Delhi District Court
State vs . Dheer Singh on 22 January, 2008
1
IN THE COURT OF SHRI SANJAY KUMAR AGGARWAL
ADDL. SESSIONS JUDGE, ROHINI COURTS, DELHI
SC No.94/07 FIR No.267/07
PS Sultan Puri
U/S 376/511/506
IPC
State
Vs.
Dheer Singh
22.01.2008
ORDER ON POINT OF CHARGE Vide this order, I shall dispose of on point of charge.
2. Briefly stated the facts of the case are that the prosecutrix, who is aged around 12 years, lodged a report before the police on 20.02.2007 that on 20.02.2007 at about 8.00 a.m., she had gone for offering prayers at B-block, Kali Mata Mandir. The Pujari of the said temple, namely, Dheer Singh, the accused also used to reside in the said temple. The said Pujari, the accused tied the hands of the prosecutrix and also tied the mouth of the prosecutrix with some cloth. The accused removed the salwar of the prosecutrix but did not undress State Vs. Dheer Singh 2 himself. The accused tried to commit rape but when the prosecutrix raised alarm, the accused left the prosecutrix and intimidated her that in case she would disclose the incident to anyone, she would be killed by the accused. The prosecutrix came back to her house and disclosed the entire incident to her mother. Thereafter, the mother of the prosecutrix took the accused to police station.
3. The Ld. Counsel for the accused vehemently argued that the charges u/s 376/511 IPC are not being attracted in the given facts because prosecution story reflects that the accused was only at the stage of preparation and it does not fall within the definition of "attempt" and consequently, no attempt to commit rape can be assigned to the accused. He stated that had the accused undressed himself, the situation would have been different. He requested this Court to frame charges only u/s 354 IPC against the accused. He relied upon various judgments.
4. Ld. CPP, on the other hand, stated that had the accused State Vs. Dheer Singh 3 undressed himself and hand penetration been completed, the case would not have come under the definition of only attempt but the substantive offence u/s 376 IPC would have already completed. He further argued that what more is required to implicate the accused u/s 376/511 IPC when the accused had already tied the hands and mouth of the prosecutrix and had undressed the presecutrix. He further stated that the act of the accused squarely falls within the definition of attempt of rape and not u/s 354/506 IPC.
5. After hearing the arguments of the rival parties, I would like to discuss the legal position before any conclusion. The distinction between the rape and criminal assault was aptly described in English case of Rex Vs. James Lloyd, (1836) 7 C and P 317. In the said case, while summing up the charge to the jury, Justice Patterson observed:
"In order to find the prisoner guilty of an assault with intent to commit rape, you must be satisfied that the prisoner, 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 notiwthstanding State Vs. Dheer Singh 4 any resistance on her part."
6. In a similar case decided by Hon'ble Bombay High Court in Ahmad Asalt Mirkhan, Criminal Appeal No.161 of 1930, decided on 12.08.1930 reported in Law of Crimes by Ratanlal Dhirajlal's page 922. In that case, the complainant, a milkmaid, aged 12 to 13 years, who was hawking milk, entered the accused 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 crying and placed his private parts 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 in that case that the accused was not guilty of attempt to commit rape but of indecent assault."
7. The legal position was also clarified in the latest judgment of Hon'ble Supreme Court of India in Tarkeshwar Sahu Vs. State State Vs. Dheer Singh 5 of Bihar 2007 (1) C.C. Cases (SC) 96. In the said case, it was held that the conclusion become irresistable that the conviction of appellant u/s 376/511 IPC is wholly unsustainable. What to talk about penetration, there has not been any attempt of penetration of the slightest degree. Appellant had neither undressed himself nor even asked the prosecutrix to undress, so, when there was no question of penetration. In the absence of any attempt to penetrate, the Hon'ble Supreme Court has held that conviction u/s 376/511 IPC is wholly illegal and unsustainable and the charges can only be framed u/s 354/366 IPC.
8. In another case, the Hon'ble High Delhi Court in Jai Chand Vs. State, (1996) Crl. J 2039 held that the accused in another case had forcibly laid the prosecutrix on the bed and broken her pyzama's string but made no attempt to undress himself and when prosecutrix pushed him away, he did make no efforts to grab her again. It was held that it was not attempt to rape but only outraging of the modesty of a woman.
State Vs. Dheer Singh 6
9. In the backdrop of the settled legal position, when this Court examined the instant case, the conclusion becomes irresistible that there is no justification in charging the accused for the offences u/s 376/511 IPC. The accused had not undressed himself and had removed the clothes of the prosecutrix after tying her hands and mouth. In view of the above noted legal position as held in Jai Chand's case (Hon'ble High Court of Delhi Supra) and in view the judgment of Tarkeshwar Sahu Vs. State of Bihar (Hon'ble Supreme Court Supra), the position becomes very clear and transparent that when the prosecutrix resisted, the acts of the accused when he had laid hold of the prosecutrix, the accused had left the prosecutrix meaning thereby he had not intended to gratify his passion at all events.
10. In view of the above discussion, prima facie a case u/s 354/506 IPC is made out against the accused Dheer Singh. The offence u/s 354/506 iPC is exclusively triable by Court of Metropolitan Magistrate. This file be placed before Ld. ACMM on 28.01.2008 with State Vs. Dheer Singh 7 direction to assign the same to the Court of Ld. MM. Ld. MM shall frame fresh charge and be proceed as per law. Since the offence u/s 354 IPC is a bailable offence, the accused is admitted to bail on his furnishing personal bond in the sum of Rs.10,000/- with one surety in the like amount.
Announced in the open Court on 22nd day of January, 2008.
(SANJAY KUMAR AGGARWAL) ADDL. SESSIONS JUDGE ROHINI COURTS,DELHI State Vs. Dheer Singh