IMPORTANT POINT
If the view taken by the trial court is a possible view, High Court ought not to interfere.
If accused is charged with rape which is not proved, it is not justified to convert it to attempt to commit rape.

JUDGMENT

Uday U. Lalit, J.

1. This appeal arises out of judgment and order dated 10.06.2008 passed by the High Court of Karnataka at Bangalore in Criminal Appeal No.1360 of 2001 setting aside the judgment and order of acquittal passed by the Ld. XXV Additional Sessions Judge, Bangalore in Sessions Case NO.62 of 1994 and convicting the appellant herein for the offences punishable under Sections 376 read with Section 511 IPC and also under Section 341 IPC.

2. Crime No.48 of 1991 was registered with Devanahalli Police Station pursuant to FIR (Ext.P-9) lodged by PW-1 victim alleging that on 06.03.1991 at about 4.00 PM while she was returning from the bus stop of their village after having sent her husband and son to sell silk cocoons at Vijayapura, the present appellant wrongfully restrained her near eucalyptus grove, gagged her mouth and despite her protest had forcible sexual intercourse with her. It was alleged that her screams attracted Muniyappa (PW-2) and Venkateshappa (PW-3) and on seeing them the appellant had run away from the spot. Upon registration of such crime PW-1 victim was sent for medical examination by Dr. Manjunath (PW-4) who however, found no signs of any sexual intercourse but found two abrasions on the forearms of PW-1 victim. The appellant was arrested and also medically examined.

3. After due investigation the charge-sheet was filed and the appellant was tried for having committed the offences punishable under Sections 376 and 341 IPC vide Sessions Case No.62 of 1994. PW-1 victim in her testimony admitted her age to be 60 years. She reiterated that she was subjected to forcible intercourse by the appellant. Muniyappa (PW-2) supported her version, but Venkateshappa (PW-3) turned hostile. It was suggested to these witnesses in their cross-examination that the appellant was related to PW-1 victim, that there were civil and criminal cases pending between the parties in support of which contention certified copies of the civil suit and criminal cases Ext. D-1 and D-2 were also filed. Dr. Manjunath (PW-4) who had medically examined PW-1 victim specifically stated that nothing was found to show that the victim was subjected to sexual intercourse. Dr. S.B. Patil (PW-5) who had examined the appellant stated the age of the appellant to be 17-18 years.

4. The learned trial court found that though PW-1 victim had stated that her sari was torn in the incident, said sari was not produced before the court, that as per PW-2 there were no eucalyptus trees in between the bus stop and the village, that though as per the version of PW-1 victim the incident lasted for about half an hour during which time she was trying to escape and had bitten the right hand of the appellant, the medical evidence did not support such assertions and that because of civil and criminal cases pending between the parties the possibility of false implication could not be ruled out. Considering the entire evidence on record learned trial court found that the prosecution had failed to establish that the appellant was guilty of the offences as alleged. The learned trial court, therefore, by its judgment and order dated 06.08.2001 acquitted the appellant of the charges leveled against him.

5. State of Karnataka carried the matter further by filing Criminal Appeal No.1360 of 2001 in the High Court of Karnataka at Bangalore. The High Court observed that in view of the evidence of Dr. Manjunath (PW-4) it was clear that the prosecution had failed to prove that the appellant had sexual intercourse with PW-1 victim. The High Court thus affirmed the acquittal of the appellant under Section 376 IPC. However after considering the evidence of PWs-1 and 2 it found that it was proved beyond doubt that the appellant had attempted to commit rape on the victim. The High Court thus convicted the appellant for the offence of attempt to commit rape under Section 376 read with Section 511 IPC and also under Section 341 IPC and sentenced him suffer rigorous imprisonment