Delhi Court Upholds Non-Framing Of Attempt To Rape Charge Against Accused Who Allegedly Pushed Woman's Breasts, Tried To Untie Her 'Salwar' Knot

Additional Sessions Judge Abhishek Goyal noted that as per the complainant's statements, there was “no assertion of any penetration or even the slightest degree of penetration, digital or otherwise” to be sufficient to charge the accused of the offence of Rape or Attempt To Rape.

“…the complainant despite being educated and Doctor profession merely asserted that the complainant attempted to rape her. However, such bald allegation, in the considered opinion of this Court, does not make out even a prima facie case for the offence(s) under Section 376 IPC read with Section 511 IPC…Needless to mention that there is no allegation of performing/doing a specific act towards the commission of offence of rape by the accused, which could not be completed, but for the timely of intervention in such act” the Court noted in its 49-page order.

In this regard, the court referred to Delhi High Court's 2023 Judgment in the case of The State vs Sachin Singh & Ors to note that for the constitution of an offence of attempt to rape, the accused must have so advanced in his actions that it would have resulted into rape had some extraneous factors not intervened.

“In other words, there must be specific allegation and evidence on record to prima facie establish that accused has done an act towards commission of offence of rape as defined in section 375 IPC, but for intervention in that act. However, as aforenoted, in the instant case, no such assertion(s) is/are forthcoming under any of the statements/complaint of the complainant, even indicating to the slightest or making out even a prima facie case/strong suspicion to reach a conclusion that provisions under Section 376/511 IPC are attracted in the present case”, the court further noted as it dismissed complainant's plea claiming the MM Court ought to have framed charges for the offence of Rape or Attempt To Rape against the accused in the instant case.

With this, while upholding non-framing of an attempt to rape or rape charges against the accused, the Court also dismissed the accused plea to set aside the MM Court's order framing charge against him under Sections 354/354A/354D/451/506/323 IPC.

In its order, the Court noted that the complainant's statements, recorded under Sections 161 and 164 of the CrPC, clearly alleged that the accused repeatedly tried to contact her despite her apparent disinterest and allegedly pushed her for personal interaction, even after she expressed her lack of interest. This behaviour, the Court said, established a prima facie case under Section 354D IPC (stalking).

Additionally, the Court also factored in the complainant's accusation that the accused forcibly entered her house, assaulted her, pushed her breast, tried to untie her salwar, and threatened her with dire consequences if she disclosed the incident to anyone.

These actions, the Court added, involving non-consensual touching of private parts and the use of criminal force to outrage her modesty, fall under Sections 354 and 354A IPC (assault or criminal force to outrage modesty and sexual harassment).

The Court opined that the complainant's consistent allegations of physical assault also supported a prima facie case under Section 323 IPC (voluntarily causing hurt).

Furthermore, the Court also noted that the accused's alleged threat to defame the complainant and his alleged forcible entry into her house with the intent to commit an offence raised strong suspicions under Sections 451 IPC (house-trespass to commit an offence punishable with imprisonment) and 506 IPC (criminal intimidation).

In summary, the Court, based on the complainant's statements and the material on record, found it to be a prima facie case against him under Sections 323, 354, 354A, 354D, 451, and 506 IPC.

As already stated, the court, however, did not find it to be a case of rape or attempt to Rape. The Court was also not impressed with the contention of the complainant's counsel that since the complainant asserted that the accused “tried to pounce on her”, this allegation was sufficient to attract provisions under Section 376/511 IPC in the instant case.

The Court noted that the assertion/allegation was not related to the incident for which the FIR in this case had been lodged (for September 2016 incident), when the complainant alleged that the accused “tried to rape me”.

On the contrary, the Court found the said assertion to be general in nature, with no indication of any date, time and place of such occurrence, so as to convince of a prima facie case for framing said charges against the accused in the instant case.

In this regard, the ASJ referred to the Madhya Pradesh High Court's 1988 Judgment in the case of Premnarayan v. State of MP, wherein it was held that in order to amount to an attempt to commit an offence, the act of the accused must have proceeded beyond the stage of 'preparation'.

In this case, it was observed that if the act of the accused does not constitute anything beyond preparation and falls short of an attempt, he may escape the liability under Sections 376/511, IPC.

Against this backdrop, the Court dismissed both pleas and upheld the impugned order passed by the Trial Court.

In related news, the Allahabad High Court recently observed that grabbing the breasts of the victim, breaking the string of her pyjama and trying to drag her beneath the culvert before fleeing the spot won't come under the offence of rape or an attempt to rape.

Read more about the order here: Grabbing Breasts, Breaking Minor Victim's Pyjama String Not Attempt To Rape But Prima Facie 'Aggravated Sexual Assault': Allahabad HC