Whether reporters of local papers may be allowed to see the judgment? IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Cr. Appeal No.217 of 2004. Date of Decision: October 26, 2010. ------------------------------------------------------------------------------------------------------------- Dilshad alias Pinnu. …… Appellant. Versus State of Himachal Pradesh. ……. Respondent. Coram The Hon’ble Mr. Justice Surinder Singh, Judge. Whether approved for reporting ? No. For the Appellant : Mr. Rajiv Rai, Advocate, vice Mr. Jagdish Vats, Advocate, For the Respondent : Mr. A.K.Bansal, Addl. Advocate General. Surinder Singh, J (oral) : The appellant was charged and tried for the offences punishable under Sections 376 read with Section 511 of the Indian Penal Code, but the offence under Section 354 of the Indian Penal Code was proved, hence he was accordingly convicted by the learned Sessions Judge, in Sessions Trial No.5-N/7 of 2002 dated 27.3.2004, and sentenced to undergo rigorous imprisonment for a period of three years and to pay a fine of `3000/-. In default in payment of fine, the appellant was also sentenced to undergo simple imprisonment for a period of - 2 - three months. The fine if realized was ordered to be paid as compensation to the prosecutrix. Hence, the appeal. 2. In short, the prosecution story can be stated thus. (i) The prosecutrix is a child aged about six years. On 4.11.2001, she was playing in the street near to her house in Devi Nagar Mohalla at Paonta Sahib. The appellant (23 years) was residing in the neighbourhood. At about 10.30 a.m., the prosecutrix was called by him to his room. When she entered the room, the appellant switched on the television. When the prosecutrix was watching the television, he switched it off and asked her to go to the adjoining room. She went there. The appellant was alone in the house. He bolted the door from inside and asked her to lie on the bed. When she laid on the bed, the appellant removed her trouser as also his pant and underwear worn by him. Then laid upon her. The prosecutrix started weeping. Thereafter appellant unbolted the door and allowed her to go. - 3 - (ii) The mother of the prosecutrix was an Anganwari Worker and her father a photographer. The prosecutrix went to her and narrated about the entire incident. She called her husband through her brother-in-law Mehboob and on his arrival narrated the entire storey to him. The father of the prosecutrix took her to the Police Station and lodged the report. (iii) The prosecutrix was got medically examined in Civil Hospital, Paonta Sahib. Her shirt and Salwar were taken into possession and sealed in a parcel and sent for the forensic examination. The appellant was arrested on the same day and was got medically examined. The sample of his pubic hair and pant were also taken into possession, duly sealed and handed over to the police also for forensic examination. Police recorded the statements of the prosecutrix, her parents and other witnesses. (iv) As per the report of the Forensic Science Laboratory Ex.PW7/C, the semen was found present on the pant of the appellant. - 4 - (v) The birth certificate Ex.PW7/D of the prosecutrix was obtained from the Municipal Council, Paonta Sahib wherein her date of birth was shown 5th August, 1994. 3. On the completion of the investigation, challan was presented in the Court for the trial of the appellant. 4. Finding a prima-facie case against the appellant for the offences punishable under Section 376 read with Section 511 of the Indian Penal Code, he was accordingly charge-sheeted, to which he pleaded not guilty and claimed trial. 5. To prove its case, prosecution examined its witnesses during the trial and at the close of the prosecution evidence the appellant was also examined under Section 313 of the Code of Criminal Procedure. 6. The circumstances, which were found attendant upon the appellant, were also put to him, to which he denied. He denied the recovery of his pant by the police. According to him, the said pant belonged to his brother. He further stated that a false case was foisted upon him due to long standing dispute over a passage between his family and that of the complainant. To wreck vengeance to him, the father of the prosecutrix framed - 5 - him in a false case. He also took the plea of alibi that on the day of occurrence, he was not present in his house and had gone to attend a marriage. When called upon to enter into his defence, he examined DW1 Babu Khan. He stated that the appellant was present in the marriage of his youngest daughter Kumari Hina Khatoon on 4.112001 in village Bhattanwali about 4 k.m. away from his residence. To substantiate the fact of marriage, the marriage invitation card Ex.DA was also placed on the record. Another witness DW2 Ashfaq Hussain was also examined, with respect to the litigation over a path. The appellant tendered in evidence copy of the order dated 28.7.1997 (Ex.DB) alongwith other documents marks ‘A’ to ‘E’ in defence regarding the dispute over a passage. 7. On the scrutiny of the evidence, learned trial Court rejected the defence taken and convicted the appellant, for the offences punishable under Section 354 IPC as the offence under Section 376 read with Section 511 of the Indian Penal Code was not made out and sentenced as aforesaid. 8. Shri Rajiv Rai, learned counsel appearing for the appellant vehemently argued that the statement of the prosecutrix did not inspire confidence and there is ample - 6 - evidence on record to show that the appellant was not present on the spot on the day of alleged occurrence and further that there has been a litigation with the father of the prosecutrix, which nurtured enmity against the appellant to frame him in the instant case. According to learned counsel, the learned trial Court did not examine the case in its proper perspective, which resulted into wrong findings of guilt against the appellant. He also submitted that the sentence passed by the learned trial Court is disproportionate. 9. Contra, learned Additional Advocate General supported the impugned judgment of the conviction and sentence passed by the learned trial Court. 10. I have considered the above contentions advanced by the rival parties and have carefully gone through the evidence on record. 11. Learned trial Court after examining the judgment of the apex Court as well as judgments rendered by different High Courts to find out as to offence was committed by the appellant on the facts proved and concluded that if a person commits an offence of ‘attempt to commit’ that particular offence after having made preparations, with an intention to commit the - 7 - offence does an act towards its commission which need not be the penultimate act towards the commission of that offence and in fact, it must be an act during the course of committing that offence. In order to constitute as attempt, first there must have been an intention to commit a particular offence, secondly, some act must have been done which would necessarily have to be done towards the commission of the offence and thirdly, such act must be proximate to the intended result. The measure of proximity is not in relation to time and action, but in relation to intention. Examining this preposition of law in the above manner, the learned trial Court held that against the factual background, the appellant was only guilty of an offence punishable under Section 354 of the Indian Penal Code as he is not alleged to have discharged after he laid on the prosecutrix nor he is alleged to have held out any threat. His afore-mentioned acts not being reasonably proximate to the consummation of the offence and there being nothing to suggest that his intention was to commit rape in all events, he cannot be said to have committed an offence of ‘attempt to rape’. - 8 - 12. While examining the above proposition, it shall be relevant here to refer to the statement of the prosecutrix. 13. Learned trial Court found that the prosecutrix was of a tender age and she did not understand. The obligation of oath, hence her statement was recorded without administering oath to her. She narrated the incident that she was playing in front of the gate of her house at ‘Devi Nagar Mohalla’ at Paonta Sahib. When she was playing in the street at about 10 a.m., she was called by the appellant to whom she identified during the trial, to his house nearby and asked her to sit down in his room. When she sat down, she switched on the television, but soon thereafter switched it off and asked her to go to the adjoining room. When she went there, he bolted the door from inside and asked her to lie down on the bed in the room. She laid down, her trouser was removed, thereafter he put off his pajama and underwear and laid on her. Then she told him that she intends to go to home. On this, she was released. The door was unbolted and then she came out of the room and went weeping to her house. Her mother asked the reason it was then she narrated the entire incident to her. Her Uncle Mehboob - 9 - called her father. In cross-examination however, she stated that the Public Prosecutor told her that she would be administered oath before making her statement and also what was to be stated by her. She was confronted with her statement whereas it was not found mentioned that the accused had put off his underwear. She stated that there was a marriage in village Bhattanwali, but she did not go that place. She also did not know about the dispute of passage between his father and the appellant. She denied that the appellant did not take her in his house as alleged and that he did nothing with her. She further denied that she has stated before the Court at the behest of her father. 25. PW5 Smt. Anwari Begum is the mother of the prosecutrix. She stated that immediately after the incident, her daughter came weeping to her and narrated the entire story to her. It was thereafter, the father of the prosecutrix was called. In cross-examination, she denied the suggestion that the appellant was with his parents to attend the marriage at village Bhattanwali. She further stated that Mehboob was sent to call the parents of the appellant. When her husband came home, the appellant and his mother had left their house. She also - 10 - stated that when the prosecutrix made the complaint to her, she went to the house of the appellant on being asked he started touching her feet by saying that he committed a mistake. 26. PW3 Gulsher Ali, the father of the prosecutrix afforded the version to the statements of the prosecutrix and her mother. He has stated that with respect to the incident, his wife had revealed him whatever his daughter had stated to her. Thereafter, he took her to the Police Station and lodged the complaint Ex.PW2/A. In cross- examination, he denied that the appellant was present in the marriage of the daughter of Babu Khan on the day of alleged incident in village Bhattanwali, 4 Kilometer away from his house. He denied that the appellant was falsely implicated in this case. He denied that he blocked the passage by constructing a ‘Khokha’ and with respect to the passage, there has been litigation between him and the appellant. 27. Though the father of the prosecutrix admitted that on 4.11.2001, there was marriage of the daughter of Babu Khan in village Bhattanwali, regarding which DW1 Babu Khan was produced as witness, but the place where the alleged marriage was solemnized is merely 4 - 11 - kilometers away from the house of the appellant. The incident in question pertains to 4.11.2001 at 10 a.m. There is absolutely no whisper in the statement of DW1 Babu Khan that at 10 or before 10 a.m., the appellant was present in the marriage in his house. Thus, the defence of alibi raised by him is not convincing at all. The place of marriage was not so far that the appellant could not have been present at the spot as alleged. Further Ex.DB is the order of Sub-Divisional Magistrate, Paonta Sahib, passed under Section 133 Cr.P.C. against the complainant and others on the complaint filed by one Asgar Ali. It is not established on record whether the father of the appellant had any connection with this litigation. Otherwise also, because of the litigation with respect to the passage, nobody would put at stake the honour of his family and future of the female child by imputing false allegations of this nature. 28. On exploring the evidence in extenso, I do concur with the findings of the learned trial court that it was not a case of ‘attempted rape’. The act of the appellant was not reasonably proximate to the consummation of the offence, as there being nothing to suggest that his intention was to commit rape in all events, - 12 - but the facts and circumstances of the case proved on record, he was held guilty for outraging the modesty of the prosecutrix, which squarely falls within the ambit of Section 354 of the Indian Penal Code. Thus no fault can be found in holding the appellant guilty by the learned trial Court for the offence aforesaid. 29. Mr. Rajiv Rai, learned counsel appearing for the appellant also argued that at the time of commission of the alleged offence, the appellant was aged about 22/23 years, now he has settled down in his life and has family to support, therefore, sentence imposed upon the appellant is too excessive. 30. I have considered this part of the submission also. True it is the appellant at the relevant time was about 22/23 years of age, the ends of justice would be met in case his sentence is reduced to six months instead of one year as passed by the learned trial Court, while maintaining the fine. Thus, ordered accordingly. 31. In result, the appeal is partly allowed with the above modification in the sentence. The appellant shall be entitled for the benefit of Section 428 of the Code of Criminal Procedure. - 13 - 32. The appellant is hereby ordered to surrender before the learned trial Court on 10th November, 2010, to serve out the sentence as modified by this Court, failing which the learned trial Court shall take coercive method to procure his presence and commit him to prison to serve out the sentence as aforesaid. The fine amount, if realized be paid to the victim PW4 Kumari Hina. The matter stands disposed of. 32. An authenticated copy of this judgment alongwith record be sent to learned trial Court forthwith. October 26, 2010. (Surinder Singh) (Pds) Judge.