Surinder Singh, J.
1. The appellant was convicted by the learned Additional Sessions Judge (Fast Track Court Kangra at Dharamshala) under Section 376 read with Sections 511 and 354 of the Indian Penal Code. However, he was sentenced only for the major offence i.e. attempt to commit rape, to simple imprisonment for five years and to pay fine of Rs. 50,000/- if realized, to be paid as compensation to the victim. In default of payment of fine, he was further sentenced to undergo simple imprisonment for one year.
2. The appellant, felt aggrieved and dissatisfied by the impugned judgment of conviction and sentence, thus filed the instant appeal, through Jail on the grounds that the learned trial court did not appreciate the evidence on record in its right perspective and further that no injury marks were found on the person of the prosecutrix and there is nothing on record to conclude that the appellant committed the offence of rape.
3. In short, the prosecution story on which the appellant was put on trial was, the grand mother of the prosecutrix was serving as Class IV employee in the Army Station Head quarter at Yol Cantt. She was living with her family in the Government quarters nearby. The Appellant was working in the Army-mess. He was residing in the vicinity. On 25.1.2007 at about 3.30 p.m. the minor prosecutrix, (5 years) , was playing in the compound outside her residence, she told her mother PW2 Monika that she would like to see her grand mother and would come after some time. Monika went inside her room and started watching the Television, her husband was taking rest. The prosecutrix did not return for about ten minutes. Monika went outside and started looking for her daughter in the back side of their residence. When she did not find the prosecutrix there, she started shouting and searching for her. In the meantime, Tek Chand her brother-in-law also came there. They saw the prosecutrix coming from the side of the dilapidated Government quarters, where there were bushes, she was weeping and looked scared. PW2 took the prosecutrix inside the room and awakened her husband. They asked the prosecutrix as to what had happened. She told them that the appellant had taken her towards the dilapidated quarters near bushes and took off her 'pajamai, thereafter started sucking her private part and then put off his pant and started striking his male organ against her vagina and put it into her mouth. She had vomited twice on the spot. In the meantime, the appellant heard the calls of her mother and the appellant ran away from the spot. Thereafter, parents of the prosecutrix along with Tek Chand, uncle of the prosecutrix searched for the appellant. After some time, from somewhere Tek Chand brought the appellant to the house of the complainant. They inquired from him about the incident. The appellant was given beatings by them and was handed over to the police. Police recorded the statement (Ex.PW1/A) of the mother of the prosecutrix, on the basis of which FIR Ex.PW5/A was registered.
4. The prosecutrix was got medically examined on the same day from Dr. Kalpana Negi (PW4). On the local examination, the Doctor found no pubic hair or foreign hair present over the mons and genital areas. Labia majora was normal (pre pubertal). Labia minora were fused. Swabs from mouth, throat, external genetalia and introlitus, slides from forchette and labia were taken for forensic examination. High Vaginal swabs could not be taken because of labial adhesion and the prosecutrix was referred to Gynecologist, for labial separation. On clinical examination, the Doctor opined that the possibility of molestation could not be ruled out. She issued the Medico-legal-certificate Ex.PW4/B. After perusing the report Ex.PA, the Doctor further gave the opinion Ex.PW4/C that possibility of sexual molestation could not be ruled out.
5. The appellant was arrested and was medically examined on the same day at about 11 p.m. There were six injuries on his person, which were simple in nature. His clothes were also taken into possession, which were sealed for further examination. Sensation was noticed present on glans, scrotum and penis (base). In the opinion of the Doctor, the prosecutrix (appellant) was found capable of performing sexual intercourse and to this effect, Dr. Atul Gupta issued the M.L.C.Ex.PWl1/B.
6. Police also took photographs Ex.PW12/ Al to Ex.PW12/A7 of the spot from different angles. Vomittance, found on the spot on the stones Ex.P1 and Ex.P2 was also taken into possession and sent for chemical examination. Dry leaves, including small stones, were also taken into possession by the police vide seizure memo Ex.PW3/A in the presence of witnesses Sanjay and Surjit, which were sent for chemical examination.
7. Police prepared the site plan Ex.PW 13/C. Statements of the witnesses were recorded and after completing the investigation, a case was presented in the court for trial of the appellant.
8. The appellant was charge-sheeted, to which he pleaded not guilty and claimed trial.
9. To prove its case, the prosecution examined its witnesses. The appellant was also examined under Section 313 of the Code of Criminal Procedure. According to him, he did not know the victim. However, he along with his father was staying in a house nearer to the house of the victim. Against that, his mother had complained to the Army Headquarter, on account of which the parents of the victim as well as their grand mother were inimically disposed of towards him and a false case was foisted against him. Further that he was called by Tek Chand, uncle of the prosecutrix, from a distance of about 200 mtrs. while he was going to attend his duty. He was caught hold from his neck and slaps were given by one Sanjay thereafter took him inside the room and started giving beatings to him. On the arrival of the Army police, they started levelling false allegations and a false case was planted against him.
10. The appellant was called upon to enter into his defence, he examined DW1 Davinder Kumar to prove that on 13.1.2007, prior to the incident the appellant was given beatings by Tek Chand & Sanjay.
11. The learned trial court on appraisal of the entire evidence on record, found the appellant guilty of the offence, as such he was convicted and sentenced as aforesaid, which has been assailed in this appeal.
12. Since the appellant is in jail and unrepresented, Shri Tara Singh Chauhan, Advocate, was appointed as Legal Aid Counsel, under the H.P. State Legal Services Authority Regulations, 1996, to represent the appellant, in terms of the orders of this Court passed on 8.10.2007.
13. Shri Tara Singh Chauhan, learned Counsel for the appellant has taken pains to point out the discrepancies in the prosecution case and led me through the evidence on record and submitted that from the statement of the victim and other evidence the case of attempt to rape is not made out.
14. Contra, Shri J.S. Guleria, learned Law Officer has supported the impugned judgment of conviction and sentence.
15. To appreciate the rival contentions of the learned Counsel for the parties, I have reappraised and reassessed the evidence on record carefully.
16. It shall be relevant here to give a brief resume of the prosecution evidence. Admittedly, prosecutrix is a child aged about five years, on the day of the alleged incident. The, prosecutrix (PW2) in her statement has categorically stated that when she went to see her grand mother in the back side of their house, she found the appellant present there, who took her on the back side of the building and opened her Pajami and placed his male organ on her private part, thereafter put it into her mouth, on account of which she vomited twice. On hearing the calls of her mother, appellant fled away through the window.
17. In her cross-examination she has stated that she was asked to make the above statement and tell the truth by her parents. She further stated that the appellant had only put his private organ into her mouth and nothing else was done by him.
18. PW1 Ms. Monika, mother of the victim, has stated that on 25.1.2007 her daughter, aged about five years, at about 3.45 p.m. was playing in the courtyard of her quarter and she (PW1) was watching the television. When she did not turn up, she shouted for her daughter, and after about 8-9 minutes the prosecutrix turned up from the side of the bushes, in the meantime Tek Chand, uncle of the prosecutrix, also came there. She looked scared. She was taken by them inside the room and woke up her father, who was sleeping and the parents enquired from her as to what had happened. The prosecutrix disclosed that the appellant took her to nearby dilapidated room towards the bushes, where the appellant put off her clothes and placed his male organ in her mouth on account of which she vomited twice, thereafter, the appellant, put his male organ on her private part. The witness has further stated that when her daughter wanted to call her, the appellant gagged her mouth. The prosecutrix further told them that on hearing the calls of her mother, the appellant fled away from the spot and went towards the bushes. Thereafter, her husband informed the police and the prosecutrix was got medically examined. She proved her statement Ex.PWl/A, recorded by the police under Section 154 of the Code of Criminal Procedure.
19. In the cross-examination PW2 denied that 10-15 days prior to the alleged incident, her husband and Tek Chand had given beatings to the appellant-accused at Brigade Bazar and also denied that they owed some money to the appellant. She also denied that general allegations were made by the appellant against her husband and his brother Tek Chand committing of theft etc. She also denied that her husband and Tek Chand remained in police custody for being under intoxication on 10.6.2007. The witness has further stated that her daughter was able to explain everything whatsoever asked from her. According to her, prosecutrix informed her regarding having put off her clothes and thereafter putting into her mouth his male organ and then placed on her vagina by the accused. She admitted that the appellant was beaten up and whatever he revealed was also recorded and the police had asked them to preserve the recording. She also admitted that all the relatives had assembled there and the police was called. The witness has further stated that the parents of the appellant were also called but they did not turn up. She denied the suggestion that her statement was recorded after due deliberation and consultations to implicate the appellant.
20. PW3 Surjit came to the spot, on receiving the telephonic call from his son-in-law Sanjay, who informed that rape has been committed with a minor girl. When he reached the house of Sanjay he saw that a quarrel was going on between appellant and Sanjay and others. On inquiry he was informed that the prosecutrix was taken by the appellant towards the back side of the room, which was in a dilapidated condition, where she was undressed and the appellant put off his pant and thereafter asked her to suck his male organ. He also enquired from the mother of the victim about the incident. However, he pacified and advised them to call the police. Police officials visited the place of occurrence and took the appellant into custody. The police also took some dry leaves, stones and vomit into possession in his presence vide seizure memo Ex.PW3/A, which bears his signatures.
21. In the cross-examination he has stated that the appellant was given beatings and his disclosure was being tape recorded but he denied that he along with complainant party concocted a false story against the appellant.
22. PW4 Dr. Kalpana Negi examined the prosecutrix on 25.1.2007 at 10 p.m. On examination, she found that menarche had not been attained yet and secondary sexual characters were not developed, vitals were stable. She also conducted her local examination as stated supra.
23. At the time of medical examination, the prosecutrix was found scared and uncomfortable, therefore, on 26.1.2007 in the morning she was re-examined and her labial fusion was separated manually with the consent of her parents and she issued the M.L.C. Ex.PW4/B. After perusing the report of F.S.L. Ex.PA she gave the final opinion that possibility of sexual molestation could not be ruled out. Doctor further stated that she gave the opinion, on the basis of the history explained to her but no physical evidence was available regarding sexual molestation.
24. PW13 ASI Gita Parkash is the Investigating Officer. He denied the suggestion that the case against the appellant was got registered on mistaken identity. Other witnesses of the prosecution are formal.
25. DW1 Devender Kumar is a labourer. According to him, on 13.1.2007 Tek Chand, the elder brother of Sanjay, was administering beating to appellant. He intervened and separated them. But regarding the said incident the appellant has not stated anything in his defence under Section 313 of the Code of Criminal Procedure, however, a question was asked from PW1, the mother of the prosecutrix that Tek Chand and her husband had given beatings to the appellant 10-15 days prior to the incident, to which she denied.
26. I have carefully examined the aforesaid evidence. On scanning the evidence it emerges that the prosecutrix was sexually molested by the appellant as alleged.
27. In Koppula Venkat Rao v. State of Andhra Pradesh : 2004CriLJ1804 Dr. Justice Arijit Pasayat speaking for the court held:
10. An attempt to commit an offence is an act, or a series of acts, which leads inevitably to the commission of the offence, unless something, which the doer of the act neither foresaw nor intended, happens to prevent this. An attempt may be described to be an act done in part execution of a criminal design, amounting to more than mere preparation, but falling short of actual consummation, and, possessing, except for failure to consummate, all the elements of the substantive crime. In other words, an attempt consists in it the intent to commit a crime, falling short of, its actual commission or consummation/completion. It may consequently be defined as that which if not prevented would have resulted in the full consummation of the act attempted. The illustrations given in Section 511 clearly show the legislative intention to make a difference between the cases of a mere preparation and an attempt.
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 attempt 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. The sine-qua-non of the offence of rape is penetration, and not ejaculation. Ejaculation without penetration constitutes an attempt to commit rape and not actual rape. Definition of 'rape' as contained in Section 375 I.P.C. refers to 'sexual intercourse' and the explanation appended to the section provides that penetration is sufficient to constitute the. sexual intercourse necessary to the offence of rape. Intercourse means sexual connection. In the instant case that connection has not been established. Courts below were not correct in their view.
28. In the case in hand when the evidence of the prosecutrix coupled with the statement of her mother is considered in proper perspective, it becomes clear, though the commission of rape does not stand established, but their evidence is enough to prove the offence of attempt of rape. In fact an attempt to commit an offence can be said to begin when the preparations are complete and culprit commences to do something with the intention of committing the offence and which is a step towards the commission of the offence. The moment he commences to do an act with the necessary intention, he commences his attempt to commit the offence. This is what exactly provisions of Section 511 IPC require. Appellant in this case, has made preparations, his preparations were complete when he had put off his pant and took out his male organ in order to fulfill his lust, he put his male organ into the mouth of the prosecutrix and then struck against her private part or vice versa the appellant had commenced his act and it was subjected towards the commission of offence, but in the meantime he was interrupted by the calls of the mother of the prosecutrix and fled away from the spot. Thus, series of acts inevitably leads to the commission of the offence which the appellant neither foresaw nor intended, happens to prevent this. Therefore, for the circumstances explained above, there is no escape but to hold the appellant guilty of the offence of attempt to rape and outraging the modesty of the prosecutrix.
29. Accordingly, I uphold the findings of guilt and substantive sentence passed by the learned trial court for the commission of the main offence.
30. In so far as the sentence of fine is concerned, it appears to be too excessive, therefore, it is reduced to Rs. 10,000/- (Rs. Ten Thousand) instead of Rs. 50,000/-. In default of payment of fine, the appellant is to further undergo simple imprisonment for a period of six months. Accordingly, the sentence is modified. The appeal sans merit and is dismissed.
31. The fine, if realized, shall be paid to the minor through her mother.
The learned trial court shall send a modified warrant to the jail in terms with this judgment.
Records of the trial court be returned forthwith.