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Sitaram Sambhaji Mane vs The State Of Maharashtra on 2 April, 2019

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD

CRIMINAL APPEAL NO.147 OF 2018

Sitaram Sambhaji Mane,
Age – 65 years, Occu. Agri,
R/o. Goykarwada (Khandala),
Tq. Karjat, Dist. Ahmednagar
…APPELLANT
(Ori.Accused)

VERSUS

The State of Maharashtra
…RESPONDENT

Mr.Amol K. Gawali, Advocate for the appellant
Mr.P.N. Kutti, APP for the respondent/State.

CORAM : S.M.GAVHANE,J.
RESERVED ON : 26/03/2019
PRONOUNCED ON : 02/04/2019

J U D G M E N T :-

. Heard.

2. Admit, since the appellant/accused is in

jail, appeal is taken up for final hearing.

3. The challenge in this appeal is to the

judgment and order dated 27/01/2017 passed by the

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Additional Sessions Judge, Ahmednagar in Sessions

Case No.219 of 2015, whereby convicting the

appellant/accused for the offence punishable under

Section 376 read with Section 511 of the Indian Penal

Code (For short IPC) and sentencing him to suffer

Rigorous Imprisonment for 5 (five) years with a fine

of Rs.5,000/- (Rs. Five thousand only) and in default

of payment of fine, to suffer simple imprisonment for

1 (one) year. Appellant is given set off as per

Section 428 of the Code of Criminal Procedure, for

the period undergone by him from 08/06/2015.

Appellant has deposited fine of Rs.5,000/- on

27/01/2017.

4. Facts in brief, are as under:-

(a) The complainant Sau.Vandana Satish Mane

(PW-1) was residing at Goykarwada (Khandala), Tq.

Karjat, Dist. Ahmednagar alongwith her husband,

parents-in-law and children including her daughter

the prosecutrix at the time of incident and the

appellant/accused is also resident of the same

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village. On 03/01/2014 the complainant lodged the

report Exh.24 with Karjat police Station contending

that date of birth of her daughter the prosecutrix is

10/05/1992 and she is mentally retarded since her

birth. The complainant’s husband is working in

Shrigonda Sugar Factory and he used to return home on

weekly holiday. Her son Dinesh was studying in

Jamkhed ITI. Her agricultural land known as ‘Kohini’

is situated in the limits of village Goykarwada.

Adjacent to her agricultural land there is a

agricultural land of appellant. At the relevant time

there were crops of Jawar and Onion in her land.

(b) It was further alleged that, on 03/01/2014

at about 11.00 a.m. the complainant alongwith her

mother-in-law Vimal and the prosecutrix had been to

their agricultural land. When they were plucking the

grass in the Onion crop, at about 5.00 to 5.30 p.m.

they heard the voice of birds from the field of Jawar

crop and the complainant asked the prosecutrix to go

to that field and to flee the birds. Thereupon, the

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prosecutrix had gone there. After about 10-15 minutes

as the complainant was feeling thirsty, she proceeded

towards well for brining water. At that time, she

heard shouting of the prosecutrix as “Aayo, Aayo”

from the direction of Jujube tree. She then noticed

that the prosecutrix was lying on ground and the

appellant was lying on her body. Appellant saw her

and started running towards his agricultural land by

holding skirt of dhoti. The complainant abused him

and lifted one stone and hit the same on his back.

Appellant ran away from there. The complainant

noticed that Salwar and knicker were not on the

person of prosecutrix. She then worn clothes to

prosecutrix. By that time her mother-in-law Vimal

reached there. So also, after hearing their shouts

her cousin mother-in-law Kisnabai Maruti Mane and

Vithabai Popat Parkhe came there. The complainant

narrated incident to them. Thereafter, she returned

to home alongwith prosecutrix. She contacted her

husband on phone and informed him the incident. She

also informed incident to her cousin brothers-in-law

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Santosh Mane, Maruti Mane and her son. Then alongwith

the prosecutrix and her son she went to police

Station and lodged complaint as above.

(c) On the basis of aforesaid complaint crime

No.I-05/2014, under Section 376(2)(1) of the IPC was

registered against the appellant. The prosecutrix was

referred for medical examination to Sub District

Hospital, Karjat. Appellant was arrested on

08/06/2015 and since then he is in jail. He was also

got medically examined. During investigation the

Investigation Officer (PW-6) prepared spot

panchanama, seized clothes of prosecutrix and sent

the clothes for chemical analysis. He also recorded

statements of witnesses. After completion of

investigation charge-sheet was submitted in the Court

of Judicial Magistrate, First Class, Karjat, who then

committed the case to the Sessions Court, Ahmednagar.

(d) Charge was framed against the appellant for

the offence punishable under Section 376(2)(1) of the

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IPC. Accused pleaded not guilty and claimed to be

tried.

(e) To establish the guilt of the appellant

prosecution has examined in all 7 witnesses, namely,

the complainant Sau. Vandana Satish Mane (PW-1),

Panch Nana Subhan Maharnawar (PW-2), to the spot

panchanama, Sau. Sneha Pramod Mahajan (PW-4)

Headmistress of school for mentally challenged, Dr.

Pusha Trimbak Narote (PW-5) Medical Officer,

Bashradkhan Jamsherkhan Pathan (PW-7) Medical Officer

and the Investigating Officers (PWs-3 and 6) and one

Tulshidas Dhanwade was examined as a Court witness.

(f) Thereafter statement of appellant under

Section 313 of the Code of Criminal Procedure was

recorded. His defence is denial and that he has been

falsely involved in the case to extract money and to

grab his land.

(g) On considering the evidence adduced by the

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prosecution and defence of the appellant the learned

Additional Sessions Judge on holding that the

prosecution has proved offence under Section 376 read

with Section 511 of the IPC against the appellant

convicted and sentenced him by the impugned judgment

and order as referred in the opening paragraph of

this judgment. Therefore this appeal by the appellant

challenging the conviction and sentence recorded

against him.

5. I have heard Mr. Gawali, learned counsel for

the appellant/accused and Mr. Kutti, learned APP for

the respondent/State and with their assistance I have

perused the impugned judgment and order and the

evidence adduced by the prosecution.

6. Mr. Gawali, learned counsel for the

appellant submitted that as per prosecution case on

the date of incident i.e. on 03.01.2014 at about 5.00

to 5.30 p.m. when the complainant (PW-1) with her

daughter the prosecutrix and her mother-in-law Vimal

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were in the field they heard the voice of birds from

the field of Jawar crop and hence PW-1 asked the

prosecutrix to go to that field to flee the birds and

then after about 10-15 minutes when PW-1 went to the

well for brining water as she was thirsty she heard

shouting of prosecutrix “Aayo, Aayo” and saw the

appellant lying on the body of the prosecutrix and on

seeing her he ran away. It is submitted that at that

time PW-1 lifted one stone and hit the same on the

back of appellant and then he ran away. It is

submitted that no injury was noticed on the person of

appellant and the Investigating Officer has not

seized the stone which had allegedly hit the

appellant. At that time Vimal mother-in-law of PW-1

and her cousin mother-in-law Kisnabai Mane and

Vithabai Parkhe had also come there. The prosecution

has not examined either mother-in-law or cousin

mother-in-law of PW-1. So also, prosecution has not

examined the prosecutrix, in fact, she should have

been examined by the prosecution.

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7. Mr. Gawali, learned counsel for the

appellant further submitted that PW-1 claims that

after she went to the spot of incident after hearing

shouts of the prosecutrix she noticed that the

prosecutrix was lying on the ground and appellant was

lying on her body and salwar and knicker were not on

the person of the prosecutrix. But PW-4 Sau. Sneha

Mahajan who is Headmistress of school for mentally

challenged, who had recorded opinion Exh.32 on the

basis of observations of the prosecutrix and recorded

statement Ex.31 in question and answer form of the

prosecutrix after she was produced by her mother and

others has stated that the prosecutrix told her that

one Sitya touched the clothes of the prosecutrix and

the prosecutrix did not tell to PW-4 that the Salwar

and knicker on her person were removed by the

appellant. Thus, according to the learned counsel

there is no consistency in the evidence of PW-1 and

PW-4. In such circumstances the prosecution should

have examined the prosecutrix and as such non

examination of the prosecutrix by the prosecution is

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fatal to the prosecution case.

8. Mr. Gawali, learned counsel for the

appellant further submitted that when the prosecutrix

was examined by the Doctor nothing was noticed by the

Doctor to suggest that any attempt of forcible sexual

intercourse was made by the appellant and no injury

was seen. So also, it is submitted that when the

statement of the prosecutrix was recorded by PW-4

Mrs. Mahajan at one place she refers appellant as

“Anna” and at another place she refers him as ‘Sitya’

and therefore it cannot be said that Sitya or Anna is

the same person and he is the appellant Sitaram.

Moreover, it is submitted that the complainant PW-1

does not claim that when allegedly she saw the

appellant running from the spot of incident he was

naked or he was without clothes on his person. It is

submitted that there is absolutely no evidence to

show that the appellant attempted to penetrate or to

insert his penis inside the private part of the

prosecutrix and according to the learned counsel

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unless such attempt is established by the prosecution

offence under Section 376 read with Section 511 of

the IPC can not be attracted. Moreover, it is

submitted that only because the appellant was

absconding for one year after the incident it cannot

be said that he is guilty or he has committed the

alleged offence.

9. Mr. Gawali, learned counsel for the

appellant submitted that appellant/accused is cousin

father-in-law of the complainant (PW-1) and to grab

amount from him and to grab the land of appellant

which is adjacent to the field of the complainant the

appellant has been falsely implicated. According to

the learned counsel the prosecution has thus failed

to prove offence of attempt to commit rape on the

prosecutrix punishable under Section 376 read with

Section 511 of the IPC and as such appellant is

entitled to be acquitted of the said offence by

allowing the appeal.

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10. Alternatively, Mr. Gawali, learned counsel

for the appellant submitted that even if the evidence

of the complainant (PW-1) and PW-4 is accepted at the

most it would be a case of outraging modesty of the

prosecutrix which act is punishable under Section 354

of the IPC and nothing more than that. It is

submitted that in that case leniency be shown to the

appellant as his more than 65 years old and period

undergone by him since the date of his arrest i.e.

08/06/2015 is more than 3 years and 9 months and it

would be the proper sentence for the offence under

Section 354 of the IPC and accordingly conviction and

sentence recorded against the appellant be altered

from Section 376 read with Section 511 of the IPC to

Section 354 of the IPC by allowing the appeal to the

said extent.

11. Mr. Gawali, learned counsel for the

appellant to support his submissions relied upon the

decision in the case of Aman Kumar and Another Vs.

State of Haryana, (2004)4 Supreme Court 379 wherein

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Hon’ble Supreme Court observed in paragraph Nos.7 to

13 and 15 as under:

“7. Penetration is the sine qua non
for an offence of rape. In order to
constitute penetration, there must be
evidence clear and cogent to prove that
some part of the virile member of the
accused was within the labia of the
pudendum of the woman, no matter how
little (see Joseph Lines IC K 893).
It is well-known in the medical world
that the examination of smegma loses
all importance after twenty four hours
of the performance of the sexual
intercourse. (See Dr. S.P. Kohli (Dr)
V. High Court of Punjab and Haryana1] .
In rape cases, if the gland of the male
organ is covered by smegma, it
negatives the possibility of recent
complete penetration. If the accused is
not circumcised, the existence of
smegma round the corona gland is proof
against penetration, since it is rubbed
off during the act. The smegma
accumulates if no bath is taken within
twenty-four hours. The rupture of hymen
is by no means necessary to constitute
the offence of rape. Even a slight
penetration in the vulva is sufficient
to constitute the offence of rape and
rupture of the hymen is not necessary.
Vulva penetration with or without
violence is as much rape as vaginal
penetration. The statute merely
requires evidence of penetration, and
this may occur with the hymen remaining
intact. The actus reus is complete with
penetration. It is well settled that
the prosecutrix cannot be considered as
accomplice and, therefore, her

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testimony cannot be equated with that
of an accomplice in an offence of rape.
In examination of genital organs, state
of hymen offers the most reliable clue.
While examining the hymen, certain
anatomical characteristics should be
remembered before assigning any
significance to the findings. The shape
and the texture of the hymen is
variable. This variation, sometimes
permits penetration without injury.

                  This    is   possible    because   of   the
peculiar shape of the orifice or

increased elasticity. On the other
hand, sometimes the hymen may be more
firm, less elastic and gets stretched
and lacerated earlier. Thus a
relatively less forceful penetration
may not give rise to injuries
ordinarily possible with a forceful
attempt. The anatomical feature with
regard to hymen which merits
consideration is its anatomical
situation. Next to hymen in positive
importance, but more than that in
frequency, are the injuries on labia
majora. These, viz. labia majora are
the first to be encountered by the male
organ. They are subjected to blunt
forceful blows, depending on the vigour
and force used by the accused and
counteracted by the victim. Further,
examination of the female for marks of
injuries elsewhere on the body forms a
very important piece of evidence. To
constitute the offence of rape, it is
not necessary that there should be
complete penetration of the penis with
emission of semen and rupture of hymen.
Partial penetration within the labia
majora of the vulva or pudendum with or
without emission of semen is sufficient

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to constitute the offence of rape as
defined in the law. The depth of
penetration is immaterial in an offence
punishable under Section 376 IPC.

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

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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 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.

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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. 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

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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. Though the prosecutrix's version
in Court was of rape, when it is
compared with the one given during
investigation, certain irreconcilable
discrepancies are noticed. The evidence
regarding actual commission of rape is
at variance from what was recorded by
the police during investigation. The
evidence of PW-11, the father who
according to the prosecution made a
departure from what he allegedly stated
during investigation is to the effect
that his wife PW 9 told her (sic him)
that the prosecutrix was teased by the
accused persons. Merely because he was
termed as a hostile witness his entire
evidence does not get effected.
Significantly, the evidence of the
prosecutrix and the doctor does not
specifically refer to penetration which
is sine qua non for the offence of
rape.

13. There is no material to show that
the accused were determined to have
sexual intercourse in all events. In
the aforesaid background, the offence
cannot be said to be an attempt to
commit rape to attract culpability
under Section 376/511 IPC. But the case
is certainly one of indecent assault
upon a woman. Essential ingredients of
the offence punishable under Section
354 IPC are that the person assaulted
must be a woman, and the accused must
have used criminal force on her

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intending thereby to outrage her
modesty. What constitutes an outrage to
female modesty is nowhere defined. The
essence of a woman's modesty is her
sex. The culpable intention of the
accused is the crux of the matter. The
reaction of the woman is very relevant,
but its absence is not always decisive.
Modesty in this Section is an attribute
associated with female human beings as
a class. It is a virtue which attaches
to a female owing to her sex. The act
of pulling a woman, removing her dress
coupled with a request for sexual
intercourse, is such as would be an
outrage to the modesty of a woman, and
knowledge, that modesty is likely to be
outraged, is sufficient to constitute
the offence without any deliberate
intention having such outrage alone for
its object. As indicated above, the
word "modesty" is not defined in IPC.
The Shorter Oxford Dictionary (3rd
Edn.) defines the word "modesty" in
relation to a woman as follows:
"Decorous in manner and conduct; not
forward or lewd; Shame-fast;
Scrupulously chaste.

15. In that view of the matter, it
would be appropriate to set aside the
conviction of the appellants under
Section 376(2)(g) and convict them
under Section 354 read with Section 34
IPC. Custodial sentence of two years
each, with a fine of Rs.500/- each and
a default stipulation of three months'
rigorous imprisonment in case of
failure to pay the fine would meet the
ends of justice. The appeal is allowed
to the extent indicated above. "

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12. The second decision relied upon by the

learned counsel for the appellant is in the case of

Tukaram Govind Yadav Vs. State of Maharashtra 2011

Cri.L.J. 1501 (Bombay High Court). As per the facts

of the said case the appellant/accused was convicted

for the offence punishable under Section 376 read

with Section 511 of the IPC. In the appeal

challenging the said conviction and sentence in

paragraph 14,15 and 17, it was observed as under:-

"14. The medical evidence in the present
case do not indicate as to whether the
accused has tried to force his penis inside
the private part of the girl but could not
succeed. Evidence of PW-2 Parvati Yadav
before the Court, in para - 3 of her
deposition, indicate that when she went
there (in the house of the accused), she
found Ujwala sleeping on the floor and the
accused was lying on her. Nothing appears to
have been stated beyond this by Parvati
except that knicker which was removed was
brought back by her alongwith grand-daughter
to her house.

15. Under these circumstances, it must be
held that the offence committed by the
accused did not amount to attempt to commit
rape punishable under Section 376 read with
Section 511 of IPC, but, was one under
Section 354 of IPC. Therefore, the appeal
has been partly allowed by convicting the
appellant/accused for minor offence under

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Section 354 of IPC.

17. In the result, therefore, appeal
is partly allowed The order of conviction
and sentence recorded by the learned
Additional Sessions Judge, Kolhapur dated
06.07.1996 in Sessions Case No.49 of 1996
against the appellant for the offence
punishable under Section 376 read with
Section 511 of IPC set aside the modified.
Instead, the appellant is convicted for the
offence punishable under Section 354 of IPC.
The impugned order regarding the conditional
release and punishment, however as directed
by the trial Court is maintained. R P be
sent back to the trial Court. Both Criminal
Appeal and Criminal Revision Application are
disposed of accordingly."

13. Mr. P.N. Kutti, learned APP for the

respondent/State on the other hand submitted that the

prosecutrix is a rustic villager and therefore she

referred appellant/accused as "Sitya" and as he is

her relative and elder she referred him as "Anna"

while making statement before PW-4-Headmistress and

appellant Sitaram is the same person. It is submitted

that the trial Court has rightly considered the

evidence adduced by the prosecution and rightly

concluded that act of the appellant amounts to an

attempt to commit rape on the prosecutrix and

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therefore there is no reason to interfere with the

impugned judgment and appeal is liable to be

dismissed.

14. Charge was framed under Section 376(2)(1) of

the IPC and after considering the evidence the

learned Additional Sessions Judge on finding that

offence of rape is not proved and the prosecution

has proved offence of attempt to commit rape against

the appellant convicted and sentenced him under

Section 376 read with Section 511 of the IPC and it

appears that there is no appeal by the State and

therefore the only aspect which is required to be

considered is, whether the conviction of the

appellant under Section 376 read with Section 511 of

the IPC is proper and sustainable? To prove this

offence the prospection has mainly relied upon the

evidence of the complainant (PW-1), Sau. Mahajan-

Headmistress (PW-4), statement of prosecutrix Exh.31

recorded by PW-4, opinion of PW-4 Exh.32 and the

medical evidence of Dr. Pusha Narote (PW-5),

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certificate (Exh.42), report of examination of

prosecutrix (Exh.43) issued by the said Doctor.

15. Now coming to the evidence of PW-1 the

complainant there appears no dispute that on the date

of incident i.e. on 03.01.2014 PW-1 had gone to her

field alongwith her mother-in-law Smt. Vimal and the

prosecutrix at about 11.00 a.m. As regards the

incident she has deposed that the prosecutrix is

mentally weak by her birth. They were plucking the

grass in the onion field. At about 5.00 to 5.30 p.m.

they heard the voice of birds from the field where

the crop of Jawar was standing. Therefore, she

instructed the prosecutrix to go to that field and to

flee the birds. Therefore, the prosecutrix had gone

there. After 10 to 15 minutes from that time PW-1 was

feeling thirsty, therefore she was proceeding towards

well for bringing water which well is situated at a

distance of 10 to 12 meters from the field of Jawar.

She further deposed that when she was proceeding she

heard shouting of her daughter/prosecutrix as "Aayo

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Aayo" from the said direction. She deposed that she

noticed that her daughter was lying under tree of

Jujube (Bor) and appellant was lying on her body.

Accused sitting on the last bench is the same person.

Further she stated that she started shouting,

therefore appellant/accused hurriedly started running

from that spot. Then she lifted one stone and had

thrown it towards appellant/accused. It was hit on

his back. But still accused ran away. According to

her she noticed that lower apparels of her daughter

i.e. her knicker and salwar were not on her body.

Till that time her mother-in-law reached there after

hearing her shouts. Moreover, as she shouted her two

cousin mothers-in-law, namely, Smt. Kisanabai and

Smt. Vithabai also came there from their field. She

stated that after noticing her daughter without lower

apparels, she worn the clothes to her. Thereafter she

has stated about informing the incident to her son

and husband and that then on the same day she went to

police Station, Karjat at about 9.30 p.m. with her

son and prosecutrix and others and about lodging of

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complaint (Exh.24). She also deposed that in the same

night at about 12.00 p.m. the prosecutrix was

medically examined by PW-5 Dr. Narote.

16. In the cross-examination above said evidence

of PW-1 has not been specifically challenged and more

particularly her evidence that she noticed that the

prosecutrix was lying under tree of Jujube and

appellant was lying on her body and that on her

shouting appellant/accused started running from the

spot of the incident and that she hit stone on his

back and still he ran away has gone unchallenged. She

has denied that she deposed false and that to grab

amount from the appellant and to grab his

agricultural land, false case has been initiated

against him by her. So also, she has stated in the

examination-in-chief itself that the appellant is her

cousin father-in-law, she is acquainted with him and

he is residing in front of her house and that there

is courtyard between their houses admeasuring about

25 feet. Thus, there is no reason to disbelieve

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testimony of PW-1.

17. Now coming to the evidence of PW-4 Mrs.

Sneha Mahajan, Headmistress of the school for

mentally challenged, who recorded statement of the

prosecutrix Exh.31 on 19.06.2015 stated that she

inquired with the prosecutrix as to who troubled her

to which prosecutrix replied as 'Sitya'. She/

prosecutrix informed about the incident stating that

she was taken into agricultural field. Prior to that

she inquired whether she/prosecutrix works in

agricultural field, to which she said Yes. The

prosecutrix informed her that one Sitya took her to

agricultural field. She also informed that Sitya

touched her cloths. She stated that she inquired with

the prosecutrix whether she shouted and thereupon

prosecutrix said "No". She also inquired with the

prosecutrix whether she is acquainted with Sitya and

she said "Yes" and informed that he is "Anna". But

she had not informed about the details. It is true

that in the cross-examination PW-4 stated that

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prosecutrix disclosed two names i.e. Sitya and Anna

and she inquired with her about Anna, but she had not

responded. The evidence of this witness that she

recorded statement Exh.31 of the prosecutrix has not

been challenged on behalf of the appellant in the

cross-examination. Exh.31 statement of the

prosecutrix recorded by PW-4 shows that Sitya has

harassed the prosecutrix. It further shows that to

the question what he has done, the prosecutrix had

answered that, "laid down and sat on chest". To the

further question what else was done the prosecutrix

answered that the clothes were touched. So also, to

the question whether she was harassed in the house or

field, the prosecutrix answered as 'field'. Moreover

to the question whether her clothes were removed she

replied in the affirmative. As regards the question

whether she knows Sitya she answered in the

affirmative and to the question who is he she

answered as 'Anna'. Thus, from the above questions

asked to the prosecutrix by the Headmistress and the

answers given by the prosecutrix it can be said that

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incident of harassing the prosecutrix has taken place

in the field and it is Sitya who harassed her and

further it can be said that she was laid and he sat

on her chest. But on the basis of affirmative answer

given by her to the question whether her clothes were

removed it can not be conclusively said that her

clothes were removed by Sitya. The prosecutrix is a

lady who residing in the village and therefore she

must be referring accused Sitaram as a 'Sitya' and as

he is cousin father-in-law of mother of the

prosecutrix and elder to the prosecutrix she must be

calling him as a 'Anna'. Therefore, it can not be

said that Sitya and Anna are two different persons

even if PW-4 states that the prosecutrix disclosed

two names i.e. Sitya and Anna. Therefore argument

advanced by the learned counsel for the appellant

that appellant is not Sitya or Anna is not

acceptable. Thus, statement Exh.31 of the prosecutrix

and evidence of PW-4 have corroborated the evidence

of PW-1 the complainant eye witness that the

appellant was lying on the person of the prosecutrix

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( 29 ) criappeal147.18 final

at the material time of incident. The evidence of

PW-1 that salwar and knicker of the prosecutrix were

removed is not sufficient to state that they were

removed by the appellant because in her statement

Exh.31 the prosecutrix does not specifically say that

her said clothes were removed by the appellant and

even PW-4 Headmistress has also not stated that the

prosecutrix disclosed to her that her above said

clothes were removed by the appellant.

18. Thus, on the basis of above referred

evidence of PW-1, PW-4 and statement Exh.31 it can be

inferred that at the material time of incident

appellant was seen lying on the person of the

prosecutrix. Now, it is to be seen whether this act

of the appellant amounts to attempt to commit rape.

This act of the appellant certainly amounts to

preparation to commit offence. Therefore, it is

necessary to find out whether appellant has done

further act of attempt to commit rape by making

attempt of penetrating or attempted to insert his

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organ/penis in the vagina of the prosecutrix, but

said act was failed, to say that attempt was made but

it was not successful. It is true that it has come in

the evidence of PW-1 that after seeing her the

appellant stood-up and ran away holding his dhoti,

but as rightly pointed out by the learned counsel for

the appellant that PW-1 is not saying that she saw

appellant naked while lying on the prosecutrix or she

saw him naked while running after seeing her at the

time of incident. Therefore, for want of this type of

evidence it can not be said that accused attempted

for penetration.

19. The prosecution has relied upon the evidence

of Dr. Pusha Narote (PW-5) to prove the fact that the

appellant attempted to commit rape on the

prosecutrix. The evidence of Dr. Narote is that on

03.01.2014 in mid-night at about 12.40 a.m. the

prosecutrix was produced for medical examination by

one lady police constable alongwith mother of the

prosecutrix and she conducted medical examination of

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( 31 ) criappeal147.18 final

prosecutrix. Mother of the prosecutrix narrated

history of sexual assault on prosecutrix by appellant

on 03.01.2014 at about 5.30 p.m. in the field.

According to her on external examination of the

prosecutrix she noticed injuries, namely, (1)

Abrasion over back thorasic region-2x2x0.1 c.m. (2)

Abrasion over right elbow joint posterior

aspect-2x1x0.01 c.m. Dr. Narote stated that probable

cause of both injuries was hard and blunt object. Age

of injuries was within 24 hours and accordingly she

issued certificate Exh.42. She further stated that

she had not noted any injury over genital organ. The

clothes were changed by the prosecutrix. She

collected samples of vaginal swab, perineal swab,

pubic hair and nails and as per her opinion, which

was provisionally given, "there was evidence of

vaginal penetration". In the cross-examination she

stated that the hymen was absent, but there was no

fresh tear and on that basis she reached to the

conclusion of vaginal penetration. Thus, it is clear

that only because hymen was absent though there was

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no fresh tear Dr. Narote drew conclusion of vaginal

penetration. Thus it is obvious that there was no

fresh tear and Dr. Narote did not notice injury over

genital organ of the prosecutrix. Moreover the age of

injuries abrasions noticed on the person of the

prosecutrix was within 24 hours, when she was

examined within 7 hours of incident. Hence said

abrasion injuries being not on genital organ caused

even prior to time of incident are not useful to

prosecution to state that any attempt was made by

appellant to have sexual intercourse with the

prosecutrix. Report of physical examination of the

prosecutrix Exh.43 as well does not show any injury

over external genital of prosecutrix. Therefore,

above medical evidence is not sufficient to state

that the appellant made attempt of penetration and

crossed the line of preparation to commit offence.

20. Exh.50 report of the Chemical Analyser shows

that on salwar and knicker of the prosecutrix blood

of 'O' group which is blood group of the prosecutrix

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( 33 ) criappeal147.18 final

as per Chemical Analyser's report Exh.51 was found,

but when Dr.Pusha Narote has stated she had not noted

any injury over genital organ and there was no fresh

tear noticed in the internal examination of the

prosecutrix it cannot be said that blood which was

found on the salwar and knicker of the prosecutrix

was due to the injury on genital organ caused in the

attempt of penetration made by the appellant. Here it

is pertinent to note that in the opinion Exh.32 given

by PW-4-Headmistress it is stated that the

prosecutrix has no proper understanding of herself,

she is not in a position to take her care and she

cannot keep cleanliness of herself during

menstruation. In such circumstances possibility of

finding of blood of her own group on the clothes of

the prosecutrix due to menstruation cannot be totally

ruled out. It would not be out of place to mention

here that no injury was seen on external genital and

body of appellant as per injury certificate Exh.56.

21. On perusal of the impugned judgment it is

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seen that in paragraph 29 the learned Additional

Sessions Judge referred the decision in the case of

Anil Raghunath Dhiwar Vs. State of Maharashtra,2016

All M.R.(Cri)4657 wherein in paragraph nos. 19 and 20

it was observed as under:-

"19. It is true that even in a completed
offence of rape, complete or significant
penetration of male organ is not necessary,
and even slight penetration would be
sufficient to constitute rape. The
prosecutrix does say, in this case, that
there had been a penetration, but evidently
the theory of a complete or full
penetration, as said by the prosecutrix, is
wrong. The prosecutrix, who is a child,
cannot be relied upon in this regard, so as
to determine whether penetration had, in
fact, taken place only on the basis of what
she says, and though the medical evidence
fails to support such a theory.

20. The learned Additional Sessions Judge
observed that complete penetration would not
be necessary to constitute the offence of
rape, and that the offence of rape is
possible of being committed without causing
any injury to the genitals. She also
observed that non rupture of the hymen is
not a conclusive factor to determine this
aspect. Though these observations of the
learned Additional Sessions Judge are proper
and reveal the correct legal position, the
fact remains that whether penetration had,
indeed, taken place, would be a question of
fact to be decided on the basis of entire
evidence before the Court. The learned Judge
accepted the theory of penetration having

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( 35 ) criappeal147.18 final

been there, basically, on the basis of
presence of blood on the nicker of the
victim girl. There is substance in the
contention advanced by the learned counsel
for the appellant that this could also be
due to menstruation."

On the basis of above observations the

learned Additional Sessions Judge observed that it is

proved by the prosecution that an attempt was made by

the appellant in the present case to commit rape on

mentally retarded girl, as witnessed by her mother.

It appears that this conclusion is appeared to be

drawn by the learned Additional Sessions Judge on the

basis of opinion expressed by the Doctor that sexual

assault was committed, but no injuries were noted on

genital organ. As discussed earlier the evidence of

the Doctor (PW-5) shows that said Doctor reached to

the conclusion of vaginal penetration as the hymen

was absent but said opinion as discussed earlier

while appreciating the evidence of PW-5 is not

acceptable to conclude vaginal penetration as there

was no fresh tear and said Doctor did not notice any

injury over genital organ of the prosecutrix.

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22. It is pertinent to note that in the case of

Anil Raghunath Dhiwar (Supra) the prosecutrix in her

evidence stated that while she was sleeping, she woke

up by feeling pain into her vagina. She then woke up

and saw her knicker and salwar lying by aside and

that the appellant in the said case had inserted his

penis into her vagina. The evidence of Dr. Gupta in

the said case shows that the prosecutrix gave history

of rape by her uncle Anil Dhiwar-the appellant and

that Dr. Gupta did not notice any external or

internal injuries on the private part of the

prosecutrix and opined the case to be of attempt of

penetrative vaginal sexual intercourse and the

evidence of doctor was supported by certificate

issued by him immediately after examination of the

prosecutrix. The facts of the present case are

different from the facts of the decision in the case

of Anil Raghunath Dhiwar (Supra) and in the present

case only evidence is that the appellant was lying on

the prosecutrix and there is nothing to suggest that

he had inserted his penis into vagina of the

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prosecutrix. Therefore, conclusion drawn by the

learned Additional Sessions Judge on the basis of

decision in the case of Anil Raghunath Dhiwar

(Supra) that the prosecution has proved that an

attempt was made by the appellant to commit rape on

the prosecutrix/ mentally retarded girl is not

correct and sustainable.

23. For the foregoing reasons, the evidence of

PWs 1,4 and 5 is not sufficient to prove that the

appellant has done any act beyond preparation to

commit offence and that necessarily he did further

act towards commission of offence i.e. act of

penetration, so as to say that he crossed the line

between preparation and attempt to say that he

attempted to commit rape on the prosecutrix. Thus, I

hold that the evidence discussed above led by the

prosecution is not sufficient to infer beyond doubt

that appellant attempted to commit rape, which

offence is punishable under Section 376 read with

Section 511 of the IPC. However, on the basis of

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evidence of PWs 1 and 4 and statement Exh.31 of the

prosecutrix it can be said that the appellant did

outrage the modesty of the prosecutrix and committed

offence punishable under Section 354 of the IPC.

24. To draw the aforesaid conclusion, I also

rely on the decision in the -case of Baburao s/o

Govinda Kumoti Vs. State of Maharashtra, 2019 All MR

(Cri) 310. As per the facts of the said case the

victim aged 17 years was asked to remove her cloths

by the appellant/accused. 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. The

evidence on record shows that the accused and the

victim were seen lying together naked. In paragraph 8

of the said decision it was observed that the pivotal

question is whether the accused can be convicted for

attempt to rape under Section 376 read with Section

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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 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. The appeal

against conviction of the appellant was partly

allowed and appellant/accused was acquitted of the

offence punishable under Section 376 read with

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Section 511 of the IPC and Section 4 read with

Section 17 of the Protection of Children from Sexual

Offences Act (POCSO) Act. However, the accused was

convicted for offence punishable under Section 354 of

the IPC and was sentenced to suffer rigorous

imprisonment for three years.

25. For the reasons discussed above, I hold that

the prosecution has failed to prove offence under

Section 376 read with Section 511 of the IPC against

the appellant beyond reasonable doubt and the offence

which is proved beyond doubt against the appellant is

of outraging modesty of the prosecutrix punishable

under Section 354 of the IPC. The decision in the

case of Tukaram Govind Yadav (Supra) relied upon by

the learned counsel for the appellant is squarely

applicable to the present case. Therefore, conviction

and sentence recorded by the Additional Sessions

Judge against the appellant for the offence under

Section 376 read with Section 511 of the IPC on the

basis of incriminating evidence referred in paragraph

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No.24 of the impugned judgment is not sustainable. In

paragraph 24 the learned Additional Sessions Judge

observed that the appellant was absconding from date

of incident i.e. 03.01.2014 till 08.06.2015 and he

has not offered any explanation about his absence

from village and the complainant (PW-1) noticed the

appellant lying on the body of the prosecutrix and

FIR was promptly lodged and therefore offence of

attempt to commit rape has been proved against the

appellant. It is true that the appellant has not

offered explanation about his absence from the

village for the period mentioned above, FIR was

promptly lodged and PW-1 was eye witness to the

incident and she noticed appellant lying on the

person of the prosecutrix, but when as discussed

earlier the prosecution has not established any overt

act of the appellant towards the commission of the

offence of rape the above referred incriminating

evidence against the appellant is not sufficient to

attract offence under Section 376 read with Section

511 of the IPC against the appellant. Therefore

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conviction and sentence recorded against the

appellant for the offence under Section 376 read with

Section 511 of the IPC being unsustainable is liable

to be set aside and appellant is to be acquitted of

the said offence. However the appellant can be

convicted for offence under Section 354 of the IPC

even in the absence of charge under Section 354 of

the IPC as this offence being minor offence to

offence under Section 376(2)(1) of the IPC under

which charge was framed, in view of the provisions

under Section 222 of the Code of Criminal Procedure,

by allowing the appeal partly.

26. As regards the punishment to be awarded for

the offence under Section 354 of the IPC is

concerned. The punishment provided for the said

offence is imprisonment of either description for a

term which shall not be less than one year but which

may extend to five years, and shall also be liable to

fine. The incident took place on 03/01/2014.

Appellant is in jail since 08/06/2015 i.e. for more

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than 3 years, 9 months and 22 days. Considering the

said period and the present age of the

appellant/accused i.e. 65 years and punishment

provided for the offence under Section 354 of the IPC

the period undergone by the appellant/accused with

fine of Rs.5,000/- would be the proper sentence and

would meet the ends of justice.

27. In the result following order is passed:-

ORDER

(i) The appeal is partly allowed.

(ii) The impugned judgment and order dated

27/01/2017 passed by the Additional Sessions Judge,

Ahmednagar in Sessions Case No.219 of 2015 convicting

and sentencing the appellant/accused for the offence

punishable under Section 376 read with Section 511 of

the IPC is set aside and he is acquitted of the said

offence.

(iii) However, the appellant/accused is

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convicted for the offence punishable under Section

354 of the IPC and he is sentenced to suffer Rigorous

Imprisonment for the period undergone by him from

08/06/2015 i.e. the date of his arrest, and to pay a

fine of Rs.5,000/-, in default to suffer simple

imprisonment for one year.

(iv) Fine amount of Rs.5,000/- imposed as per

impugned judgment and deposited by the appellant

immediately be treated as payment of fine now imposed

for the offence under Section 354 of the IPC.

(v) Rest part of the impugned judgment and order

is maintained.

(vi) Since the appellant has already paid fine

amount and the sentence imposed is the period

undergone he shall be released forthwith if not

required in any other crime or case.

(vii) Record and Proceedings in Sessions Case

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( 45 ) criappeal147.18 final

No. 219 of 2015 be sent to the trial Court forthwith

for compliance of the order.

[S.M.GAVHANE,J.]

SSP

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