BALRAM @ BAILA Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) This appeal arises out the judgment dated 27.2.1991 passed by the learned Additional Sessions Judge, Raisinghnagar in Sessions Case No. 34/88 whereby he convicted the accused appellant for offence under Sec. 376 I.RC. and sentenced him to 7 years rigorous imprisonment with a fine of Rs. 2000.00 and in default of payment of fine to further undergo one month's simple imprisonment.

(2.) Learned counsel for the appellant has urged that no offence under Sec. 376 I.RC. can be said to be made out as from the medical report it is clear and explicit that the hymen of the girl was intact and there were no injury marks on the person of the girl. In this case, no doctor was examined at the trial as the medical report was admitted by the counsel for the accused. According to the medical evidence, the age of the prosecutrix was about 12 years. Learned counsel for the appellant has relied upon Suresh Chand Vs. The State of Haryana reported in 1976 Cr.LJ 452 and Das Bernard Vs. State reported in 1974 Cr.LJ. 1974 and has canvassed that at best the offence can fall under Sec. 376 read with Sec. 511 I.RC.

(3.) Learned Public Prosecutor has canvassed that in a case of a tender aged girl the hymen is deeply situated and with the insertion it does not get ruptured necessarily. Rupture of the hymen must have escaped because of its deep seatedness. He has placed reliance on Brij Lal Vs. State of Rajasthan reported in 1999(2) R.C.C. 776 and has canvassed that this Court has already taken the view that non-rupturing of the hymen is not a conclusive proof that sexual intercourse/penetration had not taken place. In this regard, the statement of the girl is clear and unambiguous and has not been shaken in cross-examination.