The Jharkhand High Court has held that entering a woman’s house at night, lifting her clothes and catching hold of her, without a specific act sufficiently proximate to the commission of rape, cannot by itself sustain an attempt-to-rape conviction.
Justice Pradeep Kumar Srivastava made the observation while modifying the conviction of Kamalendu Mahto @ Khokaa, finding that the evidence on record did not disclose a specific overt act towards the commission of rape as required for conviction under Sections 376/511 of the Indian Penal Code (IPC).
Background of the Case
The case arose from an incident dated December 27, 1999. According to the prosecution, the woman was sleeping at home when the appellant allegedly entered her room around midnight after forcibly opening the door. She alleged that he came over her body, lifted her saree and attempted to rape her. She raised an alarm, following which her mother and neighbours arrived, and the appellant fled.
The trial court convicted him under Sections 376/511 and 452 IPC and sentenced him to four years' rigorous imprisonment. The defence challenged the conviction, arguing, among other things, that the evidence did not establish the ingredients of an attempt to rape.
Court’s Observation
The High Court examined the testimony of the prosecutrix and the other witnesses. It noted that the witnesses who arrived after the alarm had not seen the incident itself and had only seen the appellant fleeing or heard the account given by the prosecutrix.
The Court found that the evidence did not disclose a specific overt act showing an attempt to commit sexual intercourse.
"The evidence of the prosecutrix, when considered in its entirety, does not disclose any specific overt act on the part of the appellant which can be said to constitute an act towards the commission of rape with her so as to attract the ingredients of an offence punishable under Section 376/511 of the I.P.C."
The Court, however, held that the evidence regarding the appellant catching hold of the prosecutrix and the surrounding circumstances supported the ingredients of Section 354 IPC, which concerns assault or criminal force intended to outrage a woman's modesty.
Decision
The High Court altered the conviction from Section 376/511 IPC to Section 354 IPC while upholding the conviction under Section 452 IPC.
Considering that the appellant had no previous conviction and that more than 26 years had passed since the incident, the Court sentenced him to the period already undergone, approximately eight months.
The appeal was dismissed on merits with the modification in conviction and sentence.
Case Details
Case Title: Kamalendu Mahto @ Khokaa v. State of Jharkhand
Case Number: Cr. Appeal (SJ) No. 1332 of 2006
Judge: Justice Pradeep Kumar Srivastava
Decision Date: August 31, 2026
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