Saturday, 30 April 2016

Whether accused can be convicted in case of attempt to Rape even if prosecutrix is not examined?

 In the present case, the victim was not examined by
the prosecution. The case of prosecution cannot be thrown in
dust-bin on that count because the age of the prosecutrix is only
five years. The medical officer, who examined the victim, has
opined that no rape was committed on the prosecutrix. Therefore,
the question that this Court has to decide is, whether the
appellant could be convicted for making an attempt to commit
sexual intercourse on a minor girl?
Ravi s/o Shankarrao Kale,

The State of Maharashtra,


PRONOUNCED ON : 12.10.2015.
Citation;2016 CRLJ(NOC)105 Bom

The present appeal is directed against the judgment
and order of conviction passed by the learned Additional Sessions
Judge, Wardha, in Sessions Case No. 52 of 2012 on 09.4.2013,

thereby convicting the present appellant for the offence
punishable under Section 376 (2)(f) read with Section 511 of
Indian Penal Code and sentencing him to suffer rigorous
imprisonment for five years and to pay fine of Rs.5,000/-, in
default to suffer rigorous imprisonment for three months. The trial
Court also directed that on payment of fine, Rs.4,500/- be paid to
the prosecutrix by way of compensation.
2. The prosecution case, as it was unfolded during the
course of trial, is narrated as under :
(a) Kailash Kurhade (P.W.2) is the first informant. He has
lodged oral report with police station Arvi on 10.2.2012. The
report is at Ex.26 whereas printed F.I.R. is at Ex.27.
(b) The first informant was discharging his duties as
Chowkidar in a school at Arvi known as Gandhi Vidyalaya. His
duty hours used to be from 6 p.m. to 8 O' clock of next day
morning. He used to take round of the school premises while on
duty. There is no compound wall to the school.
(c) On 10.2.2012 the first informant joined his duties at 6
O' clock in the evening. He started taking round of the school. At
about 7-30 p.m. in front of Chemistry Laboratory of the school he
noticed one person lying on the ground. His face was towards the

floor. He was having shirt on his person. However, his pant and
under garment, i.e. nicker, were removed up to his knees.
Therefore, the first informant went there and found that the said
man was sleeping on a minor girl. Nicker of the minor girl was
also removed up to her knees and he was trying to insert his
private part into the private part of minor girl. Therefore, the first
informant caught hold the collar and lifted the said person from
the body of the minor girl. The minor girl was the daughter of the
peon working in Anna Bhau Sathe Prathmik Shala. The age of the
girl was five years. The said person tried to give some jerks to
the first informant. Therefore, he called for help. One person by
name Sudhakar Kangali came there and with his help
apprehended the said person, who is appellant before this Court.
Then both of them took the appellant and the minor girl to the
police station where Kailash narrated the entire incident to police.
(d) P.W.3 Dashrath Dhurve, who on the relevant day was
on duty at police station Arvi, registered the oral report of the first
informant and registered the offence vide Crime No. 32/12. He
visited the spot of incident along with the first informant. The spot
was shown by the first informant. In presence of panch witnesses,
panchanama was drawn which is at Ex.20. He arrested the
accused under arrest panchanama (Ex.30);. He seized the clothes

of the prosecutrix under seizure panchanama (Ex.21). Clothes of
the accused were also seized under seizure panchanama (Ex.22).
(e) The investigation was then handed over to P.W.8 Yunis
Lakade. He recorded statements of witnesses. He collected
medical papers of the prosecutrix and also sent Muddemal to
chemical analyser along with forwarding letter Ex.46. Reports of
chemical analyser were received which are at Exs.48 and 49.
After completion of usual investigation, the Investigating Officer
presented charge-sheet in the Court of law.
3. After committal of the case to the Court of Sessions, it
was registered as Sessions Case No. 52/12. The learned
Additional Sessions Judge framed a charge against the appellant
under Ex.5 for the offence punishable under Section 376(2)(f) of
Indian Penal Code and also under Section 376 read with Section
511 of Indian Penal Code. The appellant abjured his guilt and
claimed for his trial.
4. In order to bring home guilt of the appellant,
prosecution has examined following witnesses. They are -

Sr.No. Name & witness No. Status of witness
1. Pawan Bele (P.W.1) Panch witness to the spot
panchanama (Ex.20), witness to
seizure of clothes of prosecutrix
Ex.21, witness to seizure of clothes
of accused Ex.22 and also witness
to seizure of blood samples, semen
sample, pubic hair and nail
clipping of accused Ex.23.
2. Kailash Kurhade (P.W.2) First informant and lodging of
F.I.R. (Ex.26).
3. Dashrath Chindhuji Dhurve
Registered the F.I.R. and drew spot
panchanama (Ex.20)
4. Mamta Pravin Mother of the prosecutrix.
5. Sudhakar Mahadeorao
Kangali (P.W.5)
Immediately reached the spot of
incident on the call given by the
first informant and a apprehended
the accused.
6. Dr.Jaishri Gathe P.W.6 Examined the prosecutrix and
issued certificate Ex.41.
7. Pravin P.W.7 Father of prosecutrix
8. Yunis Lakade P.W.8 I.O. who filed chargesheet
9. Dr. Pravin Thakare P.W.9 Examined the accused and issued
certificate Ex.53.
5. After full-dress trial, the learned Judge of the trial
Court found the appellant/accused guilty of the offence
punishable under Section 376(2)(f) read with Section 511 of Indian
Penal Code and sentenced him, as stated in opening paragraph of

this judgment.
6. I have heard Shri Mahesh Rai, learned counsel
for the appellant and learned A.P.P. With their able
assistance I have gone through the record and proceedings
and the notes of evidence. Both the learned counsel articulated
their submissions in support of their respective prayers.
7. Pravin (P.W.7), father of the prosecutrix, deposed before
the Court that the date of birth of the victim is 23.9.2007. This
particular assertion is not challenged by the defence when he
was under cross-examination. Thus, on the date of incident, i.e.
on 10.2.2012, the prosecutrix was aged about 5 years.
8. Mamta (P.W.4), mother of prosecutrix, stated from
the witness-box that on the date of incident in the evening
prosecutrix was playing in the court-yard of her house. At about
5-30 p.m. when the light was off, Mamta went inside the house
for lighting the lamp in the kitchen. Thereafter, she noticed that
the prosecutrix was not present in the court-yard. Therefore, in
the search of prosecutrix she went to her neighbour's house,

which is described as Pallavi's house by Mamta in her evidence. It
was told to her that time by the mother of Pallavi that prosecutrix
and Pallavi had gone along with Ravi, the present appellant, to
bring book. In search of prosecutrix, Mamta went to the house
of Pallavi for two-three times but she did not find her daughter
there. Mamta further deposed that at about 10-30 p.m. one
Chowkidar from Gandhi Vidyalaya came to her house. This
Chowkidar is obviously P.W.2 Kailash. Kailash informed Mamta,
mother of prosecutrix, that her daughter is in the police station.
She then went to the police station.
On the next day, the victim was referred to the
hospital for her medical examination along with a lady police
constable. Prior to medical examination of victim, the medical
officer has obtained consent of Mamta (P.W.4), which is at Ex.32.
9. Dr.Jaishri Gathe (P.W.6) was attached to Civil
Hospital, Wardha. On 10.2.2012, after obtaining the consent of
Mamta (P.W.4)- the mother of prosecutrix, she examined the
victim and found no injuries on any part of the body of the
prosecutrix. Hymen was also intact and secondary sexual
characters were not developed. Accordingly, she issued medical
certificate (Ex.41).

10. In the present case, the victim was not examined by
the prosecution. The case of prosecution cannot be thrown in
dust-bin on that count because the age of the prosecutrix is only
five years. The medical officer, who examined the victim, has
opined that no rape was committed on the prosecutrix. Therefore,
the question that this Court has to decide is, whether the
appellant could be convicted for making an attempt to commit
sexual intercourse on a minor girl?
11. An attempt is an overt act immediately connected
with the commission of an offence and forming the part of series
of act which, if not interrupted or frustrated or abandoned, would
result in the commission of a complete offence. Mere intention
not followed by an act cannot constitute an offence, the
preparation is a mental act which follow up some action to do a
particular thing. Preparation consist in devising or arranging the
means or measures necessary for the commission of the offence.
Let us now examine the evidence of the prosecution in the light of
the above.
12. Unchallenged evidence of Mamta (P.W.4) shows that

she had been to Pallavi's house in search of her daughter when
she noticed that her daughter was not there in the court-yard and
that time it was revealed to her that her daughter is taken away
by the appellant. In view of this unchallenged version, it is
established that the prosecutrix was in the company of the
appellant. There cannot be any fixed point by which it could be
said that at a particular point of time, intention of a person to
commit an offence has crept in his mind. Such intention will have
to be gathered from the subsequent acts.
13. P.W.2 Kailash is the Chowkidar in Gandhi Vidyalaya,
Arvi. His duty hours used to be from 6 p.m. to 8 O' clock in the
morning of next day. His evidence discloses that there is no
compound wall. Ex.20 spot panchanama also does not recite
about having the compound wall. As per evidence of Kailash, to
prevent trespass in the premises, it is his duty to keep a watch.
14. P.W2. Kailash deposed in his evidence that on the
date of incident, i.e. 10.2.2012, he reported duty at 6 p.m. His
taking rounds in the premises is most natural. Since he is a
Chowkidar, it is his duty to keep vigil eye on the premises. The
evidence of this witness further reveals that while he was taking

third round, he noticed in the source of light that one person was
sleeping facing the ground. The said invited the attention of this
witness and, therefore, he immediately reached there. On
reaching there, this witness noticed that the said person, the
appellant, was having his pant and nicker removed up to his
knee. At the same time, Kailash (P.W.2) also noticed one minor
girl was lying on the floor beneath the appellant. This witness
further noticed the private part of that man (appellant) in an
erected position. By removing his pant and nicker up to knee, the
appellant exposed his private part. Kailash (P.W.2) also noticed
that the nicker of the girl was also removed up to her knees. With
erected position of private part when the appellant was on the
body the minor girl, thus it is amply clear that the appellant has
travelled beyond the point of preparation and has tried to commit
rape on the girl. However, the said act was frustrated and could
not be completed because of the intervention at the right point of
time by P.W.2 Kailash. Had Kailash been not there at that
particular point of time, the act of commission of rape would have
been completed.
15. The evidence of this prosecution witness is
challenged by the learned counsel for the appellant on the ground

that Kailash (P.W.2) did not report the said matter to the School
Head Master. However, cross-examination of this witness
discloses that on the date of incident, the Head Master was not
available in the town and on the next day the matter was reported
to the HeadMaster.
16. Dr. Pravain Thakare (P.W.9), who also examined the
witness Kailash (P.W.2), deposed that the injury found on the
person of Kailash was simple in nature. Certificate issued by the
medical officer to this effect is at Ex.54. This corroborates the
version of P.W.2 Kailash when he says that the accused tried to
rescue himself from his clutches. Therefore, pain and tenderness
as noticed by the medical officer on the left hand of Kailash is
most natural. In that view of the matter, the submission of
learned counsel for the appellant that the appellant is falsely
implicated in the crime has no force.
17. The version of Kailash (P.W.2) that he caught hold of
the appellant on the spot itself is corroborated by P.W.5 Sudhakar
Kangali. This witness reached the spot immediately when he
heard the call given by Kailash. Thus, the evidence of Kailash
(P.W.2) and Sudhakar (P.W.5) are corroborative to each other on

the aspect of taking the appellant to the police station along with
the victim. The evidence of both these witnesses inspire
confidence and their evidence is free from exaggeration. There is
nothing on record to show that these two prosecution witnesses
were having any enmity with the appellant for his false
implication. In that view of the matter, I see no reason to interfere
with the findings recorded by the learned Judge of the trial Court.
The appeal deserves to be dismissed.
18. The appeal is dismissed.

Print Page

No comments:

Post a Comment