G.M. Khandekar, J.
1. This appeal by the accused is directed against an order of conviction and sentence recorded by the Additional Sessions Judge, Ratnagiri, in Sessions Case No. 35 of 1980 decided on 13th October, 1980 in respect of offences under section 376 read with section 511 and section 450 of the Indian Penal Code.
2. The complainant in this case is a woman named Taramati wife of Atmaram Gurav P.W. 2 who is residing in a hamlet called Guravwadi of village Kondye, Taluka Deorukh, District Ratnagiri. She is residing in a house in Guravwadi along with her husband named Atmaram, three minor children and her father-in-law named Ratna. Atmaram i.e. the husband of the complainant is an agriculturist and is also working as a Kotwal under the accused whose name is Harischandra son of Narayan Khadape. Said Harischandra was working as Talathi at the same village Kondye at the time of incident.
3. According to the story of the prosecution, on 2nd of April, 1980 Atmaram Gurav had gone to Fungus at about 3.00 p.m. to meet the accused and he returned to his house at Kondye along with the accused at about 7.30 p.m. As it was dark, the accused decided to have his night halt in the house of Atmaram Gurav. As per the direction of her husband, Taramati served food to the accused on the Ota of her house and after the food, the accused was supplied with a bed for his night halt on the same Ota. Atmaram Gurav had some work with postman named Gopal Padaye and accordingly he left his house. The father of Atmaram Gurav had gone to the house of his daughter at village Aravali. The minor children of Taramati were sleeping in the kitchen and after the departure of her husband she was also sitting near her children in the kitchen. There was a rockel lamp in the kitchen and one such lamp was burning on the Ota of the house where the bed was provided to the accused. The prosecution alleged that the accused extinguished the lamp which was on the Ota and he entered into the kitchen and embraced Taramati. He removed his Chaddi on his person and also extinguished the rockel lamp which was in the kitchen and he made an attempt to remove Taramati's clothes. Although Taramati requested the accused to release her, he did not do so and he also tried to remove her saree away from her person and further tried to remove her blouse. This scuffle was going on for about a couple of minutes and when she found that the accused was not paying any heed to her request, she shouted for help. Some women in the neighbourhood named Sharadabai P.W. 4, Ahilya P.W 3 and others immediately came to the house of Taramati on hearing her shouts and Sharadabai had brought one lamp with her. They saw that the accused was naked below the waist and he was having only a banian on his person. All these women then separated the accused and dragged him out of the house. A rope was brought and with that rope the accused was tied down to the pole of the Pandal. By that time some 5 to 7 persons from Guravwadi had also collected near the house of Taramati. Amongst the persons collected at the house of Taramati, was one Chandrakant Vishnu Desai P.W. 5 who was the Up-Sarpanch of the Grampanchayat of the same village. They saw that the accused was in naked condition and after the arrival of the Police Patil the accused was released and was given his clothes including Chaddi. Police Patil recorded the statement of complainant Taramati and also drew panchanama of the condition of the accused.
4. It appears that the Police Patil did not manage to send the complaint of Taramati (Exh. A) and panchanama, etc., to the Police Station immediately although he had asked some persons to reach them to the Police Station. All these documents collected by the Police Patil were received at the police station Deorukh on 15th April, 1980. On the next day i.e., on 3rd April, 1980 Atmaram Gurav went to the Police Station at Deorukh during night time and he narrated the incident to Janardan Herlekar P.W. 6 who was Police Station Officer, Deorukh, at that time. However, Janardan Herlekar was not satisfied with the report of Atmaram Gurav because he was stammering and no details were furnished by him properly. Janardan Herlekar Head Constable, therefore, sent another constable to call complainant Taramati who accordingly came to the Police Station on 4th April, 1980 at about 2.45 p.m. and her complaint was recorded by Head Constable Janardan and an offence under Crime No. 42 of 1980 was registered at the police station. Head Constable Janardan reached village Kondye at about 9.00 p.m. on 4th April, 1980 and on the next day he drew panchanama of the place of offence at about 8.30 a.m. which is at Exh. 8. Taramati produced before him a Saree, Blouse, broken pieces of bangles and a cord which were attached by Janardan Head Constable under panchanama (Exh. 9) and those articles were 1 to 4 before the Court. It appears that he had called the Police Patil of the village but the latter did not turn up. He recorded the statements of some witnesses and also sent Taramati P.W. 2 to the medical officer as she was alleged to have sustained some injuries during the scuffle. However, no medical evidence in this connection has been produced by the prosecution. Shaikh Hanif P.W. 7 who was Police Sub-Inspector at Deorukh Police Station received charge of C.R. No. 42 of 1980 for investigation on 29th May, 1980 and he only verified the statements of witnesses. On 19th July, 1980 he submitted charge-sheet against the accused for offence under section 376 read with section 511 of the Indian Penal Code. As the offence of rape was exclusive triable by the Court of Sessions, the learned Magistrate committed the accused to stand his trial in the Sessions Court at Ratnagiri.
5. The learned Additional Sessions Judge, Ratnagiri, framed charge under section 376 read with section 511 and section 450 of the Indian Penal Code against the accused, who pleaded not guilty to it. The accused also filed his written statement before the lower Court and it is at Exh. 31. The accused did not dispute that he met Atmaram Kotwal at Fungus an 2nd April, 1980 and that both of them came to village Kondye. He also did not dispute that he was at the house of Atmaram Kotwal at Fungus an 2nd April, 1980 and that both of them came to village Kondye. He also did not dispute that he was at the house of Atmaram Kotwal in the night in question and he was tied to the pole of the pandal with rope and further that he was released after the arrival of the Police Patil and thereafter clothes and bag were given to him. His contention was that a sum of Rs. 427/- in the bag was missing when he took the same after his release from the pole. He also contended that about 9 persons who reside in Guravwadi were present in front of the house of Atmaram Kotwal and they were all under the influence of liquor. They started quarrelling and thereafter they beat him with kicks and also pelted stones at him which resulted in injuries on his eyes and arms. Those people also tore clothes on his person and then they tied him to the pole with a rope. After the arrival of the Police Patil and Up-Sarpanch he narrated the incident to them and Police Patil recorded a panchanama. Thereafter, he was removed from the place. He claims to have submitted a report about this incident of assault on him to the Police Patil and also to the Tahsildar, Sangmesh war. He thus claimed to have been falsely implicated in the case at the instance of the people belonging to Gurav community because they apprehended that he would file a complaint against them.
6. The prosecution examined 7 witnesses including P.S.I. Shaikh Hanif before the learned Additional Sessions Judge, Ratnagiri, in support of its case and on careful consideration of the evidence on record, the learned Additional Sessions Judge convicted the accused in respect of offences punishable under section 376 read with section 511 and section 450 of the Indian Penal Code and sentenced him to suffer R.I. for five years and to pay a fine of Rs. 500/- in default to suffer R.I. for three months for the offence punishable under section 376 read with section 511 of the Indian Penal Code. He also convicted the accused under section 430 of the Indian Penal Code and sentenced him to suffer R.I. for six months and to pay a fine of Rs. 100/-, in default to suffer R.I. for one month. Feeling dissatisfied with order of conviction and sentences recorded by the Additional Sessions Judge, Ratnagiri, the accused has preferred this appeal.
7. Shri Gupte, the learned Counsel for the appellant, took me through the evidence of all the witnesses examined in the trial Court and canvassed before me that there were infirmities in the evidence of the prosecutrix Taramati P.W. 2 and there were material contradictions and omissions in her evidence in the Court and in the complaint at Exh. A. He also made a grievance that the clothes of Taramati did not come to be seized by the police prior to 5-4-1980 and no signs of scuffle were noticed in the kitchen at the time of panchanama Exh. 8. He further submitted that the Chaddi of the accused which was said to have been lying in the kitchen at the time of the incident was not found at the time of panchanama. He further submitted that there was no medical evidence to support the evidence of the prosecutrix Taramati to show that she suffered any injury on her arm during the scuffle. It was also his grievance that no signs of trampling were noticed at the time of spot panchanama and this factor goes to negative the version of Taramati that there was any scuffle at the spot. Shri Gupte also took me through the evidence of other two witness namely Ahilya P.W. 3 and Sharada P.W. 4 and submitted that there were discrepancies in their evidence and as such the evidence of all these three women witnesses should not have been accepted by the learned trial Judge. It was also his grievance that Atmaram Kotwal and the Police Patil named Janardan Mule were not examined by the the prosecution and thus their non-examination threw a doubt as to the truth of the prosecution story. He thus very strenuously argued that this was not a fit case for conviction of the appellant for any offence whatsoever. As against this argument, Shri Suryawanshi the learned Public Prosecutor, canvassed before me that the evidence given by the three women namely Taramati, Ahilya and Sharada was quite natural and it was rightly accepted by the learned trial Judge. He also supported the finding of the learned trial Judge that the accused committed offences punishable under section 376 read with section 511 and section 450 of the Indian Penal Code.
8. As observed above, there is no dispute on behalf of the appellant that he was working as a Talathi of village Kondye and that Atmaram was working as a Kotwal under him at the time of the incident. Similarly, there is no dispute that on 2nd April, 1980 the accused and Atmaram Kotwal returned to Guravwadi from Fungus at about 7.30 p.m. The prosecution case mainly relies on the evidence of the prosecutrix named Taramati P.W. 2. According to her, as per direction of her husband she served food to the accused at about 7.30 p.m. or so and then her husband provided a bed to the accused on the Ota of her house. Her husband without taking food went to the house of Gopal Postman to collect Tapal while her father-in-law Ratna was out of the village. A rockel lamp was burning on the Ota where bed was arranged for the accused and after the departure of her husband she chained the entrance door of the kitchen from inside and was sitting in the kitchen where her three minor children were sleeping. A rockel lamp was also burning in the kitchen. Her evidence shows that the accused extinguished the rockel lamp on the Ota and entered into the kitchen, removed his Chaddi and also extinguished the rockel lamp in the kitchen room. He embraced her while she was sitting and he tried to remove her saree and blouse but she resisted and requested him to release her. The accused also asked her to sleep down but she got up and thereafter she shouted for help on hearing which Ahilya P.W. 3, Sharada P.W. 4 and some 6 to 7 females in the neighbourhood rushed to her house. The women separated her form the clutches of the accused and he was then dragged outside of the house by the said women and was tied to the pole of the pandal in the courtyard. By that time some 5 to 7 male persons in the neighbourhood had also collected in the pandal. Chandrakant Desai P.W. 5 who was Deputy Sarpanch also came to the spot and after some time the Police Patil also reached there. The accused was then released from the pole and the Police Patil recorded the statement of Taramati.
9. The learned Counsel for the appellant placed reliance on some omissions made by Taramati with respect to her statement at Exh. A recorded by the Police Patil. It is true that there are some omissions in the statement Exh. A recorded by the Police Patil but we must bear in mind the mental condition of Taramati immediately after the incident. If she failed to disclose any details to the Police Patil at the time of her statement, I do not think that she can be blamed much for the same. The learned Counsel for the appellant drew my attention to the statement given by this witness in cross-examination where she stated that the meeting of the villagers took place and it was decided what is to be intimated to the police. A second meeting was also held and some discussion about the incident took place in that meeting also and she was also instructed as to what complaint was to be lodged at the Police Station. On the strength of this statement, the learned Counsel for the appellant, canvassed before me that the whole story cooked up by Taramti and others was a false one and as such no reliance should be placed on such story. It is to be noted that before such a discussion had taken place, woman Taramati had already lodged a report with the Police Patil which is at Exh. A and in that report she had alleged that the accused played mischief with her at the relevant time. I would not, therefore, attach much importance to these omissions which have been pressed on behalf of the appellant. It is true that at the time of spot panchanama at Exh. 8 no signs of trampling indicative of any struggle were noticed on the spot but in my opinion that cannot be a ground to discard her testimony in toto. There is one infirmity in the panchanama at Exh. 8 about the nature of flooring in the kitchen room of the house of Taramati. Had there been a stony floor in the kitchen room then the signs of trampling could not occur at any time. However, as observed above I would not attach much importance to this omission about the trampling in the panchanama at Exh. 8. The learned Counsel for the appellant also made a grievance that there was delay on the part of the prosecution to record the first information report in this case. It appears that although the Police Patil recorded the statement of Taramati immediately after the incident, he did not send it to the Police Station immediately but he managed to send it through somebody else. The said report actually reached police station on 15th April, 1980. It is not very difficult to understand the mischief played by the Police Patil and it appears that he did so purposefully in order to save the accused. The incident took place in the night of 2nd April, 1980 and immediately on the next day Atmaram Kotwal went to the Police Station to lodge complaint. He tried to narrate the incident orally but Head Constable Janardan was unable to follow him since Atmaram was stemming. The Head Constable, therefore, did not record the complaint of Atmaram Kotwal although he could have taken a note of it in the station diary since it was a cognizable offence. The Head Constable, therefore, summoned Taramati to the Police Station and she reached there on 4th April, 1980 when her statement came to be recorded and that statement is at Exh. B. This statement Exh. B was recorded as the first information report and offence came to be registered on the basis of that complaint. The recitals in his complaint at Exh. B substantially corroborate her testimony in the Court I, therefore, do not find that there was any un-reasonable cause for the police to record F.I.R. late in this case which would affect the truth of the prosecution story. The prosecutrix Taramati has stated that she was sent to the medical officer for examination because she had sustained injury on her arm due to the breaking of bangles and that medical evidence has not been produced by the prosecution. However, that is not a circumstance which would completely go to negative the version given by Taramati in the Court. The accused has not alleged any enmity either against Taramati or her husband Atmaram Kotwal. In fact, the material on record shows that the relations between Atmaram and the accused were very cordial or else there was no reason for Atmaram to give food to the accused and to prove for sleep in the night in question. The contention of the accused is to be found in the report by him to the Tahsildar which is at Exh. 25. No action appears to have been taken on this report by the police. In that complaint at Exh. 25 no allegations are made against Atmaram Kotwal and as such Atmaram or his wife Taramati had no reason to falsely implicate the accused in such a heinous crime. The incident as reported by the accused in his complaint at Exhibit 25 does not appear to have any basis and consequently his grievance that the people of Gurav community residing in Guravwadi made a scapegoat of Taramati and managed to get a false complaint from her in order to save them from prosecution is certainly ill founded. Being a woman Taramati would not allow herself to be made a scapegoat at the cost of character or reputation just to oblige the people and she would be the last person to involve a Talathi who was superior officer of her husband. The learned Additional Sessions Judgment was therefore, correct in rejecting the defence put up by the accused. I have carefully gone through the evidence of Taramati because she is a solitary witness on the point of incident and I find that she has given a very truthful version about the incident and the learned trial Judge had correctly appreciated her evidence in the Court.
10. Apart from the evidence of Taramati, the prosecution examined two women namely Ahilya P.W. 3 and Sharada P.W. 4. Ahilya has stated that at about 8-00 to 8-30 p.m., while she was in her house, she heard shuts of Taramati and she therefore, ran towards the house of Taramati. Some women were already proceeding to the house to Taramati and they were ahead to her. She saw accused Khadape embracing Taramati and accordingly they all caught hold of the accused and separated him from Taramati and dragged him out of the house. There was only banian on the person of accused at that time and he was naked below the waist. The accused was actually required to be pulled out of the house of Taramati since he was not prepared to come out. The women then brought a cord from the house of Taramati and by that time some male persons had also collected there. With the help of those people the accused came to be tied to the pole with the cord. It appears that after the arrival of the Police Patil, one towel was given to the accused to cover his body below the waist. She also stated that the clothes of the accused were on the Ota of the house and they were given to him after he was released. Although she was cross examined , I do not find any material whatsoever that would shake the testimony given by her in her examination-in-chief. If she had really heard the shouts of Taramati it was quite natural for her to rush to her house in response to the shouts. Sharda P.W. 4 is another neigh bout of Taramati and she has practically given version similar to that of Ahilya P.W. 3. There is nothing in her cross examination that would shake the testimony given by her in examination-in-chief. The learned trial Judge, therefore, was correct in accepting the testimony of both these witnesses which clearly proved that in response to the shouts given by Taramati, women in the neighbourhood the kitchen and tied him to the pole in the pandal of the Court yard. The accused had not disputed that he was tied to the pole and that he was released after the arrival of the Police Patil. The evidence of both these female witnesses shows that the accused was naked below the waist when he was brought outside and tied to the pole and it also shows that the women had assaulted the accused also possibly for the fault committed by him. The evidence of these witnesses thus supports the testimony of Taramati also.
11. The only other witnesses who needs to be considered is Chandrakant P.W. 5 who was working as Up-Sarpanch of the Grampanchayat at village Kondye. His evidence shows that about 8-45 p.m. When he came to the house of Atmaram Kotwal he found that the accused was tied to the middle pole and he was naked. Thereafter, the naked portion was covered with a towel. His evidence also shows that Police Patil had drawn the panchanama which is at Exhibit 21. His evidence on other point is not very material for the purpose of this appeal.
12. The learned Counsel for the appellant, canvassed before me that when the evidence of Taramati showed that the entrance door was chained by her from inside, and then there was no evidence as to who opened the door, it was impossible that accused would go inside the kitchen for committing any offence. It is true that the evidence of Taramati is silent on the point as to who opened the door but the evidence of other two female witnesses namely Sharada and Ahilya clearly shows that the entrance door of the kitchen was opened when they rushed to that house. It has come in the evidence of Taramati that her children got up on hearing her shouts and possibly one of them might have unchained the door of the kitchen room. Taramati was herself busy in the scuffle with the accused and, therefore, it must not have been possible for her to see as to who actually opened the entrance door. In my opinion, this argument is ill founded and cannot be accepted. As observed above, the evidence of Taramati is corroborated to some extent by the evidence of the two female witnesses namely Ahilya P.W. 3 and Sharada P.W. 4. The fact that the accused was required to be dragged outside of the house and was tied to the pole with a rope is another circumstance which is more consistent with his guilt rather than with his innocence. I have, therefore, no hesitation in accepting the testimony of Taramati on the point that the accused entered into the kitchen, extinguished the lamp, embraced, her and tried to remove her saree and blouse on her person. He had also removed his Chaddi. With these established facts, as have not how to consider as to what offence, if any, has been committed by the appellant.
13. The learned trial Judge held the accused guilty for the offences punishable under section 376 read with section 511 and also section 450 of the Indian Penal Code. The learned Counsel for the appellant assailed this finding of the learned Judge before me and canvassed in the alternative that the offence on the established facts could only be one under section 354 of the Indian Penal Code. The learned Public Prosecutor, however, tried to justify the guilt of the accused under section 376/511 and section 450 of the Indian Penal Code. As a matter of law a preparation for committing an offence is different from attempt to commit it. The preparation consists in devising or arranging the means or measures necessary for the commission of the offence. On the other hand, an attempt to commit the offence is a direct movement towards the commission after preparation are made. In order that a person may be convicted of an attempt to commit a crime, he must be shown first to have had an intention to commit the offence, and secondly to have done an Act which constitutes the actus reus of a criminal attempt. The sufficiently of the actus reus is a question of law which had led to difficulty because of the necessity of distinguishing between Acts which are merely preparatory to the commission of a crime, and those which are sufficiently proximate to it to amount to an attempt to commit it. The test for determining whether the Act of the accused persons constituted an attempt or preparation is whether the overt acts already done are such that if the offender changes his mind and does not proceed further in its progress the Acts already done would be completely harmless, reported in Malkiat Singh v. State of Punjab, : 1970CriLJ750 .
14. In every crime, thus, there are four stages in the commission of the offence---(1) intention to commit it, (2) preparation to commit it, (3) attempt to commit it; and if the third stage is successful, (4) actual commission of the offence. In Abhayanand v. State of Bihar, : 1961CriLJ822 , it was held that there is a thin line between the preparation for and an attempt to commit an offence. Undoubtedly, a culprit first intends to commit the offences, 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 have attempted to commit the offence. It was further observed that 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 steps towards the commission of the offence. The moment he commences to do an Act with the necessary intention, he commences his attempt to commit the offence. In the case of Hukam Chand Inder Singh v. The State (1962)2 Cri LJ 715, the accused was convicted under section 376/511 of the Indian Penal Code on the charge that he attempted to commit rape on the prosecutrix. The facts established were that in such attempt the accused assaulted the prosecutrix by embracing her and he made her to lie down on the ground. It was held that the charge of attempt to commit rape was not made out and the facts proved brought the case within the ambit of section 334 of the Indian Penal Code. In State of Madhya Pradesh v. Babulal, : AIR1960MP155 , the distinction between an attempt to commit rape and to commit indecent assault was made. It was held that for an offence of an attempt to commit rape the prosecution must establish that it has gone beyond the stage of preparation. In that case, the accused had gone to the bada of the prosecutrix and tried to seduce her for intercourse. She repealed his advances, which made him furious. He fell her down on the ground forcibly, snatched her lodge and thereby made her naked. Her cries attracted her uncle who came to the spot and then the accused fled away. It was held that it was not a case of an attempt to commit rape but was one under section 354 of the Indian Penal Code.
15. I have already enumerated the facts which have been established in this case. According to me, the accused was in the stage of preparation and he had not beyond the stage of preparation and as such the accused cannot be said to have attempted to commit rape on the prosecutrix Taramati. This was, therefore, a case of incident assault punishable under section 354 of the Indian Penal Code. I would, therefore, set aside the conviction of the appellant under section 376/511 of the Indian Penal Code and instead convict him for the offence punishable under section 354 of the Indian Penal Code.
16. The next question that arises for consideration is whether the accused is guilty of offence punishable under section 450 of the Indian Penal Code. The learned Counsel for the appellant canvassed before me that there could not be any trespass as the accused was already permitted to be there even according to the prosecution story. It is true that the accused was permitted to sleep on the Ota of the house of the complainant but he was certainly not permitted to enter into the kitchen room. I, therefore, feel that the offence of trespass developed at the time of commission of offence because his entry in the kitchen room was tainted with an intention to commit an offence. I would, therefore, hold the accused guilty for the offence under section 451 of the Indian Penal Code instead of offence punishable under section 450 of the Indian Penal Code.
17. That takes me to the question of sentence. Shri Gupte, the learned Counsel for the appellant, was heard on the question of sentence. The learned Counsel for the appellant, made a prayer before me that the appellant should be given benefit under the Probation of Offender's Act. However, in the circumstances of the case, I am not inclined to grant benefit under the Probation of Offender's Act to the accused. The accused was Talathi of village Kondye and he played mischief with the wife of his subordinate Kotwal by taking advantage of the situation. Some deterrent punishment is, therefore, necessary not only from the point of view of injustice caused to the wife of Kotwal but also from the point of view of maintaining dignity of the office of Talathi. The office of Talathi has some importance at village level and Talathi is being looked upon with respect by the people and such respect is likely to be shattered if the accused is let loose by showing leniency. I, therefore, feel that it would meet the ends of justice if the accused is sentenced to undergo R.I. for one year and to pay a fine of Rs. 300/- in default to suffer R.I. for two months for the offence under section 354 of the Indian Penal Code. The accused is also sentenced to suffer R.I. for six months and to pay a fine of Rs. 200/- in default to suffer R.I. for one month for the offence under section 451 of the Indian Penal Code.
18. In the result, the appeal is partly allowed. The order of conviction and sentence recorded by the learned Additional Sessions Judge, Ratnagiri against the appellant in respect of offence under section 376/511 of the Indian Penal Code and under section 450 of the Indian Penal Code is hereby quashed and instead the appellant is convicted under section 354 of the Indian Penal Code and is sentenced to suffer R.I. for one year and to pay a fine of Rs. 300/- in default to suffer R.I. for two months. The appellant is also convicted for the offence under section 451 of the Indian Penal Code and is sentenced to undergo R.I. for six months and to pay a fine of Rs. 200/- in default to suffer R.I. for one month. Out of the amount of fine, if recovered, a sum of Rs. 250/- shall be paid to the complaint Taramati wife of Atmaram Gurav by way of compensation. The substantive sentence shall run concurrently. The appellant shall surrender his bail in the Lower Court within four weeks from today.