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CASE NO.: Appeal (crl.)  370 of 2007

PETITIONER: Ramkripal S/o Shyamlal Charmakar

RESPONDENT: State of Madhya Pradesh

DATE OF JUDGMENT: 19/03/2007

BENCH: Dr. ARIJIT PASAYAT & S.H. KAPADIA

JUDGMENT: J U D G M E N T (Arising out of SLP (Crl.) No. 5881 of 2006)  

Dr. ARIJIT PASAYAT, J.                   

Leave granted.   

       Challenge in this appeal is to the judgment rendered  by a learned Single Judge of the Madhya Pradesh High  Court at Jabalpur, dismissing the appeal filed by the  appellant against the judgment of the learned III  Additional Sessions Judge, Satna.  Appellant was found  guilty of offences punishable under Section 376 of the  Indian Penal Code, 1860 (in short the ’IPC’) and was  sentenced to undergo RI for seven years.

       Prosecution version as unfolded during trial is as  follows:         Victim (PW-1) had gone in the field near  Makararbandh to bring green grass and after collecting  the green grass she was on her way back to her home. The  appellant came to her and proposed for sexual  intercourse. The victim protested and told that she will  inform her mother in respect thereof. The appellant  induced her not to say so to her mother as he will provide  Rs.10/- to her.  The appellant felled her on the ground  and removed her undergarment and ravished her.  She  was crying in pain and at this the appellant had stuffed  her mouth by clothes.  The genital of the appellant had  penetrated in her genital which gave immense pain to her  and, thereafter, the appellant left her.  She saw blood  oozing from her private part which has besmeared her  undergarment. After the return from the said field she has  narrated the incident to the brothers and their wives.            On completion of investigation the charge-sheet was  placed.  Accused faced trial.  In order to establish the  accusations the prosecution examined 10 witnesses. The  accused pleaded innocence and false implication.   According to him, a false case was posed at the instance of  Rambhan Singh, Sarpanch (PW-3).  The Trial Court found  the evidence of the prosecutrix to be cogent and credible  and accordingly as noted above, it found the accused  guilty.     

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       In appeal, the conclusions of the Trial Court were  affirmed by the High Court.

       In support of the appeal, Ms. Promila, learned  Amicus Curiae appearing for the appellant submitted that  the Trial Court and the High Court failed to notice  inconsistencies in the evidence of the witnesses and in any  event no offence under Section 376 IPC is made out.   Strong reliance is placed on the evidence of the doctors  PW-7 and PW-8 to contend that at the most the offence  can be in terms of Section 354 IPC or Section 511 IPC.    

Per contra, learned counsel for the respondent-State  submitted that the Trial Court and the High Court have  analysed the evidence in great detail and have rightly  concluded that offence punishable under Section 376 IPC.

Coming to the question as to whether Section 354 of  the Act has any application, it is to be noted that the  provision makes penal the assault or use of criminal force  to a woman to outrage her modesty. The essential  ingredients of offence under Section 354 IPC are:

(a)     That the assault must be on a woman. (b)     That the accused must have used  criminal force on her.   (c)     That the criminal force must have been  used on the woman intending thereby to  outrage her modesty.                 

What constitutes an outrage to female modesty is  nowhere defined in IPC. 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 saree, 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. As indicated above, the word ’modesty’  is not defined in IPC. The Shorter Oxford Dictionary (Third  Edn.) defines the word ’modesty’ in relation to woman as  follows:

       "Decorous in manner and conduct;  not forward or lower; Shame-fast;  Scrupulously chast."

        Modesty is defined as the quality of being modest;  and in relation to woman, "womanly propriety of  behaviour; scrupulous chastity of thought, speech and  conduct." It is the reserve or sense of shame proceeding  from instinctive aversion to impure or coarse suggestions.  As observed by Justice Patterson in Rex v. James Llyod  (1876) 7 C&P 817 in order to find the accused guilty of an  assault with intent to commit a rape, court 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

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notwithstanding any resistance on her part. The point of  distinction between an offence of attempt to commit rape  and to commit indecent assault is that there should be  some action on the part of the accused which would show  that he was just going to have sexual connection with her.  

Webster’s Third New International Dictionary of the  English Language defines modesty as "freedom from  coarseness, indelicacy or indecency; a regard for propriety  in dress, speech or conduct".  

In State of Punjab v. Major Singh (AIR 1967 SC 63) a  question arose whether a female child of seven and a half  months could be said to be possessed of ’modesty’ which  could be outraged. In answering the above question the  majority view was that when any act done to or in the  presence of a woman is clearly suggestive of sex according  to the common notions of mankind that must fall within  the mischief of Section 354 IPC. Needless to say, the  "common notions of mankind" referred to have to be  gauged by contemporary societal standards. It was further  observed in the said case that the essence of a woman’s  modesty is her sex and from her very birth she possesses  the modesty which is the attribute of her sex. From the  above dictionary meaning of ’modesty’ and the  interpretation given to that word by this Court in Major  Singh’s case (supra) the ultimate test for ascertaining  whether modesty has been outraged is whether the action  of the offender is such as could be perceived as one which  is capable of shocking the sense of decency of a woman.  The above position was noted in Rupan Deol Bajaj (Mrs.)  and Anr. v. Kanwar Pal Singh Gill and Anr. (1995 (6) SCC  194).

The above position was highlighted in Raju  Pandurang Mahale v. State of Maharashtra and Anr.  (2004 (4) SCC 371).

       A culprit first intends to commit the offence, then  makes preparation for committing it and thereafter  attempts to commit the offence. If the attempt succeeds,  he has committed the offence; if he fails due to reasons  beyond his control, he is said to have attempted to commit  the offence. Attempt to commit an offence can be said to  begin when the preparations are complete and the culprit  commences to do something with the intention of  committing the offence and which is a step towards the  commission of the offence. The moment he commences to  do an act with the necessary intention, he commences his  attempt to commit the offence. The word ’attempt’ is not  itself defined, and must, therefore, be taken in its ordinary  meaning. This is exactly what the provisions of Section  511 require. An attempt to commit a crime is to be  distinguished from an intention to commit it; and from  preparation made for its commission. Mere intention to  commit an offence, not followed by any act, cannot  constitute an offence. The will is not to be taken for the  deed unless there be some external act which shows that  progress has been made in the direction of it, or towards  maturing and effecting it. Intention is the direction of  conduct towards the object chosen upon considering the  motives which suggest the choice. Preparation consists in  devising or arranging the means or measures necessary  for the commission of the offence. It differs widely from  attempt which is the direct movement towards the

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commission after preparations are made. Preparation to  commit an offence is punishable only when the  preparation is to commit offences under Section 122  (waging war against the Government of India) and Section  399 (preparation to commit dacoity). The dividing line  between a mere preparation and an attempt is sometimes  thin and has to be decided on the facts of each case. There  is a greater degree of determination in attempt as  compared with preparation.             

       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 nor 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 or  consummation/completion. 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.  

       The sine qua non of the offence of rape is  penetration, and not ejaculation. Ejaculation without  penetration constitutes an attempt to commit rape and  not actual rape.  Definition of "rape" as contained in  Section 375 IPC refers to "sexual intercourse" and the  Explanation appended to the Section provides that  penetration is sufficient to constitute the sexual  intercourse necessary to the offence of rape.  Intercourse  means sexual connection.  In the instant case that  connection has been clearly established.  Courts below  were perfectly justified  in their view.                    When the evidence of the prosecutrix is considered in  the proper perspective, it is clear that the commission of  actual rape has been established.  

The evidence of PW-7 is also relevant.  It has been  noted by the High Court as follows:

"PW-7, Dr. Asha Saxena has  deposed to have examined PW-1, Jalebia  on 29.2.1998 and she had found  superficial laceration present over  perineum just at the bottom of Labia  Majora and Labia Minora, the size of  which is < cms. x < cms.  She has  further deposed that the hymen  membrane of the victim was found torn  and there was fresh bleeding from slight  touch and she has also found that her  vaginal orifice admits one finger with  difficulty."

  Above being the position, we find no merit in this  appeal which is accordingly dismissed.  We record our  appreciation for Ms. Promila, learned Amicus Curiae who

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placed the relevant materials for consideration.