1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO. 362 OF 2009 Madhukar s/o Tukaram Pawar, Age 85 years, Occupation Nil, Resident of Dhande Galli, Beed, Taluka and District Beed APPELLANT (Ori. Accused) V E R S U S The State of Maharashtra RESPONDENT Mr. S.S. Thombre, for the appellant Mr. N.H. Borade, A.P.P. for the respondent / State [ CORAM : A. V. NIRGUDE, J. ] [Judgement Delivered on : 19th April, 2010] ORAL JUDGMENT 1. This appeal is filed against the Judgment and order passed by the learned Additional Sessions Judge – I, Beed, in Sessions Case No. 06 of 2009, dated 31st July, 2009, convicting the appellant under Sections 376 read with Section 511, 363, 354, 342 and 504 of the Indian Penal Code. The learned Sessions Judge sentenced the appellant to suffer rigorous imprisonment for a period of five years and to pay a fine of Rs.1,000/- (Rupees One Thousand) for the offence punishable under Section 376 read with Section 511 of the Indian Penal Code. The appellant is sentenced to suffer rigorous imprisonment of 2 two years and to pay a fine of Rs.500/- (Rupees Five Hundred) for the offence punishable under Section 363 of the Indian Penal Code. The appellant also is sentenced to suffer rigorous imprisonment of three months for the offence punishable under Section 342 of the Indian Penal code. The appellant is further sentenced to suffer rigorous imprisonment of three months for the offence punishable under Section 504 of the Indian Penal Code. The learned Judge of the trial Court directed all the substantive sentences to run concurrently and given set off under Section 428 of Code of Criminal Procedure. The facts leading to the prosecution case, in short, can be stated as under : 2. The appellant, who has a small hut like structure for carrying on his business of Ironing clothes, on 9th December, 2008, between 07.00 to 07.30 p.m., pulled victim Chaya, aged 9 years, in the hut, chained the door of hut from inside and then tried to rape her. As indicated above, the learned Judge of the trial Court believed the case of the prosecution and sentenced the appellant. 3. After going through the record and after hearing the submissions of learned counsel of the parties, following point arose for my consideration : “Whether the offence punishable under Section 376 read with Section 511 of the Indian Penal Code is proved beyond reasonable doubt ?” 4. The case of the prosecution is depending on the depositions of seven witnesses. The prosecution witness No. 6 Rupesh, 3 aged about 18 years, stated that, on that day, he and his friends were standing near the hut of the appellant, and, he noticed that the appellant had caught hold the hand of the victim Chhaya and dragged her inside his shop. He said, the appellant chained the door from inside. He said, he and his friends then went near the hut/shop and saw what was going on inside the shop from the gap between the wooden planks of the wall. He said, he noticed that the appellant had removed clothes of the victim and had also removed his own clothes. He said, he saw the appellant taking the victim on his person. He said, he immediately rushed to the victim’s house and informed this fact to the victim’s mother Seeta. He said, Seeta immediately rushed to the hut/shop of the appellant. The prosecution witness No. 3 Seeta reported and confirmed what is stated by prosecution witness No.5 to her. She said, on that day, she knew that her daughter was playing near the temple, which is situated near the shop of the appellant. She said, one Syed Sajedali came to her and told that the appellant forcibly taken her daughter Chhaya inside his shop. She said, she rushed to the spot and found the door of the shop latched from inside. She said, she kicked the wooden planks of the shop. She said, one of the planks got dislocated, and she said, she found the appellant sleeping necked on the floor and had taken Chhaya on his lap. She said, Chhaya was also necked. She said, no sooner she broke the wooden plank of the shop of the appellant, he left the child, started wearing clothes and vanished from the scene of offence. She said, she then took charge of her daughter, got her clothed and asked her what had happened. She said, her daughter told her that the 4 appellant had rubbed his penis on her vagina. Victim Chhaya was also examined as witness No. 5. She stated, while she was playing near the shop of the appellant, the appellant came and took her in his shop. She also stated that the appellant removed her clothes and his own. She said, she tried to raise alarm, but the appellant gagged her mouth and threatened that he would kill her. While doing so, she said, she sustained abrasions on her person due to the finger nails of the appellant. She, however, did not say that the appellant used his penis in any way, either by rubbing it on her private part or attempted to penetrate it in her vagina. 5. The prosecution witness No.4 is Dr. Suvarnamala, who stated that she examined the victim soon after the incident and found three abrasions on her person. However, she categorically stated that there were no injuries on the vagina of the victim and that the hymen of the victim was still intact. 6. The only question, as said above, in this case is, whether the offence under Section 376 read with Section 511 of the Indian Penal Code is made out? The learned Advocate appearing for the appellant almost conceded that all other offences viz. under Sections 363, 354, 342 and 504 are proved against the appellant. I would, therefore, concentrate only on the above mentioned point. 7. As said above, the victim did not say that the appellant used his penis, for rubbing her vagina, or that, he tried to penetrate it, in her vagina. She simply stated that the appellant caught her hand, pulled her in his shop, chained the door from inside, took out her clothes, 5 removed his own clothes, took her on his person and moved his hand on her person. So, there is no mention of penis or vagina in the deposition of the victim. In this background, the question is, whether the deposition of the prosecution witness No. 3 Seeta, the mother of the victim about the appellant’s rubbing his penis on the vagina of the victim is admissible? The answer is in negative. In order to appreciate this, one has to read Section 60 of the Indian Evidence Act. It reads as under : “S.60. Oral evidence must, in all cases whatever, be direct; that is to say – if it refers to a fact which could be seen, it must be the evidence of a witness who says he saw it; if it refers to a fact which could be heard, it must be the evidence of a witness who says he heard it; if it refers to a fact which could be perceived by any other sense or in any other manner, it must be the evidence of a witness who says he perceived it by that sense or in that manner; if it refers to an opinion or to the grounds on which that opinion is held, it must be the evidence of the person who holds that opinion on those grounds: Provided that the opinions of experts expressed in any treatise commonly offered for sale, and the grounds on which such opinions are held, may be proved by the production of such treatises if the author is dead or cannot be found, or has become incapable of giving evidence, or cannot be called as a witness without an amount of delay or expense which the Court regards as unreasonable : Provided also that, if oral evidence refers to the existence or condition of any material thing other than a document, the Court may, if it thinks fit, require the production of such material thing for its inspection.” 8. Prosecution witness No. 3 Seeta admittedly did not see, as to whether appellant was rubbing his penis on the vagina of the victim. So, she could not have stated that she saw this incident. Seeta is trying 6 to tell us, as to what she heard from the victim. But the victim herself is a witness, and so, what Seeta states about the victim’s version, would be a hearsay evidence and not admissible in evidence. The term ‘hearsay’ is generally used with reference to what is spoken. In its legal sense, it denotes that it is a kind of evidence which does not derive its value solely from the credit to the witness himself. But, it rests also on the veracity and competence of some other person. Thus, what is stated by the prosecution witness No.3 – Seeta, was a secondhand evidence, which is not even confirmed by the original source, the prosecution witness No.5 - Chhaya. 9. The second point that is required to be considered is, whether the act committed by the appellant amounted to an attempt to commit rape. Section 511 of the Indian Penal Code reads as under : “511. Punishment for attempting to commit offences punishable with imprisonment for life or other imprisonment – Whoever attempts to commit an offence punishable by this code with imprisonment for life or imprisonment, or to cause such an offence to be committed, and in such attempt does any act towards the commission of the offence, shall, where no express provision is made by this Code for the punishment of such attempt, be punished with imprisonment of any description provided for the offence, for a term which may extent to one-half of the imprisonment for life or, as the case may be, one-half of the longest term of imprisonment provided for that offence, or with such fine as is provided for the offence, or with both.” Having regard to the definition, especially the underlined portion, the question one should ask is, whether the acts done by the appellant amounted to acts towards commission of offence of rape ? The appellant, it is proved, pulled victim Chhaya in his shop. He thereafter latched the door of the shop from inside. He thereafter removed his 7 clothes as well as clothes of the victim Chhaya. He then took Chhaya on his person. It is also proved beyond reasonable doubt that he then slept on the ground and made victim Chhaya sit on his lap. While doing so, he fondled Chaya’s body and tried to gag her. While doing so, he even caused minor abrasions on Chaya’s person. The question is, whether these acts would lead to a conclusion that the appellant would have ultimately raped Chhaya, had he not been stopped abruptly by the witnesses. The learned Judge of the trial Curt too posed this question to himself and came to a conclusion that the appellant was intending to rape Chhaya. But, while coming to such conclusion, he also took into account the hearsay evidence of the prosecution witness No. 3 – Seeta that the appellant had rubbed his penis on the vagina of the victim, and that, since the appellant had made victim Chaya to sit on his lap, there ought to have rubbing between the penis and vagina. Both these conclusions are erroneous. As said above, the hearsay evidence of the prosecution witness No. 3 – Seeta is not admissible, and therefore, cannot be taken into consideration. The second conclusion of the learned Judge of the trial Court is purely a guess work, when he said that there was bound to be rubbing between the penis and vagina, when the appellant made the victim to sit on his lap. There is no evidence on record to prove that the appellant made the victim to sit on his genitals. Coupled with this, is the medical evidence. As said above, no injury was found on the victim’s vagina. This indicates that there was possibly no rubbing of penis or any other hard and blunt object on the vaginal area of the victim. So, whatever was done by the appellant, would fall short to 8 constitute the act towards commission of the offence of rape. It would, at the most, amount to an offence of outraging of modesty. In view of this, the appeal would partly succeed. Hence, order : O R D E R 1] The appeal is partly allowed. 2] The appellant is acquitted of the offence punishable under Section 376 read with Section 511 of the Indian Penal Code. 3] The appeal as against the other convictions and sentences stands dismissed. 4] The appellant is entitled to set off under Section 428 of Code of Criminal Procedure, for the period for which he is in custody. sd/- ( A.V. NIRGUDE ) JUDGE srm/criapl/362/09/ok