Allahabad High Court
Case BriefsHigh Courts

Allahabad High Court: In an appeal against the decision of the Trial Court whereby the accused/appellant has been convicted and sentenced to undergo imprisonment for life for the offence punishable under Section 376 of Penal Code, 1860 (IPC) with a fine of Rs. 10,000/- and in default thereof, to further undergo six months simple imprisonment, the bench of Ashwani Kumar Mishra and Shiv Shanker Prasad, JJ. has observed that the charge originally framed against the appellant of attempt to rape under Section 376/511 of Penal Code, 1860 (‘IPC’) is proved beyond reasonable doubt and the conviction of the appellant is altered from Section 376 IPC to Section 376/511 IPC and in view of the provisions contained in Section 57 IPC, the appellant was sentenced to undergo 10 years imprisonment. Further, as the appellant has already served the aforesaid sentence, he shall be released on compliance of Section 437-A Code of Criminal Procedure (CrPC). Thus, the Court sustained the order of conviction and partly allowed the present appeal.

In this case, the victim aged about 11 years went to jungle situated outside the village to collect wood, when the appellant with an evil intention grabbed the victim and dragged her inside the jungle and he attempted to rape her and threatened her to not disclose about the incident to her parents. However, the victim informed her mother about the said incident.

The Court noted that from the material placed on record, it did not appear that the statement of the victim was recorded under Section 164 of Code of Criminal Procedure, 1973 in the presence of the Magistrate and in her statement, recorded by the Police under Section 161 CrPC., she had only disclosed the offence of attempt of rape and not actual commissioning of offence of rape.

The Court observed that the complaint made orally by the informant did not contain any allegation regarding rape upon the victim. However, almost nine months after the alleged incident for the first time, the statements of the informant and the victim before the trial court contains a different story of actual commissioning of rape. Thus, these statements are not reliable or convincing.

The Court further observed that the statements of the informant and the victim about commissioning of offence of rape, appears to be clear improvement in the prosecution version, as no plausible explanation has been put forth as to why such disclosure was not made, when the first information report itself was lodged or when their statements were recorded under Section 161 CrPC. Moreover, even at the time of framing of charge such facts were not disclosed by the first informant or the victim. It further observed that “as these statements were made after nearly nine months from the date of alleged incident of commissioning of offence, therefore, does not inspire confidence of the Court”.

The Court also noted that the appellant has asserted in his statement recorded under Section 313 CrPC that he has been falsely implicated on account of enmity relating to election on the post of Village Pradhan, and the victim in her cross-examination has also admitted that her father was supporting the contestant for whom he worked, who had lost election of the said post to another contestant to whom the appellant and his family members supported.

The Court observed that “subsequent statements of the victim and the informant do not appear to be reliable, particularly when it is otherwise not supported by medical evidence”. It also observed that from the statement of the victim, coupled with the marks of injuries sustained by her and the statements of other witnesses, the charge originally framed against the appellant of attempt to rape under Section 376/511 IPC is proved beyond reasonable doubt. Thus, the Court sustained the order of conviction and released the appellant on compliance of Section 437-A CrPC, as he already served the given punishment of 10 years for attempt to rape.

[Mahesh Rathaur v. State of UP, 2022 SCC OnLine All 608, decided on 7.9.2022]


Advocates who appeared in this case :

Counsel for Appellant:- Advocate Sushil Kumar Dubey

Advocate Shivanand Mishra

Counsel for Respondent:- Government Advocate

Gauhati High Court
Case BriefsHigh Courts

Gauhati High Court: Arun Dev Choudhury, J., held that sexual offences against minor cannot be compromised by parents.

An FIR was lodged by father of the victim girl alleging that while his minor daughter was on her way home, the petitioner dragged the minor to an isolated place, attempted to molest and murder her. Consequently, a case was registered against the petitioner under Section 354A(2)/307 read with Section 18 of the POCSO Act.

When the matter was pending before the Trial Court, the family of the informant and the petitioner’s family decided to compromise so as to put to an end to the matter. On the basis of such compromise, the petitioner had approached the court for quashing the entire criminal proceeding as well as the FIR contending that since the parties had compromised the matter, it would be a futile exercise to continue with the trial.

The Bench observed that the law is by now well settled that courts can compound cases in exercise of its power under Section 320 of the CrPC and even in the cases of non-compoundable offences the High Court in exercise of its power under Section 482 CrPC can quash criminal proceeding when disputes are amicably settled and the victim is having no objection to such compromise. However, offences involving moral turpitude and grave offences like rape, murder etc. even if compromised cannot be quashed in exercise of power under Section 482 CrPC inasmuch as such offences are against the State and cannot be restricted to two individuals or groups.

Considering the above, the Bench opined that the offences alleged were grave in nature involving minor victim alleging attempt of rape, therefore such allegation and criminal proceeding could not be quashed on the basis of a compromise entered into between the families of the victim and accused inasmuch when it was a sexual offence involving a minor, the parents, opined the Bench, could not give consent on behalf of the minor to compromise such serious offences.[Limhathung v. State of Nagaland; Cr. Rev. No. 5 of 2021, decided on 24-03-2022]


Appearance by:

For the Petitioner: N Mozhui, K Kire, N Rupreo, and P. Mere, Advocates

For the Respondents: K Angami, PP


Kamini Sharma, Editorial Assistant has reported this bief.

Case BriefsSupreme Court

Supreme Court: In a case where the accused had lured minor girls aged 8 and 9, took them inside the room, closed the doors and rubbed his genitals against those of the victims, the bench of Surya Kant* and Hima Kohli, JJ has held that these acts were deliberately done with manifest intention to commit the offence of rape and were reasonably proximate to the consummation of the offence.

The Court held that since the acts of the respondent exceeded the stage beyond preparation and preceded the actual penetration, he was guilty of attempting to commit rape as punishable within the ambit and scope of Section 511 read with Section 375 IPC as it stood in force at the time of occurrence. The incident dates back to the year 2005.

Distinction between ‘Preparation’ and ‘Attempt’ to commit rape

The Court took the opportunity to lay down the distinction between ‘Preparation’ and ‘Attempt’ to commit rape and explained the three stages of commission of a crime.

  1. Mens Rea (intentio
  2. n to commit),
  3. preparation to commit it, and
  4. attempt to commit it.

If the third stage, that is, ‘attempt’ is successful, then the crime is complete. If the attempt fails, the crime is not complete, but law still punishes the person for attempting the said act.

“‘Attempt’ is punishable because even an unsuccessful commission of offence is preceded by mens rea, moral guilt, and its depraving impact on the societal values is no less than  the actual commission.”

It was further explained that the stage of ‘preparation’ consists of deliberation, devising or arranging the means or measures, which would be necessary for the commission of the offence. Whereas, an ‘attempt’ to commit the offence, starts immediately after the completion of preparation. ‘Attempt’ is the execution of mens rea after preparation. `Attempt’ starts where ‘preparation’ comes to an end, though it falls short of actual commission of the crime.

However, if the attributes are unambiguously beyond the stage of preparation, then the misdemeanours shall qualify to be termed as an ‘attempt’ to commit the principal offence and such ‘attempt’ in itself is a punishable offence in view of Section 511 IPC.

“The ‘preparation’ or ‘attempt’ to commit the offence will   be predominantly determined on evaluation of the act and conduct of an accused; and as to whether or not the incident tantamounts to transgressing the thin space between `preparation’ and ‘attempt’.”

If no overt act is attributed to the accused to commit the offence and only elementary exercise was undertaken and if such preparatory acts cause a strong inference of the likelihood of commission of the actual offence, the accused will be guilty of preparation to commit the crime, which may or may not be punishable, depending upon the intent and import of the penal laws

What amounts to rape?

A plain reading of the offence of ‘Rape’ under Section 375 IPC as it stood at the time of commission of offence in the present case shows that sexual intercourse with a woman below sixteen years, with or without her consent, amounted to ‘Rape’ and mere penetration was sufficient to prove such offence.  The expression ‘penetration’ denotes ingress of male organ into the female parts, however slight it may be.

Rulings explaining the meaning of ‘penetration’ under the unamended Penal Code which was in force at the relevant time

Aman Kumar v. State of   Haryana, (2004) 4 SCC 379

Penetration is the sine qua non for an offence of rape.  In order to constitute penetration, there must be evidence clear and cogent to prove that some part of the virile member of the accused was within the labia of the pudendum of the woman, no matter how little.

Koppula Venkat Rao vs. State of A.P, (2004) 3 SCC 602

In order to find an accused guilty of an attempt with intent to commit   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.

Madan Lal vs. State of J&K, (1997) 7 SCC 677

The difference between preparation and an attempt to commit an offence consists chiefly in the 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 stage of preparation. If an accused strips a girl naked and then making her lie flat on the ground undresses himself and then forcibly rubs his erected penis on the private parts of the girl but fails to penetrate the same into the vagina and on such rubbing ejaculates himself then it is difficult for us to hold that it was a case of merely    assault under Section 354 IPC and not an attempt to commit rape under Section 376 read with Section 511 IPC. In the facts and circumstances of the present case the offence of an attempt to commit rape by the accused has   been clearly established and the High Court rightly convicted him under Section 376 read with Section 511 IPC.

Why was the case at hand a fit case of “attempt” to rape?

There was overwhelming evidence on record to prove the respondent’s deliberate overt steps to take the minor girls inside his house; closing the door(s); undressing the victims and rubbing his genitals on those of the prosecutrices. As the victims started crying, the respondent could not succeed in his penultimate act and there was a sheer providential escape from actual penetration.

“Had the respondent succeeded in penetration, even partially, his act would have fallen within the contours of `Rape’ as it stood conservatively defined under Section 375 IPC at that time.”

[State of Madhya Pradesh v. Mahendra, 2021 SCC OnLine SC 965, decided on 25.10.2021]


Counsels:

For State: Advocate Mukul Singh

For Respondent: Advocate Praveen Chaturvedi


*Judgment by: Justice Surya Kant

Know Thy Judge | Justice Surya Kant

Jammu and Kashmir and Ladakh High Court
Case BriefsHigh Courts

Jammu and Kashmir High Court: Sanjeev Kumar, J., granted bail to the applicant in arrested in a rape case. While clarifying the distinction between an attempt to rape and preparation to attempt rape, the Bench stated,

“There is fine distinction between preparation and attempt to commit offence and the different between the two lies primary in the greater degree of determination and it is, therefore, necessary to be proved in an offence of attempt to commit rape that the accused has gone beyond the stage of preparation.”

The alleged facts of the case were that the victim, about 10 years and nine months of age had gone to the house of the applicant for buying mobile charger as he deals with mobile accessories. The allegations against the applicant were that he took the victim to the attic of the house, gave her mobile lead and thereafter gagged her mouth with a tape, took off her trousers and also removed his own trousers and made an attempt to rape her. However, in the meanwhile, younger brother of the petitioner reached the spot. It was, however, stated by the victim that she covered her legs with her shirt and the brother of the petitioner could not see her. A case for offences under Sections 376, 354, 511 IPC and Section 8 of POCSO Act was registered and the victim was subjected to medical check-up, according to which no intercourse had taken place nor was there any mark of violence on the body or any private part.

It was contended by the applicant that he had been falsely implicated in the crime, by one Rafiq Ahmed Sheikh and his family, who belong to a different sect of Islam, harbour ill will against the petitioner and had, with a view to settle scores, lodged a false and frivolous FIR and even accepting the contents of the FIR as gospel truth, no offence under Section 376/511 IPC or under Section 8 of POCSO Act was made out.

Indecent Assault v. Attempt to Rape

  1. Whether the act of the petitioner taking off the trousers of the victim as also is own trousers would amount to an attempt to rape?

In Tarkeshwar Sahu v. State of Bihar, (2006) 8 SCC 560, the Supreme Court had held that, “The point of distinction between an offence to commit rape and to commit indecent assault is that there should be some action on the part of the accused which would show that he is just going to have sexual connection with her.”

Thus, the Bench opined that there is fine distinction between preparation and attempt to commit offence and the different between the two lies primary in the greater degree of determination and it is, therefore, necessary to be proved in an offence of attempt to commit rape that the accused has gone beyond the stage of preparation. In the instant case, the petitioner had allegedly stripped the victim naked and had also taken off his trousers. This was, thus, an effort of making preparation for committing an attempt. Without there being any further act committed by the petitioner, the conclusion could not be made that the petitioner intended to commit rape or that the act attributed to the petitioner amount to an attempt to commit rape. Therefore, prima facie, Section 511 IPC would not be attracted and it could, at best, be a case of indecent assault punishable under Section 354 IPC.

  1. Whether the offence under Section 8 of POCSO Act was prima facie made out?

Section 7 of the POCSO Act defines “Sexual Assault” as:

“7. Sexual assault.—Whoever, with sexual intent touches the vagina, penis, anus or breast of the child or makes the child touch the vagina, penis, anus or breast of such person or any other person, or does any other act with sexual intent which involves physical contact without penetration is said to commit sexual assault.”

Hence, going by the statement of the victim, it was held to be abundantly clear that the act of the applicant taking off the trousers of the girl and also taking off his own trousers was an act with sexual intent, which involved physical contact without penetration and, therefore, would amount to committing sexual assault punishable under Section 8. Therefore, the Bench stated that the applicant was accused of committing indecent assault but also seem to have committed sexual assault defined under Section 7 of the POCSO Act.

 Maintainability of Successive Bail Application

On the maintainability of the successive bail application after the dismissal of the same the Trial Court, the Bench stated that under Section 439 of the CrPC, the High Court and the Court of Sessions have concurrent jurisdiction to grant bail in case a person is in custody in connection with the commission of offence of the nature specified in Section 437(3) of CrPC. Hence, if a person moves the Court of Sessions for grant of bail and his bail plea is rejected, he shall be entitled to file a fresh bail application before the High Court on the same grounds. However, while doing so, he may also point out the illegality or infirmity in the order of learned Sessions Judge rejecting his bail plea which was met by the applicant while alleging that the rejection order passed by the Trial Court was cryptic and did not dwell upon the well-established parameters to be taken into consideration while considering bail plea in non-bailable offences.

Conclusion

In the light of the above, after analyzing the statement of the victim in light of the definition of rape under Section 375 IPC, the Bench held that indisputably, the act of applicant did not, by any stretch of reasoning, amount to rape. Further noticing that the applicant was in custody since 16-12-2020 and that the investigation in the matter had been completed; the Bench opined that the purpose of arrest had been well served. Hence, the petitioner was granted bail subject to him furnishing personal bond in the amount of Rs.50,000 and two sureties of the like amount to the satisfaction of the Trial Court.[Fayaz Ahmad Dar v. UT of J&K, 2021 SCC OnLine J&K 463, decided on 12-07-2021]


Kamini Sharma, Editorial Assistant has reported this brief.


Appearance by:

For the Applicant: N.H.Kuchai, Advocate.

For UT of J&K: Asif Maqbool, Dy. AG vice and Mr. Mir Suhail, AAG

Case BriefsHigh Courts

Meghalaya High Court: W. Diengdoh, J.,  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.[Denis Mukhim v. State of Meghalaya, 2020 SCC OnLine Megh 38, decided on 04-03-2020]


Appearance made before the Court by:

For the Petitioner/Appellant(s) : Advocates C.H. Mawlong, S.R. Lyngdoh and K.S. Kharshiing

For the Respondent(s) : S. Sengupta, Addl. Sr. PP and R. Colney, GA.

Case BriefsHigh Courts

Bombay High Court: A Single Judge Bench comprising of Rohit B. Deo, J. upheld an appeal in part, that had been filed against the decision of the Assistant Sessions Judge convicting the appellant of offences under S. 363 (punishment for kidnapping) and S. 376 (punishment for rape) read with S. 511 (punishment for attempting to commit offences punishable with imprisonment for life or other imprisonment) of the Penal Code of 1860.

The appellant contended that the evidence of the child victim was inconsistent with the medical evidence and as an arguendo also stated that an offence under S. 354 (outraging the modesty of a woman) read with S. 511 might have been committed and not under S. 376. The Court accepted the arguendo put forward by the appellant and stated that the modesty of the child victim had been outraged but the evidence on record was not sufficient to prove beyond reasonable doubt that the accused had attempted to rape the child.

The Court referred to Tarkeshwar Sahu v. State of Bihar,  (2006) 8 SCC 560 wherein it was established that “for the 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.” The Court observed that as per evidence, the accused made preparation to commit the offence but there is a “dividing line between preparation and attempt” and that there was not enough evidence to prove an attempt to rape.

The test was that it must be established that the accused desired to gratify his passions, intending to do so at all events and notwithstanding any resistance on her part [Rex v. James Lloyd, 173 ER 141]. Therefore, in the absence of such evidence, the accused was acquitted of offence punishable under S. 376 read with S. 511 of the Penal Code. [Shankar v. State of Maharashtra,  2018 SCC OnLine Bom 2, order dated 04-01-2018]