IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.Appeal No. 77 of 2009. Date of Decision:15.7.2010. _______________________________________________ Chaman Lal. ….Appellant. Versus. State of H.P. ….Respondent. Coram: Hon’ble Mr. Justice Dev Darshan Sud, Judge. Whether approved for reporting1?yes. For the appellant : Mr. Ravinder Thakur, Advocate. For Respondent. : Ms. Ruma Kaushik, Addl. Advocate General. Dev Darshan Sud, J.(Oral). The appellant challenges his conviction of offences under Sections 376, 511, 506 and 323 of the Indian Penal Code. The prosecution case in brief is that F.I.R. Ext.PW1/A was lodged by the prosecutrix PW1 (name with- held) on 15.7.2008 at Police Station Dharampur where she went along with her mother Smt. Kamleshwari (PW5), father Surinder Singh, Ward Member Smt. Kaushlaya Devi (PW3), Sh. Dinesh Kumar, Pradhan Gram Panchayat, Kumarhati and reported that she was a student of Middle School, Gamjhoon, Subathu. When she was returning home from school on 14.7.2008 at around 4 p.m, the accused who had concealed Whether reporters of the Local papers are allowed to see the judgment?yes. 2 himself behind the bushes and had followed her for some distance, gagged her mouth and dragged her behind the bushes. She was threatened that in case alarm was raised he would kill her. The accused thereafter tried to un-tie the salwar cord but she kicked him. The accused tried to open button of her shirt from the breast on which she gave bite on his right hand and raised an alarm. On this, the children accompanying her raised an alarm and some people rushed to the spot whereupon the accused ran away. She was taken to her house by the witnesses where she narrated these facts to her parents. The learned trial Court on the evidence on record convicted the petitioner for the offences as alleged. In order to reach its conclusion, the court considered the evidence of 16 prosecution witnesses. Leaving aside the facts subsequent to lodging of the First Information Report, the evidence of the other witnesses prior to the lodging of the report may be noticed. Primarily, it is the evidence of the prosecutrix which has to be considered. She has appeared as PW1. Her competency to testify was judged by the learned court after her responses to a number of questions put to her by the court were analyzed by the court. She was aged only about 12 years on the time when she was examined. She says that her father is an agriculturist and mother works in a shop at Subathu. She was a student of middle school at Gamjhun. On 14.7.2008 she was walking back to her house after attending school along with her friends. When they 3 crossed a temple on the way near her house, the accused who had concealed himself in the bushes, asked them as to whether the water in the ‘Bawri’ (water source) is fit for drinking. She replied it was so. He drank some water and started walking with the prosecutrix. He asked for paper from her note book which she supplied. Thereafter he dragged her and tried to open her salwar as also to unbutton her shirt. She resisted him, kicked and bit him on his right hand. Her friends accompanying raised an alarm whereupon other people came to the spot and rescued her from his clutches. This is the purport of the statement made by the prosecutrix and is pivotal and fundamental to the decision of the entire case. The other evidence relates to the narration of the facts to her parents as also subsequent follow up action taken by the police including the medical examination. Ext.PW6/A is a M.L.C issued by PW6 Dr. Naveen Kohli. Since the prosecutrix was to be examined by a female Medical Officer, she was referred to Zonal hospital. There is nothing in Ext.PW6/A to suggest that there is any injury on her body. This doctor has also examined the accused and issued medico legal certificate Ext.PW6/B on the request of the Investigating Officer which was made vide Ext.PW6/C. He found that: “On Local examination of injuries: 1. Abrasions on left fordsal part. 2. Abrasion on left food dorsal aspect. 3. Abrasion on right hand dorsal aspect. The descriptions of above injuries are shown by me in MLC Ex. PW6/D dimatically. On examination of Private part:- (genitalia: There were no injury, scrotum, 4 testicles, penis were normal. The nature of injury No.1 and 2 was simple whereas the injury No.3 abrasion due to teeth bite could be possible according to distance between the abrasions. There was nothing to suggest that he is not capable to perform sexual intercourse. The probable duration of injuries was more than 12 hours at the time of examination. In this regard, I issued MLC Ext. PW6/B, it is written and signed by me. Injuries No. 1 and 2 on the person of the accused could be possible while passing through bushes.” Adverting now to the medical examination of the prosecutrix, she was examined by PW11 Dr.Mamta Mahajan, Medical Officer, Zonal Hospital, Solan,. She found the following injury: “1. Abrasion on chest at sternum 0.5 mm size reddish brown in colour. 2. Abrasion left side thigh posterior surface. Mid 0.5 mm in size reddish brown in colour. 3 Abrasion left side lower back linear 3 in number 1 to 2 mm in size. 4. Abrasion on right side back linear 2 in number 1mm in size. 5. Cellulitis on left side above ankle posterior surface old lesion with reddish area. No other injury seen. Examination of breast: Breast bud developed. No areola, External genitalia:- No public hair, labia majora covering the vaginal orifice. On separation labia minora hymen seen intact with a small opening. Swabs taken from the inferoitus. No external injury seen. Injuries No. 1 to 5 were simple possible to be caused during physical assault. I issued MLC Ext. PW1/A and Ext. PW5/B which is in my hand in and hears my signatures.” This is the entirety of the evidence. It is thus apparent and evident from the evidence on the record that no rape has been committed on the prosecutrix who was admittedly a minor on the day when the incident took place. Turning now to the aspect of the case as to 5 whether the offence of attempt to commit rape has been established, I find that the learned trial Court is not correct in holding that such an offence has, in fact, been established. In Aman Kumar and another Vs. State of Haryana, AIR 2004 S.C. 1497, the Supreme Court, has considered the parameters before rape can be established. On the question of attempt, the court holds: “8.The plea relating to applicability of Section 376 read with Section 511, IPC needs careful consideration. In every crime, there is first, intention to commit, secondly preparation to commit it, thirdly, attempt to commit it. If the third stage, that is, attempt is successful, then the crime is complete. If the attempt fails the crime is not complete, but law punishes the person attempting the act. Section 511 is a general provision dealing with attempts to commit offences not made punishable by other specific sections. It makes punishable all attempts to commit offences punishable with imprisonment and not only those punishable with death. An attempt is made punishable, because every attempt, although it falls short of success, must create alarm, which by itself is an injury, and the moral guilt of the offender is the same as if he had succeeded. Moral guilt must be united to injury in order to justify punishment. As the injury is not as great as if the act had been committed, only half the punishment is awarded. 9. A culprit first intends to commit the offence, then make preparation for committing it and thereafter attempts to commit the offence. If the attempt succeeds, he has committed the offence; if it fails due to reasons beyond his control, he is said to have attempted to commit the offence. Attempt to commit an offence can be said to begin when the preparations are complete and the culprit commences to do something with the intention of committing the offence and which is a step towards the commission of the offence. The moment he commences to do an act with the necessary intention, he commences his 6 attempt to commit the offence. The word `attempt' is not itself defined, and must, therefore, be taken in its ordinary meaning. This is exactly what the provisions of Section 511 require. An attempt to commit a crime is to be distinguished for an intention to commit it; and from preparation made for its commission. Mere intention to commit an offence, not followed by any act, cannot constitute an offence. The will is not be taken for the deed unless there be some external act which shows that progress has been made in the direction of it, or towards maturing and effecting it. Intention is the direction of conduct towards the object chosen upon considering the motives which suggest the choice. Preparation consists in devising or arranging the means or measures necessary for the commission of the offence. It differs widely from attempt which is the direct movement towards the commission after preparation are made. Preparation to commit an offence is punishable only when the preparation is to commit offences under section 122 (waging war against the Government of India) and Section 399 (preparation to commit dacoity). The dividing line between a mere preparation and an attempt is sometimes thin and has to be decided on the facts of each case. There is a greater degree of determination in attempt as compared with preparation. 10. 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, 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 consequently be defined as that which if not prevented would have resulted in the full consummation of the act attempted. The illustrations given in Section 511 clearly show the legislative intention to 7 make a difference between the cases of a mere preparation and an attempt. 11…………………………………. 12. Though the prosecutrix's version in Court was of rape, when it is compared with the one given during investigation, certain irreconcilable discrepancies are noticed. The evidence regarding actual commission of rape is at variance from that what was recorded by police during evidence. The evidence of PW-11, the father who according to prosecution made departure from what he allegedly stated during investigation is to the effect that his wife PW-9 told her that the prosecutrix was teased by the accused persons. Merely because he was termed as a hostile witness his entire evidence does not get effected. Significantly, the evidence of prosecutrix and the doctor does not specifically refer to penetration which is sine qua non for the offence of rape.” (PP 1501-1502) In Mohinder Pal Vs. State of H.P. Latest HLJ 2008 (HP) 876, this Court holds: “12 The question is despite the proof of some facts, whether offence under 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 PW1 in her statement in the Court has not stated so. She only stated that accused placed his hands on the string on 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 on the string on 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 bits 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 8 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.” (PP.880-881). Learned counsel appearing for the petitioner has also relied upon three other judgments. First is the judgment of the Delhi High Court in Amarjeet Singh Vs. The State, 1996 (1) Crimes 606. In this case, the appellant was charged and convicted for offences under Section 376 read with Section 511 of the Indian Penal Code. The facts were that the appellant was living in the neighbourhood of the prosecutrix and at around 10 p.m. when she was alone, the appellant came inside the house, bolted the door and tore the salwar which she was wearing. A struggle ensued between both of them and her brother rescued her from the clutches of the accused. The Court, on a detail consideration of the law held that this did not constitute an attempt to rape but at best was an offence under Section 354 of the Indian Penal Code. Learned counsel, relies upon another judgment of the Delhi High Court in Jai Chand Vs. State, 1996(3) Crimes 160. In this case also, the incident related to an attempt having been made on one Km. Kiran Sharma in the Operation Theatre of the Guru Nanak Eye Centre. Further the facts were that: “2 Km. Kiran Sharma was on duty from 9 p.m. to 7.30 a.m. in the Operation Theatre. Jai Chand too was on duty on that very day. His duty hours were from 8 p.m. to 7.30 a.m. At about 9 9.45 p.m. after Ms.Sharma had finished her routine work she came to the Post Operation Room of the Theatre. Jai Chand also arrived there and after catching hold of her, forcibly laid her down on the bed, broke the string of her Pyjama, gave a tooth bite on her left cheek and torned her underwear. He even removed her sanitary pad. Ms. Sharma, however, did not give up. After giving him a push, she ran to the “Reception” at the first floor of the building where she narrated the incident to Sister A. Mathew (PW-2). Later Dr. A.K.Gupta, Head of the Department. (PW-3) also reached there who called the police leading to the recording of her statement. Ex. PW1/A and seizure of her clothes namely, Pyjama (Ext.P-1), underwear (Ex.P-2) besides the broken string (Ex.P3).” Considering the totality and the facts and circumstances of the case, the court held that this constituted an offence under Section 354 of the Indian Penal Code and not attempt to rape. To similar effect is the judgment of Rajasthan High Court in Harnam Singh alias Bhadar Vs. The State of Rajasthan, 2000 (1) Crimes 528. The learned Additional Advocate General submits that the prosecutrix being a minor, there is no redeeming feature and the accused has attempted to fulfill his lustful desire by attempting to rape her. She submits that in his growing scenario of growing sexual assaults on minors, no interference is called for in the judgment of the learned Sessions Judge. I have considered this submission made on behalf of both the learned counsel for the appellant as also the learned Additional Advocate General. True, modesty is a virtue which is highly prized by a woman and is held in high 10 esteem in society. There is also no denying the fact that the sanctity of the body of an individual has to be respected and protected from the unlawful assaults of sexually depraved person. However, this should not intuse emotionality in judging as to what constitutes an offence. The statement of the prosecutrix PW1 accepted even without cross- examination, does not establish that she was either raped or an attempt was made. She has stated in her evidence that she was gagged; an attempt was made to open her salwar, though in the first information report she states that salwar was actually opened by the accused. Even accepting what she says in the first information report, I do not find that the facts constitute an attempt within the meaning of Section 511 of the Indian Penal Code. This finding is inconsonance with the law of the Supreme Court, considered by this Court and High Courts of Delhi and Rajasthan. In these circumstances, I hold that the conviction of the appellant under Section 511 and 376 of the Indian Penal Code is illegal and cannot be sustained. The appellant is convicted for offences under Section 323 and 354 of the Indian Penal Code. On the question of sentencing, the learned counsel for the appellant submits that the accused is a young man of aged about 21 years and has an entire life where he can build his career. The offence he has been committed in a movement of haste and discretion which should not attract a severe sentence. 11 Looking to the totality and facts and circumstances of the case, I up-hold the sentence awarded by the court below under Section 323 of the Indian Penal Code. For the offence under Section 354 I.P.C. I sentence him to rigorous imprisonment for two years. Learned counsel submits that the appellant is in custody since 15.7.2008 and was never granted bail either by the trial court or by this Court. The period of two years has already elapsed. In these circumstances, the respondent- State is directed to release the appellant forthwith in case he is not required in any other case. A direction is issued to the learned Sessions Judge, Solan who shall ensure that this order is punctually obeyed. A copy of this judgment be sent to the learned Sessions Judge, Solan for necessary compliance immediately. (Dev Darshan Sud), Judge. July 15, 2010(R)