Kumar & Anr Vs. State of Haryana 
Insc 83 (10 February
Raju & Arijit Pasayat. Arijit Pasayat,J
appellants faced trial for having allegedly committed rape on a girl of tender
age whose name need not be indicated and she can be described as the victim or
the prosecutrix. The trial Court found the accused persons guilty of offence
punishable under Section 376 (2)(g) of the Indian Penal Code, 1860 (in short
the 'IPC'). They were each sentenced to undergo imprisonment for 10 years and
to pay a fine of Rs.500/-each with default stipulation. In appeal, the
conviction and sentence were upheld.
version in a nutshell is that on 5.8.1993 the prosecutrix had gone to the field
to ease herself at about 10.00
a.m. When she had
reached near the field, the accused persons caught hold of her right arm and
dragged her forcibly to the field. Accused Shiv Dayal shut her mouth with her chuni
and both the accused persons thereafter forcibly raped her. They threatened to
kill her if she told about the incident to anybody. She went to her house
weeping and narrated the incident to her mother. One Karan Singh had seen the
accused persons going away from the field. Since the father (PW-11) and brother
of the prosecutrix were not at home the mother (PW-9) described the incident to
a member of the Panchayat (PW-12). Report was lodged with police on 7.8.1993.
Investigation was undertaken. The prosecutrix was medically examined and the
accused persons after arrest were also medically examined. After completion of
investigation, charge sheet was filed for alleged commission of offence
punishable under Section 376/506 IPC.
accused persons pleaded innocence, the trial was held. Thirteen witnesses were
examined to further the prosecution version. The prosecutrix was examined as
PW-7 while her mother was examined as PW-9 and father as PW-11.
accused persons pleaded that they have been falsely implicated. As Ran Singh,
the brother of the prosecutrix had mis-appropriated funds of a temple and the
accused persons had made a grievance, a meeting was held on 5.8.1993 where the
allegations were specifically made. On 6.8.1993, Ran Singh and his friends had
stopped the accused-Aman and had given him lathi blows. The accused Shiv Dayal
and others had come to his rescue and he was taken to the hospital where he
remained till 12.8.1993. On the basis of a complaint made by Ami Chand, brother
of accused Aman, a case had also been instituted against Ran Singh and Others.
The accused persons examined a doctor who stated that on 6.8.1993 he had
examined accused Aman and found several injuries on his person. Another witness
was examined to show about the assaults by Ran Singh and others. During trial,
interestingly except the prosecutrix no other witness of relevance including
the mother of the prosecutrix, her father and Karan Singh who had supposedly
seen the accused persons going away from the field immediately after the
occurrence, supported the prosecution version. The trial Court held that even
though the mother of the prosecutrix and other witnesses whose evidence would
have thrown some light had not supported the prosecution version, yet the
testimony of the prosecutrix herself was considered sufficient for the
conviction to be made and accordingly conviction was done as afore-stated.
Similar was the view taken by the High Court in the appeal filed by the accused
support of the appeal, learned counsel for the appellants submitted that the
prosecution version is highly improbable. Though the prosecutrix's evidence
alone can form the foundation of conviction, yet in the background facts of the
present case, it is clearly indicated that there was false implication on
account of differences between the accused persons and the brother of the prosecutrix,
and the Courts below should not have acted on her evidence.
the evidence of the prosecutrix even if accepted does not prove commission of
rape and the medical evidence also supports such a view. At the most, on the
evidence taken on its entirety, and even if accepted to be true, it can be said
that there was a preparation to commit rape, but the act was not actually done.
contra, learned counsel for the State submitted that in our traditional bound
country a rural girl of tender age would not tarnish or damage her own
reputation and image merely because her brother had any dispute with or
animosity against the accused persons by volunteering to falsely claim that she
had been raped and defiled. According to him, the evidence not only shows the
intention to commit the rape, an attempt to do it and successful completion
the evidence of PW-7 cannot be discarded. The reasons as to why some of the
prosecution witnesses including the mother of the prosecutrix did not support
the prosecution case during the stage of trial, have been noticed by the trial
Court and the High Court. It has been noted that on the date of their evidence,
the case against brother of the prosecutrix was posted and it appeared that
compromise had been arrived at to bury the hatchets.
the Courts below were not prepared to give much weight to the evidence of those
who turned hostile, or consider it to be a just ground to discard the evidence
of the prosecutrix for purpose of rejecting the case of the prosecution.
well settled that a prosecutrix complaining of having been a victim of the
offence of rape is not an accomplice after the crime. There is no rule of law
that her testimony cannot be acted without corroboration in material
particulars. She stands at a higher pedestal than an injured witness. In the
latter case, there is injury on the physical form, while in the former it is both
physical as well as psychological and emotional. However, if the court of facts
finds it difficult to accept the version of the prosecutrix on its face value,
it may search for evidence, direct or circumstantial, which would lend
assurance to her testimony.
short of corroboration as understood in the context of an accomplice would
offence of rape occurs in Chapter XVI of IPC. It is an offence affecting the
human body. In that Chapter, there is a separate heading for "Sexual
offences", which encompass Sections 375, 376, 376A, 376B, 376C and 376D.
is defined in Section 375. Sections 375 and 376 have been substantially changed
by Criminal Law (Amendment) Act, 1983, and several new sections were introduced
by the new Act, i.e. 376A, 376B, 376C and 376D. The fast sweeping changes
introduced reflect the legislative intent to curb with iron hand, the offence
of rape which affects the dignity of a woman. The offence of rape in its
simplest term is 'the ravishment of a woman, without her consent, by force,
fear or fraud', or as 'the carnal knowledge of a woman by force against her
will'. 'Rape or Raptus' is when a man hath carnal knowledge of a woman by force
and against her will (Co.Litt. 123 b); or, as expressed more fully, 'rape is
the carnal knowledge of any woman, above the age of particular years, against
her will; or of a woman child, under that age, with or against her will'. (Hale
P.C. 628) The essential words in an indictment for rape are rapuit and carnaliter
cognovit; but carnaliter cognovit, nor any other circumlocution without the
word rapuit, are not sufficient in a legal sense to express rape: (1 Hen. 6,
1a, 9 Edw. 4, 26 a (Hale P.C.628). In the crime of rape, 'carnal knowledge'
means the penetration to any the slightest degree of the organ alleged to have
been carnally known by the male organ of generation (Stephens Criminal Law, 9th
Ed.,p.262). In "Encyclopedia of Crime and Justice" (Volume 4, page
1356), it is stated "......even slight penetration is sufficient and
emission is unnecessary". In Halsburys' Statutes of England and Wales (Fourth Edition) Volume 12, it is
stated that even the slightest degree of penetration is sufficient to prove
sexual intercourse. It is violation, with violence, of the private person of a
woman, an outrage by all means. By the very nature of the offence it is an
obnoxious act of the high order.
is the sine qua non for an offence of rape.
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 (See Joseph Lines IC & K
893). It is well-known in the medical world that the examination of smegma
loses all importance after twenty four hours of the performance of the sexual
intercourse. (See Dr. S.P. Kohli, Civil Surgeon, Ferozepur v. High Court of
Punjab and Haryana thr. Registrar (1979) 1 SCC 212). In rape cases, if the
gland of the male organ is covered by smegma, it negatives the possibility of
recent complete penetration. If the accused is not circumcised, the existence
of smegma round the corona gland is proof against penetration, since it is
rubbed off during the act. The smegma accumulates if no bath is taken within
twenty four hours. The rupture of hymen is by no means necessary to constitute
the offence of rape. Even a slight penetration in the vulva is sufficient to
constitute the offence of rape and rupture of the hymen is not necessary. Vulva
penetration with or without violence is as much rape as vaginal penetration.
The statute merely requires evidence of penetration, and this may occur with
the hymen remaining intact. The actus reus
is complete with penetration. It is well settled that the prosecutrix cannot be
considered as accomplice and, therefore, her testimony cannot be equated with
that of an accomplice in an offence of rape. In examination of genital organs,
state of hymen offers the most reliable clue. While examining the hymen,
certain anatomical characteristics should be remembered before assigning any
significance to the findings. The shape and the texture of the hymen is
variable. This variation, sometimes permits penetration without injury.
is possible because of the peculiar shape of the orifice or increased
elasticity. On the other hand, sometimes the hymen may be more firm, less
elastic and gets stretched and lacerated earlier. Thus a relatively less
forceful penetration may not give rise to injuries ordinarily possible with a
forceful attempt. The anatomical feature with regard to hymen which merits
consideration is its anatomical situation. Next to hymen in positive
importance, but more than that in frequency, are the injuries on labia majora.
These, viz. labia majora are the first to be encountered by the male organ.
They are subjected to blunt forceful blows, depending on the vigour and force
used by the accused and counteracted by the victim. Further, examination of the
females for marks of injuries elsewhere on the body forms a very important
piece of evidence. To constitute the offence of rape, it is not necessary that
there should be complete penetration of the penis with emission of semen and
rupture of hymen. Partial penetration within the labia majora of the vulva or
pudendum with or without emission of semen is sufficient to constitute the
offence of rape as defined in the law. The depth of penetration is immaterial
in an offence punishable under Section 376 IPC.
plea relating to applicability of Section 376 read with Section 511, IPC needs
careful consideration. In every crime, there is first, intention to commit,
secondly preparation to commit it, thirdly, attempt to commit it. If the third
stage, that is, attempt is successful, then the crime is complete. If the
attempt fails the crime is not complete, but law punishes the person attempting
511 is a general provision dealing with attempts to commit offences not made
punishable by other specific sections. It makes punishable all attempts to
commit offences punishable with imprisonment and not only those punishable with
death. An attempt is made punishable, because every attempt, although it falls
short of success, must create alarm, which by itself is an injury, and the
moral guilt of the offender is the same as if he had succeeded. Moral guilt
must be united to injury in order to justify punishment. As the injury is not
as great as if the act had been committed, only half the punishment is awarded.
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 it fails due to reasons beyond his
control, he is said to have attempted to commit the offence.
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.
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.
intention to commit an offence, not followed by any act, cannot constitute an
offence. The will is not 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.
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 commission after preparations are made.
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
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. 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.
order to find an accused guilty of an attempt with intent to commit a rape,
Court has to 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 notwithstanding any resistance on her part.
Indecent assaults are often magnified into attempts at rape. In order to come
to a conclusion that the conduct of the accused was indicative of a
determination to gratify his passion at all events, and in spite of all
resistance, materials must exist. Surrounding circumstances many times throw
beacon light on that aspect.
the prosecutrix's version in Court was of rape, when it is compared with the
one given during investigation, certain irreconcilable discrepancies are
noticed. The evidence regarding actual commission of rape is at variance from
what was recorded by police during evidence. The evidence of PW-11, the father
who according to prosecution made departure from what he allegedly stated
during investigation is to the effect that his wife PW-9 told her that the prosecutrix
was teased by the accused persons.
because he was termed as a hostile witness his entire evidence does not get effected.
Significantly, the evidence of prosecutrix and the doctor does not specifically
refer to penetration which is sine qua non for the offence of rape.
is no material to show that the accused were determined to have sexual
intercourse in all events. In the aforesaid background, the offence cannot be
said to be an attempt to commit rape to attract culpability under Section
376/511 IPC. But the case is certainly one of indecent assault upon a woman.
Essential ingredients of the offence punishable under Section 354 IPC are that
the person assaulted must be a woman, and the accused must have used criminal
force on her intending thereby to outrage her modesty. What constitutes an
outrage to female modesty is nowhere defined. 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 dress 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
Shorter Oxford Dictionary (Third Edn.) defines the word 'modesty' in relation
to woman as follows:
in manner and conduct; not forward or lowe; Shame-fast; Scrupulously chast."
Modesty can be described 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.
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 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.
that view of the matter, it would be appropriate to set aside the conviction of
the appellants under Section 376 (2)(g) and convict them under Section 354 read
with Section 34 IPC. Custodial sentence of two years each, with a fine of
Rs.500/- each and a default stipulation of three months rigorous imprisonment
in case of failure to pay the fine would meet the ends of justice. The appeal
is allowed to the extent indicated above.