Sikkim High Court
Deepak Darjee vs State Of Sikkim on 18 July, 2016
Author: Satish K. Agnihotri
Bench: Satish K. Agnihotri
1
Crl. A. No. 29 of 2015
Deepak Darjee vs. State
HIGH COURT OF SIKKIM, GANGTOK
(Criminal Appellate Jurisdiction)
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HON'BLE SHRI SATISH K. AGNIHOTRI, A.C.J.
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Crl. A. No. 29 of 2015
Deepak Darjee,
Son of late Madan Darjee,
Resident of Nimthang Busty,
Lower Nandok,
Ranipool, East Sikkim.
... Appellant
Versus
The State of Sikkim.
... Respondent
Appeal under Section 374(2) of the Code of
Criminal Procedure, 1973
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Appearance :
Mr. Udai P. Sharma and Mr. Passang Tshering Bhutia,
Advocates for the Appellant.
Mr. J.B. Pradhan, Public Prosecutor with Ms. Pollin
Rai, Asstt. Public Prosecutor for the State.
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2
Crl. A. No. 29 of 2015
Deepak Darjee vs. State
JUDGMENT
(18.07.2016) SATISH K. AGNIHOTRI, A.C.J. The instant Appeal arises from the conviction and sentences vide Judgment dated 28.05.2015 passed by the Court of Special Judge, Protection of Children from Sexual Offences Act, 2012, East District at Gangtok, East Sikkim in S.T. (POCSO) Case No. 24 of 2014, whereunder, the appellant herein was held guilty under provisions of Section 450 IPC and also under Section 376 (2) read with Section 511 IPC and under Section 10 read with Section 18 of the Protection of Children from Sexual Offences Act, 2012 (for short 'POCSO Act'). The appellant was sentenced to rigorous imprisonment for five years and fine of Rs.2,000/- under Section 376/511 IPC. In default of payment of fine, to undergo further imprisonment for two months. Under provisions of Section 10/18 of POCSO Act, he was sentenced to three years and six months rigorous imprisonment and fine of Rs.2,000/-. In default of payment of fine, to undergo further imprisonment for two months. Under Section 450 IPC, he was sentenced to simple imprisonment for two years and fine of Rs.1,000/- and in default of payment of fine, to undergo further imprisonment for two months. All the sentences were to run concurrently after setting off the period of imprisonment already 3 Crl. A. No. 29 of 2015 Deepak Darjee vs. State undergone during investigation and trial. Further, the Sikkim State Legal Services Authority was directed to make compensation to the tune of Rs.25,000/- under the Sikkim Compensation to Victims or his Dependents Scheme, 2011. The amount of fine so collected was also directed to be paid to the victim.
2. The facts, in brief, are that the mother of the victim, when she came back to her home after collecting fodder around 05.00 PM on 16.06.2014, found that the appellant/accused placed her minor daughter of 10 years between his thighs after having unzipped his pants down and also after pulling down the pant of her minor daughter. In this outrage, she began beating the appellant/ accused with her slipper, making him to release the victim from his grip, which led the accused to run away from the place of occurrence, i.e. inside her house. It was further stated that mother of the victim namely, Shiva Maya Chettri, reported the incident to her son in the next day morning as her son came late in the night. Thereafter, her son searched out the accused and took him to the police station on next day i.e. 18.06.2014 at 07.00 o' clock in the morning and lodged FIR. On lodging of FIR, a case under the provisions of Section 376 IPC read with Section 4 of POCSO Act was registered against the accused. On arrest of the accused, proper inspection was 4 Crl. A. No. 29 of 2015 Deepak Darjee vs. State done, statement of the accused was also recorded under Section 161 of the Cr. P.C. The statements of the victim and the complainant, her mother, were recorded under Section 164 of the Cr. P.C. On proper investigation, finally the appellant was charged under Section 376, 511 and 342 IPC read with Section 8 of the POCSO Act and the case was committed to the Special Court for trial.
3. The learned Judge framed the charges for having committed the offence of rape under Section 376 (2) (i) of IPC read with an offence punishable under Section 450 IPC and also under the provisions of Section 3 (a) and Section 5 (m) punishable under Section 4 and 6 respectively of the POCSO Act. The appellant/accused pleaded "not guilty".
4. In the trial, the statement of complainant namely Shiva Maya Chettri, mother of the victim was consistent except the fact that she could not remember the date and time with the exactitude. The victim was very categorical in her statement, stating as under: -
"I do not now recollect the date and year of the incident but I was ten years old. Presently I am eleven years old. On the relevant day I was watching TV in my house and my mother had gone to collect fodder. The accused came to our house and he removed my underwear and trousers and unzipped his own trousers. At that moment, my mother came into the house. She then assaulted the accused with her slipper and he ran away from the house.5 Crl. A. No. 29 of 2015
Deepak Darjee vs. State The Police had examined me and recorded my statement in connection with this case. I was also taken to the Hospital where I was examined by the Doctors."
5. The said complainant, being mother of the victim, had categorically stated that the accused after removing his pants and the victim's wearing apparels were drawn down, kept the victim between his thighs with an attempt to commit rape which failed on account of her sudden arrival from the jungle. The statement reads as under: -
"......................When I returned home and was about to enter the house after keeping the fodder in the cowshed, I heard a loud scream of my Victim daughter coming from the house. I entered the house. When I entered the room where the Victim was, I saw the accused there. He had the zip of his pants open. He had taken out his penis. The accused had held my Victim daughter in between his thighs. The wearing apparels of my Victim daughter had been drawn down from behind and to me it appeared as though the accused was about to sexually assault my Victim daughter. The Victim could not fight back or escape from the clutch of the accused as he had held her tight.
Out of rage, I took off my slipper and wanted to assault the accused on his private part itself but with a fear that it might hurt the victim, I assaulted the accused with the said slipper on his facial region three/four times. Thereafter the accused left our house."
6. In cross-examination, statements of victim and her mother were consistent except that there was no mention of committing any sexual assault by the accused and also the mother did not see any action but it was clearly stated that the accused held the victim with his hands and kept between both the legs. The medical report did not find any injury on any part 6 Crl. A. No. 29 of 2015 Deepak Darjee vs. State of the body and human semen and the act of sexual intercourse was not proved. The learned trial court held the appellant/accused guilty as aforestated and sentenced him accordingly.
7. Mr. Udai P. Sharma, learned counsel appearing for the appellant/accused would contend that the appellant has been wrongly held guilty for an offence under Section 376 (2) as the allegation of sexual assault i.e. committing rape as defined under Section 375 IPC, is not available in the facts of the case. It may be a case of an assault to a woman with intent to outrage her modesty under Section 354 IPC. It is further contended that the case of house-trespass was not made out when the appellant was a regular visitor of the said house. It is again contended that it is also not a case of aggravated sexual assault punishable under Sections 10 and 18 of the POCSO Act.
8. Initially, the issue of lodging of FIR belatedly was urged by the defence in the trial, however, at the appellate stage the same was given up. Learned counsel confines his argument to the effect that it may be a case of assault punishable under Section 354 IPC and not a case of rape as found by the court below.
7Crl. A. No. 29 of 2015
9. On the other hand, Mr. J.B. Pradhan, learned Public Prosecutor supporting the judgment of conviction and sentence awarded by the trial court, submits that it is a clear case wherein the victim and her mother were consistent in their depositions. The attempt of rape could not be successful for sudden arrival of the victim's mother. Had she not come in time, the accused would have completed his intention of committing rape. Thus, the entire acts, having a clear intention to commit rape, comes within the definition of 'rape' and the appellant/accused is rightly convicted for an offence punishable under Section 376(2) read with Section 511 IPC, and also under Section 450 for house-trespassing. It was a case of admittedly aggravated sexual assault of a minor of 10 years, thus the appellant was rightly convicted under Section 10 and 18 of POCSO Act.
10. Having given my anxious consideration to the arguments put forth by the learned counsel appearing for the parties, I have gone through the depositions, charge-sheet and other relevant documents.
11. Indisputably the contents of FIR to the effect that the mother of the victim namely, Shiva Maya Chettri, when she returned back to her house in the evening at about 05.00 PM from the forest, found that the accused had pulled down his 8 Crl. A. No. 29 of 2015 Deepak Darjee vs. State pants and also disrobed the victim, was not contradicted later at any stage. It has also come to the evidence that the accused had taken out his genital organ apparently with the intention to commit rape, which could not be successful. In the medical report though no injury has been noticed as the attempt to commit rape was not completed. Facts in detail, as stated by the mother of the victim, were not narrated by the victim as she was a child of about 10 years, at the time of incident. She has categorically stated in her deposition that she was 11 years old when her deposition was recorded in the trial. There is also no inconsistency in the statements under Section 164, during the investigation and that made in the trial. The omission in the statement of the incident is that according to the victim's mother, the victim was held between the thighs of the accused by the accused and this fact was not narrated by the victim, which is of not much significance. At that stage, the victim being a minor, might not have given much importance to this fact, however, even in the cross-examination this fact was not put to her to verify the statement of mother. However, the fact remains that the purpose of pulling down his pants by the accused and also disrobing the minor, would be only with an intention to commit sexual assault which could not be completed on account of sudden arrival of the victim's mother. 9 Crl. A. No. 29 of 2015
12. In Aman Kumar and Another vs. State of Haryana1, while examining as to whether penetration is sine quo non for an offence of rape, the Supreme Court held as under: -
"9. A culprit first intends to commit the offence, then makes preparation for committing it and thereafter attempts to commit the offence. If the attempt succeeds, he has committed the offence; if it fails due to reasons beyond his control, he is said to have attempted to commit the offence. Attempt to commit an offence can be said to begin when the preparations are complete and the culprit commences to do something with the intention of committing the offence and which is a step towards the commission of the offence. The moment he commences to do an act with the necessary intention, he commences his attempt to commit the offence. The word "attempt" is not itself defined, and must, therefore, be taken in its ordinary meaning. This is exactly what the provisions of Section 511 require. An attempt to commit a crime is to be distinguished from an intention to commit it; and from preparation made for its commission. Mere intention to commit an offence, not followed by any act, cannot constitute an offence. The will is not to be taken for the deed unless there be some external act which shows that progress has been made in the direction of it, or towards maturing and effecting it. Intention is the direction of conduct towards the object chosen upon considering the motives which suggest the choice. Preparation consists in devising or arranging the means or measures necessary for the commission of the offence. It differs widely from attempt which is the direct movement towards the commission after preparations are made. Preparation to commit an offence is punishable only when the preparation is to commit offences under Section 122 (waging war against the Government of India) and Section 399 (preparation to commit dacoity). The dividing line between a mere preparation and an attempt is sometimes thin and has to be decided on the facts of each case. There is a greater degree of determination in attempt as compared with preparation.
10. 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. An attempt may be described to be an act done in part-execution of a criminal design, amounting to more
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1 (2004) 4 SCC 379 10 Crl. A. No. 29 of 2015 Deepak Darjee vs. State than mere preparation, but falling short of actual consummation, and, possessing, except for failure to consummate, all the elements of the substantive crime. In other words, an attempt consists in it the intent to commit a crime, falling short of, its actual commission. It may consequently be defined as that which if not prevented would have resulted in the full consummation of the act attempted. The illustrations given in Section 511 clearly show the legislative intention to make a difference between the cases of a mere preparation and an attempt."
13. In another case State of Rajasthan vs. Sri Chand2, where the facts were identical, the Supreme Court noticing the fact of non completion of rape, held as under: -
"9. On the question of attempt to rape, the learned counsel appearing for the respondent has sought to rely on two precedents being Aman Kumar Vs. State of Haryana : (2004) 4 SCC 379 and Tarkeshwar Sahu Vs. State of Bihar : (2006) 8 SCC 560. In both the cited judgments it is held that for the act to constitute offence of rape penetration is prerequisite (this is the pre-2013 Criminal Amendment position of law) and therefore for the offence of attempt to rape the accused must have so advanced in his actions that it would have resulted into rape had some extraneous factors not intervened. It is held in Aman Kumar case that in order to come to the conclusion that attempt to rape is committed it should be shown that the accused was determined to have sexual connection (penetration) with the prosecutrix at all events in spite of all resistance. In the present case the accused fled away when PW3 came to the place of incident due to shouting of the prosecutrix. This shows he was not determined to have sexual connection with the prosecutrix despite all resistance and odds. Also it would be relevant to note that there are inconsistencies in the statement of the prosecutrix wherein she states that she had suffered injuries on her breast but same is not corroborated by the medical evidence. Also, Saroj, who is an important eyewitness, is not produced as a witness. In this view of the matter, we find it difficult to hold that offence of attempt to rape is proved to a sufficient measure."
After holding as above, the accused was held to have committed an offence under Section 354 IPC and not under Section 376 IPC.
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2 (2015) 11 SCC 229 11 Crl. A. No. 29 of 2015 Deepak Darjee vs. State
14. Section 10 of the POCSO Act deals with punishment for aggravated sexual assault, which is punishable with imprisonment for a term not less than five years but it may extend to seven years and shall also be liable to fine. Aggravated sexual assault is defined under Section 9 of the POCSO Act, which reads as under: -
"9. Aggravated Sexual Assault.-(a) Whoever, being a police officer, commits sexual assault on a child -
(i) within the limits of the police station or premises where he is appointed; or
(ii) in the premises of any station house whether or not situated in the police station to which he is appointed; or
(iii) in the course of his duties or otherwise; or
(iv) where he is known as, or identified as a police officer; or
(b) whoever, being a member of the armed forces or security forces, commits sexual assault on a child -
(i) within the limits of the area to which the person is deployed; or
(ii) in any areas and under the command of the security or armed forces; or
(iii) in the course of his duties or otherwise; or
(iv) where he is known or identified as a member of the security or armed forces; or
(c) whoever being a public servant commits sexual assault on a child; or
(d) whoever being on the management or on the staff of a jail, or remand home or protection home or observation home, or other place of custody or care and protection established by or under any law for the time being in force commits sexual assault on a child being inmate of such jail or remand home or protection home or observation home or other place of custody or care and protection; or
(e) whoever being on the management or staff of a hospital, whether Government or private, commits sexual assault on a child in that hospital; or
(f) whoever being on the management or staff of an educational institution or religious institution, commits sexual assault on a child in that institution; or 12 Crl. A. No. 29 of 2015 Deepak Darjee vs. State
(g) whoever commits gang sexual assault on a child.
Explanation.- When a child is subjected to sexual assault by one or more persons of a group in furtherance of their common intention, each of such persons shall be deemed to have committed gang sexual assault within the sexual meaning of this clause and each of such person shall be liable for that act in the same manner as if it were done by him alone, or
(h) whoever commits sexual assault on a child using deadly weapons, fire, heated substance or corrosive substance; or
(i) whoever commits sexual assault causing grievous hurt or causing bodily harm and injury or injury to the sexual organs of the child; or
(j) whoever commits sexual assault on a child, which-
(i) physically incapacitates the child or causes the child to become mentally ill as defined under clause (l) or section 2 of the Mental Health Act, 1987 (14 of 1987) or causes impairment of any kind so as to render the child unable to perform regular tasks, temporarily or permanently; or
(ii) inflicts the child with Human Immunodeficiency Virus or any other life threatening disease or infection which may either temporarily or permanently impair the child by rendering him physically incapacitated, or mentally ill to perform regular tasks; or
(k) whoever, taking advantage of a child's mental or physical disability, commits sexual assault on the child; or
(l) whoever commits sexual assault on the child more than once or repeatedly; or
(m) whoever commits sexual assault on a child below twelve years; or
(n) whoever, being a relative of the child through blood or adoption or marriage or guardianship or in foster care, or having domestic relationship with a parent of the child, or who is living in the same or shared household with the child, commits sexual assault on such child; or
(o) whoever, being in the ownership or management or staff, of any institution providing services, to the 13 Crl. A. No. 29 of 2015 Deepak Darjee vs. State child, commits sexual assault on the child in such institution; or
(p) whoever, being in a position of trust or authority of a child, commits sexual assault on the child in an institution or home of the child or anywhere else; or
(q) whoever commits sexual assault on a child knowing the child is pregnant; or
(r) whoever commits sexual assault on a child and attempts to murder the child; or
(s) whoever commits sexual assault on a child in the course of communal or sectarian violence; or
(t) whoever commits sexual assault on a child and who has been previously convicted of having committed any offence under this Act or any sexual offence punishable under any other law for the time being in force; or (u) whoever commits sexual assault on a child and makes the child to strip or parade naked in public, is said to commit aggravated sexual assault."
15. On bare reading of the provisions of Section 9, it is evident that if a sexual assault of a child is committed by a police officer or a member of the armed forces or security forces or a public servant or a member of staff of a jail, hospital or an educational institution or religious institution, i.e. by a public authority or whoever commits sexual assault on a child using deadly weapons, fire, heated substance or corrosive substance or whoever commits sexual assault causing grievous hurt or causing bodily harm and injury or injury to the sexual organs of the child or whoever, taking advantage of a child's mental or physical disability, commits penetrative sexual assault on the child or whoever commits penetrative sexual assault on the 14 Crl. A. No. 29 of 2015 Deepak Darjee vs. State child more than once or repeatedly or likewise, constitute an aggravated sexual assault. In the case on hand, no such act is involved and as such it cannot be held as an aggravated sexual assault. At the most, it may be an offence of sexual assault under Section 7, punishable under Section 8 of the POCSO Act, wherein the punishment shall not be less than three years but which may extend to five years and shall also be liable to fine.
16. Section 18 provides for punishment for attempt to commit an offence under the provisions of POCSO Act.
17. The facts aforestated would make it clear that the offence of rape as defined under Section 375 requires penetration of male genital organ to any extent, into any part of the body of a woman or penetration, insertion or manipulation to any part of the body of a woman so as to cause penetration into the vagina, urethra, anus or any part of body of such woman or applies his mouth to the vagina, anus, urethra of a woman or makes her to do so with him or any other person. In the facts of the case, the appellant/accused was also not determined to commit rape as he ran away from the place on being beaten. Thus, the conviction of the appellant/accused under Section 376(2) read with Section 511 IPC is not made out and, accordingly, set aside. However, it was a clear case of sexual assault as punishable under Section 354 of IPC. 15 Crl. A. No. 29 of 2015
18. As noticed hereinabove, it was not a case of an aggravated sexual offence. Thus, the punishment under Section 10/18 of the POCSO Act is also not made out. It was a case of an offence of sexual assault under Section 7 and as such punishable under Section 8 of the POCSO Act. Thus, the conviction under Section 10/18 is set aside and the appellant/ accused is held guilty for an offence of sexual assault under Section 7 of the POCSO Act.
19. In view of the aforestated discussion, the appeal is allowed to the limited extent that the appellant/accused is punishable for an offence under Section 354, 450 IPC and under Section 8 of the POCSO Act, setting aside the conviction on other provisions.
20. The appellant/accused is, accordingly, sentenced to rigorous imprisonment for three years under the provisions of Section 354 IPC with a fine of Rs.2,000/-. In default of payment of fine, he shall undergo further imprisonment for two months. The conviction under Section 10/18 of the POCSO Act is set aside, however, the appellant/accused is convicted under Section 8 of the POCSO Act and sentenced to rigorous imprisonment for a period of three years with fine of Rs.2,000/-, In default of payment of fine, he shall undergo further 16 Crl. A. No. 29 of 2015 Deepak Darjee vs. State imprisonment for two months. The sentence under Section 450 IPC is maintained. The appellant/accused is entitled to set off the period of imprisonment undergone during the investigation and trial. All the sentences to run concurrently.
21. The appeal is allowed to the above extent. Accordingly, the case file shall be sent to the trial court for necessary action, forthwith.
Sd/-
Acting Chief Justice
18.07.2016
Approved for Reporting : Yes
Internet : Yes.
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