Research › Search › Judgment

Gauhati High Court · body

2010 DIGILAW 6 (GAU)

Rubul Kurmi v. State of Assam

2010-01-08

A.C.UPADHYAY

body2010
JUDGMENT A.C. Upadhyay J. 1. This appeal is directed against the judgment and order dated 28.9.2005 delivered by Shri S.M. Haque, learned Addl. Sessions Judge, Jorhat in Sessions Case No. 26(J-J)/2005 corresponding to G.R. Case No. 826/03, whereby the accused Appellant was convicted under Section 376(1) read with Section 511 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for seven years and to pay a fine of Rs. 2,000 in default, to suffer rigorous imprisonment for another three months. 2. I have heard Mr. J.M. Choudhury, learned senior counsel assisted by Mr. B.M. Choudhury, learned Counsel for the Appellant and Mr. K. Munir, learned Addl. P.P., Assam. 3. The facts leading to filing of this appeal may be stated in brief, as follows: On 29.9.2003, PW1, father of the victim lodged an ejahar stating therein that on the previous night, i.e., on 28.9.2003 the accused, Rubul Kurmi, while escorting his daughter (identity of the victim not disclosed) from a local 'puja-mandap', organised near the play ground of Heelikha Tea Garden, committed rape to his daughter on the roadside by taking advantage of darkness. On receipt of the FIR (Ext. 1), the Officer-in-charge of Mariani, Police Station registered a case under Section 376(f), IPC and launched investigation. During course of investigation, the Police got the victim medically examined and caused her statement to be recorded under Section164, Code of Criminal Procedure. During the course of investigation Police also seized garments worn by the victim at the time of occurrence. The Investigating Officer also arrested the accused and seized the under-garments worn by the accused at the time of occurrence. The seized garments were sent for serological examination in the Forensic Science Laboratory, Kahilipara, Guwahati. The accused was remanded to jail custody by the court. Thus, on completion of investigation, the I.O. submitted the charge sheet against the accused above named alleging commission of offence under Section 376(f)/511/506, IPC. 4. The offence alleged against the accused being exclusively triable by the Sessions Court, the case was committed to the Court of Sessions, Jorhat, for trial. The learned Sessions Judge, Jorhat, accordingly transferred the case to the Court of learned Addl. Sessions Judge, Jorhat, for trial. 5. During course of trial, the learned Addl. 4. The offence alleged against the accused being exclusively triable by the Sessions Court, the case was committed to the Court of Sessions, Jorhat, for trial. The learned Sessions Judge, Jorhat, accordingly transferred the case to the Court of learned Addl. Sessions Judge, Jorhat, for trial. 5. During course of trial, the learned Addl. Sessions Judge, Jorhat, finding materials to presume commission of offence under Section 376(f), IPC alternatively under Section 376, IPC read with Section 511, IPC framed formal charges against the accused. On reading over and on explaining the charge, the accused pleaded not guilty and claimed to be tried. 6. The prosecution side examined as many as 13 witnesses in order to prove the charges framed against the accused above named. The Judicial Magistrate who recorded statement of the victim under Section 164 of Code of Criminal Procedure was also examined as witness. All the witnesses aforesaid were duly cross-examined by the defence counsel. On completion of the recording of prosecution evidence, learned Addl. Sessions Judge recorded the statement of the accused as per provision of Section 313, Code of Criminal Procedure. In his statement under Section 313, Code of Criminal Procedure, the accused took the stand of total denial and declined to adduce defence. Upon perusal of the materials on record and after hearing, the arguments advanced by the learned P.P., and learned defence counsel, the learned Addl. Sessions Judge, Jorhat, convicted the accused as aforesaid giving rise to this appeal. 7. In order to appreciate the appellate order passed by the learned Addl. Sessions Judge, Jorhat, it would be apposite to marshal the evidence on record, both oral as well as documentary led by the prosecution to establish the charge against the accused, keeping in view the defence stand of total denial. 8. PW1, Shri Mahendra Sabar, is the father of the victim, i.e., PW2, Smt. Gunahari Sabar, PW3, is the mother of the victim, PW4, Shri Dilip Tanti is the Garden Chowkidar of Heelikha Tea Estate, PW6, Shri Anil Sabar is the uncle of the victim and PW7, Smt. Aroti Kurmi is the mother of the accused, all of whom deposed to confirm that on the night of occurrence, a function was organized for Karam Puja in the Heelikha Tea Garden play ground. 9. 9. The victim in her deposition confirmed that she had been to the function with her mother, sister and her uncle named Krishna. 10. The fact of victim attending the function together with her mother is also corroborated by her father and other prosecution witnesses. The victim PW.2, i.e., stated that at about 9 p.m. her mother returned home from the function, leaving her in the function in the custody of her uncle, Krishna Sabar. This piece of evidence given by PW1 was also corroborated by PW3, i.e., mother of the victim, PW1, i.e., father of the victim and PW6, i.e., uncle of the victim. 11. The victim, (PW2) deposed that while she was enjoying the function at night she felt sleepy and accordingly requested her uncle Krishna to take her home. At that time, one Mr. Mulu, a helping hand working in the house of the accused wanted to take her home. And accordingly, the victim decided to come home with Mulu. In the meanwhile, the accused who was also present at the function volunteered to take the victim home and directed Mulu, not to accompany her. Accordingly, the victim, PW.2 came with the accused to go home by sitting in the carrier of the bicycle belonging to the accused. This fact of taking the victim in the bicycle by the accused is also corroborated by PW6, Shri Anil Sabar, uncle of the victim. 12. PW4, Shri Dilip Tanti, PW8, Shri Sibdulal Singh, garden chowkidar of Heelikha Tea Estate, both deposed that at about 11.30 p.m. on the date of occurrence, while they were in the factory gate, they had seen the accused crossing the cattle bridge of the garden on foot by dragging a bicycle together with the victim. From the aforesaid facts corroborated by the witnesses, it is apparent that the victim came with the accused from the venue of the function to her residence at night on the date of occurrence. 13. The victim further deposed to confirm that the accused who carried her in the carrier of the bicycle, instead of taking her through the straight road took a long path home. After riding the bicycle for some distance, the accused got down from the bicycle. The victim also had to get down from the carrier of the bicycle. 13. The victim further deposed to confirm that the accused who carried her in the carrier of the bicycle, instead of taking her through the straight road took a long path home. After riding the bicycle for some distance, the accused got down from the bicycle. The victim also had to get down from the carrier of the bicycle. After that the accused laid down her on the ground, took off her panty and inserted his penis into her vagina. She raised alarm. As the accused could not penetrate his penis into her vagina, then the accused tried to push his finger into her vagina. PW2 then stood up and put on her panty. The accused then threatened to kill her if she divulged the incident to any other person. Thereafter, the accused carried her in the bicycle and left her near her residence. 14. From the cross-examination of PW2 it transpires that on reaching home, the victim called her mother by screaming at her. On hearing screams of the victim both her parents, PW1 and PW3 came out. The victim narrated the incident to her parents. Both PW1 and PW3 corroborated to confirm to have seen blood dripping from the private parts of the victim on her legs. Her father, for treatment, took the victim to Garden Hospital, wherefrom she was taken to the Police Station and the Civil Hospital. 15. The Police sent the victim to the Civil Hospital, Jorhat for medical examination and also produced her in the court for recording her statement under Section 164, Code of Criminal Procedure P Ws1 and 3 narrated the facts stated to them by the victim, immediately after the occurrence. The victim also stated in her deposition that immediately after reaching home she had narrated the occurrence to her parents. P Ws1, 2 and 3 testified handing over of undergarments worn by the victim at the time of occurrence. 16. The Investigating Officer, PW13, Smt. Pallabi Das, S.I. of Police confirmed seizure of panty and frock worn by the victim and underwear worn by the accused at the time of occurrence. PW13 stated that all the under garments so seized were sent for medical examination at the Forensic Science Laboratory, Guwahati. 17. PW10, Dr. 16. The Investigating Officer, PW13, Smt. Pallabi Das, S.I. of Police confirmed seizure of panty and frock worn by the victim and underwear worn by the accused at the time of occurrence. PW13 stated that all the under garments so seized were sent for medical examination at the Forensic Science Laboratory, Guwahati. 17. PW10, Dr. Renu Bora Handique, Senior Scientific Assistant, Serology Department of Forensic Science Laboratory, Kahilipara, deposed that she had found human blood on the garment of the victim but had not detected any stain of human blood in the underwear worn by the accused. 18. On close scrutiny of the evidence led by the victim, PW2, it is vividly clear that the accused in his attempt to commit rape could not penetrate his penis into her vagina and as such pushed his finger on the vagina of the victim. Obviously, in the circumstances narrated above, as the accused did not reach the stage of ejaculation possibility of ejaculating sperms did not arise. Thus, there was no sperm either on the panty of the victim or in the underwear worn by the accused. 19. Dr. Robi Bora, PW11, the Medical and Health Officer of Heelikha Tea Estate deposed that on 20.9.2003 at about 1 a.m. he had examined the victim on being produced by her father, Mohendra Sabar and found the following injuries upon her person. Injuries: Abrassion, right side of the lateral wall of the vagina with minor bleeding. Bleeding spot were seen upon her over the Jangia. Except that, no other injury was found there. The age of the injury was recent. Dr. Robi Bora, PW11 referred the victim to Jorhat Civil Hospital for further examination. 20. PW5, Dr. Jahida Khatoon, examined the victim in the Civil Hospital and found the hymen of the victim intact and did not notice any other injury or biting mark on the person of the victim or in her private parts. On serological examination, PW5 also confirmed that no spermatozoa were detected in the vaginal swab collected from the victim. 21. Thus, conjoint reading of the evidence so given by PW5 together with the evidence of PW10 and the victim, PW2, rules out penile penetration in the vagina of the victim, followed by ejaculation of sperms at the time of committing the offence. 22. 21. Thus, conjoint reading of the evidence so given by PW5 together with the evidence of PW10 and the victim, PW2, rules out penile penetration in the vagina of the victim, followed by ejaculation of sperms at the time of committing the offence. 22. PWs1 and 3, the parents of the victim although stated that the victim was 10 (ten) years of age at the time of occurrence, however, PW5, who carried out ossification test to confirm age of the victim, deposed that the victim was below 16 years of age at the time of examination. However in her cross-examination, PW5 further relaxed the authenticity of such test by stating that there may be difference of 2 years in such tests. No birth certificate of the victim or any other proof could be produced by the prosecution in order to substantiate the age of the victim at the time of occurrence. Thus, apparently, prosecution could not establish the age of the victim to be below 12 (twelve) years to attract the provisions of Section 376(2)(f), IPC read with 511, IPC. Over and above, the learned court below also did not find the accused guilty of offence under Section 376(2)(f), IPC read with Section 511 of IPC. Therefore, I do not want to delve on this issue any further. 23. Mr. J.M. Choudhury, learned senior counsel submitted that the evidence on record does not warrant conviction and sentence of the accused Appellant for an offence under Section 376, IPC read with Section 511 of the IPC, inasmuch as no offence of attempt to commit rape has been made out. Learned senior counsel further pointed out that although not admitting at the most an offence under Section 354, IPC may be attracted against the accused for outraging the modesty of the victim. 24. Further, the learned Counsel for the Appellant drawing attention of this Court to the statement of PW11, i.e., the Doctor, who examined the victim in the Garden Hospital, immediately after the occurrence, pointed out that the injury might have been caused due to scratch by nail. Therefore, the learned Counsel for the Appellant submitted that in the facts and circumstances of the case, the impugned judgment and order convicting the Appellant under Section 376/511, IPC is bad in law. 25. In reply to the above submission, Mr. Therefore, the learned Counsel for the Appellant submitted that in the facts and circumstances of the case, the impugned judgment and order convicting the Appellant under Section 376/511, IPC is bad in law. 25. In reply to the above submission, Mr. K. Munir, learned P.P., submitted that forthright statement of a minor girl, corroborated by the other witnesses in its entirety, is trustworthy, and is sufficient to convict the accused for commission of an offence under Section 376/511, IPC. Learned Counsel further pointed out that it was because of the minority in age, the accused failed to secure penetration in the vagina, however, from the very fact of laying down the victim on the ground and trying to insert his penis in the vagina of the victim is sufficient to establish an offence of attempt to commit rape. It is an established principle of law that prosecution case is not liable to be rejected because of minor inconsistencies, contradictions and omissions in the testimony of the witnesses when the victim of the occurrence has made a forthright statement regarding commission of the offence alleged. More particularly, while dealing with sex crimes, courts are required to examine the broader probabilities of a case and not to get swept by minor contradictions or discrepancies in the statement of the prosecutrix or the witnesses unless such statements are fatal in nature and destructive to the reliability of the prosecution case. 26. Learned Counsel for the Appellant relying on the decision of our own High Court reported in Bishnu Gupta v. State of Assam 2005 (2) GLT 157 submitted that fingering by the accused would no constitute rape. In Bishnu Gupta (supra) it was observed by the court that the victim in her cross-examination, had clarified that the accused put his finger only on her private part, as a result of which she had suffered from bleeding. The relevant extract of the decision reads as follows: 5. The question that arises for consideration is whether the above act of the accused amounts to an offence as defined under Section 375, IPC. The question that has been raised was considered by the Apex Court in a recent case of Sakshi v. Union of India and Ors., (2004) 5 SCC 518 wherein it has been held that as per the existing law, fingering does not constitute rape as defined under Section 375, IPC. The question that has been raised was considered by the Apex Court in a recent case of Sakshi v. Union of India and Ors., (2004) 5 SCC 518 wherein it has been held that as per the existing law, fingering does not constitute rape as defined under Section 375, IPC. The Apex Court also turned down the prayer for judicial intervention holding that it is for the Legislature to amend the laws, if they so desire. 6. In view of the above, we hold that the above act of the Appellant does not amount to an offence under Section 376, IPC. However, as the act of the accused Appellant amounts to an offence of outraging the modesty of a woman, the conviction of the accused Appellant is converted to one under Section 354, IPC. 27. In Bishnu Gupta's case only allegation was fingering on the private parts of the victim. In the instant case the victim was sufficiently matured to understand every thing regarding sexual advances, deposed fearlessly and without hesitations that the accused person with the assurance of escorting her up to the residence took her in his bicycle through a deserted road at the dead of night; lied her down on the ground, removed her panty and used force to insert his penis on her vagina. When she felt pain, she started crying, then the accused stopped short of committing the offence of rape. This discloses that the accused person, on the pretext of escorting the victim, wanted to have his sexual desire fulfilled. In order to do the same, touched her vagina with aim of committing sexual crime which ultimately could not be done when, feeling pains, the victim started crying. Therefore in the light of above discussion I am of the considered opinion that the ratio of the decision Bishnu Gupta (supra) cannot be applied in this case. 28. In the last segment of arguments the learned Counsel for the Appellant referring to the decision reported in Sahidur Rabbi @ Babul SK v. State of Assam 2005 (4) GLT 494 submitted that even if the incident, as alleged, had taken place bearing in mind there being no penetration, at best, it could be held to have been a case of preparation to commit rape and not an attempt to rape as held by the learned trial court. 29. 29. Hon'ble Supreme Court in Guddu @ Santosh v. State of Madhya Pradesh 2009 (1) SCC 911: 2006 (Supp. 1) SCR 414: 2006 (4) SC 204 explained that an attempt to commit an offence can be said to begin when the preparations are complete and the relevant part of which reads as follows: 15. It is not a case where merely a preparation had been undergone by the Appellant as contended by the learned Counsel. Evidently, the Appellant made an attempt to criminally, assault the prosecutrix. In fact, from the nature of the medical evidence an inference could also have been drawn by the High Court that there had been penetration. The High Court failed to notice that even slight penetration was sufficient to constitute an offence of rape. The redness of the hymen would not have been possible but for penetration to some extent. In Kappula Venkat Rao (supra), this Court categorically made a distinction between the preparation for commission of an offence and attempt to commit the same, in the following terms: 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 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 object chosen upon considering the motives which suggest the choice. Preparation consists in devising or arranging the means or measure 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 object chosen upon considering the motives which suggest the choice. Preparation consists in devising or arranging the means or measure 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 offence 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 is sometimes thin and has to be decided on the facts of each case. 30. Hon'ble Supreme Court in yet another case reported in Aman Kumar and Anr. v. State of Haryana, (2004) 4 SCC 379 while examining an attempt to commit rape, held that when the accused laid hold of the prosecutrix, not only he desired to fulfill his passions upon her person, but also intended to do the act at all cost, and notwithstanding any resistance on her part. The relevant extract of the decision reads as follows: 8. The plea relating to applicability of Section 376 read with Section 511, IPC needs careful consideration. In every crime, there is first, intention to commit, secondly, preparation to commit it, thirdly, attempt to commit it. If the third stage, that is, attempt is successful, then the crime is complete. If the attempt fails the crime is not complete, but law punishes the person attempting the act. Section 511 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. An attempt is made punishable, because every attempt, although it falls short of success, must create alarm, which by itself is an injury, and the moral guilt of the offender is the same as if he had succeeded. Moral guilt must be united to injury in order to justify punishment. As the injury is not as great as if the act had been committed, only half the punishment is awarded. 9. A culprit first intends to commit the offence, then makes preparation for committing it and thereafter attempts to commit the offence. Moral guilt must be united to injury in order to justify punishment. As the injury is not as great as if the act had been committed, only half the punishment is awarded. 9. A culprit first intends to commit the offence, then makes preparation for committing it and thereafter attempts to commit the offence. If the attempt succeeds, he has committed the offence; if it fails due to reasons beyond his control, he is said to have attempted to commit the offence. 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 511require. 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 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 object 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 is 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. 10. 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. There is a greater degree of determination in attempt as compared with preparation. 10. 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 show the legislative intention to make a difference between the cases of a mere preparation and an attempt. 31. However, careful consideration of the sequence of events, as narrated by the victim, shows that the Appellant volunteered to escort the victim to her house and while she was so taken, at the dead of night, in a solitary location forcibly removed her panty and made her to lie down. And, thus, after undressing her the accused laid him over her in a bid to sexually assault her. Having failed to penetrate his penis into the vagina of the victim, the accused used his fingers, and injured the victim. The victim also raised panic alarm. When he laid hold of the victim the accused not only desired to gratify his passions upon her person, but that he intended to do so at all events, and notwithstanding any resistance on her part. In view of the above, taking into consideration the tell tale materials available on record and the evidence of the victim, who is an innocent girl and which is corroborated by the evidences on record, I hold that the conviction of the accused Appellant under Section 376/511 of IPC needs no interference. 32. Before parting with the arguments Mr. In view of the above, taking into consideration the tell tale materials available on record and the evidence of the victim, who is an innocent girl and which is corroborated by the evidences on record, I hold that the conviction of the accused Appellant under Section 376/511 of IPC needs no interference. 32. Before parting with the arguments Mr. J.M. Choudhury, learned senior counsel for the Appellant submitted that the prosecution having failed to prove the victim to be less than 12 years of age, punishment of 7 years for attempt to commit rape under Section 376/511, IPC should not have been imposed on the accused considering the gravity if the offence, where substantive sentence for committing rape under Section 376, IPC of the victim in the instant case would not have been more than ten years of imprisonment. Considering the facts and circumstances, in so far as the sentence is concerned, rigorous imprisonment for 5 (five) years with default stipulation, in my opinion, would meet the end of justice in the instant case, for attempt to commit rape. 33. Accordingly, in modification of the impugned order, sentence of 7 years rigorous imprisonment imposed on the Appellant is reduced to rigorous imprisonment (RI) for 5 (five) years, however, fine of Rs. 2,000 with default stipulation, as imposed by learned Additional Sessions Judge, Jorhat is hereby maintained. Send back the LCR together with a copy of this order to the learned court below immediately for necessary action. The appeal stands disposed of with the modification of sentence as stated above.