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2008 DIGILAW 683 (AP)

Syed Ghouse @ Babu v. State of Andhra Pradesh

2008-08-26

D.S.R.VERMA, K.C.BHANU

body2008
ORAL JUDGMENT: (per the Hon'ble Sri Justice D.S.R.Varma) Heard Sri S.R. Sanku, learned counsel appearing for the appellant-accused as well as the learned Public Prosecutor, appearing for the respondent-State. 2. Appellant is the sole accused in the Sessions Case. 3. This Criminal Appeal, by the accused, under Section 374 (2) of the Code of Criminal Procedure, 1973, is directed against the judgment, dated 15-09-2005, in Sessions Case No.326 of 2004, passed by the III Additional District and Sessions Judge (Fast Track Court), Nizamabad, convicting the accused for the offence punishable under Section 376 (2) (f) of the Indian Penal Code (for brevity "I.P.C.) and sentencing him to undergo life imprisonment and to pay a fine of Rs.5,000/-, in default to undergo simple imprisonment for six months. 4. The brief facts that are necessary for disposal of the appeal, as per the case of the prosecution, are as follows: P.W.1 is the wife of the accused and P.W.3-the victim girl is their daughter. The family of the accused resides at Vattapally locality in Hyderabad City and they used to carryout business in the sale of artificial jewellary by putting stalls at the places of exhibitions, jataras etc. Apart from P.W.3, the accused and P.W.1 are also having another daughter and three sons and they are all minors. While so, in connection with their business, the accused, P.W.1 and P.W.3 along with the last son, aged about 1 1/2 years, went to Nizamabad in the month of May, 2003 and they were allotted stalls, bearing Nos.148 to 151 in Nizamabad Industrial and Agricultural Exhibition Society for carrying out their business. On 25-05-2003, at about 1-15 p.m., P.W.1 went to the neighbouring stall leaving P.W.3 in the stall asking her to take bath in the meanwhile. After a gap of 15 minutes, P.W.1 returned back to the stall and found that her husband-accused was indulging in sexual intercourse on her daughter P.W.3. Immediately, the accused got up and absconded from the stall. Then P.W.1 wound up the stalls after closure of the exhibition and came back to Hyderabad. P.W.1 informed the same to her brother-in-law, who was examined as P.W.2, and another, and at their instance on 31-05-2003 reported the matter to Falaknuma Police Station, Hyderabad, who recorded the statement of P.W.1 under Ex.P-1. Then P.W.1 wound up the stalls after closure of the exhibition and came back to Hyderabad. P.W.1 informed the same to her brother-in-law, who was examined as P.W.2, and another, and at their instance on 31-05-2003 reported the matter to Falaknuma Police Station, Hyderabad, who recorded the statement of P.W.1 under Ex.P-1. Basing on the said report, a case in Crime No.115 of 2003 was registered and the matter was investigated into. After completion of all formalities, like subjecting P.W.3 to medical examination, sent Ex.P-8, the copy of F.I.R., to Nizamabad Town Police Station on the point of jurisdiction. Thereafter, the Nizamabad Town Police laid the charge sheet against the accused for the offences punishable under Section 376 (2) (f) I.P.C. 5. When the charge is read over and explained to the accused, he pleaded not guilty and claimed to be tried. 6. In order to bring home the guilt of the accused, the prosecution examined P.Ws.1 to 8 and got marked Exs.P-1 to P-8. On behalf of the accused, D.W.1, who was working as Supervisor in Nizamabad Industrial and Agricultural Exhibition Society, was examined, and no documents were marked. 7. The Court below, after appreciating the evidence on record, both oral and documentary, available on record, found the accused guilty for the offence punishable under Section 376 (2) (f) and convicted and sentenced him as stated above. Aggrieved by the same, the accused has preferred the present Criminal Appeal. 8. Now, the point that arises for consideration, in this Criminal Appeal is -- as to whether the Court below has rightly appreciated the evidence on record before arriving at the conclusion that the accused has committed the offence punishable under Section 376 (2) (f) I.P.C.? 9. It is to be seen that the evidence of P.Ws.1, 3 and 4 is very much relevant for the purpose of the present case. 10. The evidence of P.W.1 is to the effect that the accused is her husband and the victim is her second daughter, who was aged about 9 years as on the date of incident. They were involved in the business of sale of artificial jewellary in exhibitions, jataras etc. In that process, they came to Nizamabad and opened four stalls. 10. The evidence of P.W.1 is to the effect that the accused is her husband and the victim is her second daughter, who was aged about 9 years as on the date of incident. They were involved in the business of sale of artificial jewellary in exhibitions, jataras etc. In that process, they came to Nizamabad and opened four stalls. On the date of incident, at about 12-00 or 1-00 Noon, she went to the neighbouring shop to get the vegetables leaving her daughter in the stall and asking her to take bath. When she returned after 15 minutes, she found the accused indulging in sexual intercourse with her own daughter. Since she was not acquainted with Nizamabad Town, soon after she closed the stalls, she came to Hyderabad and informed about the incident to P.W.2 and another, who took her to Falaknuma Police Station, where her statement was recorded and a crime was registered. 11. Though some suggestions were made by the defence to elicit from P.W.1 something adverse to the prosecution case, all those suggestions have been turned down by the witness and they are not at all useful for the case of the defence. 12. The evidence of P.W.3, who is the victim girl, is to the effect that the accused is her father and P.W.1 is her mother. They were in the business of selling artificial jewellary in the exhibitions. She deposed that in the month of May, 2003, P.W.1, after taking bath, went to the adjacent shop to bring vegetables and asked her to take bath. At about 1-00 p.m., after her mother went out, she undressed herself in order to take bath and at that point of time, the accused came, took her away to the last stall and laid a tarpaulin cloth on the floor and made her to lie on it. Thereafter the accused brought some groundnut oil, applied it to her and himself, closed her mouth and laid on her. After sometime P.W.1 came there and after seeing P.W.1, the accused got up and went away. She further deposed that P.W.1 wept and did not inform to anyone. She also started crying. Thereafter the accused brought some groundnut oil, applied it to her and himself, closed her mouth and laid on her. After sometime P.W.1 came there and after seeing P.W.1, the accused got up and went away. She further deposed that P.W.1 wept and did not inform to anyone. She also started crying. 4 or 5 days thereafter, her mother went to Police Station in Hyderabad and the police took her to Hospital, where she was examined by a woman medical officer, stayed in the hospital overnight, and on the next day she was sent away. In the cross-examination, the evidence of this witness could not be shattered in any manner. 13. Coming to the evidence of P.W.4, the Doctor, she deposed "I examined P.W.3 on the same day and found no external injuries, clothings were changed, there was no foul smell from veginal introitus. There was no fresh injury over the perineum, hymen was intact. Smear collected from veginal introitus was sent for FSL and received the report stating that semen and spermatozoa was not detected on the slides.".......... "There was no evidence of sexual intercourse on the victim, however, the attempt of sexual intercourse cannot be ruled out."......... "When I examined, the victim stated that her own father sexually abused her. As per the version of the victim before me, the incident was occurred on 25-5-2003. The victim was examined by me 7 days after the incident." ......... "Therefore, there is every possibility of diminishing the presence of semen and spermatozoa, so also tenderness and swelling of valva. The detection of semen and spermatozoa from the genital track will also diminish. In case of forcible penetration when the victim is minor, definitely there will be injury like laceration on the veginal part and when there was no penetration, hymen will remain intact." In the cross-examination, P.W.4 stated "......When the force is applied for penetration after applying groundnut oil to the private parts of both the parties, there is a possibility of tearing of hymen. It is true when no force is applied for penetration, there will not be any tenderness, swelling or any laceration on the veginal part of the victim......" 14. From the above medical evidence, it is obvious that there was no penetration as postulated under Explanation to Section 375 I.P.C. 15. It is true when no force is applied for penetration, there will not be any tenderness, swelling or any laceration on the veginal part of the victim......" 14. From the above medical evidence, it is obvious that there was no penetration as postulated under Explanation to Section 375 I.P.C. 15. For the sake of convenience and ready reference, the explanation to Section 375 I.P.C., reads as under: "Explanation: Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape." 16. Actually, explanation to Section 375 I.P.C., indicates that there need not be a complete sexual intercourse and, on the other hand, mere penetration is sufficient to constitute the offence under Section 376 I.P.C. 17. Coming to the case on hand, as stated by P.W.4, the Doctor, there was no evidence of sexual intercourse on the victim girl and this aspect was asserted by the fact that the hymen was found to be intact. The Doctor categorically stated that in case of penetration, there would be tearing of hymen. It was further stated that though there was no evidence of sexual intercourse on the victim, because the victim was examined after 7 days of the assault, still, the attempt of sexual intercourse could not be ruled out. The Doctor further found that there was no fresh injury over the perineum and hymen was intact. 18. Therefore, in view of the above evidence of P.W.4, it is obvious that there was no actual sexual intercourse or at least penetration. If there was penetration, the medical evidence could have definitely shown the symptoms of tearing of hymen and injury over the perineum. Since no such symptoms were found, the Doctor had categorically opined that there was no sexual intercourse, however, an attempt to have sexual intercourse could not be ruled out. 19. In this connection, it is also to be noticed that P.W.3 also stated that she felt pain, which again strengthens the view expressed by P.W.4, the Doctor. Pain could always be caused because of an attempt to penetrate. P.W.3 also did not state that there was penetration. Of course, a girl of 9 years old may not, in all cases, be able to tell about what is all about penetration. 20. Pain could always be caused because of an attempt to penetrate. P.W.3 also did not state that there was penetration. Of course, a girl of 9 years old may not, in all cases, be able to tell about what is all about penetration. 20. However, having regard to the totality of the circumstances, particularly the evidence of P.W.3 and the evidence of P.W.4, coupled with the evidence of P.W.1, it could be seen that there was a definite intention on the part of the accused to have sexual intercourse with P.W.3, his own daughter, which was absolutely visible. The factum of preparation of the accused by applying groundnut oil to himself and to the victim before resorting to sexual intercourse is another indicating factor to show that the accused had clear intention to commit sexual assault against P.W.3, his own daughter. But, fortunately, because of the arrival of P.W.1, his wife, on time, the actual act of sexual intercourse or penetration was obviated. Otherwise, the sexual assault could have been committed. There is absolutely no doubt to disbelieve the categorical statements made by P.W.1 and P.W.3, coupled with the evidence of P.W.4, the Doctor. 21. The evidence of P.W.2, which is only to the effect of taking P.W.1 to Falaknuma Police Station in order to lodge Ex.P-1 report, and other witnesses is not very much relevant for the purpose of the present case, inasmuch as, the same is not capable of throwing any light on the incident, nor the same is useful to the case of either the prosecution or the defence. 22. Therefore, we are of the categorical view that there was no actual and complete sexual intercourse or even penetration. But, as stated by P.W.3-victim girl that she felt pain and as deposed by P.W.4-Doctor that there were no specific indications as regards the sexual assault and that the possibility of attempting to sexual intercourse could not be ruled out, we have no hesitation to hold that there was a clear and definite attempt by the accused against his own daughter P.W.3 to commit sexual assault. 23. In view of the above, the conviction and sentence recorded against the accused for the offence punishable under Section 376 (2) (f) are liable to be set aside. 24. The next question that falls for consideration before this Court is for what offence the accused has to be convicted? 25. 23. In view of the above, the conviction and sentence recorded against the accused for the offence punishable under Section 376 (2) (f) are liable to be set aside. 24. The next question that falls for consideration before this Court is for what offence the accused has to be convicted? 25. The answer is readily available under Section 376 (2) (f) read with Section 511 I.P.C., which deals with the punishment for attempting to commit offences punishable with imprisonment for life or other imprisonment. 26. The consequential question that follows is what is the sentence that could be awarded to the accused. 27. Here, it is apposite to extract Section 511 I.P.C., and the classification thereof, which reads as under: "511.Punishment for attempting to commit offences punishable with imprisonment for life or other imprisonment:- 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 attempt 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. Illustrations (a).................. (b).................. CLASSIFICATION OF OFFENCE Punishment-Imprisonment for life or imprisonment not exceeding half of the longest term provided for the offence, or fine, or both-According as the offence is cognizable or non-cognizable-According as the offence attempted by the offender is bailable or not-Triable by the court by which the offence attempted is triable-Non-compoundable." 28. A reading of Section 511 I.P.C., and the classification thereof raises another doubt, inasmuch as, the maximum punishment for the offence under Section 376 (2) (f) I.P.C., is imprisonment for life and the minimum punishment is shall not be less than 10 years imprisonment and may also extend to life. 29. Now, it is essential to comprehend what is meant by "imprisonment for life"? 30. 29. Now, it is essential to comprehend what is meant by "imprisonment for life"? 30. In this regard, it is relevant to refer Section 57 I.P.C., which reads as under: "57.Fractions of terms of punishment:- In calculating fractions of terms of punishment, imprisonment for life shall be reckoned as equivalent to imprisonment for twenty years." 31. From the above, it is obvious that for the purpose of calculation, the 'life imprisonment' can be reckoned as equivalent to 'imprisonment for twenty years'. 32. Taking the above provision into consideration, we feel it appropriate to sentence the accused to undergo half of the imprisonment for life as envisaged under Section 57 I.P.C. In which event, half of 20 years imprisonment comes to 10 years imprisonment. As a matter of fact, the punishment of imprisonment for 20 years prescribed under Section 57 I.P.C., in a way, can be understood as notional fixation for the limited purpose of computation. Therefore, taking the same into consideration, we feel it appropriate to impose half of the punishment as envisaged under Section 511 I.P.C., which comes to imprisonment for a period of 10 years. 33. For the foregoing, the judgment of the Court below convicting and sentencing the accused for the offence punishable under Section 376 (2) (f) I.P.C., is liable to be set aside and the accused is liable for the offence punishable under Section 376 (2) (f) read with Section 511 I.P.C. 34. In the result, the Criminal Appeal is allowed in part, setting aside the judgment of conviction and sentence, dated 15-09-2005, in Sessions Case No.326 of 2004, passed by the III Additional District and Sessions Judge (Fast Track Court), Nizamabad, acquitting the accused for the offence punishable under Section 376 (2) (f) I.P.C., however, convicting him for the offence punishable under Section 376 (2) (f) read with Section 511 I.P.C., and sentencing him to undergo rigorous imprisonment for 10 (ten) years, computing the period of imprisonment in terms of Section 57 I.P.C. The fine amount imposed by the Court below shall remain unaltered. 35. The period of remand undergone by the accused during investigation, trial and after conviction shall be given set off under section 428 Cr.P.C.