Indecent assaults often magnified into attempts of rape: Calcutta High Court sets aside gang rape conviction

The Calcutta High Court recently set aside the conviction of five men on charges of gang rape and attempt to rape and instead found them guilty of assaulting a woman with intent to outrage her modesty under Section 354 of the Indian Penal Code [Sudip Sen & Ors. v State of West Bengal]..Justice Bibek Chaudhuri noted that in the present case, attempt to commit rape on the prosecutrix could not be proved, as it could not be established that the appellants had committed and taken all steps short of penetration. The Court further held,"Indecent assaults are often magnified into attempts of rape. In order to come to a conclusion that the conduct of the accused was indicative of a determination to gratify his passion at all events, and in spite of all resistance, materials must exist. Therefore, in a case of attempt to commit rape the prosecution is under obligation to prove that accused had committed and taken all step, short of penetration.".The Court was hearing a case pertaining to a 2010 incident where the prosecutrix was taken to a house by the man she was in a relationship with, on the pretext that his aunt was seriously ill. On reaching the place, her boyfriend and his friends locked her in a room, began assaulting her, disrobed her and inappropriately touched various parts of her body. It was the prosecution's case that when they attempted to rape her, the neighbours entered the house and caught the appellants red-handed.A trial court eventually convicted them under Sections 376(2)(g) [gangrape], 511[attempt to rape] and 323 [voluntary hurt] IPC and sentenced them to six years rigorous imprisonment. They then moved the High Court in appeal..Counsel for the appellants argued that the Section 164A of the Code of Criminal Procedure (CrPC) requires the prosecutrix to be examined by a registered medical practitioner employed in a government hospital. He pointed out that the woman had refused her medical examination and the accused were not examined as per the provision of Section 53A CrPC, which the trial judge had not considered. Except the uncle and the parents of the prosecutrix, nobody supported the prosecution's case, it was submitted..The Public Prosecutor submitted that the girl was in a relationship with one of the appellants and that a girl of self respect would not lead evidence to the effect that she was disrobed by the accused. He added that an unmarried girl would not come forward to depose falsely against the appellants at the cost of her chastity and womanhood..After hearing the parties, the Court noted that the facts that the prosecutrix refused a medico-legal examination on the very date of occurrence of the incident and that the prosecution failed to produce any independent witness, do not render the prosecution's case doubtful. It also agreed with the stand of the Public Prosecutor that the prosecutrix would not adduce false evidence against the accused, especially when she was in a relationship with one of them..However, it held that even as the evidence of the prosecutrix established that the accused disrobed her and touched different parts of her body with their hands and mouths, the offence of attempt to rape cannot be made out."Undoubtedly, there has been a major change in the definition of rape by the Criminal Law Amendment Act, 2018, with effect from 21st April, 2018. But at the time of commission of offence, penetration is the sine qua-non for an offence of rape.".It was held that the offence under Section 354 IPC was established beyond any shadow of doubt. On the question of sentence, the Court held,"The appellants are facing trial for last 12 years. At the time of commission of offence they were students. They passed considerable period of time in incarceration. This court is of the view that if the appellants are sentenced to suffer rigorous imprisonment for six months with fine for committing offence under Section 354 of the IPC and also rigorous imprisonment for six months with fine for committing offence under Section 323/34 IPC, the punishment shall be just, proper and sufficient.".The appellants were represented by Senior Advocate Milan Mukherjee and Advocate Biswajit Manna. The State was represented by Advocates Saibal Bapuli and Arani Bhattacharyya..[Read Judgment]