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Durgesh Pandey vs State on 29 July, 2019

* IN THE HIGH COURT OF DELHI AT NEW DELHI

CRL.A. 1208/2015

Reserved on : 8th July, 2019.
Date of Decision: 29th July, 2019.
IN THE MATTER OF:
DURGESH PANDEY ….. Appellant
Through : Mr. Aditya Vikram, DHCLSC
with Mr. Avinash, Advocates.
versus
STATE ….. Respondent
Through : Mr. Sanjeev Sabharwal, APP for
the State with SI Devendera
Rawat, PS Timarpur, Delhi.
CORAM:
HON’BLE MR. JUSTICE MANOJ KUMAR OHRI

MANOJ KUMAR OHRI, J.

1. By way of the present proceedings, the appellant has challenged
the judgment of conviction dated 22nd July, 2015 and order on sentence
dated 28th July, 2015 passed by ASJ, Special FTC-2 (Central) in Sessions
Case No.05/2015 arising out of FIR No.787/2014 registered under
Sections 376/Section511/Section354 IPC at PS Timarpur. Vide above judgment, the
appellant was convicted for the offences punishable under Sections
376(2)(j) and Section 376(2)(l) IPC and was awarded rigorous
imprisonment for 10 years along with fine of Rs. 5,000/- in default
whereof he was directed to undergo simple imprisonment for two years.

2. The following facts were noted by the Trial Court in the impugned
judgment: –

“1. The case in hand was registered on a complaint (Ex. PW
2/A) of one Sh. Sudesh Rathi. The complainant is working as a

CRL.A.1208/2015 Page 1 of 18
driver in DTC. On 14.11.2014 at about 12:30 AM while he
was returning to his house at Gopalpur on his motorcycle, on
turning to main Outer Ring Road, he saw one boy lying on top
of the girl near a footpath near Gopalpur and also found that
girl was in nude condition while the pant of the boy was
lowered below his knees.

2. Complainant, Sudesh Rathi made a call to his ‘Chacha’ sh.
Raj Singh Bhati and asked him to come at the spot. When his
Chacha reached at the spot, they tried to remove boy, but he
did not move from over top of the girl. Thereafter, Sudesh
Rathi made a call at 100 number from mobile of his Chacha
bearing No. 8800994522. PCR van reached at the spot and
separated the boy, who was lying on top of that girl. On
enquiry his name was revealed as Durgesh Pandey. The girl
was, however, unable to state her name. PCR officials gave the
clothes to the girl and took both of them along with them in the
PCR van.

3. The victim was taken for medical examination at Aruna Asaf
Ali Hospital where W. SI Saroj Devi reached upon receipt of
DD No. 5A Ex. PW 1/B where ASI Narender Singh met her. W.
SI Saroj Devi obtained MLC of the victim. The doctor opined
that victim was unable to tell anything about the incident. After
the registration of FIR, on the basis of complaint of Sudesh
Rathi Ex. PW-2/A, the Investigating Officer prepared the site
plan of place of incident, got the spot inspected by the Crime
Team, also took photographs and got the victim counselled
from one NGO official. Accused was arrested and taken for
medical examination. The exhibits of the accused as well as
victim which were taken by the respective examining doctors,
were also taken into police possession and victim was referred
to IHBAS for treatment, after obtaining necessary orders in
this regard from the court of concerned MM.

4. Information regarding the said missing girl was conveyed to
nearby Police Stations through ‘Zipnet’, but no clue regarding
victim was received.

5. However, on 20.11.2014 one boy namely ‘BB’ resident of
Gujarat lodged the report regarding missing of his sister, at

CRL.A.1208/2015 Page 2 of 18
PS Timparpur vide DD No. 32A on 20.11.2014. On the next
day, he brought photograph of his missing sister to the PS. He
was taken to IHBAS where he identified the aforesaid victim as
his sister. The victim was produced before concerned MM for
recording of her statement under Section 164 Cr.P.C.
However, Ld. MM was of the view that the victim appeared to
be suffering from mental instability and her statement could
not be recorded under Section 164 Cr.P.C.”

3. After completing the investigation, a charge sheet was filed. The
Trial Court vide order dated 9th April, 2015 framed the charges under
Sections 376 (2) (j) SectionIPC and 376 (2) (l) SectionIPC against the appellant.

4. During the trial, the prosecution examined a total of 16 witnesses.
Sudesh Rathi and Raj Singh, the two independent witnesses, were
examined as PW-2 and PW-4 respectively. Dr Valvi Kuldeep Tapsingh
and Dr. Shaili were examined as PW-6 and PW-5 to prove the MLC of
the prosecutrix. The prosecutrix was examined without oath as it had
come on record that the prosecutrix was differently abled and not capable
of understanding the meaning of oath. It has also come on record that
from time to time, the medical reports of examination of the prosecutrix
were called from the “Institute of Human Behaviour and Applied
Sciences” (IBHAS). Dr Om Prakash, Associate Professor of Psychiatry,
a member of the Board who had examined the prosecutrix and given an
opinion about her mental status, was examined as PW-16. The other
witnesses were police officials associated with various stages of the
investigation.

5. Mr. Aditya Vikram, learned counsel for the appellant, has argued
that the appellant has been falsely implicated; that the ingredients of the
offence as required under the charged section are not made out in the
facts of the present case; that it has not been conclusively proved on

CRL.A.1208/2015 Page 3 of 18
record that the prosecutrix was incapable of giving consent; that none of
the witnesses deposed about the factum of rape committed by the
appellant. He submitted that the evidence which has come on the record
only points to the circumstance that the appellant was found lying on the
prosecutrix, on a footpath. While the prosecutrix was in naked condition,
the pant of the appellant was lowered up to his knees. Mr. Vikram further
argued that neither the medical evidence nor the scientific evidence, in
terms of the MLC and the DNA report, conclusively proved the factum
of rape. He thus argued that no evidence has come with respect to
penetration by the appellant.

6. Mr. Sanjeev Sabharwal, learned APP for the State on the other
hand supported the judgment and further submitted that the appellant was
arrested from the spot and the DNA report rather confirmed his
involvement.

ANALYSIS

7. Sudesh Rathi, the complainant, was examined as PW-2. In his
testimony he deposed that he was working as a driver in the DTC and
while returning on his motorcycle from his job, he reached near
Gopalpur More at about 12:30 A.M when he saw that the appellant was
lying on top of the prosecutrix. He deposed that the prosecutrix was in
naked condition and the appellant also had his pant lowered up to his
knees. He called Raj Singh, his uncle who lived nearby, from his phone.
When Raj Singh reached, they both tried to remove the appellant from
the prosecutrix however, they failed to do so. Thereafter, PW-2 made a
call at 100 number from Raj Singh’s mobile phone (No. 8800994522).

CRL.A.1208/2015 Page 4 of 18

The witness further deposed that when police reached and enquired from
the prosecutrix, she was unable to give her details despite being asked by
the police officials. The PCR officials took the appellant and the
prosecutrix to the hospital. The witness identified the appellant in Court.

8. During the cross-examination, the witness replied that there was
street light at the place of occurrence. He also replied that the PCR
officials took the appellant and the prosecutrix with them in PCR van. It
is noteworthy that a suggestion was given to the witness that the
appellant was only standing on the road and was enquiring about his way
to Karawal Nagar and also that there was no girl at the place of
occurrence.

9. Mr. Raj Singh (uncle of PW-2) was examined as PW-4. The
testimony of PW-4 is cumulative to the testimony of PW-2. The witness
deposed that PW-2 tried to remove the appellant away from the
prosecutrix, however, he failed to do so. A call at No. 100 was given by
PW-2 from the mobile phone of the witness after which PCR came and
removed both the appellant as well as the prosecutrix to the hospital. The
witness identified the appellant in Court.

10. The statement of the above two independent witnesses was
corroborated by HC Babrik Kumar (PW-10), who was Incharge of the
PCR Van that reached the spot. He deposed that on reaching the spot he
saw the appellant lying on the prosecutrix and the prosecutrix was in
naked condition. He made the prosecutrix wear cloths and took her to
Aruna Asaf Ali Hospital in the PCR Van. He identified the appellant in
Court.

CRL.A.1208/2015 Page 5 of 18

11. The PCR form with respect to the aforesaid call made by PW-2
was proved by SI Saroj Devi as Ex. PW-15/J.

MLC

12. The prosecutrix was medically examined by Dr. Valvi Kuldeep
Tapsing (PW-6) on 14th November, 2014 at about 1:40 am vide MLC
exhibited as Exhibit PW-5/A. As per the MLC, it was observed that the
prosecutrix though conscious was not talking properly. It noted
superficial abrasion present on the right side of her chin area. The
prosecutrix was referred to Sr Gynae, where she was examined by Dr
Shaili (PW-5). On Per Speculum examination (P/S) of the prosecutrix, it
was recorded that “hymen torn old”. In the MLC, following observations
were mentioned:-.

“O/H (Obstetric history) ??
M/H (Menstrual history) ??
Menstrual blood test ??”

13. A perusal of the record shows that neither in the MLC of the
prosecutrix nor in the testimony of both the doctors who had medically
examined the prosecutrix, any injury was mentioned in the internal
examination of the prosecutrix. It is appalling that neither the doctors
gave any clarification nor such clarification was asked for either by the
APP or the court to find out if any test was conducted to check whether
the blood mentioned in the MLC or found on the clothes of the appellant
as well as the prosecutrix was menstrual.

14. The MLC of the appellant was exhibited as Ex. PW-15/E. The
appellant was arrested from the spot and was taken along with the

CRL.A.1208/2015 Page 6 of 18
prosecutrix to the hospital by the PCR officials. The medical examination
of the appellant was conducted at 1:39 am on 14th November, 2014. As
per the MLC, alcohol intake presence was noted. During his local
examination, it was also noted that “No smegma was present”.

FORENSIC EVIDENCE

15. The exhibits collected during the investigation were sent to the
FSL. The DNA examination report dated 8th July, 2015 was exhibited as
Ex. PW-15/K. As per the said report, the DNA profiling (STR analysis)
performed on the exhibits was sufficient to conclude that:

“1. The DNA Profile generated from the source of exhibits
‘2a’ (petticoat of victim), ‘2b’ (Saree of victim), ‘2c’ (blouse of
victim) is similar with DNA profile generated from the source
of exhibit ‘1p’ [Blood collection of victim (EDTA)].

2. The mixed DNA Profile generated from the source of
exhibits ‘6a’ (Banyan of accused) and ‘6b’ (underwear of
accused) is similar with DNA Profile generated from the
source of exhibit ‘1p’ [Blood collection of victim (EDTA)].

3. The mixed DNA Profile generated from the source of
exhibits ‘6a’ (Banyan of accused) ‘6b’ (underwear of
accused) is similar with DNA Profile generated from the
source of exhibit ‘5’ (Blood Gauze of Accused).”

STATEMENT OF THE PROSECUTRIX

16. The case of the prosecution hinges on the fact that on account of
her being differently abled, the prosecutrix was not capable of giving any
consent. The mental condition of the prosecutrix was verified through
various reports submitted by IHBAS from time to time. The final report

CRL.A.1208/2015 Page 7 of 18
by the Medical Board was proved by Dr. Om Prakash (PW-16), who was
a member of the Board which had assessed the prosecutrix. As per the
opinion of the Medical Board, the prosecutrix was diagnosed as a case of
mental retardation (Social Quotient, in short SQ32) without behavioural
problems. It was opined that the prosecutrix was unfit to provide any
statement. On a Court question about the meaning of SQ32, it was
replied that the prosecutrix was suffering from severe mental retardation,
having difficulty in understanding and expressing her agreement or
disagreement in any matter.

17. The prosecutrix was not able to say anything to the Doctors during
her medical examination. Even at the time of recording of her statement
under Section 164 Cr.P.C, it was observed by the concerned
Metropolitan Magistrate that she was not capable of recounting or giving
her statement and as such no statement was recorded. Even, during the
trial, the prosecutrix was examined without oath and that too with the
help of a translator. During her examination-in-chief, she stated that
“Mere saath lafda hua tha, mujhe pakad liya tha, meri aabroo lee thi”.
The witness also identified the appellant in court. During the cross-
examination meaning of lafda and aabroo was asked by the learned
counsel for the appellant, on which the prosecutrix failed to respond.

CONCLUSION

18. The presence of the appellant at the spot on the day of the incident
was not only stated by PW-2 and PW-4, who were the independent eye
witnesses but also by HC Babrik Kumar (PW-10), who was the PCR
Incharge. Even the appellant, while cross-examining PW-2, gave a

CRL.A.1208/2015 Page 8 of 18
suggestion that although the appellant was present at the spot, however,
no girl was present with him. During the statement recorded under
Section 313 Cr.P.C, he rather stated that the prosecutrix came after the
quarrel between the appellant and PW-2, on which the appellant was
pushed over the prosecutrix by PW-2 and his companion.

19. In view of above testimonies of PW-2, PW-4 and PW-10, it stands
proved that the appellant was present at the spot at the time of the
incident; that the prosecutrix was lying in naked condition and the
appellant was found lying on top of the prosecutrix with his pant lowered
upto his knees and that the PCR official removed the appellant and then
both the appellant and the prosecutrix were taken to the hospital where
they were medically examined.

20. Now, it is to be examined whether in view of the testimonies of the
witnesses as well as the scientific evidence on record, the ingredients of
the offence of rape are made out. Section 375 IPC defines rape. It reads
as under:

“375. Rape – A man is said to commit ‘rape’ if he-

(a) penetrates his penis, to any extent, into the vagina,
mouth urethra or anus of a woman or makes her to do so with
him or other person; or

(b) inserts, to any extent, any object or a part of the body,
not being the penis, into the vagina, the urethra or anus of a
woman or makes her to do so with him or any other person; or

(c) manipulates any part of the body of a woman so as to
cause penetration into the vagina, urethra, anus or any part of
body of such woman or makes her to do so with him or any
other person; or

CRL.A.1208/2015 Page 9 of 18

(d) applies his mouth to vagina, anus, urethra of a woman
or makes her to do so with him or any other person, under the
circumstances falling under any of the following seven
descriptions:-”

XXX

21. It is well settled that in a case of rape, the finding of guilt can be
recorded even on the basis of uncorroborated testimony of the
prosecutrix provided it is cogent and reliable.

22. Now, so far as the statement of the prosecutrix is concerned, she
deposed (without oath) that “Mere saath lafda hua tha, mujhe pakad liya
tha, meri aabroo lee thi”. Although in the cross examination an effort
was made to seek explanation for the word lafda and aabroo but the
prosecutrix could not clarify. The moot question that arises is whether a
finding of guilt can be recorded on basis of such statement. In this regard,
I may profitably refer to a decision rendered in SectionVirender vs. State NCT of
Delhi 2009 SCC OnLine Del 3083 where in a case of conviction under
Section 376 IPC, the court was confronted with a similar situation when
the prosecutrix instead of using the word rape used the word “Galat
Kaam (Wrong act)” to describe the incident. It was held:

“42. Commission of an offence under Section 376 certainly
requires some evidence with regard to the acts which were
committed by an accused person to establish the ingredients of
the offence. The statement which has been recorded in court
does not at all enable any conclusion to be derived as to what
what was the comprehension of the prosecutrix as to what are
the relations between a husband and wife. In any traditional
and conservative Indian family, any act from mere touch to the
ultimate intimacy of sexual intercourse between persons not
married to each other would, in common parlance, would be

CRL.A.1208/2015 Page 10 of 18
covered within the gamut of acts which could be labelled as
galat kaam or gandi harkatein. This range would also cover
the intimacies shared by a married couple.

43…….The testimony of the prosecutrix does not reflect as to
what is her understanding of the physical intimacy which a
married couple shares.

XXX

46. Having regard to the well settled principles laid down by
the courts and in several judicial pronouncements of the Apex
Court, the acts alleged by the prosecutrix would not by
themselves be sufficient to invite a finding of guilt for
commission of an offence under Section 376 of Indian Penal
Code. This is not to say that such conduct is permissible or
acceptable. However, we are concerned with a finding of guilt
for a serious charge of rape in the instant case.

XXX

48. It needs no elaboration and has been repeatedly held that
whatever be the nature of evidence oral or documentary,
direct or circumstantial, it is essential for the prosecution to
prove the necessary ingredients of the offence. In view of the
above discussion, it may not be proper to return a finding of
guilt against the appellant for the commission of an offence
under Section 376 based on the deposition of the prosecutrix,
oral evidence or the medical evidence which has been led by
the prosecution.”

23. The above view was reiterated by a subsequent decision rendered
in Harish Ors Vs State Govt.of NCT of Delhi reported as 249 (2018)
DLT 257 (DB).

24. Coming to the testimony of the eye witnesses i.e, PW-2, PW-4 and
PW-10, it has come on record that they have only stated that the
appellant was lying on top of the prosecutrix with his pants down and the

CRL.A.1208/2015 Page 11 of 18
prosecutrix was in naked condition. Their depositions only establish that
the appellant was lying on top of the prosecutrix but nothing more. Even,
from a reading of the testimonies of the two Doctors i.e, PW-5 and PW-
6, who medically examined the prosecutrix it has not come on record that
there was any penetration. Further, in the MLC an abrasion was observed
on the chin of the prosecutrix. Though no injury was noted in the internal
examination yet it was advised to test if the blood present was menstrual.
There is no explanation on the record if at all, the above test was carried
out. So far as DNA report is concerned, it only opined that the blood of
the prosecutrix was found on the clothes of the appellant.

25. To render a conviction under Section 376 IPC, it is imperative for
the court to come to a definite conclusion that the ingredients of the
offence are made out. The trial court has relied on the Section 375(C)
IPC to convict the appellant. Section 375(C) IPC requires manipulation
of any part of the women body to cause penetration into any part of her
body, which are not the facts in the present case. As such, for the reasons
mentioned above, this Court is of the view that the prosecution has failed
to bring home the charge under Section 376 IPC against the appellant.

26. Now, the question arises, whether the appellant is liable to be
convicted under Section 376/Section511 or Section 354 IPC. The fine distinction
that separates the two is whether the appellant has crossed the stage of
preparation and made an attempt to commit the offence and further,
whether he continued to have the intention till the very last. From the
facts, it stands established that the appellant by removing his clothes as
well as that of the prosecutrix had reached the stage of attempt after

CRL.A.1208/2015 Page 12 of 18
preparation. It is to be seen whether the appellant continued to have the
intention to commit the crime till his attempt was foiled by the witnesses.

27. At this junction, it is profitable to refer to a decision rendered in an
English case, SectionR. vs. James Lloyd reported as (1836) 7 CP 317, while
summing up the charge to the Jury, Patterson, J. observed: –

“In order to find the prisoner guilty of an assault with intent to
commit a rape, you must be satisfied that the prisoner, when
he laid hold of the prosecutrix, not only desired to gratify his
passions upon her person, but that he intended to do so at all
events, and notwithstanding any resistance on her part.”

(Emphasis added)

28. While referring to the observations in the above decision,
Supreme Court in SectionAman Kumar vs. State of Haryana reported as (2004)
4 SCC 379, held as under:-

“9. A culprit first intends to commit the offence, then makes
preparation for committing it and thereafter attempts to
commit the offence. If the attempt succeeds, he has committed
the offence; if it fails due to reasons beyond his control, he is
said to have attempted to commit the offence. Attempt to
commit an offence can be said to begin when the preparations
are complete and the culprit commences to do something with
the intention of committing the offence and which is a step
towards the commission of the offence. The moment he
commences to do an act with the necessary intention, he
commences his attempt to commit the offence. The word
‘attempt’ is not itself defined, and must, therefore, be taken in
its ordinary meaning. This is exactly what the provisions of
Section 511 require. An attempt to commit a crime is to be
distinguished from an intention to commit it; and from
preparation made for its commission. Mere intention to
commit an offence, not followed by any act, cannot constitute
an offence. The will is not to be taken for the deed unless there
be some external act which shows that progress has been

CRL.A.1208/2015 Page 13 of 18
made in the direction of it, or towards maturing and effecting
it. Intention is the direction of conduct towards the object
chosen upon considering the motives which suggest the choice.
Preparation consists in devising or arranging the means or
measures necessary for the commission of the offence. It
differs widely from attempt which is the direct movement
towards the commission after preparations are made.
Preparation to commit an offence is punishable only when the
preparation is to commit offences under Section 122 (waging
war against the Government of India) and Section 399
(preparation to commit dacoity). The dividing line between a
mere preparation and an attempt is sometimes thin and has to
be decided on the facts of each case. There is a greater degree
of determination in attempt as compared with preparation.

10. An attempt to commit an offence is an act, or a series of
acts, which leads inevitably to the commission of the offence,
unless something, which the doer of the act neither foresaw
nor intended, happens to prevent this. An attempt may be
described to be an act done in part-execution of a criminal
design, amounting to more than mere preparation, but falling
short of actual consummation, and, possessing, except for
failure to consummate, all the elements of the substantive
crime. In other words, an attempt consists in it the intent to
commit a crime, falling short of, its actual commission. It may
consequently be defined as that which if not prevented would
have resulted in the full consummation of the act attempted.
The illustrations given in Section 511 clearly show the
legislative intention to make a difference between the cases of
a mere preparation and an attempt.

11. In order to find an accused guilty of an attempt with intent
to commit a rape, Court has to be satisfied that the accused,
when he laid hold of the prosecutrix, not only desired to
gratify his passions upon her person, but that he intended to
do so at all events, and notwithstanding any resistance on her
part. Indecent assaults are often magnified into attempts at
rape. In order to come to a conclusion that the conduct of the
accused was indicative of a determination to gratify his
passion at all events, and in spite of all resistance, materials

CRL.A.1208/2015 Page 14 of 18
must exist. Surrounding circumstances many times throw
beacon light on that aspect.” (Emphasis added)

29. In the case of SectionKoppula Venkat Rao vs. State of Andhra Pradesh
reported as AIR 2004 SC 1874, the accused by using criminal force took
out the sari of the victim and got on top of her but ejaculated before the
actual intercourse could take place. The Supreme Court converted the
conviction of the accused from Section 376 IPC to Section 376/Section511 IPC.

30. In the case of SectionTarkeshwar Sahu vs. State of Bihar (Now
Jharkhand) reported as (2006) 8 SCC 560, the appellant had forcibly
taken the prosecutrix to his gumti for committing illicit intercourse with
her. While traversing through the case law on the subject, it was held:-

“22. In the backdrop of settled legal position, when we
examine the instant case, the conclusion becomes irresistible
that the conviction of the appellant under Sections 376/Section511
IPC is wholly unsustainable. What to talk about the
penetration, there has not been any attempt of penetration to
the slightest degree. The appellant had neither undressed
himself nor even asked the prosecutrix to undress so there was
no question of penetration. In the absence of any attempt to
penetrate, the conviction under Section 376/Section511 IPC is wholly
illegal and unsustainable.

XXX

36. In view of the foregoing facts and circumstances of the
case, we are of the opinion that the crime committed by the
accused was at initial stage of preparation. The offence
committed does not come within the purview of offence
punishable under Sections 376/Section511 IPC. The offence
committed squarely covers the ingredients of Sections 366 and
Section354 IPC. The appellant was charged under Sections 376/Section511
IPC but on invoking the provisions of Section 222 of the Code
of Criminal Procedure, the accused charged with major

CRL.A.1208/2015 Page 15 of 18
offence can always be convicted for the minor offence, if
necessary ingredients of minor offence are present.”

31. In the present case, it has come on record that the appellant was
first noticed lying on the prosecutrix by PW-2. Thereafter, PW-2 called
PW-4 (his uncle) who lived nearby. They made an attempt to remove the
appellant from the top of the prosecutrix however, they failed.

32. PW-10, the PCR Incharge deposed that when he reached the spot,
he saw the appellant lying on top of the prosecutrix in naked condition.
He removed the appellant with the help of public present there and the
prosecutrix and the appellant were made to wear their clothes and taken
to the hospital.

33. In the MLC of the prosecutrix, an abrasion on the chin of the
prosecutrix was also noted. In the FSL report, the blood of the
prosecutrix was found on the clothes of the appellant. In the MLC of the
appellant, which was conducted on the same night, it was observed that
“No Smegma was present”. The absence of Smegma indicates a recent
sexual activity unless the person has taken a bath. In Aman Kumar
(Supra), it was noted:

“7. Penetration is the sine qua non for an offence of rape. In
order to constitute penetration, there must be evidence clear
and cogent to prove that some part of the virile member of the
accused was within the labia of the pudendum of the woman,
no matter how little (See Joseph Lines IC K 893). It is well-
known in the medical world that the examination of smegma
loses all importance after twenty four hours of the
performance of the sexual intercourse. (SectionSee Dr. S.P. Kohli,
Civil Surgeon, Ferozepur v. High Court of Punjab and
Haryana thr. Registrar MANU/SC/0080/1978 :
1978CriLJ1804 ). In rape cases, if the gland of the male organ

CRL.A.1208/2015 Page 16 of 18
is covered by smegma, it negatives the possibility of recent
complete penetration. If the accused is not circumcised, the
existence of smegma round the corona gland is proof against
penetration, since it is rubbed off during the act. The smegma
accumulates if no bath is taken within twenty four hours.”

(Emphasis added)

34. In the present case, the public witness saw the appellant at about
12.30 am and DD 4A was recorded at about 12.50 am. The appellant was
apprehended from the spot and taken for his medical examination. The
MLC of the appellant was conducted at 1.39 am. In this view of the
matter, the absence of smegma indicate that the appellant made an
attempt to commit the rape. Additionally, the appellant did not remove
himself from top of the prosecutrix despite the effort made by PW-2
indicating that he had the requisite intention and the said intention
continued till he was forcibly separated by PW-10 with the help of
public.

35. During his examination under Section 313 Cr.P.C, the appellant
while answering Question 7, admitted that he was taken along with the
prosecutrix to the hospital in a PCR Van. While answering Question 25,
the appellant stated that after doing his job he was going to his residence
at Karawal Nagar and when he reached Gopalpur turn, he asked one
motor cyclist about the way to Karawal Nagar which led to a quarrel
between them. The motor cyclist called someone at the spot. In the
meantime, prosecutrix also reached and then both the above said person
pushed the appellant on the prosecutrix. Even then, it remains
unexplained as to how the appellant was found with his pant lowered
upto his knees. It is not the appellants case that his pant was pulled down
either by PW-2/PW-4 or any other person. Even if the testimony of PW-

CRL.A.1208/2015 Page 17 of 18

2 and PW-4 is kept aside, still the testimony of the PCR Incharge (PW-

10), being an independent witness, is both reliable and creditworthy. The
appellant had not alleged any motive to PW-10.

36. In somewhat similar facts, a coordinate bench of this court in
SectionRajesh Sharma vs State reported as 2014 SCC Online Del 6811, altered
the conviction under Section 376 IPC to one under Section 376/Section511 IPC.

37. Resultantly, the appellant’s conviction under Section 376 IPC is
set aside however, in view of above analysis, there is sufficient evidence
on record to render a finding of guilt against him under Section 376/Section511
IPC. The conviction of the appellant under Section 376 IPC is altered and
modified to one under Section 376/Section511 IPC. The appellant’s sentence is
modified to RI for 5 years. The fine and the default sentence shall remain
the same.

38. The appeal filed by the appellant is partly allowed in the above
terms. LCR be returned to the trial court. A copy of this judgment be sent
to the appellant through the Superintendent Jail, free of cost.

(MANOJ KUMAR OHRI)
JUDGE
JULY 29, 2019
yo

CRL.A.1208/2015 Page 18 of 18

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