Document Fragment View

Matching Fragments

Both the sessions court and the High Court accepted the prosecution evidence as to how and who committed the crime. They, however, differ on the approach as to what offence was committed. While the trial court holds the accused guilty of an offence under Section 376 IPC, the High Court holds him guilty under Section 354 IPC. Both the courts did not attach any importance to the discrepancies in the statements of the witnesses which were insignificant and did not damage or impair the case of the prosecution. The courts have considered all the relevant circumstances to come to the conclusion that crime was committed and it was the accused who did so. The High Court, however, does say that there was attempt to commit rape which would be an offence falling under Section 376 read with Section 511 IPC. But by some curious reasoning, the High Court proceeds to hold the accused guilty for an offence under Section 354 IPC. We think that the High Court is right in its approach that from the medical evidence and the statement of the prosecutrix and attendant circumstances, it cannot be said that there was penetration and there was, therefore, no sexual intercourse though the ingredients of attempt to commit offence of rape are there. The High Court had set aside the order of the sessions court confiscating the Maruti Car in which the offence of attempt to rape was committed as the car was owned by a company of which the accused was a Director. Since there is no appeal against this part of the order, we need not go into the scope and intent of Section 452 Cr.P.C. if the court could order confiscation of the car, it having been "used for the commission" of the offence of rape particularly if the car had been owned by the accused.

In Bharwada Bhoginbhai Hirjibhai vs. State of Gujarat [1983 Cr.L.J. 1096] the accused had been convicted for the offence under Section 376 read with Section 511 IPC and was sentenced to two and a half years rigorous imprisonment. He was accused of having committed the offence against girls of 10 to 12 years of age. The Supreme Court said that the accused had behaved in a shockingly and indecent manner. The magnitude of his offence cannot be over-emphasised. The Supreme Court further noticed that the incident occurred some seven years back and the appellant had lost its job in view of the conviction recorded by the High Court. The accused was also having a daughter of the same age at the time he committed the crime. This Court was of the view that the accused must have suffered great humiliation in the society. The prospects of getting a suitable match of his own daughter had perhaps been marred in view of the stigma in the wake of the finding of quilt recorded against him in the context of such an offence. Taking into account the cumulative effect of these circumstances, and overall view of the matter, the Court said that the ends of justice would be satisfied if the substantive sentence imposed by the High Court for the offence under Section 376 read with Section 511 IPC was reduced from one of two and a half years to one of 15 months' rigorous imprisonment.

In our opinion, therefore, the High Court after having come to the conclusion that the accused was guilty of an offence under Section 376/511 of the IPC could not have convicted the accused for an offence under Section 354 IPC. Section 511 IPC provides punishment for attempting to commit offence punishable with imprisonment for life or other imprisonment. In this case since the girl was under 12 years of age and the Sessions Judge having found that offence of rape had been committed could not have awarded sentence of 7 years when the law prescribes minimum sentence of rigorous imprisonment for a term not less than 10 years, unless exceptional circumstances existed. However, we find that the State or the complainant did not come up in appeal in the High Court for enhancement of the sentence. Though there was no charge under Section 376 read with Section 511 IPC, under Section 222 of the Code of Criminal Procedure when a person is charged for an offence he may be convicted of an attempt to commit such offence although the attempt is not separately charged.

Considering the whole aspect of the matter, we are of the opinion that sentence of five years rigorous imprisonment and fine of Rs.40,000/- will meet the ends of justice. The fine has already been paid, out of that Rs.25,000/- has been withdrawn by the father of the girl as per direction of the High Court which we uphold. We, therefore, allow the appeal of the State convert the conviction of the accused-respondent from under Section 354 IPC to that under Section 376/511 IPC and sentence him as aforesaid. Since fine has already been paid, no sentence of imprisonment in lieu of payment thereof need be imposed. The conviction and sentence of the accused under Section 57 of the Bombay Children Act as ordered by the High Court shall, however, stand. The sentences shall run concurrently. In this view of the matter, appeal filed by the accused is dismissed. The accused will be taken into custody and would undergo the remaining portion of his sentence.