Bombay HC discusses difference between attempt to rape and criminal assault

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]

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