The main legal point established is that in cases of doubt regarding the extent of penetration in a rape case, the benefit of such doubt must go to the accused, leading to a lesser charge of attempt to commit rape.

Abhay M. Thipsay J.

This appeal is directed against the Judgment and Order delivered by the Additional Sessions Judge, Pune convicting the appellant of an offence punishable under Section 376 of the Indian Penal Code (For short 'IPC') and sentencing him to suffer Rigorous Imprisonment for seven years and to pay a fine of Rs. 5,000/-.

The appellant was also charged of offences punishable under Section 324 of the IPC, Section 504 of the IPC and Section 506 of the IPC, but of the said offences, he was acquitted.

2. The prosecution case, as put forth before the trial Court, in brief, be stated thus :

The prosecutrix, who is the daughter of the brother of the appellant's wife, was, at the material time, aged 14 years. On 26/01/2012, she had come to reside with her aunt i.e. wife of the appellant, who used to reside with the appellant, her two sons - Rohan (PW2) Shubham, - and a daughter - Priyanka. In the afternoon, the prosecutrix, after doing the household work, was sleeping on the mezzanine floor of the house. Rohan was also sleeping on a mattress placed on the ground. The prosecutrix, all of a sudden, woke up by feeling pain in her vagina. She notice that her kurta had been pushed towards the upper side of the waist and the appellant was sitting on her person. The appellant had inserted his penis into the vagina of the prosecutrix. The prosecutrix shouted and called for Rohan. Rohan woke up and questioned the appellant as to what he was doing. The appellant had immediately got up on the prosecutrix raising shouts and had been sitting on the bed by the side of the cot. The salwar and nicker of the prosecutrix, which had removed, were found by the side of the cot. The prosecutrix tied one pink coloured chunni on her waist. She noticed some sticky material on her vagina. The appellant put on his pant. The prosecutrix also put on her salwar and nicker. A quarrel took place between the appellant and Rohan. The appellant brought one iron sickle and assaulted Rohan, which resulted into causing an injury to the left hand of Rohan. The sickle, with which the appellant assaulted Rohan, fell down, and thereafter, Rohan slapped the appellant. The prosecutrix was sent to the house of one Rahul - cousin of Rohan and after some time, the aunt of the prosecutrix as well as Rohan came there. The matter was then reported to the Ghorpadigaon Police Chowky, where the prosecutrix was accompanied by her aunt. The statement of the prosecutrix was recorded in the presence of two social workers. In the course of investigation, certain articles, including the clothes of the accused and that of the prosecutrix were seized. The appellant was apprehended. The prosecutrix, as well as the appellant, were got medically examined. After completion of investigation, the appellant was prosecuted, who, as aforesaid, was convicted and sentenced.

3. The prosecution examined seven witnesses during the trial. The first witness is prosecutrix herself. The second witness, as aforesaid, is Rohan. The third witness Sonali Kulkarni is a social worker in whose presence the FIR lodged by the prosecutrix was registered. The fourth witness Raj Rajput and the fifth witness Pramod Kolekar are both panchas. Raj Rajput has witnessed the seizure of the clothes of the appellant under a panchnama, while Pramod Kolekar has witnessed the position of the spot where the offence took place. The sixth witness Chandan Gupta is the medical officer, who has examined the prosecutrix. The seventh witness Mangal Modhve, Assistant Police Inspector, is the one, who had recorded FIR, had carried out further investigation in the matter and had submitted a report under Section 173 of the Code.

4. I have heard Mr. Satyavrat Joshi, the learned counsel for the appellant. I have heard Mrs. P.P. Bhosale, the learned Additional Public Prosecutor for the respondent/State. With their assistance, I have gone through the evidence adduced during the trial. I have carefully gone through the impugned Judgment