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2012 DIGILAW 758 (CAL)

Jhantu Barman v. STATE OF WEST BENGAL

2012-08-10

KANCHAN CHAKRABORTY

body2012
Judgment Kanchan Chakraborty, J. The challenge in this appeal is to the judgment and order dated 26.04.2010 and 28.04.2010 passed by the Additional Sessions Judge, Fast Track Court, Mathabhanga, in Sessions Case No. 120 of 2009 corresponding to Sessions Trial No. 2(5) of 2009 thereby convicting the appellant for the offence punishable under Sections 376/511 of the Indian Penal Code and sentencing him to suffer rigorous imprisonment for seven years and to pay fine of Rs.5,000/-. 2. The factual aspects of the case, in short, is stated below: - On 20.07.2006, Sukumar Barman lodged a complaint before the learned Chief Judicial Magistrate, Mathabhanga, alleging therein that on 30.06.2006, Jhantu Barman, (hereinafter referred to as “the appellant”), came to his house and told that his family members had gone to the house of his near relatives and that he needed help in the matter of cooking food, and, as such, he proposed his wife to send Suniti Barman, the daughter of the de facto complainant, to his house for the purpose of cooking food. On his request, Suniti was sent to the house of the appellant for the purpose of preparing food. Suniti cooked food for the appellant and after preparation of food, she served it to the appellant and she herself also had taken food. Thereafter, finishing the domestic work, she sought for permission of the appellant for returning back home at about 12.00/1.00 P.M. But, the appellant told her to sit in his room and enjoy songs from radio. He then turned on the switch of the radio and at that point of time to fulfil his lust, the appellant took Suniti in his arms and started to give her kiss. Thereafter, the appellant set his hands into the private parts of Suniti and laid her on the bed forcibly to have sex with her. Finding no other alternative, Suniti started screaming and somehow managed to flee from the house of the appellant. She returned home and narrated the incident to her father, mother and other persons. Over the issue a village meeting was held but the appellant did not turn up. On the advice of the villagers, Sukumar, the father of Suniti, went to the Police Station to lodge a complaint, but the local police Station refused to take any action. She returned home and narrated the incident to her father, mother and other persons. Over the issue a village meeting was held but the appellant did not turn up. On the advice of the villagers, Sukumar, the father of Suniti, went to the Police Station to lodge a complaint, but the local police Station refused to take any action. The petition of complaint filed by Sukumar Barman was sent to the Sitalkuchi Police Station under Section 156(3) of the Code of Criminal Procedure to treat the same as First Information Report. Accordingly, Sitalkuchi Police Station Case No. 54 of 2006 dated 15.08.2006 was registered against the appellant under Sections 341/376/511 of the Indian Penal Code. The appellant was arrayed to face charges under Sections 376/511 and 341 of the Indian Penal Code, to which he pleaded not guilty. Accordingly, the trial commenced. In all, 13 witnesses were examined by the prosecution. The First Information Report, the statement of the victim girl under Section 164 of the Code of Criminal Procedure, School Certificate, Sketch Map of the place of occurrence, etc. were admitted into evidence and marked exhibits on behalf of the prosecution. No witness was examined on behalf of the defence/appellant. The learned Court upon consideration of the evidence on record found that the prosecution brought home the charge under Sections 376/511 of the Indian Penal Code against the appellant and, accordingly, recorded conviction and sentence, which has been impugned in this appeal, mainly, on the following grounds: (a) that the learned Court failed to appreciate the evidence on record in its proper and true perspective; (b) that the learned Court failed to take note of the contradictions in the oral testimonies of the witnesses on material points; (c) that the learned Court failed to appreciate that the complaint was lodged on 20.07.2006 while the alleged incident had taken place on 30.06.2006 and the delay was inordinate without any explanation; (d) that the learned Court failed to distinguish “attempt” to commit rape and “preparation” of committing rape; (e) that the learned Court erred in convicting the appellant for attempting to commit rape; and (f) that the judgment being otherwise bad in law, is liable to be set aside. 3. It is admitted position in this case that the victim girl, Suniti, was a minor girl aged about 13 years at the relevant point of time. 3. It is admitted position in this case that the victim girl, Suniti, was a minor girl aged about 13 years at the relevant point of time. The fact that the date of birth of Suniti as 03.02.1993 was established by oral as well as documentary evidence. The P.W. 12, teacher-in-charge of Boro Madhusudan Rupeswar Roy Junior High School proved the Admission Register for the year 2006 wherein the date of birth of Suniti was recorded as 03.02.1993. He also proved the Certificate which was issued by him in favour of Suniti on 04.03.2008 in consultation with the Admission Register. The said Certificate was marked as Exbt.-5. have carefully gone through the cross-examination of P.W. 1 and failed to find anything which goes against what the P.W. 12 has stated in his examination-in-chief and what the Exbt.-5 disclosed. Suniti was, accordingly, a minor aged about 13 years at the time of incident. It is stated by the father and mother of Suniti, who were examined as P.Ws. 1 and 6 respectively, that on 15th day of Ashar, the appellant came to their house and told that his family members had gone to his relative’s house and that he needed help in the matter of cooking food and, as such, sought for permission to take Suniti to his house for the purpose of cooking. Being a neighbour, the P.Ws. 1 and 6 extended their helping hands to send Suniti to the house of the appellant. This fact has been stated categorically by P.Ws. 1 and 6 as well as P.W. 2, the victim girl. Some neighbours, like P.Ws. 3, 4 and 5, have also supported that fact. As far as this part of the prosecution is concerned, I find that there is consistent and corroborative evidence of the witnesses examined on behalf of the prosecution. 4. It is also not challenged seriously that Suniti had been to the house of the appellant, cooked his food and served the food to the appellant and she also took her food there. This fact was also corroborated by the victim while she made statement under Section 164 of the Code of Criminal Procedure. Her statement under Section 164 of the Code of Criminal Procedure was admitted into evidence and marked Exbt. 2/1. 4. In a case like this, prosecutrix herself is the star witness because the incident was not witnessed by any third person. Her statement under Section 164 of the Code of Criminal Procedure was admitted into evidence and marked Exbt. 2/1. 4. In a case like this, prosecutrix herself is the star witness because the incident was not witnessed by any third person. The prosecutrix was examined as P.W. 2. She stated that when she sought for permission from the appellant to return back home after finishing the household work, the appellant told her to enjoy radio songs sitting on his bed and sent Biswa, a boy who was present in the house of the appellant, out of the house. Thereafter, the appellant embraced her and put his hand on her breast. The P.W. 2 stated further that she tried to leave the house of the appellant, but he restrained her and put off her pant and caressed her body with his hand with bad intention. She escaped and disclosed the facts to her patents and neighourers, such as, Tukibala Barman, Gagen Barman, Borjen Barman and Anita Barman. In her cross-examination, she stated that when she was embraced by the appellant and she tried to save herself, there was scuffling and during scuffling the appellant put off her pant, which was ultimately torn. She took the pant to her house. 5. The father of the victim girl was examined as P.W. 1. He is the lodger of the First Information Report. He stated that after completion of household work when Suniti sought for permission from the appellant to return back home, the appellant told Suniti to enjoy radio songs sitting on his bed and asked Biswa, a boy who was present in the house of the appellant, to go out of the house. Thereafter, the appellant put his hand inside the wearing apparels of Suniti and touched her private parts. He also laid Suniti on the bed and tried to undress Suniti. He also tried to put off her pant, but Suniti raised alarm and fled away from the house of the appellant. She, then and there, reported the matter to the P.W. 1 and others. As far as this part of the prosecution case is concerned, P.W.2 has been extensively cross-examined. But she, in my view, stood against the test of such cross-examination with confidence. 6. The P.W. 6 is the mother of P.W. 2. She reproduced what the P.W. 1 had stated. As far as this part of the prosecution case is concerned, P.W.2 has been extensively cross-examined. But she, in my view, stood against the test of such cross-examination with confidence. 6. The P.W. 6 is the mother of P.W. 2. She reproduced what the P.W. 1 had stated. She denied in her cross-examination that Suniti did not tell her that the appellant put is hand in the private parts of Suniti and she was not laid on the bed and that the appellant attempted to commit rape on Suniti. The evidence of P.Ws. 1, 2 and 6 in this particular aspect appears to be consistent, corroborating and acceptable. Besides them, the P.W. 3 Kukibala Barman, P.W. 4 Brojendra Nath Barman and P.W. 5 Gajen Barman have also supported the statements of P.Ws. 1, 2 and 6. All of them have categorically stated that Suniti reported to them that she was laid on the bed by the appellant and put his hand all over her body and put off her pant. The appellant tried to commit rape on Suniti but Suniti fled away from the house of the appellant. There was full effort on the part of the defence to discard the evidences of P.Ws. 3, 4 and 5 but I find that their evidence was quite inspiring confidence and trustworthy. 7. The learned Trial Court also found no reason to discard the evidence of P.Ws. 1, 2, 3, 4, 5 and 6 so far as these facts are concerned. 8. The statement of the P.W. 2, i.e., the victim girl, was recorded under Section 164 of the Code of Criminal Procedure by the learned Magistrate, which was marked exhibit 2/1. Exhibit 2/1 shows that after completion of household work by the victim, the appellant told his nephew, Biswa, to see the cattle. When Biswa gone out, the appellant touched the breast of Suniti and tried to take off her pant. She shouted and left the place hurriedly. Thereafter, she informed the incident to her mother. 9. The above mentioned fact was supported by another witness, P.W. 7 who also came to know about the incident. His evidence is quite interesting and suggesting truthfulness of the prosecution case. She shouted and left the place hurriedly. Thereafter, she informed the incident to her mother. 9. The above mentioned fact was supported by another witness, P.W. 7 who also came to know about the incident. His evidence is quite interesting and suggesting truthfulness of the prosecution case. He stated that on the relevant date at about 1.00 to 2.00 P.M. he was proceeding towards market and while he came in front of the house of the appellant, he heard shouting of a lady and found a lady was going out of the house of the appellant in running condition. The appellant also followed her but stopped seeing the P.W. 7. He could recognize the lady as Suniti, the daughter of P.W. 1. Thereafter, he had gone to market and afterwards came to know that the appellant tried to commit rape on Suniti. The P.W. 7 was also extensively cross-examined by the defence. I do not find any reason for P.W. 7 to make a false statement against the appellant. 10. Mr. Chattopadhyay, learned advocate appearing on behalf of the appellant has drawn attention of this Court to various statements of witnesses, which appeared to him contradictory to each other and in his estimation, made the prosecution case not acceptable. He stated that there are contradictions as to the manner in which the alleged incident had taken place. According to the prosecutrix, her pant was taken off and torn and she took the pant to her house. This statement was not supported by any witness. She did not also state as P.W. 2 that she was laid on the bed but, her father, the P.W. 1, stated that she was laid on the bed forcibly and that the appellant tried to take off the pant of Suniti. The P.W. 6, the mother of Suniti, stated that Suniti was laid on the bed and the appellant tried to put off the pant of her daughter and tried to commit rape. This fact has not been stated by the prosecutrix in the statement under Section 164 of the Code of Criminal Procedure. The statement under Section 164 of the Code of Criminal Procedure was recorded on 21.08.2006 while the prosecutrix was examined in Court as P.W. 2 on 08.06.2009, i.e., about three years thereafter. This fact has not been stated by the prosecutrix in the statement under Section 164 of the Code of Criminal Procedure. The statement under Section 164 of the Code of Criminal Procedure was recorded on 21.08.2006 while the prosecutrix was examined in Court as P.W. 2 on 08.06.2009, i.e., about three years thereafter. The Exhibit 2/1, the statement of the victim under Section 164 of the Code of Criminal Procedure, being the first admissible piece of evidence and legal statement of the victim, obviously has great importance. According to that statement the appellant only touched her breast and tried to open her pant. Nothing more was done by the appellant according to the statement under Section 164 of the Code of Criminal Procedure. In course of time, when the witnesses were examined, the facts were embellished and extenuated to some extent. Some witnesses stated that the victim was laid on the bed and her pant was taken off while the prosecutrix stated that her pant was taken off and actually torn, which she carried to her house. That evidence of the prosecutrix was not corroborated by any of the witness examined on behalf of the prosecution. The torn pant was not placed before the Court in course of trial and admitted into evidence. Therefore, that part of the evidence cannot be accepted. 11. On scanning of the evidence it is found that the appellant touched the breast of the prosecutrix and he tried to open her pant. Before that, he sent his nephew, Biswa, out of the house in order to look after the cattle. He told the prosecutrix to listen to the music and switched on the radio. Obviously, he had done so with some mal-intention. 12. Mr. Chowdhury, learned counsel appearing on behalf of the respondent/State of West Bengal contended that the Hon’ble Apex Court in State of Maharashtravs. Mohd. Yakub & Ors., reported in (1980) 3 SCC 57 , has distinguished “attempt” and “preparation” for committing an offence and that being the authority over the issue as to whether a particular act comes within the purview of “attempt” to commit an offence or not, Court is guided by that principles laid down therein. 13. Mr. Yakub & Ors., reported in (1980) 3 SCC 57 , has distinguished “attempt” and “preparation” for committing an offence and that being the authority over the issue as to whether a particular act comes within the purview of “attempt” to commit an offence or not, Court is guided by that principles laid down therein. 13. Mr. Chattopadhyay, referred to the decision of the Bombay High Court in Harischandra Narayan Khardape v. State of Maharashtra, reported in 1983(2) (Crimes) 99 and a decision reported in 2011 Cr.L.J. 1501 in support of his contention that removing of wearing apparels simplicitor does not necessarily imply that there was attempt to commit rape. Mr. Chattopadhyay also taken help of the decision of the Hon’ble Apex Court in State of Maharashtra vs. Mohd. Yakub & Ors. (supra) in support of his contention. Mr. Chowdhury and Mr. Chattopadhyay both had taken the help of the decision of the Hon’ble Apex Court in Malkiat Singh v. State of Punjab, reported in A.I.R. 1970 S.C. 713, in support of their respective contentions. 14. The preparation is a mental act with follow up of some action to do a particular thing. Preparation consists in devising or arranging the means or measures necessary for the commission of the offence. Juxtaposed, an attempt to commit the offence is a direct movement towards the commission after preparations are made. In order that a person may be convicted of an attempt to commit a crime, he must be shown first to have had an intention to commit the offence, and secondly to have done as act which constitutes the actus reus of a criminal attempt. The sufficiency of the actus reus is a question of law which has presented difficulties because of the necessity of distinguishing between acts which are merely preparatory to the commission of a crime and those which are sufficiently proximate it to amount to an attempt to commit it. Definitions of attempt to commit crime are dangerous things and the only safe way is to consider the facts of the particular case and to decide it in accordance with the dictates of common sense. 15. The Hon’ble Supreme Court in Mohd. Yakub’s case in paragraph 13 laid down: “13. Well then, what is an ‘attempt’? Definitions of attempt to commit crime are dangerous things and the only safe way is to consider the facts of the particular case and to decide it in accordance with the dictates of common sense. 15. The Hon’ble Supreme Court in Mohd. Yakub’s case in paragraph 13 laid down: “13. Well then, what is an ‘attempt’? Kenny in his OUTLINES OF CRIMINAL LAW defined ‘attempt’ to commit a crime as the ‘last proximate act which a person does towards the commission of an offence, the consummation of the offence being hindered by circumstances beyond his control.’ This definition is too narrow. What constitutes an ‘attempt’ is a mixed question of law and fact, depending largely on the circumstances of the particular case. ‘Attempt’ defies a precise and exact definition. Broadly speaking, all crimes which consist of the commission of affirmative acts are preceded by some covert or overt conduct which may be divided into three stages. The first stage exists when the culprit first entertains the idea or intention to commit an offence. In the second stage, he makes preparations to commit it. The third stage is reached when the culprit takes deliberate overt steps to commit the offence. Such overt act or step in order to be ‘criminal’ need not be the penultimate act towards the commission of the offence. It is sufficient if such act or acts were deliberately done, and manifest a clear intention to commit the offence aimed, being reasonably proximate to the consummation of the offence. As pointed out in Abhayanand Mishra v. State of Bihar there is a distinction between ‘preparation’ and ‘attempt’. Attempt begins where preparation ends. In sum, 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 he intention to commit the offence, does an act towards it 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.” 16. In the instant case, no doubt, the appellant had a bad intention and he, to fulfil such bad intention, started preparation, such as, sending his nephew, Biswa, out side the house, keeping the victim waiting on the pretext of listening music.; Thereafter, he for further preparation, i.e., to attempt to commit the crime, wanted to put off the pant of the victim. It is to be noted that he touched the breast of the victim according to the statement under Section 164 of the Code of Criminal Procedure. He did not remove his own wearing apparels. Before he attempted to commit crime, the victim somehow managed to escape. The story of taking off pant of the victim did not get support from the evidence. Ultimately, screening of the evidence disclosed that the appellant failed to take off the pant of the victim. So in the midst of the preparation or at the last stage of preparation for committing crime, the prosecutrix able to leave the place. So, before attempt was made and preparation was complete, the victim could make herself free and leave the place. Therefore, in such factual aspect, it can hardly be said that the appellant had actually completed his preparation and attempted to commit rape. The fact that he laid the victim on the bed has not also been supported by any cogent evidence rather evidence on this point is contradictory to each other. The fact that the appellant had taken off the pant of the victim has not been established because of contradictory statements of the witnesses on this particular issue. There is no evidence, whatsoever, to the effect that the appellant himself has taken off his own wearing apparels. He only touched the body and private parts of the prosecutrix and attempt was made to take off the pant of the prosecutrix, but prosecutrix was able to restraint that. Therefore, before attempt was made and preparation was finished, the effort of the appellant came to an end. Accordingly, keeping in mind the principles laid down by the Hon’ble Apex Court in Mohd. Yakub’s case (supra), I am of the opinion that there was attempt on the part of the appellant to commit rape was not actually established. The learned Court made an error in distinguishing “preparation” and “attempt”. Accordingly, keeping in mind the principles laid down by the Hon’ble Apex Court in Mohd. Yakub’s case (supra), I am of the opinion that there was attempt on the part of the appellant to commit rape was not actually established. The learned Court made an error in distinguishing “preparation” and “attempt”. Therefore, in my opinion, prosecution failed to establish the charge under Sections 376/511 of the Indian Penal Code against the appellant. 17. However, it is stated by all the witnesses including the prosecutrix herself that the appellant touched her private parts and embraced her while she was alone. This fact shows that the appellant had outraged the modesty of the prosecutrix and, obviously, has committed an offence coming within the purview of Section 354 of the Indian Penal Code. As far as delay in lodging the First Information Report is concerned, I find there was sufficient reasons for filing the First Information Report at a belated stage. The father of the victim had been to the police station to lodge the complaint but the local police station refused to entertain him. He had to go to another person to write down the petition of complaint and file it in Court. Prior to that, a village meeting was held to settle the issue but was found futile. So delay was explained and in such type of cases, delay is normal and natural phenomenon and Court should ignore it if it is explained sufficiently. 18. In view of the discussion above, the appeal is allowed in part. The judgment and order impugned are set aside and modified to the extent that the appellant is found guilty of offence under Section 354 of the Indian Penal Code and is sentenced to suffer rigorous imprisonment for two years and to pay fine of Rs.5,000/-. In case of default in payment of fine, he is to undergo simple imprisonment for six months more. 19. With the above direction, this appeal is allowed in part and is disposed of with the above modification. Interim order, if there be any, stands vacated. There will, however, be no order as to costs. Let a copy of this judgment including the Lower Court Records be sent to the learned Court below for giving effect to the sentence without delay.