Madhya Pradesh High Court
Nanka S/O Chimliya vs State Of Madhya Pradesh on 27 October, 1988
Equivalent citations: 1991(0)MPLJ345
JUDGMENT V.D. Gyani, J.
1. This appeal was taken up for its final hearing on 30-9-1988. On going through the record, it was found, that it is connected with other criminal appeals arising out of the same judgment. They were sent for and heard together. All these appeals are, therefore, decided by a common order. The points raised are common to all these appeals. The appellants have been convicted Under Section 366 read with 511, Indian Penal Code and sentenced to undergo R.I. for five years. The appellant Ida, has also been found to be guilty Under Section 354, Indian Penal Code and sentenced to undergo one year's R.I. appellant Nanka has also been convicted Under Section 323, Indian Penal Code and sentenced to six months' R.I. for causing hurt to Alma.
2. Prosecution case as disclosed by the F.I.R. Ex.P.1 was that on the date of incident i.e. 30-10-1982, Alma, aged 18 years had gone to work in the field of one Bhalu Bheel. Around 12.00 in the noon the date of incident while she was harvesting paddy alon gwith Thavli, Subsingh and Shaila, the accused came there. Ida caught hold of her by her hand and dragged her. The other accused exhorted him by saying 'DHARLE' (catch hold of her). Alma shouted for help; she was beaten by appellant Nanka; who thrust an arrow in her wrist while he raised cries. Hearing her cries, her father who was grazing cattle in a hearby field, came there, along with Bhootsingh and Subsingh. It is alleged that Nanka shot an arrow hitting Nathu Alma's father in his left elbow. Others pelted stones injuring Subsingh. The accused thereafter ran away. F.I.R. Ex.P.1 was lodged at Police Station, Ambua the same day around 11.00 p.m. A case Under Section 354, 324/34, Indian Penal Code was registered against the accused. Nanka, was arrested on 31-10-1982 vide arrest Memo Ex.P.7 while others were arrested on the same day vide Arrest Memo Ex.P.9.
3. All the accused were charged with and tried for offences punishable Under Sections 366 read with 511, Indian Penal Code. Accused Ida was also charged Under Section 354, Indian Penal Code for attempting to outrage the modesty of Alma. Nanka was charged Under Sections 323 and 324, Indian Penal Code for voluntarily causing hurt to Alma and her father, Nathu. The trial Court convicted and sentenced the Appellants, as stated above; hence this appeal.
4. Shri Jain learned counsel for the appellants raised the following points :
(i) that on facts, offence Under Section 366 read with 511, Indian Penal Code is not at all made out nor can it be legally conceived of. The charge as framed by the trial Court in this behalf, was vague, causing prejudce to the accused in their defence. Similarly, the charge Under Section 354, Indian Penal Code was not proved against the appellant Ida, there could be no conviction Under Section 366 read with 511, Indian Penal Code recorded under the law and lastly;
(ii) The investigation in the case was tainted; examination of the accused Under Section 313, Criminal Procedure Code was equally perfunctory.
5. Before dealing with these points it would be worthwhile to note some salient facts and features of the prosecution evidence. There is a basic infirmity in the prosecution case. As deposed to by Alma the prosecutrix, she did not know any of the accused from before either by name or face; according to her the accused had masked or covered their faces. The names of the accused as appearing in the F.I.R. was due to the fact that Village Patel Bhurlasingh suggested their names. Alma has categorically stated that she did not disclose to the police the names of the accused while lodging the F.I.R. Ex.P.1. She maintained in her evidence that it was Bhurla Patel who had given her the names of the accused. No test identification parade was held during investigation. Nathu P.W.2 has also admitted that the accused were shown to him at the Police Station and he was asked to identify them; which he could not, in the first instance do. It was Navadiya Tadvi who gave the names of the accused who were called by the Police to the P.S. and the report was written thereafter. These infirmities create a serious dent in the prosecution case and renders it doubtful.
6. Alma alleged dragging at the hands of appellant Ida; she had fallen to the ground and as stated by her, she was dragged like a 'DHOR' an animal in a harvested field yet surprisingly enough she had not even a scratch or an abrasion on her body as admitted by her in her evidence, although her injury report mentions four contusions and an abrasion on her right wrist joint, attributed to Nanka who is alleged to have assaulted her with an arrow. Nanka has been acquitted of the charge Under Section 324, Indian Penal Code of voluntarily causing grievous hurt to Nathu. Subsingh P.W.4 does not say a word about any injury being caused to Alma, his sister, by any of the accused.
7. Although Nathu in his evidence has denied the suggestion that negotiations were on with Ida for his marriage with Lama and his brother-in-law who lived in the same village Hardaspur where accused Ida lived was acting asintermediary. But his son Subsingh P.W.4 has admitted that had the accused settled the dowry-dispute, they would not have reported the matter to the Police. He admits the custom prevalent amongst the tribals - the bhils it is the girl who extends invitation and the groom by holding her hand indicates his intention acknowledging her as his wife. It is in this background that the statement made by Ida as recorded Under Section 313, Criminal Procedure Code needs to be appreciated; his stand is that he was implicated in the case because he failed to pay the dowry as demanded. Even Thavli P.W.2 mother of Alma has admitted this custom prevalent amongst tribals. She has further deposed that accused Ida, while holding Alma's hand had declared that he by holding her hand made her his wife and asked her to accompany him. She has categorically stated none of the accused who were standing at a distance had indulged in any beating.
8. Before dealing with conviction Under Section 366 read with 511, Indian Penal Code other convictions Under Sections 354 and 323, Indian Penal Code are taken for consideration first. Taking up conviction Under Section 354, Indian Penal Code, as recorded against Appellant Ida, by the trial Court, learned counsel pointed out from the impugned judgment that the basic requirement of offence is not made out by the prosecution. In order to make out a case Under Section 354, Indian Penal Code, it is incumbent on the prosecution to prove that an assault was made or criminal force was used against any woman and secondly, to prove that it was with intention to outrage or knowing that it was likely that he will thereby outrage her modesty.
9. It is this essential ingredient which the prosecution has failed to establish in the instant case. The relevant discussion on the point is to be found in para 36 of the impugned judgment. The conviction is solely based on the evidence of P.W.I Alma and the trial Court has relied upon the fact that the accused appellant Ida caught her by her hand. It remains to be seen whether it was with a view to outrage her modesty. An attempt was made according to the prosecution, to physically drag Alma against her will. It has also come in the evidence of Alma, that Ida wanted to marry her. This act of dragging, though not proved by evidence, in absence of anything more in her evidence, cannot be said to constitute an attempt to outrage her sense of modesty. There is not a word in her evidence, to suggest any such outrage of her modesty, nor can it be inferred, from other attending circumstances. The mere fact that she was caught by her hand, would not by itself go to constitute an offence Under Section 354, Indian Penal Code. The conviction and sentence Under Section 354, Indian Penal Code cannot, therefore, be upheld, it is liable to be set aside and is accordingly set aside.
10. For sustaining a charge Under Section 354, Indian Penal Code the prosecution must establish the essential ingredients of the offence, which in the present case, are not borne out by the evidence on record. Conviction Under Section 323, Indian Penal Code as recorded against appellant Nanka may also be considered. He is sentenced to undergo six months' R.I. on this count. Alma P.W. 1 in her evidence has testified that the appellant Nanka had beaten her with an arrow. In her cross-examination she has admitted that she did not know the accused by their names. They had come, with their faces masked or covered. She also admitted that while she was being dragged by the accused Ida, she lay on the ground yet neither her clothes were torn, nor these contusions as given in the injury report Ex.P.10 can by no stretch be made compatible with an assault by an arrow. The width of these contusions is 4 cms., 5 cms. which cannot be said to be the width or thickness of an arrow. The doctor has not been shown or confrinted with the weapon allegedly used by Nanka for inflicting the injury. There is yet another infirmity, as admitted by the prosecutrix that she did not know the accused by names. As a matter of fact even their faces were also covered. In these circumstances it was extremely unnatural for the prosecutrix to have given out the names of the accused appellants at the time of lodging the F.I.R. Ex.P.1. Subsingh P.W.4 does not say a word about any injury having been caused to Alma by accused Nanka. Thavli P.W.2 has made a plain statement that none of the accused caused any injury to Alma although they were standing at a distance. The trial Court while recording conviction against the appellant Nanka Under Section 313, Indian Penal Code overlooked this inconsistency and infirmity in the prosecution case. The conviction and sentence Under Section 323, Indian Penal Code as recorded against the appellant Nanka, cannot therefore, be sustained. It is liable to be quashed and is accordingly quashed.
11. A very significant fact which requires to be noted on the very outset is the charge as framed against the appellants. There is no charge Under Section 34, Indian Penal Code nor is there any charge Under Section 149, Indian Penal Code. There is no allegation that the accused appellants other than Ida either abetted or helped the appellant Ida in commission of the offence. The trial Court has recorded a finding that the prosecutrix Alma at the time of the incident was major; she has been found to be above 18 years of age. Prosecution has not proved that she was below 18 years on the date of incident. Keeping in view this finding and the essential ingredients of abduction, there is absolutely no allegation so far as appellants other than Ida are concerned; much less any reliable evidence to attract Section 366, Indian Penal Code and hold them guilty thereunder. Their conviction Under Section 366 read with 511, Indian Penal Code is not at all maintainable either on facts or on law in absence of a specific charge either Under Section 34, 149 or 114, Indian Penal Code. The evidence as noted above does not go to show that any of them entertained any such intent and indulge in any such act which would go to constitute an offence punishable Under Section 366, Indian Penal Code. Their conviction, therefore, is liable to be set aside; it is accordingly set aside. The case of Ida alone remains to be considered; so far as his conviction Under Section 366 read with 511, Indian Penal Code is concerned.
12. The trial Court has recorded conviction without adverting to, the question as to what constitutes attempt of kidnapping or abduction and what separates it from consummated crime of abduction or kidnapping.
13. Glanville Williams the celebrated author of 'Text-Book of Criminal Law' is in Chapter 17, relating to 'attempt' quoted Shakespeare. The attempt and not the deed confounds us' - Macbeth II. It merely indicates how confusing and confounding the problem is. The trial Court while recording conviction Under Section 366 read with 511, Indian Penal Code has not realised the legal implications of such a conviction. There is no authoritative pronouncement available on the point.
14. Kenny in his 'Outlines of Criminal Law', 17th Edition, on the 'elements of liability in attempt' observes as follows :
To constitute attempt at common law, there must be evidence of some overt act as well as evidence of mens rea. The burden is therefore on the prosecution to show (i) the actus reus, that the accused had done something which in point of law marked the commission of the offence, and (ii) the mens rea, that in taking this step he was inspired by the intention to go on to reach a definite objective which would constitute a specific felony or misdemeanour.
The learned author further notes -
It was an early common law rule that a man who had instigated another to commit a felony became himself guilty of the felony as accessory before the fact, if the felony was actually committed. When the law came to recognize that the instigation was a misdemeanour if the crime instigated was not effected, the position was reached in which it could be said that the misdemeanour merged in the felony if the crime was committed. This led to the establishment of a like rule for attempts and it was laid down in decided cases that if the attempt were successful the preliminary offence of attempt disappeared since the misdemeanour merged in the felony.
15. Russel 'On Crime' deaing with 'The Elements of Liability in Attempt', the celebrated author has noted -
"Since an attempt to commit an offence is itself a crime at common law it follows that the common law principles as to actus reus and mens rea must be satisfied. The prosecution therefore must prove
(a) that the offender's physicl conduct reached the point which the law prohibits (the actus reus), in other words, there must be proof of something done by the offender, a deed, which the law regards as marking the commission of this particular offence, and
(b) that in pursuing his line of conduct he was actuated by the intention (the mens rea), to go further and to achieve a definite end which is a specific crime."
Proceeding further learned author has noted that -
"The Courts, and the writers, have never purported to find themselves in any special difficulty to define the mens rea of attempt. What they have found difficult is to express with precision a test whereby to decide what constitutes the physical element, the actus reus, of attempt."
16. Section 511, Indian Penal Code deals with punishment for attempting to commit offences. It is said to begin when the preparations are complete and the accused commences to do something with the intention of committing the offence and which is a step toward the commission of offence. The Supreme Court in Sudhir Kumar v. State, AIR 1973 SC 2655 laid down that a person commits the offence of attempt to commit a particular offence when he intnds to commit that particular offence, and he, having made preparations and with the intention to commmit the offence, does an act towards its commission though such an act need not be penultimate act towards the commission of that offence but must be an act during course of committing that offence. As has been pointed out by the Supreme Court there is a thin line between preparation for, and an attempt to commit an offence. The culprit at first intends to commit an offence, then makes preparation for committing it and thereafter attempts to commit the offence. Attempt to commit an offence, therefore, begins with the preparations are complete and the culprit commences to do something in furtherance of the commission of offence.
17. It now remains to be seen on the basis of the evidence available on reecord, whether the facts and circumstances as established, warrant a conviction for attempted abduction of Alma by appellant Ida. Apart from the infirmities of the prosecution case as noted in para 5 the only overt act which can be said to have been proved against the accused is the holding of Alma's hand by the appellant. The evidence of her mother and brother on this point is worth recalling to mind. It has been noted in- the foregoing para 7. Negotiations for marriage were on and for the discharge of dowry-debt the accused would have married Alma. It has been admitted by her brother that had he paid the dowry, the matter would not have been reported at all. It is in this context that the statement of appellant Ida assumes importance. There is no element of force nor employing of deceitful means on his part. As has been held above, he had also no intent to outrage the modesty of Alma, who has also in reply to Court question admitted that the accused held her hand with a view to make her his bride; an act admittedly permissible of the region. The question of employing force is not proved to have been used by the appellant.
18. A word about the Judge's power to question a witness. It is not an absolute power. The power is designed to further ends of justice. The Judge, therefore, in exercise of the power Under Section 165 of the Evidence Act, in view of the wide power to examine a witness at any stage must be circumspect in his exercise of the power. This Court is constrained to observe that the learned Judge in putting lengthy questions to the prosecutrix (as many as 13 of them), had undoubtedly transgressed his limits.
19. The mores of the social life and customs as prevailing amongst the tribals of the State have been recognised by this Court, at least in the matter of sentence. Rule 269 of the Rules and Orders (Criminal) framed by this Court reads as follows : -
"Rule 269 : The atention of all magistrates is drawn to the necessity of exercising care in inflicting punishments on members of aboriginal tribes. Certain sections of the Indian Penal Code dealing with matrimonial and allied offences, make criminal certain acts which the custom of aboriginal tribes, sanctions. The existence of such customs will not detract from the criminality of the act but can be taken into consideration in awarding sentence as a ground for leniency."
20. Apart from the fact that on the basis of evidence on record, the conviction Under Sections 366/511, Indian Penal Code cannot be maintained. The trial Court has, even in the matter of sentence, overlooked the Rule quoted above. The evidence of the prosecutrix is full of infirmities; the names of the accused Appellants as they appear in the F.I.R., were admittedly introduced at the behest of the Village Patel. No test identification parade was held during investigation. Conviction Under Section 366/511, Indian Penal Code as recorded by the Trial Court, cannot be maintained. It is liable to be set aside and is accordingly set aside.
21. For the foregoing reasons these appeals stand allowed. The accused appellants are acquitted of the charges framed against them. The convictions and sentences as recorded against them are set aside and their bail bonds are cancelled.