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I think you got it- there is no section 000 in the Indian Penal Code! In other words, an attempt to rape is not a crime under Indian law as it exists today. Under the existing law, a man can either rape a woman or criminally assault her to outrage her modesty; he cannot be held guilty of attempting to rape. [Attempt to murder is an offence (section 307); so is attempt to commit culpable homicide (section 308); so is attempt to commit suicide (section 309); so is assault or criminal force in attempt wrongfully to confine a person (section 357); and so is attempt to commit robbery (section 393)]
If you don’t believe my interpretation of the law, here’s what a recent Supreme Court judgment says; but first, the facts of the case:
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 accused, Tarkeshwar Sahu, had forcibly taken her to his hut for having illicit sexual intercourse with her. The girl raised an alarm, and immediately thereafter several persons came from the adjoining houses and caught the accused before he could make any attempt to rape the girl.
Check it out!
The trial court arrived at a finding that the prosecution had fully established the charge under sections 376 (Rape) / 511 (Attempting to commit offences punishable with imprisonment for life or other imprisonment) of the Indian Penal Code against Tarkeshwar Sahu beyond all reasonable doubt. Consequently, Sahu was found guilty under sections 376/511 IPC and he was convicted and sentenced to seven years rigorous imprisonment.
The accused went in appeal to the Jharkhand High Court which dismissed the appeal and held that the trial court was perfectly justified in awarding the sentence of seven years rigorous imprisonment to the appellant under sections 376/511 IPC.
The Supreme Court took recourse to a specific (and to my mind, male-centric) technicality in section 375 IPC which defines rape. This section says, among other things, that “Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape”; in other words, no penetration, no rape.
The Court said, “… 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.” [Tarkeshwar Sahu v. State of Bihar (Now Jharkhand), 2006]
This ruling also quotes a ruling of the Delhi High Court, and I quote,
“”The accused…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….”” [Jai Chand v. State]
The Supreme Court went to further lengths to substantiate that if there is no rape for whatever reason, including whether the accused was caught before he could rape the victim, or that he could not rape because the victim resisted, there is no attempt to rape, either.
In doing so, the Court quotes more judgments, trying to reinforce the view if there is no rape, it amounts only to ‘outraging the modesty of a woman’ and not to an attempt to rape:
““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 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.””
In the Tarkeshwar Sahu case, mercifully, the Court did imprison the accused but under other sections of the Indian Penal Code, reinforcing the feeling that no man in India can attempt rape.
The point I have been making is that Indian law does not recognize an attempt to rape as a crime by itself, and the moment a rapist is unsuccessful in his intentions, his act automatically becomes one of outraging the modesty of a woman (section 354 IPC), an offence carrying a maximum of two years imprisonment, and one which is bailable, whereas the offence of rape carries a minimum punishment of seven years, extendable to life imprisonment, and is non-bailable (section 376 IPC).
I must also mention here that if a woman submits to rape ‘meekly’, it means she consented to the rape. “If a woman meekly submits to sexual intercourse it would be a case of consent”; [State of Maharashtra v. Suresh Nivrutti Bhusare, (1997) 2 Crimes 257 (Bom)]
Further, and I think to add insult to injury, a man, in attempting rape, ejaculated before penetration- the trial court held him guilty of rape; the conviction was upheld by the High Court, but the Supreme Court said that as no penetration had taken place, it was not rape as per definition in section 375, IPC. It reduced the sentence of the accused to three and a half years, saying, “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.” [K Venkat Rao v. State Of Andhra Pradesh, 2004]
Here, at least, the words “attempt to rape” were used but the conviction was half of the minimum seven years prescribed for rape, and the generic section 511, IPC was applied. (The Tarkeshwar Sahu case was decided in 2006, effectively overruling the “attempt to rape” admission in the K Venkat Rao case.)
Now, I have mentioned section 354 (Assault or criminal force to woman with intent to outrage her modesty), but the law nowhere explains what “her modesty” is. The Supreme Court took it upon itself to explain:
“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.” [Raju Pandurang Mahale v. State of Maharashtra, AIR 2004 SC 1677]
If its not rape, its modesty outraged.
PS: I am told that the section on rape will be amended to make it “sexual assault”. Though welcome, this is fraught with contradictions unless sections like 354 and 509 IPC are suitably amended to synchronize with the proposed amendment, but more on that later.
I am a former bureaucrat, and have worked a lot on gender issues, disaster management
To paraphrase Dickens, ‘the law is an ass!’ Conceived and written by males in a male-oriented society, for the benefit of an average male citizen, nothing better can be expected of it. This is precisely why molesters know “they can get away with it.”
And how is the law to know that a woman’s “modesty can be outraged” even if she is subject to so-called appreciative glances if she is not appreciative of said attention? Even if she might be ‘inappropriately dressed?’ No wonder the NCW head ends up talking through her hat!
Very disheartening to read this. I do think that the laws in India regarding women have a long way to go. Granted, that changing the laws will not automatically change the society and there will still be the dastardly few that get away on a mere technicality or a loophole. But it does make for fewer of that and more justice. Definitely more empowerment.
Cannot even imagine the thought process of the woman who was just molested who knows that the entire country and its entire judicial system is actually going to work against her instead of for her. She has nothing behind her but everything in front of her creating a virtually insurmountable obstacle to justice.
Such incidents are a big shame on our legal system.Unless one fine day the ‘men’ in our system feel like ‘o ya we do need to make a law like this’ or there is some kind of pressure from strong social groups nobody would ever care.I might sound a bit rude here but what to do that is the truth! Most women face humiliation someway or the other.Sir,you have been a bureaucrat you know it better than us.Even i dream to be there one day & do something for the society coz i strongly feel that to make big changes one needs to have some power(not true in all cases though).Its experienced people like you who can guide the future generations.
I agree with your broad suggestion that significant changes need to be made in our penal laws in order to catch up with horrendous crimes being committed against females. However I’m a little surprised at your understanding of Supreme Court’s judgments.
Just for the benefit of your readers and for giving them a holistic view of the matter I’ll most humbly take some of your space to state certain things.
First of all it is to be understood that unless a law provides for a certain recourse, the Courts cannot normally take it. Unless of course where the law is written in such a manner or concerns such issues that it leaves a reasonable allowance for judicial activism. The burning examples are the various SITs set up by the Supreme Court in the recent past to investigate into wrongs alleged to have been committed by powerful people or the cancellation of licenses in the 2G scam or refusal of bail for alleged offenders therein. In these areas, the law affords judicial activism unlike criminal law.
Criminal law, unfortunately is not such an area. The reason – since criminal law deals with taking away liberties of people and exposing them to pecuniary penalties, the law has to be strictly interpreted. Courts have no leeway to widely interpret a criminal law provision. The result is that when a particular criminal law provision law is poorly drafted the Court’s have no option other than to act according to it. e.g. Section 497, IPC which says that a woman cannot be punished for adultery. The Supreme Court has recommended a change in this law but cannot act in defiance of it. It cannot punish a woman for adultery even if evidence indicates her culpability. You of all people should understand this handicap before saying that the Supreme Court has taken a male centric approach in Tarkeshwar Sahu’s case.
As is rightly pointed out, the problem is there with the absence of a clearly drafted provision against attempt to commit rape. However, the victim is not left remediless due to the presence of Section 511 of IPC. Now Section 511 is not much differently worded than other “Attempt” sections as pointed out like Ss. 307, 308, 309 etc. in as much as it says that there must have been some act committed towards the commission of the offence. Considering the vagueness of such wording, the term “attempt” was clearly defined by our Courts as such a stage of commission that if there would not have been an intervention the offence would have been committed. e.g. attempt to commit suicide is complete when a man lights himself up with fire, as at this stage had there been no intervention to douse the flames the man would have burnt to death and his act of committing suicide would have been complete. But if he was caught by Police when he simply lit the matchstick after putting kerosene on himself then he cannot be said to have attempted suicide, since there was every likelihood that he might have abandoned the idea of lighting himself up.
What the Supreme Court has done in Tarkeswar Sahu’s case is applied the law as it is. The crime of rape, as it stands today, is complete with penetration. That’s how Section 375, IPc is worded. As I said earlier that due to fundamental principles of interpretation of criminal law provisions the Court had to interpret Section 375 as it is. There is nothing hyper technical or “male centric” about it. Now considering the legal meaning of the term “attempt” s stated above and the definition of rape in Section 375, IPC, since the accused had not undressed himself nor asked the victim to undress how can he be said to have committed attempt to rape. As I said earlier, in criminal law, Courts do not have the liberty to be activists by taking a stand which is not there in the statute. (Well if a particular criminal law provision is perverse, unconstitutional then the Court has plenary powers to strike it down, but once a provision stays in the statute, Court’s have to abide by it.) Hence the verdict of the Court might have been different had the definition of rape been different. To change the definition (of at least the criminal law provisions) is the duty of the Parliament and not of Courts.
I have read the judgment of the Court in the Tarkeshwar Sahu case and I do not find anywhere in it, any suggestion by the Supreme Court which says that if there is no rape for whatever reason, including whether the accused was caught before he could rape the victim, or that he could not rape because the victim resisted, there is no attempt to rape, either. The cases which have been cited in this post to suggest otherwise are to be read fully to understand the proper perspective in which the Court said what it said. In fact the Court in its Tarkeshwar judgment has cited the case of Ram Mehar v. State of Haryana where a person was convicted of attempt to rape.
What has been written in this post tends to give an impression that the Supreme Court is not sensitive to crimes against women. It’s not a fact. I think that your readers should also know that it is the Supreme Court which has observed and declared that even a prostitute has a right to her privacy and no body can take sexual advantage of her without her permission. By virtue of that ruling our Courts have punished offenders for sexually assaulting, harassing / molesting sex workers. I totally endorse the view that every woman, irrespective of her behaviour, must enjoy equal protection of law. The point which I’ve tried to make is that Section 354 , despite containing an apparently narrow term “modesty” is equally applicable for the protection or vindication of all women. irrespective of the popular perception about their modesty. Plus the Court has further held that what is important is what a reasonable man thinks about the action of the offender. If the acts are reasonably perceived to be such as likely to outrage her modesty then the offender will face punishment. Observing that crimes against women should be firmly dealt with and no leniency must be shown to the offender, the Supreme Court in a case, issued notice to a life convict asking him to show cause why the sentence should not be enhanced into one of death penalty for killing his wife and also held that crimes against women are not ordinary crimes committed in a fit of anger or for property. They disrupt the entire social fabric. Hence, they call for harsh punishment. (read @ http://www.thehindu.com/news/national/article886490.ece) But at the same time I agree that there has to be a change in the lenient approach at sentencing offenders to punishment.
At the cost of repetition, I’d like to state that it’s high time that stringent law has to be enacted against molesters and sex offenders and that job is incumbent upon the Parliament not on the Supreme Court. So that if it’s not rape it’s no more just modesty outraged.
the law must be amended with out any loopholes ……..
It shows that in this ”male centered decision making” world, the moment a women ask for justice in rape crimes;she would be raped by law,sections,verdicts,appeals and finally by justice. laws must be made to protect not give loop holes for escapism. men should enlighten men society. women don’t need importance just a right to live in an atmosphere which doesn’t have sexual fear.
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So we should advise women to get raped first if they wish their tormentors to be punished? Sick!
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First of all, the Indian Penal Code 1860 is made to punish Indians by British, that too made on prevailing conditions then, is to be scrapped in toto and a new penal code to suit present social conditions is to be enacted. That is why Dr.Babasaheb Ambedkar included under Article 13(1) of Constitution of India that “All laws in force in the territory of India immediately before the commencement of this Constitution, in so far as they are inconsistent with the provisions of this Part, shall, to the extent of such inconsistency, be void” Further, under Article 13(2) “The State shall not make any law which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause shall, to the extent of the contravention, be void”. These are fundamental rights under Part III of Constitution and can be challenged in Supreme Court under Article 32 of the Constitution (Article 32 itself is a fundamental right, which is nowhere in the world) and Supreme Court is the Guardian of Fundamental Rights. Right to approach High Court under article 226 is not a fundamental right. With regards to existing INDIA PENAL CODE, 1860 it is to be be noted that ATTEMPT is defined separately for certain offences, and other offences (for which there is no express provisions in the Indian Penal Code) SECTION 511 IS INCLUDED. As per sec. 511 “Whoever attempts to commit an offence punishable by this Code with [imprisonment for life] or imprisonment, or to cause such an offence to be committed, and in such attempt does any act towards the commission of the offence, shall, where no express provision is made by this Code for the punishment of such attempt, be punished with imprisonment of any description provided for the offence, for a term which may extend to one-half of the imprisonment for life or, as the case may be, one-half of the longest term of imprisonment provided for that offence, or with such fine as is provided for the offence, or with both”. Hence, ATTEMPT TO RAPE CAN BE PUNISHED UNDER SECTION 511. It is wrong to assume that there is no provision for ATTEMPT TO RAPE. As regards to the Offence of RAPE under SECTION 375 which is punishable under SECTION 376, the punishment is MINIMUM SEVEN YEARS or LIFE TERM or 10 YEARS and FINE and hence for ATTEMPT TO RAPE, as per SECTION 511, the PUNISHMENT shall be MINIMUM THREE AND HALF YEARS or HALF OF LIFE TERM or FIVE YEARS. If someone is saying that section is 511 is for an offence which calls for a minimum of life imprisonment they are wrong. The answer is available in section 511 itself, under the illustration which deals with, as an example, theft. For THEFT the punishment is THREE YEARS so it is an attempt it will be ONE AND HALF YEARS (i.e.Half of Punishment for the offence). Hence, the words in section 511 that “whoever attempts to commit an offence punishable by this Code with [imprisonment for life] or imprisonment” is NOT MEANING LIFE TERM OR HIGHER PUNISMENT but meaning IMPRISONMENT FOR LIFE TERM OR LESS. Evidently, for above Life Term (i.e. Death) for example offence of MURDER separate section for ATTEMPT O MURDER is available. HENCE, SECTION 511 WILL VERY MUCH APPLICABLE FOR ATTEMPT TO RAPE AND HENCE, THE OFFENDER SHOULD NOT ESCAPE THE LAW BY ANY LOOP HOLES IN SECTION 375 / 376 (RAPE), AND SHALL BE PUNISHED FOR HALF OF THE LONGEST PUNISHMENT. When section 511 talks of an attempt for an offence of theft for which the punishment is three years, it can very well cover attempt to all offences for which the punishment is any term of imprisonment upto and including life imprisonment. Don’t leave the accused and punish him with available provisions. Amend the Law for stricter punishments.
In the aftermath of Delhi crime on “Nirbhaya”, the full text of J S Verma commission report is on http://www.thehindu.com/news/resources/full-text-of-justice-vermas-report-pdf/article4339457.ece
Curiously I observed it calls for Section 509 to be repealed which was dealing with outraging modesty, insults to women etc. What is your view on that ?
Also for so-called juveniles (most heinous perpetrator in the Delhi “Nirbhaya” case) it is said that maximum punishment is only 3 years in reform home. This is even less stringent than 3 years jail which is for insulting words on internet according to IT Act Section 66A. Where is the comparison of the punishment fitting the crime ?
In Islamic countries and some East Asian countries such convicted molestors and rapists get flogging punishment which should be included in our system. 3 years in a reform home will do nothing to instill fear in the minds of other potential rapists. Exemplary punishment is required to set society right.
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