Mahendra Kumar vs The State Of M.P. on 27 June, 2017

Cr.A. No.1590/1999 1

HIGH COURT OF MADHYA PRADESH
BENCH AT INDORE
SINGLE BENCH : Hon’ble Shri Justice Ved Prakash Sharma
Cr.A. No. 1590 / 1999
MAHENDRA KUMAR S/O KISHORILALJI
Vs.
THE STATE OF MADHYA PRADESH
-x-x-x-x-x-x-x-x-x-x-x-
Shri Rakesh Kumar Vyas, learned counsel for the appellant.
Shri Pankaj Wadhwani, learned Public Prosecutor for the
respondent-State.
-x-x-x-x-x-x-x-x-x-x-x-

JUDGMENT

(Delivered on 27th day of June, 2017)

This appeal preferred under Section 374 of Cr.P.C.
is directed against judgment and order dated 03.12.1999
rendered by First Additional Sessions Judge, Mhow, Indore in
S.T. No.370/1993 whereby appellant Mahendra Kumar has
been convicted under Section 376/511 and 306 of IPC and has
respectively, been sentenced to undergo five years and ten
years rigorous imprisonment and to pay a fine of Rs.1,000/-
and Rs.2,000/- with usual default stipulation.

2. The prosecution story, as having emerged during
the trial, briefly stated, is that on 21.09.1992 the prosecutrix, a
married lady having four sons, was residing in Joshi Mohalla,
Mhow Indore. Allegedly appellant Mahendra Kumar, who
was earlier residing in the same locality in the neighbourhood
of the prosecutrix was having acquaintance with her family.
On 21.09.1992 husband of the prosecutrix was away at
Bombay. Appellant Mahendra Kumar taking advantage of the
Cr.A. No.1590/1999 2

situation around 9:00 pm came to the house of the prosecutrix
and gave some lessons to her children including Sachin P.W.4
the eldest one. Allegedly, thereafter, he consumed some liquor
and despite being asked by the prosecutrix to leave her house,
stayed there. Around post-midnight hours, the appellant
suggested the prosecutrix to have sex which she declined.
Thereafter, the appellant to have forcible intercourse pulled
away the ‘Saree’ worn by the prosecutrix, who feeling highly
agitated, poured kerosene oil on her body, and thereafter, set
herself ablaze resulting in serious burn injuries. The appellant
tried to extinguish the fire in order to rescue the prosecutrix
and in this process, his shirt also caught fire. On an alarm
being raised by Sachin P.W-4, the son of the prosecutrix, the
persons residing in the vicinity including Heeralal P.W-7
(‘Jeth’ of the prosecutrix), Madanlal P.W-11 (‘Devar’ of the
prosecutrix’), Rameshwar P.W-5 and Gopal P.W-9 reached at
the spot. The appellant was caught red handed on the spot. He
was thrashed by the people who had assembled there. The
prosecutrix who had sustained serious burn injuries was
immediately shifted to Civil Hospital, Mhow where Dr.
Paritosh Dubey P.W-12 examined her and vide report Exhibit-
P/16 found 80% superficial to deep bones on her body. He
further found smell of kerosene oil coming from the body.
Considering her serious condition, she was referred to M.Y.
Hospital, Indore where, as per prosecution on being
interrogated by Raghuveer Singh Chouhan P.W-7, the then
Assistant Sub-inspector, Police Station-Mhow, in presence of
Cr.A. No.1590/1999 3

Dr. G.S. Chouhan, she gave a statement vide Exhibit-P/14
stating therein that as the appellant wanted to ravish her,
therefore, out of anger and agitation, she poured kerosene oil
on her body and set herself ablaze. Allegedly, on the following
day i.e. 23.09.1992, at around 9:05 am, the appellant
Mahendra Kumar informed the police regarding this incident
which was recorded in the daily diary of Police Station-Mhow
at serial No.1998 (Exhibit-P/1A). The appellant was taken
into custody and was sent for medical examination. Dr.
Mahesh Tiwari (P.W.8) examined him and vide report Exhibit-
P/9 found as many as nine injuries on his person; most of
them being either contusions or abrasions. Next day i.e on
23.09.1992 the prosecutrix succumbed to the burn injuries. In
this regard, inquest report was registered at Police Station-
Mhow. Head Constable G.L. Sisodiya, vide inquest Exhibit
P/3, found that the prosecutrix died because of the burn
injuries. Her dead body was sent for post-mortem
examination. Dr. Raj Kumar Singh P.W-6, who was posted as
Associate Professor, MGM College, Indore, on 23.09.1992,
conducted autopsy on the dead body and vide Exhibit-P/7
opined that the prosecutrix died because of cardio-respiratory
arrest as a result of burn injuries, and their complications. The
visra of the prosecutrix was preserved for chemical
examination. Apart this, two slides of vaginal swab were also
prepared and handed over to the police in a sealed cover.

3. A case under Section 376/511 of IPC was
registered against the appellant. The site of occurrence was
Cr.A. No.1590/1999 4

inspected by Prakash Chandra Dubey (P.W.13) the Techinical
Officer of forensic team. Apart this, Raghuveer Singh
Chouhan (P.W.10) the then A.S.I. Police Station-Mhow visited
the place of occurrence. He vide seizure memo Exhibit-P-11,
seized simple and kerosene mixed earth, burnt petticoat which
was smelling of kerosene and remains of burnt clothes from
the spot. He after inspection of the spot also prepared site map
Exhibit-P/12. A key ring along with an empty cane of
kerosene oil, three burnt match sticks, semi-burnt mattress and
three empty pouches of liquor and some broken pieces of
bangle were also recovered from the spot vide Exhibit-P/13.
Raghuveer Singh Chouhan (P.W.10) interrogated the
prosecutrix on 22.09.1992 at around 07:45 pm at M.Y.
Hospital, Indore in presence of Dr. G.S. Chouhan and
recorded her statement vide Exhibit-P/14. The semi-burnt
shirt of the accused was also seized by him vide seizure memo
Exhibit-P/5. Witnesses were interrogated.

4. After usual investigation a charge-sheet was laid
before competent Magistrate who after complying with
provisions of Section 207 of Cr.P.C. committed the case to the
Court of Session from where it was made over for trial to First
Additional Sessions Judge, Mhow Indore. The learned Trial
Judge framed charges under Section 306 and 376/511 of IPC
against the appellant who abjured the guilt and claimed to be
tried.

5. The prosecution in order to bring home the guilt
examined as many as 13 witnesses including Sachin P.W.4
Cr.A. No.1590/1999 5

(son of the prosecutrix), Heeralal P.W.7 and Madanlal
(P.W.11). R.S. Chouhan (P.W.9) carried out the investigation
while Dr. Raj Kumar Singh P.W.6 is Autopsy Surgeon. Dr.
Paritosh Dubey (P.W.12) had medically examined the
prosecutrix before her death. Apart this, document Exhibit-
P/1A to P/18 were also marked in evidence.

6. The incriminating circumstances appearing against
the appellant in the prosecution evidence were brought to his
notice during his examination under Section 313 of Cr.P.C.
The appellant denied the incriminating circumstances and
claimed total innocence, however, he chose not adduce any
evidence in defence.

7. The learned trial Judge on the basis of evidence
brought before the Court, vide the impugned judgment,
convicted and sentenced the appellant as stated hereinabove in
para-1 of the judgment. The conviction and sentence is
challenged on the ground that the learned trial Court has
committed a grave error of law in holding the appellant guilty
under Section 306 of IPC despite the fact that the appellant
had never instigated, encouraged, incited or suggested the
deceased to commit suicide. It is submitted that the alleged act
of attempt to commit rape may be a reason to commit suicide
but that by itself will not amount to abatement to commit
suicide. As regards conviction under Section 376/511 of IPC it
is contended that the learned trial Court has not properly
appreciated the legal position while recording conviction
against the appellant under Section 376/511 of IPC though
Cr.A. No.1590/1999 6

there is nothing to indicate that appellant attempted to commit
rape against the prosecutrix and that the act attributed to the
appellant at the most may be categorized as outraging the
modesty of the prosecutrix. It is submitted that learned trial
Court committed serious error of law in relying upon Exhibit-
P/14 and treating the same as dying declaration despite the
fact that same was not recorded by the Executive Magistrate
though enough time was there to get it recorded by Executive
Magistrate. It is also submitted that no evidence was brought
on record to demonstrate that the prosecutrix was mentally fit
to make a statement in the nature of dying declaration. It is
submitted that the trial Court has not properly appreciated the
law and facts of the case, therefore, impugned judgment is
liable to be set aside.

8. Per contra, it is submitted by learned Public
Prosecutor that the learned trial Court on proper and elaborate
appreciation of evidence and after considering various
relevant aspects of the case including the admissibility of
Exhibit-P/14 as dying declaration has recorded conviction and
sentence against the appellant, and therefore, no ground is
made out to interfere in the impugned judgment.

9. Heard the learned counsel for the parties and
perused the record. The questions of consideration is whether
the impugned judgment is contrary to the law and facts of the
case and whether the learned trial Court has committed factual
and legal error in recording conviction and sentence against
the appellant?

Cr.A. No.1590/1999 7

10. The prosecution in order to prove its case has
primarily relied upon the testimony of Sachin P.W.4, who is
the son of the prosecutrix, dying declaration and Exhibit-P/14
said to have been made by deceased to Raghuveer Singh
Chouhan P.W.10 in presence of doctor. Apart this, prosecution
has also relied upon Exhibit-P/1A, which is daily diary entry
said to have been recorded on the basis of information
furnished by appellant Mahendra Kumar with regard to the
alleged incident.

11. A serious challenge has been made by the defence
with regard to the admissibility of Exhibit-P/1A which is said
to be the report lodged at the instance of the appellant. The
contentions is that being confessional in nature it is hit by
Section 25 of the Evidence Act. The learned trial Court has
dealt with this issues in para 7- 14 of the impugned judgment.
A bare perusal of Exhibit-P/1A reveals that it is confessional
in nature because the facts constituting the offence of attempt
to commit rape have been described therein. In Aghnoo
Nagesia Vs State of Bihar AIR 1966 SC 119 the Supreme
Court has clearly held that where the accused gave the First
Information report to the police, the fact of his giving that
information is admissible under Section 8 of Evidence Act
and if it is a non-confessional one, it is admissible under
Section 21 of the Evidence Act. However, a confessional
statement cannot be used against the accused under Section 25
except to the extent it is permitted under Section 27 of the
Evidence Act. It is further held that if a statement contains an
Cr.A. No.1590/1999 8

admission of an offence, not only that admission but also
every other admission of an incriminating fact contained in
the statement is part of the confession; and little substance and
content would be left in sections 24, 25 and 26 if proof of
admissions of incriminating facts in confessional statement is
permitted. In the instant case Exhibit P/1A being confessional
in nature cannot be held to be admissible in view of the
aforesaid dictum of law. The learned trial Court, relying upon
decisions in Pakla Narayan Swami Vs. King Emperor AIR
1939 PC 47 and Palvinder Kaur Vs. State AIR 1952 SC 354,
has held that Exhibit-P/1A is admissible in evidence, however,
the stand so taken appears to be totally misplaced in view of
the clear proposition of law laid down by the Apex Court in
the case of Aghnoo (supra).

12. Next comes the testimony of Sachin P.W.4 who is
the son of the prosecutrix. This witness has testified regarding
the alleged incident in a clear and consistent manner. As per
Sachin P.W.4, the accused on the date of alleged incident
came to his house at about 9:00 pm and that he along with his
three brothers was present in the house at that time. This
witness has further deposed that appellant sent him to bring
two pouches of liquor from the shop and that he along with
his brother Nitin had brought two pouches of liquor which
was consumed by the appellant, and thereafter, another
quarter of foreign liquor was brought by them at the instance
of the appellant which too was consumed by him. This
witness has testified that though his mother had asked the
Cr.A. No.1590/1999 9

appellant to go to his house, however, he did not left and slept
inside their house. As deposed by Sachin (P.W.4), at around
12:30 in the midnight, he saw the accused pulling away the
‘sari’ worn by his mother. He has further deposed that
thereafter his mother poured kerosene upon herself and set
herself afire, whereupon he called his elder father and other
persons of the locality. Sachin has been subjected to detailed
cross-examination but except for few insignificant omissions
here and there his testimony has remained intact with regard
to the substantial part of the story. It is not the case of the
defence that this witness had any previous ill-will, enmity and
animosity against the appellant and for that reason was
interested in falsely implicating him. This witness in para-14
had clearly denied the suggestion that his mother caught fire
while cooking food and that she was dissatisfied with her life.
Noticeably, no such specific defence has been taken by the
appellant in his examination under Section 313 of the Cr.P.C.
Otherwise also post-midnight time is not the time for cooking
meals and at the time of spot inspection no utensils, which are
usually used for cooking, were found. On the contrary as
deposed by R.S. Chouhan (P.W.10) he seized from the spot an
empty cane of kerosene oil, three burnt match sticks, two
empty pouches of liquor and one of foreign liquor apart from
some pieces of broken bangles. Thus the defence raised on
behalf of the appellant cannot be accepted.

13. As regards dying declaration, Raghuveer Singh
Chouhan (P.W-10) has deposed that on 22.09.1992, at around
Cr.A. No.1590/1999 10

07:45 pm, he recorded the statement of the prosecutrix at
M.Y. Hospital in presence of two witnesses namely Kishorilal
and Madanlal (P.W.4). This witness has further testified that
Exhibit-P/14 was recorded in presence of Dr. G.S. Chouhan,
who had also put his signature over Exhibit-P/14. Though Dr.
G.S. Chouhan has not been examined by the prosecution,
however, Madanlal P.W-11 who has been declared hostile on
further examination has admitted in para-3 to 8 that the
prosecutrix has made statement as per Exhibit-P/14.

14. The learned trial Court has discussed the evidence
with regard to dying declaration in para 37 to para 47 of the
impugned judgment. Referring to and relying upon the
decision in case of Ganga Ram Vs State of Madhya Pradesh
AIR 1971 SC 953, the learned trial Judge has stated that there
is no prohibition against admissibility of dying declaration
recorded by police officer provided the same is found to be
trustworthy and reliable. The law with regard to admissibility
of dying declaration recorded by police officer is very clear.
Though it has been held by the apex Court in number of cases
that efforts should be made to get the dying declaration
recorded by Executive Magistrate but if in the peculiar set of
circumstances the dying declaration is recorded by police
officer then the same cannot be thrown overboard only on the
ground that it was so recorded by police officer. In Charipalli
Shankarrao v. Public Prosecutor, AIR 1995 SC 777, the apex
Court observed that if the police Head Constable had made
attempt to procure services of Magistrate, but Magistrate was
Cr.A. No.1590/1999 11

not available, then in such a situation, Police Head Constable
was competent to record the dying declaration. In P.V.
Radhakrishna v. State of Karnataka, JT 2003 (6) SC 84,
RLW 2003(4) SC 557, Hon’ble the apex Court found the
dying declaration recorded by police official in presence of
attending doctor was found to be trustworthy and credible. In
Gulam Hussain and Anr. V. Shabnam, AIR 2000 SC 2480, it
is held that the dying declaration recorded by the Police
Officer before investigation commenced could not be
challenged on the ground that it was recorded by the
investigating officer.

15. Raghuveer Singh Chouhan (P.W-10) has clearly
stated in para-11 that he made efforts to call the Magistrate for
recording dying declaration of prosecutrix, however,
availability of the Executive Magistrate could not be
managed. He has further stated that before recording the
statement of the prosecutrix, he verified from the doctor that
the decease is in a fit state of mind for making statement.
Exhibit-D/2 is the relevant document which bears the
endorsement of the concerned doctor.

16. Learned counsel for the appellant referring to
Exhibit-D/3 has contended that the prosecutrix was not in a fit
state of mind to make dying declaration. Here it may be noted
that the prosecutrix was shifted from Civil Hospital, Mhow to
M.Y. Hospital Indore. Though at Civil Hospital, Mhow, as per
opinion of the doctor, she was not in a fit state of mind to
make statement, however, subsequently, as per certification,
Cr.A. No.1590/1999 12

vide Exhibit-D/2, the prosecutrix was found fit for making
statement. Testimony of Raghuveer Singh Chouhan (P.W-10)
in this regard stands corroborated with Exhibit-D/2. In the
considered opinion of this Court the testimony of Raghuveer
Singh Chouhan (P.W-10) deserves acceptance because he may
not have any axe to grind against the appellant so as to record
a false statement.

17. Thus, the evidence comprising of ocular testimony
of Sachin (P.W-4) and dying declaration Exhibit-P/14 which
has been proved by Raghuveer Singh Chouhan (P.W-10)
sufficiently establishes that on the fateful night, the appellant
visited the house of the prosecutrix, with whom he was having
previous acquaintance, consumed some liquor in her house,
and thereafter, instead of leaving the house stayed there and
almost in the post-midnight hours tried to have sexual
intercourse with the prosecutrix against her will which was
resisted and opposed by her and out of agitation, the
prosecutrix poured kerosene oil on her body and set herself
ablaze.

18. In the aforesaid premises, the question arises
whether offence under Section 376/511 and 306 of IPC are
made out against the appellant?

19. The law with regard to abetment to commit suicide
has been dealt elaborately by this Court in the case of Bittu @
Girriraj vs. State of M.P. (M.Cr.C. No.1742/2016 Order
dated 08.03.2017, Bench Indore), wherein the legal position
has been considered in the light of various pronouncements of
Cr.A. No.1590/1999 13

Hon’ble the apex Court; relevant paras whereof run as under:

09. ‘Abetment to commit suicide’ is an
offence under Section 306 of IPC
punishable with imprisonment for a term
which may extend to 10 years and fine.
Expression ‘Abetment’ has been defined in
Section 107 of IPC which runs as under :-

“107. Abetment of a thing.– A
person abets the doing of a thing, who-
First.- Instigates any person to do that
thing; or Secondly.- Engages with one or
more other person or persons in any
conspiracy for the doing of that thing, if an
act or illegal omission takes place in
pursuance of that conspiracy, and in order
to the doing of that thing; or Thirdly.-
Intentionally aids, by any act or illegal
omission, the doing of that thing.
Explanation 1.-A person who, by willful
misrepresentation, or by willful
concealment of a material fact which he is
bound to disclose, voluntarily causes or
procures, or attempts to cause or procure, a
thing to be done, is said to instigate the
doing of that thing. Explanation 2.-
Whoever, either prior to or at the time of
the commission of an act, does anything in
order to facilitate the commission of that
act, and thereby facilitates the commission
thereof, is said to aid the doing of that act”

10. In the State of Punjab Vs. Iqbal
Singh, AIR 1991 SC 1532, the apex Court
explaining the meaning and expanse of
word ‘abetment’ as used in Section 107 of
IPC, has held as under:

“Abetment” as defined by Section
107 of the IPC comprises (i) instigation to
do that thing which is an offence, (ii)
engaging in any conspiracy for the doing of
Cr.A. No.1590/1999 14

that thing, and (iii) intentionally aiding by
any act or illegal omission, the doing of
that thing. Section 108 defines an abettor as
a person who abets an offence or who abets
either the commission of an offence or the
commission of an act which would be an
offence. The word “instigate” in the literary
sense means to incite, set or urge on, stir
up, goad, foment, stimulate, provoke, etc.
The dictionary meaning of the word “aid”
is to give assistance, help etc.

11. In Ramesh Kumar vs. State of
Chhatisgarh, (2001) 9 SCC 618, a three
Judge Bench of the apex Court explaining
the meaning and connotation of word
“instigation” has held as under ( para.

20):

“20. Instigation is to goad, urge
forward, provoke, incite or encourage to do
“an act”. To satisfy the requirement of
instigation though it is not necessary that
actual words must be used to that effect. or
what constitutes instigation must
necessarily and specifically be suggestive
of the consequence. Yet a reasonable
certainty to incite the consequence must be
capable of being spelt out. the present one
is not a case where the accused had by his
acts or omission or by a continued course
of conduct created such circumstances that
the deceased was left with no other option
except to commit suicide in which case an
instigation may have been inferred. A word
uttered in the fit of anger or emotion
without intending the consequences to
actually follow cannot be said to be
instigation.”

12. Taking note of the fact that each
person’s suicidability pattern is different
from others and that each person has his
Cr.A. No.1590/1999 15

own idea of self-esteem and self-respect,
the apex Court in M. Mohan Vs. State,
Represented by the Deputy
Superintendent of Police, 2011 CRI.L.J.
1900 (S.C.), referring to its earlier decision
in Chitresh Kumar Chopra Vs. State
(Govt. of NCT of Delhi), 2009 (16) SCC
605, held that to constitute abetment, there
should be intention to provoke, incite or
encourage the doing of an act by the
accused.

13. Reference can also be made to
the decision of the apex Court in Gangula
Mohan Reddy Vs. State of Andhra
Pradesh, 2010 (Suppl.) Cr.L.R. (SC) 261,
wherein the allegation was that the
deceased was beaten by the accused and
was also subjected to harassment, due to
which he committed suicide by consuming
poisonous substance. The apex Court
referring to its earlier decisions in
Mahendra Singh Anr. Vs. State of M.P.,
(1995) Supp. 3 SCC 731 and Ramesh
Kumar Vs. State of Chhatisgarh, (2001) 9
SCC 618, holding that offence of abetment
to commit suicide under Section 306 of
IPC is not made out, observed as under:
“Abetment involves a mental process of
instigating a person or intentionally aiding
a person in doing of a thing. Without a
positive act on the part of the accused to
instigate or aid in committing suicide,
conviction cannot be sustained”.

14. In Deepak V. State of M.P.,
1994 Cri. LJ 767 (M.P.), the deceased girl
was threatened with defamation, if she
refused to have sexual intercourse with two
accused; within an hour she committed
suicide leaving a suicidal note. Accepting
the plea that the act of the accused might
Cr.A. No.1590/1999 16

have been a reason for committing suicide
but the same did not constitute abatement
within the meaning of Section 306 read
with Section 107 of the IPC, it was held
that –

“neither there was any intention nor any
positive act on the part of the accused to
instigate her or aid her in committing
suicide. The two accused persons,
therefore, cannot be held guilty of the
offence under Section 306 of the I.P.C. and
their conviction on that count by the trial
Court, is liable to be set aside.”

15. In the case of Sanju @ Sanjay
Singh Sengar Vs. State of Madhya
Pradesh, AIR 2002 S.C. 1998, the accused
was charged under Section 306 of IPC for
abetting his brother-in-law to commit
suicide; the accused allegedly said to him
to ‘go and die’; the deceased left behind a
suicide note stating that accused is
responsible for his death. It was held that
words “go and die” do not constitute
instigation for mens rea of offence under
Section 307 of IPC.

16. In Mahendra Singh and Anr.

Vs. State of M.P., 1996 Cri.L.J. 8941995
Supp (3) SCC 731, a case prior to the
insertion of Section 113-A in the Evidence
Act, the charge under Section 306 IPC
proceeded on the basis of dying declaration
of the deceased to the effect that –
“My mother-in-law and husband and
sister-in-law (husband’s elder brother’s
wife) harassed me. They beat me and
abused me. My husband Mahendra wants
to marry a second time. He has illicit
connections with my sister-in-law. Because
Cr.A. No.1590/1999 17

of these reasons and being harassed I want
to die by burning.”

Considering legal sustainability of the same
the apex Court held as under:

“Abetment has been defined in
Section 107 I.P.C. to mean that a person
abets the doing of a thing who firstly
instigates any person to do a thing, or
secondly, engages with one or more other
person or persons in any conspiracy for the
doing of that thing, if an act or illegal
omission takes place in pursuance of that
conspiracy, and in order to the doing of that
thing, or thirdly, intentionally aids, by any
act or illegal omission, the doing of that
thing. Neither of the ingredients of
abetment are attracted on the statement of
the deceased.”

17. From the aforesaid pronouncements
of the apex Court, it flows that to constitute
abetment to commit suicide, there must be
material, prima-facie, indicating that
accused with a positive act on his part
instigated, incited, aided or provoked the
person to commit suicide.

18. In Devendra and others vs. State of
Uttar Pradesh and another, (2009) 7 SCC
495, it has been held as under:

“when the allegations made in the
first information report or the evidences
collected during investigation do not satisfy
the ingredients of an offence, the superior
courts would not encourage harassment of
a person in a criminal court for nothing.”

20. Examined in light of the aforesaid legal position,
what can be said is that though the act of the appellant in
Cr.A. No.1590/1999 18

pulling down the sari of the prosecutrix was a cause for the
prosecutrix to commit suicide, however, that by itself cannot
be categorize as abatement. The learned trial Court without
properly appreciating this legal aspect has recorded conviction
against the appellant under Section 306 of IPC which in the
aforesaid premises cannot be sustained.

21. As regards conviction under Section 376/511 of
IPC, it is contended on behalf of the appellant that even if the
entire case as set-up by the prosecution is accepted, an offence
under Section 376/511 of IPC will not be made out and at the
most, it can be said that modesty of the prosecutrix was
outraged by the appellant which is an offence under Section
354 of IPC.

22. Per contra, it is submitted by learned Public
Prosecutor that the appellant had undressed the prosecutrix,
and therefore, an offence under Section 376/511 was made
out. To appreciate the contentions raised in this regard it
would be apposite to refer to few judicial pronouncement on
the point. In the case of Madanlal Vs State of Jammu
Kashmir, AIR 1998 SC 386, the Apex Court has held that
difference between preparation and attempt to commit an
offence consists chiefly in the greater degree of determination
and what is necessary to prove that an offence of attempt to
commit rape has been committed is that the accused has gone
beyond the state of preparation. In State of Madhya Pradesh
Vs. Babulal, 1960 Cri.L.J 612 the accused had caught hold of
the prosecutrix and after lying her down on the ground
Cr.A. No.1590/1999 19

forcibly snatched her ‘lugra’, and thereby made her naked. On
cries being raised by the prosecutrix her uncle reached on the
spot and seeing him the accused fled away from the spot. In
this factual background it was held that the facts did not
disclose that the accused was determined to have sexual
intercourse at all events. The Court delineating the difference
between attempt to commit rape and offence of committing
indecent assault observed as follows;-

” The distinction between an attempt to commit
rape and to commit indecent assault is sometimes
very meagre. For the former, there should be
some action on the part of the accused which
would show that he is just going to have sexual
connection with the prosecutrix. For an offence of
an attempt to commit rape the prosecution must
establish that it has gone beyond the stage of
preparation. The difference between mere
preparation and actual attempt to commit an
offence consists chiefly in the greater degree of
determination”.

23. In the case of Ankariya Vs. State of M.P., 1991
Cri.L.J 751(M.P.) the accused loosened cord of the petticoat
of the prosecutrix and was about sit on her waist. When she
raised alarm, the appellant fled away. In these premises, it was
held that the accused is guilty for offence punishable under
Section 354 of IPC and not under Section 376/511 of IPC.

24. In the instant case as per dying declaration of the
prosecutrix, the appellant pulled away the ‘Saree’ worn by the
prosecutrix in order to commit sexual intercourse with her,
therefore, she poured kerosene oil upon herself and set herself
ablaze. Considering this factual situation, it cannot be said
Cr.A. No.1590/1999 20

that the appellant attempted to commit rape upon the
prosecutrix rather the case will be covered under Section 354
of IPC which deals with outraging the modesty of the women.

25. The learned trial Court while recording the
conviction under Section 376/511 of IPC has not considered
the aforesaid relevant factual and legal aspect of the matter,
therefore, conviction recorded under Section 376/511 of IPC
cannot be sustained and same deserves to be modified to one
under Section 354 of IPC.

26. Accordingly, this appeal is partly allowed. The
conviction and sentence recorded against the appellant under
Sections 306 and 376/511 of IPC is hereby set aside. Instead
the appellant is convicted under Section 354 of IPC .

27. As regards sentence, in the facts and circumstances
of the case, the appellant is sentenced to undergo rigorous
imprisonment for two years and to pay fine of Rs.2,000/- and
in default of payment of fine to further undergo rigorous
imprisonment for three months.

28. The appellant is on bail. He is directed to surrender
before the learned trial Court within twenty days from today.
In the event of his failure to surrender the learned trial Court
shall secure his presence by coercive means to send him to jail
so as to serve out the jail sentence imposed against him.

Certified copy as per rules.

(Ved Prakash Sharma)
Judge
Ravi

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