To Attract The Offence Of ‘Attempt To Rape’ Slightest Penetration Of Whichever Degree Is Essential : Tripura HC Contradicts SC Judgments
Sri Nemai Dey alias Pijus vs The State of Tripura
CRL A (J) NO.23 OF 2015
About/from the judgment:
“Learned trial Judge has considered that the accused-appellant has opened her undergarments and for this reason, learned Sessions Judge has held that he tried to commit rape. But according to this Court, as already observed, the slightest penetration, whichever degree it is, is the essential requirement vis-à-vis sine qua non to attract the provision of Section 376 of IPC. From the evidence, it is found to be absent.”
The Tripura High Court recently acquitted a man accused of attempting to commit rape charges observing that it is, at best, a case of “fondling” and the offence does not fall within the scope of Section 376 IPC but it will fall within Section 354 IPC.
According to the complaint, the accused trespassed into the kitchen of the house of the complainant and grabbed her 10-year-old daughter, laid her on the ground, kissed all over her body, tore her frock, removed her panty and by removing his under-garments tried to lay his body over her. Hearing the cries of the girl, the mother came and saw the accused running away.
The trial court convicted the accused under Section 376 read with Section 511 IPC for an attempt to commit rape and sentenced him to 3.5 years’ imprisonment.
Justice Arindam Lodh, on an appeal preferred by the accused, observed that the slightest penetration, whichever degree it is, is the essential requirement vis-à-vis sine qua non to attract the provision of Section 376 of IPC. Referring to the depositions made by mother and other witnesses, the court observed that there is no evidence in that regard.
“This Court has already observed and discussed in the preceding paragraphs that to convict and sentence an accused under Section 376 of IPC, a slightest degree of penetration of the penis into the vagina, mouth, urethra or anus of a woman is enough.. The learned trial Judge did not consider this aspect of law when he convicted and sentenced the accused under Sections 376/511 of IPC. Learned trial Judge has considered that the accused-appellant has opened her undergarments and for this reason, learned Sessions Judge has held that he tried to commit rape. But according to this Court, as already observed, the slightest penetration, whichever degree it is, is the essential requirement vis-à-vis sine qua non to attract the provision of Section 376 of IPC. From the evidence, it is found to be absent,” the court said.
“Having taken into consideration, the statement of witnesses on questions of fact, particularly, the evidence of P.W.2 and P.W.6, the doctor, this Court is of the view that the incident as described, at best, is a case of “fondling” and the offence does not fall within the scope of Section 376 IPC but it will fall within Section 354 IPC,” the Court said.
The bench then convicted the accused under Section 354 IPC and sentenced the accused to rigorous imprisonment of two years.
Apparent Contradiction With Law Laid Down By Sc
It is a settled principle that there need no penetration to attract offence of ‘attempt to commit rape”. In Madan Lal vs. State of J&K, the apex court dealt with an argument that, in the absence of any penetration into the vagina, the offence of rape cannot be said to have been established and it will not be possible to hold that the accused had attempted to commit rape on the prosecutrix, and therefore, it would at the most amount to an offence of indecent assault under Section 354 IPC.
Rejecting the said contention, the bench had held: “The difference between preparation and an attempt to commit an offence consists chiefly in the greater degree of determination and what is necessary to prove for an offence of an attempt to commit rape has been committed is that the accused has gone beyond the stage of preparation. If an accused strips a girl naked and then making her flat on the ground undresses himself and then forcibly rubs his erected penis on the private part of the girl but fails to penetrate the same into 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 I.P.C. and not an attempt to commit rape under Section 376 read with 511 I.P.C.”
It is also pertinent to note that, in Radhakrishna Nagesh vs. State Of A.P, the supreme court has held that even if there is no penetration, it does not necessarily mean that there is no rape. The Court, in that case, had held: “Penetration itself proves the offence of rape, but the contrary is not true i.e. even if there is no penetration, it does not necessarily mean that there is no rape. The Explanation to Section 375 IPC has been worded by the legislature so as to presume that if there was penetration, it would be sufficient to constitute sexual intercourse necessary for the offence of rape. Penetration may not always result in tearing of the hymen and the same will always depend upon the facts and circumstances of a given case. The Court must examine the evidence of the prosecution in its entirety and then see its cumulative effect to determine whether the offence of rape has been committed or it is a case of criminal sexual assault or criminal assault outraging the modesty of a girl.”
The judgment of Tripura High Court instead of probing whether there was an attempt to commit rape, focuses more on whether there was penetration or not.
Read the Judgment
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