Peetha vs The State Of M.P. on 3 July, 2017

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HIGH COURT OF MADHYA PRADESH AT JABALPUR
SINGLE BENCH: HON’BLE SHRI JUSTICE H.P. SINGH

Criminal Appeal No. 1358/2000

Peetha
Vs.
State of Madhya Pradesh

——————————————————
Shri Surendra Singh, Senior Advocate with Shri A.K.
Dubey, Advocate for the appellant.

Smt. Pratibha Mishra, Learned Panel Lawyer for the
respondent/State.
——————————————————

JUDGMENT

/07/2017

This Criminal Appeal under section 374 (2)
of the Code of Criminal Procedure, 1973 has been
preferred against the judgment dated 5.5.2000
passed by Sessions Judge, Damoh, in Sessions Trial
No.86 of 1999, whereby the learned Sessions Judge
has convicted appellant Peetha under section
376(1)/511 of IPC and sentenced to undergo R.I. for
three years and fine of Rs. 500/- with default
stipulation.

02. The facts giving rise to this appeal may be
summarized as hereunder:

Prosecutrix (P.W. 1) a 25 years old lady, at
the time of incident lived with her maternal aunt
Kallobai (P.W. 2) in village Sadpur, P.S. Rajpura
District Damoh. At about 3:30 P.M., on 2.4.1999,
prosecutrix had gone to graze her goats. The
appellant came from back side, accosted her, caught
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hold her back, pressed her breasts and asked her to
have intercourse with him. Prosecutrix tried to
escape herself then the appellant laid her down on
the earth, mounted over her and told that he will not
leave her, thereby he has tried to outrage her
modesty. Thereafter, she raised an alarm then one
Kallo Bai (P.W. 2) came there and after seeing her
the appellant ran away from the spot. Due to fall on
the earth, she sustained injuries and her bangles
were broken.

03. After reaching at home, prosecutrix
narrated the incident to Gangabai (P.W. 3), mother-
in-law of the prosecutrix and on the same day
prosecutrix went with her and lodged report in Police
Station, Rajpura, District Damoh.

04. Subsequently, the prosecutrix was sent to
Batiagarh on 3.4.1999 for medical examination
where she was examined. The medical report reflects
injuries on her body. During investigation, spot map
was prepared. Broken bangles of prosecutrix were
seized from the place of incident. Statements of
witnesses were recorded. Appellant was arrested.
Concerned court was also informed about the report
of prosecutrix. After completing investigation,
challan was produced before the court of Chief
Judicial Magistrate, Hata and Criminal Case No.
230/98 was registered. The case was, thereafter,
committed to the court of Session for its
adjudication on 18.5.1999.

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05. Learned trial Court framed charge under
section 376(1)/511 of IPC against the appellant, who
abjured the guilt and claimed to be tried. The
appellant pleaded not guilty to the charge under
Section 376 (1)/511 of the IPC. He submits that due
to previous enmity he has been falsely implicated in
the present case.

06. In order to prove its case, prosecution
examined as many as eight witnesses. The appellant
in support of his plea did not adduce any evidence,
oral or documentary. The learned Addl. Sessions
Judge, who tried the case by the impugned judgment
convicted and sentenced the appellant as mentioned
hereinabove.

07. Shri Surendra Singh, learned Senior
Counsel for the appellant submits that the
prosecution has not been able to prove the
ingredients of Section 376 of the Code. There was no
incriminating material or evidence before the trial
Court that any attempt whatsoever was made by the
appellant to commit rape upon prosecutrix. In other
words, there was no solitary evidence that any
attempt was made by the appellant to penetrate at
the slightest degree. According to him whole story is
false and and fabricated and accused/appellant
deserves acquittal. In alternative, learned Senior
counsel submitted that the offence, if any, made out
against the appellant, would not be one under
Sections 376/511 of the Code for attempt to commit
rape, but would be under Section 354 of IPC i.e. in
respect of assault or use of criminal force to a
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woman with intent to outrage her modesty.

08. Smt. Pratibha Mishra, learned Panel Lawyer,
vehemently, contends that judgment and order of
conviction of appellant is patently legal and there is
no reason to interfere with the same. She also
submits that looking to the nature of offence the
matter should be seriously viewed.

09. Perused the statements of witnesses and
the documents exhibited. Prosecutrix (P.W.1) is
victim and has stated that on the date of the
incident at about 03:00 P.M., when she was grazing
her goats then the appellant came from back side,
caught hold her back, pressed her breasts. She has
further stated that he will not leave her and he has
to do wrong work (Bura Kaam). He laid down her on
the earth and mounted over her. Prosecutrix (P.W.1)
has further stated that during the course of incident
one Kallo Bai (P.W.3) came there and after seeing
her, the appellant fled away from the spot and due
to that he could not perform wrong work.

10. Kallo Bai (P.W.2) has supported the
statement of the prosecutrix and stated that on
hearing the shouting of prosecutrix, she rushed to
spot and saw that prosecutrix was lying on earth and
the appellant was mounted over her. She further
stated that as soon as appellant saw her, he fled
away. She further stated that prosecutrix told her
that the appellant wanted to molest her.

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11. Prosecutrix (P.W.1) has stated that on the
date of incident her husband had gone to other
village to purchase animals. She had narrated the
incident to her mother-in-law, Ganga Bai (P.W. 3)
and with her she went to Police Station and lodged
the report. Ganga Bai (P.W. 3) has corroborated the
statement of prosecutrix (P.W.1).

12. Prosecutix has stated that she has been
examined by Dr. K.L. Adarsh (P.W. 6), who has
examined the prosecutrix on 3.4.1999. As per his
report (P.W. 5), he found one contusion and other
four abrasions on the person of the prosecutrix. All
these injuries were caused by hard and blunt object.
Nothing has been elicited from Dr. K.L. Adarsh (P.W.

6). In cross-examination to disbelieve this witness
and in this way Dr. K.L. Adarsh (P.W. 6) has
supported the case of the prosecution. There is no
material to disbelieve the evidence of above
witnesses. There is no reason to disbelieve the
statement of prosecutrix (P.W. 1), as nothing has
been elicited from her during cross-examination by
the defence. The discrepancy is so inconsequential
that on the basis of this discrepancy the whole
prosecution case cannot be thrown out. Thus, in
my considered view, prosecution has successfully
proved that on the date of incident, the appellant
caught hold the prosecutrix, pressed her breasts,
mounted over her and on her shouting when one
witness Kallo Bai came there then he fled away from
the spot.

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13. The trial Court has convicted the appellant
under Section 376/511 of IPC. In order to arrive at
the correct conclusion as to whether the conviction
of the appellant under Section 376/511 of IPC is
sustainable, it is appropriate to examine the basic
ingredients of Section 375 of IPC punishable under
Section 376 of IPC. The most important ingredient of
the offence under Section 375 of IPC is penetration
of male organ into the private part of the female
with or without any emission of semen. Even an
attempt of penetration into private part of the victim
completely, partially or slightly would be enough to
constitute the offence under Section 375 of IPC. The
crucial words in Section 511 of IPC are that the
accused should have done the act towards the
commission of the offence. There are three stages
in commission of a crime (I) Intention to commit,
(II) Preparation to commit and (III) Attempt to
commit. If the attempt results in the actual
commission of the offence, the crime is complete. In
the instant case, there is no material to show that
any attempt was made by the appellant to commit
rape or intercourse. Even, there is no material that
the appellant had undressed himself and any
attempt was made by him to undress the victim. On
careful analysis of the prosecution evidence and
documents available on record, the appellant cannot
be held guilty for committing an offence punishable
under Section 376/511 of IPC.

14. In view of the above discussions, it has to
be seen whether the act of appellant falls within the
fore-corners of any other provisions incorporated in
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the Indian Penal Code relating to overwhelming
evidence of the prosecution. The defence suggested
by the appellant appears incredible. The evidence
satisfactorily establishes that the offence made out
against the appellant in the case is as punishable
under Section 354 of IPC. In this state of evidence,
the act of the accused would constitute not an
attempt to commit rape, but only preparation for the
same. The offence against the appellant would,
therefore, be one under Section 354 IPC, assault or
use of criminal force to woman with intent to outrage
her modesty. Therefore, the appellant is liable to be
convicted under Section 354 of IPC.

15. In the result the appeal is allowed in part.
The conviction of appellant under Section 376/511 of
IPC is altered to one under Section 354 of IPC.

16. Now, the question arises as to how a
balance should be struck and maintained in regard to
the sentence. It is also to be noted that the offence
under Section 354 of IPC, no minimum sentence is
prescribed and sentence of fine amount alone can be
inflicted for such an offence. Perusal of record
reflects that the appellant had been in custody from
11.4.1999 to 19.4.1999, total 9 days. He has been
facing this criminal trial for more than 18 years. Fine
amount has already been deposited. In this view, no
fruitful purpose is going to be served by again
sending the appellant to jail, therefore, it would be
appropriate in the interest of justice if the jail
sentence to the appellant is awarded upto the period
already undergone by him with increasing the fine
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amount. Accordingly, he is sentenced to undergo
rigorous imprisonment of 9 days, which had already
been undergone by him and to pay a fine of
Rs.5,000/- including the amount of Rs.500/- which
has already been deposited by him.

17. The appellant is on bail. His presence is no
more required and, therefore, it is directed that his
bail bonds shall stand discharged.

18. A copy of this judgment be sent to the trial
Court along with its record for information.

(H.P. SINGH)
JUDGE
VKV/-

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