Tarkeshwar Sahu Vs. State of Bihar (Now Jharkhand)  Insc 631 (29 September 2006)
Sinha & Dalveer Bhandari Dalveer Bhandari, J.
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.
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.
prosecution had examined ten witnesses to 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.
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.
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.
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:
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.
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.
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 convicted and sentenced to seven years rigorous
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
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.
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.
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.
portion of the judgment reads as under:
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.
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.
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.
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.
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 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
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 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.
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.
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.
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.
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:-
Against her will.
Without her consent.
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.
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.
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.
With or without her consent, when she is under sixteen years of age.
Explanation. Penetration is sufficient to
constitute the sexual intercourse necessary to the offence of rape.
Exception. 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.
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:-
"It may here
be noticed that Section 375 of the IPC defines rape and the Explanation to
Section 375 reads as follows:
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 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:
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
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".
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
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 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.
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:
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."
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.
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.
Statutes of England and Wales, 4th Edition, Vol. 12, it is sated
that even the slightest degree of penetration is sufficient to prove sexual
of Crime and Justice (Vol. 4 page 1356), it is stated " even slight
penetration is sufficient and emission is unnecessary".
case of Aman Kumar & Anr. v. State of Haryana , this Court stated as under:
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."
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.
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.
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:-
offence proved included in offence charged.
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.
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
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.
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.
the illustrations given in the said section read as under:
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
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."
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.
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:-
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.
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 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".
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?"
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.
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.
366 IPC is set out as under:
abducting or inducing woman to compel her marriage, etc.
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".
essential ingredient of the offence punishable 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.
deem it appropriate to briefly reproduce the ratio of some decided cases.
Ramman v. Emperor , the Full Bench has observed as under:
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:
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:
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
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 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."
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
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
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.
354 IPC reads as under:
criminal force to woman with intent to outrage her modesty.-
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.
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
is given as "womanly propriety of behaviour, scrupulous chastity of
thought, speech and conduct (in man or woman); reserve or sense of shame
proceeding from instinctive aversion to impure or coarse suggestions".
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.
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.
deem it appropriate to reproduce the cases of various Courts indicating
circumstances in which the Court convicted the accused under Section 354 IPC.
State of Kerala v. Hamsa , it was stated as under:
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.
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:
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."
case of State of Punjab v. Major Singh , a three-Judge Bench of this Court
considered the question 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:
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.
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.
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:
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
such, their conviction u/s 354/34 was held proper." The High Court of
Delhi in the case of Jai Chand v.
observed as under:
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:
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 stated as follows:
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:
accused took off a girl's clothes, threw her on the ground and then sat down
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:
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:
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:
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:
a certain act amounts to an 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:
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.
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.
appeal filed by the appellant is partly allowed and disposed of accordingly.