Rajasthan High Court Modifies Attempted Rape Conviction To Outraging Modesty

 A single bench led by Justice Anoop Kumar Dhand of the Rajasthan High Court has granted relief to a man who was convicted of attempted rape by altering charges against him, noting that removing the girl's innerwear and undressing himself did not amount to an attempt to rape. [Suwalal Vs State of Rajasthan]

Background:

The complaint was filed by the grandfather of the 6-year-old girl. The complainant, namely, the grandfather of the girl alleged that his granddaughter was drinking water when a man (“accused”) came and forcefully took her into Dharamshala intending to commit rape on her. Later on, the girl (“victim”) was rescued by villagers after listening to the hue and cry raised by the victim. Accordingly, a criminal case was registered against the man under Section 376/511 of IPC.

Later on, the Sessions Court passed a judgment 03.07.1991 convicting the man under Section 376/511 of IPC and sentenced him to undergo 3 years and 6 months of imprisonment with a fine of Rs. 100. As a result, the accused approached the Rajasthan High Court to appeal against the judgment of the session court.

Accused's Contentions:

The counsel appearing for the accused charged of the offence submitted that statements made by the girl amount to no offence under Section 376/511 IPC. He submitted that as per the statement made by the girl the only allegation against the accused is that he took off the inner-wear of the girl and undressed himself.

• He further submits that there is no allegation of attempt to rape and no medical evidence to support charges against the accused.
• Lastly, he submits that the session court has passed an order in error whereby convicting the accused for the above offence.

Prosecution's Submission:

• Public Prosecutor appearing for the victim opposed the arguments of the accused and submitted that there are specific allegations against the accused that he took off the inner-wear of the victim and undressed himself.
• He also submits that there was no cross-examination of the victim conducted by the accused when statements were recorded.
• Based on this, he submitted that the offence of attempt to rape had been committed.

Court's Observations:

• The Court affirmed that no question was put forward by the accused during the cross-examination of the victim meaning that the accused has accepted the testimony of statements made by the victim.
• While examining whether any offence under Section 376/511 is made or not, the court said that the main difference between just preparing for a crime and actually trying to commit it is the level of determination to act. 

The Court referred to the Supreme Court judgment in the case of Madan Lal Vs. State of Jammu & Kashmir (1998)- “The difference between preparation and an attempt to commit an offence consists chiefly in a greater degree of determination and what is necessary to prove for an offence of an attempt to commit rape has been committed is that the accused has gone beyond the state of preparation.”

• The Court also discussed the meaning of the term “attempt” in detail. The Court said that an "attempt" to commit a crime depends on both the law and the facts of the case. The court discussed the three stages: intention to commit a crime, preparation to commit the crime, and then clear steps towards committing the crime. For an offence to be considered an attempt, the actions must clearly indicate the intent to commit the crime, beyond just preparation, and demonstrate a determined effort to carry out the offense. 

In this regard, the Court referred to the case of Rex Vs. Lloyed (1836), wherein the Court examined the act of the accused amounted to an attempt to commit rape, and subsequently accused was convicted under Section 354 of the IPC as no evidence suggested or supported the evidence to indicate any marks of violence nor clothes showed stains to lead to an offence of rape.

Similarly, the Court referred to the case of Damodar Behera Vs. State of Orissa (1996), in which Orissa High Court ruled that in cases where an individual is accused of removing the woman's saree and fleeing after witnessing some people, and there is no evidence proving the accused had sexual relations, the offence cannot be considered an attempt to commit rape to attract culpability under Section 376/511 of the IPC but it would amount to an indecent assault on a woman under section 354.

Contrarily, the Court referred to the case of Sittu Vs. State of Rajasthan (1967), in which the Court while dealing with the case for offence under Section 376/511 of the IPC held that where the girl was forcibly made naked and the accused tried to force male organ into her private parts would amount to rape and not just indecent assault.

Conclusion:

The Rajasthan High Court concluded to rule that the accused could not be proven guilty of attempting to rape under Section 376/511 of the IPC but the evidence shows a conviction for assault with intent to outrage the victim's modesty under Section 354 of the IPC. As a result, the Court modified the conviction from attempted rape to assault or criminal force on a woman with intent to outrage her modesty under Section 354 of the IPC. Further, the Court held that the accused had been in jail for about 2 and a half months in 1991 before and after conviction and therefore the accused should now not be sent to jail.

Counsel for Applicants: Ms. Anzum Parveen

Counsel for Prosecution: Mr. Suresh Kumar (Public Prosecutor)

Citation: 2024 LiveLaw (Raj) 97

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