Bombay High Court
State of Maharashtra
Versus
Suresh
Decided On:

Headnote:Sections 376 and 302-Offence of rape and murder-Constitution of offence of rape-Ejaculation of semen in female organ or complete penetration of male organ not necessary to constitute such offence-Even slight penetration is sufficient to constitute- Thus even in absence of semen or spermatozoa on person of victim offence of rape made out - However, charge on accused not proved beyond reasonable doubt - Accused given benefit of doubt-The report of the Chemical Analyser is negative. It states that neither the semen nor spermatozoa was detected on the slides. It may, however, be noted that to constitute the offence of rape, it is not necessary that there should be ejaculation of semen in the female organ. It is also not necessary that there should be a complete penetration of the male- organ. Even a slight penetration is sufficient to constitute the act of sexual intercourse contemplated by Section 376 of the Indian Penal Code. Having regard to the nature of the injuries noticed on the genitals of deceased S Court is of the opinion that there is no difficulty in reaching the conclusion that she was subjected to a forcible sexual intercourse.

       These circumstances, when put together, do not constitute and complete an unmistakable chain to connect the accused with the commission of the murder and rape of S. This is because the prosecution has failed to prove beyond reasonable doubt the other incriminating circumstances, namely that the deceased was last seen in his company and that he led discovery of the dead-body of S, which he had concealed. Court has pointed out that the circumstances showing injuries on the private part of the accused as well, as the finding of stains of blood and semen on his pant are of inconclusive nature. This being the position, it cannot be conclusively said that it was the accused find none else who committed rape on deceased S and also accused her death. Court is conscious of the gravity of the alleged offences attributed to the accused and, therefore, thought it proper and necessary to scrutinise the entire evidence carefully. The result is, however, that the charges framed against the accused arc not proved beyond reasonable doubt. The incriminating circumstances proved by the prosecution may, at the most, raise a suspicion against the accused, but they fall short to prove the charges framed against him. Consequently, Court give benefit of doubt to the accused.

       For Citation : (1999) 101 (1) Bom LR 273 at pp. 290, 292