1 2025:CGHC:5928 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 106 of 2021 1 - Kishore Walde @ Ranu S/o Indal Walde Aged About 27 Years R/o Damabanjari , Police Chowki Job, Police Station Chhuriya, District Rajnandgaon, Chhattisgarh ... Appellant(s) versus 1 - State Of Chhattisgarh Through Police Of Police Station Chhuriya, District Rajnandgaon, Chhattisgarh ... Respondent(s) For Petitioner(s) : Shri Suresh Tandon, Advocate For Respondent/State : Ms.Laxmeen Kashyap, PL (Hon’ble Shri Justice Arvind Kumar Verma) Judgment on Board 31/01/2025 This appeal under Section 374(2) of the Code of Criminal Procedure,1973 has been preferred against the judgment of conviction and order of sentence dated 06.01.2021 passed by the learned Additional Sessions Judge Fast Track Special Court (POCSO), Rajnandgaon, District Rajnandgaon (CG) in Criminal (POCSO) Case No.39/2018. 2 2. By the impugned judgment the learned trial court had convicted and sentenced the appellant as under: Conviction Sentence Under Section 451 IPC RI for two years and to pay fine of Rs. 2,000/-, in default of payment of fine to further undergo RI for three months. Under Section 342 IPC RI for one year and to pay fine of Rs. 1,000/-, in default of payment of fine to further undergo RI for three months. U/s. 354 IPC for the offence committed with victim No.1 RI for five years and to pay fine of Rs. 5000/-, in default of payment of fine to further undergo RI for 3 months U/s. 354 IPC for the offence committed with victim No.2 RI for five years and to pay fine of Rs. 5000/-, in default of payment of fine to further undergo RI for 3 months U/s. 10 of the POCSO Act, 2012 relating to victim No.1 RI for five years and to pay fine of Rs. 5,000/-, in default of payment of fine to further undergo RI for 3 months U/s. 10 of the POCSO Act, 2012 relating to victim No.1 RI for five years and to pay fine of Rs. 5,000/-, in default of payment of fine to further undergo RI for 3 months U/s. 509 IPC RI for three years and to pay fine of Rs. 5,000/-, in default of payment of fine to further undergo RI for 3 months U/s. 6/18 of the POCSO Act relating to victim No.2 RI for ten years and to pay fine of Rs. 5,000/-, in default of payment of fine to further undergo RI for 3 months All the sentences are ordered to run concurrently. 3. Brief facts of the case are that on 02.07.2018, the accused/appellant entered the primary school and after threatening the children who were aged about 9 years 8 months and 28 days and 10 years 2 months and 13 days respectively, by touching their breast, forcefully laid over one of the victim and had made an attempt to commit rape. The incident was informed to the Teacher and In charge of the Government Primary School and the concerned Teacher lodged a written complaint at Police Station Joab against the appellant for the offence under Sections 342 and 354 IPC and Section 8 of the POCSO 3 Act. Dehati Nalishi was prepared and FIR was registered. Statement of the victims were recorded under Section 164 Cr.P.C. Progress report and school admission and discharge registered was seized and they were medically examined. Spot map was prepared and the appellant was arrested. The investigation was set on motion and after due investigation, the charge sheet was filed before the competent court for the offence under Sections 451,342,354,506 IPC and Section 8 & 10 of the POCSO Act. 4. The appellant was charged as stated above who denied the charges and claimed to be tried. Prosecution in order to establish the case, examined as many as 20 witnesses. Statement of the accused under Section 313 Cr.P.C. was recorded in which he pleaded his innocence and false implication in the case. 5. Learned trial court after appreciating the evidence and material on record, found the appellant guilty of the aforesaid offences and convicted him as stated about by the impugned judgment. 6. Shri Sannat, learned counsel for the appellant made the following submissions on behalf of the appellant: (i) the impugned judgment dated 06.01.2021 is contrary to law, facts and circumstances of the case and is liable to be set aside. (ii) there is previous enmity between the victims and their family members with the appellant and therefore the appellant has been falsely implicated. (iii) the prosecution has failed to prove the guilt of the appellant beyond reasonable doubt. 4 (iv) It is submitted that the finding recorded by the learned trial court is perverse to the records as the learned trial court has not appreciated the evidence brought before it in its proper perspective. (v) The statement of the witnesses are full of omissions and contradictions and they do not inspire confidence of the Court hence, conviction on such evidence cannot sustain. 7. Per contra, the learned counsel appearing on behalf of the State had made the following observations:- i) The child victims in all her statements, has supported the case of the prosecution and there are no inconsistencies in her statements. The child victims, in all their statements has consistently maintained that the accused was touching her all over the body and attempted to commit rape. ii) He therefore submits that the findings recorded by the trial Court being based on due appreciation of the evidence of the witnesses, ocular and medical, require no interference in this appeal. 8. I have heard the counsels for the parties and perused the material on record. 9. The child victim (PW-1), in her testimony before the Trial Court, has clearly stated that the house of the appellant is in front of the school and on the date of incident, the appellant gave her Rs.10/- and asked to bring mixture but the shop was closed therefore she returned the amount at that time, the appellant asked her to come near the pond, and he will give her mobile, money and clothes and Rs. 1,000/-. She informed about the same to the teacher. She has stated that the appellant took her in the verandah and after laying her on the floor was 5 touching all over her body, she got scared and screamed whereupon Sahil came there and the appellant ran away. She narrated about the incident to the cook of the school and also to her madam, her grandmother. She has stated that the appellant has done similar act with her friend ie. another victim. She was taken to the police station from where the police took for medical examination to hospital. The police seized the progress report Ex.P-1. Statement was recorded at Ambagarh Chowki by the JMFC vide Ex.P-4.She has also deposed that the appellant had also made an attempt to commit rape of her friend and they both went to the Madam and narrated the incident. A meeting was also convened in the village where the teacher and Sir were present. 10. (PW-2) is another Victim with whom the appellant tried to outrage her modesty. She has stated on the date of incident, when she was entering the classroom, the appellant was standing outside the classroom and as soon as she entered, the appellant followed her and locked the room and was touching all over her body. She screamed aloud and on hearing the cries, her friends came and knocked the door then the appellant ran away. She immediately informed the cook and then they both went to the Madam Vaijanti and narrated the incident. Then she informed her grandmother and father, came along with her parents to the school from where along with the Madam went to the police station and after seizure of progress report vide Ex.P-5, she was medically examined. Statement was recorded under Section 164 Cr.P.C. Thereafter, a meeting was also convened in the village. Similar statements have been made by their classmates (PW-3, 4,7, 9 & 10). 6 11. Vaijanti Hamraj (PW-5) Teacher of the School has stated that on the date of incident, all the children including the victims came to her and narrated about the incident and at that time, the victims were crying. On being asked as to why they were crying, they informed that the appellant entered the classroom and seeing the victim alone, locked the door and was touching all over her body and when she screamed, other children knocked from outside and then he unlocked and ran away. She immediately went to the Cook and narrated the incident. She has further stated that another victim had also informed that the appellant asked her to bring mixture from the shop and as the shop was closed she returned the amount he asked her to keep it and he will give more money and took her to the backside of the boundary wall, lay her down but at that time, Sahil came there and he left the place. On hearing about the incident, he enquired from the Cook and thereafter informed the Headmaster of the School and then the report was lodged at police station Chhuriya. She has stated that the parents of the victims also accompanied to lodge the report. Similar statement has been made by the Cook of the School. 12. (PW-11) father of the victim No.1 has stated that on receiving information from the school and in the school, Vaijanti Hamraj Madam had informed about the incident and he along with Sarpanch and Vaijanti Madam went to the police station to lodge the report. Progress report Ex.P-5 was seized. 13. The testimony of the child victims have been consistent with their statement. The child victims had withstood the cross-examination conducted on behalf of the appellant and has throughout been 7 consistent about the appellant having tried to committed sexual assault on them. The evidence of the victims is that the accused slept over her person and has went beyond the stage of preparation. The offence of attempt to rape is established beyond reasonable doubt. the following observations of the Apex Court in Madan Lal ..vs..State of Jammu and Kashmir, AIR 1998 SC 386: “11. In this context it is appropriate to notice an argument advanced by Mr. Jain, learned senior counsel appearing for the appellant to the effect that in the absence of any penetration into the vagina the offence of rape cannot be said to have been established and it will not be possible to hold that the accused had attempted to commit rape on the prosecutrix, and therefore, it would at the most amount to an offence of indecent assault under Section 354 I.P.C. We are unable to accept this contention. Since, if the evidence of the prosecutrix is to be believed, and we do believe the same, the offence committed cannot but be held to be one of attempt to commit rape. 12. The difference between preparation and an attempt to commit an offence consists chiefly in the greater degree of determination and what is necessary to prove for an offence of an attempt to commit rape has been committed is that the accused has gone beyond the stage of preparation. If an accused strips a girl naked and then making her flat on the ground undresses himself and then forcibly rubs his erected penis on the private part of the girl but fails to penetrate the same into vagina and on such rubbing ejaculates himself then it is difficult for us to hold that it was a case of merely assault under Section 354 I.P.C. and not an attempt to commit rape under Section 376 read with 511 I.P.C. In the facts and circumstances of the present case the offence of an attempt to commit rape by accused has been clearly established and the High Court rightly convicted him under Section 376 read with 511 I.P.C". 8 14. It has been further held that “A culprit first intends to commit the offence, then makes 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.” 15. The dividing line between a mere preparation and an attempt is sometimes thin and has to be decided on the facts of each case. In order to find an accused guilty of an attempt with intent to commit a rape, the 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". 16. When the evidence of the prosecutrix is considered in the proper 9 perspective, it is clear that the commission of actual rape has not been established. However, the evidence is sufficient to prove that attempt to commit rape was made. The statements of both the victim children inspire full confidence, establish their innocence and evince a natural version without any remote possibility of tutoring. 17. As correctly pointed out by the Trial Court, the pivotal fact that the details of the incident were shared by the victims with their Teacher Vaijanti Hamraj (PW-5), the Cook of the school (PW-6) and the classmates of the victims remains undisputed and as such the Courts are obliged not to discard the entire testimony. Furthermore, this Court has time and again reiterated that the victim’s deposition even on a standalone basis is sufficient for conviction unless cogent reasons for corroboration exist. 18. Thus, in the considered opinion of this Court, the act of the appellant of attempting to commit rape, entering the classroom, closing the doors and touching the victim with the motive of carnal knowledge, was the end of ‘preparation’ to commit the offence. His following action of trying to stripping the prosecutrices and himself, was indeed an endeavour to commit sexual intercourse. These acts of the appellant were deliberately done with manifest intention to commit the offence aimed and were reasonably proximate to the consummation of the offence. Since the acts of the respondent exceeded the stage beyond preparation and intended to commit rape, the trial Court rightly held him guilty of attempting to commit rape as punishable within the ambit and scope of Section 451, 342, 354 and 509 IPC & Section 10 of the POCSO as it stood in force at the time of occurrence. 10 19. However, there is no evidence to show that the accused has attempted to commit rape with the victims therefore the conviction under Section 6/18 of the POCSO Act and Section 376 IPC is hereby set aside and he is acquitted of the charges against him. So far as the conviction of the appellant under Sections 451, 342, 354 and Section 509 IPC is concerned, it is hereby maintained. 20. Consequently, the appeal filed on behalf of the appellant is hereby allowed in part. The judgment of conviction passed against the appellant is hereby affirmed. Fine sentence awarded to the appellant by the trial Court are also hereby affirmed. So far as substantive jail sentences passed against the appellant under Sections 451, 342, 354 and 509 IPC and 10 of the POCSO Act are concerned, I am of the view that ends of justice would be served if the sentence imposed on the appellant may be reduced to the period already undergone by him as he is in jail sine 04.07.2018, I am of the view that the period of sentence imposed on the appellant be reduced to the period already undergone by him. It appears that the appellant has already undergone the entire jail sentence and therefore the appeal on his behalf after availing benefit of remission and after depositing the fine amount before the trial Court, the authorities concerned are directed to release him forthwith, if not required in connection with any other criminal matter. Appeal is thus allowed in part. Sd/- (Arvind Kumar Verma) Judge SUGUNA DUBEY Digitally signed by SUGUNA DUBEY Date: 2025.06.11 14:39:50 +0530