The Rajasthan High Court recently held that the act of removing a six-year-old minor girl’s innerwear and the accused undressing himself without proceeding beyond the stage of preparation will not attract the offence of ‘attempt to rape’ punishable under Section 376 read with Section 511 of the IPC. The court, however, ruled that it would attract the offence of ‘outraging the modesty of a woman’ punishable under Section 354 of the IPC.
The single-judge bench of Justice Anoop Kumar Dhand emphasised what constitutes an “attempt”. He highlighted the distinction between an attempt to commit rape and attempt to commit indecent assault. The court stated that for the former, the accused must have gone beyond the stage of preparation.
The Court explained that 3 stages need to be fulfilled for any act to be punishable under the offence of “attempt”. First, the accused must have the intention to commit the offence. Second, the accused performs acts that lead to the commission of that offence. Third, the said act must be reasonably close to the culmination of the crime.
The Court noted that any act that fell short of such an act that crossed the stage of preparation constituted indecent assault which is punishable under Section 354 IPC.
The court stated, “The first stage exists when the culprit first entertains the idea or intention to commit an offence. In the second stage, he makes preparations to commit it. The third stage is reached when the culprit takes deliberate overt steps to commit the offence. Such overt act or step in order to be “criminal” need not be the penultimate act towards the commission of offence. It is sufficient if such act or acts were deliberately done and manifest a clear intention to commit the offence aimed, being reasonably proximate to the consummation of the offence.”
As per the case details, the 6-year-old prosecutrix alleged that the accused undressed both her and himself and fled the scene when she made hue and cry. However, there was no allegation that the accused attempted penetration.
The court modified Sections 376/511 under which the trial court had convicted him and changed it to Section 354. For this, the court relied upon the case of Sittu v State of Rajasthan. In that case, the girl was forcibly made naked and the accused attempted to penetrate her despite her resistance. The court noted that the said acts by the accused were seen as crossing the stage of preparation and amounted to attempting to commit rape.
However, in the case of Damodar Behera v State of Orissa, it was alleged that the accused had removed the victim’s saree but he fled away on seeing some persons. In that case, the act was not seen as reaching the stage of an attempt to commit rape but as fulfilling the conditions of an indecent assault under Section 354 IPC.
Relying on the aforementioned court orders, the Rajasthan High Court held, “Looking to the fact that the allegations have been levelled against the appellant, that he took-off the inner wear of the prosecutrix ‘D’ and also undressed himself, certainly, such act of the appellant does not amount to commission of offence under Section 376/511 IPC… In other words, the accused-appellant cannot be held to be guilty of attempt to commit rape.”
It added, “The prosecution has been able to prove the case of assault or use of illegal force on the prosecutrix ‘D’ (PW-2) with an intention to outrage her modesty or with knowledge that her modesty was likely to be outraged. Thus, it is a clear case of Section 354 I.P.C. as the act of present accused has not proceeded beyond the stage of preparation.”
The court noted that in the present case, the accused was below 25 years of age when he committed the act and he remained in jail for a total period of about 2.5 months.
Listing out reasons, the court restricted the custodial sentence of the accused-appellant to the period already undergone by him adding that would meet the ends of justice. In its order, the court elaborated on the following reasons –
(i) At the time when the offence under Section 354 I.P.C. was committed, the accused was below 25 years of age.
(ii) The incident took place on 9th March 1991 and near about 33 years have passed and this period is sufficient to exhaust anybody mentally, physically, and economically.
(iii) He has been in jail for about 2½ months during investigation, trial, and appeal.
(iv) After such a long time for the offence under Section 354 I.P.C. the accused should now not be sent to jail and this Court does not think it proper to send back the accused-appellant in custody, the court order added.
Consequently, the court partly allowed the appeal filed by the accused-appellant in the following manner –
It altered the Sessions Judge judgement and order dated 3 July 1991 and changed the sections of the offence from Sections 376/511 to Section 354 of the IPC.
However, for the offence under Section 354 I.P.C., the accused-appellant is sentenced to the period already undergone by him. The order of sentence dated 03.07.1991 passed by the learned Sessions Judge, Tonk stands modified accordingly, the court concluded.
