Gauhati High Court
Joynal Uddin vs The State Of Assam on 13 August, 2013
Author: Ujjal Bhuyan
Bench: Ujjal Bhuyan
IN THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND
ARUNACHAL PRADESH)
CRIMINAL APPEAL NO.117/2012
Appellant:
Joynal Uddin,
Son of Md. Tasaddul Ali,
Resident of village- Kanakpur,
Post office- Manik Bond Bazar,
Police Station- Bajari Cherra,
District- Karimganj,
Assam-788728.
By Advocates:
Mr. K. Agarwal,
Mr. D.K. Chomal,
Mr. M.C. Das,
Mr. A. Rahman.
Respondent:
State of Assam.
By Advocate:
Ms. B. Bhuyan, Addl. PP, Assam BEFORE HON'BLE MR. JUSTICE UJJAL BHUYAN Dates of hearing : 22-05-2013 Date of Judgment : 13.08.2013 J U D G M E N T AND O R D E R(CAV) Heard Mr. K. Agarwal, learned Counsel for the appellant and Ms. B. Bhuyan, learned Additional PP, Assam for the respondent.
2. This criminal appeal has been filed against the judgment and order dated 28-04-2012 passed by the learned Sessions Judge, Crim inal Appeal N o.117/ 2012 P age 1 of 14 Karimganj in Sessions Case No.85/2009 convicting the accused/appellant u/s 376(1)/511 IPC and sentencing him to undergo rigorous imprisonment (RI) for a period of five years with fine of Rs.5000/-, in default, to undergo further RI for a period of six months.
3. Facts of the case may be briefly noted.
4. PW 1 as the first informant lodged information before the Officer-in-Charge, Patharkandi Police Station on 21-08-2009 alleging that at about 7 am on 19-08-2009, his minor daughter, aged about 12 years, had gone to the jungle for collection of herbs to prepare medicines. She was alone. One unidentified person alongwith the accused accosted her and wanted to have physical relation with her by proposing marriage. When she refused, the accused and the unidentified person threatened her by showing a "dao" and tied her to a tree. With intention to commit rape, her wearing apparels were torn and force was used on her causing injuries. When she raised hue and cry, nearby "jhum" cultivators came to the place of occurrence and rescued his daughter. The accused could be identified. Though a village meeting called "bichar" was held on the following day, the matter could not be settled. Hence the first information. The same was treated as FIR and on the basis of the same, Patharkandi PS Case No.120/2009 u/s 342/325/376/511 IPC was registered.
5. Police investigated the case. In the course of investigation, the victim was medically examined and her statement was also recorded u/s 164 Cr.P.C. The accused was arrested and taken into custody. On completion of investigation, the Investigating Officer (IO) Crim inal Appeal N o.117/ 2012 P age 2 of 14 submitted charge-sheet against the accused u/s 342/323/376/511 IPC.
6. The case being triable by a Court of Sessions, learned Sub-Divisional Judicial Magistrate, Karimganj committed the case to the Court of learned Sessions Judge, Karimganj.
7. On case being committed, learned Sessions Judge framed charge against the accused on 04-11-2009 charging him with causing hurt to the victim and also attempting to commit rape on the victim, minor daughter of PW1. Accused was accordingly charged with committing an offence punishable u/s 323/376/511 IPC. When the charge was read over and explained to the accused, he pleaded not guilty and claimed to be tried.
8. Accordingly, trial commenced. During the trial, prosecution examined as many as seven witnesses to prove the charge against the accused. The defence plea was of total denial. However, no defence witness was produced.
9. Learned trial Court after considering the evidence adduced and other materials on record, convicted the accused u/s 376(1)/511 IPC and imposed the sentence as indicated above. Hence the appeal.
10. The appeal was admitted on 20-07-2012 and by a separate order dated 18-09-2012, the impugned sentence was stayed and the appellant was allowed to go on bail.
Crim inal Appeal N o.117/ 2012 P age 3 of 14
11. Mr. K. Agarwal, learned Counsel for the accused/appellant submits that the basic ingredient for constituting the offence of attempt to commit rape is absent in the present case. He submits that there was a great deal of confusion regarding the identity of the person who had alleged to have attempted to commit rape. Evidence of the prosecution witnesses contradict each other. Materials on record do not justify drawing of any definite conclusion regarding culpability of the accused in the commission of the offence. In such circumstances, learned trial Court was not justified in convicting the accused/appellant and imposing on him the sentence as indicated above. Accused/appellant is atleast entitled to the benefit of doubt, he submits.
12. Ms. B. Bhuyan, learned Additional Public Prosecutor on the other hand supports the impugned conviction and sentence. She submits that the victim was a minor girl and there was no reason to disbelieve her statement. Conviction for the offence of attempt to commit rape can be based on the sole testimony of the victim girl, which inspired confidence. She submits that there is no infirmity or anomaly in the conviction of the accused. Sentence imposed is commensurate with the gravity of the offence. She, therefore, prays for dismissal of the appeal.
13. Submissions made have been considered. Also perused the record.
14. Before proceeding further, evidence adduced by the prosecution witnesses may be briefly noticed.
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15. PW1 is the informant and father of the victim girl. He stated that the victim was his daughter and she was aged about 13 years. At the time of deposition, she was reading in class VII. PW 1 stated that his daughter is a spiritual healer and provides treatment to men and women. For the said purpose, she collects herbs for medicinal use. On 19-08-2009, at about 7 am, she went to the jungle to collect herbs. Suddenly, one unknown person caught hold of her and took her inside the jungle. Her hands and feet were tied to one "segun" tree. The person uttered that she would have to marry him otherwise he would kill her. The person attempted to commit rape upon her. Village people who had gone to collect vegetables from the site of jhum cultivation nearby, found the victim in a nervous condition. He stated that "then the person the accused fled away after pushing her". Village people identified the man to be the accused. PW 1 further stated that he came to know about the occurrence from his daughter. He also stated that at first he wanted to settle the matter in village "bichar". As there was no decision, he lodged the ejahar. He further stated that his daughter was medically examined and the police seized the wearing apparels of his daughter. In his cross- examination, he described the topography of the area. There was a path leading to the site of jhum cultivation. On one side of the path was the jungle. He stated that when he went to the place of occurrence later on with the police, they found creepers used by the accused.
16. The victim girl deposed as PW 2. She stated that she was a student of class VII and that she healed people by giving herbal medicines. According to her, on the date of occurrence, she was proceeding to the jungle to collect herbs. The accused suddenly caught Crim inal Appeal N o.117/ 2012 P age 5 of 14 hold of her and tied her to a "segun" tree. Holding a "dao", he uttered that she should marry him otherwise he would kill her. She stated that the accused inflicted fists and blows on her and wanted to do the unwanted act. She tried to wriggle out of him. She raised hue and cry and on hearing her hue and cry, her aunts arrived at the place of occurrence. Then the accused pushed her aside and ran away. She stated that she did not know the accused. On reaching home, she reported the matter to her parents whereafter the case was filed. Her clothes were torn when the accused tried to do the unwanted thing. In her cross-examination, she stated that she was tied up for about half an hour and then she was released by her aunts. A suggestion was made in the course of her cross-examination that her father tutored her to make false allegation against the accused as because her father had dispute with the accused over jhum cultivation and cutting of bamboo.
17. PW 3 is the doctor. As per his deposition, on 21-08-2009 while he was serving as Sub-Divisional Medical and Health Officer, Patharkandi Public Health Centre, PW 2 was produced before him on police requisition. On examining her he gave his report. As per medical report, there were three small abrasions over the skin on the lower right thigh, which were in the process of healing. The abrasions were of the size of 1x1 cm. Though PW 2 complained of pain in her chest, no injury was found. As per the opinion of the doctor, the injuries were more than 48 hours old, superficial and simple in nature and caused by blunt object.
Crim inal Appeal N o.117/ 2012 P age 6 of 14
18. PW 4 is a co-villager. He stated that on the date of occurrence, he and his wife were proceeding towards the land of jhum cultivation with his wife walking ahead of him. The accused came from the opposite direction and from the jungle side. Moving ahead, he saw PW 2 and found her crying. On being asked, PW 2 stated that one person tied her to a tree and by threatening her with a "dao", torn her clothes and wanted to commit the unwanted thing on her. PW 4 stated that in the evening, he met the accused in the bazaar and when he asked him, he confessed his guilt. In his cross-examination, he stated that PW 2 was his cousin sister.
19. Wife of PW 4 deposed as PW 5. She stated that while she and her husband were proceeding to the jhum land, she heard a cry. PW 2 was found crying and her wearing apparels were torn. She told them that one person tied her to a tree by holding a "dao". He tore her clothes to do the unwanted thing. She stated that they did not find the person. In her cross-examination, she stated that PW 2 was her elder sister's daughter.
20. PW 6 was also a co-villager. She stated that she was going to the jhum land when she saw the accused coming out of the jungle holding one "dao" in his hand. Sometime thereafter, PW 2 came out of the jungle crying. She told that one person tied her hands and tore of her clothes. He tried to do unwanted thing with her. In her cross- examination, she stated that PW 2 was her cousin.
21. IO deposed as PW 7. He stated that the date of occurrence was 19-08-2009. Ejahar was received on 21-08-2009 and Crim inal Appeal N o.117/ 2012 P age 7 of 14 he started investigation on 22-08-2009. He stated that in the course of investigation, one churidar, torn pant and kameez were seized. The victim was medically examined and her statement was recorded u/s 164 Cr.P.C. The accused was arrested on 24-08-2009. After he completed investigation, he submitted charge sheet on 30-08-2009.
22. After the evidence of the prosecution witnesses was closed, the accused was examined u/s 313 Cr.P.C. He categorically denied the prosecution charge.
23. On a cumulative assessment of the evidence on record, it would be evident that there were gaping holes in the prosecution case. Additionally, there were material contradictions in the evidence of the witnesses which cast serious doubt on the prosecution case. Coming first to the FIR, a reading thereof would show that there were two persons who had allegedly committed indecent assault on PW 2. There was one unknown person and the accused. The allegation was that it was the unknown person who wanted to do the unwanted thing on PW2. PW 1 in his deposition was also quite ambivalent in this regard. He stated that one unknown person caught hold of his daughter and took her inside the jungle where he attempted to commit rape on her. On hearing her hue and cry, the village people, who were working on the jhum land nearby, went to the place of occurrence. Then he said the following: "Then the person the accused fled away after pushing her". From this statement, it is not discernible as to whether there were two persons, one unidentified person and the accused or whether only one unidentified person was there, who was later on identified as the accused. While PW 1 and PW 2 stated that when she raised hue Crim inal Appeal N o.117/ 2012 P age 8 of 14 and cry, the village people came to the place of occurrence and seeing them, he fled away, however PW 4 stated that while he was on the way to the jhum land with his wife, he saw the accused coming from the opposite direction from the jungle side. Moving ahead, they came across PW 2 and found her crying. Again PW 5 stated that while they were on their way to the jhum land, when they heard a cry, they found PW 2 crying, who narrated before them the incident. This version is again contradicted by PW 6 who stated that while on their way to the jhum land, they saw the accused coming out of the jungle holding one "dao". After sometime, PW 2 came out of the jungle crying. According to PW1, the victim was tied to a tree and the accused ran away when the village people arrived at the place of occurrence. On the other hand, as per version of PW 2, she was tied to a tree for about half an hour and the accused fled away when her aunts arrived at the place of occurrence. The contradictory versions of the prosecution witnesses as noticed above, presents a case which appears to be highly improbable. Moreover, PW 2 was admittedly a minor of about 12-13 years. Her evidence was taken on oath. Learned trial Court did not make the preliminary assessment as to whether PW 2 had reached the maturity level so as to depose in a court of law. Without making this assessment, evidence of PW 2 was recorded. This is a vital flaw in the prosecution case. Further, the seized clothes were not exhibited.
24. Examining the applicability of section 376 read with section 511 IPC, the Hon'ble Supreme Court in the case of Koppula Venkat Rao -Vs- State of AP reported in (2004) 3 SCC 602 held as under :-
Crim inal Appeal N o.117/ 2012 P age 9 of 14 "8.The plea relating to applicability of Section 376 read with Section 511 IPC needs careful consideration. In every crime, there is first, intention to commit, secondly, preparation to commit it, and thirdly, attempt to commit it. If the third stage, that is, attempt is successful, then the crime is complete. If the attempt fails, the crime is not complete, but law punishes the person attempting the act. Section 511 is a general provision dealing with attempts to commit offences not made punishable by other specific sections. It makes punishable all attempts to commit offences punishable with imprisonment and not only those punishable with death. An attempt is made punishable, because every attempt, although it falls short of success, must create alarm, which by itself is an injury, and the moral guilt of the offender is the same as if he had succeeded. Moral guilt must be united to injury in order to justify punishment. As the injury is not as great as if the act had been committed, only half the punishment is awarded.
9. A culprit first intends to commit the offence, then makes preparation for committing it and thereafter attempts to commit the offence. If the attempt succeeds, he has committed the offence; if it fails due to reasons beyond his control, he is said to have attempted to commit the offence. Attempt to commit an offence can be said to begin when the preparations are complete and the culprit commences to do something with the intention of committing the offence and which is a step towards the commission of the offence. The Crim inal Appeal N o.117/ 2012 P age 10 of 14 moment he commences to do an act with the necessary intention, he commences his attempt to commit the offence. The word "attempt" is not itself defined, and must, therefore, be taken in its ordinary meaning. This is exactly what the provisions of Section 511 require. An attempt to commit a crime is to be distinguished from an intention to commit it; and from preparation made for its commission. Mere intention to commit an offence, not followed by any act, cannot constitute an offence. The will is not to be taken for the deed unless there be some external act which shows that progress has been made in the direction of it, or towards maturing and effecting it. Intention is the direction of conduct towards the object chosen upon considering the motives which suggest the choice. Preparation consists in devising or arranging the means or measures necessary for the commission of the offence. It differs widely from attempt which is the direct movement towards the commission after preparations are made. Preparation to commit an offence is punishable only when the preparation is to commit offences under Section 122 (waging war against the Government of India) and Section 399 (preparation to commit dacoity). The dividing line between a mere preparation and an attempt is sometimes thin and has to be decided on the facts of each case. There is a greater degree of determination in attempt as compared with preparation.
10.An attempt to commit an offence is an act, or a series of acts, which leads inevitably to the commission of the Crim inal Appeal N o.117/ 2012 P age 11 of 14 offence, unless something, which the doer of the act neither foresaw nor intended, happens to prevent this. 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 consists in it the intent to commit a crime, falling short of, its actual commission or consummation/completion. It may consequently be defined as that which if not prevented would have resulted in the full consummation of the act attempted. The illustrations given in Section 511 clearly show the legislative intention to make a difference between the cases of a mere preparation and an attempt.
11.In order to find an accused guilt 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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25. Again, in the case of Tarkeshwar Sahu -Vs- State of Bihar (Now Jharkhand) reported in (2006) 8 SCC 560, the Hon'ble Supreme Court held as under :-
"17.A similar case was decided by Mirza and Broomfield, JJ. of the Bombay High Court in Ahmed Asalt Mirkhan. In that case the complainant, a milkmaid, aged 12 or 13 years, who was hawking milk, entered the accused's 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 from crying and placed his private part 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 that the accused was not guilty of attempt to commit rape but of indecent assault. The point of distinction between an offence 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 is just going to have sexual connection with her."
26. Having regard to the materials on record and examining them in the light of the above judicial pronouncements, I am of the considered view that no case for attempt to commit rape has been made out against the appellant. It could well have been a case of indecent assault. But the inconsistencies in the evidence of the prosecution witnesses makes the prosecution case somewhat Crim inal Appeal N o.117/ 2012 P age 13 of 14 improbable. On the basis of the materials on record, it cannot be said with any degree of certainty that it was the appellant alone and no one else who wanted to commit the offence u/s 376 (1) IPC. The charge u/s 376(1)/511 IPC cannot be said to have proved against the petitioner beyond all reasonable doubt.
27. In view of above, impugned conviction and sentence cannot be sustained. Accordingly, the same is set aside and quashed. Appellant is set at liberty. Bail bond stands discharged.
28. Appeal is allowed.
29. Case record be returned back.
JUDGE
aparna
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