Arshad Ahmad and Ors Vs State NCT of Delhi and Anr on 02 Jun 2022
Hrishikesh Sahoo Vs State of Karnataka and Ors on 23 Mar 2022
Other Sources :
From Para 4,
Hrishikesh Sahoo Vs State of Karnataka and Ors on 19 Jul 2022
4. Until further orders, there shall be an ad-interim stay of the common impugned judgment and final order dated 23rd March, 2022 passed by the High Court of Karnataka in Writ Petitions No.48367/2018 and 50089/2018 and further proceedings in relation to Special C.C. No. 356 of 2017 arising out of FIR bearing Crime No. 19/2017, pending before the Additional City and Sessions and Special Court for cases under the POCSO Act, Bangalore.
The Karnataka HC decision is here.
Apex Court explained about offence of rape and the necessary ingredients to make out a case u/s 376 IPC.
Coming to the question as to whether Section 354 of the Act has any application, it is to be noted that the provision makes penal the assault or use of criminal force to a woman to outrage her modesty. The essential ingredients of offence under Section 354 IPC are:
(a) That the assault must be on a woman.
(b) That the accused must have used criminal force on her.
(c) That the criminal force must have been used on the woman intending thereby to outrage her modesty.
What constitutes an outrage to female modesty is nowhere defined in IPC. 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 in this Section is an attribute associated with female human beings as a class. It is a virtue which attaches to a female owing to her sex. The act of pulling a woman, removing her saree, coupled with a request for sexual intercourse, is such as would be an outrage to the modesty of a woman; and knowledge, that modesty is likely to be outraged, is sufficient to constitute the offence without any deliberate intention having such outrage alone for its object. As indicated above, the word ’modesty’ is not defined in IPC. The Shorter Oxford Dictionary (Third Edn.) defines the word ’modesty’ in relation to woman as follows:
“Decorous in manner and conduct; not forward or lower; Shame-fast; Scrupulously chast.”
Modesty is defined as the quality of being modest;and in relation to woman, “womanly propriety of behaviour; scrupulous chastity of thought, speech and conduct.” It is the reserve or sense of shame proceeding from instinctive aversion to impure or coarse suggestions. As observed by Justice Patterson in Rex v. James Llyod (1876) 7 C&P 817 in order to find the accused guilty of an assault with intent to commit a rape, court must be satisfied that the accused, when he laid hold of the prosecutrix, not only desired to gratify his passions upon her person but that he intended to do so at all events, and notwithstanding any resistance on her part. The point of distinction between an offence of attempt 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 was just going to have sexual connection with her.
Ramkripal Charmakar Vs State of Madhya Pradesh on 19 Mar 2007
A culprit first intends to commit the offence, then makes preparation for committing it and thereafter attempts to commit the offence. If the attempt succeeds, he has committed the offence; if he fails due to reasons beyond his control, he is said to have attempted to commit the offence. Attempt to commit an offence can be said to begin when the preparations are complete and the culprit commences to do something with the intention of committing the offence and which is a step towards the commission of the offence. The moment he commences to do an act with the necessary intention, he commences his attempt to commit the offence. The word ’attempt’ is not itself defined, and must, therefore, be taken in its ordinary meaning. This is exactly what the provisions of Section 511 require. An attempt to commit a crime is to be distinguished from an intention to commit it; and from preparation made for its commission. Mere intention to commit an offence, not followed by any act, cannot constitute an offence. The will is not to be taken for the deed unless there be some external act which shows that progress has been made in the direction of it, or towards maturing and effecting it. Intention is the direction of conduct towards the object chosen upon considering the motives which suggest the choice. Preparation consists in devising or arranging the means or measures necessary for the commission of the offence. It differs widely from attempt which is the direct movement towards the commission after preparations are made. Preparation to commit an offence is punishable only when the preparation is to commit offences under Section 122 (waging war against the Government of India) and Section 399 (preparation to commit dacoity). The dividing line between a mere preparation and an attempt is sometimes thin and has to be decided on the facts of each case. There is a greater degree of determination in attempt as compared with preparation.
An attempt to commit an offence is an act, or a series of acts, which leads inevitably to the commission of the offence, unless something, which the doer of the act neither foresaw nor intended, happens to prevent this. An attempt may be described to be an act done in part execution of a criminal design, amounting to more than mere preparation, but falling short of actual consummation, and, possessing, except for failure to consummate, all the elements of the substantive crime. In other words, an attempt consists in it the intent to commit a crime, falling short of, its actual commission or consummation/completion. It may consequently be defined as that which if not prevented would have resulted in the full consummation of the act attempted. The illustrations given in Section 511 clearly show the legislative intention to make a difference between the cases of a mere preparation and an attempt.
The sine qua non of the offence of rape is penetration, and not ejaculation. Ejaculation without penetration constitutes an attempt to commit rape and not actual rape. Definition of “rape” as contained in Section 375 IPC refers to “sexual intercourse” and the Explanation appended to the Section provides that penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape. Intercourse means sexual connection. In the instant case that connection has been clearly established. Courts below were perfectly justified in their view.
Citations : [2007 SCC 11 265], [2007 AIR SC 0 2198], [2007 ALD CRI 2 940], [2007 ALT CRI 3 135], [2007 JT 4 393], [2007 SCALE 4 438], [2007 SUPREME 5 297], [2007 AIR JHAR R 2 905], [2007 OLR 1 803], [2007 CRLR 308], [2007 RCR CRI 2 390], [2007 DLT CRI 2 108], [2007 SLT 3 726], [2007 AIOL 306], [2007 AIR SC 49], [2007 BOMCR CRI SC 1 200], [2008 SCC CRI 1 674], [2007 SCR 4 125], [2007 AIC SC 54 131], [2007 CRIMES SC 3 115], [2007 AIR SCW 2198], [2008 MLJ CRL 1 172], [2007 CRLJ SC 2302]
Other Sources :
Pidathala Satyam Babu Vs State of Andhra Pradesh on 13 Jan 2013_compressed
Other Sources :
A academic query was posed to the High Court in these batch of Revisions as follows.
The thrust of the accused-petitioners in their arguments is to the effect that if charges under POCSO Act, 2012 do not survive then the case from the Special Court ( Sessions Judge, Jodhpur District, Jodhpur, who is trying the cases of POCSO Act, 2012) may be transferred to the regular Sessions Court where presumption under Sections 29 and 30 of POCSO Act, 2012 will not be available against the petitioner and the accused-petitioners will be benefited accordingly.
And then after perusing provisions of POCSO Act, Juvenile Justice Act, IPC, the Court observed and ordered as follows:
It has been argued on behalf of accused Asharam@Ashumal that at the most his conduct may come within the definition of attempted fellatio and he cannot be charged for the offence of fellatio. The conduct of the accused asking the girl to suck his organ is called fellatio. Had the girl started sucking his organ, it would have been argued that it was her consensual act. Certainly the charge of attempt to fellatio is graver offence than the fellatio itself. So, the charge even if it relates to fellatio, it will cover the charge of attempted fellatio and the accused is not going to be prejudiced when the charge of fellatio has been framed against him in place of attempted fellatio. Some times the prosecutrix, who is a minor girl may hesitate to tell complete truth before the Investigating Officer and many a times it happens in such type of cases that the prosecutrix unfolds the complete truth only during the camera trial when she is assured that nobody will be able to cause any harm to her because of her statement. Hon’ble the Supreme Court has mandated that in cases of Section 304 B IPC, a charge of Section 302 IPC should also be framed against the accused and on the same logic, this Court hereby directs all the trial courts in Rajasthan that in all cases of attempt to commit rape, a charge for the offence of rape should also be framed against the accused so that, at the stage of conclusion of the trial, the Court may not have to undertake tedious process of amendment of charge and recalling the witnesses causing serious prejudice to the cause of justice in such cases.
Asharam@Ashumal Vs The State of Rajasthan and Ors on 12 Apr 2014
Citations : [2014 SCC ONLINE RAJ 1812], [2014 RLW 3 2596], [2014 WLC 4 481]
Other Sources :
(1) Whoever, except in the cases provided for in sub-section (2), commits rape, shall be punished with rigorous imprisonment of either description for a term which shall not be less than ten years, but which may extend to imprisonment for life, and shall also be liable to fine.
(a) being a police officer, commits rape—
(i) within the limits of the police station to which such police officer is appointed; or
(ii) in the premises of any station house; or
(iii) on a woman in such police officer’s custody or in the custody of a police officer subordinate to such police officer; or
(b) being a public servant, commits rape on a woman in such public servant’s custody or in the custody of a public servant subordinate to such public servant; or
(c) being a member of the armed forces deployed in an area by the Central or a State Government commits rape in such area; or
(d) being on the management or on the staff of a jail, remand home or other place of custody established by or under any law for the time being in force or of a women’s or children’s institution, commits rape on any inmate of such jail, remand home, place or institution; or
(e) being on the management or on the staff of a hospital, commits rape on a woman in that hospital; or
(f) being a relative, guardian or teacher of, or a person in a position of trust or authority towards the woman, commits rape on such woman; or
(g) commits rape during communal or sectarian violence; or
(h) commits rape on a woman knowing her to be pregnant; or
2* * * * *
(j) commits rape, on a woman incapable of giving consent; or
(k) being in a position of control or dominance over a woman, commits rape on such woman; or
In this judgment from Hon’ble Delhi High Court, it was held that the prosecution could not prove the offence of incest laid on the father.
Per Para 26,
Kapil Kumar Beri Vs The State Of Delhi (N.C.T. Of Delhi) on 19 December, 2018
While it is true that the evidence of the prosecutrix deserves to be given weight and in certain circumstances can be acted upon without any corroboration, in cases of incest, there is always a need for greater and more acute scrutiny, inasmuch as such allegations against persons related by blood (own biological father, for example) smack of bestial instinct and total absence of basic human values and discretion. It is sad to note that the trial Judge blindly accepted the prosecution story without going into the aspects which render it highly improbable, virtually impossible. The erroneous approach of the trial court has led to serious miscarriage of justice in the present case unreasonably holding the biological father of raping his own daughter in the teeth of loaded circumstances showing her to be of wayward ways and possibly in liaison with a male acquaintance.