Himachal Pradesh High Court
Kamla Nand vs State Of Himachal Pradesh on 24 July, 2002
Equivalent citations: 2003CRILJ547
Author: Lokeshwar Singh Panta
Bench: Lokeshwar Singh Panta
ORDER Lokeshwar Singh Panta, J.
1. This appeal is filed by Kamla Nand (hereinafter referred to as 'the appellant') against the judgment and order dated 1-6-1998 passed by learned Sessions Judge, Shimla in Sessions Trial No. 5-S/7 of 1997. By the impugned judgment the trial Court convicted the appellant of the offence punishable under Section 376 read with Section 511 of the Indian Penal Code and sentenced him to undergo five years' rigorous imprisonment and to pay fine of Rs. 1000/- and in default of payment of fine, the defaulter was to undergo rigorous imprisonment for period of six months.
2. The facts of the prosecution case are as follows :
The appellant aged about 52 years was employed as Chowkidar in MES, Jutogh Cantt., Shimla in the year 1995. His colleague PW-5 Mohinder Singh along with his family had lived in the neighbourhood of the appellant for about eight years. Thereafter, P.W. 5 shifted to another quarter which was at a distance of about 5-10-minutes walk from the quarter of the appellant. They become friendly and started visiting each other's place quite frequently. On 3-9-1995 the appellant went to the quarter of PW-5 to watch T. V. Serial "Chanderkanta". The screening of the episode of the serial was over at 10 A.M. Soon thereafter PW-5 and his wife PW-2 Smt. Kala Devi requested the appellant to lend a sum of Rs. 500/- to them. The appellant said that he had ready cash with him at his place and PW-5 should send someone to collect the money. P.W. 5 wanted to take his two younger daughters to barber's shop for hair dressing and so he asked the appellant to take his elder daughter the prosecutrix (real name withheld) aged about eight years with him and to hand over the money to her. PW-5 soon left for barber's shop and shortly thereafter the appellant went to his quarter accompanied by the prosecutrix. On reaching his quarter, appellant took out five currency notes of the denomination of Rs. 100/- each and put them in a plastic cover and placed the cover on a wooden box. Then he physically lifted the prosecutrix and put her on his cot. After that he removed his pant and underwear and also removed the salwar of the prosecutrix and started rubbing his male organ on her vagina. He also gave teeth bite on her cheek. When the prosecutrix cried, the appellant threatened her that in case she narrated the incident to anybody she would be done to death and also allured her by giving a currency note of Rs. 10/- saying that she could keep that money with her. When the prosecutrix reached home, her mother PW-2 noticed teeth mark on her left cheek. PW-2 asked the prosecutrix as to how mark had appeared on her left cheek. The prosecutrix either due to fear or the temptation, of retaining the currency note of Rs. 10/- initially told her mother that mosquitoes had caused bite mark on her cheek. But when the mother told the prosecutrix that no such mark was seen by her earlier when she had taken the prosecutrix to bathroom the prosecutrix came out with the truth. In the meantime P.W. 5 also returned from the barber's shop. He was informed by PW-2 about what the prosecutrix had disclosed. PW-5 took the girl to the residence of Commanding Officer Mr. B. K. Bounde (Garrison Engineer) who in turn, called the police on telephone. P.W. 10 Arjun Singh. Asstt. Inspector, In-charge Police Post, Jutogh came and recorded the statement of the prosecutrix under Section 154, Cr. P.C. mark Ext. PA which was sent to Police Station, Boileagunj). On the basis of the said statement First Information Report Ext. PF was registered by P.W. 4 Jeet Ram, Inspector/ SHO, Police Station, Boileagunj. The police got the prosecutrix medically examined from PW-11 Dr. Suman Gupta, Radiologist, Din Dayal Upadhya Hospital, Shimla. No injury on any part of the body of the prosecutrix was found except reddish semi circular bruise on the left cheek measuring 3 cm x 1 cm and small tear at 7 O'clock position in the hymen about 3 mm into vagina. In her Medico-Legal Report Ext. PB Dr. Suman Gupta recorded the probable duration of the injury within 24 hours. According to the opinion of Dr. Gupta it was a case of attempted rape and not of the actual rape and the abrasion that was noticed on the cheek of the prosecutrix could have been the result of teeth bite.
3. The investigation of the case was conducted by P.W. 10 ASI Sh. Arjun Singh. PW-2 handed over currency notes of Rs. 510/-to the Investigating Officer which were brought by the prosecutrix from the quarter of the appellant. He visited the spot and prepared the site plan Ext. PJ. Bedsheet spread on the bed of the appellant was also taken into possession vide seizure memo Ext, PJ. The appellant was arrested on the very day of the occurrence and he was got medically examined from. PW-7 Dr. R. M. Shasni, Medical Officer, Ripori Hospital, Shimla. As per Medico-Legal Certificate Ext. PH Dr. Shasni found nothing suggesting that the appellant was incapable of per forming sexual intercourse. The male organ of the appellant was not circumcised and the doctor also noticed smegma inside the penetration. The underwear of the appellant, was also taken into possession which was sent to chemical analysis along with bedsheet. Statements under Section 313, Cr. P.C, of the witnesses were recorded by the Investigating Officer. On receipt of the report of the Chemical Examiner mark Ext. PK. Police report under Section 173, Cr. P.C. was filed against the appellant in the Court of Addl. Chief Judicial Magistrate, Shimla who after complying with the requirement of Section 207 of the Code of Criminal Procedure committed the case to the Sessions Court.
4. The learned trial Court found prima facie case against the appellant under Sections 376 read with Section 511 of the Indian Penal Code and charged him accordingly. The appellant pleaded not guilty to the charge and claimed to be tried.
5. In support of the charge, the prosecution examined as many as seven witnesses. The material witnesses would, however, be PW-1 Prosecutrix, PW-2 Smt. Kala Devi the mother of the girl, P.W. 5 Mohinder Singh, the father of the girl, P.W. 7 Dr. R. N. Shasni, Medical Officer, Ripon Hospital, Shimla, PW. 10, Asstt. Inspector Sh. Arjun Singh who investigated the case and PW-11 Dr. Suman Gupta, Radiologist, Dindayal Upadhaya Hospital, Shimla. The appellant in his statement recorded under Section 313, Cr. P.C. claimed that he was innocent and had been implicated in a false case. He pleaded that both the parents of the prosecutrix owed him a lot of money which they had not paid in spite of repeated demands and that when he pressed hard for the return of the money, they implicated him in a false case. However, no evidence in defence was led by him.
6. The learned trial Court on appraisal and consideration of the entire evidence on record found the appellant guilty of the offence punishable under Section 376 read with Section 511 of the Indian Penal Code and convicted and sentenced him as aforesaid. The appellant has filed this appeal challenging the correctness and validity of his conviction and sentence.
7. I have heard Mr. Jagdish Vats, learned counsel for the appellant and Mr. J. S. Guleria, learned Law Officer for the State. Mr. Vats, contended that the learned trial Court went wrong in believing the prosecutrix, a child witness whose testimony was highly suspected and infirm,. The prosecution story in the facts and circumstances of the case was inherently improbable and highly doubtful. To appreciate the contention of the learned counsel, I have re-appraised and reassessed the evidence of the material witnesses. The prosecutrix in her deposition clearly and un-equivocally stated that on 3-9-1995 at about 9 a.m. when she along with her parents, her younger sister and her 'Nana' (maternal grand father) was watching the television, the appellant came to their quarter to watch a television serial. Her mother told the appellant that she and her husband were in need of Rs. 500/- and asked the appellant if he could lend that much amount of money to them. The appellant said that he had ready cash with him at his residence and was obliged to pay the amount. Her father then told the appellant that he himself was going to a barber's shop to get her younger daughters' hair dressed and the appellant would take the prosecutrix to his quarter to collect money. She went with the appellant to his quarter where he took out five currency notes and put them in a plastic cover and placed that cover on a wooden box. She further testified that immediately thereafter the appellant physically lifted her and placed her on his Cot. He removed his pant and underwear. He also removed her salwar and started rubbing his male organ on that part of her body from where she urinates. The appellant cut a teeth bite on her left cheek and when she cried he shut her mouth with his hand. She further stated that the appellant then gave her the packet of Rs. 500/- and also a currency note of Rs. 10/- directing her not to narrate the incident to anybody. On reaching home, her mother noticed the teeth mark on her cheek asked her as to what had happened and then she narrated the whole incident to her mother. When her father returned from the barber's shop, her mother apprised him of the occurrence and then he took her to the residence of his Commanding Officer. The Commanding Officer called the police. The police official recorded her statement Ext. PA which was duly signed by her. She was medically examined by the doctor. She identified her signature on the Medico-Legal Report marked Ext. PB/1.
8. P.W. 2 Smt. Kala Devi the mother of the prosecutrix has corroborated the testimony of the prosecutrix. She also stated that when on the day of the occurrence the prosecutrix returned to her house, she noticed some mark on her cheek and on inquiry the prosecutrix tried to hide the injury by raising her shoulder and by leaning the head towards her shoulder. Firstly the prosecutrix told her that the mark had caused due to mosquito bite. But when she confronted her with the fact that no such mark was visible on her cheek when she had helped the prosecutrix in taking bath only a few hours before she had gone to the house of the appellant, the prosecutrix could not longer hide the truth and disclosed that the appellant had taken her inside the quarter and after closing the door, he removed her salwar and 'kachhi' (underwear). He also removed his pant and underwear and then rubbed his male organ against her private part. She further stated that the prosecutrix told her that the appellant gave her Rs. 10/-and instructed her not to disclose to anybody what he done to the prosecutrix. She also stated that when her husband came back from the barber's shop, she apprised him of the details of the incident as disclosed to her by the prosecutrix. Her husband took the prosecutrix to the Major of the Army who called the police official. In her presence the police official recorded the statement of the prosecutrix. Salwar Ext. P1 of the prosecutrix and currency notes of Rs. 510/-were handed over to the police by her.
9. P.W. 5 Mohinder Singh also corroborated the testimony of P.Ws. 1 and 2 in its entirety. P.W. 7 Dr. R. M. Shasni found the appellant capable of performing sexual intercourse. P.W. 11 Dr. Suman Gupta on medical examination of the prosecutrix found a reddish semi circular bruise in her left cheek measuring 3 cm x 1 cm. and a small tear at seven O'clock position in the hymen about 3 mm. deep into the vagina. According to the opinion of Dr. Suman Gupta it was a case of attempted rape and not of a actual rape and the bruises noticed on the cheek of the prosecutrix could have been the result of teeth bite.
10. P.W. 10 ASI. Sh. Arjun Singh on getting a telephonic call from Major B. K. Bounde, Manager Garrison Engineer, Jutogh on 3-9-1995 went to his house where the prosecutrix along with her parents was present. He recorded the statement of the prosecutrix marked Ext. PA. He conducted the investigation after registration of the FIR by PW-4 Inspector/SHO Jeet Ram. He took into possession Salwar Ext. P-1 of the girl and currency notes of Rs. 510/- from PW-2. He prepared site plan Ext. PJ and also took into possession bedsheet which was found spread over the Cot lying in the room of the appellant.
11. P.W. 3 Balbir Singh, Sanitary Inspector, Cantonment Board, Jutogh proved on record the date of birth of the prosecutrix from the register of deaths and births maintained by the Cantonment Board. As per entry marked Ext. PA, in the register date of birth of the prosecutrix was recorded (sic) 28-7-1987. P.W. 6 Bal Raj was the witness of the seizure memo of the Salwar Ext, P-l of the prosecutrix, currency notes which the appellant had given to the prosecutrix and bed-sheet found spread over the cot of the appellant. The other witnesses are the police officials whose evidence is formal in nature.
12. The defence of the appellant that the parents of the girl owed a lot of money to (from) him and when he demanded his money back the parents of the prosecutrix had involved him in a false case. The learned trial Court has rightly rejected the defence plea of the appellant. In reply to question No. 5 of his statement recorded under Section 313, Cr. P.C. the appellant has admitted that he could not state that what was the exact amount borrowed by the parents of the prosecutrix from him. The minor discrepancies and contradictions pleaded by the learned counsel and noted by the learned trial Court in para 17 of the judgment are insufficient and insignificant to discard the truthful version of the prosecutrix stated on oath before the learned trial Court. She has withstood the searching and lengthy cross-examination and her evidence has not been shaken and impeached by the defence. The learned trial Court has rightly stated that the prosecutrix was only a small girl of about eight years at the time when the incident took place and then she appeared in the Court as a witness long after the occurrence i.e. after about two years and, therefore, much significance could not be attached to the contradictions appearing in her version. The evidence of the prosecutrix has been corroborated by her mother, her father and the medical evidence. PW-11 Dr. Suman Gupta noted in the medico-legal certificate Ext. PB that blue coloured underwear worn by the prosecution had some stains which was sent to the Chemical Examiner, The report of the Chemical Examiner Ext. PK would reveal that underwear purported to be that of the prosecutrix was stained with human semen. The underwear of the appellant and the bedsheet taken by the police were also found stained with human semen as per the report marked Ext. PK. The medico-legal evidence of the Doctor also corroborated that the mark of teeth bite was visible on the left cheek of the prosecutrix and that it was a case of attempted rape on the prosecutrix. The evidence of the prosecutrix is amply corroborated not only by the medical evidence but also corroborated by the evidence of P.Ws. 2 and 5. The contention of the learned counsel that on the scrutiny of the evidence of the prosecution, no case was made out against the appellant cannot be accepted.
13. Mr. Vats then contended that even if on consideration of the evidence of the prosecution witnesses, the offence, if any, committed by the appellant would at the most amount to outrage the modesty of the girl punishable under Section 354, IPC and it was not a case of attempted rape. According to the learned counsel the appellant had no intention to sexually assault the prosecutrix and, therefore, the conviction of the appellant recorded by the trial Court under Section 376 read with Section 511, IPC was grossly erroneous. In support of this submission he had placed reliance on Abhayanand Mishra v. State of Bihar, AIR 1961 Supreme Court 1698 : (1961 (2) Cri LJ 822): Nathu Ram v. State of Haryana, 1994 Cri LJ 1095 : (1994 AIR SCW 417) (Supreme Court) and a decision of learned single Judge of Punjab and Haryana High Court, Yash Pal v. State of Haryana, 1998 (1) RCR (Criminal) 411. I have considered the ratio of the judgments cited by the learned counsel. In Abhayanand Mishra's case (supra), their Lordships of the Supreme Court while dealing with the distinction between "attempt" and "preparation" held as under (page 1703; Para 26) :
"We may summarize our views about the construction of Section 511, IPC, thus : A person commits the offence of attempt to commit a particular offence when (i) he intends to commit that particular offence; and (ii) he, having made preparations and with the intention to commit the offence, does an act towards its commission; such an act need not be the penultimate act towards the commission of that offence but must be an act during the course of committing that offence."
14. In Nathu Ram's case (supra) the facts were that one Mansa Ram (P.W. 8) an illiterate, villager with his daughter-in-law came . for medical treatment in the hospital, the appellant Nathu Ram as well as Dr. Ramesh Kumar tried to commit rape upon the prosecutrix when Mansa Ram had gone out of the room of the Doctor. When he returned to the clinic with hot water he saw the doctor standing naked while appellant Nathu Ram was scantily dressed in Kaccha and Banian. The salwar of the prosecutrix had been half folded. Appellant Nathu Ram came in when co-accused Dr. Ramesh Kumar assured Mansa Ram and the prosecutrix that he will cure the prosecutrix with the help of Guru who was none else than appellant-Nathu Ram. In the peculiar facts and circumstances of the case, their Lordships found appellant Nathu Ram abettor of the offence of rape with accused Dr. Ramesh Kumar. In Yash Pal's case (supra) the accused put the prosecutrix on a bed undressed himself and the prosecutrix. The prosecutrix shouted and a person came there because of the presence of a person, the accused could not commit rape on this account. In the facts and circumstances of that case, the learned single Judge of Punjab and Haryana High Court held that it was an offence of attempt to commit rape.
15. Mr. Vats learned counsel for the appellant stated that in the present case had there been any intention of the appellant to commit rape on the prosecutrix, he could have fulfilled his desired, as he was not prevented by any reason beyond his control to do so and as such the appellant could not be convicted for committing an offence of attempted rape. It is no doubt true that in the present case when the prosecutrix cried no third person entered the room of the appellant preventing him from committing the sexual intercourse with her. However, it is the positive evidence of the prosecutrix that when she cried, the appellant threatened her that if she would disclose about the incident to anybody, he would kill her. She admitted in the cross-examination that the appellant rubbed him male organ on her private part, some white colour material leaked out of his male organ and fell on her private part. When she cried, the appellant released her and started wearing his clothes. In the facts and circumstances of the entire case it was a clear case of attempt, to commit sexual intercourse with the prosecutrix and it cannot be said that it was a simple case of outraging her modesty as contended by his learned counsel.
16. The appellant having made preparation and with the intention to commit the offence, does an act towards its commission, such an act need not be the penultimate act towards the commission of that offence but must, be an act during the course of committing an offence. Since the appellant discharged while he rubbed his male organ on the private part of the girl, he could not penetrate and was unable to complete the offence of rape. However, it is clear that he did attempt to commit rape. The ratio of the decisions relied upon by the learned counsel will in no way improve the defence of the appellant. I fully concur with the reasonings of the learned trial Court that the appellant appeared to have taken care while gratifying his passions that no damage was caused to the private part of the prosecutrix because that would have exposed his beastly act even without the girl speaking about the same. The prosecutrix and her parents have no enmity or hostility against the appellant to implicate him in a false case and the defence of the appellant has been rightly rejected by the learned trial Court.
17. No other point was urged by the learned counsel for the parties.
18. For the abovestated reasons, I find no ground has been made out warranting interference in the conviction and sentence of the appellant recorded by the learned trial Court. Accordingly, the appeal will stand dismissed. The appellant is on bail. His bail bonds shall stand cancelled and he is directed to be taken into custody for undergoing the sentence awarded to him by the learned trial Court.