Bombay High Court
Sheikh Hafeez @ Bhurya @ Bhuru S/O. ... vs The State Of Maharashtra Thr. Senior ... on 4 April, 2018
Author: Rohit B. Deo
Bench: Rohit B. Deo
1 apeal71.17
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
CRIMINAL APPEAL NO.71 OF 2017
Sheikh Hafeez @ Bhurya @ Bhuru
s/o Sheikh Hasan, Aged about 38 years,
Occupation - Labourer,
R/o Satranjipura, Near Maldhakka
No.1, P.S. Lakadganj, Nagpur. .... APPELLANT
VERSUS
The State of Maharashtra,
through Senior Police Station Inspector,
Police Station Lakadganj, Nagpur. .... RESPONDENT
______________________________________________________________
Shri Mir Nagman Ali, Counsel, and Ms. Radhika Bajaj, Counsel
(appointed) for the appellant.
Shri N.B. Jawade, Additional Public Prosecutor for the respondent.
______________________________________________________________
CORAM : ROHIT B. DEO, J.
DATED : 4
APRIL, 2018.
th
ORAL JUDGMENT :
The challenge is to the judgment and order dated 20-5-2016 rendered by the learned Special Judge-1, Nagpur- in Special Child Protection Case 173/2014, by and under which the appellant- accused is convicted for offence punishable under Section 6 read with Section 18 and Section 5(m) of the Protection of Children from Sexual ::: Uploaded on - 04/04/2018 ::: Downloaded on - 05/04/2018 02:16:20 ::: 2 apeal71.17 Offences Act ("POCSO Act" for short) and is sentenced to suffer rigorous imprisonment for seven years and to payment of fine of Rs.10,000/- and is further convicted for offence punishable under Section 376(2)(i) read with 511 of the Indian Penal Code ("IPC" for short) for which no separate sentence is imposed.
2. Heard Ms. Radhika Bajaj, learned Counsel appointed to represent the accused, since Shri Mir Nagman Ali was discharged by order dated 19-3-2018. However, Shri Mir Nagman Ali requested that he be permitted to address the Court, which request is accepted. In these circumstances, both Ms. Radhika Bajaj and Shri Mir Nagman Ali have advanced similar submissions on behalf of the accused. Heard Shri N.B. Jawade, learned Additional Public Prosecutor for the respondent.
3. The common plank in the submissions of Ms. Radhika Bajaj and Shri Mir Nagman Ali, is that the victim is not proved to be a child within the meaning of Section 2(d) of the POCSO Act, the evidence on record is not confidence inspiring and in the alternate, and arguendo, offence punishable under Section 6 read with Section 18 and Section 5(m) of the POCSO Act and Section 376(2)(i) read with ::: Uploaded on - 04/04/2018 ::: Downloaded on - 05/04/2018 02:16:20 ::: 3 apeal71.17 Section 511 of the IPC is not made out and at the most the accused can be convicted for offence punishable under Section 354-A(i) of the IPC and Sections 7 and 8 of the POCSO Act. Per contra, Shri N.B. Jawade, learned Additional Public Prosecutor submits that the judgment and order is unexceptionable. The evidence on record clinchingly establishes that the accused crossed the line between preparation and attempt and is rightly convicted for attempt to rape and attempt to commit offence of aggravated penetrative sexual assault.
4. The genesis of the prosecution lies in report dated 03-9-2014 (Exhibit 35) lodged by P.W.2 Ruksana Begum at the Lakadganj Police Station alleging that accused Sheikh Hafeez @ Bhurya @ Bhuru sexually assaulted her daughter aged eleven years. The gist of the report is thus :
P.W.2 and her husband have two sons and a daughter (victim) who is studying in the 5 th Standard in Hindustan High School at Wardhaman Nagar. The accused is a tenant of Lalita Chikkamwar.
The school hours of the victim are 7-00 a.m. to 12-00 noon. 03-9-2014 was a holiday for the victim's school. At 3.30 or thereabout she went out to play. P.W.2 had planned to go out with the victim at 4-00 p.m. or thereabout and she called the victim who did not respond. Since the ::: Uploaded on - 04/04/2018 ::: Downloaded on - 05/04/2018 02:16:20 ::: 4 apeal71.17 victim used to go to the house of the accused to play with his sister-in-
law Samina, P.W.2 went to the house of the accused. The door of the house of the accused was open. P.W.2 pushed aside the curtain to the door and went inside the house of the accused. She saw that the victim was lying on a cot and the accused, with trouser and knicker lowered, was lying on the person of the victim. P.W.2 raised an alarm, the accused responded by referring to P.W.2 as "mad woman". P.W.2 took the victim home, her husband was not at home and he was informed about the incident telephonically. After her husband returned home, P.W.2, her husband and the victim went to the Lakadganj Police Station and lodged report.
5. On the basis of the said report and printed first information report (Exhibit 36) offence punishable under Section 354- A(i) of the IPC was registered against the accused. Investigation ensued, upon completion of which charge-sheet was submitted in the Court of Special Judge. The learned Special Judge framed charge (Exhibit 5) under Section 376(2)(i) of the IPC and Section 5(m) punishable under Section 6 of the POCSO Act. The accused abjured guilt and claimed to be tried. The defence is of false implication. The defence is that the accused is falsely implicated at the instance of his ::: Uploaded on - 04/04/2018 ::: Downloaded on - 05/04/2018 02:16:20 ::: 5 apeal71.17 landlady who wanted the accused to vacate the tenanted premises.
6. P.W.1 Kailash Chikkamwar is examined to prove spot panchnama (Exhibit 33). The cross-examination of P.W.1, who is the son of the landlady of the accused is directed at the bringing on record the foundation for the defence of false implication. However, the core or substratum of the testimony of P.W.1 is not shaken.
7. P.W.2 Ruksana Begum is the informant and the mother of the victim. She has deposed that the victim is born on 19-7-2004 which would mean that the victim was aged 10 years 1 month 14 days as on the date of the incident. In the cross-examination, there is absolutely no challenge to the date of birth of the victim, with the result, that the submission of the learned Counsel for the accused that the victim is not proved to be a child within the meaning of Section 2(d) of the POCSO Act, must be rejected. P.W.2 has deposed that the school of the victim was closed on 03-9-2014. The victim attended the tuition classes, returned home and had her meals and then went to the house of the accused to play with Sabina, the 12 years old sister-in-law of the accused. P.W.2 went to the house of the accused at 4-00 p.m. to fetch the victim. She pushed aside the curtain to the door and entered ::: Uploaded on - 04/04/2018 ::: Downloaded on - 05/04/2018 02:16:20 ::: 6 apeal71.17 the house. The pant and knicker of the victim and the pant and knicker of the accused were partially removed. The victim and the accused were alone and the volume of the T.V. was loud. The accused was sleeping on the person of the accused and on seeing P.W.2 he ran away. P.W.2 shouted and the accused uttered words "ixyh vkSjr gS"
(the woman is mad). P.W.2 brought the victim to her house, went to the police station at 8-00 p.m. with the victim, her husband thereafter came to the police station. P.W.2 lodged the report.
Major part of the cross-examination is directed at bringing on record that the house of the accused is situated in an extremely crowded locality, and on the road. An endeavour is made to bring on record that the accused is falsely implicated at the instance of his landlady. Few omissions are brought on record, which are not really significant and do not touch the core of the testimony.
8. However, it may be noted that while in the first information report it is specifically stated that the accused was engaged in obscene act with the victim, in the evidence the only statement is that the accused slept on the person of the victim. At this stage, the evidence of the victim may be considered. The victim states that when she went to the house of Sabina at 3-00 p.m., the accused was alone in ::: Uploaded on - 04/04/2018 ::: Downloaded on - 05/04/2018 02:16:20 :::
7 apeal71.17 the house. The accused allowed to sit on the cot, removed her clothes and removed his clothes. The accused inserted his male organ in the private part of the victim and at that point in time her mother came to the house of the accused to call her. She was taken home by her mother and the victim disclosed the incident to her grandmother and father and then the family went to the police station to lodge the report.
9. P.W.6 Dr. Rajesh Shamrao Chintanwar medically examined the victim on 04-09-2014. He did not notice any external injury. Hymen was intact. No sign of sexual intercourse was noticed. P.W.6 proves report Exhibit 37.
10. P.W.4 Abdul Kalam is the father of the victim who has deposed that at 7-15 p.m. he received a call from his wife P.W.2 who disclosed the incident. He came home and then family went to the police station where his wife P.W.2 lodged the report is the deposition.
11. The evidence of P.W.4 is inconsistent with the evidence of his wife P.W.2 to the extent that P.W.2 has deposed that she and the victim went to the police station and her husband P.W.4 came to the ::: Uploaded on - 04/04/2018 ::: Downloaded on - 05/04/2018 02:16:20 ::: 8 apeal71.17 police station directly.
12. It would be apposite to refer to the observations of the Hon'ble Apex Court in Madan Lal ..vs.. State of Jammu and Kashmir, AIR 1998 SC 386 which read thus :
"11. In this context it is appropriate to notice an argument advanced by Mr. Jain, learned senior counsel appearing for the appellant to the effect that in the absence of any penetration into the vagina the offence of rape cannot be said to have been established and it will not be possible to hold that the accused had attempted to commit rape on the prosecutrix, and therefore, it would at the most amount to an offence of indecent assault under Section 354 I.P.C. We are unable to accept this contention. Since, if the evidence of the prosecutrix is to be believed, and we do believe the same, the offence committed cannot but he held to be one of attempt to commit rape. The prosecutrix's evidence clearly establishes the fact that the accused spread the blanket on the floor and forcibly laid her on the blanket and thereupon the said accused forcibly opened the cord of the salver of the prosecutrix and kept it apart and then forcibly ride upon her and on that point of time caught hold of her head with one hand and closed her mouth with the other and had kept his penis qua her uterus and was doing some thing and then the accused was trying to penetrate his penis but it did not penetrate and had gripped his penis with his hand and was rubbing it against her uterus which he was doing by jumping.
12. The difference between preparation and an attempt to commit an offence consists chiefly in the greater degree of determination and what is necessary to prove for an offence of an attempt to commit rape has been committed is that the accused has gone beyond the stage of preparation. If an accused strips a girl naked and then making her flat on the ::: Uploaded on - 04/04/2018 ::: Downloaded on - 05/04/2018 02:16:20 ::: 9 apeal71.17 ground undresses himself and then forcibly rubs his erected penis on the private part of the girl but fails to penetrate the same into vagina and on such rubbing ejaculates himself then it is difficult for us to hold that it was a case of merely assault under Section 354 I.P.C. and not an attempt to commit rape under Section 376 read with 511 I.P.C. In the facts and circumstances of the present case the offence of an attempt to commit rape by accused has been clearly established and the High Court rightly convicted him under Section 376 read with 511 I.P.C".
It would also be apposite to refer to the following observations of the Apex Court in Koppulla Venkat Rao ..vs.. State of Andhra Pradesh, AIR 2004 SC 1874 which read thus :
"8. The plea relating to applicability of Section 376 read with Section 511 IPC needs careful consideration. In every crime, there is first, intention to commit, secondly preparation to commit it, thirdly, attempt to commit it. If the third stage, that is, attempt is successful, then the crime is complete. If the attempt fails the crime is not complete, but law punishes the person attempting the Act, Section 511 is a general provision dealing with attempts to commit offences not made punishable by other specific sections. It makes punishable all attempts to commit offences punishable with imprisonment and not only those punishable with death. An attempt is made punishable, because every attempt, although it falls short of success, must create alarm, which by itself is an injury, and the moral guilt of the offender is the same as if he had succeeded. Moral guilt must be united to injury in order to justify punishment. As the injury is not as great as if the act had been committed, only half the punishment is awarded.
9. 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 ::: Uploaded on - 04/04/2018 ::: Downloaded on - 05/04/2018 02:16:20 ::: 10 apeal71.17 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. The word "attempt" is not itself defined, and must, therefore, be taken in its ordinary meaning. This is exactly what the provisions of Section 511 require. An attempt to commit a crime is to be distinguished from an intention to commit it, and from preparation made for its commission. Mere intention to commit an offence, not followed by any act, cannot constitute an offence. The will is not to be taken for the deed unless there be some external act which shows that progress has been made in the direction of it, or towards maturing and effecting it. Intention is the direction of conduct towards the object chosen upon considering the motives which suggest the choice. Preparation consists in devising or arranging the means or measures necessary for the commission of the offence. It differs widely from attempt which is the direct movement towards the commission after preparations are made. Preparation to commit an offence is punishable only when the preparation is to commit offences under Section 122 (waging war against the Government of India) and Section 399 (preparation to commit dacoity). The dividing line between a mere preparation and an attempt is sometimes thin and has to be decided on the facts of each case. There is a greater degree of determination in attempt as compared with preparation.
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 more preparation, but falling short of actual consummation, and, possessing, except for failure to consummate, all the elements of the ::: Uploaded on - 04/04/2018 ::: Downloaded on - 05/04/2018 02:16:20 ::: 11 apeal71.17 substantive crime. In other words, an attempt consists in it the intent to commit a crime, falling short of, its actual commission or consummation/completion. 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.
12. The sine qua non of the offence of rape is penetration, and not ejaculation. Ejaculation without penetration constitutes an attempt to commit rape and not actual rape. Definition of "rape" as contained in Section 375 IPC refers to "sexual intercourse" and the Explanation appended to the Section provides that penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape. Intercourse means sexual connection. In the instant case that connection has not been established. Courts below were not correct in their view.
13. When the evidence of the prosecutrix is considered in the proper perspective, it is clear that the commission of actual rape has not been established. However, the evidence is sufficient to prove that attempt to commit rape was made. That being the position, conviction is altered from Section 376 IPC to Section 376/511 IPC. Custodial sentence of 3 and 1/2 years would meet the ends of justice. The accused who is on bail shall surrender to custody to serve remainder ::: Uploaded on - 04/04/2018 ::: Downloaded on - 05/04/2018 02:16:20 ::: 12 apeal71.17 of his sentence."
13. The burning issue is whether the accused crossed the line between preparation and attempt, whether after making preparation to commit the offence, the accused did any overt act or took any step towards the commission of the offence. In my opinion, considering the evidence on record, it would be extremely difficult to record a finding with any degree of certainty that the accused attempted to commit rape or to commit offence under Section 5(m) punishable under Section 6 read with Section 18 of the POCSO Act. The evidence of the child victim and her mother P.W.2 is too inconsistent to be reconciled in so far as the overt acts attributed to the accused. The child victim has deposed that the accused penetrated his male organ in her private part. This evidence must necessarily be discarded. Not only is the evidence inconsistent with the medical evidence, the mother of the child victim who claims to be a witness to the incident has only deposed that the accused was lying on the person of the child victim and the clothes of the accused and the victim were half removed. The victim, on the other hand, states that she was made to sit on the cot and then the accused inserted his male organ in her private part. It is not the version of the victim that the accused was lying on her person. In view of the ::: Uploaded on - 04/04/2018 ::: Downloaded on - 05/04/2018 02:16:20 ::: 13 apeal71.17 inconsistent versions of the victim and her mother P.W.2, I am not persuaded to concur with the learned Special Judge who holds that the prosecution has proved an attempt to rape and an attempt to commit the offence of aggravated sexual penetration.
14. However, on a holistic reappreciation of evidence on record, offence punishable under Section 10 read with Section 9(m) of the POCSO Act and Section 354-A(i) of the IPC is clearly established. This Court is obligated to separate the chaff from the grain. The evidence need not be discarded in entirety despite the apparent inconsistency between the evidence of P.W.2 and the child victim. The evidence to the extent, that the modesty of the child victim was outraged and she was sexually assaulted within the meaning of Section 7 of the POCSO Act, is believable and acceptable. Since the victim was less than 12 years old, the offence would be of aggravated sexual assault as defined in Section 9(m) and punishable under Section 10 of the POCSO Act which attracts a minimum sentence of five years.
15. The judgment and order impugned convicting the accused for offence under Section 5(m) punishable under Section 6 read with Section 18 of the POCSO Act and Section 376(2)(i) read with Section ::: Uploaded on - 04/04/2018 ::: Downloaded on - 05/04/2018 02:16:20 ::: 14 apeal71.17 511 of the IPC is set aside and instead the accused is convicted for offence under Section 354-A(i) of the IPC and Section 9(m) punishable under Section 10 of the POCSO Act and is sentenced to suffer rigorous imprisonment for five years. The sentence of fine is maintained.
16. The fees of the learned appointed Counsel are quantified at Rs.5,000/.
17. The appeal is partly allowed in the afore stated terms.
JUDGE adgokar ::: Uploaded on - 04/04/2018 ::: Downloaded on - 05/04/2018 02:16:20 :::