Removing Girl's Innerwear, Undressing Oneself Not 'Attempt To Rape' But Indecent Assault: Rajasthan High Court

The Rajasthan High Court has held that the act of removing a girl's innerwear and undressing oneself with nothing more will not attract the offence of 'attempt to commit rape' under Section 376 read with Section 511 of IPC but it will attract the offence of Assault to outrage modesty of a woman punishable under Section 354 IPC.

In holding so, a bench of Justice Anoop Kumar Dhand emphasized on what constitutes an "attempt" and the distinction between an attempt to commit rape and to commit indecent assault. It said that for the former, the accused must have gone beyond the stage of preparation.

The Court explained that for the offence of “attempt”, 3 stages needed to be fulfilled- firstly, there must be an intention to commit the offence; secondly, an act towards the commission of that offence; and thirdly, the act must be close enough to the culmination of the crime. On the other hand, the Court elaborated that any act that fell short of such an act that crossed the stage of preparation constituted indecent assault under Section 354 IPC.

"The first stage exists when the culprit first entertains the idea or intention to commit an offence. In the second stage, he makes preparations to commit it. The third stage is reached when the culprit takes deliberate overt steps to commit the offence. Such overt act or step in order to be “criminal” need not be the penultimate act towards the commission of offence. It is sufficient if such act or acts were deliberately done and manifest a clear intention to commit the offence aimed, being reasonably proximate to the consummation of the offence," it said.

In the instant case, there was no allegation that the accused attempted penetration. As per the 6 year old prosecutrix, accused undressed both her and himself and fled the scene when she made hue and cry.

Court then referred to the case of Sittu v State of Rajasthan, where the girl was forcibly made naked and the accused attempted to penetrate her despite her resistance. This act was seen as crossing the stage of preparation and amounted to attempting to commit rape. In the case of Damodar Behera v State of Orissa however, the accused was alleged to have removed victim's saree but he fled away on seeing some persons. This act was not seen as reaching the stage of attempt to commit rape but fulfilling the conditions of an indecent assault under Section 354 IPC.

In this backdrop Court held,

"Looking to the fact that the allegations have been levelled against the appellant, that he took-off the inner wear of the prosecutrix 'D' and also undressed himself, certainly, such act of the appellant does not amount to commission of offence under Section 376/511 IPC... In other words, accused appellant cannot be held to be guilty of attempt to commit rape. The prosecution has been able to prove the case of assault or use of illegal force on the prosecutrix 'D' (PW-2) with an intention to outrage her modesty or with knowledge that her modesty was likely to be outraged. Thus, it is a clear case of Section 354 I.P.C. as the act of present accused has not proceeded beyond the stage of preparation."

Accordingly, Court modified the accused' conviction and sentence.

Citation: 2024 LiveLaw (Raj) 108

Title: Suwalal v State of Rajasthan

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