Punjab-Haryana High Court
Angrej Singh vs State Of Haryana on 28 February, 2011
Author: Kanwaljit Singh Ahluwalia
Bench: Kanwaljit Singh Ahluwalia
Crl. Appeal No.55-SB of 2003 -: 1 :-
IN THE HIGH COURT FOR THE STATES OF PUNJAB AND
HARYANA AT CHANDIGARH
Crl. Appeal No.55-SB of 2003
Date of decision: February 28, 2011.
Angrej Singh
...Appellant(s)
v.
State of Haryana
...Respondent(s)
CORAM:
HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA
Present: Shri Ashit Malik, Advocate, for the appellant(s).
Shri Sandeep S. Mann, Sr. Deputy Advocate General, Haryana
for the respondents.
Kanwaljit Singh Ahluwalia, J. (Oral):
Present appeal has been filed by Angrej Singh s/o Kishna Ram, who was nominated as accused in case FIR No.308 dated 23.10.2001, registered at Police Station Sadar Thanesar, under Section 376 read with Section 511 and 506 IPC. It is the case of the prosecution that the appellant had made an attempt to commit rape. Hence, the trial court, vide judgment dated 13.12.2002, found him guilty of offence under Section 376 read with Sections 511 and 506 IPC, and vide order dated 17.12.2002 sentenced the appellant under Section 376 read with Section 511 IPC to undergo RI for a period of five years and to pay a fine of Rs.5000/- and in default thereof, to undergo RI for one year. Besides, the appellant was also sentenced under Section 506 IPC to undergo RI for one year and to a fine of Rs.1000 and in Crl. Appeal No.55-SB of 2003 -: 2 :- default of payment of fine, to undergo further RI for three months. Both the sentences were ordered to run concurrently.
Case of the prosecution has emerged in the testimony of the prosecutrix, whose name has been withheld to protect her identity. The prosecutrix stated that on 22.10.2001 at about 10 a.m., she was present in village Adon near a heap of paddy straw in the field. At that time, the appellant-accused came and embraced her in his arms and thereafter put her on the paddy straw with an intention to commit rape upon her. The accused had untied the string of her salwar and took out her one leg from salwar and made an attempt to rape. It is stated that prosecutrix raised a noise which attracted her husband's younger brother Jasmer Singh, who over-powered the accused and saved the prosecutrix. Accused thereafter had given beatings to Jasmer Singh.
The above stated FIR was investigated. Report under Section 173 Cr.P.C. was submitted and the case was committed to the Court of Sessions at Kurukshetra.
The appellant was charged with offence under Section 376 read with Section 511 IPC. The charge stated that on 22.10.2001 at about 10 a.m. in the area of village Adon, he made an attempt to commit rape upon the prosecutrix by removing her salwar from one leg. The appellant did not plead guilty and claimed trial.
Jasmer Singh, younger brother of the husband of the prosecutrix, appeared as PW2 and corroborated the testimony of the prosecutrix.
Shri Ashit Malik, Counsel appearing for the appellant, has stated that the prosecutrix was aged 37 years and appellant was also aged 31 Crl. Appeal No.55-SB of 2003 -: 3 :- years. It is submitted that at the best the case of the prosecution is that the appellant had removed the salwar from one leg of the prosecutrix. Counsel states that if the allegations are taken at their face value, then an offence under Section 354 IPC would be made out and not an offence under Section 376 read with Section 511 IPC.
This Court in Rabbo alias Raban v. State of Haryana (Criminal Appeal No. 761-SB of 1998, decided on 23.2.2010) has considered the entire case law and came to the conclusion that if a string of the salwar of the prosecutrix is broken, the offence would fall under Section 354 IPC. The following relevant portion of the above said judgment reads as under:-
"...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) Crl. Appeal No.55-SB of 2003 -: 4 :- 7 C and P 817: 173 ER 141 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."
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, Crl. Appeal No.55-SB of 2003 -: 5 :- 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 hawking milk, Crl. Appeal No.55-SB of 2003 -: 6 :- 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 Crl. Appeal No.55-SB of 2003 -: 7 :- 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.
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 Crl. Appeal No.55-SB of 2003 -: 8 :- 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 Crl. Appeal No.55-SB of 2003 -: 9 :- Section 354 I.P.C."
Therefore, in view of the law laid down by this Court in Rabbo alias Raban's case (supra), wherein the reliance has been placed on various judgments, the offence, in the present case, will fall under Section 354 IPC and not under Section 376 read with Section 511 IPC. Conviction of appellant is modified, he is acquitted for offence under Section376 read with Section 511 IPC, but held guilty of offence under Section 354 IPC.
The maximum sentence prescribed under Section 354 IPC is two years.
Counsel for the State has filed affidavit of Atma Ram, Superintendent, District Jail, Kurukshetra wherein it is stated that the appellant has undergone 1 year and 8 months actual sentence.
Conviction and sentence under Section 506 IPC is maintained. Considering the fact that the occurrence took place in the year 2001 and the appellant has already suffered protracted trial for more than nine years, this Court is of the view that the ends of justice will be fully met in case the sentence awarded upon the appellant is reduced to 1 year and 8 months under Section 354 IPC, the period already undergone.
Sentence on both the counts shall run concurrently. Sentence of fine and default clause under Section 506 IPC is maintained.
With the aforesaid reduction in sentence, the appeal is disposed of.
[Kanwaljit Singh Ahluwalia] February 28, 2011. Judge kadyan