CRIMINAL APPEAL NO.337/1998 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD UNREPORTED CRIMINAL APPEAL NO.337 OF 1998 Date of decision: 27/4/2011 For approval and signature HON'BLE MR.JUSTICE K.U.CHANDIWAL 1. Whether the Reporters of Local Papers Yes may be allowed to see the Judgment ? 2. To be referred to the Reporter or not ? No 3. Whether Their Lordships wish to see No. the fair copy of the Judgment ? 4. Whether this case involves a substantial? No. question of law as to the interpretation of the Constitution of India, 1950, or any order made thereunder ? 5. Whether it is to be circulated to the No. Civil Judges ? 6. Whether the case involves an important No question of law and whether a copy of the Order should be sent to Bombay, Goa and Nagpur Office ? Private Secretary AGP/office/337-98cr.a CRIMINAL APPEAL NO.337/1998 2 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO.337 OF 1998 (With Criminal Application No.903/2011) Umakant @ Umesh s/o Ramesh Khamkar, Age 24 years, Occu.Nil., r/o Upala (M), Taluka and District Osmanabad. ...APPELLANT VERSUS The State of Maharashtra. ...RESPONDENT ... Mr.N.B.Suryavanshi, Adv., h/f Mr. S.B.Bhosale, Adv., for the appellant. Mr. K.S.Patil, APP for State. ... CORAM: K.U.CHANDIWAL, J. DATE : 27/4/2011 *** ORAL JUDGMENT: 1. Heard. The appeal is admitted on 11.11.1998. 2. The appellant questions conviction recorded in Sessions Case No.111/1997 by learned CRIMINAL APPEAL NO.337/1998 3 Additional Sessions Judge, Osmanabad, dt. 14.10.1998, convicting him for an offense under Section 511 read with Section 376 of IPC and Section 354 thereof directing to undergo rigorous imprisonment for five years and simple imprisonment for one year, respectively, with fine. 3. The factual matrix, essential for decision of the appeal, is: The prosecutrix, claiming her age to be 55 years, indicated the same in her evidence, to be 70 years, within two years span of alleged incident dt.20.2.1997, claimed that while she was moving for the agricultural work at the cart- track, the accused/applicant, aged 18/19 years, came from behind, insisted for sexual satisfaction, ravished her by forcing the prosecutrix on the said cart-track. In the resistance, she suffered bruises, abrasions and her bangles also were broken. She claimed that there were traces of such ravishness on her apparels by way of blood stains and seminal fluid. 4. Based on above assertion, the accused faced prosecution, statements of witnesses were recorded, the seized apparels of the accused and CRIMINAL APPEAL NO.337/1998 4 of the prosecutrix were sent to the office of Chemical Analyzer, spot was visited, panchnama was drawn. The accused pleaded ignorance to the events. His defense is, he has been falsely implicated as the accused had controversy with the land owner Vyankatesh Ghogare with whom her brother Trimbak was working as a Clerk for 17 to 18 years. 5. On analysis of evidence of four witnesses, namely, PW 1 Ambubai, the prosecutrix, PW No.2 Trimbak Sakharam Zirpe, her brother, PW No.3 Jeevan Vyankatesh Padwal, the Panch near the field of Bidve ( spot panchnama) from where bangle pieces were taken charge and PW No.4 Smita w/o Manoj Ghogare, Medical Officer, having examined the prosecutrix. The learned Judge reached to a finding of guilt. Investigating Officer was not examined. 6. Smt.Smita, Medical Officer, PW No.4, does not confirm of any sexual abuse with the prosecutrix. She could not determine opinion regarding commission of rape on the prosecutrix. She informed, it did not suggest that prosecutrix complained history of injuries on her person as well as genital organs. Needless to indicate, the Medical Officer/expert did not find any injury at any part of the prosecutrix, then aged CRIMINAL APPEAL NO.337/1998 5 55 to 70 years. Chemical Analyzer's report indicated that there were no seminal traces or blood stains on her apparels. 7. The prosecutrix did not utter in her narration that after heinous incident the prosecutrix had a bath and, consequently, there could not be traces of stains either on her person or on apparels. Observation of her taking bath are contrary to the record. 8. The inter se acquaintance of the prosecutrix with the accused/appellant is not in question. Arrest Panchnama at Exh.13, panchnamas of seizure of a Saree on person of prosecutrix Exh.14, clothes of the accused at Exhs.15, age certificate of accused Exh.16, medical certificate of accused at Exh.17 and Chemical Analyzer's reports at Exhs.10 to 12 are admitted in evidence. 9. Learned Sessions Judge, on analysis of evidence of PW No.1 Ambubai, prosecutrix, her brother Trimbak, based on the available evidence, reached to conclusion that the prosecution has failed to establish that accused committed sexual intercourse with prosecutrix, he believed defense of the accused/appellant to this effect. However, learned Judge, went on to believe CRIMINAL APPEAL NO.337/1998 6 version of the prosecutrix on the belief that she has no reason to falsely implicate the accused even if the Chemical Analyzer's report is not favourable to the prosecution more than about the full coitus, etc. 10. The observation of the learned Sessions Judge, in paragraph no.8 of his judgment that he has a belief in the version of the prosecutrix and her brother, calls for interference. When the learned Judge could not infer, based on her evidence of committing any sexual abuse to the prosecutrix, there was no reason for him to have reached a conclusion of attempting to commit an offense which is punishable by Penal Code with imprisonment for life or imprisonment or to cause such unlawful offense to be committed under Section 511 of IPC. 11. Learned Counsel for the accused/appellant has placed reliance to the judgment of Apex Court in the matter of Aman Kumar and another Vs. State of Haryana ( AIR 2004 SUPREME COURT 1947) wherein the Hon'ble Lordships have informed, the well defined difference between attempt to commit offense and commission thereof. Hon'ble Lordships have explained that the word "attempt" has to be understood in its ordinary meaning, attempt to be distinguished CRIMINAL APPEAL NO.337/1998 7 from intention to commit offense and preparation. Attempt means an act which if not prevented would have resulted in full consummation of act attempted. In paragraph nos. 11 and 14 the Hon'ble Lordships have observed as under: "(11) 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. (14) Modesty can be described as the quality of being modest; and in relation to woman, "womanly propriety of behaviour; scrupulous chastity of thought, speech and conduct." It is the reserve or sense of shame proceeding from instinctive aversion to impure or coarse suggestions. As observed by Justice Patterson in Rex v. James Llyod (1876) 7 C&P 817. In order to find the accused guilty of an assault with intent to commit a rape, court must 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. The point of distinction between an offence of attempt 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 was just going to have sexual connection with her." 12. In the matter of Koppula Venkat Rao Vs. State of A.P. ( AIR 2004 SUPREME COURT 1874), CRIMINAL APPEAL NO.337/1998 8 Hon'ble Lordships in paragraph no.11 have observed as under: 11. 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. 13. Survey of these two judgments of the Apex Court informs that there should be intention to commit rape. His Lordships have also observed, intercourse means sexual connection and in the said case connection was not established. 14. Reverting to the factual matrix of the present case, the version of prosecutrix in her FIR and before the Court also does not match each other. She claimed that the sexual abuse at the cart-track went on for one hour or so in the morning hours. If it is so, it could not have lost track and attention of the villagers as the agricultural operations were to be carried by moving through said cart-track. There is nothing to suggest that cart-track was in seclusion and not in user of any villagers. She waited, after the incident, for sufficient long duration and CRIMINAL APPEAL NO.337/1998 9 then informed her brother Thrimbak Zirpe who noticed that buttons of her blouse were broken and prosecutrix informed him of the incident having occurred near the field of Bidwe while coming to Trimbak with his meals. 15. Learned Sessions Judge, when could not believe the version of the prosecution for sexual abuse, was not justified in accepting her narration of the accused/applicant attempting to commit rape upon her. The theory of bangle pieces lying at the spot by itself would not be supporting version to infer that the accused attempted to commit rape upon the victim. There are several features and reasons for bangle pieces to be seen at the cart-track which is in use by public at large. The observation of the learned Sessions Judge, there is no reason to lodge F.I.R. against the accused by such an old lady ought to have been visualized by different shades. The accused/appellant has already suggested that she has been used by her brother as a stooge to en-cash the aggravated feelings of adjacent land holder Shri Ghogre and she has acted upon the same. 16. The version of the prosecuttrix or her brother, as has been believed by the learned Sessions Judge is contrary to the evidence and CRIMINAL APPEAL NO.337/1998 10 even not in tune and bracket of punishment as is provided under Section 511 of IPC as it is to be taken with aid of Section 376 thereof. 17. Survey of all the above facts, illustrate that the conviction recorded by the learned Sessions Judge for an offense under Section 511 read with Section 376 and for offense under Section 354 of IPC is not established. The appeal is allowed. The conviction is set aside. Fine amount, if deposited, be refunded to Appellant after 60 days. Criminal Application No.903/2011 seeking to involve benefit of Juvenile Justice ( Care and Protection of Children) Act, 2000, has become infructuous. (K.U.CHANDIWAL) JUDGE ... AGP/337-98cr.a