Research › Search › Judgment

Himachal Pradesh High Court · body

2013 DIGILAW 786 (HP)

Arun Kumar v. State of H. P.

2013-09-02

DEV DARSHAN SUD, DHARAM CHAND CHAUDHARY

body2013
JUDGMENT Dev Darshan Sud, J.(oral) The appellant has challenged his conviction under Sections 376, 342 and 506 of the Indian Penal Code (hereinafter in short ‘IPC’) as under:- Offence Sentence Under Section 376 IPC Toundergo rigorous imprisonment for ten years and fine of ‘ 20,000/- and in default of non-payment of fine, further undergo rigorous imprisonment for two years. Under Section 342 IPC To undergo rigorous imprisonment for one year and fine of ‘ 1000/- and in default to further undergo simple imprisonment for two months. Under Section 506 IPC Imprisonment for two years and fine of ‘ 2000/- and in default further undergo simple imprisonment for two months. 2.The prosecution case, in brief, is that on 8.6.2006 PW7 Piar Dai, mother of the prosecutrix, reported to the police that her daughter had been raped. FIR Ext.PW7/A was registered. PW7 Piar Dai stated that she was working with a contractor in the hospital at Dehra, as Safai Karamchari and her husband was working as labourer. She had one son and two daughters. Her elder daughter (the prosecutrix) was aged 12 years, was studying in the seventh class and her son in the fourth class. She stated that on 8.6.2006 at around 7.30 AM she left for work and when she returned home in the evening at around 6 PM, she found that her daughter was weeping and on inquiry disclosed that at around 7.45 AM in the morning when she was going to school, Sanjay Kumar, son of Nanak Chand, resident of Dadlehd met her near forest at Khabli. He forcibly lifted her, carried her to the forest and tore her shirt and opened her salwar forcibly. She was pushed to the ground and he committed rape with her. When the complainant/mother of the prosecutrix examined her, she observed that her daughter had in fact been raped, she reported the matter to the police. The victim was medically examined by PW2 Dr. Sunita Kanwal who opined that there is possibility of sexual intercourse but final opinion would be given after the report of the chemical analyst. On receiving the report, she reaffirms her tentative findings. It is her evidence which would assume importance as it is not in concord with that of the statement of the prosecutrix. Dr. Kanwar PW2 states in her evidence that: “Her secondary sexual character not appeared and her manarcheic had not attained yet. On receiving the report, she reaffirms her tentative findings. It is her evidence which would assume importance as it is not in concord with that of the statement of the prosecutrix. Dr. Kanwar PW2 states in her evidence that: “Her secondary sexual character not appeared and her manarcheic had not attained yet. There was multiple abrasion over right iliac crest size is3 cm length and 2 cm violet in colour. There was contusion at the back of the lower chest on left side. Colour was blue and the size was 2 cm in length and 1 cm in breadth. Both breasts were normal and no injury or tooth mark over cheeks or on lips. Examination of perineum Labia minora and labia majora were normale and according to Kiran and her mother the part had been washed by them. There was no blood stain or other stains over perineum and perineal region. There was swelling, redness and tenderness over clitoris and around the hymen. Hymen was normal and not torn and one finger examination could not done. Three vaginal swabs were taken, kept in a vial and sealed. The vaginal slides were not prepared. Her salwar which was white in colour packed in a bag and sealed. Samples were handed over to the lady constable along with sample of seal of Civil Hospital Dehra and forwarding letter to Chemical Analysis.” 3.Now we advert to the evidence of the prosecutrix, who has appeared as PW6. She was aged 12 years and questioned by the learned court to ascertain as to whether she comprehended the meaning of oath. She was certified as a person who could comprehend what was being asked. She states that that she was studying in class 7th . On 8.6.2006 she was going to school at Khabil. The school hours were 8 AM to 2 PM. At around 7.45 AM accused Babloo met her on the way. She described the full name of the accused as Arun. She states that the accused caught her arm and asked her to accompany him to the forest and when she refused to do so, he slapped her and dragged her to the forest. He asked her to open her clothes and when she refused, he forcibly removed undressed her. He then removed his pant and committed sexual intercourse with her. She states that the accused caught her arm and asked her to accompany him to the forest and when she refused to do so, he slapped her and dragged her to the forest. He asked her to open her clothes and when she refused, he forcibly removed undressed her. He then removed his pant and committed sexual intercourse with her. She says that she felt pain and bleeding when the accused sexually assaulted her. She raised a hue and cry and the accused disappeared thereafter and she went home. Her parents used to come home late as her father was working as a labrourer and mother as a Safai Karamchari in the hospital. She disclosed the incident to her mother. The accused was working in a welding shop near the school and thus she was acquainted with him. She says that she accompanied the police and mother to the house of one Sanjay who was owner of the welding shop where the accused used to work. She identified the accused in Court as the same person who had committed rape on her. She was cross examined by the defence where she admits that she had disclosed the name of Sanjay to her mother. 4. PW7 Piar Dai corroborates the prosecutrix from the time when she reached home in the evening and thereafter the prosecutrix was taken for medical examination etc. We are not adverting to the other evidence of the prosecution because primarily the fact which has to be considered is as to whether offence under Section 376 IPC has been made out or not. It is this aspect which we will consider. 5. Adverting to the evidence of PW2 Dr. Sunita Kanwal, we find it very difficult to hold that the prosecutrix was in fact subjected to rape. We cannot persuade ourselves to hold that from the medical examination that the victim had in fact been raped by the accused. On going through the statement of the prosecutrix, we find that it is not corroborated by the medical evidence that blood etc. was found on the person or clothes of the prosecutrix and on this point the medical evidence contradicts her statement. To this extent we cannot accept the testimony of the prosecutrix. 6. On going through the statement of the prosecutrix, we find that it is not corroborated by the medical evidence that blood etc. was found on the person or clothes of the prosecutrix and on this point the medical evidence contradicts her statement. To this extent we cannot accept the testimony of the prosecutrix. 6. On the other aspect we are convinced that evidence on record proves that the accused had in fact taken the prosecutrix to a nearby forest where he attempted to rape her. He disrobed her, exposed himself and tried to commit rape, which would itself constitute an offence under Section 354 IPC. We find from the evidence, as discussed above, that though there is no rape, but the accused would be guilty of attempt to commit rape. In Madan Lal vs. State of J&K, (1997)7 SCC 677 the Supreme Court holds:- “8 there is no limitation on the part of the appellate court to review the evidence upon which an order of acquittal is founded. The different expressions used in different judgments of this Court to the effect that there must be “sufficient and compelling reasons” or “good and sufficiently cogent reasons” for the appellate court to alter an order of acquittal to one of conviction, by no manner curtail the power of an appellate court in an appeal against acquittal to review the entire evidence and come to its conclusion. But in doing so the appellate court should consider every matter on record and the reasons given by the trial court in support of the order of acquittal. The essence of several decisions of this Court is the rule that in deciding appeals against acquittal the court of appeal must examine the evidence in a particular case; must also examine the reasons on which the order of acquittal was based; and should interfere on being satisfied that the view taken by the acquitting Judge is unreasonable. If two views are possible on a set of evidence then the appellate court need not substitute its own view in preference to the view of the trial court who has recorded an order of acquittal. In other words, if an order of acquittal is based on proper appreciation of evidence then the same cannot be reversed. If two views are possible on a set of evidence then the appellate court need not substitute its own view in preference to the view of the trial court who has recorded an order of acquittal. In other words, if an order of acquittal is based on proper appreciation of evidence then the same cannot be reversed. But when the acquittal by the Sessions Judge is found to be against the evidence or in disregard of the evidence or in violation of the principles of criminal justice then the appellate court will be fully justified in interfering with an order of acquittal since it is the duty of the court to convict a person when the guilt is established beyond reasonable doubt. If the Sessions Judge acquits an accused by giving undue importance to minor discrepancies and taking a suspicious view of the evidence based on conjectures then the High Court will be fully justified in interfering with the order of acquittal. But all the same while reversing an order of acquittal the High Court must give sufficient grounds for holding that the appreciation of evidence by the trial court is unsupportable 12. The difference between preparation and an attempt to commit an offence consists chiefly in the greater degree of determination and what is necessary to prove for an offence of an attempt to commit rape has been committed is that the accused has gone beyond the stage of preparation. If an accused strips a girl naked and then making her lie flat on the ground undressed himself and then forcibly rubs his erected penis on the private parts of the girl but fails to penetrate the same into the vagina and on such rubbing ejaculates himself then it is difficult for us to hold that it was a case of merely assault under Section 354 IPC and not an attempt to commit rape under Section 376 read with Section 511 IPC. In the facts and circumstances of the present case, the offence of an attempt to commit rape by the accused has been clearly established and the High Court rightly convicted him under Section 376 read with Section 511 IPC.” (at pp.684 & 689) In State of Maharashtra vs. Rajendra Jawanmal Gandhi (1997)8 SCC 386 the Court holds:- “24. The circumstances show that the accused intended to commit rape on the girl. The circumstances show that the accused intended to commit rape on the girl. In the commission of that crime, he laid the girl on the seat in the Maruti car and then laid himself over her. He pulled down her knickers and also opened the zip of his pants and took out his male organ. He pressed his male organ on the private parts of the girl. But since he discharged, he could not penetrate and was unable to complete the offence of rape. However, it is clear that he did attempt to commit rape 35. In our opinion, therefore, the High Court after having come to the conclusion that the accused was guilty of an offence under Sections 376/511 of the IPC could not have convicted the accused for an offence under Section 354 IPC. Section 511 IPC provides punishment for attempting to commit offences punishable with imprisonment for life or other imprisonment. In this case since the girl was under 12 years of age and the Sessions Judge having found that offence of rape had been committed could not have awarded sentence of 7 years when the law prescribes minimum sentence of rigorous imprisonment for a term not less than 10 years, unless exceptional circumstances existed. However, we find that the State of the complainant did not come up in appeal in the High Court for enhancement of the sentence. Though there was no charge under Section 376 read with Section 511 IPC under Section 222 of the Code of Criminal Procedure when a person is charged for an offence he may be convicted of an attempt to commit such offence although the attempt is not separately charged. 36. Having come to the conclusion that the accused committed an offence under Sections 376/511 IPC, the question arises as to what sentence should be imposed upon him. It was submitted before us that the time when the offence was committed the accused had also a daughter of 8 years of age. If that be so, perversion of the mind of the accused does not appear to have any limit. It was submitted that a long time had elapsed since the offence was committed and that in terms of the judgment of the High Court the accused deposited Rs.40,000 out of which Rs. 25,000 had already been withdrawn by the father of the prosecutrix. It was submitted that a long time had elapsed since the offence was committed and that in terms of the judgment of the High Court the accused deposited Rs.40,000 out of which Rs. 25,000 had already been withdrawn by the father of the prosecutrix. It was submitted that if the Court came to the conclusion that the sentence had to be enhanced then amount of fine could be raised. We, however, do not think so. A heinous crime has been committed and the accused must suffer for the consequences. A rapist not only violates the victim’s personal integrity but leaves indelible marks on the very soul of the helpless female. The girl of 8 years must have undergone a traumatic experience. The question of imposition of sentence after lapse of 11 years of the offence troubled our mind a great deal. Keeping the objects of the amendment of IPC in view and the law as it exists today, the decisions of this Court referred to above on the question of sentence, the message is loud and clear that no person who commits or attempts to commit rape shall escape punishment.” (at pp.397, 402-403) 7. In these circumstances, we alter the judgment of learned trial Court and convict the accused for offence under Sections 354, 376 read with Section 511 and 342 IPC. We maintain the conviction under Section 342 IPC. We convict the accused for offence under Section 354 IPC and sentence him to undergo two years rigorous imprisonment and fine of Rs.25,000/-. For offence under Section 376/511 IPC we sentence the accused to five years rigorous imprisonment and fine of Rs. 50,000/-. We direct that the fine amount when deposited shall be paid to the victim. In case of non-payment of fine, the accused shall further undergo rigorous imprisonment for one year. Amount be deposited within six months from today. All the sentences shall run concurrently. The appellant shall be released from jail on the conclusion of sentences, if he is not wanted in any other case. Appeal stands disposed of.