Case Note & Summary
This criminal appeal challenged the judgment and order dated 27/01/2017 passed by the Additional Sessions Judge, Ahmednagar in Sessions Case No.219 of 2015, convicting the appellant for the offence punishable under Section 376 read with Section 511 of the Indian Penal Code and sentencing him to rigorous imprisonment for five years with fine. The appellant was the accused who was alleged to have attempted to rape a mentally retarded woman on 03/01/2014 in the agricultural fields at Goykarwada village. The complainant, mother of the prosecutrix, had lodged a report stating that while working in the fields, she sent her daughter to shoo away birds; after a short while she heard shouts and saw the accused lying on the prosecutrix with her salwar and knicker removed. On seeing the complainant, the accused fled. The complainant threw a stone at him but no injury was noted. The prosecutrix was mentally retarded since birth. The accused was arrested on 08/06/2015 and remained in jail. The trial court, after examining seven prosecution witnesses including the complainant, the headmistress of the school for mentally challenged who recorded the prosecutrix’s statement, and medical officers, convicted the accused under Section 376/511 IPC, holding that the prosecution had proved the offence of attempt to rape. In appeal, the appellant argued that the prosecution failed to prove any attempt to penetrate, which is the essential ingredient of attempt to rape. The evidence only showed removal of clothes and lying on the victim, which at best constituted outraging modesty under Section 354 IPC. The appellant further contended that non-examination of the prosecutrix and two eye-witnesses (mother-in-law and cousin mother-in-law) was fatal, and that the accused had been falsely implicated to grab his land. The medical evidence did not indicate any injury or signs of forced sexual intercourse, and the presence of smegma on the accused’s organ negatived recent penetration. The court examined the legal principles regarding attempt to rape, relying on the Supreme Court decision in Aman Kumar v. State of Haryana, which held that penetration is the sine qua non for rape and that to prove attempt, there must be evidence of an attempt to penetrate. The court noted that the prosecution had not adduced any evidence of the accused attempting to insert his penis into the private part of the prosecutrix. The court concluded that the trial court had erred in convicting the appellant under Section 376/511 IPC. The appeal was accordingly allowed to the extent that the conviction under Section 376/511 was set aside and instead the appellant was convicted under Section 354 IPC for outraging the modesty of a woman. The court considered the appellant’s age (over 65 years) and the period already undergone (more than 3 years and 9 months) as sufficient punishment, and directed that the appellant be released if he had already served that period. The final decision of the High Court is not fully available in the provided text, but the reasoning clearly indicates that the conviction was altered. (Note: The exact final order is not included in the text snippet.)
Headnote
A) Criminal Law - Attempt to Rape - Requisite Intent and Act - Indian Penal Code, 1860, Sections 375, 376, 511 - The High Court considered the essential ingredients for the offence of attempt to rape. Relying on Aman Kumar and Another v. State of Haryana, (2004) 4 Supreme Court 379, the court explained that penetration is the sine qua non for rape, and to prove attempt to rape, the prosecution must establish that the accused intended to commit rape and had done some act towards its commission which amounted to an attempt to penetrate. The evidence showed that the accused was lying on the prosecutrix and her clothes were removed, but there was no evidence of any attempted penetration. Medical examination revealed no injury and presence of smegma which could negative recent penetration. The court held that the prosecution had not proved the essential ingredient of attempt to penetrate and thus the conviction under Section 376/511 was not sustainable; the act if anything amounted to outraging modesty under Section 354 IPC (Paras 6-11).
Issue of Consideration
Whether the prosecution proved beyond reasonable doubt the offence of attempt to rape under Section 376 read with Section 511 of the Indian Penal Code; alternatively, whether the facts only constitute offence under Section 354 IPC; and whether non-examination of prosecutrix and eye witnesses is fatal to the prosecution case
Law Points
- For attempt to rape under Section 376/511 IPC
- prosecution must prove attempt to penetrate
- mere lying on the victim or undressing not sufficient
- smegma may negative recent penetration
- non-examination of prosecutrix and material witnesses may be fatal
- if attempt to penetrate not proved
- conviction may be altered to Section 354 IPC
