The State Of Maharashtra vs Narendra Jaywant Dudang
2001 Latest Caselaw 312 Bom

JUDGMENT

Vishnu Sahai, J.

1. Through this appeal preferred under section 378(1) of the Cr.P.C. the State of Maharashtra impugns the Judgment and order dated 20/8/ 1985 passed by the Additional Sessions Judge. Greater Bombay in Sessions Case No. 153 of 1983 acquitting the respondent for offence punishable under section 376 of the Indian Penal Code and Section 57 of the Bombay Children Act.

2. Shortly stated the prosecution case runs as under :-The prosecutrix -Sangita Raghunath Pednekar, aged about 9 years at the time of the incident was living in Building No. 52, Room No. 1662, Tagore Nagar, Vikroli, Bombay - 83 along with her mother Vljaya Pednekar PW 1, her father Raghunath Pednekar (not examined), her brothers Vishwas and Sudhir. At that time, the respondent along with his wife Jayshree Dudang was staying in the adjoining room bearing No. 1661.

The prosecutrix and her brothers Vishwas and Sudhir were studying in Vidya Mandir School. On 18.3.1982 at about 7 a.m. the prosecutrix left her house for the school and at 12.30 noon came back therefrom. Thereafter, she took her lunch. At about 3.30 p.m. she accompanied her brother Sudhir to the school. After reaching him there, she came back to her house. Thereafter, at about 4 p.m. she went to attend the private tuition class run by Jayshree Dudang, the wife of the respondent. At. 5 p.m. when the class was over, she came back to her house. At about 5.30 p.m. she left her house to fetch Sudhir from the school. When she was returning along with Sudhir from the latler's school, the respondent whom she used to call 'mama' (mother's brother) met her. The respondent asked Sudhir to go home. He thereafter caught hold of her hand and asked her to accompany him to his new house which was at a distance of two buildings from the premises wherein she and the respondent stayed. Accordingly, Sudhir went home and the prosecutrix and the respondent went to the latter's new house situated on the first floor of Building No. 410. After entering it. the respondent closed the door of the room; spread a blanket in the centre of the room; and asked her to lie down on the blanket. The prosecutrix acceded to his wishes. Thereafter, he removed his underwear; raised her petticoat up to the stomach: applied a oily substance which he had taken out from a bottle on her private part; removed his lungi and underwear and tried to penetrate his private part in her private part. Since it started paining, the prosecutrix started saying "hun hun". At that

juncture, the respondent put his hand on her mouth and with a piece of cloth wiped out the oily substance which he had put on her private part. He thereafter went inside the bathroom. She then put on her underwear. After he came out from the bathroom, he told her not to disclose the Incident to her parents or anyone. She agreed. Then the respondent opened the door of the room. When she came out therefrom, she met her the younger brother Sudhir. When she and Sudhir had come down on the ground floor, the respondent called her again and warned her not to disclose the incident to anyone. Thereafter, she along with Sudhir went to her house and on being questioned by her mother. Vijaya Pednekar, she narrated to her the entire incident. Thereafter, her mother along with her went to the house of the respondent and when she questioned him, he apologised and promised that he would not commit such an act again. Thereafter, she and her mother came hack to their house. At about 9 p.m. her father Raghunath Pednekar, who at that time was employed in Hoechest Company, came backfrom work. Her mother Vijaya narrated the entire incident to him.

3. The evidence of the prosecutrix Sangita Pednekar and her mother Vijaya Pednekar shows that after Raghunath Pednekar had come back home and the latter had informed him about the incident, they proceeded to Vikroli Police Station where Vijaya Pednekar lodged an F.I.R. on the basis of which S.I. Vinayak Kharat P.W. 9 registered a case under section 376/511 of the I.P.C., at 9.30 p.m. against the respondent.

4. The evidence of S. I. Vinayak Kharat shows that after recording the F.I.R., at 10 p.m. he recorded the statement of Sangita P.W. 2, and took in his custody the blood stained underwear of Sangita which the Informant had brought. Thereafter, he recorded the statement of Raghunath Pednekar, father of Sangita at 10.15 p.m. and sent a constable to call Sangita's brother Sudhir P.W. 7, who was brought within 10 minutes to the police station. He recorded his statement by 10.45 p.m. Thereafter, under a panchanama in the presence of the public panchas Pandurang Shingare P.W. 3 and Shantabal Ambre P.W. 6, he seized the petticoat which Sangita was putting on (Exhibit 8). The seizure was completed by 11.30 P.M. He then along with P.I. Padwal and some police personnel, accompanied by Sangita, went to the house of the respondent situated in building No. 410 where the offence had been committed. At that time, the respondent was not there. His mother Rukminibai opened the door. He thereafter, in the presence of the public panchas Pandurang Shingare P.W. 3 and Shantabai Ambre P.W. 5, under panchanama Exhibit 14, seized a blanket which was lying in the centre of the room. After seizing it, he sealed it. Thereafter, he came back to the police station and recorded the statement of Jayashree Dudang, wife of the respondent. He then sent Sagita for medical examination.

5. The evidence of Dr. (Mrs.) Madhuri Kasbawalla P.W. 10 is that on the night of 18/19th March, 1982 at 2.30 a.m. when she was working as Registrar at Cama Hospital, a girl named Sangita was brought to the hospital for medical examination. The history given out was of rape. She medically examined her and found that there were no external Injuries on thighs and vulva. There was a slight discharge from the vagina. The hymen was Intact but, the edges of the introitus (opening of vaginal track)

were in flammed. There was no bleeding from the vagina. It admitted the tip a finger.

In the opinion of Dr. (Mrs.) Kasbawalla, the condition of inflammation of the edges of introitus was consistent with the partial penetration which was of a recent origin and was possible due to partial penetration either of penis (male organ) or any other object.

In her cross-examination. Dr. (Mrs) Kasbawalla admitted that the only abnormality which she noticed was that the edges of introilus were inflammed and there was white discharge from the vagina but, the latter was also possible without penetration of penis or any other object.

In her cross-examination, she also admitted that the hymen was absolutely intact and there were no injuries of any nature on the labia majora or labia minora,

In her cross-examination, she stated that the averment in the injury report. (Exhibit 24), that the edges of introitus were inflammed, referred to the edges of a small hole in the hymen. She also stated therein that if a girl had a itching sensation and scratched such an inflammation was possible. She went on to say that there was no evidence of any Infection in the vaginal region and at the introitus there could be itching sensation even without there being any infection in the vagina. At the fag end of her cross-examination, she stated that the itching sensation could be on account of lack of personal hygiene and the inflammation of the introitus was possible due to a girl playing sea-saw or riding a bicycle or dancing or on account of fall on a projecting substance.

6. The evidence of S. I. Kharat P.W. 9 shows that he had deputed a police constable to keep a watch on the house wherein the respondent resided and at about 6.45 a.m. on 19.3.1982 the respondent was arrested by H.C. No. 2681 and some police staff, who thereafter brought him to the police station. His evidence shows that he seized the lungi, banian, shirt and chaddi which he was putting on under a panchanama. He thereafter sealed them.

During the course of interrogation, on 19.3.1982. the respondent admitted to P.S.I. Kharat that he could have the piece of cloth recovered (cloth with which he had wiped the vagina of the prosecutrix after raping her). The said disclosure which was made in the presence of the public panchas - Pandurang Shingare P.W. 3 and Shantabai Ambre P.W. 6 was recorded in a panchanama Exhibit 15. Thereafter, P.S.I. Kharat along with the respondent, the public panchas and police personel left in a jeep. At the instance of the respondent, it was taken to building No. 410 where it was stopped and at a distance of 2 feet from the rear side of the said building, the respondent picked up a cloth which was seized under a panchanama Exhibit 15.

On 20/3/1982 P.S.I. Kharat sent the respondent for medical examination to Police Hospital at Nagpada, Bombay.

7. The evidence of Dr. Chlntaman Gawhane P.W. 8 shows that on 20.3.1982 at 2.a.m. while he was attached to Police Hospital. Nagpada, Bombay, one Narendra Dudang (Respondent) was brought to the Police Hospital. He examined him and found him to be apparently potent.

8. The evidence of P.S.I. Kharat shows that on 24.11.1982, he sent the recovered articles to the Chemical Analyst and the latter sent his report dated 7.3.1983 Exhibit 22.

After completing the investigation, P.S.I. Kharat submitted the charge sheet against the respondent.

9. The case was committed to the Court of Sessions in the usual manner where the respondent was charged for offences punishable under section 376 of the I.P.C. in the alternative under section 57 of the Bombay Children Act.

He pleaded not guilty to the charges and claimed to be tried.

During trial, in all the prosecution examined 10 witnesses. One of them namely Sangita Pednekar P.W. 2 was examined as an eye-witness. Amongst the other witnesses examined were Sangita's mother the informant Vijaya Pednekar P.W. 1, Sangita's brother Sudhir Pednekar P.W. 7, public panchas Pandurang Shingare P.W. 3 and Shantabai Ambre P.W. 6, the three doctors namely Dr. (Mrs.) Madhuri Kasbawalla P.W. 10, Dr. Chintaman Gawhane P.W. 8 and Dr. Nandkumar Sonar P.W. 4, the Investigating Officer P.S.I. Kharat P.W. 9, Hari Badve P.W. 5 and Dr. Sonar P.W. 4. The last two were examined to prove the age of the prosecutrix Sangita.

The defence of the respondent was denial. In his statement under section 313 of the Cr.P.C. he stated that there was a dispute between him and his wife on one hand and parents of Sangita on the other over tuition classes and hence he had been falsely implicated.

10. After assessing the evidence on record the learned Trial Judge concluded that the prosecution had failed to bring home the guilt of the respondent beyond reasonable doubt and hence, acquitted him vide the impugned Judgment.

As mentioned in para 1, above, the acquittal of the respondent has prompted the State of Maharashtra to prefer the present appeal.

11. We have heard Mr. A. M. Shringarpure, Additional Public Prosecutor for the State of Maharashtra (Appellant] and Mr. A. G. Toraskar for the Respondent. We have also perused the depositions of the prosecution witness; the material exhibits tendered and proved by the prosecution; thestatement of the respondent recorded under section 313 of the Cr.P.C.; and the impugned Judgment.

After the utmost circumspection, we have reached the conclusion that the prosecution has proved beyond all shadow of doubt the commission of an offence under section 376 r/w 511 of the I.P.C. by the respondent. Hence, in our view this appeal deserves to be allowed.

12. We make no bones in observing that in reaching the said conclusion, we have borne in mind the time-honoured principles which this Court keeps in mind while interfering in an appeal against acquittal, namely that the interference should only be made if either the assessment of the evidence by the acquitting Court is grossly unreasonable or the impugned order of acquittal suffers from any manifest illegality which has occasioned in the failure of justice.

We have kept in mind the golden rule that if two views are equally reasonable; one of acquittal and one of conviction then, the mere circumstance that this Court is inclined to take the latter view would be no ground to reverse an order of acquittal.

13. We have no reservations in observing that on very flimsy grounds, the learned Trial Judge has rejected the evidence of the prosecutrix Sangita P.W. 2 which is corroborated by the medical evidence and to which

assurance is lent by the evidence of Sangita's mother Vijaya Pednekar P.W. 1 to whom Sangita immediately narrated the incident and a very prompt F.I.R. which was lodged by Sangita's mother Vijaya Pednekar within 3 1/2 hours of the incident wherein all the necessary details pertaining to the incident are mentioned and by the circumstance that no girl, unless she had been subjected to such a depraved sexual assault, would have falsely deposed about it because, the same would not only tarnish her reputation but, finish the prospects of her marriage.

14. We now propose examining the statement of Sangita P. W. 2. In para 2, we have set out the prosecution story on the basis of the recitals contained in her examination-in-chief and do not want to burden our judgment by recounting all the details.

In short, Sangita stated therein that on 18.3.1982 sometimes after 5.30 p.m. when she was returning along with her brother Sudhir P.W. 7. from the latter's school, the respondent met her, asked Sudhir to proceed for home and took her to the first floor of his new house situated two buildings away from his old house. He closed the door of the room. Thereafter, he spread a blanket on the floor, applied something oily on her private part and after undressing himself tried to penetrate his private part in her private part. Thereafter, he went to the bathroom and after coming out therefrom told her not to disclose the incident either to her parents or anyone else. Thereafter, he opened the door and when she started leaving along with her brother Sudhir who had been sent by her mother he again called her and repeated the same warning. She thereafter along with Sudhir went to her house and graphically informed her mother the manner in which she had been sexually assaulted by the respondent. Thereafter, her mother took her to the house of the respondent and when her mother questioned him, he apologised and promised that he would not repeat the act. At about 9 p.m. when her father came, her mother disclosed the incident to him and thereafter the three of them went to Vikroli Police Station where her mother lodged the F.I.R.

15. We have gone through the evidence of Sangita with extreme caution because at the time of the incident, she was aged about 9 years and at the time when her statement was recorded about 10 years. We have no reservations in observing that her evidence inspires Implicit confidence.

16. In the first place, it should be borne in mind that her evidence is in conformity with the medical evidence. We have earlier extensively referred to the evidence of Dr. (Mrs.) Kasbawalla P.W. 10 who medically examined Sangita. We have seen that Dr. (Mrs.) Kasbawalla in her examination-in-chief (in para 2) has candidly stated that she found the edges on introitus inflammed and the said inflammation was consistent with partial penetration which was of a recent origin and was possible due to partial penetration either of a penis (male organ) or any other organ.

We see no reason to reject this evidence of Dr. (Mrs.) Kasbawalla.

It is true that in her cross-examination, she stated that the inflammation of introitus is also possible on account of scratching on experiencing an itching sensation or if a girl is playing sea-saw or riding a bicycle or by a fall on a projecting substance. But, in our view, her said

statement in no way demolishes the evidence furnished by her in her examination-in-chief referred to above.

In our view, the learned Trial Judge has not properly appreciated the medical evidence furnished by Dr. (Mrs.) Kasbawalla.

17. Learned Counsel for the respondent urged that the medical evidence belles that oral account furnished by Sangita because Dr. (Mrs.) Kasbawalla admitted that she did not find the hymen to be ruptured, instead found it to be absolutely intact and did not find any bleeding from the vagina or injuries on labia majora or labia minora. In the contention of the counsel for the respondent, if the respondent, who as is evident from his statement recorded under section 313 of Cr.P.C. was aged about 40 years at the time of the incident, would have raped Sangita who was aged about 10 years her hymen would have been ruptured and there would have been profuse bleeding from vagina and severe injuries in the vaginal region.

We have reflected over the submission of the learned Counsel for the respondent and are constrained to observe that we do not find any merit in it. When he canvassed it, he ignored the evidence of Sangita who had candidly staled that prior to penetrating his penis in her vagina, the respondent had applied some oily substance on her vagina. In our view, it was on account of the application of this oily substance and the circumstance that penetration was only partial that neither injuries were caused in the region of vagina of Sangita nor bleeding resulted therefrom.

For the said reasons, we do not find any merit in this submission.

At any rate, we would do well to remember that the Supreme Court in the oft-quoted case of Solanki Chimanbhai Ukabai, v. State of Gujarat, in para 12 has observed that unless the medical evidence completely rules out all possibilities whatsoever of injuries taking place in the manner furnished by the eye-witnesses, the testimony of the eye-witnesses cannot be rejected.

We are quoting para 12 in entirety. It reads thus :-

"Ordinarily, the value of medical evidence is one corroborative. It proves that the injuries could have been caused in the manner alleged and nothing more. The use which the defence can make of the medical evidence is to prove that the injuries could not possibly have been caused in the manner alleged and thereby discredit the eye-witnesses. Unless, however the medical evidence in its turn goes so far that it completely rules out all possibilities whatsoever of injuries taking place in the manner alleged by eye-witnesses, the testimony of the eye-witnesses cannot be thrown out on the ground of alleged inconsistency between it and the medical evidence."

In the instant case, we have seen that the medical evidence does not completely rule out the possibility of inference of rape. On the converse, it is wholly compatible with it.

18. The second circumstance which lends a seal of assurance to the credibility of Sangita P.W. 2 is her conductor informing her mother Vijaya Pednekar P.W. 1 about the incident immediately after it had taken place. The evidence of Vijaya Pednekar shows that when on 18.3.1982, Sudhir

alone came from school and informed her that Sangita had gone to the house of the respondent, she sent him there and when she came back along with him, she told her about the incident.

It is pertinent to mention that Vijaya Pednekar, Sangita and Sudhir were extensively cross-examined but, their evidence could not be discredited. We may mention that since Vijaya Pednekar and Sudhir are mother and brother of Sangita respectively, we have evaluated their evidence like that of Sangita who was a victim and a child witness with caution but, inspite of that we find the evidence of all three of them to be credible.

19. The third circumstance which shows that the account furnished by Sangita is truthful is that the F.I.R. of the incident was lodged within 3-1/2 hours of the incident and in the same all the necessary details have been mentioned. We have seen that immediately after the incident, the prosecutrix graphically narrated the incident to her mother Vijaya who at 9 p.m. the same evening, when Sangita's father Raghunath Pednekar returned from work informed him about the incident and thereafter, Sangita, her mother and father proceeded to Vikroli Police Station where at 9.30 p.m. her mother lodged the F.I.R.

At the cost of repetition, we would like to point out that in this F.I.R. all the necessary details have been mentioned. It has been mentioned therein that at about 5.45 p.m. while Sangita was returning along with her brother Sudhir, from the latter's school, the respondent met her, asked Sudhir to proceed home and took Sangita in building No. 410 wherein inside his room he raped her.

It is pertinent to mention that the manner of rape disclosed by Sangita in her substantive statement is also mentioned in the F.I.R. and therein it has also been categorically mentioned that it was the respondent who had raped Sangita.

Criminal Courts attach great importance to the lodging of a prompt F.I.R. The same, substantially eliminates the possibility of embellishments and concoction in the prosecution case.

We are constrained to observe that the learned Trial Judge while passing the impugned order was wholly oblivious to the circumstances that within 3-1/2 hours of the incident, the prosecution case, pregnant with all material details, had seen the light of the day in the F.I.R.

20. The fourth circumstance which lends a seal of assurance of truthfulness to Sangita's evidence is that unless she would have been the victim of such adespicable act at the hands of the respondent, she would not have falsely stated about it as the same would not only have destroyed her reputation and also the prospects of her marriage, We are constrained to observe that while assessing the evidence of Sangita and of her mother Vijaya Pednekar, the learned Trial Judge was wholly oblivisous to this fact.

After the utmost circumspection, we have reached the judgment that neither Sangita nor her mother Vijaya would have manufactured such allegations merely to teach a lesson to the respondent with whom, in the contention of his counsel, Sangita and her mother had enmity.

It should be borne in mind that there is no documentary evidence on record to show that before the incident, there was any illwill between Sangita, her mother Vijaya and her family members on one side and respondent and his wife Jayshree on the other.

It is true that Sangita and her mother Vijaya Pednekar in their cross-examination have admitted that Jayshree used to take tuition classes which the former and her brother Vishwas used to attend but, they have emphatically denied the defence suggestion that since they had stopped paying the tuition fees, there was bad blood between them and the respondent has been falsely implicated on account of the same.

It is pertinent to mention that Vijaya Pednekar P.W. 1 in her cross-examination has admitted that her husband had sent a letter to Shri Karkera (Secretary of the Housing Society in which they and the respondent lived) but, as stated by her, the said letter was only written after the incident.

In our view, on the face of this evidence, the learned TrialJudge erred in holding that since there was enmity on account of the tuition classes, the respondent could have been falsely implicated.

21. We have no reservations in observing that the learned TrialJudge, as is manifest from para 28 of the impugned Judgment, erred in rejecting Sangita's evidence on account of improvements made by her. Once again, he lost sight of the fact that the improvements mentioned in para 28 have no bearing with her credible evidence regarding respondent's act to commit rape. Regarding the manner in which the respondent raped her, Sangita's evidence has been consistent throughout.

22.We are constrained to observe, as is evident from aperusal of para 29 of the impugned Judgment, that the learned Trial Judge has rejected the evidence of Sangita, her mother Vijaya and her brother Sudhir on account of inter se petty contradictions. In our view, the learned Trial Judge acted perversely in rejecting it on the said ground. It should be borne in mind that contradictions and omissions only have a bearing on the credibility of a witness if they militate against the core of the prosecution case. Where that is not so, as in the instant case, they are innocuous. In the instant case, all three of them have remained as steadfast as Rock of Gibralter on the basic features of the prosecution case.

23. For the said reasons, in our view, theevidence ofSangita inspires implicit confidence and by itself is a safe and sufficient basis for holding that the respondent attempted to rape her. But, as mentioned by us earlier, we are fortunate it receives assurance from that of her mother Vijaya Pednekar whose evidence also inspires confidence. In our view, it also receives assurance from that of Sudhir P.W. 7. We feel that the learned Trial Judge acted perversely in not placing reliance on their evidence.

24. We have no reservations in observing, as is also apparent from a perusal of para 27 of the impugned Judgment, that the learned Trial Judge was substantially prompted in passing the impugned order of acquittal because, he gave undue importance to the fact that the blanket, petticoat of Sangita, underwear of Sangita the cloth which was seized by P.S.I. Kharat on the pointing out of the respondent were not sealed. The learned Judge has observed that in the panchanamas pertaining to recovery of petticoat (Exhibit 8), blanket (Exhibit 14) and cloth on the pointing out of the respondent (Exhibit 15) there is no mention of sealing.

The learned Judge has also mentioned that there was a yawning gap of nearly 8 months between the recovery of these articles and their being sent to the Chemical Analyst.

The learned Judge has also observed that the recovery of the underwear of Sangita was not effected under a panchanama.

25. On the face of these infirmities, we are not faulting learned Judge for not attaching any value to the recovery of these articles but, where we do not see eye to eye with him is that on these Infirmities the substantive testimony of the prosecutrix Sangita which is corroborated by the circumstances referred to above, should have been rejected by him.

26. We are constrained to observe that the learned Judge was oblivious of the fact that the evidence of recovery was only a corroborative piece of evidence and not substantive evidence; the latter being the statement of the prosecutrix in the Court. We fail to see as to how by mere rejection of this corroborative evidence, the trustworthy evidence of the prosecutrix Sangita would be rendered suspect. We have earlier mentioned that corroboration to Sangita's evidence is lent by a host of other circumstances which we have detailed above.

27. Mr. Toraskar, learned Counsel for the respondent strenuously urged that the cross-examination of Sangita makes it explicit that she was a consenting party. In the first place, in our view no such Inference can be drawn from her cross-examination. We cannot pursuade ourselves to accept Mr. Toraskar's submission that had Sangita not been a consenting party, she would have resisted. This submission over looks the fact that whereas Sangita was a child of only 9 years, the respondent was aged about 40 years. A girl of her age, placed in the situation in which she was, would have been terrified and petrified and in our view, it is perfectly understandable if she submitted to the depraved act of the respondent rather than resisting its commission.

At any rate, the question of consent would be Immaterial because, the evidence adduced by the prosecution categorically establishes that Sangita was below 16 years at the time of the incident.

It is pertinent to mention that clause sixthly of section 375 of I.P.C. makes it manifest that if a girl is below 16 years then, inspite of her being a consenting party, the offence of rape would be made out.

In this case, not only does the evidence of Sangita's mother Vijaya Pednekar P.W. 1 show that Sangita was aged about 9 years at the time of the incident but, the documentary evidence proved and furnished by Dr. Sonar P.W. 4 and Hari Badve P.W. 5 also shows the same thing.

Dr. Sonar P.W. 4 was Medical Officer, Health working in the Bombay Municipal Corporation (B.M.C.) and Sub-Registrar of N. Ward. He stated that a register is maintained by the office of the Bombay Municipal Corporation (B.M.C.) in which deaths and births are registered. He brought to the Court Register No. 47 to 73 wherein at page No. 168 at serial No. 2550, there is an entry in respect of a girl named Sangita Pednekar showing the date of birth as 4.3.1973. The said entry also shows that the father of the girl was Raghunath Pednekar and mother was Vijaya Pednekar. The address mentioned is 52/1662. Tagore Nagar, Vlkroli, Bombay.

It is pertinent to mention that since Dr. Sonar has not been cross-examined, his evidence has gone unchallenged.

The evidence of Hari Badve P.W. 5 shows that between 20.8.1981 and 12.7.1982 he was the Superintendent of Vidya Mandir High School (the

school where Sangita had studied). His evidence shows that at the time of admission, a prescribed form is filled in by the parents of the students wherein all the details, including the date of birth of students are mentioned. He stated that he had brought ageneral registerof thesaid school pertaining to the year 1976 wherein at serial No. 2764, at page 27, there is an entry showing the name of the student : Sangtta Raghunath Pednekar, her date of birth being 4.5.1973.

It is relevant to point out that like Dr. Sonar, he also has not been cross-examined and his evidence has gone unchallenged.

28. The two questions which remain are what is the offence which is made out against the respondent and what sentence should be awarded to him.

29. So far as the first question is concerned, in our view, both the evidence of Sangita P.W. 2 and that furnished by Dr. (Mrs.) Kasbawalla P.W. 10 makes it manifest that it was not a commission of rape but. only one of attempt to commit rape. We have earlier seen that in her examination-in-chief, Sangita stated that after undressing himself, the respondent tried to penetrate his penis in her private part. We have also seen that Dr. (Mrs.) Kasbawalla has stated that it was a case of partial penetration and in the injury report of the victim Sangita it has been categorically mentioned that it was a case of recent attempted rape.

Absence of bleeding from the vagina, absence of injuries on vagina, absence of rupture of the hymen and absence of sperm, as is evident from a persual of vaginal slides, also shows that it was a case of attempt to commit rape.

In the circumstances, in our view, an offence under section 376 r/w 511 of the I.P.C. would be made out against the respondent.

30. Coming to the question of sentence, it would be pertinent to mention that section 376 of the I.P.C. provides that where rape is committed on a girl, below 12 years, the sentence shall not be less than lOyears and section 511 of the I.P.C. provides that whoever attempts to commit an offence punishable by this Code with imprisonment for life or imprisonment or to cause such an offence to be committed, and in such attempt does any act towards thecommission of the offence, shall where no express provision is made by this Code for the punishment of such attempt, be punished with imprisonment for any description provided for the offence for a term which may extend to one half of the imprisonment for life or, as the case may be, one half of the longest term ofimprisonment provided for that offence, or with such fine as is provided for the offence or with both.

Bearing in mind the provisions contained in sections 376 and 511 of I.P.C., in our view, a sentence of five years R.I. for the offence under section 376 r/w 511 of the I.P.C. would meet the ends of justice.

31. Mr. Toraskar, learned counsel for the respondent, urged that since the respondent is aged 60 years today, more than 19 years have elapsed since the incident took place and there is nothing to indicate that the respondent has any criminal antecedents, the said sentence is grossly excessive. We have reflected over his submission and are constrained to observe that we do not find any merit in it.

The respondent who was aged about 40 years in a depraved and despicable manner, to satisfy his perverted sexual lust, attempted to rape Sangita who was aged about 9 years. What makes his act all the more revolting is that he cheated her confidence. Her evidence shows that she used to call him as mama (maternal uncle) and in good faith, she accompanied him only to be a victim of sexual assault at his hands.

In our view, if a soft peddling policy in the matter of sentence is adopted by Courts in such cases, not only their recurrence would increase but, people would loose, faith in relationships and Courts. That indeed would be distressing.

In our view, to curb the rapidly increasing commission of such cases and to sustain the faith of the common man, both in relationships and the Courts, a deterrent sentence is necessary.

Consequently, we feel that a sentence of five years R.I. would be wholly commensurate and just, bearing in mind the gravity of the crime committed by the respondent.

32. In the result, this appeal is allowed. Although we maintain the acquittal of the respondent Narendra Jaywant Dudang for the offence punishable under section 376 of the I.P.C. and under section 57 of the Bombay Children Act but, we find him guilty for the offence punishable under section 376 r/w 511 of the I.P.C. and sentence him to undergo five years R. I. for the same. He is on bail and shall be taken into custody forthwith to serve out his sentence.

At this stage, learned counsel for the respondent made a oral prayer that the operation of this judgment be stayed for a period of eight weeks because, the respondent may like to approach the Apex Court or may require time to surrender. We find no merit in this prayer and reject it.

In case an application for a certified copy of this judgment is made, the same shall be issued on an expedited basis.