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March 14, 2004 

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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.









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