# MADAN GOPAL KAKKAD v. NAVAL DUBEY AND ANR

- **Citation:** [1992] 2 S.C.R. 921
- **Court:** Supreme Court of India
- **Decided:** 1992-04-29
- **Bench:** S. Ratnavel Pandian, M. Fathima Beevi
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/madan-gopal-kakkad-v-naval-dubey-and-anr-11531
- **Pages:** 28

## Headnote

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 accused 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 offence.
Indian Evidence Act, 1872 :
S. 24-£xtra-judicial confession-Co"oboration--Whether necessary.
F
S. 45--Expert opinion-Medical witnesj'---£vidence of-Whether of advisory character-Legal opinion of witness as to nature of offence-Whether
c~ be accepted.
Code of Criminal Procedure, 1973 :
S. 378-Appeal against acquittaHligh Court's jurisdiction-Whether
plenary and unlimited to review the entire evidence.
G
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.
B
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
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

## Text

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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 accused 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 offence.
Indian Evidence Act, 1872 :
S. 24-£xtra-judicial confession-Co"oboration--Whether necessary.
F
S. 45--Expert opinion-Medical witnesj'---£vidence of-Whether of advisory character-Legal opinion of witness as to nature of offence-Whether
c~ be accepted.
Code of Criminal Procedure, 1973 :
S. 378-Appeal against acquittaHligh Court's jurisdiction-Whether
plenary and unlimited to review the entire evidence.
G
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.
B
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
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
J
Court. The complainant-appellant also filed a criminal revision challeng· B
ing the legality of the order of acquittal. On the basis of an artical relating
-....(
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 E
gravity of the offence committed by the respondent.
'
Allowing the appeal and setting aside the judgment of the High
Court, this Court,
HELD : 1. The prosecution has satisfactorily established its case that F
the respondent committed i·ape on PW. 13 by proving all the necessary
ingredients required to make out an offenice of rape punishable under
. ' -+-r
Section 376 IPC. [p. 947 B]
2. When the evidence of PW. 13-that the respondent put his male G
organ inside her vagina and clutched her and thereafter she suffered
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]
B
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
confession of the respondent himself. [p. 947 A]
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 complete act of sexual intercourse is not at all necessary. [p. 945 D-H]
Parikh's Textbook of Medical Jurisprudence and Toxicology; Encyclopedia 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
·--\
l
.......
t
---l
--<
~-
r
MADAN KAKKAD v. NAVAL DUBEY
925
there was slight penetration though not a complete penetration. [p. 946 B]
4.3. The medical officer was of the opinion that the abrasion measuring 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]
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]
4.4. 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
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 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 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
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 confession 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]
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 (corresponding to s. 417 of the old' C~de), in cases of appeals against acquittal
A
B
c
D
E
F
G
~
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 conclusions 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
F
G
H
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 extrajudicial 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
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]
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.
(p. 94Z A-CJ
-~
'
.
~
I
·).-·
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
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
B
and his sister-in-law Tara Dubey (DW-1) was a lecturer. His another elder
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
house of the respondent/accused, the appellant Madan Gopal Kakad (PW__,.
c 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
E
(PW-12) was living with her father who was a tenant in the house of PW-5.
According to the prosecution, the respondent who had a crush on 1
young girls used to develop friendship with the girls who used to come to
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 accompanied 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
G
girls, namely, Tulna and Richa started playing in the drawing room, the
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 himA
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 respondent, 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 respondent 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-judicial 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). According to the witnesses the confession made by the respondent was thus:
E
F
G
"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
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
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.
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
--
...__
-i._
,,._
~
}
~
MADAN KAKKAD v. NAVAL DUBEY [PANDIAN, J.]
933
are based on its following findings:
(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
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.
(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.
On being aggrieved by the judgment of the Trial Court acquitting the
respondent, the State preferred an appeal before the High Court challenging 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
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
A
B
c
D
E
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 judgment 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
B
c
been satisfactorily established; (2) that the sentence of fine alone imposed
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 committed by the respondent. When the matter came up for admission before
this Court on 25.8.88, the following order was made:
"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.
E
.f
G
H
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.
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
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".
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·
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 extrajudicial confession made by the respondent on two occasions,
B
the High Court has recorded the following observation:
-(
"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- c
'
question of any coercion or inducement in presence of his
)
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
D
sexual urge by outraging modesty of young girls who fell
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 extrajudicial confession has not been accepted because the witnesses
have not repeated like parrots in the same words what the E
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
1
~
deposed -regardmg what she was tol by Tulna ...................
H
A
B
936
SUPREME COURT REPORTS
[1992] 2 S.C.R.
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 particulars from the evidence of PWs 5, 6, 9, 10 and 12 and that the extra-judicial 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
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 a doubt with regard to the accusation
I
of rape holding there was no sign of injur~es and held that the offence is
not one punishable under Section 376 IPC or under Section 376 read with
C 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:
E
"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
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 permisB
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.
The material prosecution witnesses are all highly educated· and respectable people of the same locality within which the houses of the
respondent and the witnesses are situated. PW 5, the father of the victim
.c
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 IanD
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.