Daya Singh vs State of Haryana

Anita Chaudhry, J.—The appellant was convicted u/s 363 and Section 376 read with Section 511 IPC in case FIR No. 25 dated 26.02.2004 by Learned Addl. Sessions Judge, Bhiwani and was sentenced to undergo rigorous imprisonment for a period of five years and a fine of Rs. 2000/- u/s 376 read with Section 511 IPC. In default of payment of fine, he was directed to undergo rigorous imprisonment for six months. Mahender, father of the prosecutrix lodged a report Ex. PB with the police on 26.02.2004 that he had left the house at 6:00 A.M. to attend his duty. At 7:00 P.M. a boy from the neighbourhood informed him about the incident and he came home and inquired from his daughter and his aunt Roshni and came to know that at about 6:00 P.M. his six year old daughter had been taken away by Daya Singh to the fields and her clothes were removed and Daya Singh removed his own clothes and his daughter was thrown on the ground and when the girl started crying, Roshni reached the spot. On seeing Roshni, Daya Singh fled away. FIR Ex. PB/1 was registered at 10:50 P.M. the same night u/s 363 IPC. The statement of the girl was also recorded and a report was laid in the Court u/s 363, 376/511 IPC.

The accused was charged u/s 363, 376, 511 IPC to which he pleaded not guilty and claimed trial.

At the trial Mahender Singh complainant PW5, Roshni PW2 failed to support the prosecution story. PW8 Vikram Singh (grand father) also failed to support the prosecution version. The victim who was just 06 years old was found to be fit to depose and oath was delivered to her. She supported the prosecution case but added that the accused removed his own clothes and her salwar and she was made to lie on the ground and then accused lay upon her and she started crying upon which her grand mother Roshni reached the spot and the accused fled away. Dalip Singh SI PW6 had investigated the case.

In the statement recorded u/s 313 Cr.P.C., the accused pleaded false implication but led no evidence in his defence.

The trial Court convicted the appellant to the sentence mentioned herein before.

I have heard both the sides and have perused the record with the assistance of the counsel.

The only submission made on behalf of the appellant is that all the witnesses had turned hostile and did not depose about any incident but the trial Court had convicted the appellant. It is urged that at best it could be a case u/s 354 IPC and it was not a case of attempt to rape and the victim has made improvement before the Court and it could be that she had been tutored by someone and there is a contradiction in the statement Ex. DA recorded u/s 161 Cr.P.C. and that given in the Court. It was urged that the victim only speaks about removal of her clothes and even if the accused had removed his clothes also, at best the case would fall u/s 354 IPC and the accused has already undergone sentence of one year and six months and he may be sentenced to the period already undergone. In support of his arguments, learned counsel for the appellant has placed reliance upon Chander Vs. State of Haryana 2011 (1) AICLR 172 and Ashok Kumar @ Pappu Vs. The State of Haryana

The counsel representing the State had submitted that the statement of victim is important and she had stated that the appellant not only removed her clothes but his own clothes and then lay upon her and he had proceeded ahead and had made preparation and it would fall u/s 376 read with Section 511 IPC.

Having heard the counsel for the parties and on perusal of the record and the impugned judgment, this Court is of the view that there is substance in the argument made on behalf of the appellant. The appellant had taken the prosecutrix in the field and she was thrown on the ground and her clothes were removed. The appellant had also removed his clothes and it was then that the girl started crying and her grand mother who was around, reached the spot on hearing her cries. That was the version which was given by the girl to the police at the first instance but when the child stepped into the witness box, she made an improvement and stated that after throwing her on the ground, her salwar was removed and the appellant also removed his own clothes and lay upon her.

No medical examination of the victim was carried out. The grand mother and the grand father of the prosecutrix have not supported the prosecution case. There is no evidence that the appellant lay himself upon the child. There is no evidence to support the statement given by the victim in the Court. Even if the complete testimony of the prosecutrix is accepted, the offence would not fall u/s 376/511 IPC. The distinction between an attempt to commit rape and to commit indecent assault is sometimes very meagre. For the former, there should be some action on the part of the accused which would show that he is just going to have sexual connection with the prosecutrix. 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.

In case of Ankariya Vs. State of M.P., , the facts were that "accused loosened cord of her petticoat and was about to sit on her waist but when she cried out for her husband, the appellant could not commit any act thereafter, the High Court has held that the appellant would be guilty for the offence punishable u/s 354 of Indian Penal Code and not u/s 376/511 of Indian Penal Code."

In the instant case, it is evident that the cries of the girl desisted the accused and he did not lay himself upon the victim nor had exposed himself but immediately ran away once the grand parents arrived on the scene.

In view of this matter, this Court is of the considered view that the offence against the appellant which was punishable u/s 376/511 IPC would not be made out but he would be liable for the offence u/s 363 and 354 IPC. As a result, the conviction of the appellant u/s 376 read with Section 511 IPC is set aside and he is convicted u/s 354 IPC. The conviction recorded u/s 363 IPC is maintained. The total period of custody of appellant is one year and about six months. The appellant is a first offender. He is of young age. He has the responsibility of his family, therefore, he is sentenced to the period already undergone along with fine as imposed by the trial Court. In default of payment of fine, he shall undergo rigorous imprisonment for the period awarded by the trial Court. The fine will be deposited within a period of one month, failing which the appellant would surrender to undergo the remaining period awarded on account of non-payment of fine. The appeal is partly allowed. Copy of the judgment be sent to the trial Court. Lower Court record be sent back. Registry is directed to call for the compliance report regarding the fine.