Uttarakhand High Court
Anokhe Lal vs State Of Uttaranchal on 20 November, 2002
Equivalent citations: 2003CRILJ2602, 2003 CRI. L. J. 2602, (2003) 6 ALLINDCAS 77 (UTR), 2003 (6) ALLINDCAS 77, (2003) 1 UC 420, (2003) 2 CURCRIR 638, (2003) 46 ALLCRIC 1071
Author: Irshad Hussain
Bench: Irshad Hussain
JUDGMENT Irshad Hussain, J.
1. Appellant Anokhe Lal was convicted and sentenced to R.I. for three years and seven years under Sections 363 and 376 read with Section 511 of the I.P.C. respectively per judgment and order dated 14-5-1999 passed by V Additional Sessions Judge, Nainital in Sessions Trial No. 394 of 1998.
2. Prosecution case as disclosed from the F.I.R. and the evidence is that on 11-6-1998 at about 4.30 p.m., appellant gave one rupee to Km. Shanoo aged about seven years for purchasing toffees for herself and deceitfully asked her to come to a house of a neighbour Virendra Pal. There in that house appellant made the said girl to lie on a cot and removed her underwear. He thereafter caught hold of her with intent to commit rape. The girl, however, got herself freed and ran away. She told all about this to her mother Smt. Suneeta who in turn disclosed the occurrence to her husband, informant, Awadhesh Kumar Bhatnagar on his return to his house from duty in the evening hours. The informant then went to the police station and filed written report, Ext.Ka. 1, the same day at 10.00 p.m. A case was accordingly registered under Section 376/511 of the I.P.C. The investigation of the case was taken up by S.I. Bhupal Singh who sent the girl for medical examination. Appellant was arrested on 12-6-1998 and on completion of the investigation charge-sheet was submitted on 14-8-1998.
3. Appellant did not admit the allegations of the prosecution and contended that he has been falsely implicated because he had refused to offer his services as a servant in the house of the informant.
4. In the trial, prosecution to bring home the guilt of the appellant placed reliance on the evidence of five witnesses. P.W. 1, informant Awadhesh Kumar supported the version of the written F.I.R., Ext.Ka. 1. P.W.2, victim Km. Shanoo narrated the occurrence thereby corroborating the prosecution case as reproduced above. She also stated that after her underwear was removed by the appellant, saliva was also put on her private part by the appellant and when she got conscious of the ill-intention, she ran away from there. P.W.3 Smt. Suneeta Bhatnagar, the mother of the victim also supported the prosecution claim as regards the information given to her by her daughter. P.W.4, S.I. Bhupal Singh proved the various steps taken towards the investigation of the case and charge-sheet, Ext.Ka.5. P.W.5 Dr. Kamla Mishra had medically examined Km. Shanoo at about 1.30 a.m. (in the night) on 12-6-1998 and prepared report, Ext.Ka.6. She also proved the supplementary report, Ext.Ka.7. As a result of medical examination, no injury was found on the person of victim Km. Shanoo and her hymen was found intact. On radiological examination, the age of the girl was found to be below 18 years.
5. On the basis of the appreciation of the evidence on record, learned Additional Sessions Judge came to the conclusion that the appellant has not merely kidnapped the said girl by deceitfully taking her to the house of another person but also made an attempt to commit rape on her and thereby convicted and sentenced the appellant as stated above. The argument of the defence that at the most it could be a case of assault or use of criminal force with intention to outrage the modesty of the girl punishable under Section 354 of the I.P.C. was rejected. 5A. Heard Sri Sanjeev Kumar Shah, Amicus Curiae and the Additional Government Advocate and have considered material on record in the light of the legal aspects of the matter.
6. Learned counsel for the appellant drew attention to the evidence of the victim Km. Shanoo, P.W.2 and submitted that her sole testimony should not have been believed without corroboration by the learned Sessions Judge and that in the totality of the circumstances of the case there were reasons to believe that the girl must have been tutored to give evidence against the appellant. Having gone through the statement of the girl I see no force in this submission. The reason is that the girl was subjected to piercing cross-examination, but nothing substantial could be brought on record as may support the contention that her parents were expecting the appellant to do me-nial work in the house and on his inability he was falsely roped in the case. It is of significance that the girl narrated the entire events beginning from the deceit to which she was subjected by the appellant by giving one rupee to purchase sweets and thereby asking her to go a neighbour's house which was then unoccupied and, therefore, the attempt was made to commit rape on her by the appellant. Learned counsel submitted that there is nothing to indicate that the appellant was in fact intended to commit rape on the victim. I see no force in this contention also because putting saliva on the private part of the girl after removal of her underwear was a step forward towards commission of actual penetration of male organ. It would have been a different preposition if the girl was made to lie and her underwear was only to be removed. In this case putting saliva on the private part of the girl gave a clear indication that the appellant had prepared himself to commit rape on her and, therefore, it was not a case of mere criminal assault to outrage the modesty of the girl, but a positive attempt to commit the rape.
7. The decisions of the reported cases Shiv Shankar v. State of U.P., 2002 Cri LJ 2673 and Damodar Behara v. State of Orissa, 1996 Cri LJ 346, have no bearing on the facts of the instant case. In the reported cases acts of the accused were found falling short of the actual attempt to commit the offence of rape because the victim was caught hold of and was made to fall down on the ground. In the instant case as mentioned above there was even further attempt in that direction by putting saliva on the private part of the victim which definitely indicate that the appellant had intended and was about to commit the rape on the victim. In view thereof, the case cannot be brought within the purview of mere outraging the modesty of the victim and in the peculiar circumstances of the case, the learned Sessions Judge was fully justified in coming to a conclusion that the charges levelled against the appellant stand established beyond doubt. In my view no interference in the judgment of conviction is, therefore, warranted.
8. It was next submitted that the appellant is in jail since 12-6-1998 and a period of more than four years has elapsed when he was taken into custody in connection with the commission of the said crime. Since it was a case of attempt to commit the rape, the ends of justice will be satisfied if the sentence awarded by the learned Sessions Judge is reduced to the sentence already undergone by the appellant. Considering the totality of the circumstances of the case and the fact that the appellant has no criminal history to his credit, the sentence awarded against the appellant may be modified accordingly.
9. In the result the appeal partly succeed. The conviction of the appellant as recorded by the learned Additional Sessions Judge is hereby upheld. The sentence awarded is, however, reduced to the period already undergone and the appellant shall be released forthwith if not wanted in connection with any other case.