The court modified the conviction from attempted rape to indecent assault under Section 354 IPC, affirming the need for conduct indicating an intention to commit rape beyond mere preparation.

JUDGMENT

1. The present appeal has been preferred by the appellant seeking setting aside of the judgment of conviction dated 09.03.2018, whereby the appellant was convicted for the offence punishable under Section 376 read with Section 511 IPC ; and the order on sentence dated 15.03.2018 vide which he was sentenced to undergo RI for a period of 3 ½ years along with payment of fine of Rs.2,000/-, in default whereof he would undergo SI for 6 months. The benefit under Section 428 Cr.P.C. was extended to the appellant.

2. The facts of the prosecution case, as noted by the Trial Court, are reproduced hereunder:

“2. The criminal law set into motion on the written complaint of the prosecutrix, Ex.PW1/A wherein she has stated that her parents had died during her childhood and she had been residing with her Tauji namely XXXX (elder brother of her father) and she hails from Assam. She further stated in her statement that two years prior to registration of present case, she came to Delhi along with her Mausi, XXXX in search of work and that her Mausi had got her employed as a maid at the house of one Ms. XXXX in the area of Saraswati Vihar, Delhi and she is still working there.

3. It is further stated in the statement that this Sunday, she had come to the house of her Mausi to live with her as her landlady along with her children had gone to out of Delhi. She further stated in the statement that while her Mausi, XXXX and Mausa Pawan had gone for work and she was alone at the house, at about 5:00 p.m. accused Deepak who resides at upper floor came there and entered the house forcibly and pinned her down on the floor of the room and laid upon her and started opening string of her Salwar and also gagged her mouth and in order to save herself, "meine uske munh pe nakhun se nauch liya aur apne daant se uska angutha bhi kaat liya" and also kicked him to push him aside. Due to which he ran away. It is further stated by prosecutrix in her statement that she somehow raised alarm and persons from the neighbourhood gathered there and they apprehend the accused and public persons handed over the accused to the police. On the basis of aforesaid statement, prosecutrix sought legal action against the accused.

4. On the basis of aforesaid hand written complaint Ex.PW1/A, FIR No.10/17 dated 13.01.2017 u/s 376151 11452 IPC was registered and accused was charge sheeted.”

3. The prosecution examined 16 witnesses in support of its case. The most material witnesses are the prosecutrix herself (PW-2), her aunt (PW-8), and the landlord of the appellant (PW-9). Dr. Azia Manzoor Bhat/PW-6 conducted the appellant‟s potency test and prepared an MLC (Ex. PW-6/A). Dr. Rakesh Solanki/PW-7 identified the signatures and handwriting of Dr. Irfan on another MLC of the appellant, which has been exhibited as Ex. PW- 3/A. PW-3, PW-10, PW-11, and PW-12 are medical witnesses who proved various endorsements on the MLC of the appellant. Dr. Farheen/PW-5 conducted the medical examination of the prosecutrix and prepared her MLC (Ex. PW-5/B). PW-13 is the learned MM who proved the prosecutrix‟s statement recorded under Section 164 Cr.P.C. Ms. Amita Raghav, Jr. Forensic/Chemical Examiner (Biology) proved the relevant FSL report (Ex. PW-15/G). The I.O. of the case, W/SI Vinita Kaushik was examined as PW-15 and deposed as to various aspects of the investigation carried out by her. The remaining witnesses are police officials whose testimonies are largely formal in nature.

4. The prosecutrix was examined as PW-2. On 15.05.2017, she deposed that she had come to live at