Punjab-Haryana High Court
Harbans Singh vs State Of Haryana on 29 September, 2010
Author: A.N.Jindal
Bench: A.N.Jindal
CRA No.142-SB of 2008(O&M) [1]
IN THE HIGH COURT FOR THE STATES OF PUNJAB &
HARYANA AT CHANDIGARH
...
Criminal Appeal No.142-SB of 2008(O&M) Decided on : September 29, 2010 Harbans Singh ... Appellant VERSUS State of Haryana ... Respondent CORAM : HON'BLE MR.JUSTICE A.N.JINDAL Present: Mr.S.K.Jain and Mr.N.K.Sanghi, Advocates for the appellant.
Mr.J.S.Rattu, Deputy Advocate General, Haryana. Mr.Jagjit Singh, Advocate for the complainant.
A.N.JINDAL, J.-
Assailed in this appeal is the judgment dated 10.12.2007 passed by Additional Sessions Judge, Sirsa, convicting and sentencing Harbans Singh - accused/ appellant (herein referred as `the accused') to undergo rigorous imprisonment for five years and to pay fine of Rs.10,000/- under Section 376 of the Indian Penal Code 1860.
The prosecutrix, aged about 9-10 years was studying in 4th standard in Government Primary School at village Patti Kirpal, where, the accused was serving as a teacher. On 28.2.2007, at about 2/2.30 PM, the prosecutrix (PW1) came to her house and informed her parents that "the accused had taken her in a separate room on the pretext of cleaning his utensils, where, he undressed her and kissed her". On the basis of this CRA No.142-SB of 2008(O&M) [2] complaint (Ex.P1) made by Harjinder Singh (father of the prosecutrix), the First Information Report (Ex.P1/B) was registered and the case was investigated.
The Investigating Officer prepared the scaled site plan of the place of occurrence (Ex.P2); collected the school certificate of the prosecutrix (Ex.P3); posting order of the accused (Ex.P5); recorded the statements of the witnesses and on completion of the investigation, report was submitted against the accused.
The accused was charged under Section 376 read with Section 511 of the Indian Penal Code 1860, to which he pleaded not guilty and opted to contest.
The prosecution in order to substantiate the charges, examined the prosecutrix (PW1), the complainant Harjinder Singh (PW2), Daljeet Kaur (PW3), Mohan Lal draftsman (PW4), Darshan Kumar Headmaster (PW5), Harbans Singh (PW6) and Sub-Inspector Ram Kumar (PW7).
When examined under Section 313 of the Code of Criminal Procedure, 1973, the accused while admitting his posting as teacher at Patti Kirpal denied if he was teaching the prosecutrix. He also admitted that she was a student of 4th standard on the day of alleged occurrence. However, he denied other incriminating circumstances appearing against him and further explained that no occurrence whatsoever, as stated by the complainant party, took place and he has been falsely involved in this case due to party faction in the village. However, no evidence was led by him in defence. The trial ended in conviction.
Arguments heard. Record perused.
Having perused the application Ex.P1 given by the complainant CRA No.142-SB of 2008(O&M) [3] on 1.3.2007 to the Station House Officer, Police Station Ellenabad and his substantive statement, both are found to be little bit contradictory. In her statement in Court, the prosecutrix has stated that on 28.2.2007, the accused had taken her in a separate room on the pretext of getting utensils cleaned. He removed her clothes in the room. He also removed his own clothes. Then, he laid her on the floor and he also laid upon her and attempted to commit sexual intercourse. As such, she appears to have made improvement over the version as told by her to her father. When confronted, she admitted that she did not tell the police that "the accused laid upon her and attempted to commit sexual intercourse". Though, it is mentioned in the application (Ex.P1) that she was taken by the accused in the interval i.e. 11.30 AM, but she in her substantive statement has disclosed that the accused had taken her after the school hours i.e. 2.30 PM.
It is also no denying a fact that Harjinder Singh also made some improvements to exaggerate the offence, while stating that the accused laid her on the ground and attempted to commit sexual intercourse with her and that the accused had closed the door. When confronted with his statement Ex.P1, he has stated that he did not record the aforesaid facts in the complaint Ex.P1. Though, he has stated that he got recorded in his statement that his daughter told him that the accused laid her on the ground and attempted to commit sexual intercourse with her, but nothing such was found in Ex.P1. The part of his statement to the extent that on raising hue and cry, the other students of the school were attracted and the accused had fled away, cannot be said to be improvement, but an omission only. Daljeet Kaur, mother of the prosecutrix while appearing as PW3 has also reiterated the version as given by the prosecutrix (PW1) as well as the CRA No.142-SB of 2008(O&M) [4] complainant (PW2). No doubt, this Court could also be moved by the factors that there could be no less a heinous crime as committed by the accused being a school teacher upon a small girl studying in 4th standard, but keeping in view the facts and circumstances of the case and the improvements made by the witnesses at some material points and also in the absence of any medical evidence indicating any act towards rape or a little effort made by the accused, which may prove the attempt on his part to commit rape, the accused at the best could be said to have molested the modesty of a woman.
As the basic document, which unfolds the truthful version is the application Ex.P1 made by the complainant (PW2), relevant translated extract of which reads as under:-
"On 28.2.2007, my daughter had gone to attend the school. At about 2.30 PM, my daughter came to the house and disclosed in the presence of my wife that on that day Harbans Singh, teacher had called her during interval and took her to an isolated room on the pretext of cleaning utensils and there he removed her clothes and kissed her."
It would be pertinent to mention here that though Harjinder Singh (PW2) has stated in his statement in court that he could not get the remaining facts mentioned regarding the laying of the prosecutrix on the ground and the accused laying over her in order to commit intercourse, as he was perturbed, yet it is not noticed that he did not make any such supplementary statement before the police. The prosecutrix has stated that her statement was not recorded by the police, which indicates misconduct of the Investigating Officer. In any case, on perusal of her statement in court, CRA No.142-SB of 2008(O&M) [5] though this fact cannot be denied that she would not tell lie and sacrifice her repute at any cast, yet the Court could well assess that she made the improvement in her statement in order to exaggerate the offence by stating that the accused lay upon her and attempted to commit intercourse upon her. However, taking stock of the statements made by the prosecution witnesses and the age of the prosecutrix and also keeping in mind the other circumstances of the case, it could safely be concluded that the accused must have taken her to an isolated room, got removed her clothes and kissed her.
Faced with the situation, the counsel for the accused has raised before me another critical argument that such offence, if proved against the accused, would not amount to attempt to commit rape.
Having given my thoughtful consideration to the respective contentions of the counsel for the parties and having gone through the record, it is reiterated that the accused had taken the prosecutrix after the school hours in an isolated room, got removed her clothes and kissed her. Therefore, the accused may be having any intention in his mind for commission of rape, but the fact remains the act of the accused remained upto the stage of preparation and the element of attempt is lacking. An effort to make penetration of penis in the private parts of a girl is essential requirement for bring the crime within the ambit of Section 376 IPC. There is nothing in evidence if the accused even took his organ near the private part of the prosecutrix. Thus, the gravity of the offence is diminished when no such attempt is made. There is no evidence on the record that the accused had closed the doors and the medical evidence is also missing in order to establish if the accused was fit to intercourse. In CRA No.142-SB of 2008(O&M) [6] the absence of such evidence, at the most, it would amount to an assault to womanhood, therefore, the offence would fall only under Section 354 IPC. If any damage had been caused to the vagina, much less, there would have been evidence that the accused took his private part near her private part, then he could be convicted for attempt to commit rape. Similar observations were made in Nanak Chand vs. State of Haryana, 2006(1) RCR (Crl.) 14, wherein, it was observed that in the circumstances when the accused undressed himself as also the prosecutrix and then laid naked on her. However, then he fled away from the scene on seeing the mother of the prosecutrix coming, the accused could be held guilty for the offence under Sections 354 and 342 IPC and it did not amount to attempt to rape.
Similar observations were made by Andhra Pradesh High Court in case Masiripamu Nukaiah Nukaraju vs. State of A.P., 2004(1) RCR(Crl.) 33 (A.P.), which was followed by this High Court in case Manoj vs. State of Haryana, 2008(3) RCR(Crl.) 573.
The counsel for the complainant on the other hand, has tried to place reliance over the case of Pandharinath vs. State of Maharashtra, 2009(3) RCR(Crl.) 596 in order to contend that where the prosecutrix was made naked and her mouth was gagged, then that fact was sufficient to take the case within the purview of Section 376 read with Section 511 IPC. Having examined the aforesaid judgment, it is observed that in that case actually, the accused was prosecuted under Section 376 IPC, but on evidence, the court diluted the offence from Section 376 to Section 376 read with Section 511 IPC. In any case, in the case in hand, no further step was taken by the accused except removing the clothes of the prosecutrix CRA No.142-SB of 2008(O&M) [7] and kissing her. Thus, the facts of the aforesaid case are distinguishable from the facts of the present case.
The trial court appears to have moved by the status of the accused as well as the age of the prosecutrix, but the same could only be taken in view of the evidence led on the record. The court is not to be moved by the notional circumstances or emotional allegations, but it is governed by the evidence before it. On taking entire stock of the evidence on record, this court is of the view that the accused must be held guilty for molesting the modesty of a woman under Section 354 IPC and not for attempt to commit rape under Section 376 read with Section 511 IPC. As such, the interference at my end has become inevitable.
In the wake of the above discussion, I partly accept the appeal, acquit the accused of the offence under Section 376 read with Section 511 IPC and hold him guilty for the offence under Section 354 IPC, for which he is sentenced to undergo rigorous imprisonment for two years and to pay fine of Rs.10,000/-. On realisation of the fine, Rs.8000/- be paid to the prosecutrix through her father Harjinder Singh or any other person, if he is not alive.
Copy of the judgment be sent to the Chief Judicial Magistrate, Sirsa for compliance.
September 29, 2010 ( A.N.JINDAL ) `gian' JUDGE