Removing woman’s salwar, pressing her chest amounts to outraging modesty, not attempt to rape: Patna HC

The Patna High Court recently held that removing a woman’s salwar and pressing her chest is not sufficient to establish the offence of attempt to rape [Himanshu Kr Pathak v. The State of Bihar]. .Justice Purnendu Singh held that if a person had removed the woman’s salwar and pressed her chest, the acts would amount to the offence of outraging a woman’s modesty and not attempt to rape, which carries a significantly higher punishment.The Court made the observation while setting aside a man’s conviction for attempt to rape..The case arose from a 2008 incident in which a woman alleged that she had accompanied her father to a photography studio in Amarpur. According to the prosecution, after taking her photograph, the studio owner asked her father to wait outside on the pretext of viewing the photograph on a computer, bolted the studio door from inside, attempted to remove her salwar and pressed her chest with the intention of committing rape. Her father rushed to the door after hearing her cries, following which the accused fled..Following an FIR and investigation, a trial court convicted the accused under Sections 376/511 (attempt to rape) and 342 (wrongful confinement) of the Indian Penal Code (IPC). He challenged the conviction before the High Court..After re-appreciating the evidence, the High Court found that there was no medical evidence on record to support the allegation of attempt to rape. It also noted that the investigating officer was not examined during trial and that the prosecution substantially rested on the testimonies of the victim and her parents..On the facts of the case, the High Court held that the prosecution had failed to establish the offence of attempt to rape. It noted that while the allegations showed that the accused had allegedly confined the woman inside the studio, attempted to remove her salwar and pressed her chest, there was no evidence of penetration or any overt act that unequivocally established an attempt to commit rape.“In the absence of any evidence of penetration, even to the slightest extent, or any overt act unequivocally constituting an attempt to commit rape, the ingredients of Section 375 IPC, and consequently Section 376 read with Section 511 IPC, are not attracted in absence of any medical corroboration.” it noted. It held that even if the prosecution case was accepted in its entirety, the allegations squarely made out the offence of outraging a woman’s modesty under Section 354 IPC.“I find that the appellant used criminal force against the victim by confining her inside the studio, closing the door, attempting to remove her salwar, and physically molesting her by pressing her chest. These acts clearly establish the use of criminal force upon a woman with the intention, or at least the knowledge, that such acts were likely to outrage her modesty.” it said. .Despite recording this finding, the Court ultimately acquitted the accused because he had been tried and convicted only for attempt to rape and wrongful confinement, and not under Section 354 IPC. It noted that the prosecution had failed to prove the charge of attempt to rape beyond reasonable doubt..Therefore, the Court set aside the conviction and sentence passed by the trial court, acquitted the accused of all charges and directed that any fine deposited by him be refunded. .[Read Judgment]