2010(1) Crimes 761 (Chhatt.)
SHORT NOTE
CHHATTISGARH HIGH COURT
Rajeev Gupta CJ and Sunil Kumar Sinha, J.
State of Madhya Pradesh —Appellant
versus
Anka Babu —Respondent
Criminal Appeal No. 127 of 2000
Decided on 12.1.2010

IMPORTANT POINT
Even an attempt at penetration into the private part of the victim completely, partially or slightly would be enough for the purpose of Section 375 and 276 of the IPC.

Headnote:Indian Penal Code, 1860—Section 376/511—State appeal against acquittal for offence under —Victim girl 3½ years went to house of respondent and then parents of girl found semen stains on her underwear—Intact evidence of girl that respondent made her to lie, kissed on her stomach and discharged some thing on her underwear—No iota of evidence regarding penetration—Distinction between attempt to commit an offence and preparation for an offence—Acquittal for attempt to rape called for no interference if however by the acts so proved some other offence was made out, respondent could be convicted—Offence of outraging modesty of victim girl was made out in respondent was liable to be convicted—For sentence, incident being of 1998 and acquittal judgment had been passed in 1999 and respondent was aged about 20 years and families were still neighbour, respondent deserved to be given benefit of probation. (Paras 6 to 12)

       Held: In Tarkeshwar Sahu v. State of Bihar (Now Jharkhand), (2006) 8 SCC 560, the Apex Court held that under Section 375 of the IPC, six categories indicated therein are the basic ingredients of the offence. The Supreme Court observed that in the facts and circumstances of the said case, where the prosecutrix was 12 years of age, her consent was irrelevant. The appellant had forcibly taken her to his Gumti with the intention of committing sexual intercourse with her. The important ingredient of the offence under Section 375 punishable under Section 376 of the IPC is penetration which is altogether missing in the said case, the Apex Court said that no offence under Section 376 of the IPC can be made out unless there was penetration to some extent. In the absence of penetration to any extent, it would not bring the offence of the appellant within the four corners of Section 375 of the IPC. 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 Section 375 and 376 of the IPC. The Apex Court held in para 13 that “in order to constitute rape, what Section 375 IPC requires is medical evidence of penetration and this may occur and the hymen remain intact. In view of the explanation to Section 375, mere penetration of penis in vagina is an offence of rape. Slightest penetration is sufficient for conviction under section 375 IPC.”

       In the present case, admittedly there was no iota of evidence regarding penetration or even slightest degree of penetration. Therefore, there was no question of convicting the respondent under Section 376 as such. So far as conviction under Sections376/511 IPC is concerned, for that, there must be a positive evidence of attempt to commit the offence. In this case even there was no iota of evidence to show that the respondent has attempted to commit the offence of rape against the prosecutrix.

       In Malkiat Singh and Anr. v. The state of Punjab, AIR 1970 SC 713,the Supreme Court has explained the difference between attempt to commit an offence and preparation for commission of an offence. Preparation for committing an offence is entirely different from attempt to commit offence. The preparation consists in devising or arranging the means or measures necessary for the commission of offence. On the other hand, an attempt to commit the offence is a direct movement towards the commission after preparations are made. In order that a person may be convicted of an attempt to commit a crime, he must be shown first to have had an intention to commit the offence and secondly to have done an act which constitutes the actus reus of a criminal attempt. The sufficiency of the actus reus is a question of law which had led to difficulty because of the necessity of distinguishing between acts which are merely preparatory to the commission of a crime and those which are sufficiently proximate to it to amount to an attempt to commit it. The Supreme Court said that the test for determining whether the act of the accused constituted an attempt or preparation is whether the overt acts already done are such that if the offender changes his mind and does not proceed further in its progress, the acts already done would be completely harmless. This was said by the Supreme Court in context of a case of contravention of Punjab Paddy (Export Control) Order (1959) which was punishable under Section 3/7 of the Essential Commodities Act. However the above principles may be applied for any other offence and the acts of .the accused can be determined to be completely harmless for that particular offence.

       In the present case, so far as offence under Sections 376/511 IPC is concerned, the acts proved to be already done by the respondent though was completely harmless with reference to offence punishable under Sections 376/511 IPC as it never was a attempt to commit an offence of rape but if by the acts so proved, some other offence is made out, he can well be punished under the said offence.

       The learned Sessions Judge on the evidence available on record, completely lost sight of the fact that the act of the respondent was sufficient to hold him guilty of the offence punishable under Section 354 IPC. If there was intact evidence that the respondent, firstly kissed on the stomach of the prosecutrix and then he took out his penis from his underwear and there was semen emission on the underwear of the prosecutrix, it was a case of outraging the modesty of the prosecutrix and the respondent was liable for punishment under Section 354 IPC. The Sessions Judge erred in law in not considering this aspect to the matter and cleanly acquitting the respondent. Therefore we hold that the acquittal of the respondent cannot be sustained and the respondent was liable for conviction under Section 354 IPC.

       Accordingly the impugned judgment of acquittal is set aside and the respondent is convicted under Section 354 IPC.

       So far as punishment is concerned, the offence took place in the year 1998 and the judgment of acquittal was recorded in the year 1999. The respondent was aged about 20 years. Both the families are neighbours of each other. Therefore, looking to the facts and circumstances of the case as also the nature of offence held to be proved against the respondent, we deem it expedient to release him on probation of good conduct, instead of directly sentencing him to jail. Therefore, by giving the benefit of Section 4 of the Probation of Offenders Act, 1958, we direct that the respondent shall execute the personal bond with one surety for keeping good conduct for a period of 2 years to the satisfaction of the trial Court within a period of 2 months from today, failing which, or in contravention thereof, he shall be liable to undergo rigorous imprisonment for 1 year.

       Result: Appeal allowed partly.