Attempting To Remove Salwar & Physical Molestation Amounts To Outraging Of Modesty Of A Woman And Not Attempt To Rape: Patna High Court

The Patna High Court set aside the conviction of an accused under Section 376 read with Section 511 of the Indian Penal Code, ruling that locking a victim inside a photographic studio, attempting to remove her salwar and physically molesting her by pressing her chest did not unequivocally establish an attempt to commit rape.

The Bench observed that while the prosecution successfully proved the essential ingredients of outraging the modesty of a woman under Section 354 IPC, the total absence of any physical or overt act demonstrating a clear path toward penetration rendered the trial court's finding of attempted rape legally unsustainable.

Consequently, noting that the appellant had already undergone nearly three and a half months in judicial custody, the High Court allowed the appeal, modified the legal findings, and acquitted him of the principal sexual assault charges.

The Bench of Justice Purnendu Singh held, "I find that the appellant used criminal force against the victim by confining her inside the studio, closing the door, attempting to remove her salwar, and physically molesting her by pressing her chest. These acts clearly establish the use of criminal force upon a woman with the intention, or at least the knowledge, that such acts were likely to outrage her modesty, thereby satisfying the essential ingredients of Section 354 IPC...In light of the settled principles of law governing the distinction between an offence of attempt to commit rape and an offence of outraging the modesty of a woman, it appears that, even if the prosecution case is accepted in its entirety, the acts attributed to the appellant, as alleged in the FIR and deposed to by the victim, do not unequivocally establish the commission of an offence punishable under Section 376(1) read with Section 511 of the IPC."

Advocate Ajay Mukherjee appeared for the Appellant, while APP Abhay Kumar appeared for the State.

Brief Facts of the Case

The prosecution's case emerged from a criminal complaint lodged by the informant, who alleged that she had accompanied her father to the photographic studio owned by the accused for the purpose of getting a photograph clicked. After capturing the photograph, the accused instructed the informant’s father to step outside into the courtyard to view the preview on a computer screen.

Taking advantage of the father's absence, the accused bolted the studio door from the inside, undressed himself, and attempted to remove the informant’s lower attire with an explicit intent to commit sexual assault. Upon hearing the frantic screams of the victim from within the closed room, her father rushed to the door, forced it open, and confronted the accused, who then shoved him aside and fled the scene as a local crowd gathered.

Following an investigation, the police submitted a chargesheet, and the trial court subsequently convicted the accused for the offences of attempted rape and wrongful confinement.

Contentions of the Parties

The Appellant contended that the judgment of conviction passed by the trial court was illegal, perverse, and entirely unsustainable in law. It was argued that the prosecution failed to offer any plausible or satisfactory explanation for the delay in lodging the First Information Report.

Furthermore, the defence stressed that the entire case rested upon the testimonies of interested family witnesses without any independent ocular evidence or corroborative medical findings to substantiate the grievous allegation of attempted rape.

The State opposed the appeal, asserting that the trial court had meticulously appreciated the oral and documentary evidence on record. It was submitted that the offences committed against the victim were of an exceptionally serious nature. The State argued that the testimony of a victim of a sexual offence carries immense credibility and does not strictly require independent corroboration if it inspires the confidence of the court.

Observations of the Court

The High Court observed that the prosecution's case substantially hinged upon the sole testimony of the victim, partially supported by her father, whereas the independent local witness had turned hostile and the medical officer was never examined during the trial.

The Court noted that while a victim of a sexual offence can be treated as a "sterling witness" whose solitary evidence may invite a conviction, such testimony must be of an exceptionally high standard, consistent throughout, and free from material lacunae.

Regarding the delay in lodging the criminal complaint, the Court observed that the victim had satisfactorily explained that the local police had initially refused to register the case on the night of the incident, thereby absolving the prosecution of any fatal delay.

The Court further observed that the evidence of interested witnesses, such as the parents of the victim, must always be scrutinized with great caution and pragmatism, though it cannot be discarded merely on account of their relationship.

Upon a thorough re-appreciation of the entire evidence, the Court observed that there was a total absence of any physical or overt act that could unequivocally constitute an attempt to commit rape under the law.

It observed, "At best, the allegations disclose an act intended to outrage the modesty of the victim, thereby attracting the ingredients of Section 354 IPC. Consequently, the conviction of the appellant under Section 376 read with Section 511 IPC does not appear to be sustainable in law. The allegations proved on record, therefore, squarely fall within the ambit of Section 354 IPC. It further transpires from the record that the appellant remained in judicial custody for nearly three and a half months."

The Court held that the acts of the accused—namely, confining the victim, locking the door, and using criminal force to violate her modesty—squarely attracted the ingredients of outraging the modesty of a woman rather than an attempt to rape.

It was concluded, "In the facts and circumstances of the case, I find that in the absence of any evidence of penetration, even to the slightest extent, or any overt act unequivocally constituting an attempt to commit rape, the ingredients of Section 375 IPC, and consequently Section 376 read with Section 511 IPC, are not attracted in absence of any medical corroboration."

Consequently, the Court held that the conviction for attempted rape was legally unsustainable, set aside the impugned judgment, and allowed the criminal appeal while acquitting the appellant of the principal charges.

Cause Title: Himanshu Kr. Pathak v. State of Bihar [Criminal Appeal (SJ) No.775 of 2013]

Appearances:

Appellant: Advocate Ajay Mukherjee

Respondents: APP Abhay Kumar and Advocate Ganesh Sharma

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