Chhotelal S/o Bajarilal Gond vs State of Madhya Pradesh

This Criminal Appeal under section 374 (2) of the Code of Criminal Procedure, 1973 has been preferred against the judgment dated 5.5.2000 passed by Sessions Judge, Damoh, in Sessions Trial No.86 of 1999, whereby the learned Sessions Judge has convicted appellant Peetha under section 376(1) / 511 of IPC and sentenced to undergo R.I. for three years and fine of Rs. 500/- with default stipulation.

The facts giving rise to this appeal may be summarized as hereunder:

Prosecutrix (P.W. 1) a 25 years old lady, at the time of incident lived with her maternal aunt Kallobai (P.W. 2) in village Sadpur, P.S. Rajpura District Damoh. At about 3:30 P.M., on 2.4.1999, prosecutrix had gone to graze her goats. The appellant came from back side, accosted her, caught hold her back, pressed her breasts and asked her to have intercourse with him. Prosecutrix tried to escape herself then the appellant laid her down on the earth, mounted over her and told that he will not leave her, thereby he has tried to outrage her modesty. Thereafter, she raised an alarm then one Kallo Bai (P.W. 2) came there and after seeing her the appellant ran away from the spot. Due to fall on the earth, she sustained injuries and her bangles were broken.

After reaching at home, prosecutrix narrated the incident to Gangabai (P.W. 3), mother- in-law of the prosecutrix and on the same day prosecutrix went with her and lodged report in Police Station, Rajpura, District Damoh.

Subsequently, the prosecutrix was sent to Batiagarh on 3.4.1999 for medical examination where she was examined. The medical report reflects injuries on her body. During investigation, spot map was prepared. Broken bangles of prosecutrix were seized from the place of incident. Statements of witnesses were recorded. Appellant was arrested. Concerned court was also informed about the report of prosecutrix. After completing investigation, challan was produced before the court of Chief Judicial Magistrate, Hata and Criminal Case No. 230/98 was registered. The case was, thereafter, committed to the court of Session for its adjudication on 18.5.1999.

Learned trial Court framed charge under section 376(1) / 511 of IPC against the appellant, who abjured the guilt and claimed to be tried. The appellant pleaded not guilty to the charge under Section 376 (1)/511 of the IPC . He submits that due to previous enmity he has been falsely implicated in the present case.

In order to prove its case, prosecution examined as many as eight witnesses. The appellant in support of his plea did not adduce any evidence, oral or documentary. The learned Addl. Sessions Judge, who tried the case by the impugned judgment convicted and sentenced the appellant as mentioned hereinabove.

Shri Surendra Singh, learned Senior Counsel for the appellant submits that the prosecution has not been able to prove the ingredients of Section 376 of the Code. There was no incriminating material or evidence before the trial Court that any attempt whatsoever was made by the appellant to commit rape upon prosecutrix. In other words, there was no solitary evidence that any attempt was made by the appellant to penetrate at the slightest degree. According to him whole story is false and and fabricated and accused/appellant deserves acquittal. In alternative, learned Senior counsel submitted that the offence, if any, made out against the appellant, would not be one under Sections 376 / 511 of the Code for attempt to commit rape, but would be under Section 354 of IPC i.e. in respect of assault or use of criminal force to a

woman with intent to outrage her modesty.

Smt. Pratibha Mishra, learned Panel Lawyer, vehemently, contends that judgment and order of conviction of appellant is patently legal and there is no reason to interfere with the same. She also submits that looking to the nature of offence the matter should be seriously viewed.

Perused the statements of witnesses and the documents exhibited. Prosecutrix (P.W.1) is victim and has stated that on the date of the incident at about 03:00 P.M., when she was grazing her goats then the appellant came from back side, caught hold her back, pressed her breasts. She has further stated that he will not leave her and he has to do wrong work (Bura Kaam). He laid down her on the earth and mounted over her. Prosecutrix (P.W.1) has further stated that during the course of incident one Kallo Bai (P.W.3) came there and after seeing her, the appellant fled away from the spot and due to that he could not perform wrong work.

Kallo Bai (P.W.2) has supported the statement of the prosecutrix and stated that on hearing the shouting of prosecutrix, she rushed to spot and saw that prosecutrix was lying on earth and the appellant was mounted over her. She further stated that as soon as appellant saw her, he fled away. She further stated that prosecutrix told her that the appellant wanted to molest her.

Prosecutrix (P.W.1) has stated that on the date of incident her husband had gone to other village to purchase animals. She had narrated the incident to her mother-in-law, Ganga Bai (P.W. 3) and with her she went to Police Station and lodged the report. Ganga Bai (P.W. 3) has corroborated the statement of prosecutrix (P.W.1).

Prosecutix has stated that she has been examined by Dr. K.L. Adarsh (P.W. 6), who has examined the prosecutrix on 3.4.1999. As per his report (P.W. 5), he found one contusion and other four abrasions on the person of the prosecutrix. All these injuries were caused by hard and blunt object. Nothing has been elicited from Dr. K.L. Adarsh (P.W. 6). In cross-examination to disbelieve this witness and in this way Dr. K.L. Adarsh (P.W. 6) has supported the case of the prosecution. There is no material to disbelieve the evidence of above witnesses. There is no reason to disbelieve the statement of prosecutrix (P.W. 1), as nothing has been elicited from her during cross-examination by the defence. The discrepancy is so inconsequential that on the basis of this discrepancy the whole prosecution case cannot be thrown out. Thus, in my considered view, prosecution has successfully proved that on the date of incident, the appellant caught hold the prosecutrix, pressed her breasts, mounted over her and on her shouting when one witness Kallo Bai came there then he fled away from the spot.

The trial Court has convicted the appellant under Section 376 / 511 of IPC. In order to arrive at the correct conclusion as to whether the conviction of the appellant under Section 376 / 511 of IPC is sustainable, it is appropriate to examine the basic ingredients of Section 375 of IPC punishable under Section 376 of IPC. The most important ingredient of the offence under Section 375 of IPC is penetration of male organ into the private part of the female with or without any emission of semen. Even an attempt of penetration into private part of the victim completely, partially or slightly would be enough to constitute the offence under Section 375 of IPC. The crucial words in Section 511 of IPC are that the accused should have done the act towards the commission of the offence. There are three stages in commission of a crime (I) Intention to commit, (II) Preparation to commit and (III) Attempt to commit. If the attempt results in the actual commission of the offence, the crime is complete. In the instant case, there is no material to show that any attempt was made by the appellant to commit rape or intercourse. Even, there is no material that the appellant had undressed himself and any attempt was made by him to undress the victim. On careful analysis of the prosecution evidence and documents available on record, the appellant cannot be held guilty for committing an offence punishable under Section 376 / 511 of IPC.

In view of the above discussions, it has to be seen whether the act of appellant falls within the fore-corners of any other provisions incorporated in

the Indian Penal Code relating to overwhelming evidence of the prosecution. The defence suggested by the appellant appears incredible. The evidence satisfactorily establishes that the offence made out against the appellant in the case is as punishable under Section 354 of IPC. In this state of evidence, the act of the accused would constitute not an attempt to commit rape, but only preparation for the same. The offence against the appellant would, therefore, be one under Section 354 IPC, assault or use of criminal force to woman with intent to outrage her modesty. Therefore, the appellant is liable to be convicted under Section 354 of IPC.

In the result the appeal is allowed in part. The conviction of appellant under Section 376 / 511 of IPC is altered to one under Section 354 of IPC.

Now, the question arises as to how a balance should be struck and maintained in regard to the sentence. It is also to be noted that the offence under Section 354 of IPC, no minimum sentence is prescribed and sentence of fine amount alone can be inflicted for such an offence. Perusal of record reflects that the appellant had been in custody from 11.4.1999 to 19.4.1999, total 9 days. He has been facing this criminal trial for more than 18 years. Fine amount has already been deposited. In this view, no fruitful purpose is going to be served by again sending the appellant to jail, therefore, it would be appropriate in the interest of justice if the jail sentence to the appellant is awarded upto the period already undergone by him with increasing the fine

amount. Accordingly, he is sentenced to undergo rigorous imprisonment of 9 days, which had already been undergone by him and to pay a fine of Rs.5,000/- including the amount of Rs.500/- which has already been deposited by him.

The appellant is on bail. His presence is no more required and, therefore, it is directed that his bail bonds shall stand discharged.

A copy of this judgment be sent to the trial Court along with its record for information.