Orissa High Court
Gananath Jena vs State Of Orissa on 9 August, 1995
Equivalent citations: 1996CRILJ229, 1995(II)OLR492
Author: A. Pasayat
Bench: A. Pasayat
JUDGMENT A. Pasayat, J.
1. Gananath Jena (hereinafter referred to as the 'accused') calls in question legality of his conviction for the offences punishable under Section 376 read with Section 511, and Sections 448 and 506 of the Indian Penal Code, 1860 (in short, 'IPC') as made by the learned Assistant Sessions Judge-cum-Chief Judicial Magistrate, Balasore, and confirmed in appeal by the learned Additional Sessions Judge, Balasore. For such conviction, petitioner was sentenced to rigorous imprisonment for five years, six months and one year respectively with a direction to their concurrent running.
2. Background facts leading to trial of the petitioner as portrayed by the prosecution are as follows :
The accused and the victim, whose name need not be described (PW 6), who is wife of PW 3 belong to same village. On 10-12-1988 the victim was alone in his house after her husband had left for work. At about noon time, after taking her meal she was asleep in her room. The accused taking advantage of her loneliness entered into the room, gagged her mouth by putting a shawl, caught hold of her in a sleeping posture, removed her sari and tore her blouse, and after making her naked, he himself became naked and attempted to have sexual intercourse with her. Victim put up resistance and tried to escape from the clutches of the accused, and stood up. But the accused continued his amoral activities, and embraced her. At that time, hearing her cry for help PWs 1 and 2, who were working in their fields nearby, came running and saw the accused embracing the victim. On seeing the witnesses the accused, left the victim, and ran away with the shawl. He threatened the witnesses with dire consequences in case any disclosure was made by them about the incident. However, when the husband of victim returned he was told about the incident. On the next day, the victim went to Police Station at Khantapada in the company of her husband and lodged first information report. As per her version same was scribed by one Golak Behari Das (PW 4). Investigation was undertaken, and on completion thereof charge-sheet was submitted. Though the charge-sheet indicated commission of offences under Sections 448/354/506, IPC, learned SDJM, Balasore was of the view that a prima facie case under Section 376 read with Section 511, and Sections 448 and 506, IPC was made out and accordingly took cognizance. Offences under Section 376 read with Section 511 being triable exclusively by the Court of Session, the case stood committed to that Court for trial.
3. The accused pleaded innocence and false implication.
4. Learned Additional Sessions Judge, Balasore on evaluation of evidence of six witnesses examined to further the prosecution case and two to support the defence plea, found the accused guilty, and convicted and sentenced him as aforesaid. In appeal the order of conviction and sentence was confirmed as indicated earlier.
5. In support of the revision application, Mr. D. P. Dhal, learned counsel submitted that the evidence of witnesses does not inspire confidence. It was submitted that the background as projected clearly shows consent on the part of victim. Absence of any injury on the body of the victim was also highlighted in this regard. Alternatively it is submitted that no offence under Section 376 read with Section 511, IPC was made out. Lastly it was submitted that the accused is in custody for a considerable period and considering long passage of time, the sentence needs modification. Learned counsel for State on the other hand supported the Judgment of conviction and sentence.
6. Coming to the plea that the incident as alleged may at best amount to preparation for commission of rape and not an attempt, it has to be borne in mind that 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 hive done an 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 to 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 commonsense. Attempt may be stated to be an act done in part execution of criminal design amounting to more than mere preparation, but falling short of actual commission, and possessing all elements of the substantive crime, except for failure to consumate the act.
7. What amounts to an attempt has been described variously in the authorities, and the definition given in Stephen's Digest of Criminal Law (5th Edition) Article 50 is as follows :
"An attempt to commit a crime is an act done with intent to commit that crime, and forming part of a series of acts which would constitute its actual commission if it were not interrupted."
A helpful definition is given in Para 4104 in Archhold's Pleading Evidence and Practice (36th Edition) where it is stated in this form :
"It is submitted that the actus reus necessary to constitute an attempt is complete if the prisoner does an act which is a step towards the commission of the specific crime which, is immediately and not merely remotely connected with the commission of it, and the doing of which cannot reasonably be regarded as having any other purpose than the commission of the specific crime,"
As observed by the apex Court in Abhayanand Mishra v. State of Bihar : AIR 1961 SC 1698, a person commits the offence of attempting to commit a particular offence when he intends to commit that particular offence and having made preparations and with the intention to commit that offence does an act towards its commission and that such an act need not be penultimate act towards the commission of that offence, but must be an act during the course of committing such offence.
The evidence of the victim lady clearly shows that the act was not a preparation but an attempt to commit rape.
8. I shall first deal with the plea relating to absence of injuries. Absence of injuries does not rule out possibility of rape or attempted rape. It would all depend on circumstances of the case. There is no material to show that the place where the victim was sleeping had a rough surface. If there was no violent shaking of the limbs or any part of the body, merely because the body was being shaked to ward off any sexual assault cannot necessarily result in injuries. The absence of injuries cannot, therefore, be a ground for disbelieving the victim lady's version regarding the attempted rape.
9. The other question is how far the version of the victim lady herself establishes the guilt of the petitioner. Undisputedly she has no animosity with him. The hairsplitting distinction sought to be made by the learned counsel for the petitioner that in a case of rape the victim's evidence may be sufficient, but not in a case of attempted rape does not carry any conviction. Can it be said that a woman is only to be believed after she is raped, and not after she has been disrobed, but successfully warded off the attempt to rape, in the tradition bound conservative Indian society, it is incredible to think that a woman would falsely state that she was disrobed and attempts were made to rape her, which in view of intervening circumstances could not materialise. True it is, possibility of false implication is not a myth. In some cases it may be a reality. But the Court has a duty to weigh the possibilities of truth of allegation on consideration of materials and evidence placed. On the evidence of the victim lady herself conviction can be maintained, if it has a ring of truth. The evidence of the victim lady is clear and elaborate cross-examination has not brought any crack in it. There is no substance in the argument advanced by the learned counsel for petitioner that the evidence of the victim lady herself is not sufficient for bringing home the charge against the petitioner.
10. Coming to the question of sentence, I find that at the time of occurrence the petitioner was in his early twenties. Undisputedly, he was a daily wage earner. Attempt to rape is definetely a serious offence. It touches the dignity and honour of a woman. Rape or attempt to commit it is an act which results from lapse of self-control and yielding to base instincts, it leaves an indelible ignomy on the victim. Be that as it may. considering the fact that the occurrence took place about seven years back, the possibility of social ostracization and the recent trend of Stress on reformation. I feel that custodial sentence of six months for the offence under Section 376 read with Section 511, IPC would be adequate. Other conviction made and sentence imposed do not warrant any interference. The sentences are to run concurrently.
The revision application is dismissed subject to modification in sentence as aforesaid.