Punjab-Haryana High Court
Nirmala Devi vs Tara Chand And Another on 4 February, 2013
Author: Sabina
Bench: Sabina
Crl. Misc. No. M-11891 of 2010 (O&M) -1 -
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH.
Crl. Misc. No. M-11891 of 2010 (O&M)
Date of Decision: 04.2.2013.
Nirmala Devi ........Petitioner
Vs.
Tara Chand and another ......Respondents
CORAM: HON'BLE MRS. JUSTICE SABINA
Present: Mr. N.S.Shekhawat, Advocate
for the petitioner.
Mr. Vaneet Kumar, Advocate
for respondent No.1.
Mr. Satyavir Singh Yadav, Addl. A.G., Haryana.
.....
SABINA, J.
Petitioner has filed this petition under Section 482 of the Code of Criminal Procedure, 1973 challenging the orders dated 14.11.2008 (Annexure P-2) and 5.2.2010 (Annexure P-4).
Petitioner has lodged the FIR No. 139 dated 15.8.2006 under Section 376, 511, 323, 34 of the Indian Penal Code ('IPC' for short), registered at Police Station Bawani Khera, District Bhiwani (Annexure P-1) against respondent No.1. The case of the complainant, in brief, is that on 15.8.2006, at about 11.00 A.M., she had gone along with her husband Ramesh Kumar and sister-in-law Saroj to the clinic of respondent No.1. Respondent No.1 made the petitioner to lie in her cabin with her face downwards. Complainant was suffering from backache. Respondent No.1 started massaging her back and lowered her salwar upto her feet. Then respondent No.1 asked her to lie Crl. Misc. No. M-11891 of 2010 (O&M) -2 - down with her face upwards. When the complainant turned in that posture, she saw that respondent no.1 had lowered down his pant and forcibly laid on her. Petitioner gave him a kick blow and raised alarm. Husband and sister-in-law of the petitioner came inside. Due to a scuffle between them, respondent No.1 fled away from the spot. The compounder of respondent No.1 and another person started beating the husband of the petitioner. After investigation of the case, challan was presented against respondent No.1. The Trial Court vide impugned order dated 14.11.2008 (Annexure P-2) held that prima facie offence under Section 354 IPC was made out against respondent No.1 and offence under Section 376 read with Section 511 IPC was not made out. Hence, charge was ordered to be framed against respondent No.1 under Section 354 IPC. The Court of Revision, vide order dated 5.2.2010 (Annexure P-4), also dismissed the revision petition filed by the petitioner against the order passed by the Trial Court dated 14.11.2008. Hence, the present petition by the petitioner.
Learned counsel for the petitioner has submitted that a perusal of the FIR reveals that offence under Section 376 read with Section 511 IPC was made out in the present case. Respondent No.1 had attempted to commit rape on the person of the petitioner. In support of his argument, learned counsel has placed reliance on 'State of Maharashtra versus Mohd. Yakub and others, AIR 1980, Supreme Court, 1111' wherein it was held as under:-
"Well then, what is an "attempt"? Kenny in his 'Outlines of Criminal Law' defined "attempt" to commit a crime as Crl. Misc. No. M-11891 of 2010 (O&M) -3 - 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 divide 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 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 the 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. As pointed out in Abhayanand Mishra v. State of Bihar (1) (1962) 2 SCR 241 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 Crl. Misc. No. M-11891 of 2010 (O&M) -4 - 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".
Learned counsel for respondent No.1, on the other hand, has submitted that respondent No.1 has been falsely involved in this case due to enmity.
In the present case, a perusal of the FIR reveals that respondent No.1 had allegedly lowered the salwar of the petitioner and after lowering his own pant, laid on the petitioner. This showed that respondent No.1 had done something more towards the commission of crime by lying on the petitioner after lowering his pant. The act committed by respondent No. 1 was, thus, reasonably proximate to the consummation of the crime. The said act of respondent No.1 cannot be said to be falling within the mischief of Section 354 IPC.
Section 354 IPC reads as under:-
"Assault or criminal force to woman with intent to outrage her modesty.-- Whoever assaults or uses criminal force to any woman, intending to outrage or knowing it to be likely that he will there by outrage her modesty, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both. "
Thus, it is clear that from a reading of the above provision that respondent No.1 had not merely outraged the modesty of the petitioner but had gone a step further and had rather made an attempt to have sexual intercourse with her Crl. Misc. No. M-11891 of 2010 (O&M) -5 - against her will. In these circumstances, the Courts below erred in holding that challan under Section 354 IPC was only liable to be framed against respondent No.1. Rather prima facie it was made out that respondent No.1 was guilty of commission of offence punishable under Section 376 read with Section 511 IPC.
Accordingly, this petition is allowed. The impugned orders 14.11.2008 (Annexure P-2) and 5.2.2010 (Annexure P-4) are set aside. The Magistrate is directed to proceed further, in accordance with law, in view of the observations made above.
(SABINA) JUDGE February 04, 2013 Gurpreet