Subli Hajam vs State

Syed Bashir-ud-Din, J.—Accused was tried in session's case 4/82 for offence u/s 376/511 RPC by District and session's Judge Baramulla.

The trial culminated in the conviction of Appellant/accused for the offence vide judgement/order of conviction dated 31-12-1985 and was

sentenced subsequently to undergo two years rigorous imprisonment u/s 376/511 RPC by order of sentence dated 1-1-1986 by the session's

Judge Against this conviction and sentence this criminal Appeal 1/86 is taken to this court.

Shorn of details prosecution case is, that on 28-8-81 Mst. Khati, complainant witness, while busy in collecting grass on her field at a place

called 'Raaj"" nearly a mile away from village aabadi at Inderkote Sonawari Tehsil Sumbal, was approached by appellant/accused for sexual

intercourse which she refused. Accused caught hold of her cheeks and threw her on ground. He attempted to open her trousers. The lady resisted,

but accused persisted in his attempt and put his foot on her chest and in order to remove her trousers she raised an alarm which attracted

prosecution witnesses 3 to 7 to spot on whose arrival accused ran away.

During the struggle she received injuries on her ear, cheeks and other parts of her body. Some of these injuries bleeded profusely and her pinna

of right ear was torn, her clothes were also torn. The accused perperated these acts with the object of committing rape on her which but for her

struggle and resistance did not materialize. All this happened at about 3 PM. The witnesses took her to home. She waited for her husband who

was away. On returun of her husband, he accompanied her to police station. She lodged report at about 9.15 PM. The report was registered as

FIR 204 of 81 at Police Station Sumbal Sonawari. She was referred to local doctor for examination. Injuries report was prepared. Doctor

examined her and injury report/ medical certificate was obtained. Seizure memo of complainant's garments which she wore at the time of ocurance

as also the site plan of occurence was prepared. Statements u/s 161 Cr. P.C of the witneses were recorded. The investigations culminated in

sending up accused for trial u/s 376/511 RPC. The accused was comitted to sessions. The District and Sesions Judge tried accused for charged

offence u/s 376/511 RPC. Accused pleaded not guilty to the charges. Prosecution examined besides complainant/prosecutrix, five witnesses,

though two witnesses including the Doctor, were given up. Accused was examined u/s 342 Cr. P.C and he examined two witneses in defence. The

trial concluded in above conviction and sentence of accused u/s 376/511 RPC.

The conviction and sentence is challenged in this appeal on number of counts. The court is alleged not to have appreciated the evidence

properly. The case is stated to have been decided on sentiments in an unfair and unreasonable manner. The judgement and order of trial court is

alleged to be based not on facts and evidence led in the case. The defence of the accused has not been evaluated in proper context and has been

wrongly brushed aside.

The statement of complaint Mst. Khati is positive in so far as she has categorically stated that while collecting grass on her field, accused who

owned land adjacent to their land, approached her for sexual intercourse, she refused. Accused caught her forcibly. The accused persisted and

threw her down and tore her clothes including her trousers and Pheran. She resisted. Her ears and cheeks received injuries. The injuries bleeded

profusely. She raised alarm. The accused made her naked. As a last resort, she cried for help. Asgar Bhat, Ali Bhat, Qasim Dar witnesses who

were attracted by the noise came on spot and the accused ran away. Her husband was sent for, who accompained her to police Station, where

she lodged FIR. She was referred to hospital for examination. Her Pheran, headwear and shirt were seized. She is mother of five children. The

infant child who was with her on spot ran away when accused assaulted her.

Asgar Bhat, PW 3, Ali Bhat PW 5 and Qasim Dar PW 6 have in their depositions before the sessions court stated that on hearing cries and

alarm calls emenating from the field of the complainant, they went to the spot and found Khati in great distress. Her clothes were torn and she

bleeded from her ear. She was weeping. She told all three witnesses on spot that the accused attempted for sexual intercourse with her, but she

refused. The accused wanted to seduce her. Her resistance and refusal made accused to bounce upon her. He inflicted injuries on her and tore her

clothes. She was in pain and anguish. Some people reached on spot. They did not see accused. It is also in their evidence that they did not spot

accused running from spot with their own eyes. The torn clothes worn by the prosecutrix were seized by police which came on spot next date and

memo was prepared. The memo and seizure of clothes has been deposed.

The investigation officer Ghulam Qadri, Inspector has stated that out of his investigation offence u/s 376/511 RPC is made out against the

accused. He seized the complainant's clothes. The occurance had continued for short time.

It is evident that the statement of Mst. Khati is broadly corroborated by evidence of the witnesses who reached the spot. On the cries of Mst.

Khati, they went there and saw her in anquish, pain and distress. They also saw her clothes torn and found injuries on her. Some of which were

bleeding. Khati did tell them all that happened and that the accused used force to have sexual intercourse with her against her will and attempted to

rape her. The evidence of these witnesses is relevant in terms of Section 7 and 8 of the Evidence Act. Their statements corroborate the testimony

of Khati in material particulars.

The statement of Gula Dar, husband of Khati, PW and Mohd Aalu is also revealing to show that the statement of other witnesses including

Khati about the occurence are fairly corroborated by the testimonies of these two witnesses as well. The statement of Investigating Officer shows

that the occurence of the place and the witnesses were available to reflect the actual occurrence.

The evidence of these prosecution witnesses inspires confidence and appear most natural.

The evidence has been properly and judiciously appreciated. On apprisal of evidence, the court below has applied its mind to the facts and

circumstances of the case in a reasonable and fair manner. The prosecution story is fairly corroborated in material particulars. All the material

witnesses have been examined. The trial court judgement does not appear a whole wrap of sentiments and emotions, so as to imbalance scale of

justice, the defence appears concocted and not genuine.

The most pertinent question to be considered is what offence is made out by the facts and circumstances, as established on record. As

observed above, it is found that one Khati while collecting grass in field was approached by accused an adjacent land owner, who made overtures

towards her. He caught her forcibly. She resisted. However, the accused made her lie on the ground and her clothes were tron and she received

some injuries on her ear and cheeks. Her cloths were torn. However, her trouser was not untied. She raised alarm. Her modesty was outraged

when accused persisted in his nefarious designs, she tried and called for help, which attracted the witness to spot, on whose sight the accused fled

away. It is found from record that the prosecutrix was rescued and taken to hospital. Some medical report was obtained, but however, the report

as per the medical opinion is not brought on record formally. The trial court excluded the medical evidence, as it was not proved under law.

Now the question arises on the facts given what offence is committed by the accused.

In Ahmed Asalt Mirkahan (Cr. Appeal 161/1930 dated 12-6-1930), the facts were that a milkmaid was hawking milk, entered the accused's

house to deliver the milk. The accused chained the door from inside. He removed his clothes and the petiticoat of the girl, picked her up, laid her

on the bed and sat on her chest. He put his hand over her mouth to prevent her crying and placed his private parts against hers. There was no

penetration. The girl struggled and cried and got up to unchain the door and went out. On these facts, the Division Bench of the Bombay High

Court held accused guilt of indecent assault not amounting to a rape.

In State of Madhya Pradesh Vs. Babulal, where the accused jumping over the fence tried to seduce prosecutrix for intercourse, who repelled

his advances. Accused caught hold of her and assaulted her. She was made to lie on the ground forcibly and made naked. The girl's cries attracted

some people who came on spot on whose sight the accused fled away. On these facts, the Madhya Pradesh High Court held that as the accused

did not expose nor attempted to expose his private part and ran away on the sight of the girl's uncle, the offence u/s 354 RPC alone can be said to

be made out.

In Hassan Lone v. State of J & K 2000 SLJ J&K 560), the Ld. Single Judge of this court held that the prosecution having failed to show by

medical or other evidence that the accused was physically/ psychologically potent to commit the act of sexual intercourse, the accused cannot be

held guilty of attempt to rape. Instead he is to be convicted u/s 354 R.P.C.

Having regard to the facts and circumstances of the case, it can be safely concluded that Khati was pursuaded by the adjacent land owner for

sex, she refused, Accused held held her forcibly. He threw her on the ground and tore her clothes. She resisted. She got some injuries on her ear

and cheeks. She raised alarm and her cries attracted the witnesses and the accused fled from the spot. The causing of the injuries by accused on

Khatie's person is not substantaited before the trial court by the evidence of the quality or quantity required under law. Khati though claimed to

have been subjected to medical examination, no such medical evidence has been tendered in the proceedings before the court. Whether accused

was physically and psychologicaly potent enough to commit sexual intercourse is not at all substantiated from the record. It is not even in evidence

that the accused untied the trouser of the victim or his own trouser. In such circumstances, it cannot be said that the accused was determined to

have sexual intercourse at all events and that he was out to gratify his patent lust, come what may, despite the resistance. Higher degree of

determination required for attempt to commit rape, heres is lacking. Unexeptionally she has been assaulted and criminal force has been used

against her to outrage her modesty, an offence punishable u/s 354 RPC. The conviction is accordingly altered from Section 376/511 RPC to 354

RPC.

The next question is, how much punishment would be just and proper in this case. Admittedly, the occurrence has taken place on 28-8-1981

over 19 years back. Accused faced trial and was convicted on 31-12-1985. This Acquittal appeal has been filed in January 1986. The accused

appellant has been under going the agony and pain of facing trial and pursuing the appeal all along over this long span of time. The punishment has

to be informed of this aspect of the matter. The attending circumstances and the life of the case is but to be considered. A lenient view is called for

in punishing the accused/appellant for the offences which he was committed over 19 years back.

It the totality of facts and circumstances of this case, it is just and proper that the accused u/s 354 RPC is sentenced to imprisonment which he

was already undergone and a fine of Rs. 6000/-. In default of payment of fine, the appellant/accused shall undergo further three monts

imprisonment (rigorous). Accused appellant convicted and sentenced accordingly.

The Appeal is accordingly dismissed with the above modification/alteration of conviction and sentence u/s 354 RPC, from conviction and

sentence recorded by the Session Judge u/s 375/511 RPC.