Jharkhand HC Alters Attempt-to-Rape Conviction to Assault on Modesty, Reduces Sentence to Time Served

Justice Pradeep Kumar Srivastava found no specific overt act pointing to an attempt to commit rape, converting the conviction to Section 354 IPC and limiting the sentence to eight months already undergone.

The High Court of Jharkhand at Ranchi has altered the conviction of Kamalendu Mahto @ Khokaa from attempt to commit rape under Section 376/511 of the Indian Penal Code to assault on the modesty of a woman under Section 354 IPC. Justice Pradeep Kumar Srivastava, sitting singly, found that the evidence on record — including the prosecutrix's own testimony — disclosed an indecent assault but fell short of establishing any act sufficiently proximate to the commission of rape. The court simultaneously upheld the conviction under Section 452 IPC for house trespass. Given that the appellant had already undergone approximately eight months in custody during trial and more than 26 years had elapsed since the incident, the sentence was reduced to the period already served. The Additional Sessions Judge, Ghatsila had convicted and sentenced the appellant to four years of rigorous imprisonment in Sessions Trial Case No. 280 of 2000.

The Incident and the Case Before the Trial Court

On the night of 27 December 1999, the prosecutrix was sleeping at her residence in village Basadiha, Police Station Chakulia, District East Singhbhum. Her mother was in an adjacent room and no male member was present in the house. At around midnight, she heard the sound of her door being forcibly opened. The appellant entered her room, pulled up her saree, and attempted to commit rape on her. She raised an alarm, physically removed him from her body, and he fled. Her mother came to the room, and neighbours including Prafulla Kumar Singh, Parikshit Singh and others arrived on the commotion.

The prosecutrix's brother was away in Kharagpur. He returned on 30 December 1999, and she filed a written report with the police the next day, 31 December 1999. FIR No. 53 of 1999 was registered at Chakulia Police Station under Sections 376/511 and 452 IPC. After investigation, a charge-sheet was submitted and the matter was committed to the Court of Sessions as ST Case No. 280 of 2000.

The defence denied the occurrence and pleaded false implication on account of political rivalry. No oral or documentary evidence was led on behalf of the accused. The trial court examined ten prosecution witnesses, convicted the appellant under Section 376/511 and Section 452 IPC, and sentenced him to four years rigorous imprisonment. That judgment and order of sentence, dated 25 July 2006 and 28 July 2006 respectively, were challenged in the present criminal appeal.

Arguments Pressed by the Appellant

Mr. Parth Jalan, appearing as Amicus Curiae for the appellant, raised several grounds. The non-examination of the Investigating Officer, he argued, had caused prejudice and a failure of justice. He pointed to an admission by the mother of the prosecutrix (PW-6) during cross-examination that one Rudan Singh was also sleeping with the prosecutrix in the bedroom on the night of the incident. Despite Rudan Singh being, according to the defence, a direct eye-witness to the alleged assault, the prosecution did not examine him.

Counsel also highlighted an unexplained four-day delay in lodging the FIR, with the prosecution offering a panchayati as explanation, while PW-1, the prosecutrix's brother, stated in cross-examination that no panchayati was held. The credibility of PW-9 — the prosecutrix — when read in its entirety, the appellant submitted, did not inspire confidence and could not alone support the conviction. At most, it was argued, the conduct of the appellant brought the case within Section 354 IPC, and the sentence should be reduced to the period already undergone.

The State's Additional Public Prosecutor, Mr. Jitendra Pandey, defended the impugned judgment and urged that the trial court had correctly appreciated the evidence, making no interference warranted.

How the Court Analysed the Evidence

Justice Srivastava undertook a detailed review of the ocular testimony of all ten prosecution witnesses. PW-9, the prosecutrix, is the primary witness. She deposed that after she raised the alarm, Ananto, Prafullo, Bali, and Rudan came to the scene. She also stated that the choukidar was informed that night and that a panchayati was held in the morning — details that conflicted with PW-1's account. The court observed these contradictions but focused centrally on whether the evidence established the ingredients of an attempt to rape.

PW-2, Prafulla Kumar Singh, stated he heard the victim shouting and saw the accused fleeing from her house. PW-3, PW-4, PW-7 and PW-8 similarly deposed to seeing the accused flee and to the victim narrating the incident to them. PW-6, the mother, stated she heard the alarm, asked the victim what happened, and was told of the attempted rape; she too saw the accused flee. PW-5, the victim's uncle, heard the alarm, went towards the house, saw the accused fleeing, and tried unsuccessfully to catch him. None of these witnesses witnessed the assault itself.

The court found a significant gap between what the prosecutrix described in the FIR and what was established through her testimony. The FIR, the court observed, stated that the appellant entered the house with the intention to outrage her modesty. Her deposition did not articulate, in specific terms, any overt act sufficiently proximate to the commission of rape. Immediate disclosures she made to family and neighbours indicated an assault and an attempt to outrage modesty, rather than an attempt to commit rape.

The court also noted the inconsistency arising from PW-6's admission that Rudan Singh was sleeping with the prosecutrix in the same bedroom — a fact not addressed by the prosecution, which neither examined Rudan Singh nor explained his absence. Despite this, the court declined to disbelieve the prosecutrix's core account of the intrusion and assault.

Why Section 376/511 IPC Did Not Survive

Justice Srivastava held that an offence under Section 376/511 IPC requires proof of an act done towards the commission of rape — an act sufficiently proximate to that end. The evidence here showed that the appellant caught hold of the prosecutrix, raised her saree, and she raised an alarm and physically removed him. No witness saw the assault. The prosecutrix's own narration to those who responded to her alarm spoke to assault and an attempt to outrage modesty. The court concluded:

“The conduct of the appellant simply shows that he has committed some act of indecent assault with the prosecutrix, which may likely to outrage her modesty.”

On that analysis, the ingredients of Section 354 IPC — assault or criminal force on a woman with intent to outrage or with knowledge that it is likely to outrage her modesty — were squarely made out. The conviction under Section 376/511 IPC was accordingly altered to Section 354 IPC. The conviction under Section 452 IPC for house trespass was separately upheld without modification.

Sentence Reduced to Period Already Undergone

On the question of sentence, the court took into account three factors: this was the appellant's first offence, he had no prior conviction as disclosed by the trial court record, and more than 26 years had passed since the date of the alleged incident. Against that backdrop, the court found it expedient in the ends of justice to limit the sentence to the approximately eight months the appellant had already spent in custody during the trial. No further imprisonment was directed.

The appeal was dismissed on merits but with the modification to conviction and sentence as above. Since the appellant was on bail at the time of judgment, he was discharged from his bail bond and the sureties were also discharged.

The court acknowledged the assistance of Mr. Parth Jalan as Amicus Curiae and directed the Member Secretary, High Court Legal Services Committee, to pay him the stipulated fee as per the applicable notification within four weeks of receipt of a copy of the order.

Order

Criminal Appeal (SJ) No. 1332 of 2006 was dismissed on merits. The conviction under Section 376/511 IPC was altered to Section 354 IPC. The conviction under Section 452 IPC was upheld. The sentence was modified to the period of imprisonment already undergone, approximately eight months. The appellant, being on bail, was discharged from the bail bond; sureties were discharged. A copy of the judgment along with the trial court record was directed to be sent to the court concerned.