IMPORTANT POINT
Attempted rape under IPC Sections 376 and 511 established through credible victim testimony, despite lack of penetration.

JUDGMENT :

NARENDRA KUMAR VYAS, J.

1. This Criminal Appeal under Section 374 (2) of CrPC has been filed against the judgment of conviction and order of sentence dated 16.08.2002 passed by Sixth Additional Sessions Judge, Durg in Sessions Trial No. 51 of 2002 by which the appellant has been convicted under Section 376 read with Section 511 IPC and has been sentenced to undergo rigorous imprisonment for 3 years and six months with fine of Rs.500/-, in default of payment of fine 1 month rigorous imprisonment under Section 376 read with Section 511 of the IPC.

2. The necessary facts for disposal of the present appeal in short are that on 21.11.2001 at about 7.00 AM, the victim girl, who was aged about six years old at the relevant time was residing adjacent to the house of the appellant had gone to the house of the appellant for playing. Further case of the prosecution is that after returning from the house of the appellant, while crying the victim girl told her mother that her undergarment was wet and there was some spot in it. Subsequently, her mother asked her regarding wetness of her undergarment then she informed that present appellant has laid down her on the bed and forcibly rubbed his erected penis on her private part but failed to penetrate the same into the vagina, which has caused swelling on her private part. At the same time, her uncle came there then the she disclosed the incident to him also. Thereafter, at about 2.50 PM, report was lodged by Urmila (PW-3) in Police Station Bhilai Nagar. Based upon which, FIR (Ex.P-7) under Section 376 of IPC was registered against the appellant and the matter was investigated. During investigation, victim was referred for medical examination. She was examined by Dr. Sugam Sawant (PW-9) at about 7.30 PM wherein it was found that there was no sign of external or internal injury on the victim and her hymen was found intact. The Doctor (PW-9) opined that no sign of rape on the body of the victim was found. The cloth of the victim was seized vide (Ex.P-8) on 21.11.2001 and the same was sent for chemical examination and report of chemical examination under (ExP-10) was received. Map Ex.P-1 was prepared. Thereafter, the police arrested the appellant and sent him for medical examination. After completion of the investigation, charge sheet was filed before the Court of Judicial Magistrate First Class, who in turn committed the case to the Court of Additional Sessions Judge, Durg which was registered as Sessions Case No. 51 of 2002.

3. The prosecution in order to prove the guilt of the appellant examined in all 9 witnesses, Nestor Kujur (PW-1), victim (PW-2), mother of the victim Urmila (PW-3), Bharat Deshmukh (PW-4), Upendra Kumar Deshmukh (PW-5), Kheman Prashad (PW-6), I.P. Khattar (PW-7), Dr. V.S. Baghel (PW-8), Dr. Smt. Sugam Sawant (PW-9) and exhibited the documents Map (Ex.P-1), request letter for examination of accused (Ex.P-2), examination of seized articles (Ex.P-3), arrest panchanama (Ex.P-4), arrest memo (Ex.P-5), seizure memo (Ex.P-6), FIR (Ex. P-7), seizure memo (Ex.P-8), MLC of victim (Ex.P-9), report (Ex.P-10), examination of accused (Ex.P-11), examination of cloth of the appellant (Ex.P-12).

4. The prosecution to prove its case has examined victim as PW-2 who has narrated the incident and has stated that the appellant has taken her in the bed room where appellant has laid down her on the bed and forcibly rubbed his erected penis on the private part of the girl causing pain and wetness of the undergarment. She has also stated that the victim could resist because of threat. She has also stated that she has not stated anything to other family members of the appellant but informed the incident to her mother. Thereafter, FIR has been lodged. The victim was cross-examined and in paragraph-6, she has stated that when the appellant got on top of the victim and reiterated the incident in the cross examination, as she has stated that half centimeter in circle of her undergarment was wetted.