CRA No.595-SB of 2001 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CRA No.595-SB of 2001 Date of decision : 22.11.2010 Dharma ...Appellant Versus State of Haryana …Respondent CORAM : HON’BLE MR. JUSTICE JITENDRA CHAUHAN **** Present: Mr. S S Narula, Advocate, for the appellant. Mr. Kshitij Sharma, AAG, Haryana. **** JITENDRA CHAUHAN, J. 1. The present criminal appeal has been filed against the judgment of conviction and order of sentence dated 5.5.2001 (hereinafter referred to as the ‘impugned judgment’) whereby the learned Additional Sessions Judge (I), Kaithal (hereinafter referred to as the ‘trial Court’), has convicted the appellant for the commission of offence punishable under Section 376 read with Section 511 of IPC and awarded him sentence to undergo rigorous imprisonment for a period of three years. 2. Brief facts of the present case as set up by the prosecution, are that on 15.11.1999 at about 4.00 p.m., the 1 CRA No.595-SB of 2001 prosecutrix along with her daughter, Geeta Devi, was going towards the fields of Joga Singh for fetching fodder. When they reached near the field of Dharma son of Faquiria, the accused-appellant, namely, Dharma son of Lal Chand, suddenly came out of the sugarcane field and dragged the prosecutrix in the field after gagging her mouth with his hands. Thereafter, he broke open the string of her salwar and forcibly tried to commit rape upon the prosecutrix. However, the prosecutrix resisted. On seeing this, her daughter, Geeta Devi, raised alarm and ran towards the nearby Dera. However, one Rajbir, son of the brother-in-law (jeth) of the prosecutrix, met Geeta Devi on the way and both of them entered the sugarcane field. On seeing them, accused-Dharma, who was lying over the prosecutrix, ran away from the spot. In the meantime, Sukhbir, another son of the jeth of the prosecutrix. Both Rajbir and Sukhbir chased the accused and apprehended him after covering a distance of 6-7 killas. They brought the accused to the Dera of Joga Singh, where many other villagers had also collected. However, the accused managed to slip from the Dera. After some time, the father of the accused along with other co-villagers, reached the Dera and attempts were made to compromise the matter. However, the Panchayat failed to get the matter compromised and the prosecutrix along with her husband, approached the Police and got recorded the complaint, Ex.PE, on 16.11.1999, on the basis of which, formal FIR, Ex.PE/1, was recorded. 3. On completion of investigation, challan was presented against the accused. Learned CJM, Kaithal, on finding a prima facie case against the accused, committed the same to the Court of Sessions whereupon, the accused was charge-sheeted for the 2 CRA No.595-SB of 2001 commission of offence punishable under Section 376/511 IPC, to which the accused pleaded not guilty and claimed trial. 4. In order to substantiate its case against the accused, the prosecution examined as many as nine following witnesses:- PW1-Dr. S S Dahiya, medically examined the prosecutrix on 16.11.1999 and proved a copy of the medico-legal report as Ex.PD. He also medically examined the accused-Dharma on 19.11.1999 and proved a copy of the medico-legal report as Ex.PA. He also deposed that the injuries No.1 and 2 suffered by the prosecutrix and the injuries suffered by the accused could not be self- inflicted. PW2-HC Vijender Singh, recorded the formal FIR Ex.PE/1, on receipt of memo Ex.PE from SI Rameshwar Dass. PW3-Constable Kamal Rattan is a formal witness. PW4-Hemant Kumar, Patwari, Halqa Pharal, prepared the scaled site plan, Ex.PH, of the place of occurrence. PW5-the prosecutrix reiterated the entire prosecution version. PW6-Geeta Devi, daughter of the prosecutrix; and PW7- Rajbir, son of the jeth of the prosecutrix, also supported the case of the prosecution. PW8-ASI Jogi Ram, arrested the accused on 19.11.1999 and got him medically examined from the Government Hospital. PW9-SI Rameshwar Dass, deposed about the steps taken by him during the investigation of the case. 5. Statement of the accused under Section 313 Cr.P.C. was recorded while putting him all the incriminating circumstances and material appearing against him in the prosecution case. He denied 3 CRA No.595-SB of 2001 the allegations and pleaded innocence. In his defence, the accused examined Raja son of Kadmu as DW1. 6. After hearing learned counsel for the parties and appreciating the material on record, the learned trial Court convicted and sentenced the accused-appellant for the offence and term as indicated at the outset hereinabove. 7. The present appeal was admitted by this Court on 21.5.2001. 8. Learned counsel for the appellant has submitted that there is unexplained and inordinate delay of one day in lodging the FIR. He has argued that this delay has been utilized to create evidence so as to fit into the facts of the prosecution case. 9. Learned counsel has further submitted that the medical evidence does not corroborate the ocular version. He has pointed out that Dr. S S Dahiya, PW1, medico-legally examined the prosecutrix on 16.11.1999 and found three injuries on her person. Learned counsel has contended that none of the injuries indicated in the MLR, Ex.PD, was suffered on the private parts of the prosecutrix. 10. Learned counsel has further submitted that the conviction of the appellant is solely made on the basis of the statement of the prosecutrix without any independent corroboration. No independent witnesses, particularly, the husband, who was the main witness, was examined. Geeta, PW6, and Rajbir, PW7, are close family members and are interested witnesses, therefore, their testimonies cannot be relied upon for convicting of the appellant. The learned counsel contends that there is no evidence which indicates the commission of any offence relating to the attempt to rape or even outraging the modesty of the prosecutrix. The solitary statement of the prosecutrix 4 CRA No.595-SB of 2001 without any corroboration by the independent witness is not sufficient to convict the appellant. 11. Learned counsel has further submitted that Geeta, PW6, daughter of the prosecutrix, and Rajbir, PW7, have not said anything regarding any attempt to rape. The testimony of Geeta, PW6, is totally silent in this regard whereas in the testimony of Rajbir, the fact of the appellant running away after wearing of the pant has come. The learned counsel, thus, submitted that there is nothing to corroborate the allegation as set up by the prosecution. 12. Learned counsel has further submitted that even if the entire set of allegations against the appellant are taken to be correct, yet the case at the most would fall within the ambit of Section 354 IPC, i.e., outraging the modesty of a woman and not under Section 376 IPC. 13. Learned counsel has further stated that the version put forth by the appellant is more probable which is fully supported by the statement of Raja, DW1. The appellant has taken a specific stand that he rebuked the prosecutrix for taking fodder from his field without his permission and threatened to raise the matter before the Panchayat and lodge FIR against the prosecutrix. He thus submits that the present FIR was lodged solely with a view to pre-empt the appellant from taking any action against the prosecutrix. 14. On the other hand, learned counsel for the State has prayed for maintaining the judgment and order passed by the learned trial Court. He has submitted that the case of the prosecution is fully established on the basis of the deposition of the prosecutrix, Geeta, PW6, who raised an alarm, on which Rajbir, PW7, along with his brother, Satbir, apprehended the appellant. 5 CRA No.595-SB of 2001 15. I have heard learned counsel for the parties and perused the record carefully with their able assistance. 16. The occurrence in the instant case took place on 15.11.1999 at 4.00 p.m. in the fields. The prosecutrix was rescued by Rajbir, PW7, who later on apprehended the appellant with the help of his brother, Sukhbir. It has specifically come in the deposition of the prosecutrix that a Panchayat was convened on the same evening at the dera of Joga Singh with whom, her husband was employed as agriculture help. The prosecutrix has further stated that the father of the accused was also present in the Panchayat, however, when no decision could be taken in the Panchayat, she along with her husband approached the Police on the next day and lodged the complaint. The fact of convening of Panchayat is also reflected in the statement of Geeta, PW6 as well as Rajbir, PW7. The accused- appellant has also admitted the factum of meeting of the Panchayat at the dera of Joga Singh. Therefore, it emerges that the prosecutrix had been making efforts to get her grievance redressed. However, when no decision could be taken, the matter was immediately reported to the Police by the prosecutrix and her husband. Moreover, there is nothing on record to suggest that the prosecution introduced any false evidence, thus, the delay in the instant case has been properly explained. It is further to be noticed that in the cases of sexual offences, delay in lodging the FIR could be on account of multiple reasons particularly in the countryside, women and their families would always be reluctant to approach the Police to lodge the complaint as it harms the reputation and honour of both the family and the victim. 6 CRA No.595-SB of 2001 17. As per the statement of Dr. S.S. Dahiya, PW1, who medico-legally examined the prosecutrix, three injuries were noticed on her person, whereas, two injuries were found on the person of the appellant. Dr. Dahiya has categorically opined that neither of the injuries found on the person of the prosecutrix nor on the person of the appellant could possibly be self-suffered. This is the precise case of the prosecution that the prosecutrix was overpowered, her mouth gagged and was dragged into the sugarcane field by the appellant. The prosecutrix was laid on the ground, however, she kept on resisting. The injuries suffered on the person of the prosecutrix fully corroborate the version given by the prosecutrix, therefore, the ocular version corroborates the medical evidence. The injuries on the person of the appellant further accord truthfulness to the statement of the prosecutrix that there was a scuffle between her and the accused, in which both of them suffered injuries. 18. The case of the prosecution is fully corroborated by the statement of Geeta, PW6, daughter of the prosecutrix. Geeta was with her mother at the time her mother was overpowered and taken inside the field. She raised an alarm which attracted Rajbir, PW7, and Sukhbir. Both of them rescued the prosecutrix. On seeing Rajbir, the appellant ran away. It has come in the statement of Rajbir that he saw the appellant wearing his pants whereafter he ran away from the spot, whereas her aunt, the prosecutrix, was lying naked. Thus, there is complete corroboration by these witnesses of the version rendered by the prosecution. 19. From the facts on record, it is fully established that the appellant had the intention to commit the offence of rape. But mere intention to commit an offence which, if not followed by an act, cannot 7 CRA No.595-SB of 2001 constitute an offence. However, the act of the appellant suggests that he had proceeded beyond the preparation to commit the offence. However, the law does not allow a locus poenitentiae and will not hold that a person had attempted a crime until he passed beyond the stage of preparation. However, in the instant case, the appellant overpowered the prosecutrix, gagged her mouth, dragged her inside the sugarcane field and broke open the string of her salwar and laid the prosecutrix on the ground despite her being offering resistance, in which both of them suffered injuries goes to prove that the appellant made a direct movement towards the commission of offence after the preparations were made. Therefore, it is established that though the appellant failed in accomplishing his evil design of raping the prosecutrix on account of resistance offered by the prosecutrix and on account of arrival of Rajbir, PW7, and his brother, Sukhbir on the spot to rescue the prosecutrix. The appellant failed only due to the reasons beyond his control. Section 511 IPC reads as under:- 8 CRA No.595-SB of 2001 “Section 511. Punishment for attempting to commit offences punishable with imprisonment for life or other imprisonment Whoever attempts to commit an offence punishable by this Code with 1[imprisonment for life] or imprisonment, or to cause such an offence to be committed, and in such attempts 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 2 [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, one-half of the longest term of imprisonment provided for that offence], or with such fine as is provided for the offence, or with both.” 20. I have no hesitation to hold that the appellant attempted to commit the offence as the ingredients of intention, preparation and his acts towards its commission, though not penultimate act, but indeed an act sufficient to hold guilty for the offence done. 21. The case of the prosecution is fully proved except for the fact that there is a contradiction regarding the arrest of the appellant. As per the statement of Rajbir, PW7, the appellant was taken into custody on the same date, i.e. 16.11.1999, whereas, ASI Jogi Ram, PW8, has stated that he arrested the accused on 19.11.1999. In this regard it is to be seen that it has come in the statement of the prosecutrix that the appellant was overpowered and brought to the 9 CRA No.595-SB of 2001 dera of Joga Singh from where the appellant slipped away. It is quite possible that the Police took him for interrogation on 16.11.1999 and arrested on 19.11.1999. However, the case of the prosecution is proved beyond reasonable doubt on the strength of the testimony of the prosecutrix, Geeta, her daughter, PW6, who is an eyewitness and the statement of Rajbir, PW7, coupled with the medical evidence. The statement of the prosecutrix, who is an injured witness is truthful, therefore, no further corroboration is required. 22. From the facts on record, it is duly established that the accused attempted to commit rape on the prosecutrix without her consent and against her will. His ulterior design could only be frustrated on account of the strong resistance offered by the prosecutrix. The version rendered by the appellant that the prosecutrix took fodder from his field, who in turn, threatened her to take the matter to the Panchayat and lodge an FIR, is highly improbable as the cutting of fodder is a very trivial matter which would not provoke any person to take the matter to the Panchayat and lodge an FIR. In the same manner, the way Raja, DW1, has supported the version of the appellant, it appears that he is a procured witness. His presence is not proved at the time of occurrence. 23. Resultantly, the present appeal is dismissed. The appellant is on bail. He shall be taken into custody forthwith to suffer the remaining part of sentence. His bail bonds shall stand cancelled. 22.11.2010 (JITENDRA CHAUHAN) atulsethi JUDGE Note : Whether to be referred to reporter : Yes / No 10