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2008 Supreme(P&H) 1002
PUNJAB & HARYANA HIGH COURT
A.N.Jindal, J.
Manoj
Versus
State Of Haryana
Criminal Appeal No. 214 of 1998,
Decided On : MAY 8, 2008
Rape--Insertion of finger in private parts of girl would not amount to rape but amounts to outraging modesty of women.
Headnote:(A) Criminal Law--Rape--Prosecutrix aged about 7 years--Accused inserted the finger in her private parts--Whether inserting of the finger in the private part of the girl aged about 7 years amounts to rape? NO--Held; Interalia; Where some attempt has been made by fingers, certainly may not fall within the purview of Section 376 read with Section 511 IPC--It would amount to an assault to womanhood--The offence would fall only under Section 354 IPC--If any damage is caused to the vagina then the accused could be convicted and sentenced for simple or grievous hurt as the case may be--|Penal Code, 1860, Sections 376, 511. (Para 10)
(B) Criminal Law--Rape--Essential requirement for completion of offence--Penetration of the penis in the private part of the girl is essential requirement for completion of the offence under--Insertion of finger would not consitute offence under Section 376 IPC--|Penal Code, 1860, Section 376. (Para 10)
(C) Criminal Law--Outraging the Modesty of women--Assault or criminal force to woman with intent to out rage her modesty--What amounts to outraging the modesty--Modesty is not defined in the Indian Penal Code--Culpable intention of the accused is the crux of the matter--In the instant case accused started fingering in the vagina of immature girl of 7 years old causing some simple injuries to the hymen--It can be taken as criminal assault amounting to outrage the modesty of a woman--Accused has certainly committed an offence under Section 354/323 IPC and not under Section 376--|Penal Code, 1860, Sections 354, 376 & 10. (Para 16)
(D) Criminal Law--Outraging the Modesty of women--Insertion of finger in private part of girl--Reduction in sentence--Prosecutrix was 7 years old--Accused was below 16 years of offence at the time of commission of offence--First offender--He has already undergone 23 days of substantial sentence--Sentence is reduced to that of already undergone--|Penal Code, 1860, Sections 354, 353. (Para 17)
A.N.Jindal, J.
1. Attempt to rape upon a 7 years old girl (name not disclosed) at the hands of the accused-appellant Manoj (herein referred as the accused) dragged him to the Court of law, where after a long trial, he earned conviction under Section 376 read with Section 511 IPC, vide judgment dated 2.3.1998 passed by the learned Additional Sessions Judge, Gurgaon and was slapped with sentence of 3 years rigorous imprisonment and fine of Rs. 1000/-.
2. Ram Shanker, Ahir by caste, a resident of village Kanhai District Gurgaon had a daughter (name not disclosed being prosecutrix) aged about 7 years. On 24.3.1995, at about 2.00 p.m. she had gone to answer the call of nature in the Gatwar, where she fell prey in the hands of the accused who tried to commit rape upon her. The screams of the prosecutrix attracted Omwati wife of Har Pal. At this, the accused fled away towards the fields. On the basis of the aforesaid statement made by the complainant, a case under Section 376 read with Section 511 IPC was registered against the accused. Consequently, it was investigated and ultimately challan was presented in the Court. On commitment, the accused was charged under Section 376 read with Section 511 IPC to which he pleaded not guilty and claimed trial.
3. In order to substantiate the charges, the prosecution examined HC Mohan Lal (PW1), Mul Chand Punia (PW2), Dr. Vandana Narula (PW3), Dr. B.B. Aggarwal (PW4), Prosecutrix (PW5), Ram Shanker complainant (PW6), Dr. K.R. Yadav (PW6- A) and ASI Dharamvir Singh (PW7).
4. When examined under Section 313 Cr.P.C. the accused denied all the allegations and pleaded his false implication due to party faction in the village. The trial ended in conviction. Hence this appeal. Arguments heard. Record perused.
5. The main question into controversy is whether the accused attempted to commit rape upon the prosecutrix and under which provisions of law the offence committed by the accused is punishable. In order to determine the attempt of rape, we need to reproduce the medical evidence of Dr. Vandana Narula (PW3), who on 24.3.1995 medico-legally examined the prosecutrix. She observed that her secondary sex characters were not developed nor there were any axillary or pubic hair present. Regarding menstrual history, patient had not attained menarche. There was no mark of external injury anywhere on her body. On local examination, she found some congestion at the introits outside the hymen with bleeding point at six and three Oclock position. Tenderness was present. Hymen appears to be intact and does not admit tip of finger."
6. The prosecutrix while appearing in the witness box has deposed regarding the factum of attempt to rape while stating that the accused inserted his fingers in her private part. Now the question remains that inserting of the finger in the private part of the girl aged about 7 years amounts to rape, the answer to this finds mentioned in the judgment Masiripamu Nukaiah Nukaraju v. State of A P., 2004(1) RCR(Crl.) 33 (A.P.), wherein it was observed as under :
"28. The evidence of P.W.2 clearly discloses that she was taken forcibly and her clothes were removed and that the accused inserted his fingers into her vagina forcibly and caused damage. The said act certainly falls under the offence under Section 354 IPC. Moreover, the injuries were said to have been caused to the private part of P.W.2. It is contended that offence at the best falls under Section 324 and not under Section 354 or under Section 376 IPC. I, respectfully disagree with the said contention. For, it has to be seen whether causing damage to the private part said to endanger the life of a person. Grievous hurt has been defined under Section 320 IPC. It reads as follows : "320. Grievous Hurt - The following kinds of hurt only are designated as "grievous". Firstly - Emasculation Secondly - permanent privation of the sight of either eye. Thirdly - permanent privation of the hearing of either ear. Fourthly - privation
