Punjab-Haryana High Court
Pritam Singh vs State Of Haryana on 22 February, 2010
Criminal Appeal No. 978 SB of 1998 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Criminal Appeal No. 978 SB of 1998
Date of decision:22-1-2010
Pritam Singh .........Appellant
Vs
State of Haryana .........Respondent
CORAM:- HON'BLE MR. JUSTICE HARBANS LAL
Present: Shri Anmol Partap Singh, Advocate, for the appellant
Shri Tarunveer Vashisth, Addl. Advocate General Haryana
HARBANS LAL, J.
This appeal is directed against the judgment dated 17.11.1998/ order of sentence dated 20.11.1998 passed by the Court of learned Additional Sessions Judge, Faridabad whereby he convicted and sentenced the accused Pritam Singh to undergo rigorous imprisonment for a period of 4 years and to pay a fine of Rs.400/- under Section 376 read with Section 511 of the Indian Penal Code and in default of payment of fine to further undergo imprisonment for a period of one month and also sentenced him to undergo rigorous imprisonment for a period of 1 year and to pay fine of Rs.100/- under Section 451 of the Indian Penal Code and in default of payment of fine to further undergo imprisonment for a period of 10 days.
As the prosecution story goes, on 14.4.1996 Sant Ram alongwith his wife Beerwati was away to their fields. Their daughter Priya aged about 5 years was all alone in the house. Around 3.30 P.M. Smt. Rakesh wife of Sant Ram's brother entered the house and on hearing the cries of Priya rushed to the room on the first floor of the house. She saw that Criminal Appeal No. 978 SB of 1998 2 the accused had made Priya to lie on a cot and was fondling with her private parts after having removed her underwear. Besides this, the accused had also made Priya to clutch his penis in her hand. On being raised alarm by Smt. Rakesh, Jai Chand brother of Sant Ram came at the spot. The accused managed to escape by pushing aside Smt. Rakesh. When Sant Ram as well as his wife returned home, this was narrated to them by Smt. Rakesh as well as Jai Chand. An application containing these allegations was moved to the police. The case under Section 354/452 of the Indian Penal code was registered. In due course, the accused was arrested. Subsequently, the offence was enhanced to Section 376 of the Indian Penal Code read with Section 511 of the Indian Penal Code. After completion of investigation, the charge-sheet was laid in the court.
The accused was charged under Section 376 read with Section 511 of the Indian Penal Code as well as Section 451 of the Indian Penal Code to which he did not pleaded guilty and claimed trial.
In order to substantiate its allegations, the prosecution examined PW-1 Dr. Vinita Singh, PW-2 Anoj Kumar Draftsman, PW-3 Smt. Rakesh, PW-4 Sant Ram father of the prosecutrix, PW-5 Jai Chand, PW-6 Priya, PW-7 Hanuman Parsad, PW-8 Sarup Singh HC, PW-9 Sadhu Ram SI and closed its evidence.
When examined under Section 313 Cr.P.C., the accused denied all the incriminating circumstances appearing in the prosecution evidence against him and pleaded innocence as well false implication. He has put forth the following theory of rival defence:-
" I am member of Gram Panchayat Shahpura and I belong to the group of Sarpanch Smt. Savitri Devi while the complainant Criminal Appeal No. 978 SB of 1998 3 belongs to opposite party and the members of opposite group brought a no confidence motion against the present Sarpanch in which I cast my vote in favour of the present Sarpanch Smt. Savitri and merely on this fact, the complainant alongwith members of opposite group have zealous and political rivalry with me and they got a false case registered against me while nothing incriminating has since ever been committed by me as alleged. I have been falsely implicated due to party faction in the village."
In his defence, he has examined Inderjit Singh Lambardar as DW-1.
After hearing the learned Public Prosecutor for the State, the learned defence counsel and examining the evidence on record, the learned trial Court convicted and sentenced the accused as noticed at the outset. Feeling aggrieved therewith, he has preferred this appeal.
I have heard the learned counsel for the parties, besides perusing the record with due care and circumspection.
The learned counsel for the appellant submitted with great eloquence that there are no allegations in the F.I.R. that the appellant was making efforts to penetrate his penis in the vagina of the prosecutrix. The only allegation is that he was fondling with the private part of the prosecutrix. Worse still, Dr. Vinita Singh PW-1 who medico legally examined the prosecutrix has stated that " In my opinion, there is no objective sign of attempt of sexual intercourse." This evidence go a long way in proving that no offence under Section 376 read with Section 511 of the Indian Penal Code is made out and it is because of this reason that the F.I.R. was registered merely under Section 354 as well as 452 of the Indian Criminal Appeal No. 978 SB of 1998 4 Penal Code. He had been emphatic in the course of arguments that as ruled by the Supreme Court in Aman Kumar and others Vs. State of Haryana 2004(4) Supreme Court Cases 379 mere intention to commit an offence, not followed by any act, cannot constitute an offence. An attempt consists it in the intent to commit a crime, falling short of its actual commission. Thus, in this case, no offence worth the name is made out.
To tide over these submissions, the learned State counsel agitated at the bar that the prosecutrix while appearing as PW-6 has solemnly affirmed that "Bad act was done with me." This statement in itself is enough to sustain the conviction recorded by the learned trial Court. I regret my inability to be one with the learned State counsel. As per allegations in Ex.PC, which became the basis of the F.I.R. the accused had laid Priya on the cot and after removing her underwear, he was rubbing his hand on her private part and he had made Priya to keep his male organ in her hand. There are no allegations at all that he was making endeavour to insert his penis into her private part. Dr. Vinita Singh (sic) has also opined that there was no objective sign of attempt of sexual intercourse. The case has been registered at the instance of Sant Ram father of the prosecutrix. He is not an eye witness. As alleged the occurrence was seen by Smt. Rakesh PW-3 who has testified that " I went upstairs and there I found Priya lying naked on the cot. Accused present in the court was sitting on the cot. He was also naked. On seeing me there, accused got up and wore his Doha. The girl was still crying. The girl told me that the accused was going to have sexual intercourse with her. The girl was profusely bleeding and out of pain, she was crying. The accused was doing sexual intercourse with her." When she deposed the later part, she was declared hostile by the learned Public Criminal Appeal No. 978 SB of 1998 5 Prosecutor. When she was cross-examined by the learned Public Prosecutor she stated that " I had seen the accused fondling with the private parts of Priya. It is correct that the accused had given his penis in the hands of Priya. It is correct that I have told lie about the bleeding of the girl and committing sexual intercourse by the accused with her as I had not seen any such thing." On appraising her entire evidence, it transpires that the appellant was merely outraging modesty of the prosecutrix. Of course, the prosecutrix as PW-6 has deposed that bad act was done with her. It is apt to be borne in mind that the occurrence took place in April, 1996 though she was examined on 27.7.1998. During this interregnum she would have been tutored by her parents or other relatives. If the bad act had been done with her, it would have certainly come to the surface during her medico legal examination. In Aman Kumar and another(supra), it has been held that the word "Modesty" is not defined in the Indian Penal Code. Modesty can be described as the quality of being modest; and in relation to woman, "womanly propriety of behaviour; scrupulous chastity of thought, speech and conduct." The person assaulted must be a woman. Accused must have used criminal force on her intending thereby to outrage her modesty. The essence of modesty is her sex. The act of pulling a woman, removing her dress coupled with a request for sexual intercourse, is such as would be an outrage to the modesty of a woman. What the prosecution has demonstrated is that the appellant to outrage the modesty had removed the underwear of the prosecutrix. Had the appellant been attempting to commit rape, he by all probabilities instead of rubbing his hand on the private part of the prosecutrix would have been making attempt to put his penis into the vagina of the prosecutrix. In Tarkeshwar Sahu Vs. State of Bihar(Now Jharkand) Criminal Appeal No. 978 SB of 1998 6 (2006) 8 Supreme Court Cases 560 it has been held that in the absence of any attempt to penetrate, conviction under Sections 376/511 was wholly illegal and unsustainable.
In consequence of the preceding discussion, it is held that the prosecution evidence falls short of establishing the offence under Section 376 read with Section 511 of the Indian Penal Code. On the given evidence, charge under Section 354/451 of the Indian Penal Code is made out. Accordingly, the charge is altered to Sections 354/451 of the Indian Penal Code whereunder he is convicted.
The learned counsel for the appellant has made a misericordious submission that the appellant being 66 years of age may be released on probation.
I have given a deep and thoughtful consideration to this submission. It is worth pointing out here that at the time of occurrence the prosecutrix was aged about 5 years. The appellant being major could well understand the consequences of the misdeed being committed by him. If he is released on probation of good conduct, the conscience of the prosecutrix who by now might have attained majority as well as her parents would be sufficiently shocked. The maximum sentence as prescribed by the Legislature under Section 354 I.P.C. is 2 years or with fine or with both. The appellant has been facing the agony of trial since April, 1996. This incident is more than 13 years old. Taking into consideration the cumulative facts and circumstances of the case, the appellant is sentenced to undergo 4 months rigorous imprisonment and to pay a fine of Rs.400/- under Section 354 I.P.C. and in default of payment of fine, he shall further undergo imprisonment for a period of one month. The note recorded at the foot of Criminal Appeal No. 978 SB of 1998 7 the impugned judgment reveals that the amount of fine has already been deposited by the appellant. That being so, the amount of fine of Rs.400/- paid towards the commission of offence under Section 376 read with Section 511 of the Indian Penal Code shall stand adjusted towards the offence under Section 354 of the Indian Penal Code. The maximum sentence prescribed by the Legislature under Section 451 of the Indian Penal Code is 2 years apart from fine. However, if the offence intended to be committed under this Section is theft, the term of imprisonment may be extended to 7 years. In the factual scenario, the sentence awarded under Section 451of I.P.C. is also reduced to 4 months. The sentences shall run concurrently.
With the above modification in the judgment/order of sentence, this appeal fails and is dismissed.
The Registry is directed to send a copy of this judgment to the learned Trial Court as well as court of learned Chief Judicial Magistrate, Faridabad who shall take necessary steps to send the appellant to the prison for serving out the unexpired period of his sentence.
(HARBANS LAL) JUDGE January 22, 2010 RSK NOTE: Whether to be referred to the Reporter or not? Yes