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Madhya Pradesh High Court · body

2010 DIGILAW 982 (MP)

Manoj v. State of M. P.

2010-09-24

S.L.KOCHAR

body2010
JUDGMENT S.L. Kochar, J. 1. The Appellant has preferred this appeal against the impugned judgment dated 6.5.2010 passed in Special Case No. 53/08 by learned Special Judge under Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, Ujjain (M.P.), whereby convicted the Appellant under Section 376/511 of the Indian Penal Code (for short "the IPC"), sentenced to RI for 10 years with fine of Rs. 10,000/-. In default of payment of fine, he shall suffer additional imprisonment for three months. 2. According to the prosecution case, prosecutrix (P.W.-2) aged 7 year belongs to Scheduled Caste community (Chamar), was residing with her parents in front of the house of Appellant and she was going to the Appellant's house for tuition. On 14.3.2008 at 9 a.m. prosecutrix had gone for taking tuition to the house of Appellant; where one Rohit was also present, to whom Appellant directed to go out and took the prosecutrix behind the cot and boxes. Appellant removed her as well as his underwear, thereafter laid down on the prosecutrix. Because of cry raised by prosecutrix, Appellant stood up and made her to wear underwear. Prosecutrix went to her house and on inquiry reported the incident to her mother (P.W.-3) Rupa Bai. Incident was also disclosed to her father (P.W.-4) Peerulal. They called maternal uncle Mayaram, who was residing in other locality, thereafter on the next day in the night at 10.30 p.m. lodged the report (Ex.P/2) in the police station. Prosecutrix was medically examined by P.W.-1 Dr. Aabha Chethaliya. Her MLC report is Ex.P/1. P.W.-5 Dr. Anil Bhargav, after taking x-ray, gave ossification test report (Ex.P/3). Investigating officer prepared the spot map (Ex.P/10) and seized slides of the vaginal swabs of the prosecutrix and her underwear. Seized articles were sent to Forensic Science Laboratory and its report is Ex. CI. The investigating officer recorded the statements of the prosecution witnesses, who were acquainted with the facts of the case and on completion of investigation, filed the charge sheet against the Appellant for the offence under Section 376/511 of "the IPC". 3. Appellant denied the charges and his defence was of false implication on account of inimical term with the family of the prosecutrix. He has not examined any witness in defence. Learned trial Court finding the Appellant guilty, convicted and sentenced him as indicated herein-above. 4. 3. Appellant denied the charges and his defence was of false implication on account of inimical term with the family of the prosecutrix. He has not examined any witness in defence. Learned trial Court finding the Appellant guilty, convicted and sentenced him as indicated herein-above. 4. Learned Counsel for the Appellant has submitted that there is sufficient material to establish that the Appellant has been falsely implicated, the FIR was lodged after 26 hours and for this delay no reasonable and plausible explanation has been given. Before the medical expert, only disclosure was made out for molestation and not for attempt to commit rape, which is clear from MLC report of the prosecutrix (Ex.P/1) proved by P.W.-1 Dr. Aabha Chethaliya, who has also deposed this fact in her statement that prosecutrix and her father P.W.-4 Peerulal have deposed that before lodging the report underwear was already washed off. Peerulal (P.W.-4) has also deposed that he has not seen the underwear and his wife P.W.-3 Rupa Bai has disclosed that underwear was washed off by prosecutrix. He has also admitted that on the date of incident his wife Rupa Bai did not inform him or disclose about the incident, and there is contradiction in his previous statement (Ex.D/2) about the place; where he was informed. Father Peerulal (P.W.-4) has denied A to A part of Ex.D/2 that he was informed by his wife in the field. Learned Counsel has also pointed out from the statement of the prosecutrix in paragraph-13, wherein she has admitted that she and her family members were not allowed to enter in kitchen of the Appellant and they were also not allowing them to touch their utensils, and there was quarrel between her mother and mother of the Appellant on account of touching of the utensils and this quarrel took place before 10 days of lodging of the report. In the said quarrel mother of the Appellant had filthily abused to the mother of the prosecutrix and Appellant had also abused her mother. Learned Counsel has also pointed out that when underwear was washed off, as to how in FSL report human spermatozoa could be available. This shows that a false case has been concocted by the complainant party with the help of police. The seized underwear was not produced in the Court and marked as article. Learned Counsel has also pointed out that when underwear was washed off, as to how in FSL report human spermatozoa could be available. This shows that a false case has been concocted by the complainant party with the help of police. The seized underwear was not produced in the Court and marked as article. It was also not got identified by the prosecutrix and her mother in the Court, therefore, according to learned Counsel the evidence of seizure of underwear and presence of human spermatozoa in FSL report Ex. C1, is of no consequence. The second student, who was taking tuition named Rohit to whom Appellant asked to go out, has not been examined by the prosecution, and that medical report as well as evidence of medical expert is not supporting the case of attempt to commit rape. It is also argued that because of inimical term and quarrel just before few days of the alleged incident, Appellant has been falsely implicated with a view to take revenge as well as to take benefit of the provision of compensation. The mother of the prosecutrix (P.W.-3) Rupa Bai has admitted about receiving of Cheque amount of Rs. 25,000/- from the Welfare Department on account of this case. 5. In alternative, learned Counsel has also submitted that even if entire prosecution case is accepted, offence at the most under Section 354 of "the IPC" would be made out. 6. On the other hand, learned Counsel for the State has supported the impugned judgment and finding arrived at by learned trial Court. 7. Having heard the learned Counsel for the parties and on perusal of the entire record, this Court is of the view that it is not believable that for wrecking vengeance or compensation any father and mother put into stake chastity and career of their minor daughter, therefore, this Court does not find any substance in the argument of false implication. However, looking to the statement of the prosecutrix, it is clear that she has nowhere stated that Appellant tried to penetrate or insert his male organ into her. Merely removal of underwear and laid down on the prosecutrix, would not be sufficient to hold that Appellant attempted to commit rape, punishable under Section 376 read with Section 511 of "the IPC". Supreme Court has discussed this issue in detail in case of Aman Kumar and Anr. Merely removal of underwear and laid down on the prosecutrix, would not be sufficient to hold that Appellant attempted to commit rape, punishable under Section 376 read with Section 511 of "the IPC". Supreme Court has discussed this issue in detail in case of Aman Kumar and Anr. v. State of Haryana [2004 SCC 1266] and Premiya alias Prem Prakash v. State of Rajasthan [ AIR 2009 SC 351 ]. In case of Aman Kumar (supra) in paragraph 9 the Supreme Court has held as under: A culprit first intends to commit the offence, then makes preparation for committing it and thereafter attempts to commit the offence. If the attempt succeeds, he has committed the offence; if it fails due to reason beyond his control, he is said to have attempted to commit the offence. Attempt to commit an offence can be said to begin when the preparation are complete and the culprit commences to do something with the intention of committing the offence and which is a step towards the commission of the offence. The moment he commences to do an act with the necessary intention, he commences his attempt to commit the offence. The word "attempt" is not itself identified, and must, therefore, be taken in its ordinary meaning. This is exactly what the provisions of Section 511 require. An attempt to commit a crime is to be distinguished from an intention to commit it; and from preparation made for its commission. Mere intention to commit an offence, not followed by any act, cannot constitute an offence. The will is not to be taken for the deed unless there be some external act which shows that progress has been made in the direction of it, or towards maturing and effecting it. Intention is the direction of conduct towards the object chosen upon considering the motives which suggest the choice. Preparation consists in devising or arranging the means or measures necessary for the commission of the offence. It differs widely from attempt which is the direct movement towards the commission after preparation are made. Preparation to commit an offence is punishable only when the preparation is to commit offences under Section 122 (waging war against the Government of India) and Section 399 (preparation to commit dacoity). It differs widely from attempt which is the direct movement towards the commission after preparation are made. Preparation to commit an offence is punishable only when the preparation is to commit offences under Section 122 (waging war against the Government of India) and Section 399 (preparation to commit dacoity). The dividing line between a mere preparation and an attempt is sometimes thin and has to be decided on the facts of each case. There is a greater degree of determination in attempt as compared with preparation. 8. In view of the aforesaid observation of the Supreme Court, in the instant case there is no evidence that Appellant attempted to penetrate or insert or put inside, partial or full, his male organ into her. Therefore, the Appellant at the most would be liable for molesting the modesty of the prosecutrix, punishable under Section 354 of "the IPC". 9. Learned Counsel for the Appellant has submitted that Appellant is a first offender and young-lad aged 22 years, therefore, he may be sentenced to the period already undergone (4 month and 19 days) with fine of Rs. 10,000/-, as imposed by the trial Court. 10. Learned Counsel for the State has no serious objection on the question of sentence. 11. Having heard the learned Counsel for the parties on the question of sentence, this Court is of the view that ends of justice would be served to sentence the Appellant, who is a young person aged 22 years and teacher by occupation, to the period already undergone (4 month and 19 days) with fine of Rs. 10,000/-. It is pertinent to mention here that for the offence punishable under Section 354 of "the IPC", jail sentence is not mandatory. Out of fine amount, Rs. 7,000/- be paid as compensation to the parents of the prosecutrix. 12. In the result, this appeal is allowed in part on the term indicated herein-above. 13. Learned trial Court is directed to release the Appellant forthwith upon his depositing fine amount, if not wanted in any other criminal case. 14. Office is directed to send the copy of this judgment along with the record of the trial Court, to the trial Court immediately.