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Sheikh Hafeez @ Bhurya @ Bhuru S/O. … vs The State Of Maharashtra Thr. … on 4 April, 2018

1 apeal71.17

IN THE HIGH COURT OF JUDICATURE AT BOMBAY,

NAGPUR BENCH, NAGPUR.

CRIMINAL APPEAL NO.71 OF 2017

Sheikh Hafeez @ Bhurya @ Bhuru
s/o Sheikh Hasan, Aged about 38 years,
Occupation – Labourer,
R/o Satranjipura, Near Maldhakka
No.1, P.S. Lakadganj, Nagpur. …. APPELLANT

VERSUS

The State of Maharashtra,
through Senior Police Station Inspector,
Police Station Lakadganj, Nagpur. …. RESPONDENT

__

Shri Mir Nagman Ali, Counsel, and Ms. Radhika Bajaj, Counsel
(appointed) for the appellant.
Shri N.B. Jawade, Additional Public Prosecutor for the respondent.
__

CORAM : ROHIT B. DEO, J.

DATED : 4
APRIL, 2018.

th

ORAL JUDGMENT :

The challenge is to the judgment and order dated

20-5-2016 rendered by the learned Special Judge-1, Nagpur- in Special

Child Protection Case 173/2014, by and under which the appellant-

accused is convicted for offence punishable under Section 6 read with

Section 18 and Section 5(m) of the Protection of Children from Sexual

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Offences Act (“POCSO Act” for short) and is sentenced to suffer

rigorous imprisonment for seven years and to payment of fine of

Rs.10,000/- and is further convicted for offence punishable under

Section 376(2)(i) read with 511 of the Indian Penal Code (“IPC” for

short) for which no separate sentence is imposed.

2. Heard Ms. Radhika Bajaj, learned Counsel appointed to

represent the accused, since Shri Mir Nagman Ali was discharged by

order dated 19-3-2018. However, Shri Mir Nagman Ali requested that

he be permitted to address the Court, which request is accepted. In

these circumstances, both Ms. Radhika Bajaj and Shri Mir Nagman Ali

have advanced similar submissions on behalf of the accused. Heard

Shri N.B. Jawade, learned Additional Public Prosecutor for the

respondent.

3. The common plank in the submissions of Ms. Radhika

Bajaj and Shri Mir Nagman Ali, is that the victim is not proved to be a

child within the meaning of Section 2(d) of the POCSO Act, the

evidence on record is not confidence inspiring and in the alternate, and

arguendo, offence punishable under Section 6 read with Section 18 and

Section 5(m) of the POCSO Act and Section 376(2)(i) read with

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Section 511 of the IPC is not made out and at the most the accused can

be convicted for offence punishable under Section 354-A(i) of the IPC

and Sections 7 and 8 of the POCSO Act. Per contra, Shri N.B. Jawade,

learned Additional Public Prosecutor submits that the judgment and

order is unexceptionable. The evidence on record clinchingly

establishes that the accused crossed the line between preparation and

attempt and is rightly convicted for attempt to rape and attempt to

commit offence of aggravated penetrative sexual assault.

4. The genesis of the prosecution lies in report dated

03-9-2014 (Exhibit 35) lodged by P.W.2 Ruksana Begum at the

Lakadganj Police Station alleging that accused Sheikh Hafeez @ Bhurya

@ Bhuru sexually assaulted her daughter aged eleven years. The gist

of the report is thus :

P.W.2 and her husband have two sons and a daughter

(victim) who is studying in the 5 th Standard in Hindustan High School

at Wardhaman Nagar. The accused is a tenant of Lalita Chikkamwar.

The school hours of the victim are 7-00 a.m. to 12-00 noon. 03-9-2014

was a holiday for the victim’s school. At 3.30 or thereabout she went

out to play. P.W.2 had planned to go out with the victim at 4-00 p.m.

or thereabout and she called the victim who did not respond. Since the

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victim used to go to the house of the accused to play with his sister-in-

law Samina, P.W.2 went to the house of the accused. The door of the

house of the accused was open. P.W.2 pushed aside the curtain to the

door and went inside the house of the accused. She saw that the victim

was lying on a cot and the accused, with trouser and knicker lowered,

was lying on the person of the victim. P.W.2 raised an alarm, the

accused responded by referring to P.W.2 as “mad woman”. P.W.2 took

the victim home, her husband was not at home and he was informed

about the incident telephonically. After her husband returned home,

P.W.2, her husband and the victim went to the Lakadganj Police

Station and lodged report.

5. On the basis of the said report and printed first

information report (Exhibit 36) offence punishable under Section 354-

A(i) of the IPC was registered against the accused. Investigation

ensued, upon completion of which charge-sheet was submitted in the

Court of Special Judge. The learned Special Judge framed charge

(Exhibit 5) under Section 376(2)(i) of the IPC and Section 5(m)

punishable under Section 6 of the POCSO Act. The accused abjured

guilt and claimed to be tried. The defence is of false implication. The

defence is that the accused is falsely implicated at the instance of his

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landlady who wanted the accused to vacate the tenanted premises.

6. P.W.1 Kailash Chikkamwar is examined to prove spot

panchnama (Exhibit 33). The cross-examination of P.W.1, who is the

son of the landlady of the accused is directed at the bringing on record

the foundation for the defence of false implication. However, the core

or substratum of the testimony of P.W.1 is not shaken.

7. P.W.2 Ruksana Begum is the informant and the mother of

the victim. She has deposed that the victim is born on 19-7-2004

which would mean that the victim was aged 10 years 1 month 14 days

as on the date of the incident. In the cross-examination, there is

absolutely no challenge to the date of birth of the victim, with the

result, that the submission of the learned Counsel for the accused that

the victim is not proved to be a child within the meaning of Section

2(d) of the POCSO Act, must be rejected. P.W.2 has deposed that the

school of the victim was closed on 03-9-2014. The victim attended the

tuition classes, returned home and had her meals and then went to the

house of the accused to play with Sabina, the 12 years old sister-in-law

of the accused. P.W.2 went to the house of the accused at 4-00 p.m. to

fetch the victim. She pushed aside the curtain to the door and entered

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the house. The pant and knicker of the victim and the pant and knicker

of the accused were partially removed. The victim and the accused

were alone and the volume of the T.V. was loud. The accused was

sleeping on the person of the accused and on seeing P.W.2 he ran

away. P.W.2 shouted and the accused uttered words “ixyh vkSjr gS”

(the woman is mad). P.W.2 brought the victim to her house, went to

the police station at 8-00 p.m. with the victim, her husband thereafter

came to the police station. P.W.2 lodged the report.

Major part of the cross-examination is directed at bringing

on record that the house of the accused is situated in an extremely

crowded locality, and on the road. An endeavour is made to bring on

record that the accused is falsely implicated at the instance of his

landlady. Few omissions are brought on record, which are not really

significant and do not touch the core of the testimony.

8. However, it may be noted that while in the first

information report it is specifically stated that the accused was engaged

in obscene act with the victim, in the evidence the only statement is

that the accused slept on the person of the victim. At this stage, the

evidence of the victim may be considered. The victim states that when

she went to the house of Sabina at 3-00 p.m., the accused was alone in

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the house. The accused allowed to sit on the cot, removed her clothes

and removed his clothes. The accused inserted his male organ in the

private part of the victim and at that point in time her mother came to

the house of the accused to call her. She was taken home by her

mother and the victim disclosed the incident to her grandmother and

father and then the family went to the police station to lodge the

report.

9. P.W.6 Dr. Rajesh Shamrao Chintanwar medically

examined the victim on 04-09-2014. He did not notice any external

injury. Hymen was intact. No sign of sexual intercourse was noticed.

P.W.6 proves report Exhibit 37.

10. P.W.4 Abdul Kalam is the father of the victim who has

deposed that at 7-15 p.m. he received a call from his wife P.W.2 who

disclosed the incident. He came home and then family went to the

police station where his wife P.W.2 lodged the report is the deposition.

11. The evidence of P.W.4 is inconsistent with the evidence of

his wife P.W.2 to the extent that P.W.2 has deposed that she and the

victim went to the police station and her husband P.W.4 came to the

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police station directly.

12. It would be apposite to refer to the observations of the

Hon’ble Apex Court in Madan Lal ..vs.. State of Jammu and Kashmir,

AIR 1998 SC 386 which read thus :

“11. In this context it is appropriate to notice an argument
advanced by Mr. Jain, learned senior counsel appearing for
the appellant to the effect that in the absence of any
penetration into the vagina the offence of rape cannot be said
to have been established and it will not be possible to hold
that the accused had attempted to commit rape on the
prosecutrix, and therefore, it would at the most amount to
an offence of indecent assault under
Section 354 I.P.C. We
are unable to accept this contention. Since, if the evidence of
the prosecutrix is to be believed, and we do believe the same,
the offence committed cannot but he held to be one of
attempt to commit rape. The prosecutrix’s evidence clearly
establishes the fact that the accused spread the blanket on
the floor and forcibly laid her on the blanket and thereupon
the said accused forcibly opened the cord of the salver of the
prosecutrix and kept it apart and then forcibly ride upon her
and on that point of time caught hold of her head with one
hand and closed her mouth with the other and had kept his
penis qua her uterus and was doing some thing and then the
accused was trying to penetrate his penis but it did not
penetrate and had gripped his penis with his hand and was
rubbing it against her uterus which he was doing by
jumping.

12. The difference between preparation and an attempt to
commit an offence consists chiefly in the greater degree of
determination and what is necessary to prove for an offence
of an attempt to commit rape has been committed is that the
accused has gone beyond the stage of preparation. If an
accused strips a girl naked and then making her flat on the

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ground undresses himself and then forcibly rubs his erected
penis on the private part of the girl but fails to penetrate the
same into vagina and on such rubbing ejaculates himself
then it is difficult for us to hold that it was a case of merely
assault under
Section 354 I.P.C. and not an attempt to
commit rape under
Section 376 read with 511 I.P.C. In the
facts and circumstances of the present case the offence of an
attempt to commit rape by accused has been clearly
established and the High Court rightly convicted him under
Section 376 read with 511 I.P.C”.

It would also be apposite to refer to the following

observations of the Apex Court in Koppulla Venkat Rao ..vs.. State of

Andhra Pradesh, AIR 2004 SC 1874 which read thus :

“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
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

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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 to 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
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 more preparation,
but falling short of actual consummation, and, possessing,
except for failure to consummate, all the elements of the

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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 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.

13. When the evidence of the prosecutrix is considered in
the proper perspective, it is clear that the commission of
actual rape has not been established. However, the evidence
is sufficient to prove that attempt to commit rape was made.
That being the position, conviction is altered from
Section
376 IPC to
Section 376/511 IPC. Custodial sentence of 3
and 1/2 years would meet the ends of justice. The accused
who is on bail shall surrender to custody to serve remainder

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of his sentence.”

13. The burning issue is whether the accused crossed the line

between preparation and attempt, whether after making preparation to

commit the offence, the accused did any overt act or took any step

towards the commission of the offence. In my opinion, considering the

evidence on record, it would be extremely difficult to record a finding

with any degree of certainty that the accused attempted to commit rape

or to commit offence under Section 5(m) punishable under Section 6

read with Section 18 of the POCSO Act. The evidence of the child

victim and her mother P.W.2 is too inconsistent to be reconciled in so

far as the overt acts attributed to the accused. The child victim has

deposed that the accused penetrated his male organ in her private part.

This evidence must necessarily be discarded. Not only is the evidence

inconsistent with the medical evidence, the mother of the child victim

who claims to be a witness to the incident has only deposed that the

accused was lying on the person of the child victim and the clothes of

the accused and the victim were half removed. The victim, on the

other hand, states that she was made to sit on the cot and then the

accused inserted his male organ in her private part. It is not the version

of the victim that the accused was lying on her person. In view of the

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inconsistent versions of the victim and her mother P.W.2, I am not

persuaded to concur with the learned Special Judge who holds that the

prosecution has proved an attempt to rape and an attempt to commit

the offence of aggravated sexual penetration.

14. However, on a holistic reappreciation of evidence on

record, offence punishable under Section 10 read with Section 9(m) of

the POCSO Act and Section 354-A(i) of the IPC is clearly established.

This Court is obligated to separate the chaff from the grain. The

evidence need not be discarded in entirety despite the apparent

inconsistency between the evidence of P.W.2 and the child victim. The

evidence to the extent, that the modesty of the child victim was

outraged and she was sexually assaulted within the meaning of Section

7 of the POCSO Act, is believable and acceptable. Since the victim was

less than 12 years old, the offence would be of aggravated sexual

assault as defined in Section 9(m) and punishable under Section 10 of

the POCSO Act which attracts a minimum sentence of five years.

15. The judgment and order impugned convicting the accused

for offence under Section 5(m) punishable under Section 6 read with

Section 18 of the POCSO Act and Section 376(2)(i) read with Section

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511 of the IPC is set aside and instead the accused is convicted for

offence under Section 354-A(i) of the IPC and Section 9(m) punishable

under Section 10 of the POCSO Act and is sentenced to suffer rigorous

imprisonment for five years. The sentence of fine is maintained.

16. The fees of the learned appointed Counsel are quantified

at Rs.5,000/.

17. The appeal is partly allowed in the afore stated terms.

JUDGE
adgokar

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