Sunday, 8 December 2019

Whether offence of attempt to Rape is made out even if accused has not undressed himself?

The attempt to commit an offence begins when the accused
commences to do an act with the necessary intention. In the
present case, the accusedappellant
pounced upon the
complainantvictim,
sat upon her and lifted her petticoat while
the complainantvictim
protested against his advancements and
wept. The evidence of the daughter (P.W.2) also reveals that she
pleaded with the accusedappellant
to spare her mother. In the
meantime, hearing such commotion, other villagers intervened
and threatened the accused of dire consequences pursuant to
which the accused ran away from the scene of occurrence. Here,
the evidence of independent witness Sohan Lal (P.W.4) assumes
significance in corroborating the events on the date of
occurrence, wherein he has averred that at around 10:00 p.m,
he heard noise coming from the house of complainantvictim,
pursuant to which he saw the accusedappellant’s
wife holding
his neck coming out from the house of the complainantvictim.
P.W.4
had also overheard the complainantvictim
complaining

that the accusedappellant
was quarreling with her.
10. Herein, although the complainantvictim
and her daughter were
pleading with the accused to let the complainantvictim
go, the
accusedappellant
did not show any reluctance that he was
going to stop from committing the aforesaid offence. Therefore,
had there been no intervention, the accusedappellant
would
have succeeded in executing his criminal design. The conduct of
the accused in the present case is indicative of his definite
intention to commit the said offence.

NONREPORTABLE

IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 2127 OF 2009

CHAITU LAL Vs STATE OF UTTARAKHAND 

JUDGMENT
N.V. RAMANA, J.
Dated:November 20, 2019

1. The present criminal appeal arises out of the impugned order
dated 27.03.2009 passed by the High Court of Uttrakhand at
Nainital in Criminal Appeal no.144 of 2006 whereby the High
Court dismissed the appeal of the appellant and confirmed the
order dated 08.05.1992, passed by the Sessions Judge, Chamoli
in S.T. No. 36 of 1991 convicting the accused for offences under
Section 354 and Section 511 read with Section 376 IPC. The
accused was sentenced to undergo rigorous imprisonment of one



year for commission of offence under Section 354 IPC and he
was further sentenced to undergo two years Rigorous
Imprisonment and pay a fine of Rs. 200/for
commission of
offence under Section 511 read with Section 376 IPC.
2. The brief facts according to the prosecution are that the
complainantvictim
is the aunt of the accusedappellant.
The
accusedappellant
had earlier also committed indecent behavior
with the complainantvictim,
which is the subject matter of
another criminal proceeding. On 12.01.1991, the accusedappellant
after seeing the complainantvictim
alone took
advantage of the same and attempted to molest her. On the
same date at around 10:00 P.M while the complainantvictim
along with her daughters was sleeping in her house, the
accusedappellant
entered into the house of the victim in a
drunken state. While the complainantvictim
was getting up
from her bed, the accusedappellant
pounced upon her making
her fall into the bed. The accusedappellant
thereafter lifted her
petticoat, sat upon her and attempted to commit rape. Upon
hearing the noise, the daughter of the complainantvictim
(P.W.2) got up and beseeched the accusedappellant
to let go of
her mother. Upon hearing the commotion, certain other villagers

interfered, accusedappellant
ran away after threatening the
complainantvictim.
Thereafter, the complainantvictim
narrated
the entire incident to her husband, pursuant to which they
approached the Court of the CJM to file the complaint on
16.01.1991.
3. The trial court, vide order dated 08.05.1992, convicted the
accusedappellant
for offence under Section 354, pursuant to
which he was directed to undergo oneyear
rigorous
imprisonment. He was further convicted for offence under
Section 511 read with Section 376 IPC and was directed to
undergo rigorous imprisonment for two years and to pay a fine
of Rs. 200/.
Aggrieved, the accusedappellant
approached the
High Court in Criminal Appeal No. 144 of 2006. The High Court
vide impugned judgment dated 27.03.2009 dismissed the appeal
and upheld the order of conviction passed by the trial court.
Aggrieved by the aforesaid dismissal, the accusedappellant
approached this Court by way of present appeal.
4. The counsel on behalf of the accusedappellant
submitted that
accusedappellant
has been framed by the complainantvictim
pursuant to certain existing enmity. Further, it was pleaded that

the FIR was registered with a delay of 3 days and the
prosecution has failed to explain the same. Lastly, the evidence
of the witnesses does not suggest any liability for offence under
Section 511 read with Section 376 of IPC.
5. On the contrary, the counsel for the State has supported the
concurrent judgments of conviction passed against the accusedappellant.
6. Heard counsel appearing for both parties. In the present case,
the statement rendered by the complainantvictim
(P.W.1) is
corroborated by the daughter of the complainantvictim
(P.W. 2)
who is an eyewitness
to the said incident, husband of the
complainantvictim
(P.W.3) and independent witness Sohan Lal
(P.W.4). The courts below have observed that although these
witnesses were subjected to lengthy crossexamination,
they
have remained persistent in their statements and there was no
material contradiction so as to raise any doubt regarding their
credibility.
7. The statement of the complainantvictim
reveals that the
accusedappellant
had attempted to molest her on numerous
occasions. In order to attract culpability under Section 354 IPC,

the prosecution has to prove that the accused applied criminal
force on the victim with the intention of outraging her modesty.
In the case at hand, prior to the commission of the offence, the
accusedappellant
had attempted to molest the complainantvictim
on the same day itself. Later that night, the accusedappellant
forcibly entered the house of the complainantvictim
in
a drunken state, being aware about the absence of her husband.
Thereafter, the accusedappellant,
exerting criminal force,
pounced upon the complainantvictim
and forcibly lifted her
petticoat. Although, the complainantvictim
pleaded the accused
to stop considering the fact that she was his aunt; he responded
stating, it does not matter to him. The aforesaid action of the
accusedappellant
is sufficient to prove his culpability.
8. The counsel of the accusedappellant
has pleaded that the
actions of the accusedappellant
do not constitute the offence
under Section 511 read with Section 376, as the accusedappellant
had not committed any overt act such as; any attempt
to undress himself in order to commit the alleged act. This Court
in the case of Aman Kumar and Anr. v. State of Haryana,
(2004) 4 SCC 379 held that5

“11. 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…”
9. The attempt to commit an offence begins when the accused
commences to do an act with the necessary intention. In the
present case, the accusedappellant
pounced upon the
complainantvictim,
sat upon her and lifted her petticoat while
the complainantvictim
protested against his advancements and
wept. The evidence of the daughter (P.W.2) also reveals that she
pleaded with the accusedappellant
to spare her mother. In the
meantime, hearing such commotion, other villagers intervened
and threatened the accused of dire consequences pursuant to
which the accused ran away from the scene of occurrence. Here,
the evidence of independent witness Sohan Lal (P.W.4) assumes
significance in corroborating the events on the date of
occurrence, wherein he has averred that at around 10:00 p.m,
he heard noise coming from the house of complainantvictim,
pursuant to which he saw the accusedappellant’s
wife holding
his neck coming out from the house of the complainantvictim.
P.W.4
had also overheard the complainantvictim
complaining

that the accusedappellant
was quarreling with her.
10. Herein, although the complainantvictim
and her daughter were
pleading with the accused to let the complainantvictim
go, the
accusedappellant
did not show any reluctance that he was
going to stop from committing the aforesaid offence. Therefore,
had there been no intervention, the accusedappellant
would
have succeeded in executing his criminal design. The conduct of
the accused in the present case is indicative of his definite
intention to commit the said offence.
11. The counsel on behalf of the accusedappellant
placed reliance
upon the case of Tarkeshwar Sahu v. State of Bihar (Now
Jharkhand), (2006) 8 SCC 560 to claim the benefit of acquittal
for offence under Section 511 read with Section 376 of IPC. But,
on careful perusal of the aforesaid decision in the backdrop of
facts and circumstances of the present case, both the cases are
distinguishable as in the case cited above, it is clearly noted that
the accused failed at the stage of preparation of commission of
the offence itself. Whereas, in the present case before us the
distinguishing fact is the action of the accusedappellant
in

forcibly entering the house of the complainantvictim
in a
drunken state and using criminal force to lift her petticoat
despite her repeated resistance.
12. Further, the plea of the accusedappellant
regarding the delay in
registering the FIR has been duly considered by both the courts
below. It has been duly noted that the husband of the
complainantvictim
(P.W.3) was staying in Nandprayag while the
incident occurred in the remote village of Salna. Subsequent to
the incident, the complainantvictim
first travelled to meet her
husband (P.W.3). After narrating the said incident to him, she
further travelled to register a complaint before Chief Judicial
Magistrate, Chamoli, which is again far off from the place of
occurrence. Considering the aforesaid factual scenario, the delay
in registering the FIR does not affect the case of the prosecution
adversely.
13. Considering the facts and circumstances, the guilt of the
accusedappellant
has been established beyond doubt. In our
opinion, therefore, the courts below have rightly convicted and

sentenced the accused. In view of the aforesaid observations, the
appeal lacks merit and is accordingly dismissed.
..............................................J.
(N.V. RAMANA)
..............................................J.
(AJAY RASTOGI)
New Delhi;
November 20, 2019

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