STATE OF RAJASTHAN versus SRI CHAND

Citation: [2015] 6 S.C.R. 321 · Decided: 11-05-2015 · Supreme Court of India · Bench: PINAKI CHANDRA GHOSE · Disposal: Case Partly allowed

Judgment (excerpt)

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[2015] 6 S.C.R. 321 
STATE OF RAJASTHAN 
v. 
SRI CHAND 
(Criminal Appeal No. 561 OF 2009) 
MAY 11, 2015 
[PINAKI CHANDRA GHOSE AND . 
UDAY UMESH LALIT, JJ.] 
A 
B 
Penal Code, 1860: ss.3761511 -Attempt to rape 12 c 
years old girl - Trial court acquitted accused-respondent of 
offence ulss. 3761511 and found him guilty for offence uls.354 
and granted benefit of Probation of Offenders Act in view of 
his clear record and no prior conviction - High Court refused 
to interfere with the order of trial court- On State's appeal, 
D 
Held: There was no eye witness on record apart from the 
prosecutrix herself for proving offence of attempt of rape -
• PW3 only saw the accused fleeing away and the alleged 
eye witness, was never produced before the Court nor her 
statement was recorded u/s.161 Cr.P.C. -Also, no medical E 
examination of the prosecutrix was conducted- The offence 
of attempt to rape was, therefore, not proved beyond 
reasonable doubt - However, he was rightly convicted u/ 
s.354 - The offence of outraging the modesty is heinous in 
nature and there is no reason for granting benefit of probation F 
in this case - The accused is not granted benefit of Probation 
of Offenders Act, 1958. 
Partly allowing the appeal, the Court 
G 
HELD: 1. FIR was recorded under Section 376 read 
with Section 511 of IPC i.e. attempt to rape and not rape 
per se. The prosecutrix in her statement stated that the 
accused took her inside her house, closed it, undressed 
her and undressed himself. Thereafter, she stated, he H 
321 
322 
SUPREME COURT REPORTS 
[2015] 6 S.C.R. 
A got on to her and did bad work. On being repeatedly 
asked what bad work was done, she kept quiet and 
bowed her head, in embarrassment understandably. One 
must not lose sight of the fact that the prosecutrix was 
a minor child atthe time of the incident. The father (PWS) 
B of the prosecutrix categorically stated that bad work 
meant rape. However, veracity of his statement is 
doubtful since he was not an eye witness and was not 
even told about the incident by the prosecutrix. He was 
told details of the incident by PW3 who was not an eye 
C witness to the incident. However, PW3 was the first 
person to have learnt of the offence from the prosecutrix 
and he has completely corroborated her version. By this 
consistent evidence what was proved beyond 
0 
reasonable doubt is the offence under Section 354 of 
IPC. However, the question of attempt to rape was not 
proved beyond reasonable doubt. It was held in Aman 
Kumar's case that in order to come to the conclusion 
that attempt to rape is committed it should be shown 
E that the accused was determined to have sexual 
connection (penetration) with the prosecutrix at all 
events inspite of all resistance. In the present case, the 
accused fled away when the PW3 came to the place of 
incident due to shouting of the prosecutrix. This would 
F show he wasn't determined to have sexual connection 
with the prosecutrix despite all resistance and odds. Also 
there were inconsistencies in the statement of the 
prosecutrix wherein she stated that she had suffered 
injuries on her breast but same was not corroborated 
G by the medical evidence. Also, 'S' who is an important 
eye witness was not produced as a witness. In this view 
of the matter, offence of attempt to rape was not proved 
sufficiently. [Para 8] [327-B-G;328-B-E] 
H 
Aman Kumar and Anr. vs. State of Haryana (2004) 4 
STATE OF RAJASTHAN v. SRI CHAND 
323 
• 
SCC 379: 2004 (2) SCR 237; Tarkeshwar Sahu vs. State of A 
Bihar (now Jharkhand) (2006) 8 SCC 560: 2006 (7) Suppl. 
SCR 10 - relied on. 
3. In the present case the accused was not a 
minor, rather he committed an offence against a minor B 
girl. Further, the evidence on record showed that he ran 
away only when the prosecutrix screamed and PW3 
came to the place of incident, which showed that the 
accused could have had worse intentions. The offence 
is heinous in nature and there is no reason for granting C 
benefit of probation in this case. The trial court has not 
given any special consideration to the character of the 
accused apart from the fact that this was the first 
conviction of the accused. This is far from sufficient 
to grant probation in an offence like outraging the D 
modesty of a woman. The accused respondent is not 
granted the benefit of Probation of Offenders Act, 1958, 
but his conviction is maintained under Section 354 l.P.C. 

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