Acts Of Undressing And Attempting Penile-Vaginal Insertion Constitute 'Attempt To Rape' And Not Mere Preparation: Uttarakhand High Court

"The fact that the intended act could not be completed on account of the prosecutrix raising cries and the arrival of other persons does not take the conduct of the appellant back to the stage of mere preparation." Uttarakhand High Court, in a significant criminal appeal judgment, affirmed the conviction of a father for the offence of attempted rape, ruling that overt acts such as disrobing a victim and attempting penile-vaginal insertion constitute an "attempt to commit rape" under Section 376(2) read with Section 511 of the IPC, rather than mere preparation.

A division bench of Justice Manoj Kumar Tiwari and Justice Pankaj Purohit observed that the legal threshold for an attempt is satisfied when the accused demonstrates an unequivocal commencement of the crime, regardless of whether the final act is completed due to external intervention.

The appellant was convicted by the Special Sessions Judge, Almora, for the attempted rape of his minor daughter, an offence punishable under Section 376(2) read with Section 511 of the IPC and Section 10 of the POCSO Act. According to the prosecution, the incident occurred on 21 February 2015, when the appellant allegedly gagged the prosecutrix, removed her clothes, and attempted sexual intercourse until family members intervened upon hearing her cries. The trial court sentenced the appellant to substantial imprisonment, leading to the present appeal challenging the sufficiency of evidence and the legal classification of the act.

The primary question before the court was whether the appellant's actions reached the stage of an "attempt" to commit rape or remained at the stage of "preparation." The court was also tasked with determining whether the absence of medical evidence, specifically the lack of vaginal injury or spermatozoa, was sufficient to discredit the testimony of the prosecutrix in the context of an attempt.

Credibility of Prosecutrix Testimony

The Court emphasized that the testimony of the prosecutrix remained consistent throughout the trial and matched her statement under Section 164 CrPC. Given the minor age of the prosecutrix and the nature of the relationship, the Court found no plausible reason for her to falsely implicate her father. The bench noted that the consistency of her account, supported by witnesses who reached the spot immediately upon hearing her cries, rendered the prosecution’s case robust and reliable.

Court Rejects Medical Evidence Discrepancies

Addressing the appellant's argument regarding the lack of physical injuries or spermatozoa, the Court clarified that such findings do not automatically negate the charge of attempt. Relying on the precedent set in Ravindra v. State of Madhya Pradesh, the bench held that the absence of spermatozoa on a vaginal smear cannot be allowed to discredit an otherwise trustworthy account. The Court reiterated that since the offence was interrupted, the absence of completed penetration does not dilute the criminality of the attempt.

Distinguishing Preparation from Attempt

The Court undertook a detailed analysis of the distinction between preparation and attempt. Citing Chaitu Lal v. State of Uttarakhand, the bench noted that conduct such as pouncing upon a victim, sitting upon her, and removing clothes constitutes a clear attempt. In the present case, the appellant’s actions in removing clothes and attempting penile-vaginal insertion demonstrated a clear, immediate intent to commit the offence. The intervention of family members was the only reason the act remained incomplete, which does not absolve the appellant of the liability for an attempt.

"The conduct attributed to the appellant, namely, removal of the clothes of the prosecutrix and himself, lying upon her and attempting penile-vaginal insertion, clearly demonstrates commencement of the act towards commission of rape and cannot be characterized as mere preparation."

No Scope for Appellate Interference

The Court also addressed the reliance placed by the appellant on various judicial precedents, noting that cases such as Suresh @ Pintya Kashinath Kamble actually support the conviction for attempt under Section 376(2) r/w Section 511 IPC, even when the completed offence is not sustained. Finding no perversity in the trial court’s reasoning and concluding that the guilt was proved beyond reasonable doubt, the High Court dismissed the appeal and affirmed the conviction and sentences awarded by the trial court.

Date of Decision: 29 September 2026