The distinction between 'attempt' and 'preparation' in criminal law leads to the conclusion that actions lacking overt intent to complete the crime cannot sustain a conviction for attempted rape, but may suffice for outraging modesty.

JUDGMENT :

RAMESH CHAND MALVIYA, J.

Heard Mr. Syed Arshad Alam, Mr. Kamran Fazal and Ms. Anjum Perveen learned counsels for the appellant, and Mr. S. N. Prasad, learned APP for the State.

2. The present appeal has been being filed under Section 374 (2) of the Code of Criminal Procedure, 1973 (hereinafter referred to as ‘Cr.P.C.’) challenging the judgment of conviction and order dated 16.01.2008 passed by Additional Districts and Sessions Judge, Fast Tract Court No. 4, Darbhanga in Sessions Trial No. 218 of 2003 arising out of Singhwara Police Station Case no. 18 of 2002 by which the appellant has been found guilty of the offence punishable under Sections 376 /511 of the INDIAN PENAL CODE (hereinafter referred to as ‘IPC’ and have been sentenced to undergo rigorous imprisonment for ten years.

3. The brief facts of the prosecution story as narrated by the informant, Nasir Shah is that on the night of 21.03.2002 at around 8 PM, his daughter aged 14 years, had gone out of the house to defecate. At that time the accused/appellant Md. Zafre Imam @ Mangala son of Kayum Shah of his village was coming in an inebriated state after drinking toddy and on seeing his minor daughter alone, he caught her and tried to rape her forcefully. When his daughter started shouting, the informant’s younger son Hashim reached there and then the appellant left her and ran away. After that, his daughter came home and told about the incident to the villagers.

4. On the basis of the fardbeyan given by Nasir Shah before the officer in-charge of Singhwara police station an F.I.R was lodged vide Singhwara P.S. case no. 18 of 2002 under Sections 376 /511 of the IPC. The police submitted the charge- sheet on 31.07.2002 under Sections 376 /511 of the IPC. On the basis of charge-sheet, cognizance was taken by the C.J.M. and the case was committed to District and Sessions Judge, Darbhanga. The trial case was thereafter transferred to the Addl. District and sessions Judge FTC-IV Darbhanga for recording the evidences in the case and passing of the final judgment.

5. During the trial a total of 9 witnesses were examined on behalf of the prosecution namely:

6. On the other hand, 6 witnesses were examined on behalf of the defence as well namely namely:

7. PW-1 Hamidul Shah stated in his examination-in-chief that the incident occurred around three years ago. On the date of incident at around 8 PM, he was at his home when he heard the voice of PW-6 (victim) shouting for help. He stated that when he reached the place of occurrence he saw that PW-6 was lying on the weed and that the accused/appellant was on top of her. He further stated that her salwar was open and that the accused/appellant was attempting to rape her and the victim was crying. He further stated that there were a number of people at the place of occurrence including Noor Alam, Mohammad Qasim Shah, Nasir Shah. He further stated that by the time all the people reached there, the accused/appellant fled away.

8. PW-2 Noor Alam stated in his examination-in-chief that the incident occurred three years ago at around 8 PM in the night. He stated that he was at his home when he heard noises of shouting and when he went out he saw that the accused/appellant was running away and that PW-6, the victim was crying. He stated when he asked the victim, she stated that the accused/appellant forcefully threw her on the ground and tried to open the string of her salwar.

8.i. In his cross-examination he stated that he did not try to stop the accused/appellant when he was running away because he did not know the act done by the accused/appellant until he asked the victim. He further stated that