Bombay High Court
Shrihari @ Hari Mahadeo Bawane vs State Of Mah. Thr P.S.O Sewagram Tah And … on 22 January, 2025
Author: Nitin B. Suryawanshi
Bench: Nitin B. Suryawanshi
2025:BHC-NAG:640-DB
1 cri. appeal 244.19.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
Criminal Appeal No.244/2019
Shrihari @ Hari Mahadeo Bawane,
Aged about 45 years, Occ.-Driver,
R/o. Karanji (Kaji), Tah & Distt.Wardha. .... Appellant
(in Jail)
Versus
State of Maharashtra,
through P.S.O. Sewagram, Tah and District Wardha. .... Respondent.
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Ms Sonali B. Khobragade, Advocate for appellant (appointed).
Mrs Mayuri Deshmukh, Assistant Public Prosecutor for respondent.
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CORAM : Nitin B. Suryawanshi &
M.W. Chandwani, JJ.
Reserved on : 09-01-2025
Pronounced on : 22-01-2025
J u d g m e n t (Per Nitin B. Suryawanshi, J.)
This appeal is directed against the judgment and order of
conviction passed by learned Special Judge (Protection of Children
from Sexual Offences), Wardha in Special (Ch.) No.80/2016,
thereby convicting the appellant for offence punishable under
Section 376(2)(f)(i) of the Indian Penal Code (for short, ‘IPC‘) and
sentencing him to suffer imprisonment for remainder of his natural
2 cri. appeal 244.19.odt
life and to pay a fine of Rs. 5000/- with a default sentence of two
months.
ii. Prosecution case in short is that, in the year 2016 the
victim was studying in 8th. Standard. Her parents were residing
separately. Accused is her father, who brought her and her brother
from the custody of mother, before 4/5 days of the incident. On
30-06-2016 at 9.30 pm, she slept with her brother on cot and
accused-father was sleeping on mattress on the floor beside the cot.
In the midnight, accused woke her up. She saw that her brother
was not there on cot and he was sleeping on the mattress. Accused
was calling her on the floor but she did not go to him. Then
accused came on the cot near her. He then went to the washroom
and came back and slept near the victim. He removed her slacks,
nicker and lifted her frock up. Accused then removed his nickers
and towel wrapped by him around his waist. He took coconut oil
in his hand and applied it to his penis and also to the private part of
the victim. He then pulled victim near him and inserted his penis
in the private part of the victim. Because of the same, victim had
inflammation in her private part, she kicked the accused. Accused
3 cri. appeal 244.19.odt
started slapping her on cheek. Victim tried to raise shouts but
accused gagged her mouth with his hands and threatened her not
to shout. Because of the pain victim started crying. After some
time accused left her and went to sleep on the mattress. Due to
pain victim could not sleep for the whole night. Victim did not
disclose the incident to anybody. On 01-07-2016, after the accused
left at 10.00 am, victim wrote the incident on the page of her note
book and asked her teacher for help. Due to the incident victim
could not go to school on the next day and she remained at home.
On 02-07-2016, she went to the school. Lohakare madam asked
her the cause for her absence on previous day, but she did not
disclose anything. After the school was over, she gave the chit
written by her to Lohakare madam. When madam read the chit,
she got frightened and showed it to her colleagues. Then all the
teachers went to the house of Pradip Timande and called Sarpanch
Padmakar Shambharkar. All of them read the contents of the chit
and as it was serious in nature, they decided to lodge police
complaint. Lohakare madam, Burande Sir, Sarpanch and others
went to Police Station Sewagram. Lohakare madam lodged report.
Pursuant to lodging of the First Information Report (FIR),
4 cri. appeal 244.19.odt
investigation was conducted and chargesheet was filed. Charge was
framed against the accused for offence punishable under Section
376(2)(f)(i) of IPC and Section 6 of the Protection of Children
from Sexual Offences Act (for short, ‘POCSO’). In support of the
prosecution case, 11 witnesses were examined. Defence of the
accused was of total denial. He claimed false implication in the
crime. Learned trial Judge convicted the accused as stated above.
Hence, the appeal.
iii. Heard learned Advocate for appellant and learned APP
for State. Perused the record.
iv. Learned Advocate for the appellant submits that
admittedly there was quarrel between the parents of the victim
which has led to false implication of the appellant in the present
crime. If there is delay in lodging of FIR, the benefit of which
should be given to the appellant. Informant is the interested
witness and her evidence is not reliable. (PW-3) Mehmmuddin
Wahauddin Kazi is a habitual Police panch, therefore his testimony
is not believable. (PW-4) Sangita Dhandhaye is President of Bal
Kalyan Samiti who has stated that victim was not in a fit mental
5 cri. appeal 244.19.odt
condition and was confused. She has also admitted that without
inquiry she sent her opinion to the Police. She has deposed as per
the say of Police. It has come in the evidence of (PW-5) Sarpanch-
Padmakar Shambharkar that mother of the victim had lodged
complaint against one Diwakar Bele making similar allegations
with a view to grab money. According to her, therefore possibility
cannot be ruled out that victim’s mother has instigated her to
make allegations against appellant-father. Further submission is,
evidence of PW-8 victim is not reliable. It is submitted that
medical evidence does not support the allegations of rape made by
the victim. There was no injury on the private part of the appellant
which rules out the allegation of commission of rape. C.A. reports
do not support prosecution case. According to her, the trial Court
has failed to appreciate the evidence in the proper perspective and
the conviction is based on unreliable evidence. Therefore, the
impugned judgment and order of conviction is liable to be quashed
and set aside and appellant is entitled for acquittal.
v. In the alternate and without prejudice to the defence of
the appellant she submits that, at the most, the offence of attempt
6 cri. appeal 244.19.odt
to commit rape can be said to be proved against the appellant, but
certainly not the offence of rape. It is further submitted that the
offence is committed in the year 2016 when the punishment
prescribed for the offence under Section 376 (2)(f) of the IPC was
minimum 10 years of imprisonment which may extend to life
imprisonment and fine. After the amendment of 2018 the
punishment provided under sub-section 2 of Section 376 of the
IPC for rape is minimum sentence of 10 years, which may extend
to imprisonment for life which shall mean imprisonment for the
remainder of that person’s natural life and shall also be with fine.
vi. In support of her submissions she relied on-
(a) Guddu alias Santosh vs State of Madhya Pradesh, reported in
(2007) 14 SCC 654
(b) Aman Kumar and another vs State of Haryana, reported in
(2004) 4 SCC 379
(c) Koppula Venkat Rao vs State of A.P., reported in (2004) 3 SCC 602
(d) Ganga Prasad Mahto vs State of Bihar and another, reported
in (2020) 15 SCC 398vii. Per contra, learned Assistant Public Prosecutor supported
the impugned judgment and order of conviction. She would
submit that the victim has narrated the incident of rape in her
7 cri. appeal 244.19.odt
evidence and delay of 2 days in lodging FIR is not fatal to the
prosecution. The chit written by victim is proved by the
prosecution. Considering the evidence of victim, prosecution has
proved its case beyond reasonable doubt. Trial Court has recorded
sound reasons while convicting the appellant. Hence, no case is
made out by the appellant to interfere in the conviction recorded
by the trial Court.
viii. In support of her submissions, she placed reliance on –
(a) Madan Lal vs State of J & K, reported in (1997) 7 SCC 677
(b) Chaitu Lal vs State of Uttarakhand, reported in AIR 2020 SC 219
(c) State of Madhya Pradesh vs Mahendra alias Golu, reported in
2021 Cri.L.J. 4915
xix. Victim (PW-8) has deposed that incident took place on
30-06-2016. As usual they had food and watched T.V. She and
Vishal slept on the cot. Her father was sleeping on the floor on
mat. While she was asleep her father called her on the floor, at
that time Vishal was sleeping on the floor. She did not go. Then
her father went to the bathroom, he came back and slept with her.
8 cri. appeal 244.19.odt
He removed her clothes and also his clothes. She was wearing
slacks, underwear and frock. He applied oil on her organ of
urination and also on his organ of urination. Then he was trying
to put his organ of urination in her organ of urination. She had
severe pain in her private part. She was trying to raise shouts but
her father gagged her mouth with his hand. He was trying hard to
insert his organ in her private part. Therefore, she kicked him on
which he slapped her on her cheek. Then he got up and went to
the floor and slept there. She could not sleep for the whole night
due to severe pain. On next day, she did not go to the school. She
had not told the incident to anybody. She took one page from her
note book and wrote a letter to her madam, narrating the
incident. On 02-07-2016 she went to the school at 7.00 am and
met Lohakare madam. She asked her as to why she had not come
to the school on previous day. She did not say anything. After
school was over, she gave letter to Lohakare madam. From there
she went to home. Then Police came to her house and asked her
about her father. Her father was brought by Police to Gram
Panchayat. She was also taken to Gram Panchayat. Police then
had a talk with her and from there they all went to Police Station.
9 cri. appeal 244.19.odt
Police made enquiry with her and recorded it in writing. Then
she was taken to Government hospital at Wardha, where she was
admitted for 2/3 days.
x. Dr. Manisha Nasare (PW-7) examined victim on
02-07-2016. On local examination she found no external injury
over her body or on private part. Her hymen was found ruptured
at 10 O’Clock, 6 O’Clock and 2 O’ Clock position. She issued
medical certificate (Exhibit-46) with an opinion that possibility of
sexual intercourse or assault cannot be ruled out, but she kept
final opinion reserved till receipt of FSL report of the samples. In
cross examination she has admitted that during medical
examination she did not find active bleeding. The edges of hymen
tear were smooth, which indicates old injury, she could not say
that it was 1 or 2 months old. She has also admitted that such
injuries are possible due to cycling.
xi. Dr. Nitinkumar Nimodia (PW-9) examined the
appellant on 04-07-2016 and issued medical certificate
(Exhibit-66). He found no injury/scar/stain on the body of the
10 cri. appeal 244.19.odt
accused. On local examination of peritoneum and genitals no
injuries were noted.
xii. C.A. reports of the clothes of the victim and appellant
are negative. No semen was detected on the pubic hair or vaginal
swab of the victim. It is thus clear that the C.A. reports are of no
help to the prosecution case to prove the charge of rape.
xiii. On careful scrutiny of evidence of the victim it is clear
that she has categorically stated that appellant was trying to put
his organ of urination in her organ of urination. He was trying
hard to insert his organ in her private part, therefore she kicked
him. From her evidence no penetration or insertion on the part
of appellant is made out. To complete the office of rape in terms
of Section 375 of the IPC penetration to any extent into the
private part, mouth, urethra or anus of a woman or insertion to
any extent, any object or a part of body not being penis into the
private part or urethra etc. of a woman is necessary, The same is
not proved by prosecution in the present case.
11 cri. appeal 244.19.odt
However the act committed by the appellant clearly spells
out an attempt on his part to commit rape on the victim.
Appellant had made preparation by removing victims clothes and
his clothes and then applying oil on his and her private organs
and then tried to insert his private organ into her private part
which clearly spells out an attempt on the part of appellant to
commit rape on the victim.
xiv. It is useful to refer the observations of the Hon’ble Apex
Court in Aman Kumar (supra), wherein it is held-
“11. In order to find an accused guilty of an attempt with
intent to commit a rape, Court has to be satisfied that the
accused, when he laid hold of the prosecutrix, not only
desired to gratify his passions upon her person, but that he
intended to do so at all events, and notwithstanding any
resistance on her part. Indecent assaults are often magnified
into attempts at rape. In order to come to a conclusion that
the conduct of the accused was indicative of a
determination to gratify his passion at all events, and in
spite of all resistance, materials must exist. Surrounding
circumstances many times throw beacon light on that
aspect.
12. Though the prosecutrix’s version in Court was of
rape, when it is compared with the one given during
investigation, certain irreconcilable discrepancies are
noticed. The evidence regarding actual commission of rape
is at variance from what was recorded by police during
12 cri. appeal 244.19.odt
evidence. The evidence of PW-11, the father who according
to prosecution made departure from what he allegedly
stated during investigation is to the effect that his wife PW-
9 told her that the prosecutrix was teased by the accused
persons. Merely because he was termed as a hostile witness
his entire evidence does not get effected. Significantly, the
evidence of prosecutrix and the doctor does not specifically
refer to penetration which is sine qua non for the offence of
rape.”
xv. In Koppula Vyankat Rao (supra), the above ratio is
reiterated as follows-
“8.The plea relating to applicability of Section 376
read with Section 511 of IPC 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, that is, 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, Section 511 is a general
provision dealing with attempts to commit offences 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, and the moral guilt
of the offender is the same as if he had succeeded.
Moral guilt must be united to injury in order to justify
punishment. As the injury is not as great as if the act
had been committed, only half the punishment is
awarded.
13 cri. appeal 244.19.odt
9. A culprit first intends to commit the offence,
then makes preparation for committing it and
thereafter attempts to commit the offence. If the
attempt succeeds, he has committed the offence, if it
fails due to reasons beyond his control, he is said to
have attempted to commit the offence. Attempt to
commit an offence can be said to begin when the
preparations are complete and the culprit commences
to do something with the intention of committing the
offence and which is a step towards the commission of
the offence. The moment he commences to do an act
with the necessary intention, he commences his
attempt to commit the offence. The word “attempt” is
not itself defined, and must, therefore, be taken in its
ordinary meaning. This is exactly what the provisions
of Section 511 require. An attempt to commit a crime
is to be distinguished from an intention to commit it,
and from preparation made for its commission. Mere
intention to commit an offence, not followed by any
act, cannot constitute an offence. The will is not to be
taken for the deed unless there be some external act
which shows that progress has been made in the
direction of it, or towards maturing and effecting it.
Intention is the direction of conduct towards the object
chosen upon considering the motives which suggest
the choice. Preparation consists in devising or
arranging the means or measures necessary for the
commission of the offence. It differs widely from
attempt which is the direct movement towards the
commission after preparations are made. Preparation to
commit an offence is punishable only when the
preparation is to commit offences under Section 122
(waging war against the Government of India) and
Section 399 (preparation to commit dacoity). The
14 cri. appeal 244.19.odtdividing line between a mere preparation and an
attempt is sometimes thin and has to be decided on the
facts of each case. There is a greater degree of
determination in attempt as compared with
preparation.
10. An attempt to commit an offence is an act, or
a series of acts, which leads inevitably to the
commission of the offence, unless something, which
the doer of the act neither foresaw nor intended,
happens to prevent this. An attempt may be described
to be an act done in part execution of a criminal design,
amounting to more than more preparation, but falling
short of actual consummation, and, possessing, except
for failure to consummate, all the elements of the
substantive crime. In other words, an attempt consists
in it the intent to commit a crime, falling short of, its
actual commission or consummation/completion. It
may consequently be defined as that which if not
prevented would have resulted in the full
consummation of the act attempted. The illustrations
given in Section 511 clearly show the legislative
intention to make a difference between the cases of a
mere preparation and an attempt.
11. In order to find an accused guilty of an
attempt with intent to commit a rape. Court has to be
satisfied that the accused, when he laid hold of the
prosecutrix, not only desired to gratify his passions
upon her person, but that he intended to do so at all
events, and notwithstanding any resistance on her part.
Indecent assaults are often magnified into attempts at
rape. In order to come to a conclusion that the conduct
of the accused was indicative of a determination to
15 cri. appeal 244.19.odt
gratify his passion at all events, and in spite of all
resistance, materials must exist. Surrounding
circumstances many times throw beacon light on that
aspect.
12. The sine qua non of the offence of rape is
penetration, and not ejaculation. Ejaculation without
penetration constitutes an attempt to commit rape and
not actual rape. Definition of “rape” as contained in
Section 375 IPC refers to “sexual intercourse” and the
Explanation appended to the Section provides that
penetration is sufficient to constitute the sexual
intercourse necessary to the offence of rape.
Intercourse means sexual connection. In the instant
case that connection has not been established. Courts
below were not correct in their view.”
xvi. Applying the ratio of Aman Kumar (supra) and
Koppula Vyankat Rao (supra) to the facts of the present case and
considering the victim’s evidence along with medical and forensic
evidence in the proper perspective it is clear that prosecution has
failed to establish commission of rape on the victim. However,
there is sufficient evidence on record to prove that appellant
attempted to commit rape on the victim.
16 cri. appeal 244.19.odt
xvii. Though the chit (Exhibit-55) written by the victim
states that appellant committed rape on her, however, the
evidence of victim clearly indicates that there was an attempt on
the part of the appellant to commit rape on the victim.
xviii. In Madanlal (supra), Hon’ble Supreme Court was
considering an appeal against acquittal. In the facts of that case
the Hon’ble Supreme Court held that evidence of prosecutrix read
in its entirety was rightly accepted by the High Court and there
was sufficient corroboration to her evidence, hence the conviction
recorded under Section 376 read with Section 511 of the IPC was
upheld.
xix. In State of Madhya Pradesh (supra) Hon’ble
Supreme Court discussed about the difference between attempt
and preparation in rape.
xx. For the aforestated reasons, following order is
passed :-
Order
(a) Appeal is partly allowed.
17 cri. appeal 244.19.odt
(b) Conviction of the appellant is altered from Section
376(2)(f) of the IPC to Section 376 (2)(f)/511 of the
IPC and the appellant is sentenced to suffer rigorous
imprisonment for 10 years.
(c) Sentence of fine imposed by the trial Court is maintained.
xxi. Learned Advocate for the appellant is appointed
through Legal Aid. Her fees be paid as per schedule within four
weeks from the date of uploading of the judgment.
(M.W. Chandwani, J.) (Nitin B. Suryawanshi, J.)
Deshmukh
Signed by: Mr. S.Deshmukh
Designation: PS To Honourable Judge
Date: 22/01/2025 16:38:54
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