Calcutta High Court (Appellete Side)
Arabul Molla @ Ara vs State Of West Bengal on 22 September, 2016
Author: Indrajit Chatterjee
Bench: Indrajit Chatterjee
IN THE HIGH COURT AT CALCUTTA
CRIMINAL APPELLATE JURISDICTION
Present : The Hon'ble Justice Indrajit Chatterjee
C.R.A. 603 of 2015
Arabul Molla @ Ara
-Versus-
State of West Bengal
For the Appellant : Mr. Deep Chaim Kabir
Mr. Rajat Kumar Dey
Mr. Ali Ahsan Alamgir
For the State : Mr. Imran Ali
Heard on : 16-09-2016 & 19-09-2016
Judgment on : 22-09-2016
Indrajit Chatterjee, J.:- This court is hearing this appeal as against the
judgement and order of conviction dated August 29, 2015 passed by the
learned Additional Sessions Judge, 2nd Fast Track Court, Alipore, South
24-Parganas in connection with Sessions Case No. 10(8)2008 (Sessions
Trial No. 5 (11)/2008) arising out of Kashipur Police Station Case No.34
dated April 28, 2007 which was late on registered as G.R. Case No.
653/2007. As per that order of conviction, the present appellant was
convicted in respect of the charge punishable under Sections
376(2)(f)/511 of the Indian Penal Code (hereinafter referred to as the said
Code) and was sentenced to suffer rigorous imprisonment for five years
and also to pay fine of Rs.2,000/- in default to suffer 2 months simple
imprisonment. The fact of this case as agitated by the prosecution can
be stated in brief thus:-
That on April 28, 2007, mother of the victim girl went to
Kashipur Police Station, District - South 24-Parganas and handed over
one written F.I.R. wherein she complained that on April 28, 2007 at
about 12.00 noon she along with her minor daughter were guarding the
cucumber orchard '(Sasha Khet)' and when the minor daughter went to
take bath in a nearby shallow tube-well at a distance of 25 cubits at that
time the convicted appellant tried to rape the victim girl inside the hole
where there was 2 ½ feet water. When the victim girl raised alarm her
mother rushed there and found her daughter undressed and saw the
accused to do that act of crime. She also raised alarm and thereafter
some other witnesses came there and the accused appellant fled away.
The F.I.R. was registered as Kashipur Police Station Case No.
34 dated April 28, 2007 and investigation was started under Sections
376(2)(f)/511 of the Code. The Police investigated the matter and the
Investigating Officer of the case after completion of investigation
submitted charge sheet against the accused punishable under Sections
376(2)(f)/511 of the Code. The accused was committed to the Court of
Sessions and ultimately it was handled by the learned Additional
Sessions Judge, 2nd Fast Track Court, Alipore.
Charge was framed against the accused under Section
376(2)(f)/511 of the Code to which the accused pleaded not guilty and
claimed to be tried.
The claim of the defence as made out before the Trial Court
was a plea of false implication on the ground that there is dispute as
regards that particular orchard of cucumber. The convict/appellant
further claimed that his family is owning the adjacent field. The defence
came up with a specific case that the incident did not take place and he
was falsely implicated.
The victim made statement under Section 164 of the Criminal
Procedure Code which was marked as Exhibit '3' before the Trial Court,
the signature of the de facto complainant was marked as Exhibit '1',
formal F.I.R. was marked as Exhibit '2', sketch map with index was
marked as Exhibit '4' and '5', Exhibit '6' is the photo copy of the
Admission Register of the Primary School showing the date of birth of the
victim girl as 02.09.1996, Exhibit '7' is the photo copy of the register of
the subsequent School where she studied, Exhibit '8' is the mark sheet
issued by the West Bengal Board of Secondary Education.
The defence preferred not to adduce any documentary
evidence.
On behalf of the prosecution, 12 (twelve) witnesses were
examined. P.W. 1 is the de facto complainant, mother of the victim girl,
P.W. 2 is the victim girl, P.W. 3 is Abu Sufian, a co-villager, declared
hostile, P.W. 4 another co-villager also declared hostile, P.W. 5, A.S.I.
Monoranjan Santra, who filled the formal F.I.R., P.W. 6, Kutubuddin
Molla, neighbour, P.W. 7, Abdul Hamid, another neighbour, P.W. 8,
Mainakh Banerjee, is the Acting Officer-in-Charge of that Police Station,
who made necessary endorsement of the formal F.I.R., P.W. 9,
Alokananda Sarkar, is the Magistrate, who recorded the statement of the
victim girl under Section 164 of the Criminal Procedure Code, P.W. 10
Aloke Kumar Ghosh, the Investigating Officer of this case, P.W. 11 came
to prove the document of the Primary School and also the date of birth of
the victim and P.W. 12 is the Teacher-in-Charge of the subsequent
School where the victim girl studied. The defence preferred not to
adduce any oral evidence.
I have already noted the decision arrived at by the learned
Trial Court. The convict is now in custody.
On behalf of the appellant, Mr. Deep Chaim Kabir, learned
Advocate, submitted that except the mother and the victim girl, not a
single co-villager came to support the prosecution story and that P.W. 6
and P.W. 7 though did not support the prosecution story, were not
declared hostile by the prosecuting agency. He further submitted taking
me to the written F.I.R. that the entire F.I.R. was not marked as Exhibit,
only the signature portion of the de facto complainant was marked as
Exhibit. He took me to the evidence of P.W. 1, that is the de facto
complainant, to say that at the time of the incident she was guarding the
'Sasha Khet' and that her daughter went to take bath in the shallow
tube-well in the said field near her land and the said shallow tube-well
was situated within 25 cubits from the said land. He further pointed out
that accused Arabul was already taking bath in the said tube-well. He
also took me to the cross-examination of PW 1 that when one person will
take bath in the hole then other person cannot take bath at the same
time. Thus, he pointed out that how this accused victim and P.W. 2 the
victim girl, can take their bath together in that small hole which is
approximately 4 x 3 cubits in long and breadth, as we get from the
evidence of P.W. 1.
He also took me to the evidence of P.W. 2 to say that the
victim went to take bath in that shallow tube-well, cannot match with
the situation as she herself admitted that she did not bring any extra
garments and that she usually take bath at home.
He also took me to the 164 statement and the evidence on
record of the victim. He submitted to consider the fact that the hole was
visible from the place where the mother of the victim was sitting and that
even after the incident, none chased the accused when he was fled away
from the place of occurrence. He further contended that the accused did
not abscond after the incident. He was arrested from his home within
three days from lodging of the F.I.R. Thus, on fact he submitted that the
evidence of the prosecutrix and her mother cannot clinch the issue in
favour of the prosecution to convict the accused in spite of the crime
punishable under Section 376(2)(f) read with Section 511 of the Code.
He submitted that the accused is already in custody for more than one
and half years taking into consideration the period that he remained in
custody during the time of trial.
Mr. Kabir further submitted that on the point of sentence this
Court may also consider whether the offence as disclosed may come
within the purview of the Section 354 of the Code as the statement of the
witnesses will show that there was no penetration.
Mr. Kabir, has cited one decision of the Apex Court as
reported in AIR 1998 SC 386 (Madan Lal Vs. State of J & K) wherein
the Apex Court considering the fact before the said court held that even
penetration was not required to commit offence under Section 376 read
with Section 511 of the Indian Penal Code. Apex Court in that decision
considered the circumstances which were placed that it was more than a
preparation and actually there was an attempt to commit rape.
Learned Advocate cited another decision as reported in AIR
2004 SC 1497 (Aman Kumar & Another Vs, State of Haryana)
wherein the Apex Court took a candid view that penetration being sine
qua non for the offence of rape and that was absent in that case before
the floor of the court, the court did not accept the conviction under
Section 2(g) of the Code and convicted the appellant in respect of the
offence punishable under Section 354 of the Code. He also took me to
one decision of the Madras High Court as available in
MANU/TN/8589/2007 wherein in Criminal Appeal No.1183 of 2004, the
said court took the view of the Apex Court as taken in Aman Kumar &
Another (Supra) and on the fact before the said court held that no
offence under Section 376 read with Section 511 of the Code was
committed and conviction was awarded in respect of the offence
punishable under Section 354 of the Code.
Mr. Kabir submitted that the alleged incident took place in
the year 2007 and as such, the Amendment Act of 2003 will not apply in
the instant case.
Mr. Kabir ended his argument by saying that even if the
evidence of prosecutrix (P.W.2) is believed in toto, then even it cannot
withstand the test as prescribed by the Apex Court in Aman Kumar &
Another (Supra) . He justified the case of Madan Lal (Supra) on the
ground that in that case before the Apex Court the incident took place
inside the room and in the present case before the floor of this court the
alleged incident took place in a hole filled up with water upto 2 ½ feet.
On behalf of prosecution, Mr. Imran Ali, learned Advocate
submitted that this Court can rely upon the whole testimony of the
prosecutrix to come to the conclusion that actually offence was
committed on her. He cited the decision of the Apex Court in the case of
State of Himachal Pradesh Vs. Asha Ram, reported in AIR 2006 SC
381, wherein the Apex Court candidly held that conviction can be
founded on the testimony of the prosecutrix alone. He fairly submitted
that the other co-villagers have not supported the prosecution story but
this is very natural in every criminal case, as those persons are not
interested to become enemy of the accused/ convict by deposing against
him. He submitted that the offence of the prosecutrix has been well
supported by her mother, i.e. P.W. 1. He refuted the argument of Mr.
Kabir that the offence as reflected can lower down the charge to Section
355 of the Code and he submitted that after the evidence is scrutinized,
one must say that there was not only outrage of modesty but the
accused attempted to commit rape on her.
Mr. Ali further submitted that he prefers to go with the
judgment of the Apex Court as passed in Madan Lal ( Supra).
I have taken into consideration the argument as advanced by
the learned Advocate appearing on behalf of the appellant and also the
learned Counsel appearing on behalf of the State. I have taken into
consideration the evidence of the prosecution and also the documentary
evidence. The main evidence for consideration of this court is the
evidence of PW 2 that is the victim girl who was aged about 10 years at
the time of the incident. The place of occurrence was a small hole where
water was stored up to the level of 2½ ft. which is near one Shallow
Tubewell, about 25 cubits from the land of the PW 2's father. As per the
164 Cr.P.C statement which was marked as Exhibit 3 before the learned
trial court this victim stated to the Magistrate that she was taken by the
accused to that tubewell and she followed the accused but in the
statement on oath as PW 2 she departed from there and deposed that
she went there to take bath on her own and she found that accused was
taking bath in that hole. The important paragraph of the evidence of PW
2 is thus: "Arabul Molla at that time came to take bath in the hole
of shallow tubewell place. The said hole of the shallow place was
my waist height. I came to the said hole also to take bath. My
mother was sitting approx. 10/15 cubits away under a tree.
Thereafter accused undressed myself in the said hole and started
rubing his penies on my private parts and also made attempt to
push his male organ into my female organ and then I started
shouting and crying."
I am also to refer here the evidence of the de facto
complainant PW 1 being the mother of the victim girls who was there
near the place of occurrence and claimed that she saw the incident. Her
evidence on the point is quoted below: "my daughter went to take
bath in the shallow tubewell near our land that shallow tubewell
is situated within approx 25 cubics away from our land. Accused
Aratul (sic) was taking bath in the said tubewell. When my
daughter reached at shallow tubewell then accused caught hold
her and put of her panty and attempted to rape her and as aresult
my daughter started shouting." The point to be decided in this case
is whether the accused/convict made any attempt to commit the offence
of rape as defined under Section 376 read with Section 511 of the Code
(prior to 2013).
I have already referred to the main evidence of PWs 1 and 2 in
this regard. The other public witnesses being PWs 3, 4 were declared
hostile whereas PW 6 and 7 deposed nothing adverse against the
accused/appellant. These two witnesses were also not declared hostile
by the prosecution.
The claim of the prosecutrix that this accused/convict
undressed her in the said hole and started rubbing his penis on her
private parts and also made attempt to push his male organ into her
female organ. Thus, actually there was no penetration. As per decision of
the Apex Court in Aman Kumar (supra) the court observed that statute
requires positive evidence of penetration and this may occur even with
the hymen remaining intact. The actus reus is complete with
penetration. The court further observed that to constitute offence of
rape, it is not necessary that there should be complete penetration of the
penis with emission of semen to constitute the offence of rape as defined
in the law. I repeat here that here the incident took place in 2007 and as
such long before the Amendment Act of 2013 came into force.
In every crime there must be one intention to commit,
preparation to commit and thirdly an attempt to commit. If the third
stage that is attempt is successful then crime is complete. Section 511 is
a general provision dealing with attempts to commit offence not made
punishable by other specific sections. It makes punishable attempts to
commit offence punishable with imprisonment and not only those
punishable with death. 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 consist in it the intent to commit a
crime falling short of, its actual commission. There are difficulties
between a preparation and an attempt. The case decided by the Apex
Court in Madal Lal (supra) was not considered by the Apex in its
subsequent decision as passed in Aman Kumar (supra) which is a later
decision on this point. The incident of Madan Lal (supra) took place
inside the house whereas the incident of Aman Kumar (supra) took place
in a field. In case before the floor of this court the incident also took
place in the field. Keeping the decision of Aman Kumar (supra) in mind
and applying the same on the fact of the case before this court, this
court is of the opinion that there was no attempt on the part of the
accused to commit rape on the victim girl particularly when there was no
penetration.
This court is also not unmindful of the latest decision of the
Apex Court as passed in Criminal Appeal No.561 of 2009 on
11.05.2015(State of Rajasthan Vs. Sri Chand) wherein also the Apex Court relying on the decision of the Aman Kumar (supra) (Tarak Saha Vs. State of Bihar (2006) 8SCC 560) held that to constitute the offence of rape penetration is a pre-requisite and that was the legal position prior to 2013 and, therefore, in the offence of attempt to commit rape the accused must have so advance in his actions that it would have resulted in the rape on some extraneous factor not intervened.
This court is satisfied that relying on the evidence of PW 2 and corroborated by PW 1 that the evidence committed by the accused/appellant will certainly be one of indecent assault upon a woman. Essential ingredients of the offence punishable under Section 354 IPC are that the person assaulted must be a woman and accused must have used criminal force on her intending thereby to outrage her modesty.
The essence of a woman's modesty is her sex. In that view of the matter it was appropriate to set aside the conviction of the appellant under Section 376 (2)(f) rad with Section 511 of the Code and convict him Section 354 of the Code. Exactly sentence of two years with a fine of Rs.500/- and a default stipulation of three months rigorous imprisonment in case of failure to pay the fine would mean the ends of justice.
The appeal is allowed to the extent indicated above. There will be no cost for this litigation.
The department is directed to transmit the record to the learned trial court along with a copy of the judgment. The sentence already undergone of the convict be set of under Section 428 of the Cr.P.C.
Certified copy be given to the parties on urgent basis as per rules, if applied for.
(Indrajit Chatterjee, J.)