1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN JAIPUR BENCH, JAIPUR J U D G M E N T Gopal Vs. State of Rajasthan. SB CRIMINAL APPEAL NO.381/1988. DATE OF ORDER: 6th May, 2010. HON'BLE MR.JUSTICE S.P.PATHAK Mr. B.L. Mandhana for the appellant. Mr. Laxman Meena, PP for the State. BY THE COURT: This criminal appeal under section 374(2) Cr.P.C. has been filed by the accused-appellant Gopal against the judgment of conviction and order of sentence dated 5th September, 1988 passed by the learned Sessions Judge, Sawai Madhopur in Sessions Case No.16.1988 whereby the accused-appellant has been convicted for the offence under section 376/511 IPC and sentenced to four years rigorous imprisonment and a fine of Rs.500/-, in default of payment of fine to further undergo three months rigorous imprisonment. 2. Briefly stated, the facts for the disposal of the present appeal are that Bhairon Lal (PW-1) lodged a written report (Ex.P-2) in the police station Khandar district Sawai Madhopur at 2.00 p.m. stating, inter-alia, that he was resident of village Daulatpura. His daughter Mithlesh was employed as Angan Badi Mahila Karyakarta in village Fariya. He has also stated that on 26th November, 1987 between 6-7 p.m. while his 2 daughter was coming home to Daulatpura along with two small girls, namely; Kamlesh daughter of Kedar and Mamta daughter of Birbal and when reached near Bilond nala, accused Gopal son of Mangya by caste Bairwa resident of Fariya stopped their way and accused took Mithlesh in her lap and thereafter she was laid down on the ground. He has further stated that accused made her naked (beadab) and tried to rape the victim and on hue and cry made by the victim and the girls, accused ran away from the place of occurrence. On the basis of above report in the police station case no.152/1987 under section 376/511 IPC was registered and investigation commenced. 3. During the course of investigation, site inspection note (Ex.P-1) was prepared in the presence of Kedar and Ram Swaroop on 28.11.1987. The accused-appellant was arrested and he was medically examined by Dr. Bihari Lal Bairwa, Medical Officer, Primary Health Centre, Khandar. On examining the accused, he was found potent. Report (Ex.P-5) in this regard was prepared by him. The report was admitted by the counsel for the accused, therefore, the doctor was not examined. In the opinion of the doctor, the accused-appellant was competent to perform sexual intercourse. 4. After completion of investigation, charge-sheet was filed before the learned Magistrate who in turn committed the case to the court of sessions. The learned Sessions Judge after hearing both sides, framed charge under section 376 read 3 with section 511 IPC against the accused-appellant on 3.5.1988 to which the accused denied and claimed trial. In support of its case, the prosecution examined Mithlesh (PW-1), Kumari Kamlesh (PW-2), Kumari Mamta (PW-3), Bhairon Lal (PW-4) father of the prosecutrix, Kedar (PW-5) father of Kamlesh and Sher Singh (PW-6) investigating officer of the case. After close of the prosecution evidence in the explanation sought under section 313 Cr.P.C., the accused stated that he has falsely been implicated in the case. It has also been stated that the prosecutrix used to spoil his crops as she used to pass through his field regularly and when she was asked not to enter in his field and some altercation of hot words exchanged between them, a false case has been lodged against him. In defence Badri Lal has been produced as defence witness. 5. Learned Sessions Judge, after hearing final submissions convicted and sentenced the accused as stated here-in-above holding, inter-alia, that (i) the statement of the prosecutrix Mithlesh (PW-1) inspires confidence and accused tried to commit rape with her, therefore, committed an offence under section 376 read with section 511 IPC; (ii) the prosecution has proved its case on the basis of corroborative evidence of Kamlesh (PW-2) and Mamta (PW-3) (though they were child witnesses but their evidence was reliable) in relation to incident; (iii) the pieces of bangles were found at the spot; 4 (iv) the accused was competent to perform sexual inter-course. 6. I have heard learned counsel for the accused- appellant as well as learned public prosecutor for the State. 7. It has been the contention of the learned counsel for the accused-appellant that in the instant case, from the evidence on record, it does not appear that the prosecutrix can be held to be a wholly reliable witness. It is also contended that medical examination of the prosecutrix was not done and in the absence of medical finding, it cannot be concluded that the accused-appellant tried to insert his penis into the vagina of the victim, therefore, at best if any offence is committed by the accused-appellant that will not travel beyond section 354 IPC. It is also contended that in case the accused had desired to commit rape with the victim then there was no obstruction in completing the act of rape. According to the learned counsel, when the accused-appellant lifted the victim in his lap, two girls between 8-10 years were there then in the presence of those girls it cannot be believed that the accused will commit rape. It has also been contended that there is distinction between an attempt to commit rape and to commit indecent assault. It is also contended that in view of the facts of the instant case it just cannot be believed that in presence of two girls, accused would make himself naked and thereafter without completing the act of rape on account of making hue and cry by the victim will leave the place of occurrence. 5 8. On the other hand, learned public prosecutor contends that in the instant case, the victim in her statement has stated that the accused caught hold of her and thereafter she was taken in a nala where she was laid down on the ground and accused undressed himself and sat on the prosecutrix and tried to commit rape and on making hue and cry by the grils and the prosecutrix, he ran away from the place of occurrence, therefore, the prosecution has been able to prove the case beyond reasonable doubt and the learned Sessions Judge has correctly convicted and sentenced the accused-appellant. 9. I have carefully considered the submissions made before me. 10. It is to be seen that in the instant case the FIR was lodged on the next day of the incident as would appear that the incident took place in the evening of 26.11.1987 between 6-7 p.m. Kedar (PW-5) in the cross-examination has admitted this fact that Bhairon Lal (PW-4), the father of the prosecutrix, had come to him on the very same day of incident in the evening and narrated about the entire facts of incident. It has also come in the statement of Bhairon Lal (PW-4) that he consulted the matter with other villagers. Be that as it may, there is no difficulty in drawing the conclusion that after narrating the incident by the prosecutrix to Bhairon Lal (PW-4), he lodged the report at police station on the next day and in the report it 6 has not been stated that the accused got himself un-dressed and thereafter sat on the prosecutrix and tried to commit rape on the victim. In the statement Mithlesh (PW-1), though, has stated that while she was returning to his village and passing through the fields in the evening along with Kamlesh and Mamta Pws 2 and 3 respectively, accused stopped their way and she was lifted by the accused in his lap tightly and thereafter accused took her in the nala, undressed himself and tried to commit rape and on making hue and cry by the victim and the two girls, the accused ran away. Though the learned Sesisions Judge has discussed the matter in relation to attempt to commit rape in detail, but the fact of the matter which requires consideration is, was it possible for the accused to undress himself before the two girls and thereafter when victim and the girls cried he would leave the victim without commiting sexual inter-course. It is quite possible that the accused might have lifted the prosecutrix in his lap and was taken in a nala in presence of Kamlesh and Mamta Pws 2 and 3 respectively and on showing resistance by the victim and cries made by the victim and child witnesses, he ran away from the place of occurrence. 11. For an offence to commit attempt of rape, the prosecution must establish that it has gone beyond the stage of preparation. The difference between mere preparation and actual attempt to commit an offence consists chiefly in the 7 greater degree of determination as has been held by the Hon'ble Apex Court in the case of Madan Lal Vs. State of Jammu & Kashmir- AIR 1998 SC 386. In para 12 the Hon'ble Apex Court observed as under: “The difference between preparation and an attempt to commit an offence consists chiefly in greater degree of determination and what is necessary to prove for an offence of an attempt to commit rape has been committed is that the accused has gone beyond the state of preparation.” 12. In the present case, as the victim has stated that she struggled and cried and the girls with her also cried, the accused fled away from the place of occurrence, therefore, in my opinion, the accused cannot be held guilty of attempting to commit rape but an indecent assault could be the offence committed by him which is covered under section 354 IPC. In the instant case, there is no medical examination of the prosecutrix to ascertain the injuries sustained by her because she has in her own statement stated that she resisted and her bangles were broken and in the process she sustained injuries. Thus, it appears that there has been exaggeration in relation to actual incident happened because in the present matter in the statement of victim and the child witnesses, it has come that when victim cried and resisted and the child witnesses also made hue and cry, the accused fled away from the place of occurrence. In the above circumstances, I am of the opinion that the learned Sessions Judge has not properly appreciated 8 the evidence. 13. In the over-all facts and circumstances of the case, I am of the opinion that the prosecution has been able to prove the offence committed by the accused only up to the extent of section 354 IPC and not under section 376/511 IPC, therefore, the appeal requires to be partly allowed to the extent of his conviction under section 376 read with section 511 IPC. 14. The accused-appellant has been in jail from 30.11.1987 to 4.12.1987 and from 4.9.1988 to 9.9.1988, total 11 days during investigation, trial and appeal. The incident relates to the year 1987. Now, nearly 23 years have passed, therefore, I am of the opinion that ends of justice would meet in case the accused-appellant is convicted under section 354 IPC instead of 376/511 IPC and sentenced to the period already undergone by him during investigation, trial and appeal. 15. In the result, this appeal is partly allowed. The conviction and sentence awarded by the trial court under section 376 read with section 511 IPC is set aside and the accused-appellant is convicted for the offence under section 354 IPC instead of section 376 read with section 511 IPC and sentenced to the period already undergone by him during investigation, trial and appeal. The accused-appellant is on bail. He need not surrender his bail bonds. His bail bonds stand discharged. (S.P.PATHAK) J.