The main legal point established is that the lack of medical evidence of penetration can influence the court's decision in convicting an accused under different sections of the IPC.

G. RADHAKRISHNA RAO, J.

( 1 ) THIS appeal is preferred against the Judgment of the learned Assistant Sessions Judge, Jagitial in Sessions Case No. 258 of 1989.

( 2 ) THE facts of the prosecution case are : on 26-12-1998 at about 10. 00 a. m. , the victim along with three others went to the fields for collecting pods. But as she had forgotten to bring a basket along with her, she was returning towards her house. On the way, the accused, who was coming on a cycle, saw the complainant, caught held of her hands and lifted her up to some distance into the area where there were bushes. There he laid the victim girl down, gagged her mouth and committed rape on her by over-powering her. It is further alleged that since the complainant was an young girl, she could not resist the accused. After committing rape, the accused went away leaving her alone. The complainant came to her house and reported the matter to her mother, who gave report to the police. The police, after completion of their investigation, laid charge sheet against the accused under Section 376 I. P. C. The learned trial Judge, after considering the entire material on record, came to a conclusion that the prosecution has not proved the charge under Section 376 I. P. C. He convicted the accused for the offence under Section 354 of the I. P. C. , and released him under the provisions of the Probation of Offenders Act. Hence, the appeal by the State.

( 3 ) THE offence took place in the year 1988. By that time, the offence under Section 354 I. P. C. was triable by a Magistrate of First Class only. Subsequently, the punishment was enhanced for the said offence by amending the same, through Act No. 6 of 1991, which came into force on 19-2-1991. Subsequent to the amendment, ony a Court of session is empowered to try the cases reported under Section 354 of the Penal Code.

( 4 ) IN the intant case, the learned Judge found the accused guilty under Section 354 I. P. C. , though he is charged under Section 376 I. P. C. , and released the accused under Section 3 of the Probation of Offenders Act. He observed that as there are no traces of sperm or spermatozoah on the private parts of the victim girl and as there are also no marks of injuries anywhere on her person, a charge under Section 376 IPC cannot be maintained. However, in order to prove a charge under Section 376 I. P. C. , the prosecution must establish, by adducing positive medical evidence, also that the accused committed rape by penetrating his male organ into the female organ of the victim girl and that the victim girl is accustomed, or not accustomed as the case may be, to such intercourse. The prosecution must also establish through medical evidence that the accused has got good potency to commit sexual intercourse. In this case, as the Doctor did not find any penetration of penis in the vagina of the victim girl and as there are no injuries on her private parts, the learned Judge found that the accused has not successfully committed rape but he has outraged her modesty only. Accordingly, he convicted the accused under Section 354 I. P. C. , but released him under the provisions of the Probation of Offenders Act. The learned Judge, exercising his discretion, released him under the Probation of Offenders Act. I, therefore, do not find any merit to interfere with his finding and sentence. The appeal is liable to be dismissed accordingly.

( 5 ) BUT before parting with the case, it must be pointed out that in a case where the accused was charged with the most heinous crime of rape on an innocent girl of 14 years of age, where due to the insufficiency of the evidence, the said charge was not proved, and where the accused was ultimately found guilty under Section 354 I. P. C. , the punishment for which offence is also subsequently enhanced and the cases falling under the said offence are made triable by a Court of Session, the learned Judge ought not have released the accused under the provisions of the Probation of Offenders

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