2019 Supreme(Bom) 525

IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD
S.M. Gavhane, J.
Hiralal Kasam Shaikh - Appellant
Vs.
State of Maharashtra - Respondent
Criminal Appeal No. 428 of 2000
Decided On : 12-04-2019

Headnote:

Indian Penal Code,1860 - Sections 376, 511, 506 - Criminal Procedure Code,1973 - Section 313 - Rape Case - Challenge - Member of Scheduled Caste i.e. Mahar - At material time of incident she was residing with her parents at village - She used to look after she-goats and used to graze she-goats on the bank of a river namely at her village - Appellant is also from same village - prosecutrix lodged a complaint (Exh.15) in Police Station, at about 13.45 hours alleging that at about pm near bank of river when she had gone to graze her she-goats as usual and while she was bringing she-goats back to home in evening appellant came to her and said her whether she is grazing the she goats and that he has some important work with her - He called her to him - She refused - He then rushed upon her caught hold her and embraced her - He then fell her on ground - He inserted his hands in her Punjabi dress pulled her brassier and started pressing her breast by his hands - He untied string of her Salwar and started pulling down it -She started shouting and pushing appellant away - But she could not push him away as he over-powered her - Appellant then slept on her person and made an endeavour to commit rape on her - She shouted loudly - On hearing her shouts her parents came running from to spot of incident and on seeing them appellant got up from her person and threatened her not to disclose the incident to her parents and on saying so he ran away - whether she is grazing the she goats and that he has some important work with her - Whether appellant was employed by for guarding the crops in his land - Whether said act amounts to attempt to commit offence of rape, it is necessary to find out whether appellant has done further act towards committing rape by making attempt of penetrating or attempting to insert his male organ/penis in vagina of prosecutrix but said act was failed to state that attempt was made by appellant but it was not successful - Whether such act of appellant amounts to attempt to commit rape on prosecutrix - Whether appellants act as deposed by prosecutrix of embracing her falling down her pulling down Salwar of te prosecutrix and lying upon her body only amounts to preparation to commit offence and it does not amount to attempt to commit rape on the prosecutrix by observing that there is nothing to show that at any cost appellant tried for penetration because in case of attempt to commit rape also some sort of evidence of penetration, even slightest, is necessary - arises - Whether separate sentence can be imposed on appellant for offence punishable under section 354 of IPC - Whether accused has tried to force his penis inside private part of girl but could not succeed – Held, Offence punishable under section 3(1)(xi) of SC and ST (Prevention of Atrocities) Act deals with assault or use of criminal force to any woman - arises - Whether separate sentence can be imposed on appellant offence punishable under section 354 of IPC, belonging to Scheduled Caste or Scheduled Tribe with intent to dishonour or outrage her modesty is an aggravated form of offence punishable under section 354 of IPC - Only difference between section 3(1)(xi) of SC and ST (Prevention of Atrocities) Act and section 354 of IPC is essentially caste or tribe to which victim belongs - If victim belongs to Scheduled Caste or Scheduled Tribe section 3(1)(xi) of the SC and ST (Prevention of Atrocities) Act applies - Other difference is that in section 3(1)(xi) of SC and ST (Prevention of Atrocities) Act, dishonour of such victim is also made an offence - Considering these aspects, as offence punishable under section 3(1)(xi) of SC and ST (Prevention of Atrocities) Act is an aggravated form of offence punishable under section 354 of IPC, no separate sentence need to be awarded for offence punishable under section 354 of IPC - Prosecution has failed to prove offence punishable under section 376 read with section 511 of IPC beyond reasonable doubt against appellant, but on the basis of evidence it is established that appellant has committed offence of outraging modesty of prosecutrix punishable under section 354 of IPC - Therefore conviction and sentence recorded against appellant by judgment under challenge for offence punishable under section 376 read with section 511 of IPC is not sustainable and same is liable to be quashed and set aside and appellant is entitled to be acquitted of said offence - However he is to be convicted for offence punishable under section 354 of IPC - Appeal partly allowed