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2004 DIGILAW 624 (PNJ)

Raju v. State of Haryana

2004-05-26

ADARSH KUMAR GOEL

body2004
JUDGMENT Adarsh Kumar Goel, J. - This appeal has been filed by Raju appellant against his conviction and sentence under Section 376/511 Indian Penal Code. He has been sentenced to undergo RI for three years and to pay a fine of Rs. 1,000/-, in default to undergo further RI for three months. 2. Case of the prosecution is that on 28.6.1992, complainant Phoolwati sent her daughter Urmila aged seven years to the house of her neighbour to bring butter-milk. After 15-20 minutes, Urmila returned and told her mother that Raju accused took her inside a room and made her to lie on a cot and after removing her undergarment and his own undergarment, he did indecent acts. The complainant noticed redness in the private part of Urmila and thereafter she lodged FIR on 29.6.1992. Urmila was medically examined. The accused was also medically examined. After completion of investigation, accused was challaned. 3. The prosecution, inter alia, examined Urmila, PW-4, Phoolwati, PW-5, Dr. Rekha Yadav, PW-2 and Dr. Gobind Saran, PW-1 apart from PW-7 Ranbir Singh, ASI and Vishamitter, ASI, PW-6 who were investigating officers. 4. PW-4 Urmila and PW-5 Phoolwati fully supported the prosecution version. Dr. Rekha Yadav, PW-2 noticed a superficial abrasion and evidence of recent bleeding and noted the same in MLR Ex.PD. Ex.PL is the report from FSL, Madhuban to the effect that human semen was detected from the undergarments of the accused. 5. Case of the accused is that there was a previous enmity between the father of the accused and the father of the prosecutrix. He examined his father DW-1 Janak Singh in support of this defence. DW-2 Suraj Pal Singh was also examined to the effect that he had not heard about the incident and that no Panchayat was held. 6. The trial Court, after considering the evidence on record, held the case of the prosecution to be fully proved beyond reasonable doubt. It was held that delay in lodging FIR was not by itself sufficient to discard the prosecution case and will only put the court on guard to scrutinise the evidence with more than usual care. It was observed that honour of the family is at stake and it could not be expected that a victim will always be prompt in going to the police. It was observed that honour of the family is at stake and it could not be expected that a victim will always be prompt in going to the police. It was further observed that plea of false implication could not be believed as version of the prosecutrix was believable. Absence of injury on penis and absence of semen on swabs and underwear of the prosecutrix was held not to be conclusive in the matter. The trial Court concluded :- "As mentioned above, it has clearly come in the evidence that the accused had made Urmila lie on a cot, put off his underwear as well as her underwear. All this indicates that he had an intention and had made attempt to commit rape but could not do it. Urmila started weeping and he let her off. Penetration in this case does not stand proved but the evidence on record is sufficient to establish the offence of attempt to commit rape." Hence this appeal. 7. Learned counsel for the appellant submitted that there was slight variance in the initial version put forward in FIR Ex. PG and the statement given in court and if initial version is to be accepted, case may not fall under Sections 376/511 Indian Penal Code. 8. Learned counsel for the State and the complainant opposed this contention and submitted that there is no variance in the version given in the FIR Ex. PG and evidence of Urmila, PW-4 and Phoolwati, PW-5. 9. I have perused Ex. PG as well as evidence of PW 4 Urmila and PW 5 Phoolwati. Ex. PG mentions that after removing the undergarments, the accused did the bad things while PW 4 Urmila mentions that accused put the male organ in her private part. I do not find any improvement in the version given in court. Variance, if any, may be in the way of expression but not in effect. Medical evidence shows that there was evidence of recent bleeding at Labia minora and there was also abrasion at that place. No doubt, there is a thin- line distinction between preparation and attempt. As held by the Apex Court in Abhayanand Mishra v. State of Bihar, AIR 1961 Supreme Court 1698, attempt can be said to have been committed when a person does an act towards commission of the offence after preparation. 10. No doubt, there is a thin- line distinction between preparation and attempt. As held by the Apex Court in Abhayanand Mishra v. State of Bihar, AIR 1961 Supreme Court 1698, attempt can be said to have been committed when a person does an act towards commission of the offence after preparation. 10. It is well-settled that version of a victim of rape or attempted rape cannot be brushed aside unless there is some reason to disbelieve the victim. There is nothing in the present case to suggest that the prosecutrix made a false statement for which she could be disbelieved. 11. Learned counsel for the appellant submitted that the appellant was also a young person at that time and the prosecutrix has since been married and incident is 12 years old. He submitted that the appellant has been facing proceedings for the last many years and instead of sending the appellant to custody, he may be required to compensate the victim along with tendering of apology. Learned counsel for the appellant submitted that the appellant was even willing to pay a sum of Rs. 2 lacs as compensation, if he is not sent to custody. 12. Learned counsel for the complainant opposed the prayer and submitted that money compensation will not be enough and the complainant has been waiting for justice all these years. 13. Having considered all aspects of the matter, I am of the view that ends of justice will be met if substantive sentence awarded to the appellant is reduced to RI for six months while requiring the appellant to pay compensation of Rs. 25,000/-. It was observed by the Apex Court in Delhi Domestic Working Womens Forum and others v. Union of India and others, 1995(1) SCC 14 that appropriate compensation ought to be awarded to the victim in such cases. 14. Ordered accordingly. The compensation will either be sent to the complainant by way of bank draft and proof filed in the trial Court or the amount of compensation may be deposited in the trial Court within three months from today. If the amount of compensation is deposited in the trial Court, the complainant will be at liberty to withdraw the same. The appeal is disposed of in the above terms. Order accordingly.