IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR J U D G M E N T Lehru vs. State S.B. CRIMINAL APPEAL NO. 38/1989 Against the judgment & order dt. 31.01.1989 passed by District and Sessions Judge, Bhilwara in Sessions Case No. 46/1988. Date of Order : 29 th April, 2009 PRESENT HON'BLE MR. JUSTICE C.M. TOTLA Mr. Digvijay Singh Jasol for the appellant. Mr. A.R. Nikub, Public Prosecutor. BY THE COURT: Appellant Lehru S/o Onkar aggrieved of his conviction for the offence of Section 376 read with 511 IPC and awarded sentence of two years rigorous imprisonment with fine of Rs. 500 in default two months simple imprisonment as per judgment dated 31.01.89 in Sessions case No. 65/88 before the court of Sessions Judge, Bhilwara, has preferred this appeal. Alleged facts leading to prosecution are that on 09.03.88 at 9 PM, Bhuwana lodged report Ex.P/1 at P.S. Gangapur alleging that his daughter Kamla works on Famine relief work who that day as always went for work and returning at 6 PM told him that when relieved from the work of famine relief at 5 the “meth” (incharge of workmen) Lehru S/o Onkar asked her to carry and put empty drum to his house so she carried the drum at his house where no one was and she opening the gate kept the drum came Lehru from outside who embracing and making her fell down and biting on cheek then removing her ghagra, by making it up, tried to enter his organ in hers. She kicked by leg at his chest so he became little distant and she ran away. Also mentioned in the report is that incident was also narrated to Bhuwan, Narayan and Heera lal. On this information, registering FIR Ex.P/2 bearing No. 55/88 for the offence of Section 376 and 511 IPC directing medical examination of concerned and made SHO visiting the site on next morning prepared memo Ex.P/2 and arrested the accused. After usual investigation, charge-sheet submitted and on committal Sessions Case no. 46/88 registered. Prosecution examined prosecutrix PW/1, her father PW/3 Bhuwana, PW/2 Heera lal, Medical officer PW/6, PW/4 incharge P.S who registered FIR and S.I PW/5 the investigating officer. Appellant explained that Bhuwana, Heera lal and Narayan are of same family who were not taken on famine relief work so, he is falsely implicated and all witnesses including PW/1 telling lie. In defence, examined Gopa DW/1 who deposes that he live just opposite to the house of appellant and on that day wife of his elder brother expired and many were there and no such incident as is alleged happened or heard. Learned Judge arrived at conclusion that appellant did attempt rape and accordingly convicted. Learned counsel for the appellant argued that (i) evidence of prosecutrix taken on its face value discloses her consent and at least certainly till the bite on cheek no resistance was (ii) PW/1 resisted only at the last part and on her resistance, no act committed and hence no attempt (iii) PW/1 had encouraged the appellant for the act and the moment she resisted, no overt act by appellant (iv) alleged bite of teeth can be for several other reason and is a sign of affection (v) on that day, just opposite to the house of appellant a death occurred and PW/1 herself admits that good number of people gathered there. Forcibly argued that act if committed, it was entirely as per consent, inducement and /or encouragement by PW/1 so maximum inference can be that appellant tried to cross the limit which in the circumstances do not necessarily amount to attempt. Learned Public Prosecutor submitted that she had injuries and despite her resistance, bite at cheek and forcibly she was made to fall on floor and she ran away from there by kicking the appellant so attempt is proved. Considered above arguments, perusing record and also the impugned judgment. Material evidence is of Kamla PW/1 who deposes that she was on famine relief work where appellant was meth and she in evening at about 5 Pm asked by appellant to carry and keep the empty charcoal drum at his home and as she carried the drum to house of appellant, accused asked to keep it in and as she went in and kept the drum came accused who prevented her from going out embraced her and bite her cheek and making her fall down on floor then making her lower clothes up sitting on her tried for completion of act so she kicked him by leg and as appellant (forcibly) fell down she ran away and narrated the incident to father at home where Heera and Narayan sons of her uncle also were then father reported the matter to police. Kamla PW/1 states that appellant wanted to rape her and she was medically examined and police inspected the place where incident occurred – in cross-examination PW/1 admits that opposite to the house of appellant is house of Bena whose wife expired on that very day so many persons gathered there and she coming out of house did not tell any of them. PW/1 also admits that her father was not taken on famine work by appellant telling that he will take as per his own desire. In very straight terms, PW/1 admits that appellant putting hand on her shoulder then bite her, she did not resist and also did (could) not resist when she made to lie on floor. Thus, the appellant tacitly admits that she resisted only, and not before appellant did made aside her lower clothes and tried to almost commit and complete the act. Whatever be it, it is certain atleast that after felling down and as appellant tried to befall on her, she resisted with strength. Heera lal PW/2 and Bhuwana PW/3 testify as of narration given to them by Kamla PW/1 as above and no other significant factor or circumstance emerges from their evidence. In written FIR Ex.P/1 appellant admittedly figure 6 has been overwritten but this is too in-significant one as “kariban 6 baje” (“6” overwritten) only signifies time and just prior to it is also mention that (above) after completion of work at 5 and FIR is lodged at 9 PM so if this is written over 7 or 5, it becomes immaterial. In any case, incident occurred some time after 5PM when Kamla arrived at house of appellant may be any time around 5:30 to 6:30 PM and particular certainly prior to 7 PM. Kamla PW/1 states that she was bitten at cheek by teeth – there being injury is also stated by her father and also is mentioned in the FIR. PW/1 states that she was also injured at back buttock et where red marks appeared. Doctor PW/6 of Government hospital testifies that on 10.03.88, he examined PW/1 and found (i) teeth bite of left cheek 2 x 1 x ½ cm thus, red brown (ii) contusion 5 x 5 cm above waist . Injury no.1 of sharp, no.2 of blunt and of 14-16 hours duration. Report prepared by PW/6 also bears thumb impression of injured. In cross-examination W/6 state that upper portion of injury was of 2 teeth and on lower portion was injury of one teeth which cannot be caused by nails. Above injuries are in full corroboration to the version given by PW/1. Contusion at the back also show that she was made to fell down. Defence witness DW/1 state that his and elder brother's house is just opposite to that of appellant and his “Bhabi” expired that day, so many persons were there. This as above is also admitted by PW/1. For the argument advanced on this count, it is to be noted that as per PW/1 herself she did not resist (not needed or no occasion to resist) upto to the point she made to lie on floor and then kicked (forcibly) that did distant the appellant. The evidence clearly signifies that entire incident happened within minutes maximum in a minute or two and immediately after that, she succeeded in running away. Thus, no occasion arose for her to shout or cry and as she succeeded in being out again was no reason to make hue and cry there before persons who assembled to mourn, so the argument do not stand. Argument is about encouragement and implicit consent of the appellant. In the opinion of the court, the incident happened all of sudden and almost momentarily and she made to fell down within a minute or two till that time, no occasion or (extremely) perhaps need arose to resist vehemently. As appellant embraced her, soon bite on cheek followed and then forcibly made fell down and immediately she resisted so, inability to resist or non-resistance to that level do not lead anywhere and certainly do not help appellant in any way. Taking, for the sake of argument that till embracement, she did not resist id do not mean approval for further acts. Taking note of injury at back, even non- resistance cannot be assumed and lastly, it is also to be borne in mind that biting made then resistance could have been only at the next act and it followed. From the testimony of PW/1 it clearly emerges that when appellant was forcefully kicked, he having succeeded and setting aside her clothes came very very close of completing the act of rape. It very definitely comes in the ambit of attempt. Only because appellant refused to take Heera PW/2 and father Bhuwana PW/3 at famine work, false implication of appellant cannot be accepted. Certainly for petty matter of not taking father on relief work and no other reason or circumstance then appellant cannot be said to be falsely implicated that too staking the reputation of daughter. In the instant case, as above are physical marks and injuries on person of prosecutrix. So, the appellant is right convicted for the offence of Section 376 read with Section 511 IPC. On the question of sentence for appellant submitted is that incident is of year 1988 i.e. About 21 years ago and appellant suffered custody from 10.03.88 to 18.04.88 which is sufficient and submissions are also that it is a fit case for enlarging the appellant on probation. In the opinion of the Court, sentence of about 40 days imprisonment shalll not only be inadequate but much less. In such cases, only because of lapse of time, awarding of too less a sentence may be counter productive. In the opinion of the Court, in the totality of circumstances, imprisonment for a period of one year with fine of Rs. 5000/- shall serve the purpose. As above, reducing the sentence, the appeal is partly allowed. Maintaining the conviction of appellant Lehru S/o Onkar for the offence of Section 376 IPC read with Section 511 IPC, sentence awarded is altered (reducing) to that of rigorous imprisonment of one year and fine of Rs. 5000/- and for non-payment to undergo, four months rigorous imprisonment. He is on bail and shall be arrested to serve out the remaining sentence. (C.M. TOTLA), J.