Conviction For Attempted Rape Requires Proof Of An Act Sufficiently Proximate To Commission Of Rape: Jharkhand High Court

The Court was hearing a criminal appeal against a judgment of the Additional Sessions Judge, Ghatsila, convicting the appellant of attempted rape and house trespass. He had been sentenced to four years’ rigorous imprisonment for attempted rape.

A Single Bench of Justice Pradeep Kumar Srivastava observed: “… there is no specific evidence regarding any attempt on the part of the appellant to commit sexual intercourse or any act sufficiently proximate to the commission of rape. The immediate disclosures made by the prosecutrix to her family members also indicate an act of assault and an attempt to outrage her modesty, rather than an attempt to commit rape. 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.”

Amicus Curiae Parth Jalan, assisted by Advocate Aryan Anurag, appeared for the appellant. Additional Public Prosecutor Jitendra Pandey appeared for the State.

Background

The prosecution case arose from an allegation that the appellant forcibly entered the prosecutrix’s house while she was asleep at night, caught hold of her, lifted her clothes and attempted to rape her. She raised an alarm and pushed him away, following which her mother and other persons arrived and allegedly saw him fleeing.

The prosecutrix disclosed the incident to her family members and neighbours. The police subsequently registered offences of attempted rape and house trespass. The prosecution examined ten witnesses, while the defence did not adduce oral or documentary evidence. The appellant denied the allegations and claimed that he had been falsely implicated because of political rivalry.

The Trial Court found the appellant guilty. In appeal, it was argued that the investigating officer had not been examined, another person stated to have been sleeping with the prosecutrix had not been produced as a witness, and there was a delay of four days in reporting the incident. It was further contended that the evidence did not establish attempted rape and, at most, disclosed an offence under Section 354 of the IPC. The State defended the conviction.

Court’s Observations

The High Court noted that the prosecutrix was the only eyewitness to the occurrence. While several witnesses stated that they had heard her alarm and seen the appellant fleeing, none had witnessed what occurred inside the room. Their knowledge of the assault was based on the prosecutrix’s immediate disclosure.

The Court observed: “However, the statement of victim as depicted in F.I.R. is simply that the accused entered in the house with the intention to outrage her modesty, but she has stated nothing being the sole eye witness in specific terms as to what overt act was committed by the appellant towards commission of rape with her so that the offence may fall in the category of attempt. It further appears that just after the occurrence, she has complained and narrated the incident to several witnesses, but no witness has seen the occurrence, just they saw the accused fleeing away and occurrence was narrated by the victim only.”

On examining the prosecutrix’s evidence in its entirety, the Court found that it did not describe any specific act directed towards the commission of rape. The material instead established an indecent assault likely to outrage her modesty.

The Court remarked: “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 conduct of the appellant simply shows that he has committed some act of indecent assault with the prosecutrix, which may likely to outrage her modesty.”

The High Court found that the prosecutrix’s consistent evidence that the appellant had caught hold of her, considered together with the surrounding circumstances, established assault with the intention or knowledge required under Section 354 of the IPC. It accordingly modified the conviction while maintaining the conviction for house trespass.

The Court held: “Accordingly, the conviction of the appellant under Section 376/511 of the I.P.C. is altered and modify to the offence under Section 354 of the I.P.C. Conviction of the appellant for the offence under Section 452 I.P.C. is also upheld.”

While determining the sentence, the Court considered that this was the appellant’s first offence, he had no previous conviction, more than 26 years had elapsed since the occurrence, and he had spent approximately eight months in custody during the trial and after conviction.

The Court stated: “So far sentence of the appellant awarded by the learned Trial Court is concerned, it appears that it was the first offence of the appellant and he was never convicted for any offence as is apparent from the impugned judgment. Further, more than 26 years have been elapsed from the date of commission of the alleged offence, therefore, considering the nature of offence committed by the appellant, his age, character and antecedent, it appears expedient in the ends of justice to award him sentence of imprisonment already undergone by him i.e. about 8 months during the trial of the case. Therefore, he is sentenced to undergo for the period already undergone by him.”

Conclusion

The High Court dismissed the appeal on merits, subject to the modification of the conviction and sentence. It altered the attempted-rape conviction to an offence under Section 354 of the IPC, affirmed the conviction under Section 452 of the IPC and limited the sentence to the period already undergone. Since the appellant was on bail, his bail bond and sureties were discharged.

Cause Title: Kamalendu Mahto @ Khokaa v. The State of Jharkhand (Neutral Citation: 2026:JHHC:26171)

Click here to read/download Judgment