STATE OF MAHARASHTRA Vs. HEMA
SUPREME COURT OF INDIA
STATE OF MAHARASHTRA
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(1.)1. The respondent was charged with an offence punishable under Sec. 376 of the Indian Penal code. The case of the prosecution is that on 15th April, 1990 at about 10-00 a.m. respondent committed rape of a young girl aged about 10-12 years. She and the respondent were resident of the same village. She had gone to forest to collect fuel sticks. In the forest the rape is alleged to have been committed by the respondent. The girl disclosed this fact to her mother after 4 days whereafter the report was lodged with the police and investigation proceeded. The prosecutrix P.W.1 explained that she did not disclose the incident earlier to her mother for the fear of being beaten by her. Prosecutrix was examined by doctor Mrs. Mulchandani who issued the certificate opining that her vaginal examination showed that penis has entered in her vagina. The Sessions Court on examination of the evidence on record, in particular, the evidence of prosecutrix and the medical evidence of P.W.3 Dr. Mulchandani, and corroborating evidence of P.W.2 who was also gone to forest with P.W.1 but had run away on finding that the respondent was rushing towards them when unfortunately foot of prosecutrix was punctured on account of a thorn which she was removing and at that stage the respondent was able to grab her and drag her towards bushes and thereafter the offence of rape is said to have been committed. The evidence has been examined in detail by the Session Court. The Court also considered the submissions that it was a case of mere attempt to commit rape, this plea of the defence was rejected. The respondent was found guilty of the offence under Sec. 376(1) of the Indian Penal Code and was sentenced to suffer rigorous imprisonment for a period of 7 years and fine of Rs. 200.00 and in default to suffer further rigorous imprisonment for a period of one month.
(2.)In the appeal that was filed by the respondent before the High Court challenging his aforesaid conviction and sentence, his involvement in the incident was not challenged. The High Court also found that at the relevant time prosecutrix was aged about 10-12 years; she had gone to forest to collect fuel wood; accused as substantiated by prosecution, caught prosecutrix while she was collecting wood along with her friend including PW2 Indira, made her to lie down and committed intercourse and that it was brought on record from the testimony of prosecutrix and her mother that the injury was constantly bleeding for 5 days. The High Court also found that delay in lodging F.I.R. was properly explained. Regarding the medical evidence, the impugned judgment of the High Court notices that :
" PW3 Dr. Mrs. Mulchandani in her examination has stated that multiple lacerations were present on vulva. Laceration on hymen was also present. At the time of examination she could not see any bleeding from the injury. She did say that vaginal examination shows that penis had entered the vagina. However, in cross-examination she said that definite opinion could not be given as to whether the hymen was ruptured or intact."
(3.)Despite holding that the aforesaid facts had been proved by the prosecution, the High Court, in rather too brief an order, sets aside the finding of the Sessions Judge. The only reasons given in the impugned judgment by the High Court are:-
" Taking into account this medical evidence, it appears that the accused made an attempt to commit rape. In case of actual rape or complete inserting of penis, it would have certainly result in rupture of hymen of a girl of tender age of 10 or 12. In view of this, according to us the appellant has made an attempt and hence is liable to be punished with the aid of Sec. 511 of the Indian Penal Code. the finding in this regard as recorded by the learned Sessions Judge, therefore, cannot be sustained."
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