Shriram Tirkey vs State Of Chhattisgarh

The present Appeal is directed against the impugned judgment dated 27.09.2007 passed by the 5th Additional Sessions Judge, Durg, in ST No.84/2007, whereby the appellant has been convicted for commission of offence under Sections 342 and 376/511 of the IPC and sentenced to undergo RI for one year and to undergo RI for 5 years & to pay a fine of Rs.1,000/-, in default of payment of fine to further undergo RI for 6 months respectively.

Case of the prosecution is that on 20.1.2007, Ramayan programme was going on in front of the house of the prosecutrix. The prosecutrix and the appellant were watching the said programme. Spotting the prosecutrix alone, the appellant took her to his home and confined her at his home, and thereafter committed sexual intercourse with her. When the complainant did not find the prosecutrix in front of her home, she made enquiries from the persons watching the Ramayan programme. One person informed her that the appellant has taken the prosecutrix to his home. Then the complainant, Parvati Sahu, Ranu Tiwari and Shahida Begum went to the house of the appellant. The door of the house was closed from inside. They called the prosecutrix from outside, but no response was given. When they saw through the window of the house, they found that the prosecutrix was lying on bed without clothes and the appellant was committing rape with her. On raising hue and cry, the appellant opened the door. The complainant got her dressed and took her out of the house of the appellant. Some persons brought the appellant to the place where Ramayan programme was going on. When the complainant asked the prosecutrix, she replied that the appellant has committed sexual intercourse with her.

FIR (Ex.-P/3) was lodged by the complainant at Police Station Durg, on the basis of which Crime No.55/2007 for offence under Sections 376 and 342 of the IPC was registered against the appellant. The prosecutrix was medically examined. During investigation, underwear of the prosecutrix and the appellant were seized. Spot map was also prepared and statements of witnesses were recorded. Charge sheet was filed against the appellant before the Chief Judicial Magistrate, Durg on 2.2.2007. Learned Judicial Magistrate 1st Class committed the matter to the Sessions Court, Durg. Learned Sessions Court registered the Sessions Case No.84/2007. When the charges under Sections 342 & 376 of the IPC was read over to the appellant, he denied the same and stated that he is innocent and the appellant did not produce any defence witness.

In order to bring home the charge, the prosecution has examined as many as many 11 witnesses. Statement of the appellant was recorded under Section 313 of the CrPC in which the appellant denied the allegations levelled against him and pleaded innocence and false implication. After hearing learned counsel for the parties and on the basis of material available on record, learned trial Court convicted and sentenced the appellant as mentioned above.

Assailing the impugned judgment, learned counsel for the appellant would submit that there is absolutely lack of evidence to constitute the offence of attempt to commit rape. He would further submit that eyewitnesses and material witnesses namely, (PW-4) sister of the prosecutrix, (PW-10) Sakuran Bi and (PW-11) Parvati Sahu have turned hostile, therefore, the impugned judgment deserves to be set aside.

On the other hand, learned State Counsel would support the impugned judgment on submission that the appellant having taken several steps in furtherance of execution of his plan to commit rape with the prosecutrix, it is a clear case of attempt to commit rape and the impugned judgment does not call for any interference.

In the matter of Murli Dewangan Vs. State of Chhattisgarh (Cr.A No.839/2005, decided on 9.2.2016), this Court in the similar circumstances, dealt with the issue as to when the case would fall within the definition to commit crime or to say attempt to commit rape. In the said matter, judgment in the matter of Koppula Venkat Rao Vs. State of AP {(2004) 3 SCC 602} was relied upon. In the said case, it was materially observed in paras 8 to 11 which reads thus:-

“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.

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 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.

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.

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.”

In Attorney General’s Reference (No.1 of 1992) {(1993) 2 All ER 190}, Lord Taylor of Gosforth CJ, while presiding over the Court of Appeal, Criminal Revision, held thus:-

“In order to raise a prima facie case of attempted rape under s I (I)a of the Criminal Attempts Act 1981 it is not necessary for the prosecution to prove that the defendant had with the requisite intent necessarily gone as far as to attempt physical penetration of the victim's vagina. If there is evidence from which the intent can be inferred and there are proved acts which a jury could properly regard as being more than merely preparatory to the commission of rape and as showing that the defendant had embarked on committing the offence that is sufficient to raise a prima facie case of attempted rape.”

In the instant case, the prosecutrix (PW-3) is a mentally challenged, feeble minded, unmarried girl aged about 20 years and the appellant was aged about 40 years. (PW-5), mother of the prosecutrix, has stated that on the date of the incident i.e. 20.1.2007, in the evening at about 4.45 pm, Ramayan programme was being organized in front of her house and the prosecutrix was also present there to watch the said programme. Thereafter she was missing from the place. Earlier she had gone for search but she could not trace the prosecutrix and after some time, sister of the prosecutrix (PW-4), her land lady Parvati (PW-11), one Shahida Begum (not examined), (PW-6) brought the prosecutrix from the house of the appellant.

(PW-4), elder sister of the prosecutrix has clearly stated that the prosecutrix is a mentally weak and from the place where Ramayan programme was being organized, her sister was missing. So she had enquired from the persons and one person has informed her that one person has taken her sister towards the Shiv Mandir Lane. Then, this witness along with Shahida Begum (not examined), Parvati (PW-11) and Ranu Tiwari (not examined) had gone in search of the prosecutrix and they found that the door of the house of the accused/appellant was closed from inside and slippers of the prosecutrix were lying in front of his house. PW-4 has further deposed that from the crack/hole of the window, she had seen that her sister was in a naked condition. Then they asked the accused/appellant to open the door. After some time, when the appellant opened the door, PW-4 entered the room and helped the prosecutrix to wear the clothes, as she was unable to dress herself.

(PW-11) Parvati Sahu has also corroborated the evidence of this witness that the prosecutrix was found inside the house of the appellant.

(PW-10) Sakuran Bi has deposed that PW-4 and some other women brought the accused/appellant at the place where Ramayan programme was being organized and thereafter (PW-4), sister of the prosecutrix, informed about the wrong committed by the appellant. Thereafter the police was called and the FIR was lodged.

13.From the aforesaid evidence, it is clear that the prosecutrix is a feeble minded girl and when the prosecutrix was watching the Ramayan programme in front of her house, accused/appellant allured her and had taken her inside his house and locked the door. Sister of the prosecutrix and other people of the locality caught red-handed the appellant. Both were found in a closed room.

In the cross-examination of PW-4, it was suggested by the defence that the prosecutrix might have proceeded on her own and this witness has categorically deposed that the prosecutrix has stated that the appellant has allured her by offering Tea and snacks and took her to his house.

It is admitted fact that the accused/appellant had taken disadvantage of the mental illness of the prosecutrix, who was not in a position to understand the good and bad aspect of the sexual assault.

16.In the matter of Chamanlal Vs. State of HP {2020 SCC Online SC 988}, the Hon’ble Supreme Court refused to interfere with the conviction of a man for sexually assaulting the mentally deficient woman and materially observed at para-21 which reads thus:-

“21…………..person suffering from mental disorder or mental sickness deserves special care, love and affection. They are not to be exploited. In the present case the accused has exploited the victim by taking disadvantage of her mental sickness/illness…….”

In the case at hand, earlier PW-4 has lodged the FIR (Ex.-P/3) on the date of the incident itself about the rape with the prosecutrix. The Prosecutrix was also medically examined by Dr. Mamta Pandey (PW-7), who did not find any injury and has not given any definite opinion about recent sexual intercourse in her report (Ex.-P/8). The prosecutrix (PW-3) has also not stated about the rape. PW-4 has also categorically denied that she has lodged the FIR about the incident of rape. Therefore, the trial Court has acquitted the accused/appellant of the charge under Section 376 of the IPC, however, convicted him for the offence of attempting to commit rape as also for wrongful confinement.

In the entire evidence, no material is available on record to show that the accused/appellant has advanced in such a stage that it got converted into an attempt but falling short of actual consummation. The evidence would clearly demonstrate that the accused/appellant wanted to commit the offence and was initiating preparation, as he had taken the prosecutrix, a feeble minded girl’ in a closed room, but the same would not constitute the offence of attempt to commit rape. However, considering the evidence available on record, the offence would fall definitely under Section 354 of the IPC and no case of attempt to commit rape is made out.

The accused/appellant remained in custody from 20.1.2007 to 19.11.2007 and thereafter he was released on bail on 19.11.2007 after allowing the application for suspension of sentence and grant of bail. The incident has taken place on 20.1.2007 and prior to Amendment Act, No.13/2013, the offence under Section 354 of the IPC was punishable with imprisonment of either description for a term which may extend to 2 years or with fine or with both. Considering the period of detention during trial and appeal, as the appellant is presently on bail, this Court deems it appropriate to sentence the appellant under Section 354 and 342 of the IPC to the period already undergone by him.

For the foregoing, conviction and sentence imposed on the appellant under Section 376 read with Section 511 of the IPC are set aside and he is acquitted of the said charge. Instead thereof, the appellant is convicted under Section 354 of the IPC and his conviction under Section 342 of the IPC is affirmed, however, he is sentenced to the period already undergone by him under both the Sections. The appellant is on bail. Surety and personal bonds earlier furnished at the time of suspension of sentence shall remain operative for a period of 6 months in view of the provisions of Section 437-A of the Cr.P.C. The appellant shall appear before the higher Court as and when directed.

Accordingly, the Appeal is allowed in part.