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Did you know that a rape attempt is not strictly speaking, considered a crime in India? An insight into crime against women
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.
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 and good governance. I am also the proud father of two lovely daughters. read more...
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