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2021 DIGILAW 924 (JHR)

Baiju Ram Rawani v. State of Jharkhand

2021-11-01

NAVNEET KUMAR

body2021
JUDGMENT : This appeal is directed against the judgment of conviction dated 28.06.2003 and order of sentence dated 30.06.2003 passed by the Court of Additional District and Sessions Judge-IV, Dhanbad in S.T. Case No.313 of 2000, arising out of Putki P.S. Case No.83 of 2000 dated 10.07.2000, corresponding to G.R. No.2012 of 2000, whereby and where under, the learned court below has convicted the sole appellant for the offence punishable under Sections 376/511 of the IPC and further sentenced him to undergo rigorous imprisonment for five years. 2. Briefly stating the prosecution case as unveiled in the written application of the informant Chandrawati Devi addressed the officer in-charge of P.S. Putki, district-Dhanbad on 10.07.2000 is as under; The informant Chandrawati (PW-6) alleged in the said written application that on 7.07.2000 (Friday) at about 2.00 pm in the afternoon, she was cleaning wheat, when her daughter (victim, hereinafter referred as “victim”: name is withheld), aged about seven years came crying to her and told to her that Baiju Chacha (appellant) had called her to his house asking her to give a sum of Rs.5/- and after taking her away to his house, she forcefully laid her down on the floor and after undressing her garments, started committing rape with her, upon which she became restless and the stomach was aching, thereupon, she cried and asked him as to what was he doing to her and when she screamed loudly, Baiju Chacha left her. It was further disclosed by the informant that the said Baiju Chacha warned her daughter not to disclose this incident to anyone and thereafter her daughter came back to her house screamingly. The informant further stated in her written application that after taking the entire information from her daughter (victim), she disclosed all these facts to her neighbour Rajkalia Devi (PW-4) and Rajesh Thakur (PW-1) and she was advised by them that let her husband (father of the victim) came back to the village, who had gone on 3.07.2000 to his native house for four days. She further stated that today was the 10.07.2000 in the morning and when her husband did not come back, then she herself came to the police station and informed about the incident. It is further claimed by informant that Baiju Ram Rawani (appellant) took her daughter, aged seven years to his house and forcibly committed rape. She further stated that today was the 10.07.2000 in the morning and when her husband did not come back, then she herself came to the police station and informed about the incident. It is further claimed by informant that Baiju Ram Rawani (appellant) took her daughter, aged seven years to his house and forcibly committed rape. She also stated that father of Baiju Ram Rawani was working as a mechanic in a colliery. 3. On the basis of the aforesaid written application, a formal FIR was drawn by the Putki police station vide P.S. Case No.83 of 2000 dated 10.07.2000 for the offence punishable under Section 376 of the IPC and the investigation of this case commenced. After completion of the investigation, charge-sheet was submitted and the case was committed to the Court of Sessions and the learned Trial Court after framing the charge for the offence punishable under Section 376 of the IPC, concluded the trial and found the sole appellant guilty for the offences punishable under Sections 376/511 of the IPC and awarded the sentence for rigorous imprisonment for five years, which is under challenge in the form of this appeal. 4. Heard Sri Pankaj Kumar, appearing on behalf of the sole appellant and Mr. V.S. Sahay, learned counsel for the State. Arguments on behalf of the learned counsel for appellant 5. Assailing the impugned judgment of conviction and order of sentence, the defence counsel appearing on behalf of the appellant submitted that the impugned judgment suffers from infirmity, as apparent on face of it, the impugned judgment of conviction and order of sentence is based on wrong appreciation of the evidences and finding is totally misconceived and erroneous. Assailing the impugned judgment of conviction and order of sentence, the defence counsel appearing on behalf of the appellant submitted that the impugned judgment suffers from infirmity, as apparent on face of it, the impugned judgment of conviction and order of sentence is based on wrong appreciation of the evidences and finding is totally misconceived and erroneous. It has been pointed out by learned defence counsel that PW – 6 is the mother of the victim and informant in this case and she had stated in her deposition that she waited for about four days before instituting this case awaiting arrival of her husband (father of the victim), who had gone to his home village, but when he did not come back, then the case was instituted on 10.07.2000, although the incident had taken place on 03.07.2000 and as such, neither the father had come back nor he accompanied the informant, the mother of the victim( PW – 6) to the police station, nor the father of the victim has been examined and these facts are speaking a volume against the charges leveled against the accused-appellant, Further, it has been pointed out that the version of the victim, who has been examined as PW-7, who stated in para – 4 that the appellant had called her to his house and when she went there, the appellant had tried to strip her and when she was stripped, she started crying and thereupon, the appellant left her and this fact has been corroborated with the deposition of the doctor (PW – 5), who had examined the girl and did not find any external or internal injury and her hymen was intact. 4 Further it has been contended on behalf of Learned Defense Counsel that the version of this victim (PW – 7) in para – 4 has totally falsified the version of her mother (PW -6) about the commission of the offence of rape and the learned Trial Court below has committed gross error by upholding even a case of attempt of rape, because, it is not a case of attempt to rape at all , rather, it was a simple preparation and it was not even an attempt in order to constitute the offence punishable under Sections 376 read with S. 511 of the IPC and in support of his contention, learned defence counsel has relied upon the rulings of the Hon’ble Supreme Court in the case of Aman Kumar & Anr. Vs. State of Haryana, reported in (2004) 4 SCC 379 . It has further been contended on behalf of the appellant that the learned Trial Court has examined the witnesses in a complete prejudiced manner, so far as the defence of the appellant is concerned, in view of the fact that at the time of examination of the accused under Section 313 of the Cr.P.C., no evidence was placed before the appellant for attempt to commit rape, rather the evidence placed before him was related to the commission of offence of rape and therefore the accused appellant could not be examined properly as per the mandate of the law as per Section 313 of the Cr.P.C. Further, it has been pointed out by the learned defence counsel that the Court below has failed to consider that non-examination of the I.O. in this case has seriously caused prejudiced to the case of the appellant as there were material contradictions in the statement given by the victim (PW-7) and an adverse inference is against the prosecution but the trial court below failed to appreciate the evidences of the witnesses and contradictions, particularly between the vital witnesses, namely, the mother of the victim (PW-6) and victim (PW-7). Learned Trial Court has also not considered the rivalry between the father of the appellant and the father of the victim, because both were working in BCCL colliery and this has been brought into suggestions of PW-6 (mother of the victim) in para – 8 of the cross-examination. Learned Trial Court has also not considered the rivalry between the father of the appellant and the father of the victim, because both were working in BCCL colliery and this has been brought into suggestions of PW-6 (mother of the victim) in para – 8 of the cross-examination. Further, it has been pointed out by the learned defence counsel appearing on behalf of the appellant that PW – 7 (victim) in para-7, she stated that her statement was recorded on the date of occurrence, i.e. on 7.07.2000, but ironically, the FIR has been instituted on 10.07.2000 for the reason best known to the prosecution and thus, this major contradiction between the version of PW – 6 (mother of the victim) and PW – 7 (Victim) and further the contradiction in the age of the victim between the versions of P.W.6 mother and P.W.7 victim at one hand and on the other hand age indicated in the medical examination report totally demolished the case of prosecution and thus the impugned judgment of conviction and order of sentence is wholly bad in law and fit to be set-aside. Arguments on behalf of the learned counsel for the State 6. Learned APP appearing on behalf of the State on the other hand has vehemently opposed the contentions of the learned defence counsel appearing on behalf of the appellant. It has been alleged on behalf of the prosecution that the learned trial court has rightly appreciated the evidences available on record and particularly the depositions of the victim and her mother, as both are convincing and there is no legal point to interfere in the impugned judgment of conviction and order of sentence. Further it has been pointed out that in such cases, where the minor girl has been become the victim of an attempt to sexual assault, thus in the prevailing circumstances, it is quite natural to get delayed in instituting of the FIR and therefore the delay has been convincingly explained by the prosecution and therefore the defence taken on behalf of the appellant for delay in institution of the FIR is not sustainable. Further the minor contradictions between the depositions of PW-6 (mother of the victim) and PW -7 (Victim) does not shake the case of the prosecution, because the victim is minor and it is immaterial as to whether age of the victim is 7, 8 or 12 years and therefore the trial court below has rightly appreciated the evidences available on record and found the appellant guilty for the offences punishable under Sections 376 read with section 511 of the IPC, which deserves to be sustained. 7. Having heard learned counsel for the parties and perused the records. 8. There is force in the contentions raised on behalf of the learned APP appearing on behalf of the State. Seven witnesses have been examined on behalf of the prosecution. Learned Trial Court is found to have elaborately evaluated the evidences and as a consequence this court did not get a slightest infirmities in holding the guilt of the accused-appellant for the offence punishable under Sections 376/511 of IPC and thus this court does not find any justification to interfere in the impugned judgment of conviction and finding the guilt of the accused appellant for the offences punishable under Sections 376 / 511 of IPC. 9. Learned Trial Court had rightly appreciated the medical examination report and the evidences adduced by the concerned doctor (PW-5). It is found from the deposition of PW – 5 that on 11.07.2000 at about 11.00 am, the witness PW – 5 Dr. Laxmi Pandey had examined the victim brought by Sub-Inspector, Putki vide Putki P.S. case No. 83/2000 dated 10.7.2000 under section 376 of I.P.C. and found the following vide Ext.-1: “Height of the patient 4’ number of teeth: upper law 12 and lower jaw 12, mark of identification (i) A mole at the right upper arm (ii) Old boil mark in left thigh Menarche – not stated as said by patient. Secondary sex character – not developed External injury – NAD 7 Internal Injury – no injury on private part, hymen intact. Advice – 1. H.V. Swali to detect spermatozoa 2. X-ray Pelvis and wrist to detect clay. According to pathologist, spermatozoa not found. According to radiologist, film No.1388 shows epiphysis of the lower ends of radius and ulna appeared, but not united. Carpals one appeared. Epiphyses of metacarpals are not united. Epiphysis of the radical epicondytely of human is not fused. But lateral fused. H.V. Swali to detect spermatozoa 2. X-ray Pelvis and wrist to detect clay. According to pathologist, spermatozoa not found. According to radiologist, film No.1388 shows epiphysis of the lower ends of radius and ulna appeared, but not united. Carpals one appeared. Epiphyses of metacarpals are not united. Epiphysis of the radical epicondytely of human is not fused. But lateral fused. Epiphysis of radial head is not united. Age is in between 12-13 years” 10. From perusal of the aforesaid medical examination report, which is marked as Ext.-1, it appears that the victim is minor and the report is fully corroborative of the guilt of the accused for the offences punishable under Sections 376/511 of IPC and it is a case of attempt to rape. Further it is found that the report is commensurate with the version of the victim (PW-7). From perusal of the testimony of the PW-7, it is found that the Court has estimated the age of the victim is 10 years, which is almost in consonance with the report of the doctor. As per the testimony of PW-7, it is found that at 2 O’clock in the afternoon, on the date of incident, while she was playing, the accused had called her to give a sum of Rs.5/- and thereafter the accused took her to his house and after taking her to his house, she was forcibly laid down on the Varamda and undressed her. Thereupon, she started screaming, then the accused left her and thus this witness has fully supported that it was an attempt to commit rape with her and the learned trial court has rightly appreciated the deposition of this witness and come to the finding that it was a case of attempt to rape. 11. PW – 6 Chandrawati Devi, who is the mother of the victim, interalia deposed about the commission of the offence, but her version is totally falsified by the version of PW-7 (victim), who had categorically and explicitly stated that when the accused appellant had undressed her, she had started crying and thereupon, the appellant left her. Therefore, the version of PW-6 (mother of victim) has been falsified by the version of PW-7, which has been rightly evaluated by the learned trial court below and the conviction of the appellant is held under section 376 / 511 of the IPC which is wholly justified. 12. Therefore, the version of PW-6 (mother of victim) has been falsified by the version of PW-7, which has been rightly evaluated by the learned trial court below and the conviction of the appellant is held under section 376 / 511 of the IPC which is wholly justified. 12. PW-1 Rajesh Kumar Thakur, PW-2 Ram Swarup Das, PW – 3 Ram Kirpal Kurmi, PW – 4 Rajkalia Devi consistently and uniformly stated that PW-7 (victim) has been sexually assaulted and their versions have been duly taken into consideration by the learned court below in the light of the version of P.W.7 (Victim) ,particularly, vide para 4 of the Cross Examination. 13. Having taken into consideration the testimony of the aforesaid witnesses, it is well founded that the learned trial court has not committed any error in holding the conviction of the accused for the offences punishable under Sections 376/511 of the IPC. The fact that the accused-appellant had allured the victim to give her a sum of Rs.5/- and took her to his house and in the Varamda, the victim was forcibly laid down and she was undressed, but when the victim started crying and screaming, thereafter the accused set her free and therefore there is no ambiguity or doubt about the incident, which has been committed by the accused appellant inasmuch as consistently and uniformly corroborated by the version of the victim P.W.7 and her mother P.W.6 in unequivocal words to extent of attempt to commit rape along with other evidences also as discussed elaborately in foregoing paragraphs. The learned defence counsel Sri Pankaj kumar has strongly urged that in view of testimony of the victim P.W.7 particularly para-4, it is not a case of attempt to Rape and in support of his contentions the learned defence counsel has relied upon the rulings of the Apex Court as reported in Aman Kumar v. State of Haryana, (2004) 4 SCC 379 . The relevant portion of the judgment is as under: “9. 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 reasons beyond his control, he is said to have attempted to commit the offence. The relevant portion of the judgment is as under: “9. 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 reasons 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 preparations 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 defined, 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 preparations 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. 10. An attempt to commit an offence is an act, or a series of acts, which leads inevitably to the commission of the offence, unless something, which the doer of the act neither foresaw nor intended, happens to prevent this. There is a greater degree of determination in attempt as compared with preparation. 10. An attempt to commit an offence is an act, or a series of acts, which leads inevitably to the commission of the offence, unless something, which the doer of the act neither foresaw nor intended, happens to prevent this. An attempt may be described to be an act done in part-execution of a criminal design, amounting to more than mere preparation, but falling short of actual consummation, and, possessing, except for failure to consummate, all the elements of the substantive crime. In other words, an attempt consists in it the intent to commit a crime, falling short of, its actual commission. It may consequently be defined as that which if not prevented would have resulted in the full consummation of the act attempted. The illustrations given in Section 511 clearly show the legislative intention to make a difference between the cases of a mere preparation and an attempt. 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. In the present case the victim has categorically stated in an explicit manner vide para 4 of the cross examination that no else had come to call her, rather the accused-appellant had himself called her to his house and then forced her to lay down on the vemanda (courtyard) and then disrobed her undergarment (Pant) and when she started crying, the appellant set her free. Thus it is well established that the appellant at first called her, forcibly fell her down on the ground and then stripped her undergarment and thus intention, preparation in order to commit rape are completed but the actual offence could not be committed because the victim started screaming. Thus it is well established that the appellant at first called her, forcibly fell her down on the ground and then stripped her undergarment and thus intention, preparation in order to commit rape are completed but the actual offence could not be committed because the victim started screaming. Thus glaring evidences are found to constitute the offence punishable under section 376/511 of the IPC as observed by Hon’ble Apex court in Aman Kumar’s case (Supra) in order to constitute the offence of attempt to commit rape against the appellant. It has further been found that from the defence side, one witness examined on behalf of the appellant, i.e. DW – 1 Mundrika Singh and the defence taken on behalf of the appellant is that on the date of occurrence, the victim was in a school in the day time, when the alleged incident was said to have taken place, but no document has been produced to that effect and therefore this defence on behalf of the appellant is discarded, which has also been rightly appreciated by the learned court below. Further another defence has also been taken by the DW-1 that the father of the appellant had taken a sum of Rs.20,000/-from the father of the victim and the father of the victim had returned Rs.40,000/-,but the interest was not given, upon which, the threatening was given by the father of the victim for dire consequences. What the defence taken in his testimony by the witness DW-1 is not believable in view of the fact that when a sum of Rs.20,000/- was taken by the father of the appellant, then what was the occasion to return Rs. Rs.40,000/- and still sum interest was left to be repaid, and therefore, these are concocted and false story for the defence and thus the defence version as stated by DW -1 is baseless and it has been rightly disbelieved by the learned court below. 14. In view of the aforesaid findings, this court found that the learned court below has rightly appreciated the evidences available on record and held the guilt of the appellant for the offences punishable under Sections 376 read with Section 511 of the IPC. 14. In view of the aforesaid findings, this court found that the learned court below has rightly appreciated the evidences available on record and held the guilt of the appellant for the offences punishable under Sections 376 read with Section 511 of the IPC. This Court does not find any irregularity and infirmity in the findings and therefore the conviction of the sole appellant as held by the learned court below is upheld by this Court also, under which, the appellant is found guilty for the offences punishable under Sections 376/ 511 of the IPC. 15. On the point of sentence, learned defence counsel Mr. Pankaj Kumar submitted that the appellant has remained in jail for substantive period, i.e. about more than three years and three months and therefore the sole Appellant has already served more than the half of the sentence awarded and as such a leinent view may kindly be taken in this regard. 16. On the other hand, learned APP submitted that it is a heinous offense and therefore, it is submitted that the learned court below has rightly convicted the appellant for the sentence of imprisonment for five years and there is no legal point to interfere. 17. Having taking into consideration the submissions advanced on behalf of the parties on the point of sentence, it is found that the sole appellant Baiju Ram Rawani has remained in jail from 14.07.2000 to 15.10.2003, i.e. more than three years and three months. There is nothing on record to show about his criminal history. It is also admitted case of the prosecution that in the commission of the offence, there is no brutality or atrocity by the appellant. Further, it is a case of attempt to rape and the accused-appellant has already served half of the sentence awarded. Apart from remaining in jail for more than three years, the appellant had suffered agony and hardships of the criminal prosecution for a long period of time as this incident is of the year 2000, i.e. 20 years back and therefore it is appropriate and just to take a reasonable view in awarding the sentence to the appellant. Apart from remaining in jail for more than three years, the appellant had suffered agony and hardships of the criminal prosecution for a long period of time as this incident is of the year 2000, i.e. 20 years back and therefore it is appropriate and just to take a reasonable view in awarding the sentence to the appellant. The reasons stated above are the mitigating circumstances and taking into consideration the provision of 511 of the IPC, under which, there is a provision for imprisonment of any description provided for the offence, which may extend to one-half of the longest term of imprisonment and in the present case the appellant has served more than half of the sentence awarded. As such in the present case in the light of the mitigating reasons as discussed above, the appellant is sentenced to imprisonment for a term of the period already undergone. Since the appellant is on bail, he is discharged from the liabilities of the bail bond. 18. The appeal is dismissed as above. 19. Let the lower court record be sent back forthwith to the court concerned. 20. The secretary, High Court Legal Services, High Court of Jharkhand is directed to do the needful to ensure the Professional Fees of the counsel Sri Pankaj Kumar who has appeared on behalf the Sole appellant as Amicus-curiae duly appointed by this court vide order dated 13.9.2019 and very sincerely and effectively assisted this court.