Undressing Victim But Failing To Commit Intercourse Due To Her Protest Amounts To Attempt To Rape: Allahabad HC

With this, a bench of Justice Rajnish Kumar upheld the conviction and 10 year jail term awarded to the convict (Pradeep Kumar @ Pappu @ Bhuriya) who forcibly kidnapped the victim, aged around 16-18 years, kept her in a house for nearly 20 days and attempted to rape her by undressing her in 2004.

The single judge noted that the prosecution had successfully established that the victim was not only kidnapped with the intent to marry and engage in sexual intercourse, but was also subjected to sexual assault amounting to attempt to rape.

Breifly put, it was the case of the prosecution that as per the victim's statements under Section 164 CrPC, she was forcibly taken by the accused in a Maruti van, was confined in a relative's house for around 20 days and during that period, the accused undressed her and tried to do 'bad work' against her will, but failed to penetrate due to her protest.

In its analysis, the Court placed reliance on several decisions of the Supreme Court including the 2009 ruling in the case of Pandharinath vs. State of Maharashtra, wherein it was held that if the accused had removed victim's clothes, it would be a case of attempt to rape.

The bench also referred to HC's judgment in the case of Israil vs. State of Uttar Pradesh to note that once preparation is complete and the accused commences an act with the intent to commit the rape, the offence of attempt is made out.

Turning towards the facts of the instant case, the court noted that the victim had stated not only in her statement under Section 164 CrPC before the Magistrate but also in evidence before the trial court that the appellant had undressed her; however, on her protest, he could not have intercourse with her.

“…it has been proved by the prosecution that the victim of the crime was forcibly kidnapped by the appellant with intention to marry and intercourse with her. He with the said motive kept her at the residence of his relative for about 20 days, where he not only outraged the modesty of the victim but also attempted rape by undressing her. However, he could not commit intercourse on account of her protest,” the bench remarked.

Furthermore, the Court rejected the appellant's argument about delay in FIR causing dent on the prosecution's case, as it noted that the delay had been properly explained.

The Court also rejected the plea of implication of the applicant on the ground of enmity, as it noted that the same could not be proved by the appellant.

Thus, the impugned judgment and order holding the accused guilty under Sections 363, 366, 376/511 and 354 IPC, was upheld, and his appeal was dismissed.

Appearances

Advocate Ashutosh Singh (Amicus) for the appellant

Additional Government Advocate Badrul Hasan for the state