Vitthal Hari Nalawade vs The State Of Maharashtra
2017 Latest Caselaw 4145 Bom

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          IN THE HIGH COURT OF JUDICATURE AT BOMBAY

                   CRIMINAL APPELLATE JURISDICTION

                   CRIMINAL APPEAL NO.526 OF 2017


Vitthal Hari Nalawade                         ......Appellant

V/s.

The State of Maharashtra                      .......Respondent


Mr. Sachin Bharat Thorat , Advocate for Appellant.
Ms. M.H.Mhatre , APP for Respondent-State.


                          CORAM : SMT. V.K. TAHILRAMANI, &
                                  SANDEEP K. SHINDE, JJ.

DATE : July 6, 2017.

ORAL JUDGMENT : [Per SMT. V.K.TAHILRAMANI, J.]

Heard learned counsel for the appellant and the

learned APP for the State.

2 This appeal has been preferred against the order

dated 12.5.2017 passed by the learned Additional Sessions

Judge, Solapur in Exhibit 2 which was bail application

preferred by the appellant. In the said application, the

appellant sought bail in Crime No.44/2017 under Section

Shivgan

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376(2)(i) of Indian Penal Code and Section 3(1), (w)(i), 3(2)

(v) of the Scheduled Caste and Scheduled Tribes

(Prevention of Atrocities) Act and Sections 4,5,8,10 of the

Protection of Children from Sexual Offences Act, 2012

registered with Mohol Police Station. By the said order, the

bail application of the appellant came to be rejected.

3 It is the prosecution case that the appellant tried

to commit rape on the victim girl who was 6 years of age.

This is supported by the statements of the victim girl as

well as her mother who is complainant in the present case.

4 The learned counsel for the appellant submitted

that the appellant has been falsely implicated in this case

because land of the complainant was to be allotted to the

employer of the accused. Accused was working in the shop

of goldsmith. If this contention is considered, there would

be no reason for the complainant to falsely implicate the

appellant. At the most, she would have falsely implicated

employer of accused thus we find no merit in the

submission of the learned counsel for the appellant.

Shivgan

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5 Thereafter, learned counsel for the appellant

submitted that medical report does not show any injuries

on the private part of the victim girl so also the C.A.Report

in relation to victim girl and the appellant is nil. It is not

necessary that there should be injuries on the body of the

victim girl. It is the case of the victim girl that the appellant

tried to commit rape on her. To make out an offence of

rape, complete penetration of penis into the private parts

of the victim/prosecutrix is not necessary. In other words,

to constitute the offence of rape, it is not at all necessary

that there should be complete penetration with the male

organ with the emission of semen and rupture of hymen.

Even partial or slightest penetration of the male organ in

the labia majora or the vulva with or without any emission

of semen and even an attempt of penetration into the

private parts of the victim would be quite enough for the

purpose of sections 375 and 376, I.P.Code. That being so it

is quite possible to commit legally the offence of rape even

without causing any injury to the genitals or leaving any

seminal stains [State of U.P. v. Babulnath (1994) 6 SCC

29]. Moreover, It is not the case of the victim that the Shivgan

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sexual intercourse was completed. As the sexual act was

not complete, the C.A.Report is bound to be nil.

6 Statements of the victim girl and of her mother

(Complainant) clearly show that the appellant tried to

commit rape on victim girl, who was 6 years of age. In this

view of the matter, we are not inclined to grant bail to the

appellant. The appeal is dismissed.

(SANDEEP K. SHINDE, J) (SMT. V.K. TAHILRAMANI, J)

Shivgan