Abhay Singh vs State on 26 July, 2017

* IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment Reserved on: July 20, 2017
% Judgment Delivered on: July 26 , 2017
+ CRL.A.968/2015
ABHAY SINGH ….. Appellant
Through: Mr.Aditya Vikram, Advocate
(DHCLSC)

versus

STATE ….. Respondent
Through: Mr.Kewal Singh Ahuja, APP
for the State

CORAM:
HON’BLE MS. JUSTICE PRATIBHA RANI

JUDGMENT

1. This jail appeal has been filed by the appellant/convict against
the judgment dated 6th July, 2015 whereby he has been convicted for
committing the offences punishable under Sections 376/506(I) IPC
Section 6 of the Protection of Children from Sexual Offences Act,
2012 in short ‘POCSO’. Vide order on sentence dated 8th July, 2015,
the appellant has been sentenced as under:-

(i) Under Section 376 IPC R.I. for a period of seven years with
fine of ` 2,000/- and in default, to
undergo SI for three months

(ii) Under Section 506(I) SI for a period of one year
IPC

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(iii) Under Section 6 of R.I. for a period of ten years with
POCSO Act fine of `2,000/- and in default, to
undergo SI for three months

All the sentences were ordered to run concurrently with benefit
of Section 428 Cr.P.C.

2. Briefly stating, the prosecution case runs as follows:-

The appellant (hereinafter referred to as ‘convict’) is father of
the child victim ‘J’ (name withheld to conceal her identity). The wife
of the convict had expired leaving behind two children i.e. the child
victim ‘J’ and her younger brother, who was 14 years old at the time
of occurrence. In the written complaint Ex.PW-2/A which formed the
basis of registration of FIR No.186/2012 under Sections 376/506(I)
IPC 6 of POCSO Act at PS Sonia Vihar, the child victim stated that
she was a student of 9th standard and she was residing at the address
mentioned in the complaint along with her brother ‘A’ (name withheld
as minor) and father Abhay Singh. Her mother Smt. Lalli Devi had
expired about four years prior to this incident.

As per the complaint dated 12th December, 2012, Ex.PW-2/A
about 4-5 months back when she was alone at home and her brother
was away to school, her father came home and did galat kaam
(balatkaar) with her and also warned her not to disclose this incident
to anyone. Due to fear she kept quiet.

Again on 11th December, 2012 at about 7.00 a.m. when her
brother was sleeping in the same room, her father committed rape on
her but due to fear she kept quiet. On the same day in the evening at

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about 7.00 p.m. when her brother had gone to sell the vegetables, she
was alone at home. There was also power cut at that time. Her father
came home and she was made to lie down. After removing her
pajaami again he did galat kaam with her. When she resisted he
scolded her. Thereafter, her father left for temple and she also left
home. During night time, she continued wandering here and there
waiting for the sunrise and reached the police station on the next day.
After her medical examination at GTB hospital, her statement Ex.PW-
2/A was recorded at the police station wherein she prayed for legal
action against her father.

3. The endorsement Ex.PW-14/B by the investigating officer
while preparing rukka records that the complainant ‘J’ came to the
police station and informed about galat kaam being done by her
father. NGO/Counselor Neetu Joshi reached the police station and
child victim was sent to GTB hospital where her MLC No.5353/2012
Ex.PW-9/A was prepared. As per the MLC, the hymen was intact. The
sealed exhibits were seized and after recording statement of child
victim, rukka was sent for registration of case under Sections 376/506
IPC.

4. On the same day father of the child victim was arrested. On
14th December, 2012 the child victim was produced before the learned
Metropolitan Magistrate for getting her statement recorded under
Section 164 Cr.P.C.

5. While making statement under Section 164 Cr.P.C., child
victim ‘J’ mentioned her age as 17 years and has made the statement
recorded in Hindi and translated as under:-

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“My papa Abhay Singh tried to commit rape in the
morning and raped on the same day in the evening when
my younger brother ‘A’ (name withheld being minor)
aged about 14 years had gone to the vegetable shop of
Papa to sell the vegetables. I and Papa were at home at
that time. My papa came. I was sleeping on the bed. He
forcibly removed my salwar and his clothes. Then Papa
had put his organ used for passing urine into my organ
used for passing urine. On the next day I made complaint
to the police but on that date due to fear of Papa I could
not raise alarm.”

6. In order to bring home the charge against the convict,
prosecution examined 14 witnesses.

7. The convict was also examined under Section 313 Cr.P.C. to
enable him to explain the incriminating evidence appearing against
him. He denied having committed rape on his daughter and claimed
his false implication as he used to object the friendship of the child
victim with bad elements.

8. The learned Addl. Session Judge placed reliance on the
statement of the child victim and observed that absence of injury on
the body or on private parts of victim was of no consequence. The
motive for false implication of the convict was disbelieved. Thus,
relying on the statement of the child victim and taking into
consideration her age, her father i.e. the convict was held guilty and
sentenced in the manner stated above.

9. Dissatisfied by the verdict given by learned ASJ, the appellant
has challenged the finding of guilt.

10. Mr.Aditya Vikram, Advocate (DHCLSC) appearing on behalf
of the appellant has contended that:-

CRL.A.968/2015 Page 4 of 22

(i) The child victim is his own daughter and he had been taking
care of his both children as father.

(ii) The child victim was having friendship with some bad elements
to which he used to object which was to her disliking.

(iii) On being instigated by the boys with whom she was having
friendship, she lodged this false complaint.

(iv) The testimony of the victim of she being repeatedly raped ine
June/July 2012 and twice on 11th December, 2012 is not corroborated
by the medical evidence. Her MLC shows that there was no fresh or
old injury on her private part or any other part of the body. As per
MLC the hymen was intact which would have been a remote
possibility had she been raped three times over a period of six months
and twice on the day before registration of FIR.

(v) There are material contradictions in the version of the child
victim. Her version in FIR is exaggerated mentioning three incidents
of rape. Though her statement under Section 164 Cr.P.C. is limited to
two incidents of the same date only.

(vi) Her deposition before the Court is limited to one incident of
rape in the evening of 11th December, 2012 without referring to any
other such incident by the appellant either in the morning of
11th December, 2012 or 4-5 months prior thereto.

(vii) Presence of semen on the clothes or gadda or vaginal swabs of
the victim at the most can suggest an attempt being made, hence on
the basis of FSL report, the appellant could not have been convicted
under Section 376 IPC but only for attempt to commit rape.

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(viii) The statement of the child victim is full of contradictions and
untrustworthy and even her conduct after the alleged first rape i.e. four
months prior to the registration of FIR and even a day prior to
registration of FIR, is highly unnatural.

(ix) The brother of the child victim who was aged about 14 years
was sleeping in the same room where the alleged rape was committed
in June/July, 2012 at 7.00 am for the first time. But he was never
examined by the prosecution which creates a dent in the story narrated
by the victim.

(x) The child victim has admitted that mobile phone was available
in their house and police can be informed by calling 100 number but
she never informed the police or her teacher or the neighbours about
she being sexually assaulted by her own father. The victim has stated
in the complaint on 11th December, 2012 that when her father left for
temple after committing rape in the evening she also left home but in
cross-examination she has stated that she has taken bath after the
incident before she left the house.

(xi) As per the child victim, she was hiding herself behind the
bushes and trees but there are no bushes or tree near her house or in
the vicinity. Even the IO has not investigated on this issue as to where
the victim was throughout the night.

(xii) The MLC of the victim shows that hymen was intact and there
was no mark of injury on her private parts or body which falsifies her
version that she was subjected to rape twice on 11th December, 2012
as well 4-5 months prior to that date.

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11. Mr.Kewal Singh Ahuja, learned APP for the State while
refuting the contentions and supporting the reasoning given by the
learned ASJ for convicting the appellant submitted that the impugned
judgment requires no interference by this Court for the reason that the
complainant/victim herein is none else but his own daughter and her
statement is corroborated by CFSL result. Learned APP for the State
has submitted that scientific evidence was collected and CFSL report
shows presence of semen in vaginal swab which could not have been
detected in case the child victim was not sexually assaulted by her
father. Learned APP further submitted that the child victim was fully
dependent on her father as her mother had expired and brother was
younger to her. It has also been contended that father being in
dominating position, the rape being committed on a mattress, the
question of suffering any injury could not have arisen either on the
private part or on any other part of the body. Learned APP for the
State submitted that merely because the hymen is intact does not mean
that she was not sexually assaulted or raped by her father as even the
slightest penetration is sufficient to constitute the offence of rape. She
could not disclose about the rape earlier due to fear and threat by her
father, hence the learned Trial Court has rightly convicted the convict
under Section 376/506 IPC.

12. I have considered the rival contentions and carefully gone
through the record.

13. The learned Trial Court convicted the appellant for the
following reasons:-

CRL.A.968/2015 Page 7 of 22

(i) In view of the opinion expressed by Modi in Medical
Jurisprudence and Toxicology (Twenty First Edition) and Parikh’s
textbook of Medical Jurisprudence and Toxicology, even slightest
degree of penetration of the vulva by the penis with or without
emission of semen would constitute the offence of rape without
producing any injury to the genitals or leaving any seminal stains.
Thus the rape is possible even when the hymen is intact.

(ii) The convict being father was in a dominant position thus there
was no scope for the victim to resist firmly.

(iii) The defence that he objected to the friendship of his daughter
with other boys was disbelieved on the ground that no girl would dare
to implicate her father with such a shameful allegation unless
compelled by reality.

(iv) Human semen was detected on Ex.1f1 and Ex.1f2 i.e. two micro
slides containing vaginal secretion.

(v) The testimony of the child victim and the FSL examination in
respect of Ex.1f1 and Ex.1f2 i.e. two micro slides containing vaginal
secretion, Ex.1f3 i.e. a piece of cotton wool swab taken from the
vaginal secretion of the victim, Ex.2a i.e. the inner leggings, Ex.2e i.e.
the underwear of the victim and Ex.3 i.e. the mattress used in the
incident were considered sufficient to convict the appellant under
Sections 376/506(I) IPC Section 6 of the POCSO Act.

14. There can never be more graver and heinous crime than the
father being charged of raping his own daughter. He not only delicts
the law but it is a betrayal of trust. The father is the fortress and
refuge of his daughter in whom the daughter trusts. Charged of raping

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his own daughters under his refuge and fortress is worse than the
gamekeeper becoming a poacher and treasury guard becoming a
robber. [AIR 2006 SC 381 State of Himachal Pradesh vs. Asha Ram].

15. It is a case where the family consists of three members i.e.
father -the accused; daughter – the complainant aged about 15 years
and son, who was aged about 14 years but mature enough to shoulder
responsibilities as he was handling their vegetable shop independently
as well.

16. On appreciating the rival contentions, this Court finds that child
victim has given different versions at different points of time.

17. The child victim was taken to GTB hospital on 12 th December,
2012 at 1.30 pm by W/Ct.Geeta Rani, 1639/NE. She was examined
by Dr.Viras (PW-8) and Dr.Dinesh, CMO (PW-12). In the
MLCEx.PW8/A, it is recorded as under:-

‘Pt. brought by Wct. Geeta Rani 1639 NE PS Sonia Vihar
for medical examination.

No H/o LOC, Vomitting, ENT Bleeding
Pt. Conscious oriented.

O/E
BP – 117/69
Pulse – 76/m
Chest] NAD
CLS]

L/E
No other external injury seen.

Adv.

Refer to Gynae-10 for medical examination.’

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18. The prescription slip Ex.PW9/A recording the provisional
diagnosis has also been prepared by Dr.Viras (PW-8). Neither in the
MLC nor in the provisional diagnosis slip, there is any mention of
alleged history of sexual assault by the father.

19. At the back of provisional diagnosis slip Ex.PW9/A, the
Gynaecologist Dr.Tannavi Aggarwal (PW-9) at 3.00 pm has for the
first time recorded the alleged history of sexual assault by father for
two times on 11th December, 2012. Thereafter the doctor has further
recorded as under:-

‘Breast – soft, no injury marks/discharge.
P/A- Soft no marks

L/E – Hymen intact.

No injury marks present on any part of body/
No bite or scratch marks.’

20. Till recording of the statement Ex.PW2/A of the child victim
after her medical examination, we do not have even a DD entry about
the complaint with which the child victim came to the police station,
who attended her, who accompanied her and what entry was made in
the DD before sending the child victim for medical examination.

21. In the first report Ex.PW-2/A the child victim has narrated three
incidents as under:

(i) 4-5 months prior to 12th December, 2012 (i.e. registration of
FIR) when she was alone at home and her brother had gone to school.

(ii) On 11th December, 2012 at about 7:00 AM when her brother
was sleeping.

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(iii) On the same day i.e. 11th December, 2012 at about 7:00 PM
when her brother had gone to sell the vegetables and there was power
cut.

22. At the time of registration of FIR she stated that after her father
left for mandir she had left home during night and continued
wandering here and there and then reached the police station.

23. As per statement under Section 164 Cr.P.C. recorded on 14th
December, 2012 her father attempted to commit rape in the morning
and on the same day in the evening he raped her when her younger
brother aged about 14 years was away to sell vegetables on the shop of
her father. Next day she made complaint to the police.

24. During her deposition as PW-2, the child victim stated about
being raped in June or July, 2012 by her father and at that time she
was sleeping on a folding bed and her brother was sleeping on takhat
in the house. The subsequent incident she has mentioned to be on 12 th
December, 2012 in the evening at about 7:00 PM instead of 11th
December, 2012 (which may be due to failure to recollect the correct
date) when her brother had gone to sell the vegetables. She has stated
that on 12th December, 2012 after committing rape her father took bath
and left for temple. Thereafter she also took bath and left home after
bolting the door and was hiding behind the bushes and the field under
the trees and she proceeded slowly-slowly and waited for the sun to
rise and then approached the police station where she made complaint
against her father.

25. The child victim, while giving version in the complaint
Ex.PW-2/A of being raped thrice, has made improvement while her

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statement was recorded under Section 164 Cr.P.C. before the learned
Metropolitan Magistrate. No doubt a daughter is not expected to level
false allegations of rape against her own father as arrest of the father
in a situation in which she and her brother were, had the effect of
rendering them homeless with no financial support from any corner.

26. The first incident of rape on 11th December, 2012 has taken
place at about 7.00 a.m. and at that time the brother aged about 14
years was sleeping in that very room. But he has not been
cited/examined as a witness. Even no explanation is coming forward
by the prosecution as to why the brother, who must have come to
know about the incident immediately after the father was arrested on
12th December, 2012, was not questioned.

27. PW-14 SI Monika – the investigating officer has admitted that
she did not examine the brother of the victim and he was not made as
a witness though he was 14 years of age. She voluntarily stated that
since the brother of the child victim was not present at the time of
incident, he was not cited as a witness. This part of the statement of
the investigation officer is contrary to record. It is victim’s own
version that the rape was committed when her brother was sleeping in
the same room. Even at the time, when the Investigating Officer
reached alongwith the child victim to her house to prepare a site plan
and seize the bichhona, she has nowhere stated that the door was
locked. As per the investigating officer, the father of the child victim
was arrested from Gali No.2 when after completing the proceedings at
the spot they were proceeding towards Police Station. Only the
brother would have been present if the house was not locked.

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28. The statement of the victim (PW-2) during trial is that in the
month of June and July, 2012 at about 7.00 am she was sleeping on
the folding cot and her brother was sleeping on a Takht in the room.
At that time her father removed her salwar and inserted her penis in
her private part and threatened that if she disclose this incident to
anyone he would kill her. The next incident has been stated to have
taken place on 12th December, 2012 when her brother has gone to sell
the vegetables in the evening. There was power cut also at that time.
Her father had also gone to sell the vegetables but he returned by that
time. She opened the door and went to sleep. Her father brought her
down from the bed and again committed rape on her at about 7.00
p.m. She stated that on that date no other incident had happened with
her. After committing rape, her father took bath and left for temple.
Thereafter she had also taken bath and left her house after bolting the
door and was hiding behind the bushes and trees in their field. She
waited for sun rise and thereafter went to the police station where she
made her complaint Ex.PW-2/A. At the police station one madam also
came and enquired about the incident. She was sent for medical
examination where her MLC was prepared. Thereafter she was
brought by the IO to her house where site plan was prepared at her
instance and at that time her father was in the gali and was arrested by
the IO on her identification.

29. Since while deposing before the Court as PW-2, the child victim
did not state about any incident of rape/attempt to rape in the morning
of 11th December, 2012 or four months prior to that, with the

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permission of the Court learned APP has put some leading question
which are extracted hereunder:

“Q. Is it correct that in the incident, which happened
about 4-5 months prior to 11.12.2012, your brother had
gone to his school at the time of the incident?
Ans. I do not remember.

Q. Is it correct that the accused had also attempted to
commit wrong act on you on 11.12.2012 in the morning
hours?

Ans. I do not remember.”

30. Although the incident has taken place on 11 th December, 2012
her mentioning the date of incident to be 12th December, 2012 seems
to be due to lapse of time. As on 12 th December, 2012 she reported
the matter to the police.

31. PW-11 Rahul Sharma, Teacher, EDMC Primary School, Dayal
Pur, Delhi-94 has stated that as per school record the date of birth of
the prosecutrix is 11th July, 1997 thus at the time of first incident of
rape in June/July 2012 she was about 15 years of age.

32. As per CFSL report, during the medical examination of the
victim following exhibits were collected:

 Clothing, bother inner and outer (Ex.2a to 2c)
 Mattress used in the incident (Ex.3)
 Nail scrapings (Ex.1c)
 Breast swab (Ex.1d)
 Clipping of public hair (Ex.1e)
 Vaginal secretion (Ex.1f)

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 Washing from vagina (Ex.1h), etc.
The said exhibits were subjected to CFSL examination and human
semen was detected on Ex.1f1 and Ex.1f2 i.e. two micro slides
containing vaginal secretion, Ex.1f3 i.e. a piece of cotton wool swab
taken from the vaginal secretion of the victim, Ex.2a i.e. the inner
leggings, Ex.2c i.e. the underwear of the victim and Ex.3 i.e. the
mattress used in the incident.

33. The CFSL report shows the presence of semen on her clothes,
bichona or vaginal swabs of the victim, this is despite the fact that the
victim has stated that she has taken bath on the evening on 11th
December, 2012 before leaving home. It is not clear from her
statement that after taking bath she was wearing the same clothes or
had changed. The report of chemical examiner recording the presence
of semen on ‘bichona’ or the clothes of the victim in itself is not
sufficient to prove that she was raped.

34. In Taylor’s Principles Practice of Medical Jurisprudence
Volume II 12th Edition page 60, it is mentioned that it is impossible to
conceive that forcible intercourse should take place in childhood
without bruising, effusion of blood, or a laceration of the private parts.
The size of the male organ must necessarily cause some local injury in
the attempt to enter the vagina of a child. If the violation has taken
place within two or three days, appearance as presented by the parts
may be as follows: (1) Reddening or frank inflammation with abrasion
or tearing of the lining-membrane, introitus or of the vagina. (2)
Muco-purulent discharge from the vagina of a yellowish or greenish-
yellow color. staining the clothing; the urethra may possibly share in

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the inflammation; (3) In recent cases blood may be oozing from the
injured parts or clots of blood may be found in the vulva. (4) The
hymen may be entirely destroyed, or may show lacerations.

35. Reverting to the facts of the present case had the child victim
been repeatedly raped by her father i.e. once in June/July, 2012 and
twice on 11th December, 2012, she would have suffered some injury
on her private part. For the reason that her father was a grown-up man
whereas she was a girl of tender age i.e. about 15 years old.

36. Since the report of the chemical examiner Ex.14/F shows the
presence of semen on the clothes and vaginal swab but the medical
evidence as recorded in the MLC Ex.PW-8/A does not show that the
private part of the victim had any mark of violence. Had there been
penetration by a fully grown-up person like her father, even the slight
penetration would have caused some injury in its attempt to enter the
child’s vagina.

37. As per the Modi’s jurisprudence, frequent intercourse and
parturition completely destroy the hymen, which is myrtiformes.
However, no such small tags were detected even on a gynaecological
examination of the prosecutrix.

38. In the case Pappu vs. State of Delhi 2009 Cri.L.J. 3342 the
Division Bench of this Court has observed as under:-

‘Medical Jurisprudence evidences that in adolescent
girls the hymen is situated relatively more posteriorly
and for said reason there is a possibility of rape being
committed without the hymen being torn; the converse
whereof would be that if the hymen of an adolescent girl
is torn due to rape, the penetration has to be a deep
penetration. The Medical Jurisprudence guides that the

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labia majora are the first to be encountered by the male
organ and they are subjected to blunt forceful blows,
depending on the vigour and the force used by the
accused and counteracted by the victim. The narrowness
of the vaginal canal makes it inevitable for the male
organ to inflict blunt, forceful blows on the labia and
such blows lead to contusion because of looseness and
vascularity. The feature of such contusion is revealed
against the pink background of the mucous membrane
dark red contusion being evident to the naked eye.’

39. Unfortunately no DD has been placed on record to reflect at
what time and in what condition the victim entered the police station
on 12th December, 2012 as FIR has been registered by PW-1 HC
Dharam Vir Singh was working as Duty Officer on 12 th December,
2012 from 4:00 PM to 12:00 midnight. He has received Rukka at 4:45
PM from SI Monika on the basis of which FIR was registered. PW-5
Ct.Rahul Chandra who joined investigation in his cross-examination
stated that Police Station Sonia Vihar is at 10 mins walking distance.
Even as per FIR Ex.PW-1/B the distance of place of occurrence from
the police station is North/1.0 km. The date of occurrence in this case
is 11th December, 2012 i.e. in the mid of December, when winter
season is at its peak. In a chilly winter night for a minor girl to remain
exposed to cold wave throughout the night, hiding under a tree or
behind bushes, would have been a terrible experience. She has stated
that during night she continued walking slowly-slowly. Police station
being at a distance of 1 km. she would not have taken whole night to
reach. Even if she was giving a thought whether to report the matter
to the police or not, by the time the sun rises she would have made up

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her mind and would have reached the police station early morning.
However, from the record it appears that she reached the police station
in the afternoon and then taken to Guru Tegh Bahadur Hospital at
about 1:30 PM.

40. Apart from the statement of the victim which has the element of
imperfection at different stages and consistent so far as the incident
dated 11th December, 2012 at 7.00 pm is concerned, there is no other
corroborative evidence that penetration was actually effected. In such
circumstances, the FSL report recording presence of semen is not
sufficient to prove that the act was complete.

41. Now the question that arises for consideration is that if it was
not a rape then under what category the offence committed on her
body falls and can the appellant be punished for committing under
offence punishable under Section 376/511 IPC on the basis of
attempting to commit rape on her daughter.

42. In what circumstances a person can be convicted for attempt to
commit rape were considered in detail in the case of Koppula Venkat
Rao vs. State of Andhra Pradesh AIR 2004 SC 1874. It was observed
as under :

‘8. The plea relating to applicability of Section 376 read
with Section 511, IPC needs careful consideration. In every
crime, there is first, intention to commit, secondly,
preparation to commit it, thirdly, attempt to commit it. If the
third stage, that is, attempt is successful, then the crime is
complete. If the attempt fails the crime is not complete, but
law punishes the person attempting the act. Section 511 is a
general provision dealing with attempts to commit offences
not made punishable, by other specific sections. It makes

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punishable all attempts to commit offences punishable with
imprisonment and not only those punishable with death. An
attempt is made punishable, because every attempt, although
it falls short of success, must create alarm, which by itself is
an injury, and the moral guilt of the offender is the same as if
he had succeeded. Moral guilt, must be united to Injury in
order to justify punishment. As the injury is not as great as if
the act had been committed, only half the punishment is
awarded.

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 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

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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 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 or consummation/completion. 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.

11. In order to find an accused guilty of an attempt with
intent to commit a rape, Court has to be satisfied that the
accused, when he laid hold of the Prosecutrix, not only
desired to gratify his passions upon her person, but that he
intended to do so at all events, and notwithstanding any
resistance on her part. Indecent assaults are often magnified
into attempts at rape. In order to come to a conclusion that
the conduct of the accused was indicative of a determination
to gratify his passion at all events, and in spite of all
resistance, materials must exist. Surrounding circumstances
many times throw beacon light on that aspect.

12. The sine qua non of the offence of rape is penetration,
and not ejaculation. Ejaculation without penetration
constitutes an attempt to commit rape and not actual rape.
Definition of “rape” as contained in Section 375 IPC refers

CRL.A.968/2015 Page 20 of 22
to “sexual intercourse” and the Explanation appended to the
Section provides that penetration is sufficient to constitute
the sexual intercourse necessary to the offence of rape.
Intercourse means sexual connection. In the instant case that
connection has not been established. Courts below were not
correct in their view.’

43. In the present case, the testimony of the victim finds
corroboration from the medical evidence to the extent that an attempt
was made to commit rape and it is a case of ejaculation without
penetration. Hence, the convict could have been convicted only for
committing the offence punishable under Section 376/511 IPC.

20. In view of the above discussion, the conviction of the
Appellant is altered from Section 376 to Section 376/511 IPC.

44. The appellant has also been convicted under Section 6 of
POCSO Act for committing the offence of penetrative sexual assault.
In view of the above discussion, since it is not a case of penetrative
sexual assault, the conviction of the appellant under Section 6 of the
POCSO Act is altered to Section 10 of the POCSO Act.

45. Since the conviction of the appellant has been altered from
under Section 376 to under Section 376/511 IPC and from under
Section 6 of POCSO Act to under Section 10 of POCSO Act, the
sentence awarded to him for the said offences also need to be
modified.

46. Considering the facts and circumstances of the case, the
appellant/convict is sentenced to undergo rigorous imprisonment of
five years and to pay a fine of ₹2000/- and in default of payment of
fine, to undergo SI for seven days for the offence punishable under

CRL.A.968/2015 Page 21 of 22
Section 376/511 IPC and to further undergo RI for five years and to
pay a fine of ₹2,000 and in default of payment of fine, to undergo SI
for seven days for the offence punishable under Section 10 of POCSO
Act.

47. The conviction and sentence awarded to the appellant under
Section 506 IPC is maintained. All the sentences shall run
concurrently

48. The appeal is allowed in above terms.

49. The appellant be released after undergoing the above modified
sentence, if not wanted in any other case.

50. TCR be sent back alongwith copy of this order.

51. A copy of this order be sent to the concerned Jail
Superintendent for information and compliance.

PRATIBHA RANI
(JUDGE)
JULY 26, 2017
‘pg’

CRL.A.968/2015 Page 22 of 22

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