Pradeep Kumar Mehta @ Pradeep Prasad Mehta vs State Of Jharkhand

Heard Mr. D.K. Prasad, learned counsel appearing for the appellant and Mrs. Laxmi Murmu, learned A.P.P. appearing for the State.

This appeal is directed against the judgment of conviction and order of sentence dated 04.05.2006 passed by Sri Amitabh Kumar, Sessions Judge,

Hazaribag in Sessions Trial No. 300 of 1999, whereby and whereunder the appellant has been convicted for the offence under Sections 376 and 511

of the Indian Penal Code and sentenced to undergo rigorous imprisonment for five (05) years with a fine of Rs.5000/-. In default of payment of fine,

further rigorous imprisonment for five months.

The FIR has been lodged through the fardbeyan of the informant namely Munni Devi @ Muniya Devi (P.W.-4) wife of Dilchand Yadav (P.W.-1)

on 01.05.1998 which has been registered as Hazaribag (Sadar) Muffasil P.S. Case No.179 of 1998 under Sections 376 and 511 of the Indian Penal

Code.

As per the FIR on 26.04.1998 in the morning at about 6.00 a.m. the victim went to Kanhari Forest for collecting Mahua. The appellant who is a co-

villager has suddenly caught hold her and put her down on the ground and torn her blouse and separated the cloths from her body. On raising alarm

one of the co-villager namely Ashish Mehta (P.W.3) came to rescue her and on seeing Ashish Mehta coming towards the victim, the appellant fled

away by threatening her not to disclose the incident to anybody. Thereafter she along with Ashish Mehta came to village and narrated the incident to

other co-villagers. Panchayti was called but the appellant had not turned up and as such nothing could be done and she had been advised to lodge FIR.

Accordingly, FIR was lodged on 01.05.1998 after five days of the incident.

After conclusion of investigation, the appellant had been charge-sheeted under Sections 376 and 511 of the Indian Penal Code to which cognizance

has been taken and the case has been committed to the court of sessions. The charge has been framed to which appellant pleaded not guilty and

claimed to be tried.

To substantiate the prosecution story, altogether five witnesses have been examined.

P.W.1-Dilchand Yadav is the husband of the victim. He has been informed that his wife is weeping, then he came along with his father (P.W.2) and

enquired on which she disclosed the indecent behavior of the appellant and he has shown him the torn blouse.

P.W.2-Dharam Gope father-in-law of the victim, has deposed on the same line. P.W.-1 and P.W.-2 are witness of the torn blouse and heard the story

narrated by the victim.

P.W.3-Ashish Kumar @ Ashish Mehta is the claimed eye witness and admitted that he came there for rescuing her on raising alarm by the victim.

He has deposed that he was collecting Mahua on Kanhari Rock near Chhotka Pool at about 6.00 a.m. and he heard alarm raised by the victim. On

hearing alarm he rushed there and saw Pradip Mehta sitting over her. Munni Devi was weeping. On seeing me the appellant fled away from there

after threating her not to disclose about the incident. The Panchayati was held but nothing could be happened due to non-appearance of the appellant.

In his cross-examination, he has deposed that Munni Devi is sister-in-law in village relation and he is a next door neighbour. At the time of occurrence,

he was 8th class student and he has denied the suggestion of having illicit relationship with the victim.

P.W.4-Munni Devi @ Muniya Devi is the victim and the informant and she has disclosed the narratives as written in the FIR. She has also been

suggested of having illicit relationship with P.W.3 which has been denied by her.

P.W.5-Raj Kumar Yadav is the investigating officer and has investigated the case. In his cross-examination, he has deposed that he has not examined

the body of the victim and he has also not seized the torn blouse.

The argument has been advanced by the learned counsel for the appellant that there is a discrepancy in the statement of P.W.3 regarding the

posture of the appellant. Further non-seizure of torn blouse has caused prejudice to the appellant and further defense has been taken that there is illicit

relationship between P.W.3 and P.W.4 which has been witnessed by the appellant and due to this, to hide their illicit relationship, the appellant has

falsely been implicated in the present case.

Alternative argument has been advanced that even the prosecution story is believed even then it is not an offence under Sections 376 read with 511

of the Indian Penal Code. For this purpose, counsel for the appellant has relied upon Para-14 of the judgment of Hon’ble Apex Court reported in

[2006 (3) Eastern Indian Criminal Cases 20 (SC)] in the case of Guddu @ Santosh Vs. State of Madhya Pradesh. The relevant para of the said

judgment is quoted hereinbelow:-

“14. It is not a case where merely a preparation had been undergone by the appellant as contended by the learned counsel. Evidently,

the appellant made an attempt to criminally assault victim. In fact, from the nature of the medical evidence an inference could also have

been drawn by the High Court that there had been penetration. The High Court failed to notice that even slight penetration was sufficient to

constitute an offence of rape. The redness of the hymen would not have been possible but for penetration to some extent. In Kappula Venkat

Rao (Supra), this Court categorically made a distinction between the preparation for commission of an offence and attempt to commit the

same, in the following terms:

“Attempt to commit an offence can be said to begin when the preparations are complete and the culprit commence 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. 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 omission. 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 the some external acts 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 measure 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 offence 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.â€​ Emphasis supplied

Further counsel for the appellant has relied upon Paras-24 to 27 of the judgment of Patna High Court reported in [2001 (3) Eastern Criminal Cases

115 (Pat)] in the case of Devendra Tiwary Vs. The State of Bihar. The relevant paras of the said judgment are quoted hereinbelow:-

“24. In the case of Bankey (supra), it was held that intruding into the privacy of a lady and making indecent gestures and removing her

clothes could not constitute an offence punishable under Section 376/511 of the Code and the accused was held guilty only under Section

509 of the Code.

In the case of Hari Mohapatra (supra), the allegation was that the accused entered into the room, closed the door and molested the

victim by squeezing her breast and tried to open her pant. It was held that such an act was relatable to the stage of preparation alone and

did not fall within the expression attempt to commit rape.

In the case of Kandarpa Thakuria (supra), it was held that there might be intention or expression but, every indecent assault upon a

woman did not amount to attempt to commit rape unless determination of an accused to gratify his passion at all events and in spite of

resistance is established.

In view of the ratio decidendi of the cases, referred to above, it is to be held that the acts of the appellant in entering into the room of

Karuna Kumari, putting his fingers on her persons and untying the Dori of her pajama can at best be said to have amounted to expression

of intention and preparation but they can by no stretch of imagination, be said to have amounted to attempt to commit rape. However, the

appellant must be said to have rendered himself liable both under Sections 354 and 448 of the Code under which the case was initially

registered and as such his conviction under Section 376/511 of the Code is required to be altered to conviction under Section 354 of the

Code.â€​

On the strength of above judgments, it has been argued that there is difference between the attempt and preparation. The case of the appellant

has not crossed the stage of preparation as the appellant has only torn her blouse and the entire action constitute only preparation and not attempt.

Per contra, learned APP has supported the judgment of conviction and argument has been advanced that all the allegation has been sufficiently

evidenced by the victim and gets corroboration by P.W.3. The incident has been immediately narrated to P.W.1 and P.W.2 who have deposed in the

Court. P.W.1 and P.W.2 are the witnesses of the torn blouse. Thus, there is a sufficient evidence against the appellant for the charged Sections. It

has further been argued that the appellant has crossed the threshold of preparation as victim has been put down to earth and forcefully clothes has

been removed which has resulted in the tearing of blouse.

Heard counsel for the parties. It appears that the appellant has been charged under Section 376 read with Section 511 of the Indian Penal Code.

For the purpose of present case the distinction between preparation and attempt and commission of crime has to be taken care. There is thin line

difference between preparation and attempt. All overt act are not attempt. Attempt means that the appellant has taken all possible steps for

commission of the crime, but has failed due to the circumstances beyond his control.

From mere perusal of Sections 354 and 376 of the Indian Penal Code also suggest that the sexual offence can be of two level. One is outraging

the modesty and other is sexual assault with penetration. In the judgment cited by the counsel for the appellant (supra), in similar circumstances, it has

been held that it will be offence under Section 354 of the Indian Penal Code and not under Sections 376 read with Section 511 of the Indian Penal

Code.

Considering the entire evidence, material available on record, the conviction of the appellant under Section 376 read with Section 511 of the Indian

Penal Code is converted into Section 354 of the Indian Penal Code.

The sentencing as prescribed under Section 354 of the Indian Penal Code at the relevant time i.e. in the year 1998 was up to two years.

Considering the fact that the offence is of the year 1998. At the time of occurrence the age of the appellant was 35 years and the trial has been

concluded in the year 2006. The appeal is being heard in the year 2020 and now the age of the appellant is around 60 years. The appellant has

remained in custody for pre-conviction period from 16.05.1998 to 13.08.1998 and after conviction from 04.05.2006 to 19.05.2006 i.e. altogether 31/2

months. The appellant is sentenced for three and half months i.e. the period already undergone. The fine amount of Rs.5,000/-is enhanced to

Rs.10,000/-. The appellant is directed to deposit the fine amount, minus amount already deposited, within two months from today.

Since the appellant is already on bail, he is discharged from the liability of his bail bond.

With above modification, the present appeal stands disposed of.