Back
HIGH COURT OF BOMBAY
N.B. SURYAWANSHI, J
Lokesh s/o Kisanlal Suryakar – Appellant
Versus
The State of Maharashtra – Respondent
CRIMINAL APPEAL NO. 362 OF 2012
For the Appellants/Petitioners: Shri Amol Mardikar
For the Respondents: Shri M.K. Pathan, Additional Public Prosecutor
The absence of corroborative evidence led to the dismissal of charges of attempted rape while confirming the conviction for outraging modesty based on witness testimonies.
Headnote:(A) Indian Penal Code, 1860 - Sections 376(2)(f) and 511, Section 354 - Conviction on charges of attempted rape and outraging modesty - The prosecution failed to provide corroborative evidence for the attempt to commit rape; however, it established the charge of outraging modesty due to compelling witness testimonies. (Paras 17, 21)
(B) Evidence - Importance of corroborative evidence in establishing criminal charges - The court emphasized the necessity of supportive medical evidence in cases of serious allegations which were absent in this instance, weakening the prosecution’s case for rape charges. (Paras 19, 21)
Facts of the case:
The appellant was convicted under Section 376(2)(f) read with Section 511 for attempting to commit rape on a three-year-old girl, with evidence suggesting he simply outraged her modesty, leading to a lesser conviction under Section 354.
Findings of Court:
The prosecution's failure to establish a definitive effort to commit rape rendered the higher charges unsustainable; conversely, evidence confirmed that the appellant did outrage the modesty of the victim.
Issues: Whether the evidence sufficiently corroborated the charge of attempted rape and the appropriate conviction under IPC laws.
Ratio Decidendi: The court determined that while there was no evidence of an attempt to commit rape, the evidence substantiated a conviction for outraging modesty instead.
Result: Criminal Appeal partly allowed; the conviction for attempted rape set aside; conviction for outraging modesty upheld, with the sentence reflecting time already served.
| Table of Content |
|---|
| 1. the conviction under section 376(2)(f) was overturned due to insufficient evidence. (Para 1 , 3 , 20) |
| 2. conviction under ipc for attempted sexual offenses. (Para 2) |
| 3. prosecution's burden to demonstrate guilt beyond reasonable doubt. (Para 4) |
| 4. the prosecuting argument hinges on the reliability of witness testimonies. (Para 5 , 6 , 7 , 8) |
| 5. witness testimonials are critical for supporting prosecution claims. (Para 9 , 10 , 11 , 12 , 13) |
| 6. the distinction between attempted rape and outraging modesty was central to the ruling. (Para 17 , 19 , 21) |
| 7. absence of intent or attempt undermines charges of attempted rape. (Para 18) |
| 8. the final verdict adjusted the legal charges based on the evidence. (Para 22) |
ORAL JUDGMENT
1. The appellant assails his conviction under Section 376(2)(f) read with Section 511 of the Indian Penal Code and the sentence of rigorous imprisonment for one year and direction to pay a fne of Rs. 1000/-, in default rigorous imprisonment for one month, in Sessions Trial No. 44/2009, by Additional Sessions Judge, Gondia.
2. The prosecution case in short is that on 05/02/2009 at about 1.30 p.m. the victim girl aged about three years was playing in her house at village Ghattemni. The accused, a neighbour took her to his house on the pretext of giving her buiscuits. He then made her sleep on the cot, removed her knicker and committed rape. The victim after returning back to the house narrated the incident to her grandfather. The report of the incident was lodged by father of the victim at Amgaon Police Station which was registered as Crime No. 15/2009 for the ofences punishable under Sections 354 , 376 (2)(f) of the Indian Penal Code . After conducting investigation, charge-sheet came to be fled in the Sessions Court.
3. Charge for the ofence punishable under Section 376 (2)(f) of the Indian Penal Code was framed against the accused person. He pleaded not guilty. His defence was of total denial. He claimed that there was a land dispute between his family and the family of the victim. The family of the victim constructed a compound wall on the land belonging to his family and therefore, he was falsely implicated. The Trial Court, after recording evidence convicted the accused. Hence, the present appeal.
4. Heard the learned Advocate for the appellant and the learned Additional Public Prosecutor for the State.
5. The learned Advocate for the appellant by taking me through the evidence on record and submitted that the sole testimony of the victim is not reliable in view of admissions given by her. The C.A. report of the semen found on the knicker of the victim is not produced on record. Thus, the prosecution has failed to show the involvement of the appellant in the alleged crime. The medical report does not support the prosecution case. Medical Ofcer was not examined in the Trial Court. Therefore, no charge under Section 376 of the IPC was proved by the prosecution. The prosecution has failed to prove the important ingredients of Section 511 of the IPC i.e. attempt and motive on the part of the appellant. He therefore, submitted that the prosecution has failed to prove the ofence beyond reasonable doubt therefore the appellant is entitled for acquittal.
6. In the alternate, he submitted that without admitting anything on record, even if the prosecution is believed to be true, at the most ofence under Section 354 of the IPC can be said to be made out. In support of his arguments he relied upon following judgments.
1. State of Rajasthan vs. Shri Chand (2015) 11 Supreme Court Cases 229.
2. Aman Kumar and another Vs. State of Haryana AIR 2004 Supreme Court 1497 .
3. Kailash Madhukar Sandase Vs. State of Maharashtra 2009 ALL MR (Cri) 145.
7. On the other hand, the learned Additional Public Prosecutor supported the judgment of the Trial Court contending that the prosecution has proved the charge by leading evidence of PW1 - father of the victim, PW2 - victim and PW4 - grandfather of the victim. He further
