The High Court of Jharkhand at Ranchi Bench has altered and modified the conviction from Section 376/511 IPC to the offence under Section 354 IPC, holding that the prosecution failed to establish any overt act on the part of the appellant that was sufficiently proximate to the commission of rape. The prosecutrix’s own testimony and her immediate disclosures to family members only spoke of being pushed/thrashed to the ground and ‘hathapai’, not of any specific attempt at sexual intercourse.
The Court held that where the prosecutrix’s own testimony and her immediate disclosures to family members only establish that the accused pushed or thrashed her to the ground with the intention to outrage her modesty, and there is no specific evidence of any overt act on the part of the accused towards the commission of sexual intercourse or any act sufficiently proximate to rape, the offence cannot be sustained under Section 376/511 IPC.
At best, the ingredients of Section 354 IPC (assault or criminal force to woman with intent to outrage her modesty) are made out. In such cases, where the accused is a first-time offender and a long period (over 22 years) has elapsed since the alleged offence, sentence limited to the period already undergone during trial meets the ends of justice, added the Court.
A Single Judge Bench of Justice Pradeep Kumar Srivastava observed that the statement of the victim as depicted in the FIR simply narrated that she was twice thrashed to the ground with the intention to outrage her modesty, but she did not state anything in specific terms as to what overt act was committed by the appellant towards the commission of rape so that the offence may fall in the category of attempt.
The Court further observed that just after the occurrence, when the prosecutrix narrated the incident to several witnesses, some of them stated that the victim disclosed that the accused committed some “hathapai” with her while she was cutting grass in her own field. The evidence of the prosecutrix, when considered in its entirety, did not disclose any specific or 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 conduct of the appellant simply showed that he had committed some act of assault with the prosecutrix, which was likely to outrage her modesty, and no overt act was committed towards the commission of rape. Therefore, at best, the offence fell under Section 354 of the IPC (assault or criminal force to woman with intent to outrage her modesty).
The Court further reasoned that the prosecutrix herself stated that the appellant twice pushed/thrashed her to the ground and thereafter she managed to escape and raised alarm, but 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 immediate disclosures made by the prosecutrix to her family members indicated an act of assault/hathapai and an attempt to outrage her modesty, rather than an attempt to commit rape.
The consistent evidence of the prosecutrix regarding the appellant having caught hold of her and pushed her to the ground, 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, thereby satisfying the ingredients of Section 354 IPC.
Briefly, case arises out of an incident alleged to have occurred on Oct 02, 2003, when the prosecutrix was cutting fodder grass in her paddy field near the Rehat in village Chorar Tola-Teliadih, District Palamau. According to the prosecution story, the prosecutrix was initially sitting and talking with her devar (brother-in-law), Santosh Uraon, when another man who was sitting alongside her devar started putting informal questions to her. After Santosh Uraon left the place, the said man allegedly rushed towards her and tried to sexually assault her by pushing her to the ground.
The prosecutrix escaped, but was again caught and pushed into her paddy field where the accused allegedly tried to commit sexual assault. She raised an alarm, the accused fled, and she immediately rushed home and narrated the incident to her gotani (husband’s sister), Sukhani Devi. In the evening, she disclosed the incident to her husband and father-in-law. Upon inquiry, her devar Santosh Uraon identified the accused as Shankar Ram of village Teliyadih. The next day, family members along with villagers went to village Teliyadih, convened a Panchayat, and upon identification of the accused by the prosecutrix, the matter was reported to Chhatarpur Police Station, leading to registration of police case, for the offence under Section 376/511 of the IPC.
After investigation and committal, the case was tried, where the Trial Court convicted the appellant Shankar Ram under Section 376/511 IPC and sentenced him to undergo rigorous imprisonment for seven years along with a fine of Rs. 1,000/- with default stipulation.
