Conviction for attempted rape upheld based on circumstantial evidence and victim's statement, despite non-examination of the child.

1Heard the counsel for the parties at length.

The appellant is hereby assailing the correctness, propriety and legality of the judgment and order passed by the 2nd Additional Sessions Judge, Satara in Sessions Case No. 98 of 2001 wherein he has convicted the appellant for committing the offence punishable under S. 376(2)(f) of I.P.C. and sentenced him to undergo RI for 10 years and to pay fine of Rs. 2000/-, in default to undergo further RI for three months.

2. The prosecution case in brief is that on 14-2-2001 victim Sushma a girl of five years old had gone to Balwadi school at about 11.00 a.m. and her mother Sunita Bhoite had brought her to her house at about 2.00 p.m. She ate some food and then went outside for playing and at that time Sunita was washing the clothes in the house. Sushma was playing with Roopali Mohan Mane, another girl, in the Court yard. After sometime, said Roopali Mane came inside the house of Sunita and told her that Sushma slept in the nearby temple with the present accused. Sunita told Roopali to bring Sushma back to her house and within 5-10 minutes Sushma and Roopali came to Sunita's house and at that time Sushma was weeping. Sunita saw that her nicker was hanging around the legs of Sushma and she noticed that it was stained with semen which was noticed on the said nicker and thighs of Sushma. Sunita removed the said nicker and washed it and thereafter asked Sushma as to what had happened with her and at that time Sushma told her that "the accused (present appellant) had urinated on her private part by embracing her." Due to fear of losing the reputation, Sunita washed the said nicker and as she was alone in the house she told also the said incident to one Suvarna Mane, wife of maternal uncle of her husband. Thereafter she told about the said incident to Shivaji Mane, maternal uncle of her husband who told her not to get scared and promised her that he would ask the accused about the said incident. After that Sunita narrated the said incident to Sunil Vithhal Mane and he also promised that he would look into the said matter. Thereafter Sunita went to her house.

3. At about 8.00 or 8.30 p.m. Shivaji Mane / Dilip Pawar, Dinkar Mane and Ankush Mane asked about the said incident to the accused (the present appellant) who admitted to have done the said act as narrated by Sushma to her mother. He prayed for being pardoned. After that, the present appellant ran away and was absconding for four days.

4. Sunita went to Police Station Rahimatpur and lodged the complaint against the accused after Sushma pointing out the place of the incident to PW Sunita. The spot of the offence was inside the temple of Lord Bhairoba. Police during the course of investigation seized the said nicker and produced it before the Court as Article No. 1.

5. Sushma was produced before Dr. Varsha Kulkarni was examined Sushma on 15-2-2001 at about 3.30 p.m. No external injuries were found on the person of Sushma. Secondary sexual characters were not developed. She took the blood sample and vaginal swab which along with her nicker were dispatched to Chemical Analyser, Pune.

6. On 17-2-2002, when the present appellant was arrested, when he was in police custody, he expressed his willingness to show the place where he had concealed his clothes which included his chaddi, banian and solapuri chadder under the heap of fodder near his house. The memorandum was drawn in the presence of panch witness Ramchandra Madhavrao Deshmukh and his companion witness. The appellant took the Investigating Officer and the panch witnesses to the said heap of fodder and after scattering the fodder, he took out those clothes and chaddar from it. The said articles were seized under the panchnama Exhibit - 21 keep