Back
2010 Supreme(Bom) 1673
High Court of Judicature at Bombay
A.P. BHANGALE
Tukaram Govind Yadav & Another
Versus
State of Maharashtra & Another
CRIMINAL APPEAL NO.506 OF 1996 ALONG WITH CRIMINAL REVISION APPLICATION NO.29 OF 1997
Decided on : 30-11-2010
For the Appellant:Smt. Varsha Palav, K.K. Jadhav, Advocate. For the Respondents:R1, S.V. Sadavarte, Advocate, K.V. Saste, A.P.P.
Headnote:Indian Penal Code, 1860 - Section 354-Outraging modesty of woman-Sentence for under Section 354 of IPC-Accused committed offence punishable under 354 of IPC-Held, guilty by trial Court-Sentence of simple imprisonment of one year and fine of Rs. 300/- with further direction for his release under Section 360 of Cr PC on giving a bond of good behaviour of one year in sum of Rs. 5,000/- with a surety in like amount would meet ends of justice.-The next question is about the sentence to be imposed for the offence punishable under Section 354 of IPC which relates to assault or criminal force to woman with intent to outrage her modesty is punishable with imprisonment to the extent of two years or with fine or with both. When the accused removed the knicker of the girl with a view to commit sexual intercourse, it does amount to outrage of modesty and knowledge that her modesty was likely to be outraged. Such an act do constitute the offence punishable under Section 354 of IPC as is committed by the accused in the present case. Considering that the appeal is partly allowed by reducing the penal liability of the accused to that under Section 354 of IPC instead of 376 read with 511 of IPC, Court think the lesser sentence which has been imposed by the trial Court i.e. accused to suffer S.I. for one year and fine of Rs. 300/- in defaults S.I. for one month, with further direction for his release under Section 360 of the Cr PC on giving a bond of good behaviour of one year in the sum of Rs. 5,000/- with a surety in the like amount, would meet the ends of justice.
Indian Penal Code, 1860 - Sections 354, 376 and 511-Attempt to rape and indecent assault-Accused allegedly took prosecutrix (girl) in his house and caused her to sleep on ground facing to sky-Then he removed her knicker and slept on her-Medical evidence not indicates as to whether tried to force his penis inside private part of girl but could succeed-Held-Offence committed by accused was one under Section 354 if IPC and not under Section 376 read with Section 511 of IPC.-In a case of rape, rape is committed when male organ penetrates at least partial the female organ. In between complete rape and attempt to commit rape there is a rear area covered by Section 354 of IPC i.e. assault or criminal force to woman with intent to outrage her modesty or indecent assault. The dividing line between attempt to commit rape and indecent assault is not only thin but also is practically invisible. For an offence of attempt to commit rape, prosecution is required to establish that the act of the accused went beyond the stage of preparation. In a given case where the prosecutrix was made naked and her cries attracted her uncle who came to the spot and then the accused fled away it was held that it was not a case of attempt to commit.
The medical evidence in the present case do not indicate at 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 prosecutrix 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 along with grand-daughter to her house.
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.
1. Both these appeal and revision are preferred challenging the judgment and order dated 6.7.1996 passed by the learned Additional Sessions Judge, Kolhapur in Sessions Case No.49 of 1996 whereby the learned trial Judge convicted the accused for the offence punishable under Section 376 read with Section 511 of Indian Penal Code and directed the accused to suffer S.I. for one year and fine of Rs.300/- in default S.I. for one month. By the said order, considering the age of the accused, he was directed to be released under Section 360 of Cr.P.C. on giving a bond of good behaviour of one year in the sum of Rs.5000/- with a surety in the like amount.
2. While the appellant in Criminal Appeal No.506 of 1996 challenges his conviction under Section 376 read with Section 511 of Indian Penal Code, the revision petitioner in Criminal Revision Application No.29 of 1997 contended that the sentence imposed was inadequate considering the nature of offence held as proved by the learned trial Judge.
3. Briefly stated the case of the prosecution is that : first informant Parvatibai Yadav and the accused are resident of village Sonarwadi and used to reside in that village when the incident occurred. The first informant was residing with her daughter-in-law, granddaughter and her two sons. Victim Ujwala is the granddaughter of first informant who was aged about nine years at the time of the incident. It is case of the prosecution that on 27.10.1995 while Ujwala was playing with her sister Jyoti and her friend Rani in the afternoon in front of the house of the accused. At about 3:00 p.m. Jyoti had returned to the house complaining that their play was disturbed by the accused who had driven away Jyoti and Rani and taken away Ujwala in his house. The first informant immediately went to the house of the accused. According to her, she had found accused and her granddaughter Ujwala in the kitchen while nicker of Ujwala was removed and she was lying on the ground. Accused was found sleeping over her trying to have intercourse with her. When first informant reached, the accused had got up. Thereafter the victim was taken away by the first informant back to her house. In the evening time, a complaint was lodged with the police.
4. The investigation followed. Accused was chargesheeted. Considering the nature of accusation, the case was committed to the Court of Session and the charge was framed to which the accused pleaded not guilty and claimed to be tried.
5. Prosecution had examined three witnesses to prove its case against the accused. The alleged victim Ujwala was examined as PW1. According to Ujwala, the accused caused her to sleep on the ground facing to sky and then he removed her nicker and slept on her. She received some pains in her private part and when she started crying, accused pressed her mouth with the hand. He had got up after he saw her grandmother coming in the house of the accused. The victim was cross-examined regarding the incident. She denied that her mother and grandmother tutored her to give the statement against the accused. Although, she stated that she had received pains in her vagina when the accused slept over her, she admitted that word ‘vagina’ was not appearing in the statement before the police.
6. PW2 Parvati Yadav (first informant) deposed about the incident that Jyoti came to house weeping and said her that she was beaten by the accused. When Parvati went to the house of the accused, she found Ujwala sleeping on the floor and accused was lying over her. She then took her granddaughter to her house along with the nicker of her granddaughter which according to her was removed by the accused. In the course of examination-in-chief of PW2 nothing appears as to whether the accused was doing anything which may legally constitute an attempt to commit rape. According to the learned Advocate for the appellant, it may be at the most a stage of preparation and not an attempt. Learned Advocate for the appellant contended
