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2009 DIGILAW 2680 (ALL)

RAJENDRA v. STATE OF U. P.

2009-07-28

SHRI KANT TRIPATHI

body2009
JUDGMENT Hon’ble Shri Kant Tripathi, J.—The appellant Rajendra has preferred this appeal against the impugned judgment and order dated 16.10.2006 rendered by Smt. Niraja Singh, Additional Sessions Judge, Fast Track Court No. 17, Bulandshahar in Sessions Trial No. 157 of 2004, whereby the learned Additional Sessions Judge has convicted and sentenced the appellant under Section 376 read with Section 511, IPC to undergo rigorous imprisonment of ten years and also to pay a fine of Rs. 2,000/- and in default of payment of fine to undergo a further rigorous imprisonment of two months. 2. It is a case of attempt to commit the offence of rape on a minor girl of four years. It is alleged that on 16.10.2003, at about 1.00 p.m., the complainant Raj Kumar, who is the father of the prosecutrix, got information from the witness Yunus that the appellant was seen by him sleeping in the naked condition on the prosecutrix, who was also made naked. On hearing this information, the complainant Raj Kumar and his wife Kusma went to the place of occurrence and witnessed the occurrence. They noticed that the appellant was attempting to commit rape on the prosecutrix. The appellant was arrested on spot. He was taken to the concerned police station, where the complainant handed over the FIR of the occurrence, on which basis the police registered the case for investigation. The prosecutrix was then referred to PW-4 Dr. Sunita Kashyap, who medically examined the prosecutrix on 16.10.2003 itself. No external injury on any part of the body of the prosecutrix including the private part was noticed by the doctor. Hymen was found intact. There was no bleeding. 3. The Investigating Officer, after making usual investigation, filed charge-sheet against the appellant. 4. The learned trial Judge framed the charge under Section 376 read with Section 511, IPC, against the appellant, who denied the charge and claimed to be tried. 5. The prosecution examined as many as 5 witnesses in support of its case. 6. PW-1 Ram Kumar is the complainant of this case and is also the father of the prosecutrix. He has proved the FIR Ex. Ka-1 and has supported the prosecution story as an eye-witness of the occurrence. PW-2 Kusma is the mother of the prosecutrix and the wife of the complainant. She has also supported the prosecution story and had given eye-witness account of the occurrence. He has proved the FIR Ex. Ka-1 and has supported the prosecution story as an eye-witness of the occurrence. PW-2 Kusma is the mother of the prosecutrix and the wife of the complainant. She has also supported the prosecution story and had given eye-witness account of the occurrence. PW-3 Preetam Singh was posted as Head Moharrir at the police station concerned. He has given evidence of formal in nature and has proved the chik report Ex. Ka-2 and copy of the G.D. Ex-3. PW-4 Dr. Sunita Kashyap had medically examined the prosecutrix and proved her report as well as the certificate issued by the Chief Medical Officer. According to this witness, the prosecutrix was aged about 3-4 years. PW-5 Sub Inspector P.C. Bharti had investigated the instant case. He has proved the site plan Ex. Ka-7 and the charge-sheet as Ex. Ka-8. 7. The appellant was examined under Section 313, Cr.P.C. He has stated that the prosecution evidence was false. The complainant had pressed him to transfer his house in his favour and when he denied to do so, the instant case was concocted. 8. I have heard the learned counsel for the appellant and learned AGA for the State and perused the record. 9. Admittedly, it is a case of an attempt to commit rape on the prosecutrix, who was a minor girl of 3-4 years on the date of occurrence. It is nobody’s case that the prosecutrix was subjected to rape. The story of attempt to commit rape on the prosecutrix has been fully established by the witnesses PW-1 Ram Kumar and his wife PW-2 Kusma. Nothing material could be brought on record to discredit their testimonies. Both of them have proved that the appellant had made the prosecutrix naked and had also himself became naked and then put up himself in the naked condition on the prosecutrix and was, thus, attempting to commit rape on her. 10. The learned counsel for the appellant submitted that the act of the appellant was merely an offence under Section 354, IPC. In my opinion, this submission has no substance. 10. The learned counsel for the appellant submitted that the act of the appellant was merely an offence under Section 354, IPC. In my opinion, this submission has no substance. The manner in which the appellant made the prosecutrix in the naked condition and also became himself naked and put up himself in the naked condition on the prosecutrix clearly supports the contention that it was an attempt to commit rape on the prosecutrix and was not mere an act to outrage the modesty of the prosecutrix. During the course of hearing, the learned counsel for the appellant ultimately conceded that the act of the appellant, as proved by the witnesses PW-1 Ram Kumar and PW-2 Smt. Kusma, was nothing except the act of making an attempt to commit rape on the prosecutrix. The learned counsel for the appellant, therefore, submitted that a lenient view should be taken in regard to the quantum of punishment. The appellant, who is a blind person, is lying in jail from the date of the occurrence and has almost completed five years in the prison, both as under trial and also as a convict. In view of this factual aspect of the matter, it was submitted that the sentence of ten years is very excessive and unreasonable under Section 376 read with Section 511, IPC. In my opinion, the submission of the learned counsel for the appellant in regard to the quantum of punishment has substance. In the cases of attempt to commit an offence, the punishment that can be imposed, may be one half of the longest term of the imprisonment provided for the actual commission of the offence. The punishment provided for the offence of rape may be for life or for a term which may extend to ten years but the same shall not be less than 7 years. According to the proviso to sub-section (1) of Section 376, IPC, the Court may, for adequate and special reasons, impose a sentence of imprisonment for a term of less than 7 years. In regard to the offence of attempt to commit rape, as per the provisions of Section 511, IPC, the maximum sentence that can be imposed shall be one half of the punishment provided for the offence of rape. 11. In regard to the offence of attempt to commit rape, as per the provisions of Section 511, IPC, the maximum sentence that can be imposed shall be one half of the punishment provided for the offence of rape. 11. Keeping in view the facts and the circumstances of the case, the submissions of the learned counsel for the appellant and the fact that the appellant is a blind person and is in jail since 16.10.2003, I consider it just and expedient to reduce the sentence from ten years’ rigorous imprisonment to five years’ rigorous imprisonment. 12. The appeal is, therefore, dismissed so far as the appellant’s conviction under Section 376 read with Section 511, IPC is concerned. However, the sentence of ten years’ rigorous imprisonment imposed on the appellant is reduced to five years rigorous imprisonment but the sentence of fine is maintained. The impugned judgment and order will stand modified accordingly. 13. Let a copy of this order be sent forthwith to the learned trial Court for compliance. ————