IMPORTANT POINT
In absence of evidence that accused attempted to penetrate, his male organ as he had not undressed himself or prosecutrix, conviction for attempt to rape could not be sustained.

Headnote:(i) Indian Penal Code, 1860—Section 376/511—Attempt to rape—Appellant picked up prosecutrix aged 12 years by force when she came out her house, took her to his Gumti—Prosecutrix raised alarm when several persons including PWs 1, 2 and 3 from adjoining houses arrived and caught the appellant before he could make any attempt to ravish her—Conviction by trial Court and High Court upheld conviction and sentence of 7 years imprisonment—Appeal—Witness supported the charge and firmly withstood the cross-examination—Prosecution version was truthful and credible—Important ingredient of offence of rape was penetration which was missing—No evidence if there was attempt to penetrate to slightest degree—Appellant had neither undressed himself nor had undressed prosecutrix —In absence of any attempt to penetrate conviction u/s 376/511 IPC was illegal and unsustainable—Whether appellant could be convicted for minor offence made out even though not charged with it ? Yes—Section 222 Cr.P.C. provided for that eventuality—Since accused had forcibly taken prosecutrix to his Gumti with intention to commit illicit intercourse, offence of appellant fell u/s 366 IPC and he was liable to be convicted under—Appellant outraged modesty of prosecutrix by use of assault and criminal force and was liable to be convicted u/s 354 IPC—Sentence of 5 years for former offence and two years for later offence awarded, both sentences to run concurrent.
       Held : Looking to the gravity of the offence, we ourselves have examined the entire evidence and documents on record. Even on close scrutiny and marshalling of evidence, we could not persuade ourselves to take a different view than taken by the courts below as far as the conviction of the appellant is concerned. In our considered view, the prosecution version is both, truthful and credible. We are clearly of the view that the appellant had forcibly taken the prosecutrix to the Gumti to outrage her modesty but before he could do anything, on raising an alarm by the prosecutrix, the father of the prosecutrix and other villagers had assembled there and she was rescued. Now, the moot question which squarely falls for our consideration pertains to the correct and appropriate sections of the Indian Penal Code under which the appellant is required to be convicted according to the offence he had committed. The trial court and the High Court had convicted the appellant under Sections 376/511 IPC.(Paras 8 and 9)
       The important ingredient of the offence under Section 375 punishable under Section 376 IPC is penetration which is altogether missing in the instant case. No offence under Section 376 IPC can be made out unless there was penetration to some extent. In absence of penetration to any extent would not bring the offence of the appellant within the four corners of Section 375 of the Indian Penal Code. Therefore, the basic ingredients for proving a charge of rape are the accomplishment of the act with force. The other important ingredient is penetration of the male organ within the labia majora or the vulva or pudenda with or without any emission of semen or even an attempt at penetration into the private part of the victim completely, partially or slightly would be enough for the purpose of Sections 375 and 376 IPC. (Para 10)
       In the backdrop of settled legal position, when we examine the instant case, the conclusion becomes irresistible that the conviction of the appellant under Sections 376/511 IPC is wholly unsustainable. What to talk about the penetration, there has not been any attempt of penetration to the slightest degree. The appellant had neither undressed himself nor even asked the prosecutrix to undress so there was no question of penetration. In the absence of any attempt to penetrate, the conviction under Section 376/511 IPC is wholly illegal and unsustainable. (Para 22)
       In the instant case, the accused has been charged with Sections 376/511 IPC only. In absence of charge under any other section, the question now arises - whether the accused should be acquitted; or whether he should be convicted for committing any other offence pertaining to forcibly outraging the modesty of a girl. In a situation like this, we would like to invoke Section 222 of the Code of Criminal Procedure, which provides that in a case where the accused is charged with a major offence and the said charge is not proved, the accused may be convicted of the minor offence, though he was not charged with it.(Para 23)
       The essential ingredient of the offence punishable under Section 366 IPC is that when a person has forcibly taken a minor girl with the intention as specified in that section, then the offence is clearly made out. In the instant case, the appellant at about 1.30 a.m. has forcibly taken the prosecutrix/victim to his Gumti with the intention of committing illicit intercourse then the offence committed by the appellant would fall within the four forecorners of section 366 IPC. In our considered view, the essential ingredients of the offence punishable under Section 366 IPC are clearly present in this case.(Para 29)
       In the instant case, the act of the accused proves that during the kidnapping of the prosecutrix or forcibly taking her to the Gumti, the accused had intention or knew it likely that the prosecutrix would be forced to have illicit intercourse. Hence, it is not a mere case of kidnapping for indecent assault but the purpose for which kidnapping was done by the accused has been proved. It is a different matter that the accused failed at the stage of preparation of committing the offence itself. (Para 34)
       In view of the foregoing facts and circumstances of the case, we are of the opinion that the crime committed by the accused was at initial stage of preparation. The offence committed does not come within the purview of offence punishable under Sections 376/511 IPC. The offence committed squarely covers the ingredients of Sections 366 and 354 IPC. The appellant was charged under Sections 376/511 IPC but on invoking the provisions of Section 222 of the Code of Criminal Procedure the accused charged with major offence can always be convicted for the minor offence, if necessary ingredients of minor offence are present.(Para 35)
       On the basis of evidence and documents on record, in our considered view, the appellant is also guilty under Section 354 IPC because all the ingredients of Section 354 IPC are present in the instant case. (Para 36)
       The essence of a womans 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 is an attribute associated with female human beings as a class. It is a virtue which attaches to a female owing to her sex.(Para 38)
       On evaluation of the entire evidence and documents on record, in our considered view, the appellant is clearly guilty of the offences under Sections 366 and 354 IPC. In the facts and circumstances of this case, the ends of justice would be subserved by convicting the appellant under Sections 366/354 IPC. The appellant is sentenced to undergo imprisonment for five years under Section 366 IPC. The appellant is also convicted under Section 354 IPC and sentenced to two years rigorous imprisonment. We direct both the sentences to run concurrently. (Para 57)
       (ii) Criminal Procedure Code, 1973—Section 222—When accused is charged with major offence and ingredients of such offence are not proved, he could be convicted for minor offence even though he was not charged with—Appellant was convicted u/s 376/511 IPC by Courts below—No evidence that he made attempt to penetrate—Conviction for attempt to rape could not be sustained—Appellant had taken prosecutrix aged 12 years by force to his house and had outraged her modesty—Ingredients of offence u/s 366 and 354 IPC, were made out—He could not be convicted for those offences though no charge was framed for those offences.(Paras 29, 34 and 35)
       (iii) Indian Penal Code, 1860—Section 354—Assault or criminal force to woman with intent to outrage her modesty—Modesty was an attribute associated with female as a class and was a virtue attached to a female owing to her sex—Test for ascertaining whether modesty was outraged, act of offender should be such that it may be described one capable of shocking the sense of decency of a woman.
       Held : The essence of a womans 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 is an attribute associated with female human beings as a class. It is a virtue which attaches to a female owing to her sex.(Para 38)
       The ultimate test for ascertaining whether the modesty of a woman has been outraged, assaulted or insulted is that the action of the offender should be such that it may be perceived as one which is capable of shocking the sense of decency of a woman. A person slapping on the posterior of a woman in full public glare would amount to outraging her modesty for it was not only an affront to the normal sense of feminine decency but also an affront to the dignity of the lady.(Para 40)

Judgement Key Points

Based on the provided legal document, the key considerations relevant to your legal query are as follows:

The core issue in the referenced case pertains to the assessment of whether the act involved constitutes the offence of rape, particularly focusing on the element of penetration. It was held that for an offence under the section corresponding to rape, penetration of some degree is an essential ingredient. Mere force or taking a person forcibly does not automatically establish the offence of rape if there is no evidence of penetration or attempt to penetrate (!) (!) (!) .
The absence of evidence indicating an attempt to penetrate or actual penetration, especially when the accused neither undressed himself nor the prosecutrix, renders the conviction for attempt to commit rape unsustainable. It was emphasized that even slight or partial penetration suffices for a conviction of rape, but in the absence of any penetration or attempt, such a charge cannot be sustained (!) (!) (!) .
In cases where the specific charge of a major offence cannot be proved, the law permits conviction for a minor offence included within the major offence, provided the essential ingredients of the minor offence are established. This is applicable even if the minor offence was not initially charged, and the court can invoke provisions allowing for such convictions based on the evidence presented (!) (!) (!) .
Regarding outraging the modesty of a woman, the essential elements include acts that are capable of shocking the sense of decency, with the intention or knowledge of likely outrage. The act should be such that it would be perceived as an affront to the dignity of the woman, considering societal norms and the context of the act (!) (!) (!) .
The concept of modesty is an attribute inherently associated with female human beings owing to their sex, and the test for outraging modesty is whether a reasonable person would consider the act as capable of shocking the sense of decency. The reaction of the woman, while relevant, is not always decisive, and the nature of the act itself is critical (!) (!) (!) .
The law recognizes that in cases involving acts of sexual misconduct, the specific circumstances, including the age of the victim and the nature of the act, are crucial in determining the appropriate offence and the corresponding punishment. Acts that involve forcible taking, molestation, or acts capable of outraging modesty are punishable under relevant sections, with the severity depending on the specifics of the conduct (!) (!) (!) .

In summary, for your case, it is important to establish whether the act involved actual or attempted penetration, as this is fundamental to the offence of rape. If such evidence is lacking, the case may need to be considered under lesser offences such as outraging modesty or assault, depending on the facts. Additionally, the principles of conviction for minor offences in cases of insufficient evidence for major offences could be applicable, provided the evidence supports such charges.

JUDGMENT

Dalveer Bhandari, J.—This appeal is directed against the judgment of the Jharkhand High Court at Ranchi, Jharkhand passed in Criminal Appeal No.277 of 1999, dismissing the appeal filed by the Appellant and upholding the judgment of the Additional Judicial Commissioner, Ranchi, whereby the Appellant was found guilty for the offence punishable under Sections 376/511 of Indian Penal Code and was sentenced to undergo rigorous imprisonment for seven years.

2. Facts which are necessary to dispose of this appeal, in nutshell, are as follows.

On 18th February, 1998, at about 1.30 a.m., Tara Muni Kumari, aged about 12 years, came out of her house to answer the call of nature. The appellant at that time had forcibly taken her to his Gumti for committing illicit sexual intercourse with her. The said Gumti of the appellant was only few feet away from the house of the prosecutrix. It is alleged that the prosecutrix raised an alarm, and immediately thereafter several persons including PW1 Ram Charan Baitha, the informant and the father of the prosecutrix, Sahdeo Sahu PW2, Deonandan Sahu PW3 the Sarpanch of the village, Jewalal Sahu PW6 came from the adjoining houses and caught the appellant before he could even make any attempt to ravish her. Due to immediate arrival of PW1 and other co-villagers on hearing hue and cry raised by the prosecutrix, the appellant could not succeed in ravishing her. Immediately after this episode, PW1 Ram Charan Baitha, father of the prosecutrix along with other villagers, who appeared as witnesses in this case, had gone to the police station and lodged a first information report at 2.30 a.m. The FIR was lodged within one hour of the incident. All the persons who had gone to the police station and later appeared as witnesses were residing in the close vicinity and were natural witnesses to the incident. The appellant was charged for the offence punishable under Sections 376/511 IPC, to which he did not plead guilty and claimed himself to be innocent. According to him, he was falsely implicated in the instant case at the instance of Gyan Kumar Sahu PW5 and the informant Ram Charan Baitha PW1.

3. The prosecution had examined ten witnesses to substantiate its case. The prosecutrix Tara Muni Kumari was examined as PW7. Sahdeo Sahu PW2, a retired school teacher, who resided in the same vicinity. Deonandan Sahu, another neighbour was examined as PW3. Bahadur Baitha, the brother of the prosecutrix was examined as PW4. Gyan Kumar Sahu, a student of Modern College was examined as PW5. Jewalal Sahu was examined as PW6. Manju Devi, mother of the prosecutrix was examined as PW8. Ram Prasad Baitha, grandfather of the prosecutrix was examined as PW9 and Ishwar Dayal Singh, Assistant Sub-Inspector was examined as PW10.

4. The statements of PW1 to PW5 are consistent, in which all of them had stated that they resided in close proximity to the house of the accused and victim Tara Muni Kumari. On 18.2.1998, at 1.30 a.m., on hearing an alarm of the prosecutrix, they got up and ran to the Gumti of the appellant and found that the prosecutrix Tara Muni Kumari was crying in front of the appellant Tarkeshwar Sahu. Number of villagers had also assembled there. In the presence of all of them, she had narrated that the appellant had forcibly lifted her and took her to his Gumti with the clear intention to outrage her modesty but the appellant had failed in his attempt because on raising an alarm by the prosecutrix the father of the prosecutrix and other villagers had assembled there. Statements of PW1 to PW5 were recorded during 24.6.1998 to 15.7.1998. Their statements by and large narrate the consistent version. These witnesses firmly withstood the cross-examination. Other set of witnesses who were examined later on from 12.8.1998 to 10.3.1999 had not supported the version of the prosecution and consequently they were declared hostile. It is quite evident that the witnesses which were examined from 12.8.1998 to

Click Here to Read the rest of this document

2006 Supreme(SC) 924

IMPORTANT POINT In absence of evidence that accused attempted to penetrate, his male organ as he had not undressed himself or prosecutrix, conviction for attempt to rape could not be sustained.

Cases Referred (15)

IMPORTANT POINT
In absence of evidence that accused attempted to penetrate, his male organ as he had not undressed himself or prosecutrix, conviction for attempt to rape could not be sustained.