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2024 DIGILAW 599 (CHH)

Dinesh Deshmukh v. State of Chhattisgarh

2024-08-23

NARENDRA KUMAR VYAS

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JUDGMENT : NARENDRA KUMAR VYAS, J. 1. This Criminal Appeal under Section 374 (2) of CrPC has been filed against the judgment of conviction and order of sentence dated 16.08.2002 passed by Sixth Additional Sessions Judge, Durg in Sessions Trial No. 51 of 2002 by which the appellant has been convicted under Section 376 read with Section 511 IPC and has been sentenced to undergo rigorous imprisonment for 3 years and six months with fine of Rs.500/-, in default of payment of fine 1 month rigorous imprisonment under Section 376 read with Section 511 of the IPC. 2. The necessary facts for disposal of the present appeal in short are that on 21.11.2001 at about 7.00 AM, the victim girl, who was aged about six years old at the relevant time was residing adjacent to the house of the appellant had gone to the house of the appellant for playing. Further case of the prosecution is that after returning from the house of the appellant, while crying the victim girl told her mother that her undergarment was wet and there was some spot in it. Subsequently, her mother asked her regarding wetness of her undergarment then she informed that present appellant has laid down her on the bed and forcibly rubbed his erected penis on her private part but failed to penetrate the same into the vagina, which has caused swelling on her private part. At the same time, her uncle came there then the she disclosed the incident to him also. Thereafter, at about 2.50 PM, report was lodged by Urmila (PW-3) in Police Station Bhilai Nagar. Based upon which, FIR (Ex.P-7) under Section 376 of IPC was registered against the appellant and the matter was investigated. During investigation, victim was referred for medical examination. She was examined by Dr. Sugam Sawant (PW-9) at about 7.30 PM wherein it was found that there was no sign of external or internal injury on the victim and her hymen was found intact. The Doctor (PW-9) opined that no sign of rape on the body of the victim was found. The cloth of the victim was seized vide (Ex.P-8) on 21.11.2001 and the same was sent for chemical examination and report of chemical examination under (ExP-10) was received. Map Ex.P-1 was prepared. Thereafter, the police arrested the appellant and sent him for medical examination. The cloth of the victim was seized vide (Ex.P-8) on 21.11.2001 and the same was sent for chemical examination and report of chemical examination under (ExP-10) was received. Map Ex.P-1 was prepared. Thereafter, the police arrested the appellant and sent him for medical examination. After completion of the investigation, charge sheet was filed before the Court of Judicial Magistrate First Class, who in turn committed the case to the Court of Additional Sessions Judge, Durg which was registered as Sessions Case No. 51 of 2002. 3. The prosecution in order to prove the guilt of the appellant examined in all 9 witnesses, Nestor Kujur (PW-1), victim (PW-2), mother of the victim Urmila (PW-3), Bharat Deshmukh (PW-4), Upendra Kumar Deshmukh (PW-5), Kheman Prashad (PW-6), I.P. Khattar (PW-7), Dr. V.S. Baghel (PW-8), Dr. Smt. Sugam Sawant (PW-9) and exhibited the documents Map (Ex.P-1), request letter for examination of accused (Ex.P-2), examination of seized articles (Ex.P-3), arrest panchanama (Ex.P-4), arrest memo (Ex.P-5), seizure memo (Ex.P-6), FIR (Ex. P-7), seizure memo (Ex.P-8), MLC of victim (Ex.P-9), report (Ex.P-10), examination of accused (Ex.P-11), examination of cloth of the appellant (Ex.P-12). 4. The prosecution to prove its case has examined victim as PW-2 who has narrated the incident and has stated that the appellant has taken her in the bed room where appellant has laid down her on the bed and forcibly rubbed his erected penis on the private part of the girl causing pain and wetness of the undergarment. She has also stated that the victim could resist because of threat. She has also stated that she has not stated anything to other family members of the appellant but informed the incident to her mother. Thereafter, FIR has been lodged. The victim was cross-examined and in paragraph-6, she has stated that when the appellant got on top of the victim and reiterated the incident in the cross examination, as she has stated that half centimeter in circle of her undergarment was wetted. The mother and father of the victim were examined as PW-3 and PW-4 wherein they supported the case of the prosecution and in the cross examination, PW-3 has stated that in the private part of the victim in upper side and lower side there was swelling and she presumed that bleeding was there. She has also stated that there is sperm in the vagina of the victim. 5. She has also stated that there is sperm in the vagina of the victim. 5. Upendra Kumar Deshmukh (PW-5) uncle of the victim was examined who has narrated the incident and also stated that PW-3 has shown undergarment of the victim wherein some sticky material was there. The prosecution examined doctor as PW-9, wherein she stated that there was no sign of external or internal injury on the victim and her hymen was found intact. But there was some white spot was found in the undergarment and the undergarment of the victim was sent for medical examination. 6. The appellant has not examined any witnesses in his support and statement of accused/appellant has been recorded under Section 313 Cr.P.C., in which he has pleaded innocence and false implication. 7. Learned trial Court after appreciating evidence, material on record has convicted appellant for commission of offence under Section 376 read with Section 511 of the IPC and sentenced him to undergo RI for 3 years and six months with fine of Rs. 500/-with default stipulation. Being aggrieved with the judgment of conviction and order of sentence of the trial Court the appellant has preferred the appeal before this Court. 8. Learned counsel for the appellant would submit that the trial Court has wrongly convicted the appellant without proper appreciation of evidence and there are material contradictions and omissions in the statements of the prosecution witnesses. He would further submit that the evidence of the prosecution witnesses are not sufficient to convict the appellant as the medical report is also not in support of prosecution and according to the medical examination, no external injury was found on the body of the victim. In alternate, the learned counsel for the appellant submits that looking to the fact that the incident was happened in year 2001 at that time the appellant was 35 years old and now he has responsibility of family and his one daughter is handicapped and he has already suffered six months of jail sentence therefore, the sentence may be reduced to the period already undergone by him. Learned counsel for the appellant would submit that conviction of the appellant under Section 376 read with Section 511 IPC is illegal and contrary to the evidence, material on record and there is no material placed before the trial Court to record a finding that an attempt to commit rape was made by the appellant. He would further submit that since no case for conviction under Section 376/ 511 IPC is made out, therefore, in the worst view of the matter, offence under Section 354 IPC can be made out and the appellant has already remained in jail during trial from 21.11.2001 to 27.12.2001 for 1 month and six days. He would further submit that the appellant was granted suspension of sentence on 26.09.2002 thus, he remained in jail for 10 months and six days, as such he has already undergone for considerable period, therefore, his sentence may be reduced to the period already undergone by him for commission of offence. To substantiate his submission, learned counsel for the appellant has relied upon the judgments in the cases of Koppula Venkat Rao vs. State of A.P. (2004) 3 SCC 602 , Baldev Singh and others vs. State of Punjab (2011) 13 SCC 705 and Dola Alias Dolagobinda Pradhan and another vs. State of Odisha (2018) 18 SCC 695. 9. On the other hand, learned counsel for the State opposes the submission made by the appellant and would submit that the appellant has committed the heinous offence with 6 year of girl. He would further submit that the findings and the approach of the trial court in this regard being based on proper appreciation of the evidence are in conformity with law, the same does not require any interference at this stage either for acquittal to the appellant or modifying his awarded conviction and sentence and would pray for dismissal of this appeal. Learned counsel for the State opposes the submission and would submit that from the evidence produced before the trial Court it is quite vivid that the appellant has attempted to commit rape, therefore, he has rightly be charged and sentenced, thus, he would pray for dismissal of the appeal. 10. I have heard learned counsel for the parties and perused the record. 11. 10. I have heard learned counsel for the parties and perused the record. 11. From the above submission made by the parties and the record of the trial Court, the point for determination for this Court is whether the offence proved to have been committed by the respondent amounting to attempt to commit rape within the meaning of Section 376(2)(f) read with Section 511 of the IPC or was it mere preparation which lead to outrage the modesty of the victim?. 12. To appreciate this point of determination it is expedient for this Court to extract Sections 511 and 375 of the IPC as it stood before 2013 amendment. 13. Section 511 IPC punishment for attempting to commit offence punishable with imprisonment for life or other imprisonment. “Whoever attempts to commit an offence punishable by this Code with imprisonment for life or imprisonment, or to cause such an offence to be committed, and in such attempt does any act towards the commission of the offence, shall, where no express provision is made by this Code for the punishment of such attempt, be punished with imprisonment of any description provided for the offence, for a term which may extend to one half of the imprisonment for life or, as the case may be, onehalf of the longest term of imprisonment provided for that offence, or with such fine as is provided for the offence, or with both”. 14. Section 375 of the IPC as stood at the time when the occurrence took place in the instant case. First.—Against her will. Secondly.—Without her consent. Thirdly.—xxx xxx xxx Fourthly.— xxx xxx xxx Fifthly.— xxx xxx xxx Sixthly.—With or without her consent, when she is under sixteen years of age. Explanation.—Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape. Exception.—Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape. 15. From bare perusal of both the provisions it is clearly spell out that sexual intercourse with a woman below sixteen years, with or without her consent, amounted to ‘Rape’ and mere penetration was sufficient to prove such offence. The expression ‘penetration’ denotes ingress of male organ into the female parts, however slight it may be. Penetration is the sine qua non for an offence of rape. The expression ‘penetration’ denotes ingress of male organ into the female parts, however slight it may be. Penetration is the sine qua non for an offence of rape. In order to constitute penetration, there must be evidence clear and cogent to prove that some part of the virile member of the accused was within the labia of the pudendum of the woman, no matter how little. The issue with regard to attempt to rape and preparation for rape is subject matter of scrutiny before the Hon’ble Supreme Court. The Hon’ble Supreme Court in the case of Madan Lal vs. State of J&K2 reported in 1997(7) SCC 677 has considered the difference between attempt to commit rape under Section 376 read with Section 511 of the IPC and preparation for rape and has held in paragraph-12 as under:- 12. The difference between preparation and an at-tempt 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 flat on the ground undresses himself and then forcibly rubs his erected penis on the private part of the girl but fails to penetrate the same into 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 I.P.C. and not an attempt to com-mit rape under Section 376 read with 511 I.P.C. In the facts and circumstances of the present case the offence of an attempt to commit rape by accused has been clearly established and the High Court rightly convicted him under Section 376 read with 511 I.P.C. 16. Again the Hon’ble Supreme Court has held that ejaculation without penetration is also attempt to rape and for committing offence of rape penetration is sine qua non of offence of rape. Hon’ble Supreme Court in case of Koppula Venkat Rao vs State Of Andhra Pradesh reported in 2004 (3) SCC 602 wherein the Hon’ble Supreme court has held as under in paragraphs -12 and 13 has held as under:- 12. The sine qua non of the offence of rape is pene-tration, and not ejaculation. Ejaculation without penetration constitutes an attempt to commit rape and not actual rape. The sine qua non of the offence of rape is pene-tration, and not ejaculation. Ejaculation without penetration constitutes an attempt to commit rape and not actual rape. Definition of "rape" as con-tained in Section 375 IPC refers to "sexual inter-course" and the Explanation appended to the Sec-tion provides that penetration is sufficient to constitute the sexual intercourse necessary to the of-fence of rape. Intercourse means sexual connection. In the instant case that connection has not been established. Courts below were not correct in their view. 13. When the evidence of the prosecutrix is considered in the proper perspective, it is clear that the commission of actual rape has not been established. However, the evidence is sufficient to prove that attempt to commit rape was made. That being the position, conviction is altered from Section 376 IPC to Section 376/511 IPC. Custodial sentence of 3 and1/2 years would meet the ends of justice. The accused who is on bail shall surrender to custody to serve remainder of his sentence. 17. Relying on these two judgments the Hon’ble Supreme Court in case of State of Madhya Pradesh vs. Mahendra alias Golu reported in 2022(12) SCC 442 has examined attempt to commit an offence and preparation to commit an offence and has held as under:- 20. In light of the statutory provisions as construed by this Court from time to time in the cited decisions, let us examine whether the respondent attempted to commit rape of the prosecutrices or there was only preparation on his behalf? 21. We may at the outset explain that what constitutes an attempt’ is a mixed question of law and facts. ‘Attempt’ is the direct movement towards the commission after the preparations are over. It is essential to prove that the attempt was with an intent to commit the offence. An attempt is possible even when the accused is unsuccessful in committing the principal offence. Similarly, if the at-tempt to commit a crime is accomplished, then the crime stands committed for all intents and purposes. 22. There is overwhelming evidence on record to prove the respondent’s deliberate overt steps to take the minor girls inside his house; closing the door(s); undressing the victims and rubbing his genitals on those of the prosecutrices. As the victims started crying, the respondent could not succeed in his penultimate act and there was a sheer providential escape from actual penetration. There is overwhelming evidence on record to prove the respondent’s deliberate overt steps to take the minor girls inside his house; closing the door(s); undressing the victims and rubbing his genitals on those of the prosecutrices. As the victims started crying, the respondent could not succeed in his penultimate act and there was a sheer providential escape from actual penetration. Had the respondent succeeded in penetration, even partially, his act would have fallen within the con-tours of `Rape’ as it stood conservatively defined under Section 375 IPC at that time. 23. The deposition by the victims (PW1 and PW2) are impeccable. Both have unequivocally stated as to how the respondent allured them and indulged in all those traumatic acts which have already been narrated in the preceding paragraphs. The statements of both the victim children inspire full confidence, establish their innocence and evince a natural version without any remote possibility of tutoring. 18. In light of above stated legal position, the evidence adduced by the prosecution and the material is considered, it is quite vivid that the victim aged about 6 years has supported the case of the prosecution and stated that the appellant has taken the victim in his bed room and forcibly rubbed his erected penis on the private part of the victim but failed to penetrate the same into her vagina, which has caused swelling on her private part of the victim and this evidence remained unshaken in the cross examination. The other witnesses mother PW-3 and uncle PW-5 have also supported the case of the prosecution. Thus, it cannot be said that no attempt to commit rape was made. The evidence of the PW-2 and PW-3 are impeccable and they have unequivocally stated as to how the appellant has taken into his bed room and indulged in all those traumatic acts as detailed in the foregoing paragraph of the order. The statement of PW-2 inspires full confidence and establishes her innocence and evince a natural version without any remote possibility of tutoring. 19. Considering the entire material on record, I am of the view that learned trial Court has not committed any illegality in convicting the appellant for commission of offence under Section 376 read with section 511 of the IPC for 3 years and 6 months. 19. Considering the entire material on record, I am of the view that learned trial Court has not committed any illegality in convicting the appellant for commission of offence under Section 376 read with section 511 of the IPC for 3 years and 6 months. The record of the case shows that the appellant remained in jail for 10 months and 6 days during trial and in the appeal also. The said period will be set of as per Section 428 of the CrPC. The appellant is directed to surrender within four weeks to serve out the remaining part of his sentence as awarded by the Trial Court. In case the appellant fails to surrender, the Police Authorities are directed to arrest him and send a compliance report. 20. Accordingly, Criminal appeal is dismissed.