The Rajasthan High Court recently granted reprieve to a man convicted in 1991 in a sexual offence case, observing that his act of removing the six-year-old victim’s innerwear and undressing himself did not amount to attempt to rape [Suwalal vs State of Rajasthan].

Justice Anoop Kumar Dhand altered the conviction of Suwalal from attempt to rape to the one under Section 354 (assault of criminal force to woman with intent to outrage her modesty) of Indian Penal Code (IPC) and sentenced him to the period already undergone.

“Perusal of the entire statements of the prosecutrix ‘D’ (PW-2) indicates that no such attempt has been made by the appellant, by committing any of the acts, as defined under Section 375 IPC. But looking to the fact that the allegations have been levelled against the appellant, that he took-off the inner wear of the prosecutrix ‘D’ and also undressed himself, certainly, such act of the appellant does not amount to commission of offence under Section 376/511 IPC,” the Court said.

Suwalal (convict), who was 25 years old at the time of commission of offence, had remained in jail only for a total period of about 2 and a half months in 1991 before and after conviction.

Observing that it would not be proper to send him back to jail now, the Court said,

“The incident took place on 09.03.1991 and near about 33 years have passed and this period is sufficient to exhaust anybody mentally, physically and economically.”

The Court passed the decision in the appeal moved by the convict in 1991 against the Tonk Sessions Court’s decision to verdict.

He had been sentenced to undergo 3 years and six months of rigorous imprisonment.

The case dates back to March 9, 1991 when the complainant alleged that his granddaughter – aged about 6 years then – was taken away by the accused with the intention to rape. When the girl raised a hue and cry, the villagers arrived and rescued her, the complainant said.

While the counsel representing Suwalal argued that there had been no allegation of attempt to rape, the State said the allegation was specific that “he took-off the inner-wear of the prosecutrix and undressed himself as well” before she raised a hue and cry, compelling him to flee from the place.

The Court noted that the entire prosecution case was based on the sole testimony of the victim since not a single question had been put to her in cross examination.

This means the accused had accepted her testimony, the Court said.

The Court then proceeded to analyse whether such act amounts to attempt to rape. 

“For an offence to commit attempt of rape, the prosecution must establish that it has gone beyond the stage of preparation. The difference between mere preparation and actual attempt to commit an offence consists chiefly in the greater degree of determination, as has been held by the Hon’ble Apex Court in the case of Madan Lal Vs. State of Jammu & Kashmir … ,” it said.

Observing that wheat constitutes an attempt depends largely on the circumstances of the particular case, the Court said the distinction between an attempt to commit rape and to commit “indecent assault” is sometimes “very measure”.

“For the former, there should be some action on the part of the accused which would show that he is just going to have sexual connection with the prosecutrix. For an offence of an attempt to commit rape the prosecution must establish that it has gone beyond the stage of preparation. The difference between mere preparation and actual attempt to commit an offence consists chiefly in the greater degree of determination.”

It also referred to a 1996 ruling of the Orissa High Court in which it was held that “where a person alleged to have removed saree of the victim and ran away on seeing some persons and there was no material showing that accused was determined to have sexual intercourse, in all events, the offence cannot be said to be attempt to commit rape to attract culpability under Section 376/511 I.P.C. but the case is certainly one of indecent assault upon a woman.”

In this backdrop, the Court reasoned that no attempt to rape can be held to be proved in the present case.

However, the Court said the prosecution was able to prove the case of assault or use of illegal force on the victim “with an intention to outrage her modesty or with knowledge that her modesty was likely to be outraged.”

“Thus, it is a clear case of Section 354 I.P.C. as the act of present accused has not proceeded beyond the stage of preparation,” it concluded while modifying the trial court decision.