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2012 DIGILAW 2069 (RAJ)

State of Rajasthan v. Mohd. Aslam

2012-10-03

SANDEEP MEHTA

body2012
JUDGMENT 1. - The instant appeal has been preferred by the State of Rajasthan against the judgment dated 15.7.2000 passed by the learned Additional Sessions Judge No.2, Chittorgarh in Sessions Case No.13/2000, whereby the learned trial Judge whilst acquitting the respondent from the charge under Section 376(2) r/w Section 511 IPC, convicted the respondent for the offence under Section 354 IPC and sentenced him to the period of imprisonment already undergone by him. 2. Succinctly stated the facts of the case are that one Shanker Lal Punjabi filed a report at the Police Station Rawatbhata on 23.11.1999 alleging interalia that his daughter Mst.'P' aged 3 years was playing outside their house at about 8:15 in the morning. At that time, the respondent Mohd.Aslam, who is a resident of Bihar took the child away and concealed her in his room and then tried to commit rape upon her after removing her undergarments. On the basis of the said report, a case being FIR No.289/99 was registered for the offences under Sections 376/511 IPC and investigation commenced. A charge-sheet was filed against the respondent for the offence under Section 376(2) read with Section 511 IPC. The case was committed to the court of learned Additional Sessions judge No.2, Chittorgarh, where charge was framed against the respondent for the aforesaid offence. The respondent pleaded not guilty and claimed trial. At the trial, the prosecution examined as many as 8 witnesses in support of its case. The accused respondent in his statement recorded under Section 313 Cr.P.C. denied the allegations of the prosecution and submitted that there was a quarrel between him and the neighbours and therefore, he had been falsely implicated in the case. At the conclusion of the trial, the trial Judge proceeded to hold that there was no evidence on the record to show that the petitioner had attempted to commit rape upon the child. The trial Judge referred to the medical examination report of the girl, wherein no marks of injury etc. were revealed. At the conclusion of the trial, the trial Judge proceeded to hold that there was no evidence on the record to show that the petitioner had attempted to commit rape upon the child. The trial Judge referred to the medical examination report of the girl, wherein no marks of injury etc. were revealed. The trial Judge also considered the fact that the case of the complainant that the accused had attempted to commit rape upon the child did not inspire confidence because the allegation regarding the accused having applied some lubricant on the private parts of the girl remained unsubstantiated from the evidence of P.W.3 Bhagwati Prasad, P.W.4 Sangeeta, P.W.5 Neelam the mother of the girl and P.W.6 Shanker Lal. Accordingly, the trial Judge held that the accused had opened the undergarment of the child but there was no evidence led by the prosecution to show that the accused had actually attempted to commit forcible intercourse with her and therefore, the trial Judge proceeded to hold the respondent guilty for the offence under Section 354 IPC and sentenced him to the period already undergone by him. The accused till his conviction had remained in custody for a period of about 9 months i.e. from 23.11.1999. 3. Now the State has preferred the instant appeal challenging the acquittal of the respondent from the charge under Section 376 IPC read with Section 511 IPC. 4. Learned Public Prosecutor states that the very circumstance that the accused concealed the child and then opened her undergarment is sufficient for coming to a conclusion that the accused attempted to commit rape with her. He submits that the evidence of the mother and father of the girl namely P.W.5 Neelam and P.W.6 Shanker Lal as well as the witness Bhagwati Prasad P.W.3 was sufficient to give rise to the presumption that the accused attempted to commit rape upon the girl. He, therefore, prayed that the appeal filed by the State challenging the acquittal of the respondent from the charge under Section 376/511 IPC is fit to be accepted and the accused deserves to be sentenced for the said offence. 5. Per contra Shri Farzand Ali, learned counsel for the respondent submitted that from the evidence as recorded in the trial the only fact which can be concluded is that the accused took the child in his room and opened her undergarment. 5. Per contra Shri Farzand Ali, learned counsel for the respondent submitted that from the evidence as recorded in the trial the only fact which can be concluded is that the accused took the child in his room and opened her undergarment. He submits that there is no other evidence on the record to show that the accused made any attempt to commit rape upon the child. He submits that the statements of all the three witnesses is only to the effect that the respondent took the child into his room and then when the door was knocked he opened the door and the undergarment of the child had been removed and was lying on the floor. He submits that none of the witnesses has stated that the accused had removed his own cloths and thus, there can be no reason to believe that the accused intended or attempted to commit rape upon the child. Learned counsel submits that merely by this evidence, the only inference, which can be drawn is that the accused tried to outrage the modesty of the child but the contention of the learned Public Prosecutor that the accused attempted to commit rape upon her cannot be accepted. 6. Having regard to the facts and circumstances of the case and upon a consideration of the arguments advanced at the bar and after going through the record, it is apparent that the statement of the witnesses P.W.3 Bhagwati Prasad, P.W.5 Neelam and P.W.6 Shanker Lal and the doctor P.W.7 do not inspire confidence in the mind of this Court for holding that the accused made any attempt to commit rape upon the girl. The reasoning of the learned Public Prosecutor in support of the arguments is based on the assumption that the accused applied some lubricant on the private parts of the girl. However, no evidence of lubricant having been applied has been found on the medical examination of the girl. None of the witnesses have stated that when the door of the room was opened by the accused, at that time, the accused was in an undressed state. However, no evidence of lubricant having been applied has been found on the medical examination of the girl. None of the witnesses have stated that when the door of the room was opened by the accused, at that time, the accused was in an undressed state. The doctor P.W.7 has stated that no injury or marks of violence whatsoever were found on the private parts of the child, therefore, at best the prosecution story discloses a case of outraging the modesty of the girl against the accused but by no stretch of imagination, the act can be said to be extending to be an attempt to commit rape. At best the act can be said to be at the stage of preparation. Hence, the acquittal of the respondent from the charge for the graver offence under Section 376/511 IPC does not call for any interference. 7. This Court is however of opinion that the sentence, which has been awarded by the trial Court to the respondent for the offence under Section 354 IPC is absolutely inappropriate and insufficient looking to the nature of the act alleged against the respondent. Apparently, the respondent concealed the child in his room and opened her undergarment and outraged her modesty. As such, the act of the accused was extremely heinous in nature and there was no cause for awarding of the meagre sentence of 9 months only to the respondent for the offence under Section 354 IPC. 8. Therefore, the appeal filed by the State is deserves to be accepted on the question of sentence but does not deserve acceptance on the question of nature of the offence. 9. It may be mentioned here that in the instant appeal, the accused was summoned through a warrant of arrest and he is in custody from 17.1.2012. 10. Resultantly, the appeal is partly allowed and whilst upholding the acquittal of the respondent from the charge under Section 376/511 IPC and while upholding his conviction for the offence under Section 354 IPC, the sentence awarded to the respondent for the offence under Section 354 IPC is enhanced to a period of one year and six months. He shall be entitled to the benefit under Section 428 Cr.P.C.Appeal partly allowed. *******