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CASE NO.: Appeal (crl.)  1036 of 2005

PETITIONER: Tarkeshwar Sahu                             

RESPONDENT: State of Bihar (Now Jharkhand)      

DATE OF JUDGMENT: 29/09/2006

BENCH: S.B. SINHA & DALVEER BHANDARI

JUDGMENT: J U D G M E N T

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.

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.

       The prosecution had examined ten witnesses to

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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.    

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 10.3.1999 were won over by the appellant.   There is clear and cogent evidence of PW1 to PW5 on  record supporting the entire prosecution story.  The  prosecutrix, PW7 was declared hostile but in her cross- examination she had clearly mentioned as under: "Tarkeshwar Sahu tried to commit rape on my  person, but did not succeed due to protest  made by me; he used to tease other girls also."   

In further cross-examination, PW7 stated that "I cannot  tell who the person was."

       On the basis of the above statement, PW7 was  declared hostile.  PW8 and PW9 also did not support the  prosecution story and they were also declared hostile.   Ishwar Dayal Singh, Assistant Sub-Inspector was  examined as PW10.  He gave elaborate description of the  Gumti.  He submitted that he had recorded the  statements of the witnesses.  According to the statements  of the witnesses, they saw Tara Muni and Tarkeshwar  coming out of the Gumti.  The prosecutrix clearly stated  that the appellant forcibly took her and kept her inside  the Gumti.  The prosecutrix further stated that the  appellant took her in his lap inside the Gumti and told  her to lie down with the intention to commit rape on her.   The trial court arrived at a finding that the prosecution  had fully established the charge under sections 376/511  IPC against the appellant Tarkeshwar Sahu beyond all  reasonable doubt.  Consequently, the appellant was  found guilty under sections 376/511 IPC and he was

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convicted and sentenced to seven years rigorous  imprisonment.

       Being aggrieved by the judgment of the trial court,  the appellant had preferred an appeal before the  Jharkhand High Court at Ranchi.  The learned Single  Judge carefully scrutinized the entire evidence on record.   The High Court observed that there is a twelve feet wide  road which intervenes between the house of the appellant  and that of the informant PW1, the father of the  prosecutrix.  The Gumti in question was in the east of the  house of the appellant and was on the front of the road.   The Investigating Officer, in para 9 of his evidence, had  deposed that the distance of the Gumti from the place  where prosecutrix had gone to answer the call of nature  was about 50 yards.  The High Court also observed that  there was evidence on record to show that the houses of  PWs 2, 3, 4 and 5 were located close to the said Gumti.   It was established from the evidence on record that the  appellant used to sleep in the said Gumti for the last  three months prior to the alleged incident whereas, his  parents used to sleep in the house.  The High Court had  critically examined the entire prosecution version.   Relevant portion of the judgment reads as under: "PW7 Tara Muni Kumari, the daughter of the  informant has deposed that in the night of the  occurrence she had come out from her house for  nature’s call and one unknown person caught her  and attempted to confine her in the said Gumti  and she raised alarms and the neighbours came  there and they caught the said man.  However,  she was declared hostile by the prosecution.  She  has stated in her cross-examination that it was a  dark night and nothing was visible and she did  not identify that man and she also did not know  his name till date.  

Manju Devi, PW8 mother of Tara Muni Kumari   has deposed that Tara Muni Kumari had come out  of her house for nature’s call and one unknown  person carried her inside the Gumti stuffing her  mouth and on her alarms she came to the Gumti  and saw her daughter and the said man  (Tarkeswar Sahu) coming out of the said Gumti.   She has also deposed that she does not identify  that man.  She has also been declared hostile by  the prosecution.  In her cross-examination, she  has disclosed that the person who has carried her  daughter inside the said Gumti is not the resident  of the locality and she does not identify him.   

Ram Prasad Baitha, PW9 the paternal grand  father of Tara Muni Kumari who has also been  declared hostile by the prosecution has deposed  that Tara Muni Kumari had told her that one  unknown person has carried her to the said  Gumti.  It, therefore, appears from the evidence of  PWs 7,8 and 9 that they have not named the  appellant as a participant in the occurrence  carrying Tara Muni Kumari from the place where  she had gone for nature’s call to the said Gumti.   However, PW7 has deposed very categorically that  the persons who had assembled there had  apprehended the said man and PW3 Deonandan  Sahu has deposed that the said apprehended

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person was none but the appellant who has been  brought to the police station.  It is equally relevant  to mention here that PW7 and PW8 however  corroborates the prosecution case that Tara Muni  Kumari has been carried to the said Gumti and  confined there and she has raised alarms.  PW1  Ram Charan Baitha, the informant has deposed  that on the alarms raised by her daughter Tara  Muni Kumari, he ran to the said Gumti belonging  to the appellant and found Tara Muni Kumari  crying there in front of the said Gumti and the  villagers came there.  However, he has also stated  in the next breath that Tara Muni Kumari was  raising alarms inside the Gumti and the appellant  opened the Gumti and Tara Muni Kumari and the  appellant came out of the said Gumti.  He has  further deposed that on query Tara Muni Kumari  told him that when she had come for the nature’s  call the appellant forcibly carried her and brought  her inside the Gumti where he attempted to ravish  her but because she raised alarms the appellant  could not succeed in ravishing her.   

PW2 Sahdeo Sahu, PW3 Deonandan Sahu  and PW4 Bahadur Baitha in their evidence on  oath has corroborated the testimony of the  informant in material particulars.  PW5 had also  come to the place of occurrence on alarms and  when he reached to the place of occurrence he  found Tara Muni Kumari outside the Gumti and  he was told about the incident.  It, therefore,  stands established by the evidence on the record  that Tara Muni Kumari was carried to the said  Gumti and confined there and on alarms when the  informant and others assembled there she came  out of the said Gumti along with the appellant  who was apprehended by them and brought to the  police station and inside the said Gumti the  appellant had made attempt to ravish her but due  to the intervening circumstance he could not  succeed in his attempt in respect thereof.  Even  PW2 in para 9 of his cross examination has stated  that the parents of the appellant had also  accompanied the informant and others to the said  police station along with the appellant who was  apprehended by the informant and others.  It is a  circumstance of unimpeachable character which  supports the prosecution case regarding the  participation of the appellant in the occurrence in  question and in this view of the matter the  absence of identification of the appellant by PW7  and PW8 does not cut much ice.  Furthermore,  PW10, the I.O. has categorically deposed that PW7  has stated before him that the appellant has lifted  her in his lap and confined her in the Gumti and  attempted to ravish her and PW8 in her statement  has also stated that PW7 Tara Muni had told her  that the appellant has carried her to the said  Gumti.  It, therefore, appears that PW7 and PW8  have deliberately suppressed in their evidence  regarding the identification of the appellant as a  participant in this case.  Thus, the non- identification by PW7 and PW8 of the appellant as  a participant in the occurrence in question in view  of the overwhelming evidence of the other

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witnesses of the prosecution who are natural,  competent and independent witness of the  occurrence does not at all cast a cloud of  suspicion to the credibility of the warf and woof of  the prosecution case."

  The High Court also observed that the prosecution  witnesses had no animus to depose falsely against the  appellant.  According to the impugned judgment, there  was no semblance of enmity between the appellant on  one hand and PWs 1 to 4, 7, 8 and 9 on the other.   According to the High Court, all the witnesses were the  most natural and independent witnesses of the incident  and there was nothing on record to show that they had  any animus, grudge or vendetta against the appellant to  depose falsely against the appellant.  In this view of the  matter, the High Court did not see any justification in  discarding their testimony.  The High Court  independently came to the finding that false implication  of the appellant was totally ruled out in the facts and  circumstances of this case.  According to the High Court,  the trial court was perfectly justified in awarding the  sentence of seven years rigorous imprisonment to the  appellant and consequently the appeal filed by the  appellant was dismissed by the High Court.

               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.  In order to arrive at the correct  conclusion, we deem it appropriate to examine the basic  ingredients of section 375 IPC punishable under Section  376 IPC to demonstrate whether the conviction of the  appellant under Sections 376/511 IPC is sustainable.  "375. Rape.--A man is said to commit "rape" who,  except in the case hereinafter excepted, has sexual  intercourse with a woman under circumstances  falling under any of the six following descriptions:- First. \026 Against her will.  Secondly. \026 Without her consent.  

Thirdly. \026  With her consent, when her consent  has been obtained by putting her or  any person in whom she is interested  in fear of death or of hurt.

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Fourthly. \026 With her consent, when the man knows  that he is not her husband, and that  her consent is given because she  believes that he is another man to  whom she is or believes herself to be  lawfully married.

Fifthly. \026  With her consent, when, at the time of  giving such consent, by reason of  unsoundness of mind or intoxication or  the administration by him personally  or through another of any stupefying or  unwholesome substance, she is unable  to understand the nature and  consequences of that to which she  gives consent.

Sixthly. \026  With or without her consent, when she  is under sixteen years of age.  

Explanation.\026 Penetration is sufficient to  constitute the sexual intercourse necessary to the  offence of rape.

Exception.\026 Sexual intercourse by a man  with his own wife, the wife not being under fifteen  years of age, is not rape."

       Under Section 375 IPC, six categories indicated  above are the basic ingredients of the offence.  In the  facts and circumstances of this case, the prosecutrix was  about 12 years of age, therefore, 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  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.  This Court had an occasion  to deal with the basic ingredients of this offence in the  case of State of U.P. v. Babul Nath .  In this case, this  Court dealt with the basic ingredients of the offence  under Section 375 in the following words:- "8.     It may here be noticed that Section 375 of  the IPC defines rape and the Explanation to  Section 375 reads as follows: "Explanation:\026 Penetration is  sufficient to constitute the sexual  intercourse necessary to the offence of  rape." From the Explanation reproduced above it is  distinctly clear that ingredients which are  essential for proving a charge of rape are the  accomplishment of the act with force and

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resistance. To constitute the offence of rape  neither Section 375 of IPC nor the Explanation  attached thereto require that there should  necessarily be complete penetration of the penis  into the private part of the victim/prosecutrix. In  other words to constitute the offence of rape it is  not at all necessary that there should be complete  penetration of the male organ with emission of  semen and rupture of hymen. Even partial or  slightest 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  would be quite enough for the purpose of Sections  375 and 376 of IPC.  That being so it is quite  possible to commit legally the offence of rape even  without causing any injury to the genitals or  leaving any seminal stains. But in the present  case before us as noticed above there is more than  enough evidence positively showing that there was  sexual activity on the victim and she was  subjected to sexual assault without which she  would not have sustained injuries of the nature  found on her private part by the doctor who  examined her." [ The ingredients of the offence have also been  examined by the Kerala High Court in the case of State  of Kerala v. Kundumkara Govindam .  In this case,  the Court observed as under: "The crux of the offence u/s 376 IPC is rape and it  postulates a sexual intercourse.  The word  "intercourse" means sexual connection.  It may be  defined as mutual frequent action by members of  independent organization.  By a metaphor the  word "intercourse" like the word "commerce" is  applied to the relation of sexes.  In intercourse  there is temporary visitation of one organization by  a member of the other organization for certain  clearly defined and limited objects.  The primary  object of the visiting organization is to obtain  euphoria by means of a detent of the nerves  consequent on the sexual crisis. There is no  intercourse unless the visiting member is  enveloped at least partially by the visited  organization, for intercourse connotes reciprocity.   In intercourse between thighs the visiting male  organ is enveloped at least partially by the  organism visited, the thighs; the thighs are kept  together and tight."  

       The word "penetrate", according to Concise Oxford  Dictionary means "find access into or through, pass  through".         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 376 IPC.         Position of law in England is the same.  To  constitute the offence of rape, there must be a  penetration .  Even the slightest, penetration will be  sufficient.   Where a penetration was proved, but not of  such a depth as to injure the hymen, still it was held to

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be sufficient to constitute the crime of rape.  This  principle has been laid down in R v. M’Rue  and R v.  Allen .  In the case of R v. Hughes  and R v. Lines , the  Court has taken the view that ’proof of the rupture of the  hymen is unnecessary’.  In the case of R v. Marsden ,  the Court has laid down that ’it is now unnecessary to  prove actual emission of seed; sexual intercourse is  deemed complete upon proof of penetration only.          In the case of Nirmal Kumar v. State , the Court  held as under:- "Even slightest degree of penetration of the vulva  by the penis with or without emission of semen is  sufficient to constitute the offence of rape.  The  accused in this case had committed rape upon a  minor girl aged 4 years and he could not explain  the reasons regarding congestion of labia majora,  labia minora and redness of inner side of labia  minor and vaginal mucosa of victim.  Stains of  semen were also found on the underwear worn by  the accused.  The conviction of accused held  proper."  

The distinction between rape and criminal assault  has been aptly described in the English case Rex v.  James Lloyd . In this case, while summing up the  charge to the jury, Justice Patterson observed:         "In order to find the prisoner guilty of an  assault with intent to commit a rape, you must be  satisfied that the prisoner, 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."

       A similar case was decided by Mirza and Broomfield  JJ. of the Bombay High Court in Ahmed Asalt  Mirkhan .  In that case the complainant, a milkmaid,  aged 12 or 13 years, who was hawking milk, entered the  accused house to deliver milk.  The accused got up from  the bed on which he was lying and chained the door from  inside.  He then removed his clothes and the girl’s  petticoat, picked her up, laid her on the bed, and sat on  her chest.  He put his hand over ’her mouth to prevent  her crying and placed his private part against hers.   There was no penetration.  The girl struggled and cried  and so the accused desisted and she got up, unchained  the door and went out.  It was held that the accused was  not guilty of attempt to commit rape but of indecent  assault.  The point of distinction between an offence 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 is just going to have sexual  connection with her.

       In Halsbury’s Statutes of England and Wales, 4th  Edition, Vol. 12, it is sated that even the slightest degree  of penetration is sufficient to prove sexual intercourse.   

       In Encyclopaedia of Crime and Justice (Vol. 4 page  1356), it is stated "\005 even slight penetration is sufficient  and emission is unnecessary".

       In the case of Aman Kumar & Anr. v. State of  Haryana , this Court stated as under:

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       "Penetration is the sine qua non for an  offence of rape.  In order to constitute  penetration, there must be evidence clear and  cogent to prove that some part of the virile  member of the accused was within the labia of  the pudendum of the woman, no matter how  little."

In view of the catena of judgments of Indian and  English Courts, it is abundantly clear that slight degree  of penetration of the penis in vagina is sufficient to hold  accused guilty for the offence under Section 375 IPC  punishable under Section 376 IPC.  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.   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.  Section 222 Cr.P.C. reads as under:- "222.   When offence proved included in  offence charged.\027(1) When a person is charged  with an offence consisting of several particulars, a  combination of some only of which constitutes a  complete minor offence, and such combination is  proved, but the remaining particulars are not  proved, he may be convicted of the minor offence,  though he was not charged with it.         (2)     When a person is charged with an  offence and facts are proved which reduce it to a  minor offence, he may be convicted of the minor  offence, although he is not charged with it.         (3)     When a person is charged with an  offence, he may be convicted of an attempt to  commit such offence although the attempt is not  separately charged.         (4)     Nothing in this section shall be deemed  to authorise a conviction of any minor offence  where the conditions requisite for the initiation of  proceedings in respect of that minor offence have  not been satisfied."

       In this section, two illustrations have been given  which would amply describe that when an accused is  charged with major offence and the ingredients of the  major offence are missing and ingredients of minor  offence are made out then he may be convicted for the  minor offence even though he was not charged with it.   Both the illustrations given in the said section read as

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under:  "(a)    A is charged under section 407 of the Indian  Penal Code (45 of 1860) with criminal breach of  trust in respect of property entrusted to him as a  carrier. It appears that he did commit criminal  breach of trust under section 406 of that Code in  respect of the property, but that it was not  entrusted to him as a carrier. He may be convicted  of criminal breach of trust under the said section  406. (b)     A is charged under section 325 of the Indian  Penal Code (45 of 1860), with causing grievous  hurt. He proves that he acted on grave and  sudden provocation. He may be convicted under  section 335 of that Code."

       In the case Lakhjit Singh & Another v. State of  Punjab , this Court had an occasion to examine the  similar question of law.  In this case, the accused was  charged and tried under Section 302 of the Indian Penal  Code but ingredients of Section 302 were missing but  ingredients of Section 306 were present, therefore, the  Court deemed it proper to convert the conviction of the  appellant from Section 302 to Section 306 IPC.  In this  case, it was urged that the accused cannot be tried under  Section 306 IPC because the accused were not put to  notice to meet a charge under Section 306 IPC and,  therefore, they are prejudiced by not framing a charge  under Section 306 IPC; therefore, presumption under  Section 113-A of Indian Evidence Act cannot be drawn  and consequently a conviction under Section 306 IPC  cannot be awarded.  According to this Court, in the facts  and circumstances, section 306 was attracted and the  appellants’ conviction under Section 302 IPC was set  aside and instead they were convicted under section 306  IPC.         A three-Judge Bench of this Court in the case of  Shamnsaheb M. Multtani v. State of Karnataka  had  an occasion to deal with Section 222 of the Code of  Criminal Procedure.  The Court came to the conclusion  that when an accused is charged with a major offence  and if the ingredients of major offence are not proved, the  accused can be convicted for minor offence, if ingredients  of minor offence are available.  The relevant discussion is  in paragraphs 16, 17 and 18 of the judgment, which read  as under:- "16.    What is meant by "a minor offence" for the  purpose of Section 222 of the Code?  Although the  said expression is not defined in the Code it can  be discerned from the context that the test of  minor offence is not merely that the prescribed  punishment is less than the major offence.  The  two illustrations provided in the section would  bring the above point home well.  Only if the two  offences are cognate offences, wherein the main  ingredients are common, the one punishable  among them with a lesser sentence can be  regarded as a minor offence vis-‘-vis the other  offence. 17.     The composition of the offence under Section  304-B IPC is vastly different from the formation of  the offence of murder under Section 302 IPC and  hence the former cannot be regarded as minor  offence vis-‘-vis the latter.  However, the position  would be different when the charge also contains

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the offence under Section 498-A IPC (husband or  relative of husband of a woman subjecting her to  cruelty).  As the world "cruelty" is explained as  including, inter alia, "harassment of the woman where such  harassment is with a view to coercing her or  any person related to her to meet any  unlawful demand for any property or  valuable security or is on account of failure  by her or any person related to her to meet  such demand". 18.     So when a person is charged with an offence  under Section 302 and 498-A IPC on the  allegation that he caused the death of a bride after  subjecting her to harassment with a demand for  dowry, within a period of 7 years of marriage, a  situation may arise, as in this case, that the  offence of murder is not established as against the  accused.  Nonetheless, all other ingredients  necessary for the offence under Section 304-B IPC  would stand established.  Can the accused be  convicted in such a case for the offence under  Section 304-B IPC without the said offence  forming part of the charge?"

On careful analysis of the prosecution evidence and  documents on record, the appellant cannot be held guilty  for committing an offence punishable under Sections  376/511 IPC. According to the version of the prosecution,  the appellant had forcibly taken the prosecutrix to his  Gumti for committing illicit intercourse with her. But  before the appellant could ravish the prosecutrix, she  raised an alarm and immediately thereafter, her father  PW1 Ram Charan Baitha and other co-villagers residing  in the vicinity assembled at the spot and immediately  thereafter, the appellant and the prosecutrix came out of  the Gumti.  In this view of the matter, no offence under  Sections 376/511 IPC is made out.   In this view of the matter, it has become imperative  to examine the legal position whether the offence of the  appellant falls within the four corners of other provisions  incorporated in the Indian Penal Code relating to  outraging the modesty of a woman/girl under Sections  366 and 354. Section 366 IPC is set out as under: "366. Kidnapping, abducting or inducing  woman to compel her marriage, etc. \026 Whoever  kidnaps or abducts any woman with intent that  she may be compelled, or knowing it to be likely  that she will be compelled, to marry any person  against her will, or in order that she may be forced  or seduced to illicit intercourse, or knowing it to  be likely that she will be forced or seduced to illicit  intercourse, shall be punished with imprisonment  of either description for a term which may extend  to ten years, and shall also be liable to fine; and  whoever, by means of criminal intimidation as  defined in this Code or of abuse of authority or  any other method of compulsion, induces any  woman to go from any place with intent that she  may be, or knowing that it is likely that she will  be, forced or seduced to illicit intercourse with  another person shall be punishable as aforesaid".

       The essential ingredient of the offence punishable

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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.   We deem it appropriate to briefly reproduce the ratio of  some decided cases.

       In Khalilur Ramman v. Emperor , the Full Bench  has observed as under: "The intention of the accused is the basis and the  gravamen of an offence under S. 366.  In  considering whether an offence has been  committed under this section, the volition, the  intention and the conduct of the woman are nihil  ad rem except in so far as they bear upon the  intent with which the accused kidnapped or  abducted her.  If the accused kidnapped or  abducted the woman with the necessary intent,  the offence is complete whether or not the accused  succeeded in effecting his purpose, and even if in  the event the woman in fact consented to the  marriage or the illicit intercourse taking place."

This Court in Rajendra v. State of Maharashtra   observed as under: "Where the Courts had given cogent and  convincing reasons for recording their finding that  the accused had kidnapped the victim girl with  intent to seduce her to illicit intercourse,  conviction of accused under S. 366 was not  interfered with."

       The High Court of Delhi in Niranjan Singh v. State  (Delhi)  indicated that in what circumstances an offence  under Section 366 IPC is made out.  In this case, the  Court, while dealing with a case under Section 366 IPC,  observed as under: "Where from the statement of prosecutrix, a  girl of six years age it was evident that the accused  took her on the pretext of getting her some  biscuits to public toilets took off her salwar and  also his own pant made her to lie on the floor and  bent down on her when he was caught hold by a  watchman in the locality, the accused would not  be guilty of an attempt to rape however he would  be guilty of an offence under S. 366 IPC."

       In Vishnu v. State of Maharashtra , the High  Court of Bombay observed as under: "The accused were alleged to have kidnapped the  girl below 16 years of age from the lawful  guardianship of her parents and taken her to  another city.  The co-accused had simply met the  girl and had not instigated her to accompany the  accused. Hence, her conviction was set aside.  So  far accused was concerned, his offence of  kidnapping was proved beyond all doubts and he

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was convicted u/s 363/366 IPC.  Accused was  however acquitted of the charge of rape u/s 375  IPC as hymen of girl was intact and there were no  outward sign of injuries or violence suggesting the  sexual intercourse and consequently no rape  could be said to have taken place."   

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.    

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.    

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.   

Section 354 IPC reads as under:         "354. Assault or criminal force to woman  with intent to outrage her modesty.- Whoever  assaults or uses criminal force to any woman,  intending to outrage or knowing it to be likely that  he will thereby outrage her modesty, shall be  punished with imprisonment of either description  for a term which may extend to two years, or with  fine, or with both."

So far as the offence under Section 354 IPC is  concerned, intention to outrage the modesty of the  women or knowledge that the act of the accused would  result in outraging her modesty is the gravamen of the  offence.

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 is an  attribute associated with female human beings as a  class.  It is a virtue which attaches to a female owing to  her sex.

’Modesty’ is given as "womanly propriety of  behaviour, scrupulous chastity of thought, speech and

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conduct (in man or woman); reserve or sense of shame  proceeding from instinctive aversion to impure or coarse  suggestions".  

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.   

The word ’modesty’ is not to be interpreted with  reference to the particular victim of the act, but as an  attribute associated with female human beings as a  class.  It is a virtue which attaches to a female on  account of her sex.   

We deem it appropriate to reproduce the cases of  various Courts indicating circumstances in which the  Court convicted the accused under Section 354 IPC.

In State of Kerala v. Hamsa , it was stated as  under: "What the legislature had in mind when it  used the word modesty in Sections 354 and 509 of  the Penal Code was protection of an attribute  which is peculiar to woman, as a virtue which  attaches to a female on account of her sex.   Modesty is the attribute of female sex and she  possesses it irrespective of her age.  The two  offences were created not only in the interest of  the woman concerned, but in the interest of public  morality as well.  The question of infringing the  modesty of a woman would of course depend upon  the customs and habits of the people.  Acts which  are outrageous to morality would be outrageous to  modesty of women.  No particular yardstick of  universal application can be made for measuring  the amplitude of modesty of woman, as it may  vary from country to country or society to society."  

A well known author Kenny in his book "Outlines  of Criminal Law"  has dealt with the aspect of indecent  assault upon a female.  The relevant passage reads as  under:  "In England by the Sexual Offences Act,  1956, an indecent assault upon a female (of any  age) is made a misdemeanour and on a charge for  indecent assault upon a child or young person  under the age of sixteen it is no defence that she  (or he) consented to the act of indecency."

In the case of State of Punjab v. Major Singh , a  three-Judge Bench of this Court considered the question  \026 whether modesty of a female child of 7= months can  also be outraged.  The majority view was in affirmative.    Bachawat, J., on behalf of majority, opined as under: "The offence punishable under section 354  is an assault on or use of criminal force to a  woman the intention of outraging her modesty or  with the knowledge of the likelihood of doing so.  

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The Code does not define, "modesty".  What then  is a woman’s modesty?

The essence of a woman’s modesty is her  sex.  The modesty of an adult female is writ large  on her body.  Young or old intelligent or imbecile,  awake or sleeping, the woman possesses a  modesty capable of being outraged.  Whoever uses  criminal force to her with intent to outrage her  modesty commits an offence punishable under  Section 354.  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, as for example, when the accused  with a corrupt mind stealthily touches the flesh of  a sleeping woman.  She may be an idiot, she may  be under the spell of anaesthesia, she may be  sleeping, she may be unable to appreciate the  significance of the act, nevertheless, the offender  is punishable under the section.   

A female of tender age stands on a somewhat  different footing. Here body is immature, and her  sexual powers are dormant.  In this case, the  victim is a baby seven and half months old.  She  has not yet developed a sense of shame and has  no awareness of sex.  Nevertheless from her very  birth she possesses the modesty which is the  attribute of her sex."

In Kanhu Charan Patra v. State , the Orissa  High Court stated as under: "The accused entered the house and broke  open the door which two girls of growing age had  closed from inside and molested them but they  could do nothing more as the girls made good  their escape.  On being prosecuted it was held that  the act of accused was of grave nature and they  had committed the same in a dare devil manner.   As such, their conviction u/s 354/34 was held  proper."  

The High Court of Delhi in the case of Jai Chand v.  State  observed as under:  "The accused in another case had forcibly  laid the prosecutrix on the bed and broken her  pyzama’s string but made no attempt to undress  himself and when prosecutrix pushed him away,  he did make no efforts to grab her again.  It was  held that it was not attempt to rape but only  outraging of the modesty of a woman and  conviction u/s 354 was proper."

In Raja v. State of Rajasthan , it was stated as  under: "The accused took the minor to solitary place  but could not commit rape.  The conviction of  accused was altered from Section 376/511 to one  u/s 354."  

       The Court in State of Karnataka v. Khaleel  

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stated as follows: "The parents reached the sugarcane field  when accused was in process of attempting  molestation and immediately he ran away from the  place.  There was no evidence in support of  allegation of rape and accused was acquitted of  charge u/s 376 but he was held liable for  conviction under section 354/511 IPC."

The Court in Nuna v. Emperor  stated as follows:

"The accused took off a girl’s clothes, threw  her on the ground and then sat down beside her.   He said nothing to her nor did he do anything  more.  It is held that the accused committed an  offence under Section 354 IPC and was not guilty  of an attempt to commit rape."

       The Court in Bishewhwar Murmu v. State  stated  as under: "The evidence showed that accused caught  hold hand of informant/victim and when one of  the prosecution witnesses came there hearing  alarm of victim, offence u/s 376/511 was not  made out and conviction was converted into one  u/s 354 for outraging modesty of victim."  

The Court in Keshab Padhan v. State of Orissa   stated as under: "The test of outrage of modesty is whether a  reasonable man will think that the act of the  offender was intended to or was known to be likely  to outrage the modesty of the woman.  In the  instant case, the girl was 15 years of age and in  the midnight while she was coming back with her  mother the sudden appearance of the petitioner  from a lane and dragging her towards that side  sufficiently established the ingredients of Section  354."

The Court in Ram Mehar v. State of Haryana   stated as under: "The accused caught hold of the prosecutrix,  lifted her and then took her to a bajra field where  he felled her down and tried to open her salwar  but could not do so as in order to make the  accused powerless the prosecutrix had injured  him by giving a blow of the sickle.  The accused  failed to give his blood sample with the result it  could be presumed that his innocence was  doubtful.  Ocular evidence of prosecutrix was also  corroborated by other evidence.  It was held that  conviction of accused u/s 354, 376/511 was  proper but taking the lenient view only two years  RI and a fine of Rs.1000/- was imposed on him."

In the case of Rameshwar v. State of Haryana ,  the Court observed as follows:  "Whether a certain act amounts to an

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attempt to commit a particular offence is a  question of fact dependant on the nature of the  offence and the steps necessary to take in order  to commit it.  The difference between mere  preparation and actual attempt to commit an  offence consists chiefly in the greater degree of  determination.  For an offence of an attempt to  commit rape, the prosecution must establish  that it has gone beyond the stage of preparation."

The Court in Shokut v. State of Rajasthan   stated as follows: "The accused took the prosecutrix nurse for  the purpose of attending a patient but on way he  tried to molest her and beat her also.  The  accused was held guilty u/s 354/366 IPC as he  by deceitful means had taken the prosecutrix  from her house and had then outraged her  modesty."

We have carefully analyzed the provisions  pertaining to outraging of the modesty of a woman/girl  under Sections 376, 366 and 354 of the Indian Penal  Code.  This exercise was undertaken to clearly spell out  ambit and scope of offences under these provisions.  On  the basis of the evidence and documents on record, we  are of the considered opinion that the conviction of the  appellant under Section 376/511 IPC is wholly erroneous  and unsustainable and consequently, the judgments of  the High Court and the trial court are set aside.   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.   The appeal filed by the appellant is partly allowed  and disposed of accordingly.