This is an appeal filed by way of special leave is
directed against the judgment of the Additional Sessions
Judge. Bahraich dated 06/07/1991 in ST No. 133/90 whereby the
accused-appellant has been convicted and sentenced to rigorous
imprisonment for 10 years and a fine of Rs. 10,000/- for an
offence punishable under Section 376 of the Indian Penal Code
and the judgment of the High Court of Judicature at Allahabad
in Criminal Appeal No. 352 of 1991 dated 13.01.2006
confirming the aforesaid conviction and sentence.
The facts leading to the appeal are as under:-
The prosecutrix P.W. 4, aged 12 years at the time of the
incident, was going with some of her friends to see her
maternal uncle and as she reached the field of one Hasnu, the
appellant caught hold of her, dragged her into the
munjha(field) and raped her. On an alarm being raised,
Bakridi & Jannu reached the place of incident and also saw the
occurrence. The prosecutrix, accompanied by her uncle,
thereafter made her way to Police Station, Fakharpur and on
her written report, an FIR under Section 376 of the Indian
Penal Code [for short 'the IPC'] was registered at 6:20p.m. at
the Police Station. The investigation was entrusted to Sub
Inspector R.K. Verma who proceeded to the spot and prepared
the site plan and completed the other formalities. He also
arranged for the medical examination of the prosecutrix and
for the recording of her statement under Section 164 of the
Code of Criminal Procedure by a competent Magistrate. On the
completion of the investigation, the appellant was charged for
an offence under Section 376 of the IPC tried and convicted as
already mentioned above.
Mr. Vishwajit Singh, the learned counsel for the
appellant has argued that from the evidence of P.W. 5 – Dr.
(Smt.) Rekha Srivastava, the Medical Officer in charge of
P.P.C. Memorial Hospital, Bahraich, who had examined the
prosecutrix it was clear that no rape had been committed and
the doctor had reiterated her earlier statement after she had
been called for re-examination on 15.04.1991 that as the hymen
was intact, the question of the prosecutrix having undergone
sexual intercourse did not arise. He has accordingly, pleaded
that in this background, the statement of the prosecutrix
could not be relied upon.
The learned counsel for the State has, however, pointed
out that while it is true that statement of P.W. 5 – Dr. Rekha
Srivastava did prima facie show that rape had not been
committed but there was no reason whatsoever to doubt the
statement of the prosecutrix, a young girl of 12 years, more
particularly as there was no evidence on record to show that
there was any animosity between the families of the
prosecutrix and the appellant. He has in the alternative
prayed that even assuming that a case under Section 376 of the
IPC was not made out an attempt to commit rape had indeed
been made as apparent even from the prosecution evidence.
We have heard the learned counsel for the parties and
gone through the matter very carefully. We do agree with Mr.
Vishwajit Singh when he says that in the light of the
testimony of P.W. 5 – Dr. (Smt.) Rekha Srivastava there is no
evidence to suggest that rape had been committed. At the same
time, we must accept the statement of the prosecutrix that
something untoward had happened and that an attempt to commit
rape had indeed been made. In her statement, the prosecutrix
very clearly and graphically stated that as she was on her way
to her maternal uncle's house she had been accosted on the way
and pushed into the nearby field whereafter the appellant had
opened her salwar, taken off his underwear and forcibly
inserted his penis into her vagina causing great pain and
had ejaculated as well. This statement, would, to our mind,
bring the matter clearly within the mischief of Section 376
read with Section 511 of the IPC as an attempt to commit rape.
Mr. Vishwajit Singh has, however, argued that at the
worst, the matter would fall within Section 354 of the IPC as
an attempt to outrage the modesty of the young girl. We beg to
differ. We see from the statement of the prosecutrix that
what happened was beyond a mere attempt to outrage the modesty
of the prosecutrix as several overt acts relating to an
attempt to commit rape have been spelt out.
The question that now arises for our consideration is
the sentence to be imposed upon the appellant. We are
informed by Mr. Vishwajit Singh that the appellant has
undergone more than six years of the sentence. In the event
that we have absolutely no reason to doubt the statement made
by the learned counsel, we convert the offence to one under
Section 376/511 of the IPC and reduce the sentence to that
already undergone. However, the default sentence shall
remain as it is. We further direct that the appellant be set
at liberty forthwith if not required in connection with any
other case.
AUGUST 18, 2009.
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 961 OF 2006
We heard the learned counsel for the parties.
Vide our separate reasoned order, we have
dismissed this appeal. As per the counsel, the
appellant has undergone more than six years of the
sentence. We, accordingly, reduce the sentence to
that already undergone. However, the default
sentence shall remain as it is. The appellant
shall be set at liberty forthwith if not required
in connection with any other case.
The reasoned order to follow.
AUGUST 18, 2009.