IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH 1. Criminal Appeal No.23-SB of 2002 Nirmal Singh alias Papla and others … Appellants Versus State of Haryana … Respondent 2. Criminal Revision No.597 of 2002 Om Parkash … Petitioner Versus Nirmal Singh and others … Respondents Date of decision: 24th May, 2010 CORAM: HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA Present: Mr. Akshay Jain, Advocate Amicus Curiae for the appellants in Criminal Appeal No.23-SB of 2002. None for the petitioner in Criminal Revision No.597 of 2002. Mr. Manish Deswal, Deputy Advocate General, Haryana for the State. KANWALJIT SINGH AHLUWALIA, J. (ORAL) By this common order, (1) Criminal Appeal No.23-SB of 2002 preferred by Nirmal Singh alias Papla aged 18 years, Tej Pal alias Toni aged 21 years and Rakesh Kumar aged 20 years; and (2) Criminal Revision No.597 of 2002 preferred by Om Parkash shall be decided together. Criminal Appeal No.23-SB of 2002 is directed against the impugned judgment dated 14th December, 2001, whereby the trial Court Criminal Appeal No.23-SB of 2002 & Criminal Revision No.597 of 2002 held the appellants guilty of an offence punishable under Section 376 read with Section 511 IPC and sentenced them to undergo rigorous imprisonment for a period of three years and to pay a fine of Rs.2000/- each, in default of payment of fine to further undergo rigorous imprisonment for six months. Criminal Revision No.597 of 2002 has been preferred by Om Parkash complainant, father of the prosecutrix, wherein it has been prayed that the sentence awarded to the appellants be enhanced and compensation be awarded to the revision petitioner. The appellants were tried, along with their co-accused Krishan Lal, in a case FIR No.104 dated 17.06.1999 registered at Police Station Mahesh Nagar, Ambala under Sections 376, 363, 341, 506 and 511 IPC by the Court of Sessions Judge, Ambala. However, co-accused Krishan Lal was acquitted by the trial Court. Om Parkash, father of the prosecutrix on 16th June, 1999 submitted a written application Ex.PB to Surjit Kumar SI/SHO Police Station Mahesh Nagar, Ambala PW-5, on the basis of which formal FIR Ex.PB/1 was registered. It was stated in the application Ex.PB that on 16th June, 1999 at about 7.00 p.m. the prosecutrix (whose name has been withheld to protect her identity) left her house. She was aged about 11/12 years. She had gone from her house to bring fodder for the cattle from the shop of Raj Pal “Kuttiwala”. Since for a long time the prosecutrix had not returned, the complainant accompanied by many persons, including Ram Kumar son of Som Nath, went towards the outskirts of the village. At that time, three boys ran away. They recognized one boy as Papla son of Diala (Nirmal Singh). The complainant went towards the site, wherefrom the three boys ran away, found his daughter, who was standing in naked condition and was searching for her clothes. They made the prosecutrix to wear her clothes and returned home. The complainant along with other 2 Criminal Appeal No.23-SB of 2002 & Criminal Revision No.597 of 2002 members of the street went to the house of Diala and wanted to confront Papla, when an altercation ensued between the complainant and the family members of Diala. Fist blows were also exchanged. It was stated in the complaint that Papla and his companions had made an attempt to rape the daughter of the complainant. The above said FIR was investigated and report under Section 173 Cr.P.C. was submitted against the accused appellants. The case was committed to the Court of Sessions along with the accused appellants. The appellants were charged by the Court of Sessions Judge, Ambala for an offence punishable under Section 376 read with Section 511 IPC. The charge stated that on 16th June, 1999 in the area of Police Station Mahesh Nagar, Ambala the accused attempted to commit rape upon the prosecutrix, a woman and thereby committed an offence punishable under Section 376 read with Section 511 IPC. The appellants pleaded not guilty and claimed trial. Prosecution examined the prosecutrix as PW-2, who in examination in-chief, stated as under: “About six months back on 16th at about 7.00/7.30 p.m. I was going to the shop of Jaipal in order to fetch grass and when I reached at the crossing, Papla, Rakesh and Toni met me and Papla gagged my mouth with a piece of cloth and was dragged to mango garden. Toni was holding my arm at that time, then Rakesh removed my clothes from my body. Rakesh also kissed my lips. In the meantime, three persons from the side of village came and on seeing them they ran away after leaving me. Those persons were my parents and Ram Kumar my brother. At that time I was crying and was searching my clothes. Then, my parents and my brother made me to put clothes on my body and I narrated whole incident to them. Then my parents took me to my house.” 3 Criminal Appeal No.23-SB of 2002 & Criminal Revision No.597 of 2002 Complainant Om Parkash appeared as PW-3 and reiterated as to what was stated in the written application Ex.PB. Lata Kashyap, In-charge, Sewa Samiti Junior Model School, Babyal appeared as PW-1 and proved the school leaving certificate as Ex.PA, in which the date of birth of the prosecutrix recorded was 20th August, 1988. Gurdial Singh Patwari, Halqa Babial appeared as PW-4. He had prepared the scaled site plan Ex.PC. Surjit Kumar SI/SHO PW-5 stated that on the basis of complaint Ex.PB, formal FIR Ex.PB/1 was registered. He has prepared rough site plan of the spot Ex.PD with correct marginal notes. He had arrested the accused and had submitted a report under Section 173 Cr.P.C. Thereafter, statements of the accused appellants under Section 313 Cr.P.C. were recorded and all incriminating circumstances were put to them. They denied the same and pleaded false implication. Mr. Akshay Jain, Advocate appearing as Amicus Curiae for the appellants, has stated that the statements of the accused appellants under Section 313 Cr.P.C. were recorded on 14th October, 2000, when the age of Nirmal Singh alias Papla was noticed as 18 years. Counsel for the appellants has submitted that in case all the allegations are accepted at the face value, then also no offence under Section 376 read with Section 511 IPC is made out. It is stated that from the allegations, offence if any, will fall under Section 354 IPC. Learned counsel has referred to a judgment of this Court rendered in Criminal Appeal No.986-SB of 1999 titled as ‘Satbir v. State of Haryana’ decided on 9th February, 2010, wherein this Court took a view that where the Salwar was put downwards and the accused had kissed the prosecutrix, the offence will fall under 4 Criminal Appeal No.23-SB of 2002 & Criminal Revision No.597 of 2002 Section 354 IPC and not under Section 376 read with Section 511 IPC. In the case of Satbir (supra), the following case law has been noticed: “In State of Madhya Pradesh v. Babulal, AIR 1960 Madhya Pradesh 155 it was held as under:- ‘(5) The facts stated above are also mentioned in the first information report. The challan was put up by the police under Sec. 354 I.P.C. Admittedly from the facts stated above, it is clear that it is not an offence of rape. The question is whether it was an attempt to commit rape or a criminal assault. The distinction between the two is sometimes very meagre. In Rex v. James Lloyd, (1836) 7 C and P 817: 173 ER 141 while summing up the charge to the jury, Justice Patterson observed: ‘In order to find the prisoner guilty of an assault with intent to commit a rape, you must be satisfied that the prisoner, when he laid hold of the prosecutrix, not only desired to gratify his passions upon her person but that he intended to do so at all events, and notwithstanding any resistance on her part.’ In Impress v. Shankar, ILR 5 Bom 403 the accused was charged for an attempt to commit rape. There the observations of M. Melvill, J., which are quoted below, are very pertinent: ‘We believe that in this country indecent assaults are often magnified into attempts at rape and even more often into rape itself; and we think that conviction of an attempt at rape ought not to be arrived at unless the Court be satisfied that the conduct of the accused indicated a determination to gratify his passions at all events, and in spite of all resistance.’ 5 Criminal Appeal No.23-SB of 2002 & Criminal Revision No.597 of 2002 In the present case, from the facts by the trying Magistrate and in the first information report, it is seen that the girl was made naked. There is no other action on the part of the accused. It is quite possible that ultimately he would not have proceeded to have sexual intercourse on account of her unwillingness. If the dictum of Justice Patterson in the above cited case is followed, I cannot see from the prosecution case that the accused was determined to have sexual intercourse at all events, because as soon as he saw the uncle of the prosecutrix, he ran away. For an offence of an attempt to commit rape, the prosecution must establish that it has gone beyond the stage of preparation. The difference between mere preparation and actual attempt to commit an offence consists chiefly in the greater degree of determination. (6) A similar case was decided by Mirza and Broomfield JJ. of the Bombay High Court in Ahmed Asalt Mirkhan (Criminal Appeal No.161 of 1930, D/- 12- 6-1930 reported in Ratanlal's Law of Crimes, p. 922). In that case the complainant, a milkmaid, aged 12 or 13 years, who was hawking milk, entered the accused's house to deliver milk. The accused got up from the bed on which he was lying and chained the door from inside. He then removed his clothes and the girl's petticoat, picked her up, laid her on the bed, and sat on her chest. He put his hand over her mouth to prevent her crying and placed his private parts against hers. There was no penetration. The girl struggled and cried and so the accused desisted and she got up, unchained the door and went out. It was held that the accused was not guilty of attempt to commit rape but of indecent assault. The point of distinction between an offence to commit rape and to commit indecent assault is that there should be some action on the part of the accused which would show that he is just going to have sexual connection with her. In the Bombay case the 6 Criminal Appeal No.23-SB of 2002 & Criminal Revision No.597 of 2002 cries of the girl desisted the accused. In the instant case the appearance of the uncle of the girl stopped him. In the present case, as already stated, the accused only made the girl naked. He did not expose nor attempted to expose his private part. For all these reasons I cannot agree with the learned Additional Sessions Judge that from the challan or the first information report it was undoubtedly a case of an offence to commit rape so as to oust the jurisdiction of the trying Magistrate.” After discussing the evidence, the Court came to conclusion that offence will fall under Section 354 IPC. In Ram Pratap v. State of Rajasthan, 2002 Crl. L.J. 1430, the Court held that where apparels worn by the victim were torn, the offence will fall under Section 354 IPC. In Hari Mohapatra and another v. State of Orissa and others, 1996 Crl. L.J. 2952, where the accused entered into room, closed the door, molested the victim by squeezing her breast and also tried to open her pant, it was held that offence will fall under Section 354 IPC. This Court in Subash Chander v. State of Haryana, 1983 Recent Criminal Reports 283 held that quite often indecent assaults are magnified into attempts of rape and even more often into rape itself. In the present case prosecutrix had suffered injuries. The Court held that offence will fall under Section 354 IPC. In Jai Chand v. State, 1996(2) Recent Criminal Reports 244, Delhi High Court held that where prosecutrix was forcibly laid on the bed, string of her pajama was broken, underwear was drawn and bite was taken on her cheek, offence will fall under Section 354 IPC, as due to push given by the prosecutrix, the accused left the spot. Therefore, it was held that he was not determined to attempt sexual intercourse. 7 Criminal Appeal No.23-SB of 2002 & Criminal Revision No.597 of 2002 In Shiv Shanker v. State of U.P., 2002 Criminal Law Journal 2673, a Division Bench of Allahabad High Court held as under ‘43. The appellant was also charged with the offence punishable under Section 376 read with 511 I.P.C. The learned Sessions Judge had also convicted and sentenced the appellant under said Sections. But having gone through the evidence on record, we find that the evidence of the prosecution was to the effect that the appellant caught hold of Smt.Usha Devi and made her fall down. There was no sufficient evidence on record to show that the appellant attempted to commit rape on the deceased. The medical evidence also did not indicate any such attempt. The catching hold of the deceased and making her fall down cannot be said an attempt to rape, but it amounted to assault or force used to outrage the modesty of the deceased. Therefore, though there was no sufficient evidence to make out the offence punishable under Section 376 read with 511 I.P.C., we are of the view that conviction of appellant under Section 376/511 I.P.C. Is liable to be converted into conviction under Section 354 I.P.C.” In view of various judgments noticed above, the offence in present case will fall under Section 354 IPC and not under Sections 376 and 511 IPC. The occurrence, in the present case, pertains to the year 1999. A period of about eleven years is going to elapse. Appellants Tej Pal alias Toni and Rakesh Kumar were aged 21 and 20 years respectively at the time when the impugned judgment was pronounced. Section 354 IPC prescribes a maximum sentence of two years rigorous imprisonment. Taking into consideration the factum of protracted trial and the age of the appellants Tej Pal alias Toni and Rakesh Kumar, they are hereby ordered 8 Criminal Appeal No.23-SB of 2002 & Criminal Revision No.597 of 2002 to undergo rigorous imprisonment for a period of nine months for offence under Section 354 IPC. With the observations made above, Criminal Appeal No.23- SB of 2002 qua the appellants Tej Pal alias Toni and Rakesh Kumar is hereby disposed of. As stated earlier, the statement of the appellant Nirmal Singh alias Papla under Section 313 Cr.P.C. was recorded on 14th October, 2000 and at that time he had given his age as 18 years. Therefore, it can be assumed that on the date of occurrence, the appellant Nirmal Singh alias Papla was less than 18 years of age. In ‘Hari Ram v. State of Rajasthan and another’ 2009(2) RCR (Criminal) 878, Hon’ble the Apex Court held as under: “40. In the instant case, the appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2 a juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years. It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k) a juvenile or child was defined to mean a child who had not completed eighteen years of age which was given prospective prospect. However, as indicated hereinbefore after the decision in Pratap Singh's case (supra), Section 2(l) was amended to define a juvenile in conflict with law to mean a juvenile who is alleged to have committed an offence and has not completed eighteen years of age as on the date of commission of such offence; Section 7A was introduced in the 2000 Act and Section 20 thereof was amended whereas Rule 12 was included in the Juvenile Justice Rules, 2007, which gave retrospective effect to the provisions of the Juvenile Justice Act, 2000. Section 7A of the Juvenile Justice Act, 2000, made provision for the claim of juvenility to be raised before any Court at any stage, as has been done in this case, and such claim was required to be determined in terms of the provisions 9 Criminal Appeal No.23-SB of 2002 & Criminal Revision No.597 of 2002 contained in the 2000 Act and the Rules framed thereunder, even if the juvenile had ceased to be so on or before the date of commencement of the Act. Accordingly, a juvenile who had not completed eighteen years on the date of commission of the offence was also entitled to the benefits of the Juvenile Justice Act, 2000, as if the provisions of Section 2(k) had always been in existence even during the operation of the 1986 Act. 41. The said position was re-emphasised by virtue of the amendments introduced in Section 20 of the 2000 Act, whereby the Proviso and Explanation were added to Section 20, which made it even more explicit that in all pending cases, including trial, revision, appeal and any other criminal proceedings in respect of a juvenile in conflict with law, the determination of juvenility of such a juvenile would be in terms of clause (l) of Section 2 of the 2000 Act, and the provisions of the Act would apply as if the said provisions had been in force when the alleged offence was committed.” In the present case, the impugned judgment was pronounced on 14th December, 2001. The occurrence pertains to the month of June, 1999. In view of the ratio of law laid in Hari Ram’s case (supra) with introduction of amendment in the provisions of Juvenile Justice (Care and Protection of Children) Act, 2000, benefit of this Act has to apply retrospectively. Therefore, the case of the appellant Nirmal Singh alias Papla is remanded to Juvenile Justice Board, Ambala for disposal in accordance with provisions of law as expeditiously as possible, preferably within three months from the date of receipt of a certified copy of this order, having regard to the fact that the offence is alleged to have been committed more than eleven years ago and that this Court has held the appellant guilty of an offence punishable under Section 354 IPC. Since this Court has converted the conviction of the appellants from Section 376 read with Section 511 IPC to Section 354 IPC, 10 Criminal Appeal No.23-SB of 2002 & Criminal Revision No.597 of 2002 no interference is warranted in the revision petition filed by the complainant Om Parkash. Hence, the same is hereby dismissed. This Court places on record its appreciation for the preparation made and assistance rendered by Mr.Akshay Jain, Advocate, who has acted as an Amicus Curiae. [KANWALJIT SINGH AHLUWALIA] JUDGE May 24, 2010 rps 11