“Removing Girl’s Innerwear, Undressing Oneself Not ‘Attempt To Rape’ But An Indecent Assault”: Rajasthan HC

The Rajasthan High Court ruled on Monday that removing a girl’s innerwear and undressing oneself without further action doesn’t constitute an ‘attempt to commit rape’ under Section 376 read with Section 511 of the IPC.

Instead, it constitutes ‘Assault to outrage modesty of a woman’ under Section 354 IPC. A bench of Justice Anoop Kumar Dhand clarified the definition of an “attempt” and distinguished it from an indecent assault.

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CASE DETAILS

For an attempt to commit rape, the accused must go beyond the preparation stage. The Court explained that 3 stages must be met for an “attempt” to be established: intention to commit the offence, an act towards committing the offence, and the act being close enough to completing the crime. Any act falling short of crossing the preparation stage is considered indecent assault under Section 354 IPC.

The Court stated, “The first stage exists when the culprit first entertains the idea or intention to commit an offence. In the second stage, he makes preparations to commit it. The third stage is reached when the culprit takes deliberate overt steps to commit the offence. Such overt act or step in order to be ‘criminal’ need not be the penultimate act towards the commission of the offence. It is sufficient if such act or acts were deliberately done and manifest a clear intention to commit the offence aimed, being reasonably proximate to the consummation of the offence.”

MORE INTO THE CASE

In this case, the accused was alleged to have undressed both himself and the 6-year-old prosecutrix, fleeing when she cried out. The Court referred to the case of Sittu v State of Rajasthan, where the accused’s attempt to penetrate after forcibly undressing the girl was seen as an attempt to commit rape.

Conversely, in Damodar Behera v State of Orissa, the accused fled after removing the victim’s saree without attempting further acts, which was classified as indecent assault under Section 354 IPC.

Given the allegations that the appellant undressed himself and the prosecutrix, the Court held, “Looking to the fact that the allegations have been levelled against the appellant, that he took-off the inner wear of the prosecutrix ‘D’ and also undressed himself, certainly, such act of the appellant does not amount to commission of offence under Section 376/511 IPC… In other words, accused appellant cannot be held to be guilty of attempt to commit rape. The prosecution has been able to prove the case of assault or use of illegal force on the prosecutrix ‘D’ (PW-2) with an intention to outrage her modesty or with knowledge that her modesty was likely to be outraged. Thus, it is a clear case of Section 354 I.P.C. as the act of present accused has not proceeded beyond the stage of preparation.”

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