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2019 DIGILAW 659 (JHR)

Raju Thakur v. State of Jharkhand

2019-03-07

RAJESH SHANKAR

body2019
JUDGMENT : RAJESH SHANKAR, J. 1. The present criminal appeal is directed against the judgment of conviction dated 24.11.2003 and order of sentence dated 25.11.2003 passed by the Additional Judicial Commissioner, Fast Track Court No. VII, Ranchi in Sessions Trial Case No. 636 of 2002 arising out of Sadar P.S Case No. 108 of 2002, corresponding to G.R. Case No. 2331 of 2002, whereby the appellant has been convicted under Sections 376/511 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for four years. 2. The prosecution story, as per the fardbeyan of the informant-Banwari Mahto, father of the victim, as recorded on 26.08.2002, at about 22.00 hrs. is that Raju Thakur was residing in a rented house of Sonelal Mahto at village Buti. On 26.08.2002, at about 6:30 pm he took the victim aged about 4 years to his room and bolted it from inside. He undressed the victim and tried to commit rape. The victim started crying and then the landlady rushed towards the room and other nearby persons also gathered there. They attempted to open the door and saw the victim and the appellant in naked position. It is alleged by the informant that the appellant with an intention to commit rape upon the victim took her inside his room, however, due to the intervention of the landlady and other nearby persons he could not succeed in committing rape. 3. On the basis of the fardbeyan of the informant, Sadar P.S Case No. 108 of 2002 was registered under Section 376/511 of the Indian Penal Code against the present appellant. After investigation, police submitted charge-sheet on 21.09.2002 and, accordingly, the court below took cognizance of the offences under Section 376/511 of the Indian Penal Code. Thereafter, charge was framed under Section 376/511 of the Indian Penal Code against the appellant on 18.01.2003. 4. The prosecution, in order of substantiate the allegation, examined altogether ten witnesses. PW-1 Shrikant Tiwari, PW-2 Kashinath Mahto, PW-3 Prem Kumar Sahu, PW-4 Krishna Karmali @ Karmali, PW-5 Meena Devi, PW-6 Aloo Devi, PW-7 Sobha Devi, PW-8 Punam, PW-9 Banwari Mahto, PW-10 H.B. Singh. 5. The statement of appellant was recorded under Section 313 of Cr.P.C on 18.11.2003 in which he denied the allegation levelled against them. 6. PW-1 Shrikant Tiwari, PW-2 Kashinath Mahto, PW-3 Prem Kumar Sahu, PW-4 Krishna Karmali @ Karmali, PW-5 Meena Devi, PW-6 Aloo Devi, PW-7 Sobha Devi, PW-8 Punam, PW-9 Banwari Mahto, PW-10 H.B. Singh. 5. The statement of appellant was recorded under Section 313 of Cr.P.C on 18.11.2003 in which he denied the allegation levelled against them. 6. The trial court after taking into consideration the evidence laid by the prosecution witnesses and perusing the materials available on record convicted the appellant under Section 376/511 of the Indian Penal code and sentenced him to undergo rigorous imprisonment for four years. 7. The learned Amicus Curiae appearing for the appellant submits that there are material contradictions in the depositions of the prosecution witnesses which the Trial Court erroneously ignored while convicting the appellant and as such the impugned judgment is liable to be set aside. It is further submitted that the victim was a tutored witness and as such her statement cannot be believed. On one hand PW-6 deposed that she had asked the appellant to open the door and thereafter the victim went to her house alone, however, on the other hand, PWs. 5, 8 and 9 deposed that they had also seen the victim in the room of the appellant and on their pressure the appellant opened the door. It is further submitted that the prosecution has failed to establish that the appellant made any attempt to commit rape upon the victim to substantiate the charge under Section 376/511 of IPC. 8. Per contra, learned APP submits that the prosecution sufficiently proved the charge against the appellant and as such he was rightly convicted by the court below. Minor inconsistency in the evidence of the prosecution witnesses would not be fatal if otherwise the offence alleged against the appellant is proved. It is further submitted that independent witnesses have sufficiently supported the prosecution’s case. 9. Heard the learned Amicus Curiae and the learned A.P.P. To appreciate the contentions of the parties I have perused the evidence of the witnesses adduced before the trial court from both the sides. Out of ten witnesses examined by the prosecution, PWs. 3, 4 and 7 are hearsay witnesses. PW-1 Shrikant Tiwari deposed that on hearing noise of the landlady, he reached the place of occurrence and saw the victim in naked position and the room was closed from inside. Out of ten witnesses examined by the prosecution, PWs. 3, 4 and 7 are hearsay witnesses. PW-1 Shrikant Tiwari deposed that on hearing noise of the landlady, he reached the place of occurrence and saw the victim in naked position and the room was closed from inside. PW-2 Kashinath Mahto deposed that the victim came out in naked condition and she disclosed that the appellant had made an attempt to commit rape upon her. PW-5 Meena Devi is the mother of the victim who deposed that the appellant took the victim with him in his room. She heard noise that the victim was confined in the room and she was crying. The said witness knocked the door, however, the appellant did not open the door and then she saw from the window that the victim and the appellant were in naked condition and the victim was crying. She somehow got the victim freed, however, he again closed the door from inside. PW-6 Aloo Devi is the landlady. She deposed that the victim was crying in the room of the appellant. She asked the appellant to open the door and thereafter he opened the door and then the victim went to her house. The appellant again closed the door from inside. PW-8 is the victim girl, who deposed that the appellant took her to the house of Shashi and undressed her and put oil on her body. She cried and thereafter her mother got the door opened. PW-9 Banwari Mahto is the informant of the case. He deposed that at the time of occurrence he was near his house. One man came and told him that the appellant had confined the victim in the room and she was raising alarm. He rushed there. The landlady got the room opened and then he saw the victim and the appellant in naked condition and oil was poured on the body of the victim. The appellant again closed the door. PW-10 H.B Singh is the investigating officer of the case. He deposed that the witnesses had stated that they had seen the victim and the appellant in naked condition. The victim had also stated before him that the appellant had undressed her. 10. The appellant again closed the door. PW-10 H.B Singh is the investigating officer of the case. He deposed that the witnesses had stated that they had seen the victim and the appellant in naked condition. The victim had also stated before him that the appellant had undressed her. 10. The thrust of the argument of the learned Amicus Curiae appearing for the appellant is that even if the prosecution case is believed to be true it does not constitute an offence under section 376/511 of IPC. In support of his contention the learned counsel for the petitioner puts reliance on the judgment of the Hon’ble Supreme Court rendered in the case of Tarkeshwar Sahu vs. State of Bihar (Now Jharkhand), (2006) 8 SCC 560 , in which it has been held as under:- “17. A similar case was decided by Mirza and Broomfield, JJ. of the Bombay High Court in Ahmed Asalt Mirkhan [Cri. A. No. 161 of 1930, decided on 12.8.1930 in Law of Crimes by Ratanlal Dhirajlal, p. 922]. In that case the complainant, a milkmaid, aged 12 or 13 years, who was hawking milk, entered the accused's house to deliver milk. The accused got up from the bed on which he was lying and chained the door from inside. He then removed his clothes and the girl's petticoat, picked her up, laid her on the bed, and sat on her chest. He put his hand over her mouth to prevent her from crying and placed his private part against hers. There was no penetration. The girl struggled and cried and so the accused desisted and she got up, unchained the door and went out. It was held that the accused was not guilty of attempt to commit rape but of indecent assault. The point of distinction between an offence to commit rape and to commit indecent assault is that there should be some action on the part of the accused which would show that he is just going to have sexual connection with her. 22. In the backdrop of settled legal position, when we examine the instant case, the conclusion becomes irresistible that the conviction of the appellant under Sections 376/511 IPC is wholly unsustainable. What to talk about the penetration, there has not been any attempt of penetration to the slightest degree. 22. In the backdrop of settled legal position, when we examine the instant case, the conclusion becomes irresistible that the conviction of the appellant under Sections 376/511 IPC is wholly unsustainable. What to talk about the penetration, there has not been any attempt of penetration to the slightest degree. The appellant had neither undressed himself nor even asked the prosecutrix to undress so there was no question of penetration. In the absence of any attempt to penetrate, the conviction under Sections 376/511 IPC is wholly illegal and unsustainable.” In the aforesaid case it has been specifically held that in order to attract the liability for making attempt to commit rape there should be some action on the part of the accused which should show that he was just going to have sexual connection with the victim. In the case of Koppula Venkat Rao vs. State of A.P. (2004) 3 SCC 602 , it has been held as under:- “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 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. 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. 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 or consummation/completion. 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. 11. In order to find an accused guilty of an attempt with intent to commit a rape, court has to be satisfied that the accused, when he laid hold of the prosecutrix, 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. Indecent assaults are often magnified into attempts at rape. Indecent assaults are often magnified into attempts at rape. In order to come to a conclusion that the conduct of the accused was indicative of a determination to gratify his passion at all events, and in spite of all resistance, materials must exist. Surrounding circumstances many times throw beacon light on that aspect.” In the aforesaid case it has been specifically held that a culprit first intends to commit the offence, then makes preparation for committing it and thereafter attempts to commit the offence. Attempt to commit an offence can be said to have begun when the preparations are complete and the culprit commences to do something with the intention of committing the offence. 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 order to find an accused guilty of an attempt with intent to commit a rape, court has to be satisfied that the accused, when he laid hold of the prosecutrix, 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. 11. In the present case the victim was not medically examined in order to show that there was any sign of injury on her body to corroborate the fact that the appellant forced the victim for committing rape. The investigating officer during his cross-examination stated that he had not found any sign of injury on the body of the victim. Though I find some inconsistency in the statements of the prosecution witnesses to the extent they claimed to have seen the occurrence, yet the prosecution witnesses consistently deposed the factum that the appellant had taken the victim to his rented room, bolted it from inside and poured oil on her body and only on raising alarm by the victim, she was freed. It was also consistently deposed by the witnesses that the victim was in naked condition. The investigating officer during his examination stated that the victim had disclosed before him that the appellant had undressed her. The victim during her examination deposed that the appellant took her to his room, undressed her, taken off his clothes also and poured oil on her body. The investigating officer during his examination stated that the victim had disclosed before him that the appellant had undressed her. The victim during her examination deposed that the appellant took her to his room, undressed her, taken off his clothes also and poured oil on her body. When she raised alarm she was rescued. 12. Thus I am of the considered view that the prosecution failed to prove that there was sufficient evidence to show an attempt on the part of the appellant to commit rape. Though the intention of the appellant was to commit rape upon the victim and to achieve the said intention he was preparing for committing the rape, yet in the meantime on raising alarm by the victim she was rescued. Under such circumstance the conviction of the appellant under section 376/511 of IPC is not liable to be sustained. However, the evidences of the prosecution witnesses are sufficient to convict the appellant under section 354 of IPC. In the case of Raju Pandurang Mahale vs. State of Maharashtra, (2004) 4 SCC 371 , it has been held by the Hon'ble Apex Court that even a female child of seven-and-a-half months can be said to be possessed of modesty which can be outraged. 13. In view of the aforesaid discussion, judgment of conviction dated 24th November, 2003 and order of sentence dated 25th November, 2003 passed by the Additional Judicial Commissioner, Fast Track Court No. VII, Ranchi in Sessions Trial Case No. 636 of 2002, arising out of Sadar P.S. Case No. 108 of 2002, corresponding to G.R. No. 2331 of 2002, is hereby quashed and set aside. The appellant is convicted under Section 354 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for two years with fine of Rs. 1,000/- and in default of making payment of fine to further undergo simple imprisonment for a period of one month. 14. Since the appellant has already remained in judicial custody for more than two years and one month in the present case and the sentence awarded to the appellant has already been undergone, the appellant is directed to be released from the judicial custody forthwith in connection with the present case, if not wanted in any other case. 15. This appeal is, accordingly, partly allowed.