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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
CRIMINAL APPEAL NO.528 OF 2004
Shankar s/o Rambhauji Thakre,
Aged about 27 years,
Occupation - Business,
R/o Tukadoji Nagar, Hinganghat,
District - Wardha. .... APPELLANT
VERSUS
State of Maharashtra,
through Police Station Officer,
Police Station Ramtek,
District - Nagpur. .... RESPONDENT
______________________________________________________________
Shri J.M. Gandhi, Advocate for the appellant,
Shri A.M. Kadukar, Additional Public Prosecutor for the respondent.
______________________________________________________________
CORAM : ROHIT B. DEO, J.
DATE OF RESERVING THE JUDGMENT
: 22-12-2017
DATE OF PRONOUNCING THE JUDGMENT : 04-01-2018
JUDGMENT :
The appellant is aggrieved by the judgment and order dated 19-6-2004 passed by the learned Ad hoc Assistant Sessions Judge, Nagpur, Nagpur in Sessions Trial 33/2002, by and under which the appellant is convicted for offence punishable under Section 363 of ::: Uploaded on - 04/01/2018 ::: Downloaded on - 05/01/2018 02:03:52 ::: 2 apeal528.04 the Indian Penal Code ("IPC" for short) and is sentenced to suffer rigorous imprisonment for one year and to payment of fine of Rs.250/- and is further convicted for offence punishable under Section 376 read with Section 511 of the IPC and is sentenced to suffer rigorous imprisonment for for two years and to payment of fine of Rs.250/-.
2. Heard Shri J.M. Gandhi, learned Advocate for the appellant (hereinafter referred to as the "accused") and Shri A.M. Kadukar, learned Additional Public Prosecutor for the respondent.
3. Shri J.M. Gandhi, learned Advocate for the accused submits that the evidence on record is grossly insufficient to bring home the charge. The evidence of the child victim is inconsistent with the medical evidence, is the submission. In the alternative and arguendo the offence which is made out would be under Section 354 and not under Section 376 read with Section 511 of the IPC, is the submission.
4. Per contra, Shri A.M. Kadukar, learned Additional Public Prosecutor submits that the evidence of the child victim is reliable and cogent and the conviction of the accused under Sections 363 and 376 ::: Uploaded on - 04/01/2018 ::: Downloaded on - 05/01/2018 02:03:52 ::: 3 apeal528.04 read with Section 511 of the IPC is unexceptional.
5. The victim is a child then aged four and half years. The first information report is lodged by P.W.1 Ushabai Patle, who is the maternal aunt of the victim. The gist of the oral report dated 21-10-2001 is that the victim is one of the four children of Rekhabai and Jaisingh Bisen. The informant was residing in the house of her sister Rekhabai. At 9-00 a.m. on 21-10-2001 the victim informed Ushabai that she was experiencing pain in the private part. The child victim informed Ushabai that on 20-10-2001 when she was playing with other girls infront of the house, the accused, a resident of the locality, approached the victim and asked the child victim to come to his house, promising to give sabudana (tapioca). The accused took the victim to his house, lifted her frock and made her lie down on the cot. The accused ate cooked sabudana (tapioca), offered none to the victim. The accused took out his male organ, lay down on the person of the victim and inserted the male organ in her private part and moved his body forward and backward. Ushabai informed the father of the victim and reported the incident to the Ramtek Police Station. Ushabai was accompanied by child victim and her parents. The oral report was reduced to writing and an offence punishable under Sections 354, 376 ::: Uploaded on - 04/01/2018 ::: Downloaded on - 05/01/2018 02:03:52 ::: 4 apeal528.04 read with Section 511 of the Indian Penal Code was registered against the accused.
6. Investigation ensued, spot panchanama was prepared, clothes of the victim were seized, the victim and the accused were medically examined and the accused arrested. The culmination of investigation led to submission of the charge-sheet in the Court of Judicial Magistrate First Class, Ramtek who committed the case to the Sessions Court.
7. The learned Sessions Judge framed charge for the offence punishable under Sections 363 and 376 of the IPC. The accused abjured guilt and claimed to be tried in accordance with law. The defence of the accused is of false implication. The motive for false implication was that the accused did not agree to be a party to theft of forest teak wood which P.W.1 and her husband were indulging in.
8. Ushabai is examined as P.W.1. She states that the incident was narrated to her by the child victim. P.W.1 states that the child victim disclosed that at 4-00 p.m. on 12-10-2001 the accused took the child victim to his house, made her lie down on a cot, slept on the ::: Uploaded on - 04/01/2018 ::: Downloaded on - 05/01/2018 02:03:52 ::: 5 apeal528.04 person of the child victim, lifted her frock and asked to remove her underwear, the accused removed his underwear and taking out the male organ, slept over the person of child victim and asked her as to what she was feeling. P.W.1 states that she narrated the incident to the mother of the child victim who disclosed the incident to the father of the child victim in the evening. P.W.1 has proved oral report (Exhibit 19) and printed first information report (Exhibit 20).
P.W.1 was suggested that she is falsely implicating the accused since her husband was not on good terms with the accused, which suggestion is denied. The cross-examination, other than bringing on record minor and insignificant omission which is that the child victim had disclosed that the accused asked her what she was feeling, is most cryptic and achieves nothing substantial from the perspective of the defence.
9. The child victim who is examined as P.W.2 has deposed that the accused called her to his house saying that he would give her sabudana (tapioca), she was made to lie on a cot, accused lifted her frock and removed her underwear and removed his own underwear and then slept on her person moving forward and backward. The accused asked the victim as to how she was feeling and thereafter she ::: Uploaded on - 04/01/2018 ::: Downloaded on - 05/01/2018 02:03:52 ::: 6 apeal528.04 returned home. She experienced burning sensation in the vagina while urinating and disclosed the incident to P.W.1 and her mother.
In the cross-examination, the victim admits that she did not disclose to the police that accused had removed her underwear and that she experienced burning sensation in the vagina, the victim further admits that the incident was narrated to the police by her father.
10. Raghunath Nagpure (P.W.3), who is examined to prove the recovery and seizure of the clothes of the accused and one handkerchief and a piece of bed cover from the accused, did not support the prosecution. Nothing is elicited in his cross-examination to assist the prosecution.
11. Bharat Bhojane (P.W.4) is one of the investigating officers, who reduced to writing the oral report, sent the child victim for medical examination, recorded the statement of the child victim and registered the offence. P.W.4 handed over further investigation to Police Sub-Inspector Pagire.
P.W.4 admits in the cross-examination that in the medical examination report of the child victim, it was opined that sexual intercourse may not have occurred.
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12. Gyanba Pagire (P.W.5) is the investigation officer who took over the investigation from P.W.4. He prepared the spot panchanama (Exhibit 24) and recorded the statements of P.W.1 Usha and the father of the child victim. P.W.5 states that he recorded the confessional statement under Section 27 of the Indian Evidence Act of the accused and pursuant to the said statement seized the handkerchief and the portion of the mattress cover on which semen stains were noticed.
13. The learned Sessions Judge, on appreciation of the entire evidence, recorded a finding that offence punishable under Section 376 of the IPC is not established. This finding is unexceptionable. The child victim does not testify as to even slightest penetration in the vagina by the male organ of the accused. The child victim, as a fact, does not even speak of the accused having taken out his male organ muchless that the accused attempted to penetrate her vagina with his male organ. The medical certificate Exhibit 22-A rules out sexual intercourse and insertion of penis in the vaginal organ of the child victim. No injuries were detected on the genitalia of the child victim, although the absence of injuries is not decisive. ::: Uploaded on - 04/01/2018 ::: Downloaded on - 05/01/2018 02:03:52 :::
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14. The conviction of the accused under Section 363 of the IPC is equally justified, in the teeth of the evidence of the child victim which is amply corroborated by the evidence of P.W.1 to whom the child victim narrated the incident. I have closely scrutinized the evidence of the child victim P.W.2 on the touchstone of caution to satisfy the conscious of the Court that she is not a tutored witness. Having done so, I do not find any reason to disbelieve the child witness and her evidence must be accepted as reliable and confidence inspiring.
15. The submission of the learned Advocate for the accused that the evidence on record, even if accepted as face value, would make out an offence punishable under Section 354 of the IPC and not under Section 376 read with Section 511 of the IPC, is, however, well founded. The evidence on record proves that the accused made preparation to commit the offence. But then, the dividing line between preparation and an attempt, albeit blurred and thin at times, is well recognized. In my opinion, while the accused did outrage the modesty of the child victim, the evidence on record is not sufficient to prove, beyond reasonable doubt, that the accused attempted to rape the child victim.
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16. The distinction between attempt to rape and criminal assault is considered by the Hon'ble Apex Court in the case of Tarkeshwar Sahu v. State of Bihar (Now Jharkhand) reported in (2006) 8 SCC 56 thus :
"14. The distinction between rape and criminal assault has been aptly described in the English case Rex v. James Lloyd (1836) 7 C&P 317 : 173 ER 141. In this case, while summing up the charge to the jury, Justice Patterson observed :
In order to find the prisoner guilty of an assault with intent to commit a rape, you must be satisfied that the prisoner, when he laid hold of the prosecutrix, not only desired to gratify his passions upon her person but that he intended to do so at all events, and notwithstanding any resistance on her part.
15. A similar case was decided by Mirza and Broomfield JJ. of the Bombay High Court in Ahmed Asalt Mirkhan Criminal Appeal No.161 of 1930, decided on 12-8-1930 reported in Law of Crimes by Ratanlal Dhirajlal's page 922. In that case the complainant, a milkmaid, aged 12 or 13 years, who was hawking milk, entered the accused house to deliver milk. The accused got up from the bed on which he was lying and chained the door from inside. He then removed his clothes and the girl's petticoat, picked her up, laid her on the bed, and sat on her chest. He put his hand over her mouth to prevent her crying and placed his private part against hers. There was no penetration. The girl struggled and cried and so the accused desisted and she got up, unchained the door and went out. It was held that the accused was not guilty of attempt to commit rape but of indecent assault. The point of distinction between an offence to commit rape and to commit indecent assault is that there ::: Uploaded on - 04/01/2018 ::: Downloaded on - 05/01/2018 02:03:52 ::: 10 apeal528.04 should be some action on the part of the accused which would show that he is just going to have sexual connection with her."
17. It would also be apposite to notice the following observations of the Hon'ble Apex Court in State of Rajasthan vs. Sri Chand reported in (2015) 11 SCC 229 :
"8. We find that FIR was recorded under Section 376 read with Section 511 of Indian Penal Code i.e. attempt to rape and not rape per se. There is no eye witness on record apart from the prosecutrix herself as PW 3 Biharilal only saw the accused fleeing away and Saroj, the alleged eye witness, was never produced before the Court nor her statement was recorded under Section 161 of Code of Criminal Procedure. Also, no medical examination of the prosecutrix has been conducted. The prosecutrix has in her statement stated that the accused Sri Chand took her inside her house, closed it, undressed her and undressed himself. Thereafter, she states, he got on to her and did bad work. On being repeatedly asked what bad work was done, she kept quiet and bowed her head, in embarrassment understandably. One must not lose sight of the fact that the prosecutrix was a minor child at the time of the incident. The father (PW 6) of the prosecutrix has categorically stated that bad work meant rape. However, we find difficulty in veracity of his statement since he was not an eye witness and was not even told about the incident by the prosecutrix. He was told details of the incident by Biharilal (PW 3) who is not an eye witness to the incident. However, Biharilal was the first person to have learnt of the offence from the prosecutrix and he has completely corroborated her version. By this consistent evidence what is proved beyond reasonable doubt is the offence under Section 354 of Indian Penal Code. However, the question of attempt to rape is not ::: Uploaded on - 04/01/2018 ::: Downloaded on - 05/01/2018 02:03:52 ::: 11 apeal528.04 proved beyond reasonable doubt. On the question of attempt to rape, learned Counsel appearing for the Respondent has sought to rely on two precedents being Aman Kumar and Anr. v. State of Haryana MANU/SC/0104/2004 : (2004) 4 SCC 379, and Tarkeshwar Sahu vs. State of Bihar (now Jharkhand) MANU/SC/4421/2006 : (2006) 8 SCC 560. In both the cited judgments it is held that for the act to constitute offence of rape penetration is pre-requisite (this is the pre 2013 Criminal Amendment position of law) and therefore for the offence of attempt to rape the accused must have so advanced in his actions that it would have resulted into rape had some extraneous factors not intervened. It is held in Aman Kumar's case that in order to come to the conclusion that attempt to rape is committed it should be shown that the accused was determined to have sexual connection (penetration) with the prosecutrix at all events inspite of all resistance. In the present case the accused fled away on when the PW 3 came to the place of incident due to shouting of the prosecutrix. This shows he wasn't determined to have sexual connection with the prosecutrix despite all resistance and odds. Also it would be relevant to note that there are inconsistencies in the statement of the prosecutrix wherein she states that she had suffered injuries on her breast but same is not corroborated by the medical evidence. Also, Saroj, who is an important eye witness, is not produced as a witness. In this view of the matter, we find it difficult to hold that offence of attempt to rape is proved to a sufficient measure."
18. In the light of the discussion supra, the conviction of the accused under Section 363 of the IPC is maintained. The accused is acquitted of offence punishable under Section 376 read with Section 511 of the IPC and is convicted for offence punishable under Section 354 of the IPC and is sentenced to suffer rigorous imprisonment for 1 ::: Uploaded on - 04/01/2018 ::: Downloaded on - 05/01/2018 02:03:52 ::: 12 apeal528.04 year. The bail bond of the accused shall stand cancelled. The accused be taken into custody to serve the remainder of the sentence.
The appeal is partly allowed and disposed of in the above terms.
JUDGE adgokar ::: Uploaded on - 04/01/2018 ::: Downloaded on - 05/01/2018 02:03:52 :::