Rupesh Kumar vs State Of Chhattisgarh on 24 February, 2009

[Cites 9, Cited by 2]

Chattisgarh High Court

Rupesh Kumar vs State Of Chhattisgarh on 24 February, 2009

1. This appeal is directed against the judgment of conviction and order of sentence dated 31-12-2008 passed by the Sessions Judge, Raipur in Sessions Trial No.70/2008, whereby learned Sessions Judge after holding the accused/appellant guilty for commission of offence under Section 376 read with Section 511 of the I.P.C., sentenced him to undergo R.I. for five years & pay fine of Rs.1,000/-, in default of payment of fine to further undergo R.I. for three months.

2. Judgment of conviction is challenged on the ground that without any evidence relating to attempt to commit rape against the appellant the Court below has convicted & sentenced the appellant and thereby committed illegality.

3. Case of the prosecution, in brief, is that on 30-9-2007 at about 9 a.m. the prosecutrix, aged about 8 years, was playing near the house which was under construction, the accused went near the prosecutrix, took her inside a vacant room, undressed himself & the prosecutrix, lay her down on the land and was attempting to commit rape on her. While the accused was taking the prosecutrix towards the room, Takeshwar (PW-4) objected him and immediately ran away and informed to the brother of the prosecutrix namely, Asha Ram (PW-3). Asha Ram (PW-3), Takeshwar (PW-4) & Mantram reached towards the place of incident and saw that the accused was attempting to commit rape on the prosecutrix. They caught hold of the accused. Asha Ram (PW-3) immediately lodged the report, same was written in Dehati Nalishi Ex.P-2 and on the basis of Dehati Nalishi, F.I.R. Ex.P-5 was registered. The prosecutrix was sent for medical examination vide Ex.P-6 and she was examined by the doctor. No injury was found on the prosecutrix. Her secondary sexual characters were not developed, hymen was intact, no internal injury was found over her private part and vagina does not admit even one finger. Two slides were prepared from the vagina of the prosecutrix and handed over to the Police. The accused was taken into custody vide Ex.P-11. He was sent for medical examination. He was examined by Dr. V. Dutta (PW-1) vide Ex.P-1 who opined that the accused is capable for committing sexual intercourse. Spot map was prepared vide Ex.P-3. Caste certificates Exs.P-9 & P-10 were seized vide Ex.P-8.

4. After completion of investigation, charge sheet was filed before the Special Judge, Raipur who sent the case to the Court of Sessions.

5. In order to prove the guilt of the accused/appellant, the prosecution has examined as many as six witnesses. Statement of the accused was recorded under Section 313 of the Cr.P.C. in which he denied the circumstances appearing against him, pleaded innocence & false implication. The accused has examined Dr. M.K. Sahu (DW-1) & Pawan Chanchlani (DW-2) - brother of the accused, in his defence, who have deposed that the accused is suffering from psychotic disorder as a result of consumption of liquor, he was admitted in Mekahara and was discharged vide Ex.D-1.

6. I have heard learned counsel for the parties and perused the judgment impugned as also the record of the Court below.

7. Mr. B.P. Sharma, learned counsel for the appellant, submits that appellant Rupesh Chanchlani is a patient of psychotic disorder and he was under treatment in the Medical College & Hospital under Dr. M.K. Sahu from 30-1-2008 to 2-2- 2008. He is suffering from alcohol dependence having history of alcohol induced psychotic disorder. Learned counsel further submits that the evidence adduced on behalf of the prosecution is not sufficient for drawing any inference that the accused has attempted to commit rape on the prosecutrix, but the evidence adduced on behalf of the prosecution is suggestive of the fact that the appellant, whose mental position is not normal, has used criminal force to outrage the modesty of a woman which is punishable under Section 354 of the I.P.C. not under Section 376 read with Section 511 of the I.P.C. Learned counsel also submits that the appellant was in custody from 1-10-2007 to 4-1-2008 and from 31-12-2008 till today i.e. for about 4 months 12 days. He placed reliance in the matter of Aman Kumar and another v. State of Haryana1 in which it has been held by the Apex Court that offence of attempting to commit rape is distinct from indecent assault. Indecent assaults are often magnified into attempts at rape. The Courts are required to scrutinize the evidence. Further reliance has been placed in the matter of Bhurji s/o Kumbha and others v. State of M.P.2 in which the Madhya Pradesh High Court has held that pulling the prosecutrix and trying to remove her dress for sexual intercourse does not constitute the offence of attempt to commit rape, but such act is liable for outraging the modesty of a woman punishable under Section 354 of the I.P.C.

8. On the other hand, learned counsel appearing on behalf of the State/ respondent supported the judgment of the Court below and submitted that the prosecution has proved its case beyond all reasonable doubts. Evidence of the prosecutrix & other witnesses inspire confidence and trustworthy, sufficient for drawing inference that the appellant has not used criminal force with intent to outrage the modesty of the prosecutrix, but has attempted to commit rape on her. Learned counsel placed reliance in the matter of Vishnu v. State of Madhya Pradesh3 in which it has been held by the M.P. High Court that the prosecutrix & accused were lying undressed and the appellant was lying over the prosecutrix, offence under Section 376 read with Section 511 of the I.P.C. is made out against the appellant.

9. In order to appreciate the contentions of the parties and to establish the complicity of the appellant in the crime in question, I have examined the evidence adduced on behalf of the prosecution.

10. Age of the prosecutrix about 8 years is not disputed by the defence. On the other hand, the Court has ascertained the age of the prosecutrix as 8 years. The prosecutrix (PW-

2) has deposed that at the time of incident she was going to shop for purchasing coconut oil, the accused met her on the way and took her to one room where he opened her underwear and lay her down, at that time, her brother Asha Ram came whereupon the accused fled away from the spot. The Police sent her to the hospital.

11. Takeshwar (PW-4) has deposed that on the date of incident he was coming from the shop, at that time the accused was dragging the prosecutrix towards a house, he objected to it on which the accused scolded him whereupon he ran towards the brother of the prosecutrix Asha Ram. He along with Asha Ram & Mantram immediately rushed towards the house where the accused & the prosecutrix were undressed, they caught hold of the accused.

12. Asha Ram (PW-3) has deposed that he was informed by Takeshwar (PW-4) that one person has taken the prosecutrix towards a house on which he along with Takeshwar rushed towards that house where they saw that the accused was undressed, the prosecutrix was also undressed and the accused lay the prosecutrix on the floor and he was trying to lay over her. He lodged the report vide Ex.P-2. The Police prepared spot map vide Ex.P-3. He consented for medical examination of her sister vide Ex.P-4.

13. Sushil Kumar (PW-5), Head Constable & Shashi Mohan Singh (PW-6), Additional Superintendent of Police C.M. Security, have supported the factum of investigation.

14. Dr. V. Dutta (PW-1) has stated that he has examined the accused vide Ex.P-1 and found that the accused was capable to commit sexual intercourse. The prosecutrix was examined by Dr. Saroj Gandharw vide Ex.P-6, but the prosecution has not examined the doctor who had examined the prosecutrix, however, her medical report shows that no injury was found over her body or private part. According to the report, hymen of the prosecutrix was intact and her secondary sexual characters were not developed. Vagina does not admit even one finger. These are suggestive of the fact that the prosecutrix has not been subjected to rape or sexual intercourse.

15. The prosecutrix (PW-2) has admitted in para 2 of her cross-examination that the accused was previously not known to her, but the accused used to provide chocolates & biscuits to her and love her like a child. On the date of incident, the accused took her inside a room where no other person was present, but construction work was going on in that house. She has denied the suggestion that she is making false statement.

16. Asha Ram (PW-3) has stated in para 4 of his cross- examination that the accused & the prosecutrix were found in one room which was without door. He has also admitted in para 6 that he called the persons and also the Police, when the Police came the accused shouted and went inside the bathroom whereupon after breaking the door, the Police took out the accused from the bathroom and took him to the Police Station.

17. Takeshwar (PW-4) has admitted in para 3 of his cross- examination that the accused has not quarrelled with any person. He has also admitted in para 5 that when Police came, the accused was shouted and told that he has not committed anything. According to the evidence of the prosecutrix (PW-2), the accused opened her underwear and lay her down on the land, at that time, her brother came, but according to the evidence of Asha Ram (PW-3) - brother of the prosecutrix & Takeshwar (PW-4), the accused has removed his clothes as also the clothes of the prosecutrix and after laying her on the land, he was just in a position to sit over her. Asha Ram (PW-3), who has lodged Dehati Nalishi, has specifically stated in Dehati Nalishi (Ex.P-2) that when he went inside the room he saw that the accused & the prosecutrix were undressed (naked) and after laying the prosecutrix down, the accused was sitting over the prosecutrix and was trying to commit rape on her. Asha Ram (PW-3) has supported the version given in Dehati Nalishi (Ex.P-2). Takeshwar (PW-4) has supported the version of Asha Ram (PW-3). The prosecutrix (PW-2) is a teenager child, aged about 8 years, she has not stated that the appellant was not naked or he has not removed her clothes or he was not trying to sit over her.

18. In the case of Aman Kumar (supra), the Apex Court while dealing with the case of attempt to commit rape and indecent assault held that some times indecent assaults are magnified into attempts at rape and the Court is required to scrutinize the evidence minutely. Paras 10 & 11 of the judgment read thus "10. An attempt to commit an offence is an act, or a series of acts, which leads inevitably to the commission of the offence, unless something, which the doer of the act neither foresaw nor intended, happens to prevent this. An attempt may be described to be an act done in part-execution of a criminal design, amounting to more than mere preparation, but falling short of actual consummation, and, possessing, except for failure to consummate, all the elements of the substantive crime. In other words, an attempt consists in it the intent to commit a crime, falling short of, its actual commission. It may consequently be defined as that which if not prevented would have resulted in the full consummation of the act attempted. The illustrations given in Section 511 clearly show the legislative intention to make a difference between the cases of a mere preparation and an attempt.

11. In order to find an accused guilty of an attempt with intent to commit a rape, court has to be satisfied that the accused, when he laid hold of the prosecutrix, not only desired to gratify his passions upon her person, but that he intended to do so at all events, and notwithstanding any resistance on her part. Indecent assaults are often magnified into attempts at rape. In order to come to a conclusion that the conduct of the accused was indicative of a determination to gratify his passion at all events, and in spite of all resistance, materials must exist. Surrounding circumstances many times throw beacon light on that aspect."

19. In the case of Bhurji (supra), the accused has not removed his clothes, but has tried to remove the dress of the prosecutrix and could not succeed to remove her dress. But in the present case, the accused as removed his clothes and also removed the clothes of the prosecutrix and after laying her on the land, he was just sitting over her. The case of Bhurji (supra) is distinguishable on facts to that of the present case.

20. Intention to commit offence differs from attempt to commit offence because intention to commit offence is first stage in commission of crime. In every crime, there is first, intention to commit, secondly, preparation to commit, thirdly, attempt to commit it. If the third stage, that is, attempt is successful, then the crime is complete. 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. Attempt to commit an offence can be said to begin when the preparations are complete and the culprit commences to do something with the intention of committing the offence and which is a step towards the commission of the offence. The moment he commences to do an act with the necessary intention, he commences his attempt to commit the offence.

21. In the instant case, the appellant took the prosecutrix to a lonely place inside a room where he undressed himself and also the prosecutrix. After laying her on the floor, the accused was just trying to sit over her, at that time; he was caught by the brother of the prosecutrix & other witnesses. This shows that with intention to commit the offence of rape the accused prepared himself by undressing himself and also undressing the prosecutrix and after laying her on the floor, he tried to sit over her. If he was not caught by the brother of the prosecutrix & others, he must have succeeded in the commission of offence of rape. Facts of the present case are suggestive of the fact that the appellant has not tried to outrage the modesty of a woman, but had attempted to commit rape on her. In this case, indecent assault has not been modified into attempt at rape.

22. Evidence of the prosecutrix & the witnesses inspire confidence and they are trustworthy. The evidence adduced on behalf of the prosecution is sufficient to draw inference that the accused has attempted to commit rape on the prosecutrix.

23. As regards psychotic disorder or abnormal mental condition of the accused, Dr. M.K. Sahu (DW-1) has specifically stated in his evidence that in the case of psychotic disorder the person would not be in a position to decide right or wrong, but he found symptoms of anxiety in the appellant and no symptoms of psychotic disorder were found in him. This shows that at the time of commission of offence the accused was not abnormal and he was not suffering from any psychotic disorder.

24. After appreciating the evidence available on record, the Court below has convicted the appellant under Section 376 read with Section 511 of the I.P.C. Conviction of the appellant is sustainable under the law.

25. As regards the question of sentence, learned Sessions Judge sentenced the appellant to undergo R.I. for five years & pay fine of Rs.1,000/-, in default of payment of fine to further undergo R.I. for three months. In criminal cases sentencing part is a very crucial aspect and the Courts must deal with this aspect with circumspection. The Supreme Court in the case of Sushil Murmu v. State of Jharkhand4 has pointed out relevant considerations for determination of sentence that the personality of the offender as revealed by his age, character, antecedents and other circumstances and traceability of the offender to reform must necessarily play the most prominent role in determining the sentence. A judge has to balance the personality of the offender with the circumstances, situations and the reactions and choose the appropriate sentence to be imposed''. Again in the case of Devnarayan Mandal v. State of U.P.5 (para 8) the Supreme Court has held that the sentence awarded should be neither excessively harsh nor ridiculously low. The Court has to bear in mind the principle of proportionality. The gravity of the offence, manner of commission of crime, age and sex of the accused should be taken into account. Thus, the discretion given by the statute to the Court for awarding the sentence cannot be exercised arbitrarily. The Courts are required to balance the personality of the offender with the circumstances.

26. In the instant case, evidence of the prosecution witnesses reveals that when they caught the accused, called for the Police and the Police came the accused started shouting and lastly he entered into bathroom, thereafter, the Police took out the accused by breaking the door of the bathroom. This act of the accused shows the sign of anxiety. The appellant is aged about 31 years. Taking into consideration the circumstances in which the offence of attempt to commit rape has been committed, I am of the opinion that the sentence imposed upon the appellant requires reconsideration and 50% of the minimum sentence prescribed for commission of the offence of rape i.e. half of 7 years & fine would be sufficient in this case.

27. For the foregoing reasons, the appeal is partly allowed. Conviction of the appellant under Section 376 read with Section 511 of the I.P.C. is maintained. Sentence of the appellant is modified. Instead of R.I. for five years & fine of Rs.1,000/-, the appellant is sentenced to undergo R.I. for 3+ years & pay fine of Rs.1,000/-, in default of payment of fine to further undergo R.I. for three months.

J U D G E

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Chattisgarh High Court