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2014 Supreme(Guj) 137
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
BHASKAR BHATTACHARYA, J.B. PARDIWALA, JJ.
MANGO @ MANGALBHAI PRATAPBHAI PAGI – Appellant
Versus
STATE OF GUJARAT - Respondent
CRIMINAL APPEAL NO. 928 of 2009
Decided On: 20/06/2014
MR HARNISH V DARJI, ADVOCATE for the Appellant(s) No. 1
MS CHETANA M.SHAH, APP for the Opponent(s)/Respondent(s) No. 1
Headnote:
Indian Penal Code, 1860 - Sections 375, 376(2)(f), 323 and 506(2) - Rape of minor girl - Appeal against Conviction- Appeal is at the instance of a convict accused of the offence under Sections 376, 323, 506(2) of the Indian Penal Code and is directed against the order of conviction Held, It is not necessary that the entire sexual act should be completed Mere penetration of the male organ within the private part of the woman with or without any emission of semen is sufficient to constitute an offence of rape, it is not necessary that the male organ must suffer injury - Delay of 24 hours in lodging FIR Victim was 9 years old at the time of the incident - In such circumstances, the victim and her family members have to struggle with several situations before deciding to approach the police, belated disclosure about the rape by the mother of the victim could not be mitigated against her version On the basis of evidence on record, injuries received by the victim definitely suggest at least partial or slight penetration which was sufficient to complete the offence and therefore, the theory of the accused that at the most it could be treated as attempt to commit rape was not accepted Conviction proper - Appeal dismissed.
JUDGMENT :
(PER : HONOURABLE MR.JUSTICE J.B.PARDIWALA)
1. The present Appeal is at the instance of a convict accused of the offence under Sections 376, 323, 506(2) of the Indian Penal Code and is directed against the order of conviction and sentence dated 7th May 2009 passed by the Additional Sessions Judge, 3rd Fast Track Court, Godhra, in Sessions Case No.91 of 2008.
2. By the aforesaid order the learned Additional Sessions Judge held the accused-appellant guilty of the offence under Section 376 of the Indian Penal Code and consequently, sentenced him to undergo life imprisonment and a fine of Rs.5,000/-, with a further stipulation that in default of payment of fine the accused shall undergo further rigorous imprisonment for one year.
3. The learned Additional Sessions Judge also found the accused-appellant guilty of the offence under Section 323 of the Indian Penal Code and consequently sentenced him to undergo rigorous imprisonment for one year and a fine of Rs.5,000/-, with a further stipulation that in default of payment of fine the accused shall undergo further imprisonment for six months.
4. The learned Additional Sessions Judge also found the accused-appellant guilty of the offence under Section 506(2) of the Indian Penal Code and consequently sentenced him to suffer rigorous imprisonment for one year and a fine of Rs.5,000/-with a further stipulation that in default of payment of fine the accused shall undergo further imprisonment for six months.
I. Case of the Prosecution :
5. Shorn of facts, the case of the prosecution that could be unfolded from the charge Exh.5 framed by the Additional Sessions Judge is that on 21st March, 2008, the prosecutrix viz. Radha aged 9 years had gone out to play and watch holi which was lighted in a nearby field from the house of the prosecutrix.
6. It appears that on the date of the incident i.e. 21st March 2008, the festival of holi was celebrated by the villagers. It is the case of the prosecution that at that time the accused herein lured the minor Radha by offering her a chocolate and thereby took her to a field of jowar and had a forcible sexual intercourse with her. It is further the case of the prosecution that at that time while ravishing the minor Radha, the accused inflicted injuries on her face with his nails and on her private parts and also threatened the minor stating that if she would disclose anything about the act then she would be killed.
7. It is the case of the prosecution that in this manner the accused committed the offence punishable under Sections 376, 323 and 506(2) of the IPC.
8. It appears that a First Information Report Exh.47 was lodged by the mother of the prosecutrix, viz. Kaliben wife of Rupabhai Nathabhai, on 22nd March 2008 at around 18:30 hours. In the complaint lodged by the mother of the victim it has been stated that she resided at village Veraiya situated in the District of Panchmahals. Her family consists of four daughters and two sons. It has been stated that her daughter Radha i.e. the victim had studied upto IIIrd Std. On 21st March 2008, the complainant, her husband and her children were at home at around 7 O’clock in the evening. It is stated that at that time Radha went to a nearby field where holi was lighted as Radha wanted to play over there. It has been stated that at around 8 O’clock, her son Raju and one Tino (son of the brother of her husband) brought Radha home and informed her husband Rupabhai that the accused lured Radha by offering her a chocolate and took her to a nearby jowar field from where they could hear the sound of Radha crying. It has been further stated that on hearing the sound of the cries of Radha, both of them i.e. Raju and Tino went near the place from where the sound was coming and found that the accused was ravishing Radha. It is further stated that as Radha started crying loudly, the accused ran away from the
