ISSUE - 2

2. WHETHER THE APPELLANT IS PUNISHABLE FOR RAPE UNDER SECTION 376

OF INDIAN PENAL CODE, 1860?

1. It is most humbly submitted before this Hon'ble High Court that the Appellant is punishable
for rape under section 376 of IPC, 1860 as he has committed the offence of rape. The word Rape
is defined under "section 375" which reads as follow:-

375. Rape.—A man is said to commit “rape” who, except in the case hereinafter excepted, has
sexual intercourse with a woman under circumstances falling under any of the six following de-
scriptions:—

(First) — Against her will.

(Secondly) —Without her consent.

(Thirdly) — With her consent, when her consent has been obtained by putting her or any person
in whom she is interested in fear of death or of hurt.

(Fourthly) —With her consent, when the man knows that he is not her husband, and that her
consent is given because she believes that he is another man to whom she is or believes herself to
be lawfully married.

(Fifthly) — With her consent, when, at the time of giving such consent, by reason of
unsoundness of mind or intoxication or the administration by him personally or through another
of any stupefying or unwholesome substance, she is unable to understand the nature and
consequences of that to which she gives consent.

(Sixthly) — With or without her consent, when she is under sixteen years of age.

Explanation.—Penetration is sufficient to constitute the sexual intercourse necessary to the

offence of rape.1

2. It is clearly pertinent from the post mortem report that the rape has been committed. The
internal exanination report clearly shows that there have genital injuries to a great extent and the
tongue swollen and often bruised, dark coloured and protruded. There is hemorrhage in the base
of tongue. No visible injury to the skull but the hyoid bone in the neck is fractured. The adjacent
muscles of the neck are lacerated. The larynx, trachea and bronchi are congested and contain
frothy, bloodstained mucus. Vulval opening wide easily and witting 1 finger. Blood stained
discharge inside vagina, hymen not intact2.

1
Indian Penal Code, 1860
2
Moot Proposition
3.It is appropriate in this context to reproduce the opinion expressed by Modi in Medical
Jurisprudence and Toxicology (Twenty Second Edition) at page 495 which reads thus :

"Thus, to constitute the offence of rape, it is not necessary that there should be complete
penetration of penis with emission of semen and rupture of hymen. Partial penetration of the
penis within the Labia majora or the vulva or pudenda with or without emission of semen or
even an attempt at penetration is quite sufficient for the purpose of the law. It is therefore quite
possible to commit legally, the offence of rape without producing any injury to the genitals or
leaving any seminal stains. In such a case, the medical officer should mention the negative facts
in his report, but should not give his opinion that no rape had been committed. Rape is crime
and not a medical condition. Rape is a legal term and not a diagnosis to be made by the medical
officer treating the victim. The only statement that can be made by the medical officer is to the
effect whether there is evidence of recent sexual activity. Whether the rape has occurred or not is
a legal conclusion, not a medical one."

Similarly in Parikh's Textbook of Medical Jurisprudence and Toxicology, 'sexual intercourse'

has been defined as under :

"Sexual intercourse.- In law, this term is held to mean the slightest degree of penetration of the
vulva by the penis with or without emission of semen. It is therefore quite possible to commit
legally the offence of rape without producing any injury to the genitals or leaving any seminal
stains."

If the aforesaid facts are kept in mind, it cannot be disputed that the act of the appellant would
certainly constitute an offence of rape and leaves no amount of doubt in our mind.

4.Where the entire case hinges on circumstantial evidence, great care must be taken evaluating
circumstantial evidence to ensure that the circumstances on which the prosecution relies are
wholly consistent with the sole hypothesis of the guilt of the accused. There is no eyewitness
account and the case depends wholly upon circumstantial evidence. While evaluating
circumstantial evidence, which of course has to be done carefully, the circumstances must be of
such a nature as to be capable of supporting the exclusive hypothesis that the accused is guilty of
the crime of which he is charged and the circumstances so shown by the prosecution are
compatible with no other reasonable hypothesis.3

5.In the case of Sudesh Jhaku V K.C. J. & Others 4, Section 375 IPC was analyzed. It was
observed as under:-

“The primary test remains to be the language employed in the Act. Section 375 of the Code uses
words which are clear and plain and unambiguously express the intention of the legislaure. As
shown above, the definition of rape is based on the common law and in England, as well as in

3
Pawan V. State of Uttranchal
4
1998 Crl LJ 2428
India the words "sexual intercourse" and "penetration" have all along been taken to mean the
act of inserting the penis into the female organs of generation. It would not be permissible to
strain the words and their well- understood and well-entrenched meaning so as to bring within
their fold certain acts which do not come within the reasonable interpretation of the provision. It
is not a case where the main object and intention of the provision is not clear. It is also not a
case of absolute intractability of the language used. The language used also poses no difficulty
in resolving the question before me or implementing the intention or spirit of the law. The duty to
mould or creatively interpret the legislation does not thus arise.”

6. It held in case Koppula Venkat Rao V State of A.P.5, as under : --

“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 S.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.”

7. It was held in case Aman Kumar & another V State of Haryana6, as under :--

“The rupture of hymen is by no means necessary to constitute the offence of rape. Even a slight
penetration in the vulva is sufficient to constitute the offence of rape and rupture of the hymen is
not necessary. Vulva penetration with or without violence is as much rape as vaginal
penetration. The statute merely requires evidence of penetration, and this may occur with the
hymen remaining intact. The actus reus is complete with penetration.”

8. It was held in case Mahesh Kumar & Another V State of Rajasthan7, as under :--

“It has drawn attention to page 435 of the Book Glaister's Medical Jurisprudence and
Toxicology Edited by the late Edgar Rentoul and Hamilton Smith (Thirteenth Edition). It has
been observed that when there has been forcible attempted penetration or complete penetration,
the rupture of the hymen will be present as a rule and it will be invariably accompanied by some
degree of bleeding. In the case of infant or young child there may be a tear from the fourchette
posteriorly to the rectum if an attempt has been made at penetration. It has also been observed
in this book that both the character and extent of injury will depend upon the nature of the
hymen, the extent of penetration and the amount of force used. The hymen remains unruptured in
odd cases after coitus. Therefore, I am of the view that unruptured hymen do not always lead to
the inference that forcible sexual intercourse was not committed with the prosecutrix. It shows
that force was not used and it remained intact due to slight degree of penetration. Even the slight
degree of penetration is sufficient to constitute the offence under Section 376 IPC.”

5
AIR 2004 SC 1874
6
AIR 2004 SC 1497
7
1998 Crl. L.J. 1597
10. In case State of Karnataka V Raju,8 the accused was convicted on the charge of rape of a
girl who was 10 years old and was imposed seven years imprisonment by the Additional
Sessions Judge. In appeal, the Karnataka High Court reduced the sentence to 3 ½ years on the
grounds that accused was a young boy of 18 years and belonging to the backward community
and also an illiterate person. The decision was challenged before the Supreme Court by Criminal
Appeal. It was observed that the social status of the accused is not relevant factor to measure
punishment in case of rape. Crimes of violence upon the women needs to be severely dealt with.
It was observed as under :--

“The measure of punishment in a case of rape cannot depend upon the social status of the victim
or the accused. It must depend upon the conduct of the accused, the state and age of the sexually
assaulted female and the gravity of the criminal act. Crimes of violence upon women need to be
severely dealt with. The socio-economic status, religion, race, caste or creed of the accused or
the victim are irrelevant considerations in sentencing policy. Protection of society and deterring
the is the avowed object of law and that is required to be achieved by imposing a appropriate
sentence. The sentencing Courts are expected to consider all relevant facts and circumstances
bearing on the question of sentence and proceed to impose a sentence commensurate with the
gravity of the offence, Courts must hear the loud cry for justice by the society in cases of the
heinous crime of rape on innocent helpless girls of tender years, as in this case, and respond by
imposition of proper sentence. Public abhorrence of the crime needs reflection through
imposition of appropriate sentence by Court. There are no extenuating or mitigating
circumstances available on the record which may justify imposition of any sentence less than the
prescribed minimum on the respondent.”

11. In State of Punjab V Gurmit Singh9, it was observed as under :--

“Of late, crime against women in general and rape in particular is on the increase. It is an irony
that while we are celebrating women's rights in all spheres, we show little or no concern for her
honor. It is a sad reflection on the attitude of indifference of the society towards the violation of
human dignity of the victims of sex crimes. We must remember that a rapist not only violates the
victim's privacy and personal integrity, but also inevitably causes serious psychological as well
as physical harm in the process. Rape is not merely a physical assault-it is often destructive of
the whole personality of the victim. A murderer destroys the physical body of his victim; a rapist
degrades the very soul of the helpless female. The courts,  therefore, shoulder a greater
responsibility while trying an accused on charges of rape. They must deal with such cases with
utmost sensitivity.”

8
AIR 2007 SC 3225
9
(1996) 2 SCC 384
12. In the case of Rameshbhai Chandubhai Rathod v. State of Gujarat10, the Hon’ble Justice
Arijit Prasayat contended that:

“The plea that in a case of conviction based on circumstantial evidence, death sentence should
not be awarded is without any logic and is clearly unsustainable. The fact that the case rests on
circumstantial evidence has no role to play in the balance sheet of aggravating and mitigating
circumstances and has nothing to do on the question of sentence or death sentence.The very
nature of things in most of the cases like rape and murder is such that the only available
evidence is circumstantial evidence. Unimpeachable circumstantial evidence no doubt forms the
foundation of conviction. If the said evidence has been found to be credible cogent and
trustworthy for the purpose of recording conviction, to treat that evidence as a mitigating
circumstance, would amount to consideration of an irrelevant aspect.”

13.The evidence led by the prosecution clearly establishes the aforesaid circumstances. Out of
aforesaid circumstances, leaving only a very few, which are immaterial and are not vital to
determine the case, the rest stood fully proved against the appellant. Indisputably, the dead body
of the deceased was found on a idyllic beach, small, lively beach on the capital island.There
was bloodstains found on the hospital locker of the accused .The accused could not offer any
explanation whatsoever as to how as the medical examination report clearly confirmed that the
blood stain was of Susan Knight. More so, there is nothing on record to controvert the evidence
of the doctor who conducted the post-mortem and opined that there was sexual assault on the
victim and she died of strangulation and there had been ligature marks on her neck. In such a fact
situation, there is no cogent reason to interfere with the well reasoned judgments of the courts
below regarding conviction of the accused.

14.This Court has accordingly held in Wahid Khan v. State of Madhya Pradesh 11that 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 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.

15. The Apex Court has observed that merely because there were no injuries on the person of the
victim and the hymen was not intact, does not lead to a corollary that there was no coitus. 

10
(2009) 5 SCC 740 (2009) 2 SCC (Cri) 881
11
(2010) 2 SCC 9
The mere fact that no injury was found on the private parts of the prosecutrix or her hymen was
found to be not intact does not belie the statement of the prosecutrix as she nowhere stated that
she bled per vagina as a result of the penetration of the penis in her vagina. She was subjected to
sexual intercourse in a standing posture and that itself indicates the absence of any injury on her
private parts. To constitute the offence of rape, penetration, however slight, is sufficient.12

16. Essentially, this is a case of circumstantial evidence which is supported by ocular and
medico-scientific evidence. The prosecution has effectively proved that the deceased was last
seen with the accused and on earlier occasions too was seen being enticed by the accused. DNA
evidence using the established STR technique has proved that the appellant committed sexual
intercourse with the deceased. The deceased has been proven to be a minor using school records.
Various injuries on her body along with signs of struggle proved that such crime was committed
in a barbaric manner. Death has been established as being homicidal and caused by throttling,
and has been estimated during the time when the deceased was seen with the accused .The
ligature material has been recovered through the accused which has later been identified as
being used to kill the deceased, giving finality to the circumstantial chain. The appellant has
been unable to offer any alibi and his defence merely rests on deflecting guilt on to the family of
the deceased, which is without a shred of evidence. Further, no effective challenge has been
made against any medical or DNA reports. There can thus be no second opinion against the guilt
of the appellant and his consequential conviction.The findings of kidnapping, rape, resultant
death have hence been proven beyond reasonable doubt,

17. Death sentence has to be considered in the background of factual scenario. The case at hand
Falls in the rarest of the rare category. The circumstances highlighted establish the depraved acts
of the accused and they call for only one sentence i.e. death sentence. A large number of cases in
recent times involving rape and/or murder of girls of tender age is a matter of concern. Looked at
from any angle the judgment of the Sessions Court confirming the death sentence does not want
any interference.

Thus concluding all these cases, laws and facts as hereby mentioned it is clear that the accused,
Fred Rockwell is liable for the offence of rape under section 376 of the Capitol Penal Code.The
counsel submits humbly that stringent punishment must be awarded to the accused in the case.

12
Ranjit Hazarika Vs. State of Assam, (1998) 8 SCC 635