Case Note & Summary
The appellant, Sitaram Sambhaji Mane, was convicted by the Additional Sessions Judge, Ahmednagar under Section 376 read with Section 511 of the Indian Penal Code, 1860 (IPC) and sentenced to five years rigorous imprisonment with fine for the attempted rape of a mentally challenged prosecutrix. The incident dated 3 January 2014 involved the prosecutrix, daughter of the complainant Sau. Vandana Satish Mane (PW1), who was mentally retarded since birth. According to the complaint, while working in the fields, the prosecutrix was sent to chase birds; shortly after, the complainant heard her cries and found the appellant lying on her, with her salwar and knicker removed. The appellant fled upon being spotted. The first information report was lodged, and the appellant was arrested on 8 June 2015. The prosecution examined seven witnesses, including the complainant, a panch, headmistress of a school for the mentally challenged (PW4), medical officers, and investigating officers. The trial court found the appellant guilty of attempt to rape and imposed the sentence. On appeal, the appellant challenged the conviction, arguing that there was no evidence of penetration or attempted penetration, no injuries on the prosecutrix or appellant, and that the prosecution failed to examine the prosecutrix herself and other independent witnesses like the complainant's mother-in-law and others who were allegedly present. The appellant further contended that the testimony of the headmistress (PW4) indicated that the prosecutrix only stated that 'Sitya' touched her clothes, not that they were removed, raising inconsistencies. The appellant also argued that the evidence at most constituted outraging modesty under Section 354 IPC and that, given his age (65 years) and the time already served (over three years and nine months), the sentence should be reduced to the period already undergone. The appellant relied on Aman Kumar v. State of Haryana (2004) 4 SCC 379 to emphasize that penetration or clear attempt at penetration is essential for the offence of rape or attempt to rape. The High Court heard the arguments but the judgment excerpt provided does not include the court's analysis, reasoning, or final decision; only the appellant's contentions and the lower court's proceedings are recorded. Consequently, the outcome of the appeal is not ascertainable from the available text.
Issue of Consideration
Whether the conviction of the appellant under Section 376 read with Section 511 of the Indian Penal Code, 1860 is sustainable given the absence of evidence of attempted penetration and the non-examination of the prosecutrix and other material witnesses, and whether the proved acts at best amount to outraging the modesty of a woman under Section 354 of the Indian Penal Code, 1860.
Law Points
- Penetration is sine qua non for offence of rape
- existence of smegma may negative possibility of recent complete penetration
- for attempt to commit rape
- must be clear evidence of attempt to penetrate
- conviction under Section 376 read with Section 511 IPC requires proof of such attempt
- mere removal of clothes and lying on prosecutrix without evidence of sexual intent may not constitute attempt to rape
- non-examination of prosecutrix and independent eye witnesses can be fatal to prosecution case.
Case Details
2019 LawText (BOM) (04) 39
Criminal Appeal No. 147 of 2018
Mr. Amol K. Gawali for the appellant, Mr. P.N. Kutti, APP for the respondent/State
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Nature of Litigation
Criminal appeal against conviction and sentence for attempt to rape under Section 376 read with Section 511 of the Indian Penal Code, 1860.
Remedy Sought
The appellant seeks acquittal or, in the alternative, alteration of conviction to Section 354 of the Indian Penal Code, 1860 and reduction of sentence to the period already undergone.
Filing Reason
The appellant was convicted by the Additional Sessions Judge, Ahmednagar in Sessions Case No. 219 of 2015 on 27 January 2017 and sentenced to five years rigorous imprisonment with fine.
Previous Decisions
The trial court held the appellant guilty of offence under Section 376 read with Section 511 of the Indian Penal Code, 1860 and sentenced him to rigorous imprisonment for five years and fine of Rs.5,000, with default simple imprisonment for one year. Set-off under Section 428 CrPC was granted.
Issues
Whether the prosecution has proved beyond reasonable doubt the attempt to commit rape as defined under Section 376 read with Section 511 of the Indian Penal Code, 1860.
Whether the non-examination of the prosecutrix and other material witnesses such as the complainant's mother-in-law and cousin mother-in-law vitiates the trial.
Whether the evidence on record at most constitutes the offence of outraging the modesty of a woman under Section 354 of the Indian Penal Code, 1860, and if so, the appropriate sentence given the period already undergone.
Submissions/Arguments
The appellant argued that there was no evidence of penetration or attempted penetration, and medical evidence showed no injuries, thus the essential ingredients of attempt to rape were missing.
The appellant contended that the prosecution failed to examine the prosecutrix herself and the other alleged eye witnesses who were present at the scene, creating a fatal gap in the case.
The appellant submitted that the testimony of PW4, the headmistress, indicated that the prosecutrix only stated that the appellant touched her clothes, not that they were removed, leading to inconsistencies with the complainant's version.
The appellant asserted that the evidence, even if accepted, only established outraging her modesty under Section 354 IPC, not attempt to rape.
In the alternative, the appellant pleaded for leniency considering his age (65 years) and the time already spent in custody, urging that the sentence be altered to the period undergone.
The appellant relied on Aman Kumar v. State of Haryana, (2004)4 Supreme Court 379, which held that penetration is the sine qua non for rape and that clear and cogent evidence of penetration is required; thus, without such evidence, conviction under Section 376/511 cannot stand.
The prosecution supported the conviction, though the details of its counter submissions are not fully recorded in the excerpt.
Judgment Excerpts
The complainant noticed that Salwar and knicker were not on the person of prosecutrix. She then worn clothes to prosecutrix.
Penetration is the sine qua non for an offence of rape. In order to constitute penetration, there must be evidence clear and cogent to prove that some part of the virile member of the accused was within the labia of the pudendum of the woman, no matter how little.
The actus reus is complete with penetration.
Procedural History
On 3 January 2014, the complainant filed FIR No. 105/2014 against the appellant under Section 376(2)(1) IPC at Karjat Police Station. After investigation and medical examination of the prosecutrix and arrest of the appellant on 8 June 2015, chargesheet was filed in the court of Judicial Magistrate First Class, Karjat, who committed the case to the Sessions Court, Ahmednagar as Sessions Case No. 219 of 2015. Charge was framed under Section 376(2)(1) IPC; the accused pleaded not guilty. The trial court examined seven prosecution witnesses and one court witness, and recorded the accused's statement under Section 313 CrPC. By judgment and order dated 27 January 2017, the Additional Sessions Judge, Ahmednagar convicted the appellant under Section 376 read with Section 511 IPC and sentenced him to five years rigorous imprisonment with fine. The appellant challenged the conviction and sentence by filing Criminal Appeal No. 147 of 2018 before the High Court. The appeal was admitted and heard finally on 26 March 2019, with judgment pronounced on 2 April 2019. The appellate judgment excerpt, however, does not include the court's analysis and final order; only the background, arguments, and a partial citation are recorded.
Acts & Sections
- Indian Penal Code, 1860: 376, 511, 376(2)(1), 354
- Code of Criminal Procedure, 1973: 428, 313
