CRIMINAL APPEAL NO. 172 OF 2019

11th June 2019

Petitioner Counsel: Shri L. B. Khergade
Respondent Counsel: Shri N. B. Jawade
Act Name: Indian Penal Code, 1860 Code of Criminal Procedure, 1973

Section :
Section 354 Indian Penal Code, 1860 Section 376 Indian Penal Code, 1860 Section 376(2)(l) Indian Penal Code, 1860 Section 451 Indian Penal Code, 1860 Section 511 Indian Penal Code, 1860 Section 161 Code of Criminal Procedure, 1973 Section 313 Code of Criminal Procedure, 1973

Cases Cited :
Paras 12, 15: Madan Lal Vs. State of Jammu and Kashmir reported in AIR 1998 SC 386
Paras 13, 14: Tarkeshwar Sahu Vs. State of Bihar (now Jharkhand) MANU/SC/4421/2006 : (2006) 8 SCC 560
Para 13: Rex Vs. James Lloyd (1836) 7 C&P 317 : 173 ER 141
Para 14: Aman Kumar and Anr. Vs. State of Haryana MANU/SC/0104/2004 : (2004) 4 SCC 379
Para 14: State of Rajasthan Vs. Sri Chand reported in (2015) 11 SCC 229

JUDGEMENT

Heard Shri L.B. Khergade, the learned Counsel for the appellant and Shri N.B. Jawade, the learned Additional Public Prosecutor for the respondent/State.

2. The appellant is assailing the judgment dated 29.07.2017 rendered by the Additional Sessions Judge (IV), Nagpur in Sessions Case 169 of 2016 by and under which the appellant is convicted for offence punishable under Section 376(2) (l) of the Indian Penal Code and is sentenced to suffer rigorous imprisonment for ten years and to payment of fine of Rs.1000/- and is further convicted for offence punishable under Section 451 of the Indian Penal Code and is sentenced to suffer rigorous imprisonment for one year and to payment of fine of Rs.500/-.

3. The victim, who was aged 22 years is mentally challenged.

4. The victim was residing with her mother and younger brother at village Isapur.

5. The case of the prosecution is that on 04.10.2015 when the brother of the victim Piyush returned from school he noticed that both the doors of the house were locked from inside. Piyush climbed on the water tank and then on the wall of the house and pipped inside. Piyush saw the appellant – who shall be referred to as the accused hereinafter – lying over her sister. Both were naked. Piyush went out to play and when his mother returned narrated the incident to her. The mother – Geeta approached the Police Patil who advised her to lodge police report. Geeta went to the Police Station in the night and was asked to come the next day morning. Geeta lodged the report against the accused on the morning of 05.10.2015 on the basis of which report police registered crime 241 of 2015. The I.O. visited the spot of incident and prepared spot panchnama. The victim was medically examined and the medical report obtained. The accused was arrested and his clothes were seized. Statements of witnesses were recorded. The completion of the investigation culminated in submission of charge-sheet in the Magistrate Court and the proceedings were committed to the Sessions Court.

6. The Sessions Judge framed charge for offence punishable under section 376 and 451 of the Indian Penal Code. The accused abjured guilt and claimed to be tried in accordance with law.

7. The prosecution examined eight witnesses. The accused did not step into the witness box nor did he examine any witness in defence. The trend and tenor of the cross-examination and the statement recorded under section 313 of the Criminal Procedure Code shows that the defence is of total denial and false implication. The motive for false implication is, according to the defence, a dispute between the accused and the mother of the victim over the issue of certain payment due to the accused who did some civil construction work at the house of the mother of the victim.

8. I have heard Shri L.B. Khergade, the learned counsel for the accused and Shri N.B. Jawade, the learned Additional Public Prosecutor and with their able assistance, I have scrutinized the material on record and the reasons recorded by the trial Court. The trial Court has relied substantially, if not entirely on the evidence of Piyush and corroboration is sought from the medical evidence. Shri L.B. Khergade, the learned counsel for the accused would submit that the evidence of Piyush is not trustworthy and the reliance on the medical evidence is misplaced and the medical evidence is misread by the learned Sessions Judge. The alternate submission is that the accused, if at all, can be convicted only for offence punishable under section 354 of the Indian Penal Code. Shri L.B. Khergade, the learned counsel for the accused would submit that there is no scientific evidence to link the accused with the crime or for that matter to hold that the victim was subjected to sexual intercourse. Shri N.B. Jawade, the learned Additional Public Prosecutor fairly does not deny that there is no medical or scientific evidence to suggest that there was sexual intercourse. Shri N.B. Jawade would however, submit that the evidence of Piyush, which is accepted by the Sessions Judge, is sufficient to bring home the charge.

9. The learned Sessions Judge has on interacting with the victim noted that she is not a competent witness. That the victim is mentally challenged is established beyond any doubt by the cogent evidence on record. Geeta the mother of the child victim (PW 2) and her brother Piyush (PW 3) have deposed that the victim is mentally challenged and is not in a position to understand anything. This evidence is not seriously challenged. PW 1 – Police Patil has also deposed on similar lines. PW 8 Dr. Amit Nagarkar has deposed that the victim was admitted in the Regional Mental Hospital, Nagpur on 17.10.2013 and was examined by him on 18/19.10.2013. She was diagnosed with psychosis NOS. The victim was discharged on 07.10.2014 after she showed partial improvement. PW 7 Dr. Pravin Navkhare has proved the certificate Exh.51 which she issued on the basis of record. Similar is the deposition of PW 7 Dr. Pravin Navkhare who was then working as Medical Officer at the Regional Mental Hospital, Nagpur and who examined the victim twice. PW 7 Dr. Pravin Navkhare deposed that the victim was not cured and was treated as outdoor patient on her discharge. PW 7 Dr. Pravin Navkhare categorically stated that the illness from which the victim is suffering is not curable. PW 7 and PW 8 have proved medical case papers Exh.73. Considering the evidence on record, I have no hesitation in concurring with the learned Sessions Judge that the mental illness of the victim and therefore, her inability to give consent to a physical relationship, is established beyond reasonable doubt.

10. The learned Sessions Judge held that since medical certificate Exh.27 states that the hymen of the victim is ruptured, the prosecution case that the victim was subjected to sexual intercourse is corroborated. However, if the medical certificate Exh.27 is perused, it is seen that although the hymen is stated to be ruptured the edges were healed and bleeding was absent. The medical evidence is not indicative of recent sexual intercourse. Therefore, the learned Sessions Judge clearly erred in treating the medical certificate as corroborative evidence.

11. Irrefutably, there is no evidence, other than the evidence of PW 3 Piyush, which would assist the Court in arriving at any conclusion with any degree of certainty as to whether the victim was subjected to sexual intercourse. The scientific evidence is absent and the medical evidence is inconclusive. It would therefore, be necessary to consider the evidence of PW 3 Piyush to assess whether the prosecution has established beyond reasonable doubt that the victim, who unfortunately was in no position to enter the witness box due to her mental disability, was subjected to sexual intercourse.

12. I have considered the evidence of PW 3 Piyush who was 9 years old at the time of the incident. The evidence of PW 3 Piyush is accepted by the trial Court, and I do not see any reason to take a different view. The evidence is natural and appears to be truthful and trustworthy. However, even if the evidence of PW 3 Piyush is accepted, all that can be said is that he saw the accused and the victim in naked condition. The question which needs to be answered is whether the evidence is sufficient to hold the accused guilty of rape. It is in this context, that the alternate submission of the learned counsel Shri L.B. Khergade that the accused can at the most be convicted for the offence under section 354 of the Indian Penal Code needs consideration. Shri N.B. Jawade, the learned Additional Public Prosecutor would respond to the alternate submission by contending that even if sexual intercourse is held not proved, the offence of attempt to rape is clearly established. Shri N.B. Jawade, the learned Additional Public Prosecutor would rely on the decision of the Hon'ble Apex Court in Madan Lal v. State of Jammu and Kashmir reported in AIR 1998 SC 386.

13. The distinction between intention, preparation and an attempt is well recognized albeit the dividing line between preparation and an attempt is at times blurred. The distinction between attempt to rape and criminal assault is considered by the Hon'ble Apex Court in the case of Tarkeshwar Sahu v. State of Bihar (Now Jharkhand) reported in (2006) 8 SCC 56 thus:

“14. The distinction between rape and criminal assault has been aptly described in the English case Rex v. James Lloyd (1836) 7 C&P 317 : 173 ER 141. In this case, while summing up the charge to the jury, Justice Patterson observed :
In order to find the prisoner guilty of an assault with intent to commit a rape, you must be satisfied that the prisoner, 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.
15. A similar case was decided by Mirza and Broomfield JJ. of the Bombay High Court in Ahmed Asalt Mirkhan Criminal Appeal No.161 of 1930, decided on 12-8-1930 reported in Law of Crimes by Ratanlal Dhirajlal's page 922. In that case the complainant, a milkmaid, aged 12 or 13 years, who was hawking milk, entered the accused house to deliver milk. The accused got up from the bed on which he was lying and chained the door from inside. He then removed his clothes and the girl's petticoat, picked her up, laid her on the bed, and sat on her chest. He put his hand over her mouth to prevent her crying and placed his private part against hers. There was no penetration. The girl struggled and cried and so the accused desisted and she got up, unchained the door and went out. It was held that the accused was not guilty of attempt to commit rape but of indecent assault. The point of distinction between an offence to commit rape and to commit indecent assault is that there should be some action on the part of the accused which would show that he is just going to have sexual connection with her.”

14. It would also be apposite to notice the following observations of the Hon'ble Apex Court in State of Rajasthan vs. Sri Chand reported in (2015) 11 SCC 229 :

“8. We find that FIR was recorded under Section 376 read with Section 511 of Indian Penal Code i.e. attempt to rape and not rape per se. There is no eye witness on record apart from the prosecutrix herself as PW 3 Biharilal only saw the accused fleeing away and Saroj, the alleged eye witness, was never produced before the Court nor her statement was recorded under Section 161 of Code of Criminal Procedure. Also, no medical examination of the prosecutrix has been conducted. The prosecutrix has in her statement stated that the accused Sri Chand took her inside her house, closed it, undressed her and undressed himself. Thereafter, she states, he got on to her and did bad work. On being repeatedly asked what bad work was done, she kept quiet and bowed her head, in embarrassment understandably. One must not lose sight of the fact that the prosecutrix was a minor child at the time of the incident. The father (PW 6) of the prosecutrix has categorically stated that bad work meant rape. However, we find difficulty in veracity of his statement since he was not an eye witness and was not even told about the incident by the prosecutrix. He was told details of the incident by Biharilal (PW 3) who is not an eye witness to the incident. However, Biharilal was the first person to have learnt of the offence from the prosecutrix and he has completely corroborated her version. By this consistent evidence what is proved beyond reasonable doubt is the offence under Section 354 of Indian Penal Code. However, the question of attempt to rape is not proved beyond reasonable doubt. On the question of attempt to rape, learned Counsel appearing for the Respondent has sought to rely on two precedents being Aman Kumar and Anr. v. State of Haryana MANU/SC/0104/2004 : (2004) 4 SCC 379, and Tarkeshwar Sahu vs. State of Bihar (now Jharkhand) MANU/SC/4421/2006 : (2006) 8 SCC 560. In both the cited judgments it is held that for the act to constitute offence of rape penetration is pre-requisite (this is the pre 2013 Criminal Amendment position of law) and therefore for the offence of attempt to rape the accused must have so advanced in his actions that it would have resulted into rape had some extraneous factors not intervened. It is held in Aman Kumar's case that in order to come to the conclusion that attempt to rape is committed it should be shown that the accused was determined to have sexual connection (penetration) with the prosecutrix at all events inspite of all resistance. In the present case the accused fled away on when the PW 3 came to the place of incident due to shouting of the prosecutrix. This shows he wasn't determined to have sexual connection with the prosecutrix despite all resistance and odds. Also it would be relevant to note that there are inconsistencies in the statement of the prosecutrix wherein she states that she had suffered injuries on her breast but same is not corroborated by the medical evidence. Also, Saroj, who is an important eye witness, is not produced as a witness. In this view of the matter, we find it difficult to hold that offence of attempt to rape is proved to a sufficient measure.”

15. From the evidence on record it is difficult to come to any conclusion, with any degree of certainty, that the accused intended to gratify his passions under any circumstance and that he was prevented by some external factor or the stiff resistance of the victim from completing the carnal act. In Madan Lal v. State of Jammu and Kashmir the Hon'ble Supreme Court articulates thus:

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 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 commit 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.
The evidence which the Hon'ble Supreme Court took into consideration was the evidence of the prosecutrix herself, which was found reliable, the chemical and microscopical tests which revealed the presence of semen/human spermatozoa on the clothes of the prosecutrix and the testimony of the mother of the prosecutrix to the effect that the prosecutrix immediately narrated the entire episode to her. It is in the light of the evidence on record that the observations reproduced supra are made by the Hon'ble Supreme Court.

16. I am not persuaded to uphold the conviction of the accused for the offence punishable under Section 376(2)(l) of the Indian Penal Code. Instead, the accused is liable to be convicted under Section 354 of the Indian Penal Code.

17. The conviction of the accused under Section 376(2)(l) of the Indian Penal Code is set aside. The accused is convicted for an offence punishable under Section 354 of the Indian Penal Code and sentenced to suffer rigorous imprisonment for four years. The sentence of payment of fine is confirmed. The conviction under Section 451 of the Indian Penal Code and the sentence imposed is confirmed.

18. The appeal is partly allowed in the aforestated terms.