MADAN GOPAL KAKKAD versus NAVAL DUBEY AND ANR.

Citation: [1992] 2 S.C.R. 921 · Decided: 29-04-1992 · Supreme Court of India · Bench: S. RATNAVEL PANDIAN · Disposal: Appeal(s) allowed

Cited by 5 judgment(s) · cites 2 · see the full citation network in Lexace

Judgment (excerpt)

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 : 
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 agai

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