AMBIKESH TIWARI Vs. STATE OF M.P.

JUDGEMENT

(1.) APPELLANT Ambikesh Tiwari has been convicted under Sections 376,342 and 323 IPC and sentenced to rigorous imprisonment for seven years, and six months respectively. He has also been sentenced to pay a fine of Rs. 2,000/ - for the offence punishable under Section 376 IPC.

(2.) AFTER hearing the learned counsel for the both the sides and after careful scrutiny of the evidence on record this Court is of the opinion that the conviction of the appellant under Section 376 should be altered to Section 376/511 IPC. In view of overwhelming reliable evidence on record. Learned counsel for the appellant could not challenge that appellant Ambikesh Tiwari attempted to commit rape on Tripti (PW 4) aged about 16 years on 11.6.1998 at 9 A.M. in his house in Derapahadi, Chhatarpur. The accused was Physics teacher in Saraswati Higher Secondary School at Chhatarpur. Tripti (PW 4) was a student of 11th class in that school. She was also taking tuition of the Physics from the accused at his residence. She is daughter of R.D. Shiipakar (PW 6) who was posted as Executive Engineer in P.W.D. at Chhatarpur. Ushadevi (PW 5) is mother of the prosecutrix. Tripti (PW 4) has deposed that she had gone to the house of the accused to take a book of Physics for 12th Class. The accused asked her to sit on a stool and bolted the door of the room from inside. That created panic in her mind and she wanted to go back without taking the book. But the accused lifted her and took her inside the inner room. He put her on a mattress and removed her Salvar and underwear. He attempted to commit rape on her. She resisted to her full capacity. The accused caused injury on her left wrist with a blade. The accused threatened to cause her death. There was bleeding from her injury on the left hand. She has further deposed that she came to her house and narrated the incident to her mother Ushadevi (PW 5). Her mother told her father about this incident and he took her to Dr. Jagannath Mishra (PW 11), a private medical practitioner for repairing the wound on the left wrist. Thereafter, he took her to the police station where she lodged the report Ex. P -6. She was sent for medical examination.

(3.) THE oral testimony of Tripti (PW 4) finds corroboration from immediate disclosure made by her to her mother Ushadevi (PW 5) and her father R.D. Shilpak (PW 6). That is further substantiated by the medical evidence. The injuries found on the body of the prosecutrix and those of the accused go to show that the accused attempted to molest this girl sexually. It is because of the stiff resistance offered by her that the accused could not have sexual intercourse with her and her hymen has been found to be intact. Medical report of Dr. Lata Chourasia (PW 2) does not show any injury, redness or tenderness on the labia majora or labia minora or any other part of the genitals of the girl. The redness and tenderness, as mentioned above, were found on "posterior commissure that is, below the vagina. It appears that because of the resistance from the side of the girl, the accused could not have either vaginal or vulval penetration. As such the offence is not covered.by the definition of rape but it was a case of an attempt to commit rape. The evidence of Tripti (PW 4) shows that the accused attempted to commit rape. To the same effect is the evidence of Dr. Lata Chourasia (PW 2) which shows that there was an attempt to commit rape on this girl. The lady doctor had prepared slides from the vaginal swab for chemical examination.