The absence of penetration negates a rape conviction under IPC Section 376, affirming culpability for outrage of modesty under IPC Section 354 based on established intent and actions.

ORDER :

E.V. Venugopal, J.

The present Criminal Revision Case is filed against the Judgment dated 16.02.2010 in Criminal Appeal No.151 of 2008 on the file of the learned IV Additional District and Sessions Judge (FTC), Mahabubnagar (for short, "the appellate Court"), whereby the Judgment dated 25.09.2008 passed in S.C.No.613 of 2007 by the learned Assistant Sessions Judge, Nagarkurnool (for short, “the trial Court"), was confirmed.

2. Heard learned counsel for the revision petitioner/accused and Mr.E.Ganesh, learned Assistant Public Prosecutor appearing for respondent-State. Perused the record.

3. Facts which are necessary to dispose of this revision, in nutshell, are as follows:

On 30.10.2006 at about 8.00 A.M., the victim lodged a complaint in Bijinapally Police Station stating that on 28.10.2006 she went to the house of PW.1 and the accused, who are her sister and brother-in-law, on their force to stay in their house. On the night of the same day, the accused brought intoxicated liquor and forced her to consume in the name of formality and he also consumed the same. In an intoxication condition, he beat his wife-PW.3, who fell unconscious. Then, he committed rape on the victim. On receipt of the said complaint, the Station House Officer, Bijinapally Police Station, registered a case in Crime No.98 of 2006 for the offence punishable under Section 376 of INDIAN PENAL CODE (for short ‘IPC’) and after completion of investigation, the police filed charge sheet against the accused, to which he did not plead guilty and claimed himself to be innocent. According to him, he was falsely implicated in the instant case.

4. The prosecution had examined fifteen witnesses to substantiate its case. The victim was examined as PW.9. The husband of victim was examined as PW.10. The younger sister of the victim and wife of the accused was examined as PW.3. PWs.1, 2 and 4 are circumstantial witnesses. PWs.6 and 8 are panch witnesses. PWs.11 and 12 are Doctors. PWs.12, 14 and 15 are the investigating officers.

5. After conducting trial, having considered the rival submissions and basing on the material available on record, the trial Court arrived at a finding that the prosecution had fully established the charges under Sections 376 and 323 of IPC against the accused beyond all reasonable doubt. Consequently, the accused was found guilty for the offence under Section 376 of IPC and he was convicted and sentenced to undergo rigorous imprisonment for a period of seven (7) years and also to pay fine of Rs.5,000/- (Rupees five thousand only), in default of payment of fine amount, he shall under rigorous imprisonment for a period of three (3) months. The accused was also convicted and sentenced to undergo rigorous imprisonment for a period of three (3) months for the offence under Section 323 of IPC.

6. Being aggrieved by the judgment of the trial Court, the accused had preferred an appeal before the appellate Court. The learned Sessions Judge carefully scrutinized the entire evidence on record and observed that the trial Court was perfectly justified in awarding the sentence of seven years rigorous imprisonment to the accused and consequently the appeal filed by the accused was dismissed.

7. Looking to the gravity of the offence, this Court has examined the entire evidence and documents on record. Even on close scrutiny and marshalling of evidence, I co