Datta vs State Of Maharashtra

1. The appellant was prosecuted for an offence punishable under Section 376 of the

Indian Penal Code for having committed rape on P.W. 2 on the 24th of January, 1984, at about

5:00p.m. A report was lodged at the Parbhani Police Station (Rural) at 11:30p.m. the same

night by the prosecutrix. In this Report, she stated that she had been raped by the appellant

while she was collecting cow dung cakes from the cattle shed in her family's property and

immediately after the rape had been committed, she had informed her mother, P.W.3, about

what had transpired. The prosecutrix was also subjected to a medical examination by P.W. 1

who found no injuries on labia majora but the hymen was torn and lacerated but as there was

no sperm detected in her it was not possible to give any categoric opinion about rape. In cross

examination, however, the doctor admitted that the injuries that had been found on the

prosecutrix could have been possible if there had been partial penetration of the vagina. The

trial court in its judgment dated 24th September, 1985, held that as there was no medical

evidence of rape the prosecution story could not be proved, beyond doubt. It, accordingly,

made an order of acquittal. An appeal was thereafter taken to the High Court which cognizant

of the fact that it was dealing with an appeal against acquittal, has set aside the judgment of

the trial court and has convicted the appellant herein under Section 376 of the IPC and

sentenced him to seven years rigorous imprisonment. In arriving at this conclusion, the High

Court has given a positive finding that the statement of P.W.2, the prosecutrix and her mother,

P.W.3, clearly spelt out a case of rape and that as she was merely a child of 10 to 12 years of

age as per the medical evidence, there was no reason whatsoever as to why she would tell a

lie. The High Court has also observed that the trial court appeared to have misread the

evidence of the doctor inasmuch that the evidence read as a whole clearly revealed that there

had been partial penetration of the vagina of the prosecutrix.

2. Mr. Shivaji M. Jadhav, the learned counsel for the appellant has, however, submitted

that in the light of the fact that from the medical examination of the prosecutrix on the 30th

January, 1994, it was not clear as to the commission of rape and that the statement of doctor,

P.W.1, was equally ambivalent, no case was made out. We, are, however, not inclined to

accept this submission for the reason that medical report speaks of the fact that the hymen

had been torn and there was a laceration on the posterior vaginal wall. Likewise, the doctor

appearing as P.W. 1 stated that the possibility that the injuries had been caused to the hymen

and the vaginal wall though partial penetration could not be ruled out. We find that the

evidence of the doctor, P.W. 1 corroborates the fact that rape had indeed been committed. As

a matter of fact, P.W. 2 who was barely a child herself stated that there had been only partial

penetration of the vagina. In the light of the facts, we see no reason to discard the evidence of

P.W.2 and P.W.3.

3. Furthermore, in a similar matter in Prithi Chand v. State of Himachal Pradesh AIR 1989

SC 702, this Court has opined that merely because the doctor has found that the vagina

admitted one finger with difficulty, it could not be inferred that there was no penetration as the

vaginal muscles could have contracted by then. This Court (in the same judgment) also held

that mere absence of spermatozoa could not cast a doubt on the correctness of the

prosecution case.

4. Faced with this situation, Mr. Jadhav, has submitted that the incident had happened

way back in 1984 when the accused was a young man and as of now he was a married family

person and some mitigation in the sentence was thus called for. We find no merit in this

submission as well. Section 376 of the IPC provides that the minimum sentence for rape of

child below 12 years of age is 10 years though in exceptional cases a lesser sentence can be

awarded. The High Court has already awarded that lesser sentence. We are thus disinclined

to interfere in the matter.

5. The appeal is dismissed.