IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 546 of 2010. Date of Decision: 2nd November, 2011. _______________________________________________________ Jai Singh ….Appellant. Versus State of Himachal Pradesh ..Respondent. Coram Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting1?Yes. For the appellant : Mr. Rajesh Verma, Advocate. For the respondent : Mr. A.K. Bansal, Addl. Advocate General and Mr. P.M. Negi, Deputy Advocate General. ____________________________________________________ SURINDER SINGH, J (Oral). By means of present appeal, the appellant has challenged his conviction and sentence passed by the learned trial Court in ST No.13-D/VII/2008, decided on 29.5.2009, whereby he has been sentenced to undergo imprisonment under each of the Sections as hereunder: Sl. No. Offence Under Section Sentence 1. 376/511 I.P.C. Rigorous Imprisonment for a period of seven years and to pay fine of `10,000/- in default, to further undergo rigorous imprisonment for two years. 2, 377 I.P.C. Rigorous Imprisonment for a period of seven years and to pay fine of `10,000/- in default, to further undergo rigorous imprisonment for two years. 3. 363 I.P.C. Rigorous Imprisonment for a period of Three years and to pay fine of `5,000/- in default, to further Whether reporters of the Local papers are allowed to see the judgment? - 2 - undergo rigorous imprisonment for one year. 4. 506 I.P.C. Rigorous Imprisonment for a period of Three years. The appellant, hereinafter to be referred as “the accused” was given the benefit of Section 428 of the Code of Criminal Procedure. All the substantive sentences were ordered to run concurrently. 2. Precisely, the case of the prosecution, has been that in the year 2008, the prosecutrix [minor child, aged about 10 years), was studying in 4th standard. On 6.2.2008, she had gone to attend her school but because of the stomach her mother PW7 Rita Devi sought half day’s leave and brought her back to home. But around 2.30 p.m., she was sent to fetch some vegetables. On the way the prosecutrix happened to come across the accused who claimed himself to be blind and sought assistance to lead him to his residence nearby. To render help to the accused, she assisted him. After covering some distance on the roadside there was a building of Sunil Kumar resident of Nagrota, which was under-construction. The accused told her that his place has come and asked her to go inside and bring out the container, but she refused. On this, the accused pushed her inside, but there was no such container. The prosecutrix was caught-hold by him undressed her, removed his pant, laid on her and put the - 3 - male organ into her mouth and then raped her. Thereafter he threatened her with dire consequences and threatened her not to disclose this fact to any one lest she would be killed. While parting, he handed over `5/- currency note to her. ii) On reaching home, she narrated the entire incident to her mother. She was weeping and was frightened. She further stated that on the way she had met PW4 Sanjeev Kumar with whom the accused had shaken his hands. She knew Sanjeev Kumar (PW4) because his daughters were her class-fellows. The description of the accused was also given by her to her mother. The father of the prosecutrix was working in “Ajit Samachar”. He was not at home. They took sometime to find out the accused. From 6.2.2008 to 12.2.2008 there were holidays in the school. On its opening day, the prosecutrix and her mother contacted Sanjeev Kumar in the school, who had come to drop his children and enquired about that man, who had met him on the day of alleged incident. He stated that he knew the accused, he was running a Dhabha at Sakoh. Then the matter - 4 - was reported to the police on 15.2.2008 in terms of FIR No.24 of 2008. iii) Police got the prosecutrix medically examined. Her MLC is Ext.PW1/B. During the investigation, police also took into possession the wearing apparels of the prosecutrix vide memo Ext.PW6/A. iv) PW19 A.S.P. Abhishekh Dular took up the investigation. He visited the spot of the alleged incident and found pant Ext.P1 on the spot and took into possession vide memo Ext.PW5/A. He also took the photographs Ext.A1 to A5, negative whereof is Ext.P6. v) Ultimately, the accused was arrested on 15.2.2008. He was got medically examined and was found fit to perform the sexual act. His MLC is Ext.PW9/B. vi) Police also got conducted the Test Identification Parade (TIP) before the Magistrate, where she correctly identified him. Pant of the accused and the wearing apparels of the prosecutrix were sent for the forensic examination alongwith ‘Pajama’ worn by the accused. Laboratory report is Ext.PW19/E. Semen stains - 5 - were found on the ‘Pajama’ which was taken from the person of the accused. 3. After recording the statements of the witnesses and completion of the Challan, it was presented in the Court for the trial of the accused. 4. Finding a prima facie case for the offences punishable under Sections 366-A, 376, 377 and 506 of the Indian Penal Code, he was accordingly charge-sheeted to which he pleaded not guilty and claimed trial. 5. To prove its case, besides examining the prosecutrix (PW5), her mother PW7 Rita Devi and her father PW8 Ravinder Samyal, the prosecution examined PW1 Dr. Anju Puri, who medically examined the prosecutrix on the request of the police. She did not find any external injury on the person of the victim. Hymen was found intact. Swabs and slides were taken. She issued the Medico Legal Certificate Ext.PW1/B. The prosecutrix was referred to the Radiologist to ascertain her age and as per the opinion of PW2 Dr. Anupama, she was found to be between 10-14 years on the basis of ossification of bones. Ski-grams are Exts.PW2/B to 2/E and her report is Ext.PW2/A. Gynecologist PW3 Dr. Kalpna Negi on the examination of the prosecutrix did not notice any injury, foreign hair blood or seminal stains on the person of the prosecutrix. Labia Majora and labia minora were found normal. Forchette - 6 - and hymen were also found intact. Vagina admitted only one small finger with difficulty. There was no injury, bleedings or discharge at the time of examination, but at the same time did not rule out the possibility of sexual assault. She gave her opinion Ext.PW3/A. 6. PW4 Sanjeev Kumar corroborated the case of the prosecution to the extent that on the day of alleged incident he met the accused who shook-hands with him and he also saw prosecutrix with him and also that on the opening of the school the details of the accused were asked by the mother of the prosecutrix from him to which he disclosed. PW6 Ashok Kumar is a witness to the recoveries and PW7 is the father of the prosecutrix. PW9 Dr. P.S. Chauhan had examined the accused and issued the MLC Ext.PW9/B alongwith his opinion Ext.PW9/C. PW16 Dr. Rakesh Verma ascertained the dental age of the prosecutrix between 7-10 years on the basis of dental examination. His report is Ext.PW16/A. The prosecution also examined some other formal witnesses. 7. After the closure of the prosecution evidence, the accused was also examined under section 313 of the Code of Criminal Procedure. He denied the circumstances which were found attendant upon him and pleaded innocence. When called upon to enter into his defence, he examined DW1 Smt. Ranjana Sharma to - 7 - prove the presence of the prosecutrix in the school on the day of the alleged incident. However, she stated that on 6.2.2008 the prosecutrix had come to the school, but she took half day’s leave. Since the attendance was taken in the morning only, therefore, she was marked present even in the evening session. In cross-examination she also stated that after taking leave she was taken back to her home by her mother and on 7.2.2008 her father had informed her about the incident. 8. On the scrutiny of the evidence, the learned trial Court found it a case of kidnapping, offence of unnatural, offence, attempted-rape and criminal intimidation, as such he was convicted and sentenced under Sections 363, 377, 376 read with Section 511 and 506 of the Indian Penal Code, as aforesaid, whereas he was acquitted for the offences under Sections 376, 366-A of the Indian Penal Code. 9. Shri Rajesh Verma, learned Counsel for the accused vehemently argued that there is unprecedented delay in lodging the FIR, which was the result of due deliberation in connivance with PW4 Sanjeev Kumar, who appears to have nourished enmity with him because of his business dealings and also that when the prosecutrix knew about the residence of the accused it should not have taken much time to report the matter to the police and - 8 - apprehend the accused. He further ventilated that there have been contradictions and the statements of the prosecution witnesses are not confidence inspiring. 10. Contra, Shri P.M. Negi, learned Deputy Advocate General supported the impugned judgment of conviction and sentence and further argued that the accused was not known to the prosecutrix prior to the alleged incident. She had given the physical features to her mother and also told her that after the incident the accused met PW4 Sanjeev Kumar when he was returning alongwith his children and shaken-hands with him. Since there were holidays in the school and on the first day of opening Sanjeev Kumar aforesaid met them in the school and it was then PW7 Rita Devi, the mother of the prosecutrix, ascertained about the identity of the accused and thereafter the parents of the prosecutrix decided to lodge the FIR and ultimately he was apprehended by the police. He further submitted that during the Test Identification Parade he was correctly identified by the prosecutrix, although the proceedings of the Identification Parade have not been placed and proved on record, yet he referred to the statement of the Investigating Officer to this effect and also submitted that it is not a case of mistaken identity as the alleged incident had taken place in the broad-day light. Not only that the accused was - 9 - identified during the TIP by the prosecutrix, but he was duly identified by her during the trial of the case. 11. Though there is a delay of about eight days in lodging the FIR owing to various factors; mainly the prosecutrix is a child, the accused was not known to her earlier, parents tried to locate the accused of their own before they could decide to approach police and to make it public and also the stigma attached to it is also a factor where the parents would think many time to muster the straight to take a suicidal step putting at stake the future of the female child. Thus the delay in such type of cases has to be approached from a different angle depending upon the circumstances of each case. Further, if the incident is proved to be true, the delay shall not weigh against the prosecution. 12. On appreciating the rival contentions of the parties and going through the evidence on record, I find that the judgment of conviction and sentence of the learned trial Court is legally and factually correct as the testimony of the prosecutrix is worth inspiring confidence and is supported by the other evidence on record in material particulars by the prosecution witnesses, i.e., PW7 Rita Devi, mother of the prosecutrix, PW4 Sanjeev Kumar, PW8 Ravinder Samyal, father of the prosecutrix and also by the - 10 - defence witness. Therefore, the delay in FIR is not fatal to the prosecution. 13. The count of the sexual assault by the accused is given by the prosecutrix quite bravely during the trial of the case. It is an admitted fact that the prosecutrix is a child witness, but she categorically and vividly stated about the sexual assault on her. She testified that on 6.2.2008, when she was sent by her mother to fetch vegetable from the shop on the way she came across the accused. He pretended that he was blind and requested her to lead to his house in a particular direction. Thus she helped him to find out the way to his place. He stated that on reaching a house under-construction, the accused told her that his place had come. Thereafter asked her to go inside the room to bring out the container, but she did not agree. She further stated that the accused pushed her forcibly inside the room, but did not find any container inside. Thereafter she was forcibly taken to a room of the house which was under-construction. Then directed her to put his male organ in her mouth. On her refusal, he threatened to kill her if she would not obey his command. She further stated that the accused forcibly put his male organ in her mouth despite her resistance, thereafter he forced her to lie down on the ground and put his male organ over her private part and also enquired as to where - 11 - it had touched. She replied that it had touched on her both sides from front side to back side and requested him to leave her, but this proved to be a futile request. After sometime he ejaculated something on her. The accused threatened to kill her, if she would disclose all these things to any one. He also gave the currency note of `5/- to her and left her. She stated that PW4 Sanjeev Kumar had met her when she was leading the accused to his house at his request, who at that time pretended himself to be a blind. In cross-examination she also stated that PW4 Sanjeev Kumar met her after 4-5 days in the school and from him her mother enquired about the accused. PW4 Sanjeev Kumar told her that he knew and could identify him, as he was running a hotel at village Sakoh. Thereafter the report was lodged. Accused was arrested and she identified the accused when shown. She denied that he was shown before her TIP. She further stated that she disclosed her mother on the same day that the accused had shaken hands with one person who met her on the way and her father had contacted Sanjeev Kumar to enquire about the accused. She also stated that she alongwith her parents had gone in a vehicle to the place where the accused was running the hotel. She was categoric in her statement that it was the accused and the accused only who had sexually assaulted her. - 12 - 14. PW7 Rita Devi, her mother stated about the condition of the prosecutrix when she met her immediately after the incident on her residence. According to her, the prosecutrix was frightened and weeping and on enquiry she disclosed about the incident aforesaid verbatim. She also disclosed that the prosecutrix told that the accused had met PW4 Sanjeev Kumar on the way when the accused was being taken to his residence and shook- hands with him and on having contacted Sanjeev Kumar aforesaid he disclosed the identity of the accused and place of running the hotel near his shop. She further stated that she could not inform the police before locating the accused first. They took sometime and then reported the matter to the police. She was confronted with her statement under Section 161 of the Code of Criminal Procedure with respect to the fact that she took half day’s leave from the school, but this fact was not so recorded. But she categorically stated that the prosecutrix was having stomach, as such she sought half day’s leave. She further stated that when they had gone to the police to report the matter, the police was reluctant to register the case without identification of the accused. Significantly, she admitted the suggestion that PW4 Sanjeev Kumar had disclosed that the accused was resident of Uttar Pradesh and had already been in the jail on rape charges in Uttar - 13 - Pradesh, whereas learned Deputy Advocate General submitted that as per police record, he is a previous convict in FIR No.260 of 1995, Police Station, Nurpur in another rape case wherein he was sentenced to undergo imprisonment for a period of ten years. 15. However, the statement of PW4 Sanjeev Kumar co- relates the aforesaid incident. His statement is sought to be assailed by the accused on the ground that he had some business tiff with him and he had to pay some amount to the accused. Rather he stated that the accused owes some amount. He stated that the prosecutrix had located him in the school when she was accompanying her mother to whom he stated that he had met the accused accompanying the prosecutrix taking him to his house. She also enquired about the identity of the accused to which he disclosed. 16. PW8 Ravinder Samyal, father of the prosecutrix also stated that on having come to know about the alleged incident they tried to locate the accused and ultimately he was apprehended by the police. 17. On the critical examination of the evidence aforesaid, I do not find that it was a case of mistaken identity as the incident had taken place in a broad-day light. The prosecutrix had an opportunity to clearly see him closely. - 14 - 18. The perusal of her statement as well as that of the Medical Officers shows that there was no penetration in the private part of the prosecutrix. The sine qua-non of the offence of rape is penetration and not ejaculation. Ejaculation without penetration constitutes an attempt to commit rape and not actual rape. An attempt to commit a crime is to be distinguished from the intention to commit the offence and from preparation made for its commission. Mere intention to commit an offence not followed by any act cannot constitute an offence. Further, an attempt to commit an offence is an act, or a series of acts, which lead inevitably to the commission of the offence, unless something which the doer of the act neither foresaw nor intended, happens to prevent this. Attempt is more than mere preparation, but falling short of actual consummation and possessing except for failure to consummate, all the elements of substantive crime. In other words, an attempt consists in it the intent to commit a crime, falling short of, its actual commission or consummation/completion. 19. The sine qua-non of rape is penetration and not ejaculation. Ejaculation without penetration constitutes an attempt to rape. 20. In the present case, as already stated above, there was an attempted-rape thus prosecution could only - 15 - prove the offence punishable under Section 376 read with Section 511 of the Indian Penal Code. Further, the evidence also establishes the commission of unnatural offence which falls within the ambit of Section 377 of the Indian Penal Code. Further, the help of the prosecutrix was taken by the accused on false pretext of his blindness to show the way to his residence, but on the way he took her and pushed inside the room to gratify his lust, also proves the offence of kidnapping under Section 363 of the Indian Penal Code against him. Since there was also a criminal intimidation/threatening to the life of the prosecutrix in case of disclosure, thus even, the offence under Section 506 of the Indian Penal Code stands proved beyond doubt. 21. On the scrutiny of the above evidence, I do not find that there have been any contradictions, embellishments or exaggerations in the statements of prosecution witnesses, much less in the statement of the prosecutrix herself, which stands corroborated in material particulars. Further, the punishment provided for the attempt crime is half of the punishment of the main offence. Therefore, in the totality of the circumstances, in my opinion, the sentence also requires no interference. 22. For the aforesaid reasons, the conviction and sentence passed by the learned trial Court does not suffer - 16 - from any infirmity, as such it stands affirmed. The appeal sans merit and is accordingly dismissed. 23. Send down the records. 2nd November, 2011. (Surinder Singh), (rc) Judge.