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2010 DIGILAW 1073 (MP)

Lal Singh v. State of Madhya Pradesh

2010-10-22

N.K.GUPTA

body2010
JUDGMENT N.K. Gupta, J. 1. This criminal appeal is filed by the Appellant being aggrieved by the judgment, finding and sentence dated 29/11/2008 passed by the Sessions Judge, Bhopal in ST No. 453/2008 whereby the Appellant was convicted for commission of offence punishable under Section 376 read with Section 511 of IPC and sentenced to rigorous imprisonment for five years with fine of Rs. 5,000/-, in default of payment of fine amount, an additional RI for six months. 2. Prosecution case, in short, is that on 4/7/2008 at about 3:00 PM in the noon when prosecutrix (PW-1), who was 9 years old girl was in her house at Rajiv Nagar, Bhopal, the Appellant-accused entered her house. At that time both of her brothers were playing outside with other boys. The Appellant-accused asked her to provide some vicks and requested her to rub the vicks on his forehead and then the Appellant-accused started sliding his hand on the person of the prosecutrix. Ultimately he removed the underwear of the prosecutrix and also removed his underwear and then he tried to penetrate, but he could not do it and ultimately he ejaculated by himself by his own hands. Due to his conduct, the underwear of the prosecutrix got with some spots of the semen etc. Thereafter the Appellant-accused left the house. After sometime Pratibha Singh (PW-2), mother of the prosecutrix came to the house and prosecutrix narrated the entire story to her mother, who had washed the clothes of the prosecutrix. She tried to search the Appellant-accused. The Appellant-accused was found in a Dal Mill where he was working. Pratibha Singh (PW-2) assaulted him by a stick and injured him. Thereafter she took Ramkumar, owner of the Dal Mill, with her to the Police Station Bairagarh, Bhopal where she lodged an FIR Ex.P-1 against the Appellant-accused. The police directed the prosecutrix for medical examination, but her mother Pratibha Singh refused to get the medical examination done on her daughter. After due investigation, a charge sheet was filed before the concerned committal Court for commission of offence under Section 376 read with Section 511 of IPC. 3. The Appellant-accused denied his guilt and plea was recorded by the learned Sessions Judge. He took the defence that he was falsely implicated, but he did not adduce any defence evidence. 4. After due investigation, a charge sheet was filed before the concerned committal Court for commission of offence under Section 376 read with Section 511 of IPC. 3. The Appellant-accused denied his guilt and plea was recorded by the learned Sessions Judge. He took the defence that he was falsely implicated, but he did not adduce any defence evidence. 4. On considering the evidence adduced by the parties, the learned Sessions Judge, Bhopal found the Appellant to be guilty for commission of offence punishable under Section 376 read with Section 511 of IPC and inflicted the aforesaid sentence. 5. I have heard the learned Counsel for the parties. 6. In the present case, there are only two points to be considered in this appeal. Firstly as to whether the prosecutrix and her mother are reliable to convict the Appellant-accused and secondly that the overt-act of the Appellant-accused whether comes under the purview of Section 376 read with Section 511 of IPC or not. 7. The prosecutrix (PW-1) and Pratibha Singh (PW-2) have narrated the entire story before the trial Court. Pratibha Singh (PW-2) had lodged an FIR Ex.P-1 on the same day after few hours. The delay caused in lodging the FIR is explained in the FIR itself that first of all Pratibha Singh searched the Appellant-accused and assaulted him by stick etc., then she informed Ramkumar, owner of the Dal Mill where the Appellant-accused was a worker. She took Ramkumar with her and lodged an FIR at Police Station Bairagarh, Bhopal, therefore, the delay caused in lodging the FIR has been properly explained, and hence FIR did not lose its value in the present case. 8. The prosecutrix is an innocent girl, who was nine years of age at the time of incident, though she was a child witness, still her narration shows that she was not so much tutored that she could tell a cooked story. She is telling a natural story what she observed at the time of incident. Conduct of Pratibha Singh (PW-2), mother of the prosecutrix is also natural. If any neighbour does such an act with the daughter of some one, then the reaction of that person, certainly will be the same, which was done by Pratibha Singh, mother of the prosecutrix. The Appellant-accused did not say that he was not assaulted by Pratibha Singh in the Dal Mill. If any neighbour does such an act with the daughter of some one, then the reaction of that person, certainly will be the same, which was done by Pratibha Singh, mother of the prosecutrix. The Appellant-accused did not say that he was not assaulted by Pratibha Singh in the Dal Mill. There is no enmity or rivalry proved by the Appellant-accused against Pratibha Singh. No reason is established from the side of the defence in cross examination of both the witnesses so that it could be presumed that there was a sufficient cause with Pratibha Singh, so that the Appellant-accused could be falsely implicated. 9. Learned Counsel for the Appellant submits that Pratibha Singh refused to get medical examination of her daughter and her conduct shows that the incident was imaginary, but such an argument of the learned Counsel for the Appellant cannot be accepted, since no penetration was alleged, and therefore if no injury was caused to the prosecutrix in the incident, there was no need of medical examination of the prosecutrix. In the circumstances, the evidence of the prosecutrix and her mother Pratibha Singh with corroboration of the FIR is believable, and therefore it is proved that it was the Appellant who committed such an act with the prosecutrix on the date of the incident. 10. The prosecutrix was the only eye-witness in the matter. She stated before the trial Court that initially the Appellant-accused asked her to press his head by hands, then he caught hold the hands of the prosecutrix and removed her underwear. Thereafter he lied down over the prosecutrix and tried to insert his penis in the vagina of the prosecutrix and due to his act ejaculation took place causing some spots on the clothes of the prosecutrix. Prosecutrix was a nine years old girl at the time of incident, who could be tutored by her mother for some small portion of incident. In this context, Pratibha Singh (PW-2) was confronted with the FIR Ex.P-1, in which it was stated that after removing underwear of the prosecutrix, the Appellant-accused also removed his underwear and tried to put his penis on the vagina of the prosecutrix, but on denial by the prosecutrix he got himself ejaculated by his own hands. In this context, Pratibha Singh (PW-2) was confronted with the FIR Ex.P-1, in which it was stated that after removing underwear of the prosecutrix, the Appellant-accused also removed his underwear and tried to put his penis on the vagina of the prosecutrix, but on denial by the prosecutrix he got himself ejaculated by his own hands. In the FIR, it is nowhere mentioned that the Appellant-accused lied down over the prosecutrix and rubbed his penis on the vagina of the prosecutrix, and therefore this portion of the evidence given by the prosecutrix should be considered to be an after thought. Thus, the overt-act of the Appellant-accused which is acceptable can be that he removed the underwear of the prosecutrix and also his own underwear, then he tried to put his penis on the vagina, but on refusal of the prosecutrix he did not put his penis on the vagina. 11. Act of the rape, attempt to commit rape and outrage the modesty of a woman are three different acts, with subtle variations they are to be proved according to the act of the culprit. If penetration is done, though it may be for a moment or a second, but an offence under Section 376 of IPC will be made out, whereas in case of an attempt to rape, it should be an attempt with an intention to commit 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 to rape. The point of distinction between an offence to commit rape and to commit indecent assault is that there should be some action on the part of the accused which would show that he was merely going to have sexual connection with her. In this context, the judgment of the Hon'ble Apex Court in the case of "Aman Kumar and Anr. v. State of Haryana" (2004) 4 SCC 379 , may be referred, in which it is laid down by the Hon'ble Apex Court as under: 11. In this context, the judgment of the Hon'ble Apex Court in the case of "Aman Kumar and Anr. v. State of Haryana" (2004) 4 SCC 379 , may be referred, in which it is laid down by the Hon'ble Apex Court as under: 11. 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 12. In the light of the aforesaid judgment, if the evidence of the present matter is considered, then it would be clear that the Appellant-accused did not put his penis on the vagina of the prosecutrix. The prosecutrix was 9 years old girl at the time of incident, and therefore the Appellant-accused not only could put his penis on the vagina, but could try to penetrate his penis into vagina, but on denial of th prosecutrix he did not try even to put his penis on the vagina and he performed ejaculation by his own hands, therefore the overt-act of the Appellant-accused does not come under the purview of attempt to commit rape and at the most it comes under the purview of Section 354 of IPC. Accordingly, the conviction of the Appellant-accused for commission of offence under Section 376 read with Section 511 of IPC deserves to be set aside, and the Appellant-accused should be guilty for commission of offence punishable under Section 354 of IPC. 13. So far as sentence is concerned, learned Counsel for the Appellant has submitted that at present the Appellant-accused is in custody since 29/11/2008, and therefore looking to the period of custody, the Appellant-accused may be inflicted for jail sentence for the period which he has already undergone. 13. So far as sentence is concerned, learned Counsel for the Appellant has submitted that at present the Appellant-accused is in custody since 29/11/2008, and therefore looking to the period of custody, the Appellant-accused may be inflicted for jail sentence for the period which he has already undergone. Learned Counsel for the Appellant has further submitted that the Appellant-accused is a poor worker of a Dal Mill, and therefore he could not deposit the fine amount, hence he may not be directed with fine amount as imposed by the learned Sessions Judge. 14. Looking to the facts and circumstances of the case, it appears that the Appellant-accused may be inflicted with rigorous imprisonment of one and half years and since he has already undergone for more than that period, therefore no further imprisonment may be inflicted upon him. Similarly looking to the financial condition of the Appellant-accused, if fine amount is maintained, then certainly he has to undergo the default sentence, whereas he has already undergone for a lengthy period in the custody. 15. In the result, the appeal of the Appellant-accused succeeds and is partly allowed. Conviction of the Appellant under Section 376 read with Section 511 of IPC recorded by the Court below is hereby set aside and he is acquitted from that charge. Instead of it, he is held guilty for offence under Section 354 of IPC for which he is inflicted with the jail sentence for the period which he has already undergone in the custody. In addition to the jail sentence, no fine is imposed on the Appellant-accused. 16. At present the Appellant is in custody, therefore he be released forthwith by issuing an appropriate warrant without any delay.