Delhi High Court
Pradeep Kumar vs Nct Of Delhi on 12 August, 2005
Equivalent citations: 123(2003)DLT398, 2005(84)DRJ233
Author: B.N. Chaturvedi
Bench: B.N. Chaturvedi
JUDGMENT
B.N. Chaturvedi, J.
1. Tried on a charge for committing rape on a four-year old girl child, the appellant was, eventually, convicted under Section 376 read with Section 511 IPC and sentenced to five years RI and a fine of Rs. 5,000/-, in default six months SI. Aggrieved by his conviction and sentence, the appellant has filed instant appeal.
2. Material facts relevant for disposal of present appeal are that on 26th of December, 2000 at about 1.00 p.m. a four-year old female child named Mona was playing in the street with other children. She was called by the appellant to his house and on her reaching there, he closed the door and allgedly committed rape on her. On reaching her house, Mona narrated the incident to her mother, Sulekha. The mother, in turn, informed her husband on phone in his office about the incident. Pawan Kumar Jha, father of the prosecutrix rushed back to his house. On an enquiry, Mona gave her account of the incident to him. The father, thereafter, went to the house of the appellant and knocked at his door. Though the appellant was inside his house, he did not respond. On an information being received, the police reached the place. The door was forced open as the appellant failed to respond even on police thumping his door. A bed sheet spread over the bed in appellant’s room which appeared to bear semen stains was picked up and taken into possession by the police. Besides, four/five obscene books, lying under the bed sheet were also seized.
3. Pawan Kumar Jha, father of the prosecutrix made his statement to the police, on the basis of which a FIR under Section 376 IPC was registered against the appellant at PS Dabri on the same date at 4.25 p.m. and the appellant was arrested.
4. The panty, which Mona had been wearing at the relevant time, was produced before the investigating officer by the mother of the prosecutrix and the same was also taken into possession by the police.
5. The prosecutrix and the appellant were got medically examined.
6. The appellant faced trial on a charge under Section 376 IPC. On evidence, learned trial Judge concluded that the appellant was guilty of only an attempt to commit rape. He proceeded to inflict the punishment accordingly.
7. With reference to statements of prosecutrix and her parents, certain contradictions were pointed out, which, according to the learned counsel for the appellant, rendered their testimony unworthy of credence and could not have formed basis of conviction. The contradictions so pointed out were taken note of by the learned trial court and appropriately dealt with in the impugned judgment and there appears no reason to take a contrary view as far as credibility of the prosecutrix and her parents, is concerned. No doubt, a child witness being prone to tutoring, her statement is to be acted upon with caution. The statement of the prosecutrix, in the present case, derives corroboration from the testimony of her parents and attending circumstances. She has, thus, been rightly held to be truthful in giving her account of the incident. In the circumstances, challenge to conviction and sentence on the aforesaid score is unsustainable.
8. The learned counsel for the appellant, apart from referring to discrepancies in the statements of the prosecutrix and her parents in regard to the incident, also pointed out that there is no evidence that the bed sheet bearing semen stains had actually been recovered from the room of the appellant to corroborate the prosecutrix’s statement that the appellant had committed rape on her. Such an argument ignores the very statement of the appellant in reply to question No. 12 of his examination under Section 313 Cr.P.C., wherein he admits that the bed sheet was seized from his room only.
9. Another argument is that the prosecutrix and her parents made identical statements concerning alleged penetration, which is belied by the medical report, Ex.PW-4/1. On medical examination of the prosecutrix vide Ex.PW-4/1, no external injury mark over her body or genitalia were found, nor there was trace of discharge. Maybe that the prosecutrix being a child, did not understand as to what actually constituted penetration and maybe that her parents gave an exaggerated account of the incident. Precision in describing the beastly act committed/attempted on her, cannot be expected of a girl child of a tender age such as the prosecutrix in this case. Further, exaggerated statements of the parents of the prosecutrix in regard to alleged penetration cannot justify their entire testimony being discarded.
10. The last argument of the learned counsel for the appellant was that even if the incident, as alleged, had taken place in view of there being no penetration, at best, it could be held to have been a case of preparation to commit rape and not an attempt to rape as held by the learned trial court. Sequence of incident, as narrated by the prosecutrix, shows that the appellant called the prosecutrix to his house while she was playing in the street with other children, bolted the room from inside, pulled down her panty and made her to lie down and after undressing laid himself over her in a bid to sexually assault her. It appears that he could not succeed in penetrating due to premature ejaculation. The CFSL report, Ex.PW-6/1, confirms that human semen was found on the bed sheet Ex.PW-2. The appellant would, thus, be found to have done all that what he could with an intent to commit rape on prosecutrix, but somehow failed to commit the crime he intended to.
11. Suffices to make a reference to a Supreme Court decision in ‘Madan Lal v. State of Jammu and Kashmir’, AIR 1998 SC 386, wherein a Headmaster of a school, where the prosecutrix was studying , was charged with having committed rape on her and the prosecutrix made a statement that the accused had succeeded in penetrating his male organ into her vagina more than once but the medical report belied her this part of statement, the Supreme Court observed that the statement so made by the prosecutrix could have been on account of her inexperience who was being subjected to sexual harassment for the first time and that the same could not be read in isolation bereft of what she had deposed just prior to the aforesaid statement. In spite of statement of the prosecutrix being found in contradiction to the medical evidence, the prosecutrix was held to be a truthful witness. Pointing out the difference between preparation and an attempt to commit an offence, the Supreme Court said:-
“The difference between preparation and an attempt to commit an offence consists chiefly in the greater degree of determination and what is necessary to prove for an offence of an attempt to commit rape has been committed is that the accused has gone beyond the stage of preparation. If an accused strips a girl naked and then making her flat on the ground undresses himself and then forcibly rubs his erected penis on the private part of the girl but fails to penetrate the same into vagina and on such rubbing ejaculates himself then it is difficult for us to hold that it was a case of merely assault under Section 354 IPC and not an attempt to commit rape under Section 376 read with 511 IPC.”
12. On facts, the present case is more or less similar to the above referred case and keeping in view the statement of prosecutrix, corroborated by the statements of her parents and other evidence, no fault can be found with the impugned judgment in holding the appellant guilty of attempting to commit rape punishable under Section 376 read with Section 511 IPC. There being no reasaon to differ with the finding recorded by the learned trial court, no interference therewith is called for.
13. In the result, the appeal is dismissed.
14. The trial court record be sent back with a copy of instant order for necessary action, if any.