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Baburao S/O. Govinda Kumoti (In … vs State Of Maharashtra Thr. Pso … on 2 May, 2018

1 apeal217.17

IN THE HIGH COURT OF JUDICATURE AT BOMBAY,

NAGPUR BENCH, NAGPUR.

CRIMINAL APPEAL NO.217 OF 2017

Baburao s/o Govinda Kumoti,
Aged 35 years, Occu. Labour,
R/o Sonsari, Tahsil – Kurkheda,
District – Gadchiroli. …. APPELLANT

VERSUS

State of Maharashtra,
Through PSO, Police Station,
Purada (Gadchiroli). …. RESPONDENT

__

Shri A.C. Jaltare, Counsel for the appellant,
Shri N.R. Patil, Additional Public Prosecutor for the Respondent.
__

CORAM : ROHIT B. DEO, J.

DATED : 2
nd MAY, 2018.

ORAL JUDGMENT :

The appellant-accused is aggrieved by the judgment and

order dated 27-10-2016 rendered by the learned Additional Sessions

Judge, Gadchiroli in Special POCSO Case 12/2015, by and under

which the accused is convicted for offence punishable under Section

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

and Section 4 read with Section 17 of the Protection of Children from

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Sexual Offences Act (“POCSO Act” for short) and is further convicted

for offence punishable under Section 506 Part-II of the IPC and is

sentenced to suffer rigorous imprisonment for seven years and to

payment of fine of Rs.3,000/- for offence punishable under Section 4

read with Section 17 of the POCSO Act and to suffer rigorous

imprisonment for three years and to payment of fine of Rs.2,000/- for

offence punishable under Section 506 Part-II of the IPC. Separate

sentence for offence punishable under Section 376 read with Section

511 of the IPC is not awarded.

2. Heard Shri A.C. Jaltare, learned Counsel for the accused

and Shri N.R. Patil, learned Additional Public Prosecutor for the

respondent.

3. The case of the prosecution is that the victim, aged 17

years on the day of the incident, was a student of standard XI. She was

suffering from persistent head and body ache. The victim underwent

various treatments and medications to no avail. She came to now

about the accused, allegedly a quack, from her maternal aunt. She

accompanied her mother to Sonsari to meet the accused who examined

her and declared that the victim will have to be treated for three days.

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The victim and her mother stayed at the residence of the accused. On

24-1-2015 at 9-00 a.m. or thereabout the accused took the victim inside

the house on the pretext of applying ‘gandh’ (sandalwood paste) and

closed the door. The victim was asked to remove her clothes. The

accused too removed his clothes and demanded sexual favour. The

victim refused to oblige and attempted to raise an alarm. The accused

threatened to kill her with an iron bar. The accused made the victim lie

down on the floor and subjected her to forcible sexual intercourse.

Since the victim did not come out of the room for long period, her

mother with the help of other villagers forcibly opened the door. The

victim narrated to her mother that she was ravished. The victim and

other villagers took the accused to Purada Police Station where the

victim lodged report (Exhibit 6) on the basis of which offence

punishable under Section 376 of the IPC and Section 4 of the POCSO

Act was registered against the accused. Investigation ensued, upon

completion of which charge-sheet was submitted under Section 376 of

the IPC and Section 4 of the POCSO Act in the Court of Sessions Judge,

Gadchiroli. The learned Sessions Judge framed charge (Exhibit 3A) for

offence punishable under Section 376 of the IPC and Section 4 of the

POCSO Act. Additional charge for offence under Section 506 of the IPC

was framed vide Exhibit 37. The accused abjured guilt and claimed to

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be tried and the defence is of total denial and false implication. The

accused is convicted for offence under Section 376 read with Section

511 of the IPC and Section 4 read with Section 17 of the POCSO Act.

4. Shri A.C. Jaltare, learned Counsel submits that the

prosecution failed to prove that the victim was a child within the

meaning of Section 2(1)(d) of the POCSO Act on the day of the

incident. The submission is not without substance. Concededly,

neither the birth certificate nor the school record nor any other

documentary evidence was produced to prove the age of the victim.

The ossification test report Exhibit 31 opines that the age of the victim

is not less than 17 years and not more than 19 years. The ossification

test report is of little assistance to the prosecution in proving that the

victim was less than 18 years as on the day of the incident. The only

other evidence is the statement of the victim (P.W.1), that her date of

birth is 22-12-1997. It is true, as contended by the learned Additional

Public Prosecutor Shri N.R. Patil that no specific suggestion is given to

the victim that her date of birth is not 22-12-1997. However, it cannot

be said that the evidence of the victim on her age has gone

unchallenged. It is elicited in the cross-examination that her elder

sister Mamta is 21 years as on the day of recording of the evidence i.e.

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24-11-2015 and the victim is younger to her by two years, which would

mean that the victim was 19 years old on 24-11-2015 and 18 years or/

more on 24-1-2015 i.e. the day of the incident. The observation of the

learned Sessions Judge that it was the burden on the accused to prove

that the victim was not a child is manifestly erroneous. I have no

hesitation in holding that the prosecution has not proved that the

victim was a child within the meaning of Section 2(1)(d) of the POCSO

Act as on the day of the incident.

5. The victim has deposed that she was subjected to forcible

sexual intercourse. This evidence is not accepted by the learned

Sessions Judge, and I see no reason to take a different view. The claim

of the victim that she was subjected to forcible sexual intercourse is not

corroborated by medical evidence. The victim was examined by P.W.3

Dr. Pravin Kilnake. He did not notice any sign of injury on the genitalia

or any other part of the body. The hymen was intact. P.W.3 did not

notice any evidence of penetrative sexual assault. P.W.3 states that the

victim herself gave the history as attempt to rape. P.W.3 has proved

the medical examination report Exhibit 12. The finding recorded by the

learned Sessions Judge that offence punishable under Section 376 of

the IPC is not proved, is unexceptionable.

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6 apeal217.17

6. P.W.2 Sharda Zode, the mother of the victim, has deposed

that since the victim did not get any relief despite medical treatment

for headache and body ache she was taken to the accused. The elder

sister of P.W.1 conveyed that the accused is a good “pujari”. P.W.2

states that the accused told her that the victim would get relief in three

days. The version of P.W.2 as regards the incident is that on the

pretext that “gandh” (sandalwood paste) would be applied to the body

of the victim, the accused took her inside the house while the P.W.2

remained in the courtyard. Since the accused and victim did not come

out for more than half hour, she raised an alarm, villagers gathered and

with their help the door was opened. The victim and accused were

naked. The victim disclosed that the accused subjected her to forcible

sexual intercourse. P.W.2 denies the suggestion that from the

courtyard the inside of the house is visible. She denies the suggestion

that there was an altercation between P.W.2 and the accused since the

accused refused to treat the victim and therefore, the accused is falsely

implicated.

7. The only other witness who is examined as a witness to the

incident is P.W.5 Someshwar Gota. He has deposed that he returned

home from field between 8-00 to 8.30 a.m. and in view of the alarm

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raised by P.W.2, came out of the house. P.W.5 states that the mother

of the victim told him that the accused had confined her daughter on

the pretext of applying medicines and requested for his help. P.W.2

went to the house of the accused with Chamru Madavi who he met on

the way and saw that the door was closed. P.W.5 called the accused,

but there was no response. He kicked the door open and entered inside

the room and saw the accused and victim lying together naked. By

their side pooja articles including a knife and iron bar were lying, is the

deposition. P.W.5 claims to have abused and slapped the accused. He

claims that the victim disclosed that she was subjected to forcible

sexual intercourse by the accused who threatened her with the iron bar.

P.W.5 then states that he, his brother Pralhad and uncle Chamru

Madavi again went to the house of the accused who was sleeping.

They woke him up and again subjected the accused to beating and they

took the accused to Purada Police Station. P.W.5 denies the suggestion

that there was a dispute between Chamru and the accused over land.

The suggestion that in view of the dispute between the accused and his

uncle Chamru Madavi, he is falsely implicating the accused, is denied

by P.W.5.

8. The evidence of P.W.2 who is the mother of the victim and

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P.W.5 Someshwar Gota, to the extent both state that when the door of

the room was opened the accused and the victim were in naked

condition, is not shaken in the cross-examination. However, the

version of the victim that the accused threatened her with an iron bar

and subjected her to sexual intercourse, is not at all implicitly reliable

and confidence inspiring. P.W.7 Sagar Khare, the Investigating Officer,

admits that the house of the accused is of two rooms in which the

accused used to reside with his wife and three children and mother.

The victim admits that on the day of the incident the wife and children

of the accused were at home. It is elicited in the cross-examination of

the victim that there were other persons at the house of the accused.

The victim further admits that a person talking inside the house of the

accused is audible outside the house. The pivotal question is whether

the accused can be convicted for attempt to rape under Section 376

read with Section 511 of the IPC. It is proved beyond reasonable

doubt, that the accused did outrage the modesty of the victim and

Section 354 of the IPC is clearly attracted. However, the evidence on

record is not sufficient to prove that the accused crossed the line

between preparation and attempt. It is well settled that every offence

has four facets. The first is intention, the second is preparation, the

third is attempt and fourth is the completion of the offence if the

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attempt is successful. The intention of the accused, in the present case,

may be vile. The fact that he asked the victim to undress and that he

too undressed and both were found naked when the door was forcibly

opened is suggestive at the most the preparation. However, it is

difficult to record a finding that the accused did any overt act towards

commission of the offence and thereby crossed the line between

preparation and attempt. It would 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 of his

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sentence.”

9. In the light of the discussion supra, the accused is

acquitted of offence punishable under Section 376 read with Section

511 of the IPC and Section 4 read with Section 17 of the POCSO Act.

However, the accused is convicted for offence punishable under Section

354 of the IPC and is sentenced to suffer rigorous imprisonment for

three years.

10. The accused is in jail since 24-1-2015. He be released

from custody unless the custody is required in any other case.

11. The appeal is partly allowed and disposed of.

JUDGE
adgokar

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