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Madan Gopal Kakkad vs Naval Dubey and ANR on 29 April 1992

Author: Himanshu Sharma, 1st year student at Amity University, Rajasthan.

Citation: 1992 SCC (3) 204

Date of Decision: 29 April, 1992

Bench: Pandian, S.R. (J)

Original copy: View

Statutes involved: The Indian Evidence Act 1872, The Indian Penal Code


Background of case:

  • The petitioner was “Madan Gopal Kakkad” and the respondent was “Naval Dubey and ANR.” 
  • In the given case respondent was a medical graduate and was involved in gratifying his animated passions and sexual pleasures by molesting and sexually assaulting.
  • The daughter of the respondent’s neighbour the victim girl (PW. 13) aged about 8 years, respondent niece was her friend and both of them used to play together. According to the prosecution, on the day of the incident the victim with her younger brother and the respondent’s niece were playing in the respondent’s drawing hall.
  • No one was in the house at that time and the respondent sent his niece with the younger brother of the victim outside. He bolted the door from inside, made victim (PW.13) completely naked and asked the victim to do fellatio. After that he lay over her and slightly inserted his penis into her vulva, and after sometime he freed the child.
  • The respondent threatened the victim for not disclosing his affairs to anyone while she was leaving the drawing hall, but she narrated the incident to the respondent’s niece. Thereafter the victim in the evening told her mother that the respondent asked her to suck his private part but because of the fear she did not narrate the whole incident. On the second day she told about the incident to her friend (PW. 12) and her other girl friends, and on third day the victim told the entire incident to her mother and she told the incident to there neighbours PW. 9 & 10 on telephone. 
  • Appellant (PW. 5), father of the victim returned home at about 9:00 P.M and learnt about the occurrence, accompanied by PW. 7,9 and 10 he went to respondent’s house. They informed the brother and sister-in-law of the respondent the purpose of their visit because the respondent was not there.
  • The respondent came at midnight and assessing the situation voluntarily confessed his crime. He admitted that he raped PW. 13 and also committed the same crime with his niece and other minor girls, but being a doctor he had been careful enough not to repute their hymen. The brother of the respondent begged PW.5 and others not to do anything till his parents nor arrived. 
  • The police investigated culminated in the trial of the respondent for an offence of rape committed on PW. 13.

Issue in question:

  • The issue is, weather the respondent is guilty for committing the rape of the victim (PW.13) and weather respondent is guilty under the section 376 of IPC.


  • The trial court held that the prosecution against the respondent was launched due to some enmity between the two families and the prosecution did not adduce any acceptable evidence for holding the respondent guilty of offence under section 376 of Indian penal code. The trial court accordingly acquitted the respondent.
  • Further state filed an appeal against the acquittal of the respondent before the High court, the complainant-appellant also filed. The High court disposed of all the three cases by the common judgement, and held the respondent guilty under the section 354 of IPC and fined him by Rs. 3000 only. 
  • On behalf of the appellant that the high court erred in holding the respondent guilty of a minor offence under section 354 of IPC when all the necessary ingredients of constitute an offence punishable under section 376 of IPC had been satisfactorily established.
  • The evidence of medical officer who found an abrasion on the medical side of labia majora and redness present around the labia minora with white discharge even after 5 days it can be safely concluded that there was a partial penetration with the labia majora or the vulva or pudenda which in the legal sentence is sufficient to constitutes the offence of rape. And except all this respondent himself confessed twice admitting the commission of rape.
  • According to the medical officer 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 majora would have been caused on the day of incident.
  • Having regard to the seriousness and gravity of the crime of rape perpetrared on PW.13 who was 8 years old on the date of commission of the offence while convicting the respondent under section 376 of Indian penal code he is sentenced to undergo rigorous imprisonment for a period of seven years and to pay fine of rupees 25000 to the victim girl.

Critical analysis:

  • In my opinion the high court even after observing that the respondent activities were menace to the neighbours had shown a misplaced sympathy to the respondent which has led to the miscarriage of justice. The finding that the offence is one of outraging the modesty of women for which sentence of imprisonment is not compulsory is erroneous and untenable.
  • The High court erred when they ordered that there was no sign of injuries and that the offence was not one punishable under section 376 of IPC or under section 376 read with section 511 IPC but only one under section 354 IPC.

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