Andhra HC (Pre-Telangana)
The Public Prosecutor, High Court Of ... vs Lingisetty Sreenu on 25 April, 1997
Author: B.S. Raikote
Bench: B.S. Raikote
ORDER
1. The Criminal Appeal No. 7 of 1993 is preferred by the State, being aggrieved by the judgment, sentence and conviction passed by the learned Principal Assistant Sessions Judge, Tenali in Sessions Case No. 447/1991 by which, the learned Assistant Sessions Judge, instead of convicting the accused under S. 376 of Indian Penal Code, convicted him for the offence punishable under S. 354 of Indian Penal Code sentencing him to rigorous imprisonment for two years with a fine of Rs. 2,000/-, in default of payment of fine a further simple imprisonment for two months. It is to be noted at this stage itself, that the accused, being aggrieved by the said judgment dated 20th August, 1992 in Sessions Case No. 447 of 1991 had preferred an appeal before the First Additional Sessions Judge, Guntur in Criminal Appeal No. 175 of 1992. The said appeal has been withdrawn by this Court and it is now numbered before this Court as Transfer Criminal Appeal No. 13 of 1995. Since both these criminal appeals relate to the same case, the office has now posted both of them together for final hearing.
2. I have heard the counsel for the appellant - State and the accused.
3. In order to appreciate the rival contentions, it is necessary for me to summarily note the facts of this case. According to the prosecution on 13-2-1991 at about 11-30 a.m. the accused Lingisetty Sreenu, son of Venkateswarlu, finding the victim girl alone entered into the house of Papaiah at Barripalem and raped Thota Padma, the daughter of Papaiah aged about 14 years. The said Padma is a dumb girl but she is not a deaf girl. According to the prosecution, at the relevant time, the brother of Padma, by name Venkateswarlu returned home and found the accused in a naked position lying on Padma and her petty coat was lifted. On seeing Venkateswarlu P.W. 1, the accused managed to run away in spite of an attempt being made by P.W. 1 to catch hold of him. Padma told P.W. 1 through signs that the accused had raped her. Later, P.W. 1 informed his mother P.W. 2 and also his father P.W. 3. At the night at about 2 a.m., on 14-2-1991 Padma and her brother and her parents went to the police station. On the complaint of P.W. 1, P.W. 7, the Sub-Inspector of Police who was present in the station registered the case in crime No. 13/1991 under S. 376, IPC and accordingly issued the First Information Report, Ex.P. 1 is the complaint filed by P.W. 1. Immediately thereafter, the victim girl Padma was sent to a lady doctor P.W. 6, who examined her. According to P.W. 6, there was no injury on the person of the victim girl. It is the further case of the prosecution that the accused was sent to the doctor P.W. 9, who also found that there was no injury on the person of the accused. After recording the statement, P.W. 8 has filed charge-sheet in the Court.
4. The learned Principal Assistant Sessions Judge, Tenali registered the said case as Sessions Case No. 447 of 1991. He framed the following charge :
"That you (Lingisetty Sreenu son of Venkateswarlu, Burripalem, Tenali Mandalam) on or about the 13th day of February, 1991 at 11.30 a.m., in the house of Thota Venkateswarlu at Burripalem committed rape on Thota Padma daughter of Papaiah, a dumb girl of 14 years and that you thereby committed an offence punishable under S. 376 of the Indian Penal Code and within my cognizance. And I hereby direct that you be tried on the said charge."
5. In support of the prosecution, the prosecution examined P.Ws. 1 to 9 and got marked documents vide Exs.P. 1 to P. 11. P.W. 1 is Thota Venkateswarlu, the brother of the victim girl Padma. P.W. 2 and P.W. 3 are her mother and father. P.W. 4 is the victim girl herself. P.W. 5 is the uncle of the victim girl. P.W. 6 is the doctor who examined Padma. P.W. 7 is the Sub-Inspector of Police who registered the case on the basis of the complaint Ex.P. 1 given by P.W. 1. P.W. 8 is the Inspector of Police, who filed the charge-sheet and P.W. 9 is the doctor who examined the accused.
6. P.W. 1, the brother of the victim girl, P.W. 2 and P.W. 3 the parents of the victim girl and P.W. 5, uncle of the victim girl, did not support the prosecution case and accordingly they were declared hostile. The only witness to be believed or not was Thota Padma, the victim girl herself. The trial court believing her statement and on the appreciation of the other evidence on record, convicted the accused under S. 354, IPC. Against this judgment and order of the trial court the State has come up in appeal in Criminal Appeal No. 7 of 1993 contending that the accused should have been convicted under S. 376, IPC, whereas the accused has come up in appeal in Transfer Criminal Appeal No. 13/1995 contending that his conviction even under S. 354 is bad and the same is liable to be set aside.
7. The learned Public Prosecutor strenuously contended that the court below is in error in not convicting the accused under S. 376, IPC. According to him, the accused has committed the offence punishable under S. 376 or at least he has attempted to commit the rape under S. 376 read with S. 511, IPC and, the conviction of the accused under S. 354 was not sustainable.
8. On the other hand, the learned counsel for the respondent contended that the accused has not committed any offence much less the offence under S. 354, IPC and a false case has been foisted against him only because of the enmity between the family of the accused and the family of the victim girl Padma. He further contended that the sole evidence on record B the evidence of P.W. 4 Padma. She is a dumb girl and on the basis of the signs and symbols and on the basis of the interpretation made by the Principal of the Dumb and Deaf College, it cannot be safely concluded that the accused has committed rape. At any rate, the accused was entitled to the benefit of doubt.
9. I have given anxious consideration to the case. It is an unfortunate case for the victim girl that she had to stand all alone. Even her parents and brother do not support the prosecution case in its entirety. Before, I take up the evidence of P.W. 4, the victim girl, I have to notice the evidence of P.Ws. 1, 2, 3 the 5. Though these witnesses are declared as hostile in view of the judgment of the Hon'ble Supreme Court in "Sat Paul v. Delhi Administration", and "Syed Akbar v. State of Karnataka", , the evidence of the witnesses declared hostile need not be excluded from consideration in it entirety. It is still open to the Court to scrutinise the other evidence and consider that evidence to the extent it supports the prosecution case.
10. The prosecution case as disclosed in Ex.P. 1, the complaint filed by P.W. 1, is that on 13-2-91 at about 11 a.m. P.W. 1 closed his shop and went to the house for lunch and while he entered the house he found in a room situated in the northern side of the house of P.W. 3 (Sri Papayya) that the accused was lying on his sister Padma in naked position, and on seeing P.W. 1 the accused escaped in spite of the fact that P.W. 1 tried to catch hold of him. On enquiry made by P.W. 1 the victim girl told him through signs that the accused had raped her. On arrival of the family members in the evening P.W. 1 informed them. Thereafter his sister, mother and himself went to Tenali Police Station and gave the complaint, it was at 2 a.m. on 14-2-1991. In support of the said complaint P.W. 1 was examined. In his deposition he stated that Padma is his sister and the accused belonged to the same village and at about one and a half years back after returning home at about 11 a.m. from his shop when he opened the door of their house he saw a person running away from the house towards the east and he did not see him and at that time his sister aged about 14 years was sitting on the floor. On enquiry, she did not speak, as she is dumb, nor she expressed anything with signs. He further stated that in the evening himself and his parents and Padma went to Tenali Police Station and his father gave a report which was registered by police. He further stated that he is not educated but he can sign only. He further stated that Ex.P. 1 contained his signature. At this point of time a permission was sought from the Court to declare this witness as hostile. In the cross-examination he stated that the victim girl looked as if she was afraid. He admitted that the police obtained his signature on a report that was drafted and Ex.P. 1 was the said report. The other suggestion that when he opened the door he found the accused lying on his sister without any clothes, he denied. He also denied his chasing the accused. He also denied the suggestion that he is giving false evidence by taking Rs. 400/- from the accused. From his evidence it is clear that he admits the prosecution case to the extent at least that when he returned from the shop he saw some one in the house. But that person escaped. He also admitted in the cross-examination that he saw the person who escaped from a distance of 4 or 5 yards and he also admitted that the accused belonged to the same village and his house was one furlong away from his house and the accused was well known to him. Admittedly it was a day time at about 11 a.m. He admits his signature in the complaint. The complaint clearly discloses that he saw the accused lying naked on the victim girl Padma, but before the Court this part of the prosecution case, that it was the very accused who committed the offence, he does not support. It is not known for what reasons he is not supporting the prosecution case having admitted the complaint, Ex.P. 1. In fact in this case he is the only eye-witness in addition to the victim girl, P.W. 2, the mother of the victim girl, also supports the prosecution case to the extent that when she returned in the evening at about 6 p.m. P.W. 1 told her that at about 12 noon, on the same day, he has seen some person running away from the house and he could not identify him. She further states that the house of the accused and the house of Sri Papayya is separated by two houses. She further stated that the victim girl is dumb "but, she can hear" and she had not attained the age of puberty. She deposed that when she enquired Padma she did not say anything and his son P.W. 1 told her that along with P.W. 3 and Padma he went to the Police Station and gave a report. She denied the suggestion that she is not purposely supporting the prosecution case having taken Rs. 400/- from the accused. From the evidence of P.W. 2 also it is clear that filing of complaint as per Ex.P. 1 by P.W. 1 before the police is admitted. To the same effect also is the evidence of P.W. 3, Papayya, that his son P.W. 1 told him that somebody entered into his house and misbehaved with his daughter Padma and that she was weeping. From his evidence also it is clear that some one committed rape and she was weeping. Even to the same effect also is the evidence of P.W. 5 the brother of P.W. 3 and uncle of the victim girl. He stated in his evidence that P.W. 4, victim girl, is dumb but not deaf and she attends to household duties. Further he adds that neither P.W. 2 or P.W. 3 informed him anything about the commission of the offence. At any rate, the evidence of P.W. 5 may not be relevant in the sense that according to his own evidence and according to the complaint he is not one of the persons to whom the information was passed on regarding the commission of the offence.
11. Thus, from the evidence of P.Ws. 1, 2 and 3 though declared hostile it is at least proved that some one committed the offence on the victim girl, P.W. 4. Now, the next question would be; who is that person ? Is it the accused himself ? or somebody ? else. In order to find an answer to this question, now, I have to see the evidence of P.W. 4, the victim girl herself.
12. P.W. 4 is a dumb girl but as admitted by P.Ws. 2 and 5 she is not deaf. When she was put in the witness box, after examining her for some time, the learned District Judge upheld the contention of the counsel for the accused, that in case of a witness of this type, who is dumb, such witness can only be examined with the help of an expert, or some person who is very much familiar with the witness, and accordingly he appointed one Sri K. Basavannappa. Principal, Government Residential School, for deaf at Bapatla, as an interpreter to this witness. Oath was administered to him, the Court noted the deposition of P.W. 4 with the help of this interpreter. To the question whether the accused was known to her this witness knodded her head "vertically" and the interpreter stated that her answer was "yes". As to the question, what happened to her in the past the witness stated that the accused slightly lifted her petty coat (lenga). To the question what else was done to her the witness pointing her private parts (vagina), with her right hand, stated that something was done on her vagina, and to a further question whether the same thing was done in a sitting position or in a lying position, she stated with signs that it was in a lying position. To a further question what the accused did exactly, she stated that her petty coat was lifted and also her jacket and at this point of time she started weeping. But, she was consoled by the interpreter. To the question whether she agreed or objected to such an act she replied by knodding her head horizontally indicating that she did not agree for the act done by the accused. She admitted that the police recorded her statement. She has been cross-examined with the help of the interpreter. She admitted the suggestion that there is quarrel between his parents and the parents of the accused. She also admitted the suggestion that she was deposing since she has been asked to do so by her mother and grand mother. A last suggestion also was put to her that the quarrel between her parents and the parents of the accused was since a long time, she stated yes. Thus, from her evidence, it is clear that she clearly identified the accused. As admitted by P.Ws. 1 and 2, the brother and mother of the victim girl, the house of the accused is separated by two houses. From this it follows that the accused and the victim girl knew each other. Admittedly, it was day time at about 11 a.m. Even, if it is assumed for the sake of the argument that her brother P.W. 1 could not recognise the accused for whatever reason, but she had recognised the accused and absolutely there is no reason why, her evidence should be disbelieved. She has withstood the cross-examination and nothing could be elicited which could destroy the prosecution case. In fact relying on her evidence only the learned Sessions Judge, convicted that accused for the offences under S. 354 of I.P.C. Having regard to the entire evidence on record, I cannot accede to the contentions of the learned counsel for the accused that the prosecution has failed to prove its case.
13. The learned counsel for the accused nextly submitted that the impugned judgment and order based on the evidence of P.W. 4 only cannot be sustained. The victim girl being a dumb girl a further corroboration is necessary to sustain a conviction. On the other hand the learned Public Prosecutor submitted that such an evidence of P.W. 4 is admissible in view of S. 119 of the Evidence Act and absolutely there is no illegality or irregularity in the impugned order.
14. In order to appreciate the rival contentions on both sides, I am herewith extracting S. 119 of the Evidence Act which reads as under :
"A witness who is unable to speak may give his evidence in any other manner in which he can make it intelligible, as by writing or by sign; but such writing must be written and the signs made in open Court. Evidence so given shall be deemed to be oral evidence."
From this section of the Evidence Act, I find that a deaf and dumb person can be a competent witness. According to this section a witness who is unable to speak may give his or her evidence in any other manner he or she can make such evidence intelligible. The other manners in which a person can make his ideas intelligible would be either by a written word or by signs. The only restriction is that such expressions of the ideas by means of signs or writing should be made in open court. In the instant case P.W. 4 deposed before the Court with the help of signs. It is pointed out by the High Court of Kerala in "Kadungoth Alavi v. State of Kerala", 1982 Cri LJ 94, that the Court in order to understand and appreciate the evidence of such witnesses expressing their ideas with the help of signs it should necessarily seek the assistance of an expert so as to safely rely on such on evidence. I fully agree with the ratio of the said decision. The object of such principles is that by misunderstanding such signs an innocent person shall not be convicted and thus it is a rule of prudence that such an expert evidence would be necessary in the circumstances of this type. Moreover S. 282 of Cr.P.C. also enables the criminal Court to take the services of an interpreter for interpreting any evidence or statement, and such interpreter when required by the criminal court is bound to state the true interpretation of such evidence or statement. Having appreciated this position of law only the Court below appointed the Principal, Government Residential School for Deaf as an interpreter to this witness by administering the oath to him. It cannot be said that such a person who has been educating the deaf and dumb students is not an expert. From the evidence of P.W. 4 elicited with the help of the interpreter it is proved that not only the commission of the offences but also the identity of the offender who is the accused before the Court. Therefore, it is not possible to accede to the contention of the learned counsel for the accused that this evidence of P.W. 4 cannot be relied at all.
15. However, the learned counsel for the accused further submitted that in order to rely on the testimony of P.W. 4 a further corroboration is necessary. But, the Hon'ble Supreme Court in more than one judgment has declared the law that in case of sexual offences it would not be wise to insist upon other evidence to corroborate the evidence of the victim girl. For instance in "Krishan Lal v. State of Haryana" , the Hon'ble Supreme Court pointed out that "femenine tendencies to conceal the outrage of masculine sexual aggression are factors which are relevant to improbabalise the hypothesis of false implication." In "Bharwada Bhoginbhai Hirjibhai v. State of Gujarat" (1993) 2 Crimes 232 : (1983 Cri LJ 1096), the Hon'ble Supreme Court further pointed out that the refusal to act on the testimony of a victim of the sexual assault, only because of absence of corroboration, would only be adding insult to injury. The Hon'ble Supreme Court pointed out that corroboration is not the sine qua non for a conviction in rape cases. In view of this law declared by the Hon'ble Supreme Court it is clear that the evidence of P.W. 4 could be safely relied upon without insisting on any further corroboration and there is no error in the judgment of the Court below in relying on such evidence of P.W. 4, more so, in view of the fact that, a part of the prosecution case stands proved by the evidence of P.Ws. 1, 2 and 3 that such an offence was committed on her. Having regard to the tendency that sexual offences are normally committed in isolation there cannot be a better witness than the victim girl herself. P.W. 4 categorically stated that it was the accused who committed the offence in question. Therefore, the contention of the learned counsel for the accused urged in this behalf merits only for rejection.
16. The next question for my consideration would be as to what offence the accused has committed. The learned Public Prosecutor strenuously contended that on the basis of the evidence on record the accused committed an offence of rape under S. 376 of IPC and the Court below has erred in convicting him under S. 354, IPC. Alternatively he submitted that on the basis of the evidence on record it is established, at least, that there is an attempt on the part of the accused to commit rape in terms of S. 511 of IPC and as such the Court below has erred in convicting the accused under S. 354, IPC.
17. In order to appreciate this contention, I have to notice the evidence of P.W. 6. Dr. K. Purushottam Rao, Civil Assistant Surgeon, Government Hospital, Tenali and also the evidence of P.W. 9, Dr. Sd. Munwar Sultana (Lady Doctor) of Government Hospital, Tenali, P.W. 6 stated that he examined the accused on 14-2-91 at about 11 a.m. as requested by the Inspector of Police, Tenali. He deposed before the Court that he did not find any visible recent injuries on the body of the accused. He stated that the accused was moderately built with well developed secondary sexual characters. He further deposed that smegma was absent and freenum was intact. He further deposed that there were no stains of semen or blood on the MOs sent to the forensic science laboratory and Ex.P. 3 is the report of the Director of Forensic Science Laboratory. He further stated that after sexual intercourse smegma would be absent. Turning to the evidence of the lady doctor P.W. 9. I find that according to her evidence also there were no visible injuries on the body of this victim girl and she also did not find any tears on hymen and there were no external injuries near vulva. However, she added that "exeoriation near libia minora was present. In the cross-examination she explained that exeoriation means only readness which could be caused due to the fungal infection or due to swetting and consequential rubbing due to the friction of two parts of the body. She stated that the petty coat which was sent to forensic science laboratory discloses that blood was detected on it. However, she stated that semen and spermatozoa were not detected on any other items, and blood that was detected on the lenga of the girl was human as reported by the forensic science laboratory. She opined that on the basis of the chemical examination report the case appeared to be not a case of rape, and Ex.P. 11 is the wound certificate issued by her. From the evidence of P.Ws. 6 and 9 it is clear that in fact actual intercourse has not taken place. It is not in evidence of P.W. 4 that there was any penetration of the penis in the vagina and there is also no further evidence that at least accused put his penis on her private part. With the help of the signs dumb girl only indicated that the accused did something in her private part. Having regard to this evidence on record, in my considered opinion it cannot be said that the prosecution has brought home the guilt of the accused under S. 376 of IPC. Therefore, the main contention of the learned Public Prosecutor that the prosecution has proved the case for the offences under S. 376 of IPC cannot be accepted.
18. His alternative contention is that it is at least a case of an attempt to commit rape under S. 511 r/w 376, IPC. In order to appreciate this contention of the learned Public Prosecutor, I have to necessarily notice S. 511 of IPC which is extracted as below :
"511. Punishment for attempting to commit offences punishable with imprisonment for life or other imprisonment :-
Whoever attempts to commit an offence punishable by this Code with imprisonment for life or imprisonment, or to cause such an offence to be committed, and in such attempt does any act towards the commission of the offence, shall, where no express provision is made by this Code for the punishment of such attempt, be punished with imprisonment of any description provided for the offence, for a term which may extend to one-half of the imprisonment for life or, as the case may be, one half of the longest term of imprisonment provided for that offence, or with such fine as is provided for the offence, or with both.
Illustrations :
(a) A makes an attempt to steal some jewels by breaking open a box, and finds after so opening the box, that there is no jewel in it. He has done an act towards the commission of theft, and therefore is guilty under this section.
(b) A makes an attempt to pick the pocket of Z by thrusting his hand into Z's pocket. A fails in the attempt in consequence of Z's having nothing in his pocket. A is guilty under this section."
According to this section whoever "attempts", to commit the offence punishable by the IPC or causes such an offence to be committed and in such attempt does any act towards the commission of the offence shall be punished with imprisonment of any description provided for the offence, for a term which may extend to one and half of the imprisonment so prescribed, or with a fine or as provided for the offence or with both. From analysing S. 511 of IPC it is clear that an attempt to commit an offence or causing to commit an offence is made punishable if in such an attempt the accused does certain act towards the commission of the offence. In other words such an intention to commit an offence should be necessarily followed by preparation, with certain overt acts done, towards the commission of the offence. This Court in "In re T. Muniratnam Reddi" held that the law punishes a man not for guilty intention but for the overt acts done as a part of carrying out of that intention and the relevant portion is extracted as under :
"17) There are decided cases which recognise the existence of three stages in the commission of a crime : (i) intention to commit; (ii) preparation to commit; and (iii) attempt to commit. If the attempt results in the actual commission of the offence, the crime is complete. But the Indian Penal Code makes the attempt also an offence, if the accused does any act towards the commission of the offence. The distinction between preparation and attempt may be clear in some cases but, in most of the cases, the dividing line is very thin. Nonetheless, it is a real distinction.
The crucial test is whether the last act, if uninterrupted and successful, would constitute a crime. If the accused intended that the natural consequence of his act should result in death but was frustrated only by extraneous circumstances, he world be guilty of an attempt to commit the offence of murder. The illustrations in the section bring out such an idea clearly. In both the illustrations, the accused did all he could do but was frustrated from committing the offence of theft because the article was removed from the jewel-box in one case and the pocket was empty in the other case."
To the same effect also is the law declared by the Hon'ble Supreme Court also in "Om Prakash v. State of Punjab" . In this case the Hon'ble Supreme Court has pointed out that for the purpose of criminal liability it is sufficient if the attempt had gone so far, that the crime would have been completed but for extraneous intervention which frustrated its consummation. The two illustrations given to S. 511 also clearly indicate that in order to sustain a conviction under this section the accused has already done certain acts but he could not be successful in committing the offence because of an extraneous factor that there was no jewel in the box he has opened or there was no money in the pocket in which he had inserted his hand for committing theft. The Hon'ble Supreme Court in "Malkiat Singh v. State of Punjab" , has further clarified the position of law by pointing out that mere intention with certain preparations by itself is not enough to constitute an offence under S. 511 of IPC but the accused should have done certain acts in furtherance of such intention and preparation. The Hon'ble Supreme Court has pointed out that as long as the offender is at the stage of preparation he is not liable for punishment since it is still open to him to change his mind. Therefore the test is whether he has done certain overt acts in furtherance of his intention and preparation. The Apex Court has clarified the position of law with illustration as under :
"4. ....
In order that a person may be convicted of an attempt to commit a crime he must be shown first to have had an intention to commit the offence, and secondly to have done an act which constitutes the actus reus of a criminal attempt. The sufficiency of the actus reus is a question of law which had led to difficulty because of the necessity of distinguishing between acts which are merely preparatory to the commission of a crime, and those which are sufficiently proximate to it to amount to an attempt to commit it. If a man buys a box of matches, he cannot be convicted of attempted arson, however clearly it may be proved that he intended to set fire to a hay stack at the time of the purchase. Nor can he be convicted of this offence if he approaches the stack with the matches in his pocket but if he bends down near the stack and lights a match while he extinguishes on perceiving that he is being watched, he may be guilty of an attempt to burn it. Sir James Stephen, in his Digest of Criminal Law, Article 50, defines an attempt as follows : "an act done with intent to commit that crime, and forming part of a series of acts which would constitute its actual commission if it were not interrupted. The point at which such a series of acts begins cannot be defined, but depends upon the circumstances of each particular case."
19. By applying the above principle, now, I have to find out whether the accused is liable for punishment for his attempt to commit rape in terms of Section 511 of IPC. In the instant case as per the evidence disclosed by P.W. 4, the victim girl, it is established that the accused lifted her lenga and also her jacket and she was made to lie down on the floor and "did something" in her vagina and for that she did not agree. From this evidence it is clear that the accused not only intended to rape her, he made all the preparations by lifting her lenga or jacket and was doing something in her vagina. What was that "something done" the girl did not disclose and she started crying. Unfortunately she is a dumb girl, otherwise she would have narrated the entire sexual act. Her weeping itself indicates that she was not ready to disclose those acts before the Court. May be out of shy. Thus, morally I am convinced that in fact, there was an actual intercourse but since there is no legal evidence on record regarding the actual sexual act, in my humble opinion, at least there is sufficient legal evidence to hold that the accused attempted to commit rape on P.W. 4. The human blood found on her lenga, as per the report of the Forensic Science Laboratory indicates a struggle between the accused and P.W. 4 and in that struggle P.W. 4 might have received a minor external injury on her body. In other words accused has done all necessary acts in furtherance of his intention and preparation to commit rape. If P.W. 1, the brother of the girl were not to interfere by entering into the room after opening the door the accused would have succeeded in committing the offence. The reasoning of the Court below that P.W. 4 simply points out her vagina and rape nothing else, therefore, her evidence could not be taken that the accused placed his penis on her vagina but placed his hands on the vagina and therefore his acts do not amount to committing rape etc. cannot be accepted in toto. According to me the act of the accused, no doubt do not amount to committing offence of rape but making P.W. 4 naked and putting his hand on the vagina would be the acts done in his attempt to commit rape. Having regard to the material on record, it cannot be said that there was no attempt on the part of the accused to commit an offence of rape. Hence, I am of the opinion that it is a case in which the accused is liable for punishment u/S. 511, r/w. 376, IPC.
20. For the above reasons the impugned judgment and sentence passed by the Court below convicting the accused u/S. 354, IPC are liable to be set aside and the accused is liable to be convicted u/S. 511, r/w. 376 of IPC.
21. At this stage, I have to also note the petition filed u/S. 370(8) of Cr.P.C. seeking permission of the Court to compromise the matter on the basis of the petition said to have been filed before the I Additional Sessions Judge, Guntur in Crl.A. No. 175/92 which is now withdrawn by this Court and renumbered as Tr.Crl.A. No. 13/95. The said petition is said to have been signed by P.W. 4, Padma by putting her thumb impression. The said petition is not numbered but it is found at page 17 of the records sent by the learned Sessions Judge, Guntur. The learned counsel for the accused submitted that the offence u/S. 354, IPC is compoundable therefore by accepting the said petition the Court may permit P.W. 4 to compound the offence. He submitted that in order to buy peace it would be in the interest of justice and equity to do so. The learned counsel for the petitioner also produced before this Court P.W. 4 and her parents and also the accused contending that the parties have compromised the matter in the village. I requested the learned Public Prosecutor to ask P.W. 4 in telugu whether she admits the contents of the petition, but by moving her hand horizontally she indicated to the Court that she is not ready to compound the offence. Even otherwise from her evidence on record, it is clear that she was 14 years old as on the date of deposition on 24-6-92. The compounding petition is filed on 19-1-1993 on which date she continued to be a minor and in these circumstances she would not have filed the petition at all. However, there is another petition dt. 19-1-1993 describing P.W. 4 as a minor by next friend, father, as guardian to compromise the case. In the instant case P.W. 1, the brother, P.W. 2 the mother, and P.W. 3 the father, have not supported her case and they have been declared hostile. In these circumstances, it is difficult to accept the petition filed by P.W. 3 for the purpose of compounding of the offence on behalf of this minor girl, since he has adverse interest against her. At any rate, as I have already held above the accused is liable to be convicted u/S. 511, r/w. 376, IPC which is not compoundable. Having regard to these circumstances, in my considered opinion, it is not a fit case to permit P.W. 4 to compound the offence and accordingly this petition is liable to be dismissed.
22. Offence u/S. 376 of IPC is punishable with an imprisonment which shall not be less than 7 years, but it may be for life or for a term which may extend to 10 years and shall also be liable for fine unless the woman raped is his own wife. In the instant case the woman is not his wife, therefore, the minimum sentence u/S. 376, IPC would be not less than 7 years, and in view of Section 511, IPC, such sentence may be up to half of the sentence imposeable for the offence in question.
Having regard to the circumstances of this case that the accused is a young man, I propose to take the minimum sentence imposable u/S. 376, IPC at 7 years and half of the same would come to three and half years. However, the ends of justice would be met if I convict him with Rigorous Imprisonment for 3 years and a fine of Rs. 5,000/- and in default, to suffer RI for 3 months. From out of the fine amount collected from the accused an amount of Rs. 3,000/- shall be paid to Tota Padma (PW4) and the said amount shall be deposited in a fixed deposit and the same shall be paid to her after she attains the age of majority. However, it is made clear that the accused is entitled for set-off for the period of remand, if any.
23. In the result, the appeal filed by the accused in Tr.Crl.A. No. 13/95 is hereby dismissed and Crl.A. No. 175/92 filed by the State is partly allowed to the extent indicated above and the petition filed for compounding the offence u/S. 370(8) of Cr.P.C. is hereby dismissed.
24. Appeal dismissed.