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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,

NAGPUR BENCH, NAGPUR.

CRIMINAL APPEAL NO.528 OF 2004

Shankar s/o Rambhauji Thakre,
Aged about 27 years,
Occupation – Business,
R/o Tukadoji Nagar, Hinganghat,
District – Wardha. …. APPELLANT

VERSUS

State of Maharashtra,
through Police Station Officer,
Police Station Ramtek,
District – Nagpur. …. RESPONDENT

__

Shri J.M. Gandhi, Advocate for the appellant,
Shri A.M. Kadukar, Additional Public Prosecutor for the respondent.
__

CORAM : ROHIT B. DEO, J.

DATE OF RESERVING THE JUDGMENT
: 22-12-2017
DATE OF PRONOUNCING THE JUDGMENT : 04-01-2018

JUDGMENT :

The appellant is aggrieved by the judgment and order

dated 19-6-2004 passed by the learned Ad hoc Assistant Sessions

Judge, Nagpur, Nagpur in Sessions Trial 33/2002, by and under which

the appellant is convicted for offence punishable under Section 363 of

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the Indian Penal Code (“IPC” for short) and is sentenced to suffer

rigorous imprisonment for one year and to payment of fine of Rs.250/-

and is further convicted for offence punishable under Section 376 read

with Section 511 of the IPC and is sentenced to suffer rigorous

imprisonment for for two years and to payment of fine of Rs.250/-.

2. Heard Shri J.M. Gandhi, learned Advocate for the

appellant (hereinafter referred to as the “accused”) and Shri A.M.

Kadukar, learned Additional Public Prosecutor for the respondent.

3. Shri J.M. Gandhi, learned Advocate for the accused

submits that the evidence on record is grossly insufficient to bring

home the charge. The evidence of the child victim is inconsistent with

the medical evidence, is the submission. In the alternative and

arguendo the offence which is made out would be under Section 354

and not under Section 376 read with Section 511 of the IPC, is the

submission.

4. Per contra, Shri A.M. Kadukar, learned Additional Public

Prosecutor submits that the evidence of the child victim is reliable and

cogent and the conviction of the accused under Sections 363 and 376

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read with Section 511 of the IPC is unexceptional.

5. The victim is a child then aged four and half years. The

first information report is lodged by P.W.1 Ushabai Patle, who is the

maternal aunt of the victim. The gist of the oral report dated

21-10-2001 is that the victim is one of the four children of Rekhabai

and Jaisingh Bisen. The informant was residing in the house of her

sister Rekhabai. At 9-00 a.m. on 21-10-2001 the victim informed

Ushabai that she was experiencing pain in the private part. The child

victim informed Ushabai that on 20-10-2001 when she was playing

with other girls infront of the house, the accused, a resident of the

locality, approached the victim and asked the child victim to come to

his house, promising to give sabudana (tapioca). The accused took the

victim to his house, lifted her frock and made her lie down on the cot.

The accused ate cooked sabudana (tapioca), offered none to the victim.

The accused took out his male organ, lay down on the person of the

victim and inserted the male organ in her private part and moved his

body forward and backward. Ushabai informed the father of the victim

and reported the incident to the Ramtek Police Station. Ushabai was

accompanied by child victim and her parents. The oral report was

reduced to writing and an offence punishable under Sections 354, 376

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read with Section 511 of the Indian Penal Code was registered against

the accused.

6. Investigation ensued, spot panchanama was prepared,

clothes of the victim were seized, the victim and the accused were

medically examined and the accused arrested. The culmination of

investigation led to submission of the charge-sheet in the Court of

Judicial Magistrate First Class, Ramtek who committed the case to the

Sessions Court.

7. The learned Sessions Judge framed charge for the offence

punishable under Sections 363 and 376 of the IPC. The accused

abjured guilt and claimed to be tried in accordance with law. The

defence of the accused is of false implication. The motive for false

implication was that the accused did not agree to be a party to theft of

forest teak wood which P.W.1 and her husband were indulging in.

8. Ushabai is examined as P.W.1. She states that the incident

was narrated to her by the child victim. P.W.1 states that the child

victim disclosed that at 4-00 p.m. on 12-10-2001 the accused took the

child victim to his house, made her lie down on a cot, slept on the

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person of the child victim, lifted her frock and asked to remove her

underwear, the accused removed his underwear and taking out the

male organ, slept over the person of child victim and asked her as to

what she was feeling. P.W.1 states that she narrated the incident to

the mother of the child victim who disclosed the incident to the father

of the child victim in the evening. P.W.1 has proved oral report

(Exhibit 19) and printed first information report (Exhibit 20).

P.W.1 was suggested that she is falsely implicating the

accused since her husband was not on good terms with the accused,

which suggestion is denied. The cross-examination, other than

bringing on record minor and insignificant omission which is that the

child victim had disclosed that the accused asked her what she was

feeling, is most cryptic and achieves nothing substantial from the

perspective of the defence.

9. The child victim who is examined as P.W.2 has deposed

that the accused called her to his house saying that he would give her

sabudana (tapioca), she was made to lie on a cot, accused lifted her

frock and removed her underwear and removed his own underwear

and then slept on her person moving forward and backward. The

accused asked the victim as to how she was feeling and thereafter she

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returned home. She experienced burning sensation in the vagina while

urinating and disclosed the incident to P.W.1 and her mother.

In the cross-examination, the victim admits that she did

not disclose to the police that accused had removed her underwear and

that she experienced burning sensation in the vagina, the victim further

admits that the incident was narrated to the police by her father.

10. Raghunath Nagpure (P.W.3), who is examined to prove

the recovery and seizure of the clothes of the accused and one

handkerchief and a piece of bed cover from the accused, did not

support the prosecution. Nothing is elicited in his cross-examination to

assist the prosecution.

11. Bharat Bhojane (P.W.4) is one of the investigating officers,

who reduced to writing the oral report, sent the child victim for

medical examination, recorded the statement of the child victim and

registered the offence. P.W.4 handed over further investigation to

Police Sub-Inspector Pagire.

P.W.4 admits in the cross-examination that in the medical

examination report of the child victim, it was opined that sexual

intercourse may not have occurred.

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12. Gyanba Pagire (P.W.5) is the investigation officer who

took over the investigation from P.W.4. He prepared the spot

panchanama (Exhibit 24) and recorded the statements of P.W.1 Usha

and the father of the child victim. P.W.5 states that he recorded the

confessional statement under Section 27 of the Indian Evidence Act of

the accused and pursuant to the said statement seized the handkerchief

and the portion of the mattress cover on which semen stains were

noticed.

13. The learned Sessions Judge, on appreciation of the entire

evidence, recorded a finding that offence punishable under Section 376

of the IPC is not established. This finding is unexceptionable. The

child victim does not testify as to even slightest penetration in the

vagina by the male organ of the accused. The child victim, as a fact,

does not even speak of the accused having taken out his male organ

muchless that the accused attempted to penetrate her vagina with his

male organ. The medical certificate Exhibit 22-A rules out sexual

intercourse and insertion of penis in the vaginal organ of the child

victim. No injuries were detected on the genitalia of the child victim,

although the absence of injuries is not decisive.

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14. The conviction of the accused under Section 363 of the IPC

is equally justified, in the teeth of the evidence of the child victim

which is amply corroborated by the evidence of P.W.1 to whom the

child victim narrated the incident. I have closely scrutinized the

evidence of the child victim P.W.2 on the touchstone of caution to

satisfy the conscious of the Court that she is not a tutored witness.

Having done so, I do not find any reason to disbelieve the child witness

and her evidence must be accepted as reliable and confidence inspiring.

15. The submission of the learned Advocate for the accused

that the evidence on record, even if accepted as face value, would

make out an offence punishable under Section 354 of the IPC and not

under Section 376 read with Section 511 of the IPC, is, however, well

founded. The evidence on record proves that the accused made

preparation to commit the offence. But then, the dividing line between

preparation and an attempt, albeit blurred and thin at times, is well

recognized. In my opinion, while the accused did outrage the modesty

of the child victim, the evidence on record is not sufficient to prove,

beyond reasonable doubt, that the accused attempted to rape the child

victim.

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16. The distinction between attempt to rape and criminal

assault is considered by the Hon’ble Apex Court in the case of

Tarkeshwar Sahu v. State of Bihar (Now Jharkhand) reported in

(2006) 8 SCC 56 thus :

“14. The distinction between rape and criminal assault has
been aptly described in the English case Rex v. James Lloyd
(1836) 7 CP 317 : 173 ER 141. In this case, while
summing up the charge to the jury, Justice Patterson
observed :

In order to find the prisoner guilty of an assault with
intent to commit a rape, you must be satisfied that the
prisoner, 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.

15. A similar case was decided by Mirza and Broomfield
JJ. of the Bombay High Court in Ahmed Asalt Mirkhan
Criminal Appeal No.161 of 1930, decided on 12-8-1930
reported in Law of Crimes by Ratanlal Dhirajlal’s page 922.
In that case the complainant, a milkmaid, aged 12 or 13
years, who was hawking milk, entered the accused house to
deliver milk. The accused got up from the bed on which he
was lying and chained the door from inside. He then
removed his clothes and the girl’s petticoat, picked her up,
laid her on the bed, and sat on her chest. He put his hand
over her mouth to prevent her crying and placed his private
part against hers. There was no penetration. The girl
struggled and cried and so the accused desisted and she got
up, unchained the door and went out. It was held that the
accused was not guilty of attempt to commit rape but of
indecent assault. The point of distinction between an offence
to commit rape and to commit indecent assault is that there

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should be some action on the part of the accused which
would show that he is just going to have sexual connection
with her.”

17. It would also be apposite to notice the following

observations of the Hon’ble Apex Court in State of Rajasthan vs. Sri

Chand reported in (2015) 11 SCC 229 :

“8. We find that FIR was recorded under Section 376 read
with Section 511 of Indian Penal Code i.e. attempt to rape
and not rape per se. There is no eye witness on record apart
from the prosecutrix herself as PW 3 Biharilal only saw the
accused fleeing away and Saroj, the alleged eye witness, was
never produced before the Court nor her statement was
recorded under Section 161 of Code of Criminal Procedure.
Also, no medical examination of the prosecutrix has been
conducted. The prosecutrix has in her statement stated that
the accused Sri Chand took her inside her house, closed it,
undressed her and undressed himself. Thereafter, she states,
he got on to her and did bad work. On being repeatedly
asked what bad work was done, she kept quiet and bowed her
head, in embarrassment understandably. One must not lose
sight of the fact that the prosecutrix was a minor child at the
time of the incident. The father (PW 6) of the prosecutrix has
categorically stated that bad work meant rape. However, we
find difficulty in veracity of his statement since he was not an
eye witness and was not even told about the incident by the
prosecutrix. He was told details of the incident by Biharilal
(PW 3) who is not an eye witness to the incident. However,
Biharilal was the first person to have learnt of the offence
from the prosecutrix and he has completely corroborated her
version. By this consistent evidence what is proved beyond
reasonable doubt is the offence under Section 354 of Indian
Penal Code. However, the question of attempt to rape is not

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proved beyond reasonable doubt. On the question of attempt
to rape, learned Counsel appearing for the Respondent has
sought to rely on two precedents being Aman Kumar and
Anr. v. State of Haryana MANU/SC/0104/2004 : (2004)
4 SCC 379, and Tarkeshwar Sahu vs. State of Bihar (now
Jharkhand) MANU/SC/4421/2006 : (2006) 8 SCC 560. In
both the cited judgments it is held that for the act to
constitute offence of rape penetration is pre-requisite (this is
the pre 2013 Criminal Amendment position of law) and
therefore for the offence of attempt to rape the accused must
have so advanced in his actions that it would have resulted
into rape had some extraneous factors not intervened. It is
held in Aman Kumar’s case that in order to come to the
conclusion that attempt to rape is committed it should be
shown that the accused was determined to have sexual
connection (penetration) with the prosecutrix at all events
inspite of all resistance. In the present case the accused fled
away on when the PW 3 came to the place of incident due to
shouting of the prosecutrix. This shows he wasn’t determined
to have sexual connection with the prosecutrix despite all
resistance and odds. Also it would be relevant to note that
there are inconsistencies in the statement of the prosecutrix
wherein she states that she had suffered injuries on her breast
but same is not corroborated by the medical evidence. Also,
Saroj, who is an important eye witness, is not produced as a
witness. In this view of the matter, we find it difficult to hold
that offence of attempt to rape is proved to a sufficient
measure.”

18. In the light of the discussion supra, the conviction of the

accused under Section 363 of the IPC is maintained. The accused is

acquitted of offence punishable under Section 376 read with Section

511 of the IPC and is convicted for offence punishable under Section

354 of the IPC and is sentenced to suffer rigorous imprisonment for 1

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year. The bail bond of the accused shall stand cancelled. The accused

be taken into custody to serve the remainder of the sentence.

The appeal is partly allowed and disposed of in the above

terms.

JUDGE

adgokar

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