Punjab-Haryana High Court
Rabbo Alias Raban vs State Of Haryana on 23 February, 2010
Author: Kanwaljit Singh Ahluwalia
Bench: Kanwaljit Singh Ahluwalia
Crl. Appeal No.761-SB of 1998 [1]
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH.
Crl. Appeal No. 761-SB of 1998
Date of Decision: 23 - 2 - 2010
Rabbo alias Raban .....Appellant
v.
State of Haryana .....Respondent
CORAM: HON'BLE MR.JUSTICE KANWALJIT SINGH AHLUWALIA
***
Present: Mr.Amit Jain, Advocate - Amicus curaie
for the appellant.
Ms.Hemlata Balhara, AAG, Haryana.
***
KANWALJIT SINGH AHLUWALIA, J. (ORAL)
The present appeal has been filed by Rabbo alias Raban, aged 30 years. He was named as accused in case FIR No.348 dated 22.10.1994 registered at Police Station Old Faridabad under Sections 354/376/511 IPC. The appellant was tried by the Court of Additional Sessions Judge, Faridabad, who vide his judgment dated 6.3.1998 held the appellant guilty of offence under Sections 376 read with Section 511 IPC and vide a separate order passed on 7.3.1998 sentenced him to undergo rigorous imprisonment for seven years and to pay a fine of Rs.2,000/-. In default of payment of fine, the appellant was to undergo further rigorous imprisonment for two months.
Crl. Appeal No.761-SB of 1998 [2]
In the present case, Dr.Beena Sharma PW1 who examined the child (name withheld to protect the identity) had stated that no sexual intercourse had taken place, as there was no external injury on any private part of the child and hymen was intact. The prosecution witnesses also during the trial omitted allegation of rape.
It is a case of child abuse. This Court has to determine as to whether from given circumstances, offence will fall under Section 376/511 IPC or under Section 354 IPC.
This Court is also conscious of the fact that for the kind of crime committed by the appellant, he is to be dealt with severely but first of all it is to be found out as to whether offence will fall under Section 376/511 IPC or under Section 354 IPC. This Court proceeds to notice the facts of the case, as they have been unfolded in the FIR and testimonies of prosecution witnesses.
The FIR in the present case was lodged on the statement made by Tulsi Ram Sharma. He stated that he was resident of House No.80, Street No.2 in Baswelwa Colony, Faridabad. He was getting his house white washed as festival of Diwali was approaching. He had engaged accused-appellant Rabbo to do the job. On 22.10.1994 at about 11.00 A.M., Rabbo, who was doing paint on the door from inside the house, called daughter of the complainant and told her to bring the screwdriver. When the child entered the room, the accused bolted the door, he teased her and opened her underwear. The daughter started weeping. The wife of the complainant who was working in the adjoining room knocked at the door and raised a noise. On hearing the noice, Onkar Chand son of Sainti Ram and Virender Singh son of Daulat Singh were attracted at the spot. The FIR Crl. Appeal No.761-SB of 1998 [3] was exhibited as Ex.PC/1.
The above said case was investigated. Report under Section 173 Cr.P.C. was submitted. The appellant was challaned for offence under Section 376 read with Section 511 IPC.
Prosecution examined Dr.Beena Sharma as PW1 who stated that on 22.10.1994, she examined the female child aged 9 years. There was no external injury on any private part of her body and hymen was intact. According to opinion of the doctor, no sexual intercourse took place.
HC Ram Karan PW2 had taken the appellant for medico legal examination on 24.10.1994.
Complainant Tulsi Ram Sharma appeared as PW3. He stated that on 22.10.1994 at 11.00 A.M., when he was on duty in Faridabad Metal Udyog factory, two persons came to him and informed that he was called at his house. He went to his house where he found that her daughter was lying on the bed. She was weeping. His wife was also weeping. On enquiry, it was disclosed to him that accused-appellant had asked his daughter to bring a screwdriver. When she went inside, accused bolted the door of the room. Accused removed the underwear of the daughter and overpowered her and inserted his finger in private part of the prosecutrix. Wife of the complainant was sweeping the floor in other room. She knocked at the door and raised the noise.
The child was examined as PW4. The child stated that accused had removed her underwear and started molesting her. The accused had put his penis in the mouth of the child.
Uma Devi, mother of the child appeared as PW5. She reiterated as to what was stated by her husband. She was confronted with Crl. Appeal No.761-SB of 1998 [4] her statement Ex.DA where it was not recorded that accused had put his penis in the mouth of the child.
Sohan Lal appeared as PW6 and stated that he had prepared a scaled site plan Ex.PD.
The appellant was medico legally examined by Dr.Sudhir Khurana on 24.10.1994 at 3.25 P.M. There were four bluish contusions on various parts of his body. Doctor further stated that he was capable of performing sexual intercourse.
Virender Singh PW8 who was attracted at the spot and was neighbour of the complainant stated that on hearing the noise of mother of the child he immediately went there and learnt that accused had removed underwear of the child and tried to commit mischief with her.
ASI Raj Singh PW9 had recorded FIR Ex.PC/1. C.P.Sharma PW11 had proved the date of birth of the child as 28.6.1985. Thereafter, the prosecution closed its evidence.
Statement of the accused was recorded under Section 313 Cr.P.C. All incriminating circumstances were put to the accused. He denied the same and pleaded false implication. The accused stated that he had completed the work of white wash. When he demanded his labour charges, complainant refused to pay the same and involved him in the present case.
In defence Ms.Intya Ji wife of Mazid Khan appeared as DW1. She stated that accused and the complainant were his neighbours. There was an altercation for non payment of labour charges to the accused. Rambir Singh DW2 was also examined to prove this fact.
This Court is of the view that evidence of PW8 Virender Singh Crl. Appeal No.761-SB of 1998 [5] independent witness is most material and the same can be considered under the maxim "Res-gestae" under Section 6 of the Indian Evidence Act. Virender Singh PW8 had stated that immediately when he reached there, he was told that appellant had removed underwear of the child and committed the mischief. This has been stated in the FIR that underwear was removed and finger was inserted in the private part of the child. The prosecution improved its case when it stated that accused had put his penis in the mouth of the child. Uma Devi PW5 was duly confronted with her previous statement Ex.DA. During investigation, this allegation had not surfaced any where. So at the most what emerges against the accused is that he had removed underwear of the child and had inserted his finger in her private part. From this, it cannot be assumed that an attempt was made by the appellant to commit an act of penetration which was a necessary ingredient of section 376 IPC.
It will be necessary to examine the case law and to find out as to whether such an offence, if any, will fall under Section 376/511 IPC. From the circumstances, it can be safely inferred that the appellant had made no attempt to commit the rape. Therefore, the offence, if any, will fall under Section 354 IPC.
In State of Madhya Pradesh v. Babulal, AIR 1960 Madhya Pradesh 155 it was held as under:-
"(5) The facts stated above are also mentioned in the first information report. The challan was put up by the police under Sec. 354 I.P.C. Admittedly from the facts stated above, it is clear that it is not an offence of rape. The question is whether it was an attempt to commit rape or a criminal assault.
The distinction between the two is sometimes very meagre. In Rex v. James Lloyd, (1836) 7 C and P 817: 173 ER 141 while Crl. Appeal No.761-SB of 1998 [6] 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."
In Impress v. Shankar, ILR 5 Bom 403 the accused was charged for an attempt to commit rape. There the observations of M. Melvill, J., which are quoted below, are very pertinent:
"We believe that in this country indecent assaults are often magnified into attempts at rape and even more often into rape itself; and we think that conviction of an attempt at rape ought not to be arrived at unless the Court be satisfied that the conduct of the accused indicated a determination to gratify his passions at all events, and in spite of all resistance."
In the present case, from the facts by the trying Magistrate and in the first information report, it is seen that the girl was made naked. There is no other action on the part of the accused. It is quite possible that ultimately he would not have proceeded to have sexual intercourse on account of her unwillingness. If the dictum of Justice Patterson in the above cited case is followed, I cannot see from the prosecution case that the accused was determined to have sexual intercourse at all events, because as soon as he saw the uncle of the prosecutrix, he ran away. For an offence of an attempt to commit rape, the prosecution must establish that it has gone beyond the stage of preparation. The difference between mere preparation and actual attempt to commit an offence consists chiefly in the greater degree of determination.
(6) A similar case was decided by Mirza and Broomfield JJ. Of the Bombay High Court in Ahmed Asalt Mirkhan (Criminal Appeal No.161 of 1930, D/- 12-6-1930 reported in Ratanlal's Law of Crimes, p. 922). In that case the complainant, a milkmaid, aged 12 or 13 years, who was Crl. Appeal No.761-SB of 1998 [7] hawking milk, entered the accused's 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 parts 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. In the Bombay case the cries of the girl desisted the accused. In the instant case the appearance of the uncle of the girl stopped him.
In the present case, as already stated, the accused only made the girl naked. He did not expose nor attempted to expose his private part. For all these reasons I cannot agree with the learned Additional Sessions Judge that from the challan or the first information report it was undoubtedly a case of an offence to commit rape so as to oust the jurisdiction of the trying Magistrate."
After discussing the evidence, the Court came to conclusion that offence will fall under Section 354 IPC.
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.
In Hari Mohapatra and another v. State of Orissa and others, 1996 Crl. L.J. 2952, where the accused entered into room, closed the door, molested the victim by squeezing her breast and also tried to open her pant, it was held that offence will fall under Section 354 IPC. Crl. Appeal No.761-SB of 1998 [8]
This Court in Subash Chander v. State of Haryana, 1983 Recent Criminal Reports 283 held that quite often indecent assaults are magnified into attempts of rape and even more often into rape itself. In the present case prosecutrix had suffered injuries. The Court held that offence will fall under Section 354 IPC.
In Jai Chand v. State, 1996(2) Recent Criminal Reports 244, Delhi High Court held that where prosecutrix was forcibly laid on the bed, string of her pajama was broken, underwear was drawn and bite was taken on her cheek, offence will fall under Section 354 IPC, as due to push given by the prosecutrix, the accused left the spot. Therefore, it was held that he was not determined to attempt sexual intercourse.
In Shiv Shanker v. State of U.P., 2002 Criminal Law Journal 2673, a Division Bench of Allahabad High 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."Crl. Appeal No.761-SB of 1998 [9]
In view of various judgments noticed above, the offence in present case will fall under Section 354 IPC and not under Sections 376 and 511 IPC.
The appellant had committed the offence of sexualy exploiting the child and molesting her. The maximum sentence prescribed under Section 354 IPC is two years. Therefore, this Court cannot show any leniency to the appellant and is of the view that maximum sentence which is prescribed under Section 354 IPC ought to be awarded. Thus, in these circumstances, this Court converts the offence under Sections 376 read with Section 511 IPC to Section 354 IPC and sentence the appellant to undergo rigorous imprisonment for two years and to pay a fine of Rs.10,000/-. In default of payment of fine, the appellant shall undergo further rigorous imprisonment for four months.
With the aforesaid observations, the present appeal is disposed of.
( KANWALJIT SINGH AHLUWALIA ) February 23, 2010. JUDGE RC