Patna High Court: Removing Salwar, Pressing Chest Not Attempted Rape, Lowers Charge to Molestation

The Patna High Court has ruled that attempting to remove a woman's salwar and pressing her chest does not unequivocally establish an attempt to rape, setting aside a conviction under Section 376/511 (attempt to rape) and Section 342 (wrongful confinement) of the Indian Penal Code.

Justice Purnendu Singh, in a judgment delivered on July 9, acquitted Himanshu Kumar Pathak alias Mithiya Pathak of the attempt to rape charge, holding that the prosecution had failed to prove the ingredients required for an attempt to commit rape. The court observed that even if the prosecution case were accepted in its entirety, the acts attributed to the appellant would, at best, constitute an offence under Section 354 IPC (assault or criminal force to outrage a woman's modesty).

The case dates back to January 19, 2008, when the complainant, accompanied by her father, visited Chhaya Studio in Amarpur for a photograph. According to the prosecution, the accused, who owned the studio, asked her father to remain outside on the pretext of viewing the photograph on a computer, bolted the studio door, attempted to remove the woman's salwar, undressed himself, and physically molested her. The woman raised an alarm, after which her father forced open the door, and the accused allegedly fled. An FIR was registered the next day.

The trial court in Banka had convicted Pathak in 2013, sentencing him to three years' rigorous imprisonment for attempt to rape and six months for wrongful confinement, with a fine of Rs 5,000. The sentences were to run concurrently.

On appeal, the High Court noted several procedural lapses: the investigating officer who completed the probe was not examined during the trial, and no medical officer was produced to prove any medical evidence. The court also highlighted that an independent witness turned hostile. On the merits, the court held that there was an absence of any evidence of penetration, even to the slightest extent, or any overt act unequivocally constituting an attempt to commit rape. Therefore, the ingredients of Sections 375 and 376 read with Section 511 IPC were not attracted.

The judgment stated: “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, thereby satisfying the essential ingredients of Section 354 IPC.” The court clarified that its ruling does not condone the behaviour but merely applies the legal standard for attempt to rape.

The verdict has sparked debate on the interpretation of sexual offences under Indian law. Legal experts note that Section 375 IPC defines rape, and Section 511 deals with attempts, requiring clear evidence of an intention to commit rape followed by an overt act towards its commission. The court found that the acts alleged fell short of that threshold.