The high court of Jharkhand recently consisting of the bench of Justice Anubha Rawat Choudhary dismissed the petition for reviewing the conviction under 354 and 376/511 of IPC and held that facts and circumstances of the case, the conduct of the petitioner and the evidence on record clearly establish beyond any reasonable doubt that the petitioner intended and prepared to commit rape upon the victims and such intention and preparation translated into an attempt to commit rape. (Mathura Thakur V. state of Jharkhand)

The high court also observed that the investigating officer of the case has not been examined by the prosecution. However, no prejudice has been shown to have been caused to the petitioner on account of non-examination of the investigating officer of the case as there are consistent evidences on record including the evidences of the victim girls which established the case of the prosecution beyond all reasonable doubts.

 Facts of The Case

The present case came into light when the Informant (mother of the victims) was sleeping inside her house and her children namely, Tunni Kumari, aged about 09 years and Seema Kumari, aged about 06 years and the daughter of Sripati Bouri namely, Baishakhi, aged about 10 years were sleeping in the verandah of the house. In the meantime, Mathura Thakur (petitioner herein) entered into her house and enquired about the whereabouts of her husband namely, Baleshwar Paswan @ Sadhujee to which she replied that he was not in house whereupon the petitioner told her that this is the day for merry making and whether there is any arrangement or not. Thereafter, the petitioner slept on the cot alongwith the girls and forcibly started untying the laces of their pants one by one and also threatened them not to raise any alarm, but Tunni Kumari raised alarm saying that the petitioner has untied their pants and has thrown away and is trying to commit rape upon them. Thereafter, the informant, who was sleeping inside the house rushed out and saw the petitioner adjusting his underwear and fleeing away. The informant chased the petitioner, but the petitioner entered inside his house and bolted the door from inside. When the informant returned to her house, she found the girls lying in naked condition and she clothed them. On being asked, the girls told her that the petitioner was trying to commit rape upon them.

On the basis of this the case was registered under Sections 376/511 of the Indian Penal Code against the petitioner. And after the trial petitioner were declared guilty under sections 376/511 of IPC by the trial court. In pursuance of the petitioner filed a petition before the High court of Jharkhand.

Contention of parties

The counsel for the petitioner contended that 6 (six) witnesses were cited in the charge-sheet of the case, but only 5 (five) were examined and the Investigating Officer of the case was not examined.

He further contended that the basic ingredients for the offence of attempt to commit rape are not satisfied in the present case and as such, the offence under Sections 376/511 of the Indian Penal Code is not made out against the petitioner and the present case, at best, may be a case under Section 354 of Indian Penal Code.

On the other side counsel for the respondent has supported the judgement by stating that there are consistent findings recorded by the learned courts below and there is no scope for re-appreciation of evidences and coming to a different finding. He further submitted that there is no illegality, perversity or impropriety in the impugned judgments calling for any interference in revisional jurisdiction.

Court observation and Judgement

In the present case court noted that there is an requirement to be examine the case in the light of the law laid down by the Hon’ble Supreme Court considering the various stages i.e. intention, preparation, attempt and ultimate commission of offence. The distinction has also to be kept in mind between indecent assault amounting to outraging the modesty of the victim and attempt to rape. There can be no doubt that attempt to rape is an aggravated form of indecent assault. It is required to be examined in the present case as to Whether the intention and preparation of the petitioner was to commit rape upon the victims and whether such intention and preparation translated into an attempt to commit rape considering the conduct of the accused and circumstances of the case. While examining the aforesaid point, it is to be seen Whether the petitioner would have succeeded in committing rape upon the victims, had there been no intervention by informant.

Court also held that the facts and circumstances of the case, conduct of the petitioner and the evidences on record clearly establish beyond any reasonable doubt that the petitioner intended and prepared to commit rape upon the victims and such intention and preparation translated into an attempt to commit rape and the petitioner tried to overpower the victims in spite of their protest and threatened to kill them. It has also been established beyond all reasonable doubts that the petitioner would have succeeded in committing rape upon the victims, had there been no intervention by informant upon alarm raised by her daughter.

The Court dismissing the appeal remarked that the investigating officer of the case has not been examined by the prosecution. However, no prejudice has been shown to have been caused to the petitioner on account of non-examination of the investigating officer of the case as there are consistent evidences on record including the evidences of the victim girls which established the case of the prosecution beyond all reasonable doubts. No evidence has been led by the defence regarding any reason for false implication of the petitioner and this aspect of the matter has been fully considered by the learned courts below.

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