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2012 DIGILAW 1417 (RAJ)

Rishi Kumar Singhal v. State of Rajasthan

2012-05-31

NISHA GUPTA

body2012
JUDGMENT 1. - This revision petition has been tiled against the order dated 14.05.2012 passed by the learned Special Judge (Women Atrocities and Dowry Cases), Jaipur City, Jaipur whereby charges have been framed against the present petitioner. 2. The short facts of the case are that Poonam Kumari filed written report at Police Station Gandhi Nagar, Jaipur, which was registered as FIR No.289/2011 for the offences under Section 376 read with Sections 511, 292 and 341 IPC and Section 4/6 of Indecent Representation of Women (Prohibition) Act, 1986 and Section 67 of the I.T.Act against the present petitioner and other co-accused. After usual investigation, the police filed charge-sheet against the present petitioner for the above offences and against co-accused under Section 354 IPC. The case was committed to the Court of Sessions and the present petitioner has been charged as above. 3. The contention of the present petitioner is that charges under Section 376 read with Section 511 IPC and Section 67 of the Information Technology Act are not made out by the bare perusal of the evidence available on record. There is no allegation of the prosecutrix that present petitioner has attempted to commit rape on her and there is no evidence of publication of any obscene material in electronic form and hence these charges should be quashed. 4. The contention of the respondent is that looking to the previous conduct of the present petitioner and overt act of catching hold of the prosecutrix, he kissed the prosecutrix and also told her that she has to sleep with him, are sufficient to charge the present petitioner under Section 376 read with Section 511 IPC and his further contention is that at the stage of charge, the court will not go into niceties of the evidence and the minute weighing of the evidence is not permissible. 5. It is true that at the time of framing of the charges, the only consideration is whether there is sufficient ground for proceeding against the accused and the question is whether material available on record, if remains un-rebutted, then their conviction can be reasonably possible. 5. It is true that at the time of framing of the charges, the only consideration is whether there is sufficient ground for proceeding against the accused and the question is whether material available on record, if remains un-rebutted, then their conviction can be reasonably possible. But, at the same time, the court should consider the evidence available before it with judicial mind that whether there is any prima facie evidence to charge a person for a particular offence and reliance has been placed on State of Karnataka v. L.Muniswamy & Ors., 1997 (2) SCC 699 , wherein it has been held as under: "Also it is wrong to say that at the stage of framing charges, the court cannot apply its judicial mind to the consideration whether or not there is any ground for presuming the commission of the offence by the accused. The order framing a charge affects a person's liberty substantially and, therefore, it is the duty of the court to consider judicially whether the material warrants the framing of the charge. It cannot blindly accept the decision of the prosecution that the accused be asked to face a trial." 6. There is no dispute about the legal position. In the light of the above, if we consider the present case, there is no evidence regarding attempt to rape on the prosecutrix. The prosecutrix has stated that the present petitioner and other co-accused used to touch her body and she felt uncomfortable by their looks. Further, she has stated that the present petitioner has tried to kiss her. He caught hold of her and he kissed her and told her that she has to sleep with him. No overt act for the commission of the rape has been made by the present petitioner and to charge a person for the attempt of an offence, it is necessary that overt act should be sufficiently proximate to its commission to constitute an attempt. Here, in the present case, there is no such proximate act committed by the present petitioner. No overt act for the commission of the rape has been made by the present petitioner and to charge a person for the attempt of an offence, it is necessary that overt act should be sufficiently proximate to its commission to constitute an attempt. Here, in the present case, there is no such proximate act committed by the present petitioner. Reliance has been placed on G.V. W. Jones v. King Emperor, (1925 Rangoon 247) , wherein distinction between attempt to commit rape and preparation to commit rape has been considered and it has been held as under: "If an act which amounts to attempt to commit rape does not lose that character merely because the offender does not display a determination to effect his object at all costs. But two conditions are requisite for an attempt to commit the offence. First, there must be an attempt to commit the offence, and second, some act must be done towards the commission of offence. The word "attempt" is not itself defined in the Penal Code and must therefore be taken in its ordinary meaning. And even if an act has been done towards the commission of the offence, that alone does not bring the case within the section. From the moment when the intention is formed to commit an offence, every act done which facilitates the commission of the offence, and which is done with that object in view, is in one sense and act done towards the commission.of the offence, but the doing of every such act does not constitute an attempt to commit the offence. It must in every case be a question depending upon the circumstances whether a particular act done with the requisite intention towards the commission of an offence is sufficiently proximate to its commission to constitute an attempt or is so remote as merely to constitute preparation for its commission." 7. In the above case, the accused person has started to begin to unbutton his trouser and also unfastened the top button. Thereafter, he released the prosecutrix. In spite of the fact, the court was of the opinion that the acts of the accused singly or collectively did not amount to commit the rape. Here in the present case, the present petitioner has not committed overt act to commit attempt to rape. Thereafter, he released the prosecutrix. In spite of the fact, the court was of the opinion that the acts of the accused singly or collectively did not amount to commit the rape. Here in the present case, the present petitioner has not committed overt act to commit attempt to rape. He has only kissed the prosecutrix and said uncomfortable language, which only comes under the definition of assault with intention of outrage the modesty and the present petitioner has been rightly charged for the offence under Section 354 IPC.Word "Attempt" has not been defined under the Act; but it has been considered by the Apex Court in Sudhir Kumar Mukherjee and Sham Lal Shaw v. State of West Bengal, AIR 1973 SC 2655 wherein it has been held as under: "A person commits the offence of "attempt to commit a particular offence", when (i) he intends to commit that particular offence, and (ii) he, having made preparations and with the intention to commit the offence, does an act towards its commission. Such an act need not be the penultimate act towards the commission of that offence but must be an act during the course of committing that offence. Case law discussed." 8. Hence, looking to the statement of the prosecutrix to charge for the offence under Section 376 read with Section 511 IPC as not sustainable and the charge so framed is liable to be quashed. 9. The other contention of the present petitioner is that there is no evidence to charge the present petitioner under Section 67 of the Information and Technology Act, which reads as follows : "67. Punishment for publishing or transmitting obscene material in electronic form........ 9. The other contention of the present petitioner is that there is no evidence to charge the present petitioner under Section 67 of the Information and Technology Act, which reads as follows : "67. Punishment for publishing or transmitting obscene material in electronic form........ Whoever publishes or transmits or causes to be published or transmitted in the electronic form, any material which is lascivious or appeals to the prurient interest or if it effect is such as to tend to deprave and corrupt persons who are likely, having regard to all relevant circumstances, to read, see or hear the matter contained or embodied in it, shall be punished on first conviction with improvement of either description for a term which may extend to three years and with fine which may extend to five lakh rupees and in the event of second or subsequent conviction with imprisonment either description for a term which may extend to five years and also with fine which may extend to ten lakh rupees." 10. It is not in dispute that obscene material has not been published in electronic form. 11. The contention of the complainant is that hard-disk has been recovered from the present petitioner which is having obscene photos of women and attention has been drawn towards the statements of Aashish who has stated that when he checked the hard-disk which was in possession of the present petitioner, it was having obscene pictures of ladies. Be that may be the case. It is only the case of possession of the obscene photos whereas Section 67 of the Information Technology Act pre-supposes the publication or causes to he publication. The contention of the complainant is that causes to publication includes intention to publication but it is unacceptable. A person can be charged for the offence under Section 67 of the Information Technology Act when he himself published obscene material in electronic form or if he has a reason or cause for such publication. In the present case, admittedly, no obscene publication in electronic form has been published. This contention can be further fortified by the words contained in Section 67 of the Information Technology Act - "to read, see or hear the matter contained". In the present case, admittedly, no obscene publication in electronic form has been published. This contention can be further fortified by the words contained in Section 67 of the Information Technology Act - "to read, see or hear the matter contained". Meaning thereby that offence is punishable if any obscene material is published which is of the nature if having regard to all the circumstances has to deprave and corrupt persons who are likely to read, see or hear the matter. Meaning thereby. obscene material should be published and it should be available to the person to read, see or hear the matter and effect of it should be deprave and corrupt the person who read, see or hear the matter. But in the present case, when the matter has not been published it cannot be read, see or heard by any body. Hence publication is condition precedent to book a person under Section 67 of the Information Technology Act and looking at above, the charge framed wider Section 67 of the Information Technology Act against the present petitioner is liable to quashed. 12. Hence the revision petition is partly allowed and the present petitioner is discharged from the offence under Section 376 read with Section 511 IPC as well as Section 67 of the Information Technology Act. *******