A Single Judge Bench of Justice Sandeep Kumar was hearing an appeal against the judgment of conviction dated 29.07.2013 and order of sentence dated 01.08.2013 passed by the Additional Sessions Judge-V, Begusarai, whereby the appellant was convicted under Sections 376/511 and 448 of the IPC.

The prosecution case was that the complainant, a widow residing with her children, was sleeping in her thatched house at around 10 PM on 08.02.2010 when the appellant allegedly entered the house, extinguished the lamp, lay upon her and pressed her mouth. On her raising an alarm, villagers allegedly assembled and apprehended the appellant.

The appellant was sentenced to four years' rigorous imprisonment under Sections 376/511 IPC and six months' rigorous imprisonment under Section 448 IPC, with the sentences directed to run concurrently.

Before the High Court, the appellant contended that the prosecutrix's testimony was inconsistent and unsupported by other evidence. It was pointed out that she had admitted that her clothes were not torn, there were no injuries on her person, bed or clothes, and she had not undergone medical examination. It was also submitted that none of the villagers who allegedly apprehended the appellant had been examined.

The Court noted that the crucial question was whether the proved conduct amounted to an attempt to commit rape under Sections 376/511 IPC or an assault or use of criminal force with intent to outrage the modesty of a woman under Section 354 IPC. The Court found that the prosecutrix's testimony inspired confidence regarding the core occurrence, namely, that the appellant entered her house at night, extinguished the lamp, lay upon her and pressed her mouth to stifle her cries.

However, on the question of whether the appellant had actually attempted to commit rape, the Court found the evidence insufficient. The prosecutrix had not stated that the appellant undressed himself or her, and there was no evidence that any garment was removed or displaced or that the appellant had done any act towards penetration. The Court observed:

“In the words of the Hon'ble Supreme Court in Aman Kumar (supra), indecent assaults are often magnified into attempts at rape, and materials must exist to show a determination to gratify passion at all events and in spite of all resistance.”

The Court held that the evidence did not establish that the appellant had gone beyond the stage of preparation or performed an act which, if uninterrupted, would have resulted in the commission of rape. It accordingly held:

“Applying the aforesaid principles to the evidence on record, the act of the appellant in entering, late at night, in the dwelling house of a widow who was sleeping, extinguishing the lamp, lying upon her person and pressing her mouth is an act which is unquestionably capable of shocking the sense of decency of a woman, and the culpable intention of the appellant is manifest from the act itself and from his antecedent conduct deposed to by the prosecutrix. All the ingredients of the offence under Section 354 of the I.P.C. are, therefore, established. However, in the absence of any evidence that the appellant undressed himself or the prosecutrix, or did any act towards penetration, it cannot be held that he had gone beyond the stage of preparation and had done an act which, if not interrupted, would have resulted in the commission of rape.”

At the same time, the Court held that the appellant's conduct was sufficient to constitute an offence under Section 354 IPC. The Court noted that Section 222(2) CrPC permits conviction for a minor offence where the facts proved reduce the offence charged to such minor offence, even where the accused was not separately charged with it. The appellant was therefore convicted under Section 354 IPC as it stood prior to its amendment by Act 13 of 2013.

Considering that the occurrence had taken place in February 2010, that the appellant had no criminal antecedents and had remained on bail for more than 13 years without any adverse report regarding misuse of liberty, the Court reduced the substantive sentence to the period already undergone.

The appeal was accordingly allowed in part.

Appearance:

For the Appellant: Mr. Parithosh Parimal, Advocate; Md. Fahimuddin, Advocate

For the Respondents: Ms. Anita Kumari Singh, APP