{"id":244141,"date":"2010-11-30T00:00:00","date_gmt":"2010-11-29T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/tukaram-govind-yadav-vs-state-of-maharashtra-on-30-november-2010"},"modified":"2017-03-16T15:01:31","modified_gmt":"2017-03-16T09:31:31","slug":"tukaram-govind-yadav-vs-state-of-maharashtra-on-30-november-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/tukaram-govind-yadav-vs-state-of-maharashtra-on-30-november-2010","title":{"rendered":"Tukaram Govind Yadav vs State Of Maharashtra on 30 November, 2010"},"content":{"rendered":"
Bombay High Court<\/div>\n
Tukaram Govind Yadav vs State Of Maharashtra on 30 November, 2010<\/div>\n
Bench: A.P. Bhangale<\/div>\n
                                           1\n                                                  APEAL-506-96&29-97\n\n\n              IN THE HIGH COURT OF JUDICATURE AT BOMBAY\n                     CRIMINAL APPELLATE JURISDICTION\n\n\n\n\n                                                                              \n                      CRIMINAL APPEAL NO.506 OF 1996\n\n\n\n\n                                                      \n    Tukaram Govind Yadav,                        ]\n    Age : 19 years, Occ.Agriculturist,           ]\n    r\/o Sonarwadi, Tal. Bhudargad,               ]\n\n\n\n\n                                                     \n    District Kolhapur.                           ] ..Appellant.\n          Versus\n    State of Maharashtra.                        ] ..Respondent.\n\n\n\n\n                                         \n                                 ......\n                           igALONG WITH\n             CRIMINAL REVISION APPLICATION NO.29 OF 1997\n\n    Smt.Parvati Shankar Yadav,                   ]\n                         \n    Age : 60 years, Occ.Household,               ]\n    R\/o. Sonarwadi, Tal. Bhudargad,              ]\n    Dist. Kolhapur.                              ] ..Appellant.\n          Versus\n      \n\n\n    1.    Shri Tukaram Govind Yadav,             ]\n   \n\n\n\n          Age about 19 years,                    ]\n          R\/o. Sonarwadi, Tal. Bhudargad,        ]\n          Dist. Kolhapur.                        ]\n    2.    The State of Maharashtra.              ] ..Respondent.\n\n\n\n\n\n                                        .........\n    Smt.Varsha Palav, Advocate for the appellant in Criminal Appeal No.\n    506 of 1996.\n\n\n\n\n\n    Mr.K.K. Jadhav, Advocate for the applicant in Criminal Revision No.29 \n    of 1997.\n    Mr.S.V.   Sadavarte,   Advocate   for   Respondent   No.1   in   Cri.Rev.Appln. \n    No.29 of 1997.\n    Mr.K.V. Saste, A.P.P. for the State.\n                                        .........\n     \n\n\n\n\n                                                      ::: Downloaded on - 09\/06\/2013 16:39:41 :::\n                                            2\n                                                   APEAL-506-96&29-97\n\n\n                       CORAM   :  A. P. BHANGALE,  J.\n<\/pre>\n
                       DATE       :  30.11.2010.\n\n\n\n\n                                                      \n    ORAL JUDGMENT :\n\n<\/pre>\n
    1.      Both these appeal and revision are preferred challenging the <\/p>\n
    judgment and order dated 6.7.1996 passed by the learned Additional <\/p>\n
    Sessions Judge, Kolhapur in Sessions Case No.49 of 1996 whereby the <\/p>\n
    learned trial Judge convicted the accused for the offence punishable <\/p>\n
    under Section 376 read with Section 511 of Indian Penal Code and <\/p>\n
    directed the accused to suffer S.I. for one year and fine of Rs.300\/- in <\/p>\n
    default S.I. for one month. By the said order, considering the age of <\/p>\n
    the accused, he was directed to be released   under Section 360 of <\/p>\n
    Cr.P.C. on giving a bond of good behaviour of one year in the sum of <\/p>\n
    Rs.5000\/- with a surety  in the like amount.\n<\/p>\n
    2.      While   the   appellant   in   Criminal   Appeal   No.506   of   1996 <\/p>\n
    challenges his conviction under Section 376 read with Section 511 of <\/p>\n
    Indian   Penal   Code,   the   revision   petitioner   in   Criminal   Revision <\/p>\n
    Application No.29 of 1997 contended that the sentence imposed was <\/p>\n
    inadequate considering the nature of offence held as proved by the <\/p>\n
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\n                                                3<\/span>
\n                                                       APEAL-506-96&29-97<\/p>\n
    learned trial Judge.\n<\/p>\n
    3.      Briefly   stated   the   case   of   the   prosecution   is   that   :   first <\/p>\n
    informant   Parvatibai   Yadav  and  the   accused  are   resident   of   village <\/p>\n
    Sonarwadi   and   used   to   reside   in   that   village   when   the   incident <\/p>\n
    occurred. The first informant was residing with her daughter-in-law, <\/p>\n
    grand-daughter   and   her   two   sons.   Victim   Ujwala   is   the   grand-\n<\/p>\n
    daughter  of   first   informant  who  was  aged  about   nine   years  at  the <\/p>\n
    time of the incident. It is case of the prosecution that on 27.10.1995 <\/p>\n
    while Ujwala was playing with her sister Jyoti and her friend Rani in <\/p>\n
    the afternoon   in front of the house of the accused. At about 3:00 <\/p>\n
    p.m. Jyoti had returned to the house complaining that their play was <\/p>\n
    disturbed by the accused who had driven away Jyoti and Rani and <\/p>\n
    taken   away   Ujwala   in   his   house.   The   first   informant   immediately <\/p>\n
    went to the house of the accused. According to her, she had found <\/p>\n
    accused and her grand-daughter Ujwala in the kitchen while nicker of <\/p>\n
    Ujwala was removed and she was lying on the ground. Accused was <\/p>\n
    found sleeping over her trying to have intercourse with her. When <\/p>\n
    first informant reached, the accused had got up. Thereafter the victim <\/p>\n
    was   taken   away   by   the   first   informant   back   to   her   house.   In   the <\/p>\n
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\n                                                4<\/span>
\n                                                      APEAL-506-96&29-97<\/p>\n
    evening time, a complaint was lodged with the police.\n<\/p>\n
    4.      The   investigation   followed.   Accused   was   chargesheeted.\n<\/p>\n
    Considering the nature of accusation, the case was committed to the <\/p>\n
    Court of Session and the charge was framed to which the accused <\/p>\n
    pleaded not guilty and claimed to be tried.\n<\/p>\n
    5.      Prosecution   had   examined   three   witnesses  to   prove   its   case <\/p>\n
    against   the   accused.   The   alleged   victim   Ujwala   was   examined   as <\/p>\n
    PW-1. According to Ujwala, the accused caused her to sleep on the <\/p>\n
    ground facing to sky and then he removed her nicker and slept on <\/p>\n
    her. She received some pains in her private part and when she started <\/p>\n
    crying, accused pressed her mouth with the hand. He had got up after <\/p>\n
    he saw her grand-mother coming in the house of the accused. The <\/p>\n
    victim   was   cross-examined  regarding  the   incident.   She   denied  that <\/p>\n
    her   mother   and   grand-mother   tutored   her   to   give   the   statement <\/p>\n
    against the accused. Although, she stated that she had received pains <\/p>\n
    in   her   vagina   when   the   accused   slept   over   her,   she   admitted   that <\/p>\n
    word ‘vagina’ was not appearing in the statement before the police.\n<\/p>\n
    6.      PW-2   Parvati   Yadav   (first   informant)   deposed   about   the <\/p>\n
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\n                                               5<\/span>
\n                                                      APEAL-506-96&29-97<\/p>\n
    incident  that Jyoti came to house weeping and said her that she was <\/p>\n
    beaten   by   the   accused.   When   Parvati   went   to   the   house   of   the <\/p>\n
    accused, she found Ujwala sleeping   on the floor and accused was <\/p>\n
    lying over her. She then took her grand-daughter to her house along <\/p>\n
    with the nicker of her grand-daughter which according to her was <\/p>\n
    removed   by   the   accused.   In   the   course   of   examination-in-chief   of <\/p>\n
    PW-2 nothing appears as to whether the accused was doing anything <\/p>\n
    which may legally constitute an attempt to commit rape. According to <\/p>\n
    the learned Advocate for the appellant, it may be at the most a stage <\/p>\n
    of   preparation   and   not   an   attempt.   Learned   Advocate   for   the <\/p>\n
    appellant   contended   that   the   alleged   victim   Ujwala   was   medically <\/p>\n
    examined on the same day of the incident at about 9:45 p.m.. The <\/p>\n
    certificate   which   appeared   at   Exh.16,   as   admitted   by   the   defence <\/p>\n
    counsel, clearly mentions that there were no marks of   violence. No <\/p>\n
    signs   of   bleeding.     Her   hymen     was   found   intact.   Pubic   hair   was <\/p>\n
    absent. Under these circumstances, it is contended that there was no <\/p>\n
    attempt to commit rape and, therefore, the appellant is entitled for an <\/p>\n
    order   of   acquittal.   The   learned   Advocate   for   the   appellant   further <\/p>\n
    contended that the prosecution has also failed to examine mother of <\/p>\n
    the victim girl.\n<\/p>\n
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\n                                                6<\/span><\/p>\n
                                                      APEAL-506-96&29-97<\/p>\n
    7.       As   against   this  submission,   the   learned  A.P.P.  submitted  that <\/p>\n
    the act committed by the appellant to remove the nicker of the victim <\/p>\n
    and   to   lie   over   her   was   serious   act   and   can   be   considered   as <\/p>\n
    constituting   an   attempt   to   sexually   ravish   a   minor   girl   aged   nine <\/p>\n
    years.\n<\/p>\n
    8.       I have also heard the learned Advocate for revision petitioner <\/p>\n
    in support of Criminal Revision Application No.29 of 1997. Learned <\/p>\n
    Advocate   for   the   revision   petitioner   contended   that   the   sentence <\/p>\n
    imposed against the appellant was inadequate considering the nature <\/p>\n
    of offence as proved. It is submitted that benefit of Section 360 of <\/p>\n
    Cr.P.C.   ought   not   to   have   been   granted   in   favour   of   the   accused.\n<\/p>\n
    According   to   the   learned   Advocate   for   the   revision   petitioner,   the <\/p>\n
    impugned   order   needs   to   be   modified   so   as   to   impose   legal   and <\/p>\n
    proper sentence upon the accused for the offence punishable under <\/p>\n
    Section 376 read with Section 511 of I.P.C.\n<\/p>\n
    9.       Considered the submissions at bar and considered the nature <\/p>\n
    of evidence led before the trial Court. Looking to the evidence led in <\/p>\n
    this case, it is necessary to find out as to whether the alleged act of <\/p>\n
    the accused clearly constituted an attempt to commit rape or it was <\/p>\n
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\n                                                7<\/span>
\n                                                      APEAL-506-96&29-97<\/p>\n
    merely   indecent   sexual   assault   which   may   be   punishable   under <\/p>\n
    Section 354 of I.P.C.\n<\/p>\n
    10.      In the ruling of  State of Maharashtra Vs. Mohd. Yakub and  <\/p>\n
    Ors. reported in AIR 1980 S.C. 1111, the Apex Court considered the <\/p>\n
    definition   of   `attempt   to  commit   crime’   as   the     last   proximate   act <\/p>\n
    which   a   person   does   towards   the   commission   of   an   offence,   the <\/p>\n
    consummation   of   the   offence   being   hindered   by   circumstances <\/p>\n
    beyond   his   control.   It   was   observed   by   the   Apex   Court   that   what <\/p>\n
    constitutes   an   “attempt”   is   a   mixed   question   of   law   and   fact, <\/p>\n
    depending   largely   on   the   circumstances   of   the   particular   case.\n<\/p>\n
    “Attempt” defies a precise and exact definition. Broadly speaking, all <\/p>\n
    crimes   which   consist   of   the   commission   of   affirmative   acts   are <\/p>\n
    preceded by some covert or overt conduct which may be divided  into <\/p>\n
    three stages. The first stage exists when the culprit first entertains the <\/p>\n
    idea or intention to commit an offence. In the second stage, he makes <\/p>\n
    preparations to commit it. The third stage is reached when the culprit <\/p>\n
    takes deliberate overt steps to commit the offence. Such overt act or <\/p>\n
    step   in   order   to   be   `criminal’     need   not   be   the   penultimate   act <\/p>\n
    towards the commission of the offence. It is sufficient if such act or <\/p>\n
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\n                                                8<\/span>
\n                                                       APEAL-506-96&29-97<\/p>\n
    acts were deliberately done, and manifest  a clear intention to commit <\/p>\n
    the offence aimed, being reasonably proximate to the consummation <\/p>\n
    of the offence.\n<\/p>\n
    11.      There is a distinction between `preparation’ and `attempt’.\n<\/p>\n
    Attempt   begins   where   preparation   ends.   A   person   commits   the <\/p>\n
    offence of attempt to commit a particular offence when accused (i) <\/p>\n
    intends   to   commit   a   particular   offence,   (ii)   he   having   made <\/p>\n
    preparation and with the intention to commit an offence, (iii) does an <\/p>\n
    act towards its commission, such an act need not be the penultimate <\/p>\n
    act towards the commission of that offence but must be an act during <\/p>\n
    the course of committing that offence.\n<\/p>\n
    12.      In para-31 of the Mohd. Yakub’s case (supra), the Apex Court <\/p>\n
    observed thus :\n<\/p>\n
              “31. ……   In   order   to   constitute   `an   attempt’   first,
\n              there must be   an intention to commit a particular <\/p>\n
              offence,   second,   some   act   must   have   been   done
\n              which   would   necessarily   have   to   be   done   towards
\n              the commission of the offence, and, third, such act
\n              must   be   proximate’   to   the   intended   result.   The
\n              measure of proximity is not in relation to time and <\/p>\n
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\n                                                  9<\/span>
\n                                                          APEAL-506-96&29-97<\/p>\n
               action but in relation to intention. In other words,
\n               the   act   must   reveal,   with   reasonable   certainty,   in <\/p>\n
               conjunction with other facts and circumstances and <\/p>\n
               not   necessarily   in   isolation   an   intention,   as
\n               distinguished   from   a   mere   desire     or   object,   to
\n               commit   the   particular   offence,   though   the   act   by <\/p>\n
               itself may be merely suggestive or indicative of such
\n               intention,   but   that   it   must   be,   that   is,   it   must   be <\/p>\n
               indicative or suggestive of the intention. ……….”\n<\/p><\/blockquote>\n
    13.<\/p>\n
             In   a   case   of   rape,   rape   is   committed   when   male   organ <\/p>\n
    penetrates, at least partial, the female organ. In between complete <\/p>\n
    rape   and   attempt   to   commit   rape   there   is   a   rear   area   covered   by <\/p>\n
    Section   354   of   I.P.C.   i.e.   assault   or   criminal   force   to   woman   with <\/p>\n
    intent to outrage her modesty or indecent assault.  The dividing line <\/p>\n
    between attempt to commit rape and indecent assault is not only thin <\/p>\n
    but also is practically invisible. For an offence of attempt to commit <\/p>\n
    rape, prosecution is required to  establish that the act of the accused <\/p>\n
    went   beyond   the   stage   of   preparation.   In   a   given   case,   where   the <\/p>\n
    prosecutrix was made naked and her cries attracted her uncle who <\/p>\n
    came to the spot and then the accused fled away, it was held that it <\/p>\n
    was not a case of attempt to commit rape but was one under Section <\/p>\n
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\n                                                10<\/span>
\n                                                        APEAL-506-96&29-97<\/p>\n
    354   of   I.P.C.   [State   of   Madhya  Pradesh  Vs.  Babulal,  A.I.R.  1960 <\/p>\n
    M.P. 155].\n<\/p>\n
    14.       The medical evidence in the present case do not indicate as <\/p>\n
    to whether the accused has tried to force his penis inside the private <\/p>\n
    part   of   the   girl   but   could   not   succeed.   Evidence   of     PW-2   Parvati <\/p>\n
    Yadav   before   the   Court,   in   para-3   of   her   deposition,   indicate   that <\/p>\n
    when she went there (in the house of the accused), she found Ujwala <\/p>\n
    sleeping   on   the   floor   and   the   accused   was   lying   on   her.   Nothing <\/p>\n
    appears to have been stated beyond this by Parvati except that nicker <\/p>\n
    which   was   removed   was   brought   back   by   her   along   with   grand-\n<\/p>\n
    daughter to her house.\n<\/p>\n
    15.       Under these circumstances, it must be held that the offence <\/p>\n
    committed by the accused did not amount to attempt to commit rape <\/p>\n
    punishable  under Section  376  read  with  Section 511  of I.P.C.,   but, <\/p>\n
    was one under Section 354 of I.P.C.. Therefore, the appeal has been <\/p>\n
    partly allowed by convicting the appellant\/accused for minor offence <\/p>\n
    under Section 354 of I.P.C..\n<\/p>\n
    16.      The next question is about the sentence to be imposed  for the <\/p>\n
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\n                                                   11<\/span>
\n                                                           APEAL-506-96&29-97<\/p>\n
    offence punishable under Section 354   of I.P.C.. Section 354 of I.P.C.\n<\/p>\n
    which relates to assault or criminal force to woman with intent to <\/p>\n
    outrage her modesty is punishable with imprisonment to the extent of <\/p>\n
    two years, or with fine, or with both. When the accused removed the <\/p>\n
    nicker   of the girl with a view to commit sexual intercourse, it does <\/p>\n
    amount to outrage of modesty and knowledge that her modesty  was <\/p>\n
    likely   to   be   outraged.   Such   an   act   do   constitute   the   offence <\/p>\n
    punishable under Section 354 of I.P.C. as is committed by the accused <\/p>\n
    in the present case. Considering that the appeal is partly allowed by <\/p>\n
    reducing the penal liability  of the accused to that under Section 354 <\/p>\n
    of   I.P.C.   instead  of   376   read   with  511   of   I.P.C.,   I  think   the     lesser <\/p>\n
    sentence which has been imposed   by the trial Court i.e. accused to <\/p>\n
    suffer S.I. for one year and fine of Rs.300\/- in default S.I. for one <\/p>\n
    month,   with   further  direction   for   his  release   under  Section   360   of <\/p>\n
    Cr.P.C. on giving a bond of good behaviour of one year  in the sum of <\/p>\n
    Rs.5000\/- with a surety in the like amount, would meet the ends of <\/p>\n
    justice.\n<\/p>\n
    17.         In the result, therefore, appeal is partly allowed. The order of <\/p>\n
    conviction and sentence recorded by the learned Additional Sessions <\/p>\n
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\n                                               12<\/span>
\n                                                      APEAL-506-96&29-97<\/p>\n
    Judge,     Kolhapur   dated   6.7.1996   in   Sessions   Case   No.49   of   1996 <\/p>\n
    against the appellant  for the offence punishable under  Section 376 <\/p>\n
    read with Section 511 of I.P.C.  set aside and modified . Instead, the <\/p>\n
    appellant is convicted for the offence punishable under Section 354 of <\/p>\n
    I.P.C..   The   impugned   order     regarding   the   conditional   release   and <\/p>\n
    punishment, however as directed  by the trial court is maintained. R <\/p>\n
    &   P   be   sent   back   to   the   trial   Court.   Both   Criminal   Appeal   and <\/p>\n
    Criminal Revision Application are disposed of accordingly.\n<\/p>\n
                                                     (A. P. BHANGALE,  J.)<\/p>\n
                                                         ::: Downloaded on – 09\/06\/2013 16:39:41 :::<\/span>\n <\/p>\n","protected":false},"excerpt":{"rendered":"
Bombay High Court Tukaram Govind Yadav vs State Of Maharashtra on 30 November, 2010 Bench: A.P. Bhangale 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[11,8],"tags":[],"class_list":["post-244141","post","type-post","status-publish","format-standard","hentry","category-bombay-high-court","category-high-court"],"yoast_head":"\nTukaram Govind Yadav vs State Of Maharashtra on 30 November, 2010 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/tukaram-govind-yadav-vs-state-of-maharashtra-on-30-november-2010\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Tukaram Govind Yadav vs State Of Maharashtra on 30 November, 2010 - 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