Madhya Pradesh High Court
Mahendra Kumar vs The State Of M.P. on 27 June, 2017
Cr.A. No.1590/1999 1
HIGH COURT OF MADHYA PRADESH
BENCH AT INDORE
SINGLE BENCH : Hon'ble Shri Justice Ved Prakash Sharma
Cr.A. No. 1590 / 1999
MAHENDRA KUMAR S/O KISHORILALJI
Vs.
THE STATE OF MADHYA PRADESH
-x-x-x-x-x-x-x-x-x-x-x-
Shri Rakesh Kumar Vyas, learned counsel for the appellant.
Shri Pankaj Wadhwani, learned Public Prosecutor for the
respondent-State.
-x-x-x-x-x-x-x-x-x-x-x-
JUDGMENT
(Delivered on 27th day of June, 2017) This appeal preferred under Section 374 of Cr.P.C. is directed against judgment and order dated 03.12.1999 rendered by First Additional Sessions Judge, Mhow, Indore in S.T. No.370/1993 whereby appellant Mahendra Kumar has been convicted under Section 376/511 and 306 of IPC and has respectively, been sentenced to undergo five years and ten years rigorous imprisonment and to pay a fine of Rs.1,000/- and Rs.2,000/- with usual default stipulation.
2. The prosecution story, as having emerged during the trial, briefly stated, is that on 21.09.1992 the prosecutrix, a married lady having four sons, was residing in Joshi Mohalla, Mhow Indore. Allegedly appellant Mahendra Kumar, who was earlier residing in the same locality in the neighbourhood of the prosecutrix was having acquaintance with her family. On 21.09.1992 husband of the prosecutrix was away at Bombay. Appellant Mahendra Kumar taking advantage of the Cr.A. No.1590/1999 2 situation around 9:00 pm came to the house of the prosecutrix and gave some lessons to her children including Sachin P.W.4 the eldest one. Allegedly, thereafter, he consumed some liquor and despite being asked by the prosecutrix to leave her house, stayed there. Around post-midnight hours, the appellant suggested the prosecutrix to have sex which she declined. Thereafter, the appellant to have forcible intercourse pulled away the 'Saree' worn by the prosecutrix, who feeling highly agitated, poured kerosene oil on her body, and thereafter, set herself ablaze resulting in serious burn injuries. The appellant tried to extinguish the fire in order to rescue the prosecutrix and in this process, his shirt also caught fire. On an alarm being raised by Sachin P.W-4, the son of the prosecutrix, the persons residing in the vicinity including Heeralal P.W-7 ('Jeth' of the prosecutrix), Madanlal P.W-11 ('Devar' of the prosecutrix'), Rameshwar P.W-5 and Gopal P.W-9 reached at the spot. The appellant was caught red handed on the spot. He was thrashed by the people who had assembled there. The prosecutrix who had sustained serious burn injuries was immediately shifted to Civil Hospital, Mhow where Dr. Paritosh Dubey P.W-12 examined her and vide report Exhibit- P/16 found 80% superficial to deep bones on her body. He further found smell of kerosene oil coming from the body. Considering her serious condition, she was referred to M.Y. Hospital, Indore where, as per prosecution on being interrogated by Raghuveer Singh Chouhan P.W-7, the then Assistant Sub-inspector, Police Station-Mhow, in presence of Cr.A. No.1590/1999 3 Dr. G.S. Chouhan, she gave a statement vide Exhibit-P/14 stating therein that as the appellant wanted to ravish her, therefore, out of anger and agitation, she poured kerosene oil on her body and set herself ablaze. Allegedly, on the following day i.e. 23.09.1992, at around 9:05 am, the appellant Mahendra Kumar informed the police regarding this incident which was recorded in the daily diary of Police Station-Mhow at serial No.1998 (Exhibit-P/1A). The appellant was taken into custody and was sent for medical examination. Dr. Mahesh Tiwari (P.W.8) examined him and vide report Exhibit- P/9 found as many as nine injuries on his person; most of them being either contusions or abrasions. Next day i.e on 23.09.1992 the prosecutrix succumbed to the burn injuries. In this regard, inquest report was registered at Police Station- Mhow. Head Constable G.L. Sisodiya, vide inquest Exhibit P/3, found that the prosecutrix died because of the burn injuries. Her dead body was sent for post-mortem examination. Dr. Raj Kumar Singh P.W-6, who was posted as Associate Professor, MGM College, Indore, on 23.09.1992, conducted autopsy on the dead body and vide Exhibit-P/7 opined that the prosecutrix died because of cardio-respiratory arrest as a result of burn injuries, and their complications. The visra of the prosecutrix was preserved for chemical examination. Apart this, two slides of vaginal swab were also prepared and handed over to the police in a sealed cover.
3. A case under Section 376/511 of IPC was registered against the appellant. The site of occurrence was Cr.A. No.1590/1999 4 inspected by Prakash Chandra Dubey (P.W.13) the Techinical Officer of forensic team. Apart this, Raghuveer Singh Chouhan (P.W.10) the then A.S.I. Police Station-Mhow visited the place of occurrence. He vide seizure memo Exhibit-P-11, seized simple and kerosene mixed earth, burnt petticoat which was smelling of kerosene and remains of burnt clothes from the spot. He after inspection of the spot also prepared site map Exhibit-P/12. A key ring along with an empty cane of kerosene oil, three burnt match sticks, semi-burnt mattress and three empty pouches of liquor and some broken pieces of bangle were also recovered from the spot vide Exhibit-P/13. Raghuveer Singh Chouhan (P.W.10) interrogated the prosecutrix on 22.09.1992 at around 07:45 pm at M.Y. Hospital, Indore in presence of Dr. G.S. Chouhan and recorded her statement vide Exhibit-P/14. The semi-burnt shirt of the accused was also seized by him vide seizure memo Exhibit-P/5. Witnesses were interrogated.
4. After usual investigation a charge-sheet was laid before competent Magistrate who after complying with provisions of Section 207 of Cr.P.C. committed the case to the Court of Session from where it was made over for trial to First Additional Sessions Judge, Mhow Indore. The learned Trial Judge framed charges under Section 306 and 376/511 of IPC against the appellant who abjured the guilt and claimed to be tried.
5. The prosecution in order to bring home the guilt examined as many as 13 witnesses including Sachin P.W.4 Cr.A. No.1590/1999 5 (son of the prosecutrix), Heeralal P.W.7 and Madanlal (P.W.11). R.S. Chouhan (P.W.9) carried out the investigation while Dr. Raj Kumar Singh P.W.6 is Autopsy Surgeon. Dr. Paritosh Dubey (P.W.12) had medically examined the prosecutrix before her death. Apart this, document Exhibit- P/1A to P/18 were also marked in evidence.
6. The incriminating circumstances appearing against the appellant in the prosecution evidence were brought to his notice during his examination under Section 313 of Cr.P.C. The appellant denied the incriminating circumstances and claimed total innocence, however, he chose not adduce any evidence in defence.
7. The learned trial Judge on the basis of evidence brought before the Court, vide the impugned judgment, convicted and sentenced the appellant as stated hereinabove in para-1 of the judgment. The conviction and sentence is challenged on the ground that the learned trial Court has committed a grave error of law in holding the appellant guilty under Section 306 of IPC despite the fact that the appellant had never instigated, encouraged, incited or suggested the deceased to commit suicide. It is submitted that the alleged act of attempt to commit rape may be a reason to commit suicide but that by itself will not amount to abatement to commit suicide. As regards conviction under Section 376/511 of IPC it is contended that the learned trial Court has not properly appreciated the legal position while recording conviction against the appellant under Section 376/511 of IPC though Cr.A. No.1590/1999 6 there is nothing to indicate that appellant attempted to commit rape against the prosecutrix and that the act attributed to the appellant at the most may be categorized as outraging the modesty of the prosecutrix. It is submitted that learned trial Court committed serious error of law in relying upon Exhibit- P/14 and treating the same as dying declaration despite the fact that same was not recorded by the Executive Magistrate though enough time was there to get it recorded by Executive Magistrate. It is also submitted that no evidence was brought on record to demonstrate that the prosecutrix was mentally fit to make a statement in the nature of dying declaration. It is submitted that the trial Court has not properly appreciated the law and facts of the case, therefore, impugned judgment is liable to be set aside.
8. Per contra, it is submitted by learned Public Prosecutor that the learned trial Court on proper and elaborate appreciation of evidence and after considering various relevant aspects of the case including the admissibility of Exhibit-P/14 as dying declaration has recorded conviction and sentence against the appellant, and therefore, no ground is made out to interfere in the impugned judgment.
9. Heard the learned counsel for the parties and perused the record. The questions of consideration is whether the impugned judgment is contrary to the law and facts of the case and whether the learned trial Court has committed factual and legal error in recording conviction and sentence against the appellant?
Cr.A. No.1590/1999 710. The prosecution in order to prove its case has primarily relied upon the testimony of Sachin P.W.4, who is the son of the prosecutrix, dying declaration and Exhibit-P/14 said to have been made by deceased to Raghuveer Singh Chouhan P.W.10 in presence of doctor. Apart this, prosecution has also relied upon Exhibit-P/1A, which is daily diary entry said to have been recorded on the basis of information furnished by appellant Mahendra Kumar with regard to the alleged incident.
11. A serious challenge has been made by the defence with regard to the admissibility of Exhibit-P/1A which is said to be the report lodged at the instance of the appellant. The contentions is that being confessional in nature it is hit by Section 25 of the Evidence Act. The learned trial Court has dealt with this issues in para 7- 14 of the impugned judgment. A bare perusal of Exhibit-P/1A reveals that it is confessional in nature because the facts constituting the offence of attempt to commit rape have been described therein. In Aghnoo Nagesia Vs State of Bihar AIR 1966 SC 119 the Supreme Court has clearly held that where the accused gave the First Information report to the police, the fact of his giving that information is admissible under Section 8 of Evidence Act and if it is a non-confessional one, it is admissible under Section 21 of the Evidence Act. However, a confessional statement cannot be used against the accused under Section 25 except to the extent it is permitted under Section 27 of the Evidence Act. It is further held that if a statement contains an Cr.A. No.1590/1999 8 admission of an offence, not only that admission but also every other admission of an incriminating fact contained in the statement is part of the confession; and little substance and content would be left in sections 24, 25 and 26 if proof of admissions of incriminating facts in confessional statement is permitted. In the instant case Exhibit P/1A being confessional in nature cannot be held to be admissible in view of the aforesaid dictum of law. The learned trial Court, relying upon decisions in Pakla Narayan Swami Vs. King Emperor AIR 1939 PC 47 and Palvinder Kaur Vs. State AIR 1952 SC 354, has held that Exhibit-P/1A is admissible in evidence, however, the stand so taken appears to be totally misplaced in view of the clear proposition of law laid down by the Apex Court in the case of Aghnoo (supra).
12. Next comes the testimony of Sachin P.W.4 who is the son of the prosecutrix. This witness has testified regarding the alleged incident in a clear and consistent manner. As per Sachin P.W.4, the accused on the date of alleged incident came to his house at about 9:00 pm and that he along with his three brothers was present in the house at that time. This witness has further deposed that appellant sent him to bring two pouches of liquor from the shop and that he along with his brother Nitin had brought two pouches of liquor which was consumed by the appellant, and thereafter, another quarter of foreign liquor was brought by them at the instance of the appellant which too was consumed by him. This witness has testified that though his mother had asked the Cr.A. No.1590/1999 9 appellant to go to his house, however, he did not left and slept inside their house. As deposed by Sachin (P.W.4), at around 12:30 in the midnight, he saw the accused pulling away the 'sari' worn by his mother. He has further deposed that thereafter his mother poured kerosene upon herself and set herself afire, whereupon he called his elder father and other persons of the locality. Sachin has been subjected to detailed cross-examination but except for few insignificant omissions here and there his testimony has remained intact with regard to the substantial part of the story. It is not the case of the defence that this witness had any previous ill-will, enmity and animosity against the appellant and for that reason was interested in falsely implicating him. This witness in para-14 had clearly denied the suggestion that his mother caught fire while cooking food and that she was dissatisfied with her life. Noticeably, no such specific defence has been taken by the appellant in his examination under Section 313 of the Cr.P.C. Otherwise also post-midnight time is not the time for cooking meals and at the time of spot inspection no utensils, which are usually used for cooking, were found. On the contrary as deposed by R.S. Chouhan (P.W.10) he seized from the spot an empty cane of kerosene oil, three burnt match sticks, two empty pouches of liquor and one of foreign liquor apart from some pieces of broken bangles. Thus the defence raised on behalf of the appellant cannot be accepted.
13. As regards dying declaration, Raghuveer Singh Chouhan (P.W-10) has deposed that on 22.09.1992, at around Cr.A. No.1590/1999 10 07:45 pm, he recorded the statement of the prosecutrix at M.Y. Hospital in presence of two witnesses namely Kishorilal and Madanlal (P.W.4). This witness has further testified that Exhibit-P/14 was recorded in presence of Dr. G.S. Chouhan, who had also put his signature over Exhibit-P/14. Though Dr. G.S. Chouhan has not been examined by the prosecution, however, Madanlal P.W-11 who has been declared hostile on further examination has admitted in para-3 to 8 that the prosecutrix has made statement as per Exhibit-P/14.
14. The learned trial Court has discussed the evidence with regard to dying declaration in para 37 to para 47 of the impugned judgment. Referring to and relying upon the decision in case of Ganga Ram Vs State of Madhya Pradesh AIR 1971 SC 953, the learned trial Judge has stated that there is no prohibition against admissibility of dying declaration recorded by police officer provided the same is found to be trustworthy and reliable. The law with regard to admissibility of dying declaration recorded by police officer is very clear. Though it has been held by the apex Court in number of cases that efforts should be made to get the dying declaration recorded by Executive Magistrate but if in the peculiar set of circumstances the dying declaration is recorded by police officer then the same cannot be thrown overboard only on the ground that it was so recorded by police officer. In Charipalli Shankarrao v. Public Prosecutor, AIR 1995 SC 777, the apex Court observed that if the police Head Constable had made attempt to procure services of Magistrate, but Magistrate was Cr.A. No.1590/1999 11 not available, then in such a situation, Police Head Constable was competent to record the dying declaration. In P.V. Radhakrishna v. State of Karnataka, JT 2003 (6) SC 84, RLW 2003(4) SC 557, Hon'ble the apex Court found the dying declaration recorded by police official in presence of attending doctor was found to be trustworthy and credible. In Gulam Hussain and Anr. V. Shabnam, AIR 2000 SC 2480, it is held that the dying declaration recorded by the Police Officer before investigation commenced could not be challenged on the ground that it was recorded by the investigating officer.
15. Raghuveer Singh Chouhan (P.W-10) has clearly stated in para-11 that he made efforts to call the Magistrate for recording dying declaration of prosecutrix, however, availability of the Executive Magistrate could not be managed. He has further stated that before recording the statement of the prosecutrix, he verified from the doctor that the decease is in a fit state of mind for making statement. Exhibit-D/2 is the relevant document which bears the endorsement of the concerned doctor.
16. Learned counsel for the appellant referring to Exhibit-D/3 has contended that the prosecutrix was not in a fit state of mind to make dying declaration. Here it may be noted that the prosecutrix was shifted from Civil Hospital, Mhow to M.Y. Hospital Indore. Though at Civil Hospital, Mhow, as per opinion of the doctor, she was not in a fit state of mind to make statement, however, subsequently, as per certification, Cr.A. No.1590/1999 12 vide Exhibit-D/2, the prosecutrix was found fit for making statement. Testimony of Raghuveer Singh Chouhan (P.W-10) in this regard stands corroborated with Exhibit-D/2. In the considered opinion of this Court the testimony of Raghuveer Singh Chouhan (P.W-10) deserves acceptance because he may not have any axe to grind against the appellant so as to record a false statement.
17. Thus, the evidence comprising of ocular testimony of Sachin (P.W-4) and dying declaration Exhibit-P/14 which has been proved by Raghuveer Singh Chouhan (P.W-10) sufficiently establishes that on the fateful night, the appellant visited the house of the prosecutrix, with whom he was having previous acquaintance, consumed some liquor in her house, and thereafter, instead of leaving the house stayed there and almost in the post-midnight hours tried to have sexual intercourse with the prosecutrix against her will which was resisted and opposed by her and out of agitation, the prosecutrix poured kerosene oil on her body and set herself ablaze.
18. In the aforesaid premises, the question arises whether offence under Section 376/511 and 306 of IPC are made out against the appellant?
19. The law with regard to abetment to commit suicide has been dealt elaborately by this Court in the case of Bittu @ Girriraj vs. State of M.P. (M.Cr.C. No.1742/2016 Order dated 08.03.2017, Bench Indore), wherein the legal position has been considered in the light of various pronouncements of Cr.A. No.1590/1999 13 Hon'ble the apex Court; relevant paras whereof run as under:
09. 'Abetment to commit suicide' is an offence under Section 306 of IPC punishable with imprisonment for a term which may extend to 10 years and fine.
Expression 'Abetment' has been defined in Section 107 of IPC which runs as under :-
"107. Abetment of a thing.-- A person abets the doing of a thing, who- First.- Instigates any person to do that thing; or Secondly.- Engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing; or Thirdly.- Intentionally aids, by any act or illegal omission, the doing of that thing. Explanation 1.-A person who, by willful misrepresentation, or by willful concealment of a material fact which he is bound to disclose, voluntarily causes or procures, or attempts to cause or procure, a thing to be done, is said to instigate the doing of that thing. Explanation 2.- Whoever, either prior to or at the time of the commission of an act, does anything in order to facilitate the commission of that act, and thereby facilitates the commission thereof, is said to aid the doing of that act"
10. In the State of Punjab Vs. Iqbal Singh, AIR 1991 SC 1532, the apex Court explaining the meaning and expanse of word 'abetment' as used in Section 107 of IPC, has held as under:
"Abetment" as defined by Section 107 of the IPC comprises (i) instigation to do that thing which is an offence, (ii) engaging in any conspiracy for the doing of Cr.A. No.1590/1999 14 that thing, and (iii) intentionally aiding by any act or illegal omission, the doing of that thing. Section 108 defines an abettor as a person who abets an offence or who abets either the commission of an offence or the commission of an act which would be an offence. The word "instigate" in the literary sense means to incite, set or urge on, stir up, goad, foment, stimulate, provoke, etc. The dictionary meaning of the word "aid"
is to give assistance, help etc.
11. In Ramesh Kumar vs. State of Chhatisgarh, (2001) 9 SCC 618, a three Judge Bench of the apex Court explaining the meaning and connotation of word "instigation" has held as under ( para.
20):
"20. Instigation is to goad, urge forward, provoke, incite or encourage to do "an act". To satisfy the requirement of instigation though it is not necessary that actual words must be used to that effect. or what constitutes instigation must necessarily and specifically be suggestive of the consequence. Yet a reasonable certainty to incite the consequence must be capable of being spelt out. the present one is not a case where the accused had by his acts or omission or by a continued course of conduct created such circumstances that the deceased was left with no other option except to commit suicide in which case an instigation may have been inferred. A word uttered in the fit of anger or emotion without intending the consequences to actually follow cannot be said to be instigation."
12. Taking note of the fact that each person's suicidability pattern is different from others and that each person has his Cr.A. No.1590/1999 15 own idea of self-esteem and self-respect, the apex Court in M. Mohan Vs. State, Represented by the Deputy Superintendent of Police, 2011 CRI.L.J. 1900 (S.C.), referring to its earlier decision in Chitresh Kumar Chopra Vs. State (Govt. of NCT of Delhi), 2009 (16) SCC 605, held that to constitute abetment, there should be intention to provoke, incite or encourage the doing of an act by the accused.
13. Reference can also be made to the decision of the apex Court in Gangula Mohan Reddy Vs. State of Andhra Pradesh, 2010 (Suppl.) Cr.L.R. (SC) 261, wherein the allegation was that the deceased was beaten by the accused and was also subjected to harassment, due to which he committed suicide by consuming poisonous substance. The apex Court referring to its earlier decisions in Mahendra Singh & Anr. Vs. State of M.P., (1995) Supp. 3 SCC 731 and Ramesh Kumar Vs. State of Chhatisgarh, (2001) 9 SCC 618, holding that offence of abetment to commit suicide under Section 306 of IPC is not made out, observed as under:
"Abetment involves a mental process of instigating a person or intentionally aiding a person in doing of a thing. Without a positive act on the part of the accused to instigate or aid in committing suicide, conviction cannot be sustained".
14. In Deepak V. State of M.P., 1994 Cri. LJ 767 (M.P.), the deceased girl was threatened with defamation, if she refused to have sexual intercourse with two accused; within an hour she committed suicide leaving a suicidal note. Accepting the plea that the act of the accused might Cr.A. No.1590/1999 16 have been a reason for committing suicide but the same did not constitute abatement within the meaning of Section 306 read with Section 107 of the IPC, it was held that -
"neither there was any intention nor any positive act on the part of the accused to instigate her or aid her in committing suicide. The two accused persons, therefore, cannot be held guilty of the offence under Section 306 of the I.P.C. and their conviction on that count by the trial Court, is liable to be set aside."
15. In the case of Sanju @ Sanjay Singh Sengar Vs. State of Madhya Pradesh, AIR 2002 S.C. 1998, the accused was charged under Section 306 of IPC for abetting his brother-in-law to commit suicide; the accused allegedly said to him to 'go and die'; the deceased left behind a suicide note stating that accused is responsible for his death. It was held that words "go and die" do not constitute instigation for mens rea of offence under Section 307 of IPC.
16. In Mahendra Singh and Anr.
Vs. State of M.P., 1996 Cri.L.J. 894=1995 Supp (3) SCC 731, a case prior to the insertion of Section 113-A in the Evidence Act, the charge under Section 306 IPC proceeded on the basis of dying declaration of the deceased to the effect that -
"My mother-in-law and husband and sister-in-law (husband's elder brother's wife) harassed me. They beat me and abused me. My husband Mahendra wants to marry a second time. He has illicit connections with my sister-in-law. Because Cr.A. No.1590/1999 17 of these reasons and being harassed I want to die by burning."
Considering legal sustainability of the same the apex Court held as under:
"Abetment has been defined in Section 107 I.P.C. to mean that a person abets the doing of a thing who firstly instigates any person to do a thing, or secondly, engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing, or thirdly, intentionally aids, by any act or illegal omission, the doing of that thing. Neither of the ingredients of abetment are attracted on the statement of the deceased."
17. From the aforesaid pronouncements of the apex Court, it flows that to constitute abetment to commit suicide, there must be material, prima-facie, indicating that accused with a positive act on his part instigated, incited, aided or provoked the person to commit suicide.
18. In Devendra and others vs. State of Uttar Pradesh and another, (2009) 7 SCC 495, it has been held as under:
"when the allegations made in the first information report or the evidences collected during investigation do not satisfy the ingredients of an offence, the superior courts would not encourage harassment of a person in a criminal court for nothing."
20. Examined in light of the aforesaid legal position, what can be said is that though the act of the appellant in Cr.A. No.1590/1999 18 pulling down the sari of the prosecutrix was a cause for the prosecutrix to commit suicide, however, that by itself cannot be categorize as abatement. The learned trial Court without properly appreciating this legal aspect has recorded conviction against the appellant under Section 306 of IPC which in the aforesaid premises cannot be sustained.
21. As regards conviction under Section 376/511 of IPC, it is contended on behalf of the appellant that even if the entire case as set-up by the prosecution is accepted, an offence under Section 376/511 of IPC will not be made out and at the most, it can be said that modesty of the prosecutrix was outraged by the appellant which is an offence under Section 354 of IPC.
22. Per contra, it is submitted by learned Public Prosecutor that the appellant had undressed the prosecutrix, and therefore, an offence under Section 376/511 was made out. To appreciate the contentions raised in this regard it would be apposite to refer to few judicial pronouncement on the point. In the case of Madanlal Vs State of Jammu & Kashmir, AIR 1998 SC 386, the Apex Court has held that difference between preparation and attempt to commit an offence consists chiefly in the greater degree of determination and what is necessary to prove that an offence of attempt to commit rape has been committed is that the accused has gone beyond the state of preparation. In State of Madhya Pradesh Vs. Babulal, 1960 Cri.L.J 612 the accused had caught hold of the prosecutrix and after lying her down on the ground Cr.A. No.1590/1999 19 forcibly snatched her 'lugra', and thereby made her naked. On cries being raised by the prosecutrix her uncle reached on the spot and seeing him the accused fled away from the spot. In this factual background it was held that the facts did not disclose that the accused was determined to have sexual intercourse at all events. The Court delineating the difference between attempt to commit rape and offence of committing indecent assault observed as follows;-
" The distinction between an attempt to commit rape and to commit indecent assault is sometimes very meagre. 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. 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".
23. In the case of Ankariya Vs. State of M.P., 1991 Cri.L.J 751(M.P.) the accused loosened cord of the petticoat of the prosecutrix and was about sit on her waist. When she raised alarm, the appellant fled away. In these premises, it was held that the accused is guilty for offence punishable under Section 354 of IPC and not under Section 376/511 of IPC.
24. In the instant case as per dying declaration of the prosecutrix, the appellant pulled away the 'Saree' worn by the prosecutrix in order to commit sexual intercourse with her, therefore, she poured kerosene oil upon herself and set herself ablaze. Considering this factual situation, it cannot be said Cr.A. No.1590/1999 20 that the appellant attempted to commit rape upon the prosecutrix rather the case will be covered under Section 354 of IPC which deals with outraging the modesty of the women.
25. The learned trial Court while recording the conviction under Section 376/511 of IPC has not considered the aforesaid relevant factual and legal aspect of the matter, therefore, conviction recorded under Section 376/511 of IPC cannot be sustained and same deserves to be modified to one under Section 354 of IPC.
26. Accordingly, this appeal is partly allowed. The conviction and sentence recorded against the appellant under Sections 306 and 376/511 of IPC is hereby set aside. Instead the appellant is convicted under Section 354 of IPC .
27. As regards sentence, in the facts and circumstances of the case, the appellant is sentenced to undergo rigorous imprisonment for two years and to pay fine of Rs.2,000/- and in default of payment of fine to further undergo rigorous imprisonment for three months.
28. The appellant is on bail. He is directed to surrender before the learned trial Court within twenty days from today. In the event of his failure to surrender the learned trial Court shall secure his presence by coercive means to send him to jail so as to serve out the jail sentence imposed against him.
Certified copy as per rules.
(Ved Prakash Sharma) Judge Ravi