Punjab-Haryana High Court
Bahadur vs State Of Haryana on 17 January, 2011
Author: Kanwaljit Singh Ahluwalia
Bench: Kanwaljit Singh Ahluwalia
Criminal Appeal No. 1273-SB of 2001 1
In the High Court of Punjab and Haryana, at Chandigarh.
Criminal Appeal No. 1273-SB of 2001
Date of Decision: 17.1.2011
Bahadur
...Appellant
Versus
State of Haryana
...Respondent
CORAM: HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA.
Present: Mr. Rajinder Singh Sihota, Senior Advocate
with Mr. B.R. Rana, Advocate
for the appellant.
Mr. Sandeep S. Mann, Senior Deputy Advocate
General, Haryana, for the respondent.
Kanwaljit Singh Ahluwalia, J. (Oral)
The appellant was nominated as an accused in case FIR No. 27 dated 18.1.1999, registered at Police Station Nuh, under Section 376/511 IPC.
The Court of Additional Sessions Judge, Gurgaon, vide its judgment dated 24.10.2001, held the appellant guilty for the offence under Section 376 read with section 511 IPC and vide a separate order dated 25.10.2001, sentenced him to undergo rigorous imprisonment for a period of four years and to pay a fine of ` 1,000, in default whereof to further undergo rigorous imprisonment for a period of one month.
In the present case, FIR was registered on the basis of a statement Ex.PA made by PW.3 the prosecutrix (the name of prosecutrix Criminal Appeal No. 1273-SB of 2001 2 is withheld in order to conceal her identity) wherein she stated that she was the resident of village Andhuka and her husband was employed as a Truck Driver in Delhi. On 17.1.1999 at about 3.00 P.M., she along with her sister-in-law (Nanand) namely Lakho had gone from her house to village Sudaka to purchase bangles for the festival of Id. On the way, she went to the fields of Bani Singh Meo to ease herself whereas her sister-in-law had gone ahead. At that time, the accused/appellant who was standing near the fields came from behind and took the prosecutrix into his grip and made her lie down in the sarson fields. He made an attempt to break the string of her salwar and to commit rape. At that time, the prosecutrix raised a noise which attracted her sister-in-law Lakho to the spot. On hearing the noise, accused ran away from the spot. The string of salwar of the prosecutrix was broken and she came back to the house and narrated the whole episode to her in-laws. On the next day, her husband returned back from Delhi and then accompanied by him she went to the Police Station to lodge the report.
The above said FIR was investigated and the report under Section 173 Cr.P.C. was submitted. The accused was committed to the Court of Sessions Judge, Gurgaon, who had entrusted the case to the Court of Additional Sessions Judge, Gurgaon, for trial.
The appellant was charged for the offence under section 376 read with Section 511 IPC. The charge stated that on 17.1.1999 in the area of village Kheraka, the appellant had made an attempt to commit rape on the prosecutrix and broke the string of her salwar and made her to fall on the ground, thus, committed an offence punishable under Section 376 read with Section 511 IPC. The appellant pleaded not guilty Criminal Appeal No. 1273-SB of 2001 3 and claimed trial.
The prosecutrix appeared as PW.3. In her cross-examination, she admitted that her father-in-law was in civl litigation with the father of the accused regarding the land. She further stated that their fields and the fields of appellant adjoin each other. Lakho, sister-in-law of the prosecutrix, appeared as PW.4 and corroborated the testimony of the prosecutrix. PW.5 Dr.M.S. Ranga examined the appellant and opined that there was nothing to suggest that the appellant was incapable of performing sexual intercourse. No medical evidence was led by the prosecution to say as to whether the prosecutrix received any scratch, bruise or abrasion when the alleged attempt to rape was made. The other witnesses, so examined by the prosecution, can be noticed as under.
PW.1 Kaptan Singh was posted as Station House Officer, Police Station, Nuh, who had prepared a report under Section 173 Cr.P.C. PW.2 Om Parkash, Assistant Sub Inspector, had sent the statement Ex.PA, made by the prosecutrix, to the Police Station on the basis of which formal FIR Ex.PA/2 was recorded. PW.6 Hari Kishan, Head Constable, had carried the special report. PW.7 Bijender Singh, Assistant Sub Inspector, effected formal arrest of the accused on 10.12.1999. PW.8 Om Parkash, Assistant Sub Inspector, had recorded the statement Ex.PA made by the prosecutrix. PW.9 Rajinder Parshad, Patwari, had prepared the scaled site plan Ex.PE. In his cross- examination, it is stated that he had appeared as one of the witnesses in the land dispute between the parties and the land of the father of the appellant is at a distance of three acres from the place of occurrence. Criminal Appeal No. 1273-SB of 2001 4 Thereafter, the statement of accused was recorded under Section 313 Cr.P.C. wherein he denied all the incriminating circumstances and stated that he has been falsely implicated in the present case.
DW.1 Jumma was examined to say that there was a civil and criminal litigation pending between the partes. DW.2 Noor Mohd., father of the appellant, also appeared to say that the civil and criminal litigation is pending between the parties.
Mr. Rajinder Singh Sihota, Senior Advocate, assisted by Mr.B.R. Rana, Advocate, appearing for the appellant, submits that in the present case, when the prosecutrix was laid down in the fields and the string of her salwar was broken, she must have struggled and scuffled with the appellant and may have suffered some scratches of bruises and abrasions on her person. Therefore, it was incumbent upon the prosecution to get the prosecutrix medicolegally examined so that the clinical observation should have been brought on the record. Leaned senior counsel further submits that non examination of the prosecutrix by any doctor medically, is fatal to the prosecution. Learned counsel further submits that it has come in the cross-examination of the prosecutrix that there was a civil litigation of land dispute between the families of the prosecutrix and the accused, therefore, the appellant has been falsely implicated. It is next contended that the occurrence in the present case had taken place on 17.1.1999, whereas the FIR was registered on 18.1.1999. The delay of one day, in reporting the matter to the police, was used for consultation and deliberation to involve the appellant in a false case. Lastly, it is contended by learned senior counsel that the offence, if any, will fall under Section 354 IPC and not under Section 376 Criminal Appeal No. 1273-SB of 2001 5 read with Section 511 IPC.
I have given my thoughtful consideration to the rival submissions made by learned counsel for the parties.
In the social set up of our Country, it cannot be comprehended that any woman comes forward to level the allegation of rape or an attempt to rape her, simply because families of the accused and the prosecutrix are embroiled in civil litigation. Furthermore, the prosecutrix has explained the delay that on the next day of occurrence when her husband had returned to home, she narrated the whole incident to him and thereafter she went to the police station to lodge the report. This Court cannot become oblivious of the fact that an attempt is always made to save the reputation and honour of the family and no woman would come forward to lodge the report until there is a consent of the husband. Therefore, it was but natural for the prosecutrix to wait for the arrival of her husband. Lastly, in the present case, the occurrence had taken place in the Sarson fields. It is well known that in the mustard fields, the possibility of suffering of any scratch, bruise or abrasion is not there because the mustard crop, in itself, is nothing but soft leaves. Thus, all these arguments are liable to be rejected. However,this Court has to give due consideration to the argument that no offence under Section 376 read with Section 511 IPC is made out but the offence, if any, will fall under Section 354 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 Criminal Appeal No. 1273-SB of 2001 6 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) 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 Criminal Appeal No. 1273-SB of 2001 7 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."Criminal Appeal No. 1273-SB of 2001 8
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, Criminal Appeal No. 1273-SB of 2001 9 p. 922). In that case the complainant, a milkmaid, aged 12 or 13 years, who was 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 Criminal Appeal No. 1273-SB of 2001 10 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.
This Court in Subash Chander v. State of Haryana, 1983 Recent Criminal Reports 283 held Criminal Appeal No. 1273-SB of 2001 11 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 Criminal Appeal No. 1273-SB of 2001 12 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."
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.
The maximum sentence prescribed under Section 354 IPC is two years. In the present case, the occurrence has taken place in January 1999 and a period of more than 12 years is going to elapse. The appellant, during this period, has suffered mental pain and agony of protracted trial. Considering this as a mitigating circumstance and the Criminal Appeal No. 1273-SB of 2001 13 fact that the appellant was about 25 years of age on the date of occurrence, the ends of justice will be fully met in case, sentence of nine months rigorous imprisonment is awarded to the appellant under Section 354 IPC with a fine of ` 10,000, in default whereof to further undergo rigorous imprisonment for a period of three months.
With the observations made above, the present appeal is disposed of.
(Kanwaljit Singh Ahluwalia) Judge January 17, 2011 "DK"