- (1.) ONKARESHWAR Bhatt, J. This appeal has been directed against judgment and order dated 10-11-1980 passed by the then IVth Addl. Sessions Judge, Etawah in Sessions Trial No. 292 of 1979. The appellant has been convicted under Section 376 IPC and sentenced to rigorous imprisonment for ten years and to pay a fine of Rs. 5,000/ -. In default of payment fine one year's rigorous imprisonment has been awarded.
(2.) SRI Raghuraj Kishore, learned Counsel for the appellant and SRI R. S. Sengar, learned AGA have been heard. According to the prosecution case, Ashok Kumari PW 2 aged about ten years was plucking Darhani Chhiyan from the Jwar field of Nathu Tiwari on 12-10-1978 at about 2 p. m. In the neighbouring field of Ram Babu Tiwari her brother Vidya Ram PW 3 alongwith Mehi Lal PW 4 were picking the grass. The appellant came near Ashok Kumari, forcibly picked her and took her in the middle of the field of Nathu Tiwari and committed rape on her. While committing rape the appellant had shut the mouth of Ashok Kumari by his hand. Due to bleeding from her private part the underwear of Ashok Kumari got blood stained. Somehow Ashok Kumari raised cries which attracted her brother and Mehi Lal, who came in the field of Nathu. Her brother Vidya Ram saw the appellant in compromising position and also the underwear of his sister which had blood stains. On challenge the appellant made good his escape. Ashok Kumari told her brother and Mehi Lal that the appellants had committed rape on her. Vidya Ram prepared a written report and gave it to the Police Station Ajit Mal District Etawah on 12-10-1978 at 4. 15 p. m. The case was registered and investigated. On 13-10-1978 PW 5 Dr. Ismat Ebad, Medical Officer, Etawah, examined Ashok Kumari. She has stated that on internal examination vagina admits one finger tight. She also found that laceration in the vagina was present. Blood clots in the vagina and vulva were present and hymen lacerated. Fresh laceration was present. In the supplementary report she has stated that age of the girl was 12/13 years. She has mentioned that it appears that the male organ was inserted in the vagina. Therefore, she has given opinion that it was a case of attempted rape.
(3.) THE appellant has stated that he had been falsely implicated due to enmity with one Babu and Haripal. Vidya Ram PW 3 has stated that he is not aware that any litigation has taken place between Haripal Singh and the appellant. THEre is nothing on record to show that as to how Haripal or Babu were instrumental for the involvement of the appellant in the present case. It is also not clear as to how those persons had any link with Vidya Ram, the informant or his victim sister Ashok Kumari PW 2. In this country people generally do not involve their female children who are to grow and are yet to be married for the purposes of bringing false sex charges. THE mere suggestion of Vidya Ram PW 3 in the statement of the appellant regarding false implication at the instance of some persons carries no weight. The statement of Ashok Kumari PW 2 that the rape was committed by the appellant at the date, time and place alleged by the prosecution finds support from the statement of her brother, Vidya Ram PW 3 and Mehi Lal PW 4. Mehi Lal is an independent witness who alongwith Vidya Ram was picking up grass in the nearby field at a distance of about 100 paces. The age of Ashok Kumari at the time of occurrence was 12 or 13 years. Thus, she was under 16 years of age. Ashok Kumari has stated that the appellant had put his hand on her mouth. She stated that when rape was over the appellant removed his hand from her mouth and then she shouted. She stated that the sexual intercourse by the appellant was made against her will and without her consent. Her consent is immaterial because she was below 16 years of age at the time of occurrence. She has also stated that at the time of intercourse bleeding took place from her private part and the appellant was removing blood by her underwear. The underwear was taken into custody during investigation and human blood was found on it by the Chemical Examiner. For the offence of rape penetration is sufficient to constitute the sexual intercourse. Ashok Kumari has categorically stated that the appellant has inserted the male organ in her private part. The age of Ashok Kumari being 12 or 13 years at the time of occurrence, she can be imputed with the knowledge and intelligence that male organ was inserted in her private part. At her age she would not fail to notice that it was the male organ which was inserted in her vagina. It has come in her statement that at the police station where she accompanied her brother at the time of lodging of the FIR. Sweepress examined her private part by inserting a finger. The doctor has stated that the injuries of Ashok Kumari could not have been caused by forceful insertion of finger because no laceration could be caused. In the present case, laceration in the vagina was present and hymen was also lacerated. Since the doctor has found laceration in the vagina and laceration in hymen and also blood clots in the vagina and vulva were present the statement of Ashok Kumari that the appellant had inserted his male organ in her vagina gets complete corroboration from the medical evidence and contention of the appellant that it was a case of an attempted rape cannot be accepted. The opinion of the doctor that it was a case of an attempted rape can also not be accepted in view of the injuries which she had found in the vagina and hymen. The doctor has stated that it appears that the male organ was inserted in the vagina. According to explanation to Section 375 IPC the offence of rape will be complete when penetration has taken place. The doctor herself says that it appears that male organ was inserted in the vagina. After having found the above position, her statement that it was a case of attempted rape carries no conviction and is liable to be discarded.;