GUDDU @ SANTOSH versus STATE OF MADHYA PRADESH

Citation: [2006] SUPP. 1 S.C.R. 414 · Decided: 27-04-2006 · Supreme Court of India · Bench: S.B. SINHA, P.P. NAOLEKAR · Disposal: Case Partly allowed

Judgment (excerpt)

A 
GUDDU @ SANTOSH 
V. 
ST ATE OF MAD HY A PRADESH 
APRIL 27, 2006 
B 
[S.B. SINHA AND P.P. NAOLEKAR, JJ.] 
Penal Code, 1866: 
s.3761511-Minor girl-Subjected to sexual assault-Doctor found 
C swelling over private part of victim-Hymn intact but had become red-No 
definite report by doctor of intercourse in immediate past-High Court 
convicting accused u/s 3 7 61511-Held, it is not a case where merely preparation 
had been undergone by accused-He made an attempt to criminally assault 
the prosecutrix-From medical evidence inference could also have been drawn 
D by High Court that there had 'been penetration-High Court failed to notice 
that even slight penetration was sufficient to constitute offence of rape-
However, since High Court convicted accused u/s 3761511, sentence of JO 
years reduced to 5 years. 
Kappula Venkat Rao v. State of A.P., (2004) 3 SCC 602 and Aman 
E Kumar and Anr. v. State of Haryarza, (2004) 4 sec 379, referred to. 
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 1491 
of 2005. 
From the Judgment/Order dated 23.6.2005 of the High Court of 
Judicature at Madhya Pradesh, Jabalpur Bench at Gwalior in Crl. A.No. 408 
F of 1997. 
S.K. Dubey, L.S. Chauhan, Chandra Mohan Snisetty and Dr. Kailash 
Chand for the Appellant. 
Vibha Datta Makhija for the Respondent. 
G 
The Order of the Court was delivered by 
ORDER 
The appellant herein was charged with commission of an offence under 
Section 376 of the !PC for committing rape on a minor girl Sushama. Her 
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GUDDU @SANTOSH v. STA TE OF MAD HY A PRADESH 
415 
parents are labourers. They had been occupying a portion of the premises A 
belonging to the father of the appellant herein, as tenant. On 2.1. 1995, they 
had gone out of their house in search of work. Sushama was all alone in the 
house. The appellant taking advantage of the absence of the parents of the 
prosecutrix, came there, took her to Tapariya, put off her Chaddi and he also 
pulled down his trousers and sat upon her. When her grandfather came, he B 
fled away. When the parents of Sushama came back, they were informed 
about the said incident by her. The mother of the prosecutrix had seen redness 
in her private part as also blood coming out therefrom. 
First Information Report was lodged on the next day i.e. on 3.1.1995. 
The prosecutrix was sent for medical examination and one Dr. Smt. Sunita C 
Jain examined her. The said doctor was examined before the learned Trial 
Judge as PW-2. In her evidence she stated: 
"I medically examined Sushama D/o Mukesh on 3.1.1995 at 12.15 
noon and found no any external injury over her body. Swelling was 
there over her private part and that became red. Hymen of her private D 
part was intact. Hymen of her private part became red. I cannot give 
definite opinion that in earlier past whether there had been any 
intercourse happened with that lady." 
The only question which was put to PW-2 in cross-examination was a 
suggestion which was in the following terms: 
E 
"By biting of ant, swelling and redness may come at 3-4 places of the 
private parts." 
Apart from the mother and grandfather, the prosecutrix examined herself. 
She being below 12 years of age, the learned, Sessions Judge satisfied himself p 
that she was capable of testifying as a witness. In her evidence, the prosecutrix 
stated: 
"On that Tapariya was closed, which Guddu opened. Guddu sat over 
me by removing my underwear. After the incident my father reached 
there, I narrated about the incident to my father. I was medically G 
examined." 
On the aforementioned statement she was not cross-examined. 
The mother of the prosecutrix also examined herself as PW-7. In her 
examination-in-chief, she stated: 
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SUPREME COURT REPORTS [2006] SUPP. I S.C.R. 
"Sushama is my daughter. I know the accused earlier before one 
year. 1 and my husband went out for labour work. On that day we did 
not get labour work. Therefore, we came back home at IO a.m. 
Sushama told that Guddu opened the lock of Tapariya, put off my 
underwear and sat over me. Blood was stained in the underwear of 
Sushama. I told all about facts to my husband." 
Yet again she had not been cross-examined on the said point. 
PW-3 is the grandfather of the prosecutrix. His evidence before the 
learned Trial Judge was as under: 
"I know Sushma, Mukesh and Guddu. Sushama is my granddaughter. 
Mukesh is my son. About one year before at 10-11 A.M. When I was 
returning home after working on Kothi No.28. At

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