Subash Chander vs State of Haryana

Pritpal Singh, J.

This appeal is directed, against the judgment and order dated 141981 of Shri Krishan Kant Aggarwal Additional Sessions Judge, Sonepat whereby the appellant Subhash Chander was convicted under section 376/511, Indian Penal Code and sentenced to undergo rigorous imprisonment for two years.

The facts of this case are that on 1891980 at about 1.00 or 2.00 P.M., the prosecutrix Kumari Sheela (PW. 4) who was about 11 or 12 years of age at the time of occurrence, took meals for her grandfather Jamait Ali in the garden of one Surta which he had taken on lease. After serving the meals to the grandfather, she was returning to her house when on the was the appellant accosted her near the field of Ram Kishan caught hold of the prosecutrix and took her inside the jowar filed of Ram Kishan. He took off her salwar, gagged her mouth when she raised an alarm, and committed rape on her. She was then released by the appellant and as she came out of the jowar field. Shri Kishan (P.W. 5) met her to whom she narrated the occurrence The appellant also emerged from the jowar field and confessed before Shri Kishan (PW. 5) having committed rape on the prosecutrix. He, however, regretted the folly committed by him. The First Information Report was lodged at about : 7.00 P.M. on the same day and the prosecutrix was examined by Dr. Rashmi Gupta (PW. 3) at the Primary Health Centre, Gannaur at 10.15 P.M. and the doctor noted the following injuries on the person of the prosecutrix :

Linear scratch 2 cm. reddish in colour on the front of right forearm 8 1/2 cm. above the wrist from above downwards and laterally.

.6 cm. superficial scratch reddish in colour on the back of left hand 2cm above the base of left thumb.

4cm linear scratch on the right side of the neck running downwards and laterally reddish incolour.

Genitalsno pubic hair, no exillary hair and there was no injury on the chest, Human was not present. There was abrasion on the posterior fourchette with minimal bloody Ooxing. There was no tear or wound seen. No injury was seen on the vagina.

The doctor also took two vaginal and genital swabs from the person of the prosecutrix which she sent for examination to the Forensic Science Laboratory. The shirt and the salwar worn by the prosecutrix at the time of the occurrence were also produced before the doctor and these clothes were also sent to the Forensic Science Laboratory for examination. According to the report issued by the Assistant Director, Forensic Science Laboratory, although the human semen was detected on the salwar and the shirt, but no semen was detected on the swabs of the prosecutrix. The appellant was arrested on 2491980 and he was examined by Dr. S.P. Singal (PW. 2) at Primary Health Centre, Gannaur. The doctor opined that the accused was capable of performing sexual intercourse.

The prosecutrix Kumari Sheela (PW. 4) and Shri Kishan (PW. 5) supported the prosecution case. However, in the light of the medical evidence indicating that there was no penetration of penis within the labis majora vulva of the prosecutrix, the learned trial Court came to the conclusion that no case under section 376, Indian Penal Code was made out against the appellant. It was, however, found established that the appellant did commit criminal assault on the prosecutrix while trying to rape her. In the consequence, the appellant was found guilty of having committed an offence under section 376 read with section 511, Indian Penal Code.

The only two witnesses relevant to prove the prosecution case are the prosecutrix Kumari Sheela (PW. 4) and Shri Kishan (PW. 5). Admittedly, Shri Kishan is inimical towards the appellant and as such the learned trial Court did not place implicit reliance on him. The guilt of the appellant was considered established only from the statement of the prosecutrix and the medical evidence as well as the fact that human semen was detected on the salwar and the shirt of the prosecutrix.

The learned appellant''s counsel Shri P.C. Mehta, urged that the injuries found on the person of the prosecutrix were of such a nature which could be self inflicted as admitted by Dr. Rashmi Gupta (P.W. 3) in her crossexamination and that she had falsely implicated the appellant at the instance of Shri Kishan (PW. 5) who has inimical relations with the appellant. It is contended that in such circumstances. the uncorroborated statement of the prosecutrix should not be relied upon. This contention has been rightly rejected by the learned trial Court. On account of inimical relations between the appellant and Shri Kishan (PW. 5) it is quite reasonable to place no reliance on the statement of the latter. However, there is nothing to suggest that the prosecutrix is so situated that she may be swayed by him to falsely implicate his enemy even at the risk of her reputation. It is not worthy of belief that the prosecutrix concocted a false story to involve the appellant in a case of rape simply to oblige Shri Kishan (PW. 5). As such the statement of the prosecutrix read with the medical evidence is to be scrutinized in order to come to a conclusion if the appellant committed any offence and if so of what nature.

From the testimony of the prosecutrix. the medical evidence and the report of the Forensic Science Laboratory, the following facts seems to be proved :

The appellant did try to seduce the prosecutrix.

No penetration took place.

Human semen was detected on the salwar and shirt of the prosecutrix.

The appellant released the prosecutrix of his own accord without committing rape on her.

The learned appellant''s s counsel contended that from the facts proved on the record, this case is not of attempted rape but of indecent assault which fell under section 354, Indian Penal Code. This plea has ample merit and, therefore, it must be accepted. From the facts which have been proved on the record, it is no doubt established that the appellant intended to have sexual intercourse with the prosecutrix but the ingredients of attempted rape are missing. Quite of ten indecent assaults are magnified into attempts at rape and even more often into rape itself. The conviction of an attempt at rape ought not to be arrived at unless the Court is satisfied that the conduct of the accused indicated a determination to gratify his passion at all events and in spite of all resistance as held in State of Madhya Pradesh v. Babulal, A.I.R. 1960 M.P. 155. In this authority, the distinction between an attempt to commit rape and to commit indecent assault was drawn. It was held that 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 but 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. Applying this test to the circumstances of the present case, the appellant no doubt made preparation to seduce the prosecutrix but no other action on his part has been established to show that it had gone beyond stage of preparation and that the appellant was determined to gratify his passion in spite of all resistance.

So far as the finding of human semen on the clothes of the prosecutrix is concerned, it is not sufficient to prove either rape or an attempt thereof. It was held in Jalal v. Emperor, AIR 1930 Lah. 193, that the report of the Chemical Analyser regarding the presence of semen on the complainant''s clothing is not sufficient to prove the offence of rape.

From what is stated above, I am not in agreement with the, conviction of the appellant under section 376 read with section 511, Indian Penal Code, This conviction is converted into the one under section 354, Indian Penal Code.

On the point of sentence, the contention of the learned appellant''s counsel is that the benefit of probation may be afforded to the appellant. In this context, it may be noticed that the appellant was only 18 years old at the time of the commission of offence. Therefore, the provisions of section 6 or the Probation of Offenders Act, 1958 are attracted to this case which provides that if any person 21 years of age is found guilty or having committed an offence punishable with imprisonment, but not with imprisonment for life, the Court shall not sentence him to imprisonment unless it is satisfied that, having regard to the circumstances of the case including the nature of the offence and the character of the offender, it would not be desirable to deal with him under section 3 or section 4 and if the Court passes any sentence of imprisonment on the offender, it shall record its reasons for doing so. In the instant case, the appellant is proved to have committed an offence of criminal assault falling under section 354, Indian Penal Code for which punishment of imprisonment for a term extending to two years has been provided by law. The appellant has no previous conviction and is, therefore, a first offender. He is a lad of 18 years and it would not be in the interest of justice to send him to prison to associate with the hardened criminals. Thus having regard to the circumstances of the case the nature of the offence and the character of the appellant, it is desirable deal with I am under section (1) 4 of the Probation of Offenders Act. I order accordingly. Let the appellant execute a bond in terms of section4 of the Probation of Offenders Act in the sum of Rs. 2000/ with one surety in the, like amount, operative for a period of two years, requiring him to keep peace and be of good behaviour as also binding himself to come and receive the sentence when called upon to do so by the court. The appellant is also directed to remain under the supervision of the District Probation Officer, Sonepat during the said period of two years as provided under section 4 (3) of the Probation of Offenders Act.

With the aforesaid modifications, this appeal is dismissed.