Undressing a Minor with Intent to Force Intercourse Is Attempt to Rape: Allahabad High Court Upholds Conviction under Section 376/511 IPC

“Victim’s Consistent Testimony and Recovery from Accused’s Custody Leave No Doubt—Delay in FIR Not Fatal in Sexual Offence Cases”, In a powerful affirmation of the evidentiary value of a survivor’s testimony, the Allahabad High Court, Lucknow Bench upheld the conviction of Pradeep Kumar @ Pappu @ Bhuriya under Sections 363, 366, 376/511, and 354 of the Indian Penal Code for kidnapping and attempting to rape a 16-year-old girl.

Justice Rajnish Kumar, while dismissing the criminal appeal filed under Section 374(2) CrPC, emphasized that “once the act of undressing with the intent to have sexual intercourse is proved, the offence of attempt to rape stands attracted—penetration is not required”. The Court further ruled that the delay in filing an FIR is not abnormal in cases of sexual assault, especially where the family faces stigma or lacks immediate male support.

The case arises out of an incident from August 2004, when the minor victim was forcibly abducted by the appellant and kept at a relative’s house for 20 days. The victim’s mother, having searched for her daughter, lodged a complaint on 31 August 2004, leading to the girl's recovery on the same day from the custody of the appellant.

The Sessions Court had convicted the appellant and sentenced him to 10 years of rigorous imprisonment under Section 376/511 IPC, along with additional concurrent sentences under Sections 363, 366, and 354 IPC. The High Court upheld the judgment in Criminal Appeal No. 889 of 2009.

Justice Rajnish Kumar addressed several crucial legal questions:

What Constitutes Attempt to Rape?

The Court reiterated the settled principle that “attempt begins where preparation ends”. Relying on Koppula Venkat Rao v. State of Andhra Pradesh, (2004) 3 SCC 602, and Pandharinath v. State of Maharashtra, (2009) 14 SCC 537, the Court noted:

“The moment the accused undressed the girl, used force, and made attempts to gratify his lust—intercourse or not—the law of attempt to rape is fulfilled.”

The Court emphasized:

“The act of forcibly undressing a minor and attempting intercourse, thwarted only by her protest, is a clear manifestation of criminal intent and satisfies the offence under Section 376/511 IPC.”

Delay in FIR – Explained and Justified

The defence had argued that the FIR was lodged 21 days after the abduction, suggesting fabrication. The Court rejected this, holding:

“In cases involving sexual offences, delay in reporting is not uncommon. The honour and dignity of the family often outweigh immediate legal recourse.”

Quoting State of Himachal Pradesh v. Prem Singh, AIR 2009 SC 1010, the Court said:

“It would be quite unsafe to throw out the prosecution case merely on the ground of some delay in lodging the FIR.”

The FIR itself explained that the mother had no male family members and tried to locate her daughter before approaching the police.

Credibility of the Victim’s Testimony

The Court gave full weight to the testimony of the victim, observing that it was consistent in her Section 164 CrPC statement and during trial. She clearly stated:

“He undressed me and tried to do bad work twice. He could not succeed because I resisted.”

This statement, the Court held, was natural, credible, and unshaken in cross-examination:

“Her account stands at a higher footing than even an injured witness. There is no legal requirement for corroboration if the testimony inspires confidence.”

Consent Not Proved—Letters Fabricated

The appellant tried to argue that the act was consensual, citing some letters allegedly written by the victim. However, the Court found:

“The letters were denied by the victim. More importantly, no plea of consent was taken in the accused’s Section 313 CrPC statement. The defence must stand or fall by the explanation it offers. None was made.”

Relying on State of Himachal Pradesh v. Shree Kant Shekari, 2004 Cri LJ 4232, the Court observed:

“Consent is a matter of defence and must be specifically pleaded. Mere suggestions or unverified documents are insufficient.”

Victim Recovered from Accused’s Custody—Prosecution’s Case Strengthened

The Court gave importance to the fact that the victim was recovered from the appellant’s custody on the very day the FIR was filed. The recovery memo and testimony of PW-5 confirmed that the girl was held against her will.

Conviction Affirmed, Appeal Dismissed

Finding no infirmity in the Sessions Court judgment, the High Court held: “The prosecution has successfully proved that the victim was forcibly kidnapped, confined for 20 days, and subjected to an attempt to rape. Her modesty was clearly outraged, and all ingredients of the charged offences are established beyond doubt.”

The appeal was dismissed as “misconceived and lacking in merit,” and the conviction under Sections 363, 366, 376/511, and 354 IPC was upheld.

This judgment is a reaffirmation of well-settled legal principles regarding attempt to rape, weight of a victim’s testimony, and delay in lodging FIRs in sexual offences. The High Court sent a clear message that “where intent, force, and overt acts are present, the offence of attempt is complete, even if the final act is prevented.”

Date of decision: 01/07/2025