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Madhya Pradesh High Court · body

2008 DIGILAW 402 (MP)

JEEVAN v. STATE OF M. P.

2008-03-12

S.L.KOCHAR

body2008
Judgment S.L. Kochar, J. ( 1. ) The appellant has preferred this appeal against his conviction under section 376 read with section 511 of the Indian Penal Code and sentence of rigorous imprisonment for four years and fine of Rs. 5,000/ - , in default of payment of fine to suffer additional R.I for three months passed by the learned 1st Addl. Sessions Judge, Sonkatch District Dewas vide judgment dated 27.11.2007 in S.T. No. 10/2007. ( 2. ) According to the prosecution case on 06.09.06 between 7.00 and 8.00 PM, the appellant took the prosecutrix (PW - 12), aged 11 years in his house for cooking food, because his wife had gone to her fathers house. When prosecutrix did not return back, her father the complainant Manloharlal (PW - 6) reached at the house of the appellant and had suspicion, because the light of the house of the appellant was off. He entered inside the house an switched on to the light and saw that his daughter, the prosecutrix was sitting on the cot (PALANG) and appellant was also sitting by her side. Manoharlal asked the prosecutrix to go to the house and when she got up from the cot, her salwar fell downwards. Manloharlal asked his daughter as to what happened and why the Salwar got untied, the prosecutrix while weeping disclosed that the appellant had untied her salwar and she tried to run away, but the appellant caught hold of her hands, gagged her mouth and also threatened. Thereafter, he lied on her and committed bad act (rape) with her. The complainant caught the appellant and brought out side the house and thereafter, called his nephew Prakash and with his help, tied the appellant by a rope. Villagers, Omprakash Sharma, Sarpanch Mukesh Malviya and watchman Poonamchand were informed about the incident and report Ex.P/ 5 was lodged by him at the Police Station on 06.09.06 at 9.45 PM. Prosecutrix was sent for medical examination and the same was done by Dr PW - 2 Pushpa Pavaiya who gave*her report Ex.P/2. PW - 1 Dr Atul Paonikar examined the appellant and gave report Ex.P/1. The garments of the prosecutrix and appellant were sent for examination to the Forensic Science Laboratory, but its report had not received till pronouncement of the judgment. PW - 1 Dr Atul Paonikar examined the appellant and gave report Ex.P/1. The garments of the prosecutrix and appellant were sent for examination to the Forensic Science Laboratory, but its report had not received till pronouncement of the judgment. After completion of investigation, the appellant was charge - sheeted for commission of the offence as already noted herein - above. ( 3. ) The appellant refuted the charges and his defence was that Manoharlal, father of the prosecutrix used to purchase grocery on credit from his shop and lodged a false report to save himself from payment of money to the appellant. The appellant examined DW - 1 Lakhanlal. Learned trial Court, on conclusion of trial, finding the appellant guilty, convicted and sentenced him as indicated herein above. Hence, this appeal. ( 4. ) Learned counsel for the appellant does not wish to press this appeal on merit. Even otherwise also there is overwhelming evidence available on record. Learned counsel has advanced the only argument that the offence at the most under section 354 of the Indian Penal Code would be made, out against the appellant looking to the statement of the prosecutrix and the medical evidence. Learned counsel has also prayed for awarding the sentence to the appellant for this offence to the period already undergone by him with fine. ( 5. ) On the other hand, learned counsel for the State has supported the impugned judgment and finding. ( 6. ) Having heard learned counsel for the parties and after perusing the entire record, this Court finds substance in the arguments of the learned counsel for the appellant. PW - 1 Dr Atul Paonikar, on examination of the appellant, found him capable of performing sexual intercourse. He did not find any external injury on his person or penis. PW - 2 Dr Pushpa Pavaiya medically examined the prosecutrix and proved her medical report Ex.P/2. This witness also did not find any external or internal injury on the person of the prosecutrix. The prosecutrix was between 11 and 12 years of age, menses had not started, she was lean and thin, breasts were not developed and only buds were present. On internal examination, she found libia, majora and minora healthy and without any injury. There was no swelling, hymen was intact and there was no bleeding. Semen was also not present. The prosecutrix was between 11 and 12 years of age, menses had not started, she was lean and thin, breasts were not developed and only buds were present. On internal examination, she found libia, majora and minora healthy and without any injury. There was no swelling, hymen was intact and there was no bleeding. Semen was also not present. Her vagina was admitting the top of little finger with difficulty and pubic hair were not present. She prepared two slides of vaginal swab and also sealed her salwar. Dr. Pavaiya did not give any opinion about commission of rape and referred her form ossification test. She also gave Salwar and slide of vaginal swab of the prosecutrix for being sent to the Chemical Examiner to the concerned constable. She also stated that opinion could not have been given unless the report was received from the Chemical Examiner. Till final judgment, the prosecution has not filed the FSL report before the trial Court which is clear from para 20 of the impugned judgment. ( 7. ) PW - 6 Manoharlal has supported the prosecution case and proved the First Information Report Ex.P/5. In cross - examination, he admitted about purchase of grocery goods from the shop of the appellant and account diary Ex.D/4, but denied the defence suggestion in regard to false implication of the appellant on account of balance amount. PW - 7 Prakash Sharma also supported the prosecution cased and the statement of Manoharlal regarding commission of bad act with the prosecutrix by the appellant and tying of the appellant by the rope. PW - 9 Pushpabai, mother of the prosecutrix has deposed that on the date of incident, the appellant took the prosecutrix to his house for cooking food since his wife had gone to her parents house. Thereafter, the prosecutrix was brought to the house of her father Manoharlal and prosecutrix disclosed about the commission of bad act after untying her Salwar by the appellant. PW - 12, the prosecutrix has deposed that on the date of incident at 8.00 PM, she went to the house of the appellant for cooking food, because his wife had gone to her parents house and inside the house appellant committed bad act after putting off her Salwar. Appellant had delivered threats and also gagged her mouth. She also disclosed about the incident to her father. The further say. Appellant had delivered threats and also gagged her mouth. She also disclosed about the incident to her father. The further say. of this witness was that, she was made to lie on the cot by the appellant and after untying her Salwar. he also laid on her. She has no where stated about removing of the clothes of the appellant and thereafter lying on her. She has also not stated that the appellant tried to penetrate his male organ into her vagina. ( 8. ) In view of these facts and circumstances of the case, it cannot be said that the appellant attempted to commit rape on the prosecutrix. There is no evidence available on record that the appellant removed her garments, his own under garment, exposed his male organ and thereafter, tried to penetrate the same in the vagina of the prosecutrix. Medical evidence is also not suggesting use of any kind of force on the private part of the prosecutrix. Therefore, in the considered opinion of this Court, offence under section 376 read with section 511 of the Indian Penal Code, attempt to commit rape would not be made out against the appellant. ( 9. ) The Supreme Court in the case of Aman Kumar and another V/s State ofHaryana ( AIR 2004 SC 1497 ) observed in paras 10 and 11 as under: - "An attempt to commit an offence is an act, or a series of acts, which leads inevitably to the commission of the offence, unless something which the doer of the act neither foresaw nor intended, happens tro prevent this. An attempt may be described to be an act done in part execution of a criminal design, amounting to more than mere preparation, but falling short of actual consummation, and, possessing, except for failure to consummate, all the elements of the substantive crime. In other words, an attempt consists in it the intent to commit a crime,, falling short of, its actual commission. It may consequently be defined as that which if not prevented would have resulted in the full consummation of the act attempted. The illustrations given in Section 511 clearly shows the legislative intention to make a difference between the cases of a mere preparation and an attempt. It may consequently be defined as that which if not prevented would have resulted in the full consummation of the act attempted. The illustrations given in Section 511 clearly shows the legislative intention to make a difference between the cases of a mere preparation and an attempt. In order to find an accused guilty of an attempt with intent to commit a rape, Court has to be satisfied that the accused, 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. Indecent assaults are often magnified into attempts at rape. In order to come to a conclusion that the conduct of the accused was indicative of a determination to gratify his passion at all events, and in spite of all resistance, materials must exist. Surrounding circumstances many times throw beacon light on that aspect." (Also see: Koppula Venkat Rao V/s State of Andhra Pradesh ( AIR 2004 SC 1874 ). ( 10. ) The appellant, at the most would be liable for commission of offence punihable under section 354 of the Indian Penal Code, Assault or criminal force with intent to outrage the modesty of woman. The aforesaid discussion of the evidence is clearly establishing the ingredients of this section. ( 11. ) It would be apposite to consider and mention here that whether the learned Trial Court has rightly awarded the sentence under section 376/511 of the Indian Penal Code, in accordance with the provision of section 511 of the Indian Penal Code if offence of attempt to commit rape is proved. ( 11. ) It would be apposite to consider and mention here that whether the learned Trial Court has rightly awarded the sentence under section 376/511 of the Indian Penal Code, in accordance with the provision of section 511 of the Indian Penal Code if offence of attempt to commit rape is proved. Section 511 of the Indian Penal Code reads as under : - "511: Whoever attempts to commit an offence punishable by this Code with imprisonment for life or imprisonment, or to cause such an offence to be committed, and in such attempts does any act towards the commission of the offence, shall, where no express provision is made by this Code for the punishment of such attempt, be punished with imprisonment of any description provided for the offence, for a term which may extend to one - half of the imprisonment for life, or, as the case may be, one - half of the longest term of imprisonment provided for that offence, or with such fine as is provided for the offence, or with both." ( 12. ) In the Penal Code, there is no express provision available for punishment for attempt to commit rape. Therefore, awarding of punishment would be governed by Section 511 of the Indian Penal Code and according to this section attempt of rape is punishable with half of the longest term of imprisonment. Section 376 of the Indian Penal Code in clause (1) as swell as in clause (2), the longest sentence of life imprisonment is prescribed except the rape with own wife who is under 12 years of age. Section 57 of the Indian Penal Code is prescribing fractions of terms of punishment. For convenience, Section 57 is reproduced below : - "Section 57: In calculating fractions of terms of punishment, imprisonment for life shall be reckoned as equivalent to imprisonment for twenty years." ( 13. ) In view of section 376 read with section 57 of the Indian Penal Code, the offender must be punished for attempt to commit rape under section 376/511 of the Indian Penal Code for imprisonment of ten years. ( 14. ) Ex - consequenti, this appeal is allowed in part. Conviction and sentence of the appellant as awarded by the trial Court are hereby set aside. Instead, he is convicted under section 354 of the Indian Penal Code. ( 14. ) Ex - consequenti, this appeal is allowed in part. Conviction and sentence of the appellant as awarded by the trial Court are hereby set aside. Instead, he is convicted under section 354 of the Indian Penal Code. The appellant is a first offender and a married person having responsibility to maintain his family consisting of wife, two minor sons and old parents. Learned counsel has also submitted that after this incident, the appellant has closed down his small grocery shop and at present is earning his livelihood by working as a labourer. The offence is not mandatorily punishable with jail sentence. Therefore, this Court is of the view that ends of justice would be served to sentence the appellant to the period already under gone (seven months and twelve days and fine of Rs,. 5,000/ - , which according to the learned counsel, has already been deposited by the appellant in the trial Court. If this is so, the learned trial Court is directed to release the appellant forthwith if not required in any other criminal case. Office is directed to transmit the record of the trial Court along with a copy of this judgment, to that Court, for immediate compliance. Appeal allowed in part.