HIGH COURT OF JUDICATURE AT ALLAHABAD
Case :- JAIL APPEAL No. – 1989 of 2013
Appellant :- Jai Pal
Respondent :- State Of U.P.
Counsel for Appellant :- From Jail,Kuldeep Singh Yadav A.C.
Counsel for Respondent :- A.G.A.
Hon’ble Mrs. Vijay Lakshmi,J.
Aggrieved by the judgment and order dated 13.2.2013, whereby the appellant was convicted under Section 376 read with Section 511 I.P.C. by the learned Additional Sessions Judge, Chandausi, Moradabad and was sentenced to 10 years Rigorous Imprisonment with a fine of Rs.20,000/- and in case of default, to undergo a further period of one year imprisonment, the appellant has filed this appeal from jail. On the request of appellant, Shri Kuldeep Singh Yadav, Advocate was appointed as Amicus Curiae vide order dated 21.2.2014, passed by this Court.
Heard Shri Kuldeep Singh Yadav, learned Amicus Curiae on behalf of the appellant and the learned A.G.A. Perused the records.
The prosecution version as disclosed in the F.I.R. is that in the evening of 21.12.2010, at about 4 P.M. when the 3 year old daughter of the first informant was playing outside her house, the accused-appellant called her on the pretext of giving her peanuts. Thereafter, he took the child to his sister’s house namely Pushpa. Her sister was not present at home at that time. Taking advantage of the isolation, the appellant attempted to abuse and molest the child, which caused injury in her private parts. Hearing the shrieks of the girl, her father (first informant), along with witnesses Raja Ram and Bablu reached the spot and saw that the appellant had seized the child on the bed was trying to commit rape with her. The appellant was apprehended on the spot by the father of the girl and the witnesses accompanying him. They, immediately took the appellant along with the victim child to the Police Station, Bahjoi, Disrict-Moradabad where F.I.R. was registered on the same day at 7.20 P.M., as Case Crime No.702/2010 under Section 376/511 I.P.C. The victim child was sent for medical examination, which was conducted by the Emergency Medical Officer, Mahila Chikitsalaya, Moradabad. A brief description of the injury report of the girl is as follows:-
Height 98 cms, teeth 10/11, axillary hair and pubic hair absent, breast not developed. On internal examination, her hymen was found intact, however a lacerated wound measuring 0.5 cms was found present near her vagina at 6 O’ Clock position which bleeded on touch. For age determination of the child, her x-ray was conducted on 06.1.2011. In the opinion of the doctor, her age was found to be about 5 to 6 years.
The matter was investigated, the Investigating Officer recorded the statements of the witnesses, prepared the site plan and after conclusion of the investigation, submitted charge-sheet under Section 376/511 I.P.C. against the appellant. The case being exclusively triable by the court of sessions, it was committed to the sessions court, where charge under Section 376/511 I.P.C was framed against the appellant, who denied from the same and claimed his trial.
During the course of trial, the prosecution examined as many as five witnesses in all.
P.W.1, Giriraj is the father of the victim girl. He is also the first informant. P.W.2 Raja Ram is an eye witness, whose name finds place in the F.I.R. as witness. P.W.3 is Dr.Sunita Kashyap who has medically examined the victim girl. P.W.4 is the victim girl herself and P.W.5 is Bablu, who is also named in the F.I.R an eye witness.
It is noteworthy that after the examination of aforesaid witnesses, the learned counsel for the accused-appellant, admitted the genuineness of the documentary evidence led by the prosecution and accordingly the the formal proof of all those documents was dispensed with by the Court.
After conclusion of the prosecution evidence, the statement of the appellant under Section 313 Cr.P.C. was recorded in which he denied from the truthfulness of prosecution story by stating “galat hai” and stated that the witnesses have deposed against him due to enmity. The appellant did not produce any defence evidence.
The learned trial court found the testimony of all the prosecution witnesses including of the victim, reliable, trustworthy and convicted and sentenced the appellant by the impugned judgment as aforesaid.
The legality and correctness of the aforesaid impugned judgment has been challenged in this appeal by learned counsel for the appellant/Amicus Curiae mainly on the following grounds:
1. Apart from the victim herself (who is a child witness), the prosecution in this case has examined only three witnesses of fact, all of whom are close relatives and are highly interested witnesses. No independent witness has been examined.
2.There is no evidence of attempt to rape, as except one small injury, the doctor has not found any other injury on the body of the victim and her hymen has been found intact.
3.There are several contradictions between the statements of the witnesses, which makes their testimonies unworthy of credit.
Learned Amicus Curiae while drawing the attention of this court to Section 511 of I.P.C. contended that Section 511 I.P.C. which provides for ‘attempt’, contemplates that in every crime, the first aspect is to establish intention to commit the offence, secondly, preparation to commit it, thirdly, attempt to commit it. If at the third stage, the attempt is successful, then the crime is complete. If the attempt fails, the crime is not complete.
Placing reliance on a judgment of Bombay High Court (Aurangabad Bench) rendered in the case of Kailash Vs. State of Maharashtra, A.I.R. BomR 671, learned Amicus Curaie has vehemently argued that the intention or the preparation to commit the offence is not at all present in this case. The victim child who is only about 5 years old is a tutored witness and her statement could not be read to base conviction against the appellant.
Per contra, the learned A.G.A. has vehemently opposed the appeal by contending that the appellant has been caught red handed on the spot along with the victim child whom the appellant had forcibly seized on the cot. Learned A.G.A. has contended that a fresh injury at 6 O’ Clock position was found near her vagina which was bleeding too. Learned A.G.A. further contended that all the witnesses produced by the prosecution are eye witnesses. All of them have seen the appellant when he was attempting to commit rape with the child. Learned A.G.A. has vehemently contended that the statement of the child who has been produced as P.W.4 is wholly reliable. She has identified the appellant during trial before the court. The lady doctor who had examined the child has duly proved the injury report in the court. The genuineness of documentary evidence has been admitted by the defence. The appellant has failed to show any reason as to why the prosecution witnesses have falsely implicated him. On the aforesaid grounds, the learned A.G.A. has contended that the learned trial court has rightly convicted and sentenced the appellant by the impugned judgment and no interference is required by this court.
Considered the rival submissions of the parties.
In order to come to a right conclusion, a birds eye view on the statement of the witnesses is necessary.
P.W.1, Giriraj, who is the father of the victim has stated that on 21.12.2010 at about 4 P.M. he was present in his house. Her daughter Sangeeta aged about 3 years was playing outside the house. The brother-in-law (Sala) of Gopali, Jaipal (appellant) took away her daughter with him on the pretext of giving her peanuts. He took his daughter to her sister’s house. His sister was not present at the house. Hearing the shrieks of Sangeeta, he (P.W.-1) along with witnesses Raja Ram and Bablu had rushed to the house of Pushpa and they saw that Jaipal had pounced upon her daughter on the cot and was attempting to commit rape with her. He (P.W.1) alongwith the other witnesses, immediately apprehended Jaipal on the spot. Blood was coming out from the vagina of his daughter. They took the appellant to the Police Station- Bahjoi and lodged the F.I.R.
P.W.2 is Raja Ram, who is the Uncle of the victim. He has stated that on 21.12.2010 at about 4 P.M., he heard the shrieks of the victim coming from inside the house of Gopali (husband of Pushpa). Pushpa was not present in her house at that time. He along with Giriraj and Bablu rushed to the house of Gopali where they saw the appellant alongwith the victim child who was naked at that time and blood was coming out from her private parts.
P.W.3, is Dr. Sunita Kashyap. She has stated that she had medically examined the victim girl on 22.12.2010 at 10.45 A.M. meaning thereby on the next date of the occurrence, she has stated that she found 1/2 cm lacerated wound at 6 Ó’ Clock position just below the vagina of the victim girl which on touching, started bleeding. She has proved the medical examination report, supplementary x-ray report and pathology report of the victim.
P.W.4 is the victim herself. She has identified the appellant in court. During her statement she has stated that the appellant had caused injury to her at the place from where she urinates. She has also stated that her father and Tau (Uncle) had saved her
P.W.5 is Bablu. He has stated that on 21.12.2010 at about 4 P.M. when he was returning from his shop, he heard the shrieks of a girl coming from the house of Pushpa. He immediately rushed to the house of Pushpa and saw the victim girl in the grip of the appellant who was attempting to commit rape with her. The girl was all naked at that time, but Raja Ram and Giriraj apprehended the appellant and took him to the police station where the F.I.R. was registered against him.
All these witnesses have been cross-examined at length by the learned defence counsel, but nothing has been elicited to cast a shadow of doubt on their statements. Their statements as a whole inspire confidence and are well corroborated not only by their interse statements, but also by the medical reports and other documentary evidence led by the prosecution.
There is no material discrepancy between the medical and ocular evidence. The F.I.R. has been lodged promptly and there is no delay in sending its copy to the Magistrate. The appellant had previous acquaintance with all the witnesses. Moreso, he has been caught red handed on the spot. The victim child has identified him in the court by pointing out her finger towards him and by stating that he is the person who had caused injury to her at the place from where she passes the urine. All the prosecution witnesses are the eye witnesses of the occurrence and there is no reason to disbelieve their testimonies. It is well settled legal principle that minor discrepancies on trivial matters which do not affect the core of prosecution case are irrelevant and should be ignored. Only on the ground of such minor discrepancies, the prosecution evidence can neither be rejected in its entirety nor its balance can be tilted in favour of the appellant.
The Honble Ápex Court in the case of Bhajan Singh @ Harbhajan Singh Ors. Vs. State of Haryana, A.I.R. 2011 S.C.2552, in paragraphs 30 and 31 has laid down the law as under:
“30. It is a settled legal proposition that while appreciating the evidence of a witness, minor discrepancies on trivial matters, which do not affect the core of the prosecution’s case, may not prompt the Court to reject the evidence in its entirety. “Irrelevant details which do not in any way corrode the credibility of a witness cannot be labelled as omissions or contradictions.” Difference in some minor detail, which does not otherwise affect the core of the prosecution case, even if present, would not itself prompt the court to reject the evidence on minor variations and discrepancies. After exercising care and caution and sitting through the evidence to separate truth from untruth, exaggeration and improvements, the court comes to a conclusion as to whether the residuary evidence is sufficient to convict the accused. Thus, an undue importance should not be attached to ommissions, contradictions and discrepancies which do not go to the heart of the matter and shake the basic version of the prosecution witness. As the mental capabilities of a human being cannot be expected to be attuned to absorb all the details, minor discrepancies are bound to occur in the statements of witnesses.
31. In the instant case, we could not find any major contradiction either in the evidence of the witnesses or any conflict in medical or ocular evidence which may tilt the balance in favour of the Appellants. There had been minor improvement, embellishment etc., which remain insignificant and have to be ignored.”
It is also noteworthy that though the appellant has stated that he was falsely implicated in this case due to enmity, but he has not stated anything showing the reason for his enmity with the prosecution witnesses. Learned defence counsel has even failed to give any suggestion to any of the witnesses about the so called enmity. In the absence of any evidence regarding false implication of the appellant and in view of the fact that he has been arrested on the spot along with the victim child about which the prosecution led cogent and convincing evidence, this Court is of the considered view that the prosecution has successfully proved its case against the appellant beyond reasonable doubt. The learned trial court has also found the prosecution story worthy of credence and has accordingly convicted the appellant. Therefore, there appears no ground to interfere in the finding of conviction recorded by the learned trial court.
Insofar as the sentence part of the judgment is concerned, the learned trial court has sentenced the appellant with Rigorous Imprisonment for 10 years with fine of Rs.20,000/-. The appellant has been found guilty under Section 376/511 I.P.C.
“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 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.”
“Section 511 is a general provision dealing with attempts to commit offences not made punishable, by other specific sections. It makes 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. 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 culprit 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; Koppula Venkat Rao Vs. State of Andhra Pradesh, (2004) 3 SCC 602.”
In this case, the victim is a minor girl aged between 3 to 5 years, hence this case comes under Section 376 (2) (i) I.P.C. which provides that if a person commits rape with a minor girl, he shall be punished with rigorous imprisonment for a term which shall not be less than ten years, but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of that persons natural life and shall also be liable to fine. No express provision is provided under Section 376 I.P.C. for committing attempt to rape a minor child, therefore it will be governed in accordance with law as envisaged in Section 511 I.P.C., which provides that the sentence may extend to as the case may be, one half of the longest term of imprisonment provided for that offence.
As the punishment provided for committing rape with a minor girl is imprisonment for life which shall mean the remainder of that persons natural life. The sentence of 10 years imprisonment awarded to the appellant cannot be termed as excessive. The appeal being meritless, is liable to be dismissed and is accordingly dismissed.
The appellant is in jail. He shall remain in jail to serve out the remaining part of sentence awarded to him. A copy of this judgment be sent to jail and another copy be sent to the court concerned alongwith the original record forthwith.
Shri Kuldeep Singh Yadav, Advocate, who has very efficiently assisted this Court in the hearing of the appeal as Amicus Curiae, shall be paid Rs.11,000/- as fee.
Order Date :-14.12.2017-SB