^{c \") ^ '^s. y HIGH COURT OF CHHATTISGARH, BILASPUR CORAM: Hon'ble ShrLRaLeev GuRta, C.J. & Hon'ble Shri Sunil KjjmaLSinha,_J. Criminal Appeal No. 127 of^OOO The State of Madhya Pradesh (Now Chhattisgarh) Vs. Anka Babu ^ JUDGMENT For.conslderation Sd/- Sunil Kumar Sinha Judge HON'BLE SHRI JUSTICE RAJEEV GUPTA Sd/- Chief Justice 'i tf Post for Judgment :/2_/01/2010 y Sd/- SunU Kumar Sinha Judge HIGH COURT OF CHHATTISGARH, BILASPUR CORAM: Hon'ble Shri Raieev Gupta^C.J. & Hon'ble Shri Sunil Kumar Sinha.A APPELLANT RESPONDENT \;.. Criminal Appeal No. 127 of2000 The State of Madhya Pradesh (Now Chhattisgarh) Versus Anka Babu, son of Shri Venkat Swamy, aged about 20 years, r/o D-8, Janta Quarter, Padmanabhpur, Tahsil & District Durg (MP) (Now Chhattisgarh) (Criminal Appeal underSection 378 (1) ofThe Code ofCriminal Procedure) Appearance: Mr. Sudhir Bajpai, Dy. Govt. Advocate for the appellant/State. Mr. Gurudev Sharan, Advocate for the respondent. JUDGMENT (fZ.01.2010) Following judgment of the Court was delivered by Sunil Kiimar Sinha, J. (1) Being aggrieved with the judgment of acquittal dated 30.8.99 passed in Sessions Trial No. 140/99 by the First Additional Sessions Judge, Durg (CG), the State has filed this appeal with the leave of the Court. (2) The facts, briefly stated, are as under:- Respondent Anka Babu was the neighbour of the prosecutrix, a minor girl aged about 3% years. On 26.9.98, the prosecutrix had gone for playing to the house of the respondent. At about 2.30 p.m., she came to her house and told her father Girish Rathore (PW-2) and mother Heena Rathore (PW-4) that the respondent, after removing his underwear, has urinated on the underwear of the prosecutrix. When the parents saw the underwear •s ;; /? 9^ Criminal Apueal No. 127 of 2000 of the prosecutrix, they felt that it was a semen like substance. The parents (PW-2 & PW-4) went to the house of the respondent and started quarreling with the parents of the respondent. Omna (PW-5) also came there. The parents along with a local councilor Srikant Samarth (PW-3) firstly went to the hospital and met Dr. Praveen Agrawal (PW-6) who saw the underwear and told that the stains over it were semen. Thereafter they went to the police station, where Girish Rathore (PW-2) lodged the First Information Report (Ex.-P/l). The prosecutrix (PW-1) was medically examined on the same day i.e. on 26.9.98 by Dr.(Smt.) M. Pandey (PW-9) who gave her report Ex.-P/5-A. There were no external injuries on the body of the prosecutrix. There were no sign of external injuries on the vagina; no bleeding or discharge was there. Hymen was intact. No injuries or redness etc. were found on the hymen. She opined that no definite opinion can be given about recent sexual intercourse. On trial the charges were framed u/ss 376/511 IPC. The prosecutrix (PW-1), after the introductory questions, deposed as follows:- "IW: 3Tc fTq[ c^?R^l^^Tg31TaTT? ^aR: sfcfiTsn^ ^ g^r ^iicii^d ^c^ iTR ^ ^re TTT^ f^T STT gf^ ^^ ^R sfc n^ ^ ^ •cps^ ^r ?[-^ cR f^r ajr |" This version of the prosecutrix remained intact even in the cross examination by the defence. The disdosure of the above version made to the parents was also established by their evidence as they fully corroborated the same. However, the learned Sessions Judge held that in the facts and circumstances of the case, an offence u/ss 376/511 IPC was not made out and the respondent was acquitted. (3) Mr. Sudhir Bajpai, learned Dy. Govt. Advocate appearing on behalf of the appellant/State, argued that it was an attempt to commit rape, < therefore, the judgment of acquittal u/ss 376/511 IPC is bad-in-law. He D ^ '^ Criminal Appeal No. 127 of 2000 also argued that the Sessions Judge would have considered that atleast there were ingredients of the offence u/s 354 IPC and the respondent would have been convicted under the aforesaid Section. (4) Mr. Gurudev Sharan, learned counsel appearing on behalf of the respondent, opposed these arguments and supported the judgment passed by the Sessions Court. (5) We have heard the learned counsel for the parties at length and have also perused the records of the sessions case. (6) In Tarkeshwar Sahu -Vs- State of Bihar (now Jharkhand). (2006) 8 SCC 560, the Apex Court held that under Section 375 of the IPC, six categories indicated therein are the basic ingredients of the offence. The Supreme Court observed that in the facts and circumstances of the said case, where the prosecutrix was 12 years of age, her consent was irrelevant. The appellant had forcibly taken her to his Gumti with the intention of committing sexual intercourse with her. The important ingredient of the offence under Section 375 punishable under Section 376 of the IPC is penetration which is altogether missing in the said case, the Apex Court said that no offence under Section 376 of the IPC can be made out unless there was penetration to some extent. In the absence of penetration to any extent, it would not bring the offence of the appellant within the four corners of Section 375 of the IPC. Therefore, the basic ingredients for proving a charge of rape are the accomplishment of the act with force. The other important ingredient is penetration of the male organ within the labia majora or the vulva or pudenda with or without any emission of semen or even an attempt at penetration into the .private part of the victim completely, partially or slightly would be enough '^ o !^'r "'^ iN ^" Criminal Appeal No. 127 of2000 for the purpose of Section 375 and 376 of the IPC. The Apex Court held in para 13 that "in order to constitute rape, what Section 375 IPC requires is medical evidence of penetration and this may occur and the hymen remain intact. In view ofthe Explanation to Section 375, mere penetration of penis in vagina is an offence of rape. Slightest penetration is sufficient for conviction under Section 376 IPC." (7) In the present case, admittedly, there was no iota of evidence regarding penetration or even slightest degree of penetration. Therefore, there was no question of convicting the respondent u/s 376 as such. So far as conviction u/ss 376/51 1 IPC is concerned, for that, there must be a positive evidence of attempt to commit the offence. In this case even there was no iota of evidence to show that the respondent has attempted to commit the offence of rape against the prosecutrix. (8) In Malkiat Sinah and another -vs- The State of Punjab. AIR 1970 S.C. 713, the Supreme Court has explained the difference between attempt to commit an offence and preparation for commission of an offence. Preparation for committing an offence is entirely different from attempt to commit offence. The preparation consists in devising or arranging the means or measures necessary for the commission of offence. On the other hand, an attempt to commit the offence is a direct movement towards the commission after preparations are made. In order that a person may be convicted of an attempt to commit a crime, he must be shown first to have had an intention to commit the offence, and secondly to have done an act which constitutes the actus reus of a criminal attempt. The sufficiency of the actus reus is a question of law which had led to difficulty because of the necessity of distinguishing Criminal Appeal No. 127 of 2000 between acts which are merely preparatory to the commission of a crime, and those which are sufficiently proximate to it to amount to an attempt to commit it. The Supreme Court said that the test for determining whether the act of the accused constituted an attempt or preparation is whether the overt acts already done are such that if the offender changes his mind and does not proceed further in its progress, the acts already done would be completely harmless. This was said by the Supreme Court in context of a case of contravention of Punjab Paddy (Export Control) Order (1959) which was punishable u/s 3/7 of the Essential Commodities Act. However the above principles may be applied for any other offence and the acts of the accused can be determined to be completely harmless for that particular offence. (9) In the present case, so far as offence u/ss 376/511 IPC is concerned, the acts proved to be already done by the respondent though was completely harmless with reference to offence punishable u/ss 376/511 IPC as it never was a attempt to commit an offence of rape but if by the acts so proved, some other offence is made out, he can well be punished under the said offence. (10) The learned Sessions Judge on the evidence available on record, completely lost sight of the fact that the act of the respondent was sufficient to hold him guilty ofthe offence punishable u/s 354 IPC. Ifthere was intact evidence that the respondent, firstly kissed on the stomach of the prosecutrix and then he took out his penis from his under wear and there was semen emission on the underwear of the prosecutrix, it was a case of outraging the modesty of the prosecutrix and the respondent was liable for punishment u/s 354 IPC. The Sessions Judge erred in law in not Criminal Appeal No. 127 of2000 considering this aspect to the matter and cleanly acquitting the respondent. Therefore we hold that the acquittal of the respondent cannot be sustained and the respondent was liable for conviction u/s 354 IPC. (11) Accordingly the impugned judgment of acquittal is set aside and the respondent is convicted u/s 354 IPC. (12) So far as punishment is concerned, the offence took place in the year 1998 and the judgment of acquittal was recorded in the year 1999. The respondent was aged about 20 years. Both the families are neighbours of each other. Therefore, looking to the facts and circumstances of the case as also the nature of offence held to be proved against the respondent, we deem it expedient to release him on probation of good conduct, instead of directly sentencing him to jail. Therefore, by giving the benefit of Section 4 of the Probation pf Offenders Act, 1958, we direct that the respondent shall execute the personal bond with one surety for keeping good conduct for a period of 2 years to the satisfaction of the trial Court within a period of 2 months from today, failing which, or in contravention theirof, he shall be liable to undergo rigorous imprisonment for 1 year. (13) The appeal filed by the State is allowed to the extent indicated above. Sd/- Chief Justice Sd/- Sunil Kumar Sinha Judge ^ vatti A'l II l;il a.1