2019 Supreme(Bom) 548

IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD
S.M. GAVHANE, J.
SITARAM SAMBHAJI MANE - Appellant
Vs.
STATE OF MAHARASHTRA - Respondent
Criminal Appeal No. 147 of 2018
Decided On : 02-04-2019

Headnote:

Indian Penal Code,1860 – Sections 376,354, 376(2)(1) ,511 - Criminal Procedure Code,1973 - Section 428,313 - Challenge - Rape Case - Residing at (Khandala), Tq. Karjat, Dist. Along with her husband, parents-in-law and children including her daughter prosecutrix at time of incident and the appellant/accused is also resident of same village Complainant lodged the report Exh.24 with police Station contending that date of birth of her daughter prosecutrix and she is mentally retarded since her birth - Complainants husband is working in Sugar Factory and he used to return home on weekly holiday - Her son was studying in Jamkhed ITI - Her agricultural land known as is situated in limits of village - Adjacent complainant along with her mother-in-law and prosecutrix had been to their agricultural land - When they were plucking grass in Onion crop at about. they heard voice of birds from field of crop and complainant asked prosecutrix to go to that field and to flee the birds - Thereupon, prosecutrix had gone there. After about 10-15 minutes as complainant was feeling thirsty she proceeded towards well for brining water - At that time she heard shouting of prosecutrix as "Aayo, Aayo" from direction of Jujube tree - She then noticed that prosecutrix was lying on ground and appellant was lying on her body - Appellant saw her and started running towards his agricultural land by holding skirt of dhoti - complainant abused him and lifted one stone and hit the same on his back. Appellant ran away from there. The complainant noticed that Salwar and knicker were not on the person of prosecutrix - whether the accused has tried to force his penis inside the private part of the girl but could not succeed - whether the conviction of the appellant under Section 376 read with Section 511 of the IPC is proper and sustainable? - whether she/prosecutrix works in agricultural field, to which she said Yes - whether she shouted and thereupon prosecutrix said "No". - whether she was harassed in the house or field, the prosecutrix answered as field. Moreover to the question whether her clothes were removed she replied in the affirmative. As regards the question whether she knows Sitya she answered in the affirmative and to the question who is he she answered as Anna - whether this act of the appellant amounts to attempt to commit rape- This act of the appellant certainly amounts to preparation to commit offence. Therefore, it is necessary to find out whether appellant has done further act of attempt to commit rape by making attempt of penetrating or attempted to insert his organ/penis in the vagina of the prosecutrix, but said act was failed, to say that attempt was made but it was not successful - whether the accused can be convicted for attempt to rape under Section 376 read with Section 511 of the IPC. - Whether penetration had, in fact, taken place only on the basis of what she says, and though the medical evidence fails to support such a theory - whether penetration had, indeed, taken place, would be a question of fact to be decided on the basis of entire evidence before the Court – Held, , Court hold that the prosecution has failed to prove offence under Section 376 read with Section 511 of the IPC against the appellant beyond reasonable doubt and the offence which is proved beyond doubt against the appellant is of outraging modesty of the prosecutrix punishable under Section 354 of the IPC. The decision in the case of (Supra) relied upon by the learned counsel for the appellant is squarely applicable to the present case. Therefore, conviction and sentence recorded by the Additional Sessions Judge against the appellant for offence under Section 376 read with Section 511 of the IPC on the basis of incriminating evidence referred in paragraph No.24 of the impugned judgment is not sustainable. In paragraph 24 the learned Additional Sessions Judge observed that the appellant was absconding from date of incident and he has not offered any explanation about his absence from village and the complainant (PW-1) noticed the appellant lying on the body of the prosecutrix and FIR was promptly lodged and therefore offence of attempt to commit rape has been proved against the appellant. It is true that the appellant has not offered explanation about his absence from the village for the period mentioned above, FIR was promptly lodged and PW-1 was eye witness to the incident and she noticed appellant lying on the person of the prosecutrix, but when as discussed earlier the prosecution has not established any overt act of the appellant towards the commission of the offence of rape the above referred incriminating evidence against the appellant is not sufficient to attract offence under Section 376 read with Section 511 of the IPC against the appellant. Therefore conviction and sentence recorded against the appellant for the offence under Section 376 read with Section 511 of the IPC being unsustainable is liable to be set aside and appellant is to be acquitted of the said offence - It is true that even in a completed offence of rape, complete or significant penetration of male organ is not necessary, and even slight penetration would be sufficient to constitute rape - Prosecutrix does say, in this case, that there had been a penetration, but evidently the theory of a complete or full penetration, as said by the prosecutrix, is wrong. The prosecutrix, who is a child, cannot be relied upon in this regard, so as to determine whether penetration had, in fact, taken place only on the basis of what she says, and though the medical evidence fails to support such a theory - The learned Additional Sessions Judge observed that complete penetration would not be necessary to constitute the offence of rape, and that the offence of rape is possible of being committed without causing any injury to the genitals. She also observed that non rupture of the hymen is not a conclusive factor to determine this aspect. Though these observations of the learned Additional Sessions Judge are proper and reveal the correct legal position, the fact remains that whether penetration had, indeed, taken place, would be a question of fact to be decided on the basis of entire evidence before the Court. The learned Judge accepted the theory of penetration having been there, basically, on the basis of presence of blood on nicker of victim girl. There is substance in the contention advanced by the learned counsel for the appellant that this could also be due to menstruation - Appeal allowed