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2014 DIGILAW 1395 (BOM)

Umesh s/o. Ramesh Supe v. State of Maharashtra

2014-07-01

M.L.TAHALIYANI

body2014
JUDGMENT The appellant has been convicted for the offence punishable under Section 376 (2) (f) of the Indian Penal Code. 2. The victim girl was aged about 2 1/2 years at the time of incident. It was alleged before the trial Court that on 15th April, 2010, the appellant had picked up the victim girl Prema while she was playing in her court-yard and had taken her to his old house. It is further alleged that the appellant had committed rape on the victim girl. The mother and the grandmother of the victim girl were present in their court-yard when the victim girl was taken by the appellant. After some time, mother and the grand-mother heard cries of the victim girl and they rushed to the old house of the appellant. The victim girl was lying necked and appellant was trying to wear his trouser. The matter was reported to the Police. The First Information Report was registered. 3. During the course of investigation, statements of witnesses were recorded and victim girl was sent for medical examination. The Medical Officer found that labia majora and labia minora were swollen & red and lacerations were present on the inner walls of vagina. Hymen was found tom. The vaginal swabs were sent for report of Forensic Science Laboratory. Bleeding or semen was not detected on vaginal swabs. However, the laboratory had reported that semen was found on the underwear of the appellant. 4. It is also alleged that the father of the victim girl had questioned the behaviour of the appellant. The appellant had threatened to kill father of the victim girl. A charge for the offence punishable under Sections 376 (2) (f), 504 and 506 of Indian Penal Code was framed by the learned trial Judge. The appellant pleaded not guilty and claimed to be tried. He has been acquitted of the offences punishable under Sections 506 and 504 of Indian Penal Code and has been convicted for the offence punishable under Section 376(2)(f) of Indian Penal Code. 5. The prosecution had examined in all 8 witnesses in support of its case. The case is mainly based on the evidence of PW-1 and PW-8. PW-2 - father of the victim girl was not at home at the time of incident. PW-3 grandmother of the victim girl and mother of PW-1 was accompanying PW-1. 5. The prosecution had examined in all 8 witnesses in support of its case. The case is mainly based on the evidence of PW-1 and PW-8. PW-2 - father of the victim girl was not at home at the time of incident. PW-3 grandmother of the victim girl and mother of PW-1 was accompanying PW-1. But, since the learned trial Judge has not given opportunity to the defence lawyer for cross-examination of PW-3, the evidence of PW-3 cannot be taken into consideration. 6. Learned Advocate Mr. Daga is heard on behalf of the appellant and learned Additional Public Prosecutor is heard on behalf of the State. Mr. Daga has submitted that had there been even a slightest penetration, the report of vaginal swab should have been positive. The report of Forensic Science Laboratory in respect of vaginal swab shows that there was neither blood nor semen on the vaginal swab. Mr. Daga has submitted that, it indicates that there was no penil penetration. It is submitted by Mr. Daga that PW- I had not seen the appellant while committing rape. PW-1 had seen her daughter in necked condition and appellant in half-necked condition. What happened prior to that was not seen by anybody. The victim girl could not be examined because she was only 21/2 years old. Mr. Daga has submitted that the injuries found on the victim girl could be caused by manual manipulation of the genitals of the victim girl. It is vehemently contended that, had there been penil penetration, the report of Forensic Science Laboratory would have been positive. In brief, it is submitted that the appellant at the most might have manually manipulated the genitals of victim girl and, during the course, might have ejaculated which resulted in finding of semen on his underwear. 7. I have carefully examined the evidence of PW-1 and PW-8. It is abundantly clear that nobody had seen the appellant committing rape on the victim girl. PW-l had reached the spot lateron. Therefore, there is no cogent and reliable evidence to come to a finding that the injuries found on genitals of the victim girl were due to the alleged rape. I find substance in the arguments of learned Advocate Mr. Daga that on the basis of present evidence, it is not possible to come to a definite conclusion that the appellant had committed rape. I find substance in the arguments of learned Advocate Mr. Daga that on the basis of present evidence, it is not possible to come to a definite conclusion that the appellant had committed rape. My attention was invited to the evidence of PW-8 that the vagina of victim girl admits only tip of little finger. It is contended that, in the circumstance, had there been penil penetration there would have been lot of bleeding from vagina of the victim girl. I, therefore, agree with the learned Advocate Mr. Daga that the genitals of victim girl were most probably manipulated by the appellant by his fingers, which resulted into injuries found by PW-8. It is also acceptable that the appellant might have ejaculated due to excitement while attempting to insert his penis in vagina of the victim and therefore, there was semen on his under-garment. The contention get support from the chemical analysis report regarding vaginal swabs. In the circumstances, the contention of learned Advocate Mr. Daga that the appellant at the most can be convicted for the offence punishable under Sections 376 read with Section 511 of I.P.C. Hence, I pass the following order. Appeal is partly allowed. The conviction of the appellant for the offence punishable under Section 376 (2) (f) is set aside. He is convicted for the offence punishable under Section 376 read with Section 511 of Indian Penal Code and is sentenced to suffer R.I for five year and to pay fine of Rs. Five Thousand, in default R.I. for one month. Set off be given in accordance with law. Appeal stands disposed of accordingly. Ordered accordingly.