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2002 DIGILAW 863 (BOM)

Bandu Madhukarrao Ingole v. State of Maharashtra

2002-08-29

R.S.MOHITE

body2002
JUDGMENT - R.S. MOHITE, J.:---This is an appeal against the conviction under section 376 of the Indian Penal Code. 2. The sentence imposed is of seven years' rigorous imprisonment and fine of Rs. 2000/-, in default further R.I. for six months. The appellant-accused was about 22 years of age at the time of incident. 3. The prosecution case as can be seen from the evidence of prosecutrix, P.W. 1 Shobha Mohan Jadhav is that on 23-11-1998 at 5.00 p.m. she and one Jyoti were proceeding towards the house of prosecutrix from the field. Shobha was having a bundle of grass. The accused came from behind, threw away the bundle of grass and took Shobha to his field. Cotton plants were standing on the field. The accused made her lie down. He lifted her parkar and her underwear. He opened his pant and laydown on her person and he had sexual intercourse with her. As a result of this, there was bleeding from her private part and her clothes were stained with blood. She made hue and cry, but nobody was there. Jyoti was on the road. That, thereafter, she and Jyoti came to the house of Shobha narrated the incident to her mother. Thereafter Shobha, her mother Rukhmabai, her elder brother Suresh and uncle Devsingh went to the Police Station, where the F.I.R. was lodged. 4. The defence of the accused was of total denial. 5. I have perused the record. There is nothing in the cross-examination of the prosecutrix which shakes her testimony. It was argued that she has stated that she caused abrasions to the face of the accused with her hand, but no such abrasions were found in the medical examination of the accused. However, that by itself does not help the defence as medical examination of the accused was held on 27-1-1998, i.e. four days after the incident. On the other hand, testimony of Shobha is fully corroborated by her mother Rukhmabai as well as P.W. 4 Jyoti, who is child witness aged about seven years and who has talked about Shobha being carried away by the accused into the cotton crops by lifting her and she was standing on the road. Nothing of any substance has been elicited in the cross-examination of Rukhmabai or Jyoti which would indicate that they were not speaking the truth. 6. Nothing of any substance has been elicited in the cross-examination of Rukhmabai or Jyoti which would indicate that they were not speaking the truth. 6. It was argued on behalf of the accused that doctor who conducted her medical examination was not examined. The medical certificate of Shobha has been admitted under section 294 Cri.P.C. Though the doctor has opined that no definite opinion of rape is given, the certificate clearly indicates that the local examination has shown blood stains on the thighs of Shobha and that her hymen was torn. The certificate further indicates that vaginal swab, pubic hair, blood sample taken and handed over to the lady police. The report of Chemical Analyser which is at Exhibit 24 also lends some corroboration to the version of the prosecutrix because blood has been found on her clothes, i.e. on her maxi and petticoat as well as on pubic hair which were Item Nos. 1, 2 and 9 as sent to the Chemical Analyser. Blood stained earth was seized from the spot where the incident took place and the C.A. Report indicates that same also contains blood. These are all corroborative factors and lend support to the story of the prosecutrix that she was raped. 7. This is a case where F.I.R. has been filed on the same day in the night after the incident had taken place at about 5.00 p.m. in the evening. The F.I.R. corroborates the prosecutrix in the sense that it is stated by the prosecutrix in the F.I.R. that her honour was taken away. This could not be read to effect that she has stated in the F.I.R. that she was only molested. 8. An attempt was made to argue that this case falls under section 376 r/w section 511 of the Penal Code and this case at the most said to be an attempt to commit the rape. I am not inclined to accept this submission in view of blood stains found on the thighs of the prosecutrix which corroborates her story of sexual intercourse. It was argued that no semen was found. It is not necessary for an act of rape that semen should be discovered in every case, there can be a case where the offence of rape could be committed and completed without discharge of semen. 9. It was argued that no semen was found. It is not necessary for an act of rape that semen should be discovered in every case, there can be a case where the offence of rape could be committed and completed without discharge of semen. 9. It was then argued that sentence of seven years should be reduced as there was special circumstances such as the fact that appellant was studying in D.Ed. and that by now the girl Shobha is married. In my opinion this cannot be the grounds for refusing the minimum prescribed sentence of seven years. It cannot be lost sight of that an offence of rape can be punishable with imprisonment for life or up to ten years. The lower Court has taken lenient view in awarding seven years' sentence. 10. In the circumstances, the appeal stands dismissed. Appeal dismissed. -----