The Patna High Court has ruled that lying on top of a woman and pressing her mouth, without any evidence of an overt act towards penetration, does not constitute an attempt to commit rape under Sections 376/511 of the Indian Penal Code but amounts to an offence of outraging her modesty under Section 354 IPC. The court partly allowed an appeal by Md. Ainul Haque, altering his conviction from attempted rape to outraging modesty while affirming his conviction for house trespass under Section 448 IPC. His sentence was reduced to the period already undergone, and a fine of Rs 25,000 was imposed, the entire amount to be paid as compensation to the prosecutrix.

The case arose from an incident on the night of 8 February 2010 in Begusarai district, Bihar. The complainant, a widow living with her children and working as a labourer, alleged that around 10 pm, the appellant entered her thatched house, extinguished the lamp, lay upon her and pressed her mouth to stifle her cries. When she managed to raise an alarm, villagers gathered, apprehended the appellant and assaulted him. The complainant filed a complaint in court on 10 February 2010 after the local police failed to register her case. The trial court convicted the appellant in 2013, sentencing him to four years’ rigorous imprisonment for attempted rape and six months for house trespass.

The High Court examined the evidence and found that the prosecution had established beyond reasonable doubt that the appellant entered the complainant’s house at night and was present there when the neighbours arrived. P.W.-1, a neighbour whose house adjoined the complainant’s, testified that he reached the spot on hearing her cries and found the appellant being removed from the house by villagers. The court noted that this witness was not cross-examined on the presence of the appellant, and no motive for false implication was suggested. However, on the crucial question of what the appellant did after entering, the court found the evidence lacking.

“The question is not what description the prosecutrix would give to the act, but whether the evidence establishes the overt act which the law requires for an attempt to commit rape,” Justice Sandeep Kumar observed. The court noted that the prosecutrix had initially alleged rape in her complaint but during trial deposed to an attempt. There was no evidence that the appellant had undressed himself or the woman, removed any garment, or performed any act towards penetration. Her clothes were not torn, there were no injury marks, and she did not undergo a medical examination.

The court relied on Supreme Court precedents distinguishing an attempt to commit rape from an indecent assault. In Aman Kumar v. State of Haryana (2004), the apex court held that indecent assaults are often magnified into attempts at rape, and materials must exist to show a determination to gratify passion at all events and in spite of all resistance. Applying this principle, the High Court concluded that the conduct proved—entering the house, extinguishing the lamp, lying upon the woman and pressing her mouth—clearly amounted to outraging her modesty under Section 354, but fell short of an attempt to commit rape.

“However, in the absence of any evidence that the appellant undressed himself or the prosecutrix, or did any act towards penetration, it cannot be held that he had gone beyond the stage of preparation and had done an act which, if not interrupted, would have resulted in the commission of rape,” the court stated.

The High Court also addressed the absence of a separate charge under Section 354. It held, under Section 222(2) of the Code of Criminal Procedure, that a conviction for a minor cognate offence is permissible where the facts constituting it are the same as those the accused was called upon to meet. The court found that no prejudice was caused to the appellant, as the facts were put to the witnesses and to him during his examination under Section 313 CrPC.

On the question of sentence, the court considered that the incident occurred over 16 years ago, that the appellant, now about 60 years old, had no criminal antecedents, had remained in custody for about two and a half months, and had been on bail for over 13 years without any adverse report. The substantive sentence for both offences was reduced to the period already undergone. The conviction under Section 448 IPC for house trespass was affirmed.

The court emphasised the duty to compensate the victim under Section 357 CrPC. Citing the Supreme Court’s observations in Hari Singh v. Sukhbir Singh (1988) and Ankush Shivaji Gaikwad v. State of Maharashtra (2013), it noted that the victim, a widow from the labouring class who suffered the outrage in her own home, cannot be forgotten. The fine of Rs 25,000 under Section 354 IPC, on realisation, must be paid entirely to her as compensation.

The appeal was allowed in part. The conviction and sentence under Sections 376/511 IPC, including the earlier fine of Rs 2,000, were set aside. The appellant was convicted under Section 354 IPC as it stood prior to the 2013 amendment. The fine must be deposited within eight weeks before the trial court, which shall disburse it to the prosecutrix after due identification. In default of payment, the appellant shall undergo simple imprisonment for six months. Upon deposit, his bail bonds will stand discharged.