Gauhati High Court
Md. Mubidur Rahman vs The State Of Assam on 24 May, 2022
Author: Parthivjyoti Saikia
Bench: Parthivjyoti Saikia
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GAHC010108202011
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Crl.A./174/2011
MD. MUBIDUR RAHMAN
S/O MD. MOTIUR ROHMAN, R/O KAKOJAN BONGAON TINIALI, P.S. TEOK,
DIST. JORHAT, ASSAM.
VERSUS
THE STATE OF ASSAM,
2:SAFIUR RAHMAN
SON OF LATE SAMIR ALI
RESIDENT OF VILLAGE SONAPUR P.O. MUGDI P.S. MUKALMUA DIST.
NALBARI
ASSA
Advocate for the Petitioner : MR.SK MUKTAR
Advocate for the Respondent :
BEFORE HONOURABLE MR. JUSTICE PARTHIVJYOTI SAIKIA JUDGMENT AND ORDER
24. 05.2022 Heard Mrs. M. Bujorbaruah, learned counsel representing the appellant as well as Mr. P. Borthakur, learned Additional Public Prosecutor, Assam.
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2. This is an appeal under Section 374 read with Section 382 of the Code of Criminal Procedure against the judgment and order dated 25.08.2011 passed by the learned Sessions Judge, Jorhat in Sessions Case No. 71 (JJ)/2010, whereby the appellant was convicted under Sections 448 and 376 read with Section 511 of the Indian Penal Code.
3. The factual matrix giving rise to the case is like this:- In the intervening night between 05.08.2010 and 06.08.2010 at about 12 midnight, the prosecutrix went to the toilet which is situated outside the house. At that time, the toilet was locked from inside. When the lady was standing in front of the toilet, suddenly the appellant came out of the toile and pounced upon her. They had a scuffle. The woman says that the appellant wanted to rape her. When she screamed for help, her husband, her landlord, his wife and other persons arrived at the place of occurrence. On seeing them, the appellant left the place.
4. In order to prove the offences, the prosecution side examined six witnesses including the Police Investigating Officer. The defence plea was total denial and no evidence was adduced by the appellant.
5. The first witness is the husband of the prosecutrix. He has stated that he knew the appellant since long because he also hails from the same village. The husband has stated that when he heard the screams of his wife he immediately arrived at the place of occurrence. He saw that the appellant was holding his wife from behind. In the meantime, the landlord Rekimuddin and some other persons were arrived. According to the husband, on seeing him and other persons, the appellant fled.
6. In his cross-examination, the husband has stated that prior to the incident, he was a tenant under the appellant. The husband had admitted that while he was a tenant under the appellant, the later took him to Dibrugarh for treatment of his eyes. The husband has further stated that the appellant had torn apart the wearing cloths of his wife but he never handed over those torn clothes to police.
7. The prosecutrix has supported the prosecution story in her examination-in-chief. She proved the FIR as Ext. 1 and her signature thereon as Ext. 1(1).
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8. During cross examination, the prosecutrix has stated that the toilet and the urinal are common for other tenants also. She stated that when the appellant came out of the toilet, the appellant caught hold of her by her hand and a result of that she fell down on the ground. Like her husband, she had also admitted that earlier they were tenants under the appellant. She however denied the fact that the appellant had taken her husband to Dibrugarh for eye treatment.
9. The third witness is Md. Rekib Ali. He is the landlord of the prosecutrix. He knew the appellant since his childhood. He has stated in his evidence that when he heard the screams of the prosecutrix, he and his wife Mamoni also came to the place of occurrence. He has stated that he saw a scuffle between the appellant and the husband of the prosecutrix. According to Rekib Ali, the appellant left the place immediately.
10. Rekib Ali has stated in his cross-examination that he did not have any knowledge as to for what type of quarrel with the appellant, the prosecutrix and her husband had left his tenanted premises.
11. The fourth witness is Mamoni Begum, the wife of the witness Rekib Ali. She has stated in her evidence that when she arrived at the place of occurrence, she noticed a scuffle between her husband and the appellant. On seeing that incident, she called the neighbors. According to Mamoni Begum, she also noticed the appellant leaving the said place. She has quoted the prosecutrix as saying to her that when she went to the urinal that night, she got scared on seeing the appellant there and, therefore, she screamed.
12. The fifth witness is Naju Ahmed. This witness denied having any knowledge about the occurrence and therefore he declared as hostile.
13. The sixth prosecution witness is the I.O. and he spoke about the investigation.
14. I have carefully gone through the evidence. It is now clear that except the prosecutrix herself, other witnesses never saw anything about the occurrence. Even the husband who claimed to have arrived at the place of occurrence after hearing the screams of his wife, he could not see what the appellant had done to his wife.
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15. Now, the question arises whether the appellant actually attempted to commit rape upon the prosecutrix.
16. In Abhayanand Mishra v. State or Bihar (AIR 1961 SC 1698), the Hon,ble Supreme Court has dealt with the subject of attempt to commit an offence. The factual matrix of Abhayanand does not relate to attempt to commit rape but relates to an attempt of the accused to get admitted in an University on false representation. This judgment has deliberated upon the term "attempt" and therefore it is relevant in the case in hand too. The Hon,ble Supreme Court has held that:--
"24. We may summarise our views about the construction of Section 511 IPC, thus:
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."
17. In Koppula Venkat Rao vs State Of Andhra Pradesh (AIR 2004 SC 1874), the Hon,ble Supreme Court has deliberated upon the issue of attempt to commit an offence of rape. The facts of the case may be stated ---
On the day of occurrence the victim along with her friend and two others started by walk from their village to go to a nearby place for witnessing a movie. They reached cross-roads of the village where the accused along with his friends who were going to Borrampalem on their bicycles met them and gave lift to the victim girl and her friends and all of them witnessed the picture at a movie hall. At the time of return accused nourished an idea of quenching his lust by committing sexual intercourse with the victim, invited her to board his bicycle and the victim girl agreed to accompany him and sat on his bicycle and the accused rode the bicycle at high speed and reached near a cattle shed, stopped the bicycle dragged the victim by using criminal force into the cattle shed took out her sari, and got on top of her before actual intercourse ejaculated. The accused left the victim on hearing some sound and went away along with his bicycle. Thereafter, the victim girl came on to the road. The parents of the victim girl took her to the village. The father of the victim girl approached the village elders on the same night who promised to summon the accused on the next day. But the accused did not turn up till the evening. Two days latter when the victim girl along with her parents were on the way to Police Station the S.I. of police met them and asked them to go to the Government Hospital, and there he recorded the statement of the victim Page No.# 5/8 girl and on the basis of statement a crime was registered and investigation was started. After investigation, charge sheet was filed.
18. Under the aforesaid factual matrix, the Hon'ble Supreme Court has held that the accused indeed attempted to commit rape. The Hon,ble Supreme Court has discussed the law in this manner --
"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 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 Page No.# 6/8 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 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 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.
12. The sine qua non of the offence of rape is penetration, and not ejaculation. Ejaculation without penetration constitutes an attempt to commit rape and not actual rape. Definition of "rape" as contained in Section 375 IPC refers to "sexual intercourse" and the Explanation appended to the section provides that penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape. Intercourse means sexual connection. In the instant case that connection has not been established. Courts below were not correct in their view."
19. Reverting to the case in hand, the elements that constitute attempt to rape, must be an overt act and there must be an intention to rape. Here at this stage, the most pertinent question that arises is as to what constitutes an "attempt". There is no doubt that it is a mixed question of law and fact depending largely on the circumstances of the particular case.
20. "Attempt" defines a precise and exact definition. Broadly speaking all Page No.# 7/8 crimes, which consist of the commission of affirmative acts, are preceded by some covert or overt conduct which may be divided into three stages.
21. The first stage exists when the culprit first entertains the idea or intention to commit an offence. In the second stage, he makes preparations to commit it. The third stage is reached when the culprit 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 offence. It is sufficient if such act or acts were deliberately done, and manifest a clear intention to commit the offence aimed, being reasonably proximate to the consummation of the offence.
22. In order to constitute "an attempt", first, there must be an intention to commit a particular offence; second, some act must have been done which would necessarily have to be done towards the commission of the offence and third, such act must be "proximate" to the intended result. The measure of proximity is not in relation to time and action but in relation to intention. In other words, the act must reveal with reasonable certainty, in conjunction with other facts and circumstances and not necessarily in isolation, an intention, as distinguished from a mere desire or object, to commit the particular offence, though the act by itself may be merely suggestive or indicative of such intention, but that it must be, that is, it must be indicative or suggestive of the intention.
23. Needless to say that in the case in hand, except the oral evidence of the victim, there is no evidence at all to prove the fact of attempt to commit rape. In the instant case, the prosecution story put forward by the prosecutrix has not been supported by any of the witnesses. I have sufficient reasons to hold that the evidence of the prosecutrix failed to inspire confidence under the given circumstances.
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24. Thus, I hereby hold that the occurrence, where the prosecutrix was attempted to be raped, never took place.
25. Under the aforesaid premised reason, the appeal is allowed. The impugned judgment and order dated 25.08.2011 passed by the learned Sessions Judge, Jorhat in Sessions Case No. 71 (JJ)/2010 is set aside. The appellant Mobidur Rahman is acquitted from this case.
26. Send back the LCR.
JUDGE Comparing Assistant