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2008 DIGILAW 298 (CHH)

O. P. Dubey v. State of Madhya Pradesh (now CG)

2008-10-16

T.P.SHARMA

body2008
ORDER 1. This petition is directed against the order dated 29-4- 97 passed by the Sessions Judge, Bilaspur in Sessions Trial No.113/97 whereby learned Sessions Judge has framed charge under Sections 376 read with Section 511 & 452 of the I.P.C. against the applicant. 2. The order is challenged on the ground that without any sufficient material available on record, learned trial Court has framed charge against the applicant and committed illegality. 3. I have heard Mr. Y.C. Sharma, learned counsel for the applicant & Miss Sangeeta Mishra, learned Panel Lawyer for the State/non-applicant, perused the order impugned and copy of the charge sheet filed on behalf of the applicant. 4. Learned counsel for the applicant submits that according to the case of the prosecution, the applicant entered into the house of the prosecutrix and attempted to commit sexual intercourse with her. But she has not narrated the incident in detail, in her F.I.R. and she has also not mentioned the alleged incident in her written report dated 3-12-1996. Material collected by the prosecution is not sufficient for framing charge of offence punishable under Section 452 of the I.P.C. The applicant has not committed house trespass after preparation for hurt, assault or wrongful restraint. The applicant has not attempted for commission of rape, therefore, the trial Court has committed illegality in framing charge against the applicant. 5. Learned counsel for the applicant has placed reliance in the matter of Aman Kumar and another v. State of Haryana1 in which it has been held by the Apex Court that attempt to commit offence is to be distinguished from intention to commit offence and preparation, attempt means an act which if not prevented would have resulted in full consummation of act attempted. 6. Learned counsel for the applicant further submits that in the instant case the prosecution has not collected the material to show that the applicant has attempted to commit rape on the prosecutrix and the material collected by the prosecution may be prima facie sufficient for framing of charge against the applicant under Section 354 of the I.P.C. but not under Section 376 read with Section 511 of the I.P.C. 7. On the other hand, the order impugned is supported on behalf of the State/non-applicant and it is submitted that the trial Court has framed charge on the basis of the material available on record, even a strong suspicion of commission of offence is sufficient for framing charge. 8. In the instant case, statement of the prosecutrix reveals that the applicant entered into the house of the prosecutrix and tried to kiss her and thereafter, scuffle took place between the prosecutrix & the applicant and the applicant kissed her. The applicant after partly opening his clothes and partly removing the clothes of the prosecutrix attempted to commit rape on the prosecutrix. Clothes of the prosecutrix were stained with sperm. Part of the statement of the prosecutrix recorded under Section 161 of the Cr.P.C. reads thus "...fQj Hkh os tcjnLrh esjs lkFk Nhuk&NiVh djrk jgk vkSj fdl Hkh fd;s vkSj viuh isUV o vUMjfo;j lkeus ls uhps ljdk fn;k rFkk esjk Hkh vUMj xkjesUV mij dj vk/kh fups mrkj fn;s vkSj tcjnLrh laHkksx djus dk iz;kl djus yxs] eq>s fnoky ds lgkjs 9. In the case of Aman (supra) while dealing with the words `attempt' & `attempt to commit offence', the Supreme Court has held that attempt to commit offence is rather different from intention to commit offence. Para 10 of the said judgment reads thus "An attempt to commit an offence is an act, or a series of acts, which leads inevitably 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 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." 10. 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." 10. At that time of framing charge, the prosecution is required to show prima facie material against the accused sufficient for commission of offence and no meticulous scrutiny of the evidence is required at this stage. 11. As has been held by the Apex Court in the case of State of Bihar v. Ramesh Singh2 strong suspicion against the accused that he has committed the offence would be sufficient for framing of charge. The Apex Court has further held that "..at the beginning and the initial stage of the trial the truth, veracity and effect of the evidence which the Prosecutor proposes to adduce are not to be meticulously judged. Nor is any weight to be attached to the probable defence of the accused. It is not obligatory for the Judge at that stage of the trial to consider in any detail and weigh in a sensitive balance whether the facts, if proved, would be incompatible with the innocence of the accused or not. The standard of test and judgment which is to be finally applied before recording a finding regarding the guilt or otherwise of the accused is not exactly to be applied at the stage of deciding the matter under S. 227 or S. 228 of the Code. At that stage the Court is not to see whether there is sufficient ground for conviction of the accused or whether the trial is sure to end in his conviction. Strong suspicion against the accused, if the matter remains in the region of suspicion, cannot take the place of proof of his guilt at the conclusion of the trial. But at the initial stage if there is a strong suspicion which leads the Court to think that there is ground for presuming that the accused has committed an offence then it is not open to the Court to say that there is no sufficient ground for proceeding against the accused." 12. Further, in the matter of Supdt. But at the initial stage if there is a strong suspicion which leads the Court to think that there is ground for presuming that the accused has committed an offence then it is not open to the Court to say that there is no sufficient ground for proceeding against the accused." 12. Further, in the matter of Supdt. & Remembrancer of Legal Affairs, West Bengal v. Anil Kumar Bhunja and others3 the Apex Court has held that the Court is required to see prima facie material on record capable of inferring strong suspicion about commission of offence. Para 18 of the said judgment reads thus "At the stage of framing charges, the prosecution evidence does not commence. The Magistrate has therefore, to consider the question as to framing of charge on a general consideration of the materials placed before him by the investigating Police Officer. The standard test, proof and judgment which is to be applied finally before finding the accused guilty or otherwise is not exactly to be applied at the stage of S. 227 or 228. At this stage, even a very strong suspicion founded upon materials before the Magistrate, which leads him to form a presumptive opinion as to the existence of the factual ingredients constituting the offence alleged, may justify the framing of charges against the accused in respect of the commission of that offence." 13. While dealing with the same question in the case of Niranjan Singh Karam Singh Punjabi, Advocate, v. Jitendra Bhimraj Bijja and others4 the Apex Court has held in para 7 of its judgment that "It seems well settled that at the Ss. 227- 228 stage i.e., stage of framing the charge, the Court is required to evaluate the material and documents on record with a view to finding out if the facts emerging therefrom taken at their face value disclose the existence of all the ingredients constituting the alleged offence. The Court may for this limited purpose sift the evidence as it cannot be expected even at that initial stage to accept all that the prosecution states as gospel truth even if it is opposed to common sense or the broad probabilities of the case." 14. The Court may for this limited purpose sift the evidence as it cannot be expected even at that initial stage to accept all that the prosecution states as gospel truth even if it is opposed to common sense or the broad probabilities of the case." 14. In the matter of State of Maharashtra v. Priya Sharan Maharaj and others5 the Apex Court has held that "At the stage of framing of the charge the Court has to consider the material with a view to find out if there is ground for presuming that the accused has committed the offence or that there is not sufficient ground for proceeding against him and not for the purpose of arriving at the conclusion that it is not likely to lead to a conviction." 15. In the instant case, the evidence collected by the prosecution prima facie shows that the applicant entered into the room of the prosecutrix and forcefully kissed her, pushed her and tried to remove her clothes after removing his clothes partly and also tried to attempt to commit rape on her. But during the course of attempt, ejaculation followed as of result saree, petticoat & underwear which the prosecutrix was wearing stained with sperm of the accused. This shows that the prosecution has collected sufficient material against the applicant for offence of attempt to commit rape and house trespass after preparation for causing hurt. This material is sufficient for framing charge of attempting to commit rape and the offence of criminal house trespass with preparation for hurt, assault or wrongful restraint which is punishable under Section 452 of the I.P.C., against the applicant. The trial Court has not committed any illegality or infirmity in framing charge against the applicant. 16. Consequently, the revision is devoid of merit, same is liable to be dismissed and it is accordingly, dismissed. However, since the case is pending against the accused since 1997, the trial Court is directed to decide the case expeditiously.