Research › Search › Judgment

Madhya Pradesh High Court · body

2000 DIGILAW 549 (MP)

Ambikesh Tiwari v. State of M. P.

2000-05-12

S.P.KHARE

body2000
Appellant Ambikesh Tiwari has been convicted under Sections 376, 342 and 323 IPC and sentenced to rigorous imprisonment for seven years, and six months respectively. He has also been sentenced to pay a fine of Rs. 2,000/- for the offence punishable under Section 376 IPC. After hearing the learned counsel for the both the sides and after careful scrutiny of the evidence on record this Court is of the opinion that the conviction of the appellant under Section 376 should be altered to Section 376/511 IPC. In view of overwhelming reliable evidence on record. Learned counsel for the appellant could not challenge that appellant Ambikesh Tiwari attempted to commit rape on Tripti (PW 4) aged about 16 years on 11.6.1998 at 9 A.M. in his house in Derapahadi, Chhatarpur. The accused was Physics teacher in Saraswati Higher Secondary School at Chhatarpur. Tripti (PW 4) was a student of 11th class in that school. She was also taking tuition of the Physics from the accused at his residence. She is daughter of R.D. Shilpakar (PW 6) who was posted as Executive Engineer in P.W.D. at Chhatarpur. Ushadevi (PW 5) is mother of the prosecutrix. Tripti (PW 4) has deposed that she had gone to the house of the accused to take a book of Physics for 12th Class. The accused asked her to sit on a stool and bolted the door of the room from inside. That created panic in her mind and she wanted to go back without taking the book. But the accused lifted her and took her inside the inner room. He put her on a mattress and removed her Salvar and underwear. He attempted to commit rape on her. She resisted to her full capacity. The accused caused injury on her left wrist with a blade. The accused threatened to cause her death. There was bleeding from her injury on the left hand. She has further deposed that she came to her house and narrated the incident to her mother Ushadevi (PW 5). Her mother told her father about this incident and he took her to Dr. Jagannath Mishra (PW 11), a private medical practitioner for repairing the wound on the left wrist. Thereafter, he took her to the police station where she lodged the report Ex. P-6. She was sent for medical examination. Dr. Her mother told her father about this incident and he took her to Dr. Jagannath Mishra (PW 11), a private medical practitioner for repairing the wound on the left wrist. Thereafter, he took her to the police station where she lodged the report Ex. P-6. She was sent for medical examination. Dr. Lata Chourasia (PW 2) examined Tripti (PW 4) on 11.6.1998 and found abrasions on her right finger, right middle finger and left palm. There was a stitched wound on her left wrist. The hymen of the girl was intact. There was redness and tenderness on "posterior commissure". Her report is Ex. P-2. The accused was also medically examined by Dr. M.L. Khandelwal (PW 8) and as per his report Ex. P-15 he found two abrasions on his body. One was on the skin of the inner fold of his penis. There were minute abrasions on umbilical area. The oral testimony of Tripti (PW 4) finds corroboration from immediate disclosure made by her to her mother Ushadevi (PW 5) and her father R.D. Shilpak (PW 6). That is further substantiated by the medical evidence. The injuries found on the body of the prosecutrix and those of the accused go to show that the accused attempted to molest this girl sexually. It is because of the stiff resistance offered by her that the accused could not have sexual intercourse with her and her hymen has been found to be intact. Medical report of Dr. Lata Chourasia (PW 2) does not show any injury, redness or tenderness on the labia majora or labia minora or any other part of the genitals of the girl. The redness and tenderness, as mentioned above, were found on 'posterior commissure that is, below the vagina. It appears that because of the resistance from the side of the girl, the accused could not have either vaginal or vulval penetration. As such the offence is not covered by the definition of rape but it was a case of an attempt to commit rape. The evidence of Tripti (PW 4) shows that the accused attempted to commit rape. To the same effect is the evidence of Dr. Lata Chourasia (PW 2) which shows that there was an attempt to commit rape on this girl. The lady doctor had prepared slides from the vaginal swab for chemical examination. According to the report Ex. The evidence of Tripti (PW 4) shows that the accused attempted to commit rape. To the same effect is the evidence of Dr. Lata Chourasia (PW 2) which shows that there was an attempt to commit rape on this girl. The lady doctor had prepared slides from the vaginal swab for chemical examination. According to the report Ex. P-18 of the Assistant Chemical Examiner, there was no semen or human spermatozoa on the slides. According to the Explanation to Section 375 IPC "penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape". There is no dispute on this point that even vulval penetration is sufficient to establish offence of rape. It is not necessary that there should be vagina penetration. In the present case there is no evidence to the effect that there was vulval penetration. The redness and tenderness on the posterior commissure indicate that no part of the virile member of the accused was introduced within the labia of the pudendum of the girl. Even slightest entry in the labia would constitute penetration. In the present case it is not established beyond reasonable doubt that the accused introduced his penis into labia majora or labia minora of the girl. He was attempting to satisfy himself by rubbing his penis to posterior commissure and that would not amount to penetration. The accused deserves legally benefit of this reasonable doubt. Therefore, conviction of the appellant for the offence under Section 376 IPC is set aside and he is convicted under Section 376/511 IPC for attempting to commit rape. Keeping in view all the facts and circumstances of the case, the appellant is sentenced to rigorous imprisonment for five years for the offence punishable under Section 376/511 IPC. The offence under Section 376 IPC is punishable with life imprisonment or a term which may extend to ten years and to fine. The minimum sentence is imprisonment for seven years. Therefore, half of the minimum sentence of seven years would be three and a half years. There are aggravating circumstances. There was no justification on the part of the accused to use blade causing incised wound on the left wrist of the prosecutrix. That shows that this blade was used by the accused to disable the prosecutrix from offering resistance. That exhibits higher degree of criminal propensity on the part of the accused. There are aggravating circumstances. There was no justification on the part of the accused to use blade causing incised wound on the left wrist of the prosecutrix. That shows that this blade was used by the accused to disable the prosecutrix from offering resistance. That exhibits higher degree of criminal propensity on the part of the accused. Therefore, keeping in view all the aspects, the appellant is being sentenced to rigorous imprisonment for five years and fine of Rs. 2,000/- for this offence. The conviction and sentence of the appellant for the offences under Sections 342 and 323 IPC as imposed by the trial Court are maintained.