Judgment:
:
1. Both these appeal and revision are preferred challenging the judgment and order dated 6.7.1996 passed by the learned Additional Sessions Judge, Kolhapur in Sessions Case No.49 of 1996 whereby the learned trial Judge convicted the accused for the offence punishable under Section 376 read with Section 511 of Indian Penal Code and directed the accused to suffer S.I. for one year and fine of Rs.300/ in default S.I. for one month. By the said order, considering the age of the accused, he was directed to be released under Section 360 of Cr.P.C. on giving a bond of good behaviour of one year in the sum of Rs.5000/ with a surety in the like amount.
2. While the appellant in Criminal Appeal No.506 of 1996 challenges his conviction under Section 376 read with Section 511 of Indian Penal Code, the revision petitioner in Criminal Revision Application No.29 of 1997 contended that the sentence imposed was inadequate considering the nature of offence held as proved by the learned trial Judge.
3. Briefly stated the case of the prosecution is that : first informant Parvatibai Yadav and the accused are resident of village Sonarwadi and used to reside in that village when the incident occurred. The first informant was residing with her daughterinlaw, granddaughter and her two sons. Victim Ujwala is the grand daughter of first informant who was aged about nine years at the time of the incident. It is case of the prosecution that on 27.10.1995 while Ujwala was playing with her sister Jyoti and her friend Rani in the afternoon in front of the house of the accused. At about 3:00 p.m. Jyoti had returned to the house complaining that their play was disturbed by the accused who had driven away Jyoti and Rani and taken away Ujwala in his house. The first informant immediately went to the house of the accused. According to her, she had found accused and her granddaughter Ujwala in the kitchen while nicker of Ujwala was removed and she was lying on the ground. Accused was found sleeping over her trying to have intercourse with her. When first informant reached, the accused had got up. Thereafter the victim was taken away by the first informant back to her house. In the evening time, a complaint was lodged with the police.
4. The investigation followed. Accused was chargesheeted. Considering the nature of accusation, the case was committed to the Court of Session and the charge was framed to which the accused pleaded not guilty and claimed to be tried.
5. Prosecution had examined three witnesses to prove its case against the accused. The alleged victim Ujwala was examined as PW1. According to Ujwala, the accused caused her to sleep on the ground facing to sky and then he removed her nicker and slept on her. She received some pains in her private part and when she started crying, accused pressed her mouth with the hand. He had got up after he saw her grandmother coming in the house of the accused. The victim was crossexamined regarding the incident. She denied that her mother and grandmother tutored her to give the statement against the accused. Although, she stated that she had received pains in her vagina when the accused slept over her, she admitted that word 'vagina' was not appearing in the statement before the police.
6. PW2 Parvati Yadav (first informant) deposed about the incident that Jyoti came to house weeping and said her that she was beaten by the accused. When Parvati went to the house of the accused, she found Ujwala sleeping on the floor and accused was lying over her. She then took her granddaughter to her house along with the nicker of her granddaughter which according to her was removed by the accused. In the course of examinationinchief of PW2 nothing appears as to whether the accused was doing anything which may legally constitute an attempt to commit rape. According to the learned Advocate for the appellant, it may be at the most a stage of preparation and not an attempt. Learned Advocate for the appellant contended that the alleged victim Ujwala was medically examined on the same day of the incident at about 9:45 p.m.. The certificate which appeared at Exh.16, as admitted by the defence counsel, clearly mentions that there were no marks of violence. No signs of bleeding. Her hymen was found intact. Pubic hair was absent. Under these circumstances, it is contended that there was no attempt to commit rape and, therefore, the appellant is entitled for an order of acquittal. The learned Advocate for the appellant further contended that the prosecution has also failed to examine mother of the victim girl.
7. As against this submission, the learned A.P . submitted that .P the act committed by the appellant to remove the nicker of the victim and to lie over her was serious act and can be considered as constituting an attempt to sexually ravish a minor girl aged nine years.
8. I have also heard the learned Advocate for revision petitioner in support of Criminal Revision Application No.29 of 1997. Learned Advocate for the revision petitioner contended that the sentence imposed against the appellant was inadequate considering the nature of offence as proved. It is submitted that benefit of Section 360 of Cr.P ought not to have been granted in favour of the accused. .C. According to the learned Advocate for the revision petitioner, the impugned order needs to be modified so as to impose legal and proper sentence upon the accused for the offence punishable under Section 376 read with Section 511 of I.P.C.
9. Considered the submissions at bar and considered the nature of evidence led before the trial Court. Looking to the evidence led in this case, it is necessary to find out as to whether the alleged act of the accused clearly constituted an attempt to commit rape or it was merely indecent sexual assault which may be punishable under Section 354 of I.P.C.
10. In the ruling of State of Maharashtra v. Mohd. Yakub and Ors. reported in AIR 1980 S.C. 1111, the Apex Court considered the definition of `attempt to commit crime' as the last proximate act which a person does towards the commission of an offence, the consummation of the offence being hindered by circumstances beyond his control. It was observed by the Apex Court that what constitutes an "attempt" is a mixed question of law and fact, depending largely on the circumstances of the particular case. "Attempt" defies a precise and exact definition. Broadly speaking, all crimes which consist of the commission of affirmative acts are preceded by some covert or overt conduct which may be divided into three stages. The first stage exists when the culprit first entertains the idea or intention to commit an offence. In the second stage, he makes preparations to commit it. The third stage is reached when the culprit takes deliberate overt steps to commit the offence. Such overt act or step in order to be `criminal' need not be the penultimate act towards the commission of the offence. It is sufficient if such act or acts were deliberately done, and manifest a clear intention to commit the offence aimed, being reasonably proximate to the consummation of the offence.
11. There is a distinction between `preparation' and `attempt'. Attempt begins where preparation ends. A person commits the offence of attempt to commit a particular offence when accused (i) intends to commit a particular offence, (ii) he having made preparation and with the intention to commit an offence, (iii) does an act towards its commission, such an act need not be the penultimate act towards the commission of that offence but must be an act during the course of committing that offence.
12. In para31 of the Mohd. Yakub's case (supra), the Apex Court observed thus :
"31. ...... In order to constitute `an attempt' first, there must be an intention to commit a particular offence, second, some act must have been done which would necessarily have to be done towards the commission of the offence, and, third, such act must be proximate' to the intended result. The measure of proximity is not in relation to time and action but in relation to intention. In other words, the act must reveal, with reasonable certainty, in conjunction with other facts and circumstances and not necessarily in isolation an intention, as distinguished from a mere desire or object, to commit the particular offence, though the act by itself may be merely suggestive or indicative of such intention, but that it must be, that is, it must be indicative or suggestive of the intention. .........."
13. In a case of rape, rape is committed when male organ penetrates, at least partial, the female organ. In between complete rape and attempt to commit rape there is a rear area covered by Section 354 of I.P i.e. assault or criminal force to woman with .C. intent to outrage her modesty or indecent assault. The dividing line between attempt to commit rape and indecent assault is not only thin but also is practically invisible. For an offence of attempt to commit rape, prosecution is required to establish that the act of the accused went beyond the stage of preparation. In a given case, where the prosecutrix was made naked and her cries attracted her uncle who came to the spot and then the accused fled away, it was held that it was not a case of attempt to commit rape but was one under Section 354 of I.P [State of Madhya Pradesh v. Babulal, A.I.R. 1960 .C. M.P. 155].
14. The medical evidence in the present case do not indicate as to whether the accused has tried to force his penis inside the private part of the girl but could not succeed. Evidence of PW2 Parvati Yadav before the Court, in para3 of her deposition, indicate that when she went there (in the house of the accused), she found Ujwala sleeping on the floor and the accused was lying on her. Nothing appears to have been stated beyond this by Parvati except that nicker which was removed was brought back by her along with grand daughter to her house.
15. Under these circumstances, it must be held that the offence committed by the accused did not amount to attempt to commit rape punishable under Section 376 read with Section 511 of I.P but, .C., was one under Section 354 of I.P.C.. Therefore, the appeal has been partly allowed by convicting the appellant/accused for minor offence under Section 354 of I.P.C..
16. The next question is about the sentence to be imposed for the offence punishable under Section 354 of I.P.C.. Section 354 of I.P.C. which relates to assault or criminal force to woman with intent to outrage her modesty is punishable with imprisonment to the extent of two years, or with fine, or with both. When the accused removed the nicker of the girl with a view to commit sexual intercourse, it does amount to outrage of modesty and knowledge that her modesty was likely to be outraged. Such an act do constitute the offence punishable under Section 354 of I.P.C. as is committed by the accused in the present case. Considering that the appeal is partly allowed by reducing the penal liability of the accused to that under Section 354 of I.P instead of 376 read with 511 of I.P I think the lesser .C. .C., sentence which has been imposed by the trial Court i.e. accused to suffer S.I. for one year and fine of Rs.300/ in default S.I. for one month, with further direction for his release under Section 360 of Cr.P.C. on giving a bond of good behaviour of one year in the sum of Rs.5000/ with a surety in the like amount, would meet the ends of justice.
17. In the result, therefore, appeal is partly allowed. The order of conviction and sentence recorded by the learned Additional Sessions Judge, Kolhapur dated 6.7.1996 in Sessions Case No.49 of 1996 against the appellant for the offence punishable under Section 376 read with Section 511 of I.P.C. set aside and modified . Instead, the appellant is convicted for the offence punishable under Section 354 of I.P The impugned order regarding the conditional release and .C.. punishment, however as directed by the trial court is maintained. R & P be sent back to the trial Court. Both Criminal Appeal and Criminal Revision Application are disposed of accordingly.