Delhi District Court
State vs . Akroor on 17 August, 2013
1
IN THE COURT OF MS. ILLA RAWAT : ADDL. SESSIONS JUDGE
(NORTHWEST)01, ROHINI : DELHI
(Sessions Case No. 83/12)
Unique ID case No. 02404R0277872012
State Vs. Akroor
FIR No. : 429/12
U/s : 376(2)(f) r/w Section 511 IPC
P.S. : Narela
State Vs. Akroor
S/o Bahul Miyan
R/o House no. C526,
JJ Colony, Bawana,
Narela, Delhi.
Date of institution of case 19.10.2012
Date on which, judgment has been reserved14.08.2013
Date of pronouncement of judgment 14.08.2013
JUDGMENT:
1 The case of the prosecution is that on 11.08.2012 on receipt of Ex.PW11/A i.e. DD No.22B at P.S. Narela, HC Om Prakash and Ct. Naresh Kumar proceeded to house No.C637, J.J. Colony, Bawana, Narela, where they met complainant Rume Bibi and her husband Anwar Hussain and their 3 ½ old daughter i.e. the prosecutrix. Smt. Rume Bibi informed them that accused Akroor had attempted to commit rape upon her SC No. 83/12 State Vs. Akroor Page Nos. 1 of 25 2 daughter and that she wanted action be taken against him. HC Om Prakash passed on this information to SHO, who directed W/SI Santosh to reach the spot. Ms. Nazma, NGO member was also sent to the spot and in her presence IO made inquiry from Rume Bibi and the prosecutrix whereupon complainant reiterated that accused had attempted to commit rape upon the prosecutrix. IO recorded statement of prosecutrix vide Ex.PW2/A wherein she deposed that she was residing at house No.C633, J.J. Colony, Bawana, Narela, Delhi, with her family and that on that day at about 7:30 AM, her daughter had gone to neighbourer's house in the morning, while playing. While she was searching for her daughter to give her medicine, one girl from the neighbourhood told her that prosecutrix had gone to house of Akroor. When complainant went there and opened the door of house of accused, she saw that he had made prosecutrix lie down on the floor on a mat (Chatai) and had removed her underwear and had also opened chain of his pant and was lying over the prosecutrix. On seeing the complainant, accused got up and pulled up her daughter's underwear and also closed chain of his pant and sat there holding his head. In the meantime, complainant's husband came there and caught hold of his accused Akroor by his hand and pulled him out and also informed police at 100 number. The complainant further stated that she had seen white stain on the underwear and the stomach of the prosecutrix and she prayed that action be taken against the accused for his misdeeds. IO prepared rukka on the said complaint and got the said FIR Ex.PW1/A registered on the basis of said complaint. She also took the prosecutrix for medical examination to SRHC Hospital. The mother of the prosecutrix refused for internal medical examination of prosecutrix on account of her tender age. However, the underwear of the prosecutrix was seized and sealed by the concerned doctor and handed over to IO, who seized the same vide seizure memo SC No. 83/12 State Vs. Akroor Page Nos. 2 of 25 3 Ex.PW6/A. During the course of investigations, IO inspected the site and prepared the site plan and also recorded the statement of the witnesses. The accused was arrested in the case vide arrest memo Ex.PW2/C and was personally searched vide personal search memo Ex.PW3/A. During the course of investigation, IO moved an application for recording of statement of prosecutrix u/s.164 CrPC, however, learned MM declined to do so while observing that prosecutrix was unable to speak and directed that the custody of the prosecutrix was handed over to her mother. After completion of the investigation, the charge sheet was prepared and filed in the court for trial. 2 Upon committal of this case to the court of Sessions, charges for the offence under Sections 376 (2) (f) read with Section 511 IPC were framed against the accused Akroor. However, accused pleaded not guilty and claimed trial and thereafter, the case was fixed for prosecution evidence.
3 In order to prove its case, prosecution has examined 16 witnesses. Complainant, Prosecutrix and other public witnesses : 4 The PW7, Chandni, has been put forth by the prosecution as a material link witness. As the witness was aged about 14 years, some preliminary questions were put to her to ascertain her capacity to understand the questions and to answer them reasonably and after being satisfied with the capacity of the witness to depose her statement was recorded under oath. The witness stated that on 08.11.2012, mother of prosecutrix was searching for her to give her medicine and that she (PW7) was washing SC No. 83/12 State Vs. Akroor Page Nos. 3 of 25 4 utensils in front of her house and when mother of the prosecutrix asked her about the prosecutrix, she told her (mother of prosecutrix) that prosecutrix was in house of accused Akroor as she had seen her going there. The witness identified the accused correctly.
5 The witness was put a leading question by the Ld. Addl. PP regarding the date of incident and she termed it correct that the incident had taken place on 11.08.2012 and stated that she had forgotten the correct date due to lapse of time. 6 During her crossexamination, the witness stated that police had inquired from her regarding the incident in the present case, some days after the incident. She termed it correct that no inquiry was made from her by the Police on the day of incident. She further stated that she had told the mother of prosecutrix at about 8:00 AM that she had seen prosecutrix going in the house of accused. She also deposed that on the day of incident, she had gone to the school and that her school hours are from 7:00 AM to 2:00 PM. The witness volunteered to state that on that day, she had gone late to the school at about 8:30 AM because of the incident and that she was not scolded in the school for going late as her mother had gone with her.
7 The PW2 Rume Bibi is the complainant in the present case. She is the mother of prosecutrix and she deposed that year before the date on which she appeared to depose, on the last day of Ramzan, her daughter (prosecutrix) aged about three and half years had gone down from their house on the first floor, while playing. She further stated that she was searching for her daughter as she was to be given medicine and SC No. 83/12 State Vs. Akroor Page Nos. 4 of 25 5 during that search, she went down and inquired from other children playing there about her daughter, on which, one child told her that her daughter had gone to the house of accused Akroor and accordingly, she went to the house of accused Akroor. She further stated that the door of the house of accused was shut, but not bolted from inside and that she opened the door and went inside and saw that her daughter was lying down on the floor and accused Akroor was with her and that the underwear of her daughter had been pulled down a little (thoda sa utra hua tha) and the chain of the pant, which accused was wearing, was open. She further stated that on seeing her, her daughter got up and the accused also closed the chain of his pant and after picking her daughter, she raised alarm, hearing which, neighbours gathered and her husband also came there and pulled accused out of his house by his hand. She further stated that there was a white spot on the underwear of her daughter and that someone informed the police and police came to the spot and took them, her daughter and accused to PS Narela, where her complaint Ex. PW2/A was recorded and thereafter, her daughter was sent for medical examination to hospital, but she refused for her medical examination because of her tender age and she signed on the MLC Ex. PW2/B of her daughter to this effect and that her daughter's underwear was handed over to the doctor at hospital. She further stated that accused was arrested vide arrest memo Ex. PW2/C and that accused was asked about the incident in her presence and whatever, he told was reduced to writing by the police and she also identified her signatures on the disclosure statement Ex. PW2/D of the accused. During her further examination, the witness correctly identified the underwear of her daughter as Ex. P1 and stated that it was the same underwear which was worn by her daughter at the time of incident and was taken by the doctor at the time of medical examination of her daughter. SC No. 83/12 State Vs. Akroor Page Nos. 5 of 25 6 8 During crossexamination, the PW2 expressed her lack of knowledge about the fact whether she had stated to the police in her statement that she used to reside on the first floor of H. No. 637 J.J. Colony Narela and that she had gone down from her house on the first floor and was searching for her daughter and had inquired from the other children playing there about her daughter. She further stated that the jhuggi of accused was just opposite to her jhuggi and that it was about 7 or 7:30 AM, when she had made search for her daughter for giving her medicine as she was suffering from fever, cold and cough and that the timing of giving medicine was 7 7:30 AM, 11:30 PM and 8 8:80 PM in the night. She further stated that since, her jethani was busy in doing her household work, she had not asked from her about her daughter and that one more child, who had been playing there had already told her that her daughter had gone to the house of accused while playing. She further stated that when she got down from 1st floor to search her daughter, there was no child playing in gali and only one girl was making chapati on a chulla in the gali. She further stated that one of the son of accused was newly married and her daughter used to go to the house of accused to see the newly wedded bride and that on the day of incident also, the said newly wedded bride was in the house of accused on the first floor and that on the ground floor, the accused was alone. She further stated that the wife of accused was also residing with him in the said jhuggi, but the witness volunteered to state that she was on the first floor and sleeping at the time of incident and after hearing the noise she got up and came down.
9 The prosecutrix / victim child aged about 4 years, was examined as PW13. SC No. 83/12 State Vs. Akroor Page Nos. 6 of 25 7 Since the victim child was small tender age child aged about 4 years and so her statement was recorded in the Chamber in camera proceedings. The mother of the victim child as well as Ms. Vandana Chauhan, Advocate from DCW, were permitted to remain present with the child as support witnesses during the said proceeding. Learned defence counsel Ms. Sunita Tiwari and learned Additional PP were also present. The accused was sitting in the Court room itself and he was not called inside the Chamber so that the witness did not get overawed or apprehensive by the presence of the accused. Further, as the victim was a small child, she was provided colours and some toys to keep her occupied. When the victim child started playing comfortably, some questions were put to her and then her statement was recorded in question answer form. The proceedings, during which, statement of prosecutrix was recorded are reproduced in toto, so that salient features of her deposition are clearly brought out. In order to ascertain whether the witness was capable of understanding questions and answering them, some questions had been put to her.
Q. Aap ka naam kaya hai? Ans. S. (Prosecutrix) Q. Aap ke papa ka kya naam hai ? Ans. Izhar. Q. Aap ke arms kaha hai? A. The witness has pointed towards her fingers. Q. Aap ki aankhe kaha hai ? Ans. The witness has pointed towards her eyes. SC No. 83/12 State Vs. Akroor Page Nos. 7 of 25 8 Q. Aap lal rang pehchante ho ? Ans. The witness picked up red colour marker pen with which she was playing
from the other marker pens of green, blue and orange colour and handed over the same.
Q. Aap ko kya khana pasand hai ? Ans. Phool gaubhi.
The witness was given a packet of biscuit and asked if she wants to eat the same. The witness opened the packet of biscuit with her teeth to eat the same.
Q. Aap school jate ho? Ans. Ha. Q. Aap kaun si class me padate ho? Ans. Dusari. Q. Aap ke school me aap ki saheli he ? Ans. Ha. Q. Uska kya naam hai? Ans. Sana.
The witness also looked around the chamber and pointed towards the pictures of ships and water and uttered word "Nauka".
After being satisfied that the witness was capable of understanding questions and answering them reasonably, considering her age, her testimony was recorded in question answer form as under. However, considering her tender age she was not been administered oath.
SC No. 83/12 State Vs. Akroor Page Nos. 8 of 25 9
Q. Aap batao kaya hua tha ? Ans. Khalu ne yeh utara tha. (The witness pointed towards her frock and lifted it.) Q. Aap ne aur kaya pehana tha? A. Jangiya. Q. Phir kaya hua? Ans. Jangiya uttar diya. Q. Phir kaya kiya? Ans. The witness has pointed towards her private parts and stated that "Kar raha tha". Q. Aap roye the? Ans. Nahi. Q. Phir kaya hua? Ans. Mama aa gayi. Q. Aap khalu ko pehchante ho? Ans. Ha. Q. Khalu aapke ghar ke kaya rehta hai? Ans. Us ghar me. The witness had made a gesture towards the front of her. 10 During her crossexamination by learned defence counsel, the witness stated as under : Q. Aap school jate ho? Ans. Ha. Q. Aap ko kaun padata hai? SC No. 83/12 State Vs. Akroor Page Nos. 9 of 25 10 Ans. Madam. Q. Aap ko apni madam ka naam malum hai? Ans. The witness remained quiet. Q. Aap ne school me kaya pada tha? Ans. Imli. Q. Aap khalu ka naam jante ho? Ans. The witness has uttered words "Kakroor". 11 The PW3 Anwar Hussain is the father of the prosecutrix and he deposed
almost on the same lines as his wife/PW2 and stated that about one and a half months ago, in the month of Ramzan on Sunday, her daughter (prosecutrix) aged about three and half years, was not well, so he told his wife to give her medicine and that in the mean time, the prosecutrix had gone down from the first floor and was playing in the gali. He further deposed that his wife also went down to bring the prosecutrix and on inquiry made by her from the neighbourhood, she was told by one child that prosecutrix had gone to the house of accused Akroor and that his wife went to the house of accused Akroor and pushed the door and went in. He further stated that after sometime, her wife called him downstairs and told him that she had found prosecutrix with her underwear pulled down and that the chain of pant of accused was also open and that there was some white substance on the underwear of their daughter and on this, he pulled the accused out of the house by holding his hand and gave a call to the police, who arrived and took all of them to the police station, where statement of his wife was recorded. He further deposed about medical examination of his daughter, arrest and personal search of the accused and about disclosure statement made by the accused. SC No. 83/12 State Vs. Akroor Page Nos. 10 of 25 11 12 During crossexamination, the witness termed it correct that he had not seen the incident himself and whatever he had stated was told to him by his wife. The witness volunteered to state that he had gone to the house of the accused and had seen white stain on his trouser and also on the underwear of his daughter. 13 The PW14, Nazma is the member of NGO Nav Srishti and she deposed that on 11.8.2012, she was called at about 11 am, by PW16 IO WSI Santosh Kumari at Bawana, JJ Colony, in the jhuggi cluster and on reaching there, she found PW2 Smt. Rume Bibi and her daughter/PW13 i.e the prosecutrix aged about 4 years along with W/SI Santosh. She further stated that she also accompanied PW2 and the prosecutrix to Hospital at Narela, where the mother of the prosecutrix refused for her medical examination as the child was very small and that she gave counseling to PW2 Smt. Rume Bibi as well as prosecutrix and also advised mother of prosecutrix to take better care of her in future. She also stated that statement of PW2 Smt. Rume Bibi was recorded by the IO in her presence and she further identified the accused.
Doctor witnesses : 14 The PW4, Dr. Naveen Kumar, CMO, Satyawadi Raja Harish Chand Hospital, Narela, Delhi, proved the MLC of the accused as Ex. PW4/A, which was prepared by Dr. Shreesh and stated that Dr. Shreesh had given observations on the MLC Ex. PW4/A of accused regarding the sexual capability of the patient as "no evidence to suggest that patient is/was incapable of doing sexual intercourse" SC No. 83/12 State Vs. Akroor Page Nos. 11 of 25 12 15 The PW5, Dr. Swapneel, who was working in S.R.H.C Hospital, deposed that on 11.08.2012, the prosecutrix aged about 31/2 years was brought by lady Ct. Rajbala with alleged history of sexual assault by a 60 years old male Akroor on 11.08.2012 at 8.00 am and that he was of the opinion that patient should be examined under anesthesia for further internal examination, for which, she was required to be referred to Higher Center and that PW2 Smt. Rume, mother of the child refused for medical examination of the child and he accordingly, made endorsement in this regard on the MLC of the child. He proved the said MLC as Ex. PW2/A. The PW5 further deposed that he seized the undergarments of the child for forensic examination and made endorsement in this regard at point encircled C on the MLC Ex. PW2/A. Police witnesses : 16 The PW11, Ct. Pinki, deposed that on 11.08.2012, she was working as DD Writer at P.S. Narela from 8:00 AM to 4:00 PM and that on that day at about 8:21 AM, information was received from the wireless operator to the effect that there was a quarrel at CBlock, Plot No.637, J.J. Colony, Bawana and she recorded this information vide DD No.22B, attested copy of which was proved by her as Ex. PW11/A. 17 The PW1, HC Ram Karan, is the duty officer and he proved the endorsement made by him on rukka as Ex.PW1/A and the computerized copy of FIR, which was got recorded by him through the computer operator, as Ex.PW1/B. SC No. 83/12 State Vs. Akroor Page Nos. 12 of 25 13 18 The PW15, HC Om Prakash, is the initial IO in the present case. He deposed that on 11.08.2012, DD No.22 B i.e. Ex.PW11/A, was entrusted to him for inquiry and that he proceeded to CBlock, Plot No.637, J.J. Colony, Bawana, with PW9 Ct. Naresh and found public persons collected there with accused Akroor s/o Bahul Miya r/o C586, J.J. Colony, Bawana, who had been apprehended by them. The PW15 also met complainant Rume Bibi, who told him that accused had attempted to commit rape upon her daughter aged about 3 ½ years. The PW15 informed the SHO of police station regarding these facts and requested him to send some lady officer. Thereafter PW6 L/Ct. Raj Bala and PW16 W/SI Santosh reached the spot. The PW14 Nazma, a member of NGO, also reached the spot. The PW16 SI Santosh Kumari made inquiry from complainant and recorded her statement on which she prepared rukka and sent it to PS through PW9 Ct. Naresh for getting the case FIR registered. The PW15 was instructed to take accused to hospital for medical examination along with PW8 Ct. Bhupinder while IO W/SI Santosh went to hospital along with Nazma, Ct. Raj Bala and parents of prosecutrix to SRHC Hospital, Narela, for medical examination of the prosecutrix. The PW15 further deposed that he reached hospital at about 1:00 PM for medical examination of accused and at about 1:15 PM, PW9 Ct. Naresh also reached there with copy of FIR and original Tehrir which he handed over to the IO in the PS. The accused as well as prosecutrix were got medical examined by 4:45 PM and thereafter accused was interrogated by the IO and was arrested vide memo Ex.PW2/C and was personally searched vide memo Ex.PW3/A. After completing the proceedings in the hospital, PW15 and PW8 Ct. Bhupinder took accused to police station. The IO also reached PS along with the prosecutrix, her parents, PW6 L/Ct. Raj Bala and PW14 Nazma, in a separate vehicle. The accused then made disclosure statement Ex.PW2/D SC No. 83/12 State Vs. Akroor Page Nos. 13 of 25 14 in presence of PW15.
19 The PW16, W/SI Santosh, is the main IO of the case and she deposed regarding the investigations conducted by her and various documents prepared by her during the course of investigations. She proved the statement made by complainant, which was recorded by her as Ex.PW2/A ; endorsement made by her on rukka as Ex.PW16/A ; site plan prepared by her at the instance of complainant Rume Bibi as Ex.PW16/B. She further deposed about getting the medical examination of prosecutrix conducted at SRHC Hospital vide MLC Ex.PW2/A and giving directions to PW15 HC Om Prakash for medical examination of the accused and his examination vide MLC Ex.PW4/A. She proved the seizure memo, vide which exhibits taken from accused and prosecutrix were seized, as Ex.PW8/A and Ex.PW6/A respectively. She further proved the arrest and personal search memos of accused as Ex.PW2/C and Ex.PW3/A respectively and the disclosure statement of accused as Ex.PW2/D. She further deposed about recording of statement of prosecutrix in question answer form, in presence of her mother, in PS vide Ex.PW16/C. The PW16 then deposed about taking of blood samples of accused by concerned doctor at SRHC Hospital on 12.08.2012 which was seized by her vide memo Ex.PW16/D. The PW16 lastly deposed about sending of the exhibits to FSL and proved the FSL result of DNA Finger Printing Unit as Ex.PX.
20 During her crossexamination, PW16 gave explanation for delay in recording statement of PW Chandani by stating that since at that time she was looking after rape cases of several police station, due to exigencies of work, she could not SC No. 83/12 State Vs. Akroor Page Nos. 14 of 25 15 record of statement of PW Chandani earlier.
21 The PW6, L/Ct. Raj Bala, had joined investigations of the case with IO W/SI Santosh on 11.08.2012 and deposed regarding the same.
22 The PW8, Ct. Bhupinder and PW9, Ct. Naresh, had also joined investigations of the case with the IO, at different stages, and deposed regarding the same. They also proved their signatures on various memos prepared by the IO. 23 The PW10, Ct. Sudesh Kumar, had taken the exhibits of the present case to FSL on 16.08.2012 and deposed regarding the same.
24 The PW12, HC Rajesh, was posted as MHCM at PS Narela Industrial Area at the relevant time and he produced the register No.19 and proved the relevant entries as Ex.PW12/A to Ex.PW12/D. He further deposed about the sending of the exhibits of the case to FSL Rohini through Ct. Sudesh Kumar on 16.08.2012. 25 After closing of prosecution evidence, statement of accused Akroor was recorded u/s 313 Cr.P.C. The accused stated that he is innocent and had been falsely implicated in the case by the Police after obtaining his thumb impressions on blank papers at the instance of complainant due to monetary disputes. The accused declined to lead evidence in his defence.
26 Arguments have been addressed by learned counsel for the accused as well SC No. 83/12 State Vs. Akroor Page Nos. 15 of 25 16 as learned Additional PP for the State.
27 Learned Additional PP has contended that from the statement of the prosecutrix, her mother / complainant and PW Chandani, prosecution has succeeded in proving its case against the accused beyond reasonable doubt and has accordingly prayed that accused be convicted u/s.376(2)(f) r/w Section 511 IPC. 28 Learned counsel for the accused on the other hand has contended that prosecution has miserably failed to prove its case against the accused and that accused has been falsely implicated in the present case. She has further contended that statement of victim child cannot be relied upon because she is only four years old and she as well as the other child witness namely Chandani were tutored to depose against the accused. Lastly, it is contended that, if at all, only offence u/s.354 IPC is made out against the accused. She has relied upon following judgments in support of her contentions : 1 Tukaram Govind Yadav Vs. State of Maharashtra, 2011 Crl. L.J. 1501.
29 I have heard the arguments put forward by ld. Addl. PP and learned counsel for accused Akroor and have carefully gone through the record of the case. I have also carefully considered the evidence adduced by the prosecution in support of its case.
30 In the present case, accused is alleged to have attempted to commit rape SC No. 83/12 State Vs. Akroor Page Nos. 16 of 25 17 upon a child aged about 3 ½ years. In order to prove its case, prosecution has examined PW7 Chandani, who had seen prosecutrix / child victim going in the house of accused Akroor and when mother of prosecutrix came searching for her, PW7 informed her (mother of the prosecutrix) that she had seen prosecutrix going in house of accused Akroor. It was on basis of information given to her by PW7 Chandani that the mother of the prosecutrix i.e. PW2 Rume Bibi went to the house of the accused and saw that her daughter was lying on the floor with her underwear pulled down and accused present with her with chain of his pant open. The PW2 has clearly deposed about these facts in her examination before the Court. She also stated that on seeing her, accused got up and closed the chain of his pant and that she picked up her daughter and that she had seen white spot on the underwear of her daughter and on the pant of the accused. The fact that immediately after the incident, there was a white stain on the trouser of the accused and the underwear of the prosecutrix has also been stated by PW3 Anwar Hussain, during his crossexamination when he was put a question in response to which he termed it correct that he had not seen the incident himself, however, he volunteered and stated that he had gone to the house of the accused and had seen white stain on his trouser and also on the underwear of his daughter. Further the prosecution has also examined the prosecutrix / victim child as PW13 and this tender age child, despite her age, could clearly state about the acts of the accused which, coupled with testimony of PW2 Rume Bibi and PW3 Anwar Hussain, lead only to one conclusion that the accused had attempted to commit rape upon the prosecutrix. The PW13 has clearly stated in her deposition before the Court that accused, whom she referred to as 'Khalu', had removed her jangiya (underwear) and then she pointed towards her private parts and uttered words 'kar raha tha' and then she stated that 'mama aagayi'. Her testimony SC No. 83/12 State Vs. Akroor Page Nos. 17 of 25 18 also established the proximity of the house of accused with her own house when she stated 'uss ghar me' while simultaneously gesturing in front of her meaning thereby that house of accused was in front of her house. A specific question was put to the witness during her crossexamination regarding her knowledge about the name of 'Khalu' to which PW13 replied by stating 'Kakroor' meaning thereby 'Akroor' which she could not pronounce. Though it has been stated that PW13 has been tutored, there is no plausible explanation how a child of tender age of four years could be tutored to respond spontaneously to specific questions put to her at the time of her examination in the Court. In fact the mother of the prosecutrix has also explained the reason why prosecutrix went to house of accused Akroor in her crossexamination in response to question put to her by defence counsel when she stated that one of the sons of the accused had got married recently and prosecutrix used to go to house of accused to see his newly wedded wife.
31 Learned counsel for accused has contended that the acts of accused do not fall within the definition of attempt as mere intention to commit an offence not followed by any act is not an offence. In this regard it would be relevant to refer to judgment in case of Ramkripal Vs. State of Madhya Pradesh, 2007 (2) RCR (Cri.), wherein it has been held that : "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 ; he fails due to reasons beyond his control, he is said to have SC No. 83/12 State Vs. Akroor Page Nos. 18 of 25 19 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 SC No. 83/12 State Vs. Akroor Page Nos. 19 of 25 20 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." 32 It has been further held in this judgment that : "the sine qua non of the offence of rap is penetration, and not ejaculation. Ejaculation without penetration constitutes an attempt to commit rape and not actual rape.
33 The abovementioned observations were given by the Hon'ble Apex Court while deposing off an appeal filed against conviction of accused for offence u/s.376 of IPC.
34 Similarly, in case of Dilbagh Singh Vs. State of Haryana, 2008 (1) RCR (Cri.) 350, the accused came in the dead of the night from his bed, in naked condition, wearing only a towel and lifted the prosecutrix and took her to his bed, made her nude, gagged her mouth to prevent her speech. The accused was held guilty of attempt to commit rape by observing as under : " Before completion of the crime, the human mind has to pass through four steps i.e. ( i ) intention to commit ;
( ii ) preparation to commit it ;
SC No. 83/12 State Vs. Akroor Page Nos. 20 of 25 21 ( iii ) Attempt to commit it ; and ( iv ) if the attempt is successful then crime is complete.
If the offender fails in his attempt, then crime is not complete but the law punishes those who make attempt but if the attempt is failed by the intervention from the outside or from other circumstances then the offence is not complete. Section 511 IPC 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. The wisdom behind the enactment of Section 511 IPC was that the injury and the moral guilt of the offender was the same as if he had succeeded in committing the offence. The moral guilt must be united with the injury in order to justify the punishment. Mere intention to commit an offence not followed by any act cannot constitute an offence. Attempting to commit an offence is an act or a series of act which lead inevitably to the commission of the offences unless something which the doer of the act neither foresaw nor intended, happens to prevent this. If the accused having criminal designs take some steps towards the commission of the crime and fell short of its actual consummation, then he can certainly be said to have attempted to commit the crime. In order to find out if the accused was really guilty of attempting to commit rape, the court must satisfy its conscience from the words "womanly propriety of behaviour SC No. 83/12 State Vs. Akroor Page Nos. 21 of 25 22 scrupulous chasity of thought speech and conduct". Similarly, the Court is also to examine the real intention of the accused, steps taken towards the commission of the said Act. In the present case, the accused in the dead of night came from his bed in naked condition and wearing only a towel, lifted the prosecutrix and took her to his bed, made her nude, gagged her mouth to prevent her speech thus, indecent assault which often magnifies into attempts at rape. Sufficient material exists on the record 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. Had the prosecutrix not raised hue and cry, the accused would have succeeded in his evil design".
35 Similar observations have been made in case of Aman Kumar & Anr. Vs. State of Haryana, AIR 2004 SC 1497.
36 In case of Koppula Venkat Rao Vs. State of Andhra Pradesh, AIR 2004 SC 1874, while distinguishing between the attempt to rape and the offence of rape, the Hon'ble Apex Court observed that sina qua non of offence of rape is penetration and not ejaculation and in the facts of the case altered the conviction for offence u/s.376 (2) IPC to attempt to rape.
37 In case of Rajbir Singh @ Raja Vs. State of Haryana, Punjab and Haryana High Court, 2008 (3) RCR (Cri.) 215, the accused had not unclothed himself SC No. 83/12 State Vs. Akroor Page Nos. 22 of 25 23 when help came and hence, it was held that offence u/s.376/511 IPC was not made out and only offence u/s. 354 IPC was made out.
38 In case of Manoj Vs. State of Haryana, Punjab and Haryana High Court, 2008(3) RCR (Cri.) 573, the accused inserted his fingers into the vagina of prosecutrix forcibly and caused damage. It was held that offence u/s.354 IPC was made out. 39 In case of Raghbir Singh alias Nadar Vs. State of Haryana, Punjab and Haryana High Court, 2008 (1) RCR (Cri.) 623, the accused with a bad intention and evil design called the prosecutrix (a young girl) to his cattle shed on the pretext of seeking her help in picking up the fertilizer bag, thereafter grappled with her ; made her to lie on the ground, undressed her by removing the salwar and tried to rape her, it was held that, "It could well be said that the accused did overt act towards the progress of the crime as intended by him. Had the prosecutrix not slapped or inflicted fist blows, then the accused would have succeeded in commission of the intended crime. Consequently, it would not be unsafe, in the given circumstances of the case, to hold that the accused attempted to commit rape upon the prosecutrix falling within the purview of Section 376 read with Section 511 IPC."
40 In the present case, the telltale white stains on the trouser of the accused and the underwear of the prosecutrix coupled with the testimonies of PW7 Chandani, SC No. 83/12 State Vs. Akroor Page Nos. 23 of 25 24 PW2 Rume Bibi, PW13 prosecutrix / victim child and PW3 Anwar Hussain are sufficient to reject the contention of learned counsel for accused that accused had not gone beyond the stage of preparation and if at all only offence u/s.354 IPC is made out against the accused. The judgment in case of 2011 Crl. L.J. 1501 relied upon by learned counsel for accused is not applicable in light of judgments of Hon'ble Supreme Court in case of Dilbagh Singh, Aman Kumar and Koppulla Venkat Rao, reproduced hereinabove. Further the contradictions in the time when PW7 Chandani had seen the prosecutrix going to the house of accused and her school timing and other similar contradictions pointed out in the testimony of witnesses are not of such consequence considering that the testimony of all the material prosecution witnesses corroborates each other on material facts that is prosecutrix going in the house of the accused and mother of prosecutrix following her there after some time, on being informed by PW7 Chandani, and finding the accused attempting to commit rape upon her minor daughter. The refusal by mother of prosecutrix for detailed medical examination of prosecutrix is also understandable considering that prosecutrix was aged just about 3 ½ years at the time of incident and would have required examination under anesthesia, as deposed by PW5 Dr. Swapneel. Similarly the lone presence of accused on ground floor of his house also stands explained by timing of the incident, which took place at about 7:00 / 7:30 AM. There is every possibility that during the early hours of morning, the wife of accused was sleeping on first floor and newly wedded wife of his son too had confined herself on first floor of house / jhuggi as stated by PW2 in her crossexamination. 41 Another contention raised by learned counsel for accused is that since the FSL result has not shown positive finding for presence of semen on exhibit 1b i.e. the SC No. 83/12 State Vs. Akroor Page Nos. 24 of 25 25 underwear of the prosecutrix, the prosecution has failed to prove its case. In this regard it would be relevant to refer to judgment of Hon'ble Supreme Court in case of Prithi Chand Vs. State of H.P., AIR 1989 SC 702, wherein even in a case of rape it was held that absence of spermatozoa by itself cannot cast doubt on the prosecution case. In the present case also in view of the cogent, reliable and trustworthy testimony of the material prosecution witnesses, the mere absence of semen on the underwear of the prosecutrix, as reflected from FSL report Ex.PX, the genuineness of the prosecution case cannot be doubted.
42 The nutshell of foregoing discussion is that I am of the considered opinion that the prosecution has successfully proved the guilt of the accused Akroor on record, beyond the reasonable doubts. Accordingly, I hold guilty accused Akroor for the offences punishable u/s. 376 (2) (f) r/w Section 511 IPC and he is convicted accordingly.
(Announced in the open Court ) (Illa Rawat)
(Today on 14.08.2013) Addl. Sessions Judge
(NorthWest)01
Rohini/Delhi
SC No. 83/12 State Vs. Akroor Page Nos. 25 of 25
26
FIR No. 429/12
P.S. Narela
13.08.2013
Present : Ld. Addl. PP for the State.
Accused Akroor produced from JC with counsel Ms. Sunita Tiwari. Learned Additional PP has addressed arguments.
Be listed for remaining arguments, if any, otherwise for judgment on 14.08.2013.
ASJ/NW01
Rohini/Delhi
13.08.2013
14.08.2013
Present: Addl. PP for the State.
Accused Akroor produced from JC with counsel Ms. Sunita Tiwari. Vide separate judgment announced today in the open Court, accused Akroor has been convicted u/s.376 (2)(f) r/w Section 511 IPC.
Be listed for arguments on the point of sentence on 17.08.2013.
(Illa Rawat) Addl. Sessions Judge (NorthWest)01 Rohini/Delhi 14.08.2013 SC No. 83/12 State Vs. Akroor Page Nos. 26 of 25 27 IN THE COURT OF MS. ILLA RAWAT : ADDL. SESSIONS JUDGE (NORTHWEST)01, ROHINI : DELHI (Sessions Case No. 83/12) Unique ID case No. 02404R0277872012 State Vs. Akroor FIR No. : 429/12 U/s : 376/511 IPC P.S. : Narela State Vs. Akroor S/o Bahul Miyan 17.08.2013 Present : Substitute Addl. PP for the State.
Convict produced from J.C with counsel Ms. Sunita Tiwari. ORDER ON THE POINT OF SENTENCE In the present case, the convict - Akroor has been convicted u/s 376 (2)
(f) read with Section 511 IPC.
I have heard the arguments on the point of sentence put forward by Ld. Addl. PP for State and Ld. defence counsel for the convict.
2. It has been submitted by the Ld. Addl. PP that in the present case, convict attempted to rape a minor child aged about three and half year years and in view of the SC No. 83/12 State Vs. Akroor Page Nos. 27 of 25 28 serious nature of offence, the convict does not deserve any leniency and she prays that maximum sentence prescribed by the law may be imposed upon the convict.
3. On the other hand, it has been submitted by the Ld. Defence counsel that the convictAkroor is of old age about 62 years and is suffering from various old age ailments. He also has responsibility of his family comprising of old aged wife, four sons, two daughters and all his children except one son are married. It is further submitted that convict belongs to a low strata of society and is first time offender and he remained in custody for a period of about more than one year and he prays that a lenient view may be taken in this case and he be given a chance of rehabilitation.
4. I have carefully considered the submissions made by Ld. Addl. PP and Ld. defence counsel and have carefully gone through the record of the case.
5. In the present case, the convict Akroor has been convicted for committing the offence punishable u/s- 376 (2) (f) read with Section 511. The convict had attempted to commit rape upon a minor girl child aged about only three and half years. The act of convict, though on face of it, is not gruesome, but has had far fetched and irreparable consequences on the life of a minor girl child. The instances of minor girls being victim to such nefarious acts and deeds are on rise and thus, no leniency is called for in the matter. However, considering the advancing age of the convict, slightly lenient view is taken and I hereby sentence convict Akroor to undergo rigorous imprisonment of four years along with a fine to the tune of Rs. 5,000/, in default of payment of fine, to further undergo simple imprisonment for three months, u/s 376 (2) (f) read with Section SC No. 83/12 State Vs. Akroor Page Nos. 28 of 25 29 511 IPC. The convict is further directed to pay a sum of Rs. 20,000/ as compensation to the victim child through her mother.
Benefit u/s 428 Cr.PC be also given to the convict.
The convict is informed that he has a right to prefer an appeal against this judgment. He has been apprised that he cannot afford to engage an advocate, he can approach the Legal Aid Cell, functioning in Tihar Jail or write to Secretary, Delhi High Court, Legal Services Committee, 3437, Lawyer Chamber Block, High Court of Delhi, New Delhi.
Copies of the judgment and order on the point of sentence be supplied to the convict, free of cost.
File be consigned to the record room.
(Announced in the open ) (Illa Rawat)
(Court on 17.08.2013) Addl. Session Judge
(NorthWest)01
Rohini/Delhi
SC No. 83/12 State Vs. Akroor Page Nos. 29 of 25
30
FIR No. 429/12
PS Narela
17.08.2013
Present: Ld. Addl. PP for the State.
Convict in person with counsel.
Arguments on the point of sentence heard.
Vide separate order on sentence, announced today in the open Court, convict Akroor is sentenced to undergo rigorous imprisonment for four years and to pay a fine of Rs. 5000/ and in default of payment of fine to further undergo simple imprisonment for three months for committing offence u/s 376 (2) (f) read with 511 IPC, which sentence shall meets the ends of justice in this case.
Benefit u/s 428 Cr.PC be also given to the convict for the period already undergone by him during trial, as per rules.
The convict is informed that he has a right to prefer an appeal against this judgment. He has been apprised that if, he cannot afford to engage an advocate, he can approach the Legal Aid Cell, functioning in Tihar Jail or write to Secretary, Delhi High Court, Legal Services Committee, 3437, Lawyer Chamber Block, High Court of Delhi, New Delhi.
Conviction warrant be prepared accordingly.
Copies of the judgment and order on the point of sentence be supplied to the convict, free of cost.
File be consigned to the record room.
(Illa Rawat) ASJ/NW01/Rohini/17.8.13 SC No. 83/12 State Vs. Akroor Page Nos. 30 of 25