Gauhati High Court
Jamal Uddin vs The State Of Assam on 27 January, 2015
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IN THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM
AND ARUNACHAL PRADESH)
Crl.A.248/2005
1. Jamal Uddin,
S/o- Abu Bakkar Siddique
Resident of village Satrakanara
No.6 Seat,
P.O -Baghbor
District- Barpeta, Assam.,
.............................. Appellant
- Versus-
1. The State of Assam
........................ Respondent
BEFORE
HON'BLE MR. JUSTICE B.K. SHARMA
For the appellant : Mr. N. Hoque, Adv
For the respondent : Mr. D.Das, Addl.P.P
Date of hearing : 27.01.2015
Date of Judgment : 27.01.2015
JUDGMENT AND ORDER (ORAL)
1. Heard Mr. N. Hoque, learned counsel for the accused/appellant and Mr. D. Das, learned Additional Public Prosecutor, Assam.
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2. This appeal is directed against the judgment of conviction dated 16.09.2005 passed by the learned Additional Sessions Judge (Ad-Hoc), Barpeta in Sessions Case No.111/2003 (State of Assam-vs- Md. Jamaluddin). By the said judgment, the accused/appellant has been convicted u/s 376/511 IPC and he has been sentenced to undergo rigorous imprisonment for 03(three) years with fine of Rs.2000/- (rupees two thousand) and in default, further rigorous imprisonment for 02(two) months. Ever since the appeal was admitted, the accused/appellant is on previous bail vide order dated 23.11.2005 passed in Misc Case No.3518/2005.
3. The prosecution story in brief is that on 19.07.2003, the victim along with her mother and her cousin brother, who is the accused/appellant, had gone to the house of her maternal uncle at Barpeta. On the next date i.e. on 20.07.2003, her mother and the accused/appellant returned home. On the next date i.e. on 21.07.2003, he again came to the house of the maternal uncle and informed the victim about her mother's illness. Thereafter, both of them came back from the maternal uncle's house. While coming back, the accused took her towards Barpeta old Civil Hospital, but she went to the bus stand for Mandia from where she wanted to go on foot. But the accused objected to that and both of them boarded the boat of one Bilat Ali (PW-2). According to the prosecution story, when the boat reached 'Milijuli Ghat' , the accused/appellant threatened her with an intention to 3 commit the offence u/s 376 IPC and also assured her of marriage. When she refused to such proposal, the accused/appellant then threatened her with a Dao and Pistol. On raising hue and cry, the accused ran away. She informed the matter in her house, whereupon a village mell was called. But the accused remain absconded.
4. There was delay in filing the FIR on the basis of which police registered a case. Thereafter, investigation was carried out and on completion of the same, charge sheet was submitted against the accused/appellant u/s 420/376/511/506 IPC. Thereafter, charge was framed u/s 376/511 IPC. Charges were read over to the accused/appellant, to which he pleaded not guilty and claimed to be tried.
5. During trial, the prosecution examined 03(three) witnesses including the Investigating Officer. The accused was also examined u/s 313 Cr.P.C. He also examined one defence witness in support of his defence. Raising the following point, the learned trial Court having answered the same in the affirmative, the accused/appellant has preferred this appeal.
(i) Whether on 21 . 07. 2003 the accused attempted to commit rape on the persons of Musstt. Maleka Khatun, as alleged?4
6. Mr. N. Hoque, learned counsel for the accused/appellant submits that there is absolutely no ingredients towards constituting an offence u/s 376/511 IPC as there was no attempt to commit an offence under the said sections. Mr. D. Das, learned Additional Public Prosecutor, on the other hand submits that there being attempt to rape, the learned trial Court has rightly convicted the accused/appellant.
7. PW-1 in her evidence while narrating the incident as to how she had come back to her house along with the accused/appellant also stated about boarding the boat. Although in the examination-in-chief, she stated that there was proposal from the accused/appellant for marriage, also stated additionally that he also tried to commit rape on her. However, material particulars are lacking in this regard. As per the evidence on record, in the open boat there were other passengers. In a small boat, where the offence allegedly said to have been committed by the accused/appellant, there being other passengers, normally in absence of any collusion the accused/appellant could not have attempted to do the same.
8. On a total perusal of the evidence of PW-1 what has emerged is that she was taken back home on boat, although she wanted to go on foot. While no other passengers came to her rescue, it is the boatman who was at the roof top came down and rescued her. However, in the evidence of PW-2, 5 there is no such allegation against the accused/appellant. He in his deposition, particularly in cross examination, categorically stated that the PW-1 never stated before him that there was an attempt to commit rape on her. Although there was allegation on the part of the PW-1 that the accused/appellant had Dao and Pistol in his hands, but PW-2 in his deposition stated that he did not notice the same. As regards the Dao, he stated that the same belonged to him and was kept in the boat. In the cross examination, he categorically stated that he did not see any Pistol with the accused/appellant when he came down from the boat.
9. PW-3 in his deposition generally stated about the investigation. In his cross examination, he admitted that no sketch map was drawn and that the boat was also not seized. He also did not take the statements of the parents of the victim. He in his deposition did not state anything about offence allegedly committed by the accused/appellant.
10. DW-1 in his evidence stated altogether a different story so as to suggest that the whole prosecution story is based on falsehood.
11. Mr. N. Hoque, learned counsel for the accused/appellant submits that it being a concocted story, there was delay in lodging the FIR. Although the alleged occurrence took place on 21.07.2003, but the FIR was lodged on 03.08.2003 and there is no explanation as to the cause of delay. As regards the purported attempt to commit rape, 6 placing reliance on the decision of the Apex Court reported in (1980) 3 SCC 57 [State of Maharashtra -vs Mohammad Yakub and others], he submits that there is nothing to show that there was an attempt to commit rape. In paragraph 13 of the said judgment, the following observation has been made:-
1 3. Well then, what is an "attempt"?
Kenny in his OUTLINES OF CRIMINAL LAW defined "attempt" to commit a crime as the "last proximate act which a person does towards the commission of an offence, the consummation of the offence being hindered by circumstances beyond his control". This definition is too narrow. What constitutes an "attempt" is a mixed question of law and fact, depending largely on the circumstances of the particular case. "Attempt" defies a precise and exact definition. Broadly speaking, all crimes which consist of the commission of affirmative acts are preceded by some covert or overt conduct which may be divided into three stages. The first stage exists when the culprit first entertains the idea or intention to commit an offence. In the second stage, he takes deliberate overt steps to commit the offence. Such overt act or step in order to be "criminal" need not be the penultimate act towards the commission of the offence. It is sufficient if such act or acts were 7 deliberately done, and manifest a clear intention to commit the offence aimed, being reasonable proximate to the consummation of the offence. As pointed out in Abhayanand Mishra v. State of Bihar there is a distinction between "preparation" and "attempt". Attempt begins where preparation ends. In sum, a person commits the offence of "attempt to commit a particular offence "when (i) he intends to commit that particular offence and
(ii) he, having made preparations and with the intention to commit the offence, does an act towards its commission such an act need not be the penultimate act towards the commission of that offence but must be an act during the course of committing that offence. "
12. As noted above, in the evidence of PW-1 except the simple statement that there was attempt to commit rape, nothing has been stated as to how the accused/appellant proceed towards that end and as to whether there was preparation to commit the offence. Coupled with this, PW-2 in his evidence stated that the PW-1 did not tell him that there was any attempt to commit rape on her.
13. As discussed above, Pw-3, the Investigating Officer also did not state in his evidence that there was any attempt to commit rape. There was also delay in lodging the FIR. This is the precise the reason as to why the defence by adducing 8 the evidence of DW-1 suggested that it was a concocted story.
14. For all the aforesaid reason, I am of the considered opinion that the prosecution failed to establish the case against the accused/appellant beyond all reasonable doubt.
15. Accordingly, this appeal is allowed by setting aside and quashing the impugned judgment of conviction. The bail bond stands discharged.
16. Let the case record be sent down to the learned Court below along with a copy of this judgment.
JUDGE Alam