Supreme Court sends rape convict back to jail in 1993 case, rejects argument that smegma on penis was proof of no sex

The Supreme Court recently upheld the conviction of a man who had raped a minor in 1993, and ordered him to surrender within four weeks.[Kuldip Singh v State of Punjab]

The bench of Justice Prashant Kumar Mishra and Justice Vipul M Pancholi rejected a request that since the convict Kuldeep Singh is now married and about 50 years old, he may be released by reducing the sentence to the period already undergone.

“As on the date of occurrence, the minimum sentence provided under section 376 of the IPC was seven years, therefore, it is not possible to reduce the sentence to less than minimum sentence provided under the statute,” the Court ruled.

A Jalandhar court had convicted the accused in 1994. The decision was later upheld by the Punjab and Haryana High Court. Singh then filed an appeal before the top court in 2013. During the pendency of appeal, his sentence was suspended in December 2014.

In the judgment dated December 4, the top court dismissed the appeal.

It examined the argument that whether presence of smegma over the penis of accused during medical examination could lead to the presumption that he had not committed any sexual intercourse with the victim.

Smegma is a cheesy substance composed of skin cells, skin oils, and moisture that builds up under foreskin of males.

The Court noted that the victim and accused had been together for about 12 days before their recovery. Thus, it opined that there was no evidence on record regarding the actual 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, the Court added. In this regard, the Court referred to Modi’s Medical Jurisprudence and Toxicology.

“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,” it noted.

Thus, the Court concluded that the case cannot be discredited on the basis of the presence of smegma on the day of examination.

The Court also rejected the argument that the accused could not have been convicted in view of evidence showing her consent, considering that the school certificate showed the victim to be more than 16 years old.

It instead relied on the birth certificate issued by the Additional District Registrar, Birth and Death, Jalandhar. Ruling that birth certificate issued by the public authority holds more evidentiary value than the school certificate, the Court said,

“The Trial Court and the High Court as well have opined that when the school admission certificate carrying date of birth of the prosecutrix is contrasted with the birth certificate issued by the competent statutory authority, the birth certificate has more evidentiary value and unless there are compelling reasons, the said date of birth mentioned in the birth certificate cannot be ignored."

Advocates Subhasish Bhowmick, Dinesh Verma, Prabhoo Dayal Tiwari and Rajat Sharma represented the convict

Advocate Karan Sharma represented the State of Punjab.

[Read Judgment]