Delhi District Court
State vs . Lalduhawma, on 21 March, 2017
IN THE COURT OF SH. DEVENDRA KUMAR SHARMA,
ADDITIONAL SESSIONS JUDGE/SPL. FAST TRACK COURT
PATIALA HOUSE COURT/NEW DELHI
SC No. 8922/2016
FIR No. 374/15
U/s 376/511 of IPC
PS R K Puram
State Vs. Lalduhawma,
S/o Sh. Thanhlira,
R/o Village Lungeli, PO Lunhlai,
State Mijoram.
Date of Institution 20.07.2015
Argument heard/order reserved 21.03.2017
Date of judgment 21.03.2017
Final Order
JUDGMENT
FACTS OF THE CASE
1. Succinctly, the facts of case unfolded from the charge sheet filed u/s 173 of Criminal Procedure Code (for short Cr.P.C) are that on 12.05.2015 when the prosecutrix "S", W/o "KRK" (name of the prosuctrix and her husband name has been withheld with a view to conceal their identity) was sleeping outside at the door of her house, a noise was heard at about 2.30 am midnight and it was found that accused was beating the prosecutrix and he took her near a staircase and attempted to rape her. However, on raising alarm, the complainant and neighborus of the locality arrived there and accused was caught red handed. On the complaint of complainant, present FIR was registered against the accused for the offence punishable u/s 376 read with Section 511 of Indian Penal Code (for short IPC).
FIR No. 374/15 State vs. Lalduhawma U/s 376 / 511 of IPC PS R K Puram 1 of 18 INVESTIGATION
2. During investigation interalia other things, IO recorded the statement of complainant, prosecutrix and other witnesses under Section 161 of CrPC, got conducted medical examination of prosecutrix from Safdarjang Hospital, prepared site plan at the instance of complainant, got recorded statement of prosecutrix u/s 164 of Cr.P.C before Ld. MM and got conducted medical examination / potency test of accused at AIIMS hospital after his arrest.
After completion of investigation, the challan was filed before the learned M.M on 07.07.2015. The matter was committed before the Ld. Predecessor Court on 20.07.2015 and was transferred to this Court on 31.08.2015.
CHARGE
3. On 14.09.2015, a charge for the offence punishable u/s 376 read with Section 511 of IPC was framed against accused to which he pleaded not guilty and claimed trial. Amended charge was framed against him on 28.02.2017 regarding correction of date.
PROSECUTION EVIDENCE
4. In order to substantiate its case, the prosecution examined as many as eleven witnesses which are as follows:-..
(I) Smt. Ramwati as PW-1, who was the complainant in this case.
(ii) Prosecutrix as PW-2 to support the allegations made in her complaint.
(iii) Sh. Kala Ram as PW-3 who was the neigbour and heard the noise of the prosecutrix and came there and saw the incident.
(iv) Sh. Ram Het as PW4, who was the neighbour. (v) Sh. Vijay Singh as PW5, who was the neighbour. (vi) W/SI Gyan Prabha as PW6, who was the IO of the present case. She recorded
the statement of complainant u/s.161 CrPC Ex.PW-1/A, prepared rukka Ex.PW-
FIR No. 374/15 State vs. Lalduhawma U/s 376 / 511 of IPC PS R K Puram 2 of 18 6/A, prepared site plan Ex.PW-6/B, recorded the statement of the prosecutrix under Section 161 of CrPC, arrested the accused vide arrest memo Ex.PW-6/C, got him medically examined vide MLC Ex.PW-6/E. She also got the statement u/s.164 CrPC Ex.PW-2/A of prosecutrix recorded and also recorded the statements of witnesses. After completion of investigation, she prepared the charge-sheet and filed in court.
(vii) Dr. Gourav Dubey, Junio Resident, Safdarjung Hospital as PW-7 who examined prosecutrix and prepared her MLC Ex.PW-7/A.
(viii) Dr. Rajnikant Swain, Sr. Resident, AIIMS Hospital as PW-8 who examined the accused and prepared her MLC Ex.PW-8/A.
(ix) SI Kailash Chand as PW9, who was on emergency duty and reached at the spot.
(x) ASI Ram Swaroop as PW10, who received rukka and got the present FIR registered.
(xi) Ct. Ajit as PW11 who after receiving the information of DD No.7A regarding rape, accompanied with SI Kailash to the spot.
All the witnesses were cross examined at length.
After statements of all the prosecution witnesses were recorded, prosecution evidence was closed and the matter was fixed for statement of accused u/s.313 CrPC.
STATEMENT OF ACCUSED
5. Statements of accused u/s.313 CrPC was recorded in which he denied all the material allegations leveled against him. Accused has stated that he is an innocent person. He has been falsely implicated in the present case. He arrived one day before the incident and it was first time where he came to Delhi. In the evening of 11.05.2015 around 5 pm, accused had sent his son to buy alcohol for him without his brother's knowledge. Upon his brother's return from work and on seeing him drinking, his younger brother reprimanded him and a quarrel ensued. Feeling disturbed, he went to the house of one person namely Vanenga with FIR No. 374/15 State vs. Lalduhawma U/s 376 / 511 of IPC PS R K Puram 3 of 18 whom he drank again. At about 12.30 am, the said Vanenga, who is a colleague of his younger brother and was also residing in the same compound, dropped him home. Seeing him in drunken state, his younger brother harshly reprimanded him in front of said Vanenga. The said Vanenga had also left after sometime as he was feeling uncomfortable. At around 1 am, feeling frustrated because of the verbal altercation between him and his brother, he went out of the house. Outside the house, he met with an old lady who was walking about the mumbling something. When the old lady saw him, she started spitting on the ground and started shouting at him. He could not understand exactly what she was saying but he was calling him "Nepali" and "kutta". As she was spitting and shouting at him, he also got infuriated and he tried to slap her and she was also pushing, pulling and shouting at the same time. Due to the said commotion, one person came to the spot and apprehended him. Accused tried to explain the situation but he could not do so because of the language barrier. After this, other persons also gathered and after some time, accused was released and he went home and it was from his brother's residence that the police apprehended him. The accused opted to lead defence evidence.
DEFENCE EVIDENCE
6. The accused examined his son Lalnunzauva as DW-1. In his examination, he states that on 12.05.2015 he was present at his house and accused is his father. He came on 10.05.2015, Delhi to visit him, when he was residing with his uncle Lalramngaia with his cousin sister Lallawmpuii at the house of his uncle i.e. H. No.1145, Sector-1, RK Puram, Delhi. On 11.05.2015, his father asked him to bring some alcohol for him in afternoon. He bought the whisky and gave him. He drank the whisky and became drunk. In the evening his uncle returned from the office. His uncle became angry on his father and scolded him. Then, his father went outside and gone to one of his uncle's friend namely PC Vanengmawia, who was residing at H.No.868, Sector-1, RK Puram, Delhi with his family. At about 12 FIR No. 374/15 State vs. Lalduhawma U/s 376 / 511 of IPC PS R K Puram 4 of 18 midnight i.e. after 2/3 hours his father returned alongwith uncle PC Vanengmawia. After return of his father, his uncle namely Lalramngaia angrly shouted upon his father. Then his father went outside the house. Thereafter, they slept. After sometime at around 2 am, some of my neighbours wake me up. He inquired from his father that what had happened and he told him that some old woman disturbed him. He further told that an argument had taken place with the said old lady and she called him as Nepali. He further told me that some of the neighbours had beaten him up.
He was cross examined on behalf of the State and thereafter, defence evidence was closed and the case was fixed for final arguments.
FINAL ARGUMENTS
7. Final arguments heard on behalf of both the parties. I have gone through the records, relevant provisions of law and written submissions filed on behalf of accused.
8. It is argued on behalf of ld. Addl. PP for the State that the complainant was a housewife and her husband used to work at Airport. On 12.05.2015, her husband had gone on night duty. On that day, her mother in law / prosecutrix who is not mentally fit was sleeping outside the house near the gate. At about 2.30 am, complainant heard the alarm of her mother in law/ prosecutrix, she came out and saw that her neighbours were gathered there. Complainant saw the accused and his pant was half removed. Her mother in law / prosecutrix was lying under the stairs. The accused was under the influence of liquor and was given beatings by the public. Accused had removed the clothes of mother in law / prosecutrix and saree was pulled up from her legs. The accused was siting over her. The accused tried to commit sexual intercourse with mother in law of the complainant, who was apprehended with the help of neighbours. All these facts have been well proved by complainant and prosecutrix and have been corroborated by other FIR No. 374/15 State vs. Lalduhawma U/s 376 / 511 of IPC PS R K Puram 5 of 18 witnesses. Therefore, it was prayed that the accused may be held guilty for the offences charged.
9. On the other hand, it is argued on behalf of the accused apart from other arguments that the accused has been falsely implicated in the present case and there is no material to even remotely suggest that accused committed the crime of attempt to commit rape that he has been charged with and the present case is squarely a case of exaggerated interpretation of facts and events whereby a minor squabble has been hyperbolized to a case of attempt of commit rape.
10. It is further argued that the prosecutrix has failed to provide any detailed account of the events that had occurred on 12.05.2015 or any of the alleged acts committed by the accused which attract the offence of Section 376 read with Section 511 of Indian Penal Code. In her examination in chief and cross- examination, she has constantly used the words "zabardasti" and "badtamizi". However, she has not given any explanation / description of any alleged act of sexual nature committed on her. This court had even given her an opportunity to clarify as to what she meant by "badtamizi" and yet she failed/refused to given any explanation. In support of contention the reliance has been placed upon following judgment in Paramasivan Vs. State through Inspector of Police (Manu/TN/3998/201), in which the Hon'ble High Court of Madras noted that conviction of an accused on the basis of testimony of prosecutrix alone was permissible, but that was in a case where evidence of prosecutrix inspire confidence and appeared to be natural and truthful.
11. It is further argued that the allegation of the prosecutrix that the accused "slapped her, kicked her, and was abusing her" also hold no water as these alleged acts committed on the prosecutrix are no where substantiated in the MLC, PW7 Dr. Gauirav Dubey, who examined her also confirmed in his cross-examination that FIR No. 374/15 State vs. Lalduhawma U/s 376 / 511 of IPC PS R K Puram 6 of 18 "no fresh injuries were found on the person of the prosecutrix at the time of her medical examination". Reference may be given to the judgment in Balwn Singh vs. State of Haryana (Manu/PH/0681/1994).
12. It is further argued that caution must be taken before reliance is placed on the statement of a person who has exhibited lack of cognitive stability in Court. Furthermore, even the prosecution witness PW1 and PW3 have stated that her mental condition is not normal. The mental state of the prosecutrix is also to be noted as has been done by Court during her cross-examination.
13. It is further argued that the perosecutrix has not mentioned in her examination in chief that the accused was sitting on top or that he attempted to take off her saree or tried to pull her saree up from below.
14. It is further argued that PW3 Kala Ram is the only eyewitness with regard to what had transpired at the scene of the incident in the present case and the first to reach the scene of the incident as per the prosecution story. Hence his account of what he saw ought to put some light as to the events that allegedly took place. However his statements with regard to what he saw upon reaching the scene fail to explain the event. In his examination in chief he firstly paid "that an old lady was laying there as one person was sitting upon the old lady and he was holding that old lady". In his cross-examination he stated that "I saw the accused was lying down towards the leg portion of the prosecutrix and was half bent upon the prosecutrix upon upper side." Hence there is material contradiction and no clarity as to what PW3 saw upon reaching the scene. Furthermore, his version of what occurred as per statement under Section 161 of CrPC is what PW1 Told him when she reached the scene of the incident, hence amounts to hearsay evidence.
15. It is further argued that on analyzing PW1 Ram Wati's statement under Section FIR No. 374/15 State vs. Lalduhawma U/s 376 / 511 of IPC PS R K Puram 7 of 18 161 of CrPC, in examination in chief and cross-examination, she has categorically submitted the following :- she saw the accused sitting on the prosecutrix and beating her ; she saw the accused assaulting the prosecutrix and her saree pulled from her legs; she saw the pants of the accused half down; she saw the crowd beating the accused. These accounts however could not have been seen by her as none of the other witnesses have corroborated to the same. PW3 who firstly saw the scene has not uttered anything to corroborate the aforesaid allegations stated by PW1. Similarly, the accounts of PW4 and PW5, who reached to scene of the incident before PW-1 also do not corroborate the version. Furthermore, the MLC does not show any injuries sustained by the prosecutrix that could lend credence to her allegation that the accused was beating the prosecutrix. Furthermore, the PW3, PW4 and PW5 have categorically denied that accused was beaten up. Therefore, her statements are clearly fabricated. It must be noted that she stated during her cross-examination that "it is correct that the accused was sitting over my mother in law and was beating her in the presence of the people from the neighbourhood". This statement further suggests fabrication as the other PW3 and PW4 who had reached before her had already apprehended the accused person.
16. It is further argued that the statement of complainant fail to inspire confidence and can be rejected outright due to fabrication, lack of corroboration by other witnesses as well as her statement during the cross-examination that "I had told in my complaint to the police ExPW1/A that the saree of my mother in law was pulled up from her legs, which statement was found incorrect upon confrontation.
17. It is further argued that the statement of PW3 Kala Ram of what he saw is also contradictory and therefore can not be relied upon. In his examination in chief, he stated that "I thereafter switched on the torch light of my mobile phone and saw that an old lady was lying there as one person was sitting upon that old lady and FIR No. 374/15 State vs. Lalduhawma U/s 376 / 511 of IPC PS R K Puram 8 of 18 he was holding that old lady". However, during cross-examination he stated that "I saw the accused was lying down towards the legs portion of the prosecutrix and was half bent upon the prosecutrix upon upper side". Therefore, there is a material contraction in his account of the events.
18. It is further argued that the statement of PW4 Ram Het and PW5 Vijay Singh with regard to what had transpired at the scene of the incident are based on what they heard from persons, therefore amount to nothing but hearsay evidence and in any event these statements do not justify the allegation of an attempt to commit rape against the accused.
19. Presuming without conceding that the statements of all the public witnesses with regard to what they saw are true and correct and that the accused sat on top of the prosecutrix, that he lifted her saree, that he was beating her or his pant was partially disrobed, it still can not be concluded that the accused sought to gratify his passions and the accused attempted to rape the prosecutrix. In support of contention the reliance has been placed upon following judgment on behalf of the accused :-
I) Aman Kumar @ Anr. Vs. State of Haryana (Manu/SC/0104/2004). II)Ramkripal Vs. State of Madhya Pradesh (2007 (4) UC 47) @ III)Damodar Behera & Anr. Sagar Barik Vs. State of Orissa 1995 (II) OLCR 502
20. It is further argued that accused in his statement under Section 313 of CrPC has stated that he crossed paths with the prosecutrix when he was under the influence of alcohol and in a disturbed state of mid owing to arguments he had with his younger brother. The accused has also stated that the prosecutrix out of the blue called him "Nepali Kutta" and started spitting on the ground. This incensed him so much that he wanted to slap the prosecutrix. This led to the FIR No. 374/15 State vs. Lalduhawma U/s 376 / 511 of IPC PS R K Puram 9 of 18 accused sand the prosecutrix pulling each other upon which the prosecutrix raised the alarm and neighbours came out of their houses. It should be noted that even prosecutrix has stated that she called the accused person a "Kutta". During his cross-examination PW4 has also said that "prosecutrix is mentally disturbed to some extent. I am saying so as sometimes she used to abuse persons on their jokes upon the proseecutrix...".
21. It is further argued that in his examination in chief DW-1 has deposed that the accused consumed the alcohol on the day of the incident and that there was a quarrel between the accused person and his uncle which infuriated the accused person. Thus, it is prayed that since the prosecution has failed to prove its case beyond reasonable doubt, accused may kindly be acquitted.
RELAVANT PROVISION OF LAW
22. Section 375 IPC defines rape with a woman against her will. Relevant provision of section 375 IPC are reproduced for ready reference as under:-
A man is said to commit "rape" who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following descriptions :-
First. - Against her will.
Secondly. - Without her consent.
Thirdly. - With her consent, when her
consent has been obtained by putting her or any
person in whom she is interested in fear of death or
of hurt.
Fourthly. - With her consent, when the man
knows that he is not her husband, and that her
consent is given because she believes that he is
another man to whom she is or believes herself to be
FIR No. 374/15 State vs. Lalduhawma U/s 376 / 511 of IPC PS R K Puram 10 of 18
lawfully married.
Fifthly. - With her consent, when, at the
time of giving such consent, by reason of
unsoundness of mind or intoxication or the
administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent.
Sixthly. - With or without her consent, when she is under sixteen years of age.
Seventhly - When she is unable to communicate consent.
Explanation 1. - For the purposes of this section, "vagina" shall also include labia majora.
Explanation 2. - Consent means an unequivocal voluntary agreement when the woman by words, gestures or any form of verbal or non-verbal communication, communicates willingness to participate in the specific sexual act: Provided that a woman who does not physically resist to the act of penetration shall not by the reason only of that fact, be regarded as consenting to the sexual activity".
Exception.1- A medical procedure or intervention shall not constitute rape.
Exception.2-Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age is not rape.
511. Punishment for attempting to commit offences punishable with imprisonment for life or other imprisonment.-
Whoever attempts to commit an offence punishable by this Code with [imprisonment for life] or imprisonment, or to cause such an offence to be committed, and in such attempt does any act towards the commission of the offence, shall, where no express provision is made by this Code for the punishment of such attempt, be FIR No. 374/15 State vs. Lalduhawma U/s 376 / 511 of IPC PS R K Puram 11 of 18 punished with [imprisonment of any description provided for the offence, for a term which may extend to one-half of the imprisonment for life or, as the case may be, one half of the longest term of imprisonment provided for that offence], or with such fine as is provided for the offence, or with both.
In the light of above discussed principle of law, I propose to examine the evidence available on record.
FINDINGS
23. In the present case, accused was put on trial that he attempted sexual assault upon the prosecutrix in the intervening night of 11/12.05.2015 when the prosecutrix was sleeping outside of her house. Thus, prosecution was required to prove that attempt to commit the offence of rape was made by the accused and he could not succeed because of the reason beyond his control. Attempt to commit an offence can be said to be 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 culprit commences to do an act with the necessary intention, he commences his attempt to the commit the offence. The word "attempt" is not itself defined, and must, therefore, be taken in its ordinary meaning.
24. In the present case, first arguments on behalf of the accused is that the prosecutrix / PW2 failed to identify the accused during cross-examination. However, identity of the accused is otherwise proved by all the other witnesses. Witness PW3 is the first witness who reached at the spot. He has proved beyond any pale of doubt, the identity of the accused on the spot. This fact has also been proved and corroborated by PW4 Ram Het, PW5 Mr. Vijay Singh and PW1 / Complainant. Moreover, the accused was caught red handed by the witnesses on the spot and therefore this arguments raised on behalf of the accused is without any merit and hence rejected.
FIR No. 374/15 State vs. Lalduhawma U/s 376 / 511 of IPC PS R K Puram 12 of 18
25. In the present case, PW2/Prosecutrix and PW3 / Sh. Kala Ram are the witness of the incident, though PW-1 has also claimed in her examination in chief that she has seen the accused sitting upon her mother in law / PW2 and he tried to commit sexual assault with her mother in law. However, in her cross examination, PW2 has admitted that when she reached at the spot she saw the accused was being beaten by other persons with his pants partially disrobed. PW3 Kala Ram further admits that the accused was attempting to commit rape upon her mother in law. She has further admitted that she reached at the spot, she saw the people of the colony gathered and her mother in law/PW2 arranging her clothes and accused was also present at the spot. This from her own testimony it is clear that she is not the witness of the incident but she has heard it from one Fauzi Bhaia i.e. PW3.
26. In her testimony, the prosecutrix/PW2 has deposed that accused tried to commit rape upon her wile he had dragged her in stairs (mujlim ne mere sath zabardasti ki wo mujhe kheech kar le gaya tha). In her cross-examination she has testified that the incident had happened and she caught hold the accused and she was telling him "kutta" while he was trying to do wrong act. She has further testified that accused was trying to do "badtamiji" with her and he was in drunken condition and he was searching "lugai". She has voluntary testified that the accused was 'luccha'. On Court question that what do you mean by "badtamiji", witness / prosecutrix stated that it is known to the Court also. It is also to be noted here that during her entire cross-examination, the witness kept on murmuring and talking with herself.
27. PW3 Kala Ram in his examination in chief has deposed that when he reached at the spot, he saw that an old lady / prosecutrix was lying there and one person i.e. accused was siting upon that old lady and he was holding that old lady. He FIR No. 374/15 State vs. Lalduhawma U/s 376 / 511 of IPC PS R K Puram 13 of 18 has further deposed that the accused was trying to do some wrong act with that lady. In his cross-examination he has deposed that he saw the accused lying down towards the leg portion of the prosecutrix and was half bent upon the prosecutrix upon upper side and he was slapping the prosecutrix.
28. Thus, on the issue on attempt of sexual assault as discussed here in above are the testimonies available on record. Here it is to be noted that complainant is the daughter in law of the prosecutrix and she in her statement under Section 161 of CrPC ExPW1/B has stated that the accused did "chedkhani" with mother in law. Prosecutrix in her statement under Section 164 of CrPC has stated that accused tried to do "jabardasti" with her.
29. Witness PW4 in his examination in chief has deposed that he was told by PW3 that accused was catching hold by the old lady / prosecutrix. However, PW3 has stated that the prosecutrix told about the incident to daughter in law and other lady present there. This fact has been admitted by PW1 when she has testified that she was told about the incident by PW3. Witness PW5 has deposed in his examination in chief that on his inquiry PW3 and PW4 told him that the accused has dragged the prosecutrix towards the stair case and attempted to do some wrong act with the prosecutrix. However, in his cross-examination he has testified that when he inquired from the prosecutrix, prosecutrix told him that accused dragged her to the place of incident though she was asking him to leave her. Thus, on the issue of attempt of sexual assault there are contradictory version regarding the incident of attempt of rape made by the accused. Even PW1 though in her examination in chief has stated that accused has removed the clothes of her mother in law/ prosecutrix i.e. saree was pulled up from her legs but in her cross-examination she has testified that when she reached to the spot she saw her mother in law arranging her clothes and further she has admitted that the accused was being beaten by the public person when she FIR No. 374/15 State vs. Lalduhawma U/s 376 / 511 of IPC PS R K Puram 14 of 18 reached at the spot. Though she has voluntarily stated that she saw the people taking away the accused from over the body of his mother in law but this voluntarily statement of PW1 to contradicts her version. Otherwise also according to her the prosecutrix was arranging her clothes, then there can be no situation that the accused was being taken from over body of mother in law in such situation. This fact has also not been stated in the complaint ExPW1/A or in her statement ExPW1/B. It appears to be exaggerated version of the witness being the complaint.
30. However, it is proved beyond reasonable doubt that accused on the intervening night of 12.05.2015 molested the prosecutrix from the testimony of the witnesses including the prosecutrix. The prosecutrix has clearly stated that the accused was trying to do badtamiji with her. This version is corroborated by PW3 that he saw the accused sitting upon the prosecutrix and holding her. The accused was seen and apprehended on the spot by the independent witness Mr. Kala Ram, neighbour of the prosecutrix. It is admitted case of the prosecution that the accused was in drunken condition and this fact was also not denied by the accused in his statement under Section 313 of CrPC. Even witness DW1 has also disclosed that accused was in drunken condition. Here it is to be noted that regarding the mental condition of the prosecutrix, it is almost reiterated by all the witness that she was not in mentally fit condition and therefore, her version that accused tried to rape her can not be given so much credence in absence of any corroborative version of any of the witness who reached on the spot. However, all the witnesses have testified in tendem that accused molested the prosecutrix and outraged her modesty.
31. Further it is to be noted that in the present case, the clothes of the prosecutrix have not been seized. Even the medical examination of the prosecutrix does not reveal any fresh injury upon her person as admitted in the testimony of PW7 Dr. FIR No. 374/15 State vs. Lalduhawma U/s 376 / 511 of IPC PS R K Puram 15 of 18 Gaurav Duby. From the MLC it appears that throughout the investigation, PW1/complainant had given the history of incident as the complaint was made by her and even the MLC has been signed by her. Even PW9/IO has stated that the daughter in law of the prosecutrix / PW1 told that the accused was lying over the prosecutrix and his zip was down at that time. Though she has claimed that she has verified from other persons on the spot who also told that accused was doing wrong act but she has also failed to disclose the name of other persons. None of the other witness except the complainant has stated or deposed that they saw the pant of the accused removed including PW3 Kala Ram who first reached on the spot.
32. So far as allegation that acused was lying over the prosecutrix is concerned, it is to be seen as to whether this act was done with a view to cause penetration by the accused in any part of body of the prosecutrix. Further, it has been deposed by the prosecutrix in her examination in chief that the accused did badtamiji with her but nowhere she has deposed that he was in such advance stage of committing rape which was unsuccessful because of the intervention by other witnesses. Thus, relying upon the judgment reported in the case of "Lav vs. State of Madhya Pradash Cr.R. No.1175/13 decided on 10th September, 2013", this Court is of the opinion that from the allegation leveled against the accused, no case u/s 376 r/w section 511 of IPC is made out. Reason being in the present case, though it has been alleged that the accused attempted to commit rape but it is not clear from the testimony of the prosecutrix and other witnesses as to whether she was even disrobed by the accused and thus, it cannot be said that accused was in so advance state in his action that it would have resulted into rape, had some exterior factors would not have intervened.
33. It is settled proposition of law that in order to come to the conclusion that attempt of rape is made, it should be proved that accused was determined to have FIR No. 374/15 State vs. Lalduhawma U/s 376 / 511 of IPC PS R K Puram 16 of 18 sexual connection with the prosecutrix at all events inspite of all resistance. In the present case, it has come on record in testimony of prosecutrix herself and other witnesses that it was the prosecutrix who was catching hold of the accused. This testimony shows that the accused was not so determined to have sexual connection with the prosecutrix despite all resistance and odds. It is also come on record in the testimony of the witnesses that language of the accused was not known to them.
34. Further, it would be relevant to note that there are inconsistencies in the statement of the prosecutrix regarding the act alleged to fulfill the ingredients of attempt of rape as she has stated in her statement u/s 164 Cr.P.C that accused tried to do "jabardasti" with her. Thus, in the light of the testimony of the prosecutrix and other witnesses, this Court find it difficult to hold that there was any attempt of rape. The prosecution has not been able to prove the commission of attempt to rape by the accused beyond reasonable doubt. Hence, accused stand acquitted for the offence punishable u/s 376 r/w Section 511 of IPC.
However, the testimony of the prosecutrix and other witnesses have been consistence so far as the allegation of outraging the modesty of the prosecutrix are concerned by doing "badtamiji". Witnesses have clearly stated that accused touched body of the prosecutrix / made physical contact with her body and made advances involving unwelcome and explicit sexual overtures. Thus, it stands proved from the testimony of the prosecutrix and other witnesses beyond reasonable doubt that accused sexually harassed the prosecutrix by coming in physical contact with the prosecutrix and made advances involving unwelcome and explicit sexual overtures and thus, committed the offence punishable u/s 354A of IPC.
In the light of the aforesaid discussions and case laws and considering the fact that offence u/s 354A of IPC is minor offence than the FIR No. 374/15 State vs. Lalduhawma U/s 376 / 511 of IPC PS R K Puram 17 of 18 offence u/s 376 for which the accused has been charged and since the accused was having full opportunity to cross examine the witnesses, therefore, this Court is of the considered opinion that there is no need to re-frame charge in view of the provision of section of 222 of Cr.P.C as no prejudice is going to be caused to accused. Hence, accused is held guilty and convicted for the offence punishable u/s 354A of IPC.
Main file be consigned to the Record Room.
Miscellaneous file be prepared for the purpose of arguments on sentence on 30.03.2017.
Put up for arguments on sentence on 30.03.2017.
(Devendra Kumar Sharma) ASJ/FTC/Court No.7/PHC Lockup Building/21.03.2017 Announced in open court on 21.03.2017 (Total number of page 18) (One spare copy attached) FIR No. 374/15 State vs. Lalduhawma U/s 376 / 511 of IPC PS R K Puram 18 of 18