The instant appeal is directed against the judgment and order of conviction and sentence dated 25th July, 2018 and 27th July, 2018 passed by the
learned Additional Sessions Judge, Chandernagore in Sessions Trial No.44 of 2014, corresponding to Sessions Case No.07 of 2014 which arose out of
Bhadreswar P.S. Case No.256 of 2013 dated 7th July, 2013 under Section 376/511 of the Indian Penal Code sentencing the appellant to suffer
rigorous imprisonment for 5 years and to pay fine of Rs.2000/-, in default, to suffer further imprisonment of one month.
A very short question is involved in the instant appeal, viz., the specific act of the accused/appellant, even if admitted, tantamounts to commission of
offence under Section 376/511 of the Indian Penal Code.
In order to substantiate the charge under Section 376/511 of the Indian Penal Code, Prosecution examined 9 witnesses. Defence case as disclosed
from the cross-examination of the witnesses on behalf of the Prosecution as well as examination of the accused under Section 313 of the Code of
Criminal Procedure and evidence of the three witnesses on behalf of the defence is that of false implication of the accused due to animosity between
the parties due to landed property dispute.
It is needless to say that in an offence of sexual assault or attempt to commit sexual assault, it is the evidence of the victim girl that matters most.
Accomplice theory cannot be applied in case of the evidence of the victim girl. She is the injured witness and it is expected that she will not make
false allegation against an innocent person at the cost of her feminine dignity, honour and chastity.
The case in hand discloses an incident which took place on 7th July, 2013, when the de facto complainant (P.W.1) did not find her mentally retarded
daughter, she conducted search and went to the house of her neighbour, the appellant herein. She found the door of the room of the appellant closed
from inside. She peeped through the window and found that the accused was lying over the body of the victim girl, tried to commit rape upon her. The
same narration was made in the written complaint filed by the mother of the victim girl in the local police station. Another important aspect that
requires a special mention is that the victim girl was medically examined on the same day at about 1:50 p.m. by P.W.2, Dr. Santosh Kumar Hazari.
During examination, he did not find any external injury over the body of the victim girl. There was no injury seen over vulva of her private parts and
the hymen was intact.
It is found from the evidence of the victim girl (P.W.4) that on the date and time of occurrence, the accused/appellant pressed her breast and thigh
after lying her down. It is already recorded that the victim girl is mentally retarded. However, her evidence was recorded by the Trial Judge on his
satisfaction that she was able to give answer to normal questions rationally.
The said witness was cross-examined and she withstood the test of cross-examination successfully. Therefore, this Court has no reason to disbelieve
the evidence of P.W.4.
Now the most important question that requires to be answered in the instant appeal is as to whether the specific act done by the appellant comes
within the purview of attempt to commit rape.
In Aman Kumar & Anr. â€"Vs.- State of Haryana reported in 2004 SCC (Cri) 1497, the Hon’ble Supreme Court had the occasion to consider the
scope of an attempt to commit an offence. The relevant portion of the said report is reproduced below:-
“The plea relating to applicability of Section 376 read with Section 511 of the Indian Penal Code needs careful consideration. In every crime, there
is first intention to commit, secondly, preparation to commit it, thirdly, attempt to commit it. If the third stage, i.e., attempt is successful then the crime
is complete. If the attempt fails, the crime is not complete, but law punishes the person attempting the act. The Section 511 is a general provision
dealing with attempts to commit offence not made punishable by other specific sections. It makes punishable all attempts to commit offences
punishable with imprisonment and not only those punishable with death. An attempt is made punishable because every attempt, although it falls short
of success, must create alarm which by itself is an injury, the moral guilt of the offender is the same as he had succeeded. Moral guilt must be united
to cause injury in order to justify punishment. As the injury is not as grave as if the act had been committed, only half the punishment is awaited.â€
Thus, in order to prove a charge under Section 376/511 of the Indian Penal Code, prosecution was under obligation to establish all the ingredients of
offence under Section 376 of the IPC, short of penetration. If a victim girl is molested, the accused commits an offence under Section 354A of the
Indian Penal Code.
Considering the entire evidence on record, this Court finds that the accused made physical contact and advances involving unwelcome and explicit
sexual overtures within the meaning of Section 354A (1)(I) IPC and accordingly, he is liable to be punished with rigorous imprisonment which may
extend to 3 years or with fine or with both.
Therefore, this Court finds that the prosecution failed to establish the charge under Section 376 by Section 511 of the Indian Penal Code. However,
from the evidence on record, it is established beyond any shadow of doubt that the accused committed offence of sexual harassment within the
meaning of Section 354A of the Indian Penal Code.
It is needless to say that in view of the provision of Section 222(1), this Court can hold the accused guilty for committing a minor offence, though he
was not charged with it. Applying the provision of Section 222(1), the appellant is convicted for committing offence under Section 354A of the Indian
Penal Code.
Accordingly, the appellant is sentenced to rigorous imprisonment for 3 years.
The Trial Court’s judgment and order of conviction and sentence is modified accordingly.
The period of punishment shall be set off under Section 428 of the Code of Criminal Procedure against the actual period of imprisonment and if the
appellant serves out rigorous imprisonment of 3 years, he shall be released at once.
A copy of this judgment be immediately sent to the learned Court below along with the lower court record for information and compliance.
The appellant is at liberty to act on the server copy of this order.
