IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Cr. Appeal No. 227/2009 Date of decision: 19.11.2010 Arun Kumar …..Appellant Versus State of H.P. ……Respondent Coram: The Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting ?1 . For the Appellant: Mr. Rakesh Jaswal, Advocate. For the respondent : Mr. A.K. Bansal, Additional Advocate General. Surinder Singh, J. (Oral) Appellant was convicted by the learned trial court for attempted rape under Section 376 read with Section 511 Indian Penal Code and sentenced to undergo imprisonment for a period of seven years and to pay a fine of ` 25000/- with the default clause. The appellant is in jail. 2. The instant jail appeal has been directed by the convict-appellant. Shri Rakesh Jaswal, Advocate was appointed as 1 Whether the reporters of Local Papers may be allowed to see the judgment ?. yes - 2 - Legal Aid counsel vide order dated 25.10.2010. 3. In short prosecution story can be stated thus. PW3, the Prosecutrix (6 years) a child on 9.9.2008 at about 6 p.m., was playing with her elder sister PW7 Punam (8 years). Grand mother and mother of the Prosecutrix both had gone to the fields for their work. On their return PW7, aforesaid informed them that the appellant a Bihari Labourer, who was working in Reliance Company, to dig trenches to lay down the lines in the vicinity, had attempted rape on the Prosecutrix and had allegedly inserted his finger in her private part with the result she sustained injury and she cried for help. On this, PW7 came to the spot. The appellant relieved the Prosecutrix. The injury was bleeding. Accordingly, police was telephonically informed. Prosecutrix was got medically examined from PW2 Dr. Anju Lath, in R.P.M.G.C. College/Hospital Tanda. On the examination of the Prosecutrix, doctor noticed the blood stains on the frock and trouser of the Prosecutrix. However, no mark of injury - 3 - was seen on any part of the body except laceration over base of right labia majora having size of 5mm x 2mm with irregular in margin, red in colour. Perineum (inner side of labia) was found congested. No further examination was possible, as Prosecutrix was not allowing for that. Hence she was referred to Gynecologist PW14 Dr. Sita Thakur, but on further examination, she did not find any redness or swelling on the outside of labia majora. However, there was bruise present at the junction of labia majora and minora on the inside of labia, majora and minora and vestibule. Hymen was intact with no injury. There were no blood stains on any part of the body. Medico Legal Certificate of the Prosecutrix was obtained. 4. Appellant was arrested on 10.9.2008. He was also got medically examined from PW4 Dr. Surinder Kumar Sharma. He was found capable of performing sexual intercourse. His wearing apparels along with underwear were sealed and sent separately for the forensic examination along with clothes of the - 4 - Prosecutrix and vaginal swabs. As per report Ex. PW2/B human blood was detected on the salwar and shirt of the Prosecutrix and also on the shirt of the appellant. No semen was detected on these exhibits. Statements of the witnesses were recorded. 5. On the completion of the investigation, challan was presented in the Court for the trial of the appellant. 6. Finding a prima facie case, appellant was charge sheeted. He pleaded not guilty and claimed trial. After a complete trial, he was convicted and sentenced as aforesaid. 7. Shri Rakesh Jaswal, learned counsel for the appellant vehemently argued that no offence of attempted rape is made out against the appellant. He further led me through the evidence on record and submitted that evidence of the Prosecutrix is contradictory and further that the Prosecutrix in her examination- in-chief stated something else than in cross-examination contradicted her earlier version. Therefore, her testimony does not inspire confidence and could not have been - 5 - acted upon to pass conviction on the appellant, for the offence aforesaid. 8. Contra Shri A.K. Bansal, learned Additional Advocate General submitted that evidence of the prosecution is consistent and the statement of the Prosecutrix is reliable and worth inspiring confidence. Further that it stands materially corroborated from the other evidence on record. Therefore, no fault can be found in the judgment of conviction and sentence passed by the learned trial Court. 9. I have given my thoughtful consideration to the rival contentions of the parties and have reappraised the evidence on record. 10. At the very out set, I would like to say that the Prosecutrix and her elder sister PW7 are the children of the tender ages. On the day of alleged incident, they were playing with a rope swing, which was tucked to a Mango tree in their court- yard. Except them, nobody else of their family was present. Labour work was going on near the cow-shed of the complainant where labourers, including the appellant were at work for digging-up the trench. - 6 - PW5 the mother of the Prosecutrix and their grand mother (PW1) both had gone to the fields for their work. Grand father (PW6) was sleeping inside the house. 11. There are two stories emerging from the evidence on record adduced before the learned trial Court. The first is that the appellant, who was at work in the vicinity, noticing both these children swinging in their court-yard, took an opportunity to catch-hold of elder sister of the Prosecutrix but she escaped. Thereafter, he caught Prosecutrix, took her to the nearby drain, put off her salwar, inserted his finger into her vagina and removed his own pant. He kept her on his lap but she cried of pain. Attracted by her cries, her elder sister came to the spot. The Prosecutrix was let off. The appellant fled-away from the spot. When her grand mother PW1 Pushpa Devi and PW5, her mother Ritu returned to their house, before that a complaint was made by PW7 to their grand father (PW6) Om Parkash and the incident was also narrated to them on their arrival in their house. Accordingly police was informed. - 7 - 12. Second story that emerges from the statement of Prosecutrix which also finds corroboration from other evidence is that Prosecutrix along with her elder sister PW7 were swinging in their court-yard. When Prosecutrix finished her play, she gave chance to her elder sister to swing. The rope gave-way and swing got broken, with the result PW7 fell down and sustained injuries and the Prosecutrix also fell at a distance. PW7, sister of the Prosecutrix ran away but Prosecutrix was lifted by the appellant in his lap and brought to her house and told her grand father that she had suffered injuries due to fall from the swing, thereafter she was taken to the Hospital. 13. The above version is admitted by the Prosecutrix herself in cross- examination and in examination-in-chief, she also supports the first story whereas it was denied by the other witnesses. The Prosecutrix herself is an injured person but she gave two versions one for the attempted rape and second also regarding insertion of the finger in her private part and bringing her to the house by the - 8 - appellant on the pretext that she had a fall from the swing, to which she supports. She was not declared hostile. Both the stories remain un-assailed on record. 14. In view of this contradictory evidence, in my opinion, offence under Section 376 read with Section 511 Indian Penal Code has become doubtful but whereas believing the second story regarding which there is no explanation by the appellant except denial and stands duly corroborated by the medical evidence, offence under Section 354 Indian Penal Code is clearly made out. Possibility of the bloods stains on the shirt of the appellant cannot be ruled out while taking the Prosecutrix in his lap to her house. 15. Therefore, for the above reasons, in my considered opinion, the appellant deserves to be acquitted for the offence of attempted rape by giving him the benefit of doubt. But I hold him guilty for the offence punishable under Section 354 Indian Penal Code, thus his conviction is converted into under Section 354 Indian Penal Code and is hereby sentenced to - 9 - undergo rigorous imprisonment for a period of two years and to pay a fine of ` 1000/- and in default thereof to further undergo simple imprisonment for a period of two months. 16. The record reveals that appellant was arrested on 10.9.2008 since then he remained in Jail. By now appellant has already completed the sentence as such he be released forthwith, if not required in any other case, as having undergone the sentence aforesaid. 17. The Registry to take appropriate steps. Accordingly warrants be prepared and sent to the Jail Authority for its compliance. The appeal disposed of. November 19, 2010 (Surinder Singh), (cm) Judge