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TMI Blog2004 (2) TMI 710X X X X Extracts X X X X X X X X Extracts X X X X ..... ped her. They threatened to kill her if she told about the incident to anybody. She went to her house weeping and narrated the incident to her mother. One Karan Singh had seen the accused persons going away from the field. Since the father (PW-11) and brother of the prosecutrix were not at home the mother (PW-9) described the incident to a member of the Panchayat (PW-12). Report was lodged with police on 7.8.1993. Investigation was undertaken. The prosecutrix was medically examined and the accused persons after arrest were also medically examined. After completion of investigation, charge sheet was filed for alleged commission of offence punishable under Section 376/506 IPC. As the accused persons pleaded innocence, the trial was held. Thirteen witnesses were examined to further the prosecution version. The prosecutrix was examined as PW-7 while her mother was examined as PW-9 and father as PW-11. The accused persons pleaded that they have been falsely implicated. As Ran Singh, the brother of the prosecutrix had mis-appropriated funds of a temple and the accused persons had made a grievance, a meeting was held on 5.8.1993 where the allegations were specifically made. On 6.8.1993, R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ding to him, the evidence not only shows the intention to commit the rape, an attempt to do it and successful completion thereof. Therefore, the evidence of PW-7 cannot be discarded. The reasons as to why some of the prosecution witnesses including the mother of the prosecutrix did not support the prosecution case during the stage of trial, have been noticed by the trial Court and the High Court. It has been noted that on the date of their evidence, the case against brother of the prosecutrix was posted and it appeared that compromise had been arrived at to bury the hatchets. Therefore, the Courts below were not prepared to give much weight to the evidence of those who turned hostile, or consider it to be a just ground to discard the evidence of the prosecutrix for purpose of rejecting the case of the prosecution. It is well settled that a prosecutrix complaining of having been a victim of the offence of rape is not an accomplice after the crime. There is no rule of law that her testimony cannot be acted without corroboration in material particulars. She stands at a higher pedestal than an injured witness. In the latter case, there is injury on the physical form, while in the fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e very nature of the offence it is an obnoxious act of the high order. 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. (See Dr. S.P. Kohli, Civil Surgeon, Ferozepur v. High Court of Punjab and Haryana thr. Registrar (1979) 1 SCC 212). In rape cases, if the gland of the male organ 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. The rupture of hymen is by no means necessary to constitute the offence of rape. Even a slight penetration in the vulva is sufficient to constitute the offence of rape and rupture of the hymen is not nec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing the act. Section 511 is a general provision dealing with attempts to commit offences not made punishable by other specific sections. It makes punishable all attempts to commit offences punishable with imprisonment and not only those punishable with death. An attempt is made punishable, because every attempt, although it falls short of success, must create alarm, which by itself is an injury, and the moral guilt of the offender is the same as if he had succeeded. Moral guilt must be united to injury in order to justify punishment. As the injury is not as great as if the act had been committed, only half the punishment is awarded. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 must exist. Surrounding circumstances many times throw beacon light on that aspect. Though the prosecutrix's version in Court was of rape, when it is compared with the one given during investigation, certain irreconcilable discrepancies are noticed. The evidence regarding actual commission of rape is at variance from what was recorded by police during evidence. The evidence of PW-11, the father who according to prosecution made departure from what he allegedly stated during investigation is to the effect that his wife PW-9 told her that the prosecutrix was teased by the accused persons. Merely because he was termed as a hostile witness his entire evidence does not get effected. Significantly, the evidence of prosecutrix and the doctor does not ..... X X X X Extracts X X X X X X X X Extracts X X X X
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