Ramkripal S/O Shyamlal Charmakar Vs. State of Madhya Pradesh  Insc 302 (19
Dr. ARIJIT PASAYAT & S.H. KAPADIA
(Arising out of SLP (Crl.) No. 5881 of 2006) Dr. ARIJIT PASAYAT, J.
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
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
In appeal, the conclusions of the Trial Court were affirmed by the High
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;
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 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 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
The evidence of PW-7 is also relevant. It has been noted by the High Court
"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 placed the relevant materials for consideration.