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2007(2) LAW HERALD (P&H) 1532
IN THE HIGH COURT OF PUNJAB AND HARYANA
Before
The Hon’ble Mr. Justice H.S. Bhalla
Criminal Appeal No.281 SB of 1992
Suresh
v.
Haryana State
{Decided on 02/04/2007}
(B) Evidence Act, 1872, Section 3--Penal Code, 1860, Section 376--Rape--Appreciation of evidence--Rape with minor girl--Ordinarily a young girl would not put her character at stake by way of false implication--Each case has to be determined as per its own peculiar facts. (Para 13)
(C) Penal Code, 1860, Section 511--Attempt to commit particular offence. (i) when he intends to commit that particular offence, (ii) he, having made preparation and with the intention to commit the offence does an act towards its commission. (Para 14)
(D) Penal Code, 1860, Sections 376, 511--Rape--Ejaculation without penetration constitutes an attempt to rape and not actual rape--Sine qua non of the offence of rape is penetration, and ejaculation--Indecent assault are often magnified into attempts at rape. (Para 14)
(E) Penal Code, 1860, Sections 376, 375--Rape--Slightest degree of penetration is sufficient to held accused guilty for the offence under Section 375 punishable under Section 376 IPC. (Para 11)
(F) Penal Code, 1860, Sections 376, 511--Attempt to rape--Reduction in sentence--Accused was charged with Section 376 IPC--Appellant sentenced to undergo RI for seven years besides fine under Section 376 IPC--Rape was committed in the field--No marks of violation were found around private parts--No injury on thigh, legs, back and breast of the prosecutrix nor any nail marks on the body of accused--Semen was detected only on the clothes of the prosecutrix but not on her private parts--Evidence of prosecutrix is not supported by medical evidence--Conduct of the accused was indicative of determination to gratify his passion--Commission of actual rape not established--Appellant’s desire was to gratify his passion upon her person--Appellant; thus held guilty of offence under Section 376. (Para 15)
H.S. Bhalla. J.:- This appeal is directed against the judgment dated 14/15.7.1992, passed by Additional Sessions Judge, Hisar, whereby he convicted the appellant under Section 376 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for seven years and was ordered to pay a fine of Rs.2000/-; in default thereof, he was directed to further undergo rigorous imprisonment for a period of six months.
2. Factual matrix leading to the conviction of the appellant is as follows:
On 19.2.1991 at about 3.00 P.M. prosecutrix daughter of Daya Nand resident of Sudana, aged 12-13 years, was working in the fields in the area of village Budana, whereas her father Daya Nand was also working at the brick-kiln of Subhash Chander situated in the area of village Budana at a distance of two killas from the place where prosecutrix was cutting barsin crop. Prior to cutting the barsin crop, prosecutrix had taken the meals of her father at about 12.00 P.M., who was working at the brick-kiln and after serving the meals, prosecutrix started cutting barsin crop in the field and at about 3.00 P.M. accused Suresh found prosecutrix all alone in the field and took prosecutrix in his arms and forcibly put her on the ground and placed his hand on her mouth and also gave a mouth bite on the left cheek of prosecutrix and he opened the nala of the salwar of prosecutrix with his second hand and thereafter forcibly performed sexual intercourse with prosecutrix without her consent. Prosecutrix raised an alarm, which attracted her father Daya Nand, who was working at the nearby Bhatta and when her father reached near the place of occurrence, accused ran away towards the village on seeing Daya Nand coming to the spot. Daya Nand brought prosecutrix to the Police Station Narnond, where on the statement of prosecutrix, present FIR, Ex.PL, was registered by SI Sher Singh. Investigation started. The prosecutrix was taken to Civil Hospital, Hansi, where she was medico-legally examined. The Investigating Officer prepared rough site plan, recorded the statement of Daya Nand under section 161 of the Code of Criminal Procedure. Subsequently, accused was arrested and he was got medico-legally examined. On completion of necessary formalities, accused was challaned under Sections 376/354 of the Indian Penal Code and sent up for trial.
3. Accused was charge-sheeted under Section 376 of the Indian Penal Code, to which he did not plead guilty and claimed trial.
4. Prosecution, in order to prove its case, examined 11 witnesses, namely, Shri O.P. Verma, JMIC, Hansi (PW-1), Shivdhan Singh, Sub Inspector (PW-2), Suresh Kumar (PW-3), Baldev, Statistical Assistant (PW-4), Rajinder Singh (PW-5), Sher Singh, Sub Inspector/SHO (PW-6), Prosecutrix (PW-7), Daya Nand (PW-8), Dr. R.K. Nandal (PW-9), Dr. Urmil (PW-10) and Om Parkash, Assistant Sub Inspector (PW-11) and closed its evidence.
5. In his statement recorded under section 313 of the Code of Criminal Procedure, accused denied all the allegations levelled against him and pleaded that he has been falsely implicated in the present case on account of previous enmity. However, no evidence in defence was led.
6. I have heard the learned counsel for the parties and have also gone through the record of the case carefully.
7. The prosecutrix, who was aged about 12/13 years, was examined as PW-7 and her father was examined as PW-8. Dr. R.K. Nandal, who medico-legally examined the appellant, stepped into the witness box as PW-9 and another material witness, namely, Dr. Urmil, who medico-legally examined the prosecutrix, was examined as PW-10. The occurrence, in the present case, took place at 3.00 P.M. on 19.2.1991, while prosecutrix was working in the area of village Budana, whereas her father Daya Nand, was working at a distance of 2 killas from the place of occurrence. As per the prosecution version, after cutting barsin crop at 3.00 P.M. appellant Suresh found the prosecutrix all alone and put her on
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