# Vikram v. State

- **Citation:** (2022) 12 ILRA 147
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-09-27
- **Case number:** Jail Appeal No. 2998 of 2010
- **Bench:** Gajendra Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/vikram-v-state-47996
- **Pages:** 11

## Headnote

A. Criminal Law - Code of Criminal
Procedure, 1973-Section 374(2) - Indian
Penal Code,1860- Sections 376 & 511Challenge to-Conviction- Accused made an
attempt to commit rape on 5 year girl and
on hearing the hue and cry raised by her
daughter
(victim),
as
her
mother
(informant)
reached
there
and
the
accused ran away arranging his clothes- It
is the settled proposition of law that
conviction can be based on the testimony
of prosecutrix/victim alone without any
corroboration, if the testimony of the
prosecutrix/victim
inspires
confidenceHer evidence would be more reliable than
that of an injured witness. In the present
case,
the
evidence
given
by
the
148 INDIAN LAW REPORTS ALLAHABAD SERIES
prosecutrix/victim does inspire confidence
and the conviction could have been based
on the statement of the prosecutrix/
victim alone. However, there is a categoric
and strong corroboration available in the
present case, in the form of statements of
PW-1 (complainant) -Moreso,
A child
witness is competent to testify u/s 118,
Evidence Act. Tutoring cannot be a ground to
reject his evidence. A child of tender age can be
allowed to testify if it has intellectual capacity to
understand questions and give rational answers
thereto Hence, the present case would fall
under Section 376 read with Section 511
IPC and it would not fall under Section
354 IPC. (Para

B. It is trite law that the prosecutrix is not
an accomplice. The evidence of victim of
sexual assault, if inspires confidence,
conviction
can
be
founded
on
her
testimony
alone
unless
there
are
compelling
reasons
for
seeking
corroboration.
Her
evidence
is
more
reliable than that of injured witness. In a
case of sexual assault corroboration as a
condition for judicial reliance is not a
requirement of law but a guidance of
prudence. Examining the testimony of
prosecutrix in the background, as stated
above, and in the facts and circumstances
of this case, we are of the clear view, that
the testimony of prosecutrix inspires
confidence, on the basis of which alone
conviction
can
be
safely
sustained.
Moreover, in the instant case we find that
the statements of the prosecutrix are well
corroborated
by
medical
and
other
contemporaneous documents. It is also
well established principle of law that
minor
contradictions
or
insignificant
discrepancies in the statement of the
prosecutrix should not be a ground for
throwing
out
an
otherwise
reliable
prosecution case.
The appeal is dismissed. (E-6)

List of cases cited:

## Text

12 All. Vikram Vs. State
147
and circumstances of the case and gravity
of offence. Hon'ble Apex Court, as
discussed above, has held that undue
harshness should be avoided taking into
account
the
reformative
approach
underlying in criminal justice system.

36. On the overall scrutiny of the facts
and circumstances of the case coupled with
medical evidence and the opinion of the
Medical Officer and considering the
principles laid down by the Courts in above
referred case laws, we are of the considered
opinion that in the case at hand, the offence
would be punishable under Section 304
(Part-I) of IPC.

Punishment:

37. The accused is in jail since
14.1.2016. The Apex Court in such cases
has converted the conviction under Section
302 of I.P.C. to under Section 304 Part I of
I.P.C. which will come to the aid of the
accused-appellant.

38. In view of the aforementioned
discussion, we are of the view that the
appeal has to be partly allowed, hence,
appeal is partly allowed. The judgment in
Chherturam @ Chainu ( supra) will enure
for the benefit of the accused and the
judgment of Stalin Vs. State represented
by the Inspector of Police ( supra), we
punish the accused-appellant for eight years
rigorous
imprisonment
and
fine
of
Rs.10000/- in default of fine to undergo one
year rigorous imprisonment.

39. Appellant-accused is in jail since
14.1.2016 till date. On completion of eight
years of incarceration with remission is
over for all the offences and if fine is not
deposited, the default sentence would start
after the period of eight years. The accused-
appellant shall be released on completion
of said period, if not required in any other
case. The accused-appellant would be
entitled to all remissions. The judgment and
order impugned in this appeal shall stand
modified accordingly.

40. Let a copy of this judgment along
with the trial court record be sent to the
Court and Jail Authorities concerned for
compliance.
----------
(2022) 12 ILRA 147
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 27.09.2022

BEFORE

THE HON'BLE GAJENDRA KUMAR, J.

Jail Appeal No. 2998 of 2010

Vikram ...Appellant
Versus
State ...Opposite Party

Counsel for the Appellant:
From Jail, Sri Rajesh Kumar Singh, A.C.

Counsel for the Opposite Party:
A.G.A.

A. Criminal Law - Code of Criminal
Procedure, 1973-Section 374(2) - Indian
Penal Code,1860- Sections 376 & 511Challenge to-Conviction- Accused made an
attempt to commit rape on 5 year girl and
on hearing the hue and cry raised by her
daughter
(victim),
as
her
mother
(informant)
reached
there
and
the
accused ran away arranging his clothes- It
is the settled proposition of law that
conviction can be based on the testimony
of prosecutrix/victim alone without any
corroboration, if the testimony of the
prosecutrix/victim
inspires
confidenceHer evidence would be more reliable than
that of an injured witness. In the present
case,
the
evidence
given
by
the
148 INDIAN LAW REPORTS ALLAHABAD SERIES
prosecutrix/victim does inspire confidence
and the conviction could have been based
on the statement of the prosecutrix/
victim alone. However, there is a categoric
and strong corroboration available in the
present case, in the form of statements of
PW-1 (complainant) -Moreso,
A child
witness is competent to testify u/s 118,
Evidence Act. Tutoring cannot be a ground to
reject his evidence. A child of tender age can be
allowed to testify if it has intellectual capacity to
understand questions and give rational answers
thereto Hence, the present case would fall
under Section 376 read with Section 511
IPC and it would not fall under Section
354 IPC. (Para

B. It is trite law that the prosecutrix is not
an accomplice. The evidence of victim of
sexual assault, if inspires confidence,
conviction
can
be
founded
on
her
testimony
alone
unless
there
are
compelling
reasons
for
seeking
corroboration.
Her
evidence
is
more
reliable than that of injured witness. In a
case of sexual assault corroboration as a
condition for judicial reliance is not a
requirement of law but a guidance of
prudence. Examining the testimony of
prosecutrix in the background, as stated
above, and in the facts and circumstances
of this case, we are of the clear view, that
the testimony of prosecutrix inspires
confidence, on the basis of which alone
conviction
can
be
safely
sustained.
Moreover, in the instant case we find that
the statements of the prosecutrix are well
corroborated
by
medical
and
other
contemporaneous documents. It is also
well established principle of law that
minor
contradictions
or
insignificant
discrepancies in the statement of the
prosecutrix should not be a ground for
throwing
out
an
otherwise
reliable
prosecution case.
The appeal is dismissed. (E-6)

List of cases cited:

1. Dalip singh & ors.Vs St. of Punj. (1953) AIR
SC 364

2. Vadivelu Thevar Vs St. of Madras

3. Masalti & ors. Vs St. of U.P. (p. 209-210 para 14)

4. Chaitu Lal Vs St. of U.K. (2019) 20 SCC 272

5. Kamalanantha & ors.Vs St. of T.N. (2005) 5
SCC 194

(Delivered by Hon'ble Gajendra Kumar, J.)

1. The accused appellant who was
tried for the offence under Section 376 read
with Section 511 IPC, by Additional
Sessions Judge, Shahjahanpur in Sessions
Trial No.917/2007, has filed the present jail
appeal before this Court being aggrieved by
the judgment and order dated 10-02-2010
passed by the said Court whereby the
accused-appellant has been convicted for
the offence punishable under Section 376
read with Section 511 IPC and sentenced to
suffer rigorous imprisonment for 10 years
and to pay a fine of Rs.10,000/- and in
default of payment of fine further rigorous
imprisonment for one years.

2. The prosecution case in brief is
that, on 06.03.2005, when minor daughter
of the informant, aged 5 years was playing
at the gate of her home, accused appellantVikram came and enticed her away,
thereafter made an attempt to commit rape
on her and on hearing the hue and cry
raised by her daughter (victim), as her
mother (informant) reached there and the
accused ran away arranging his clothes.
Thereafter, First Information Report was
lodged by the informant (P.W.-1) on
07.03.2005 at about 15:15 hours bearing
Case Crime No.62 of 2005 at Police
Station-Khutar,
District-Shahjahanpur,
under Section 354 IPC.

3. The Investigating Officer (P.W.-6),
on registration of crime vide first information
12 All. Vikram Vs. State
149
report
(Ext.
Ka-3)
started
with
investigation.He recorded the statements of
the witnesses and inspected the place of
occurrence and prepared the site plan (Ext.
Ka-5). The Investigation Officer (P.W.-6) on
conclusion of the investigation submitted the
charge-sheet (Ext. Ka-6) against the accused
appellant for the offence under Section
376/511 IPC and since the case was
exclusively triable by the court of Sessions
Judge, it was committed to court of sesssions
judge and later on transferred to the court of
Additional Sessions Judge, Shahjahanpur in
Sessions Trial No.917/2007 as stated above.
The Additional Sessions Judge, Shahjahanpur
on 10-02-2010 framed the charge against the
accused appellant to the effect that accusedappellant on 06-03-2005 at some time in
village Hitaura within the circle of P.S.
Khatar district Shahjanhanpur attempted to
rape on the victim aged 5 years, and in such
attempt
did
certain
act
towards
the
commission
of
said
offence
thereby
committed an offence punishable under
Section 376 read with Section 511 IPC.
Accused appellant pleaded not guilty and
prayed for trial.

4. Prosecution in support of its case
examined as many as six witnesses i.e.
Smt. Laung Shri, mother of victim (P.W.-
1), victim (P.W.-2), Ram Prasad, father of
victim (P.W.-3), Dr. Manju Sachan (P.W.-
4), Chhote Lal, H.C.P.-47 (P.W.-5) and
Suresh Pal Sharma, S.I. (P.W.-6).

5.

In
documentary
evidence,
prosecution produced and proved the Tahrir
Report as Ext.Ka-1, injury report as
Ext.Ka-2, chick FIR as Ext.Ka-3, copy of
G.D. as Ext.Ka-4, site plan as Ext.Ka-5 and
charge-sheet as Ext.Ka-6.

6. On the closure of prosecution
evidence, all the incriminating material was
put to the accused. He made his statement
under Section 313 of Code of Criminal
Procedure and denied the allegation of the
offence under Section 376 read with
Section 511 IPC and the incident as alleged
by prosecution. He submitted that he has
been falsely implicated by the prosecution
and he is not involved in committing the
aforesaid offence.

7. P.W. 1, Smt Laung Shri who is
mother of the victim in her testimony stated
that occurrence took place three years and
three months ago from today at 10-11 A.M.
my daughter victim was playing at the gate
of her home. My neighbour Vikram came
there enticed away my daughter victim
aged 5 year and laid her on cot and having
made her naked, sat over her, then my
daughter raised alarm, then I rushed from
the home and reached the place of
occurrence, right then vikram ran away
arranging his clothes, in northern direction.
When my husband came over I got the
report scribed by him, having dictated the
same. Both went to the police station
alongwith their daughter and report was
lodged. She proved the report as Ext.Ka-1.

8.

P.W.
2,
after
preliminary
interrogation to ascertain her capacity to
understanding and ability to depose, the 9
year old victim has stated in her testimony
that the incident took place three years
from today at noon. At the time of incident
I was playing at the gate of my home.
Identifying the the accused she stated that
this Vikram enticed her away to shop then
he laid me on cot and lowered my panty
and made me naked. The accused took my
panty off with the intention to rape me. He
came over me and lay on me and
committed dirty deed on me. The accused
entered his urine pipe into my place of
urine. I raised alarm then my mother and
150 INDIAN LAW REPORTS ALLAHABAD SERIES
other villagers came over there, right then,
accused ran away, leaving me. Vikram's,
the accused present in court, urine pipe
entered a little into my place of urine. I was
examined at Government hospital. To court
she stated that Vikram belongs to my
neighbourhood, since before the incident he
used to come to my home and I know him
very well.

9. P.W. 3, Ram Prasad, who is father
of the victim in his testimony he stated that
at the time of incident he was away at
Aligarh for earning, his wife telephonically
informed him about the incident that
Vikram has forcefully raped his daughter
aged 5 year. On receiving information, he
came home and his wife told him that the
accused Vikram forcefully taken away his
daughter and forcefully raped her. On her
dictation he scribed the report, went to
police station and lodged the report.
Thereafter took her daughter to hospital
and got her medically examined.

10. PW-4, Dr Manju Sachan is a
Medical Officer, who proved in her
testimony medical report as Ext.Ka-2 and
stated that she had conducted the medical
examination of the victim and had given
report mentioning therein that there is no
sign of injury on thighs and vagina. The
hymen of victim is intact and is normal in
nature, due to which the finger test cann't
be conducted and the sample was also not
taken. The condition of the victim's private
part is also normal.

11. PW-5, H.C. Chotey Lal, who
proved, in his testimony, chick FIR and
copy of G.D. as Ext.Ka-3&4. He stated
that he was on his duty at the concerned
police station on 07.03.2005, informant,
who is the mother of the victim, filed a
written complaint against the appellant
alleging therein that appellant has tried to
sexual assault upon her daughter, aged
about 5 years, on the basis of which, he
lodged the FIR. At the time of lodging of
the FIR, informant along with victim came
and her husband was also present there.

12. PW-6, I.O. S.K. Sharma, who
proved, in his testimony, site plan and
charge-sheet
as
Ext.Ka-5
&6.
On
07.03.2005, in his statement, he stated that
after lodging of the FIR, he reached at the
spot and recorded the statements of the
victim as well as her parents, thereafter, on
08.03.2005 after investigating the case
thoroughlly, submitted the chargesheet
under Sections 354, 376 & 511 IPC.

13. The learned trial Court after
hearing the parties' counsel and considered
and analysed the evidence on record found
the case of prosecution proved beyond all
reasionable doubts against the appellant
and has convicted the accused-appellant as
indicated in para-1 of the judgment.
Aggrieved, the accused has preferred this
appeal from jail.

14. I have heard learned amicus
curaie for the accused-appellant, learned
AGA for the State and perused the original
record of the trial Court.

15. Learned counsel for the appellant
submits that the unexplained delay in the
F.I.R. shows that it was lodged as an
afterthought without showing the time and
place of occurence. He further submits that
both the parties had some quarrel as there
was some dispute between the mother of
the victim and her sister-in-law (Jethani)
and only to mount pressure upon the
accused false and frivolous FIR has been
lodged out of enmity. He further submitted
that the prosecution version is highly
12 All. Vikram Vs. State
151
improbable. The prosecution did not
produce any independent witness in support
of its case and the witnesses relied upon by
the court below are all of the same family
and are interested witnessees. He further
submits that because the appellant did not
have opportunity to cross examine the
prosecutrix, therefore, her uncorroborated
statement can not be read in evidence. He
further submits that the proved facts and
circumstances available on record of the
case, make out a case of preparation only
against the accused and he has been
illegally
convicted
for
the
offence
punishable under Section 376 read with
Section 511 IPC. Drawing attention to the
contents of the FIR as also the statement of
the victim, learned counsel for the appellant
has contended that taking off panty of
victim from her body would only mean that
the accused was making preparation to
forcibly ravish the minor daughter of the
informant. From perusal of the memo of
appeal, it has also been averred that if at all
the facts appearing in the case are taken to
be true, then also the offence would not
travel beyond section 354 IPC, so the
appellant had been illegally convicted and
sentenced u/s 376/511 IPC.

16. Per contra learned AGA has
defended the impugned judgment and order
and has submitted that the learned trial
court has rightly convicted the appellant.
He further submitted that in our tradition
bound country a rural girl of tender age
would not tarnish or damage her own
reputation and image merely because her
family members had any dispute with or
animosity
against
the
accused
by
volunteering to falsely claim that she had
been raped and defiled. According to him,
the evidence not only shows the intention
to commit the rape, an attempt was also
made to do it and successful in completion
thereof. The contention of the AGA is that
the evidence of victim P.W.-2 is cogent,
consistent
and
trustworthy,
appellant
missed opportunity to cross examine her
for no fault of her own. Since her testimony
has
been
duly
corroborated
by
the
testimony of P.W.1 and P.W.3. So far as
offence of attempt to rape is concerned, that
is well established by the testimony of
P.W.-2.

17. I have given my thoughtful
consideration to submissions made and the
entire evidence on record.

18. In view of the rival contentions
first I would like to discuss as to whether
the prosecution witnesses of fact were
rightly believed or not by the trial court. It
is worthwhile to mention that all the
prosecution witnesses of fact are related to
each other but that alone cannot be a
sufficient ground to discard their testimony
out rightly.

19. In Dalip singh and Ors v. The
State of Punjab (AIR 1953 SC 364) it has
been laid down as under:

"A witness is normally to be
considered independent unless he or she
springs from sources which are likely to be
tainted and that usually means unless the
witness has cause, such as enmity against
the accused, to wish to implicate him
falsely. Ordinarily a close relation would
be the last to screen the real culprit and
falsely implicate an innocent person. It is
true, when feelings run high and there is
personal cause for enmity, that there is a
tendency to drag in an innocent person
against whom a witness has a grudge along
with the guilty, but foundation must be laid
for such a criticism and the mere fact of
relationship far from being a foundation is
152 INDIAN LAW REPORTS ALLAHABAD SERIES
often a sure guarantee of truth. However,
we are not attempting any sweeping
generalization. Each case must be judged
on its own facts. Our observations are only
made to combat what is so often put
forward in cases before us as a general rule
of prudence. There is no such general rule.
Each case must be limited to and be
governed by its own facts."

20. The above decision has since been
followed in Guli Chandtate of Rajasthan
in which Vadivelu Thevar v. Sate of
Madras also relied upon. The Apex Court
observed that we are unable to agree with
the learned Judges of the High Court that
the testimony of the two eyewitnesses
requires corroboration. If the foundation for
such an observation is based on the fact
that the witnesses are women and that the
fate of seven men hangs on their testimony,
we know of no such rule. If it is grounded
on the reason that they are closely related
to the deceased we are unable to concur.
This is a fallacy common to many criminal
cases and one which another Bench of this
Court endeavoured to dispel in Rameshwar
v. state of Rajasthan. We find, however, that
it unfortunately still persists, if not in the
judgments of the Courts, at any rate in the
arguments of counsel.

21. Again in Masalti and Ors. v.
State of U.P. Apex Court observed : (p.
209-210 para 14):

"But it would, we think, be
unreasonable to contend that evidence given
by witnesses should be discarded only on the
ground that it is evidence of partisan or
interested
witnesses....
The
mechanical
rejection of such evidence on the sole ground
that it is partisan would invariably lead to
failure of justice. No hard and fast rule can
be laid down as to how much evidence should
be appreciated. Judicial approach has to be
cautious in dealing with such evidence; but
the plea that such evidence should be rejected
because it is partisan cannot be accepted as
correct."

22. Thus In view of the above legal
position it is now settled that inter-se
relationship of the witnesses cannot be a
ground to discard them but while assessing
their evidence the Court must be at guard.
The prosecution in the present case examined
P.W.1 Smt Laung Shri, mother of the victim,
P.W.2 the prosecutrix and P.W.3 Ram Prasad
father of the victim.

23. P.W.1 Smt Laung Shri is the mather
of the prosecutrix while P.W.3 is her father. In
this way all are related to each other and as
per the above discussion their evidence
requires close scrutiny.

24. P.W.1, Smt. Laung Shri, who
proved in her testimony, Tahrir as Ext.Ka-1,
is mother of the victim, she stated that
occurrence took place three years and three
month ago. At 10-11 a.m. when her daughter
(victim), aged about 5 year, was playing at
the gate of her home, accused-appellant
(Vikram) came there, enticed her daughter
away and, thereafter, laid (victim) on the cot
and disrobbing her, sat upon the victim.
When she (victim) raised alarm to escape
herself, then her mother, (P.W-1) rushed
towards the place of occurrence and after
seeing
her
(P.W-1),
accused-appellant
arranging his clothes ran away from the spot
in northern side. When her husband (P.W-3)
return back to his home, she described the
said incident and, thereafter, both went to the
police station alongwith their minor daughter
(P.W.-2) and lodged the FIR.

25. This witness was tried to be belied
on the ground that he has come to depose
12 All. Vikram Vs. State
153
against the appellant on account of enmity.
Regarding the enmity it was pointed out
that at the time of occurrence, Mohan Lal
was the pradhan of the village and she was
not on talking terms with the pradhan but
accused was on talking terms with the
pradhan. Thus the enmity pleaded by the
appellant has not been proved. Moreover,
the above enmity could not prompt the
witness to sacrifice the chastity of her
daughter. There could be several other
ways to take revenge on account of the
above enmity, if it was there, and she in
normal circumstances would not take
revenge through her daughter. Thus the
ground of enmity, as suggested by the
appellant, is not convincing and it cannot
be held that the applicant has been falsely
implicated on account of any such enmity.

26. The statement of the witness has
also been tried to be belied on the ground
that there is contradiction in her statement
and FIR about the time of occurrence and
the site plan about the place of occurrence.
This witness has stated that time of the
occurrence is 11 A.M. and accused enticed
away and laid on the cot. In site plan, place
of occurrence is shown as the house of the
accused. From the statement of the witness
the prosecution story regarding the time,
place and manner of occurrence is fully
proved and there is nothing on record to
disbelieve this witness. She was rightly
believed by the trial court.

27. P.W. 3, Ram Prasad, who is a
father of the victim, stated that at the time
of incident, he went Aligarh for earning his
livelihood.
His
wife
telephonically
informed him about the said incident that
accused-appellant has forcefully raped his
daughter. On receiving such information,
he came back to his home, and scribed
report at her dictation, thereafter, he along
with his wife and daughter went to the
police
station
and
lodged
the
FIR.
Thereafter, they took her daughter to the
hospital to get her medically examined.The
accused was given opportunity to cross
examine but he failed to availed the same.
He is also a reliable witness and was rightly
believed by the trial court

28. P.W.-2, herself is a victim, after
preliminary interrogation to ascertain her
capacity of understanding and ability, 9
year old victim after identifying the
accused, has stated that the incident took
place three years ago at noon. At the time
of the incident, when she was playing at the
gate of her house, accused-appellant came
there and enticing her away and taken to
the shop, thereafter, he (accused) laid her
on the cot disrobbing her entered his urine
pipe a little into her place of urine.
Thereafter, she raised alarm to escape
herself then her mother (P.W.1) and other
villagers came over there and after seeing
them accused ran away from the spot. She
was examined at Government hospital. To
court she stated that Vikram belongs to her
neighbourhood,since before the incident he
used to come to her home and she knows
him very well. As counsel for the accused
remained absent, accused also refuse to
cross examine, his opportunity was closed,
coss examination - Nil .

29. A child witness is competent to
testify u/s 118, Evidence Act. Tutoring
cannot be a ground to reject his evidence. A
child of tender age can be allowed to testify
if it has intellectual capacity to understand
questions and give rational answers thereto.
Trial Judge may resort to any examination
of a child witness to test his capacity and
intelligence. If on a careful scrutiny, the
testimony of a child witness is found
truthful, there can be no obstacle in the way
154 INDIAN LAW REPORTS ALLAHABAD SERIES
of accepting the same and recording
conviction of the accused on the basis of
his testimony.

30. As the witness was tested before
being examined and court found the witness
is average intellegent and capable to
understand the questions and answer, ADGC
(Crl) was permitted to examine and the
witness was examined and after examinationin-chief, to court she stated that Vikram
belongs to her neighbourhood, since before
the incident he used to come to her home and
she knows him very well. An opportunity
was given to the accused to cross-examine
witness but he failed to avail the same,
moreover, the said order was not challenged
in revision, so the same attained finality. At
this stage it can not be allowed that her
testimony is not admissile in evidence as she
has not been cross-examined in the face of
the circumstances that no animus against the
witness can be attributed to falsely implicate
the accused. The testimony of this witness is
cogent, consistent and trusworthy. She is not
a tutored witness. She is a reliable witness
and has rightly been believed by the trial
court.

31. The question that falls for
consideration of this court is, as to whether
the offence committed by the appellant would
come within the scope of Section 376 read
with Section 511 IPC or not.

31. Since the main thrust of learned
counsel for both the parties is on the
ingredients of Section 511 IPC IPC, it would
be appropriate to reproduce Section 511 IPC
IPC for ready reference and the same reads as
under :-

"Punishment for attempting to
commit
offences
punishable
with
imprisonment for life or other imprisonmentWhoever attempts to commit an offence
punishable by this Code with [imprisonment
for life] or imprisonment, or to cause such an
offence to be committed, and in such attempt
does any act towards the commission of the
offence, shall, where no express provision is
made by this Code for the punishment of such
attempt, be punished with [imprisonment of
any description provided for the offence, for a
term which may extend to one half of the
imprisonment for life or, as the case may be,
one-half of the longest term of imprisonment
provided for that offence], or with such fine
as is provided for the offence, or with both."

32. Considering the abovesaid peculiar
fact situations of the present case, with a view
to arrive at a conclusion, so as to answer the
question posed above, there are three
different and relevant stages, which are to be
analysed from the point of view of this Court.
The first stage was whether there was any
mens rea which is sine qua non for
commission of any offence. In the present
case, the above noted first stage of mens rea
came to be covered by the appellant, once he
went near the house of the victim knowing
fully well that the prosecutrix was playing all
alone. The second stage was the preparation.
The accused-appellant covered the second
stage also by laying her in the cot and,
thereafter, lowering the panty of the victim
and making her naked. The third and crucial
stage was an attempt to commit the rape. It is
to be seen at this stage, whether the appellant
was determined for committing the offence or
not. The relevant words from Section 511
IPC, quoted above, would come handy at this
stage and the same read as under :-

"and in such attempt does any act
towards the commission of the offence".

33. An attempt to commit an offence
is an act, or a series of acts, which leads
12 All. Vikram Vs. State
155
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 alone in part
execution of a criminal design, amounting
to more than mere 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. 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.

34. 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.

35. Applying the principle of
harmonious interpretation, even one action
taken at the hands of accused towards the
commission of offence would amount to an
attempt because the words are: "does any
act". In the present case, the appellant did
not only do one act, but more than five acts,
which show his strong determination for
commission of the offence. These acts were
(i)
knowing
fully
well
that
the
prosecutrix/victim was playing all alone;
(ii) laying her in the cot and, thereafter,
lowering the panty of the victim and
making her naked: (iii) came over her; (iv)
laying
down
himself
on
the
prosecutrix/victim; (v) resistance shown by
the prosecutrix by screaming loudly and act
of not desisting by the appellant. All these
actions of the appellant, put together and
considered, keeping in view the attending
circumstances of the present case, go to
establish the strong determination of the
appellant in attempting to commit the
offence of rape. The accused/Appellant has
not shown any reluctance that he is going
to stop from committing the aforesaid
offence, therefore, had there been no
interference, in form of raising alarm by the
victim and reaching of mother of victim at
the
place
of
occurence
,
the
accused/appellant
would
have
been
succeeded in executing his criminal design,
the conduct of the accused in the present
case is indicative of his definite intention to
commit said offence.

36. The above said view taken by this
Court finds support from the judgment of
the Hon'ble Supreme Court in Chaitu Lal
versus State of Uttarakhand, (2019) 20
SCC 272. The relevant observations made
in para 10 of the judgment, read as under:

"Herein,
although
the
complainantvictim and her daughter were
pleading with the accused to let the
complainantvictim
go,
the
accusedappellant did not show any reluctance that
he was going to stop from committing the
aforesaid offence. Therefore, had there
been no intervention, the accusedappellant
156 INDIAN LAW REPORTS ALLAHABAD SERIES
would have succeeded in executing his
criminal design. The conduct of the
accused in the present case is indicative of
his definite intention to commit the said
offence."

37. Thus, drawing thin line distinction
between the commission of offence under
Section 376 IPC read with Section 511 IPC
i.e. attempt to commit rape and offence
under Section 354 IPC i.e. offence of
outraging the modesty of a woman, this
Court is of the considered opinion that the
present case falls under Section 376 IPC
read with Section 511 IPC and not under
Section 354 IPC. In this view of the matter,
the
question
posed,
hereinbefore,
is
answered, accordingly.

38. It is the settled proposition of law
that conviction can be based on the
testimony
of
prosecutrix/victim
alone
without any corroboration, if the testimony
of
the
prosecutrix/victim
inspires
confidence.
I
say
so
because
the
prosecutrix/victim is not an accomplice, but
victim. Her evidence would be more
reliable than that of an injured witness. In
the present case, the evidence given by the
prosecutrix/victim does inspire confidence
and the conviction could have been based
on the statement of the prosecutrix/victim
alone. However, there is a categoric and
strong corroboration available in the
present case, in the form of statements of
other PWs, particularly PW-1, Smt. Laung
Shri (complainant).

39. The above said view taken by this
Court finds support from the judgment of
the
Hon'ble
Supreme
Court
in
Kamalanantha and others versus State
of Tamil Nadu, (2005) 5 SCC 194. The
relevant observations made in para 34 of
the judgment, read as under:

"It is trite law that the prosecutrix
is not an accomplice. The evidence of
victim of sexual assault, if inspires
confidence, conviction can be founded on
her testimony alone unless there are
compelling
reasons
for
seeking
corroboration. Her evidence is more
reliable than that of injured witness. In a
case of sexual assault corroboration as a
condition for judicial reliance is not a
requirement of law but a guidance of
prudence. Examining the testimony of
prosecutrix in the background, as stated
above, and in the facts and circumstances
of this case, we are of the clear view, that
the testimony of prosecutrix inspires
confidence, on the basis of which alone
conviction
can
be
safely
sustained.
Moreover, in the instant case we find that
the statements of the prosecutrix are well
corroborated
by
medical
and
other
contemporaneous documents. It is also well
established principle of law that minor
contradictions
or
insignificant
discrepancies in the statement of the
prosecutrix should not be a ground for
throwing
out
an
otherwise
reliable
prosecution case.(See State of Punjab v.
Gurmit singh)."

40. So far as delay in lodging of the
FIR is concerned, there is sufficient
explanation in the FIR itself as at the time
of the incident, father of the victim i.e.
husband of the complainant was out of
station and as soon as the said incident
came to his knowledge, he came there and
lodged the instant FIR, therefore, this
cannot be said that the same has been done
as an afterthought. At the time of the
incident, prosecutorix was of her tender age
and no one will put his/her girl's honour at
stake considering her future. As per
statement of P.W.-1 (mother of the victim),
after seeing her, accused ran away
12 All. Sarjeet & Anr. Vs. State of U.P.
157
arranging his clothes from the spot also
supports the ingredients of Section 6 of the
Evidence Act. The testimony of the victim
(P.W.-2) to the extent that the accused had
sexual intercourse with her cannot be said
to have proved offence under Section 376
IPC since her medical examination does
not support prosecution version that she
was subjected to sexual intercourse at the
time of incident as alleged. The trial Court
which has considered the entire evidence
on record in this connection and the
findings arrived at by the trial Court
appears to be well reasoned. Minor
contradictions pointed out by the defence
are not material and does not make the
testimony of these witnesses unbelievable
to that extent. I, therefore, find myself in
full agreement with the reasons given by
the trial Court that the accused attempted to
commit rape on the victim (P.W. 2), and the
conviction of the accused for the said
offence under Section 376 read with
Section 511 IPC deserves to be maintained
and does not call for any interference in
this appeal.

41. Therefore, keeping in view the
fact situation and evidence discussed in the
forgoing
part
of
the
judgment,
I
unhesitatingly hold that the present case
would fall under Section 376 read with
Section 511 IPC and it would not fall under
Section 354 IPC. Accordingly, the instant
Jail Appeal deserves to be dismissed and is
dismissed.

42. Since the appellant has already
served out the entire sentence awarded to
him including the default clause of nonpayment of fine, he need not surrender, if
he is not wanted in any other case crime.

43. A copy of this order be sent to jail
and another copy be sent to the court
concerned along with the original record
forthwith.

44.

Sri
Rajesh
Kumar
Singh
Advocate, who has very efficiently assisted
this Court in the hearing of the appeal as
Amicus Curiae, shall be paid Rs.11,000/- as
fee within 15 days from the date of this
order.

45. There will be no order as to costs.
----------
(2022) 12 ILRA 157
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 14.12.2022

BEFORE

THE HON'BLE DR. KAUSHAL JAYENDRA
THAKER, J.
THE HON'BLE NALIN KUMAR SRIVASTAVA, J.

Criminal Appeal No. 3171 of 2010

Sarjeet & Anr. ...Appellants
Versus
State of U.P. ...Respondent

Counsel for the Appellants:
Sri Faneesh Mishra, Sri Chandra Kesh
Misra, Sri D.S. Misra, Sri Deepak Kumar
Pandey, Dr. C.P. Upadhyay, Sri Govind
Saran Hajela, Sri Pradeep Kumar Bhardwaj,
Ms. Renu Singh, Sri T. Islam, Sri Saroj
Kumar Tiwari, Sri Yogesh Srivastava

Counsel for the Respondent:
Govt. Advocate

A. Criminal Law - Code of Criminal
Procedure, 1973-Section 374(2) - Indian
Penal Code,1860- Sections 147, 148, 302,
& 120-B - Challenge to-Conviction- P.W.1
in his examination-in-chief admitted the
factum of previous enmity between the
parties-the prosecution has produced as
many as five witnesses as eye-witness of
the
occurrence
including
P.W.1,
but