Daijiworld Media Network - Patna

Patna, Oct 18: The Patna High Court has set aside a man's conviction for attempted rape, holding that entering a woman's house at night, extinguishing a lamp, lying on her and pressing her mouth to prevent her from crying out did not, by themselves, establish an attempt to commit rape in the absence of evidence of an overt act towards penetration.

Justice Sandeep Kumar partly allowed an appeal filed by the man, who was convicted of attempted rape and house trespass in connection with an incident dating back to February 2010. The court replaced his conviction under Sections 376/511 of the Indian Penal Code (IPC) with one under Section 354, which deals with assault or criminal force against a woman with the intention of outraging her modesty. However, it upheld his conviction for house trespass under Section 448 of the IPC.

The court observed that the woman's testimony was credible regarding the core incident, including the man's entry into her house at night, extinguishing the lamp, lying on her and pressing her mouth. However, it found that the evidence did not establish any further act towards the commission of rape.

Justice Kumar noted that there was no evidence that the accused had undressed himself or the woman, removed or displaced any clothing, or performed any overt act towards penetration.

“The question is not what description the prosecutrix would give to the act, but whether the evidence establishes the overt act which the law requires for an attempt to commit rape,” the court observed.

Referring to Supreme Court judgments distinguishing an attempt to commit rape from an indecent assault, the High Court said the prosecution must establish that the accused had gone beyond preparation and taken a direct step towards committing the offence.

The judge acknowledged that the acts established in the case were capable of shocking a woman's sense of decency and that the accused's culpable intention was evident from his conduct. However, the absence of evidence demonstrating an act towards penetration meant that the conviction for attempted rape could not be sustained.

According to the prosecution, the incident occurred around 10 pm on February 8, 2010, when the woman, a widow living with her children, was sleeping in her thatched house in Bihar's Begusarai district.

The accused allegedly entered the house after removing its fastened door, extinguished the oil lamp and pressed the woman's mouth when she attempted to raise an alarm. Her cries alerted villagers, who gathered at the spot and apprehended the man.

The woman later approached the court, alleging that the local police had not registered her complaint. An attempt to resolve the matter through a village panchayat had also failed, according to the prosecution.

During the trial, four witnesses were examined, including the woman and a neighbour who reached the spot after hearing her cries. Two witnesses did not support the prosecution's case and were declared hostile. Neither the investigating officer nor a medical witness was examined, and the prosecution did not produce documentary evidence.

The trial court had convicted the man under Sections 376/511 and 448 of the IPC, sentencing him to four years of rigorous imprisonment for attempted rape and six months for house trespass. The sentences were ordered to run concurrently.

The High Court partly allowed his appeal, replacing the attempted rape conviction with one under Section 354 while maintaining the house-trespass conviction. Taking into account that more than 16 years had elapsed since the incident, that the accused was around 60 years old and had no criminal antecedents, and that he had spent approximately two-and-a-half months in custody before remaining on bail for over 13 years, the court reduced the sentences for both offences to the period already undergone.

The court also imposed a fine of Rs 25,000 under Section 354 and directed that the entire amount be paid to the woman as compensation. The accused was ordered to deposit the amount within eight weeks, failing which he would face six months of simple imprisonment.

The ruling comes amid renewed scrutiny of judicial interpretations of what constitutes an attempt to rape, following an earlier Patna High Court judgment concerning alleged sexual assault that prompted the Supreme Court to take suo motu cognisance.