RAKESH KUMAR JAIN,J. - (1.) THIS appeal is directed against the order of Additional Sessions Judge, Bhiwani, dated 17.2.2007 by which the appellant has been held guilty under Section 376 IPC and order dated 19.2.2007 by which he has been sentenced for a period of 10 years, fine of Rs.5000/- and in default of payment of fine, sentence for a period of six months' RI.
(2.) THE appeal was filed with an affidavit for condonation of delay which was allowed at the time when it was admitted. Thereafter, the appellant had applied 2/3 times for suspension of sentence but could not succeed. However, the main appeal was ordered to be listed because the appellant had already suffered actual sentence of more than five years and 10 months out of the total sentence of 10 years. It may be observed at the outset that the learned counsel for the appellant did not try to project that he was innocent, rather he has argued that the appellant had only made futile attempt to commit rape with the victim (in view of Section 228-A of IPC and judgment of Supreme Court in the case of State of Karnataka Vs. Puttaraja 2004 (1) RCR (Criminal) 113 (SC) for which he should have been convicted under Section 376 read with Section 511 of IPC and should have been punished for a lessor period of sentence.
(3.) IN this regard, he has referred to the statement of PW-4 Dr.Sudha Garg, who had medicolegally examined the victim and has observed that "defused swelling all around lebia majora, reddish 2-3 vesicular regions filled of dirty discharge may be boils. Multiple superficial laceration present over clotoris and on lateral side and on posterior edge. Size of laceration from 3 x 5 cm. Irregular edges red oedematous edges. Hymen intact external os admitted tip of little fingure". He has submitted that the Doctor has stated in her cross examination that "the possibility of the injuries in the present case cannot be ruled out if the patient falls on a solid surface while moving". It is argued that as per the statement of Dr.S.C.Gupta (PW-10), who had medicolegally examined the appellant, his genital organ was well developed. He had well developed testicles and pubic hair. There was erection of penis seemed during coughing which indicates that penis was well developed. There was no sign of deformity in the penis. There was circumscion of penis already of 10 years back. According to his opinion, there was nothing to suggest that the appellant was not capable to do intercourse.;