The Patna High Court has held that lying on a woman and covering her mouth, in the absence of any act directed towards penetration, does not amount to an attempt to commit rape if the evidence fails to establish that the accused had moved beyond the stage of preparation, Live Law reported.
The ruling came from a single-judge bench of Justice Sandeep Kumar, which heard a challenge to the judgment of conviction dated July 29, 2013, and the sentencing order dated August 1, 2013.
The complainant, a widow staying with her children, was asleep in her house at 10 am on February 8, 2010, when the appellant, a man, allegedly entered the premises, put out the lamp, lay on top of her and covered her mouth, according to the prosecution cited in the Live Law's report. Upon hearing the cries for help, the villagers gathered at the spot and caught hold of the man, it added.
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Man sentenced to 4 years imprisonment
The man was then sentenced to four years of jail under Sections 376/511 IPC and then six months imprisonment under Section 448 IPC. The sentences were supposed to run concurrently.
The man argued that the woman’s account had inconsistencies and lacked corroboration. The defence further stated that the villagers said to have caught the man had not been examined.
The court focused on whether the established facts amounted to an attempt to commit rape, punishable under Sections 376/511 IPC or instead attracted Section 354 IPC, which deals with assault or criminal force intended to outrage the modesty of a woman.
The court found the evidence insufficient to say whether the man attempted to rape the woman.
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“In the words of the Hon'ble Supreme Court in Aman Kumar (supra), indecent assaults are often magnified into attempts at rape, and materials must exist to show a determination to gratify passion at all events and in spite of all resistance,” the court observed, as quoted by Live Law.
It further said that the evidence was insufficient to show that the man had crossed the preparatory stage or undertaken any act that would have culminated in the commission of rape.
‘Cannot be held that man had gone beyond the stage of preparation, done an act’
“However, in the absence of any evidence that the appellant undressed himself or the prosecutrix, or did any act towards penetration, it cannot be held that he had gone beyond the stage of preparation and had done an act which, if not interrupted, would have resulted in the commission of rape,” the court said.
Noting that the time that had passed since the incident in February 2010, the absence of any prior criminal record or the man’s conduct while on bail for over 13 years, during which no misuse of liberty was reported, the Court modified the sentence and limited it to a period already served.