DATTA v.

STATE OF MAHARASHTRA (Criminal Appeal No. 295 of 2005)

NOVEMBER 24, 2010 [HARJIT SINGH BEDI AND CHANDRAMAULI KR. PRASAD, JJ.]

[2010] 14 (ADDL.) SCR 921

The following order of the Court was delivered

O R D E R

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.