Delhi HC Upholds Attempt-to-Rape Conviction In 7-Year-Old Assault Case; Says Acts Went Beyond Molestation

The Delhi High Court on July 16 upheld the conviction of a man for attempting to rape a 7-year-old girl, holding that the removal of the child's undergarment and the presence of semen on her labia majora established that the accused's acts had crossed the threshold of outraging modesty and constituted an attempt to commit rape.

Dismissing the appeal filed by Pankaj Kumar, Justice Vimal Kumar Yadav held that the evidence unmistakably showed the appellant had "done almost all that could have been done" to commit rape and was "ready to penetrate", but ejaculated before the act could be completed, apparently because of an interruption.

The Court, therefore, found no infirmity in the Trial Court's conviction under Sections 376 read with 511 of the Indian Penal Code.

What were the allegations?

The case arose from an incident on August 30, 2010, in which the seven-year-old victim was sexually assaulted on the terrace near the servant quarters where she resided.

The Trial Court had convicted the appellant for attempting to commit rape and sentenced him to two years' rigorous imprisonment with a fine of ₹5,000.

Accused argues act amounts to “outraging modesty”

Before the High Court, the appellant contended that the prosecution's case was rendered doubtful as the victim's mother and maternal grandmother had turned hostile, the child had given varying versions, and neither the medical evidence nor the forensic reports conclusively connected him with the offence.

He argued that, even if the prosecution's version was accepted, the allegations would disclose, at the highest, an offence under Section 354 IPC and not an attempt to commit rape.

What did the High Court observe?

Rejecting the contention, the Court reiterated that the evidence of a hostile witness is not washed off the record merely because the witness departs from the prosecution's case.

Relying on the Supreme Court's decision in K.P. Tamilmaran v. State, it observed that courts are required to separate the truthful part of such testimony from the unreliable portion and may rely upon it to the extent it is corroborated by other reliable evidence.

Applying that principle, Justice Yadav held that although the victim's mother and grandmother did not fully support the prosecution during the trial, both admitted material aspects of the incident and identified the appellant.

Their testimony, read with the remaining evidence, retained evidentiary value.

The Court further observed that the family, living in servant quarters and belonging to a vulnerable socio-economic background, appeared to have been "won over".

The Court found the testimony of the child victim to be of decisive significance. Though the child initially gave answers favourable to the defence, she disclosed during re-examination that her mother had instructed her to tell the Court that "Pankaj bhaiya had not done anything" and to say that her frock became dirty because she had fallen in mud.

She affirmed that her earlier statement that the appellant had removed his underwear and jumped on her was true.

Observing that a child victim who has undergone such trauma may become confused after repeated questioning and tutoring, the Court remarked that, when her testimony is appreciated along with the surrounding circumstances, "like oil comes on the surface of water, so emerges the truth from the shadows of adverse circumstances and influence."

The High Court also found substantial corroboration in the medical evidence. The medico-legal examination recorded multiple white seminal stains on the child's frock and undergarments, white discharge in the labial folds and fourchette, and mild to moderate redness of the labia majora.

Although there was no hymenal tear or bleeding, the Court held that the findings were consistent with the prosecution's version and the history narrated by the child's mother immediately after the incident.

The Court further rejected the appellant's explanation under Section 313 CrPC that he had been masturbating on the terrace and the child's clothes accidentally came into contact with semen lying on the floor.

It termed the explanation "counterproductive", observing that it failed to explain how the semen reached not only the child's frock but also her labia majora.

On the principal issue, the Court held that the evidence clearly took the case beyond the offence of outraging modesty.

"Attempt to Rape not mere outraging modesty": What HC said?

The High Court observed that the removal of the child's undergarment and the presence of semen on her labia majora indicated that the appellant had exposed himself and was "ready to penetrate", but appears to have ejaculated before the act of rape could be completed because either the child's mother arrived or some other intervening circumstance interrupted him.

The Court observed that "all that could have been done was almost done by him" and held that the appellant's acts "cannot be kept within the precincts and confines of Section 354 IPC", but "go beyond and just fall short of the actual rape".

It, therefore, concluded that the Trial Court had rightly convicted him for attempt to commit rape under Sections 376 read with 511 IPC.

Finding the appeal devoid of merit, the High Court dismissed it and directed the appellant to surrender forthwith to undergo the remaining sentence, while extending him the benefit of set-off under Section 428 CrPC.

Case title - PANKAJ KUMAR v STATE