IMPORTANT POINT
Essential ingredients of the offence punishable under Section 354 IPC are that the person assaulted must be a woman, and the accused must have used criminal force on her intending thereby to outrage her modesty.

Headnote:(i) Indian Penal Code, 1860-Sections 376(2)(g) and 376/506-Rape-Prosecutrix complaining of rape, not an accomplice after the crime-No rule of law that her testimony cannot be acted without corroboration in material particulars-However, if the Court of facts finds it difficult to accept version of prosecutrix on its face value, it may search for evidence-Assurance, short of corroboration would suffice. (Para 5)
       (ii) Indian Penal Code, 1860-Sections 376(2)(g) and 376/506-Rape-Penetration is sine qua non for offence of rape-Depth of penetration is immaterial.
       Held : To constitute the offence of rape, it is not necessary that there should be complete penetration of the penis with emission of semen and rupture of hymen. Partial penetration within the labia majora of the vulva or pudendum with or without emission of semen is sufficient to constitute of offence of rape as defined in the law. The depth of penetration is immaterial in an offence punishable under Section 376 IPC. (Para 7)
       (iii) Indian Penal Code, 1860-Section 376/511-Attempt of rape-What amounts to an offence.
       Held : 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. 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 clearly show the legislative intention to make a difference between the cases of a mere preparation and an attempt. (Para 10)
       (iv) Indian Penal Code, 1860-Sections 354/34 and 376(2)(g)-Rape by two persons-Prosecutrix stated that when she had gone to the field, accused persons caught hold of her right arm and dragged her forcibly to the field and thereafter forcibly raped her-Chargesheet filed for commission of offence under Section 376/506 IPC-Certain irreconcilable discrepancies noticed in version of prosecutrix in Court-Her evidence regarding actual commission of rape was at variance from what was recorded by police during evidence-Evidence of prosecutrix and the doctor did not specifically refer to penetration-No material to show that the accused were determined to have sexual intercourse in all events-Offence cannot be said to be an attempt to commit rape to attract culpability under Section 376/511 IPC-Case is one of indecent assault upon a woman-Conviction of appellants under Section 376(2)(g) set aside-Appellants convicted under Section 354/34 IPC-Custodial sentence of two years each, with a fine of Rs. 500/- each would meet ends of justice.
       Held : In order to find an accused guilty of an attempt with intent to commit a rape, Court has to 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. Indecent assaults are often magnified into attempts at rape. In order to come to a conclusion that the conduct of the accused was indicative of a determination to gratify his passion at all events, and in spite of all resistance, materials must exist. Surrounding circumstances many times throw beacon light on that aspect. Though the prosecutrix s version in Court was of rape, when it is compared with the one given during investigation, certain irreconcilable discrepancies are noticed. The evidence regarding actual commission of rape is at variance from what was recorded by police during evidence. The evidence of PW-11, the father who according to prosecution made departure from what he allegedly stated during investigation is to the effect that his wife PW-9 told her that the prosecutrix was teased by the accused persons. Merely because he was termed as a hostile witness his entire evidence does not get effected. Significantly, the evidence of prosecutrix and the doctor does not specifically refer to penetration which is sine qua non for the offence of rape. (Paras 11 and 12)
       There is no material to show that the accused were determined to have sexual intercourse in all events. In the aforesaid background, the offence cannot be said to be an attempt to commit rape to attract culpability under Section 376/511 IPC. But the case is certainly one of indecent assault upon a woman. Essential ingredients of the offence punishable under Section 354 IPC are that the person assaulted must be a woman, and the accused must have used criminal force on her intending thereby to outrage her modesty. What constitutes an outrage to female modesty is nowhere defined. The essence of a woman s modesty is her sex. The culpable intention of the accused is the crux of the matter. The reaction of the woman is very relevant, but its absence is not always decisive. Modesty in this Section is an attribute associated with female human beings as a class. It is a virtue which attaches to a female owing to her sex. The act of pulling a woman, removing her dress coupled with a request for sexual intercourse, is such as would be an outrage to the modesty of a woman, and knowledge, that modesty is likely to be outraged, is sufficient to constitute the offence without any deliberate intention having such outrage alone for its object. (Para 13)
       (v) WORDS AND PHRASES-Word modesty in Section 354 IPC-Meaning. (Para 13)

JUDGMENT

Arijit Pasayat, J.-Two appellants faced trial for having allegedly committed rape on a girl of tender age whose name need not be indicated and she can be described as the victim or the prosecutrix. The trial Court found the accused persons guilty of offence punishable under Section 376(2)(g) of the Indian Penal Code, 1860 (in short the IPC ). They were each sentenced to undergo imprisonment for 10 years and to pay a fine of Rs. 500/- each with default stipulation. In appeal, the conviction and sentence were upheld.

2. Prosecution version in a nutshell is that on 5.8.1993 the prosecutrix had gone to the field to each herself at about 10.00 a.m. When she had reached near the field, the accused persons caught hold of her right arm and dragged her forcibly to the field. Accused Shiv Dayal shut her mouth with her chuni and both the accused persons thereafter forcibly raped her. They threatened to kill her if she told about the incident to anybody. She went to her house weeping and narrated the incident to her mother. One Karan Singh had seen the accused persons going away from the field. Since the father (PW-11) and brother of the prosecutrix were not at home the mother (PW-9) described the incident to a member of the Panchayat (PW-12). Report was lodged with police on 7.8.1993. Investigation was undertaken. The prosecutrix was medically examined and the accused persons after arrest were also medically examined. After completion of investigation, charge sheet was filed for alleged commission of offence punishable under Section 376/506 IPC. As the accused persons pleaded innocence, the trial was held. Thirteen witnesses were examined to further the prosecution version. The prosecutrix was examined as PW-7 while her mother was examined as PW-9 and father as PW-11. The accused persons pleaded that they have been falsely implicated. As Ran Singh, the brother of the prosecutrix had mis-appropriated funds of a temple and the accused persons had made a grievance, a meeting was held on 5.8.1993 where the allegations were specifically made. On 6.8.1993, Ran Singh and his friends had stopped the accused-Aman and had given him lathi blows. The accused Shiv Dayal and others had come to his rescue and he was taken to the hospital where he remained till 12.8.1993. On the basis of a complaint made by Ami Chand, brother of accused Aman, a case had also been instituted against Ran Singh and Others. The accused persons examined a doctor who stated that on 6.8.1993 he had examined accused Aman and found several injuries on his person. Another witness was examined to show about the assaults by Ran Singh and others. During trial, interestingly except the prosecutrix no other witness of relevance including the mother of the prosecutrix, her father and Karan Singh who had supposedly seen the accused persons going away from the field immediately after the occurrence, supported the prosecution version. The trial Court held that even though the mother of the prosecutrix and other witnesses whose evidence would have thrown some light had not supported the prosecution version, yet the testimony of the prosecutrix herself was considered sufficient for the conviction to be made and accordingly conviction was done as afore-stated. Similar was the view taken by the High Court in the appeal filed by the accused persons.

3. In support of the appeal, learned counsel for the appellants submitted that the prosecution version is highly improbable. Though the prosecutrix s evidence alone can form the foundation of conviction, yet in the background facts of the present case, it is clearly indicated that there was false implication on account of differences between the accused persons and the brother of the prosecutrix, and the Courts below should not have acted on her evidence. Furthermore, the evidence of the prosecutrix even if accepted does not prove commission of rape and the medical evidence also supports such a view. At the most, on the evidence taken on its

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2004 Supreme(SC) 166

IMPORTANT POINTEssential ingredients of the offence punishable under Section 354 IPC are that the person assaulted must be a woman, and the accused must have used criminal force on her intending thereby to outrage her modesty.

Cases Referred (1)

IMPORTANT POINT
Essential ingredients of the offence punishable under Section 354 IPC are that the person assaulted must be a woman, and the accused must have used criminal force on her intending thereby to outrage her modesty.