Holding

The conviction under sections 376/511 IPC is unsustainable due to lack of penetration; the appellant is convicted under sections 366 and 354 IPC pursuant to section 222 CrPC.

Summary

The appellant, Tarakeshwar Sahu, was convicted by the trial court and the Jharkhand High Court of rape under sections 376/511 IPC for forcibly taking a 12‑year‑old girl to his gumti with intent to commit sexual intercourse, although the girl was rescued before any act was completed. The Supreme Court examined whether the prosecution proved the essential ingredient of penetration required for a rape conviction and held that no penetration, even attempted, was established. Consequently, the conviction under sections 376/511 IPC was set aside. Invoking section 222 of the CrPC, the Court convicted the appellant of kidnapping with intent to commit illicit intercourse (section 366 IPC) and outraging a woman's modesty (section 354 IPC), sentencing him to five years and two years rigorous imprisonment respectively, to run concurrently. The appeal was partly allowed.

Issues considered

Whether the evidence proved the element of penetration required for a conviction under section 376 IPC.
Whether the appellant can be convicted under a lesser offence (sections 366 and 354 IPC) when the major offence of rape is not proved, under section 222 CrPC.
Whether the act constituted kidnapping with intent to commit illicit intercourse under section 366 IPC.
Whether the act amounted to outraging the modesty of a minor girl under section 354 IPC.

Legislation cited

Code of Criminal Procedure, 1973s. 222
Indian Penal Code, 1860s. 354, s. 366, s. 376, s. 511

Subjects

rapepenetrationsection 376 IPCsection 366 IPCsection 354 IPCsection 222 CrPCkidnappingoutraging modestyminor offencemajor offenceconviction alteration

Judgment

A TARAKESHWAR SAHU
\.'.

ST ATE OF BIHAR (NOW JHARKHAND)

SEPTEMBER 29, 2006

B (S.B. SINHA AND DAL VEER BHANDARI, JJ.]

Penal Code, 1860-Sections 354, 366, 375 and 376-Criminal
Procedure Code, 1973-Section 222-Accused forcibly took a minor with
C intention to commit rape on her and was caught before he could commit the
act-Trial Court convicted the accused under section 376 rlw 511 I PC and
sentenced him to seven years rigorous imprisonment-High Court confirmed
the convlction and sentence awarded by the trial court-Correctness of-
Held, on evidence on record, the accused did not do any penetration into
private part of the victim-Hence, conviction of the accused under section
D 376 r/w 5/I IPC is set aside-Invoking section 222 Cr.P.C., the accused is
convicled under sections 366 and 354 I PC and sentenced to 5 years and 2
years rigorous imprisonment respectively.

Appellant forcibly took prosecutrix, who is a minor, for committing rape
on her. When the prosecutrix raised an alarm, PW 1, PW 2, PW 3, PW 6
E and other co-villagers came immediately and caught the appellant before he
attempted to ravish her. PWl and other villagers went to police station and
lodged a First Information Report. The appellant was charged for the offence
punishable under sections 376/511 IPC. The trial court convicted the appellant
under sections 376/511 IPC and sentenced to seven years imprisonment. The
F High Court, in appeal, confirmed the conviction and sentence awarded by the
trial court. Hence the appeal before this Court.

Partly allowing the appeal, the Court

HELD: I.I. The appellant had forcibly taken her with the intention of
G 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. In
absence of penetration to any extent, it would not bring the offence of the
appellant within the four corners of Section 375 IPC. There has not been any
H 10
TARAKESHW AR SAHU 1·. STA TE OF BIHAR (NOW .IHARKHAND) II
) attempt of penetration to the slightest degree. The conviction under Section A
376/51 t IPC is wholly illegal and unsustainable.119-B-C; 23-BI

State of U.P. v. Babu/ Nath, (199416 SCC 29 and Aman Kumar and Anr.
v. State of Haryana, (200414 SCC 379, referred to.

State of Kera/av. Kundumkara Govindam, 119691 CrLJ 818 and Nirma/ B
Kumar v. State, (2002) CrLJ 3352 (P&H) referred to.

R v. Hill, 117811 1 East PC 4391; R. v. M. Rue (1838) 8 C & P 641; R v.
Allen, (1839) 9 C & P 31; R v. Hughes (1841) 2 Mood 190; R v. Lines, (1844)
1 C & K 393; R v. Marsden (1891) 2 QB 149 and Rex v. James Lloyd, (1836)
7 C and P 317:173 ER 14, referred to. c
Halsburys Statutes of England and Wales, 4th Edition, Vol. 121 and
Encyclopaedia of Crime and Justice (Vol. 4 page 13561, referred to.

1.3. The appellant has forcibly taken the prosecutrix with the intention
of committing illicit intercourse. The offence committed by the appellant would D
fall within the four corners of section 366 IPC. The essential ingredients of
the offence punishable under Section 366 IPC are clearly present in this case.
The act of the accused proves that during the kidnapping of the prosecutrix
or forcibly taking her, the accused had intention or knew it likely that the
prosecutrix would be forced to have illicit intercourse. Hence, it is not a mere
E
case of kidnapping for indecent assault but the purpose for which kidnapping
was done by the accused has been proved. (13-C; 26-F-G; 28-CI

Lakhjit Singh & Anr. v. State of Punjab, (19941 Supp. 1 SCC 173;
Shamnsaheb M. Mu/ttani v. State of Karnataka, (20011 2 SCC 577 and
Rajendra v. State of Maharashtra, (19971 SCC (Cri) 840, referred to. F
Niranjan Singh v. State (Delhi) (1986) 2 Crimes 335 and Vishnu v. State
of Maharashtra, (1997) (CrLJ) 1724 (Born), referred to.

Kha/ilur Ramman v. Emperor, AIR (1933) Rangoon 98, referred to.
G
1.4. On the basis of evidence and documents on record, the appellant is
also guilty under Section 354 IPC because all the ingredients of Section 354
IPC are present. 128-FI

Raju Pandurang Mahale v. State of Maharashtra, (20041 4 SCC 371;
> Rupan Deol Bajaj v. Kanwar Pal Singh Gill, AIR (1996) SC 309 and State of H
l

12 SUPREME COURT REPORTS [2006] SUPP. 7 S.C.R.

A Punjab v. ;\fajor Singh, AIR (1967) SC 63, referred to.
Major Singh lachh111an Singh v. State, AIR (1963) Pun 443; State of
Kercila v. Hamsa, (1988) 3 Crimes 161; Kanhu Charan Patra v. State, (1996)
CrLJ 1151 (Orissa); .Jai Chand v. State, (1996) CrLJ 2039 (Delhi); Raja v.
State of Rajasthan, (1998) CrLJ 1609 Rajasthan; State of Karnataka v.
B Khaleel, (2004) CrLJ NOC 10; Nuna v. Emperor, 15 IC 309: 13 CrLJ 469
and Bishe11"!1\l'ar Murmu v. State (2004) CrLJ 326 (Jharkhand); Keshab
Padhan v. State o/Drissa. (1976) Cuttack LR Cr 236; Ram Mehar v. State of
HmJ1ana, (1998) CrLJ 1999 (Punjab & Haryana); Rameshwar v. State of
Haryana, (1984) CrLJ 786 (Punjab & Haryana) and Shokut v. State of
C Rajasthan, (2002) CrLJ 364 (Rajasthan), referred to.
Outlines of Criminal Law by Kenny (19th Edn.), referred to.

2.3. In view of the foregoing facts and circumstances of the case, the
crime committed by the accused was at initial stage of preparation. The offence
D committed does not come within the purview of offence punishable under
Sections 376/511 IPC. The appellant was charged under Sections 376/511
IPC but on Invoking the provisions of Section 222 Cr.P.C., the accused charged f
with major offence can always be convicted for the minor offence, if necessary
ingredients of minor offer.cc are present. On evaluation of the entire evidence
and documents on record, the appellant is clearly guilty of the offences under
E Sections 366 and 354 IPC. 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. [28-D-E; 34-A-Bf

F CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. I 036 of
2005. •
From the Judgment and Order dated 6.8.2004 of the High Court of
Jharkhand at Ranchi in Crl. A. No. 277/1999.

G Chandrakant, A.C. for the Appellant.

Gopal Prasad and Sarbajit Dutta for the Respondent.

The Judgment of the Court was delivered by

H DALVEER BHANDARI, J. This appeal is directed against the judgment
TARAKESHWARSAHU1·. STATE OF BlHAR(NOW JHARKHAND)[DALVEERl3HANDARl,lj J3
I
of the Jharkhand High Court at Ranchi, Jharkhand passed in Criminal Appeal A
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.
B
Facts 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 C
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 PW I 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 D
came from the adjoining houses and caught the appellant before he could
·" even make any attempt to ravish her. Due to immediate arrival of PW I 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,
PW I 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 E
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 F
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 PW!.

The prosecution had examined ten witnesses to substantiate its case.
The prosecutrix Tara Muni Kumari was examined as PW7. Sahdeo Sahu PW:L, G
a retired school teacher, who resided in the same vicinity. Deonandan Sahu,
another neighbour was examined as PW3. Bahadur Bai th a, 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, H
14 SUPREME COURT REPORTS [2006) SUPP. 7 S.C.R.

A grandfather of the prosecutrix was examined as PW9 and lshwar Dayal Singh,
Assistant Sub-Inspector was examined as PWIO.

The statements of PW I 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
B 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
C 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 PWI to PW5 were recorded during 24.6. 1998 to I5.7. 1998.
Their statements by and large narrate the consistent version. These witnesses
finnly withstood the cross-examination. Other set of witnesses who were
examined later on from 12.8.1998 to I0.3.1999 had not supported the version
D of the prosecution and consequently they were declared hostile. It is quite
evident that the witnesses which were examined from 12.8.1998 to I0.3. I999
were won over by the appellant. There is clear and cogent evidence of PW I
to PW5 on record supporting the entire prosecution story. The prosecutrix,
PW7 was declared hostile but in her cross-examination she had clearly
E mentioned as under:
"Tarkeshwar 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."
F
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. lshwar Dayal Singh, Assistant Sub-Inspector was examined
as PWI 0. He gave elaborate description of the Gumti. He submitted that he
G 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 Gum ti and told her to lie down with the intention
to commit rape on her. The trial court arrived at a finding that the prosecution
H had fully established the charge under sections 376/511 !PC against the
TARAKESHWARSAHU "·STATE OF BIHAR(NOW JHARKHAND) [DAL VEER BHANDARl,J] J5

appellant Tarkeshwar Sahu beyond all reasonable doubt. Consequently, the A
appellant was found guilty under sections 376/511 IPC and he was convicted
and sentenced to seven years rigorous imprisonment.

Being 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 record. The High B
Court observed that there is a twelve feet wide road which intervenes between
the house of the appellant and that of the informant PW 1, 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. The 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.
c
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. It was
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 D
the entire prosecution version. Relevant portion of the judgment reads as
" under:

"PW7 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 E
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. F
Manju Devi, PW& 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 (Tarkeshwar Sahu) coming out of the said Gumti. She 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
G

Gumti is not the resident of the locality and she does not identify him .
.),
" Ram Prasad Baitha, PW9 the paternal grand father of Tara Muni H
16 SUPREME COURT REPORTS [2006] SUPP. 7 S.C.R.

A 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. However,
B 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
c prosecution case that Tara Muni Kumari has been carried to the said
Gumti and confined there and she has raised alarms. PW! 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
D 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
E the Gumti where he attempted to ravish her but because she raised
alarms the appellant could not succeed in ravishing her.

PW2 Sahdeo 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
F 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

G
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 accoll'panied the
informant and others to the said police station along with the appellant ... ,
H
TARAKESHWARSAHU•. STA TEOF BIHAR(NOW JIL'.RKHANO)[DAL VEER BHANOARl,J.] J7
I
who was apprehended by the infonnant and others. It is a circumstance . A
of unimpeachable character which supports the prosecution dse
. I •
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. Furthennore, . __ ,
PW IO, the 1.0. has categorically deposed that PW7 has stated before . B
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- C
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
independ_ent 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.'
9 D

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 I to 4, 7, 8 and 9 on the other. According to the High Court, . E
all the witnesses were the most natural and independent witnesses of the
incident and there was nothing oit record to sho~ that they had any animus,
grudge or vendetta against the appellant to defiose 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 F
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.
,.,
Looking to the gr~vity of the offence, we ourselves have examined the · G
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 H
18 SUPREME COURT REPORTS [2006] SUPP. 7 S.C.R.

A 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.

Now, the moot question which squarely falls for our consideration
pertains to the correct and appropriate sections of the Indian Penal Code
B 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
C conviction of the appellant under Sections 376/511 IPC is sustainable.
"375. Rape.-A man 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:-

D
First. Against her will.
Secondly. Without her consent.
-
Thirdly. 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.
E Fourthly. 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.
Fifthly. With her consent, when, at the time of giving such
F 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.
G Sixthly. 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
H
TARAKESHWARSAHUr. STATE OF BIHAR(NOW JHARKHAND) [DALVEERBHANDARl,l] J9

not being under fifteen years of age, is not rape." A
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 B
under Section 375 punishable under Section 376 IPC is penetration which is
altogether missing in the instant case. No offence under Section 376 !PC can
be made out unless there was penetration to some extent. In 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 C
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 D
of this offence in the case of State of U.P. v. Babu/ Nath'. In this case, this
Court dealt with the basic ingredients of the offence under Section 375 in the
following words:-"

8. It may here be noticed that Section 375 of the IPC defines rape and
the Explanation to Section 375 reads as follows: E
"Explanation: 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 F
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 G
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

> 1. [1994] 6 sec 29. H
20 SUPREME COURT REPORTS [2006] SUPP. 7 S.C.R.

A 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 comm it 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
B 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
C High Court in the case of State of Kera/av. Kundumkara Govindam 2• In this
case, the Court observed as under:

"The crux of the offence ~/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
D 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
E intercourse unless the visiting member is enveloped at least partially
by the visited organization, for intercourse connotes reciprocity. In
. 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."
F The word "penetrate", according to Concise Oxford Dictionary means
"find access into or through, pass through".

In order to constitute rape, what section 375 !PC requires is medical
evidence of penetration, and this may occur and the hymen remain imact. In
G 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 !PC.

Position of law in England is the same. To constitute the offence: of

H 2. (1969) Crl.J 818.
TARAKESHWAR SAHU 1• STA TEOF BIHAR (NOW JHARKHAND)[DAL VEER BHANDARl,J] 21

,,• rape, there must be a penetration 3. Even the slightest, penetration will be A
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 Coui1 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 B
of seed; sexual intercourse is deemed complete upon proof of penetration
only.

In the case of Nirmal Kumar v. State•, the Court held as under:-

"Even slightest degree of penetration of the vulva by the penis with C
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 D
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 lloyd10 In this case, while
summing up the charge to the jury, Justice Patterson observed: E
"In 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

F
... 3. R. v. Hill (1781) I East PC 3439.

4. (1838) 8 c & p 641.

5. (1839) 9 c & p 31.

6. (I 841) 2 Mood 190
G
7. (1844) I C & K 393.

8. (1891) 2 QB 149.

9. (2002) CrLJ 3352 (P&H)

10. (1836) 7 C and P 317: 173 ER 14.
> H
22 SUPREME COURT REPORTS [2006] SUPP. 7 S.C.R.

A her person but that he intended to do so at all events, and
notwithstanding any resistance on her part."

A similar case was decided by Mirza and Broomfield JJ. of the Bombay
High Court in Ahmed Asalt Mirkhan 11 • In that case the complainant, a milkmaid,
aged 12 or 13 years, who was hawking milk, entered the accused house to
B 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. There was no penetration. The girl struggled and cried and so
C 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.
D
In Halsbury's Statutes of England and Wales, 4th Edition, Vol. 12, it is
sated that even the slightest degree of penetration is sufficient to prove
sexual intercourse.

In Encyclopaedia of Crime and Justice (Vol. 4 page 1356), it is stated
E "... even slight penetration is sufficient and emission is unnecessary".
In the case of Aman Kumar & Anr. v. State of Haryana 12, this Court
stated as under:

"Penetration is the sine qua non for an offence of rape. In order
F 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."

In 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
G sufficient to hold accused guilty for the offence under Section 375 !PC
,.,.
11. Criminal Appeal No. 161of1930. decided on 12.8.1930 reported in Law of Crimes by
Ratanlal Dhirajlal's, Page 922.

H 12. [2004J 4 sec 379.
TARAKESHWAR SAHU r. STA TEOFBIHAR (NOW JHARKHAND)[DAL VEER BHANDARIJ] 23

punishable under Section 376 IPC. A
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 B
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.

In the instant case, the accused has been charged with Sections 376/ C
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 D
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:-

"222. When offence proved included in offence charged.-{I) When
a person is charged with an offence consisting of several particulars,
a combination of some only of which constitutes a complete minor E
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.

(2) 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 with it.
F

(3) 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.
G
(4) 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."
,;.
H
24 SUPREME COURT REPORTS [2006] SUPP. 7 S.C.R.

A 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. Both the illustrations given in the said section
read as under:
B
"(a) A is 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
c breach of trust under the said section 406.

(b) 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."
D
In the case lakhjit Singh & Anr. v. State of Punjab 13 , 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
E present, therefore, the Court deemed it proper to convert the conviction of
the appellant from Section 302 to Section 306 !PC. In this case, it was urged
that the accused cannot be tried under Section 306 !PC because the accused
were not put to notice to meet a charge under Section 306 !PC and, therefore,
they are prejudiced by not framing a charge under Section 306 !PC; therefore,
presumption under Section 113-A of Indian Evidence Act cannot be drawn
F and consequently a conviction under Section 306 !PC cannot be awarded.
According to this Court, in the facts and circumstances, section 306 was
attracted and the appellants' conviction under Section 302 !PC was set aside
and instead they were convicted under section 306 IPC.

G A three-Judge Bench of this Court in the case of Shamnsaheb M.
Mu/ttani 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

13. (1994] Supp I sec 173.

H 14. 120011 2 sec sn
TARAKESHWAR SAHU v. STATE OF BIHAR(NOW JHARKHAND) [DAL VEER BHANDARl.J.] 25

when an accused is charged with a major offence and if the ingredients of A
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:-

"16. What is meant by "a minor offence" for the purpose of Section
222 of the Code? Although the said expression is not defined in the B
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 C
among them with a lesser sentence can be regarded as a minor offence
vis-a-vis the other offence.

17. The composition of the offence under Section 304-B IPC is vastly
different from the formation of the offence of murder under Section
302 !PC and hence the former cannot be regarded as minor offence vis- D
a-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 a/ia,

"harassment of the woman where such harassment is with a view to E
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".
18. 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 F
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 G
without the said offence forming part of the charge?"
On 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 !PC. According to the version of the
prosecution, the appellant had forcibly taken the prosecutrix to his Gumti for H
26 SUPREME COURT REPORTS [2006] SUPP. 7 S.C.R.

A committing illicit intercourse with her. But before the appellant could ravish
the prosecutrix, she raised an alann and immediately thereafter, her father PW 1
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.
B
In 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. •
c Section 366 !PC is set out as under:

"366. Kidnapping, abducting or inducing woman to compel her
marriage, etc.-Whoever 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
D 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 tenn 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
E 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".

The essential ingredient of the offence punishable under Section 366
F 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
G section 366 IPC. In our considered view, the essential ingredients of the
offence punishable under Section 366 IPC are clearly present in this case. We
deem it appropriate to briefly reproduce the ratio of some decided cases.

In Khali/ur Ramman v. Emperor 15, the Full Bench has observed as

H 15. AIR (1933) Rangoon 98.
TARAKESHWARSAHU v. STATE OF BIHAR(NOW JHARKllAND)[DALVEER BHANDARl,J.] 27
/'
under: A
"The 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. B
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 16 observed as under: C

"Where 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."
D
The High Court of Delhi in Niranjan Singh v. State (Delhi)' 1 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:

"Where from the statement of prosecutrix, a girl of six years age E
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 p
under S. 366 !PC."

In Vishnu v. State ofMaharashtra1', the High Court of Bombay observed
as under:

"The accused were alleged to have kidnapped the girl below 16 years G
of age from the lawful guardianship of her parents and taken her to

16. [1997] sec Cri 840.

17. ( 1986) 2 Crimes 335.
)
18. (1997) CrLJ 1724 Bom. H
28 SUPREME COURT REPORTS [2006) SUPP. 7 S.C.R.

A 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 !PC as
hymen of girl was intact and there were no outward sign of injuries
B or violence suggesting the sexual intercourse and consequently no
rape could be said to have taken place."

In the instant case, the act of the accused proves that during the
kidnapping of the prosecutrix or forcibly taking her to the Gumti, the accused
C 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 offence itself.

D In 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 !PC. The offence committed squarely
covers the ingredients of Sections 366 and 354 !PC. The appellant was charged
under Sections 376/51 I !PC but on invoking the provisions of Section 222 of
E 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 present.

On the basis of evidence and documents on record, in our considered
F view, the appellant is also guilty under Section 354 !PC because all the
ingredients of Section 354 !PC are present in the instant case. ..
Section 354 !PC reads as under:

'"354. Assault or criminal force to woman with in/en/ lo oulrage
her modesly.- Whoever assaults or uses criminal force to any woman,
G 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 !PC is concerned, intention to
H
TARAKESHWAR SAHU 1·. STA TE OF BIHAR(NOW JHARKI !AND) [DAL VEER Bl IANDARl. l] 29

outrage the modesty of the women or knowledge that the act of the accused A
would result in outraging her modesty is the gravamen of the offence.

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 is an attribute
associated with female human beings as a class. It is a virtue which attaches B
to a female owing to her sex.

'Modesty' 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 C
suggestions". 19

The 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 D
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.2°

The word 'modesty' is not to be interpreted with reference to the
particular victim of the act, but as an attribute associated with female human E
beings as a class. It is a virtue which attaches to a female on account of her
sex. 21

We deem it appropriate to reproduce the cases of various Courts
indicating circumstances in which the Court convicted the accused under
Section 354 IPC. F
In State of Kera/a v. Hamsa", it was stated as under:

"What the legislature had in mind when it used the word modesty
in Sections 354 and 509 of the Penal Code was protection of an
G
19. Raju Pand11rang Mahale v. State of Maharashtra. [2004] 4 SCC 371.

20. Rupan Deol Bajaj v. Kanwar Pal Singh Gill, reported in AIR (1996) SC 309.

21. Major Singh Lachhman Singh v. State AIR (1963) Pun 443.

22. (1988) 3 Crimes 161.
H
30 SUPREME COURT REPORTS [2006) SUI'P. 7 S.C.R.

A attribute which is peculiar to woman, as a virtue which attaches to a
female on account of her sex. Modesty 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
B 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."

C A well known author Kenny in his book "Outlines of Criminal Law"23
has dealt with the aspect of indecent assault upon a female. The relevant
passage reads as under:

"Jn England by the Sexual Offences Act, 1956, an indecent assault
upon a female (of any age) is made a misdemeanour and on a charge
D 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."

In the case of State of Punjab v. Major Singh2 4, a three-Judge Bench
of this Court considered the question-whether modesty of a female child of
E 7'/, months can also be outraged. ~he majority view was in affirmative.
Bachawat, J., on behalf of majority, opined as under:

"The 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. The Code does
F 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
G 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

23. 19th Edn .. para 146 p. 203.

H 24. AIR (1967) SC 63.
TARAKESHWARSAHU1·. STATE OF BIHAR(NOW JHARKHAND) [DAL VEER BHANDARI.).] 3J

) always decisive, as for example, when the accused with a corrupt mind A
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.

A female of tender age stands on a somewhat different footing. B
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."
c
In Kanhu Charan Patra v. State2 5, the Orissa High Court stated as
under:

"The 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. D
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 manner. As
such, their conviction u/s 354/34 was held proper."

The High Court of Delhi in the case of Jai Chand v. State26 observed E
as under:

"The 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 F
but only outraging of the modesty ofa woman and conviction u/s 354
was proper."

In Raja v. State of Rajasthan 27, it was stated as under:

"The accused took the minor to solitary place but could not G

25. (1996) CrLJ 1151 Orissa.

- ,;
26. (1996) CrLJ 2039 Delhi

27. (1998) CrLJ 1608 Rajasthan. H
32 SUPREME COURT REPORTS [2006] SUPP. 7 S.C.R.

A commit rape. The conviction of accused was altered from Section 376/
'
511 to one u/s 354."

The Court in State of Karnataka v. Khaleef2' stated as follows:

"The parents reached the sugarcane field when accused was in
B 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 !PC."
•
The Court in Nuna v. Emper01;29 stated as follows:
c
"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."

D The Court in Bishewhwar Mumm v. State 30 stated as under:

"The evidence showed that accused caught hold hand of infonnant/
victim and when one of the prosecution witnesses came there hearing
alann 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."
E
The Court in Keshab Padhan v. State of Orissa3' stated as under:

"The 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 outrllge the modesty of the woman. In the instant case,
F 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 32 stated as under:
G
28. (2004) CrLJ NOC 10.
29. 15 IC 309:Crl.J. 469.
30. (2004) CrLJ 326 Jharkhand.
31. ( 1976) Cuttack LR (Cr) 236.

H
32. (1998) CrLJ (1999) Punjab & Haryana.
'
-
TARAKESHWAR SAHU v. STATEOF BIHAR (NOW JHARKHAND) [DAL VEER BHANDARI. l.] 33
)
"The accused caught hold of the prosecutrix, lifted her and then A
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 B
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. I000/- was imposed
on him."

In the case of Rameshwar v. State of Haryana 33 , the Court observed as C
follows:

"Whether 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 D
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 Rajasthan34 stated as follows:
E
"The 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 !PC as he by deceitful
means had taken the prosecutrix from her house and had then outraged
her modesty." F
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 G
of the appellant under Section 376/511 !PC is wholly erroneous and
unsustainable and consequently, the judgments of the High Court and the
trial court are set aside.

__,., 33. (1984) CrLJ 786 Punjab & Haryana.
H
34. (2002) CrL.I 364 Rajasthan
34 SUPREME COURT REPORTS [2006] SUPP. 7 S.C.R.

A On 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 !PC. The appellant is sentenced to undergo imprisonment for five years
B under Section 366 !PC. The appellant is also convicted under Section 354 !PC
and sentenced to two years rigorous imprisonment. We direct both the
sentences to run concurrently.

The appeal filed by the appellant is partly allowed and disposed of •
accordingly.
c B.S. Appeal Partly allowed.

' -