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IN THE HIGH COURT OF CALCUTTA
Joymalya Bagchi, J.
Netai Das – Appellant
Vs.
The State of West Bengal and Anr. – Respondents
C.R.A. 393 of 2015 with C.R.A.N. 868 of 2016
Decided On : 28-04-2016
RAPE - ATTEMPT TO COMMIT - ESSENTIALS - SECTION 375 IPC - SECTION 354B IPC - OFFENCE OF RAPE - ESSENTIALS - PENETRATION OR INSERTION OR APPLICATION OF MOUTH - SINE QUA NON - OFFENCE OF ATTEMPT TO COMMIT RAPE - ESSENTIALS - INTENTION, PREPARATION AND ATTEMPT - ACT TOWARDS COMMISSION OF OFFENCE - NOT AMOUNT TO ATTEMPT - SURROUNDING CIRCUMSTANCES - RELEVANT - OFFENCE OF OUTRAGING MODESTY - DISTINCTION.
Fact of the Case:
The appellant was convicted by the trial court for offenses under Sections 448, 323, 376, and 511 of the Indian Penal Code for allegedly attempting to rape the victim by entering her house, closing the door, and trying to disrobe her. The victim and her parents testified against the appellant, but the medical report did not show any external injuries on the victim.
Finding of the Court:
The court found that the appellant had not attempted to penetrate the victim, and therefore the act did not amount to an attempt to rape. However, the court held that the appellant's actions constituted the offense of using criminal force with the intention of disrobing the victim, punishable under Section 354B of the Indian Penal Code.
Issues: 1. Whether the appellant's actions constituted an attempt to commit rape under Section 376 of the Indian Penal Code? 2. Whether the appellant's actions constituted the offense of using criminal force with the intention of disrobing the victim under Section 354B of the Indian Penal Code?
Ratio Decidendi: 1. The court relied on the definition of rape under Section 375 of the Indian Penal Code, which requires penetration or insertion or application of mouth to the private or other intimate parts of a woman against her will. The court held that since the appellant had not attempted to penetrate or insert anything or apply his mouth to the private parts of the victim, the act did not amount to an attempt to rape. 2. The court relied on the case of Aman Kumar v. State of Haryana, where it was held that to find an accused guilty of an attempt with intent to commit a rape, the court must be satisfied that the accused intended to gratify his passions upon the person of the victim at all events, notwithstanding any resistance on her part. The court held that the appellant's actions did not show such an intention, as he had not disrobed himself or attempted to penetrate or insert anything into the victim's private parts.
Final Decision: The court modified the conviction of the appellant from Section 376/511 of the Indian Penal Code to Section 354B of the Indian Penal Code and sentenced him to rigorous imprisonment for three years and a fine of Rs. 10,000, in default to suffer rigorous imprisonment for two months more. The sentences under Sections 448 and 323 of the Indian Penal Code remained unaltered.
Joymalya Bagchi, J.
The appeal is directed against the judgment and order dated 28.04.2015 passed by learned Additional Sessions Judge, Nabadwip, Nadia convicting the appellant for commission of offence punishable under Section 448/323/376/511 of the Indian Penal Code and sentencing him to suffer rigorous imprisonment for one year and to pay a fine of RS. 1,000/- in default suffer rigorous imprisonment for one month for the offence punishable under Section 448 of the Indian Penal Code, sentencing him to suffer rigorous imprisonment for one year and to pay a fine of RS. 1,000/- in default to suffer rigorous imprisonment for one month for the offence punishable under Section 323 of the Indian Penal Code and sentencing him to suffer rigorous imprisonment for 7 years and to pay a fine of RS. 5,000/- in default to suffer further rigorous imprisonment for one and half years punishable under Section 376/511 of the Indian Penal Code, all the sentences to run concurrently and 50% of the fine amount, if deposited, shall be paid to the victim as compensation.
2. The prosecution case as alleged against the appellant is to the effect that on 10.06.2014 at about 5 p.m. the victim had gone to the house of Bhajan Das for the purpose of giving tuition to his son Abhay Das. When the victim reached the house of Bhajan, she found that Abhay was not present in the house and his mother, Astomi went out to call her son. The victim was in the house of Bhajan alone and was sitting on the cot as she had come from college and was not feeling well. She sat on the cot holding her head in her hands by bending herself. At that time, the victim heard the closing of the door and found that the appellant had entered the room. The appellant closed the door from inside. Thereafter the appellant jumped on her without giving opportunity to her to get up from the bed. The appellant held her and assaulted her. She somehow managed to come out from his clutches. Thereupon the appellant pushed her from behind and her head struck on the door. Then the appellant caught her and pushed her on the cot and her head struck against the wooden stand used for the mosquito net. He tried to untie her wearing apparel and attempted to commit rape upon her. The victim cried for help. The appellant caught hold her throat and tried to strangulate her. She again called for help and the local people assembled and pushed open the door. She had become senseless. The appellant fled from the place and the victim was taken to the house. She narrated the incident to her mother and was taken to Maheshganj Hospital for treatment. Anita Debnath, mother of the victim lodged written complaint which was treated as F.I.R. Nabadwip P.S. Case No.352 of 2014 dated 11.06.2014 under Section 448/325/376/511 of the Indian Penal Code was registered for investigation. In conclusion of investigation, charge sheet was filed in the instant case. The case being a Sessions triable one was committed to the Court of Sessions and transferred to the court of Additional Sessions Judge, Nabadwip, Nadia for trial and disposal. In course of trial, prosecution examined as many as 10 (ten) witnesses. The defence of the appellant was one of innocence and false implication. In conclusion of trial, the learned trial judge by the impugned judgment and order dated 28.04.2016 convicted and sentenced the appellant, as aforesaid.
3. Ms. Punam Basu, learned Advocate for the appellant submitted that the evidence of P.W.2 is an exaggerated one and is wholly unreliable. Although she alleged that she was hit by the appellant, no external injury was found on her person. The evidence of P.W.s 1 and 3, her parents, also suffer from various contradictions and inconsistencies, the independent witnesses do not support the case and the incident as narrated by the prosecution is patently absurd and interestingly improbable ought to have been disbelieved. She accordingly prayed for acquittal.
4. Mr. Pawan Gupta, learned Advocate for the St
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