Attempt to Rape -- Lying Upon Woman and Pressing Mouth Without Act Toward Penetration -- Does not go beyond stage of preparation -- Offence of Attempt to Rape not made out
(i) Indian Penal Code, 1860, S.376, S.511 -- Attempt to Rape -- Lying Upon Woman and Pressing Mouth Without Act Toward Penetration -- Indecent assaults are often magnified into attempts at rape, and material must exist to show a determination to gratify passion at all events and despite resistance -- Absence of evidence that the accused undressed himself or the victim, or did any act towards penetration, shows the act did not go beyond the stage of preparation and does not constitute attempt to commit rape. (ii) Code of Criminal Procedure, 1973, S.222(2) -- Conviction for Minor Offence -- Attempt to Rape Not Established -- Where facts proved reduce the offence charged to a minor offence, conviction for such minor offence is permissible even where the accused was not separately charged with it -- Act of entering a dwelling at night, extinguishing the lamp, lying upon the victim and pressing her mouth, though insufficient for attempt to rape, is sufficient to establish the offence of assault or criminal force with intent to outrage modesty. (iii) Indian Penal Code, 1860, S.354 -- Sentence -- Outraging Modesty -- Absence of criminal antecedents and prolonged period on bail without any adverse report of misuse of liberty are relevant considerations warranting reduction of substantive sentence to the period already undergone.
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