Bombay High Court
Ravi Anil Mandavkar vs State Of Maharashtra Thr. Police ... on 20 March, 2018
Author: Rohit B. Deo
Bench: Rohit B. Deo
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
CRIMINAL APPEAL 211 OF 2017
Ravi Anil Mandavkar,
Aged 22 years, Occ. Labour,
R/o. Wagholi, Tah. Hinganghat,
District Wardha ...APPELLANT
...V E R S U S...
The State of Maharashtra,
Through Police Station Officer
Police Station Hinganghat,
District Wardha ...RESPONDENT
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Smt. Priya S. Zoting (Appointed) counsel for the appellant.
Shri. N.B. Jawade, Addl. Public Prosecutor for respondent.
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CORAM: ROHIT B. DEO, J.
DATE: 20 th
March, 2018.
ORAL JUDGMENT
The appellant - accused who faced trial for offence punishable under section 376, 376 read with section 511 of Indian Penal Code ("IPC" for short), under section 4 and under section 4 read with section 18 of Protection of Children from Sexual Offences Act ("POCSO" Act), is convicted under section 18 of POCSO Act and is sentenced to suffer rigorous imprisonment for seven years and to payment of fine of Rs. 10,000/-. It is this judgment and order dated ::: Uploaded on - 21/03/2018 ::: Downloaded on - 22/03/2018 02:20:50 ::: 2 9.3.2017 rendered by the Special Judge, Wardha in Special (Child) Case 46 of 2016 (Old Sessions Case 95 of 2013) which is impugned herein.
2 Heard Smt. Priya S. Zoting, the learned counsel for the accused and Shri N.B. Jawade, the learned Additional Public Prosecutor for the respondent / State.
Smt. Priya Zoting, the learned counsel for the accused would submit that the prosecution has failed to prove beyond reasonable doubt, that the accused attempted to rape the victim. Arguendo, and in the alternate, Smt. Zoting would submit that the offence proved, if at all, will be under section 354 of the IPC and under section 7 read with section 8 of the POCSO Act. The submission, is that even if the evidence of the victim is taken at face value, the offence will be of outraging modesty and sexual assault and not of an attempt to rape. 3 The date of birth of the victim as is evident from birth certificate is 21.11.1999. In fairness to Smt. Zoting it is not disputed that the victim was a child within the meaning of section 2(d) of the POCSO Act as on the date of the incident.
::: Uploaded on - 21/03/2018 ::: Downloaded on - 22/03/2018 02:20:50 ::: 3 4 The oral report dated 24.1.2013 is lodged by the victim at Police Station Hinganghat (Exh. 18). The gist of the report is that the accused, a neighbour of the victim forced the victim to come to his house to keep the dried clothes in the varandah. The victim was reluctant and went to the house of the accused since accused threatened to slap her. She was taken in the inner room of the house, the door was locked from inside, the victim attempted to shout and the accused gagged her mouth, undressed and then removed the clothes of the victim, kissed the victim and made her lay on a plastic carpet. The accused slept over her person and pressed his penis on the private part of the victim. The victim was experiencing pain. The accused ejaculated and the discharge fell on the private part of the victim. The victim used a piece of pink saree to wipe her private part and so did the accused. The victim disclosed the incident to her mother when she came home from work at 6.30 p.m.. The mother of the victim tried to search for the accused, the accused was not at home. The father of the victim returned at 8.00 p.m., to whom the mother of the victim disclosed the incident. The parents of the victim confronted the accused, however, the accused and his father threatened them. 5 On the basis of the said oral report Exh. 18 and the printed ::: Uploaded on - 21/03/2018 ::: Downloaded on - 22/03/2018 02:20:50 ::: 4 First Information Report Exh. 19, offence punishable under section 342, 354, 376, 511 and 506 of IPC was registered against the accused. Investigation ensued, upon completion of which charge sheet was submitted in the Court of Judicial Magistrate First class, Hinganghat, who committed the proceeding to the Sessions Court. The learned Sessions Judge framed charge (Exh. 7) for offence punishable under section 376, 376 read with section 511, 506 of IPC and under section 4 and under section 4 read with section 18 of the POCSO Act. The accused abjured guilt and claimed to be tried in accordance with law. The response to question 71 in the examination under section 313 of the Code of Criminal Procedure, the accused states that he is falsely implicated due to village rivalry.
6 PW 1 - victim has deposed that the incident took place on 23.1.2013. She left home at 10.00 a.m. to attend the school. However, since she was suffering from stomach ache, she returned at home at 11.30 a.m.. She accompanied her mother to the field of one Gaju Mendule and returned alone at 2.00 p.m.. The mother of the victim was present in the house. The victim took rest, woke up at 4.00 p.m. and then after doing the household chores sat on the water tank in the court yard, she then went to her friend's house and returned at 6.00 p.m. She ::: Uploaded on - 21/03/2018 ::: Downloaded on - 22/03/2018 02:20:50 ::: 5 was called by the accused to remove the clothes which were hanging on a rope and to keep them in the varandah. The victim was reluctant, the accused threatened to slap her and the victim went to his house, removed the clothes and kept them in the varandah. The accused came from behind, caught her hand and took her inside the house. The door was locked from inside. The accused undressed the victim and made her lay on a plastic carpet. The accused kissed the victim, when she attempted to shout, her mouth was gagged with hand. The accused removed underwear of the victim and removed his own underwear and then touched his penis on the vagina of the victim. The victim experienced pain, the accused ejaculated. The accused wiped private part with a piece of pink colour cloth. The accused also wiped the private part of the victim with the same cloth. The victim wore her clothes and returned her house. After some time, the accused again called the victim who refused to oblige. The victim states that she saw the accused putting the pink colour cloth in the dustbin. The victim narrated the incident to her mother who confronted the mother of the accused. When the father of the victim returned at 8.00 p.m., the mother of the victim narrated the incident to him. The parents of the victim then went to the house of the victim to confront the accused. However, the father of the accused threatened the father of the victim ::: Uploaded on - 21/03/2018 ::: Downloaded on - 22/03/2018 02:20:50 ::: 6 and therefore, the report was not lodged on the same day. The report was lodged on 24.1.2013.
In order to cross-examine, the entire evidence has gone virtually unchallenged. No attempt is made to shake the credibility of testimony of PW 1 except for suggesting to her that the incident did not take place and that she is deposing at the instance of her mother. Not a single omission much less the significant omission partaking the nature of contradiction is brought on record.
7 The evidence of PW 1 is amply corroborated by the evidence of PW 2, the mother of the victim to whom the victim disclosed the incident. In response to a suggestion, PW 2 states that she did not make any inquiry with her mother in law (the grandmother of the victim) since her mother in law is not in a position to understand anything. It is suggested to PW 2 that the accused is falsely implicated since the accused charged the victim of committing theft of money. This suggestion is denied. Pertinently, such a suggestion is not given to PW
1. Nothing is brought on record in the cross-examination to shake the credibility of testimony of PW 2.
8 PW 5 Pradip Ubhale registered the First Information ::: Uploaded on - 21/03/2018 ::: Downloaded on - 22/03/2018 02:20:50 ::: 7 Report Exh. 19. In the examination in chief, PW 5 categorically states that he was the day officer on duty from 14.00 hrs to 20.00 hrs on 24.1.2013 and during the said period the victim and her mother came to the police station to lodge report. PW 5 admits that he registered the offence in question on 24.1.2013 at 20.30 hrs. (in the English translation of the deposition the date is incorrectly mentioned as 23.1.2013).
9 PW 6 Purushottam Bawankar, who was then Police Sub Inspector at Police Station Hinganghat is the Investigating Officer. He has proved the spot panchanama Exh. 29 and the seizure of the piece of saree from the rubbish dump (Exh. 63) and has deposed as to the steps taken during the course of investigation. He accepts that he did not record the statement of the grandmother of the victim. He volunteers that she was 80 years old and bed ridden. The minor omission brought on record in the evidence of PW 2 is not put to PW 6 who recorded the 161 statement of PW 2, and the omission, insignificant as the omission, is not proved.
10 The learned Sessions Judge has rightly recorded a finding that thee is no evidence of even the slightest penetration. This finding ::: Uploaded on - 21/03/2018 ::: Downloaded on - 22/03/2018 02:20:50 ::: 8 is unexceptionable. The evidence of the child victim is however, that the accused pressed his penis on her vagina causing pain and that the accused ejaculated. The piece of cloth which was seized from rubbish dump and sent for chemical analysis is not detected with semen stains. However, in the teeth of the implicitly reliable testimony of the child victim that the accused ejaculated, the fact that no semen stains was detected in the piece of cloth thrown in the rubbish dump does not dilute the probative value of the ocular evidence. 11 The submission of Smt. Zoting that the offence made out would be of assault under section 354 of the IPC or under section 7 of the POCSO Act is unacceptable. The evidence of the victim is that the accused slept over her person after undressing her and removing his clothes and pressed his male organ on her vagina and then he ejaculated. In the English translation of the vernacular deposition it is recorded that the accused touched the private part of PW 1 and his private part. This recording is obviously incorrect and the vernacular version reveals that what is stated by the victim is that the accused pressed his male organ on her private part. It is clear that the accused went beyond the stage of preparation. The offence of attempt to rape is established beyond reasonable doubt. The learned APP ::: Uploaded on - 21/03/2018 ::: Downloaded on - 22/03/2018 02:20:50 ::: 9 Shri N.B. Jawade has invited my attention to the following observations of the Apex Court in Madan Lal ..vs..State of Jammu and Kashmir, AIR 1998 SC 386:
"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 be 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 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 ::: Uploaded on - 21/03/2018 ::: Downloaded on - 22/03/2018 02:20:50 ::: 10 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:
"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 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 ::: Uploaded on - 21/03/2018 ::: Downloaded on - 22/03/2018 02:20:50 ::: 11 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 mere preparation, but falling short of actual consummation, and, possessing, except for failure to consummate, all the elements of the substantive crime. In other words, an attempt consists in it the intent to commit a crime, falling short of, its actual commission 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 ::: Uploaded on - 21/03/2018 ::: Downloaded on - 22/03/2018 02:20:50 ::: 12 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 Sections 376/511 IPC. Custodial sentence of 3 and '/2 years would meet the ends of justice. The accused who is on bail shall surrender to custody to serve remainder of his sentence".
12 On a holistic appreciation of the evidence on record, the conscious of this Court is satisfied that no case is made out to ::: Uploaded on - 21/03/2018 ::: Downloaded on - 22/03/2018 02:20:50 ::: 13 interfere with the judgment and order impugned.
The appeal is sans merit and is rejected.
Fees of the appointed counsel are quantified at Rs. 5000/-.
JUDGE RSB ::: Uploaded on - 21/03/2018 ::: Downloaded on - 22/03/2018 02:20:50 :::