Research › Search › Judgment

Jharkhand High Court · body

2006 DIGILAW 410 (JHR)

MD. NIZAM v. STATE OF BIHAR

2006-04-19

D.P.SINGH

body2006
Judgment : ( 1 ) THE appellant has preferred this appeal against the judgment of conviction dated 18th September 2000 passed by 1st Additional Sessions Judge, hazaribagh in S. T. No. 557 of 1998 whereby the appellant has been convicted under Sections 376, 511 and 450 of the Indian Penal Code and sentenced to undergo R. I. for seven years under Sections 376, 511 of the indian Penal Code and further sentenced for one year under Section 450 of the Indian penal Code, both the sentences to run concurrently. ( 2 ) BRIEF facts leading to this conviction are that the informant Prakash Kaur was alone in her house situated at Kani Bazar, ram Nagar Road, P. S. Sadar, district hazaribagh in the afternoon on 30-6-98 at about 4. 30 p. m. appellant having the tailor shop in front of her house knocked at her door. She has further stated that the appellant demanded some thread which was being used for tailoring. Further stated she tried to give thread through the grill but he requested to open the grill so that thread may be tallied with the colour of the cloth. Then she opened the grill but he asked for a glass of water. When she brought water she found the appellant in the room and he took out a knife and demanded the informant to undress her so that he may commit rape. This led to protest, in the meantime the elder sister of the informant Nikki came from outside and she asked the appellant to get out of the house. This led to another incident when the appellant tried to molest her at the point of knife. However the knife was not used and the appellant fled away after hot exchange of words. ( 3 ) AFTER some time the mother of the girls, charanjit Kaur returned from her work at 5. 30 p. m. and she was informed about the incident. Next day on1stjuly 1998 the informant along with her mother and sister went to Sadar police station Hazaribagh and gave written report of the incident, on the basis of which Sadar P. S. Case No. 284 of 1998 was registered under Sections 376/511 and 452 of the Indian Penal Code. The Police investigated the case and finally submitted the charge sheet against the appellant under Sections 376/511 and 452 of the indian Penal Code. The Police investigated the case and finally submitted the charge sheet against the appellant under Sections 376/511 and 452 of the indian Penal Code. ( 4 ) THE case was committed for trial by the Court of session. The trial Court charged the appellant on 21-8-99 under Sections 376/511 and 452 of the Indian Penal Code to which he pleaded not guilty. The learned lower Court after examining the prosecution witnesses and recording the statement of accused under Section 313 of the Cr. P. C. found the appellant guilty for attempting to commit rape as well as house trespass with this intention and sentenced him to serve r. I. for seven years and one year respectively. ( 5 ) THIS appeal has been preferred on the grounds that the learned lower Court has misapplied the law. It is also asserted that even the alleged allegations is supposed to be true, the offence under Section 376/511 of the I. P. C. was not completed. According to the learned counsel for the appellant, the appellant was implicated falsely in this case because the father of the informant has been involved in case of rioting and burning of shops of muslim community just prior to the occurrence. It is also submitted that prosecution itself has failed to prove positively the incident took place and there was material contradiction on the record. The other point raised in the memo of appeal is that the appellant has advanced a sum of rs. 1000/- to the mother of the informant and just to pressurize him, this false case has been lodged. It is further pointed out that entire family used to file false case against the neighbours which has been admitted by witnesses in the cross-examination. It is also pointed out that even in the facts that the version of the prosecutrix is accepted, no offence is made out under Section 376/511 of the Indian Penal code because no attempt was made to commit rape except that she was asked to undress. ( 6 ) THE learned APP opposed this contention on the grounds that the appellant has entered into the house when Prakash Kaur was alone, threatened her with knife to undress only with intention to commit rape. According to learned APP she was saved only because of timely intervention by the elder sister (PW. 3 ). ( 6 ) THE learned APP opposed this contention on the grounds that the appellant has entered into the house when Prakash Kaur was alone, threatened her with knife to undress only with intention to commit rape. According to learned APP she was saved only because of timely intervention by the elder sister (PW. 3 ). Therefore the appellant has been rightly convicted under Section 376/ 511 as well as house trespass with intention to commit rape. ( 7 ) I have carefully gone through the evidences available on records. It is alleged that on 30th June 1998 at about 4. 15 p. m. The informant Prakash Kaur was alone in her house when the appellant entered the house with intention to commit rape armed with knife. Prakash Kaur has given details how she was being threatened to undress P. W. 3 has stated in her chief that when she came back she found that her younger sister came with Nara of Salwar in her hands. P. W. 1, the mother of the victim is hearsay witness of the occurrence. All these witnesses have been cross-examined at length by the defence in which they were suggested that the fir was lodged as afterthought and no such incident has taken place. The defence has asked questions to Charanjit Kaur regarding some incident in which shops of Muslim shopkeepers were burnt and her husband was one of the accused in the case. She admitted vide paras 16, 17 that cases were lodged by her against Ganga Singh, Raju sonar etc. but the cases were settled in the police station itself. She is an active member of a political party. P. W. 3, Nikki Kaur in her cross-examination admitted vide para 17 that their house was situated on a busy road. She further admitted in para 20 that they did not call any body when appellant fled away and she informed her mother only when she returned back. P. W. 2 Prakash kaur in her cross-examination vide paras 14, 15, 16 and 17 said that cases were lodged by her family against 3-4 persons which were settled by the police. She further admitted vide para 20 that none of the neighbours came to her house after the incident. She has admitted vide para 27 that appellant used to purchase thread from them since long. She further admitted vide para 20 that none of the neighbours came to her house after the incident. She has admitted vide para 27 that appellant used to purchase thread from them since long. ( 8 ) THE I. O. of this case Srikant Singh p. W. 4 has admitted in para 14 that neighbours have not disclosed any information to him about the occurrence. He has contradicted P. W. 1 vide para 15 of his cross-examination and P. W. 3 vide para 16 of the cross-examination. ( 9 ) FROM perusal of the evidence available on the record, the fact remains that appellant has entered in the house of the informant and there he tried to threaten her to undress to satisfy his lust, however in the midst of this acts P. W. 3 reached there and he fled away after some exchange of hot words. The alleged incident as per prosecution, does not constitute the offence under section 376/511, attempt to commit rape in the facts before the lower Court, I find that the preparation to commit rape and thereafter attempt to commit rape has not been completed in this case. Asking to undress at the point of knife and even trying to molest a lady cannot be held to be an offence of attempt to rape. Therefore the conviction under section 376/511 of the Indian penal Code cannot be sustained. But on the basis of facts available on the record definitely a case under Section 354 of the Indian Penal Code is made out wherein the attempt and use of criminal force is made to outrage the modesty of Prakash Kaur and her sister. I, therefore, find that the appellant committed an offence under Section 354 of the Indian Penal Code and criminal house trespass with intention to commit such offence as he has entered the house to commit offence. Accordingly, this appeal is found without merit. Accordingly he is sentenced to serve R. I. for one year on each count. The sentences shall run concurrently. 9a. At this stage, learned counsel for the appellant submitted that the appellant has already remained in custody for more than 15 months, therefore the sentences awarded by the trial Court may be directed to be set off from the period he has already been in custody. The sentences shall run concurrently. 9a. At this stage, learned counsel for the appellant submitted that the appellant has already remained in custody for more than 15 months, therefore the sentences awarded by the trial Court may be directed to be set off from the period he has already been in custody. In such view of the facts, the sentences passed against the appellant be set off in accordance with law. Accordingly, this appeal is disposed of. --- *** --- .