Criminal Appeal (SJ) No.194 OF 1995 --------- Against the judgment and order of conviction and sentence dated 5th day of September, 1995 passed in Sessions Case No. 65 of 1990 by Shri Priya Saran, District and Sessions Judge, Madhepura. ---------- Ramesh Poddar, son of late Jaikant Poddar, resident of Patauri, Police station – Sidheshwar, District – Madhepura …………… Appellant Versus The State of Bihar ……….. Respondent ------- For the Appellant : Shri Anuj Prakash, Advocate For the Respondent : Shri S.N. Prasad, APP -------- P R E S E N T THE HON'BLE SHRI JUSTICE DHARNIDHAR JHA --------- Dharnidhar Jha, J. The solitary appellant has preferred the present appeal to question the judgment of conviction dated the 5th September, 1995 passed by the learned District and Sessions Judge, Madhepura in Sessions Case no. 95 of 1990 by which the appellant was found guilty of committing offence under sections 376 and 511 IPC and after being heard on sentence on the same day, was directed to suffer rigorous imprisonment for three years. 2. The prosecution case is contained in FIR, (Ext.2) lodged by P.W. 6 on 9.9.1989 at 12.00 hours stating that while she was alone at her house, the appellant came there to inquire about the whereabouts of her mother. The prosecutrix (P.W. 6) stated that her mother had gone out side to collect fuel-wood. The prosecutrix 2 went to draw water from a tube-well and while she was bringing the bucket inside, the appellant is said to have taken the same to put it inside the Angan, whereafter, he put the prosecutrix down on the ground and fondled with her breasts with a view to ravish her. She raised an alarm which attracted the witnesses examined in the case, whereafter, the appellant ran away from there. 3. The case, after being investigated into by P.W. 9 SI Deoki Nandan Prasad, was reported true by submission of charge sheet, which culminated into the trial of the appellant and which ended in the impugned judgment. 4. The defence, which was set out before the learned trial judge, was that the appellant was innocent and had not committed the offence and further that he was falsely implicated on account of enmity. It was suggested to P.W. 6 during her cross-examination that her brothers were evesteasers, who were misbehaving with the sisters of the accused and on being chastised, the lady had been set up to retaliate by falsely implicating him in a serious case. 5. As may appear from the judgment as also from the record, the prosecutrix (P.W.6) is the solitary witness, others having learnt from her about the acts which were indulged into by the present appellant and from the evidence of eight witnesses examined during the trial, which included the mother of the prosecutrix (P.W.7) and her brother Nand Kishore Poddar (P.W. 8), it was established beyond doubt that the appellant had, indeed, 3 indulged in the acts as stated by P.W. 6. The proof of facts are no longer in doubt, but what has been castigated by the learned counsel for the appellant is the finding of the learned trial judge that the evidence was establishing an offence under section 376 read with 511 IPC. It was contended by Shri Anuj Prakash, learned counsel for the appellant that the four stages of the commission of an offence, if considered in the light of facts established, could not be said to establish beyond the stage beyond preparation and, as such, the finding of the learned trial judge that attempt to ravish the girl and, as such, the charge was established also appears unfounded. It was contended that there was no evidence of the prosecutrix that the appellant was doing anything except fondling with her breasts and that may not be an attempt and it may only constitute an offence of outraging the modesty of a woman. 6. Shri S.N. Prasad, APP initially resisted the submissions by submitting that it might be somewhere between the preparation and an attempt on committing the offence, but subsequently became lukewarm in his opposition to this appeal and the constitution of the offence on the facts established by the prosecution. 7. It was rightly contended by Shri Prakash, the learned counsel for the appellant that there are four stages of commission of an offence and those are – (i) intention, (ii) preparation, (iii) attempt and, finally, (iv) the commission of the act constituting the offence. 4 8. The very intention of the appellant is established by the fact that he was coming into the house of a lonely young girl and was verifying the facts about the presence of her other family members, especially, her mother and after getting confirmed that the lady was all alone in the house, he was putting her down on the ground and doing things as stated by witnesses, especially, by P.W. 6. The intent to ravish was there and the subsequent acts, as just narrated, were corollaries to achieving that intent by indulging into certain acts in that behalf. But, intention or mens rea, as it is known in criminal law, by itself is not punishable. The stage which is covered by preparation except a couple of examples in IPC, like, sections 399 and 402 IPC is also not punishable. An attempt to commit an offence except that under sections 307 and 308 IPC are made punishable by virtue of the general provisions contained under section 511 IPC. The very language of the provision punishes an attempt of committing an offence under the Penal Code, which are substantially made punishable under the IPC and this is the reason that an attempt to commit an offence defeated and made punishable under the IPC is said to be punishable under IPC. Again, if an attempt is made to commit any offence outside the IPC, then no court should resort to section 511 IPC for convicting an accused of such attempted act of committing any offence outside the IPC. For that purpose, only the special law shall have to formulate a provision and if there is no provision punishing an attempt to 5 commit an offence under any other Act than the IPC, then no offence or act of such class could be made punishable by any court by virtue of section 511 IPC. It was a simple digression to distinguish as to what offence could be punishable by virtue of section 511 IPC and what attempts to commit offence made punishable by any other law could not be punished by virtue of that enabling provision of the Penal Code, so as to injecting clarity in the principles of jurisprudence on punishing an attempt to commit an offence, which is one of the important aspects of our field of the criminal jurisprudence we handled so often. 9. Coming to the facts of the case, there may not be any doubt that the appellant was moved by a clear intent to satisfy his carnal desire of ravishing the lady (P.W.6). He was moving in that direction and that way he was coming into the most secured place for a lady, i.e., her house and finding that she was all alone, he was pushing her down and fondling with her breasts. These acts, in my considered view, could simply indicate as to how the appellant was preparing himself to achieve the motto he had set in his mind on ravishing or having sexual intercourse with a lady. Fondling with the breasts of a young lady might be a serious act and may also be nauseating for most of us. Most of us may not approve of these things even if a husband is doing such acts with his wife in public gaze but, when it comes to be considered for constitution of an offence, in my definite view, I could not categorize the act as falling 6 within the third stage of commission of an offence, i.e., an attempt to commit the offence of rape. It will still remain an act which was ‘preparation’ by the accused to fulfill his unholy desire. On these reasons, I uphold the reasoning of the learned counsel for the appellant that the learned trial judge was not perfectly right in holding the appellant guilty of the offence under section 376 read with 511 IPC. However, the question remains as to what offence is constituted on facts established? If one could consider the offence made punishable under section 354 IPC, one could simply reach to an inference that it could be an offence under section 354 IPC which has been committed by the appellant and that offence is duly established by the facts. 10. In the result, this court sets aside the conviction of the appellant under sections 376/511 IPC and instead, convicts the appellant under section 354 IPC. As regards the sentence to be inflicted upon the appellant, having regard to the fact that the case was instituted on 9.9.1989 and the judgment was delivered some times in 1995 when the appellant was aged 35 years and now that the appellant could be somewhere between fifty to sixty years of age, it does not appear desirable that some serious sentence be inflicted upon him. Considering the years that have passed by, during which the appellant was facing mental agony on account of pendency of the criminal case and also considering that the lady was enjoying a marital status on the day she was deposing in the 7 trial, it may not be conducive to her social respect that the matter is highlighted by being reported that the appellant has been visited with some harsher sentence due to the acts he committed with the lady. I find from the perusal of the record that the appellant has remained in custody during pre-trial stage for about nineteen days. The purpose shall be served if the court directs the appellant to suffer the imprisonment which he has already undergone as an under-trial prisoner. 11. With the above modification in conviction and sentence, the appeal is dismissed. (Dharnidhar Jha, J) Patna High Court, The 21st June, 2011, AFR/Anil/