1994 Supreme(Bom) 149

IN THE HIGH COURT OF BOMBAY
(PANAJI BENCH)
Dr. E.S. Da Silva, J.
Shri Shivaji Tukaram Kurle.....Appellant.
Versus
State.....Respondent.
Criminal Appeal No. 13 of 1993, decided on 4-3-1994.
Advocates appeared:
S.D. Lotlikar, for the appellant.
G.U. Bhobe, for the respondent.

Headnote:Sections 170 and 354-Offence of impersonation-Where Head Constable obtained entry in female ward of hospital under assumed name, facts held totally irrelevant in incriminate under Section 170 I.P.C.

       The facts on record might suggest that the appellant could have been charged for an offence of cheating by personation punishable under Section 416 of I.P.C. But the appellant was not even charged for such offence and therefore his conviction under Section 170 I.P.C. does not seem to be at all justified. Hence the alleged act of the appellant of pretending to be Head Constable and related to Z for the purpose of taking advantage of this relationship so as to enter in the Mental Hospital is to be held as totally irrelevant for the purpose of incriminating the said appellant for an offence under Section 170 of I.P.C.

       Section 354-Offence under-When can be said to be computed. Admittedly no evidence was brought on record by the appellant to substantiate the last contention and instead the material available is consistently pointing out to the contrary namely to the fact of the appellant having unduly gamed entry to the compound of the hospital by pretending to be the brother of Z and having thereafter assested her inside the hospital and taken her along with him towards the corridor in the direction of the kitchen which was the locked by holding her hand and also embracing Z obviously Without her valid consent which otherwise she could not have given to him on account of unsoundness of her mind. Therefore there is no hesitation in holding that this act by itself satisfies all the ingredients of the offence of using criminal force to assault a woman with the intention to outrage her modesty which is qualified in terms of Section 354 of the I. P. C. In this regard, the contention of the counsel pinpointing some inconsistencies or contradictions in the prosecution evidence is only a weak and unsuccessful exercise aimed at shaking its credibility which seems manifestly impermissible and unjustified and thus bound to be rejected.

       Sections 375 (5) and 377-Charge-Framing of-Contention that defective charge prejudiced defence not acceptable.

       Held-It is really difficult to accept the contention that the charge being defective has in fact prejudiced the appellant in his defence. Indeed and although the so-called details in respect whereof the learned counsel has found missing in the charge are not specifically disclosed therein, the fact remains that the charge clearly discloses that Z who was purportedly the target of his alleged sexual assault was under treatment in the Mental Hospital. This circumstance by itself is hound to hiring the charge framed against the appellant within the purview of Section 376 read with Section 315 (fifthly) of the I P. C. In this connection the evidence of the doctor and the medical report prepared hy him, copies whereof were supplied to the appellant, clearly speak to the fact of Z baving been admitted in the Hospital on 27th November, 1990 with the story of suffering from mental illness for the last 10 years which was never completely cured.

       Section 376-Ingredienls of rape-Only holding hand and acting victim to a corner of corridore by using no force or persistence do dot constitute offence of attempting 10 commit raps.

       Held-It is the element of force and determination which characterizes an attempt to commit rape. A person can be convicted for having attempted commit rape only when he does an act which clearly discloses, his intention to have or maintain sexual intercourse with a woman by force or without her valid consent and inspite of her resistence or interference from a third party he persists in his effort to maintain sexual intercourse although ultimately he might not he able to achieve his aim. In the instant case it has been seen that irrespective of the fact that the appellant having held Z by band and taken her to a remote corner in the corridor of the Hospital near the kitchen which was locked and probably embraced her by keeping at the same time the zip of his pant half open so that even his public heirs could be noticed, the fact remains that beyond this nothing else suggests that there was on his part a determines effort to forcefully maintain sexual intercourse with Z at that relevant of time. On the contrary the evidence shows that as soon as the staff of the Mental Hospital took notice of his presence in the female ward in Zs company and enquired with him what he was doing and who he was the appellant immediately freed Z from his physical hold and even sought to leave the place going to the extent of trying to run away although he did not succeed in this attempt. Similarly the medical evidence, namely, the examination of both Z and the appellant did not also point out to any physical effort or violence which the appellant might have made on Z to forcible maintain sexual intercourse with her.