Rajasthan High Court upholds 33-year-old attempted rape case

The Jaipur bench of the Rajasthan High Court recently upheld a 33-year-old court order convicting a man of attempting to rape a minor girl, noting that the girl’s version of the incident had not been ‘shaken ‘, even though she was subjected to lengthy cross-examination by the defense.

In doing so, the High Court underlined that the girl’s statement must be seen in the light of the FSL report and that the mere fact that she had said nothing about the actual assault was not sufficient to conclude that the incident did not take place.

It was the case of the counsel for the appellant that the entire case of the prosecution was based on the solitary testimony of the minor girl, who was not a “reliable witness” as there were many contradictions in her statements.

After careful examination of the statements of the minor girl, a single judge ruled Judge Anoop Kumar Dhand however, in his order said: “This witness was cross-examined by the appellant and slight improvements and contradictions were found from her previous statements recorded by the police. A slight contradiction and improvements in her version were evident because when the incident took place on 07.02.1985 this child witness was 5 years old and when her statements were recorded on 07.06.1990 her age was 11 years. Although the statements were recorded five years and four months after the date of the incident, the evidence of this witness has not been shaken.“.

The court further confirmed that it was a settled proposition that the Court, while assessing the statement of a child witness, should take into account the vulnerability and sensitivity of the child in the imposing atmosphere of the courtroom. It was therefore noted that the child’s statement should be assessed in the light of supporting scientific evidence, i.e. FSL reports.

“The mere fact that the victim has not stated anything about the actual abuse does not therefore lead to the conclusion that it did not take place. Her statement, given her young age and vulnerabilities, must be appreciated in light of the FSL report”, the court underlines.

The Supreme Court was hearing a man’s appeal against a 1991 order of the court finding him guilty of attempting to rape the minor girl in 1985, when she was five years old. It was alleged that the suspect called the girl to his room, forcibly made her lie on the bed, undressed her, pressed his genitals against hers and then went outside. According to the FSL report, semen was found on the undergarments of both the girl and the appellant.

The High Court also noted that the defense was unable to establish why such allegations were made against the appellant by a 5-year-old child, adding that the appellant had failed to prove why he was wrongly accused booked in this case.

Furthermore, the Court assessed the difference between an attempt and mere preparation to commit a crime. Reference was made to the judgment of the Supreme Court in Madan Lal v State of J&K (1998) which held that the degree of the suspect’s act was particularly decisive in distinguishing between “preparation” and “attempt” to commit rape. The Supreme Court ruled that:

“If a suspect strips a girl naked and then makes her lie flat on the floor, undresses himself and then forcibly rubs his erect penis over the girl’s genitals but fails to penetrate it into the vagina and in such rubbing ejaculates itself, then it is It is difficult for us to hold that it was merely a case of assault under Section 354 IPC and not an attempt to rape under Section 376 read with Section 511 IPC.”

Against this backdrop, the High Court held that in the light of the available evidence, it was clear that the appellant had done whatever was necessary to “accomplish his evil desire” to rape the minor girl. Finding it to be a clear case of attempted rape, the Supreme Court declined to interfere with the trial court’s order, finding it well-reasoned and well thought out.

Accordingly, the appeal was dismissed and the appellant was ordered to surrender to the court within two weeks and serve his remaining sentence.

Quote: 2024 LiveLaw (Raj) 315

Click here to read/download the order