNAVEL PANDIAN, J. The factual matrix leading to the filing
of this appeal which is quite simple gives an account of a sordid and
obnoxious incident wherein the respondent, a medical practitioner who had
created a private hell of his own was gratifying his animated passions and G
sexual pleasure by sexually assaulting and molesting young girls not only in
utter disregard of the universal moral code, human dignity, his professional
ethics and values but also in flagrant violation of the law of the country.

The brief facts of this shameless intrigue as unravelled by the
prosecution at the trial are as follows: H
928 SUPREME COURT REPORTS {1992] 2 S.C.R.

A The respondent/accused who just then graduated from the Medical
College was staying with the family consisting of his parents, his brothers,
).
his .sister-in-law Smt. Tara Dubey and niece Richa Dubey, who is the
daughter of the respondent's step-brother Niraj Dubey, in Adarsh Nagar,
Jabalpur. His father Bhagwan Dass Dubey (DW-2) was a retired Professor
and his sister-in-law Tara Dubey (DW-1) was a lecturer. His another elder
B brother at the relevant time of this occurrence \\'as working as Superinten-
dent of Police in Rajgarh District. Opposite to his house at some distanee ~
Satish Bhasin (PW-9} and Sapna Bhasin (PW-10} were residing with their
minor daughter Priti. Within the same locality 3 or 4 houses away from the

c
house of the respondent/accused, the appellant Madan Gopal Kakad (PW-
5) was living with his wife, a German lady, by name, Elesabeth Kakad
__,.
(PW-6), his sister Veera (PW-7) and his minor daughter Tulna Sheri -\
(PW-13), a girl aged about 8 years and his younger son Pulkit. The family
members of the respondent and PW-5 were on cordial relationship making -{
frequent visits to the houses of each other.
D
Tulna Sheri (PW-13) the unfortunate victim in this case was studying
in the third standard in St. Joseph Convent along with her class-mate Richa
Dubey. Tulna used to come frequently to the house of the respondent to
play with Richa Dubey and her other girl friends. Tarun Lata Joshi
(PW-12) was living with her father who was a tenant in the house of PW-5.
E
According to the prosecution, the respondent who had a crush on
young girls used to develop friendship with the girls who used to come to
1
his house to play with his niece Richa Dubey by narrating interesting stories
from comic books. On the day of this deplorable incident, i.e. on 2.9.1982
F at about 4 or 5 p.m. Richa Dubey called Tulna (PW-13) stating that her
mother wanted her. Accordingly Tulna wearing underwear and jeans ac-
companied by her younger brother Pulkit went to the house of Richa, but
found none except the respondent. The respondent found fault with Tulna
for having come there in jeans accompanied by her brother. When the two ~

girls, namely, Tulna and Richa started playing in the drawing room, the
G respondent whispered something in the ears of Richa, who then told Tulna
that she had been asked by her uncle (the respondent) to take Pulkit
outside and narrate him some stories and that the respondent would 'make
love', presumably meaning that he would tell some lurid tales of sex to her
thereby stimulating immoral thoughts so that Tulna might fall a prey to his ~
H lewd and lascivious behaviour. As soon as Richa went outside taking Pulkit,
MADAN KAKKAD v. NAVAL DUBEY [PANDIAN, J.] 929

the respondent bolted the door from ins~de, completely stripped off him- A
.~ self; removed the jeans and underwear. of Tulna and made her naked and
asked Tulna to do fellatio, that is to suck bis penis. Thereafter the respon:
dent cuddled and pined Tulna close to him, and slightly inserted his penis
into her vulva and started sucking her lips. Within a few seconds, he
ejaculated and freed the girl from his clutches and thereafter put on his B
pyjamas and asked Tulna to wear her jeans. Again the respondent longing
for his lascivious passion, laid down Tulna oil. a sofa in his drawing room
and remained lying on. her and closed her mouth so that the girl could not
scream. A little later after wetting his sexual appetite he got up; opened
the door allowed the girl to go out. While the girl was leaving the drawing
hall, the respondent threatened her not to disclose his affairs to anyone, C
otherwise his elder brother who is a high ranking police officer would
mercilessly beat her parelJ,ts. Tulna came out of the room and told Richa
as to what all happened inside the room.

In the evening of that day she told her mother (PW-6) that the D
responde~t was a dirty fellow and he had asked her to suck his private part,
to which PW-6 i,nstructed not to go to the house of respondent thereafter.
However, Tulna did not narrate the entire episode to her mother on the
day of the incident evidently out of fear. When Tulna again narrated this
incident to Richa, the latter told her that her Chacha, referring to respon-
dent, was like a dog and that he used to do the same thing with her also E
by stripping of her whenever she came from the school and whenever she
was lying on her bed and further told that the respondent when asked as
to why Tulna and Priti are in fair complexion, her chacha replied that their
complexion_ is fair because they sucked his male organ and that if Richa
also did the same thing she would also become very fair in her complexion. F
PW-12, Tarun Lata Joshi, who was present nearby seeing Tulna and Richa
whispering each other asked them what was the matter. Tulna narrated the
incident to her and other girl friends. On the next day, seeing the respon-
dent standing near the gate of his house Tulna repeated the same remark
to her mother (PW-6). Thus on the third day, Tulna told her mother the
entire incident which took place in the drawing hall of the house of the G
respondent on 2.9.1982.

On hearing this horrid episode, PW-6 was very much annoyed and
conveyed this painful and jarring piece of information to PW-7 (Veera).
Then PW~6, reeling under terrible shock, telephoned to her neighbours H
930 SUPREME COURT REPORTS (1992) 2 S.C.R.

A PWs 9 .and 10 and informed them about the sexual abuse perpetrated by
the respondent on her daughter. At about 9 .00 p.m. the appellant, Madan
Gopal (PW-5) came to his house and learnt about the occurrence. Faced
with the traumatic situation, the helpless panic stricken parents who have
been so deeply disturbed by the dehumanising act of the respondent rushed
with boiling blood to the house of the rc.spondent accompanied by PWs 7,
B 9 and 10 and searched for the respondent, but could not find him there.
They then informed the purpose of their visit to the elder brother and
sister-in-law of the respondent who told PWs 5 and 6 that the respondent
had gone to a cinema hall and they would send the respondent's younger
brother to fetch him. All those including the rightful indignanted parents
C of victim Tulna, assembled in the house of the respondent, kept waiting till
mid night.· The respondent after returning from the theatre realising that
the entire atmosphere was thick with the charge of sexual molestation
against him and finding him in a culde-sac voluntarily confessed his crime
stating that he had raped Tulna and also had committed the same kind of
D sexual assault on earlier occassions with Richa, Priti and other girls of that
locality, but being a Doctor he had been careful enough not to rupture
their hymen. When PW-5 on being acerbated and mentally perturbed on
hearing the confessional statement rushed towards the respondent to attack
him, respondent's brother and sister-in-law fell at the feet of PW-5 and
pathetically beseeched not to do anything till the arrival of the parents of
E the respondent in the next morning.

Coming to know to the arrival of the father of the respondent
Bhagwan Dass (DW-2) with his wife on the next morning, Madan Gopal,
(PW 5) along with PWs 6, 9 and 10 met DW-2 who took strong objection
F for PW-S's behaviour on the last night. When PW-5 informed DW-2 that
his son (respondent) had raped his minor daugthter Tulna, DW-2 was not ·
prepared to believe t~eir accusation. Thereafter at the request of PW 5, he
called his son and questioned him. Though the respondent first abjured his
complicity, however, admitted his abominable crime of sexual assault on
Tulna. Thereupon Bhagwan Dass gave his stick to Madan Gopal and said
G that it was for PW 5 either to show mercy or to give corporeal punishment
as he deemed fit and also ntade an earnest appeal to PW-5 not to
precipitate any action against his son. Presumably, PW-5 and his family
members thinking that the· police might not take any action against the
respondent since his brother was a Superintendent of Police and his family
H was wielding a high influence in that area and also fearing that any publicity
MADAN KAKKAD v. NAVAL DUBEY [PANDIAN, J.] 931

of this incident would bring only a disrepute to their family and that the A
future life of their daughter would be completely shattered, suffered in
silence for 2 or 3 days, without approaching any authority. However, on
7.9.1982 PW-5 mustered his strength and decided to lodge a criniinal
complaint against the respondent. Accordingly, he handed over a written
complaint Ext. P-7 to his friend. Subhash Bhujbal (PW-8) and got .it , B
delivered at the police station. On the strength of Ext. P-7 a case was
registered by the SHO of Goprakhpur Police Station (PW- H) and the
investigation was entrusted to ASI (~:W-H). During the course of the
investigation the victim Tulna (PW-13) was eXruiiined by Dr. Chitra Tiwari.
(PW-4) on 7.9.82 on being sent by the police: According to PW-4 there
was an abrasion on the medial side of Labia Majora about 1-1/2" in length, C
redness present around the labia minora with a white discharge, and hymen
was intact and admitted tip of little finger. PW-4 has opined that an attempt
to rape had been made. Ext. P-6 is the medical certificate. PW-4 has
further stated that she prepared a slide for confirmation of the white
discharge found around labia minora. In the cross-examination she has D
deposed that the white discharge was not flowing out, but it was at the
same place where she noticed the redness and the discharge could have
been as a result of infection which itself could have caused the redness
found around labia minora. Further she has stated that she did not find
any crest on labia majora. The Chemical Examiner after examination of the
slide, sent his report Ext. P-13 which did not reveal any seminal stains in E
the virginal smear. PW-2, a Medical Officer examined the respondent on
13.9.82 and found him as a virile person with well built body capable of
performing sexual inter-course, but found no injuries on his person. The
Investigating Officer after examining all the witnesses and completing the
investigation filed the charge sheet against the respondent for the offence F
of rape punishable under Section 376 IPC.

The respondent took his trial on the indictment that he committed
rape on Tulna between 4 and 5 p.m. on 2.9.82 in the drawing hall of the
house of respondent. The totality of the evidence on the basis of which the
prosecution rests its case consists of three categories, namely, (1) the oral G
testimony of the PW-13 corroborated by PWs 6 and 12; (2) the extra-judi-
cial confession made by the respondent on two occassions; and (3) the
medical evidence. Of the witnesses examined Tulna (PW~13) alone speaks
about the actual commission of rape on her. Though Tulna reported this
unpleasant incident to Richa immediately .after coming out of the drawing H
932 SU~REME COURT REPORTS [1992) 2 S.C.R.

A hall, Richa has not been examined by the prosecution obviously for the
reason that Richa is none other than the niece of the respondent himself.
The next set of corroborating witnesses who speak about the victim's
reporting about the incident are PW 6 and 12. On the evening of the date
of incident even though Tulna reported to her mother that the respondent
B was a bad man and that he asked her to suck his penis, she did not reveal
the other part of the incident relating to the commission of the rape
obviously fearing that her parents would beat her. It was only on the third
day, the mother (PW-6) came to know from Tolna about the actual
incident, presumably after the victim girl started reporting this incident to
PW-12 and to her other playmates. The second category of evidence is the
C extra-judicial confession made by the respondent before PWs 5, 6, 7, 9 and
10 in the house of the respondent himself after he had been sent for from
the cinema hall. According to the above witnesses, this confession was
--
made not only in their presence, but also in the presence of the
respondent's brother and sister-in-law (DW-1). (It is but natural that the
D brother and sister-in-law of the respondent would not figure as witnesses
on the side of the prosecution and depose against the respondent). Ac-
cording to the witnesses the confession made by the respondent was thus:

"I have raped the girl, but I have not ruptured her hymen. You
should not be perplexed, I know what are my limits, I am a
E doctor. You need not to go to any doctor."

Thereafter on the next day morning the respondent made the similar
confession before his parents in the presence of PWs 5, 6, 9 and 10 when
PW-5 asked the respondent to tell the truth before his father by catching
F hold of him. On the two occasions the respondent confessed in English "I
have raped the girl but not ruptured her hymen". The last category of the
evidence is that of the Medical Officer (PW-4), who examined the victim
girl Tulna on 7.9.1982 and opined that there was an attempt of rape on
Tolna.

G The Trial Court for the discussions made in its judgment arrived at
a conclusion that the prosecution launched against the respondent on
account of some enmity between the two families and that the prosecution
has not adduced any acceptable evidence for holding the respondent guilty
of the' offence under Section 376 IPC and consequently acquitted the
H respondent. The reasons assigned by the Trial Court for such a conclusion
MADAN KAKKAD v. NAVAL DUBEY [PANDIAN, J.] 933

...__ are based on its following findings: A
(1) The evidence of PWs 5, 6, 7, 9 and 10 is highly tainted and
as such no safe reliance can be placed on their testimony.

(2) The extra-judicial '?onfession which the respondent had
retracted cannot be said to be free from threat, coercion or B
-i._ promise.

(3) The extra-judicial confession as such seems to be unnatural
and it is wholly the product of an illegal advice and false '
,,._ fabrication.
c
~
} (4) The evidence of the victim (PW-13) is not corroborated by
other independent evidence.
~
(5) The First Information Report has been belatedly lodged
and there is no reasonabie. explanation for such a delay.
D
On being aggrieved by the judgment of the Trial Court acquitting the
respondent, the State preferred an appeal before the High Court challeng-
ing the order of acquittal. It is seen from the judgment of the High Court
that_ the complainant who is the appellant before this Court also filed a
revision in Criminal Revision No. 596/83 questioning the legality of the
E
order of acquittal and further one Jay Rao of New York (U.S.A.) on the
. basis of an article relating to this incident that appeared in a German
Magazine called 'Dtr Spiegel' and after visiting Jabalpur sent a petition of
grievance addressed to the Chief Justice of India with a copy to the Chief
Justice of Madhya Pradesh. On the basis of this petition, another revision
in Criminal Revision No. 599/83 was registered. The High Court disposed F
of the State appeal and the two criminal revisions by a common judgment,
whereby it allowed the State appeal for the reasons assigned therein
accepting the oral testimony of the prosecution witnesses particularly of
PWs 6, 12 and 13 and the extra-judicial confession made by the respondent.
Now separate orders were passed in the criminal revisions. However, the G
High Court found the respondent guilty of the offence only under Section
354 IPC and sentenced him to pay a fine of Rs. 3,000, in default to suffer
simple imprisonment for 6 months and also directed a sum of Rs. 2,000 out
of the fine amount if collected to be paid over as compensation to PW-5.

The State has not preferred any appeal before this Court. However, H
934 SUPREME COURT REPORTS [1992] 2 S.C.R.

A the father of the victim girl, namely PW-5, feeling aggrieved by the judg-
ment of the High Court has filed this criminal appeal mainly on two
grounds, namely, (1) The High Court has erred in finding the respondent
guilty of a minor offence under Section 354 IPC when all the necessary
ingredients to constitute an offence punishable under Section 376 IPC have
been satisfactorily established; (2) that the sentence of fine alone imposed
B by the High Court under Section 354 IPC for this serio'us offence is grossly
inadequate and is not commensurate with the gravity of the offence com-
mitted by the respondent. When the matter came up for admission before
this Court on 25.8.88, the following order was made:

c "Special leave granted, confined to the nature of the offence
and the sentence to be awarded." -
--
It is pertinent to note that the respondent has not challenged the
findings of the High Court by filing an appeal and as such the findings of
the High Court rendered with reference to the evidence adduced by the
D prosecution and the conviction based upon those findings have reached
their finality so far as the respondent is concerned.

Before pondering over the question with regard to the nature of the
offence and the quantum of punishment to be awarded, we feel that it is
necessary to recall some of the findings of the High Court.
E
1. The High Court after observing, "there is no reason as to
why a small innocent girl would have laid such a serious charge
against the respondent, if it was not true", held that the evidence
of Tulna has been materially corroborated by her friend Tarun
.f Lata (PW 12).

2. Referring to the confession of the respondent, it has been
held by the High Court, "Though there can be penetration
without rupture, the absence of any sign of injuries, negatives
a case of rape with a small girl".
G
3. As regards the evidence of Tulna, the Court has held thus,
"The statement of Tulna can be safely accepted to the extend
that the respondent after undressing himself and Tulna, asked
her to suck his organ and he then lay over her. She has been·
H fully corroborated by her mother Elsbeth, father Madangopal,
MADAN KAKKAD v. NAVAL DUBEY [PANDIAN, J.J 935

friend Tarun Lata and neighbours Satish and Sapna. They have A
~- no axe to grind against the respondent. No adverse inference
can be drawn for lodging the report 5 days after the incident."

4. Then referring to the corroboration required to the extra-
judicial confession made by the respondent on two occasions,
the High Court has recorded the following observation: B
-(
"After realising that his misdeeds have been exposed and he
can no long~r hide himself, he had not option but to confess.

....
)'
_
This was only option left when he was cornered by his own
neighbours and relations; ...................................There was no-
question of any coercion or inducement in presence of his
c
family members in his own house ............................The con-
fession was nothing but by way of repentance for the wrongs
\.-- done to the young girls and other girls. It appears that the
respondent was a perverted person and was satisfying his
sexual urge by outraging modesty of young girls who fell D
easy prey to his designs:"

5. Commenting on the finding of the Trial Court as regards the
confession, the High Court has said, "The evidence of extra-
judicial confession has not been accepted because the witnesses
E
have not repeated like parrots in the same words what the
respondent had uttered but the substance is the same i.e. the
respondent confessed that he had violated (sic) the girl but not
ruptured her hymen. Whether the witnesses said the same thing
..- in Hindi or English would not make any difference".
F
6. Coming to the probity question of the evidence of Tulna, the
Court said thus:

~ -- "Although she was a child, she had modesty alright and was
-~
ashamed to tell everything to her mother. She was also not
sure what would be the reaction of her mother. Therefore, G
there was hesitation on her part. But she did tell to her
classmate Richa and also to her friend Tarunlata (PW 12)
about it on the next day. Tarunlata has corroborated
_her, .....................:.We are also sati~r. that Tarunlata ha~
deposed -regardmg what she was tol by Tulna................... 1 H
936 SUPREME COURT REPORTS [1992] 2 S.C.R.

A The above findings and ~bservations made by the High Court clearly
show that the High Court was fully satisfied with the evidence of the victim
Tulna (PW 13)' and found sufficient corroboration on all material par-
ticulars from the evidence of PWs 5, 6, 9, 10 and 12 and that the extra-judi-
cial confession given by the respondent was true and it was not obtained
by any inducement, coercion or threat but on the other hand it was
B voluntarily made and that there could be penetration without rupture.
Having accepted the entire evidence adduced by prosecution in toto, the
High Court nonetheless entertained aI doubt with regard to the accusation
of rape holding there was no sign of injur~es and held that the offence is

C
not one punishable under Section 376 IPC or under Section 376 read with
511 IPC but only one under Section 354 IPC on the ground that the
......
_

respondent has outraged~the modesty of Tul.'la by "feeling pleasure in
getting him and the victim made necked, asking unwarx minor girls to
fiddle with his organ" taking advantage of the absence of the other adult
family members in his house. Coming to the question of sentence, the High
D Court gave the following reason:

"The learned Govt. Advocate has nothing to say about the
sentence. There can be no doubt that the act of the respondent
is most reprehensible, he was attempting to corrupt innocent
and unwary minor girls and his activities were menace to the
E neighbours, but since he is now gainfully employed and there
is nothing to show that he is indulging in his nefarious activities,
no useful purpose will be served by again sending him to jail
and sentence of fine will meet the ends of justice."

F As we have pointed out in the preceding part of this judgment, the
findings of the High Court, rendered in exercise of its appellate jurisdiction
are findings of fact which in our opinion cannot be reopened in this appeal
especially when the respondent has not challenged those findings and when
there is absolutely no reason muchless compelling reason for holding that
those findings are either in utter disregard of the evidence or unreasonable
G and perverse or any part of the evidence in favour qf the respondent is
jettisoned. However, we would like to point out that the trial court has
allowed some inadmissible evidence to be let in by the prosecution which
evidence has also been taken note of and discussed by the Courts below,
such as the statement alleged to have been made by Richa (not examined)
H to Tulna about the respondent's abnormal sexual beba,vj01.n: -with her
MADAN KAKKAD v. NAVAL DUBEY [PANDIAN, J.] 937

despite the fact that she falls within the prohibited degree of consanguinity A
and the evidence touching the character of the respondent that he has
sexually assaulted not only Richa and Priti but also a number of minor girls.
We, while analysing and evaluating the evidence and considering the
findings of the High Court quo the sexual assault committed on PW 13 by
the respondent, proceed only on the basis of the evidence legally permis- B
sible without being influenced by the inadmissible evidence and some of
the observations made thereon by the Courts below. Before expressing our
independent opinion on the evidence, we give a brief background of the
status of the witnesses and the cordial relationship between the family
'
(
members of the respondent and the witnesses.
.c
The material prosecution witnesses are all highly educated· and re-
spectable people of the same locality within which the houses of the
respondent and the witnesses are situated. PW 5, the father of the victim
girl had been in Germany working in the field of journalism for nearly 18
years and he is well conversant with Engligh, Germany and Hindi Ian- D
guages. His wife PW 6 is a German lady who after having settled in India
has learnt to speak in Hindi. PW 7, who is the sister of PW 5, is also a well
educated lady working as a Teacher in a School. PW 6 was enjoying the
facility of a telephone connection in his house. PW 9, a Contractor and his
wife PW 10, who are the parents of Priti are very respectable people
enjoying a high social status and having their house near about the house E
of the respondent, provided with all modern facilities including telephone
etc. It is said that the people in that locality inclusive. of the family members
of the respondent used to visit' their house to make use of their telephone.
In that way the family members of the respondent, PWs 5, 9 and others
were having a very close and cordial relationship till this incident occurred. F
As earlier pointed out, respondent's father was a retired Professor and his
elder brother was then occupying a key position in the Police Force in the
rank of a Superintendent of Police posted in the district of Rajgarh during
the relevent period. His s~ster-in-law (DW-1) was a Lecturer and his uncle
was a leading lawyer. It iS said that the family of the respondent was
wielding high influence in that area. There is absolutely no evidence, even G
to remotely suggest, that there was any enmity or any kind of
misunderstanding between the families of the respondent and PW 5 till this
incident to raise the accusing finger against the respondent either by the
little innocent girl (PW 13) or by PW 5 and to make this ignoble allegations
at the risk of their family honour and the future prospects of PW 13. Of H
938 SUPREME.COURT REPORTs [1992] 2 S.C.R.

A course, the respondent has suggested a motive against PW 5 evidently
drawing the same from the fertility of his imagination that Tulna had· told
him that her parents were getting money for spying for German Embassy
and P,W 5 after coming to know of this disclosure of spying has fabricated
this false story of molestation of his mifior daughter fearing that he would
be exposed to criminal prosecution by the re!\pondent's brother, the Super-
B .intendent of Police which defence theory on the face of it has to be thrown
overboard and which in fact did not find acceptance at the hands of the ~
High Court.

~s Pinky Anand, the learned counsel appearing for the appellant
c having thoroughly marshalled the facts, presented her persuasive submis-
·sions so eloquently in an effective and at the same time in a very sup-
plicatory manner by taking us through the entire evidence very meticulously
and pleaded that the spine-chilling facts and the circumstances surrounding -../.
the case do demand the interference of this Court with the judgment of
the High Court so that the wrong done due to the erroneous conclusion of
D the High Court may be remedied. Though Ms Pinky Anand initially put
forth her arguments on two alternative grounds, namely, that the conviction
should be altered into one under Section 376 IPC or the sentence of fine
imposed for the conviction under Section 354 IPC which is grossty i11ade-
quate should be enhanced. But she left out the alternative argument and
E stressed the first part of her submission that the offence made out is
nothing short of rape punishable under Section 376 IPC. _At one point of
time, she feebly stated that at least the offence will be falling under Section i
. 376 read wi~h 511 IPC on the opinion of PW 4, if not under Section 376
IPC which submission she completely gave up subsequently and proceeded
vehemently contending that the offence .of rape within the definition of ......
F
Section 'J75 is clearly made out.

The learned counsel appearing for the respondent took much pain ,,.
in strenuously opposing the plea, articulated by Ms Pinky Anand and in r··J-..
supporting the impugned judgment. He urged that the conclusion arrived ·
G at by the High Court is the reasonable and plausible one and, therefore,
that conclusion need not be disturbed.

Though it is not necessary for us to enter upon a reappraisal or
reappreciation of the evidence since the fmdings of fact of the High Court ~
H have not been challenged, yet we after most carefully and closely scrutinis-
MADAN KAKKAD v. NAVAL DUBEY [PANDIAN, J.) 939

~ ing the galaxy of the proven facts, have no hesitation fn agreeing with the A
High Court that the extra-judicial confession made by the respondent
which is not shown to have been obtained by coercion, promise of favour
or false hope etc. is plenary in character and voluntary in its nature
acknowledging his guilt - i.e. the gravely incriminating fact of the commis-
sion· of rape on Tulna -in precise and explicit words. This confession has B
°""' been made in presence of a body of person on two occsasions inclusive of
the family members of the respondent as well as PWs 5, 6, 9 and 10. PW
7 was present only on the first occasion along with other witnesses. As ruled
by this Court in Piara Singh v. State of Punjab, AIR 1977 SC 2274 ::::. (1978)
~--- 1 SCR 597 law does not require that the evidence of an extra-judicial
}- confession should in all cases be corroborated. However, coming to the C
facts of the case, the confession of the respondent is amply corroborated
~· by the eVidence of the victim (PW 13) whose testimony in turn is cor-
roborated by PWs 5, 6, 7, 9 and 10 and als.o by the medical evidence.

As regards the evidence of PW 13 relating to the incident, the High D
Court has accepted only one part of the accusations, namely, that the
respondent asked Tulna to be an active agent of oral copulation by sucking
his penis, notwithstanding the fact that the High Court without any com-
punction has accepted the evidence of PW 13 as being substantially cor-
roborated and the extra-judicial confession of the respondent as being free
from any vice and held that "it is beyond comprehension that the corn- E
y plainant would have laid a false and reckless charge against the respondent
by involving his own minor daughter Tulna in such unsavoury incident for
nothing not caring about her future and )lis own reputation and honour.
There is no reason as to why a small innocent girl would have laid such a
serious charge against the respondent, if it was not true." In our considered
F
view, the High Court was not at all justified in reaching a distorted
conclusion which has resulted in miscarriage of justice.
~-....,.~

On a careful scanning of the entire records, we have no reservation
in accepting the evidence of PW-13 in its entirety and the extra-judicial
confession of the respondent which clearly makes out a case for an offence G
under Section 376 IPC, the reasons for which we will discuss infra.

)'- There are a series of decisions to the effect that even in cases wherein
there is lack of oral corroboration to that of a prosecutrix; a conviction can.
be safely recorded, prm,ided the evidence of the victim does not suffer from H
940 SUPREME COURT REPORTS (1992) 2 S.C.R.

A any basic infirmity, and the 'probabilities factor' does not render it unwor- ).__
thy of credence, and that as a general rule, corroboration cannot be insisted
upon, except from the medical evidence, where, having regard to the
circumstances of the case, medical evidence can be expected to be
forthcoming. Vide Rameshwar v. State of Rajasthan, [1952) SCR 377;
B Bharwada Bhoginbhai Hirjibhai v. State of Gujarat, [1988] 3 sec 217;
Krishan Lal v. State of Haryana, [1980] 3 SCC 159. . ),

We shall now briefly deal with the principles regarding the powers
of the High Court to rev.iew the evidence while examining an order of
acquittal sitting in its appellate jurisdiction.
c -{
An appeal against acquittal provided under Section 378 of the Code
of Criminal Procedure falls under Chapter XXIX under the caption "Ap- ~
peals". This Chapter covers Sections 372 to 394. Whilst Section 374 deals
with the 'Appeals from Convictions', Section 377 deals with the 'Appeal by
D the State Government against sentence'. As stated above Section 378 of the
new Code (corresponding to Section 417 of the old Code) gives the High
Court full power to review at large the evidence upon which the order of
acquittal was founded and to reach its own conclusions upon that evidence
either by reversing the order of acquittal or disposing of the same otherwise
as facts therein warrant. In other words, the High Court is clothed with the
E plenary powers to go through the entire evid.ence and to come to its own
conclusions as warranted by the facts oftlre case concerned but, of course, f
subject to certain guidelines laid down by the judicial pronouncements. The
Privy Council in Sheo Swarup and others v. King Emperor, AIR 1934 PC
227 (2) in dealing with the power of the High Court to review the evidence
F and reverse the acquittal held thus:

"Sections 417, 418 and 423 of the Code give to the High Court
full power to review at large the evidence upon which the order
of acquittal was founded, and to reach the conclusion that upon
that evidence the order of acquittal should be reversed. No
G limitation should be placed upon that power, unless it be found
expressly stated in the .Code. But in exercising the power
conferred by the Code and before reaching its conclusions upon
fact, the High Court should and will always give proper weight
and consideration to such matters as (1) the views of the trial ~
H Judge as to the credibility of the \\-itnesses; (2) the pr~sumption
MADAN KAKKAD v. NAVAL DUBEY [PANDIAN, J.] 941

of innocence in favour of the accused, a presumption certainly A
not weakened by the fact that he has been acquitted at his trial;
(3) the right of the accused to the benefit of any doubt; and
(4) the slowness of an appellate court in disturbing a finding
of fact arrived at by a Judge who had the advantage of seeing
the witnesses."
B
In Wilayat Khan & Others v. State of U.P., AIR 1953 S.C.122 this Court
while examining the scope of Sections 417 and 423 of the old Code pointed
out that even in appeals against acquittal, ~he powers of th~ High Court are as
wide as in appeals from convictions. See aIS"O SurajpalSingh and others v. The
State, [1952] SCR 193; Tulsi Ram v. The State, AIR 1954 S.C.1; Aher Raja (!
Khima v. State ofSaurashtra, AIR 1956 S.C. 217 = [1955] 2 SCR 1285; Radha
Kishan v.StateofU.P., AIIU963S.C.822 = [1963]Supp.1SCR408holding
that an appeal from acquittal need not be treated different from an appeal
from conviction; Jadunath Singh and others, etc. v. State of Uttar Pradesh,
[1971] 3 SCC 577; Dharam Das v. State of U.P., [1973) 2 SCC 216; Barati v. D
State of U.P., [1974) 4 SCC 258 and Sethu Madhavan Nair v. State of Kera/a,
(1975] 3sec150.

We think it not necessary to swell this judgment by recapitulating all
the decisions on this point, but suffice to say that this Court has consistently
taken the view that in cases of appeals against acquittal as a matter of E
jurisdiction, the whole case is at large for review by the High Court both
as to the facts and the law and that the true legal position is that however
circumspect and cautious approach of the High Court may be in dealing
.... with those appeals by exercising its plenary and unlimited statutory powers,
the Court is undoubtedly to reach its own proper conclusions of guilt or
otherwise of the indicted persons as the esta~lished facts warrant and to F
award appropriate sentence which will be commensurate with the gravity
of the offence in case of conviction.

Reverting to the instant case, if the conclusion of the High Court that
the offenee made out is only punishable under Section 354 IPC, is G
scrutinised with reference to the evidence adduced by the prosecution and
tested in the light of the above principles of law laid down by this Court,
in our view, the conclusion under challenge is not a reasonable and
justifiable one since the totality of the evidence demonstrably establishes a
graver offence. Moreover, the sentence of fine alone.imposed by the High
Court even assuming that the offence is punishable under Section 354 is H
942 SUPREME COURT REPORTS (1992] 2 S.C.R.

A grossly inadequate and is not commensurate with the serious nature of the
offence.
'\
Of. course, this question of the inadequacy of sentence under
Section 354 does not come within the purview of our consideration because
we proceed on the f<?Oting that the offence is not a mere outraging the
modesty of woman but much more than that. Further, we are constrained
to hold that the High Court even after abserving that "the respondent's
B activities were menace to the. neighbours" has shown a misplaced sympathy
to the respondent which is patently reflected from the penultimate para-
graph of its judgment and which has led to the miscarriage of justice. The

c
impugned fm4ffig that the offence is one of outraging the modesty of
woman for which sentence of imprisonment is not compulsory is erroneous
and untenable.

The next crucial questiOn that arises for our consideration is whether
the proved facts establish the offence of rape or only attempt to commit
--
--{

rape. Before the High Court, the learned Government Advocate appears
to have urged that the offence was punishable under Section 376 read with
D 511 IPC though the charge was for a specific offence of rape punishable
under Section 376 IPC.
I
The medical officer, PW 4 who was then only 28 years old, on
examining the victim after 5 days of the incident i.e. 7.9.82 has given her
opinion as follows:
E
"From the above findings, it seems an attempt to rape has been f
made."

In the cross-examination, the following answer is brought out from
the medical officer, PW 4:
F
"I concluded about attempt to rape, on account of abrasion and
redness on labia majora and minora respectively."

It is true that this medical officer who could not have gained much
G experience by that time has given her opinion that the abrasion found
would have been less than 2 days' duration which opinion of course is not
precise but approximate and probable. Though the prosecutor who con-
ducted the case before the trial court has not put any question clarifying
her opinion in the re-examination, it has been clearly brought out in the
cross-examination itself that the medical officer was basing her opinion on
H the abrasion found on labia majora and minora. It means that the medical
MADAN KAKKAD v. NAVAL DUBEY [PANDIAN, J.) 943

officer was of the opinion that the abrasion measuring one and a half inches A
. . . . .__ in length found on the medial side of the labia majora and the redness
around the labia minora could have been caused even on 2.9.82. By this
opiilion, PW 4 has given a margin of 5 days in fixing the probable duration
of the injury. The defence counsel has not further pursued and put any
question clarifying the subsequent answer given by the medical officer
regarding the duration of the injury. B

Though in the grounds of appeal, it is specifically stated that all
ingredients for constituting an offence within the ambit of Section 375,
puilishable under Section 376 IPC are made. out, alternatively a hesitant
plea is made that the offence at any rate would not be less than Section C
376 read with 511 IPC. We also prima facie were of the opinion that the
offence may be puilishable under Section 376 read with 511 IPC but after
deeply going through the evidence, we have no hesitation in holding that
the offence is nothing short of rape punishable under Section 376 IPC.
Merely because the inexperienced medical officer has opined that it was
an attempt to commit rape, probably on the ground that there was no-sign D
of complete penetration, we are not incJ.ined to accept PW 4's legal opinion
as to the nature of the offence committed by the respondent. ·

A medical witness called in as an expert to .assist the Court is not.a
witness of fact and the evidence given by the medical officer is really ()f an
advisory character given on the basis of the symptoms found on examina- E
tion. The expert witness is expected to put before the Court all materials
inclusive of the data which induced him to come to the conclusion and
enlighten the Court on the technical aspect of the case by explaining the
terms of science so that the Court although, not an expert may form its
own judgment on those materials after giving due regard to the expert's F
opinion because once the expert's opiilion is accepted, it is not the opinion
of the medical officer but of the Court.

Nariman, J. in R v. Ahmed Ali 11 WR Cr. 25 while expressing bis
view on medical evidence has observed as follows:
G
'The evidence of a medical man or other skilled witnesses,
however, eminent, as to what he thinks may or may not have
taken place under particular combination of circumstances,
however, confidently, be may speak, is ordinarily a matter of
mere ·opinion." H
944 SUPREME COURT REPORTS · [1992] 2 S.C.R.

A Fazal Ali, J. in Pratap Misra v. State of Orissa, AIR 1977 SC 1307 =
(1977] 3 sec 41 has stated thus: >---
"........it is well settled that medical jurisprudence is not an exact
science and it is indeed difficult for any Doctor to say with
precision and exactitude as to when a particular injury was
B caused...... as to the exact time when the appellants may have
had sexual intercourse with the prosecutrix."

We feel that it would be quite appropriate, in this cont~xt, to
reproduce the opinion expressed by Modi in Medical Jurispurdence and
C 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 inajora or the vulva or pudenda with or without
D emission of semen or even an attempt at penetration is quite.
sufficent for the purpose of the law. It is therefore quite
possible to commit legally the offence of rape without produc-
ing any injury to the genitals or leaving any seminal stains. In
such a case the medical officer should mention the negative
E 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 tem1 and not a diagnosis to be made by the
medical officer treating the victim. The only statement that can
t
be made by the medical officer is that there is evidence of recent
sexual activity. Whether the rape has occu"ed or not is a legal
F conclusion, not a medical one."

(emphasis supplied)

In Parikh's Textbook of Medical Jurispmdence and Toxicology, the
G 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
H to· the genitals or leaving any seminal stains."
MADAN KAKKAD v. NAVAL DUBEY [PANDIAN, J.) 945

In Encyclopedia of Crime and Justice (Vol.4) at page 13"56, it is stated: A
".....even slight penetration is sufficient and emission is unneces-
sary."

In Halsbury's Statutes of England and Wales (Forth Edition) Volume
12, it stated that even the slightest degree of penetration is sufficient to B
_.J..; prove sexual intercourse within the meaning of Section 44 of the Sexual
Offences Act 1956. Vide R v. Hughes, (1841) 9 C & P 752; R v. Lines, [1844)
1 Car & Kir 393 and R v. Nicholls, (1847) 9 LTOS 179.

......... See also Harris's Criminal Law (Twenty Second Edition) at page 465 .
c
>-- In American Jurisprudence, it is stated that slight penetration is
sufficient to complete the crime of ·rape. Code 263 of Penal Code of
).-- California reads thus:

"Rape; essentials'- Penetration sufficient. The essential guilt of
rape consists in the outrage to the person and feelings of the
D
victim of the rape. Any sexual penetration, however slight, is
sufficient to complete the crime."

The First Explanation to Section 375 of Indian Penal Code whlch
defines 'Rape' reads thus: E
y "Explanation - Penatration is sufficient to constitute the sexual
intercourse necessary to the offence of rape."

In interpreting the above explanation whether complete penetration
is necessary to constitute an offence of rape, various High Courts have F
'taken a consistant view that even the slightest penetration is sufficient to·
make out ari offence of rape and the depth of penetration is immateriaL
Reference may be made to Natha v. Emperor, 26 Cr.L.J. (1925) page 1185;
\ ~ Abdul Majid v. Emperor, AIR 1927 Lahore 735 (2); Mussammat Jantan v.
The Crown, (1934) Punjab Law Reporter (Vol.36) page 35; Ghanashyam
Mishra v. State, (1957) Cr.LJ. 469 = AIR .1957 Orissa 78; D. Bernard v. G
State (1947) Cr.L.J. 1098. In re Anthony, AIR 1960 Mad. 308 it has bee1;1
held that while there must be penetration hi the technical sense, the
slightest penetration would be sufficient and a complete act of sexual
}'- intercourse is not at all necessary. In Gour's "The Penal Law of India" 6th
Edn. 1955 (Vol. II) Page 1678, it is observed, "Even vulval penetration has H
946 SUPREME COURT REPORTS (1992) 2 S.C.R.

A been held to be sufficient for a conviction of rape."

Reference also may be made to Prithi Chand v. State of Himacha/
Pradesh, [1989) 1 sec 432 though the facts therein are not similar to this
case.

B In the case on hand, there is acceptable and reliable evidence that
there was slight penetration though not a complete penetration. The fol-
lowing evidence found in the deposition of PW 13 irrefragably proves the >-
offence of rape committed by the respondent:

''Nawal uncle untied his pyjama and took out his male organ
c and put it inside my vagina and clutched me ........... Nawal
_...
Chacha put his male organ inside my vagina and since it was -1
fat it kept slipping out. After that my vagina was paining."
---.(
"........When Nawal Uncle held apart, then there was some white
liquid coming out from bis male organ..............."
D
"Nawal Chacha pressed my mouth so I could not scream."

In the cross-examination, the following answer is given:

"I suffered pain by what Nawal Chacha did ........."
E
When the evi~e;nce of PW 13 is taken with the evidence of medical
officer who found an abrasion on the medial side of Labia Majora. and 'f
redness present around the Labia Minora with white discharge even after

F
5 days, it can be safely concluded that there was partial penetration within
the labia majora or the vulva or pudenda which in the legal sense is
sufficient to constitute the offence of rape. Moreover, the respondent
himself has confessed twice admitting the commission of rape without
--
rupturing the hymen which confession is not disbelieved by the High Court.
The respondent is a medical officer who has got the practical knowledge .,__L
of the anatomy of a human being and the tender sexual organ of a young
G girl and who must have been quite aware of the implication of his confes-
sion having fully understood the me~ of the word 'rape'. Therefore, as
admitted by the respondent himself, he without forcibly and completely
penetrating his penis into the vagina of PW 13 had slightly penetrated
within the labia majora or vulva or pudenda without rapturing the hymen
H and thereby satisfied his lust after emissi1Jn of semens. In this context,· it is ~
MADAN KAKKAD v. NAVAL DUBEY (PANDIAN, J.) 947

not necessary to enter into any nice discussion as to how far the male organ A
I ~ has entered in the vulva or pudenda of PW 13 since it is made clear that
there was penetration attracting the provisions of Section 375 IPC. The
evidence of PW 13 is amply corroborated not only by the medical evidence
and the corroborating evidrnce of PW 12 but also by the plenary confession
of tilt: rt:!>pondenc ilim!>eh.
B
;_ ~ From the above discussion, we unreservedly hold that the prosecu-
tion has satisfactorily established its case that the respondent has com-
mitted rape on PW 13 by proving all the necessary ingredients required to

---
make out an offence of rape punishable under Section 376 IPC.

In the result, we set aside the judgment of the High Court convicting
c
).---
the respondent under Section 354 IPC and sentencing.him to pay a fme of
Rs. 3,000 instead convict the respondent under Section 376 IPC.
~-
What would be the quantum of punishment that would meet the ends
of justice in the facts and circumstan~es of the case, is the next question D
for our consideration.

It is very shocking to note from the judgment of the High Court that
the Government Advocate did not address on the question of sentence.
The High Court thought of imposing fin~ only on the ground that the
respondent "is now gainfully employed and there is nothing to show that E
he is indulging in his nefarious activities". We regret to say that we are not
able to understand the above reasons which are not in conformity with the
concept of sentencing policy in a grave case of this nature.

We are told at the bar that the victim who is now 19 years old, after
having lost her virginity still remains unmarried undergoing the untold F
agony of the traumatic experience and the deathless shame suffered by her.
Evidently, the victim is under the impression that there is no monsoon
--':, .... season in her life and that her future chances for getting married and
settling do\Vn in a respectable family are completely married.
G
Though the State has kept silence after the disposal of the appeal by
~ the High Court, the helpless panic stricken father of the victim (PW 13)
with a broken heart has entered the portals of this Court and is tapping
the door, crying for justice.
>-- ft will be appropriate to refer the following observation of Ranganath H
948 SUPREME COURT REPORTS [1992] 2 S.C.R,

A Mishra, J (as he then was) in his separate concurring judgment sitting in
the Seven-Judges Bench in A.R. Antulay v. R.S. Nayak and Another, [1988)
2 sec 602 at page 673:

"No man should suffer because of the ·mistake of the
-
Court... ..............& debito justitiae, we must do justice to him. If
B a man has been wronged so long as it .lies within the human
machinery of administration of justice that wrong must be
remedied."

Accordingly, we, having regard to the seriousness and gravity of this
C repugnant crime of rape perpetrated on PW 13 who was then 8 years old
on the date of the commission of_ the offence in 1982, while convicting the
respondent under Section 376 IPC sentence him to undergo rigorous
imprisonment for a period of seven years and to pay a fine of Rs. 25,000
in default to suffer rigorous imprisonment for 1-1/2 years. The fme amount
of Rs. 25,000 if realised shall be paid to the victim girl who is now a major.
D If the fine amount of Rs. 3,000 imposed by the High Court which we have
set aside, has already been paid that amount shall be adjusted with the fme
amount now imposed by us.

"JUSTICE DEMANDS, THE COURT AWARDS"
E
Before parting with the judgment, with deep concern, we may point
out that th_ough all sexual assaults on female children are not reported and
do not come to light yet there is an alarming and shocking increase of
sexual offences committed on children. This is due to the reasons that
children are ignorant of the act of rape and are not able to offer resistence
F and become easy prey for lusty brutes who display the unscrupulous,
deceitful and insidious art of luring female children and young girls.
Therefore, such offenders who are menace to the civilised society should
be mercilessly and inexorably punished in the severest terms.

G We feel that Judges who bear the Sword of Justice should not
hesitate to use that sword with the utmost severity, to the full and to the
end if the gravity of the offences so demand.
..
The appeal is allowed accordingly.

R.P. Appeal allowed.