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Tuesday, November 21, 2006

Attempt to rape is not a crime: Supreme Court


The Supreme Court has held that unlike the charge of attempt to murder, the Indian Penal Code does not recognise the charge of attempt to rape. Rape is said to have been committed only if a man inserts his sexual organ into the victim. Any other act only qualifies for the offence of outraging a woman or child’s modesty.

Highlighting this difference, the Supreme Court has said that a man who is caught preparing to rape a woman cannot be charged under section 376 of the IPC, which provides for a minimum punishment of seven years in prison.

He also cannot be charged with attempted rape under section 511 of IPC, which deals with attempts to commit offences, like murder, that carry a minimum penalty of life in prison.

Converting the charge against Tarkeshwar Sahu, a Jharkhand resident, from rape to outraging the modesty of a 12-year-old girl, Justice SB Sinha and Justice Dalveer Bhandari held him guilty of kidnapping her and violating her modesty.

The trial court and Jharkhand high court had convicted Sahu of rape and attempt to rape.

But referring to a British court ruling, the Supreme Court said, “To constitute the offence of rape, there must be penetration. Even the slightest penetration will be sufficient.” Sahu had not penetrated the child.

Addressing the issue of a child being the victim of an offence of outraging of modesty, the judges, quoting another judgment relating to a case involving a seven-month-old baby, said a girl possesses from birth the modesty that is the attribute of her sex.

“The offence punishable under section 354 is an assault on or use of criminal force on a woman with the intention of outraging her modesty or with the knowledge of the likelihood of doing so,” they ruled.

Since Sahu had lured the girl and taken her to his hut, removed his shirt and also the girl’s garments, he was held guilty of kidnapping her and outraging her modesty.

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