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REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 561 OF  2009

STATE OF RAJASTHAN       … APPELLANT

:Versus:

SRI CHAND              … RESPONDENT

J U D G M E N T

Pinaki Chandra Ghose, J.

1. This appeal, by special leave, has been filed by the State of

Rajasthan  against  the  judgment  and  order  dated  24.01.2007

passed by the High Court of Rajasthan, Jaipur Bench, Jaipur, in

S.B. Criminal Leave to Appeal No.255 of 2003, whereby the High

Court rejected the appeal of the State filed against the acquittal of

the respondent.

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2. The facts of this case, as per the prosecution story, are that on

1.08.2002, Gujarmal son of Sukkan Ram Lali, resident of Baseth,

P.S.  Kathumar,  District  Laxmangarh  (Rajasthan),  submitted  a

written report at Police Station Kathumar stating therein that on

31.7.2002, at around 10 A.M., his daughter the prosecutrix, aged

12 years, had gone to the jungle to graze buffaloes. Sri Chand son

of Madan Lal Saini, whose house is in the jungle, approached his

daughter, the prosecutrix and told her that his sister was calling

her. By luring her in this way, Sri  Chand took his daughter the

prosecutrix to his house. No one was there in the house and Sri

Chand took his daughter the prosecutrix inside the room, closed

the door from inside, forcibly undressed her and made her to lie on

the ground and started raping her forcibly. The prosecutrix cried

upon which Sri Chand put some cloth in her mouth. Hearing her

cries, Bihari Saini, who was passing nearby, reached there and he

witnessed the whole incident. Saroj wife of Prahlad also reached at

the site. Out of fear, accused Sri Chand fled away from the place of

incident.

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3. On the basis of the above written report, Case No.116/2002

was registered under Section 376/511 of the Indian Penal Code,

1860  (“IPC”)  and  investigation  started.  During  the  course  of

investigation, Investigating Officer ASI Heera Lal visited the site and

prepared  a  site  map.  Statements  of  complainant  Gujarmal,

prosecutrix and Bihari Saini were recorded under Section 161 of

Cr.P.C.  Statement  of  prosecutrix  was  also  got  recorded  under

Section  164  Cr.P.C.  and  she  was  further  examined  at  Alwar  to

ascertain her age, medical and for X-ray. A report regarding her age

was  obtained  in  which  the  age  of  prosecutrix  was  stated  as  16

years.  Accused  Sri  Chand  was  arrested  and  was  got  examined

regarding  his  potency  to  perform  sexual  intercourse.  After  the

investigation, it was found that accused Sri Chand committed the

offence under Section 376/511 of IPC. A charge-sheet was filed in

the Court of Judicial Magistrate, Kathumar, and thereafter the case

was  committed  to  the  Court  of  Additional  District  and  Sessions

Judge,  Laxmangarh,  for  adjudication.  Accused  Sri  Chand  was

served the charge-sheet and he denied the charges and claimed for

trial.

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4. Before  the  Trial  Court,  the  prosecution  examined  ten

witnesses  and  after  analyzing  the  evidence  on  record  and  after

hearing the arguments advanced on behalf of the parties, the Trial

Court acquitted the accused respondent by granting him probation.

The State of Rajasthan preferred an appeal before the High Court,

for grant of leave to appeal against the order of acquittal, which was

rejected.  Aggrieved by  the  order  of  the  High Court,  the  State  of

Rajasthan  has  preferred  this  criminal  appeal,  by  special  leave,

before this Court.  

5. We have heard the learned counsel appearing for the State of

Rajasthan  and  the  learned  counsel  appearing  for  the  accused

respondent  and  have  perused  the  judgment  rendered  by  the

Additional District and Sessions Judge, Fast Track, Laxmangarh.

6. The  Court  of  Additional  District  and  Sessions  Judge,  Fast

Track, Laxmangarh, noticed in his judgment that though there is a

serious charge of attempt to rape against the accused but the First

Information Report has been lodged with a delay of about 28 hours

for which neither any explanation has been given in the Report nor

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the complainant  has mentioned anything in his statement about

the  said  delay,  which makes the  prosecution case  doubtful.  The

learned Sessions judge further  found that  the statement of  PW3

Biharilal Saini cannot be doubted as it corroborates the statement

of PW5 the prosecutrix herself. However, PW3 had stated that when

he reached the house of Sri Chand he saw Sri Chand fleeing away

while prosecutrix was inside and her clothes were disturbed. The

learned  Sessions  Judge  noted  that  non  production  of  Saroj,  an

alleged  eye  witness,  is  an important  circumstance;  however,  the

testimony of prosecutrix cannot be discarded on this ground. The

prosecutrix in her statement has corroborated the story in FIR, as

recorded above. However she only says that the accused did bad

work with her. On repeated questioning about what bad work was

done,  she  remained  quiet  with  head  bowed  down.  The  learned

Sessions  judge  found  that  there  is  consistent  statement  of  the

prosecutrix and PW3 that accused Sri Chand undressed her as well

as himself. Therefore, the learned Sessions Judge found the offence

under  Section  354  of  IPC  as  proved.  Thereupon,  the  learned

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Sessions Judge went on to grant the accused benefit of Probation of

Offenders Act in view of his clear record and no prior conviction.

7. The learned High Court  after  hearing counsels  for  both the

sides  and having  examined the  judgment  of  the  Sessions  Judge

refused to grant leave to appeal.  

8. We find that that FIR was recorded under Section 376 read

with Section 511 of IPC i.e. attempt to rape and not rape per se.

There is no eye witness on record apart from the prosecutrix herself

as PW3 Biharilal only saw the accused fleeing away and Saroj, the

alleged eye witness, was never produced before the Court nor her

statement was recorded under Section 161 Cr.P.C. Also, no medical

examination of the prosecutrix has been conducted. The prosecutrix

has in her statement stated that the accused Sri Chand took her

inside her house, closed it, undressed her and undressed himself.

Thereafter, she states, he got on to her and did bad work. On being

repeatedly  asked  what  bad  work  was  done,  she  kept  quiet  and

bowed her head, in embarrassment understandably. One must not

lose sight of the fact that the prosecutrix was a minor child at the

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time  of  the  incident.  The  father  (PW6)  of  the  prosecutrix  has

categorically stated that  bad work meant rape. However,  we find

difficulty  in  veracity  of  his  statement  since  he  was  not  an  eye

witness  and  was  not  even  told  about  the  incident  by  the

prosecutrix. He was told details of the incident by Biharilal (PW3)

who is not an eye witness to the incident. However, Biharilal was

the first person to have learnt of the offence from the prosecutrix

and he has completely corroborated her version. By this consistent

evidence  what  is  proved  beyond reasonable  doubt  is  the  offence

under Section 354 of IPC. However, the question of attempt to rape

is not proved beyond reasonable doubt. On the question of attempt

to rape, learned counsel appearing for the respondent has sought to

rely on two precedents being Aman Kumar and Anr. Vs. State of

Haryana, (2004) 4 SCC 379, and Tarkeshwar Sahu Vs. State of

Bihar  (now  Jharkhand),  (2006)  8  SCC  560.  In  both  the  cited

judgments it is held that for the act to constitute offence of rape

penetration  is  pre-requisite  (this  is  the  pre  2013  Criminal

Amendment position of law) and therefore for the offence of attempt

to rape the accused must have so advanced in his actions that it

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would  have  resulted  into  rape  had  some extraneous  factors  not

intervened. It is held in Aman Kumar’s case that in order to come to

the  conclusion  that  attempt  to  rape  is  committed  it  should  be

shown that the accused was determined to have sexual connection

(penetration)  with  the  prosecutrix  at  all  events  inspite  of  all

resistance. In the present case the accused fled away on when the

PW3  came  to  the  place  of  incident  due  to  shouting  of  the

prosecutrix.  This  shows  he  wasn’t  determined  to  have  sexual

connection  with  the  prosecutrix  despite  all  resistance  and  odds.

Also it would be relevant to note that there are inconsistencies in

the statement of the prosecutrix wherein she states that she had

suffered injuries on her breast but same is not corroborated by the

medical evidence. Also, Saroj, who is an important eye witness, is

not produced as a witness. In this view of the matter, we find it

difficult  to  hold  that  offence  of  attempt  to  rape  is  proved  to  a

sufficient measure.

9. Now we move to the question of sentence vis-à-vis the benefit

granted under the Probation of Offenders Act, 1958. In Azhar Ali

Vs.  State of  West Bengal,  (2013)  10 SCC 31,  this  Court  while

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dealing with the question of applicability of 1958 Act to an offence

under Section 354 of IPC, found as follows:

“12.  In the  instant  case,  as the  appellant  has committed a heinous crime and with the social conditions prevailing in the society, the modesty of a women has to be strongly guarded and as the appellant behaved like a roadside Romeo, we do not think it is a fit case where the benefit of the 1958 Act should be given to the Appellant.”

10. In  State of Himachal Pradesh Vs. Dharam Pal,  (2004) 9

SCC 681, this Court was dealing with probation of offenders in case

of offence of attempt to commit rape. The finding of this Court in

the said judgment is relevant for all the offences against the women,

which is as follows:

“6. According to us, the offence of an attempt to commit rape is a serious offence, as ultimately if translated into the  act  leads  to  an  assault  on  the  most  valuable possession  of  a  woman  i.e.  character,  reputation, dignity  and honour.  In a traditional  and conservative country like India, any attempt to misbehave or sexually assault a woman is one of the most depraved acts. The Act  (Probation  of  Offenders  Act,  1958)  is  intended to reform  the  persons  who  can  be  reformed  and  would cease to be a nuisance in the society. But the discretion to  exercise  the  jurisdiction  under  Section  4  (of  the Probation  of  Offenders  Act,  1958)  is  hedged  with  a

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condition  about  the  nature  of  the  offence  and  the character of the offender.”

In above case although this Court did not interfere with the benefit

of probation granted by the High Court due to peculiar facts of the

case however it did not approve the reasoning given by the High

Court.

11.  In the present case the accused is not a minor, rather he has

committed an offence against a minor girl who is helpless. Further,

it is clear from the evidence on record that he ran away only when

the prosecutrix screamed and PW3 came to the place of incident,

which  goes  on  to  show that  the  accused  could  have  had  worse

intentions. The offence is heinous in nature and there is no reason

for granting benefit of probation in this case. The Trial Court has

not given any special consideration to the character of the accused

apart from the fact that this was the first conviction of the accused.

We find this is far from sufficient to grant probation in an offence

like outraging the modesty of a woman.  

12. In view of the discussion in the foregoing paragraphs, we allow

this appeal to the limited extent that the accused respondent is not

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granted the  benefit  of  Probation of  Offenders Act,  1958,  but his

conviction is maintained under Section 354 I.P.C. only. The accused

respondent is hereby sentenced to rigorous imprisonment for two

years. The respondent is directed to surrender within a period of

two weeks to serve out the sentence, failing which the Additional

District  and  Sessions  Judge,  Laxmangarh,  shall  take  necessary

steps to take him into custody to serve out the sentence. Let a copy

of  this  judgment  be sent  to the Additional  District  and Sessions

Judge, Laxmangarh, for information and necessary action.   

….....….……………………J (Pinaki Chandra  Ghose)

….....…..…………………..J (Uday Umesh Lalit)

New Delhi; May 11, 2015.