Shibin v. State of Kerala and X X

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **FRIDAY, THE 06TH DAY OF NOVEMBER 2020 / 15TH KARTHIKA, 1942** ## **Crl.MC.No.4442 OF 2020(E)** **AGAINST THE ORDER/JUDGMENT IN CC 690/2019 OF JUDICIAL MAGISTRATE OF FIRST CLASS, PALA** **CRIME NO.1388/2017 OF KURAVILANGADU POLICE STATION, KOTTAYAM** ## **PETITIONER/ACCUSED:** **SHIBIN AGED 25 YEARS S/O.SUNNI JOSEPH, THALIPPARAMBIL HOUSE, JAYAGIRI BHAGAM, KURUVILANGAD VILLAGE .** **BY ADV. SRI.V.C.MADHAVANKUTTY** ## **RESPONDENT/STATE & DEFACTO COMPLAINANT:** - **1 THE STATE OF KERALA REPRESENTED BY ITS PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, REPRESENTING SUB INSPECTOR OF POLICE, KURUVILANGD POLICE STATION, 686 509, KOTTAYAM.** - **2 X X** **R2 BY ADV. C.K.SREEJITH** **SRI.SAIGI JACOB PALATTY, PUBLIC PROSECUTOR** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 06.11.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** Crl.M.C No.4442 of 2020 2 # **ALEXANDER THOMAS, J.** # **=========================== Crl.M.C No.4442 of 2020** **===========================** Dated this the 06[th] day of November, 2020 ## **ORDER** The prayer in the aforecaptioned Crl.Miscellaneous case filed under Sec.482 of the Cr.P.C is as follows : “ _................ to call for the records Pursuant to CC.NO.690 of 2019 pending before the Judicial first class magistrate court, Pala which include first Information Report in Crime No.CC.1388 of 2019 of Kuravilangad police station and to quash the proceedings against the petitioner.”_ 2. Heard Sri.V.C.Madhavankutty, learned counsel appearing for the petitioner (sole accused), Sri.Saigi Jacob Palatty, learned Public Prosecutor appearing for the 1[st] respondent-State of Kerala and Sri.C.K.Sreejith, learned counsel appearing for the contesting respondent No.2 (lady victim). 3. The petitioner herein has been arrayed as the sole accused in the instant Annexure-A1 First Information Report in Crime No.1388/2017 of Kuravilangad Police Station, Kottayam District, for offences punishable under Sec.342 & Sec.511 of Sec.376 of the Indian Penal Code, on the basis of the First Information Statement given by the 2[nd] respondent lady victim on 02.09.2017 at about 5.15 p.m., in Crl.M.C No.4442 of 2020 3 respect of the alleged incident, which happened on the same day (02.09.2017) at about 11.30 a.m. The police after investigation have filed the impugned Annexure-A2 final report/charge sheet in the said Crime No.1388/2017 of Kuravilangad Police Station, for offences punishable under Secs.354, 342 & 511 of Sec.376 of the IPC, which has now led to the calendar case C.C.No.690/2019 on the file of the Judicial First Class Magistrate’s Court, Pala. 4. The learned counsel for the petitioner would content that the admitted allegations raised in the impugned prosecution materials as per Annexures-A1 & A2 would not disclose any serious offence and that at any rate it will not disclose the offence, as per Sec.511 of Sec.376 of the IPC and that now, the entire disputes between the parties have been resolved and that the 2[nd] respondent has now sworn to Annexure-A3 affidavit dated 25.02.2020 stating that the disputes between the parties have been fully resolved and that she does not intend to prosecute the matter any further and that she has no objection in the quashment of the impugned criminal proceedings, etc. 5. The learned Public Prosecutor was requested to get instructions in the matter and today when the matter has been taken up for consideration, the learned Public Prosecutor would submit on the Crl.M.C No.4442 of 2020 4 basis of instructions that the Investigating Officer concerned has conducted an enquiry and has recorded the statement of the 2[nd] respondent lady victim and she has voluntarily executed Annexure-A3 affidavit and that the facts stated therein are correct and that the disputes between the petitioner and the 2[nd] respondent has been resolved and that she has no objections in the quashment of the impugned criminal proceedings, etc. 6. As regards the first contention of the petitioner, the following aspects are to be borne in mind: The allegations in Annexures-A1 & A2 criminal proceedings are to the effect that the 2[nd] respondent (lady victim) had gone to the residence of the petitioner/accused as part of seven day camp project for spreading the idea of organic farming among the people in the locality and that she was then studied B.A Economics in the local college and that when she and her friends had reached the area in question, her friends have visited the other houses and she had gone to the house of the accused. Later, the accused called her back for clearing a doubt and then he had caught hold of her hands and taken her to his inner room and had pushed her to the cot and then she cried out aloud, hearing which, some people had turned up and then she had Crl.M.C No.4442 of 2020 5 ran away from the petitioner, etc. 7. It has been held by the Apex Court in various decisions as in _**Aman Kumar & others v. State of Haryana**_ [2004 SC 1497] that in order to hold an accused guilty of attempt to commit rape (Sec.511 of Sec.376 of the IPC) the court must be satisfied that the accused, when he laid hold of the prosecutrix, not only desired to gratify his passions upon a person but also that he intended to do so at all events, and notwithstanding any resistance on her part and the point of distinction between an attempt to commit rape and an act to commit an indecent assault is that there should be some action on the part of the accused, which would show that he was going to have sexual connection with her, etc. It will be profitable to refer to paragraph Nos.8 to 11 of the decision of the Apex Court in _**Aman Kumar’s case**_ (supra) [2004 SC 1497], which reads as follows: “8. _The plea relating to applicability of Section 376 read with Section 511, IPC needs careful consideration. In every crime, there is first, intention to commit, secondly preparation to commit it, thirdly, attempt to commit it. If the third stage, that is, attempt is successful, then the crime is complete. If the attempt fails the crime is not complete, but law punishes the person attempting the act. Section 511 is a general provision dealing with attempts to commit offences not made punishable by other specific sections. It makes punishable all attempts to commit offences punishable with imprisonment and not only those punishable with death. An attempt is made punishable, because every attempt, although it falls short of success, must create alarm, which by itself is an injury, and the moral guilt of the offender is the same as if he had succeeded. Moral guilt must be united to injury in order to justify punishment. As the_ Crl.M.C No.4442 of 2020 6 _injury is not as great as if the act had been committed, only half the punishment is awarded._ _9. A culprit first intends to commit the offence, 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. Attempt to commit an offence 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 step 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. The word 'attempt' is not itself defined, and must, therefore, be taken in its ordinary meaning. This is exactly what the provisions of Section 511 require. An attempt to commit a crime is to be distinguished from an intention to commit it; and from preparation made for its commission. Mere intention to commit an offence, not followed by any act, cannot constitute an offence. The will is not be taken for the deed unless there be some external act which shows that progress has been made in the direction of it, or towards maturing and effecting it. Intention is the direction of conduct towards the object chosen upon considering the motives which suggest the choice. Preparation consists in devising or arranging the means or measures necessary for the commission of the offence. It differs widely from attempt which is the direct movement towards the commission after preparations are made. Preparation to commit an offence is punishable only when the preparation is to commit offences under Section 122 (waging war against the Government of India) and Section 399 (preparation to commit dacoity). The dividing line between a mere preparation and an attempt is sometimes thin and has to be decided on the facts of each case. There is a greater degree of determination in attempt as compared with preparation._ _10. An attempt to commit an offence is an act, or a series of acts, which leads inevitably to the commission of the offence, unless something, which the doer of the act neither foresaw nor intended, happens to prevent this. An attempt may be described to be an act done in part execution of a criminal design, amounting to more than mere preparation, but falling short of actual consummation, and, possessing, except for failure to consummate, all the elements of the substantive crime. In other words, an attempt consists in it the intent to commit a crime, falling short of, its actual commission. It may consequently be defined as that which if not prevented would have resulted in the full consummation of the act attempted. The illustrations given in Section 511 clearly show the legislative intention to make a difference between the cases of a mere preparation and an_ Crl.M.C No.4442 of 2020 7 _attempt._ _11. In order to find an accused guilty of an attempt with intent to commit a rape, Court has to be satisfied that the accused, when he laid hold of the prosecutrix, not only desired to gratify his passions upon her person, but that he intended to do so at all events, and notwithstanding any resistance on her part. Indecent assaults are often magnified into attempts at rape. In order to come to a conclusion that the conduct of the accused was indicative of a determination to gratify his passion at all events, and in spite of all resistance, materials must exist. Surrounding circumstances many times throw beacon light on that aspect.”_ 8. Paragraph No.11 of the said decision in _**Aman Kumar’s**_ _**case**_ (supra), the Apex Court has held that in order to hold an accused guilty of an attempt to commit rape, the court must be satisfied that the accused, when he laid hold of the prosecutrix, not only desired to gratify his passions upon a person but he intended to do so at all events and notwithstanding any resistance on her part and indecent assaults are often magnified into attempts at rape and in order to come to a conclusion that the conduct of the accused was indicative of a determination to gratify his passion at all events and inspite of all resistance, materials must exist, etc. 9. After hearing both sides and after going through the impugned prosecution materials in Annexures-A1 & A2, this Court is of the considered view that even if it is assumed that the prosecution allegations are broadly true, then it will not disclose the vital ingredients of the offence of attempt to commit rape, as per Sec.511 of Crl.M.C No.4442 of 2020 8 Sec.376 of the IPC. But certainly, going by these allegations, the offence of outraging the modesty of a woman as per Sec.354 of the IPC is made out. If that be so, the offences involved in this case would be those punishable under Sec.354 (outraging the modesty of a woman) & Sec.342 (illegal confinement) of the IPC. 10. Now it is submitted by the learned counsel for the petitioner and the learned counsel for the victim that the disputes between the parties are settled and the 2[nd] respondent has sworn to Annexure-A3 affidavit stating that she has no objection in the quashment of the impugned criminal proceedings, etc. 11. In a catena of decisions, the Apex Court has held that, in appropriate cases involving even non-compoundable offences, the High Court can quash prosecution by exercise of the powers under Sec.482 of the Cr.P.C., if the parties have really settled the whole dispute or if the continuance of the prosecution will not serve any purpose. Here, this Court finds a real case of settlement between the parties and it is also found that continuance of the prosecution in such a situation will not serve any purpose other than wasting the precious time of the court, when the case ultimately comes before the court. On a perusal of the petition and on a close scrutiny of the investigation materials on Crl.M.C No.4442 of 2020 9 record and the affidavit of settlement and taking into account the attendant facts and circumstances of this case, this Court is of the considered opinion that the legal principles laid down by the Apex Court in the cases as in _**Gian Singh** v._ _**State of Punjab**_ reported in 2013 (1) SCC (Cri) 160 = (2012) 10 SCC 303 and _**Narinder Singh and others v. State of Punjab and anr**_ . reported in (2014) 6 SCC 466, more particularly paragraph 29 thereof, could be applied in this case to consider the prayer for quashment. 12. Taking into account the totality of the facts and circumstances and taking into account the aspect that the offences disclosed in this case are those punishable under Secs.354 & 341 of the IPC, etc., this Court is inclined to take the view that the case could be considered for quashment on the ground of settlement. At the time of the incident, the petitioner was hardly at the age of 22 years and the 2[nd] respondent was then aged about 20 years, etc. 13. Taking into account the totality of the facts and circumstances of the case, it is ordered in the interest of justice that the impugned Annexure-A2 final report/charge sheet filed in Annexure-A1 First Information Report in Crime No.1388/2017 of Kuravilangad Police Station, Kottayam, which has now led to the pendency of Crl.M.C No.4442 of 2020 10 calendar case C.C.No.690/2019 on the file of the Judicial First Class Magistrate’s Court, Pala, as against the petitioner/accused and all further proceedings emanating therefrom, as against the petitioner/accused, will stand quashed and set aside. 14. The petitioner will produce certified copies of this order before the Investigating Officer concerned as well as the Judicial First Class Magistrate’s Court, Pala, who is dealing with C.C.No.690/2019, for necessary information. With these observations and directions, the above Crl.M.C will stand disposed of. **Sd/ALEXANDER THOMAS JUDGE** vgd Crl.M.C No.4442 of 2020 11 ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** **ANNEXURE A1 TRUE COPY OF THE FIRST INFORMATION REPROT DATED 14.12.2017. ANNEXURE A2 CERTIFIED COPY OF HE CHARGE FILED BY THE POLICE. ANNEXURE A3 THEA AFFIDAVIT FIELD BY THE 2ND RESPONDENT DEFACTO COMPLAINANT DATED 25.02.2020.**