Calcutta High Court (Appellete Side)
Netai Das vs The State Of West Bengal & Anr on 28 April, 2016
Author: Joymalya Bagchi
Bench: Joymalya Bagchi
In The High Court at Calcutta
Criminal Appellate Jurisdiction
Present :
The Hon'ble Justice Joymalya Bagchi
C. R. A. 393 of 2015
With
C.R.A.N. 868 of 2016
Netai Das
Vs.
The State of West Bengal & Anr.
Ms. Punam Basu, Advocate
Ms. Sonam Basu, Advocate ... for the Appellant.
Mr. Pawan Gupta, Advocate ... for the State.
Heard on: April 28, 2016.
Judgment on: April 28, 2016.
Joymalya Bagchi, J.:-
The appeal is directed against the judgement and order dated
28.04.2015 passed by learned Additional Sessions Judge, Nabadwip,
Nadia convicting the appellant for commission of offence punishable under
Section 448/323/376/511 of the Indian Penal Code and sentencing him to
suffer rigorous imprisonment for one year and to pay a fine of Rs.1,000/-
in default suffer rigorous imprisonment for one month for the offence
punishable under Section 448 of the Indian Penal Code, sentencing him to
suffer rigorous imprisonment for one year and to pay a fine of Rs.1,000/-
in default to suffer rigorous imprisonment for one month for the offence
punishable under Section 323 of the Indian Penal Code and sentencing
him to suffer rigorous imprisonment for 7 years and to pay a fine of
Rs.5,000/- in default to suffer further rigorous imprisonment for one and
half years punishable under Section 376/511 of the Indian Penal Code, all
the sentences to run concurrently and 50% of the fine amount, if
deposited, shall be paid to the victim as compensation.
The prosecution case as alleged against the appellant is to the effect
that on 10.06.2014 at about 5 p.m. the victim had gone to the house of
Bhajan Das for the purpose of giving tuition to his son Abhay Das. When
the victim reached the house of Bhajan, she found that Abhay was not
present in the house and his mother, Astomi went out to call her son. The
victim was in the house of Bhajan alone and was sitting on the cot as she
had come from college and was not feeling well. She sat on the cot holding
her head in her hands by bending herself. At that time, the victim heard
the closing of the door and found that the appellant had entered the room.
The appellant closed the door from inside. Thereafter the appellant jumped
on her without giving opportunity to her to get up from the bed. The
appellant held her and assaulted her. She somehow managed to come out
from his clutches. Thereupon the appellant pushed her from behind and
her head struck on the door. Then the appellant caught her and pushed
her on the cot and her head struck against the wooden stand used for the
mosquito net. He tried to untie her wearing apparel and attempted to
commit rape upon her. The victim cried for help. The appellant caught
hold her throat and tried to strangulate her. She again called for help and
the local people assembled and pushed open the door. She had become
senseless. The appellant fled from the place and the victim was taken to
the house. She narrated the incident to her mother and was taken to
Maheshganj Hospital for treatment. Anita Debnath, mother of the victim
lodged written complaint which was treated as F.I.R. Nabadwip P.S. Case
No.352 of 2014 dated 11.06.2014 under Section 448/325/376/511 of the
Indian Penal Code was registered for investigation. In conclusion of
investigation, charge sheet was filed in the instant case. The case being a
Sessions triable one was committed to the Court of Sessions and
transferred to the court of Additional Sessions Judge, Nabadwip, Nadia for
trial and disposal. In course of trial, prosecution examined as many as 10
(ten) witnesses. The defence of the appellant was one of innocence and
false implication. In conclusion of trial, the learned trial judge by the
impugned judgement and order dated 28.04.2016 convicted and sentenced
the appellant, as aforesaid.
Ms. Punam Basu, learned Advocate for the appellant submitted that
the evidence of P.W.2 is an exaggerated one and is wholly unreliable.
Although she alleged that she was hit by the appellant, no external injury
was found on her person. The evidence of P.W.s 1 and 3, her parents, also
suffer from various contradictions and inconsistencies, the independent
witnesses do not support the case and the incident as narrated by the
prosecution is patently absurd and interestingly improbable ought to have
been disbelieved. She accordingly prayed for acquittal.
Mr. Pawan Gupta, learned Advocate for the State submitted that the
victim had deposed that the appellant attempted to commit rape on her.
He further submitted that the evidence of P.W. 2 is corroborated by other
witnesses including the medical witness. He prayed for dismissal of the
appeal.
P.W. 2 is the most vital witness of the case. She stated that she went
to house of Bhajan Das on 10.06.2014 at about 5 p.m. to give tuition to
his son. She was sitting alone on the cot. The appellant entered into the
house and closed the door. Thereafter the appellant molested her and
pushed her from the behind and her head struck against the door.
Thereafter the appellant pushed her on the bed and tried to untie her
dress and also tried to commit rape. She cried for help but due to sound of
nearby power-loom nobody heard crying. The appellant tried to throttle
her. Finally, she called para people. When they arrived she was
unconscious. When she regained conscious, she was taken to her house
and she narrated the incident to the inmates of her house. Later on, she
came to know the name of the appellant. Next day she was taken to
Maheshganj hospital. She made a statement before the Magistrate.
P.W.1 is the de facto complainant and the mother of the victim. She
corroborated the evidence of the victim and stated that Bhajan Das
brought her daughter to her residence whereupon her daughter narrated
the incident before her. Victim was taken to Maheshganj hospital. She
lodged a written complaint (exhibit1).
P.W.3 is the father of the victim and has also corroborated the
evidence of P.W.1. He stated that the victim was feeling pain in her throat.
She was treated at Maheshganj hospital. He had been informed about the
incident over phone by his wife, P.W.1 at about 10-30 A.M. as he was away
at Kakdip for work.
P.W.4, Astami Das is the mother of the boy, Abhoy whom the victim
had gone to teach. She stated that she was not present at that time of
incident as she had gone to bring her son. She was declared hostile.
P.W.5, Harekrishna Das is a neighbour of Bhajan Das. He was also
declared hostile.
P.W.6, Jyotsna Das is also a neighbour of Bhajan Das. She deposed
that the victim used to go to the house of Bhajan Das for giving tution.
P.W.7 is the Judicial Magistrate who recorded the statement of P.W.
2.
P.W.8 is the Medical Office who treated the victim on the next day.
He stated that the victim told him that the appellant had assaulted her by
his hand. She had not been raped. He did not find any external injury on
the victim. He approved the medical report (exhibit-3).
P.W. 9 is the police officer attached to Nabadwip P.S. who received
the formal F.I.R. (exhibit-4).
P.W.10 is also the police officer who recorded the statement of the
victim under Section 161 Cr.P.C. as well before Judicial Magistrate and
collected medical report. After completion of investigation, he filed the
charge sheet.
Evidence of P.W.2 is corroborated by her parents, P.W.1 and P.W.3.
Their evidence establishes the fact that the victim went to the house of
Bhajan Das and while she sitting on the cot the appellant had entered the
house and closed the door of the house. Thereafter the appellant
misbehaved with the victim and when the victim protested and tried to
open the door, the appellant tried to untie the cloth and also tried to
disrobe. It is true that the victim has physically assaulted on her head by a
wooden stand and also strangulated. However, the medical report of the
victim (exhibit-3) did not show any external injury on her person.
Accordingly, I am of the opinion that the evidence of the victim with
regard to assault and strangulation being not supported by medical
evidence appears to be an embellishment. However, the remainder of the
evidence of the victim that the appellant had surreptitiously entered the
house and misbehaved with her and tried to disrobe her cannot be
disbelieved on such score alone. There is a ring of truth in such version of
the victim which she promptly narrated to her parents, P.W. 1 and P.W.3
is corroborated by them in their deposition.
However, in view of such embellishment in the version of the victim,
her evidence requires to be scrutinised with some care and caution.
In this perspective let me analyse her evidence as to whether a case
of attempt to rape has been made out or not.
An analysis of her evidence would show that the appellant molested
her, pushed to bed and tried to disrobe her. There is no evidence on record
that he disrobed himself or attempted to penetrate her or insert or apply
any part of his body or mouth or any other object to her private parts.
Offence of rape defined under section 375 I.P.C. (as amended in
2013) constitutes forcible penetration or insertion of penis or any part of
the body or thing or applying of mouth to the private or other intimate
parts of a woman against her will. Hence, penetration or insertion or
application of mouth appears to be the sine qua non for commission of the
offence of rape under the amended definition. No such act is attempted by
the appellant. He had tried to disrobe the victim and had not even disrobed
himself or attempted to penetrate or insert anything or apply his mouth to
the private parts of the victim.
Commission of an offence involves three stages - intention,
preparation and attempt. If the attempt is successful, offence is said to be
committed. Every act towards the commission of an offence does not
amount to an attempt to commit the offence. In Aman Kumar Vs. State
of Haryana, (2004) 4 SCC 379 at paragraph 11 and 14 it was held:-
"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. 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.
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14. .....As observed by Justice Patteson in R. v. James Lloyd1 in
order to find the accused guilty of an assault with intent to commit
a rape, court must 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. The point of distinction
between an offence of attempt 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 was just going to have sexual
connection with her."
In Tarkeshwar Sahu Vs. State of Bihar (now Jharkhand)
reported in (2006) 8 SCC 560 the Apex Court held when the appellant had
not attempted to penetrate the victim the slightest degree, no case of
attempt to rape was made out (see paragraph-22). Similarly, in State of
Rajasthan Vs. Sri Chand, (2015) 11 SCC 229, when the appellant took
the victim to a room and had disrobed themselves but had run away when
people came upon hearing the cries of the victim it was held that the act of
accused amounted to outraging of modesty, not an attempt to rape.
The ratio of the aforesaid authorities applies with full force to this
case. The appellant had not disrobed himself nor had disrobed the victim.
He was attempting to disrobe her when she cried out and upon local
people arriving at the spot he ran away. Allegation of assault on the victim
by pushing her against a wooden door or post of the cot or by
strangulation has not been corroborated by medical evidence. Hence, it
cannot be said that the appellant wanted to commit rape on the victim at
all cost notwithstanding her resistance and that the actus reus had
transcended the stage of preparation and arrived at a stage when he was
just going to have sexual connection with her. However, the act of the
appellant clearly constitutes the offence of using criminal force with the
intention of disrobing the victim punishable under section 354B I.P.C.
Such offence being a lesser offence to section 376/511 I.P.C., no prejudice
is caused to the appellant if the conviction under section 376/511 I.P.C is
modified to section 354B I.P.C.
In view of such discussion, I modify the conviction of the appellant
and hold that the appellant is guilty for the offence punishable under
Section 448/323/354B of the Indian Penal Code. Coming to the issue of
sentence, I find that the appellant does not have any criminal antecedent
and accordingly I modify the sentence and direct the appellant shall suffer
rigorous imprisonment for three years and pay a fine of Rs.10,000/- in
default to suffer rigorous imprisonment for two months more for the
offence punishable under Section 354B of the Indian Penal Code.
1
(1836) 7 C&P 317 : 173 ER 141
Sentences on the counts of Section 448/323 of the Indian Penal Code,
however, shall remain unaltered and all the sentences shall run
concurrently and 50% of fine the fine amount, if paid, shall be given to the
victim as compensation.
With the aforesaid modification, the appeal and the application being
C.R.A.N. 868 of 2016 are disposed of.
The lower court records with a copy of this judgement be sent down
at once to the learned trial court for necessary action and execute of the
sentence in accordance with law.
Let photostat certified copy of this order be given to the parties, if
applied for, on urgent basis upon compliance of all formalities.
(Joymalya Bagchi, J.)
PA to J. Bagchi, J.
& SKP, AR(Court).