1
APEAL-506-96&29-97
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.506 OF 1996
Tukaram Govind Yadav, ]
Age : 19 years, Occ.Agriculturist, ]
r/o Sonarwadi, Tal. Bhudargad, ]
District Kolhapur. ] ..Appellant.
Versus
State of Maharashtra. ] ..Respondent.
......
igALONG WITH
CRIMINAL REVISION APPLICATION NO.29 OF 1997
Smt.Parvati Shankar Yadav, ]
Age : 60 years, Occ.Household, ]
R/o. Sonarwadi, Tal. Bhudargad, ]
Dist. Kolhapur. ] ..Appellant.
Versus
1. Shri Tukaram Govind Yadav, ]
Age about 19 years, ]
R/o. Sonarwadi, Tal. Bhudargad, ]
Dist. Kolhapur. ]
2. The State of Maharashtra. ] ..Respondent.
.........
Smt.Varsha Palav, Advocate for the appellant in Criminal Appeal No.
506 of 1996.
Mr.K.K. Jadhav, Advocate for the applicant in Criminal Revision No.29
of 1997.
Mr.S.V. Sadavarte, Advocate for Respondent No.1 in Cri.Rev.Appln.
No.29 of 1997.
Mr.K.V. Saste, A.P.P. for the State.
.........
::: Downloaded on - 09/06/2013 16:39:41 :::
2
APEAL-506-96&29-97
CORAM : A. P. BHANGALE, J.
DATE : 30.11.2010.
ORAL 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
::: Downloaded on – 09/06/2013 16:39:41 :::
3
APEAL-506-96&29-97
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 daughter-in-law,
grand-daughter 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 grand-daughter 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
::: Downloaded on – 09/06/2013 16:39:41 :::
4
APEAL-506-96&29-97
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
PW-1. 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 grand-mother coming in the house of the accused. The
victim was cross-examined regarding the incident. She denied that
her mother and grand-mother 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. PW-2 Parvati Yadav (first informant) deposed about the
::: Downloaded on – 09/06/2013 16:39:41 :::
5
APEAL-506-96&29-97
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 grand-daughter to her house along
with the nicker of her grand-daughter which according to her was
removed by the accused. In the course of examination-in-chief of
PW-2 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.
::: Downloaded on – 09/06/2013 16:39:41 :::
6
APEAL-506-96&29-97
7. As against this submission, the learned A.P.P. submitted that
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.C. ought not to have been granted in favour of the accused.
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
::: Downloaded on – 09/06/2013 16:39:41 :::
7
APEAL-506-96&29-97
merely indecent sexual assault which may be punishable under
Section 354 of I.P.C.
10. In the ruling of State of Maharashtra Vs. 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
::: Downloaded on – 09/06/2013 16:39:41 :::
8
APEAL-506-96&29-97
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 para-31 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 particularoffence, 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::: Downloaded on – 09/06/2013 16:39:41 :::
9
APEAL-506-96&29-97action but in relation to intention. In other words,
the act must reveal, with reasonable certainty, inconjunction 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 byitself may be merely suggestive or indicative of such
intention, but that it must be, that is, it must beindicative 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.C. i.e. assault or criminal force to woman with
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
::: Downloaded on – 09/06/2013 16:39:41 :::
10
APEAL-506-96&29-97
354 of I.P.C. [State of Madhya Pradesh Vs. Babulal, A.I.R. 1960
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 PW-2 Parvati
Yadav before the Court, in para-3 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.C., but,
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
::: Downloaded on – 09/06/2013 16:39:41 :::
11
APEAL-506-96&29-97
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.C. instead of 376 read with 511 of I.P.C., I think the lesser
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
::: Downloaded on – 09/06/2013 16:39:41 :::
12
APEAL-506-96&29-97
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.C.. The impugned order regarding the conditional release and
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.
(A. P. BHANGALE, J.)
::: Downloaded on – 09/06/2013 16:39:41 :::