Attempt to commit an offence is more than preparation
High
Court Division (Criminal Jurisdiction)
Criminal Appeal No. 1459 of 1999
Md Abdur Razaque
Vs
The State
Justice Gour Gopal Saha and
Justice Zubayer Rahman Chowdhury
Date of Judgement: 9.11. 2003
Background
Gour Gopal Saha, J: This appeal is directed against the judgment and
order dated 1.6.1993 passed by the Additional Sessions Judge and Nari-O-Shishu
Nirjatan Daman (Bishesh Bidhan) Tribunal, Netrokona in Nari-O-Shishu
Nirjatan Daman Case No. 18 of 1998 convicting accused-appellant Md Abdur
razaque under section 6(1) of Nari-O-Shishu Nirjatan Daman (Bishesh
Bidhan) Ain, 1995 and sentencing him thereunder to suffer imprisonment
for life. Broad facts relevant for the purpose of the case are that
on the night following on 3.10.97 victim Mazeda Khatun aged about 16
years was sleeping along with her minor sister in their dwelling hut
at village Mohadebpur, Police Station Netrokona. At about 11.00 PM accused
Abdur Razaeqe stealthily entered into the dwelling hut by breaking open
the Jhap Door and committed rape on Mazeda Khatun against her will.
It has been stated that on the hue and cry raised by victim Mazeda,
inmates of the house rushed to the scene when accused Razzaque ran away.
Victim Mazeda Khatun narrated the occurrence to all those who came to
the scene after the departure of the accused. She also specifically
stated that accused Abdur Razzaque had committed rape on her against
her will, causing injuries on the private parts on her body.
The
police after usual investigation submitted charge sheet against accused-appellant
Abdur Razzaque under section 6(1) of the Nari-O-Shishu Nirjatan Daman
(Bishesh Bidhan) Ain 1995 to stand trial before the Court. Upon the
aforesaid allegations the accused-appellant Abdur Razzaque was put on
trial before the Additional Sessions Judge and Nari-O-Shishu Nirjatan
Daman (Bishesh Bidhan) Tribunal and he pleaded not guilty and claimed
to be tried. At the trial, the prosecution examined as many as 9 witnesses
in support of its case while the defence examined none.
The
learned Special Tribunal by his impugned judgment dated 1.6.99 convicted
accused-appellant Abdur Razzaque under section 6(1) of the Nari-O-Shishu
Nirjatan Daman (Bishesh Bidhan) Ain, 1995 and sentenced him thereunder
to suffer imprisonment for life. Being aggrieved by the aforesaid impugned
judgment dated 1.6.1999 accused-appellant Abdur Razzaque preferred the
present appeal before this Court.
Deliberation
Learned advocate appearing for the accused-appellant submits that in
view of the fact that the medical evidence does not support the case
of rape, the Learned Special Tribunal was manifestly wrong in convicting
and sentencing the accused appellant on a charge of rape. Therefore,
the impugned order of conviction and sentence is not sustainable in
law. He further submits that having regard to the fact that the prosecution
has failed to examine even a single independent, natural and probable
witness to prove the case, the impugned order of conviction and sentence
is not sustainable in law. The learned advocate further submits that
the Learned Special Tribunal was manifestly wrong in failing to weigh
and sift the evidence on the record as required by law and evidently
feel in error in coming to his ultimate decision, occasioning in failure
of justice.
The learned Assistant Attorney General appearing for the state, on the
other hand, submits that in the fact and circumstances of the case and
the evidence in record, the learned Special Tribunal was fully justified
in convicting and sentencing the accused-appellant. On the basis of
cogent and reliable evidence and, consequently, there is no scope to
interfere with the impugned judgement with this court.
It
is found that the prosecution witnesses have consistently and uniformly
stated in their evidence that on the fateful night following 18th Aswin,
1404 B.S at about 11.30 PM accused Abdur Razzaque stealthily entered
into the dwelling hut of victim Mazeda Khatun and committed raped on
her. Victim Mazda Khatun herself fully corroborated the case made out
in the FIR. In the lengthy and shrewd cross-examination the defence
failed to discredit her in any material respect. The witnesses, who
came to the scene on hearing the hue and cry raised by the victim, uniformly
stated that on their query she told them that the accused had committed
rape on her. There is no reason to disbelieve the natural evidence of
these competent witnesses.
Now
the question that calls for consideration is whether in face of the
evidence of the Medical Board, which examined the victim ten days after
the occurrence, the evidence of prosecution can safely be accepted on
the question of rape. Mazeda clearly stated in her evidence that she
put up strong resistance to the accused and straggled all the while.
We find no evidence on record that the accused completely over powered
her by physical assaults or instant threat of life to neutralize her
power of resistance against rape. She also stated in her evidence that
her screaming instantly drew the attention of other inmates of the house,
on which approach the accused ran away. It is actually difficult, well
nigh impossible, to accomplish the act of rape by a single accused against
a stiff resistance put up by the victim unless otherwise over-awed,
and over-powered and physical subdued.
In
the circumstance of the case and the material evidence on record, we
are of the view that although accused Abdur Razzaque definitely made
a determined attempt to commit rape on Mazeda, yet he could not accomplish
it. In such view of the matter we think the case comes down to one for
on attempt to commit rape. We have given our anxious considerations
to the facts of the case and the nature of the evidence. We, are, therefore,
inclined to hold that although accused Razzaque made a definite attempt
to commit rape on victim Majeda by undoing the string of her pajama
but he was actually unsuccessful in fulfilling his object.
In
a case like this, the culprit first intends to commit the offence and
then makes preparation for committing it and thereafter attempts to
commit the offence itself. If the attempt succeeds, he commits the offence
but if he fails due the reasons beyond his control, he is said to have
attempted to commit the offence. Attempt to commit an offence, therefore,
can be said to begin when preparations are complete and the culprit
commences to do an act with the necessary intention, he commences his
attempt which is a step toward commission of the offence.
An
attempt is an act done in part execution of a criminal design, amounting
to more than a mere preparation but falling short of actual consummation.
An attempt may thus be defined as an act which if not prevented would
have resulted in the full consummation of the act attempted. In the
present case, we have found that the accused made victim Mazeda Khatun
nude by removing her "payjama" and made a determined attempt
to ravish victim Majeda. The attempt of the accused could not be successful
only because of the strong resistance put up by the victim and the timely
approach of the inmates of the house to the scene of the occurrence,
which compelled the accused to run away, leaving his mission incomplete.
The
learned Advocate for the appellant referred to us the case of Gopi Shanker
and others Vs. the State (Rajasthan), reported in 1967 Crl. J. 922,
the case of Lahore High Court Vs. The Emperor, reported in AIR 1933,
Lahore 1002 and the case of Kishen Singh Vs. the Emperor, reported in
AIR 1927, Lahore 580 in support of his contention. The principle of
law laid down in the cited decisions readily supports our view.
Decision
In the result, the appeal is allowed in part and the order of conviction
passed by the learned Special Tribunal, Netrokona against accused-appellant
Abdur Razzaque under section 6 (1) of the Nari-O-Shishu Nirjatan Daman
(Bishesh Bidhan) Ain 1995 is altered to a conviction under section 6(1)
of Nari-O-Shishu Nirjatan Daman (Bishesh Bidhan) Ain 1995 read with
section 511 of the Penal Code and accordingly accused appellant Abdur
Razzaque is sentenced thereunder to suffer Rigorous Imprisonment for
ten (10) years.
Mr
Munsurul Haque Chowdhury, Advocate, for the Appellant and Mr S M Aminul
Islam, Assistant Attorney General, for the State.
