SWAPAN SEN vs STATE OF WEST BENGAL
- Court
- Calcutta High Court
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IN THE HIGH COURT AT CALCUTTA
CRIMINAL APPELLATE JURISDICTION
APPELLATE SIDE
Present:
The Hon’ble Justice Ananya Bandyopadhyay
C.R.A. 123 of 2010
Swapan Sen
-Vs-
The State of West Bengal
For the Appellant : Mr. Smartajit Sarkar
For the State : Ms. Faria Hossain
Mr. Anand Keshari
Judgment on : 06.05.2026
AnanyaBandyopadhyay, J.:-
1. This appeal is directed against an order of conviction and judgment dated
17.02.2010 and 18.02.2010 passed by the Learned Judge, Special Court
(E.C. Act-cum Additional Sessions Judge), Hooghly in Sessions Trial No.16 of
2005 arising out of Sessions Case No.49 of 2005, thereby convicting the
appellant under Sections 366, 342, 376 read with Section 511 of the Indian
Penal Code and sentencing him to suffer rigorous imprisonment for 7 years
and to pay a fine of Rs.5,000/- in default to suffer rigorous imprisonment for
6 months more for the offence under Section 366 of the Indian Penal Code
and also suffer rigorous imprisonment for 1 year and to pay a fine of
Rs.1,000/- in default to suffer rigorous imprisonment for 2 months more for
the offence under Section 342 of the Indian Penal Code and also suffer
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rigorous imprisonment for 7 years and to pay a fine of Rs.10,000/- in default
to suffer rigorous imprisonment for 1 year more for the offence under Section
376 read with Section 511 of the Indian Penal Code and all the sentences
were run concurrently.
2. The prosecution case precisely stated on 03.10.2003, the appellant
dishonestly and deceitfully induced the victim girl to accompany him on the
false pretext of attending Durga Puja, thereby taking her away without her
consent from the lawful guardianship of her grandmother. Thereafter, the
appellant wrongfully confined the victim in a rented house where he forcibly
committed rape upon her against her will and consent. After returning home,
the victim disclosed the entire incident to her grandmother, upon which the
present complaint was promptly lodged, setting the criminal law into motion.
3. On the basis of a written complaint lodged by the complainant, Chinsurah
Police Station Case No.117 of 2003 dated 05.10.2003 under Section 376 of
the Indian Penal Code was initiated for investigation.
4. Upon conclusion of the investigation, the Investigating Agency submitted a
charge-sheet being no.251 of 2003 dated 24.12.2003 against the appellant
under Section 376 of the Indian Penal Code against the appellant to which
he pleaded not guilty and claimed to be tried.
5. In order to prove its case the prosecution examined as many as 18 witnesses
and exhibited certain documents while the defence adduced none.
6. The Learned Advocate representing the appellant submitted as follows:-
i. “The incident took place on 03.10.2003 and the complaint giving rise to
the instant case was lodged on 05.10.2003 no plausible explanation
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was forthcoming for the undue delay in lodging the complaint. It was not
the case of PW-1 that thinking about the prestige of the victim girl she
had not promptly lodged the complaint. It was the specific case that on
the date itself she had informed the incident to the member of the Gram
Panchayat. On the following morning she had narrated the incident to
the members of the local club. It was on the next morning as per PW-1,
she had taken the victim girl to Dr. Nandini Kar Mazumdar for treatment
and as per her advice she lodged the complaint. It was not known as to
why inspite of so many people coming to know about the aforesaid
incident nobody lodged any complaint to the police on prior date.
ii. So far as the story of treatment being provided to the victim girl by one
Dr. Nandini Kar Mazumdar was concerned, look at the evidence of that
doctor who had been examined as PW-6, who however was declared
hostile. As per her evidence, she did not find any abnormality in the
appearance of the victim girl who had been examined as PW-7.
iii. It was the specific case of the prosecution that the appellant was known
to the victim girl. She used to call her as “Pishe Moshai”. She went out
with the appellant purportedly to visit idols in the neighboring area. The
appellant however, took her to his residence and committed sexual
assault on her. Neither at the stage of investigation nor after completion
of investigation the Investigating Officer sought to invokes the provisions
of Section 342 or for that matter Section 366 of the Indian Penal Code. It
was the Learned Judge who had framed charges against the appellant
of the aforesaid Sections and had also recorded an order of conviction
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and sentence against the appellant. The reasoning ascribed by the
Learned Judge was dehors of common sense.
iv. It was the specific case of the prosecution that the appellant had
ravished the victim girl as a result of which she was profusely bleeding
and for that reason only service of PW-1 was requisitioned by PW-9, the
father of the victim girl. During the course of the trial however, medical
evidence totally demolished the prosecution case of forceful co-
habitation of the appellant with the victim girl. In such a situation, the
Learned Judge came up with a third story which was neither the story
of the prosecution nor the story of the defence that the appellant had
made an attempt to ravish the victim girl but owing to various factors,
failed in his attempt. The reasoning ascribed by the Learned Judge with
due respect to the Learned Judge, was not tenable either in law or in
facts. The impugned order of conviction and sentence had been recorded
against the appellant was liable to be struck down on that score alone.
v. The overall assessment of the evidence by the Learned Judge was
unworthy of any credit and acceptance by a man of reasonable
prudence. Each part of the prosecution case was tainted with
meagerness of evidence or absence of satisfactory evidence. But the
Learned Judge in a very slipshod and casual manner discussed the
evidence, wherein he left the material facts aside from his consideration
and thus acted with serious illegality.
vi. The order of conviction as recorded against the appellant was based on
evidence illegally admitted and/or non-consideration of material pieces
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of evidence brought out through cross examination. The Learned Judge
acted in defiance of the sense of justice and the provisions of law by
filling up the gap in the prosecution case and by introducing imaginary
facts and conjectural circumstances.
vii. The order of conviction and sentence as recorded against the appellant
was unsustainable in law inasmuch as it had not been proved beyond
reasonable doubt on clinching and categorical evidence that the incident
had occurred on the date, at the time and at the place under the
circumstances as alleged by the prosecution.
viii. The judgment and order of conviction and sentence recorded against the
appellant as also the sentence imposed on him are bad in law, liable to
be set aside on grounds of patent violation of the mandatory procedure
of law and denial of fair trial to the appellant.”
7. The Learned Advocate representing the State submitted as follows:-
i. “The prosecution had examined eighteen (18) witnesses, including the
victim (PW-7), the grandmother and de facto complainant (PW-1), the
father of the victim (PW-9), independent witnesses, medical experts, and
the Investigating Officer. The evidence adduced by the prosecution is
complete and mutually corroborative. The testimony of the victim (PW-7)
was natural, cogent, consistent, and of sterling quality. Her deposition
remains unshaken during cross-examination and inspires full
confidence. The testimony of the victim was duly corroborated by PW-1
and PW-9 through prompt disclosure, supported by independent
witnesses, medical evidence, and the investigation conducted in a fair
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and lawful manner. The prosecution has thus proved its case beyond
reasonable doubt.
ii. It was a settled principle of law that conviction can be based solely on
the testimony of the victim if it was found reliable and trustworthy. In
the present case, the victim’s statement stands corroborated by the
surrounding circumstances and prompts disclosure.
iii. The defence contention regarding delay in lodged the F.I.R., had been
sufficiently explained by the surrounding facts and circumstances of the
case, and such delay was natural and understandable in offences of
that nature. Further, any minor discrepancies or contradictions, if at all
present, were trivial in nature and did not went to the root of the
prosecution case. The core of the prosecution story remains intact and
consistent.
iv. The medical evidence, though not decisive in cases of sexual offences
against children, supports the prosecution case and was consistent with
the allegations made. The absence of conclusive medical findings did not
negate the occurrence when the testimony of the victim was otherwise
reliable and trustworthy, and the medical evidence, read along with the
oral evidence, did not detract from the prosecution case.
v. The non-examination of certain witnesses or the hostility of some
witnesses did not weaken the prosecution case when the evidence of
the victim and other material witnesses remains reliable and
trustworthy. It was well settled that the prosecution case to be assessed
on the basis of the quality of evidence and not on the number of
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witnesses examined, and the credible evidence on record was sufficient
to sustain the case.
vi. The Learned Trial Court has carefully considered the oral and
documentary evidence on record and, upon such consideration, has
rightly held the appellant guilty. The findings arrived at by the Learned
Trial Court are supported by the evidence on record and do not suffer
from any perversity or illegality.
vii. The offence was grave and heinous in nature, involving a minor child.
Considering the nature of the offence and the circumstances in which it
was committed, no sufficient ground for leniency was made out. The
sentence imposed was commensurate with the gravity of the offence
and was just, proper, and proportionate, and did not call for
interference.
viii. The appeal was devoid of merit and fails to disclose any sustainable or
tenable ground in law or on facts. The judgment and order of the
Learned Trial Court was supported by the materials on record.
Therefore, the appeal was liable to be dismissed” .
8. The circumspection of evidence of the prosecution witnesses revealed as
follows:-
i. PW-9, the father emerges as the linchpin of the prosecution's ocular
edifice, his deposition pulsating with the raw immediacy of paternal
discovery. On the vibrant Dashami of idol immersion, he recounted
returning home to a tableau of familial disquiet: his five-year-old
daughter, fresh from the appellant's custody, huddled in visible
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agitation, her tiny frame trembling as she poured forth a spontaneous
outcry. With childlike candour, she narrated being taken to the
appellant's rented house, stripped bare, and subjected to the
appellant's lascivious violations – acts that left her private parts
aflame with a burning sensation, a visceral complaint echoing the
trauma's indelible imprint. Prompted by instinct, he parted her
garments for inspection, beholding the stark crimson redness and
tumid swelling engulfing the genital precincts, alongside a jagged bite
mark etched upon her left chest like a predator's signature – marks
alien to a child's ingenuity. He stood sentinel during the police seizure
of her soiled apparel (later marked in proceedings), his unblemished
cross-examination rendering this testimony an impregnable bastion,
mutually fortified by PW-1 and medical corroborants (Exhibits 1, 4,
7/1).
ii. PW-1, the grandmother paints the entrustment's fateful prelude, a
momentary lapse amid festive revelry. She deposed that appellant
Swapan Sen, cloaked in neighbourly familiarity, materialised at their
threshold on Dashami, coaxing her vigilance with the beguiling
promise of escorting the minor victim to behold the resplendent Durga
idol. Thus entrusted, the child vanished into his sole dominion during
the offence's shadowy interlude – a fact unchallenged, bridging
seamlessly to the distressed homecoming chronicled by PW-9 and
irrefutably tying the appellant's opportunity to the corpus delicti.
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iii. PW-1 the grandmother's testimony unfurls the complaint's genesis
with exactitude, suffused by maternal anguish. On returning home
the granddaughter accompanied by Raja Sen, son of the appellant at
about 07:00 p.m., described the physical ravages – genital erythema,
thoracic bite (echoing PW-9)—and imbibed the child's reiterated
disclosure of the appellant's depravity. At a modest tea stall, she
dictated the complaint (Exbt.-1) to PW-14 with verbatim fidelity, its
contents a mirror to the unprompted outcry. This evidence, though
initiatory, accrues weight through consonance with Exbt.-7/1
(victim's 164 statement) and the birth proof (Exbt.-4), repelling any
whisper of afterthought.
iv. PW-15 was the Gynaecologist at Chinsurah Sadar Hospital on
06.10.2003, this specialist's clinical gaze appraised the victim – a
diminutive figure of 3½ feet and 20.02 kg, emblematic of infantile
fragility. The hymen stood intact, unruptured, yet he pronounced with
forensic nuance: "exclusion of rape could not be commented upon" on
this datum alone, as assault's legal ambit transcends mere laceration.
Cross-examination elicited a masterly explication – violence's clinical
signatures vary; their evasion does not eclipse attempt under Section
376/511 of the Indian Penal Code. This pivotally tempers defence
exuberance, harmonising with PW-9's observations. PW-15 further
stated that “ attempt to sexual inter-course is also a rape but I did not
find such type of symptom of the victim ”. This report was marked as
Exbt.-5.
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v. PW-16 was the Medical Officer. His terse yet telling appraisal of the
appellant disclosed uncompromised virility: “capable of performing
intercourse”, with “sufficient stiffness” evinced—a physiological
imprimatur that dismantles incapacity pleas, dovetailing with the
entrustment (PW-1) and injuries (PW-9).
vi. PW-11 the Sanitary Inspector tendered the Hooghly-Chinsurah
Municipality's birth ledger (Exbt.-4), he etched the victim's nativity on
27.02.1998 into indelible ink—affirming her tender five years at the
offence, a demographic predicate invoking provision of POCSO Act like
severity under Indian Penal Code, unassailable amid the testimonial
matrix.
vii. PW-18 deposed as the Investigating Officer. With diary-like rigour, he
chronicled the probe's alacrity: FIR ingress and egress on the selfsame
day; peregrination to the locus in quo, yielding sketch map (Exbt.-8);
seizures of the stained bed sheet (marked as Exbt.-2), appellant's
motorcycle (marked as Exbt.-9), and laundered victim apparel
(marked as Exbt.-3). Wearing apparel of the appellant marked as
Exbt.-10. He further prayed for medical examination of the child
victim. His cross-examination laid bare the forensic hiatus—apparel
unsent to FSL post-wash – yet this investigative alacrity, unmarred by
mala fides , sustains the oral fortress against forensic penury. He
further deposed “ w itness - Kalpana Paul when examined stated to him
that the member of the club told him that his tenant Swapan Sen took
Mauparna to his house and committed rape her and he told me that he
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knew Mauparna or that he told me on the very date of incident he
found Swapan took Mauparna his house on his moter cycle or that that
she told me that Mauparna came several times at his house prior to the
incident or that he told me that his wife, two sons and Swapan to his
in-laws’ house to attend Durga puja festival.
I examined Dr. Nandini Ker Mazumder, lady gynecologist, who
stated to me that her maid servant Puspa came to her along with her
granddaughter Mauparna aged 5 years for medical examination. This
witness told that Rinku on the previous day in the afternoon went to the
father of Raja, viz. Swapan whom she called Pisemasai and he took her
to show “thakur” and he took her to his house and put his penis into
her vagina and this witness also told to me that Rinku felt burning
sensation in her vagina and this witness also stated to me that Rinku
came to her and Rinku did not feel any pain or burning sensation and
she did not examine her. This witness also told me that advised Puspa
Sarker to go to P.S. and Govt. Hospital and at that time Rinku was aged
5/6 years.
I also examined Ashoke Kumar das who told me that he was the
Secretary of Naldanga Sports & Cultural Association or that Puspa told
him that Swapan took her granddaughter to his house and committed
rape on her in absence of his wife and two sons or that this witness
told me that on the it he himself and other club members went to the
house Anup Gonguly, Member of their Anchel Pancheyet, and narrated
all the incident to him.
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I examined Purnima Das who also told me that on 03-10-2003 at 8-
30 he heard a cry from the house of Ratan Sarkar and went to see and
found Raton, his mother and his daughter were crying or that she also
told me that on 03-10-2003 the daughter of Ratan went to the house of
Swapan along with her mother Puspa in order to take Prosad and on
that day at about 3-30 p.m., accused Swapan took the daughter of
Ratan to see “thakur” but Swpan took the daughter inside his rented
house and raped her or that she knows Swapan ”.
viii. PW-17 was the Judicial Magistrate. Under Section 164 of the Code of
Criminal Procedure aegis, he transcribed the victim's tremulous
statement (Exbt.-7/1), vouchsafing procedural sanctity per superior
fiat. Cross examination probed the omission of “testing questions” on
mentation or tutoring a judicial reticence noted, but its echo in PW-
9/PW-1 disclosures preserves intrinsic credibility.
ix. PW-14 testified as the Scribe. At the humble tea stall, he inscribed
Exbt.-1 from PW-1’s lips, a mechanical scribe unaltered by artifice its
phrasing a pristine vessel for the primal complaint, shielding against
fabrication calumnies.
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9. In the case of STATE OF MADHYA PRADESH V. MAHENDRA @ GOLU the
Hon’ble Supreme Court made the following observations :-
“14. However, if the attributes are unambiguously beyond the stage of
preparation, then the misdemeanours shall qualify to be termed as an
“attempt” to commit the principal offence and such “attempt” in itself is a
punishable offence in view of Section 511IPC. The “preparation” or
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(2022) 12 SCC 442
13
“attempt” to commit the offence will be predominantly determined on
evaluation of the act and conduct of an accused; and as to whether or not
the incident tantamounts to transgressing the thin space between
“preparation” and “attempt”. If no overt act is attributed to the accused to
commit the offence and only elementary exercise was undertaken and if
such preparatory acts cause a strong inference of the likelihood of
commission of the actual offence, the accused will be guilty of preparation
to commit the crime, which may or may not be punishable, depending
upon the intent and import of the penal laws.
15. Section 511IPC is a general provision dealing with attempts to commit
offences which are not made punishable by other specific sections of the
Code and it provides, inter alia, that,
“ 511. Punishment for attempting to commit offences
punishable with imprisonment for life or other
imprisonment .— Whoever attempts to commit an offence punishable
by this Code with imprisonment for life or imprisonment, or to cause
such an offence to be committed, and in such attempt does any act
towards the commission of the offence, shall, where no express
provision is made by this Code for the punishment of such attempt,
be punished with imprisonment of any description provided for the
offence, for a term which may extend to one-half of the imprisonment
for life or, as the case may be, one-half of the longest term of
imprisonment provided for that offence, or with such fine as is
provided for the offence, or with both .”
(emphasis supplied)
16. It is extremely relevant at this stage to brush up the elementary
components of the offence of “rape” under Section 375IPC, as was in
force at the time when the occurrence took place in the instant case. The
definition of “rape”, before the 2013 Amendment, used to provide that:
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“ 375. Rape .— A man is said to commit “rape” who, except in the
case hereinafter excepted, has sexual intercourse with a woman
under circumstances falling under any of the six following
descriptions—
First.—Against her will.
Secondly.—Without her consent.
Thirdly.— *
Fourthly.— *
Fifthly.— *
Sixthly.—With or without her consent, when she is under sixteen
years of age .
Explanation.—Penetration is sufficient to constitute the sexual
intercourse necessary to the offence of rape .
Exception.—Sexual intercourse by a man with his own wife, the wife
not being under fifteen years of age, is not rape.”
(emphasis supplied)
….
18. Even prior thereto, this Court in Madan Lal v. State of J&K [Madan
Lal v. State of J&K, (1997) 7 SCC 677 : 1997 SCC (Cri) 1151] opined that
the degree of the act of an accused is notably decisive to differentiate
between “preparation” and “attempt” to commit rape. It was held thus :
(SCC p. 689, para 12)
“12. The difference between preparation and an attempt to commit
an offence consists chiefly in the greater degree of determination and
what is necessary to prove for an offence of an attempt to commit
rape has been committed is that the accused has gone beyond the
stage of preparation. If an accused strips a girl naked and then
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making her lie flat on the ground undresses himself and then
forcibly rubs his erected penis on the private parts of the girl but fails
to penetrate the same into the vagina and on such rubbing
ejaculates himself then it is difficult for us to hold that it was a case
of merely assault under Section 354IPC and not an attempt to
commit rape under Section 376 read with Section 511IPC. In the
facts and circumstances of the present case the offence of an
attempt to commit rape by the accused has been clearly established
and the High Court rightly convicted him under Section 376 read
with Section 511 IPC.”
….
20. In light of the statutory provisions as construed by this Court from
time to time in the cited decisions, let us examine whether the respondent
attempted to commit rape of the prosecutrices or there was only
preparation on his behalf?
21. We may at the outset explain that what constitutes an “attempt” is
a mixed question of law and facts. “Attempt” is the direct movement
towards the commission after the preparations are over. It is essential to
prove that the attempt was with an intent to commit the offence. An
attempt is possible even when the accused is unsuccessful in committing
the principal offence. Similarly, if the attempt to commit a crime is
accomplished, then the crime stands committed for all intents and
purposes.
22. There is overwhelming evidence on record to prove the
respondent's deliberate overt steps to take the minor girls inside his
house; closing the door(s); undressing the victims and rubbing his
genitals on those of the prosecutrices. As the victims started crying, the
respondent could not succeed in his penultimate act and there was a
sheer providential escape from actual penetration. Had the respondent
succeeded in penetration, even partially, his act would have fallen within
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the contours of “rape” as it stood conservatively defined under Section
375 IPC at that time.
….
25. In our considered opinion, the act of the respondent of luring the
minor girls, taking them inside the room, closing the doors and taking the
victims to a room with the motive of carnal knowledge, was the end of
“preparation” to commit the offence. His following action of stripping the
prosecutrices and himself, and rubbing his genitals against those of the
victims was indeed an endeavour to commit sexual intercourse. These
acts of the respondent were deliberately done with manifest intention to
commit the offence aimed and were reasonably proximate to the
consummation of the offence. Since the acts of the respondent exceeded
the stage beyond preparation and preceded the actual penetration, the
trial court rightly held him guilty of attempting to commit rape as
punishable within the ambit and scope of Section 511 read with Section
375IPC as it stood in force at the time of occurrence.”
10. The Hon’ble High Court at Calcutta, in the case of RABI SAHA vs . STATE
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OF WEST BENGAL , has made the following observations: -
“16. Section 511 states as follows:
“511. Punishment for attempting to commit offences punishable
with imprisonment for life or other imprisonment - Whoever
attempts to commit an offence punishable by this Code with
imprisonment for life or imprisonment, or to cause such an
offence to be committed, and in such attempt does any act
towards the commission of the offence, shall, where no express
provision is made by this Code for the punishment of such
attempt, be punished with imprisonment of any description
provided for the offence, for a team which may extend to one-half
of the imprisonment for life or, as the case may be, one-half of the
longest term of the offence, or with both”.
2
2023 SCC OnLine Cal 231
17
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17. In State of Madhya Pradesh v. Mahendra @ Golu the Hon'ble
Supreme Court inter alia, observed as follows:
“It is a settled preposition of Criminal Jurisprudence that in every
crime, there is first, Mens Rea (intention to commit, Secondly,
preparation to commit it, and thirdly, attempt to commit it. If the third
stage, that is, attempt is successful, then the crime is complete. If the
attempt fails, the crime is not complete, but law still punishes the
person for attempting the said act. ‘Attempt’ is punishable because
even an unsuccessful commission of offence is preceded by mens
rea, moral guilt, and its depraving impact on the societal values is no
less than the actual commission.
18. There is a visible distinction between ‘preparation’ and ‘attempt’
to commit an produced in a case. The stage of ‘preparation’ consists
of deliberation devising or arranging the means or measures which
would be necessary for the commission of the offence Whereas an
‘attempt’ to commit the offence, starts immediately after the
completion of preparation. ‘Attempt’ is the execution of mens rea
after preparation. ‘Attempt’ starts where ‘preparation’ comes to an
end, though it falls short of actual commission of the crime.
13. However, if the attributes are unambiguously beyond the stage
of preparation then the misdemeanours shall qualify to be termed as
an ‘attempt’ to commit the principal offence and such attempt in
itself is a punishable offence in view of Section 511 IPC. The
preparation or attempt to commit the offence will be predominantly
determined on evaluation of the act and conduct of an accused, and
as to whether or not the incident tantamount to transgressing the
space between preparation and attempt. If no overt act is attributed
to the accused to commit the offence and only elementary exercise
was undertaken and if such preparatory acts cause a strong guilt of
reparation to commit the crime, which may or may not be
punishable, depending upon the intent and import of the penal
laws”.
11. The Hon’ble High Court at Punjab & Haryana, in the case of SURESH VS.
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STATE OF HARYANA , has made the following observations: -
3
2007 SCC OnLine P&H 358
18
“…
16. The word “attempt” in Section 511 has been used in a very large
sense. A person commits the offence of attempt to commit a particular
offence when (i) he intends to commit that particular offence, (ii) he having
made preparation and with the intention to commit the offence does an
act towards its commission.
17. In order to find out an accused guilty of an attempt with intent to
commit a rape, Court has to be satisfied that the accused, when he laid
hold of the prosecutrix and only desire to gratify his passions upon her
person, but that he intended to do so at all events and notwithstanding
any resistance on her part. Indecent assault are often magnified into
attempts at rape. In order to come to a conclusion that the conduct of the
accused was indicative of the determination to gratify his passion at all
events and in spite of all resistance, materials must exist. As already
discussed above, the sine qua non of the offence of rape is penetration
and not ejaculation. Ejaculation without penetration constitutes an
attempt to commit rape and not actual rape. When the evidence of the
prosecutrix is considered in the proper perspective, it is clear that the
commission of actual rape has not established. However, the evidence is
sufficient to prove that attempt to commit rape was made.
18. In Madan Lal v. State of Jammu and Kashmir, 1997 (4) RCR (Crl.) 89
(SC) : 1998 Crl. L.J. 667 (Supreme Court) it was held as under:—
“The difference between preparation and an attempt to commit an
offence consist chiefly in the greater degree of determination and
what is necessary to prove an offence for an offence of an attempt to
commit rape has been committed is that the accused has gone
beyond the stage of preparation. If an accused strips a girl naked
and then making her flat on the ground undressed himself and then
forcibly rubbed his erected penis on the private part of the girl but
fails to penetrate the same into vagina and on such rubbing
ejaculates himself, then it cannot be said that it was a case of
merely assault under Section 354, IPC and not an attempt to commit
under Section 376 read with 511, I.P.C.
19. In the case of Abhayanand Mishra v. State of Bihar, AIR 1961 SC
1698, the Hon'ble Supreme Court has held as under:—
“There is a thin line between the preparation for and an attempt to
commit an offence. Undoubtedly, a culprit first intends to commit the
offence, then makes preparation for committing it and thereafter
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attempts to commit the offence. If the attempt succeeds, he has
committed the offence; if it fails due to reasons beyond his control,
he is said to have attempted to commit the offence. Attempt to
commit an offence, therefore, can be said to begin when the
preparations are complete and the culprit commences to do
something with the intention of committing the offence and which is
a step towards one commission of the offence. The moment he
commences to do an act with the necessary intention, he commences
his attempt to commit the offence.
The Supreme Court has further held about the construction of Section
511, IPC as under:—
“A person commits the offence of ‘attempt to commit a particular
offence’ when (i) he intends to commit that particular offence; and (ii)
he, having made preparation and with the intention to commit the
offence, does an act towards its commission; such an act need not
be the penultimate act towards the commission of that offence but
must be an act during the course of committing that offence.”
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12. In the case of DEEPAK KUMAR SAHU vs . STATE OF CHHATTISGARH the
Hon’ble Supreme Court made the following observations :-
“5.4.1 An attentive look at the evidence of the prosecutrix (PW-2) would
reveal that her testimony in narrating the incident and to describe what
happened with her, is natural. Even when read independently, excepting
the oral testimonies of others highlighted above, it inspires confidence
and veracity for its clarity and consistency. The contention that non-
availability of emphatic medical evidence about occurrence of physical
intercourse and absence of external injury marks make it imperative to
doubt and disregard the evidence of the prosecutrix, could hardly be
countenanced.
5.5 In cases of offences committed under Section 376, IPC, when the
story of the victim girl as told in the evidence is found credit-worthy, the
apparent insufficiency of medical evidence pitted against acceptable
testimony of the victim, the latter would prevail. In State of Punjab vs.
Gurmit Singh [(1996) 2 SCC 384] it was observed:
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2025 INSC 929
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In the absence of injury on the private part of the prosecutrix, it
cannot be concluded that the incident had not taken place or the
sexual intercourse was committed with the consent of the
prosecutrix. The prosecutrix being a small child of about nine years
of age, there could be no question of her giving consent to sexual
intercourse. The absence of injuries on the private part of the
prosecutrix can be of no consequence in the facts and circumstances
of the present case.
(Para 16)
5.5.1 In State of Himachal Pradesh vs. Manga Singh, [(2019) 16 SCC
759] , which was also a case in relation to the offence committed under
Section 376, IPC where the prosecutrix was minor girl aged 9 years, she
was staying in her aunt’s house pursuing her studies. When the offence
of rape was committed against her, she narrated the story to her teacher.
The High Court gave the benefit of doubt to the accused on the ground,
inter alia, that the medical evidence of the doctor was not conclusive to
hold that the prosecutrix was subjected to sexual intercourse.
5.5.2 This Court observed that if the evidence of the victim does not suffer
from any basic infirmities and the factor of probability does not render it
unworthy evidence, the conviction could base solely on the evidence of
the prosecutrix. It was further observed that as a general rule there is no
reason to insist on the corroboration except in certain cases, it was
stated.
5.5.3 The medical evidence may not be available in which circumstance,
solitary testimony of the prosecutrix could be sufficient to base the
conviction.
“The conviction can be sustained on the sole testimony of the
prosecutrix, if it inspires confidence. The conviction can be based
solely on the solitary evidence of the prosecutrix and no
corroboration be required unless there are compelling reasons which
necessitate the courts to insist for corroboration of her statement.
Corroboration of the testimony of the prosecutrix is not a requirement
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of law; but a guidance of prudence under the given facts and
circumstances. Minor contractions or small discrepancies should not
be a ground for throwing the evidence of the prosecutrix.”
(Para 11)
5.5.4 It may be true that in the present case the evidence of the medical
officer (PW-17) spoke about absence of external injury marks on the
genitals of the victim. However, the proposition that the corroboration
from the medical evidence is not sine qua non when the cogent evidence
of the victim is available, was reiterated in a recent judgement of this
Court in Lok Mal alias Loku vs. State of Uttar Pradesh, [(2025) 4
SCC 470] , observed:
“Merely because in the medical evidence, there are no major injury
marks, this merely cannot be a reason to discard the otherwise
reliable evidence of the prosecutrix. It is not necessary that in each
and every case where rape is alleged there has to be an injury to the
private parts of the victim and it depends on the facts and
circumstances of a particular case. We reiterate that absence of
injuries on the private parts of the victim is not always fatal to the
case of the prosecution.”
(Para 4)
5.5.5 Akin to the facts of the present case, it was stated in Lok Mal
(supra) , according to the version of the prosecutrix, that the accused
overpowered her and pushed her to bed in spite of her resistance and
gagged her mouth using a piece of cloth. Thus, considering this very
aspect, it is possible that there were no major injury marks. The appellant
made an attempt to raise the defence of false implication, however, he
was unable to support his defence by any cogent evidence.
5.5.6 The credible and reliable evidence of prosecutrix could not be
jettisoned for want of corroboration including the corroboration by medical
report or evidence. The Court observed in Manga Singh (supra) that “in
absence of injury on the private part of the prosecutrix, it cannot be
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concluded that the incident had not taken place or the sexual intercourse
was committed with the consent of the prosecutrix”. It was stated that it
is well settled that in the cases of rape it is not always necessary that
external injury is to be found on the body of the victim.
….
5.6.2 In Gurmit Singh (supra) it was observed to reiterate that in all
cases, the corroboration to the statements made by the victim in her
evidence could not be insisted upon as a rule of thumb:
In cases involving sexual molestation, supposed considerations
which have no material effect on the veracity of the prosecution case
or even discrepancies in the statement of the prosecutrix should not,
unless the discrepancies are such which are of fatal nature, be
allowed to throw out an otherwise reliable prosecution case. The
inherent bashfulness of the females and the tendency to conceal
outrage of sexual aggression are factors which the courts should not
overlook.
(Para 8)
5.6.3 It was asserted that only compelling reasons would justify rejection
of testimony of a rape victim, and not otherwise:
“….the courts should find no difficulty to act on the testimony of a
victim of sexual assault alone to convict an accused where her
testimony inspires confidence and is found to be reliable. Seeking
corroboration of her statement before relying upon the same, as a
rule, in such cases amounts to adding insult to injury…..”
(Para 8)
5.6.4 From a recent decision in Raju alias Umakant vs. State of
Madhya Pradesh, (2025 SCC OnLine SC 997), following observations
could be noticed:
“…….a woman or a girl subjected to sexual assault is not an
accomplice but a victim of another person's lust and it will be
improper and undesirable to test her evidence with suspicion. All
that the law mandates is that the Court should be alive to and
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conscious of the fact that it is dealing with the evidence of a person
who is interested in the outcome of charge levelled by her and if
after keeping that aspect in mind if the Court is thereafter satisfied
that the evidence is trustworthy, there is nothing that can stop the
Court from acting on the sole testimony of the prosecutrix. [See
State of Rajasthan v. N.K. the Accused, (2000) 5 SCC 30,
Rameshwar v. State of Rajasthan, 1951 SCC 1213, State of
Maharashtra v. Chandraprakash Kewal Chand Jain, (1990) 1
SCC 550, State of Punjab v. Gurmit Singh, (1996) 2 SCC 384]”
(Para 18)
5.6.5 As early as in State of Maharashtra vs. Chandraprakash
Kewalchand Jain, [(1990) 1 SCC 550], this court observed that the
prosecutrix of a sex offence cannot be put on a par with the accomplice, it
was further observed that she is a victim of crime. The Evidence Act
nowhere says that her evidence cannot be accepted unless it is
corroborated in material particulars. It was further observed that
evidence of a rape victim must receive the same weight as is attached to
an injured in cases of physical violence. It was stated that there is no rule
of law or practice incorporated in the Evidence Act similar to illustration
(b) to Section 114 of the Evidence Act which may require it to look for
corroboration.”
13. The testimony of the victim had been the bedrock of the prosecution’s case
rests upon the testimony of the victim, a child of tender years. Her
deposition, marked by a harrowing simplicity, narrates a profound breach of
patriarchal and societal trust. She deposed that on the day of the festival—a
time when the collective consciousness is steeped in devotion—the appellant,
a man known to her as Pisamosai , exploited her innocence.
14. Under the deceptive lure of witnessing the Durga idol, she was transported
to a secluded, rented chamber. Her testimony describes the mechanical
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coldness of the assault: the bolting of doors, the forceful undressing, and the
physical trauma she endured. Most chilling is her account of the post-
incident behavior of the appellant, who attempted to pacify her with
“cartoons” on the television—a calculated effort to mask a heinous act with a
veneer of normalcy. Despite the rigors of cross-examination regarding her
cognitive understanding of "genitals," her core narrative regarding the pain
and the identity of her assailant remained unshaken.
15. PW-1, the grandmother, serves as the vital link between the incident and the
machinery of justice. Her deposition illuminates the timeline of the
disappearance and the subsequent disclosure. She corroborated that the
victim was taken away on the appellant’s motorcycle without maternal or
grandmotherly consent. Her testimony is crucial in establishing the res
gestae—the immediate reaction to the trauma. Upon the child's return via
the appellant's son, Raja Sen, the grandmother noticed the child’s distress
and “burning sensation”. Her promptness in seeking medical counsel from
Dr. Nandini Kar Majumder the very next morning underscores the credibility
of the family’s response.
16. The deposition of PW-9 provides the necessary physical corroboration.
Though physically incapacitated at the time due to a leg fracture, his
testimony captures the immediate sensory evidence of the crime. He deposed
to seeing the “swelling, redness, and the distinct bite mark” on the left chest
of his daughter—a physical signature of the appellant’s violence. His
testimony further establishes the appellant's conduct; specifically, the
appellant’s flight from the locality when the community sought an
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explanation, which, under Section 8 of the Evidence Act, serves as a relevant
fact pointing toward a guilty mind.
17. The procedural integrity of the investigation is supported by the depositions
of the independent witnesses:
18. PW-4 (Panchayat Member His presence during the search of the appellant’s
rented room at Kalpana Pal’s residence lends official weight to the recovery of
the bed sheet (Exbt.-2/1). His testimony confirms that the police followed the
mandates of the Code of Criminal Procedure in the presence of a local
authority.
19. PW-3’s testimony, while partially hearsay regarding the boys' discussion in
the colony, confirms the appellant’s status as a tenant and the immediate
social outcry that followed the revelation of the crime.
20. PW-2, 6, 8, & 10 were the several witnesses were declared hostile. However,
in the settled jurisprudence of this Court, the testimony of a hostile witness
is not to be discarded in its entirety. The court must sift the grain from the
chaff. The hostility of these witnesses, often a byproduct of local influence or
a desire to avoid institutional friction, does not dilute the crystalline and
corroborated testimony of the victim and the independent witnesses.
21. The defence’s attempt to highlight the victim’s lack of anatomical knowledge
or the minor delays in lodging the complaint fails to withstand judicial
scrutiny. In cases of such nature involving a five-year-old child, the law does
not demand the precision of a surgeon, but the consistency of a survivor.
The minor discrepancies in the layout of the room (the number of windows)
are but “peripheral shadows” that do not obscure the “central light” of the
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prosecution's case: that a child was lured, violated, and silenced by a person
in a position of trust.
22. The condemnable act of the appellant is to be defined as a profound breach
of trust. The incident occurs during a community celebration and the
appellant not being a stranger but a relative of the neighbour (the sister’s
husband). Moreover an aged person estimated to be elder to the father of the
victim created a sense of predatory opportunism, taking advantage of a
crowded festival and the child’s innocence to lure her under the guise of
harmless activity.
23. A person of the age of the appellant is expected to protect the child, bestow
care and love like his own child, attempts to ravish her. An act which itself
destroys the physical and moral conscience of the child pernicious to rob her
innocence and rights to all pervasive development. A chilling sequence of
forced abduction, a violent assault and a bizarre attempt by the appellant to
‘pacify’ or distract her and showing her ‘cartoons’ on T.V. Her subjective
account highlights her confusion and physical pain, noting her lack of
understanding of the physicality and the brazen act at such a tender age of
playfulness and childishness. Men in society of paternal age and instinct are
expected to nurture a child in an ambience of safety and security but it is
cruel and criminal to devastate the child through violation of her body and
soul.
24. The process devised by the appellant itself is indicative of the ulterior motive
to commit the offence of rape in the backdrop of contemporaneous
circumstances and his criminal intent. The appellant in the disguise of being
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entrusted to visit places of the Durga idols being installed, deliberately
diverted the child to his rented premise itself established the probity of ‘mens
rea’ .
25. The evidence of the child is unsullied and credible without an iota of
fabrication, instigation or false implication in absence of grudge or being
tutored in any manner. The ‘hymen’ might be intact, but the heinous nature
of the attempt to succeed in commission of rape itself criminalises such
attempt through corroborative oral and medical evidence.
26. However, the elements to constitute the offences under Sections 366 and
342 of the Indian Penal Code could not be established. The child was
escorted home by the son of the appellant invalidating the possibility to
commit the offence under Section 366 of the Indian Penal Code as well as
Section 342 of the Indian Penal Code.
27. The conviction under Section 376/511 is confirmed. The conviction under
Sections 366 and 342 of the Indian Penal Code is set aside. In view of the
above discussions, the instant criminal appeal being CRA 123 of 2010 is
dismissed.
28. There is no order as to costs.
29. Trial Court records along with a copy of this judgment be sent down at once
to the Learned Trial Court for necessary action.
30. Photostat certified copy of this judgment, if applied for, be given to the
parties on priority basis on compliance of all formalities.
(Ananya Bandyopadhyay, J.)