Attempt To Rape Is Equally Injurious, Not Only To The Victim Physically But Morally: Bombay HC [Read Judgment]

Justice Sadhana S Jadhav refused relief to Bhalerao and dismissed the appeal filed by him. Bhalerao had been convicted under Sections 366 (kidnapping, abducting or inducing a woman to compel her marriage) and 376 (rape) and sentenced to 4 years and 7 years respectively by Additional Sessions Judge, Pune.

Case Background

The victim girl used to live with her paternal grandmother along with her younger sister after their father died and the mother abandoned them. The appellant-accused is said to be a close friend of the victim's uncle and used to visit the house often. Thus, the victim was familiar with him.

According to the prosecution, on November 9, 2011, the victim's grandmother had gone to the forest for grazing her goats and the victim was alone at home. Around 4 pm, accused Vishal Bhalerao came to the house. He told the victim that he was also going towards the forest where her grandmother was grazing the goats and asked her if she would like to meet her grandmother.

The victim agreed and the accused took her in an autorickshaw. Then the accused stopped at a garbage depot opposite the forest. He denuded the minor girl and sexually assaulted her. The victim had raised cries but since it was an isolated place, no one heard her cries. Bhalerao then gave the victim money to take an auto-rickshaw back home.

Victim came back home and told her grandmother and aunt about the incident. Then they went to the police and narrated the entire incident. A FIR was registered at Chinchwad Police Station for offences punishable under Sections 366 and 376 of IPC. The accused was arrested on November 19, 2011 and charge-sheet was filed on January 31, 2012.

Additional Sessions Judge, Pune convicted the appellant on both charges. Thereafter, the appeal was filed.

Judgement

Dr. Vipul Gurav had examined the victim on November 10, 2011. He found multiple tears in victim's hymen but they were 'old and healed.'

Court referred to the victim's statement at the time of her medical examination-

"According to the history given by the victim the accused had removed her undergarments and had fondled with her private parts. The accused had also attempted sexual intercourse with the victim."

Appellant's lawyer Swapnil Ovarlekar submitted that the victim was examined by the doctors on November 10, 2011, whereas according to the victim the incident had occurred at about 4 pm on November 10, 2011. According to Ovarlekar this aspect goes to the root of the matter as even according to the victim the incident has occurred on 10th and not on 9th of November 2011.

Court refused to accept this argument and noted-

"This suggestion was given in the cross-examination and in all probability the minor was confused as to whether the incident had occurred on 9th or 10th of November 2011. At the time of incident, the victim was hardly 12 years old and she was to stand the test of cross-examination. She cannot be falsified on a minor discrepancy."

Ovarlekar further argued that it cannot be said that the accused did not have actual sexual intercourse with the victim. As there were old hymen tear and therefore even before the doctor the victim herself has stated that the accused had attempted to have sexual intercourse. Since it is an attempt, the accused would be liable to be tried under Section 511 of Indian Penal Code and would further to be liable to undergo one-half of the imprisonment provided for the offence, Ovarlekar said.

Section 511 is a general provision which does not deal with a particular offence not made punishable under a specific section.

Court referred to the judgment of the Apex Court in the case of Koppula Venkat Rao v/s State of Andhra Pradesh (2004), in which SC held: ­

"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"

Thus, Court concluded that in the present case an attempt is equally injurious not only to the victim physically but also morally.

"Moreover, she would have to live with the trauma throughout her life. She was a minor and had reposed faith in the accused­appellant at the stage when she agreed to accompany him to meet her grandmother"

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