Judgment:
ORDER
A. Pasayat, J.
1. Petitioners call in question the conviction and sentence Under Sections 366/376/511 of the Indian Penal Code, 1860 (in short 'IPC') as awarded by the learned Assistant Sessions Judge, Bargarh and upheld in appeal by the learned Additional Sessions Judge, Bargarh. The petitioners were sentenced to undergo rigorous imprisonment for five years and to pay a fine of Rs. 200/-, in default to undergo R.I. for one month more for the offence Under Section 366, IPC and rigorous imprisonment for three years and to pay a fine of Rs. 200/-, in default to undergo R.I. for one month more for the offence Under Section 376/511, IPC. In appeal the conviction and sentence Under Section 366, IPC were set aside; but the conviction and sentence Under Section 376/511, IPC were confirmed.
2. The prosecution case, bereft of unnecessary details, is that on 4-11-1984 Santosini, the victim lady had gone to the fields to pluck green leaves. Thereafter she went to a nearby canal to take her bath and when she was about to come after finishing her bath, the petitioners caught hold of her from behind and dragged her along the canal up to the thrashing floor of one Nali Kheti. She was shouting for help. The petitioners made her naked, made her lie on the ground and were trying to rape her after making her naked. When she was struggling and shouting for help Adhikari Meli and Ranjit Dip, P.Ws. 3 and 1 respectively came from a nearby thrashing floor and on hearing their protest the petitioners fled away. The victim came back home, reported the matter to her mother-in-law since her husband was absent then; and after her husband (P. W. 2) returned information was lodged with police. Originally the petitioners were charged Under Section 366/34, IPC; but additional charge Under Section 376/511, IPC was framed against them.
On consideration of the evidence on record, the conviction was made and sentence was awarded. The appeal filed by the petitioners brought them relief to the extent indicated above.
3. Main plank of argument of the learned counsel for the petitioners is that the evidence is so discrepant that no reasonable man could come to a conclusion about the offences having been committed by the petitioners. It is submitted that the evidence of P.Ws. 3 and 1 is discrepant to the core. In view of their categorical admission about their position near the canal, at the time of alleged occurrence they could not have seen anything as claimed by them. If their evidence is kept out of consideration, conviction should not be sustained only on the evidence of the victim lady. It is submitted that the courts below have attached undue importance to her evidence on a mistaken impression that a rustic Indian woman at the cost of her reputation and dignity would not make false allegations. It is also highlighted by the learned counsel for the petitioners that there was no injury on the victim, and if there was any resistance, as claimed by the victim, injuries were inevitable, particularly considering the allegation that rape was attempted on an uneven thrashing floor. It is also submitted that the scenario as described may at best amount to preparation for rape and not an attempted rape, even if it is accepted that the allegations are true. Alternatively, it is pleaded that the petitioners are young persons, belong to lower strata of the society and their family members are depending on their earnings for their livelihood and considering these aspects the sentence should be suitably modified.
The learned counsel for the State, however, submits that the offences committed by the petitioners affected dignity and honour of a woman, which is so sacrosanct and there is no scope for any liberal sentence particularly when two courts below after careful analysis have found them guilty.
4. The evidence of P.Ws. 1 and 3 no doubt suffers from exaggeration; but that per se does not render their evidence unworthy of acceptance. In their anxiety to be accepted as truthful witnesses, they appear to have exaggerated and embroidered their version. Unless the exaggeration is of such proportion that it renders the evidence improbable or unworthy of acceptance, the Court has a duty to trim off the unnecessary embroideries and exaggerations and find out the truth. Even if there is some amount of exaggeration and it is accepted that P.Ws. 1 and 3 could not have seen the acts in entirety, their evidence to the extent that the accused persons were with the victim at the place of occurrence cannot be ignored. Further, their evidence to the effect that they heard the cry of the victim also cannot be discarded because nothing has been shown to conclude that their hearing such cry was improbable.
If there is a ring of truth in the main, the case should not be rejected. It is the duty of the Court to cull out the nuggets of truth from the evidence unless there is reason to believe that the inconsistencies of falsehood are so glaring as utterly to destroy confidence in the witnesses. (See State of U.P. v. Anil Singh AIR 1988 SC 1998 : (1989 Cri LJ 88),
5. The other question is how far the version of the victim lady herself establishes the guilt of the petitioners. Undisputedly she has no animosity with either of them. The hair-splitting distinction sought to be made by the learned counsel for the petitioners that in a case of rape the victim's evidence may be sufficient, but not in a case of attempted rape does not carry any conviction. Can it be said that a woman is only to be believed after she is raped, and not after she has been disrobed but successfully warded off the attempt to rape. In the tradition bound conservative Indian society, it is incredible to think that a woman would falsely state that she was disrobed and attempts were made to rape her, which in view of intervening circumstances could not materialise. True it is, possibility of false implication is not completely ruled out. But the Court has a duty to weigh the possibilities of truth of allegation on consideration of materials and evidence placed. On the evidence of the victim lady herself conviction can be maintained, if it has a ring of truth. The evidence of the victim lady is clear and elaborate cross-examination has not brought any crack in it. There is no substance in the argument advanced by the learned counsel for the petitioners that the evidence of the victim lady herself is not sufficient for bringing home the charge against the petitioners.
6. Coming to the plea that the incident as alleged may at best amount to preparation for commission of rape and not an attempt, it has to be borne in mind that preparation is a mental act with follow up of some action to do a particular thing. Preparation consists in devising or arranging the means or measures necessary for the commission of the offence. Juxtaposed, an attempt to commit the offence is a direct movement towards the commission after preparations are made. In order that a person may be convicted of an attempt to commit a crime, he must be shown first to have had an intention to commit the offence, and secondly to have done an act which constitutes the actus reus of a criminel attempt. The sufficiency of the actus reus is a question of law which has presented difficulties because of the necessity of distinguishing between acts which are merely preparatory to the commission of a crime, and those which are sufficiently proximate to it to amount to an attempt to commit it. Definitions of 'attempt' to commit crime are dangerous things and the only safe way is to consider the facts of the particular case and to decide it in accordance with the dictates of common sense. Attempt may be stated to be an act done it part execution of a criminal design amounting to more than mere preparation, but falling short of actual commission, and possessing all elements of the substantive crime, except for failure to consumate the act. The evidence of the victim lady clearly shows that the act was not a preparation but an attempt to commit rape.
7. Absence of injuries does not rule out possibility of rape of attempted rape. It would all depend on circumstances of the case. There is no material to show that the thrashing floor had a rough surface. If there was ho violent shaking of the limbs or any part of the body, merely because the body was being shaked to ward off any sexual assault cannot necessarily result in injuries. The absence of injuries cannot therefore be a ground for disbelieving the victim lady's version regarding the attempted rape. The prosecution has been successful in bringing home the charge against the petitioners and I do not find any infirmity in the conclusions arrived at by the courts below regarding commission of offence by the petitioners.
8. Coming to the question of sentence, I find that at the time of occurrence the petitioners were in their early twenties. It is undisputed that they are daily wage earners. Attempt to rape is definitely a serious offence. It touches the dignity and honour of a woman. There was no reason for the petitioners to be so lustful and passionate as to lose their self-control and yield to their base instincts. Be that as it may, considering the fact that the occurrence took place about seven years back, the possibility of social ostracization, the young age of the petitioners and the stress on reformation, I feel that the custodial sentence of six months' rigorous imprisonment would meet the ends of justice.
The revision application is dismissed, subject to modification of sentence as aforesaid.