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2008 DIGILAW 715 (KAR)

Jafar Saddiq v. State of Karnataka

2008-11-20

A.S.PACHHAPURE

body2008
Judgment :- Pachhapure, J The appellant has challenged his conviction and sentence for the offence under Section 376 read with Section 511 IPC on a trial held by the Fast Track Court, Shimoga. 2. Thefacts relevant for the purpose of this appeal are as under. PW.6 the prosecutrix, is a citizen of France and had come to India along with a team of 23 persons for a workshop. She was staying in Varadashri Hotel of PW.3 Venkatesh. On 17.1.2005 she along with her son aged about 9 years went for a walk at about 11.30 AM on Ganapathikere bund in between 11.30 AM. to 12 noon and at that time the accused smiled at her and then she asked him about the way in which they have to proceed by the side of the lake. The accused nodded his head and pointed with his hands and indicated the right way. After about 10 minutes thereafter the complainant and her son came near the bushes and the accused who was behind them touched her back and the prosecutrix said `no and then again the accused chased and came close to her and touched his hands all over her body. She started punching him but her whole energy got paralyzed as she was struggling to punch him and at that time the accused put his two fingers into her private part and then unzipped his trousers and to made an attempt to commit sexual assault and at that point of time the son of the complainant was crying loudly and thereafter the accused ran away from the place. Afterwards the prosecutrix returned to the hotel with the bicycle and informed about this incident to PW.1. Thereafter they went to the hospital for the purpose of treatment and submitted the complaint to PW.7 the PSI, Sagar Police Station who came to the hospital. During enquiry he came to know that the cycle belonged to one Abdul Azeez, the father of the accused who was secured and on the basis of the driving licence Ex.P-3 the prosecutrix identified the said person as the person who made an attempt to commit the rape. During enquiry he came to know that the cycle belonged to one Abdul Azeez, the father of the accused who was secured and on the basis of the driving licence Ex.P-3 the prosecutrix identified the said person as the person who made an attempt to commit the rape. After recording the complaint Ex.P-8, he registered a case in Crime NO.9/2005 for the offence under Section 376 and 511 of the Indian Penal Code and sent the complaint Ex.P-8, FIR Ex.P-9 to the learned Magistrate and seized Ex.P-3 the licence under a mahazar Ex.P-2 in the presence of PW.2 and others. The cycle MO. l was also seized under a mahazar Ex.P-4 in the presence of PW.3 and another. It is thereafter that PW.9 continued the investigation and after enquiring with the prosecutrix and seized the cycle and the licence and held the spot mahazar Ex.P-1 in the presence of the attesting witnesses and arrested the accused and sent him for the medical examination. Thereafter PW.8 continued the investigation and after collecting the injury certificates Exs.P5 and p-6, sent the sealed articles to the chemical examiner and recorded the statement of the witnesses and obtained the certificate Ex.P-11 and after the completion of the investigation filed the charge sheet against the accused. 3. During the trial, the prosecution examined PWs.1 to 9 and in their evidence got marked Exs.P-1 to P-13 and the statement of the accused was recorded under Section 313 Cr.P.C. He has taken the defence of total denial. In his defence evidence he has got marked Ex.D-1 the contradiction in the statement of Venkatesh PW1. 4. Thetrial Court, on appreciation of the material on record, convicted the accused for the offence under Section 376 read with S.511 IPC and sentenced him to undergo imprisonment for five years and to pay the fine of Rs.5000/- and in default to undergo imprisonment for a period of one year. Aggrieved by the conviction and sentence, the accused has approached this Court in appeal. .5. I have heard the learned Counsel for the appellant and also the Government Pleader. The point that arises for consideration is: ."Whether the judgment and order of conviction of the accused-appellant for the charge under Section 376 read with Section 511 IPC is illegal and perverse?" .6. .5. I have heard the learned Counsel for the appellant and also the Government Pleader. The point that arises for consideration is: ."Whether the judgment and order of conviction of the accused-appellant for the charge under Section 376 read with Section 511 IPC is illegal and perverse?" .6. It is the contention of the learned Counsel for the appellant that the allegations made in the complaint do not constitute an offence under Section 376 read with S.511 IPC and at the most it .would attract the provisions of Section 354 i.e. outraging the modesty of PW.6. In the circumstances, he submits that the conviction of the appellant for the offence under Section 376 read with S.511 IPC is illegal and perverse. 7. Learned Government Pleader contends that there is ample material on record to prove that the accused made an attempt to commit the rape on PW.6, a citizen of France and therefore submitted that the trial Court taking into consideration the material placed on record has arrived at a right conclusion in convicting the accused for the said offence and he submits that the appellant has not made out any grounds to warrant the interference. 8. I have scrutinised the evidence led by the prosecution and also the documents admitted in evidence. So far as the incident is concerned, it occurred on 17.1.2005 in between 11.30 to 12 noon when the prosecutrix PW.6 was proceeding for a walk near the lake within the limits of Sagar Town along with her son aged about 9 years. In the complaint it is stated that the accused who was proceeding on the bicycle saw the prosecutrix and smiled at her and when she asked about the route, he nodded his head and indicated the route by his hand and after about 10 minutes when the complainant and her son came near the bushes of the tank bund and the accused who was chasing them touched the back of the prosecutrix and when she said `no, the accused dragged her and inserted his two fingers into her private part and then the accused unzipped his trouser and attempted to remove his organ outside the trouser and at that time the son of the prosecutrix started crying loudly, and the accused went away. So far as this version in the complaint is concerned has been reiterated by her in her evidence as well. .9. So far as this version in the complaint is concerned has been reiterated by her in her evidence as well. .9. After the incident she went to PW.1 and there after went to Dr.Parappa PW.4 who states in his evidence that on the examination of the prosecutrix he found abrasion measuring 5cm x 3 cm on the right thigh; another abrasion measuring 2x2cm on the upper portion of the right leg and abrasion above right leg measuirng 1x1 cm and there was also an abrasion measuring 6x0.5Cm on the right hand. The doctor has opined that the injuries were simple and could be caused at the time of an attempt to commit the rape. In the cross-examination he admits that such injuries could be caused even in case when a person runs into the bush. She was examined by PW.5, a Gynocologist and who after the observation of the injuries states that she cannot give any finding suggesting inserting the fingers into the private part of PW.6. She has issued injury certificate at Ex.P-7 whereas PW.4 has issued his certificate at Ex.P-6. In the context of the medical evidence, if the evidence of PW.6 is looked into, so far as the incident is concerned, she states that the accused held the hand of her son down to the lake and also held her hand to climb down and thereafter he touched her back and when she said `no and pushed his hand away, he came close to her and she felt some danger from him. She tried to climb back and there were bushes on the back and holding them they were trying to climb when her son climbed, the accused pulled her back and was touching her body. She was struggling to punch him and meanwhile her energy was paralysed. Her son started running and the .prosecutrix thinking that she may lose him called him back. When she was climbing the bank, the accused put his two fingers into her private part and at that time she was wearing a long skirt and further the accused unzipped his trousers and was attempting to come up and did not succeed in bringing out his organ. At that time her son screamed loudly and accused said `go go with gesture by turning his hand. It is thereafter that they went to PW.1. 10. At that time her son screamed loudly and accused said `go go with gesture by turning his hand. It is thereafter that they went to PW.1. 10. The perusal of the evidence of PW.6 reveals an act of outraging the modesty of a woman which is clear from the evidence and the act of the accused by putting the fingers into her private part and so far as the attempt to commit the rape if the conduct of the accused is looked into, what is borne out from the evidence of PW.6 is that he unzipped the trouser and while he was making an attempt to take out his organ, he was not able to do so. In such circumstances, the son cried and the accused left them asking her to go. So from looking to this portion of evidence, I am of the opinion that though the prosecution is able to establish the intention to commit the rape and also the preparation to commit such an offence, I do not think that the acts of the accused in unzipping the trouser and attempting to take out the organ could amount to an attempt. These two acts of the accused, in my opinion, fall within the category of an intention and preparation to commit the offence and not an attempt to commit the offence. On this aspect of the matter, learned Counsel for the appellant has relied upon the decision of the Apex Court reported in Ramkripal Vs State Of Madhya Pradesh AIR SCW 2007 at page 2201 the Apex Court at para 14 observed that: "Mere intention to commit an offence, not followed by any act, cannot constitute an offence. The will is not to 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 ob d t chosen upon considering the motives which suggest the choice. Preparation consists in devising or arranging the means or measures necessary for the commission of the offence. It differs widely from attempt which is the direct movement towards the commission after preparations are made. Intention is the direction of conduct towards the ob d t chosen upon considering the motives which suggest the choice. Preparation consists in devising or arranging the means or measures necessary for the commission of the offence. It differs widely from attempt which is the direct movement towards the commission after preparations are made. Preparation to commit an offence is punishable only when the preparation is to commit offences under Section 122 (waging war against the Government of India) and Section 399 preparation to commit dacoity). The dividing line between a mere preparation and an attempt to sometimes thin and has to be decided on the facts of each case. There is a greater degree of determination in attempt as compared with preparation." So also as could be seen from the decision of the Apex Court reported in Gananath Jena Vs State Of Orissa Criminal Law Journal 1996(1) Page 229 so far as the attempt to commit an offence of rape is concerned, it is stated: "A person commits an offence of attempting to commit a particular offence when he intends to commit that particular offence and having made prepare; ions and with the intention to commit that offence does an act towards its commission and that such an act need not be penultimate act towards the commission of that offence, but must be an act during the course of committing such offence." So the perusal of the principles laid down by the Apex Court and taking into consideration the facts and circumstances which have been brought on record reveal that there was only a preparation to commit the offence of rape and it cannot be said by stretch of imagination that it was an attempt to commit the rape. In the circumstances, I am of the opinion that the trial court committed an illegality in convicting the appellant for the offence under Section 376 read with S.511 of the IPC. 11. It is relevant to note that PW.6 has sustained the injuries and it is only because that the accused dragged her while she was climbing and it is in such circumstances that she sustained the injuries. This fact is borne out from the evidence of PWs.4 and 5 the doctors and the injury certificates Exs.P-6 and P-7. She has sustained simple injuries and that is also at the instance of the accused. This fact is borne out from the evidence of PWs.4 and 5 the doctors and the injury certificates Exs.P-6 and P-7. She has sustained simple injuries and that is also at the instance of the accused. Thereby I am of the opinion that the provisions of Section 323 IPC are attracted and there is ample material on record so far as the causing of simple injuries. 12. Furthermore, it is in the evidence of PW.6 that the accused after holding her from the backside put his two fingers into her private part and touched with his hand on different part of her body and this act of the accused attracts provisions of Section 354 of the IPC. The conduct of the accused reveals that he outraged the modesty of PW.6 and in the circumstances, taking into consideration the fact that the complaint of the incident was given to the police, immediately she was examined by the doctors, her evidence has been corroborated by the medical evidence and taking into consideration all these circumstances, I am of the opinion that the prosecution has proved the guilt under Section 354 IPC beyond all reasonable doubt. 13. Though the learned Government Pleader submits that the prosecutrix is a foreign lady and the act of an Indian citizen amounts to lowering down the dignity of the nation, at the same time it is relevant to note that the law of the land is to be followed and as could be seen from the provisions of Section 354 of the IPC the maximum sentence for the said offence is two years imprisonment and so far as the offence under Section 323 of the IPC is concerned, the maximum sentence is one year imprisonment or fine. Taking into consideration the indecent act of the accused with a foreign national, I am of the opinion that it is a fit case wherein maximum punishment provided for the offences has to be awarded. In the circumstances, I answer the point partly in affirmative and partly in negative and proceed to pass the following: ORDER The appeal is allowed in part. The appellant is acquitted of the charge for the offence under Section 376 read with Section 511 of the IPC and the sentence thereon is set aside. The accused is held guilty for the offence under Section 323 and 354 of the IPC. The appellant is acquitted of the charge for the offence under Section 376 read with Section 511 of the IPC and the sentence thereon is set aside. The accused is held guilty for the offence under Section 323 and 354 of the IPC. For the offence under Section 323 IPC, he is ordered to undergo rigorous imprisonment for a period of one year and to pay a fine of Rs.1000/-, in default, to undergo simple imprisonment for three months. For the offence under Section 354 of the IPC, he is ordered to undergo rigorous imprisonment for a period of two years and to pay a fine of Rs.5000/-. In default, to undergo simple imprisonment for six months. The sentences shall run consecutively. It is submitted by the Counsel for the appellant and also the Government Pleader that the accused was taken to custody on 18.1.2005 and till today he has been in custody. His custody continued during the trial and also during the pendency of this appeal. The counsel submits that the accused is in custody for the last three years and 10 months and therefore as he has completed the maximum sentence provided for the said offences, and he is to be set at liberty. Taking into consideration the submissions made, the fact that the accused has undergone the sentence already, he is ordered to be set at liberty forthwith.