^i HIGH COURT OF CHHATTISGARH AT BILASPUR Single Bench: Hon'ble Shri Justice Radhe Shvam Sharma Criminal ApReal No.1790 of 1996 Komal Sahu and another versus State of Madhya Pradesh (Now State of Chhattisgarh) JUDGMENT Postfor |^j -12-2011 Sdt- R.S. Sharma Judge HIGH COURTOF CHHATTISGARH AT BILASPUR Single Bench: Hon'ble Shri Justice Radhe Shvam Sharma Criminal Appeal No.1790 of 1996 Appellants 1. 2. versus Respondent Komal Sahu, S/o Chinta Sahu, aged 22 years, occupation agriculturist, Tika Ram Yadav, S/o Jaipal Yadav, aged 20 years, occupation agriculturist, All residents ofVillage Paragaon, P.S. Aarang, Tahsil and District Raipur State of Madhya Pradesh (now State of Chhattisgarh) Present: Shri V.K.Sharma, counsel for the appellants. Shri M.P.S.Bhatia, Deputy Government Advocate for the State/respondent. Criminal Appeal under Section 374(2) of the Code of Criminal Procedure JUDGMENT (Delivered on !'•) December, 2011) This appeal is directed against judgment dated 2-9-1996 passed by 4 Additional Sessions Judge, Raipur in Sessions Trial No.333/1994. By the impugned judgment, accused persons/appellants Komal Sahu, Tika Ram Yadav and Santosh Kumar Kewat (now dead) have been convicted under Sections 376/511 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for 3% years each and to pay fine of Rs.1,000/-each, in default thereof, to further undergo imprisonment for six months each. By the impugned judgment, two other accused '/' (!yL ^ 2 persons, namely, Dhanraj and Prahalad Dheemar were acquitted of the charges framed against them. 2. During pendency of the appeal, accused Santosh Kumar Kewat died on 8-6-2006, therefore, the appeal abated against him vide order dated 18-11-2011. 3. Case of the prosecution, in brief, is as under: Oh 17-2-1994, a fair (Madai) was going on in Village Paragaon. Prosecutrix Rajimbai (PW-5) and Kumari Purnimabai (PW-1) had gone to the fair (Madai). At about 7-8 P.M., when they were returning from the Madai, accused persons Komal, Tika Ram and Santosh caught the prosecutrix and dragged her to a school. Accused persons Dhanraj and Prahalad had also come there. Kumari Purnimabai (PW-1) had chased them to the school. The accused persons had caused the prosecutrix to lie down and they had broken the lace of her Paijama (trousers) and torn her Salwar for committing rape. The prosecutrix and Kumari Purnimabai (PW-1) raised alarm and screamed. Having heard the shout, many persons gathered there. Having seen them, the accused persons fled from there. On the next day, i.e., 18-2-1994, a village panchayat was held in which the prosecutrix narrated the inddent. Kumari Purnimabai (PW-1) was also present in the said panchayat. At the advice of the said panchayat, the prosecutrix had lodged First Information Report (Ex.P-5). After completion of the investigation, charge sheet was filed against the appellants in the Court of Judicial Magistrate First Class, Raipur, who, in turn, committed the case to the Court of Session, / from where, it was received on transfer by 4 Additional Sessions Judge, Raipur, who conducted the trial, convicted and sentenced the appellants as mentioned above. 4. Shri V.K.Sharma, learned counsel for the appellants argued that the First Information Report (Ex. P-5) was lodged at belated stage after due deliberation. The evidence of the prosecutrix and Kumari Purnimabai (PW-1) is not cogent and reliable. Therefore, the conviction cannot be based on their testimonies. Hence, the appellants deserve to be acquitted of the charges framed against them. 5. On the contrary, Shri M.P.S.Bhatia, learned Deputy Government Advocate for the State/respondent, supporting the impugned judgment, submitted that the impugned judgment of conviction and sentence passed by the learned Additional Sessions Judge is impeccable and does not warrant any interference by this Court. 6. I have heard learned counsel for the parties at length and have perused the material available on record with utmost circumspection. 7. Prosecutrix Rajimbai (PW-5) and Kumari Purnimabai (PW-1) deposed that they had gone to a Madai in Village Paragaon at about 7 P.M. When they were returning from the Madai, at about 8-9 P.M., the accused persons caught Rajimbai (PW-5) and dragged her to a school. They caused the prosecutrix to lie down and they broke the lace of her Paijama (trousers) and tore her Salwar for committing 7.4 ^ rape. The prosecutrix and Kumari Purnimabai (PW-1) raised alarm and screamed. Having heard the shout, many persons gathered there. Having seen them, the accused persons fled from there. Kumari Purnimabai (PW-1) deposed that on the next day, i.e., 18-2- 1994, a village panchayatwas heldin which she and the prosecutrix narrated the incident. At the advice of the said panchayat, the prosecutrix had lodged First Information Report (Ex.P-5). 8. Mahara Satnami (PW-2) deposed that at about 9 P.M., Kumari Purnimabai (PW-1) and Rajimbai (PW-5) had come to his house and narrated him the incident. On the next day, a village panchayat was held in which both the girls had narrated the incident. Lakhanlal Kumbhkar (PW-3) deposed that a village panchayat was held in which both the girls had narrated the incident. 9. Rajimbai (PW-5) deposed that she had lodged FIR (Ex. P-5). Sub-lnspector Jagat Narayan Tiwari (PW-6) deposed that on 18-2- 1994, at about 5:30 P.M., he had registered the FIR (Ex.P-5) lodged by Rajimbai (PW-5). The incident took place on 17-2-1994 at about 8-9 P.M. and the FIR (Ex.P-5) was lodged on 18-2-1994 at about 5:30 P.M. The reason of delay in lodging the FIR is mentioned to be the time elapsed in calling father of the prosecutrix from his village. 10. Rajimbai (PW-5) deposed that she had come to the house of her eldersister atVillage Paragaon for visiting a Madai. She is resident of Village Paraskol. At the time of incident, her father was present at Village Paraskol. The FIR (Ex.P-5) was lodged after coming of her father from Village Paraskol. ./•- ./ 11. Delay in lodging FIR in rape cases cannot be used as a ritualistic formula for discarding prosecution case and doubting its authenticity. It only puts the Court on guard to search for and consider if any explanation has been offered for the delay. Once it is offered, the Court is to only see whether it is satisfactory or not. In case, if the prosecution fails to satisfactorily explain the delay and there is possibility of embellishments or exaggerations in the prosecution version on account of such delay, it is relevant factor. On the other hand, satisfactory explanation of the delay is weighty enough to reject the plea offalse implication. 12. Mere delay in lodging the FIR cannot be a ground by itselffor throwihg the entire prosecution case overboard. The Court has to seek an explanation for delay and test the truthfulness and plausibility of the reason assigned. If the delay is explained to the satisfaction of the Court, it cannot be counted against the prosecution. In the instant case, the prosecutrix was an unmarried young girl and her father was not present at the time of incident. Her father was called from Village Paraskol. Thereafter, the FIR(Ex.P-S) was lodged. The delay in lodging the FIR (Ex.P-5) was due to village panchayat, fear of insult and social disrepute, therefore, the delay in lodging the FIR (Ex.P-5) was satisfactorily explained. Therefore, the explanation given by the prosecution for delay in lodging the FIR (Ex.P-5) is plausible and reliable. 13. It is well settled that a prosecutrix complaining of having been a victim of the offence of rape or outraging of modesty is not in good state of mind after the crime. There is no rule of law that her testimony cannot be acted without corroboration in material particulars. The prosecutrix stands at a higher pedestal than an injured witness. In the later case, there is injury on the physical form, while the former it is both physical as well as psychological and emotional. 14. In the instant case, the evidence of the prosecutrix is duly corroborated by Kumari Purnimabai (PW-1), Mahara Satnami (PW- 2) and Lakhanlal Kumbhkar (PW-3). Nothing has been brought on record by the appellants which could show their false implication by the prosecutrix. 15. Now, 1 shall examine whether offence under Sections 376/51 1 IPC is made out? 16. Learned trial Court, in paragraph 17 of the impugned judgment, held that the accused persons had taken out Salwar of prosecutrix Rajimbai (PW-5) and had caused her to lie down. Relying on Nathuram vs. State of Haryana, (1994) 1 SCC 491, the learned trial Court further held that the accused persons attempted to commit rapewith Rajimbai (PW-5) in a school at Village Paragaon on 17-2-1994 at about 8-9 P.M. 17. 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, amounting to more than mere preparation, but falling short of actual consummation, and, 7 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, falling short of, its actual commission. It may eonsequently be defined as that which if not prevented would have resulted in the full consummation of the act attempted. The illustrations given in Section 51 1 clearly show the legislative intention to make a difference between the cases of a mere preparation and an attempt. 18. In order to find an accused guilty of an attempt with intent 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. 19. In the instance case, the prosecutrix and Kumari Purnimabai (PW-1) specifically deposed that the accused persons caused her to lie down and they had broken lace of her Paijama (trousers) and torn her Salwar. Having heard the shout of the two girls, many persons gathered there. Having seen them, the accused persons fled from there. / I l- '^ ./..f' 20. There is no material to show that the accused persons had determined to have sexual intercourse in all events in the aforesaid background. The offence cannot be said to be an attempt to commit rape to attract culpability under Sections 376/511 IPC. But, the case is certainly one of indecent assault upon a woman. Essential ingredientsof the offence punishable under Section 354 IPC are that the person assaulted must be a woman, and the accused must be used criminal force on her intending thereby to outrage her modesty. 21. In the instance case, the act of the accused persons was not an attempt to commit rape. Their act was merely a preparation. Therefore, the appellants cannot be convicted under Sections 376/511 IPC. Their offence is liable to be punished under Section 354 IPC. 22. In view of the above discussion, it would be appropriate to set aside the conviction of the appellants under Sections 376/511 IPC and convict them under Section 354 IPC. 23. So far as sentence is concerned, now, the appellants are convicted under Section 354 IPC for which imprisonment for either description for a term which may extend to two years or with fine or with both is prescribed. The offence was committed on 17-2-1994, the appellants Were convicted and sentenced on 2-9-1996, the appeal remained pending since 11-10-1996 and the case remained pending for about 17 years. The appellants have already undergone for 2 months and 5 days. The custodial sentence of 2 months and 5 Gopal days suffered by the appellants and enhancing the fine amount of Rs.1,000/- to Rs.2,000/- each would meet the ends ofjustice. 24. Consequently, the appeal is partly allowed. The conviction under Section 376/511 IPC is set aside. Instead thereof, the appellants are convicted under Section 354 IPC and are sentenced to the period already undergone by them and to pay fine of Rs.2,000/-each, in default of payment of fine, to further undergo rigorous imprisonment for six months each. In case, the amount of fine of Rs.1,000/- imposed by the learned trial Court has already been deposited, the same shall be adjusted towards the fine imposed by this Court today. The amount of fine shall be paid within two months from today. Presently, they are on bail. Their bail bonds are cancelled and sureties stand discharged- - _ _- Sd/- R.S. Sharma Judge