* IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment Reserved on: August 22, 2017
% Judgment Delivered on: August 25, 2017
+ CRL.A.491/2017
ARIF ….. Appellant
Through: Mr.Parikshit Mahipal,
Advocate.

versus

STATE (GOVT. OF NCT OF DELHI) ….. Respondent
Through: Mr.Kewal Singh Ahuja, APP
for the State.

CORAM:
HON’BLE MS. JUSTICE PRATIBHA RANI

JUDGMENT

1. The appellant/convict Arif has preferred this appeal feeling
aggrieved by the judgment dated 15th March, 2017 and order on
sentence dated 16th March, 2017 whereby he has been held guilty for
committing the offence punishable under Section 376(2)(i) of Indian
Penal Code and sentenced to undergo RI for ten years with fine of
₹1000/- and in default of payment of fine to undergo SI for one month

2. Case FIR No.406/2013 (Ex.PW3/A) under Section 354/376 IPC
was registered at PS Bhajan Pura on the basis of complaint Ex.PW1/A
made by Sh.Maqsood Alam – father of the child victim. As per the
said complaint, on 30th September, 2013 at about 1.00 pm, he was
present at his house and his three years old daughter ‘M’ (name
withheld to conceal her identity) who was playing, went outside the

CRL.A.491/2017 Page 1 of 7
house. After some time, when he came out to look for his daughter
and was searching for her in the neighbouring house, he saw the
convict Arif in nude condition and his daughter was also in nude
condition at that time. The convict was committing ‘galat kaam’ with
her. He apprehended Arif. On hearing noise certain persons collected
there. The complainant informed his brother and after his arrival, the
police was informed. The child victim was sent for medical
examination to GTB Hospital. The convict Arif, who was arrested
from the spot, was also sent for medical examination. After
completion of investigation, he was sent to face trial for the offence
punishable under Section 354/376 IPC.

3. On 30th January, 2014, the convict was charged for committing
the offence punishable under Section 6 of POCSO Act for committing
penetrative sexual assault on the child victim and on 25th October,
2016, in the alternative, the convict was charged for committing the
offence punishable under Section 376 IPC.

4. Initially the convict was produced before Juvenile Court as he
claimed himself to be a juvenile but subsequently on the basis of his
date of birth recorded in the school certificates Ex.PW17/H and H1
and the report of ossification test Ex.PW17/L, he was held not to be a
juvenile.

5. Vide impugned judgment, the convict has been held guilty for
committing the offence punishable under Section 376(2)(i) IPC
observing that the sentence provided under Section 376(2)(i) IPC is
more severe and greater in degree than that provided under Section 6
of POCSO Act.

CRL.A.491/2017 Page 2 of 7

6. Mr.Parikshit Mahipal, learned counsel for the appellant has
limited his contention only to the extent that on the basis of MLC and
the observation by learned Trial Court recorded in para 16, he could
not have been convicted for committing the offence punishable under
Section 376(2)(i) IPC for committing the rape but only for an attempt
to commit rape. In support of his contentions, learned counsel for the
appellant has relied upon the findings of the learned Trial Court in
para 16 of the impugned judgment and the decision of the Apex Court
in Guddu @ Santosh vs. Stat eof Madhya Pradesh in Appeal (Crl.)
No.1491/2005 and of Kerala High Court in the case Mohammed Kunju
vs. State of Kerala 2007 Crl.L.J. 3929.

7. Mr.Kewal Singh Ahuja, learned APP for the State has submitted
that it is a case of committing rape on a child who was just three years
old. There is an eye witness account of the incident by her father who
saw his daughter and the convict in nude condition and the convict
was apprehended from the spot. Learned APP for the State has further
submitted that the injuries referred to in the MLC of the child victim
shows that it was a case of rape as even the slightest penetration is
sufficient to complete the offence.

8. Since the incident as well as the involvement in the occurrence
is not disputed by the convict, the limited scope within which the
impugned order has to be examined is whether it was a case of rape or
attempt to rape. Para 16 of the impugned judgment reads as under:-

’16. It is a matter of record that PW-1 never deposed
that the victim was crying when he saw her or anyone
had heard her shrieks etc. There are various means of
enticing a small child and to keep him/her quiet. The

CRL.A.491/2017 Page 3 of 7
medical examination of the victim shows that there was
no penile penetration which would have caused great
pain to her and as such, there was no question of the
victim crying. Hence, these arguments advanced by the
ld. Defence Counsel at bar have no merits in my
opinion.’

9. The MLC Ex.PW10/A of the convict records as under:-

‘L/E : No fresh external injury seen at the time of examination.

1. Scrotum – well developed in shape size

2. Penis – well developed in shape size

3. Prepuce – circumsized

4. Smegma – absent

5. Testis – well developed in shape size
Sexual character – Axillary hair public hair well developed.
Impression – There is nothing to suggest that Arif is not able to
perform sexual intercourse.’

10. Once learned Trial Court had returned a finding that it was not a
case of penile penetration, in the absence of medical opinion
confirming even the slightest penetration, he could not have been
convicted for committing the rape. It is necessary to mention here that
as per the statement of the complainant, he saw his daughter being
made to sit in his lap by the convict and the private part of the convict
was wet due to ejaculation.

11. In what circumstances a person can be convicted for attempt to
commit rape were considered in detail in the case of Koppula Venkat
Rao vs. State of Andhra Pradesh AIR 2004 SC 1874. It was observed
as under :

’11. In order to find an accused guilty of an attempt with intent
to commit a rape, Court has to be satisfied that the accused,
when he laid hold of the Prosecutrix, not only desired to gratify

CRL.A.491/2017 Page 4 of 7
his passions upon her person, but that he intended to do so at
all events, and notwithstanding any resistance on her part.
Indecent assaults are often magnified into attempts at rape. In
order to come to a conclusion that the conduct of the accused
was indicative of a determination to gratify his passion at all
events, and in spite of all resistance, materials must exist.
Surrounding circumstances many times throw beacon light on
that aspect.

12. The sine qua non of the offence of rape is penetration, and
not ejaculation. Ejaculation without penetration constitutes an
attempt to commit rape and not actual rape. Definition of
“rape” as contained in Section 375 IPC refers to “sexual
intercourse” and the Explanation appended to the Section
provides that penetration is sufficient to constitute the sexual
intercourse necessary to the offence of rape. Intercourse means
sexual connection. In the instant case that connection has not
been established. Courts below were not correct in their view.’

12. In Mayne’s Criminal Law of India 4th Edn., p.602, it is said:

‘where a full grown man has carried the offence upon a child
beyond the minimum degree of penetration which brings him
within the law, it is probable that he will cause injuries for
exceeding the mere destruction of virginity which are often
evidenced by ruptures; or lacerations of a dangerous or fatal
character.’

13. In the case Guddu @ Santosh vs. State of Madhya Pradesh in
Appeal (Crl.) No.1491 of 2005 decided on 27th April, 2006, the Apex
Court has reiterated the observations made in Aman Kumar Anr. vs.
State of Haryana (2004) 4 SCC 379 wherein it was held as under:-

‘Penetration is the sine qua non for an offence of rape. In order
to constitute penetration, there must be evidence clear and
cogent to prove that some part of the virile member of the
accused was within the labia of the pudendum of the woman, no
matter how little (See Joseph Lines IC K.

CRL.A.491/2017 Page 5 of 7

…..The actus reus is complete with penetration. It is well settled
that the prosecutrix cannot be considered as accomplice and,
therefore, her testimony cannot be equated with that of an
accomplice in an offence of rape. In examination of genital
organs, state of hymen offers the most reliable clue. While
examining the hymen, certain anatomical characteristics should
be remembered before assigning any significance to the
findings. The shape and the texture of the hymen is variable.
This variation, sometimes permits penetration without injury.
This is possible because of the peculiar shape of the orifice or
increased elasticity. On the other hand, sometimes the hymen
may be more firm, less elastic and gets stretched and lacerated
earlier. Thus a relatively less forceful penetration may not give
rise to injuries ordinarily possible with a forceful attempt. The
anatomical feature with regard to hymen which merits
consideration is its anatomical situation. Next to hymen in
positive importance, but more than that in frequency, are the
injuries on labia majora. These, viz. labia majora are the first
to be encountered by the male organ. They are subjected to
blunt forceful blows, depending on the vigour and force used by
the accused and counteracted by the victim. Further,
examination of the females for marks of injuries elsewhere on
the body forms a very important piece of evidence. To constitute
the offence of rape, it is not necessary that there should be
complete penetration of the penis with emission of semen and
rupture of hymen. Partial penetration within the labia majora
of the vulva or pudendum with or without emission of semen is
sufficient to constitute the offence of rape as defined in the law.
The depth of penetration is immaterial in an offence punishable
under Section 376 IPC.

…..

In order to find an accused guilty of an attempt with intent to
commit a rape, Court has to be satisfied that the accused, when
he laid hold of the prosecutrix, not only desired to gratify his
passions upon her person, but that he intended to do so at all
events, and notwithstanding any resistance on her part.

CRL.A.491/2017 Page 6 of 7

Indecent assaults are often magnified into attempts at rape. In
order to come to a conclusion that the conduct of the accused
was indicative of a determination to gratify his passion at all
events, and in spite of all resistance, materials must exist.
Surrounding circumstances many times throw beacon light on
that aspect.’

14. In view of the findings of the learned Trial Court to the effect
that there was no penile penetration, which has not been challenged by
the State, it was a case of only an attempt to commit rape. Hence, the
convict could have been convicted only for committing the offence
punishable under Section 376/511 IPC.

15. In view of the above discussion, the conviction of the convict is
altered from Section 376(2)(i) IPC to Section 376/511 IPC. The
substantive sentence of ten years awarded to the convict is reduced to
five years. The sentence of fine is maintained.

16. The appeal is allowed in above terms.

17. The appellant be released after undergoing the above modified
sentence, if not wanted in any other case.

18. TCR be sent back alongwith copy of this order.

19. A copy of this order be sent to the concerned Jail
Superintendent for information and compliance.

PRATIBHA RANI
(JUDGE)
AUGUST 25, 2017
‘st’

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