Jayaprakash vs State Of Kerala

This appeal is at the instance of the sole accused in S.C.No.363/2022 on the files of the Fast Track Special Court, Kottarakkara, challenging the conviction and sentence imposed against him in the above case dated 31.12.2024.

Heard the learned counsel for the appellant/accused and the learned Public Prosecutor. Perused the judgment under challenge along with the records of the Special Court.

Here, the prosecution alleges commission of offences punishable under Sections 458, 324, 354, 342, 511 and 376 of the Indian Penal Code (for short, 'the IPC' hereinafter) by the appellant/accused.

The specific allegation is that at 2 o’clock on 10.09.2020, the appellant/accused with criminal intention, trespassed upon the residence of the victim, while she was sleeping, and attempted to commit rape on her.

The learned Special Judge recorded evidence. PW1 to PW14 were examined, Exts.P1 to P14 and MO1 were marked on the side of the prosecution. The contradictions were marked as Exts.D1 and D2 on the side of the defence.

After appreciation of evidence, learned Special Judge found that the appellant/accused had committed offences punishable under Sections 458, 354, 324 and 376 r/w 511 of the IPC while acquitting for the offence punishable under Section 342 of the IPC. Accordingly, he has been convicted and sentenced as under:

Multifaceted contentions have been raised by the learned counsel for the appellant/accused to contend that, going by the evidence of PW1, the same would not disclose the ingredients necessary to constitute the offence under Section 376 r/w 511 of the IPC. It is further submitted that the evidence of the victim, who was examined as PW1, is not believable, to find any of the offences alleged to be committed, by the appellant It is submitted further that if at all any offence to be found from evidence, the same is an offence punishable under Section 354 of the IPC. Accordingly, the learned counsel for the appellant/accused pressed for interference in the verdict impugned to set aside the same or to modify the same.

Whereas, the learned Public Prosecutor strongly resisted the contentions and submitted that, going by the evidence of PW1, the necessary ingredients to constitute all the offences found to have been committed by the appellant/accused by the learned Special Judge could be found. Accordingly, he submitted that no interference in the verdict under challenge is warranted in the facts of the case. It is pointed out that in the decision in Chandran v. State of Kerala reported in [2025 KHC OnLine 729], this Court while considering ingredients for the offence under Section 376 r/w 511 of the IPC held in paragraph Nos.30 and 34 to justify his contentions, which reads as under:

Now, the following points arise for determination:

In the instant case, the evidence regarding the overt acts including sexual assault would come from the testimony of the victim, who was examined as PW1. According to her, while she was sleeping at her residence at 2.00 a.m. on 10.09.2020, she felt that somebody was lying on her body. She thought that it was her son, who was also laid along with her. When the accused caught hold of her face, she understood that it was not her son. Soon, she cried aloud and then the accused bit her on the cheek, causing injuries. Then, her younger son woke up and tried to switch on the light, but the accused caught hold of his hand and prevented him from getting up, making him lay down there itself. Thereafter, her elder son woke up on hearing the cry and switched on the light, whereupon the accused got up and ran away. According to PW1, the accused entered her house after breaking open the kitchen door with the intention of sexually assaulting her. Due to the said incident, she suffered humiliation, mental agony and physical pain. She had identified Ext.P1 FIS and also Ext.P2 Body note prepared as that of her. During cross-examination, she reiterated that the door of the kitchen was demolished. According to her, the accused went out through the said door, and she had witnessed the same. However, she had not seen the accused entering the house. PW1 further stated that the accused was in a drunken situation. During cross-examination, PW1 deposed that she had gone to consult the Doctor on the same night and that she had disclosed the name of the accused while giving her statement before the Doctor. When it was suggested that the name of the accused did not find a place in the statement recorded by the Doctor, she asserted that she had disclosed the name of the accused.

PW2, neighbor and close relative of PW1, supported the evidence of PW1. According to PW2, PW1 is the daughter of his brother and she was a resident nearby his residence. On a day at 2.00 a.m., he heard a cry and when he reached the house of PW1, he had found that the back door of the house of PW1 was broken. Later, he along with Shafeek and Shanavas restrained the accused and entrusted him to the police.

Supporting the evidence of PW1, PW3, who is the son of PW1 also given evidence. PW3 deposed that he slept in another room, where as, his mother slept in a separate room, on the date of occurrence. He deposed that, on hearing his mother's screams, he turned on the light and saw the accused in front of her. According to him, he found bite marks on his mother's cheek. He had seen the accused moving through a property thickly planted with rubber trees and reaching the spot. He stated that the accused was apprehended by the people of the locality. During cross-examination, he explained that his mother and younger brother were sleeping in the same room and that he had switch on the light, which provided light in the whole house. He further explained that the accused ran in front of him towards the kitchen to exit the house.

Ext.P3 scene mahazar was tendered in evidence through PW4. According to him, he had witnessed the seizure of the fallen pieces of the kitchen door of the house of PW1. He admitted that he had only hearsay knowledge regarding the incident. PW13, the Grama Panchayat Secretary, who issued Ext.P13 ownership certificate showing that house No.356 in Ward No.VIII stood in the name of Naseema Beevi, supprted this aspect.

The Police Officer who recorded Ext.P1 FIS and prepared Ext.P2 body note on noticing the bite mark on PW1 got examined as PW8 and he supported this aspect.

The Investigating Officer who registered Ext.P7, prepared Ext.P3 scene mahazar and effected the arrest of the accused as per Exts.P8, P9 and P10 arrest memo, inspection memo and custody memo, respectively, was examined as PW10. He testified that he had made arrangements for recording the statement of PW1 under Section 164 of the Code of Criminal Procedure and for conducting her medical examination. He also reported the address of the accused as per Ext.P11. He affirmed that he had effected the seizure of a part of the door of the work area of the house. PW11, the Investigating Officer who conducted part of the investigation, PW12, the Police Officer who registered Ext.P12 FIR and PW9, the Investigating Officer who verified the documents and submitted the final report also given evidence supporting the prosecution case.

In the instant case, the victim identified the accused, who was known to her for several years, who was her neighbour. PW3, the son of PW1, deposed that he had witnessed the accused running away in his presence and also identified the accused as his neighbour.

Here, the crucial question to be considered herein is whether the learned Special Judge was right in finding the commission of the above offences.

Coming to the ingredients for the offence punishable under Section 511 of the IPC, Section 511 is required to be extracted. The same reads under:

The gist of offence under section 511 is attempt to commit an offence falling under certain categories. This section applies where no specific provision for attempting to commit an offence has been provided in the code itself. Attempt begins where preparation ends. Having intended to commit the offence, the accused must have done an act towards its commission having made preparations. Such an act need not be the penultimate act towards the commission of that offence, but an act done during the course of committing that offence. Attempt to commit an offence, therefore, can be said to begin where the preparations are complete and the culprit commences to do something with the intention of committing the offence and which is a step towards the commission of the offence. Attempt to commit a crime and the abetment of the commission of that crime belong to the category of incomplete crimes or inchoate crimes injurious rather in tendency than in fact. These are also classified as crimes in the interests of social security and well-being. In civil law the attempted doing of an act which when completed is actionable, is not actionable if not completed. On the other hand, the attempted commission of an offence is taken serious note of by the Criminal Law and attempts are also punished with great severity. Before completion of crime, human mind has to pass four steps as under :-

When tracing the ingredients to commit an offence under Section 511 of the IPC, there is first intention to commit it; secondly, preparation to commit it; 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 the law punishes the person attempting the act. An "attempt" is made punishable, because every attempt, although it fails of success, must create alarm, which, of itself, is an injury, and the moral guilt of the offender is the same as if he had succeeded.

Thus, 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 preparations 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, section 511 of the Indian Penal Code, 1860, is attracted. An attempt to commit an offence is an act, or a series of acts, which leads inevitably to the commission of the offence, unless something, which the doer of the act neither foresaw not intended, happens to prevent this. An attempt may be described to be an act done in part execution of a criminal design, amounting to more than mere preparation, but falling short of actual consummation, and, possessing, except for failure to consummate, all the elements of the substantive crime. In other words, an attempt consists in it the intent to commit a crime, falling short of, its actual commission or consummation/completion. It may consequently be defined as that which if not prevented would have resulted in the full consummation of the act attempted. The illustrations given in section 511 IPC clearly show the legislative intention to make a difference between the cases of a mere preparation and an attempt.

Thus, an attempt to commit a crime must be distinguished from an intention to commit it. When the attempt to commit a crime becomes successful, the crime is complete. However, when the attempt fails, the stages of intention to commit, preparation to commit and attempt to commit the crime would have been completed. Here is a case where the evidence of PW1 would show that while she was sleeping at her residence on 10.09.2020, at 2.00 a.m. she felt somebody was lying on her body. Though initially she thought it was her son who also laid along with her, when the accused caught hold of her face, she understood that it was not her son. Soon she cried aloud and in turn, he bit on her cheek. Then, by the interference of her elder son, the accused left the place. The fact that the accused entered the house after breaking open the kitchen door at the odd hour at 2.00 a.m., laid near PW1 and caught hold of her face would, in fact, would show that he had the intention to commit rape, for which he made preparations, and while attempting to commit the offence of rape, he was caught and nabbed. Because of this, the attempt was not successful. In such view of the matter, the contention raised by the learned counsel for the appellant/accused that the Special Court went wrong in finding commission of offence punishable under Section 376 r/w 511 of the IPC, could not be accepted.

Section 458 of the IPC, along with its essential ingredients and the requirements for proving the offence, is extracted hereunder:

Similarly, the ingredients for the offence punishable under Section 324 of the IPC are as under:

The ingredients for the offence punishable under Section 354 of the IPC are as under:

Act will amount to outraging of modesty if it is such which could be perceived as one capable of shocking sense of decency of a woman. Modesty of a woman is her sex, it is a virtue which attaches to a female owing to her sex. Modesty is quality of being modest and in relation to woman, it is womanly propriety of behaviour, scrupulous chastity of thought, speech and conduct.

On scanning the ingredients, as extracted hereinabove, in the light of the evidence of PW1 and other witnesses, particularly the specific mention of the time of commission of the offence as 2.00 a.m. on 10.09.2020, this Court is of the definite view that the prosecution succeeded in proving the offences found to have been committed by the appellant/accused, as found by the learned Special Judge, and therefore, there is no reason to revisit the same. In consequence thereof, the conviction stands confirmed.

Coming to the sentence, some leniency can be shown to modify the sentence imposed for the offence punishable under Section 376 r/w Section 511 of the IPC by reducing the substantive sentence of rigorous imprisonment from seven years to five years, while maintaining the fine of Rs.15,000/- (Rupees Fifteen Thousand only), and modifying the default sentence to rigorous imprisonment for a period of two months. In all other respects, the sentences imposed by the learned Special Judge are confirmed. The substantive sentences of imprisonment shall run concurrently.

In the result, this appeal is allowed in part, as indicated above. The order suspending sentence and granting bail to the appellant/accused stands cancelled and the bail bond executed by the appellant/accused also stands cancelled. The appellant/accused is directed to surrender before the Special Court, forthwith to undergo the modified sentence, failing which, the Special Court is directed to execute the sentence, without fail.

Registry is directed to forward a copy of this judgment to the Special Court, forthwith, without fail, for information and compliance.