NON­REPORTABLE

IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 2127 OF 2009

CHAITU LAL …APPELLANT(S)

VERSUS

STATE OF UTTARAKHAND …RESPONDENT(S)

JUDGMENT

N.V. RAMANA, J.

1. The present criminal appeal arises out of the impugned order

dated 27.03.2009 passed by the High Court of Uttrakhand at

Nainital in Criminal Appeal no.144 of 2006 whereby the High

Court dismissed the appeal of the appellant and confirmed the

order dated 08.05.1992, passed by the Sessions Judge, Chamoli

in S.T. No. 36 of 1991 convicting the accused for offences under
Signature Not Verified

Section 354 and Section 511 read with Section 376 IPC. The
Digitally signed by
GEETA AHUJA
Date: 2019.11.20
16:18:53 IST
Reason:

accused was sentenced to undergo rigorous imprisonment of one

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year for commission of offence under Section 354 IPC and he

was further sentenced to undergo two years Rigorous

Imprisonment and pay a fine of Rs. 200/­ for commission of

offence under Section 511 read with Section 376 IPC.

2. The brief facts according to the prosecution are that the

complainant­victim is the aunt of the accused­appellant. The

accused­appellant had earlier also committed indecent behavior

with the complainant­victim, which is the subject matter of

another criminal proceeding. On 12.01.1991, the accused­

appellant after seeing the complainant­victim alone took

advantage of the same and attempted to molest her. On the

same date at around 10:00 P.M while the complainant­victim

along with her daughters was sleeping in her house, the

accused­appellant entered into the house of the victim in a

drunken state. While the complainant­victim was getting up

from her bed, the accused­appellant pounced upon her making

her fall into the bed. The accused­appellant thereafter lifted her

petticoat, sat upon her and attempted to commit rape. Upon

hearing the noise, the daughter of the complainant­victim

(P.W.2) got up and beseeched the accused­appellant to let go of

her mother. Upon hearing the commotion, certain other villagers
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interfered, accused­appellant ran away after threatening the

complainant­victim. Thereafter, the complainant­victim narrated

the entire incident to her husband, pursuant to which they

approached the Court of the CJM to file the complaint on

16.01.1991.

3. The trial court, vide order dated 08.05.1992, convicted the

accused­appellant for offence under Section 354, pursuant to

which he was directed to undergo one­year rigorous

imprisonment. He was further convicted for offence under

Section 511 read with Section 376 IPC and was directed to

undergo rigorous imprisonment for two years and to pay a fine

of Rs. 200/­. Aggrieved, the accused­appellant approached the

High Court in Criminal Appeal No. 144 of 2006. The High Court

vide impugned judgment dated 27.03.2009 dismissed the appeal

and upheld the order of conviction passed by the trial court.

Aggrieved by the aforesaid dismissal, the accused­appellant

approached this Court by way of present appeal.

4. The counsel on behalf of the accused­appellant submitted that

accused­appellant has been framed by the complainant­victim

pursuant to certain existing enmity. Further, it was pleaded that

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the FIR was registered with a delay of 3 days and the

prosecution has failed to explain the same. Lastly, the evidence

of the witnesses does not suggest any liability for offence under

Section 511 read with Section 376 of IPC.

5. On the contrary, the counsel for the State has supported the

concurrent judgments of conviction passed against the accused­

appellant.

6. Heard counsel appearing for both parties. In the present case,

the statement rendered by the complainant­victim (P.W.1) is

corroborated by the daughter of the complainant­victim (P.W. 2)

who is an eye­witness to the said incident, husband of the

complainant­victim (P.W.3) and independent witness Sohan Lal

(P.W.4). The courts below have observed that although these

witnesses were subjected to lengthy cross­examination, they

have remained persistent in their statements and there was no

material contradiction so as to raise any doubt regarding their

credibility.

7. The statement of the complainant­victim reveals that the

accused­appellant had attempted to molest her on numerous

occasions. In order to attract culpability under Section 354 IPC,

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the prosecution has to prove that the accused applied criminal

force on the victim with the intention of outraging her modesty.

In the case at hand, prior to the commission of the offence, the

accused­appellant had attempted to molest the complainant­

victim on the same day itself. Later that night, the accused­

appellant forcibly entered the house of the complainant­victim in

a drunken state, being aware about the absence of her husband.

Thereafter, the accused­appellant, exerting criminal force,

pounced upon the complainant­victim and forcibly lifted her

petticoat. Although, the complainant­victim pleaded the accused

to stop considering the fact that she was his aunt; he responded

stating, it does not matter to him. The aforesaid action of the

accused­appellant is sufficient to prove his culpability.

8. The counsel of the accused­appellant has pleaded that the

actions of the accused­appellant do not constitute the offence

under Section 511 read with Section 376, as the accused­

appellant had not committed any overt act such as; any attempt

to undress himself in order to commit the alleged act. This Court

in the case of SectionAman Kumar and Anr. v. State of Haryana,

(2004) 4 SCC 379 held that­

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“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…”

9. The attempt to commit an offence begins when the accused

commences to do an act with the necessary intention. In the

present case, the accused­appellant pounced upon the

complainant­victim, sat upon her and lifted her petticoat while

the complainant­victim protested against his advancements and

wept. The evidence of the daughter (P.W.2) also reveals that she

pleaded with the accused­appellant to spare her mother. In the

meantime, hearing such commotion, other villagers intervened

and threatened the accused of dire consequences pursuant to

which the accused ran away from the scene of occurrence. Here,

the evidence of independent witness Sohan Lal (P.W.4) assumes

significance in corroborating the events on the date of

occurrence, wherein he has averred that at around 10:00 p.m,

he heard noise coming from the house of complainant­victim,

pursuant to which he saw the accused­appellant’s wife holding

his neck coming out from the house of the complainant­victim.

P.W.­4 had also overheard the complainant­victim complaining

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that the accused­appellant was quarreling with her.

10. Herein, although the complainant­victim and her daughter were

pleading with the accused to let the complainant­victim go, the

accused­appellant did not show any reluctance that he was

going to stop from committing the aforesaid offence. Therefore,

had there been no intervention, the accused­appellant would

have succeeded in executing his criminal design. The conduct of

the accused in the present case is indicative of his definite

intention to commit the said offence.

11. The counsel on behalf of the accused­appellant placed reliance

upon the case of SectionTarkeshwar Sahu v. State of Bihar (Now

Jharkhand), (2006) 8 SCC 560 to claim the benefit of acquittal

for offence under Section 511 read with Section 376 of IPC. But,

on careful perusal of the aforesaid decision in the backdrop of

facts and circumstances of the present case, both the cases are

distinguishable as in the case cited above, it is clearly noted that

the accused failed at the stage of preparation of commission of

the offence itself. Whereas, in the present case before us the

distinguishing fact is the action of the accused­appellant in

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forcibly entering the house of the complainant­victim in a

drunken state and using criminal force to lift her petticoat

despite her repeated resistance.

12. Further, the plea of the accused­appellant regarding the delay in

registering the FIR has been duly considered by both the courts

below. It has been duly noted that the husband of the

complainant­victim (P.W.3) was staying in Nandprayag while the

incident occurred in the remote village of Salna. Subsequent to

the incident, the complainant­victim first travelled to meet her

husband (P.W.3). After narrating the said incident to him, she

further travelled to register a complaint before Chief Judicial

Magistrate, Chamoli, which is again far off from the place of

occurrence. Considering the aforesaid factual scenario, the delay

in registering the FIR does not affect the case of the prosecution

adversely.

13. Considering the facts and circumstances, the guilt of the

accused­appellant has been established beyond doubt. In our

opinion, therefore, the courts below have rightly convicted and

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sentenced the accused. In view of the aforesaid observations, the

appeal lacks merit and is accordingly dismissed.

……………………………………….J.

(N.V. RAMANA)

……………………………………….J.

(AJAY RASTOGI)
New Delhi;

November 20, 2019

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