Cognizance for attempt to commit rape can be upheld if sufficient evidence supports the allegation, even if the full offence under Section 376 is not made out.

1. The petitioner is before this Court seeking for the following relief:

"Set aside the order dated 19-06-2018 passed by the Senior Civil Judge. & J MFC Thirtahalli in CC No. 204/2016 on the application filed by the prosecution under section 323 of Cr.PC committal to the session court."

2. Respondent No.2/complainant has lodged a complaint with the Agumbe Police Station on 10.12.2014, which came to be registered in Crime No.122/2014 initially for the offences punishable under Sections 341 , 323 , 354(A) , 506 of the IPC . Subsequently, on investigation being completed, charge sheet was submitted on 19.02.2015. The learned Trial Court after examining the matter on 12.01.2015 for the offences punishable under Sections 341 , 323, 354A , 506 of the IPC , framed the charges.

3. During the examination, the application under Section 323 of the IPC was filed by the public prosecutor, alleging that the offences for attempt of rape under Section 376 read with 511 of the IPC have to be included. The Trial Court, vide order dated 13.06.2018 taking into consideration the evidence of the complainant which was recorded, was of the considered opinion that there being an allegation that the accused had caught hold of the hair, bent her neck, kicked on her back, tored her blouse, and attempted to rape her, she sustained injuries to her left thigh and right palm. Therefore, an offence for attempt to rape has been made out and cognizance was taken for the offences under Sections 376 read with Section 511 of the IPC . Aggrieved by the same, the petitioner is before this Court.

4. The contention of Smt. Sushmitha K., learned counsel for the petitioner, is that the ingredients of offence under Section 376 of the IPC has not been made out and as such, cognizance could not be taken in respect of the said offence and there is neither penetration nor any of the requirements laid down under Section 376 of the IPC .

5. Sri. B.S.Prasad, learned counsel for respondent No.2 would submit that it is not for the offence punishable under Section 376 that cognizance has been taken. Only as regards an attempt to commit rape cognizance is taken for the offences under Section 376 read with Section 511 of the IPC .

6. Having perused the papers and gone through the statement of respondent No.2 and the evidence recorded by the Trial Court, at this stage it cannot be said that the ingredients of the offence of attempt to rape are not made out.

7. Though the counsel for the petitioner would be right in submitting that an offence of rape under Section 376 of the IPC is not made out, the cognizance having been taken for an attempt and not for the actual offence of rape, I am of the considered opinion, that the same cannot be faulted with on the basis of the submission made by the counsel for the petitioner. In that view of the matter, no grounds have been made out, the petition stands dismissed.

8. All contentions are left open to be raised before the Trial Court.