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No disrobing, no penetration; only nudging and putting the victim to the ground does not amount to attempt to rape
Denis Mukhim Vs State of Meghalaya
Crl.A. 5 of 2019
About/from the judgment:
The high court has held that the ingredients that are to be seen existing in an allegation of attempt to rape is that there must be firstly an intention to commit, then preparation to commit it and thirdly, to commit it.
In the present case, the victim/complainant deposed that while she was walking home, the accused, who came in a car, offered to drop her home and he went along with her on foot. While they were walking, the appellant started nudging her and on her protest that they belong to the same family clan, he replied in the negative and grabbed her on her shoulder and put her to the ground. "The victim/complainant struggled and pushed him away to which he acknowledged and released her. Thereafter, he offered to drop her again and told her that he was just testing her because a lot of girls from the village think that he was a rapist. Thereafter, he told her not to inform to anybody about what happened and the victim proceeded home."
The appellant was charged with an offence under Sections 376 and 511 of the Penal Code, 1860 and was sentenced with rigorous imprisonment for three years and six months and a fine of Rs 10,000 on default of payment of fine with rigorous imprisonment of another six months by the Trial Court.
The said decision was challenged on the ground that there was no material to indicate that the accused/appellant had any intention or attempted to commit any offence.
"The accused/appellant did not even touch inappropriately nor made any attempt on any part of the body of the alleged victim to either molest or rape the alleged victim. There was also no resistance on the part of the alleged victim nor did she raised any alarm on her part."
Before proceeding to analyse the case at hand, the High Court reminded that,
"… while deciding an appeal, the High Court has the same concurrent power to appreciate the evidence on record and by extension, to come to a conclusion whether to agree with the finding of the Trial Court or to come to another view point which may be contrary to the original verdict."
The Court relied on the Supreme Court's judgment in Koppula Venkat Rao v. State of AP, (2004) 3 SCC 602, wherein it was held that,
"In order to find an accused guilty of an attempt with intent to commit a rape, court has to be satisfied that the accused, when he laid hold of the prosecutrix, not only desired to gratify his passions upon her person, but that he intended to do so at all events, and notwithstanding any resistance on her part. Indecent assaults are often magnified into attempts at rape. In order to come to a conclusion that the conduct of the accused was indicative of a determination to gratify his passion at all events, and in spite of all resistance, materials must exist. Surrounding circumstances many times throw beacon light on that aspect."
On appreciation of the evidence and materials on record, the High Court, hence, observed that as far as the applicability of Section 376 read with Section 511 IPC, the ingredients that are to be seen existing in an allegation of attempt to rape is that there must be firstly an intention to commit, then preparation to commit it and thirdly, to commit it.
Applying the said principle to the case at hand, the Court noticed that
"… the appellant met the victim by chance and offered to drop her to her village. Even if it is assumed that he has intention to commit the crime, there is no material to prove that he has made preparation for the same and as to the third ingredient that is, attempt to commit it, the evidence on record shows that he pushed the victim to the ground from her shoulder and after the victim struggled and pushed him away, he released her."
Further, the appellant herein did not attempt to disrobe the victim and there is no indication that he tried to rape her and in the attempt, failed to do so after she raised a hue and cry.
The High Court was, of the opinion that the Trial Court has solely relied on the evidence of the victim without any corroboration with the supporting evidence, including the medical report, and failed to notice that no case under Section 376 read with Section 511 IPC could be made out against the appellant-accused as the same was not proved beyond reasonable doubt.
The Court relied on the judgment in the case of Tarkeshwar Sahu v. State of Bihar, (2006) 8 SCC 560 wherein the Supreme Court had elaborately discussed the essential ingredients of rape, and came to the conclusion that the crime committed by the accused was at the initial stage of preparation and hence, the offence committed does not come within the purview of offence punishable under Sections 376/511 IPC but the offence under Section 354 IPC was made out against the accused.
The Court, hence, acquitted the accused of the charges under Section 376 read with Section 511 IPC and took recourse to Section 222 CrPC to charge the accused under Section 354 IPC sentencing him with rigorous imprisonment of one year with fine of Rs 5000 and on default of payment of fine with rigorous imprisonment of another six months. The Court ordered that the accused/appellant will serve out the sentence which will be set off with the period of conviction already undergone.
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