Punjab-Haryana High Court
Anand Parkash vs State Of Haryana on 11 August, 2011
Author: A.N. Jindal
Bench: A.N. Jindal
Crl. Appeal No. 838-SB of 2003 1
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Crl. Appeal No. 838-SB of 2003
Date of decision:- 11.08.2011
Anand Parkash
....Appellant
Vs.
State of Haryana
....Respondent
CORAM: HON'BLE MR. JUSTICE A.N. JINDAL
1. Whether reporters of local news papers may be
allowed to see judgment ?
2. To be referred to reporters or not ?
3. Whether the judgment should be reported in the
digest ?
Present:- Mr. H.S. Gill, Senior Advocate,
with Mr. Manuj Nagrath, Mr. Vivek Goyal and
Mr. K.B.S. Mann, Advocates,
for the appellant.
Mr. Amit Rana, DAG, Haryana.
*****
A.N. JINDAL, J (ORAL)
Anand Parkash, accused-appellant (hereinafter referred to as 'the accused') was prosecuted for attempting to commit rape upon his step daughter. Consequently, on trial, vide judgment dated 18.04.2003 passed by the Additional Sessions Judge, Gurgaon, he was convicted and sentenced to undergo rigorous imprisonment for 3 years and to pay a fine of Rs.500/- under Sections 376/511 IPC; rigorous imprisonment for 3 months for the offence under Section 323 IPC and rigorous imprisonment for 6 months under Section 506 IPC.
Crl. Appeal No. 838-SB of 2003 2
Here is a case, where the accused was the stepfather. Prosecutrix, a girl about 15 years old, is the daughter of Anuradha Bhardwaj. Besides prosecutrix, Anuradha had two other sons from her first husband, on whose death, she re-married with the accused by way of Court marriage 5/6 years prior to the occurrence. Anuradha was working as midwife in her own shop at Farrukhnagar, whereas accused was not doing any job. The prosecutrix, in her statement made on 30.04.2002, further disclosed that in the absence of other family members, the accused used to indulge with her in uncalled for activities and molest her. He also used to beat her and her brothers and threatened them if they would disclose about the factum of molestation to somebody, then he would kill them.
On 23.04.2002 at about 5.30 P.M., when the prosecutrix was taking bath in the bathroom having a curtain, the accused entered the bathroom, lifted her despite the protest raised by her and took her to the bedroom. He stripped off himself and attempted to commit rape upon her. However, on account of the cries raised by her, he left the place and threatened her , if she had disclosed about the incident to anybody else, then he would kill her mother Anuradha (PW-6) and her brothers. However, the prosecutrix disclosed about the act of the accused to her mother, who in turn lodged protest to the accused, but the accused in turn gave beatings to her and her son Ashok Kumar with iron rod. Thereafter, she went to the police station. On the aforesaid statement made by the prosecutrix, a case was registered and investigated. Statements of the prosecutrix under Section 164 Cr.P.C. and other witnesses under Section 161 Crl. Appeal No. 838-SB of 2003 3 Cr.P.C. were recorded. Site plan of the place of occurrence was prepared. The Investigating Officer, after completion of the investigation, submitted the charge-report.
On commitment, the accused was charged for the offences under Sections 376/511, 506 and 323 IPC, to which he pleaded not guilty and claimed trial.
In order to substantiate the charges, the prosecution examined SI Rajiv Kumar (PW-1), who stated that on completion of investigation, he had prepared the charge report. Sarwan Kumar, draftsman (PW-2) proved the scaled site plan (Ex.PA). Dr. Dinesh, Medical Officer, CHC Farrukh Nagar (PW-3) had examined Anand Parkash-accused and found that he was quite fit to perform sexual intercourse. Dr. Narender Singh Lauhora (PW-
4), who had medico-legally examined Anuradha on 30.04.2002 at 7.40 P.M., observed as under:-
"1. A contusion 7 cms x 4 cms was present on the lateral side of left knee joint, bluish in colour, left knee joint locked and movement was restricted. Advised x-ray of left knee joint AP and lateral view.
2. A contusion 8 cms x 4 cms was present on the posterior aspect of arm of right side below the deletoid region, bluish in colour.
3. A contusion 8 cms x 4 cms was present on the left shoulder region at the lateral side, left deletoid region bluish in colour. Advised x-ray of left shoulder region.
4. A contusion 3.5 cms x 0.5 cm was present on the right cheek below the right eye, bluish in colour.
5. A contusion 8 cms x 4 cms was present Crl. Appeal No. 838-SB of 2003 4 at the middle and posterior aspect of left thigh, bluish in colour."
Injuries No.2, 4 and 5 were declared simple while injuries No.1 and 3 were kept under observation for want of x-ray report. He also opined that injuries were the result of blunt weapon and probable duration was 36 hours. He proved carbon copy of MLR Ex.PC and police request Ex.PC/1.
On the same day at 8.10 P.M., he also medico legally examined Ashok son of Anand Kumar aged 18 years resident of Farrukh Nagar and found the following injuries on his person:-
"1. A contusion 9 cms x 3.5 cms was present at the middle side of right thigh, bluish in colour.
2. A contusion 8 cms x 3.5 cms was present on the midial side of right thigh bluish in colour.
3. An abrasion 1 cm x 0.5 cm was present on the left side lateral angle of left eye 2 cms lateral to the left eye, lateral angle. A dark brown colour scab was present on the abrasion."
He further opined that probable duration of the injuries was 36 hours and the injuries were caused by the blunt weapon. Sonia (PW-5) is the prosecutrix. She reiterated the prosecution version by levelling allegations of attempt to rape against her step father. Anuradha Bhardwaj (PW-6) is the wife of accused and she has supported the prosecution version in all minute details. Ashok Kumar (PW-7) is brother of the prosecutrix. He has also corroborated the testimony of the prosecutrix. Kanwar Singh, ASI (PW-8) has stated that on 30.04.2002 Anuradha appeared before Crl. Appeal No. 838-SB of 2003 5 him and presented application (Ex.PE), on the basis of which, FIR Ex.PE/1 was recorded. He reached the spot, prepared rough site plan Ex.PF and recorded the statement of the prosecutrix under Section 161 Cr.P.C. He also got conducted medical examination of Anuradha and Ashok Kumar. On 01.05.2002, he arrested the accused. He also got recorded statement of the prosecutrix under Section 164 Cr.P.C. Ram Dayal, ASI (PW-9) had partly investigated the case.
When examined under Section 313 Cr.P.C., the accused denied all the incriminating circumstances appearing against him and pleaded his false implication in the case. He did not raise any specific plea in his statement under Section 313 Cr.P.C. However, he examined Vidya Anand Inspector, Food and Supplies, Gurgaon, as DW-1, who proved the photocopy of form D-1 and register Ex.D4 relating to the ration card in the name of Anand Parkash, Anuradha, Ashok Kumar, Anil Kumar and Meenakshi. Jagdish Singh Arya (DW-2) has stated that Meenakshi was admitted in Bhagwati Arsh Kanya Gurkul Jasat on 19.08.1999 and had left the school on 13.06.2000. Balkishan (DW-3) is brother of the accused, who has stated that the prosecutrix was characterless. She had eloped with Krishan son of Bishan Sarup and thereafter, she was admitted to Gurukul at Jasaat, District Gurgaon. The trial resulted into conviction.
Arguments heard. Record perused.
No merit could be found in the first contention raised by learned counsel for the accused that there is delay in lodging the FIR. The occurrence in this case took place on 28.04.2002 at Crl. Appeal No. 838-SB of 2003 6 5.30 P.M. The mother of the prosecutrix namely Anuradha came to the house in the evening, to whom, she disclosed about the occurrence. When Anuradha raised protest against her husband i.e. the accused, then she along with her son Ashok Kumar was badly beaten with the iron rod. Dr. Narender Singh Lauhora (PW-
4), who medically examined Anuradha and Ashok Kumar on 30.04.2002 at 7.40 P.M. found some injuries on their persons and those injuries were found to be result of blunt weapon.
It is a matter of shame on the part of the accused, who attempted to commit rape upon his stepdaughter. Therefore, Anuradha as well as her son were also beaten by the accused when they protested to lodge the report, needed sometime to think before approaching the police, which normally happens in such peculiar circumstances of the cases. FIR in this case was recorded on 30.04.2002 at 5.30 P.M. and she as well as her son were medically examined immediately thereafter. The statement of the prosecutrix was also recorded under Section 164 Cr.P.C. by the Magistrate on 02.05.2002 because on 01.05.2002 was a holiday. As such, there is no delay on the part of the prosecution in recording the statement of the prosecutrix. As such, in the given circumstances, there cannot be said to be any delay in lodging the FIR and the delay, if any, stands duly explained.
The other contention raised by learned counsel for the accused is that though the place of occurrence is located in the 'mohalla', but none from the neighbourhood has been examined to corroborate the prosecution version.
Having pondered over the contention, the same lacks Crl. Appeal No. 838-SB of 2003 7 any merit. The accused is stepfather of the prosecutrix. Her mother was a midwife and was away from the house, therefore, she could not raise hue and cry without consulting her mother. She raised hue and cry in order to save herself from the clutches of her stepfather. At that time, her brothers were not in the house. Even otherwise, it is a matter of common experience that in such cases, where the family members are involved, people generally isolate themselves and do not come forward to become witnesses, as by doing so, they would achieve nothing, but enmity of the accused. Even otherwise, the prosecutrix being a teenaged girl had deposed against her own stepfather, therefore, it would be difficult to doubt her credibility. The accused in this case, had acted against the consent of the prosecutrix, she cannot be said to be accomplice. In any way, the prosecutrix would be the last person to throw dust over her stepfather, knowing fully well that such allegation may create differences in the family and she might face wrath of her mother. Similarly, she being a young girl would not put her own reputation at peril, as she would get nothing by levelling such allegations against the accused. In any case, not to bank upon credit worthy testimony of the complainant, and to ask for corroboration of the testimony of this 15 years old prosecutrix, who had the courage to step into the witness box and depose against her stepfather, would amount to adding insult to the injury suffered by her. The Court is to go by the quality of evidence and not the quantity. Similarly, in case Rafiq Vs. State of Uttar Pradesh, 1980, Crl. L.J. 1344, Justice Krishan Iyar observed as under:-
Crl. Appeal No. 838-SB of 2003 8
"When no woman of honour will accuse another of rape since she sacrifices thereby what is dearest to her, he cannot cling to a fossil formula and insist on corroborative testimony, even if, taken as a whole, the case spoken to by the victim strikes a judicial mind as probable ....... When a woman is ravished what is inflicted is not merely physical injury but the deep sense of some deathless shame..... Judicial response to human rights cannot be blunted by legal bigotry."
Similarly, in Bharwada Bhoginbhai Hirajibai Vs.State of Gujrat, 1983 Crl. L.J, 1096, Thakkar, J. of Hon'ble Supreme Court observed with some anguish as under:
"In the Indian setting refusal to act on the testimony of a victim of sexual assault in the absence of corroboration as a rule, is adding insult to injury.... A girl or a woman in the tradition bound non permissive society of India would be extremely reluctant even to admit that any incident which is likely to reflect on her chastity had ever occurred. She would be conscious of the danger of being ostracized by the society ..... And when in the face of these factors the crime is brought to light there is a built-in assurance that the charge is genuine rather than fabricated....".
The prosecutrix in this case was also of tender age. She having lost her father was living with the mother, who had married second time with such a man, who was idle and had evil eye upon her and wanted to exploit the relationship. Therefore, in such circumstances, there is no reason to discard the solitary testimony of the prosecutrix and the same could be treated sufficient to establish the guilt of the accused.
It would also be pertinent to mention here that the Crl. Appeal No. 838-SB of 2003 9 testimony of the prosecutrix in this case, stands corroborated by her mother Anuradha (PW-6) and her brother Ashok Kumar (PW-
7). Though, they are not eye witnesses to the occurrence, yet they proved whatever was told by the prosecutrix to them and they also corroborated her version stating that when they objected to the act of the accused, then they were thrashed by him with the iron rod. The medical evidence coming from the mouth of Dr. Narender Singh (PW-4) proves the injuries on the persons of Anuradha (PW-6) and Ashok Kumar (PW-7). As such, this past conduct of the accused proves the fact that he tried to commit rape upon the prosecutrix, but it was averted by her. When her mother and brother raised the objection, they were also thrashed.
Learned counsel has referred to some improvements in the statement of the prosecutrix in order to impress upon the Court that actually no attempt was made by the accused so as to take the case within the purview of Section 376 (5) (ii) IPC. The counsel has urged that according to prosecutrix, as stated in her previous statement, when she was taking bath in naked position, she was lifted by the accused and taken to the bedroom and was made to lie on the bed and then he attempted to commit rape upon her. However, in her substantial statement, she has made some improvements by stating that the accused had also stripped himself and then attempted to commit rape.
Having gone through the statement Ex.DA recorded by the police under Section 161 Cr.P.C., the statement under Section 164 Cr.P.C. Ex.PB recorded by the Duty Magistrate and the substantive statement, this Court is of the opinion that the factum Crl. Appeal No. 838-SB of 2003 10 with regard to the stripping off by the accused is not an improvement at any cost, as though the words with regard to stripping off the clothes by the accused are not mentioned by the prosecutrix in her statement under Section 161 Cr.P.C., but in her statement under Section 164 Cr.P.C., she has specifically stated that the accused removed his clothes also and tried to commit rape upon her. Thus, the factum with regard to stripping off the clothes by the accused cannot, in any manner, be said to be an after thought or an improvement.
This Court is also not agreeable with the contention made by learned counsel for the accused that the prosecutrix has not stated a word which may be treated as an overt act, leading towards the commission of the crime by the accused.
Having considered the aforesaid contention, the same does not weigh with the mind of the Court. It has been stated by the prosecutrix in her statement under Section 164 Cr.P.C. as well as in the Court that the accused has been molesting her modesty since prior to the occurrence. She has stated in the Court that the accused used to molest her by doing objectionable activities with ill intention and used to threaten that if she would tell anything to her mother and brothers, then he would kill her. Therefore, she kept silent, which means that the prosecutrix knew well about the distinction between molestation and rape. As such, while levelling allegations of attempt to rape, she has categorically deposed that on 28.04.2002 at 5.30 P.M., the accused when spotted the prosecutrix taking bath in the bathroom having no door, but curtain, as usually happens in the houses of the poor people Crl. Appeal No. 838-SB of 2003 11 where temporary bathrooms are constructed and the door is covered by a cloth, he lifted the prosecutrix in naked condition and took her to the bedroom. He stripped off himself and attempted to commit rape upon her. The intention of the accused could be gathered from various circumstances that since the prosecutrix was already naked, he was not to make any further efforts upon her. He removed his own clothes. He tried to get benefit of the opportunity when none of her brothers as well as mother Anuradha, was present in the house. The prosecutrix appears to have felt shy of explaining the manner in which the accused acted further, which may lead to commission of the crime, obviously for the reason that her own stepfather was the accused. No such question was asked to the prosecutrix, as to if the accused did not do any further overt act towards the commission of the crime, except stripping off himself.
The attempt to commit crime has been elaborated by the Hon'ble Apex Court in case of Koppula Venkat Rao Vs. State of A.P. (2004) 3 Supreme Court Cases 602, that in every crime, there is firstly, an intention to commit, secondly preparation to commit it, and thirdly, attempt to commit it. Thus, a culprit first intends to commit the offence, then makes preparation for committing it and thereafter, attempts to commit the offence. If the attempt succeeds, he has committed the offence; if it fails due to reasons beyond his control, he is said to have attempted to commit the offence. The Hon'ble Apex Court, while further explaining about attempt to commit the crime, observed as under:-
".......The moment he commences to do an act with Crl. Appeal No. 838-SB of 2003 12 the necessary intention, he commences his attempt to commit the offence. The word "attempt" is not itself defined, and must, therefore, be taken in its ordinary meaning. This is exactly what the provisions of Section 511 require. An attempt to commit a crime is to be distinguished from an intention to commit it; and from preparation made for its commission. Mere intention to commit an offence, not followed by any act, cannot constitute an offence. The will is not to be taken for the deed unless there be some external act which shows that progress has been made in the direction of it, or towards maturing and effecting it. Intention is the direction of conduct towards the object chosen upon considering the motives which suggest the choice. Preparation consists in devising or arranging the means or measures necessary for the commission of the offence. It differs widely from attempt which is the direct movement towards the commission after preparations are made. Preparation to commit an offence is punishable only when the preparation is to commit offences under Section 122 (waging war against the Government of India) and Section 399 (preparation to commit dacoity). The dividing line between a mere preparation and an attempt is sometimes thin and has to be decided on the facts of each case. There is a greater degree of determination in attempt as compared with preparation."
In the instant case, there was not merely an intention or preparation on the part of the accused towards commission of the crime, but the accused having found the prosecutrix naked and none present in the house, appears to have developed sexual lust, which he wanted to satisfy. With a motive to fulfill his lust, he lifted her from the bathroom to the bedroom in the same condition Crl. Appeal No. 838-SB of 2003 13 and laid down her on the bed. He removed his own clothes and attempted to commit rape. Had he not been prevented by the prosecutrix by raising hue and cry, he would have raped her. Thus, this act of the accused is little short of actual rape, which was averted by raising hue and cry, cannot be said to be not an attempt to commit rape, particularly when she has stated that the accused had attempted to commit rape upon her. It will be worthy to bear in mind that unlike all other cases, where the prosecutrix explains as to how the rape was committed, the present case involves the matter between the daughter and the stepfather, therefore, omission to explain as to if he tried to put his penis in her vagina, cannot be said to be fatal to take the case out of the purview of Section 376 read with Section 511 IPC, particularly in the background that the accused had an evil eye upon her and had been molesting her modesty while getting undue benefit of her being the stepdaughter.
Resultantly, I do not find merit in the present appeal and the same is hereby dismissed.
(A.N.JINDAL) 11 of August, 2011 th JUDGE ajp