Section 354 and 375 of Indian Penal Code provide for Assault or criminal force to woman with intent to outrage her modesty and Rape respectively. Furthermore, attempt to commit rape can be punished under Section 376 r/w 511 of Indian Penal Code.[1] However it must be understood that there exists very thin line which differentiates between offence of attempt to commit rape and assault to a woman.
However, Courts sometimes penetrate injustice as they overstep that thin line which separates the two abovementioned offences. And same has been done by Tripura High Court in its recent judgment[2] in which It altered the conviction of accused from under Section 376 r/w 511 to Section 354 of Indian Penal Code by holding that slightest penetration of whichever degree is essential requirement to prove offence of attempt to commit rape. However, it seems that this judgment has some kind of deal with controversies as there are certain other issues involved in it which can cause unrest in legal fraternity and therefore, authors would like to try critically appraise them.
Facts
On 24/11/2013, FIR was lodged stating that, informant i.e. the mother of the victim has three daughters. On the fateful day, she in the absence of her husband and elder daughter went to a nearby shop with her younger daughter and therefore only the middle daughter was present at home. In the meantime, accused Nemani Dey trespassed into the kitchen of the house and grabbed the victim girl, laid her on the ground, kissed all over her body, tore her frock, removed her panty and by removing his under garments, he tried to lay his body upon her. However victim struggled hard and raised noise for help and therefore alarmed her mother who was on her way to shop. She returned back immediately after hearing the noise and in the meantime accused ran away.
Charges under Section 448 and Section 376 r/w Section 511 of IPC were framed against the accused. And Session Court convicted the accused under section 448 of IPC and imposed fine of Rs.500 and also under Section 376 r/w 511 of IPC and sentenced him to suffer Rigorous Imprisonment of 3 and 1/2 years and imposed fine of Rs. 1000 with default stipulations
Accused preferred an appeal against the judgment of Session Court to the High Court of Tripura.
Findings of High court
High Court after going through the facts and evidences held that the accused can only be sentenced under Section 354 and Section 448 of IPC and the allegations under Section 376 r/w Section 511 of IPC do not hold the merits.
High Court stated that to attract Section 376 ‘slight penetration’ of penis into the vagina, mouth, urethra or anus of women is condition precedent. And as it is clear from the facts that there was no penetration by accused and further he did not touch any part of vagina or part surrounding to it. Furthermore, Court stated that as mother of the victim immediately returned after hearing the cries of daughter, it means that she did not went too far from the house and within a short time she returned back and therefore it was not possible for accused to commit anything on body or person of victim.
Comment
Firstly, It should be noted that High Court completely ignores the established legal principles and precedents on the offence of attempt to commit rape.
Generally, every criminal offence has three components and those are intention to commit crime, preparation to commit crime, attempt to commit crime. And if the attempt succeeds, the accused become guilty of committing that offence. But if attempt fails, for the reason beyond his control, then he is said to have attempted to commit an offence. Therefore, attempt can be described as an act in the series of acts which amounts more than preparation and falling short of commission.[3]
In the present case, considering the facts, it should be noted that, the accused went to the house of the victim family; the victim was alone in the house; caught hold of the victim; laid her on the ground; kissed all over her body; tore her frock; removed her undergarment; removed his undergarments and tried to lay his body on the victim but for resistance from victim and immediate return of mother of the victim, he could not be successful. The nature of resistance was physical as well as vocal. It is understandable that the accused might not have foreseen that the mother of the victim would hear her cry and rush to the house and for that reason the accused resisted himself from committing the ultimate act of committing rape and ran away. However it is crystal clear that, the accused exceeded the limit of preparation and attempted to commit the offence of rape, but failed in such attempt because of the hard resistance by the victim, which he failed to foresee.
Moreover, observation by the High Court contradicts the judgments of Apex Court. In Radhakridhna Nagesh v State of A.P.[4], it was held that penetration itself proves the offence of rape under Section 375 of Indian Penal Code.” Therefore it should be noted that penetration of whatever degree is condition precedent for offence of rape and not for offence of attempt to commit rape. In Tarkeshwar Sahu v State of Bihar[5], Apex Court held that to attract the provisions of Section 376 r/w Section 511 of Indian Penal Code, it should be seen that whether accused made any attempt to penetrate and had he made any such attempt then he could be sentenced accordingly and further Apex Court said that as the accused neither undressed victim nor himself, therefore it could not be said that there is attempt to penetrate.
In Madan Lal v State of J&K[6], Apex Court held that “If an accused strips a girl naked and then making her lie flat on the ground undresses himself and then forcibly rubs his erected penis on the private parts of the girl but fails to penetrate the same into the vagina and on such rubbing ejaculates himself then it is difficult for us to hold that it was a case of merely assault under Section 354 IPC and not an attempt to commit rape under Section 376 read with Section 511 IPC.” Moreover it should be noted that, there is very thin line between assault or criminal force to women with intent to outrage her modesty and attempt to commit rape. As rightly observed by Justice Patterson in Rex v James Llyod, that “the point of distinction between offence of ‘indecent assault’ and attempt to commit rape is that there should be some action on the part of the accused which would show that he was just going to have sexual connection with victim”[7]
On considering the paragraph 13, 15 and 22 of judgment of High Court it comes to the mind that the High Court has tried to establish that the present factual matrix is not fit to bring the offence under Section 376, but the High Court has neglected the fact that the charges were framed under Section 376 r/w Section 511 of IPC and trial court has convicted the accused under the same. And after a reading of Section 375 of IPC it can be clearly inferred that slightest penetration in itself can constitute the offence of rape and therefore, while to establish the offence of attempt to rape the intention of accused sufficient i.e. the determination of accused to commit rape, and in the instant case the intention of accused to commit rape has been well established by the fact that the accused after disrobing the victim removed his undergarments too and tried to lay himself over the victim.
Thus on the basis of such unacceptable reasoning, High Court held that absence of even slight penetration absolve the accused from the rigors of Section 376 r/w section 511 and consequently reduced the sentence to R.I. of 2 years under Section 354 of Indian Penal Code.
Secondly, the sanctity of this judgment can also be questioned on another legal blunder that has been committed by High Court and trial court. High Court and trial court in their respective judgments disclosed the identity of the victim who is minor and High Court even disclosed the name of victim and this laxity in part of both the Courts again contradicts the judgments of Apex Court and statutory provisions. In the case of State of Punjab v Ramdev Singh[8] and Lalit Yadav v State of Chattisgarh[9] Apex Court held that “Section 228-A of IPC make disclosure of identity of the victim of certain offences punishable. Printing or publishing name or any matter which may make known the identity of any person against whom an offence under sections 376, 376-A, 376-B, 376-C, 376-D id alleged or found to have been committed can be punished. True it is, the restriction does not relate to the judgments of Supreme Court or High Courts but considering the object of Section 228-A, it would be appropriate that in the judgments, be it of this court, High Court or lower courts, the name of the victim should not be indicated.”
Thirdly, to deal with the child sexual abuse effectively, The Protection of Children from Sexual Offences Act, 2012 has been passed and came into force on 14th November 2012. This Act is applicable to whole of India except State of J&K. The term ‘Child’ has been defined as any person below the age of 18 years.[10]
In the case in hand, it should be noted that the incident has been occurred on 23 November 2013 and at the time of incident, victim was about 11 years old. However when the FIR was registered, at police station concerned police officials registered it under Section 448/376/511 of Indian Penal Code and no charges were framed under POCSO Act. And even High Court did not such glaring defect in the case.
The most crucial and unacceptable thing about this case is that despite repeatedly mentioning the age of victim to be around 11 years (at the time of incident) both by trial court and High Court in their respective judgments thereby leaving no room for the assumption that the age of victim was not known to the respective Courts, and also the defense accepted that the victim was child below 12 years.
It should be noted that non-reporting and non-recording of such offences under the relevant provisions of POCSO Act is an offence in itself punishable under Section 21 of the POCSO Act.[11] If the provisions of POCSO Act were made part of the said offence than this case would not result into such a scenario where only miniscule imprisonment of 2 years is awarded by High Court because then the alleged offence would be considered as aggravated sexual assault under Section 9(m) of POCSO Act and for which minimum sentence prescribed under section 10 of POCSO Act is 5 years.[12] And most importantly the case would have been tried by the special court, entrusted with the trial of offences under POCSO Act.[13]
Conclusion
It should be noted that Sexual violence is not only barbaric act but also an unjustified trespass into privacy and sanctity of a woman. It offends her self-esteem and dignity and is a serious blow to her honour. In patriarchal society like ours, victim fells stigmatized and humiliated and victim and where the victim is an innocent child, it leaves behind a traumatic experience. It ruins the entire psyche and life of a woman and pushes her into intense emotional crisis. Moreover, it is a crime against basic human rights, and is also violative of the woman’s most celebrated of the fundamental rights i.e. the right to life which is embodied in Article 21 of the Constitution of India.
Therefore, Authors would like to conclude with the note that the judicial authorities and as well as police authorities should deal with cases of sexual violence against women sternly, severely and with utmost sensitivity. And accordingly, this judgment needs a review by the High Court.
*Article has been authored by Alok Bhardwaj, Anupam Srivastava.
[1] Indian Penal Code 1860, s 354, s 375, s 376, s 511.[2] available at https://drive.google.com/file/d/1eMETOJaDfIUb9K4dsIFYEimwYwJ2iD9X/view.
[3] Radhakrishna Nagesh v State of AP (2013) 11 SCC 688.
[4] Radhakrishna Nagesh v State of AP (2013) 11 SCC 688.
[5] Tarkeshwar Sahu v State of Bihar (2006) 8 SCC 560 at para 22.
[6] Madan Lal v State of J&K (1997) 7 SCC 677.
[7] Rex v James LLyod (1876) 7 C & P 817; Francies D’souza v State of Goa 2017 SCC OnLine Bom 8560 at para 18.
[8] State of Punjab v Ramdev Singh (2004) 1 SCC 421.
[9] Lalit Yadav v State of Chattisgarh (2018) 7 SCC 499.
[10] The Protection of Children from Sexual Offences 2012, s 1(2), s 2(d).
[11] The Protection of Children from Sexual Offences Act 2012, s 21.
[12] The Protection of Children from Sexual Offences Act 2012, s 9(m), s 10.
[13] The Protection of Children from Sexual Offences Act 2012, s 28.
