Allahabad High Court
Kallu vs State Of U.P. on 24 September, 2014
Author: Anil Kumar Sharma
Bench: Anil Kumar Sharma
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR RESERVED CRIMINAL JAIL APPEAL No. 2536 of 2012 Appellant : Kallu s/o Anant Ram.
Respondent : State of U. P. Counsel for the appellant : Sri Vinay Saran Counsel for the respondent : Sri A. K. Rastogi, AGA CORAM: HON'BLE ANIL KUMAR SHARMA
The appellant has preferred this appeal from jail challenging his conviction and sentence recorded by Additional Sessions Judge, Court no. 1, Mainpuri in S. T. no. 25 of 2011 vide judgment dated 30.3.2012 for the offence punishable u/s 376/511 IPC and had been sentenced to undergo ten years' R. I. and fine of Rs. 10,000/- with default stipulation.
2. The learned trial Court has erred in mentioning the name of the victim in its judgment, which was prohibited by insertion of Section 228-A of the Indian Penal Code, 1860 (in short the 'IPC'). This section makes disclosure of identity of victim of certain offences punishable. Printing or publishing name or any matter which may make known the identity of any person against whom an offence under Sections 376, 376-A, 376-B, 376-C or 376-D is alleged or found to have been committed can be punished. True it is, the restriction does not relate to printing or publication of judgment by High Court or Supreme Court. But keeping in view the social object of presenting social victimization or ostracism of the victim of a sexual offence for which Section 228-A has been enacted, it would be appropriate that in the judgments, be it of this Court or lower Court, the name of the victim should not be indicated. Thus, I have chosen not to disclose her name and describe her as 'victim' in the judgment.
3. Shorn of unnecessary details, the prosecution story against the appellant was that on 6.11.2010 at 7.00 p.m. he way laid the 8-years' old daughter of his co-villager complainant Bal Kishan s/o Chhotey Lal r/o Village Patharia P. S. Bhogaon District Mainpuri and took her inside his room. He frightened, bet the victim and with ill intention took out her panty. She raised hue and cry which attracted her father to the room of the accused where he found that the panty of his daughter was taken off and in presence of other villagers she told them that the accused intended to outrage her modesty. The accused was apprehended at the spot and taken to police station, where the complainant submitted written report on the same day at 8:30 p.m., on its basis case u/s 376/511 IPC was registered against the appellant at crime no. 1390 of 2010, investigation whereof was entrusted to SI Sharvan Kumar Shukla. The accused and the victim were sent for medical examination. The investigation ended in charge-sheet against the accused-appellant.
4. After committal of the case to the Court of Session, charge for the offence punishable u/s 376 read with 511 IPC was framed against the accused, who pleaded not guilty and claimed to be tried.
5. In order to prove its case, the prosecution examined complainant Bal Kishan PW-1, victim PW-2, her mother Smt. Mithlesh PW-3, Girand PW-4, Dr. Amit Bharti PW-5, SI Sharvan Kumar Shukla PW-6 and Constable Chairman Gautam PW-7.
6. In his statement u/s 313 Cr. P. C., the accused has again denied the entire prosecution story as also the circumstances appearing against him in the evidence stating that on the day of Diwali, Girand Singh and Bal Kishan were gambling wherein they had a scuffle/marpit, so he has been falsely implicated in the case. However, he has not offered any defence.
7. The learned trial Court after hearing the parties' counsel has convicted the accused-appellant as indicated in para-1 of the judgment. Aggrieved, the accused has sent this appeal from jail.
8. I have heard the learned counsel for the appellant and learned AGA for the State and perused the original record of the trial Court.
9. Learned counsel for the appellant at the very outset has fairly conceded that the appellant has been rightly held guilty by the learned trial Court, but his contention is that the proved facts and circumstances available on record of the case, make out offence punishable only under section 354 IPC against the accused and he has been illegally convicted for the offence punishable u/s 376/511 IPC. Drawing attention to the contents of the FIR as also the statement of the victim, learned counsel for the appellant has contended that taking out panty of victim from her body would only mean that the accused was making preparation to forcibly ravish the minor daughter of the complainant. In the prosecution evidence it has not come that in order to commit rape the accused took out his clothes or showing his organ to the victim he tried to penetrate into her vagina. In para-6 of the memo of appeal, it has also been averred that if at all the facts appearing in the case are taken to be true, then also the offence would not travel beyond section 354 IPC, so the appellant had been illegally convicted and sentenced u/s 376/511 IPC.
10. In order to appreciate the above argument, it is necessary to have a look on the evidence of fact adduced by the prosecution in the case. The alleged incident had taken place on 6.11.2010 at about 7.00 p.m. inside the room of the accused-appellant, which he had taken on rent from Bhagwan Das. He was apprehended at the spot by the witnesses and taken to the police station at 8.30 p.m., where on the basis of written report of the complainant, case u/ s 376/511 IPC was registered against him. On 7.11.2010, the victim and the accused were taken to Community Health Center, Bhongaon (Mainpuri), where Dr. Amit Bharti medically examined them at 10.00 a.m. onwards. Dr. Bharti PW-5 has proved the injury report of the victim as Ex. Ka-2, but no effort was made by the concerned ADGC (Criminal) to prove the injury report of the accused, which is available on the record of the case. The injuries found by Dr. Bharti on the person of the victim have been noted by the learned trial Court in the impugned judgment. Out of the five injuries noted by the doctor in Ex. Ka-2, none of them is on private part of the victim. They are on face, eye, right fore-arm, and both legs, which are result of beating given by the accused, as noted in the written report of the complainant. In this connection it would be useful to narrate the statements of victim and her parents given in their respective examination-in-chief in their own words.
Complainant Bal Kishan PW-1 " ---- jkLrs esa gkftj vnkyr eqyfte dYyw cgykdj Hkxoku nkl ds edku esa dejsa ys x;k rFkk ogkW esjh yM+dh dks Mjk;k /kedk;k rFkk tyk;kA vkSj yM+dh dk dPNk vfHk;qDr us mrkj fn;kA esjh yM+dh fpYykbZA eSa] esjh iRuh] esjk HkkbZ fxjUn ¼yM+dh½ dh fpYykgV lqudj Hkxoku nkl ds edku ds ikl igWqps] mlh le; ';kefcgkjh o eqgYys ds dkQh yksx vk x;s FksA ml le; esjh yM+dh uaxh FkhA yM+dh us jks jksdj ge lc yksxksa dks crk;k fd dYyw esjs lkFk cqjk dke djus dk iz;kl dj jgk FkkA------------ "
After preliminary interrogation to ascertain her capacity of understanding and ability to depose, the 9-year old Victim PW-2, has stated as under:
" ---------ml le; 'kke ds 6-30&7 cts dk le; FkkA gkftj vnkyr dYyw us eq>s idM+ fy;k FkkA blus esjk eqWg nkc fy;k Fkk vkSj edku ds vUnj ys tkdj feBkbZ [kkus dks nh Fkh vkSj ml dejs dk njoktk vUnj ls can dj fy;k FkkA mlus esjk eqWg udksVk Fkk vkSj eq>s xSl ij /kdsy fn;k Fkk vkSj esjk dPNk mrkj fn;k FkkA vkSj esjs lkFk dYyw us dYyw cqjk dke djus dk iz;kl fd;k FkkA eSa Mj ds ekjs fpYykbZ FkhA---------- "
The statement of Smt. Mithlesh PW-3 (mother of the victim) in this regard is as under:
"------jkLrs esa gkftj dYyw us vius dejs esa ys tkdj 'kke ds 7-00 cts ds djhc mls uaxk djds mlds lkFk cqjk dke djus dk iz;kl fd;kA mls pksaVs igWqpkbZ rFkk xkyksa vkfn LFkku ij dkV fy;k Fkk rFkk dbZ txg uk[kwuksa ls pksaVs igWqpkbZ rFkk Hk;o'k yM+dh fpYykbZA-------- "
11. I have closely scrutinized the entire testimony of the above witnesses with reference to the other link evidence in the shape of medical evidence as also of police witnesses PW-6 and PW-7 and find that the entire prosecution evidence with regard to the guilt of the accused-appellant is wholly consistent, clear and reliable.
12. Now it is necessary to have a look on the law on the subject as laid down by the Apex Court and other High Courts including this Court. In the case of Tarkeshwar Sahu Vs. State of Bihar (now Jharkhand ) (2006) 8 SCC 560, the Apex Court has held that in the absence of a clear attempt to penetrate a woman, a conviction u/s.376/511 IPC would be wholly illegal and unsustainable. In the facts of this case on 18th February, 1998, at about 1.30 a.m., the female victim aged about 12 years, came out of her house to answer the call of nature. The appellant at that time had forcibly taken her to his Gumti, which was only few feet away from the house of the prosecutrix, with clear intention of committing illicit sexual intercourse with her. It was alleged that the prosecutrix raised alarm, and immediately thereafter several persons including the family members of the victim came from the adjoining houses and caught the appellant before he could even make any attempt to ravish her. Due to immediate arrival of PW1 and other co-villagers on hearing hue and cry raised by the prosecutrix, the appellant could not succeed in ravishing her. Immediately after this episode, PW1 Ram Charan Baitha, father of the prosecutrix along with other villagers, who appeared as witnesses in this case, had gone to the police station and lodged a first information report at 2:30 a.m. The FIR was lodged within one hour of the incident. On these facts and evidence, the Apex Court after interpreting the provisions of section 375 IPC, has observed as under:
"13. In order to constitute rape, what section 375 IPC requires is medical evidence of penetration, and this may occur and the hymen remain intact. In view of the explanation to section 375, mere penetration of penis in vagina is an offence of rape. Slightest penetration is sufficient for conviction under Section 376 IPC.
14. Position of law in England is the same. To constitute the offence of rape, there must be a penetration Rd. v. Hill, (1781) 1 East PC 439. Even the slightest, penetration will be sufficient. Where a penetration was proved, but not of such a depth as to injure the hymen, still it was held to be sufficient to constitute the crime of rape. This principle has been laid down in R v. M'Rue (1838) 8 C&P 641 : 173 ER 653 and R v. Allen (1839) 9 C&P 31 : 173 ER 727 . In the case of R v. Hughes (1841) 2 Mood 190 : 169 ER 75 and R v. Lines (1844) 1 C&K 393 : 174 ER 861, the Court has taken the view that 'proof of the rupture of the hymen is unnecessary'. In the case of R v. Marsden (1891) 2 QB 149, the Court has laid down that 'it is now unnecessary to prove actual emission of seed; sexual intercourse is deemed complete upon proof of penetration only.
15. In the case of Nirmal Kumar v. State 2002 Cri LJ 3352 (P&H), the Court held as under:-
"Even slightest degree of penetration of the vulva by the penis with or without emission of semen is sufficient to constitute the offence of rape. The accused in this case had committed rape upon a minor girl aged 4 years and he could not explain the reasons regarding congestion of labia majora, labia minora and redness of inner side of labia minor and vaginal mucosa of victim. Stains of semen were also found on the underwear worn by the accused. The conviction of accused held proper."
16. The distinction between rape and criminal assault has been aptly described in the English case Rex v. James Lloyd (1836) 7 C&P 317 : 173 ER 141. In this case, while summing up the charge to the jury, Justice Patterson observed:
"In order to find the prisoner guilty of an assault with intent to commit a rape, you must be satisfied that the prisoner, 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."
17. A similar case was decided by Mirza and Broomfield JJ. of the Bombay High Court in Ahmed Asalt Mirkhan (Cri. Q. NO. 161 of 1930 decided on 12.8.1930 in Law of Crimes by Ratanlal Dhirajlal, p. 922) . In that case the complainant, a milkmaid, aged 12 or 13 years, who was hawking milk, entered the accused house to deliver milk. The accused got up from the bed on which he was lying and chained the door from inside. He then removed his clothes and the girl's petticoat, picked her up, laid her on the bed, and sat on her chest. He put his hand over 'her mouth to prevent her crying and placed his private part against hers. There was no penetration. The girl struggled and cried and so the accused desisted and she got up, unchained the door and went out. It was held that the accused was not guilty of attempt to commit rape but of indecent assault. The point of distinction between an offence to commit rape and to commit indecent assault is that there should be some action on the part of the accused which would show that he is just going to have sexual connection with her.
18. In Halsbury's Statutes of England and Wales, 4th Edition, Vol. 12, it is sated that even the slightest degree of penetration is sufficient to prove sexual intercourse.
19. In Encyclopaedia of Crime and Justice (Vol. 4 page 1356), it is stated "even slight penetration is sufficient and emission is unnecessary".
20. In the case of Aman Kumar & Anr. v. State of Haryana (2004) 4 SCC 379, this Court stated as under: "Penetration is the sine qua non for an offence of rape. In order to constitute penetration, there must be evidence clear and cogent to prove that some part of the virile member of the accused was within the labia of the pudendum of the woman, no matter how little."
21. In view of the catena of judgments of Indian and English Courts, it is abundantly clear that slight degree of penetration of the penis in vagina is sufficient to hold accused guilty for the offence under Section 375 IPC punishable under Section 376 IPC.
22. In the backdrop of settled legal position, when we examine the instant case, the conclusion becomes irresistible that the conviction of the appellant under Sections 376/511 IPC is wholly unsustainable. What to talk about the penetration, there has not been any attempt of penetration to the slightest degree. The appellant had neither undressed himself nor even asked the prosecutrix to undress so there was no question of penetration. In the absence of any attempt to penetrate, the conviction under Section 376/511 IPC is wholly illegal and unsustainable." (Highlighted by me) 13, In Shiv Shanker Vs. State of U. P. 2002 Criminal Law Journal 2673, a Division Bench of this Court held as under:
"43. The appellant was also charged with the offence punishable under Section 376 read with 511 I.P.C. The learned Sessions Judge had also convicted and sentenced the appellant under said Sections. But having gone through the evidence on record, we find that the evidence of the prosecution was to the effect that the appellant caught hold of Smt. Usha Devi and made her fall down. There was no sufficient evidence on record to show that the appellant attempted to commit rape on the deceased. The medical evidence also did not indicate any such attempt. The catching hold of the deceased and making her fall down cannot be said an attempt to rape, but it amounted to assault or force used to outrage the modesty of the deceased. Therefore, though there was no sufficient evidence to make out the offence punishable under Section 376 read with 511 I.P.C., we are of the view that conviction of appellant under Section 376/511 I.P.C. Is liable to be converted into conviction under Section 354 I.P.C."
14. In Ram Pratap v. State of Rajasthan, 2002 Crl. L.J. 1430, the Court held that where apparels worn by the victim were torn, the offence will fall under Section 354 IPC.
15. In the case of Hari Mohapatra and another v. State of Orissa and others, 1996 Crl. L.J. 2952, the accused entered into room, closed the door, molested the victim by squeezing her breast and also tried to open her pant, on these facts it was held that offence will fall under Section 354 IPC.
16. In view of the above legal proposition, if we examine the facts of the instant case, we find that the crime committed by the accused-appellant was at the initial stage of preparation. The offence committed would not fall within the mischief of section 376/511 IPC. The factual aspect of this case is squarely covered by the decision in the case of Tarkeshwar Sahu (supra) and ratio given in para-22 of the judgment clearly prove that the accused-appellant in the instant case was also liable to be convicted for the offence punishable u/s 354/366 IPC, because not only he has outraged her modesty, but he has also taken out her from lawful guardianship of PW-1, to his room. In the case of Rajendra Vs. State of Maharashtra 1997 SCC (Cri) 840, the Apex Court has observed:
"Where the Courts had given cogent and convincing reasons for recording their finding that the accused had kidnapped the victim girl with intent to seduce her to illicit intercourse, conviction of accused under S. 366 was not interfered with."
In similar conditions, the Apex Court in the above noted case (Tarkeshwar Sahu) has convicted the accused for the offence punishable u/s 366 IPC as well.
17. The accused is in jail since 7.11.2010. Thus, in the facts and circumstances of the instant case, the ends of justice would be met if the accused-appellant is sentenced to two years' R.I. U/s 354 IPC and five years' R.I. U/s 366 IPC.
18. In view of what has been said and done above, lead us to this irresistible conclusion that the conviction of the accused-appellant for the offence punishable u/s 376/511 IPC is unsustainable and the appeal partly succeeds. The appeal is partly allowed. The conviction and sentence of the appellant for the offence punishable u/s 376/511 IPC are set aside. However, he is convicted for the offence punishable u/s 354 and 366 IPC and sentenced to undergo two years' R.I. and five years' R.I. respectively. It is directed that both the sentences would run concurrently. The appellant is in jail. He would serve out the remainder sentence, if after giving benefit of admissible remission he has not completely undergone the substantial sentence.
19. Let certified copy of the judgment be transmitted to the Court concerned for ensuring compliance, which should be reported to the Court within 6-weeks.
(Anil Kumar Sharma, J) September 24, 2014 Imroz/-