Entering Woman's House At Night, Lifting Her Clothes Not Sufficient To Constitute Attempt To Rape: Jharkhand High Court

The Jharkhand High Court has held that the act of entering the prosecutrix's house at night, lifting her clothes and catching hold of her, without any specific overt act sufficiently proximate to the commission of rape, would not constitute an attempt to commit rape under Section 376/511 of the Indian Penal Code.

A Single Judge Bench of Justice Pradeep Kumar Srivastava was hearing a criminal appeal challenging the judgment of conviction and sentence dated 25.07.2006 and 28.07.2006 passed by the Additional Sessions Judge, Ghatsila in Sessions Trial Case No. 280 of 2000, whereby the appellant was convicted under Section 376/511 of the IPC and sentenced to undergo four years rigorous imprisonment.

The prosecution case was that on 27.12.1999, the prosecutrix was sleeping in her house, while her mother was sleeping in an adjacent room. At about 12:00 midnight, she heard the sound of the door being forcibly opened and the appellant entered the room with an intention to commit rape. It was alleged that the appellant lifted her saree and attempted to commit rape. The prosecutrix raised an alarm and forcibly removed him, following which her mother and neighbours arrived. The appellant fled away from the spot.

An FIR being Chakulia P.S. Case No. 53 of 1999 was registered under Sections 376/511 and 452 of the IPC. After investigation, a charge-sheet was filed and the matter was committed to the Sessions Court. During trial, 10 prosecution witnesses were examined. The defence denied the occurrence and claimed false implication due to political rivalry.

The appellant challenged the conviction recorded by the Trial Court. The defence case was that the appellant had been falsely implicated and had committed no offence.

The Court noted that the prosecutrix, examined as PW-9, had stated that at about 12:00 midnight, while she was sleeping, she heard noise from the door and saw the accused entering her room. She stated that the accused lifted her clothes and tried to commit rape upon her. However, the Court observed that although the prosecutrix had stated in the FIR that the accused entered the house with the intention to outrage her modesty, she had not stated any specific overt act committed by the appellant towards commission of rape so as to bring the offence within the category of attempt. The Court observed:

“The evidence of the prosecutrix, when considered in its entirety, does not disclose any specific overt act on the part of the appellant which can be said to constitute an act towards the commission of rape with her so as to attract the ingredients of an offence punishable under Section 376/511 of the I.P.C.”

The Court further observed that the conduct of the appellant showed that he had committed an act of indecent assault upon the prosecutrix which was likely to outrage her modesty. It noted:

“The consistent evidence of the prosecutrix regarding the appellant having caught hold of her, coupled with the surrounding circumstances, establishes that the appellant had committed an assault upon the prosecutrix with the intention of outraging or with knowledge that his act was likely to outrage, her modesty. Thus, the ingredient of Section 354 of the I.P.C. is made out against the appellant.”

The Court held that the prosecutrix had stated that the appellant entered her house when she was sleeping, whereas her mother had stated that Rudan Singh was also sleeping with the victim. The Court held that there was no specific evidence regarding any attempt to commit sexual intercourse or any act sufficiently proximate to the commission of rape.

The Court observed that the immediate disclosure made by the prosecutrix to her family members indicated an act of assault and attempt to outrage her modesty rather than an attempt to commit rape.

Accordingly, the Court altered the conviction of the appellant from Section 376/511 of the IPC to Section 354 of the IPC. The conviction under Section 452 of the IPC was upheld.

On the question of sentence, the Court noted that it was the first offence of the appellant, that he had not been convicted previously, and that more than 26 years had elapsed since the alleged offence. Considering the nature of the offence, age, character and antecedents of the appellant, the Court sentenced him to the period already undergone, which was approximately eight months during trial.

Cause Title: Kamalendu Mahto @ Khokaa v. State of Jharkhand

Case Number: Cr. Appeal (SJ) No. 1332 of 2006

Appearance:

For the Appellant: Mr. Parth Jalan, Amicus Curiae; Mr. Aryan Anurag, AC to Parth Jalan.

For the State: Mr. Jitendra Pandey, A.P.P.