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2007 DIGILAW 1789 (PNJ)

Dilbag Singh v. State Of Haryana

2007-10-04

A.N.JINDAL

body2007
Judgment A.N.Jindal, J. 1. The accused-appellant Dilbag Singh (hereinafter referred to as `the accused) was tried for attempting to commit rape on 10 years old virgin (name not disclosed), consequently he was convicted vide judgment dated 7.5.1996 passed by the learned Additional Sessions Judge (II), Jind and sentenced to undergo rigorous imprisonment for five years and to pay fine of Rs. 100/- under Section 450 IPC and rigorous imprisonment for seven years and to pay fine of Rs. 400/- under Section 376/511 IPC. 2. In nutshell, the allegations against the accused as traced out from the record are that during the night of 30.7.1995, when the prosecutrix was lying on the cot in the room occupied by her parents in the premises of the factory, the accused came; made her naked; and tried to commit rape upon her. When he was preparing to commit rape, the prosecutrix succeeded in removing piece of cloth from her mouth and raising hue and cry, at which her parents woke up and consequently the accused fled away. On the basis of the aforesaid statement Ex. PA/1 made on 8.8.1995, FIR Ex. PA was registered. Resultantly investigation commenced. Hissam Singh Sub Inspector handled the investigation; prepared the rough site plan of the place of occurrence; recorded statements of the witnesses; arrested the accused on 10.8.1995; prepared the scaled site plan Ex. PC and on completion of the investigation challan was presented in the Court. The accused was charged under Sections 376/511/450 IPC to which he denied and opted for trial. 3. The prosecution in order to bring home the charge against the accused examined Sukhbir Singh (PW-1), Krishan Lal (PW-2), Prosecutrix (PW-3), Dalip (PW-4), Suresh (PW-5), Sultan (PW-6), Lachman Singh (PW-7), Sube Singh (PW-8) and SI Hissam Singh (PW-9). 4. When examined under Section 313 Cr.P.C. the accused while denying all the circumstances pleaded his false implication in the case but no evidence was led in defence. The trial ended in conviction. Hence this appeal. Arguments heard. Record perused. 5. The material witnesses in the case are the prosecutrix (PW-3), Dalip father of the prosecutrix (PW-4). Besides them two independent witnesses namely Suresh (PW-5) and Sultan (PW-6) were examined, who supported the prosecution version. The trial ended in conviction. Hence this appeal. Arguments heard. Record perused. 5. The material witnesses in the case are the prosecutrix (PW-3), Dalip father of the prosecutrix (PW-4). Besides them two independent witnesses namely Suresh (PW-5) and Sultan (PW-6) were examined, who supported the prosecution version. The prosecutrix while appearing in the witness box after passing the test of her competency to be a witness deposed that on the day of occurrence, they were sleeping in their only room, whereas several other employees of the factory including several villagers were also residing in the same factory. The accused was also living in the said factory premises. During the night of 30.7.1995, the accused came, gagged her mouth with handkerchief, removed her salwar, kissed her and tried to lay down on the ground for committing sexual intercourse. But by removing the handkerchief from her mouth, she raised hue and cry, thereafter, the accused after wearing towel fled away. Her testimony stands corroborated by Dalip (PW-4) father of the prosecutrix. He told to the lines of the prosecutrix. Despite the scorching cross-examination on both the witnesses no such discrepancy or contradiction worth the name which may materially affect the substratum of the prosecution case came out which could be helpful to shatter their veracity and conduct. He has categorically deposed that he saw that the prosecutrix was naked condition on the cot of the accused Dilbag Singh. The light was off at that time. Suresh (PW-5) and Sultan (PW-6) have also corroborated the occurrence while supporting the depositions made by the prosecutrix and her father Dalip. 6. That apart, the testimony of the Investigating Officer SI Hissam Singh (PW-9) also lends corroboration to the other evidence on record. No doubt, as the act could not be completed, therefore, the prosecutrix was not medically examined. 7. Before completion of the crime, the human mind has to pass through four steps i.e. (i) intention to commit; (ii) preparation to commit it; (iii) attempt to commit it; and (iv) if the attempt is successful then crime is complete. If the offender fails in his attempt, then crime is not complete but the law punishes those who make attempt but if the attempt is failed by the intervention from the outside or from other circumstances then the offence is not complete. If the offender fails in his attempt, then crime is not complete but the law punishes those who make attempt but if the attempt is failed by the intervention from the outside or from other circumstances then the offence is not complete. Section 511 IPC is a general provision dealing with attempts to commit offences not made punishable by other specific sections. It makes punishable all attempts to commit offences punishable with imprisonment and not only those punishable with death. The wisdom behind the enactment of Section 511 IPC was that the injury and the moral guilt of the offender was the same as if he had succeeded in committing the offence. The moral guilt must be united with the injury in order to justify the punishment. Mere intention to commit an offence not followed by any act cannot constitute an offence. Attempting to commit an offence is an act or a series of act which lead inevitably to the commission of the offences unless something which the doer of the act neither foresaw nor intended, happens to prevent this. If the accused having criminal designs take some steps towards the commission of the crime and fell short of its actual consummation, then he can certainly be said to have attempted to commit the crime. In order to find out if the accused was really guilty of attempting to commit rape, the court must satisfy its conscience from the words "womanly propriety of behaviour scrupulous chasity of thought speech and conduct". Similarly, the Court is also to examine the real intention of the accused, steps taken towards the commission of the said Act. In the present case, the accused in the dead of night came from his bed in naked condition and wearing only a towel, lifted the prosecutrix and took her to his bed, made her nude, gagged her mouth to prevent her speech, thus, indecent assault which often magnifies into attempts at rape. Sufficient material exists on the record 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. Had the prosecutrix not raised hue and cry, the accused would have succeeded in his evil designs. Sufficient material exists on the record 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. Had the prosecutrix not raised hue and cry, the accused would have succeeded in his evil designs. When the evidence of the prosecutrix coupled by the testimony of her father Dalip (PW-4) is examined on the touch stone of the credibility and reliability, it is crystal clear that their testimonies go a long way to prove the attempt of the accused to commit rape. While coming to quantum of sentence, keeping in view the longevity of the trial, age of the accused and other attending circumstances of the case, some leniency towards quantum of sentence deserves to be extended. Consequently, finding no merit in the appeal, the same is hereby dismissed with the modification in the sentence that the accused will undergo rigorous imprisonment for one year without any alteration in the sentence of fine.