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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
CRIMINAL APPEAL 211 OF 2017
Ravi Anil Mandavkar,
Aged 22 years, Occ. Labour,
R/o. Wagholi, Tah. Hinganghat,
District Wardha …APPELLANT
…V E R S U S…
The State of Maharashtra,
Through Police Station Officer
Police Station Hinganghat,
District Wardha …RESPONDENT
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Smt. Priya S. Zoting (Appointed) counsel for the appellant.
Shri. N.B. Jawade, Addl. Public Prosecutor for respondent.
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CORAM: ROHIT B. DEO, J.
DATE: 20 th
March, 2018.
ORAL JUDGMENT
The appellant – accused who faced trial for offence
punishable under section 376, 376 read with section 511 of Indian
Penal Code (“IPC” for short), under section 4 and under section 4
read with section 18 of Protection of Children from Sexual Offences
Act (“POCSO” Act), is convicted under section 18 of POCSO Act and
is sentenced to suffer rigorous imprisonment for seven years and to
payment of fine of Rs. 10,000/-. It is this judgment and order dated
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9.3.2017 rendered by the Special Judge, Wardha in Special (Child)
Case 46 of 2016 (Old Sessions Case 95 of 2013) which is impugned
herein.
2 Heard Smt. Priya S. Zoting, the learned counsel for the
accused and Shri N.B. Jawade, the learned Additional Public
Prosecutor for the respondent / State.
Smt. Priya Zoting, the learned counsel for the accused would
submit that the prosecution has failed to prove beyond reasonable
doubt, that the accused attempted to rape the victim. Arguendo, and
in the alternate, Smt. Zoting would submit that the offence proved, if
at all, will be under section 354 of the IPC and under section 7 read
with section 8 of the POCSO Act. The submission, is that even if the
evidence of the victim is taken at face value, the offence will be of
outraging modesty and sexual assault and not of an attempt to rape.
3 The date of birth of the victim as is evident from birth
certificate is 21.11.1999. In fairness to Smt. Zoting it is not disputed
that the victim was a child within the meaning of section 2(d) of the
POCSO Act as on the date of the incident.
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4 The oral report dated 24.1.2013 is lodged by the victim at
Police Station Hinganghat (Exh. 18). The gist of the report is that the
accused, a neighbour of the victim forced the victim to come to his
house to keep the dried clothes in the varandah. The victim was
reluctant and went to the house of the accused since accused
threatened to slap her. She was taken in the inner room of the house,
the door was locked from inside, the victim attempted to shout and the
accused gagged her mouth, undressed and then removed the clothes of
the victim, kissed the victim and made her lay on a plastic carpet. The
accused slept over her person and pressed his penis on the private part
of the victim. The victim was experiencing pain. The accused
ejaculated and the discharge fell on the private part of the victim. The
victim used a piece of pink saree to wipe her private part and so did the
accused. The victim disclosed the incident to her mother when she
came home from work at 6.30 p.m.. The mother of the victim tried to
search for the accused, the accused was not at home. The father of the
victim returned at 8.00 p.m., to whom the mother of the victim
disclosed the incident. The parents of the victim confronted the
accused, however, the accused and his father threatened them.
5 On the basis of the said oral report Exh. 18 and the printed
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First Information Report Exh. 19, offence punishable under section 342,
354, 376, 511 and 506 of IPC was registered against the accused.
Investigation ensued, upon completion of which charge sheet was
submitted in the Court of Judicial Magistrate First class, Hinganghat,
who committed the proceeding to the Sessions Court. The learned
Sessions Judge framed charge (Exh. 7) for offence punishable under
section 376, 376 read with section 511, 506 of IPC and under section 4
and under section 4 read with section 18 of the POCSO Act. The
accused abjured guilt and claimed to be tried in accordance with law.
The response to question 71 in the examination under section 313 of
the Code of Criminal Procedure, the accused states that he is falsely
implicated due to village rivalry.
6 PW 1 – victim has deposed that the incident took place on
23.1.2013. She left home at 10.00 a.m. to attend the school. However,
since she was suffering from stomach ache, she returned at home at
11.30 a.m.. She accompanied her mother to the field of one Gaju
Mendule and returned alone at 2.00 p.m.. The mother of the victim was
present in the house. The victim took rest, woke up at 4.00 p.m. and
then after doing the household chores sat on the water tank in the court
yard, she then went to her friend’s house and returned at 6.00 p.m. She
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was called by the accused to remove the clothes which were hanging on
a rope and to keep them in the varandah. The victim was reluctant, the
accused threatened to slap her and the victim went to his house,
removed the clothes and kept them in the varandah. The accused came
from behind, caught her hand and took her inside the house. The door
was locked from inside. The accused undressed the victim and made
her lay on a plastic carpet. The accused kissed the victim, when she
attempted to shout, her mouth was gagged with hand. The accused
removed underwear of the victim and removed his own underwear and
then touched his penis on the vagina of the victim. The victim
experienced pain, the accused ejaculated. The accused wiped private
part with a piece of pink colour cloth. The accused also wiped the
private part of the victim with the same cloth. The victim wore her
clothes and returned her house. After some time, the accused again
called the victim who refused to oblige. The victim states that she saw
the accused putting the pink colour cloth in the dustbin. The victim
narrated the incident to her mother who confronted the mother of the
accused. When the father of the victim returned at 8.00 p.m., the
mother of the victim narrated the incident to him. The parents of the
victim then went to the house of the victim to confront the accused.
However, the father of the accused threatened the father of the victim
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and therefore, the report was not lodged on the same day. The report
was lodged on 24.1.2013.
In order to cross-examine, the entire evidence has gone virtually
unchallenged. No attempt is made to shake the credibility of testimony
of PW 1 except for suggesting to her that the incident did not take place
and that she is deposing at the instance of her mother. Not a single
omission much less the significant omission partaking the nature of
contradiction is brought on record.
7 The evidence of PW 1 is amply corroborated by the
evidence of PW 2, the mother of the victim to whom the victim
disclosed the incident. In response to a suggestion, PW 2 states that she
did not make any inquiry with her mother in law (the grandmother
of the victim) since her mother in law is not in a position to understand
anything. It is suggested to PW 2 that the accused is falsely implicated
since the accused charged the victim of committing theft of money. This
suggestion is denied. Pertinently, such a suggestion is not given to PW
1. Nothing is brought on record in the cross-examination to shake the
credibility of testimony of PW 2.
8 PW 5 Pradip Ubhale registered the First Information
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Report Exh. 19. In the examination in chief, PW 5 categorically states
that he was the day officer on duty from 14.00 hrs to 20.00 hrs on
24.1.2013 and during the said period the victim and her mother came
to the police station to lodge report. PW 5 admits that he registered the
offence in question on 24.1.2013 at 20.30 hrs. (in the English
translation of the deposition the date is incorrectly mentioned as
23.1.2013).
9 PW 6 Purushottam Bawankar, who was then Police Sub
Inspector at Police Station Hinganghat is the Investigating Officer. He
has proved the spot panchanama Exh. 29 and the seizure of the piece of
saree from the rubbish dump (Exh. 63) and has deposed as to the steps
taken during the course of investigation. He accepts that he did not
record the statement of the grandmother of the victim. He volunteers
that she was 80 years old and bed ridden. The minor omission brought
on record in the evidence of PW 2 is not put to PW 6 who recorded the
161 statement of PW 2, and the omission, insignificant as the omission,
is not proved.
10 The learned Sessions Judge has rightly recorded a finding
that thee is no evidence of even the slightest penetration. This finding
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is unexceptionable. The evidence of the child victim is however, that
the accused pressed his penis on her vagina causing pain and that the
accused ejaculated. The piece of cloth which was seized from rubbish
dump and sent for chemical analysis is not detected with semen stains.
However, in the teeth of the implicitly reliable testimony of the child
victim that the accused ejaculated, the fact that no semen stains was
detected in the piece of cloth thrown in the rubbish dump does not
dilute the probative value of the ocular evidence.
11 The submission of Smt. Zoting that the offence made out
would be of assault under section 354 of the IPC or under section 7 of
the POCSO Act is unacceptable. The evidence of the victim is that the
accused slept over her person after undressing her and removing his
clothes and pressed his male organ on her vagina and then he
ejaculated. In the English translation of the vernacular deposition it is
recorded that the accused touched the private part of PW 1 and his
private part. This recording is obviously incorrect and the vernacular
version reveals that what is stated by the victim is that the accused
pressed his male organ on her private part. It is clear that the
accused went beyond the stage of preparation. The offence of attempt
to rape is established beyond reasonable doubt. The learned APP
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Shri N.B. Jawade has invited my attention to the following
observations of the Apex Court in Madan Lal ..vs..State of Jammu
and Kashmir, AIR 1998 SC 386:
“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 be 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
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::: Uploaded on – 21/03/2018 22/03/2018 02:20:50 :::
10assault 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:
“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
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::: Uploaded on – 21/03/2018 22/03/2018 02:20:50 :::
11something 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 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::: Uploaded on – 21/03/2018 22/03/2018 02:20:50 :::
12legislative 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 Sections 376/511 IPC. Custodial sentence of 3
and ‘/2 years would meet the ends of justice. The accused
who is on bail shall surrender to custody to serve remainder
of his sentence”.
12 On a holistic appreciation of the evidence on record, the
conscious of this Court is satisfied that no case is made out to
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interfere with the judgment and order impugned.
The appeal is sans merit and is rejected.
Fees of the appointed counsel are quantified at Rs. 5000/-.
JUDGE
RSB
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