“In order to find the accused guilty of an assault with intent to commit a rape, you must be satisfied that the accused, when he laid hold of the prosecutrix, not only desired to gratify his passions upon her person, but that he intended to do so at all events and notwithstanding any resistance on her part. We believe that in this country indecent assaults are often magnified into attempts at rape, and even more often into rape itself; and we think a conviction of an attempt at rape ought not to be arrived at, unless the Court be satisfied that the conduct of the accused indicated a determination to gratify his passions at all events, and in spite of all resistance. In the present case, having regard to the medical evidence, and to the varying statements made at different times by the complainant, we find it impossible to place entire reliance upon her statement; and, as to the extent of the violence to which she was subjected, there is no evidence except her own statement. The Sessions Court has not believed her allegation that penetration took place and has consequently refused to convict the accused of rape. We feel a similar hesitation in coming to the conclusion, on the complainant's unsupported statement that the accused's conduct amounted to an attempt to commit rape. He seems to have desisted before he was interrupted; and no evidence has been given to show that the complainant's person showed marks of violence (while the Civil Surgeon's evidence is to the contrary effect), nor that the clothes, either of the complainant or the accused showed any stains which would indicate to what point the accused's criminality had proceeded.”
