Sec.376 r/w 511 of I.P.C. - Vs- Sec.354 of I.P.C. and sec.4 of Probation of offenders Act - Outraging modesty of a minor girl - no benefit under Probation of Offenders Act available to the accused - on shouting accused fled away before committing any attempt to rape - Trial court found an offence under Sec.354 I.P.C. - Delay in lodging F.I.R. - no eye witness - Prosecutrix deposed that the accused did bad things - alleged eye witness stated that on his shout accused fled away - No Doctor Report - Trial court acquitted him under Sec.4 of Probation of Offenders act - High court rejected the appeal - Apex court held that 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. - 2015 S.C.MSKLAWREPORTS

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.

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.
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  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
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  Sessions
      Judge went on to grant the accused benefit of Probation  of  Offenders
      Act in view of his clear record and no prior conviction.

 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
One  must  not  lose  sight  of  the  fact  that  the
      prosecutrix was a minor child at the 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.

  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 would have resulted into  rape  had
     some extraneous factors not intervened

 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.

 In State of Himachal Pradesh Vs. Dharam Pal, (2004) 9  SCC  681, 
      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

 “ 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  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.

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.

   In view of the discussion in the foregoing paragraphs, we  allow  this
      appeal to the limited  extent  that  the  accused  respondent  is  not
      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. - 2015 S.C. MSKLAWREPORTS

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