Arali Nagaraj, J.
1. The accused in Sessions Case No. 94/06 on the file of the learned First Addl. Sessions Judge, Mangalore, Dakshina Kannada (Herein after referred to as the 'Trial Court' for short) has challenged in this appeal the judgment and order of conviction and sentence dated 30.10.2008 passed in the said case convicting him for the offence under Section 376 read with Section 511 IPC and sentencing him to undergo RI for a period of 5 years and also to pay fine of Rs. 3000/- with default sentence of RI for a further period of 3 months.
2. Heard the arguments of Sri Manmohan P.N. learned Counsel for the appellant-accused and Sri.Satish R. Girji, learned High Court Government Pleader. Perused the impugned Judgment and Order of conviction and sentence and the entire material in the original records obtained from the Trial Court.
3. On appreciation of the oral evidence of PWs 1 to 17, the documents at Exs.P. 1 to 14 and MO Nos. 1 to 3, the trial Court held the appellant-accused guilty of the offence under Section 376 read with Section 511 of IPC and convicted him for the same. The defence of the accused is one of total denial and therefore, he has not chosen to adduce any evidence nor has he chosen to produce any document on his behalf.
4. Stated in brief, the case of the prosecution as alleged in Ex.P.5 complaint dated 28.4.2006 filed by PW6 Smt. Jayalakshmi - the mother of the victim girl is as under:
(a) On 27.4.2006 at about 6.30 PM, the accused who was familiar to the victim girl (PW 7 Kavyashree) took her from her residence to his residence saying that he would get her chocolate and then he laid her on the bed, bit her chest and did something to her private part. When the girl raised cry, he left her. Immediately after she was left by the accused, the girl returned to her house and informed the said incident to her mother. Her mother found that there was bleeding from her vagina and there were some injuries on her chest.
5. Of the 17 witnesses examined for the prosecution, PW 7 is the victim girl. PW 6 Jayalakshmi is her mother, PW 8 Bhaskar Rao is her father. PW 10 Smt Subasini and PW 11 Smt Nalini are neighbours of the prosecutrix, PW 12 Dr. Karunakar is the Medical Officer who examined her on 28.4.2006. While drawing my attention to the evidence of these witnesses, the learned Counsel for the accused-appellant contends that the Trial Court committed serious error in convicting him for the offence under Section 376 read with Section 511 IPC holding that the accused attempted to commit rape on the victim girl inasmuch as the victim girl has not stated in her evidence that the accused made any attempt to penetrate his private part into her private part. He further contended that the act of the accused in putting his fingers into the private part of the girl, as deposed by her, at best, attracts the penal provisions of Section 354 of IPC and not those of Section 376 read with Section 511 of IPC.
6. Per contra, the learned High Court Government Pleader submits that though the girl has not stated in her evidence that the accused attempted to penetrate his sex organ into that of the girl, evidence of PW 6 Jayalakshmi, PW 8 Bhaskar Rao - the parents of the girl - clearly establishes that immediately after the occurrence of the said incident, the girl informed her that such an attempt was made by the accused on the said date, time and place and hence, the impugned judgment and order of conviction and sentence does not call for interference in this appeal.
7. On careful reading of the averments in Ex.P. 5 complaint filed by PW 6, the mother of the victim girl, it could be seen that there is no averment in the said complaint that the victim girl informed the complainant that the accused tried to penetrate his private part into her private part. As could be seen from the averment in the said complaint, what all is stated therein is that after the accused took the girl to his house, he laid her on the bed and did something to her private part with his hand and bit her chest. PW 7, the victim girl, has stated in her evidence only to this effect. She has not stated anything further that the accused removed his undergarments and then tried to commit sexual intercourse on her. Therefore, though PWs 6 & 8 respectively, the mother and father of the girl have stated in their evidence that the victim girl disclosed before them that the accused inserted his private part into her private part, the same cannot be accepted in view of positive evidence of the girl herself and the averments in the complaint Ex. P. 5.
8. Further PW 12 Dr. Karunakar, the Medical Officer, Community Health Centre, Sulya, has stated in his evidence that on 28.4.2006 at about 6.05 PM, the victim girl was brought to him by her mother Jayalakshmi with a history of sexual assault on her on the previous evening and, on her clinical examination, he did not find any signs of forcible sexual intercourse on her but he found some contusions on both her breasts and some laceration in her vagina with clotting of the blood. This evidence of the Doctor also establishes that there was no attempt to commit sexual intercourse on the girl.
9. If the facts of the instant case are analysed in the light of the above observations of the Hon'ble Supreme Court, it is clear that there was no attempt by the accused herein to commit forcible sexual intercourse on the girl and his act of putting his finger into her vagina constitutes an offence under Section 354 IPC.
10. Learned Counsel for the appellant-accused has relied upon the decision of the Hon'ble Supreme Court in Aman Kumar and Anr. v. State of Haryana reported in : AIR 2004 SC 1497 wherein it is observed at paragraphs 8, 11, 12 and 13 as under:
8. The plea relating to applicability of Section 376 read with Section 511, IPC needs careful consideration. In every crime, there is first, intention to commit, secondly preparation to commit it, thirdly, attempt to commit it. If the third stage, that is, attempt is successful, then the crime is complete. If the attempt fails the crime is not complete, but law punishes the person attempting the act. Section 511 is a general provision dealing with attempts to commit offences not made punishable by other specific sections. It makes punishable all attempts to commit offences punishable with imprisonment and not only those punishable with death. An attempt is made punishable, because every attempt, although it falls short of success, must create alarm, which by itself is an injury, and the moral guilt of the offender is the same as if he had succeeded. Moral guilt must be united to injury in order to justify punishment. As the injury is not as great as if the act had been committed, only half the punishment is awarded.
11. In order to find an accused guilty of an attempt with intent to commit a rape, Court has to be satisfied that the accused, when he laid hold of the prosecutrix, not only desired to gratify his passions upon her person, but that he intended to do so at all events, and notwithstanding any resistance on her part. Indecent assaults are often magnified into attempts at rape. In order to come to a conclusion that the conduct of the accused was indicative of a determination to gratify his passion at all events, and in spite of all resistance, materials must exist. Surrounding circumstances many times throw beacon light on that aspect.
12. Though the prosecutrix's version in Court was of rape, when it is compared with the one given during investigation, certain irreconcilable discrepancies are noticed. The evidence regarding actual commission of rape is at variance from what was recorded by police during evidence. The evidence of PW-11, the father who according to prosecution made departure from what he allegedly stated during investigation is to the effect that his wife PW-9 told her that the prosecutrix was teased by the accused persons. Merely because he was termed as a hostile witness his entire evidence does not get effected. Significantly, the evidence of prosecutrix and the doctor does not specifically refer to penetration which is sine qua non for the offence of rape.
13. There is no material to show that the accused were determined to have sexual intercourse in all events. In the aforesaid background, the offence cannot be said to be an attempt to commit rape to attract culpability under Section 376/511, I.P.C. But the case is certainly one of indecent assault upon a woman. Essential ingredients of the offence punishable under Section 354, I.P.C. are that the person assaulted must be a woman, and the accused must have used criminal force on her intending thereby to outrage her modesty. What constitutes an outrage to female modesty is nowhere defined. The essence of a woman's modesty is her sex. The culpable intention of the accused is the crux of the matter. The reaction of the woman is very relevant, but its absence is not always decisive. Modesty in this Section is an attribute associated with female human beings as a class. It is a virtue which attaches to a female owing to her sex. The act of pulling a woman, removing her dress coupled with a request for sexual intercourse, is such as would be an outrage to the modesty of a woman, and knowledge that modesty is likely to be outraged, is sufficient to constitute the offence without any deliberate intention having such outrage alone for its object. As indicated above, the word 'modesty' is not defined in IPC. The Shorter Oxford Dictionary (Third Edn.) defines the word 'modesty' in relation to woman as follows:
Decorous in manner and conduct; not forward or lowe; Shame-fast; Scrupulously chast.
11. Therefore, following the above decision of Hon'ble Supreme Court, I am of the considered opinion that the Trial Court was not justified in convicting the accused-appellant for the offence under Section 376 read with Section 511 of IPC. However, the appellant-accused deserves to be convicted for the offence under Section 354 IPC.
Hence, the following:
ORDER
The present appeal is allowed in part. The impugned Judgment and Order of conviction and sentence dated 30.10.2008 passed in Sessions Case No. 94/06 on the file of the learned I Addl. Sessions Judge, Mangalore, Dakshina Kannada is hereby set-aside. The accused-appellant is hereby acquitted of the offence under Section 376 read with Section 511 of IPC. However, he is convicted for the offence under Section 354 IPC and sentenced to undergo RI for a period of one year and also to pay fine of Rs. 10,000/-, in default to undergo RI for a further period of 3 months.
If the fine is paid by the accused, the same shall be paid to PW7 Kum. Kavyashree, the daughter of PWs 6 and 8. The said amount shall be deposited in the name of the said minor girl with any nationalised bank of the choice of her parents for the period of her minority. A copy of operative portion of this Judgement shall be sent forthwith to the Trial Court for information and compliance.