Jharkhand High Court: In a criminal appeal challenging the judgment of conviction and sentence passed by the Additional Sessions Judge, Ghatsila, whereby the appellant was convicted under Sections 376/511 and 452, Penal Code, 1860 (IPC), for allegedly entering the prosecutrix’s house at night, attempting to commit rape upon her and committing house-trespass, and was sentenced to undergo rigorous imprisonment for 4 years under Section 376/511 IPC, a Single Judge Bench of Pradeep Kumar Srivastava, J., held that the evidence of the prosecutrix, considered in its entirety, did not disclose any specific overt act towards the commission of rape so as to attract Section 376/511 IPC.
The Court observed that there was no specific evidence regarding any attempt to commit sexual intercourse or any act sufficiently proximate to the commission of rape, while the immediate disclosures made by the prosecutrix indicated an act of assault and an attempt to outrage her modesty. The Court accordingly altered the conviction under Section 376/511 IPC to Section 354 IPC, while upholding the conviction under Section 452 IPC.
Background
The appeal arose against the judgment of conviction dated 25 July 2006 and sentence dated 28 July 2006 passed by the Additional Sessions Judge, Ghatsila in a sessions trial case, whereby the appellant had been held guilty under Section 376/511 IPC and sentenced to rigorous imprisonment for 4 years.
According to the prosecution case, on 27 December 1999 at about midnight, the informant was sleeping in her house while her mother was sleeping in an adjacent room. The appellant allegedly forcibly opened the door, entered the room with bad intention, overlapped upon her body, raised her clothes and attempted to commit rape. She raised an alarm and forcibly removed him from her body. Her mother came to the room and the appellant fled. Neighbours thereafter arrived and the occurrence was disclosed to them. The informant’s brother returned on 30 December 1999, following which the written report was given to the police on 31 December 1999.
On the basis of the written report, a case was registered under Sections 376/511 and 452 IPC. After investigation, charge-sheet was submitted and the matter proceeded as sessions trial. The accused denied the charge and claimed trial. The prosecution examined 10 witnesses and produced the formal FIR and endorsement on the fardbeyan. The defence did not adduce any evidence and pleaded denial, false implication due to political rivalry and innocence.
The appellant challenged the conviction, principally contending that non-examination of the investigating officer had caused prejudice, the evidence of the prosecutrix did not inspire confidence, there was a 4-day delay in institution of the FIR and the essential ingredients of Sections 376/511 and 452 IPC had not been proved beyond reasonable doubt. It was further submitted that, even if the prosecution case were accepted, the case at best fell under Section 354 IPC and that the sentence could be reduced to the period already undergone, stated to be about 8 months.
The State defended the conviction and sentence, submitting that the trial court had wisely appreciated and analysed the evidence and had rightly convicted the appellant.
Analysis
The Court observed that the trial court had held the appellant guilty under Sections 376/511 and 452 IPC. However, according to the Court, the statement of the victim as depicted in the FIR was simply that the accused entered the house with the intention to outrage her modesty. The Court emphasised that the prosecutrix, being the sole eyewitness, had stated nothing in specific terms as to what overt act had been committed by the appellant towards the commission of rape so that the offence could fall in the category of attempt.
The Court further observed that immediately after the occurrence, the prosecutrix complained and narrated the incident to several witnesses. However, no witness had seen the occurrence. They had only seen the accused fleeing away and the occurrence had been narrated to them by the victim.
The Court held that the evidence of the prosecutrix, when considered in its entirety, did not disclose any specific overt act on the part of the appellant which could be said to constitute an act towards the commission of rape so as to attract the ingredients of an offence punishable under Section 376/511 IPC. The Court observed that the conduct of the appellant simply showed that he had committed some act of indecent assault with the prosecutrix which was likely to outrage her modesty.
The Court also noted that the prosecutrix had stated that the appellant entered her house when she was sleeping, whereas her mother had stated that another person was also sleeping in the same room with the prosecutrix. Further, there was no specific evidence regarding any attempt on the part of the appellant to commit sexual intercourse or any act sufficiently proximate to the commission of rape.
The Court observed that the immediate disclosures made by the prosecutrix to her family members also indicated an act of assault and an attempt to outrage her modesty rather than an attempt to commit rape. The Court further found that the consistent evidence of the prosecutrix regarding the appellant having caught hold of her, coupled with the surrounding circumstances, established that the appellant had committed an assault upon the prosecutrix with the intention of outraging, or with knowledge that his act was likely to outrage, her modesty.
Decision
The Court accordingly held that the ingredients of Section 354 IPC were made out against the appellant. The conviction under Section 376/511 IPC was therefore altered and modified to the offence under Section 354 IPC, while the conviction under Section 452 IPC was upheld.
On the question of sentence, the Court observed that it was the first offence of the appellant and that he had never been convicted for any offence, as apparent from the impugned judgment. The Court further noted that more than 26 years had elapsed from the date of commission of the alleged offence. Considering the nature of the offence, the appellant’s age, character and antecedents, the Court found it expedient in the ends of justice to award him the sentence of imprisonment already undergone, i.e. about 8 months during the trial.
The Court, thus, dismissed the appeal on merits, with modification in conviction and sentence. As the appellant was on bail, the Court discharged him from the liability of the bail bond and discharged the sureties as well. Pending interlocutory applications, if any, were disposed of. The Court further directed that a copy of the judgment along with the trial court record be sent back to the court concerned.
[Kamalendu Mahto v. State of Jharkhand, Cr. Appeal (SJ) No. 1332 of 2006, decided on 31-8-2026]
Advocates who appeared in this case:
For the Appellant: Parth Jalan, Amicus Curiae, Aryan Anurag, AC to Parth Jalan
For the State: Jitendra Pandey, A.P.P.