M.P. Kanade, J.
1. This appeal by the original accused is directed against the order of conviction and sentence passed by the learned Additional Sessions Judge, Latur, dated August 18, 1980. The learned Additional Sessions Judge convicted the accused under section 376 read with section 511 of the Indian Penal Code and sentenced him to suffer rigorous imprisonment for two years and to pay a fine of Rs. 500/-, in default, to suffer rigorous imprisonment for ten weeks.
2. The accused, a young boy of 18 years, of village Somnathpur, is alleged to have committed rape on a young girl of 7 or 8 years by name Kiran on October 28, 1979. It is the prosecution cases that victim Kiran's mother Shantabai P.W. 1 was employed as a labourer on a construction of Balwadi in the village. She was showering water on the roof of the newly constructed building. Shantabai's daughter Kiran was returning from the house of one Kamlabai. It is alleged that the accused accosted victim Kiran and took her to a dilapidated house and committed rape on her. Kiran raised voice and started shouting. P.W. 1 Shantabai, mother of Kiran heard the said noise and rushed to the said dilapidated house. She found that the private part of her daughter Kiran was exposed and there was some swelling on it. Shantabai P.W. 1 then took her daughter Kiran to Balwadi where one Nilwabai P.W. 5 and one Suman P.W. 7 were present and narrated the story that she had seen the accused going from the dilapidated house and that he had committed rape on her daughter. One Dr. Ravindra Somnathpurkar P.W. 6 then was proceeding towards the taluka place at Udgir. He was shown the condition of the victim Kiran. Dr. Somnathpurkar advised Shantabai to take the victim to a Civil-Hospital at Udgir. Shantabai along with her mother-in-law and brother-in-law took Kiran and had been to Udgir. P.W. 3 Gangadhar husband of P.W. 1 Shantabai was also found at Udgir. The said incident is alleged to have been narrated by Shantabai to her husband P.W. 3 Gangadhar. It is thereafter the girl Kiran P.W. 4 was examined by Dr. Mrs. Leela Loya P.W. 2. On examination Dr. Leela Loya prepared her report which is at Exhibit 17. The prosecution led the evidence of other witnesses and thereafter a charge-sheet under section 376 of the Indian Penal Code came to be filed against the accused.
3. The learned Magistrate, Udgir, framed a charge under section 376 read with section 511 of the Indian Penal Code and having found that the said offence was exclusively triable by the Court of Sessions, committed the accused to the Court of Sessions.
4. The learned Additional Sessions Judge, Latur, framed a charge against the accused under section 376 simpliciter. The accused pleaded not guilty to the charge. His defence was of total denial. It is contended by the accused that at the instance of the Police Patil who happens to be inimical with the family of the accused, a false complaint has been lodged by Shantabai against him.
5. The learned trial Judge recorded the evidence adduced by the prosecution. On consideration of the evidence, the learned trial Judge found that the accused has committed the offence punishable under section 376 read with section 511 of the Indian Penal Code and accordingly convicted and sentenced the accused as stated above. It is against the said order of conviction and sentence the present appeal is filed by the accused.
6. Mr. S.C. Bora appearing in support of this appeal contended that there is no evidence whatsoever on the record to convict the accused under section 376 of the Indian Penal Code. In this connection, Mr. Bora pointed out, the evidence of Dr. Leela Loya P.W. 2, and contend that even the medical evidence does not support the case of the prosecution as to an attempt of rape as provided by section 511 of the Indian Penal Code. Mr. Bora took me through the evidence of Kiran P.W. 4, her mother P.W. 1 Shantabai and the medical report at Exhibit 17 submitted by Dr. Leela Loya P.W. 2 and contended that the evidence on the record is not conclusive as to convict the accused under section 376 read with section 511 of the Indian Penal Code.
7. Mr. A.B. Naik, learned Public Prosecutor, appearing on behalf of the State, submitted that from the injury on the person of the victim Kiran P.W. 4 an inference can be drawn that there was an attempt on the part of the accused to commit rape. It is fairly conceded by the learned Public Prosecutor that a conviction under section 376 of the Indian Penal Code is not sustainable having regard to the evidence of the doctor in this case.
8. It is clear from the evidence of Dr. Leela Loya P.W. 2 who had examined Kiran P.W. 4 on October 29, 1979 at 9.30 a.m. on the next day of the alleged incident, that she received a yadi from Udgir Police Station on October 28, 1979 for examination of and the treatment on the victim Kiran P.W. 4. On examination, Dr. Leela Loya found from the appearance of the victim Kiran that her age was only 7 to 8 years, and after examination as per her opinion, the girl was between 7 and 9 years old. On local examination, she doctor found no injury marks on the chest, abdomen, back and thigh. Secondly, according to Dr. Leela Loya, the sexual character of the girl was not well developed. No seminal or blood stains on the private part of the girl were found. There was no discharge from vagina and there were no signs of any injury on the private part. On the basis of the said symptoms it was the opinion of the doctor that no definite opinion about sexual intercourse could be given. Lastly, the doctor in the cross-examination stated that the symptoms of swelling can be possible by forceful foreign instrument other than penis and even by rubbing hands with pressure. The doctor further stated that swelling is possible by insect bite.
9. From the evidence of Dr. Leela Loya P.W. 2 and the report submitted by her, it is clear that there were no injuries or marks on the chest, abdomen, or on the back or thigh. The doctor also found no seminal or no blood stains were found on the private part of the girl. A small swelling was found on the private part of girl Kiran. The doctor observed that such swelling was possible by insect bite or rubbing hands with pressure. The medical evidence on the record does not support the prosecution case in any way that there was any penetration so as to convict the accused under section 376 of the Indian Penal Code. It is, therefore, the order of conviction under section 376 of the Indian Penal Code cannot be sustained and, therefore, the same will have to be set aside.
10. The second question that falls for consideration is as to whether there was an attempt on the part of the accused to commit offence under section 511. The evidence on the record is that of only Kiran P.W. 4, who was hardly in between 7 and 9 years of age. Her mother Shantabai P.W. 1 heard the noise from a dilapidated house and she rushed to that place. She saw the accused running away from the said dilapidated house. Even assuming that her evidence is correct, still the question remains as to whether any attempt had been made by the accused to commit rape on the victim Kiran. The evidence of Kiran is highly unsatisfactory. It is not supported by the medical evidence on the record. She has exaggerated the incident and clearly it appears that she is a tutored witness. In the absence of any corroboration in the medical evidence, the version given by victim Kiran cannot be believed. A young boy of 18 years is alleged to have attempted to commit rape on a minor girl of 8 or 9 years, and no injuries are found on the person of the victim. Not even a scratch on the back or on the thigh was found. In the absence of any positive evidence on the record, it is not possible to come to the conclusion that the accused had attempted to commit rape on the victim Kiran P.W. 4. Taking into consideration the evidence of P.W. 1 Shantabai, P.W. 4 Kiran and the evidence of Dr. Leela Loya P.W. 2, it is not possible to come to the conclusion that the prosecution has satisfactorily established the case against the accused. The evidence on the record is highly unsatisfactory and on such evidence the order of conviction under section 376 read with section 511 of the Indian Penal Code cannot be sustained.
11. In the result, the appeal is allowed. The order of conviction and sentence passed by the learned Additional Sessions Judge, Latur, dated August 18, 1980 in Sessions Case No. 26 of 1980 is set aside and the accused is acquitted of the charges levelled against him. If the accused has paid a fine of Rs. 500/-, the same be refunded to him. The bail bond of the accused stands cancelled.