IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr .Revision No. 180 of 2003. Date of Decision: 2.7.2010. _______________________________________________ Sanjeev Kumar. ….Appellant. Versus. State of H.P. ….Respondent. Coram: Hon’ble Mr. Justice Dev Darshan Sud, Judge. Whether approved for reporting1?yes. For the petitioner : Mr.R.K.Gautam, Sr. Advocate. with Mr. Mehar Chand, Advocate. For Respondent. : Ms. Ruma Kaushik, Addl. Advocate General. Dev Darshan Sud, J.(Oral). The petitioner has been convicted for offence under Section 377 of the Indian Penal Code. 2. The case has put forth by the prosecution is that complainant Jagdish PW1 resident of village Malkhu Majra studying in 5th Class and on the fateful day i.e. 6.4.1997, the complainant was alone in the shop of Tea Stall of his father at Ratta. The father of the complainant had gone to Peoha. On 6.4.1997 at about 9.30 p.m. when the complainant was sleeping, one Sanjiv Kumar removed the complainant’s Whether reporters of the Local papers are allowed to see the judgment? Yes. 2 trouser and forcibly had anal intercourse with him. On this, the complainant cried and reported the matter to his mother in the morning as his father had gone to Peoha on 5.4.1997. His father returned at about 12 p.m. on the next day. The statement of the complainant was recorded by the police on the basis of which F.I.R. Ext.P-3 was registered. 3. After completion of investigation, challan was filed in the Court. The prosecution has examined eight witnesses in all. On conclusion of the evidence, the petitioner herein was convicted for offence under Section 377 of the Indian Penal Code and sentenced to under go rigorous imprisonment for a period of two years and to pay fine of Rs.2000/-. 4. The learned trial Court, on the basis of the statement of complainant Jagdish (PW-1), his mother Smt. Bir Devi (PW-2) and Sh.Nasib Chand (PW-3) found the narration of facts as natural with no embellishment. PW-1 complainant-Jagdish being corroborated in material particulars by PW-2 Smt Bir Devi and PW-3 Nasib Chand . He (PW-3) stated that when he was going to the shop for his own work, many persons had assembled at Ratta barrier in the shop of Mehar Chand and when he enquired as to why so many people had gathered there, complainant disclosed that the accused had sodomised him. 3 5. PW-7 Dr.R.K.Behl examined the accused and according to his report Ext.P-4, he did not find any injury in the anal region of the complainant. He records: “The victim has changed the clothes. He was examined in knee elbow position. perennial and anal region- No injury was seen. No foreign body particles. No hair found. No blood stain seen. No stain of foecal matter. No clinical symptom-clinically NDA. On examination, no laceration seen inside the reclue. No other injury found on body of victim.” 6. The learned court, on the basis of this report held that it was not necessary that in each and every case the clinical symptoms of attempted forcible sexual intercourse would be present on the body of the perpetrator. The learned trial court, on the basis of the entire evidence including the medical evidence convicted the petitioner. 7. It was urged before the learned trial court as also before the learned appellate Court that no offence is made out as there are no signs of injury on the body of the accused. The learned court has not accepted this to be a sine qua non. Adverting to the evidence of PW-7 Dr.R.K.Behl, the court holds that no injuries were present on the body of the accused, but he did not rule out that the complainant was not sodomised. 8. Learned counsel appearing for the petitioner submits that the medical evidence was clear and cogent and, therefore, the version of the complainant and his mother could not be relied upon. 4 9. I am not inclined to accept the submission made by the learned counsel for the petitioner. It is not necessary that the sodomy should have been attempted in a manner to injure the victim. Section 377 of the Indian Penal Code does not require forcible penetration for attracting criminality. The explanation to the Section which reads: “377 Unnatural offences—Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with (imprisonment for life), or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine. Explanation.--Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section. Classification of Offence- The offence under this section is cognizable (but no arrest shall be made without a warrant or without an order of a Magistrate), non-bailable, non- compoundable and triable by Magistrate of the first class” 10. In these circumstances the submission made by the learned counsel is rejected. 11. However, looking to the entire facts and circumstances of the case and the narration of the victim as also his mother, there is no doubt in my mind that if the offence of sodomy has not been proved in its consummation but yet the evidence is clear that the petitioner has made an attempt to sodomise the victim. The evidence is clear pointer that he had all intentions to having unnatural sex with the victim had he not cried out. 5 12. In Aman Kumar and another Vs. State of Haryana, AIR 2004 Supreme Court 1497, the Supreme Court, on the question of attempt holds: “……………………………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 makes 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 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 6 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 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 preparations 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.” (PP-1501) 13. The facts in the evidence in this case clearly establish an attempt to sodomise the complainant. 14. In these circumstances, this petition is partly allowed. The petitioner is convicted for the offence under Section 377 read with Section 511 of the Indian Penal Code and sentenced to undergo 18 months rigorous imprisonment. The fine as imposed by the courts below shall be paid by the petitioner and to undergo imprisonment in default as ordered. Bail bonds furnished by the petitioner are cancelled. A direction is issued to the learned Chief Judicial 7 Magistrate, Solan to ensure that the sentence is carried out punctual. The petition is disposed of. Let a copy of this judgment be sent to the trial Court which shall ensure that the sentence is carried out. (Dev Darshan Sud), Judge. July 2, 2010(R)