The Jharkhand High court recently comprising of a bench of Justice Anubha Rawat Choudhary while dismissing a criminal revision petition dealing with the offence of Rape under Section 376 IPC noted that the attempt to commit an offence begins when the accused commences an act with the necessary intention to execute it. (Mathura Thakur v. The State of Jharkhand)
Facts of the Case
The present criminal revision petition was filed against the Judgment passed by the learned Addl. Sessions Judge-VIII, Dhanbad whereby and where under the conviction and sentence of the petitioner under Section 376/511 of the Indian Penal Code for the offence of Rape passed by the learned trial court was affirmed and the appeal was dismissed.
Contention of the Parties
The counsel for the petitioner submitted that the aspects of Non-Examination of the e Investigating Officer of the case have not been properly considered by the learned courts below.
The learned counsel further submitted that the basic ingredients for the offence of attempt to commit rape are not satisfied in the present case and as such, the offence under Sections 376/511 of the Indian Penal Code is not made out against the petitioner and the present case, at best, may be a case under Section 354 of Indian Penal Code. The learned counsel further submitted that the incident of the present case is of the year 1985 and at that point of time, the maximum punishment for offence under Section 354 of Indian Penal Code was 02 years.
On the other hand, while opposing the prayer the learned A.P.P. appearing on behalf of the Opposite Party-State, submitted that there are consistent findings recorded by the learned courts below and there is no scope for re-appreciation of evidences and coming to a different finding. He further submitted that there is no illegality, perversity or impropriety in the impugned judgments calling for any interference in revisional jurisdiction. The learned counsel also submitted that considering the nature of offence, the petitioner is not entitled to the benefit of the Probation of Offenders Act, 1958 and this criminal revision petition is fit to be dismissed.
Courts Observation & Judgment
The bench took note of the submissions of the victim of the case, wherein she said that on the date of occurrence, she was sleeping on a cot in the verandah alongwith her sister namely, Tunni and one Baishakhi Bouri and at about 10 O’clock night, the petitioner came there calling the name of her father whereupon her mother came out of the house and told him that Sadhujee is not in the house and her mother closed the door and went to sleep. Thereafter, the petitioner slept in the same cot in which they were sleeping. She further deposed that the petitioner untied the pants of Tunni, her (P.W.-3) and Baishakhi and tried to molest her. The petitioner had also undressed his underwear. When her elder sister raised alarm, the petitioner threatened them and when her elder sister started weeping, her mother came outside and then, the petitioner started fleeing away towards his house adjusting his pant. Thereafter, she and her elder sister narrated the entire occurrence to their mother.
The bench taking note of the submissions of the Parties and the deposition of the victim referred to the judgment of the Supreme Court in the case of Aman Kumar and Another Vs. State of Haryana [(2004) 4 SCC 379], wherein the accused was convicted by the trial court under Section 376(2)(g) of the Indian Penal Code. In the said case, it was held in para 8 that in every crime, there is first, intention to commit, secondly, preparation to commit it, thirdly, attempt to commit it. If the third stage, that is, attempt is successful, then the crime is complete. In case the attempt fails, the crime is not complete, but the law punishes the person attempting the act which is punishable under Section 511 of Indian Penal Code. It has been held in para 9 of the said judgment that if a person fails to commit the offence 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 offence. It has also been held that the moment he commences to do an act with the necessary intention, he commences his attempt to commit the offence and mere intention to commit an offence, not followed by any act, cannot constitute an offence.
The bench noted that the present case is required to be examined in the light of the aforesaid law laid down by the Hon’ble Supreme Court considering the various stages i.e. intention, preparation, attempt and ultimate commission of offence. The distinction has also to be kept in mind between indecent assault amounting to outraging the modesty of the victim and attempt to rape. There can be no doubt that attempt to rape is an aggravated form of indecent assault.
It is required to be examined in the present case as to: Whether the intention and preparation of the petitioner was to commit rape upon the victims and whether such intention and preparation translated into an attempt to commit rape considering the conduct of the accused and circumstances of the case.
The bench dismissing the criminal revision petition noted, “In view of the aforesaid discussions and findings and considering the entire facts and circumstances of this case, this Court is of the considered view that the learned courts below have passed well-reasoned judgments considering every aspect of the matter and every argument advanced on behalf of the petitioner. There being no perversity or illegality in the impugned judgments of conviction and sentence, no interference is called for. Considering the nature of offence and the manner it has been committed, any lenient view in the matter of sentence will defeat the ends of justice as substantial justice has been done by the impugned judgments. Accordingly, this criminal revision petition is hereby dismissed.”
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