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2007 DIGILAW 1943 (PNJ)

Raghbir Singh Alias Nadar v. State Of Haryana

2007-11-06

A.N.JINDAL

body2007
Judgment A.N.Jindal, J. 1. The accused-appellant Raghbir Singh alias Nadar (hereinafter referred to as the accused) was slapped with four years of sentence and a fine of Rs. 2000/- for attempting to commit rape upon the prosecutrix (name not disclosed) vide judgment dated 12.4.1996 passed by the learned Additional Sessions Judge, Kaithal, against which this appeal has been preferred. 2. Brief facts of the case, as unfolded by the prosecution, are that on 30.8.1993, at about 10.00 AM, when the prosecutrix was passing by the side of the gair (cattle shed) of the accused, then she noticed the accused while lying in front of his cattle shed. On seeing the prosecutrix, he called her for help in picking up the fertilizer bag on his head. When she went inside the room, she saw that five fertilizer bags were lying; the prosecutrix started helping him in lifting the said bags, the accused suddenly grappled with her; put her on the ground; broke open the cord of her salwar and tried to rape her. The prosecutrix in a bid to rescue herself slapped the accused and succeeded in escaping from his clutches. She started running in the street in a half naked condition wearing only jhumfer (shirt). In the meantime, Ajaib Singh (PW2), who was passing by that side on his bullockcart, met her and she narrated the whole occurrence to him. Consequently, he challenged the accused who was following the prosecutrix. At this, the accused fled away. Ajaib Singh brought her salwar from the inside and offered her to wear the same. After wearing the salwar the prosecutrix went to the fields and narrated the incident to her father Mewa Singh and brother Satyawan. The matter was taken to the panchayat, but the same could not be solved. Consequently, on the next day i.e. 1.9.1993, on her statement Ex.PA, the case was registered against the accused. On completion of the investigation, report under Section 173 Cr.P.C. was submitted. Charge under Sections 376/511 IPC was framed, which he opted to contest. In order to substantiate the charge, the prosecution examined 5 witnesses in all i.e. prosecutrix (PW1), Ajaib Singh (PW2), Kuldeep Gupta Draftsman (PW3), SI Sher Singh (PW4) and Mewa Singh (PW5). 3. When examined under Section 313 Cr.P.C., while denying all the incriminating circumstances appearing against him, he pleaded his false implication in the case. In order to substantiate the charge, the prosecution examined 5 witnesses in all i.e. prosecutrix (PW1), Ajaib Singh (PW2), Kuldeep Gupta Draftsman (PW3), SI Sher Singh (PW4) and Mewa Singh (PW5). 3. When examined under Section 313 Cr.P.C., while denying all the incriminating circumstances appearing against him, he pleaded his false implication in the case. In defence, he tendered Ex.D-1 copy of the judgment dated 9.6.1995 in case State v. Mewa Singh, bearing FIR No. 289 dated 18.5.1993 under Section 15 of the Narcotic Drugs & Psychotropic Substances Act, 1985. The trial ended in conviction. Hence this appeal. Arguments heard. Records perused. 4. The prosecutrix being at the threshold of her youth had no animus against the accused to put her reputation at the peril. She could well anticipate that if she throws her modesty to the criticism of public, she could be condemned qua social and matrimonial aspects. She appears to be truthful witness as while appearing as PW-1, she tore out her abdomen saying that she was called by the accused in his cattle shed on the pretext that he needed her help in picking up the fertilizer bag on his head. She being illiterate and simpleton lady acted to his command as is usual in the villages, but she never anticipated about the evil design of the accused. She did not mince words while saying that after she went to the room and was in the process of giving aid to the accused in carrying the fertilizer bag on his head, he suddenly pounced upon her, threw her on the ground, broke upon the cord of her salwar and tried to rape her. She has not felt shy in saying that she gave fist blows and slaps to the accused and succeeded in rescuing herself and started running in the street, where Ajaib Singh emerged and saved her. He also brought her salwar from inside the cattle shed of the accused which she wore. She has been subjected to lengthy cross examination but nothing such could be elicited which could create a dent in the prosecution case and could be used for inspiring the court for loosing confidence in her. 5. Notwithstanding the fact that the trial was not held in camera as required under Section 327 of Cr.P.C., the prosecutrix had dared to explain the circumstances leading to the occurrence in the open court. 5. Notwithstanding the fact that the trial was not held in camera as required under Section 327 of Cr.P.C., the prosecutrix had dared to explain the circumstances leading to the occurrence in the open court. Had the proceedings been taken in camera, the prosecutrix could disclose more clearly and minutely and without any shyness, which she may not have been able to testify in the presence of the general public attending the court. However, in the absence of any such suggestion or accusation, it does not cause any prejudice or render any miscarriage of justice to the accused. 6. The general rule for conducting the trial is that every Court of justice is open to every subject of the country barring certain exceptions and section 327 Cr.P.C. is one of them. Sub-section (2) of Section 327 Cr.P.C. reads as under :- "(2) Notwithstanding anything contained in sub-section (1), the inquiry into and trial of rape or an offence under section 376, Section 376-A, section 376-B, section 376-C or section 376-D of the Indian Penal Code (45 of 1860) shall be conducted in camera : Provided that the presiding Judge may, if he thinks fit, or on an application made by either of the parties, allow any particular person to have access to, or be or remain in, the room or building used by the court." 7. The object of adding the proviso of sub-section (2) of Section 327 Cr.P.C., the intention of the legislature was to facilitate the prosecutrix or the accused to seek permission of the Court if they want any particular person to be present in the court room at the time of cross examination but the legislature imposed a serious obligation upon the Court irrespective of the fact that no request for holding the proceedings in camera are made, the same would be held in camera with a motive to ensure that the prosecutrix may not feel embarrassed or that her statement may not be made public. It is often seen that despite the mandate issued by the law vide amendment of Section 327 in the Code, the Courts have least respect or regard for bringing the same into practice resultantly the victims in this traditional social set up do not dare to come out to make a straight forward statement or some times out of fear or shyness from the public, relatives of the accused or victim or social pressure withhold some material facts and are unable to justify the crime and it is equally good for the accused, therefore, it is high time that the courts should come on guard of the rape victims and also of the accused and strictly implement the provisions as envisaged under Section 327 of the Code, the intention of which is to try the case in camera where all the persons except the court officials, parties and the legal practitioners concerned in the case are expressly excluded from the room in which the case is tried. The court at the time of trying the camera proceedings should guard the circumstances that the witness should be free and beyond fear to depose as per her will and consent. The court should also take care that when indecent and obscene matters are canvassed during a trial, the Judges and Magistrate may while have discretion to exclude women, children and others likely to be injuriously affected by hearing that stuff. The duty is also imposed upon the lawyers to point to the court at an appropriate time about the relevant provisions regarding conducting of trial in camera. The court should also take care of the interest of the witness in such cases if she objects to the presence of the police officers or any other officer at the time of her evidence but the court should be the final authority to decide whether the fear of the witness is superfluous, irrational, unreasonable, unjustifiable or is a genuine in the facts and circumstances of the case. The court at the time of holding the proceedings in camera must give note in this regard. 8. Nevertheless, the proceedings in this case have not been conducted in camera. The court at the time of holding the proceedings in camera must give note in this regard. 8. Nevertheless, the proceedings in this case have not been conducted in camera. It may be apposite to point out to the court concerned in this regard, yet, in the absence of any objection raised by the either of the parties, no prejudice could be said to have been caused to the accused for non compliance of the procedure as laid down in Section 327 of the Code, therefore, it would not be appropriate to remit the case back on the point. 9. Now coming to the merits of the case, it may be observed that the testimony of the prosecutrix stands duly corroborated by Ajaib Singh (PW2) who came at the rescue of the prosecutrix, challenged the accused, collected her salwar from his cattle shed which she was able to wear and go to the fields. Thus, testimony of Ajaib Singh (PW2) being res-gestae cannot be ignored and at the same time his testimony being free from any embellishments or concoction is worth appreciation. 10. One day delay in lodging FIR cannot be said to be fatal as the prosecutrix and her father Mewa Singh has made clean breast of the facts that as the repute of the family was at the stake, therefore, they preferred to convene the panchayat and solve the matter, for keeping confined the matter in the brotherhood. It could well be observed that nature of offence was such that in our traditional bound non permissible society the respectable families in the country side are extremely reluctant in reporting such matters to the police as reporting of the same brings dis-repute not only to the girl but also to the entire family. The people take sufficient time to think a lot before knocking the door of the police station. Thus, while viewing the matter in the background, the delay in lodging the FIR assumes insignificance particularly in the light of the testimony of the prosecutrix having been corroborated by Ajaib Singh (PW2) and also her father Mewa Singh to whom she lodged a complaint. The minor contradictions, as pointed out by the learned counsel for the appellant if viewed in the background that the witnesses are illiterate and simpleton persons, then the same cannot be given importance. The minor contradictions, as pointed out by the learned counsel for the appellant if viewed in the background that the witnesses are illiterate and simpleton persons, then the same cannot be given importance. It would also be pertinent to mention here that the testimony of the prosecutrix can be treated on better footings than that of the injured person and the injury if given effects temporarily only that person who had suffered it but the prosecutrix who is the victim of rape at the hands of the accused, does not effect only the prosecutrix but the family as a whole that too for a long period and some times leaves a permanent scar over the family for generations to come. If an young girl brings out such a crime to light, there is an inbuilt assurance that the charge is genuine, rather than fabricated. She by way of deposing against the accused does not have revenge from him but she weeps over the assault which she has suffered at his hands. Thus, I have no reasons to disbelieve the testimony of the prosecutrix (PW1) who was traumatized on account of the sexual harassment meted out to her by none other but her own neighbour. Her testimony can be accepted as it finds corroboration from an independent source. 11. The other contention that raised is if the facts and circumstances as alleged by the prosecutrix are said to be established, even then it will not be possible to hold that the offence committed by the accused falls within the purview of Section 376/511 IPC and at the most circumstances attract the offence under Section 354 IPC. 12. In this regard it may be observed that there are four steps in every crime. First of all, intention to commit it; secondly, preparation; thirdly, attempt to commit; and fourthly, if he succeeds in his attempt then offence is complete, if attempt fails for the reasons beyond the control of the accused, then the accused could be convicted for attempt to commit crime so intended by him. Intention is directly traceable to the attempt and motive also plays a role therein. Intention is directly traceable to the attempt and motive also plays a role therein. The Apex Court in case Aman Kumar and another v. State of Haryana, 2004(1) RCR(Criminal) 925 : 2004(2) Apex Criminal 431 : AIR 2004 Supreme Court 1497, beautifully interpreted the word "attempt" while observing as under :- "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. This is exactly what the provisions of Section 511 require. An attempt to commit a crime is to be distinguished from an intention to commit it; and 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 be taken for the deed unless there be some external act which shows that progress has been made in the direction of it, or towards maturing and effecting it. Intention is the direction of conduct towards the object chosen upon considering the motives which suggest the choice...... .... An attempt may be described to be an act done in part execution of a criminal design, amounting to more than mere preparation, but falling short of actual consummation, and, possessing, except for failure to consummate all the elements of the substantive crime. In other words, an attempt consists in it the intent to commit a crime, falling short of its actual commission. It may consequently 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 clearly shows the legislative intention to make a difference between the cases of a mere preparation and an attempt." 13. There is a thin gold line distinction between the preparation and attempt. The attempt to commit an offence consists of chiefly in the greater degree of determination and what is necessary to prove an offence of an attempt can be said to have been committed if the accused has gone beyond the stage of preparation. 14. There is a thin gold line distinction between the preparation and attempt. The attempt to commit an offence consists of chiefly in the greater degree of determination and what is necessary to prove an offence of an attempt can be said to have been committed if the accused has gone beyond the stage of preparation. 14. While delineating the facts of the present case, it may be observed that the accused in this case, with a bad intention and evil design called the prosecutrix (a young girl) to his cattle shed on the pretext of seeking her help in picking up the fertilizer bag, thereafter grappled with her; made her to lie on the ground, undressed her by removing the salwar and tried to rape her, thus, it could well be said that the accused did overt act towards the progress of the crime as intended by him. Had the prosecutrix not slapped or inflicted fist blows, then the accused would have succeeded in commission of the intended crime. Consequently, it would not be unsafe, in the given circumstances of the case, to hold that the accused attempted to commit rape upon the prosecutrix falling within the purview of Section 376 read with Section 511 IPC. 15. While coming to the quantum of sentence, it was urged that the accused was in prime age of his life when the offence was committed, therefore, he may be extended benefit of probation. 16. Having pondered over the matter, it may be observed that the nature of the crime committed by the accused is such that it effects the entire social fabric of the society and the total abolition of sentence would certainly shake the confidence of the people in the administration of justice. However, protracted trial and pendency of this appeal for a long time and also that the accused was in his young age, permit me to consider it a mitigating circumstance for reduction in sentence. 17. Consequently, while dismissing the appeal of the appellant, the sentence awarded to him is reduced to two years without alteration in the fine. 18. Copy of the judgment be sent to the chief Judicial Magistrate, Kaithal for compliance. 19. The judgment be also circulated among all the judicial officers of the States of Punjab, Haryana and Union Territory of Chandigarh for making them alive to the provisions relating to camera proceedings.