Whether reporters of local papers may be allowed to see the judgment? IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Cr.A.175 of 2010. Date of Decision: May 2, 2011. Guljeet Singh. ….. Appellant. Versus State of Himachal Pradesh. …. Respondent. Coram Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting1?Yes. For the Appellant : Mr. Vinay Thakur, Advocate. For the Respondent: Mr. A.K.Bansal, Addl. Advocate General. SURINDER SINGH, J (oral). The challenge in the instant appeal by the appellant, hereinafter referred to as ‘the accused’, to the judgment of conviction and sentence passed by the learned trial Court, for the offence punishable under Section 376 read with Section 511 and 506 of the Indian Penal Code, whereby the accused was imposed the sentence in the following manner:- Offence Under Section Sentence Section 376 read with Section 511 I.P.C. Rigorous Imprisonment for Five years and to pay a fine of `10,000/- and in default of payment of fine to further undergo rigorous imprisonment for six months. Section 506 I.P.C. Fine to the tune of `5,000/- and in default of payment of fine to further undergo rigorous imprisonment for three months. - 2 - The aforesaid fine amount after its realisation is ordered to be paid to the prosecutrix (6½ years), as compensation. The sentence and imprisonment of default of payment of fine shall run concurrently. 2. The background facts giving rise to the present appeal can be stated thus. On 26th April, 2009, the prosecutrix was given `10/- by her father to purchase ‘Kulfi’. The accused was running a shop nearby where he had also installed a STD booth. Around 7.25 PM, the prosecutrix went to the shop of the accused to purchase ‘Kulfi’. He took the prosecutrix inside STD booth and put off her underwear. He sat on a stool and took her on his lap after sliding down his trouser and underwear. Thereafter the accused held his male organ with hand and put it against genitalia of the prosecutrix and ejaculated with the result, legs of the prosecutrix smeared with semen. He threatened her not to disclose this incident to anyone including her mother. The prosecutrix started weeping and left the place. (ii) When the prosecutrix had not returned from the shop, her mother PW1 Bimla Devi reached there and was confronted with the - 3 - weeping prosecutrix outside. She asked the reasons. The prosecutrix narrated the whole story to her mother. Thereafter Bimla Devi went to Pradhan and narrated about the incident to him. He called the accused who confessed his guilt. (iii) Police was informed and the statement Ex.PW1/A of the mother of prosecutrix was recorded under Section 154 of the Code of Criminal Procedure, which culminated into FIR Ex.PW10/A. (iv) Police started investigation of the case. On the same day at 10.30 PM, she was got medically examined from PW2 Dr. Archana Gautam in Civil Hospital, Kangra. At that time, prosecutrix was accompanied by her mother. On examination, Doctor noticed that she had already been given bath and her underwear to which she was wearing at the time of alleged incident was already sealed and taken into possession by police. Doctor did not find any struggle marks or injury on the body of prosecutrix. In the opinion of the doctor, there - 4 - was no need of the ossification test as the second molar tooth was absent from the oral cavity which proved that the child was less than 12 years. Clinical age of the prosecutrix was assessed to be between 6 to 7 years. The underwear of the prosecution was sealed and handed over to the police for the forensic examination. The medico legal certificate of the prosecutrix is Ex.PW2/B. (v) The accused was also arrested and got medically examined from PW12 Dr. Sunil Bhatt on 27.4.2009 on an application Ex.PW12/A moved by the police. He was found fit to commit sexual intercourse. His medico legal certificate is Ex.PW12/A. The blood sample, nail cuttings, pubic hair, and underwear of the accused were handed over to the police for forensic examination. (vi) Police also took photographs of the place of incident and prepared site plan. During investigation, police took into possession the Panchayat record Ex.PW13/F with respect to the birth of the prosecutrix from the birth - 5 - register on the basis of which birth certificate of the prosecutrix Ex.PW13/E was issued. It showed her around 6½ years. The report of the Forensic Science Laboratory Ex.PX reveals the semen stains on the underwear of the prosecutrix as well as that of the accused. 3. After completing the investigation, challan was presented in the court for the trial of the accused. He was accordingly charge-sheeted and tried for rape under Section 376 and Section 506 of the Indian Penal Code and sentenced for attempted rape as aforesaid, which is under challenge. 4. The accused took the defence that he was implicated in a false case, but no reason for his false implication has been suggested to any of the witnesses of the prosecution, in their cross-examination. 5. Shri Vinay Thakur, learned counsel for the accused vehemently argued that from the facts on record, even the offence of attempted rape is not made out. At the worst, it can be a case of outraging the modesty of the prosecutrix. He also ventilated that there have been material improvements and contradictions in the statements of the prosecution - 6 - witnesses, which makes its story dubious. In alternative, he submitted that the sentence imposed upon the accused is very excessive. 6. Contra, Shri A.K.Bansal, learned Additional Advocate General supports the impugned judgment of conviction and sentence and further argued that in the facts and circumstances of the case, the sentence imposed upon the accused is quite reasonable. 7. I have given my thoughtful consideration to the rival contentions of the parties and have carefully and cautiously scanned the evidence on record. 8. Although the prosecutrix is a child witness, but her evidence has to be evaluated carefully and with greater circumspection because a child is susceptible to be swayed by what others tell him, thus the child witness is an easy prey to tutoring. The Court has to assess as to whether the statement of the victim before the Court is the voluntary expression of the victim and that she was not under the influence of others. Though in cross-examination, the prosecutrix stated that she deposed in the Court whatever PW1 her mother Bimla Devi and aunt made her to understand, but in her examination-in-chief, she has given a vivid and natural - 7 - count of the incident which had taken place with her. She categorically stated that she had gone to the shop of the accused to buy a ‘Kulfi’, but he took her inside the STD booth and put off her underwear. He sat on the stool and made her to sit on his lap, touched his organ with her private part and told her not to tell it to anyone, even to her mother. When she came out, her mother met her and enquired as to why she was weeping, she revealed everything to her. Later on same day, they assembled at the place of Pradhan where the accused was also present. She specifically denied in her cross-examination that the accused had not touched her private part with his private part. 9. PW1 Bimla Devi affords the corroboration to the prosecutrix. She testified that when the prosecutrix did not return after 10-15 minutes, from the nearby shop, she went there to see her and found that the prosecutrix was weeping outside the shop and asked the reason from her and revealed about the incident as stated above. The accused ejaculated and semen fell on her legs. The prosecutrix also told her that she was threatened by the accused not to disclose this occurrence to her. Although, she was confronted with - 8 - her statement Ex.PW1/A to the effect that the accused took off the underwear of the prosecutrix which fact did not find mentioned therein, but in view of the un- shattered statement of the prosecutrix which is worth inspiring confidence is of no significance. 10. Further, the medical evidence also supports the case of the prosecution. PW2 Dr. Archana Gautam medically examined the prosecutrix and at that time, her mother was also with her. She apprised the doctor that the accused ejaculated his male organ by touching the genitalia of the child by removing her under garment. Her underwear was in the police possession and she had already given a bath. 11. According to Investigating Officer PW13 Partap Singh Thakur, the underwear taken into possession was sealed and sent to the Forensic Science Laboratory for its examination alongwith vaginal swabs, pubic hair of the victim in the sealed packet and the report is Ex.PX, which also shows the presence of the semen on the underwear of the prosecutrix. 12. On the critical examination of the evidence aforesaid, in my considered opinion, I find the version given by the prosecutrix worth putting reliance as it - 9 - stands corroborated in material particulars on record and satisfies that the conduct of the accused was indicative of a determination to gratify his passion at all event. The ejaculation of the semen on the private parts of the prosecutrix is clearly an attempt to commit rape. Further when the prosecutrix came out from the shop of the accused, she was weeping and disclosed about the incident to her mother. Thereafter PW1 alongwith prosecutrix went to the Pradhan of the Panchayat and the accused was called, where he also confessed his guilt. Not only this, the presence of semen on the underwear of the prosecutrix authenticates the prosecution story to be correct. These surrounding circumstances throw beacon light on truthfulness of this case. Ejaculation without penetration as held by the Supreme Court in Koppula Venkat Rao vs. State of Andhra Pradesh [ AIR 2004 SC 1874] constitutes an attempt to commit rape and not actual rape. Therefore, the accused was rightly convicted for attempted rape and criminal intimidation, which requires no interference. 13. The only question, which remains to be considered, is as regards the sentence. The accused at - 10 - the relevant time was a matured man of 31 years. He behaved in a shockingly indecent manner. The magnitude of his offence cannot be over-emphasized in the context of the fact that he misused his position being a shopkeeper to whom the prosecutrix has come to purchase ‘Kulfi’ and confided him and he took her to STD booth within the shop, to have misused his position and tricked her to enter STD booth taking undue advantage of the situation. In these circumstances too much leniency shown to him in sentence would be a misplaced sympathy. 14. Learned counsel for the appellant argued that the accused is still a bachelor and has his mother to maintain. He has lost his business and is in jail since the time of his arrest on 26th April, 2009 and now undergoing the sentence. 15. Keeping in view the overall aspect of the matter, mitigating and exaggerating circumstances and also the fact that he faced the torture of trial and uncertainty in appeal, the ends of justice would be met in case without disturbing the fine, the substantive sentence is reduced to three years from five years, as - 11 - awarded upon the appellant by the learned trial Court. Hence ordered accordingly. 16. For the reasons aforesaid, while maintaining the conviction of the accused, the appeal is dismissed with the modification in the sentence to the above extent. 17. The learned trial Court is hereby directed to issue the modified warrant to the Superintendent Jail concerned in conformity with the judgment. 18. The appeal stands accordingly disposed of. Send down the records of the trial court forthwith. (Surinder Singh) May 2, 2011. Judge. (Pds)