High Court
Case Details
Crl.A. 117/2012 BEFORE THE HON’BLE MR. JUSTICE UJJAL BHUYAN B. Bhuyan, learned Additional PP, Assam for the respondent. Heard Mr. K. Agarwal, learned Counsel for the appellant and Ms. 2. This criminal appeal has been filed against the judgment and ord er dated 28-04-2012 passed by the learned Sessions Judge, Karimganj in Sessions Case No.85/2009 convicting the accused/appellant u/s 376(1)/511 IPC and sentenci ng him to undergo rigorous imprisonment (RI) for a period of five years with fin e of Rs.5000/-, in default, to undergo further RI for a period of six months. 3.
Legal Reasoning
Facts of the case may be briefly noted. 4. PW 1 as the first informant lodged information before the Office r-in-Charge, Patharkandi Police Station on 21-08-2009 alleging that at about 7 a m on 19-08-2009, his minor daughter, aged about 12 years, had gone to the jungle for collection of herbs to prepare medicines. She was alone. One unidentified p erson alongwith the accused accosted her and wanted to have physical relation wi th her by proposing marriage. When she refused, the accused and the unidentified person threatened her by showing a (cid:28)dao (cid:29) and tied her to a tree. With intention to commit rape, her wearing apparels were torn and force was used on her causin g injuries. When she raised hue and cry, nearby (cid:28)jhum (cid:29) cultivators came to the p lace of occurrence and rescued his daughter. The accused could be identified. Th ough a village meeting called (cid:28)bichar (cid:29) was held on the following day, the matter could not be settled. Hence the first information. The same was treated as FIR and on the basis of the same, Patharkandi PS Case No.120/2009 u/s 342/325/376/51 1 IPC was registered. 5. Police investigated the case. In the course of investigation, th e victim was medically examined and her statement was also recorded u/s 164 Cr.P .C. The accused was arrested and taken into custody. On completion of investigat ion, the Investigating Officer (IO) submitted charge-sheet against the accused u /s 342/323/376/511 IPC. 6. The case being triable by a Court of Sessions, learned Sub-Divis ional Judicial Magistrate, Karimganj committed the case to the Court of learned Sessions Judge, Karimganj. 7. On case being committed, learned Sessions Judge framed charge ag ainst the accused on 04-11-2009 charging him with causing hurt to the victim and also attempting to commit rape on the victim, minor daughter of PW1. Accused wa s accordingly charged with committing an offence punishable u/s 323/376/511 IPC. When the charge was read over and explained to the accused, he pleaded not guil ty and claimed to be tried. 8. Accordingly, trial commenced. During the trial, prosecution exam ined as many as seven witnesses to prove the charge against the accused. The def ence plea was of total denial. However, no defence witness was produced. 9. Learned trial Court after considering the evidence adduced and o ther materials on record, convicted the accused u/s 376(1)/511 IPC and imposed t he sentence as indicated above. Hence the appeal. 10. The appeal was admitted on 20-07-2012 and by a separate order da ted 18-09-2012, the impugned sentence was stayed and the appellant was allowed t o go on bail.
Legal Reasoning
11. Mr. K. Agarwal, learned Counsel for the accused/appellant submit s that the basic ingredient for constituting the offence of attempt to commit ra pe is absent in the present case. He submits that there was a great deal of conf usion regarding the identity of the person who had alleged to have attempted to commit rape. Evidence of the prosecution witnesses contradict each other. Materi als on record do not justify drawing of any definite conclusion regarding culpab ility of the accused in the commission of the offence. In such circumstances, le arned trial Court was not justified in convicting the accused/appellant and impo sing on him the sentence as indicated above. Accused/appellant is atleast entitl ed to the benefit of doubt, he submits. 12. Ms. B. Bhuyan, learned Additional Public Prosecutor on the other hand supports the impugned conviction and sentence. She submits that the victim was a minor girl and there was no reason to disbelieve her statement. Convictio n for the offence of attempt to commit rape can be based on the sole testimony o f the victim girl, which inspired confidence. She submits that there is no infir mity or anomaly in the conviction of the accused. Sentence imposed is commensura te with the gravity of the offence. She, therefore, prays for dismissal of the a ppeal. 13. Submissions made have been considered. Also perused the record. Before proceeding further, evidence adduced by the prosecution w 14. itnesses may be briefly noticed. 15. PW1 is the informant and father of the victim girl. He stated th at the victim was his daughter and she was aged about 13 years. At the time of d eposition, she was reading in class VII. PW 1 stated that his daughter is a spir itual healer and provides treatment to men and women. For the said purpose, she collects herbs for medicinal use. On 19-08-2009, at about 7 am, she went to the jungle to collect herbs. Suddenly, one unknown person caught hold of her and too k her inside the jungle. Her hands and feet were tied to one (cid:28)segun (cid:29) tree. The p erson uttered that she would have to marry him otherwise he would kill her. The person attempted to commit rape upon her. Village people who had gone to collect vegetables from the site of jhum cultivation nearby, found the victim in a nerv ous condition. He stated that (cid:28)then the person the accused fled away after pushi ng her (cid:29). Village people identified the man to be the accused. PW 1 further state d that he came to know about the occurrence from his daughter. He also stated th at at first he wanted to settle the matter in village (cid:28)bichar (cid:29). As there was no decision, he lodged the ejahar. He further stated that his daughter was medicall y examined and the police seized the wearing apparels of his daughter. In his cr oss-examination, he described the topography of the area. There was a path leadi ng to the site of jhum cultivation. On one side of the path was the jungle. He s tated that when he went to the place of occurrence later on with the police, the y found creepers used by the accused. 16. The victim girl deposed as PW 2. She stated that she was a stude nt of class VII and that she healed people by giving herbal medicines. According to her, on the date of occurrence, she was proceeding to the jungle to collect herbs. The accused suddenly caught hold of her and tied her to a (cid:28)segun (cid:29) tree. H olding a (cid:28)dao (cid:29), he uttered that she should marry him otherwise he would kill her . She stated that the accused inflicted fists and blows on her and wanted to do the unwanted act. She tried to wriggle out of him. She raised hue and cry and on hearing her hue and cry, her aunts arrived at the place of occurrence. Then the accused pushed her aside and ran away. She stated that she did not know the acc used. On reaching home, she reported the matter to her parents whereafter the ca se was filed. Her clothes were torn when the accused tried to do the unwanted th ing. In her cross-examination, she stated that she was tied up for about half an hour and then she was released by her aunts. A suggestion was made in the cours e of her cross-examination that her father tutored her to make false allegation against the accused as because her father had dispute with the accused over jhum cultivation and cutting of bamboo. 17. PW 3 is the doctor. As per his deposition, on 21-08-2009 while h e was serving as Sub-Divisional Medical and Health Officer, Patharkandi Public H ealth Centre, PW 2 was produced before him on police requisition. On examining h er he gave his report. As per medical report, there were three small abrasions o ver the skin on the lower right thigh, which were in the process of healing. The abrasions were of the size of 1x1 cm. Though PW 2 complained of pain in her che st, no injury was found. As per the opinion of the doctor, the injuries were mor e than 48 hours old, superficial and simple in nature and caused by blunt object . 18. PW 4 is a co-villager. He stated that on the date of occurrence, he and his wife were proceeding towards the land of jhum cultivation with his w ife walking ahead of him. The accused came from the opposite direction and from the jungle side. Moving ahead, he saw PW 2 and found her crying. On being asked, PW 2 stated that one person tied her to a tree and by threatening her with a (cid:28)d ao (cid:29), torn her clothes and wanted to commit the unwanted thing on her. PW 4 state d that in the evening, he met the accused in the bazaar and when he asked him, h e confessed his guilt. In his cross-examination, he stated that PW 2 was his cou sin sister. Wife of PW 4 deposed as PW 5. She stated that while she and her 19. husband were proceeding to the jhum land, she heard a cry. PW 2 was found crying and her wearing apparels were torn. She told them that one person tied her to a tree by holding a (cid:28)dao (cid:29). He tore her clothes to do the unwanted thing. She stat ed that they did not find the person. In her cross-examination, she stated that PW 2 was her elder sister’s daughter. 20. PW 6 was also a co-villager. She stated that she was going to th e jhum land when she saw the accused coming out of the jungle holding one (cid:28)dao (cid:29) in his hand. Sometime thereafter, PW 2 came out of the jungle crying. She told t hat one person tied her hands and tore of her clothes. He tried to do unwanted t hing with her. In her cross-examination, she stated that PW 2 was her cousin. 21. IO deposed as PW 7. He stated that the date of occurrence was 19-08-2009. Ejahar was received on 21-08-2009 and he started investigation on 22 -08-2009. He stated that in the course of investigation, one churidar, torn pant and kameez were seized. The victim was medically examined and her statement was recorded u/s 164 Cr.P.C. The accused was arrested on 24-08-2009. After he compl eted investigation, he submitted charge sheet on 30-08-2009. 22. After the evidence of the prosecution witnesses was closed, the accused was examined u/s 313 Cr.P.C. He categorically denied the prosecution cha rge. 23. On a cumulative assessment of the evidence on record, it would b e evident that there were gaping holes in the prosecution case. Additionally, th ere were material contradictions in the evidence of the witnesses which cast ser ious doubt on the prosecution case. Coming first to the FIR, a reading thereof w ould show that there were two persons who had allegedly committed indecent assau lt on PW 2. There was one unknown person and the accused. The allegation was tha t it was the unknown person who wanted to do the unwanted thing on PW2. PW 1 in his deposition was also quite ambivalent in this regard. He stated that one unkn own person caught hold of his daughter and took her inside the jungle where he a ttempted to commit rape on her. On hearing her hue and cry, the village people, who were working on the jhum land nearby, went to the place of occurrence. Then he said the following: (cid:28)Then the person the accused fled away after pushing her (cid:29) . From this statement, it is not discernible as to whether there were two person s, one unidentified person and the accused or whether only one unidentified pers on was there, who was later on identified as the accused. While PW 1 and PW 2 st ated that when she raised hue and cry, the village people came to the place of o ccurrence and seeing them, he fled away, however PW 4 stated that while he was o n the way to the jhum land with his wife, he saw the accused coming from the opp osite direction from the jungle side. Moving ahead, they came across PW 2 and fo und her crying. Again PW 5 stated that while they were on their way to the jhum land, when they heard a cry, they found PW 2 crying, who narrated before them th e incident. This version is again contradicted by PW 6 who stated that while on their way to the jhum land, they saw the accused coming out of the jungle holdin g one (cid:28)dao (cid:29). After sometime, PW 2 came out of the jungle crying. According to PW 1, the victim was tied to a tree and the accused ran away when the village peopl e arrived at the place of occurrence. On the other hand, as per version of PW 2, she was tied to a tree for about half an hour and the accused fled away when he r aunts arrived at the place of occurrence. The contradictory versions of the pr osecution witnesses as noticed above, presents a case which appears to be highly improbable. Moreover, PW 2 was admittedly a minor of about 12-13 years. Her evi dence was taken on oath. Learned trial Court did not make the preliminary assess ment as to whether PW 2 had reached the maturity level so as to depose in a cour t of law. Without making this assessment, evidence of PW 2 was recorded. This is a vital flaw in the prosecution case. Further, the seized clothes were not exhi bited. 24. Examining the applicability of section 376 read with section 511 IPC, the Hon’ble Supreme Court in the case of Koppula Venkat Rao -Vs- State of AP reported in (2004) 3 SCC 602 held as under :- (cid:28)8.The plea relating to applicability of Section 376 read with Section 511 IPC n eeds careful consideration. In every crime, there is first, intention to commit, secondly, preparation to commit it, and thirdly, attempt to commit it. If the t hird stage, that is, attempt is successful, then the crime is complete. If the a ttempt 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 offe nces not made punishable by other specific sections. It makes punishable all att empts to commit offences punishable with imprisonment and not only those punisha ble with death. An attempt is made punishable, because every attempt, although i t falls short of success, must create alarm, which by itself is an injury, and t he moral guilt of the offender is the same as if he had succeeded. Moral guilt m ust 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. 9. A culprit first intends to commit the offence, then makes preparation for com mitting it and thereafter attempts to commit the offence. If the attempt succeed s, 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 commenc es to do something with the intention of committing the offence and which is a s tep 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. Th e word (cid:28)attempt (cid:29) is not itself defined, and must, therefore, be taken in its ord inary meaning. This is exactly what the provisions of Section 511 require. An at tempt to commit a crime is to be distinguished from an intention to commit it; a nd 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 t aken for the deed unless there be some external act which shows that progress ha s been made in the direction of it, or towards maturing and effecting it. Intent ion is the direction of conduct towards the object chosen upon considering the m otives which suggest the choice. Preparation consists in devising or arranging t he means or measures necessary for the commission of the offence. It differs wid ely from attempt which is the direct movement towards the commission after prepa rations are made. Preparation to commit an offence is punishable only when the p reparation is to commit offences under Section 122 (waging war against the Gover nment of India) and Section 399 (preparation to commit dacoity). The dividing li ne between a mere preparation and an attempt is sometimes thin and has to be dec ided on the facts of each case. There is a greater degree of determination in at tempt as compared with preparation. 10.An attempt to commit an offence is an act, or a series of acts, which leads i nevitably 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 t o more than mere preparation, but falling short of actual consummation, and, pos sessing, except for failure to consummate, all the elements of the substantive c rime. In other words, an attempt consists in it the intent to commit a crime, fa lling short of, its actual commission or consummation/completion. It may consequ ently 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 clearl y show the legislative intention to make a difference between the cases of a mer e preparation and an attempt. 11.In order to find an accused guilt of an attempt with intent to commit a rape, court has to be satisfied that the accused, when he laid hold of the prosecutri x, not only desired to gratify his passions upon her person, but that he intende d to do so at all events, and notwithstanding any resistance on her part. Indece nt assaults are often magnified into attempts at rape. In order to come to a con clusion that the conduct of the accused was indicative of a determination to gra tify his passion at all events, and in spite of all resistance, materials must e xist. Surrounding circumstances many times throw beacon light on that aspect. (cid:29) 25. Again, in the case of Tarkeshwar Sahu -Vs- State of Bihar (Now J harkhand) reported in (2006) 8 SCC 560, the Hon’ble Supreme Court held as under :- (cid:28)17.A similar case was decided by Mirza and Broomfield, JJ. of the Bombay High C ourt in Ahmed Asalt Mirkhan. In that case the complainant, a milkmaid, aged 12 o r 13 years, who was hawking milk, entered the accused’s house to deliver milk. T he accused got up from the bed on which he was lying and chained the door from i nside. He then removed his clothes and the girl’s petticoat, picked her up, laid her on the bed, and sat on her chest. He put his hand over her mouth to prevent her from crying and placed his private part against hers. There was no penetrat ion. The girl struggled and cried and so the accused desisted and she got up, un chained the door and went out. It was held that the accused was not guilty of at tempt to commit rape but of indecent assault. The point of distinction between a n offence to commit rape and to commit indecent assault is that there should be some action on the part of the accused which would show that he is just going to have sexual connection with her. (cid:29) 26. Having regard to the materials on record and examining them in t he light of the above judicial pronouncements, I am of the considered view that no case for attempt to commit rape has been made out against the appellant. It c ould well have been a case of indecent assault. But the inconsistencies in the e vidence of the prosecution witnesses makes the prosecution case somewhat improba ble. On the basis of the materials on record, it cannot be said with any degree of certainty that it was the appellant alone and no one else who wanted to commi t the offence u/s 376 (1) IPC. The charge u/s 376(1)/511 IPC cannot be said to h ave proved against the petitioner beyond all reasonable doubt. In view of above, impugned conviction and sentence cannot be sus 27. tained. Accordingly, the same is set aside and quashed. Appellant is set at libe rty. Bail bond stands discharged. 28. 29. Appeal is allowed. Case record be returned back.