Criminal Appeal No.363 of 2012

20th February, 2013

Petitioner Counsel: Mr. N. S. GHANEKAR & Mr. N.G. SHAH
Respondent Counsel: Mr.V.G. SHELKE

Cases Cited:
Aman Kumar and another Vs. State of Haryana, 2004 Cri.L.J. 1399(1) [Para 6]

JUDGMENT

JUDGMENT :- Heard. The appeal is admitted on 16.5.2012. The accused/appellant is in custody, facing conviction in Sessions Case No.96/2011 for an offence under Section 376 r/w Section 511 of Indian Penal Code, directing to undergo R.I. for five years and to pay a fine of Rs.2,000/-, in default, R.I. for two months. Fine amount is deposited before the learned Additional Sessions Judge at Beed on 5.5.2012 vide Receipt Sr.No.0366627.

2. The prosecutrix resides in the same village of the accused/appellant. Her aunt Smt. Aashabai reported the matter to police, informing of rape upon her niece (the prosecutrix) on 22.12.2010 in the afternoon at around 2.30 p.m. This, according to her, was witnessed since she reached home and noticed that her niece, the prosecutrix, was yelling and due to her screams, she went forward to the house, near the hut meant for kitchen. The prosecutrix was seen lying prostrate and one Vaibhav was guarding while the appellant Bhaiyya @ Badrinath had mounted the prosecutrix. She threw brickbats and enquired with her niece, the prosecutrix, in which it revealed that the prosecutrix was sexually abused by the appellant and his accomplice Vaibhav. This gave rise to registration of an FIR. The investigation was carried. The prosecutrix, as also the appellant, was referred for medical examination. Spot panchanama was drawn (admitted). The spot panchanama does not indicate presence of brickbats.

3. The material part is, substantial evidence of PW No.2, the prosecutrix. In unequivocal terms, she has stated, that on the date of incident, she had been to school at Gadhi and on return home, two boys (the accused and his friend) came to her house. They removed her nicker. Firstly, accused Vaibhav mounted on her, then other accused sat on her. They asked, whether she needs money. She conveyed in negative. Then her aunt came and threw stones towards the accused, the accused sneaked away. Her relatives took her to police station and thereafter to the hospital. Her apparels were taken charge. She had identified her apparels in the court.

4. The FIR of PW No.1-Aashabai (aunt) is complete violence of what PW No.2 has stated. A curious part in the evidence is, PW No.2, the prosecutrix, accepts that, at the time of lodging the FIR, she remained outside the police station. The matter was reported to police by her aunt PW No.1 along with one Tukaram Sawaleshwar. However, PW No.1 denies about presence of said Tukaram Sawaleshwar. PW No.3 Sheelabai is a villager, a distant relative of the prosecutrix and Aashabai. She has not witnessed the events. Whatever she has learnt, it was from Aashabai. Evidence of mother Aashabai (PW No.5) is again hearsay. PW No.4 and one Babulal were the panch witnesses in respect of seizure of articles 8 and 9. However, the CA report does not corroborate the prosecution case. PW No.6 Dr. Sonali Deshpande gave evidence based on the official record, however, did not notice any injury on the person of the prosecutrix. The scar and hymen tear noticed was old.

5. Thus, the overall survey of the evidence illustrate, there was no penetration nor attempt to penetrate. The evidence, at the most of the prosecutrix, leans that accused had made the prosecutrix to lie on the ground; removed her nicker. The learned Judge found the same to be an attempt to commit rape on prosecutrix. The essential ingredients for offence under Section 376 and 511 of IPC warrant intention. The accused/appellant allegedly was mounting on the body of the prosecutrix.

6. Section 511 of IPC illustrate, " 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 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." (2004 Cri.L.J. 1399(1)Aman Kumar and another Vs. State of Haryana)

7. The legal position is again explained in the above referred decision of Aman Kumar, wherein, the Hon'ble Lordships observed, " It would be a case of indecent assault upon a woman and and elaborated conviction under Section 354 of IPC. It is observed, " Essential ingredients of the offence punishable under Section 354 IPC are that the person assaulted must be a woman, and the accused must have used criminal force on her intending thereby to outrage her modesty. What constitutes an outrage to female modesty is nowhere defined. The essence of a woman's modesty is her sex. The culpable intention of the accused is the crux of the matter. The reaction of the woman is very relevant, but its absence is not always decisive. Modesty in this section is an attribute associated with female human beings as a class."

8. The discussion carried by the learned Judge in respect of evidence of PW No.3Sheelabai corroborating to the evidence of the prosecutrix or PW No.1 - Aashabai on analytical study of three evidence, is distorting. Evidence of PW no.3 - Sheelabai is apparently a hearsay affair. Whatever she has conveyed, was the narration of Aashabai to her. The learned Judge should not have given much significance to narration of PW No.3.

9. The CA report illustrate, there was no semen detected either on the apparels of the prosecutrix or of the accused. Even there were no semen-stains in the vaginal swab. The CA report dated 7.9.2011 accordingly is of no avail by the prosecution to bring home guilt against the accused for offence under Section 376 of IPC. The requirements set out under section 511 IPC are not figuring in evidence. There is nothing to suggest accused attempted to commit rape, and desired to gratify his passion upon her person. There was no element of sexual connection with the prosecutrix.

10. The evidence of PW No.1; PW No.2 and PW No.3 certainly demonstrate that the accused had been to the house or nearby house of the prosecutrix. He has removed her nicker and mounted on her. Such an act on the part of the accused/appellant will not attract, naturally, Section 376 r/w 511 of IPC, The act of the accused would constitute an outrage to a female (the prosecutrix) in terms of Section 354 of IPC. It was an assault or criminal force to the prosecutrix with intent to outrage her modesty. The accused knew that the prosecutrix was alone in the house at the material time. Considering above facts, I pass following order:

ORDER

(1) The Appeal is partly allowed;

(2) Conviction under Section 376 r/w 511 of IPC, is set aside. The accused/appellant is convicted for an offence punishable under Section 354 of IPC and directed to undergo rigorous imprisonment for a period of 18 (eighteen) months and to pay a fine of Rs.2,000/- ( Rupees two thousand), in default, to suffer rigorous imprisonment for two months.

(3) Set-off under Section 428 of Cr.P.C. be given to the accused/appellant.

Appeal partly allowed.