Presence Or Absence Of Smegma Not Conclusive Proof Of Commission Of Sexual Intercourse: Supreme Court Upholds Rape Conviction

The Court said that discrediting the whole commission of sexual intercourse solely based on the presence of smegma on the day of examination is not warranted.

​The Bench of Justice Prashant Kumar Mishra and Justice Vipul M Pancholi observed, “Coming to the second argument about presence of smegma over the penis of the appellant, suffice it would be to state that the appellant and the prosecutrix were recovered on 02.08.1993. As per the prosecution’s case, they stayed together from 21.07.1993 till 02.08.1993 i.e., for about 12 days. There is no evidence on record as to the date on which sexual intercourse was committed for the last time. Even otherwise, presence or absence of smegma is not conclusive proof of commission of sexual intercourse.”

AOR Subhasish Bhowmick appeared for the Appellant whereas AOR Karan Sharma appeared for the Respondent.

Background

An appeal was filed impugning the judgment of the Punjab and Haryana High Court, which dismissed the appeal of the Appellant here filed challenging the order of conviction of the Appellant for committing offences under Section 366 and 376 of the Indian Penal Code, 1860 (‘IPC’) and was sentenced to undergo rigorous imprisonment (‘R.I.’) for 7 years for offence under Section 376 of the IPC and R.I. for 6 months under Section 366 of the IPC.

A complaint was made to the concerned Police that the prosecutrix is missing. She had gone to attend her classes in school, but did not return home. She recovered later, when she was moving along with the Appellant. Both were taken into custody, and after completion of the investigation, a charge sheet was filed.

Contention of the Parties

It was argued by the Appellant that in the School Certificate, she was more than 16 years of age and as such, the Appellant could not have been convicted for committing an offence under Section 376 of the IPC in view of the abundance of evidence showing the consent of the prosecutrix. It was also argued that, as per the medical officer, the smegma was present on the penis of the Appellant when he was medically examined. Therefore, it can be presumed that the Appellant has not committed any sexual intercourse with the prosecutrix.

Per contra, the counsel for the State submitted that the consent of the prosecutrix pales into insignificance as it is proved by a birth certificate that she was less than 16 years of age.

Observation of the Court

The Court held, “It is seen from the above, that smegma can be formed on the penis if the person goes on without bathing for 24 hours. Be that as it may. The presence of smegma over the penis of the appellant does not constrain him from committing coitus, and even mere penetration into the vulva also constitutes rape. Admittedly, the appellant was subjected to medical examination on 03.08.1993 i.e. one day after he was taken into custody. It is also admitted that the appellant stayed with prosecutrix for a period of 12 days, i.e. from 21.07.1993 till 02.08.1993. As already observed, we are completely oblivious of the actual date of commission of coitus. In these circumstances, discrediting the whole commission of sexual intercourse solely on the basis of presence of smegma on the day of examination, is not warranted.”

The Court placed its reliance on the Modi, A Textbook of Medical Jurisprudence and Toxicology, 26^th Edition, wherein it was opined that if the accused is not circumcised, the existence of smegma around the corona glandis is considered by some to be proof against sexual intercourse, since it is rubbed off during the sexual act. The presence of smegma as proof against sexual intercourse is not of any medico-legal value, as legally, if the penis touches the vulva, it is enough to constitute rape.

“It is seen from the above, that smegma can be formed on the penis if the person goes on without bathing for 24 hours. Be that as it may. The presence of smegma over the penis of the appellant does not constrain him from committing coitus, and even mere penetration into the vulva also constitutes rape. Admittedly, the appellant was subjected to medical examination on 03.08.1993 i.e. one day after he was taken into custody. It is also admitted that the appellant stayed with prosecutrix for a period of 12 days, i.e. from 21.07.1993 till 02.08.1993. As already observed, we are completely oblivious of the actual date of commission of coitus. In these circumstances, discrediting the whole commission of sexual intercourse solely on the basis of presence of smegma on the day of examination, is not warranted.”, the Bench observed.

Secondly, the Court also said that the birth certificate issued by the public authority holds more evidentiary value when juxtaposed with the school certificate of the prosecutrix.

While referring to the judgment in Birad Mal Singhvi vs. Anand Purohit, 1988 SCC OnLine SC449, the Court found that the original birth certificate, issued by the competent statutory authority, showing her date of birth as November 28, 1977, held more evidentiary value than the school admission certificate, which listed the date as April 1, 1977. The Court affirmed that school records have limited probative value unless the basis of the age entry is properly proven.

“We are in agreement with the findings reached by the Trial Court and the High Court in this regard. More so, in the statement of DW- 1, it is stated that the admission form was submitted by the guardian of the prosecutrix. However, the identity of the said guardian remains unknown. Furthermore, there is no indication if DW-1 himself had filled the admission form of the prosecutrix apart from affixing his signature on the same. Even if we assume that he had filled in the admission form of the prosecutrix, there is absolutely nothing on record as to indicate that DW-1 has derived the knowledge of date of birth of the prosecutrix from her parents or a person having special knowledge about her birth..Since it is evident that there is an anomaly regarding the date of birth of the prosecutrix, we find that the Trial Court and the High Court have rightly relied on the birth certificate issued by the Additional District Registrar, Birth and Death, Jalandhar.”, the Court concluded.

Conclusion

The appellant requested that his sentence be reduced to the period already served, citing that the offence occurred over 32 years ago and that he is now a married man aged about 50 years.

However, the Court held that this was not possible because, as of the date of the occurrence, the minimum sentence mandated under Section 376 of the IPC was seven years.

Therefore, the sentence could not be legally reduced below the statutory minimum.

Accordingly, the Appeal was dismissed.

Cause Title: Kuldeep Singh v. State of Punjab [Criminal Appeal No(s). 2619/2014]

Appearances:

Appellant: AOR Subhasish Bhowmick, Advocates Dinesh Verma, Prabhoo Dayal Tiwari and Rajat Sharma

Respondent: AOR Karan Sharma

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