New Delhi: The Patna high court has held that unless there is any act towards penetration, merely lying upon a woman and pressing her mouth would not constitute an attempt to commit rape, as the evidence fails to establish that the accused had gone beyond the stage of preparation, reported LiveLaw.The court’s ruling came as a single judge bench of Justice Sandeep Kumar was hearing a man who was appealing against the sentence of four years’ imprisonment awarded to him by additional sessions judge-V, Begusarai in August 2013 under sections 376/511 IPC (attempt to rape).He was also sentenced to and six months’ rigorous imprisonment under section 448 IPC (house trespass), with the sentences directed to run concurrently.As per the prosecution’s case, on February 8, 2010, the complainant was sleeping in her thatched house when the appellant man allegedly entered the house, extinguished the lamp, lay upon her and pressed her mouth.Thereafter, the woman raised an alarm which led to the villagers assembling the apprehending the appellant.While hearing the appeal, the Patna high court said that the important question was whether the proved conduct amounted to an attempt to commit rape under sections 376/511 IPC or an assault or use of criminal force with intent to outrage the modesty of a woman under section 354 IPC.“In the words of the Hon’ble Supreme Court in Aman Kumar (supra), indecent assaults are often magnified into attempts at rape, and materials must exist to show a determination to gratify passion at all events and in spite of all resistance,” said the high court.While the Court found that the prosecutrix’s testimony inspired confidence about the core occurrence of the appellant – entering her house at night, extinguishing the lamp, lying upon her and pressing her mouth to stifle her cries – it said that the evidence was insufficient.“Applying the aforesaid principles to the evidence on record, the act of the appellant in entering, late at night, in the dwelling house of a widow who was sleeping, extinguishing the lamp, lying upon her person and pressing her mouth is an act which is unquestionably capable of shocking the sense of decency of a woman, and the culpable intention of the appellant is manifest from the act itself and from his antecedent conduct deposed to by the prosecutrix. All the ingredients of the offence under Section 354 of the I.P.C. are, therefore, established,” said the court.“However, in the absence of any evidence that the appellant undressed himself or the prosecutrix, or did any act towards penetration, it cannot be held that he had gone beyond the stage of preparation and had done an act which, if not interrupted, would have resulted in the commission of rape,” it added, reported LiveLaw.Subsequently, the court convicted the appellant under Section 354 IPC (assault or criminal force used against a woman with the intent to outrage her modesty) as it stood prior to its amendment by Act 13 of 2013.Noting the fact that the appellant didn’t have any criminal antecedent and had remained on bail for more than 13 years without any adverse report regarding misuse of liberty, the court reduced the substantive sentence to the period already undergone.