Madhya Pradesh High Court
Lal Singh Gond vs The State Of Madhya Pradesh on 6 September, 2012
A.F.R.
JUDGE
IN THE HIGH COURT OF MADHYA PRADESH, JABALPUR
SINGLE BENCH : HON'BLE MR. JUSTICE N.K.GUPTA, J.
Criminal Appeal No.857/2009
Lal Singh Gond
VERSUS
State of Madhya Pradesh
---------------------------------------------------------------------------
Shri S.K.Patel, counsel for the appellant.
Shri G.S.Thakur, Panel Lawyer for the State/respondent.
---------------------------------------------------------------------------
J U D G M E N T
(Delivered on the 6th day of September, 2012) The appellant has preferred this appeal against the judgment dated 31.1.2009 passed by learned Seventeenth Additional Sessions Judge, Jabalpur in S.T.No.305/2008, whereby the appellant was convicted for offence punishable under sections 363 and 376 read with section 511 of IPC and sentenced for 7 years' rigorous imprisonment with fine of Rs.1,000/- for each count of the offence and in default of payment of fine, 2 months' additional rigorous imprisonment for each count.
2. Prosecution's case, in short, is that, on 23.3.2008, at about 1.45 p.m., the prosecutrix was playing near her hut at village Banjar Nala, Tinheta, (Police Station Chargawan,
-:- 2 -:-
Criminal Appeal No.857 of 2009 District Jabalpur). Thereafter, she went to answer the call of nature towards the Nala and then, she came back. When she was playing near a Mend of a field, the appellant gave her a currency note of Rs.20/- to fetch some Bidis and thereafter, he took her to the bushes near the Nala. The appellant undressed her and committed rape upon her. When she was not visible to her parents, Radhelal maternal grandfather of the prosecutrix, went to the spot and after looking the maternal grandfather of the prosecutrix, the appellant ran away from the spot. The prosecutrix told about the entire incident to her maternal grandfather and other persons like Sumrat (P.W.4), Bhagwan Das (P.W.5) etc. She was taken to the Police Station Chargawan, where Radhelal Gond lodged an FIR, Ex.P/1. The prosecutrix was sent to the Government Hospital for her medico legal examination and treatment. Dr.Rashmi Bhatnagar (P.W.10) after examining the prosecutrix gave a report, Ex.P/10. No external or internal injury was found on her person. Even her hymen was found intact. However, 2 slides were prepared from the vaginal swab of the prosecutrix and handed over to the police for forensic analysis. The prosecutrix was also sent for ossification test and Dr.Agrawal (P.W.11) in his report Ex.P/12 found that she was 15-16 years old girl.
-:- 3 -:-
Criminal Appeal No.857 of 2009
3. The appellant was arrested on 26.5.2008. He was also directed for his medico legal examination. Doctor who examined the appellant, prepared 2 slides of sample of his semen and handed over to the Police constable after sealing them. All the sealed properties were sent to the Forensic Science Laboratory, Sagar for their analysis. However, no report of forensic Science Laboratory was placed before the trial Court till the disposal of the case. After due investigation, a charge-sheet was filed before the JMFC, Patan, who committed the case to the Sessions Court and ultimately, it was transferred to the 17th Additional Sessions Judge, Jabalpur.
4. The appellant abjured his guilt. He did not take any specific plea but, he has stated that he was falsely implicated in the matter. He was an agricultural labour in the field of Radhelal and he was not given his wages. When he demanded for the wages, he was falsely implicated. However, no defence evidence was adduced by the appellant.
5. The learned Additional Sessions Judge after considering the evidence adduced by the prosecution, convicted the appellant for offence punishable under sections 363, 376 read with section 511 of IPC and sentenced him as mentioned above.
6. I have heard the learned counsel for the parties.
-:- 4 -:-
Criminal Appeal No.857 of 2009
7. The learned counsel for the appellant has submitted that the appellant was falsely implicated in the matter. No offence is made out against him. At the most offence punishable under section 354 of IPC may be constituted. If the prosecutrix was stopped at a particular place and taken into bushes to commit an offence then, such an act would not amount to be an offence of kidnapping. Similarly, looking to the report of Dr.Rashmi Bhatnagar, the overt-act of the appellant does not fall within the purview of section 376 read with section 511 of IPC. In the alternate, it is also submitted that the appellant remained in the custody for a longer period and therefore, looking to his conduct and his overt-act, his sentence may be reduced to the period, which he has already undergone in the custody.
8. On the other hand, the learned Panel Lawyer has submitted that the conviction and sentence directed by the trial Court appears to be appropriate and there is no basis by which any interference can be done in the findings given by the trial Court.
9. After considering the submissions made by the learned counsel for the parties and looking to the evidence adduced by the prosecution, it is to be considered as to whether the appellant has committed the offence under section 376 read with section 511 of IPC? Whether the
-:- 5 -:-
Criminal Appeal No.857 of 2009 appellant has committed the offence under section 363 of IPC? And whether the sentence awarded to the appellant can be reduced?
10. In the present case, the prosecutrix (P.W.2) was the main eye witness, whereas Radhelal (P.W.1) and Sumrat (P.W.4) had reached to the spot during the incident. The prosecutrix (P.W.2) has stated that the appellant took her near the Nala and directed her to lie down on the Earth on his pant, which he had removed and placed on the Earth. Thereafter, he committed the rape upon the prosecutrix. The prosecutrix was shown to be a girl of 10 years of age initially. However, she was found to be 15 to 16 years of age in her ossification test. Dr. Rashmi Bhatnagar (P.W.10) has found that secondary sex characters of the prosecutrix were not well developed and menaces were not started to the prosecutrix. Looking to the information given by Dr.Bhatnagar, it appears that the prosecutrix was approximately between 10 to 13 years of age. Though radiological age of the prosecutrix was assessed by Dr.Agrawal to be 15 to 16 years but, in such computation, 2 years may be deducted or added according to the physical appearance of the prosecutrix. In the present case, looking to her physical appearance and her secondary sex characters, the prosecutrix appears to be 10 to 13 years of
-:- 6 -:-
Criminal Appeal No.857 of 2009 age and therefore, 2 years may be deducted in the age computed by the ossification test.
11. The prosecutrix has stated that the appellant undressed her to lay upon her. She has stated about the entire rape but, looking to the evidence given by Dr.Rashmi Bhatnagar that there was no external or internal injury to the prosecutrix and her hymen was also intact, it appears that being a child witness, the prosecutrix was tutored by her parents and therefore, though she is alleging about the rape but, no such overt-act is proved beyond doubt. If insertion was done with a prosecutrix of 10 to 12 years of age then, she would have sustained some internal injuries due to that penetration and therefore, that portion of evidence given by the prosecutrix cannot be accepted. The trial Court has rightly acquitted the appellant from the charges of offence punishable under section 376 of IPC.
12. For a commission of offence there are three stages:
(1) Preparation, (2) Attempt and (3) Commission of offence.
For so many offences, preparation is not at all a crime. There is a slight difference between preparation and the attempt. In this connection, the judgment passed by Hon'ble the Apex Court in case of "Malkiat Singh and another VS. State of Punjab", [AIR 1970 SC 713] may be referred. In
-:- 7 -:-
Criminal Appeal No.857 of 2009 para 4 of that judgment, it is mentioned by Hon'ble the Apex Court as under:-
"The preparation consists in devising or arranging the means or measures necessary for the commission of the offence. On the other hand, an attempt to commit the offence is a direct movement towards the commission after preparations are made. In order that a person may be convicted of an attempt to commit 'a crime, he must be shown first to have had an intention to commit the offence, and secondly to have done an act which constitutes the actus reus of a criminal attempt. The sufficiency of the actus reus is a question of law which had led to difficulty because of the necessity of distinguishing between acts which are merely preparatory to the commission of a crime, and those which are sufficiently approximate to it to amount to an attempt to commit it. If a man buys a box of matches, he cannot be convicted of attempted arson, however clearly it may be proved that he intended to set fire to a haystack at the time of the purchase. Nor can he be convicted of this offence if he approaches the stack with the matches in his pocket, but, if he bends down near the stack and lights a match which he extinguishes on perceiving that he is being watched, he may be guilty of an attempt to burn it."
In the light of the aforesaid judgment, one has to examine the slight demarcation between the preparation and the attempt.
13. Also, the judgment passed by Hon'ble the Apex Court in case of "Aman Kumar & another Vs. State of Haryana", [(2004) 4 SCC 379] abstract from para 11 may be taken as under:-
"11. In order to find an accused guilty of an attempt with intent to commit a rape, Court has to be satisfied that the accused, when he laid hold of
-:- 8 -:-
Criminal Appeal No.857 of 2009 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. Indecent assaults are often magnified into attempts at rape. In order to come to a conclusion that the conduct of the accused was indicative of a determination to gratify his passion at all events, and in spite of all resistance, materials must exist. Surrounding circumstances many times throw beacon light on that aspect."
In the light of the aforesaid judgment if the present case is examined then, it would be apparent from the evidence given by the witnesses Radhelal and Sumrat that when the appellant saw these witnesses, he ran away from the spot and at that time he was wearing a shirt and underwear. It is no stated by the prosecutrix that before lying upon her, the appellant removed his underwear or his shirt. She has simply stated that the appellant removed his pant and directed her to lie down on the pant. The appellant could not do any intercourse unless he took his penis out of the underwear and therefore, when he had not removed his underwear, it cannot be said that he attempted to commit the rape. In the light of slight demarcation given by Hon'ble the Apex Court in case of Aman Kumar (supra), it would be apparent that in the present case, though the appellant undressed the prosecutrix and directed her to lie down on his pant, which was placed on the Earth and thereafter, he lied down upon the prosecutrix and in the meantime, the
-:- 9 -:-
Criminal Appeal No.857 of 2009 witnesses came to the spot and the appellant ran away. Under such circumstances, the overt-act of the appellant as proved by the prosecutrix and the witnesses, does not fall within the purview of attempt of the offence but, it remains within the purview of preparation. In so many offences preparation of offence is not an offence itself but, in the present case, the preparation to commit the rape falls within the purview of offence under section 354 of IPC. The appellant has used some criminal force upon the prosecutrix to outrage her modesty and therefore, the appellant can be held guilty for the offence punishable under section 354 of IPC instead of offence punishable under section 376 read with section 511 of IPC.
14. Learned counsel for the appellant has submitted that the appellant was falsely implicated in the matter. It is no where proved by the appellant that he ever worked with either the witness Radhelal or with Sumrat (P.W.4) and therefore, there was no possibility that his wages were due from the maternal grandfather of the prosecutrix. There is no enmity established by the appellant by which it could be said that he was falsely implicated in the matter. The testimony of the prosecutrix is duly corroborated by the witness Radhelal and Sumrat, who saw the appellant lying upon the prosecutrix. Also it is further confirmed by the
-:- 10 -:-
Criminal Appeal No.857 of 2009 timely lodged FIR, Ex.P/1 and therefore, testimony of the prosecutrix is believable upto that extent that the appellant undressed her and lay upon her. Under such circumstances, it cannot be said that the appellant was falsely implicated in the matter but, it is proved beyond doubt that he used a criminal force to outrage the modesty of the prosecutrix.
15. However, the action of the appellant does not fall within the purview of offence punishable under section 376 read with section 511 of the IPC. Offence punishable under section 354 of IPC is an inferior offence of the same nature and therefore, there is no need to frame any separate charge for that offence. In the light of provision of section 222 of Cr.P.C., the appellant can be convicted for offence punishable under section 354 of IPC under the conviction for the offence punishable under section 376 read with section 511 of IPC. In the light of the aforesaid discussion, the learned Additional Sessions Judge has erred in convicting the appellant for offence punishable under section 376 read with section 511 of IPC but, the appellant can be convicted for offence punishable under section 354 of IPC.
16. As far as the offence under section 363 of IPC is concerned, the prosecutrix was playing near the field of her maternal grandfather. Thereafter, she went to answer the
-:- 11 -:-
Criminal Appeal No.857 of 2009 call of nature near the Nala and thereafter, again she came back to the Mend of the field, where she was playing. The appellant induced her to go with him to the bushes near the Nala and therefore, she was taken few yards away from the place where she was playing. She was not taken away from the guardianship of her maternal grandfather. She remained in the guardianship of her maternal grandfather but, since she was playing lonely, she was taken slightly away from the place where she was playing then, such displacement will not amount to any kidnapping or abduction. The appellant took the prosecutrix to a nearby place, so that they could not be seen by the others and therefore, it is not a kidnapping in the eye of law. In this context, the judgment passed by Hon'ble the Apex Court in case of "S.Varadarajan Vs. State of Madras", [AIR 1965 SC 942] may be perused, in which it is observed as under:-
"The offence of "kidnapping from lawful guardianship" is defined thus in the first paragraph of S.361 of the Indian Penal Code :
"Whoever takes or entices any minor under sixteen years of age if a male, or under eighteen years of age if a female, or any person of unsound mind, out of the keeping of the lawful guardian of such minor or person of unsound mind, without the consent of such guardian, is said to kidnap such minor or person from lawful guardianship."
It will thus be seen that taking or enticing away a minor out of the keeping of a lawful guardian is an essential ingredient of the offence of kidnapping."
-:- 12 -:-
Criminal Appeal No.857 of 2009 In the light of the aforesaid judgment, it is to be seen whether the appellant was intended to take the prosecutrix from her lawful guardianship. Also, the judgment passed by the Single Bench of this Court in case of "Alsingh Vs. State of M.P.", [1983 JLJ S.N.63], in which it is held that if it was proved that the prosecutrix was taken away but, the purpose is not proved then, offence under section 366 of IPC will not be constituted. As discussed above, the appellant was an old person. He was not at all interested to take the prosecutrix away from her legal guardianship but, he was taking her to a hidden place, so that the appellant and the prosecutrix could not be seen by the others and he could commit the offence of rape. Under such circumstances, it would be apparent that the appellant was not intended to kidnap the prosecutrix and therefore, he has not done the offence of kidnapping by taking her into bushes. The learned Additional Sessions Judge erred in convicting the appellant for offence punishable under section 363 of IPC.
16. So far as the sentence is concerned, it is apparent that the appellant has faced the trial and appeal since last 4 years. He remained in the custody from his date of arrest i.e. 26.5.2008 till the disposal of the trial. Thereafter, he remained in the custody during the appeal and therefore, he is in the custody since last 4 years. He has undergone in the
-:- 13 -:-
Criminal Appeal No.857 of 2009 custody for more than the period, which is prescribed for offence punishable under section 354 of IPC therefore, it is a fit case in which the sentence of the appellant may be reduced to the period, which he has already undergone in the custody and looking to the excessive period of custody, no fine amount is required to be imposed afresh.
17. On the basis of the aforesaid discussion, the appeal filed by the appellant is hereby partly allowed. The conviction as well as sentence directed for offence punishable under section 363 and 376 read with section 511 of IPC is hereby set aside. He is acquitted from the charges of offence punishable under section 363, 376 read with section 511 of IPC but, he is convicted for the offence punishable under section 354 of IPC and sentenced for the period which he has already undergone in the custody. The appellant shall be entitled to get the fine amount back, if he has deposited before the trial Court.
18. Registry is directed to issue a supersession warrant accordingly, so that the appellant be released forthwith.
-:- 14 -:-
Criminal Appeal No.857 of 2009
19. Copy of the judgment be sent to the trial Court with its record for information.
(N.K.GUPTA) JUDGE 6/9/2012 Pushpendra