RAMASWAMY Vs. STATE

JUDGEMENT

(1.) This is a petition for release of the petitioner on bail under section 439 of the Criminal Procedure Code (hereinafter referred to as 'the Code'). The prosecutrix, who is II years old and is a student of six class in her statement has alleged that at about 11.15 a.m. on 16th Novmber, 1992, the petitioner came to her house when she was all alone and closed the outer door and thereafter he caught hold of her and tried to open the nala of salwar. She has further staled that when she tried to make hue and cry, the petitioner shut her mouth with his hand and at that moment her aunt Mrs. Paramjit Kaur, who is a resident of Raghubir Nagar Extension, New Delhi happened to come to their house and the petitioner ran away.

(2.) Mr. Kalra. the learned cousnel appearing on behalf of the petitioner, has submitted that as per the allegations made by the prosecutrix, no case is made out under section 376 read with Section 5 11 of the Code. In this connection he drew my attention to section 375 wherein rape has been defined. He submitted that since there was no penetration in the present case, the petitioner cannot be alleged to have committed rape. He further submitted that according to the statement of the prosecutrix she did not receive any injury. He also submitted that this was not a case of attempt to rape inasmuch as there was no attempt for sexual intercourse as in terms of the allegations, the petitioner is alleged to have opened the nala of salwar of the prosecutrix. He contended that, if at all, it could be a case under section 354 Indian Penal Code but not under section 376/511 Indian Penal Code In suport of his contention learned counsel placed reliance on ajudgment of Punjab and Haryana High Court in Rameshwar vs State of Haryana 1984, Crl.L.J. 786 and ajudgment of Rajasthan High Court in Madan Lal vs State of Rajasthan, 1987 Crl.L.J. 257.

(3.) Mr. Sawhney, the learned counsel for the State, however, submitted that the prosecutrix was of tender age and the petitioner had closed the door and thereafter opened nala of salwar of the prosecutrix which clearly shows that the petitioner had started the process to commit rape.