Judgment:
1) This revision application has been filed by Indrajit Saha @ Babu Saha challenging the legality, validity and propriety of the judgement and order dated 19.5.2004 passed by the learned Additional Sessions Judge, 2nd Court, Nadia at Krishnagar in Criminal Appeal no. 5 of 2003 thereby affirming the judgement and conviction of the petitioner for committing an offence under Sections 376/511 of the IPC passed by the learned Assistant Sessions Judge, 2nd Court, Nadia in Sessions case no. 21(6) of 2000/ Sessions Trial No. V(II) of 2000 and sentencing him to suffer R.I. for 5 years and to pay a fine of Rs. 10,000/-.
2) This revision application was disposed of on 14.1.2011 by this Court in absence of the parties and their learned Counsels. The same was recalled by an order dated 11.2.2011 on the grounds that the Administrative notice sent to the petitioner was served after delivery of the judgement by this Court.
3) The brief fact of the case before the learned Trial Court is that Jayanti Biswas, mother of Jolly Biswas lodged one FIR in Tehatta police station on 6.8.1998 stating therein that on 4.8.1998 when Jolly was at home alone, the petitioner, being a neighbour, entered into the house and committed rape on her minor daughter, Jolly, aged about 9 years. She felt severe pain on her person and narrated the incident to her mother when she returned back home. The petitioner threatened Jayanti of dire consequences when she interrogated him over the issue. On the basis of said FIR, Tehatta police station case no. 108 of 1998 dated 6.8.1998 was registered. The case investigated into and ended in a charge-sheet under Section 376 of IPC against the petitioner. The petitioner pleaded not guilty to the charges and, accordingly, the trial commenced. In all, prosecution examined 12 witnesses. Some documents including medical examination report, statement of the victim recorded under Section 164 of the Cr.P.C. were admitted into evidence and marked Ex. on behalf of the prosecution. The defense although examined two witnesses, no document was filed on behalf of the defense in course of trial. The learned Trial Court upon consideration of the evidence, oral and documentary, found the petitioner guilty of committing an offence of attempting to commit rape on Jolly Biswas and convicted him under Sections 376/511 of IPC. He was sentenced to suffer R.I. for five years and to pay a fine of Rs. 5000/- also. The judgement of conviction and order of sentence were challenged by the convict/petitioner in an appeal being Criminal Appeal no. 5 of 2003 which was dismissed by the learned Additional Sessions Judge, 2nd Court, Nadia by the impugned judgement and order. The petitioner has come up with this application for revision challenging the legality, validity and propriety of the said order passed by the learned Appellate Court on the following grounds :
i) that the learned Trial Court as well as the learned Appellate Court failed to appreciate the evidence in its proper and true perspective;
ii) that the learned Trial Court as well as the learned Appellate Court erred in coming to a conclusion that an attempt was made by the petitioner to commit rape on victim Jolly because according to the evidence of the prosecution under garments of Jolly was even not removed by the petitioner while making such attempt;
iii) that the learned Trial Court as well as the learned Appellate Court failed to consider that there was delay in lodging the FIR and sending the FIR to Court by the police station and consequence thereto;
iv) that the learned Appellate Court failed to take note of the fact that the charge framed against the petitioner by the learned Trial Court was faulty;
v) that the learned Trial Court as well as the learned Appellate Court did not consider the defense witnesses at all for no reason whatsoever;
vi) that the learned Trial Court as well as the learned Appellate Court erred in believing the statement of prosecutrix which was found uncorroborated and not trustworthy;
vii) that the judgement and order impugned, being otherwise bad in law, are liable to be set aside;
4) Mr. Debabrata Ray, learned Counsel appearing on behalf of the petitioner has taken me to the formal FIR which was marked as Ex. 8 and drew my attention to the date of occurrence and date of receiving of FIR. The Ex. 8 shows that the alleged incident had taken place on 4.8.1998 and the time of incident was not mentioned.
5) The FIR was lodged by Jayanti Biswas with Tehatta police station on 6.8.1998 at 14.20. It was marked Ex. 1. It says that on 4.8.1998 when Jolly aged 9 years was alone in the house, the petitioner entered into the house and committed rape on her. The lodger of the FIR when returned back home found that Jolly was suffering from pain on her belly and other parts of her body. On questionings, he disclosed the incident. Jayanti Biswas the lodger of the FIR who happened to be the mother of Jolly Biswas met the petitioner and asked him about the incident but she was threatened of dire consequences. The FIR does not show what prevented Jayanti Biswas to lodge the FIR immediately after the incident. She took two days to do so without any explanation. Mr. Ray contended that this delay in lodging the FIR without any reasonable explanation obviously casts shadow of doubt on the prosecution case because delay ordinarily generates development and embellishment of fact.
6) Mr. Ray has taken me to the Ex. 5 i.e. the statement under Section 164 Cr.P.C. of the victim recorded by the learned Judicial Magistrate on 10.8.1998 and contended that no where within the four corners of the said statement, the victim stated that she informed her mother about the incident on 4.8.1998. She stated that the petitioner thrust his finger inside her vagina and thereafter took her on his lap, laid her down and rubbed his penis on her vagina without removing her panty. Mr. Ray contended that the statement under Section 164 Cr.P.C. was recorded on 10.8.1998 i.e. within six days from the date of alleged incident. In course of examination and cross-examination the victim girl, as P.W. 4 stated that the petitioner put off her wearing apparels and kept his hand inside her panty. Thereafter, he took her on his lap, laid her flat on the floor and rubbed his penis on her vagina. When she tried to shout, the petitioner pressed her mouth. She said nothing as to when the petitioner left the place. She said her mother came back home at 4 P.M. According to the P.W. 4, she came back home after 12 noon from Ray bari to give straw to the cows. When she was coming through the school ground, the petitioner called upon her and they both sat on stair. Thereafter, she opened the door of their house and both of them entered into the house. The petitioner closed the door from inside and thereafter committed that offence. Mr. Ray contended that the evidence of P.W. 1 was recorded on 4.1.2002 i.e. long 3 and ½ years after recording of her statement under Section 164 Cr.P.C. By this time, the prosecution case was developed to great extent because according to the statement under Section 164 Cr.P.C. the petitioner did not remove the panty of Jolly and rubbed his penis over her panty not directly on her vagina. Not that he also tried to remove her panty and penetrate his penis inside the vagina. But, in course of examination in Court she stated that the petitioner put off her wearing apparels and rubbed his penis on her vagina. That fact was also told by her to the I.O. and the I.O. of the case who was examined as P.W. 11 stated in his cross-examination that Jolly Biswas did not tell him that accused Indrajit rubbed his penis on her vagina. Mr. Ray has drawn my attention to this contradiction on material points and contended that the evidence of the prosecutrix can not be said to be trustworthy and worthy of credence. Corroboration of her evidence was required in order to come to a definite conclusion. Mr. Ray contended further that even if her testimony is believed, at best the petitioner can be said to have committed an offence under Section 354 of IPC because without removing panty no one could penetrate his penis inside vagina of a girl and obviously that was known to the petitioner. Had he any intention to penetrate penis inside vagina of the victim, he would have obviously tried to remove her panty. But that was not the prosecution case.
Therefore, the entire findings of the learned Trial Court and learned Appellate Court that the petitioner tried to commit rape on victim Jolly was wrong. In support of his contention, Mr. Ray referred to the following decisions :-
a) Motilal & Ors. v. State of Rajeshthan reported in (2009) 7 SCC 454.
b) Sudhir Kumar Mukherjee and Sham Lal Shaw v. State of West Bengal reported in AIR 1973 SC 2655.
c) Abhyananda Mishra v. State of Bihar reported in 1961 SC 1698.
d) Paltu Sheike & Ors. v. State of West Bengal.
7) Mr. Ray contended further that while the charge was framed by the learned Trial Court time of occurrence was shown at 15 hours. In the FIR time of occurrence has not been mentioned. It is not understood, Mr. Ray contended, as to how the learned Trial Court fixed the time of occurrence as 15 hours.
8) Mr. Ray contended further that the questions put to the petitioner in course of examination under Section 313 Cr.P.C. were jumbled up questions and the petitioner could not give proper explanation to the inculpatory statements of the witnesses.
9) Mr. Ray contended further that the learned Trial Court did not consider the evidence of D.W. 1 and D.W. 2 without giving any reason. The learned Appellate Court also ignored the statements of D.W. 1 and D.W. 2 without giving any reason. The statements of D.W. 1 and D.W. 2 together goes to indicate that there was nothing in school record to show that on that particular date Jolly, the victim left his school earlier. Mr. Ray contended that this fact has connection with the time of incident mentioned by the prosecutrix, mentioned in the charge form and mentioned when the petitioner was examined under Section 313 of Cr.P.C. This apart, Mr. Ray contended that had the learned Trial Court and the learned Appellate Court considered the evidence of D.W. 1 and D.W. 2, both the Courts would not have believed the statements of the prosecutrix sacrosanct without corroboration.
10) Mr. Ray contended that there was a specific plea of enmity taken by the petitioner in course of trial which was disbelieved by the learned Trial Court and by the learned Appellate Court for no reason whatsoever. The fact that there was an alteration over payment in respect of sari business between the mother of prosecutrix and the petitioner was supported by the P.W. 2. Learned Court ought to have considered that evidence of the P.W. 2 supporting the defense plea. Mr. Ray contended further that the Dr. Haldar who examined the prosecutrix was not examined as a witness by the prosecution. This apart, Mr. Ray also drawn my attention to the post occurrence conduct of the prosecutrix which, according to him, unnatural and abnormal.
11) Mr. Satpathi, learned Counsel appearing for the opposite party contended that the victim was 9 years old at the relevant period of time. Her date of birth was 9.2.1990 and that was established by cogent documentary evidence. Being the minor girl she has no reason to make false statement under Section 164 of the Cr.P.C. and also as a witness in Court. Mr. Satpathi contended further that although defense tried to take an alibi of enmity, that was not atall proved and established. It was not unnatural for a lower middle class family not to rush to the police station to inform such an incident immediately thereafter because it affects the prestige, dignity and honour of the family. The evidence of the prosecutrix, her mother, and other prosecution witnesses altogether established that the petitioner attempted to rape the prosecutrix. There was no reason for the learned Trial Court as well the learned Appellate Court to disbelieve the oral testimonies of the witnesses. Since there was no penetration, the medical examination report did not disclose any injury on the private parts of the victim. This fact, indirectly, supported the prosecution case. Mr. Satpathi contended that both the learned Trial Court and the learned Appellate Court appreciated the evidence in its true perspective and came to a definite findings of fact and this Court should not and must not interfere into such a concurrent findings of fact. He prayed for dismissal of the revision application.
12) No doubt, there was two days delayed in lodging the FIR and it is also true that the FIR was not presented before the learned Trial Court soon after receiving the same by the Police. There was also delay in doing so. In Paltu Seikh & Ors. (Supra) this Court observed that when there in inordinate unexplained delay in sending FIR to the Magistrate and inconsistency between the ocular and medical evidence regarding the number of assault and the eye witnesses did not make statement before the I.O. about the incident of assault, that evidence does not inspire confidence and in such a case, the accused persons are entitled to benefit of doubt.
13) It is settled principle of law that delayed received of the report by the Magistrate alone would not be fatal to the prosecution case because it depends upon the facts and circumstances of each case.
14) In the case in hands, the victim was a minor girl aged 9 years. The accused was a neighbourer. Generally, unexplained delay in lodging the FIR is fatal to prosecution. But the nature of Offences involved, delay stands generally explained because in Indian Society it brings a scandal to the family of the prosecutrix and time is unnecessarily wasted to decide if the scandal should be made public. In case like rape or outraging of modesty of a woman, the aggrieved or the injured person or her relation will naturally think twice before giving a complaint to the police. This will be much more so in villages because it involves the prestige and reputation of the family of the victim. In her examination-in-chief the lodger of the FIR i.e. the mother of the victim stated clearly that before she went to police station for lodging the FIR, she and her husband thought over the matter of lodging complaint with the police station. On the careful perusal of the examination-in-chief and cross-examination of the P.W. 3, it also appears that she also consulted with the local political leaders in the matter of lodging complaint. This fact was not at all challenged by the defense. Therefore, it can not be said that in the instant case no explanation was given from the prosecution in the matter of delay in lodging the FIR.
15) In Motilal and Ors. (Supra) the inquest was undertaken at a point of time when the FIR was not in existence. There was delay in sending the FIR to the concerned Magistrate. The Hon’ble Apex Court taking cumulative effect of the factors highlighted before it came to a findings that the fact of nonexplanation from the prosecution for causing such delay under the facts and circumstances, was not acceptable. The fact of that case and that of this case and nature of offences involved in both the cases are quite different. Therefore, I do not accept to the submission of Mr. Ray in this regard and am of opinion that the delay caused in lodging the FIR is not fatal to the prosecution case in the facts and circumstances as well as the nature of the offence committed in the case in hands..
16) As regards submission of Mr. Ray regarding faulty framing of charge is concerned, I find that learned Trial Court mentioned the time of occurrence at 3 P.M. where as time has not been mentioned in the FIR specifically. While the learned Trial Court framed the charges against the petitioner/accused, it must have consulted all the documents and materials placed before it by the prosecution besides the FIR. The documents and FIR placed before the learned Trial Court at the time of framing of charge besides the FIR were relied on by the prosecution. The learned Magistrate gathered the fact from those materials that the incident alleged took place at about 03 P.M. Again, I find that the petitioner/accused contested the trial with all possible efforts and specific alibi by adducing evidence. The defense challenged the occurrence entirely and wanted to establish that at the relevant period of time between 12.00 hours to 16.00 hours, the victim was in her school. The petitioner/accused explained all the questions put to him in course of his examination under Section 313 of the Cr.P.C. The time of occurrence was stated as 3 P.M. when he was put specific question over the issue. So, it can not be said that the accused/petitioner was prejudiced any way by the faulty framing of charge as claimed by Mr. Ray. In this contest the provisions of Section 464 of Code of Criminal Procedure can be taken into consideration. When there is no failure of justice and prejudice caused to the accused, error in framing charge can not be a ground for nullifying findings of Court. In view of the facts above, I find myself not in agreement with Mr. Ray on this score.
17) The submission of Mr. Ray that the learned Trial Court as well as the learned Appellate Court did not consider the defense witnesses at all for no reason whatsoever does not appear to be correct factually. I find that both the Courts had taken care of the evidence adduced on behalf of the defense and came to a concurrent findings of fact.
18) Now the question comes in is whether the evidence of the prosecutrix in the instant case could be the sole basis of recording conviction or not. I have gone through the evidence of the prosecutrix i.e. P.W. 4 and the mother of the prosecutrix, the P.W. 3 as well as P.W. 6 and found that there are some discrepancies in their statements which is suffering from exaggeration and embellishment. In fact, it was proved in the Trial Court as well as in the Appellate Court that the petitioner/accused did not commit rape actually. The learned Trial Court and the learned 1st Appellate Court came to a concurrent findings of fact that the petitioner/accused in fact and in substance, tried to commit the offence of rape but he did not succeed.
19) In the instant case, although there are some discrepancies in the statement of P.W. 3 and P.W. 4, P.W. 5 and P.W. 6 but those, according to the Trial Court as well as the learned Appellate Court are trivial in nature not affecting the substratum of the prosecution case to the effect that the accused/petitioner took the victim on his lap and rubbed his penis on her vagina or over the panty. The witnesses examined on behalf of the prosecution has not made any inconsistent statement in this regard. Whether the accused/petitioner actually made any effort to commit rape or not is altogether a different question. I have already stated that the evidence of P.W. 3 and P.W. 4 and P.W. 5 are suffering from some exaggeration and embellishment which appears to be normal in case of like nature. The P.W. 3 and P.W. 5 are mother and father of the P.W. 4. The P.W. 4, the prosecutrix, being a minor girl, however, has not shifted from her earlier statement made under Section 164 of the Cr.P.C. while she was examined in Court as P.W. 4. Therefore, in my opinion, the learned Trial Court was not incorrect and wrong in believing the testimony of the prosecutrix which was corroborated by the other witnesses as far as the substratum of the prosecution case is concerned.
20) It is true that the 164 statement was made by the prosecution within 6 days from the date of incident and she was examined in Court 3 and ½ years thereafter. At the time she made the statement under Section 164 Cr.P.C., she stated categorically therein that the accused/petitioner rubbed his penis over her panty repeatedly. She did not state at that time that her panty was removed by the petitioner/accused for the purpose of rubbing his penis or to thrust it inside her vagina. But, while examined as P.W. 4, she stated that the petitioner/accused rubbed his penis on her vagina. At that time, she did not state that her panty was not taken off by the accused/petitioner. There is no witness to the incident. The P.W. 3 appeared in the scene at 4 P.M after the petitioner/accused left the place. Therefore, what was stated by the prosecutrix before the Magistrate who recorded her statement under Section 164 Cr.P.C. is to be given more importance than what she stated as P.W. 4 after 3 and ½ years. The discrepancy in the manner the offence was committed appears to be fatal and I must say that the learned Trial Court as well as the learned Appellate Court were oblivious of the fact that the panty of the victim was not taken off by the petitioner at the time he rubbed his penis. It was impossible for the petitioner to penetrate his penis inside the vagina of the prosecutrix with the panty on. In other words, it can well be said that the petitioner had no intention and made no preparation to penetrate his penis inside the vagina of the prosecutrix. In Abhayananda Mishra (Supra) the Hon’ble Court observed :
“ The question whether a certain act amounts to an attempt to commit a particular offence is a question of fact dependent on the nature of the offence and the steps necessary to take in order to commit it. No exhaustive precise definition of what would amount to an attempt to commit an offence is possible.
There is a thin line between the preparation for and an attempt to commit an offence. Undoubtedly, 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 havge attempted to commit the offence. Attempt to commit an offence, therefore, 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 the commences to do an act with the necessary intention, he commences his attempt to commit the offence.
A person commits the offence of attempt to commit a particular offence when (I) he intends to commit that particular offence and (ii) he, having made preparations and with the intention to commit the offence, does an act towards its commission, such an act need not be the penultimate act towards the commission of that offence but must be an act during the course of committing that offence.
21) In Sudhir Kumar Mukherjee and Sham Lal Shaw (Supra) , the Hon’ble Court observed
“ A person commits the offence of attempt to commit a particular offence. When (i) he intends to commit that particular offence, and (ii) he, having made preparations and with the intention to commit the offence, does an act towards its commission. Such an act need not be the penulitimate act towards the commission of that offence but must be an act during the course of committing that offence, Case law discussed.”
22) It appears from the view of the Hon’ble Apex Court that for committing an offence it is necessary that the culprit intents to commit it and thereafter, makes preparation. After preparation, he makes an attempt to commit the offence and in case the attempt succeeds, he has said to have committed the offence. If he fails due to reason beyond his control, he is said to have attempted to commit the offence.
23) In the instant case, the accused/petitioner rubbed his mail organ on the private part of the victim without taking off the panty. It is not the case of the prosecution that the petitioner/accused was in hurry because no one was present at that time inside the house. The prosecutrix did not also shout for help. Had the petitioner/accused any intention to penetrate his penis, he would have taken off the panty of the prosecutrix first of all for the purpose of preparing to commit rape on her. He did not took off her panty although there was no reason beyond his control to do so, but rubbed his mail organ over the panty without discharging semen. That being the fact, I doubt whether the petitioner/accused had actually attempted to commit rape on the prosecutrix. This appears to me that this a case of outraging of modesty and not an offence of attempting to commit rape. I concede to the submission of Mr. Ray in this regard. When the cloths of the prosecutrix were not pulled off and no injury was caused in her private parts of the body, it can hardly be said that rubbing of mail organ over panty was amounting to attempting to commit rape. I find that the learned Trial Court and the learned Appellate Court failed to consider this fact while recording conviction of the petitioner/accused under Section 376/511 of IPC.
24) In my opinion, it is a clear case of outraging of modesty of the prosecutrix coming within the Section 354 IPC.
25) It is true that in a revision, this Court has limited scope to interfere into concurrent findings of fact and upset the findings of the Courts. But it is also settled principle of law that while there is patent error or mistake in law or facts resulting in gross mis-carriage of justice, this Court can interfere into a concurrent findings of fact in order to set right the patent wrong.
26) In the instant case, I find that the learned Trial Court as well as learned Appellate Court made a mistake in fact resulting in gross miscarriage of justice necessitating interference of this Court.
27) Accordingly, I modify the judgement and order under challenge to the extent that the petitioner/accused is found guilty of offence under Section 354 of IPC. He is sentenced to suffer R.I. for one year and to pay a fine of Rs. 5000/-, in default in payment of fine, he should undergo R.I. for 6 months. The period in custody in connection with this case is liable to be set off.
28) The revision application is disposed of with the above modification of the judgement impugned.
29) Stay order, if any, stands vacated.19
30) The earlier order passed in this revision on 14.1.2011 stands vacated also. Learned Trial Court is to take necessary action in order to implement the order passed today.