IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Criminal Appeal No. 723 of 2001 Reserved on 19.3.2009 Date of decision: 25 .3.2009 Vijay Kumar. …..Appellant Versus The State of H.P. ……Respondent Coram: The Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting ?1 For the Appellant: Mr. Naveen K. Bhardwaj, Advocate. For respondent : Mr. J.S. Guleria, Assistant Advocate General. Surinder Singh, J. Challenge in this appeal is made to the judgment, passed by the learned Sessions Judge, Kullu, H.P. in Sessions trial No. 25 of 2001, decided on 17.12.2001, whereby the appellant has been convicted under Section 376 read with Section 511 of the Indian Penal Code and sentenced to rigorous imprisonment for a period of six months and to pay fine of Rs. 500/-, which if realized, was ordered to be paid to the prosecutrix. The benefit of Section 428 of the Code of Criminal Procedure (in short “the Code”) was also allowed. The prosecution case, in short can be summed up thus. 1 Whether the reporters of Local Papers may be allowed to see the judgment ?. yes. - 2 - In the year 2000, the prosecutrix aged about 12 years, was studying in 6th standard in the Government Senior Secondary School Sultanpur, District Kullu. She along with her parents was residing in Lanka-Beker in Kullu Town, adjoining to the house of the appellant. The brother of the accused-appellant was the god-brother of the mother of the prosecutrix. It is alleged that on 15.8.2000, at about 6 p.m., after the Sun set, the prosecutrix had gone to the adjoining house of PW-5 Kamla Devi, wife of Parkash Chand, god-brother of her mother (PW-4). Adjoining to her, the appellant was present in his room. He called the prosecutrix to bring match-box and light the lamp. When she brought the match-box and proceeded to lit the lamp, the appellant grabbed her, closed her mouth and laid her on the bed. Her mouth was covered with the blanket. He removed her underwear, which she was bearing beneath her “Ghaghra”. Thereafter the appellant laid on her but he was pushed aside by the prosecutrix, holding him back from his hair. She also shouted for her Bua Kamla Devi (PW-5). On her shouts and screams, appellant got scared and fled away from the back door of his room. Then the prosecutrix approached Kamla Devi and narrated her entire incident. Her underwear remained in the room of the appellant. The mother - 3 - of the prosecutrix had gone to village Badah. Her father had consumed liquor during the day and remained sleeping throughout the night in his room. Next day, when her mother (PW-4) came, she narrated the entire story to her. It was thereafter, the parents of the prosecutrix took Smt. Anita Devi PW-2 Pradhan of Mahila Mandal and approached the police to lodge the FIR Ext. P-A. The prosecutrix was medically examined in Zonal Hospital, Kullu by PW-6 Dr. Neena Kapoor. The prosecutrix had not yet attained puberty. She did not find any injury on her person. Thereafter the appellant was arrested. His medical examination was conducted by PW-7 Dr. Roshan Lal. The Police could not take into possession the under-wear of the prosecutrix as the same was alleged to have been thrown into Beas River after cleaning the floor. Police also obtained the certificate of the prosecutrix from the School Authorities and also the birth Certificate Ext. PW-8/B from the Registrar Births and Deaths wherein her date of birth is shown 1.5.1988 which matched with her skeletal age. After completing the investigation, police presented the challan in the Court under the aforesaid Sections. - 4 - The appellant was charge-sheeted for the offences referred to above. He pleaded not guilty and claimed trial. The prosecution examined its witnesses to prove the charges. The appellant was also examined under Section 313 of the Code of Criminal Procedure. He did not lead any defense evidence. His case was that of denial simplicitor. At the end of the trial, the appellant was convicted and sentenced, as aforesaid which has been assailed by him in this appeal on the ground that the learned trial court did not appreciate evidence of the prosecution in the right perspective and further that there are material contradictions in the statement of the prosecutrix. Further it was contended that the appellant desired the benefit of Probation, which was wrongly denied. While admitting this appeal on 31.12.2001, this Court observed that the learned trial court was too lenient while imposing the sentence upon the appellant as such the appellant was ordered to be served upon with a show-cause notice as to why, in the event of his conviction being maintained, the sentence be not enhanced. The notice was accepted by the counsel for the appellant. Learned counsel Mr. Naveen Bhardwaj, appearing for the appellant vehemently argued that - 5 - no case worth the name is made out against the appellant. The learned counsel took me through the evidence on record and submitted that worst- cum-worst, it may be a case falling under the penal provision of Section 354 of the Indian Penal Code, but not under Section 376 read with Section 511 of the Indian Penal Code. Contra, Mr. J.S. Guleria, learned Assistant Advocate General submitted that the appellant had commenced his act of attempt to commit rape which failed as the prosecutrix resisted and raised alarm. To buttress his arguments he relied upon the judgment Kamal Kumar versus State: 2009 Cr. L.J 36 of this Court, while supporting the judgment of conviction and submitted that it is a fit case where the sentence could be enhanced. I have given my thoughtful consideration to the rival contention of the parties and have reappraised the evidenced on record. It stands proved on record that at the relevant time, the prosecutrix was aged about 12 years and she had not attained the age of puberty, which fact has not been disputed in cross- examination nor any arguments have been addressed even at this stage. Even otherwise PW-4 her mother stated that on the day of incident the prosecutrix was 12 years of age. PW-6 Dr. Neena Pandit corroborated and testified on oath that the - 6 - prosecutrix had not attained the age of puberty. Therefore, the prosecutrix is held to be a minor child of 12 years of age on the day of alleged incident. As PW-1 prosecutrix vividly deposed about the incident that she had gone to the house of her Bua on the day of alleged incident. The appellant was residing in the adjoining room to the room of her Bua. He asked her to bring the match-box, which she brought and went to his room thereafter the appellant told her to lit the lamp. It was around 6 p.m. the Sun had set and she brought the match-box. The appellant, who was present in his room closed her mouth, made her to lie on the bed. Then he pressed her breast with his hand and covered her mouth with the blanket. Thereafter he removed her underwear which she was wearing beneath her “ghaghra”. The appellant laid on her and he then removed the blanket from her mouth. She further deposed that she caught the appellant from the hair and pushed him aside. Then she shouted for her Bua and the appellant fled away from the back door. Thereafter she went to the house of her Bua leaving behind her underwear in the room, apprised her about the entire incident. Thereafter she returned to her own house. She found her father was sleeping after consuming liquor and her mother had gone to village Badah. Next day, during the noon, she returned and - 7 - narrated the entire incident to her. Thereafter, he along with her parents and PW Anita Devi went to the police to report the matter. According to her, the police searched the room of the accused- appellant but her underwear could not be traced. In cross-examination, she deposed that she disclosed the entire facts to the police. She was confronted with the FIR Ext. P-A there was no reference of pulling the accused from the hair in FIR and also that she had shouted for her Bua. There was also no mention of fleeing of the accused-appellant from the back door. She denied that appellant never attempted to do any act with her. Further that it was a false report because of the hostility towards the appellant. PW-4, the mother of the prosecutrix has corroborated her version in toto as disclosed to her. She further stated that on the day of incident it was Bhaiya Dooj, she had gone to village Badah with her brother-in-law as everybody in her house started taking liquor because of the said festival. She left behind the prosecutrix in her house with her husband who was also drunk. Next day, during the noon when she returned, the prosecutrix had narrated the incident to her. Further, she stated that underwear of the prosecutrix was not found by the police as the appellant told that it was thrown out. - 8 - In cross-examination, she stated that Anita, Pradhan of Mahila Mandal had also accompanied her to the Police Station and police had recorded whatever prosecutrix told them. She denied that in connivance with Anita, a false case was fastened upon the appellant. PW-2 Anita Devi was also associated in the investigation of this case. On 28.11.2000, police had inspected the river-side to search the underwear of the prosecutrix but it was not found. It is surprising to note that without declaring this witness hostile, learned trial court permitted her to be cross-examined by the learned Public Prosecutor. However, in her cross-examination by the accused, she denied that the police did not come to the spot but no suggestion was put to her that PW-4 aforesaid had lodged the FIR against the appellant in connivance with her. However, PW-5 Kamla Devi did not support the case of the prosecution as such she was declared hostile and in her cross-examination, she stated that prosecutrix in the evening told her that she was going to Bijli Mahadev. She could not tell what was the time. On the reappraisal of the evidence, I find that testimony of the prosecutrix is natural and worth inspiring confidence qua the assault and attempt made by the appellant on her. The prosecutrix was a minor child. The parents of the - 9 - prosecutrix had no axe to grind to falsely implicate the appellant, who otherwise is related to the mother of the prosecutrix, being the real brother of Parkash, her God brother. No ill-will or malice of the complainant party is proved against him. The presence of the prosecutrix at the place of occurrence is also not unnatural. In FIR Ex. P-A proved by her, she had also stated that the appellant had put off his pant and attempted to rape but she had raised alarm. On oath as PW-1, she testified the above story but made a slight improvement that she foiled the attempt of the appellant to commit rape by him by holding him from his hair and pushed him back and shouted for her Bua. The main base of the prosecution case remains unshattered. In Kamal Kumar vs. State: 2009 Cr. L.J. 36 while relying upon the judgment of the apex Court, rendered in Koppula Vankat Rao vs. State of Andhra Pradesh: 2004 SC 1874 this Court held that an attempt to commit an offence can be said to begin when the preparations are complete and culprit commences to do something with the intention of committing the offence and which is a step towards the commission of the offence. The moment he commences to do an act with necessary intention, he commences his attempt to commit an offence. This is what Section 511 Indian Penal Code requires. - 10 - In the instant case the appellant’s intention ostensibly was to commit the rape when he pulled her on his bed, put off her underwear and laid on her, but could not succeed for the reasons aforesaid. On the arrival of her mother, the prosecutrix disclosed the entire story verbatim to which she deposed in the Court. Thus on the given facts duly proved on record, the appellant had taken steps towards the commission of rape with a minor child prosecutrix and loading himself on her are indicative of the fact that he wanted to satisfy his sexual lust but this attempt was foiled. The minor contradictions occurring in her statement are ignorable when her testimony remained unshaken qua the series of acts and sequence thereof by the appellant. A victim of sexual assault and indignation is on the same position as an injured witness and her testimony should receive the same weight. In my opinion the testimony of the victim cannot be faulted on minor contradictions and in its totality it inspires confidence thus can be acted upon. Thus there is no escape but hold and affirm the findings of guilt arrived by the learned trial court with respect to the offence charged. In so far as the sentence is concerned, the learned trial court has passed the sentence - 11 - which has added insult to the injury to the prosecutrix by sentencing the appellant to undergo rigorous imprisonment only for a period of six months and to pay a fine of Rs. 500/- which was ordered to be paid as compensation to her. The trial Court should have known that the very nature of the offence is an obnoxious act of the highest order. It is traumatic and leaves a scar for whole of her life which she cannot express to any one. Therefore, the punishment should be commensurate with the offence committed, which also serves deterrence to the society. Pursuant to the enhancement notice, the learned counsel for the appellant submitted that keeping in view the age, the time gap and the fact the appellant is a first offence, a lenient view may be taken. Considering all the aspects and the punishment provided, and also the fact that at the time of commission of the offence, the appellant was aged about 24 years and by now he must have settled down in married life. The ends of justice, in my view, would be met, in case, his sentence imposed by the learned trial court is enhanced from 6 months to rigorous imprisonment for a period of 3 years and fine from Rs. 500/- to Rs. 10,000/- which, if realized, shall be paid to the prosecutrix. - 12 - The appellant shall also be given the benefit of Section 428 of the Code of Criminal Procedure. Ordered accordingly. The appellant is hereby ordered to surrender before the learned Sessions Judge, Kullu, within a month from today to serve out the remaining sentence, failing which, the learned trial court shall take necessary steps to execute the sentence in terms of this judgment. The matter stands disposed of. Send down records forthwith. March 25, 2009 (Surinder Singh),J. (cm)