Uttarakhand High Court
Karanpal vs State Of Uttarakhand on 6 January, 2020
Equivalent citations: AIRONLINE 2020 UTR 12
Bench: Alok Singh, Ravindra Maithani
Reserved on: 26.11.2019
Delivered on: 06.01.2020
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Criminal Appeal No. 530 of 2013
Karanpal ....... Appellant
Vs.
State of Uttarakhand .......Respondent
Mr. R.S.Sammal, Advocate for the appellant.
Mr. V.K. Jemini, Deputy Advocate General with Mr. S.S. Adhikari, A.G.A. for the
State.
Coram: Hon'ble Alok Singh, J.
Hon'ble Ravindra Maithani, J.
Per: Hon'ble Ravindra Maithani, J.
This appeal is directed against the judgment and order dated 08.08.2013, passed in Sessions Trial No. 73 of 2011, State Vs. Karanpal by the court of learned 3rd Additional Sessions Judge, Haridwar. By the impugned judgment and order, the appellant has been convicted under Sections 307 and 376 read with Section 511 IPC and sentenced as hereunder:
"(i) Under Section 307 IPC, imprisonment for life & a fine of Rs.20,000/- In default of payment of fine to undergo rigorous imprisonment for a further period of three years.
(ii) Under Section 376 read with Section 511 IPC, rigorous imprisonment for ten years and a fine of Rs.10,000/-. In default of payment of fine to undergo rigorous imprisonment for a further period of two years."
2. Prosecution case, briefly stated, is that on 03.01.2011 at about 4:00 PM, PW1 father of the victim was guarding his mustered crop in the field, when his daughter PW2 the victim, reached there and asked him to go back home, as her maternal uncle had arrived there. Leaving the victim in the field, PW1 father of the victim came to his 2 house. After an hour, when PW1 father of the victim and his brother-in- law PW4, both went back to the field, they did not find the victim. They searched for her. They heard her, crying in pain. They could locate that in the adjoining field PW2 the victim was lying in a pool of blood in disrobed condition. The victim was taken to the hospital. Medical was conducted and a report of the incident was lodged by PW1 father of the victim on the same day, at 9:00 PM at the police station. Crime No. 2 of 2011, under Section 307 IPC was lodged at the police station. In fact, prior to the lodging of the FIR, the victim was medically examined at 8:10 PM, on the same day by PW10 Dr. A.K. Paliwal at HMG Hospital, Haridwar. The victim was referred to another hospital, therefore, after lodging the FIR, the victim was again examined at Government Women Hospital, Haridwar at 10:40 PM by PW7 Dr. P.R. Pandey. The victim was unconscious; she was yet again referred to higher center; she was thereafter admitted in the Himalayan Institute Hospital Trust, Jolly Grant, Dehradun, where she remained hospitalized for a long.
3. Investigation was carried out by PW8 Sub-Inspector, Sanjeev Kumar. He prepared the site plan, took into custody the plain and blood stained soil from the place of occurrence. He also recovered hair from the place of incident. He took the sample of hair from the appellant and sent them for forensic examination. The clothes of the victim and the appellant were also recovered. According to the prosecution, on 08.01.2011, when the appellant was interrogated again, he confessed his guilt. His confession was recorded and it is, thereafter, he recovered his blood stained clothes. After investigation, charge sheet 3 was submitted against the appellant. Cognizance taken and the case was committed to the court of sessions for trial. On 21.05.2011, charges under Sections 307 and 376 read with Section 511 IPC were levelled against the appellant, to which, he denied and claimed trial.
4. In order to prove the case, prosecution examined as many as eleven witnesses, namely, PW1 father of the victim, PW2 the victim, PW3 mother of the victim, PW4 maternal uncle of the victim, PW5 Budh Singh, PW6 Jogendra Yadav, PW7 Dr. P.R. Pandey, PW8, Sub Inspector, Sanjeev Kumar, PW9 Head Constable, Anuj Gairola, PW10 Dr. A.K. Paliwal and PW11 Dr. K.K. Bansal.
5. Appellant was examined under Section 313 of the Code of Criminal Procedure, 1973 (hereinafter referred to as "the Code"), According to the appellant, he has been falsely implicated; appellant, in his examination has stated that the informant had stolen the crops from his field, therefore, he has been falsely implicated. In defence, three witnesses were examined by the appellant.
6. Having considered the arguments and on the basis of the evidence on record, learned court below convicted and sentenced the appellant, as stated hereinbefore. Aggrieved by it, the appellant preferred the appeal.
7. Heard learned counsel for the appellant, learned counsel for the State and perused the record.
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8. Learned counsel for the appellant would argue that the statement of the victim is not reliable; police tutored her; she had not seen as to who attacked her; she was told by the police to name the appellant; the police, in anxiety to solve the case falsely implicated the appellant. According to learned counsel no identification parade was ever conducted in this case. Simply, the sole appellant was identified by the victim in the court. It has no evidentiary value. There is no other evidence which could support the prosecution case. There is no evidence for the offence under Section 376 IPC. The prosecution utterly failed to prove the charges against the appellant. The appellant ought to have been acquitted of the charges, but the learned court below committed an error in convicting and sentencing him. Therefore, it is argued that the appeal deserves to be allowed and appellant acquitted of the charges.
9. On the other hand, learned counsel for the State would argue that it is a case based on direct evidence. The victim had occasion to identify the appellant. Had the informant any intention to falsely implicate the appellant, he would have been named in the FIR. The FIR is not named. The victim was seriously injured. She was hospitalized for a long and when regained consciousness, she named the appellant. She has stated about it. Her evidence is supported by the medical evidence and other witnesses have also corroborated her statement. It is argued that prosecution has been able to prove the charges against the appellant 5 and learned court below did not commit any error in convicting the appellant.
10. PW1 is informant in the case. According to him, on the date of incident, he was in his mustered field guarding it. When at about 4:00 PM his daughter, the victim, came to call him saying that her maternal uncle had come to their house. Leaving her daughter, the victim in the field, he went back to his house. After a while, when he alongwith his brother-in-law PW4 reached at the field, on the way, they saw the appellant. In the field, they did not find the victim. They searched for her; called her by name; they heard the cry in pain of the victim and found the victim in the adjoining field in a disrobed condition, in a pool of blood. She was unconscious. According to PW1 father of the victim, he took the victim to the hospital and lodged an FIR. After few days, he also handed over to the police, the clothes worn by the victim at the time of incident. He proved those clothes.
11. PW2 is the victim. She was questioned by the court to ascertain her ability to depose. Once satisfied, her deposition was recorded. According to the victim, she studied up to Class-VI. A year prior to the incident, she had left the school. She corroborated the statement of PW1 father of the victim. According to her, on 03.01.2011, at about 5:00 PM, her maternal uncle had arrived at her house and sent her to call her father. She went to the field and called her father and stayed back in the field. According to PW2 the victim, at that time, the appellant approached her and requested her to help him in raising the 6 bunch of grass. With a view to assist or help the appellant, the victim went with him, but she did not found any bunch of grass there. The appellant caught hold of her and asked her to open her pant. The victim cried and threatened the appellant that she would reveal it to her father. The appellant hold her by neck and threw on the ground, opened her pant, inserted his penis into her vagina and, thereafter, hit her head with a stone, due to which, she became unconscious. PW2 the victim has also proved her statement recorded under Section 164 of the Code.
12. PW3 is mother of the victim and PW4 is maternal uncle of the victim. They both have corroborated the statement of PW2 the victim. It may be noted here that according to PW3 mother of the victim, when her daughter regained consciousness, she named the appellant as the assailant.
13. PW5 Budh Singh had stated that in his presence, appellant had confessed his guilt and handed over his clothes to the police. He proved those clothes.
14. PW6 Constable, Jogendra Yadav is another witness of recovery. In fact, he has stated about the steps taken by the Investigating Officer.
15. PW8 Sub Inspector, Sanjeev Kumar is the Investigating Officer, who took into custody hair from the place of incident as well as the plain and blood stained soil. He also took into custody the clothes 7 worn by the appellant as well as the victim at the time of incident. Prepared the site plan; took the samples of the appellant from the jail, Roshnabad, on 24.02.2011 and sent these articles for forensic examination on 01.03.2011. This witness has stated about it. PW6 Constable, Jogendra Yadav has also stated about taking into custody the clothes worn by the appellant and other articles by PW8 Sanjeev Kumar.
16. PW10 Dr. A.K. Paliwal, examined the victim at 08.10 PM on the date of incident and found following injuries:
"1. Multi-lacerated wounds 18 x 6 x bone deep side tempo-parital region with severe bleeding. Injury was KUO. Advised X- ray.
2. Lacerated wound 10 x 0.5 cm x bone deep on left side temporal region 7 cm above on left ear. Injured was KUO. Advised X-ray.
3. Lacerated wound 1.5 cm x 0.5 cm on middle of upper lip.
Fresh bleeding present.
4. Contusion 6.4 cm on right side face. 2 cm lateral on right angle of mouth. Injured KUO. Advised X-ray.
5. Contusion swelling 7 x 2 cm on right side upper lip. Reddish in color."
According to the doctor, few injuries were kept under observation; victim was unconscious and she was referred to Female Hospital for an expert opinion.
17. It was PW7 Dr. P.R. Pandey, who examined the victim on the same day at 10:40 PM and observed as hereunder:
"Labia majora developed Labia minora developed Hymen is not intact Vagina admit one finger No clinical injury present over perenium"8
PW7 Dr. P.R. Pandey proved the report submitted by him. According to him, in pathology report, dead or alive spermatozoa was not detected.
18. PW11 Dr. K.K. Bansal is the doctor, who admitted the victim in the Himalayan Institute Hospital Trust, Jolly Grant, Dehradun on 03.01.2011. He proved the discharge summary Ex. A20.
19. It may be noted at this stage that the incident occurred sometimes at about 5:00 PM on 03.01.2011. At 8:10 PM, the victim was first examined by PW10 Dr. A.K. Paliwal, who noted the injuries and found the victim in an unconscious state and referred her to the higher center. At 10:40 PM, on the same day, the victim was examined in the Female Hospital by PW7 Dr. P.R. Pandey and on the same day, the victim was admitted in the Himalayan Institute Hospital Trust, Jolly Grant, Dehradun.
20. During the course of argument, learned counsel for the appellant as well as learned State counsel would submit that the distance between the Female Hospital, Haridwar and Himalayan Institute Hospital Trust, Jolly Grant is about 30 Kms. At about 10:40 PM, the victim was examined in the Female Hospital, Haridwar and same day means before 12 midnight, the victim was admitted in the Himalayan Institute Hospital Trust, Jolly Grant, where she remained admitted till 24.01.2011. The witnesses have spoken about it that she was not in a condition to speak for a long after the incident.
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21. An argument has been advanced that according to PW11 Dr. K.K. Bansal, all the injuries were not dangerous to life. It is true that PW11 Dr. K.K. Bansal in his cross examination has stated that the injuries were not so grievous in nature. This fact has to be seen, in view of the other attending circumstances. First and foremost statement of the victim needs to be scrutinized.
22. Learned counsel for the appellant placed reliance upon the principles of law, as laid down in the cases of Mulla and another Vs. State of UP, AIR 2010 SC 942 and Bhagwan Singh and others Vs. State of M.P., (2003) 3 SCC 21. In the case of Mulla and another (supra), Hon'ble Court, inter alia, held that if a witness identifies an accused for the first time in the Court, it should not form the basis for conviction. It was held as hereunder:
"21. Failure to hold test identification parade does not make the evidence of identification in court inadmissible, rather the same is very much admissible in law. Where identification of an accused by a witness is made for the first time in Court, it should not form the basis of conviction. As was observed by this Court in Matru v. State of U.P. (1971) 2 SCC 75 : (AIR 1971 SC 1050), identification tests do not constitute substantive evidence. They are primarily meant for the purpose of helping the investigating agency with an assurance that their progress with the investigation into the offence is proceeding on the right lines. The identification can only be used as corroborative of the statement in Court. (Vide Santokh Singh v. Izhar Hussain, (1973) 2 SCC 406) : (AIR 1973 SC 2190)."
23. In the case of Bhagwan Singh (supra), Hon'ble Supreme Court cautioned about accepting the evidence of the child witness; the Court held as hereunder:
"22. It is hazardous to rely on the sole testimony of the child witness as it is not available immediately after the occurrence of the incident and before there were any possibility of coaching and tutoring him. See: Paras 14-15 of State of Assam vs. Mufizuddin Ahmed (1983) 2 SCC 14. In that case evidence of child witness is appreciated and held unreliable thus:10
14. The other direct evidence is that deposition of PW7, the son of the deceased, a lad of 7 years. The High Court has observed in its Judgment:-
.................the evidence of a child witness is always dangerous unless it is available immediately after the occurrence and before there were any possibility of coaching and tutoring.
15. A bare perusal of the deposition of PW7 convinces us that he was vacillating throughout and has deposed as he was asked to depose either by his Nana or by his own uncle. It is true that we cannot expect much consistency in the deposition of this witness who was only a lad of 7 years. But from the tenor of his deposition it is evident that he was not a free agent and has been tutored at all states by someone or the other.
24. Undoubtedly, the victim is a child. The Court recorded her age between 12 to 14 years. No ossification test, as such, has been proved by the prosecution as to what her age was? Appellant is simply charged under Section 376 read with 511 and Section 307 IPC. The incident is of the year 2011.
25. The main argument on behalf of the defence is about false implication. Learned counsel for the appellant would argue that in her cross-examination, the victim has admitted that police had told her the name of the assailant as Karanpal and she deposed the same name in the court. This statement is recorded at page 3 bottom and page 4 beginning of the statement of PW2 the victim. In that part of her statement, the victim has stated that police had told her the name of person, who assaulted her, who was Karanpal. When her statement was recorded in the court, she was not taken by the police in the court. She named the 11 same person in the court, which police had revealed to her. Based on this statement, it is being argued that police had already told the name of the appellant to the victim and thereafter, she deposed about it.
26. The basic principle of appreciation of evidence is that the evidence of the witness is to be read in its totality. In the cases of child witness, on the one hand, there are chances of tutoring, on the other hand, the court should also be aware of the situation, under which, child witness is cross examined. The Court should be aware of the manner in which questions are put so as to put words in the mouth of a child witness.
27. It is categorical case of the prosecution that on 08.01.2011, when appellant was interrogated by PW8 Sanjeev Kumar, Investigating Officer, he confessed his guilt and recovered the clothes worn by him at the time of incident. Appellant was arrested on the same day, till then, the victim was not in a state of giving her statement. PW8 Sanjeev Kumar, Investigating Officer in his cross examination, at page 4 middle lines has stated that on 12.01.2011, he had gone to Himalayan Institute Hospital Trust, Jolly Grant, but the victim was not in a condition to speak.
28. Now, the question is whether the victim knew the appellant at the time of incident? Had she any occasion to identify the assailant or was she simply told to name the appellant by the police? For this purpose, the site plan would be of little help. It has been proved by PW8 12 Sanjeev Kumar, Investigating Officer. In this, the field of PW1 father of the victim is shown, in which, the crop of mustered was growing. Adjoining to it, on the southern side, after the road, there is a sugarcane field of the appellant. PW1 father of the victim did not own this field to which he was guarding on that day. He had taken it on contract for the purpose of cultivation. The field, in which, the victim was present at the time when she was called by the appellant is on the northern side, after the chak road, of the field of the appellant. The victim has been cross examined in detail about the appellant. In page 3 paragraph 2, the victim had categorically stated that they have no relationship with the appellant and the appellant is not resident of their village.
29. PW2 the victim has proved her statement recorded under Section 164 of the Code. In her statement, which is recorded on 28.01.2011, she had named the appellant and also told that the appellant is the resident of Shivgarh, which was earlier known as Navalpur. PW2 the victim narrates the incident and categorically named the appellant. She has not been put a question as to how does she know the appellant? This is not a case that the appellant was not known to the victim. Their fields are adjoining. She tells about the appellant. Merely because, at one stage, PW2 the victim has stated that she named the same person in the court, who was named by the police to her, as assailant, does not doubt the statement of PW2 the victim, about the identity of the appellant. PW2 the victim, in page 4 paragraph 2 bottom lines has categorically stated that she was not told either by her lawyer or her father, as to what statement is to be given in the court. She denied the 13 suggestion that she was naming the appellant at the behest of the police or her father. Statement of PW3 mother of the victim supports her statement, when PW3 mother of the victim says that when the victim regained consciousness, she named the appellant. If police had already identified the assailant, before the victim could regain consciousness, it does not make the statement of the victim doubtful. She has named the appellant as he was the assailant.
30. The victim knew the appellant prior to the date of incident. The victim was unconscious. She was rushed to hospital after hospital, soon after the incident. She had head injury. She survived. Soon after the incident, she was not in a position to give the statement. It is not the case that her statement was not recorded despite her being medically fit to speak. According to the prosecution, on 08.01.2011, appellant confessed his guilt. It is a coincident that before the statement of the victim could be recorded, when she regained consciousness, the appellant was arrested by the Police. This Court is of the view that the statement of PW2, the victim is inspiring confidence. She is not a tutored witness. She is a truthful witness. She has been categorical throughout about the identity of the appellant. Her statement finds support from the statement of PW3 her mother and the medical evidence.
31. Present is not a case of dock identification. It is not a case, in which, test identification parade was required to be conducted. The victim after regaining consciousness has stated the name of the 14 appellant, as assailant. She knew the appellant. It is clear by the manner, in which, she narrated the incident and replied about whereabouts of the appellant; their fields are adjoining. There is no chance of any false implication.
32. An argument is advanced that few days prior to the date of incident, with regard to the stealing of crops from the field of appellant, there was an altercation between the appellant and PW1 father of the victim, therefore, it is a case of false implication. The injuries, which the victim sustained establishes that the incident had occurred. PW2 the victim has stated and confirmed it. Her statement is corroborated. Had it been the case of false implication, as argued by the learned State counsel, FIR would have been named. But, it is not done and there appears to be no reason to leave the real assailant and to falsely implicate the appellant.
33. On behalf of the State, it is argued that even hair were recovered from the place of occurrence, which match with the sample of hair taken from the appellant. This piece of evidence is not reliable. PW8 Sanjeev Kumar, Investigating Officer states that on 04.01.2011, he took into custody some long and short hair from the place of occurrence and then according to him, on 24.02.2011, he took sample of hair from the appellant. This raises more questions. How in a sugarcane field some hair could be detected with naked eye? What forensic tools were used by PW8 to detect hair from the place of occurrence on 04.01.2011? More importantly, even if hair were detected on 04.01.2011 from the 15 place of occurrence, where were they kept till they were sent for forensic examination? If sample was taken on 24.02.2011, where were they kept till 01.03.2011? When they were sent for forensic examination? In whose custody were they? When questioned about it, PW8 Sanjeev Kumar, Investigating Officer in his examination recorded on 13.03.2003, could not reveal anything. How similarity of hair was detected? How Forensic Science Laboratory report says that the hair were of similar type? Whether any DNA analysis was undertaken or what kind of test was conducted? Merely because similarity is shown in the Forensic Science Laboratory report, this Court is not bound to take it as a truth, unless the test undertaken, by which, similarity was detected is disclosed in the report. The forensic examination report does not record as to what test was conducted to identify similarities of the hair. But in the absence of it also, this Court has held that the statement of PW2 the victim is inspiring confidence. In fact, her statement is wholly reliable. It is corroborated by the medical evidence.
34. In defence DW1 Gopi Chand, DW2 Darag Pal and DW3 Suraj Bhan have been examined by the appellant. According to DW1 Gopi Chand, he had heard about the injury on the victim. Some 10-11 days prior to it, there was an altercation between the appellant and the informant. DW2 Darag Pal has also stated about it. DW3 Suraj Bhan states that no fields were taken by any person on contract. This statement is very general. It does not create any doubt in the statement of any of the prosecution witness. In fact, statement of DW1 Gopi Chand and DW2 Darag Pal supports the prosecution case that the 16 appellant was known to the informant. As concluded by this Court in the earlier part of the judgment that the victim had all chances to know the appellant and, in fact, she knew the appellant prior to the date of incident and she had occasion to identify him, which she did.
35. The question is what offence is committed by the appellant? The appellant has been convicted under Section 376 read with 511 IPC and 307 IPC. Firstly, it will be seen as to whether offence under Section 376 read with 511 IPC has been committed? On this aspect, learned counsel for the appellant would argue that no case under Section 376 read with 511 IPC is made out against the appellant, because there has been no penetration, as such; medical has not supported it; there are contradictions in the statement of the victim herself in her statement give under Section 164 of the Code and the statement recorded in the court. The question is, as to whether, the appellant attempted to rape the victim or has he committed simply an offence of outraging the modesty of the victim, as defined under Section 354 of the Code?
36. Needless to say, attempt is a stage, subsequent to preparation to commit the act. In the case of Aman Kumar and another Vs. State of Haryana, (2004) 4 SCC 379, the Hon'ble Court held as hereunder:-
"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 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 the 17 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."
37. In the case of Koppula Venkat Rao, (2004) 3 SCC 602, Hon'ble Supreme Court held that "an attempt to commit an offence is an act, or a series of acts, which leads inevitably to the commission of the offence, unless something, which the doer of the act neither foresaw nor intended, happens to prevent this."(Para 10)
38. In the case of Tarkeshwar Sahu Vs. State of Bihar (Now Jharkhand), (2006) 8 SCC 560, the Hon'ble Supreme Court held as hereunder:
"16. The distinction between rape and criminal assault has been aptly described in the English case R. v. James Lloyd1. In this case, while summing up the charge to the jury, Patterson, J. observed: (ER p. 142) " In order to find the prisoner guilty of an assault with intent to commit 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."
17. A similar case was decided by Mirza and Broomfield, JJ. Of the Bombay High Court in Ahmed Asalt Mirkhan2. 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 from crying and placed his private part 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." 1- (1836) 7 C&P 317: 173 ER 141 2- Cri A No. 161 of 1930, decided on 12-8-1930 in Law of Crimes by Ratanlal Dhirajlal. P. 922. 18
39. In view of the settled legal principles, it is clear that an attempt to commit the offence is an act, which leads to the commission of offence unless something happens in between, which the doer could neither foresaw nor intended. In other words, attempt means that something beyond preparation has been done to complete the act, but which could not be completed due to some intervening factors, which the doer did not foresee or intended. In view of it, instant case will have to be seen.
40. According to the victim, at the time of incident, the appellant caught hold of her and asked her to lower her pant. She cried and told the appellant that she would reveal it to her father. The appellant threw her on the ground and inserted his penis into her vagina. Thereafter, he hit her with a stone on her head. PW2 the victim has also proved her statement recorded under Section 164 of the Code. The victim has stated in her statement under Section 164 of the Code that the appellant disrobed her and sat over her. She told that let she be freed. She would tell it to her father. The appellant hit on her head with a stone. The statement of the victim recorded under Section 164 of the Code is not categorical that the appellant raped her. The victim did not tell at the stage of her statement under Section 164 of the Code that the appellant inserted his penis into her vagina. What she said was that the appellant sat over her. It has to be seen with the medical examination report, which has been quoted hereinbefore. Spermatozoa was not detected in the vaginal smear slides, when she was examined on the same day at 10:40 PM. The hymen was not intact and according to PW7 19 Dr. P.R. Pandey no clinical injury was present around the vagina. PW7 Dr. P.R. Pandey was further cross examined on 26.02.2013 when he said that hymen of the victim was not fresh torn. There was no mark of friction or injury on her vagina and he could not detect any sign of rape or attempt to rape clinically. As stated, in her statement recorded under Section 164 of the Code, the victim did not tell that the appellant raped her. What she said was that the appellant sat over her. According to medical examination report no mark of injury or friction or sign of rape was found on the victim. Spermatozoa was not detected. If the appellant intended to commit rape, what prevented him? There was none, according to the victim herself which stopped the appellant to complete the act. Nothing happened in between, which the appellant could not foresee. It is a fact that according to the victim when the appellant caught hold of her and assaulted her, she cried and told him that she would complain it to her father.
41. In view of all these attending factors, this Court is of the view that this is not a case of attempt to rape, instead, it is a case of assault with intent to outrage the modesty of the victim, which falls under Section 354 IPC. This Court can definitely set aside the conviction under Section 376 read with 511 IPC and convict the appellant under Section 354 IPC. (See Tarkeshwar Sahu's case (supra))
42. It is also argued that offence under Section 307 IPC has not been made out in the instant case because PW11 Dr. K.K. Bansal has categorically stated that the injury, which was inflicted upon the victim 20 was not sufficient to cause her death. The appellant has been convicted under Section 307 IPC. Section 307 IPC is as hereunder:-
"307. Attempt to murder.- Whoever does any act with such intention or knowledge, and under such circumstances that, if he by that act caused death, he would be guilty of murder, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; and if hurt is caused to any person by such act, the offender shall be liable either to imprisonment for life, or to such punishment as is hereinbefore mentioned.
Attempts by life-convicts.- When any person offending under this section is under sentence of imprisonment for life, he may, if hurt is caused, be punished with death."
43. Murder is defined under Section 300 IPC. It is as hereunder:
"Murder.- Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or-
2ndly.- If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or-
3rdly.- If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or-
4thly.- If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid..............."
44. What victim has stated is that the appellant under the pretext of assistance took her along, caught hold of her, asked her to open her pant, when she cried, the appellant fell her on the ground, opened her pant and inserted his penis into her vagina and thereafter, attacked her with a stone. She became unconscious. When victim was examined at 8:10 PM, she was unconscious. For many a days, she was not in a position to speak. Discharge summary has been proved by PW11 Dr. K.K. Bansal. For the first time, injuries were noted by PW10 Dr. A.K. Paliwal. The injuries are on the head and due to those injuries, 21 the victim was unconscious. Investigation is also noted in the discharge summary proved by PW11 Dr. K.K. Bansal, which is as hereunder:
"Investigation:-
NCCT Head with 3-D fall Recurn Emergency (03/01/11):- S/o smallhaemorrhagic contusion in parietal region with SAH with cerebral edema with pneumo cephlous."
45. What is determining factor? The gravity of an injury or the intention to kill?
46. In the case of State of Maharashtra Vs. Balram Rama Patil and others, (1983) 2 SCC 28, Hon'ble Supreme Court, inter alia, held that "to justify a conviction under this Section, it is not essential that bodily injury capable of causing death should have been inflicted. Although the nature of injury actually caused may often give considerable assistance in coming to a finding as to the intention of the accused, such intention may also be deduced from other circumstances, and may even, in some cases, be ascertained without any reference at all actual wounds. The Section makes a distinction between an act of the accused and its result, if any. Such an act may not be attended by any result so far as the person assaulted is concerned, but still there may be cases in which the culprit would be liable under this Section. It is not necessary that the injury actually caused to the victim of the assault should be sufficient under ordinary circumstances to cause the death of the person assaulted. What the Court has to see is whether the act, irrespective of its result, was done with the intention or knowledge and under circumstances mentioned in this Section. An attempt in order to be criminal need not be the penultimate act. It is sufficient in law, if 22 there is present an intent coupled with some overt act in execution thereof."
47. In the cases of R. Prakash Vs. State of Karnataka, (2004) 9SCC 27, and Girija Shankar Vs. State of U.P. (2004) 3 SCC 793, this principle has been reiterated by the Hon'ble Supreme Court.
48. What is important to bring the offence within the purview of Section 307 IPC is intention coupled with overt act in execution thereof. Nature of injury in itself is not determining fact. Although, it may help the Court to ascertain the intention of the doer.
49. The victim was a girl of 12 years of age. The appellant outraged her modesty and in that process caught hold of her, threw her on the ground, when the victim girl resisted and warned the appellant that she would reveal it to her father, the appellant hit on her head with a stone. The intention is clear and revealing. It was not to cause any injury, but definitely it was inflicted by the appellant to kill the victim girl. He had intention to kill the victim. For a long, the victim was hospitalized. She was unconscious. Therefore, having considered the circumstances, under which, the injury was inflicted and the kind of injury, which was, in fact, inflicted upon the victim girl, this Court is of the view that the act of the appellant falls within the purview of Section 307 IPC.
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50. The quantum of sentence has also been argued by learned counsel for the appellant. It is argued that the sentence is disproportionate to the act committed by the appellant.
51. In the instant case, the appellant has not only outraged the modesty of a girl of tender age but he also attempted to kill her; hit on head with a stone; the victim sustained injuries on her head, which were noted by PW10 Dr. A.K. Paliwal, when for the first time, he examined the victim at 8:10 PM on the date of incident. The victim had to be shifted hospital after hospital to save her life. Fortunately, she survived.
52. Having considered all the attending circumstances, this Court is of the view that the sentence, which have been imposed upon the appellant for the offence under Section 307 IPC is adequate and it also does not require any interference.
53. The appellant has been convicted under Section 354 IPC instead of Section 376 read with 511 IPC. The appellant has to be sentenced under Section 354 IPC.
54. Having considered the punishment which have already been imposed upon the appellant under Section 307 IPC and also keeping in view the circumstances, this Court is of the view that the ends of justice would be served, if the appellant is also sentenced to imprisonment for a period of five years under Section 354 IPC and with a fine of Rs. 5000/-
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55. The conviction and sentence of the appellant under Section 307 IPC is upheld and confirmed.
56. The conviction and sentence of the appellant under Section 376 read with 511 IPC is set aside. The appellant is convicted under Section 354 IPC and sentenced to rigorous imprisonment for a period of five years and to pay a fine of Rs. 5000/-. In default of payment of fine, the appellant shall undergo imprisonment for a further period of one month.
57. The impugned judgment and order is modified to the extent as indicated above.
58. Let a copy of this judgment along with original record be transmitted to court below for compliance.
(Ravindra Maithani, J.) (Alok Singh, J.) Jitendra