Yash Pal vs State of Haryana

V.S. Aggarwal, J.

This is an appeal filed by Yash Pal (hereinafter described as `the appellant'') directed against the judgment and the order of sentence passed by the learned Additional Sessions Judge, Ambala dated 24.11.1986 and 25.11.1986 respectively. By virtue of the impugned judgment, the learned trial court held the appellant guilty of the offence punishable under Sections 376/511/342 and 506 IPC. By the subsequent order of sentence, the learned trial court sentenced the appellant to undergo rigorous imprisonment for one year for the offence punishable under Sections 376/511 IPC and a fine of Rs. 1,000/. In default of payment of fine, he was to undergo further rigorous imprisonment for 3 months. For the offence punishable under Section 342 IPC, the appellant was sentenced to undergo rigorous imprisonment for 3 months and to pay a fine of Rs. 200/. In default of payment of fine, he was to undergo further rigorous imprisonment for one month. Lastly, with respect to the offence punishable under Section 506 IPC, the appellant was sentenced to undergo 3 months rigorous imprisonment and a fine of Rs. 200/. In default of payment of fine, he was to undergo further rigorous imprisonment for one month. All the sentences were directed to run concurrently.

The facts of the prosecution case are that Suman Bala is the prosecutrix. In August, 1983 she was studying in 9th class in Daya Nand High School. Her father worked as a contractor at Panipat. On 22.8.1983 she was standing in front of her house. The appellant lives in the house opposite that of Suman Bala. The appellant came and told Suman Bala that his sisterinlaw (Bhabi) was calling her. Suman Bala accompanied him. When she entered the room, the appellant locked the door from inside. She was threatened that if she raised alarm, she would be killed. The appellant forcibly put her on the bed, undressed her and committed rape. She started bleeding. When she managed to put his hand away from her mouth Suman Bala again cried. Krishan Lal came to the spot and knocked at the door. At this appellant left Suman Bala and put on his clothes. He opened the door, pushed away Krishan Lal and ran away.

Suman Bala went to her house and told everything to her mother Ram Bai. Mother of Suman Bala in turn informed her husband on telephone who was at Panipat. Prem Dass father of Suman Bala came to Ambala. Thereupon he took Suman Bala to the police station where the first information report was recorded.

Lady Dr. Sudha Sharma examined Suman Bala. She found that secondary sex character was developed and further recorded :

"There was no mark of injury on labia majora, minora and forchette. The hymen was fumbriated with numerous notches and hardly admitted little finger. The admission of little finger was painful. There was no sign of inflammation/discharge/bleeding per vagina. Pubic hair were not matted. The farchette and posterior commissure were intact. There were no stain marks on the thighs and perinnum."

In the opinion of Dr. Sudha Sharma, there was no sexual intercourse on the person of the prosecutrix.

Inspector Ram Kishan had recorded the statement of the prosecutrix and got her medically examined. He had visited the place of occurrence and prepared the rough site plan. He had taken into possession the clothes of the prosecutrix, converted them into sealed parcel and recovered vide recovery memo Ex.PC. It is on these broad facts that the prosecution submitted the report under Section 173, Code of Criminal Procedure.

The learned trial court framed charge against the appellant with respect to offences punishable under Sections 376/354/342 and 506 IPC. In support of its case the prosecution had examined six witnesses which include Dr. Sudha Sharma PW1 who examined the prosecutrix, Prem Dass PW2 father of the prosecutrix, Suman Bala PW3 the prosecutrix and Ram Bai PW6 mother of the prosecutrix.

After the prosecution had closed its evidence, all the incriminating evidence appearing against the appellant was put to him in the form of different questions. He denied the allegations of the prosecution. The precise defence put forward by the appellant was that he has falsely been implicated because he had refused to marry the niece of the mother of the prosecutrix. In this regard the appellant had stated :

"Suman Bala''s mother nursed a grudge against me, because she offered to engage her niece with me. Her niece resided at village Sohana district Ambala. I told her that I did not want to marry in their illreputed family. She flew into rage and said that she will see how I could marry any other girl and that she will tell me who is illreputed. After that there was also a dispute between their children and my brother''s children. Suman Bala had beaten my nephews. I asked her as to why she was beating our children. She also quarrelled with me and I brought my children to my house. The glasses of the window of my house are such that nobody can see in the room from outside. This is a false case against me. I am innocent."

In defence the appellant had examined Ram Kishan Saini DW1. He is a retired Inspector and has testified that he has recorded the statement of Ram Bai correctly without any addition or omitting anything.

The learned trial court held that Suman Bala had not been raped but there was an attempt to rape her. Believing the version of Dr. Sudha Sharma and reading the same with that of the prosecutrix, the trial court concluded that appellant is guilty of the offence punishable under Sections 376/511 IPC. The learned Additional Sessions Judge further held the appellant guilty of the offences punishable under Sections 342 and 506 IPC. With these findings, the impugned judgment was passed followed by the order of sentence already referred to above. Hence, the present appeal.

Pertaining to the age of the prosecutrix, the learned counsel urged that there is no skiagram that was examined to determine the age of the prosecutrix nor any school certificate or birth certificate is forthcoming to permit the court to conclude that prosecutrix was below the age of 16 years at the relevant time. According to him it must, therefore, follow that prosecutrix was above 16 years of age.

In the present case indeed such evidence which could have been more conclusive in nature has not been produced. There is no birth certificate produced so as to show that she was below the age of 16 years at the relevant time when the present incident took place. The evidence on the record primarily is oral in nature. Prem Dass father of the prosecutrix appeared as PW2 and stated that Suman Bala was born in the year 1968. He did not remember the month in which she was born. Suman Bala gave her date of birth as 9.3.1969 and denied during crossexamination that she was more than 18 years of age. Indeed this oral evidence cannot be believed or acted upon particularly when better evidence could be made available. Even if there was no birth entry available, the prosecutrix could be examined radiologically to determine her approximate age. Her school certificate even could be a pointer towards the age of the prosecutrix. In the absence of the better evidence being not produced, it must follow that prosecution had failed to prove the age of the prosecutrix.

Despite it being so held it does not necessarily imply that offence punishable under Sections 376/511 IPC would not be attracted. Under Section 375 IPC, if a person has committed sexual intercourse with a woman without her consent, it would be rape and in that event the consent becomes immaterial.

With respect to the main incident it was the prosecution case that Krishan Lal had heard the noise of Suman Bala. He knocked the door. Thereon the appellant put on his clothes and had made good his escape. Learned counsel for the appellant had highlighted the fact that said Krishan Lal had not been examined and adverse inference should be drawn. However, the record shows that on 12.9.1986 the Public Prosecutor had given up Krishan Lal because he had been won over by the appellant. When such is the situation, no adverse inference could be drawn for not examining Krishan Lal as a witness. It cannot be termed that he was withheld by the prosecution despite being a material witness.

Suman Bala appeared as PW3. She made a categorical statement about what had transpired. The prosecutrix deposed that she was standing on the gate of her house. The appellant told her that his Bhabi was calling her. She went to the house of the appellant. She had earlier been visiting the Bhabi of the appellant. The appellant bolted the door, threw her on the bed and threatened that if she raised an alarm, she would be killed. He tried to undress her. Thereafter removing her salwar he committed rape on her. She had raised an alarm when Krishan Lal knocked at the door. In this regard pertaining to the fact that she was raped, the question asked and answer given reads :

"Q. When you were thrown on the bed by the accused, what kind of act he did with you ?

A. She has started weeping and is not replying for a long time. He committed rape with me, what a man does with a lady. He did it forcibly."

During crossexamination the witness stated that she did not receive any injury on her mouth.

Relying on the said statement of the prosecutrix, it was vehemently urged that it clearly establishes that the prosecutrix has not been raped because lady Dr. Sudha Sharma PW1 even found that she had not been raped.

So far as the controversy that the prosecutrix had not been raped, Dr. Sudha Sharma has categorically stated in this regard that she had not undergone any sexual intercourse. In face of the categorical statement of Dr. Sudha Sharma, the findings of the trial court must be endorsed that prosecutrix Suman Bala had not been raped.

However, the appellant''s learned counsel wanted to take advantage of the fact that Suman Bala prosecutrix was making an incorrect statement when she insisted that she was raped and that she was bleeding from her private part. He further contended that at best it could only be taken that offence under Section 354 IPC was drawn. There was not even an attempt to rape her.

At the outset, so far as the statement of prosecutrix Suman Bala PW3 concerning the statement that she was raped is concerned, it has to be appreciated in light of the facts that it was a statement made by an innocent person. By no stretch of imagination it can be taken that she would put her own chastity to trial because her mother wanted to take revenge from the appellant. The defence of the appellant in this regard appears to be false. The facts show that the appellant had placed Suman Bala on the bed, undressed and thereupon even had undressed himself. In these circumstances, can it be held that it was attempt to rape the prosecutrix or not ? Section 511 of the Indian Penal Code refers to attempt to commit offences and reads :

"511. Punishment for attempting to commit offences punishable with imprisonment for life or other imprisonment. Whoever attempts to commit an offence punishable by this Code with (imprisonment for life) or imprisonment, or to cause such an offence to be committed, and in such attempt does any act towards the commission of the offence, shall, where no express provision is made by this Code for the punishment of such attempt, be punished with (imprisonment of any description provided for the offence, for a term which may extend to onehalf of the imprisonment for life or, as the case may be, onehalf of the longest term of imprisonment provided for that offence), or with such fine as is provided for the offence, or with both."

It is obvious from perusal of Section 511 IPC, reproduced above that when a person does an act towards the commission of the offence and attempts to commit the offence, it is taken as to commit the offence. The attention of the Court has been drawn towards the decision of Lahore High Court in the case Bhartu v. Emperor, AIR 1933 Lahore 1002. In the cited case the accused had thrown the girl on the ground and had put sand in her mouth. He was prevented from doing sexual intercourse by arrival of others. It was held that the act amounted not only to preparation but attempt to commit rape. The Supreme Court in the case Abhayanand Mishra v. State of Bihar, AIR 1961 SC 1698, also explained the expression as to what would be an attempt or preparation to commit an offence. The facts of the cited case are not relevant. But the expression "as to what would be an attempt to commit the offence" was succinctly described and it was held :

"These provisions require that it is only when one, firstly, attempts to commit an offence and secondly, in such attempt, does any act towards the commission of the offence, that he is punishable for that attempt to commit the offence. It follows, therefore, that the act which would make the culprit''s attempt to commit an offence punishable, must be an act which, by itself or in combination with other acts, leads to the commission of the offence. The first step in the commission of the offence of cheating, therefore, must be an act which would lead to the deception of the person sought to be cheated. The moment a person takes some step to deceive the person sought to be cheated, he has embarked on a course of conduct which is nothing less than an attempt to commit the offence, as contemplated by Section 511. He does the act with the intention to commit the offence and the act is a step towards the commission of the offence."

It was further elucidated in the decision Malkiat Singh and another v. The State of Punjab, AIR 1970 SC 713. In the cited case the truck was carrying paddy and was stopped at Samalkha barrier. There could be no export of paddy outside Punjab boundary. The Supreme Court while referring to the definition of `attempt'' given by Sir James Stephen in his Digest of Criminal Law and approving the same observed :

"Sir James Stephen, in his Digest of Criminal Law, Article 50, defines an attempt as follows :

"an act done with intent to commit that crime, and forming part of a series of acts which would constitute its actual commission if it were not interrupted. The point at which such a series of acts begins cannot be defined, but depends upon the circumstances of each particular case."

The test for determining whether the act of the appellants constituted an attempt or preparation is whether the overt acts already done are such that if the offender changes his mind and does not proceed further in its progress the acts already done would be completely harmless."

A decision from this Court in the case Suresh Chand v. The State of Haryana, 1976 Criminal Law Journal 452, also is of great help. In this case the accused had taken off his underwear and that of the prosecutrix. He had made an attempt to put his male organ in the private part of the prosecutrix. The Court held that there was an attempt to commit rape.

In this regard one cannot restrain to refer to the decision of the Supreme Court in the case State of Maharashtra v. Mohd. Yakub and others, 1980 Criminal Law Journal 793. On receipt of certain secret information that silver would be transported in a jeep and a truck, the officers kept a watch. Two vehicles halted near the bridge at a Creek. Some small and heavy bundles were removed from the truck. At that time, the Customs Officers surrounded them. There were number of silver ingots lying under the sawdust bags. The question for consideration was if it amounted to attempt to smuggle silver in contravention of the Customs Act. Hon''ble Mr. Justice Sarkaria held :

"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. As pointed out in Abhayanand Mishra v. State of Bihar, (1962) 2 SCR 241, there is a distinction between `preparation'' and `attempt''. Attempt begins where preparation ends. In sum, a person commits the offence of "attempt to commit a particular offence" when (i) he intends to commit that particular offence; and (ii) he, having made preparations and with the intention to commit the offence, 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."

Chinnappa Reddy in his separate judgment also explained as to what would be an attempt to commit offence and concluded :

"Let me now state the result of the search and research: 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."

The appeal was allowed and it was held that in the facts there was an attempt to smuggle the abovesaid articles. Lastly, it is appropriate to refer to the decision in the case Madan Lal v. State of Rajasthan, 1987 Criminal Law Journal 257. In the cited case the accused not only untied the salwar of the girl but had removed his own pajama. He had spread his Khes on the ground and closed her mouth in order to stop her from crying. It was concluded that this will amount to attempt to commit rape.

Having referred to different precedents, at this stage, the conclusion can conveniently be drawn, when a person intends to commit a particular offence and then conducts himself in such a manner which clearly indicates his desire to translate that intentional action and in pursuance of such an intention if he does something which may help him to accomplish that desire, then it can safely be held that he committed an offence of attempt to commit a particular offence. It is not necessary that the act which falls under the definition of an attempt should in all circumstances be a penultimate act towards the commission of that offence. In other words so long as the act rests in bare intention, it is not punishable by our laws, but immediately when an act is done with the intention with which it is done, it becomes criminal or attempt towards it.

In the present case, as referred to above already, it has been established in the evidence of the prosecutrix that the appellant called the prosecutrix in his house on the pretext that his Bhabi was wanting to meet the prosecutrix. When the prosecutrix went inside the house, he bolted the door, threatened her and besides undressing himself, undressed her. He tried to commit rape but when the prosecutrix shouted, one Krishan Lal had come. The sequence of events clearly shows that it was an attempt to commit the rape. It was an act done with an intention to commit rape and what (but ?) for the intervening he had been successful in committing rape. It also shows that it was done without her consent.

In that event it had been urged that there was no corroboration to the statement of the prosecutrix. In principle the said argument has to be rejected. If the statement is truthful, it requires no corroboration. In the case of Bharwada Bhoginbhai Hirjibhai v. State of Gujarat, 1983(2) RCR(Crl.) 192 : AIR 1983 SC 753 , a similar argument had been advanced and was rejected with the following findings :

"It would therefore be adding insult to injury to insist on corroboration drawing inspiration from the rules devised by the Courts in the western world (obeisance to which has perhaps become a habit presumably on account of the colonial hangover). We are therefore of the opinion that if the evidence of the victim does not suffer from any basic infirmity, and the `probabilitiesfactor'' does not render it unworthy of credence, as a general rule, there is no reason to insist on corroboration except from the medical evidence, where, having regard to the circumstances of the case, medical evidence can be expected to be forthcoming, subject to the following qualification:

Corroboration may be insisted upon when a woman having attained majority is found in a compromising position and there is a likelihood of her having levelled such an accusation on account of the instinct of self preservation, or when the `probabilitiesfactor'' is found to be out of tune."

In the present case not only the statement of the prosecution is truthful but corroboration is forthcoming from the circumstances that she immediately told what had happened to her mother. She contacted her husband at Panipat. On his arrival, they got the first information report recorded. This lends support to the truthfulness of what the prosecutrix stated. The trial court in these circumstances had rightly come to correct conclusion. There is no ground for interference.

For these reasons, the appeal fails and is dismissed.