Decided on April 15,1970

In Re: Myilsami Alias Mylan Appellant
STATE Respondents


K.N.MUDALIYAR, J. - (1.) THE appellant Myilsami alias Mylan appeals against his conviction for an offence under Section 376, Indian Penal Code.
(2.) P .W. 1 deposes that on or about the 5th day of June, 1968, at about 5 p.m. in the sugarcane field of Raju Chettiar the appellant committed rape on her. She is a minor girl who is more than 13 years and less than 14 years. She says she knew the accused who has his own lands 3 fields away from her fields. The appellant was cultivating his land. On the 5th day of June, 1968, she went to graze cattle on the morning as usual. At about 5 p.m. the appellant came from the east. He questioned her if she snatched a sugarcane. He pulled her by hand. She tried to extricate herself. He lifted her and took her into the sugarcane field, laid her on the ground removed her saree and pavadai and laid himself on her. He removed his dhoti, pressed his male organ on her female organ and pressed it inside. The male organ did not go inside. It went only a little. She did not bear the pain. He did all that he could do. P.W. 1 raised a cry. He caught hold of her throat and pressed. At that juncture P.W. 3, P.W. 4 and Rangaswami Chettiar (not examined) came. They have lands next to her land. At that crucial time the accused was still lying on her. Seeing them, he attempted to run. The accused was caught by them. The accused caught hold of her breast and squeezed the same. There are nail marks on her breast. He forcibly had committed intercourse. P.W. 1 attempted to extricate herself but could not. There were nail marks on her breast and hands. She did not see what happened to her private parts. She felt pain in her private parts. Her father and mother came and asked her. She told them what happened. Her mother took her home. The other persons held the accused. Then her father, P.W. 5, and other witnesses took the accused to the police station. The head constable (P.W. 8) seized her clothes, M.Os. 1, 2 and 3. She was taken to the doctor, P.W. 2 who examined her.
(3.) IT is suggested in the course of the cross -examination of P.W. 1 that it was usual for her to climb on the bull and ride it at the time of grazing. A faint attempt has been made in developing this alternative theory for explaining the injury on her private parts by the defence. But the suggestion itself lacks substance. It is also suggested to P.W. 1 that because the appellant charged her with having stolen sugarcane, her father P.W. 5 after consultation with P.Ws. 3, 4 etc., has given a belated complaint. I find no useful material in favour of the innocence of the accused from the entire cross -examination. I am of the view that the evidence of P.W. 1 remains absolutely unshaken. P.W. 2 examines P.W. 1 on 6th June, 1968, at 3 -30 p.m. She mentions the following injuries. 1. Axillaries and pubic hair well formed. Four nail marks with small linear abrasions 1/2" subcutaneous deep 1/2" close to each other over the upper part of the right side of the neck. 2. A linear nail mark of 1/2" subcutaneous deep over the middle of the chest (body of sternum). 3. Two linear nail marks close to each other over the left side of the breast close to the nipple. 4. A linear nail mark of 1/4" subcutaneous deep over the Middle 1/3rd of the right fore -arm. 5. Hymen is ruptured in an irregular manner with reddish tint around the orifice of the hymen. Slight blood and white discharge present, extensive tenderness over the hymen on the labia minora region. No nail marks over the region of vulva. Vagina smear taken and preserved for analysis of spermatozoa. She sent the vaginal smear to the Chemical Examiner. But the report from the Chemical Examiner disclosed neither the presence of spermatozoa or inococci. She expressed her final opinion in Exhibit P -2 that there is no evidence of recent intercourse as the vagional smear does not show she presence of spermatozoa. Exhibit P -3 is the wound certificate. She admits that it is possible that hymen rupture is recent. I am afraid P.W. 2 seems to be suffering from a certain amount of confusion about the completed sexual act and rape in the legal sense of the term. She admits that the rupture of the hymen could have taken place on 5th June, 1968 at 5 -30 p.m. The injuries on the chest, breast and arm could have been due to to the violence made on P.W. 1. She says that the rupture will be due to the penetration of the male organ in the vaginal orifice for the first time. She is of further opinion that the injuries had been caused in the manner alleged by the victim, P.W. 1. She further says that spermatozoa could not be washed by a mere bath. It must be brush washed. She admits that the rupture of she hymen is one of the conclusive proofs. For constituting the offence of rape, the emission need not be inside the vagina. But, P.W. 2 wanted to satisfy herself whether the emission was inside the vagina. ;

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