Criminal Appeal No.457 of 2013

3rd March, 2014

Petitioner Counsel: Mr. R.H. RAWLANI
Respondent Counsel: Ms. SANGITA JACHAK

Cases Cited:
Madan Lal Vs. State of Jammu & Kashmir, 1998 ALL MR (Cri) 301 (S.C.)=(1997) 7 SCC 677 [Para 6]

JUDGMENT

JUDGMENT :- Heard.

2. The appellant has been convicted for the offence punishable under Section 376(2)(f) of the Indian Penal Code and is sentenced to suffer rigorous imprisonment for ten years and to pay fine of rupees five thousand. It is further directed that the fine amount, if deposited, shall be paid to the mother of the victim by way of compensation.

3. A short question, which may arise for determination in the present case is, whether simply rubbing of erected penis against the vagina will amount to an offence of rape. Age of the victim girl was about 10 years. It is stated by the victim that the appellant had rubbed his erected penis against her vagina. The victim left the place on the pretext of going for urination and did not come back to the place of the alleged offence. The matter was reported to police. Spot panchnama was drawn. Incriminating articles were seized and were sent to Forensic Science Laboratory. The Laboratory report indicated that there were semen stains on the quilt and underwear of the appellant. No semen was found on the clothes of the victim. The vaginal swab was also free from semen.

4. The learned counsel for the appellant has argued that, at the most, it might amount to an offence punishable under Section 376 (2)(f) read with Section 511 of the Indian Penal Code. It was submitted that the appellant might have rubbed his penis against her vagina and might have ejaculated later on. My attention was invited to the evidence of the Medical Officer who has stated in his cross-examination that it was difficult for him to give opinion as to whether the penetration had taken place.

5. After having gone through the evidence of the victim girl and the Medical Officer, I have come to a conclusion that it is difficult to ascertain whether there was even partial or little penetration of penis in the vagina. It is also difficult to say that whether the penis had touched the labia majora. The oral evidence of the victim girl (P.W.3) establishes that there was rubbing on the part of the appellant.

6. As already stated, a short question, which may arise for determination is, as to what offence the appellant had committed:

(a) An offence punishable under Section 376(2)(f) of the Indian Penal Code ?

(b) An offence punishable under Section 376(2)(f) read with Section 511 of the Indian Penal Code ? or

(c) An offence punishable under Section 354 of the Indian Penal Code ?

In this regard, this Court is guided by the judgment of the Hon'ble Supreme Court in the case of Madan Lal Vs. State of Jammu & Kashmir, reported at (1997) 7 SCC 677 : [1998 ALL MR (Cri) 301 (S.C.)]. Paragraph 12 of the said judgment can be reproduced as under :

"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 undresses 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."

7. If one go through the evidence of the victim it can be said that the facts of the present case are more or less similar to the facts of the case before the Hon'ble Supreme Court. In my considered opinion, in the present case also rubbing of erected penis against the vagina of the victim may not simply amount to an offence punishable under Section 354 of the Indian Penal Code. At the same time, since it is not possible to ascertain whether even slightest penetration was there or not it will not be possible to convict the appellant for the offence punishable under Section 376 of the Indian Penal Code. However, considering the fact that the appellant has been rubbing his erected penis against the vagina of the victim and the victim left the spot on the pretext of going to urination, it can safely be said that there was an attempt to commit rape by the appellant. I have, therefore, come to a conclusion that the trial Court has wrongly convicted the appellant for the offence punishable under Section 376(2)(f) of the Indian Penal Code. The appellant is found guilty of the offence punishable under Section 376(2)(f) read with Section 511 of the Indian Penal Code. Hence, I pass the following order.

i. The appeal is partly allowed.

ii. The judgment and order of the trial Court, convicting the appellant for the offence punishable under Section 376(2)(f) of the Indian Penal Code, is set aside.

iii. The appellant is convicted for the offence punishable under Section 376(2)(f) read with Section 511 of the Indian Penal Code and is sentenced to suffer rigorous imprisonment for five years and to pay a fine of rupees five thousand.

iv. Fine, if paid, shall be disbursed to mother of the victim, by way of compensation.

v. The appellant is in custody since 26th December, 2010 till today. Set off be given to the appellant for the period already undergone by him.

The appeal stands disposed of accordingly.

Appeal partly allowed.