IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Criminal Appeal No. 424 of 2009 Date of Decision: 02.06.2010 __________________________________________________________ Sh. Nar Singh. ….Appellant. Versus State of Himachal Pradesh. ….Respondent. ___________________________________________________________ Coram The Hon’ble Mr. Justice Dev Darshan Sud, J. Whether approved for reporting?1 Yes __________________________________________________________ For the Petitioner: Mr. Virender Singh Rathore, Advocate. For the Respondent: Ms. Ruma Kaushik, Additional Advocate General, with Mr. R.P. Singh, Assistant Advocate General. __________________________________________________________ Dev Darshan Sud, J. (Oral) The appellant has been tried and convicted for offences under Section 376 read with Section 511 of the Indian Penal Code for attempting to rape the prosecutrix whose name is being withheld. 2. According to the prosecution on 22.10.2008 at about 7.45 P.M., PW 8 Inspector/Station House Officer, Police Station Sadar, Shimla, Shakuntla Devi, received a telephonic information from Head Constable, Amar Dutt of Police Post, Lakkar Bazar, disclosing that a Gorkha girl had been sexually assaulted at village Kelti and was taken to Indira Gandhi Medical College, Shimla 1 Whether Reporters of Local Papers may be allowed to see the judgment? Yes 2 for medical examination. On the basis of this information, Rapat Ex. PW 8/A was lodged in the daily diary. Thereafter, PW-8 Shakuntla Devi proceeded to the Medical College, where she filed an application Ex. PW 1/A with the medical officer for medical examination of the prosecutrix and deputed Lady Constable Balmu Devi, PW 6 to get the prosecutrix medically examined from the doctor. 3. PW 1, Doctor Monika Sharma, examined the prosecutrix on 22.10.2008 around about 9.30 P.M., as is evident from the Medico Legal Certificate Ex. PW 1/B. The prosecutrix appeared as PW 3 and her mother Smt. Ramo Devi as PW-2. The statements of these two witnesses are very material as the prosecutrix establishes the factum of assault and PW 2 her mother Ramo Devi, states about what was narrated to her by her daughter PW 3 and she thereafter set the criminal law in motion against the appellant. The evidence of other witnesses, namely, the police personnel is not being detailed here as they are witnesses to the investigation and not to the actual occurrence. 4. It is undisputed before me that the accused was arrested on 23.10.2008 and was medically examined by PW 11 Doctor Rajesh Sood on 24.10.2008 around 12.30 P.M. on application Ex. PW 11/A moved by the police and he issued Medico Legal Certificate Ex. PW 8/E. The clothes of the accused, namely, banyan and underwear were handed over to the police, which were sealed and sent to the Chemical Examiner for analysis of blood and semen. 5. Learned Trial Court, on the testimony of PW 3, prosecutrix, who was admittedly a minor aged about eight years, her mother PW 2 Smt. Ramo Devi, concluded that the appellant had attempted to ravish the prosecutrix and though no offence under Section 376 of the Indian Penal Code was made out, but attempt to commit rape was established beyond reasonable doubt. The learned Trial Court accordingly sentenced the appellant to undergo rigorous imprisonment for a period of three years and six months and fine of Rs. 5,000/- and in default of 3 payment of fine, he was sentenced to undergo simple imprisonment for further period of six months. Benefit of Section 428 of the Code of Criminal Procedure was granted to the appellant i.e. setoff of the period of imprisonment which the appellant had served during the trial from the substantive sentence imposed. 6. I have heard learned counsel for the appellant and learned Additional Advocate General for the respondent. The primary point for consideration is whether there was an attempt to rape and this fact has been proved or not. The evidence on record viz PW 1 Dr. Monika Sharma, PW 2 Smt. Ramo Devi and PW 3, prosecutrix does not at all establish any offence under Section 376 of the Indian Penal Code. On the question of attempt, the evidence of the witnesses when considered does not establish this offence. The prosecutrix, who appeared as PW 3 is a child of tender age. Her evidence was recorded after she was administered oath by the Court having found her fit to do so by assessing her response (s) to a number of questions put by the Court and it was satisfied that she understands the import and consequences of making a statement on oath. She stated that she was residing in Village Kelti, with her father, mother and one younger brother. She identified the appellant in the court by his name Nar Singh. In cross-examination she has stated that she does not know his name as Nar Singh, but only as “Dada Ji”, who was visiting her family every now and then and he and the father of the prosecutrix used to drink liquor and have food together. Sometimes he was staying with them during the night. She could not remember the date or month, but states that it was before Diwali, when her mother and father had gone to work in the house of “Ravi uncle” and had taken her brother with them, she had gone to the house of one Nitin in the evening for watching a Video Film. He asked her to get a packet of Maggi from the shop of one Anil. When she was proceeding to his shop, she saw the accused sitting on the road side, drinking liquor. There was one glass and bottle near him. Two other Gorkhas 4 were also present, who were sitting in a depression below the road. The accused pounced upon her and threw her into the bushes. He opened his Pajama, put his hand on her mouth and took off her Salwar. Thereafter according to the prosecutrix, the appellant inserted his penis into her vagina. At this stage, she says that she become unconscious. She states that “usne mujhe kuch aisa kiya jisse main behosh ho gayi”. She then states that when she was thrown on the ground, the other two Gorkhas ran away from the spot. She was brought to her house by her mother where she narrated the entire incident to her mother and father. The police came to her residence and PW 1 Dr. Monika Sharma, whom she identified in the Court, examined her. This is her entire testimony in examination-in-chief. In cross-examination, an attempt has been made to impeach her testimony by suggesting that the entire incident narrated by her in examination-in-chief has been doctored and tutored and she was making this statement at the behest of the police officials/officers, who had coached her. It was also suggested to her that she did not know the name of the accused whose name was disclosed to her by the police for the first time in the Court premises. She admitted this fact, but then again she says that she knows the appellant, who was present in the Court as “Dada Ji”. She says that when she was thrown on the ground by him, she felt pain in her back etc. She admitted that prior to the incident; her father and appellant had some dispute over lending/payment of money. She also states that she shouted and cried for help, but the appellant slapped her. PW 2 Ramo Devi is the mother of the prosecutrix. She states on oath that the age of her daughter was about 6 ½ years on 12.2.2009 and that about five months prior to that she and her husband returned from the work around about 5.30 P.M. alongwith their minor son, whom they had taken along them. The prosecutrix had been left alone at the house. She and her husband found the prosecutrix missing. She states that a search was made for her and she was found 5 completely naked near the bushes adjoining the road. She found the clothes of the prosecutrix at some distance from there. At that time the prosecutrix was unconscious. She regained consciousness after one hour and told her mother that she was going to the shop, but the accused who was holding a bottle of beer in one hand and glass in the other, caught hold of her and threw her on the bushes. Thereafter he came down, undressed and also took of the clothes of the prosecutrix and tried to rape her. She makes one more important disclosure that is the other two Gorkhas also tried/attempted to rape her daughter. Information to the police about the entire incident was given by Sh. Rajinder Kumar (owner of the building, where the prosecutrix and her family were staying). This information was conveyed by him through his mobile phone. The police immediately came to their “quarter” (residential premises) and investigation was started. In cross-examination she says that the appellant used to visit their family every 3rd/4th day and used to have tea and food etc. He was also earning his livelihood by working as a labourer. She states that she had taken the prosecutrix to Indra Gandhi Medical College in the car of her landlord Rajinder, who was driving it. She admitted in her cross-examination that two Gorkhas had fled from the scene of occurrence. In her statement Ex. PW 2/A only disclosure made by her was that three Gorkhas (without naming them) had tried to ravish her daughter. She further admits that on the date when her statement Ex. PW 2/A was recorded, she did not disclose their names, because she did not know them. She also admits that there was some dispute regarding receipt of payment of loan etc. Sh. Rajinder has not been examined as a witness. 7. The third important witness is PW 1 Doctor Monika Sharma, who was examined and then re-examined. She states that she did not find any injury on any particular part of the body of the prosecutrix and the vagina or the area around it did not show any marks of violence or injury, suggesting use of 6 force etc. She states that no injury etc. was found on any part of the body of the prosecutrix. The report of chemical examiner Ex. PW 1/D, who examined the clothes worn by the prosecutrix as also of the accused also did not suggests rape. 8. As noticed by me, the evidence of other witnesses is not being considered, as they only relate to the fact of lodging of report and recording of statements etc. Learned counsel appearing for the appellant urges that the mere statement of prosecutrix PW 3 can not be relied upon unless it is corroborated in material particulars by the other evidence including the manifestation of signs/marks on the body of the prosecutrix suggestive of use of force. He submits that the child is of tender age and has admitted that she was tutored outside the Court by the police and her statement is the result of fudging evidence, which is far from the actual reality. He submits that the statement of the mother PW 2 Smt. Ramo Devi establishes that the incident never took place and that the appellant was deliberately roped in. 9. I cannot accept this argument to hold that corroboration is mandatory. Corroboration is a rule of prudence not a sine qua non. Moreover, it is now well settled by a consistent line of decisions of the Supreme Court that the sole statement of prosecutrix, unless proved to be totally unreliable, is sufficient for conviction. (See Aman Kumar and another Vs. State of Haryana AIR 2004 S.C. 1497, Dinesh Jaiswal Vs. State of M.P. 2010 Cri. L.J 1917 and Abbas Ahmad Choudhary Vs. State of Assam 2010 Cri. L.J. 2060). 10. In State of Himachal Pradesh Vs. Asha Ram 2006 Cri. L.J. 139, the Supreme Court has held that:- “………..The evidence of a prosecutrix is more reliable than that of an injured witness. The testimony of the victim of sexual assault is vital unless there are compelling reasons which necessitate looking for corroboration of her statement, the Courts should find no difficulty in 7 acting on the testimony of a victim of sexual assault alone to convict an accused where her testimony inspires confidence and is found to be reliable. Corroboration as a condition for judicial reliance on the testimony of the prosecutrix is not a requirement of law but a guidance of prudence under given circumstances. …………..” A reading of the statement of prosecutrix only establishes that the name of the appellant was disclosed to her by the police, but her identification of the accused in the Court and also other portion of evidence where she says that she used to call him “Dada Ji” and that he used to visit her house regularly, can not be discarded. Turning to the statement of mother of the prosecutrix Ramo Devi, PW 2 I do find it a bit strange that she admits in her cross-examination that her daughter disclosed that she was not aware about the names of the Gorkhas, who committed/tried to rape her and only stated that three Gorkhas were present. In her examination-in-chief, she does state that the prosecutrix had disclosed the name of the appellant. This is a very material and important factor. Statement of Ramo Devi PW 2 had to be consistent on the question of identification of the appellant. I also found it strange that Rajinder Kumar, landlord of the family of the prosecutrix has not been examined though he alerted the police and took the prosecutrix and her mother to the hospital. But leaving that aside, what is required to be determined is as to whether an attempt to rape has been proved or not. 11. I can not discard the statement of prosecutrix PW 3 in its entirety. Up to the point that the appellant caught hold of her, undressed her, pounced upon her and exposed himself to her, there is no material on record to contradict this part of her statement. In other words, indecent assault stands proved. In reaching this conclusion, I am fortified in reaching this conclusion by 8 the fact that the prosecutrix herself says that she become unconscious, and did not know what the appellant did to her. Her statement that he inserted his penis in her vagina cannot be accepted as this is not supported by the medical evidence on record. If that had been so, signs of forcible penetration would have manifested on her body, more especially when she was of tender age. The evidence on record, more especially, PW 1 Dr. Monika Sharma is absolutely clear that there were no signs of injury, much less any signs showing that there were contusion, abrasion or any thing else on the body suggestive either of the prosecutrix having been forcibly thrown or an attempt made to ravish her. The mother of the prosecutrix states that prosecutrix did not disclose the name of any person, but only said that three Gorkhas were present at the spot, where she was purportedly assaulted. The time period when the prosecutrix was thrown on the bushes and the time when she was recovered is blacked out and there is no evidence as to what happened during this time. 12. In Aman Kumar’s case supra, the Supreme Court has held: “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, 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 9 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 makes preparation for committing it and thereafter attempts to commit the offence. It 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 being 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 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 from 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 directions 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 preparations are made. Preparation to commit an offence is punishable only when the preparation is to commit offence under Section 122 (waging war against the Government of India) and 10 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. …………………... 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 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. 13. There is no material to show that the accused were 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 Section 376/511, I.P.C. But the case is certainly one of indecent assault upon a woman. Essential ingredients of the offence punishable under Section 354, I.P.C. are that the person assaulted must be a woman, and the accused must have used criminal force on her intending thereby to outrage her modesty. What constitutes an outrage to female modesty is nowhere defined. The essence of a woman’s modesty is her sex. The culpable intention of the accused is the crux of the 11 matter. The reaction of the woman is very relevant, but its absence is not always decisive. Modesty in this Section is an attribute associated with female human beings as a class. It is a virtue which attaches to a female owing to her sex. The act of pulling a woman, removing her dress coupled with a request for sexual intercourse, is such as would be an outrage to the modesty of a woman, and knowledge that modesty is likely to be outraged, is sufficient to constitute the offence without any deliberate intention having such outrage alone for its object. As indicated above, the word ‘modesty’ is not defined in IPC. The Shorter Oxford Dictionary (Third Edn.) defines the word ‘modesty’ in relation to woman as follows: “Decorous in manner and conduct; not forward or lowe; Shame-fast; Scrupulously chast.” (PP. 1501- 1502) Learned counsel appearing for the petitioner also places reliance on the decision of this Court in Mohinder Pal Vs. State of H.P. Latest HLJ 2008 (HP) 876 in support of his submissions. In this case, the facts were that the appellant was tried for attempt to commit rape on the allegations that prosecutrix and her brother was present during some marriage ceremony, in which the accused caught hold of the prosecutrix from behind and gagged her mouth. He also tried to undress her forcibly with the intention to commit sexual intercourse. Considering the evidence, including the evidence of Doctor Archna, who found contusions on the prosecutrix constituting simple injuries, the Court held: “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 Ex. PA it has been stated that string of the Salwar of prosecutrix was opened by the 12 accused by putting his hands but PW-1 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 Ex. 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 bites 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 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). Relying upon the decision of State of Rajasthan Vs. Vijairam, 1968 Cr.L.J, 279, Damodar Behera and another Vs. State of Orissa, 1996 Cr.L.J. 346 and Jai Chad Vs. the State, 1996 Cr.L.J. 2039, this Court concluded that the appellant therein could not be sentenced for the offences under Section 376 read with Section 511 of the Indian Penal Code. The ratio of the judgments is that there must be some evidence and it has to be established that the intention was so clear and manifest that rape would have been the only consequence pursuant to the intention of the accused to gratify his sexual lust. 13. Turning to the facts of the present case, I have held that there is no evidence on record to establish that the appellant had infact attempted to ravish the prosecutrix. The facts only establish that the appellant had undressed the prosecutrix and also exposed his genitals. In these circumstances, I hold that the 13 appellant is not guilty of offences under Sections 376 and 511 of the Indian Penal Code, but under Section 354 of the Indian Penal Code. I, therefore, proceed to sentence him for commission of offences under Section 354 of the Indian Penal Code and direct that he shall undergo rigorous imprisonment for a period of two years and pay fine of Rs. 10,000/-. In case of default of payment