1984 P Cr (PLP)

S. 376-Rape-Penetration-Court not supposed to enter into nicety that as to bow much penetration took place--Mere penetration, held, enough to constitute offence under section 376, P. P. C. Ch. Qamar-ud-Din Meo for Appellant. Ch. Jamal Din for A. G. for the State. Date of hearing: 29th April, 1984. Riaz Hussain appellant was convicted on 14th October, 1979 by the Magistrate Section 30, Mianwali, Camp at Bhakkar, under section 376. P. P. C. and sentenced to undergo R. I. for seven years, for committing rape upon Mst. Musarrat aged five years, on 21st October, 1978 at about 2 p.m. in maize field in the area of Rakh Mankera. The occurrence was witnessed by Khushi Muhammad complainant (father of the victim) and his brother-in-law Shabbir Ahmad. The appellant had fled away after committing the offence. Mst. Musarrat was bleeding from the vagina. She was taken to Police Station Mankera where her father Khushi Muhammad lodged the F. I. R. which was recorded by Muhammad Hanif Muharrir Head Constable. The case was investigated by the S. H. O. who took into possession a dhoti and a pair of chappal from the spot. Mst. Musarrat was medically examined by the lady doctor who opined that attempt for sexual intercourse had been made upon Mst. Musarrat. Vaginal swabs were sent to the Chemical Examiner and it was reported by the Chemical Examiner that the swabs were stained with semen. The shalwar of Mst. Musarrat and the underwear of the appellant were also sent to the Chemical Examiner. The report of the Chemical Examiner showed that the shalwar and the underwear were stained with semen and blood. 2. The appellant was charged under section 376, P. P. C. He denied to have committed the offence Khushi Muhammad P. W. 1 and Shabbir Ahmad P. W. 2 fully supported the case. They stated that they had seen the accused committing rape upon Mst. Musarrat. Muhammad Afzal P. W. 3 supported the recoveries including the recovery of under wear P. 4 from the person of the appellant. The Police Officers and the lady doctor also supported the case. Dr. Muhammad Hussain medically examined the appellant and in his opinion the appellant was fit to commit sexual intercourse. Munir Hussain S. I. supported his investigation. 3. The appellant was examined under section 342, Cr. P. C. who denied the prosecution allegations. He professed innocence. He attributed the case to enmity. He produced Shah Nawaz in his defence who stated that a false case had been made out against the appellant. 4. The learned counsel for the appellant had nothing much to argue in this appeal. He has simply contended that it was a case of an attempt to commit rape. According to him, penetration bad not taken place. I cannot agree with the learned counsel for the appellant. The lady doctor found redness on the hymen. She took one swab from inside the vagina and one from outside the vagina. She handed over shalwar of the victim to the police for onward transmission to the Chemical Examiner. The S. H. O. prepared the memo, in respect of the shalwar of the victim. It was recorded in the memo that shalwar was stained with semen and blood. Underwear of the appellant was removed and sealed into a parcel. According to the report of the Chemical Examiner, shalwar of the victim and the underwear of the appellant were stained with semen and blood. The vaginal swabs were stained with semen. From these circumstances, it was quite clear that penetration did take place. The Court is not supposed to enter into the nicety as to how much penetration took place. Mere penetration is enough to constitute an offence under section 376, P. P. C. The case of rape against the appellant stood proved and he was rightly convicted and proper sentence awarded. There is no merit in this appeal which is dismissed. 5. The benefit of section 382-B, Cr. P. C. shall be given to the appellant and the period spent by him as under-trial prisoner shall be counted towards his sentence. M. Y. H. Appeal dismissed.