IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.Appeal No.435 of 2000 Judgement reserved on: 24.12.2007 Date of decision: 25.02.2008. Mohinder Pal ….. Appellant. Vs. State of H.P. …. Respondent. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting?1 Yes For the Appellant : Mr. K.S.Pathania, Advocate. For the Respondent : Mr. M.L.Chauhan, Addl. Advocate General. Kuldip Singh, Judge. 1. This appeal has been filed by accused against the judgement dated 20.7.2000 passed by the learned Sessions Judge, Solan, in Sessions trial No. 21-S/7 of 1999 convicting the appellant- accused under Section 511 read with Section 376 IPC and sentencing him rigorous imprisonment for five years and fine of Rs.5,000/-. On realization of the fine, the same shall be paid to the prosecutrix as compensation. In default of payment of fine, the appellant has been ordered to further undergo rigorous imprisonment for one year. Whether the reporters of the local papers may be allowed to see the Judgment? Yes …2… 2. The prosecution case in brief is that on 7.12.1998 there was marriage function in the house of one Madho Ram at village Salogra near Solan. PW-1 Prosecutrix alongwith her brother PW-3 Mohan Lal and other members of the family were also there. The appellant-accused was also one of the invitees in the marriage function. At about 9.00 p.m. one girl Seema requested prosecutrix to accompany her to toilet and accordingly prosecutrix alongwith Seema went to the backyard of the house of said Madho Ram. As soon as prosecutrix and Seema reached the backyard of the house of Madho Ram the accused also emerged on the spot. He allegedly gripped the prosecutrix from behind by her hair and gagged her mouth. He pushed the prosecutrix down and gave teeth bites on her both cheeks to satisfy his sexual urge. The accused placed his hands on the string of her Salwar and forcibly tried to denude her for committing sexual intercourse with her. The prosecutrix resisted the accused and did not allow him to succeed in his attempt to ravish her. She also raised shrieks. Seema whom prosecutrix had accompanied to the backyard had already ran away from the spot. On hearing the cries of prosecutrix, her brother PW-3 Mohan Lal accompanied by PW-4 Sunder Singh reached there. He saw his sister in the grip of accused. PW-3 and PW-4 over-powered the accused, liberated the prosecutrix from the grip and took the accused to the courtyard where many other people had already gathered. 3. On 8.12.1998, FIR Ext.PA was registered, the accused was arrested and after completion of the investigation the accused was challaned under Section 511 read with Section 376 IPC. The …3… accused was charged under Section 511 read with Section 376 IPC, to which he pleaded not guilty and claimed trial. The prosecution examined 8 witnesses. The statement of accused was recorded under Section 313 Cr.P.C. and he denied his complicity in the commission of the offence. He initially entered into defence but later did not examine any witness in defence. The learned Sessions Judge convicted and sentenced the accused under Section 511 read with Section 376 IPC as noticed above. Hence, this appeal. 4. I have heard Mr. K.S.Pathania, learned counsel for the appellant and Mr. M.L.Chauhan, Additional Advocate General for the State and gone through the record. It has been submitted on behalf of the appellant that the appellant has been falsely implicated in the case. The learned Sessions Judge has not properly appreciated the material on record. The girl Seema who was allegedly with the prosecutrix has not been examined. PW-4 Sunder Singh and PW-3 Mohan Lal are not independent witnesses. The medical evidence does not prove the injuries on the person of the prosecutrix as alleged. There are material contradictions in the prosecution story. No case under Section 511 read with Section 376 IPC is made out from the prosecution story. Lastly, he has submitted that the sentence imposed is excessive. The learned Additional Advocate General has supported the impugned judgement. 5. PW-1 is the prosecutrix. She has stated that on 7.12.1998 she had gone to attend the marriage of one Madho Ram in village Salogra. She was participating in the marriage inside the room, a girl Seema came to her inside the room and requested her to …4… accompany her to toilet. She accompanied her to the backyard of the house of Madho Ram for toilet. The moment she and Seema reached the backyard of the said house she was gripped from backside by accused. He gagged her mouth and pushed her down and gave her teeth bites on her both cheeks. He placed his hands on the string of her Salwar and forcibly tried to denude her for committing sexual intercourse with her. She tried her best to get herself released from the beastly attack of the accused but he over powered her firmly. When she found difficult to get released she raised shrieks. Her brother Mohan Lal came to the spot on hearing her shrieks accompanied by another person Sunder Singh. When they reached, the accused had gripped her. Her brother over powered the accused and freed her from the attack. The accused was caught by both of them and taken to the courtyard. Next day, she lodged FIR Ext.PA. She was medically examined. The accused is resident of nearby village, which is at a distance of about one kilometer. Her photographs Ext.PB to Ext.PD were also taken by the police. In cross-examination on behalf of the accused, she denied that letter Ext.DA is written by her, she, however, admitted her photographs Ext.DB and Ext. DC. She denied that she was acquainted with the accused. Seema left the spot when accused pounced upon her. She denied that injuries shown in photographs Ext.PB to Ext.PD are caused by nails. The string of Salwar was not broken though the accused tried hard to do so. She denied that there had been quarrel between her brother and the accused and the accused was given …5… beatings. She denied that she wanted to marry the accused, when accused refused he has been falsely implicated in the case. 6 PW-2 Dr. Archna, examined the prosecutrix on 10.12.1998 and she observed as follows: 1. Circular contusion of 2 inches diameter on right cheek. Periphery of the contusion was in ¾ c.m. brown in colour. Centre is clear. Periphery is interrupted at superior posterior and inferio medical aspect. Skin is abrated. 2. Circular contusion of diameter 2 inches on right thigh just below and over-lapping injury No.1, brown in colour, skin abrated. Centre is clear. 3. Circular contusion of diameter 1-1/2” on left cheek periphery of contusion in ¾ cm brown in colour, centre is clear. Periphery is interrupted at lateral and medial aspect. Skin is abrated. The nature of the injuries was simple caused more than duration of 24 hours. Injury can be caused by human teeth bite. She issued MLR Ext.PW-2/A which is signed by her and bears her signatures. In cross-examination she has denied that the injuries could be caused by rolling on a blunt surface, nor the injuries could be self inflicted. The injuries shown on the cheeks of the prosecutrix in photographs Ext.PB to Ext.PD appear to be the same as described in Ext.PW-2/A. The injuries were caused by human bite. 7. PW-3 Mohan Lal has stated that prosecutrix is his younger sister. On 7.12.1998 they were attending marriage in the house of Madho Ram. At about 9.00 p.m. he heard the shrieks of his sister from one corner of the house. He reached the spot and saw that his sister was gripped by the accused. Sunder Singh was also …6… with him. He got his sister released from the accused. He saw teeth bites on both the cheeks of his sister which were caused when accused attacked her. In cross-examination he has stated that when he reached Seema was not with prosecutrix. 8. PW-4 Sunder Singh has stated prosecutrix is his co- villager. He heard the cries of the prosecutrix and went to the spot. He saw that she was held, gripped and caught by the accused. Mohan Lal got prosecutrix released from the clutches of the accused. He saw both the cheeks of the prosecutrix were injured by teeth bite given by the accused. In cross-examination, he answered in affirmative that the accused had gripped prosecutrix in backyard of the house where grass was stacked. 9. PW-5 Smt. Manjula Kanwar, has proved birth entry Ext.PW-5/A of prosecutrix which is 8.12.1982. PW-6 H.C.Krishan Kumar has prepared site plan Ext.PW-6/A. PW-7 Nand Kishore has proved photographs Ext.PB to Ext.PD. PW-8 Durga Dass Sharma, Inspector Police has prepared the challan. 10. In his statement under Section 313 Cr.P.C. the accused has stated that family members of the prosecutrix wanted to marry her with him but he refused and therefore, he has been falsely implicated in the case. The accused initially opted for leading defence evidence but on 7.7.2000 decided not to lead any evidence in defence. 11. The learned counsel for the appellant-accused has submitted that the prosecution has miserably failed to prove the charge against the accused. He has been falsely implicated in the …7… case. PW-1 Prosecutrix has clearly stated and named the accused that he gripped her, gave teeth bites on her cheeks and put her hands on the string of her Salwar. Statement of prosecutrix for giving teeth bite has been supported by PW-3 Mohan Lal and PW-4 Sunder Singh. PW-2 Dr. Archna has also proved teeth bite injuries on the cheeks of prosecutrix. She has issued MLR Ext.PW-2/A. PW-2 has stated that injury can be caused by human teeth bite and the injuries shown in photographs Ext.PB to PD appear to be the same as described in Ext.PW-2/A. The learned counsel for the accused has submitted that prosecution has not examined the most important witness Seema and therefore, adverse inference is to be drawn against the prosecution. He has also submitted that many persons were present in the marriage function but no independent witness has been examined by the prosecution. As far as Seema is concerned, the prosecution case is that the prosecutrix accompanied her in the backyard of the house of Madho Ram for toilet and she fled-away from the spot when accused emerged on the spot. In fact, Seema is not an eye witness of the occurrence and in these circumstances, the non examination of Seema by the prosecution is not of any significance as far as accused is concerned. The prosecution case is that on hearing the shrieks of prosecutrix her brother PW-3 Mohan Lal accompanied by PW-4 Sunder Singh reached the spot and they rescued the prosecutrix from the clutches of the accused. It does not emerge from the evidence that any other person was also present in the backyard of the house of Madho Ram at the time of occurrence or any other person also rescued prosecutrix from the clutches of the …8… accused. PW-3 Mohan Lal is a natural witness who responded to the shrieks of her sister accompanied by PW-4 Sunder Singh. There is no reason to disbelieve the testimonies of PW-3 and PW-4. It has been submitted on behalf of the accused that prosecutrix wanted to marry the accused, he refused and therefore, he has been falsely implicated in the case by the family members of the prosecutrix. It is not understandable just on the alleged refusal for marriage by accused the family members of the prosecutrix would implicate the accused in a false case. It is not possible that the family members of the prosecutrix arranged teeth bites on the cheeks of the prosecutrix only to implicate the accused in the case. There is no substance in the defence of the accused. On the contrary, the prosecution has proved that accused got hold the prosecutrix, gripped her, pushed her down, gave teeth bites on her both cheeks. 12. The question is despite the proof of some facts, whether offence under Section 511 read with Section 376 IPC is made out against the accused. It is not the prosecution case that in fact the string of the Salwar of the prosecutrix was opened or broken by the accused and she was undressed. In FIR Ext.PA it has been stated that string of the Salwar of prosecutrix was opened by the accused by putting his hands but PW-1 in her statement in the Court has not stated so. She only stated that accused placed his hands on the string of her Salwar in order to denude her. There is material contradiction in the statement of prosecutrix in the Court and in FIR Ext.PA regarding the act of the accused with regard to string of her Salwar. The statement of prosecutrix that accused placed his hands …9… on the string of her Salwar has not been supported by any other witness. 13. In order to bring the case within the ambit of attempt to rape something more than teeth bites on the cheeks of the prosecutrix or even putting hands on the string of her Salwar was required to be proved by the prosecution. In absence of undressing of the prosecutrix and undressing of the accused or attempt to undress on his part, the prosecution of accused is short of attempt to commit rape on prosecutrix by the accused on the basis of material proved on record. 14. In State of Rajasthan vs. Vijairam, 1968 Cr.LJ 279, it has been held as follows:- In the instant case, after carefully considering the evidence, we are of the view that it is established beyond any manner of doubt that Smt. Shyam Kanwer was taken by the accused in the bed of the ‘nallah’, and there the accused, after raising her skirt, sat on her. To this extent, the evidence of Smt. Shyam Kanwer is corroborated by the evidence of Amarsingh and we accept their evidence as reliable. This certainly makes out an offence under Section 354 IPC and there was no reason for the trial Judge not to believe this part of the prosecution case. The accused is undoubtedly liable to be convicted under Section 354 I.P.C. 15. In Damodar Behera and another vs. State of Orissa, 1996 Cr.LJ 346, it has been held as follows: An attempt to commit an offence is an act, or a series of acts, which leads inevitably to the commission of the offence, unless something, which the doer of the act neither foresaw nor intended, happens to prevent this. An attempt may be described to be an act done in part execution of a criminal design, …10… amounting to more than mere preparation, but following short of actual consumption, and, possessing, except for failure to consummate, all the elements of the substantive crime. In other words, an attempt consists in it the intent to commit a crime, combined with the doing of some act adopted to, but falling short of, its actual commission. It may consequently be defined as that which if not prevented would have resulted in the full consummation of the act attempted. The illustration given in Section 511 clearly show the legislative intention to make a difference between the cases of a mere preparation and an attempt. In order to find an accused guilty of an assault with inent to commit a rape Court has to be satisfied that the accused, 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. Indecent assaults are often magnified into attempts at rape. In order to come to a conclusion that the conduct of the accused was indicative of a determination to gratify his passion at all events, and in spite of all resistance, materials must exist. Surrounding circumstances many times throw beacon light on that aspect. 16. In Jai Chand vs. the State, 1996 Cr.LJ 2039, it has been held as follows: Keeping in view what has been noticed by me above though we do find the appellant having forcibly laid Ms. Sharma down on the bed; having broken the string of her Pyjama and having torned her underwear, he made no attempt to undress himself. What is more, after Ms. Sharma had pushed him away he made no effort to grab her again, or to prevent her from going to the first floor. If that be so, it cannot be said that the appellant 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. This being the position it was not a case of attempt to commit rape under Section …11… 376 read with Section 511 but one under Section 354 of the IPC. His conviction is thus altered to one under Section 354 of the IPC. As regards sentence, the appellant has already lost his job. I am informed he has four children and has already undergone incarceration for a period of about eighteen months. Consequently the sentence is reduced to the period already undergone. Fine, if paid be refunded. 17. On the facts proved by the prosecution, case under Section 354 IPC is made out against the accused and not under Section 511 read with Section 376 IPC. Therefore, the impugned judgement to this extent requires modification and it is held that prosecution has proved the case against the accused under Section 354 IPC instead of under Section 511 IPC read with Section 376 IPC. 18. The accused was convicted and sentenced on 20.7.2000 by Ld. Sessions Judge. He was released on bail by this Court on 15.9.2000. Before that the accused was arrested on 8.12.1998 in the case and was released on bail by learned Sessions Judge on 10.12.1998. The accused thus remained in detention for about 60 days in all in the case. 19. In my opinion, the ends of justice will be served if the accused is sentenced to imprisonment for the period already undergone and fine of Rs.10,000/- and in default of payment of fine rigorous imprisonment for two months for offence under Section 354 IPC. 20. The result of the above discussion, the appeal is allowed. Conviction and sentence of the appellant-accused under Section 511 read with Section 376 IPC in case No. 21-S/7 of 1999 vide judgement dated 20.7.2000 by the learned Sessions Judge is set aside. The …12… appellant-accused is convicted and sentenced to undergo imprisonment for the period already undergone and fine of Rs.10,000/- and in default of payment of fine rigorous imprisonment for two months under Section 354 IPC. February 25, 2008. ( Kuldip Singh ) (TM) Judge.