# [2006] Supp. 7 S.C.R. 10

- **Citation:** [2006] Supp. 7 S.C.R. 10
- **Court:** Supreme Court of India
- **Decided:** 2006-09-29
- **Case number:** Criminal Appeal No. I 036 of 2005
- **Bench:** S.B. Sinha, Dal Veer Bhandari
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/2006-supp-7-s-c-r-10-21719
- **Pages:** 25

## Headnote

Penal Code, 1860-Sections 354, 366, 375 and 376-Criminal
Procedure Code, 1973-Section 222-Accused forcibly took a minor with
C intention to commit rape on her and was caught before he could commit the
act-Trial Court convicted the accused under section 376 rlw 511 I PC and
sentenced him to seven years rigorous imprisonment-High Court confirmed
the convlction and sentence awarded by the trial court-Correctness ofHeld, on evidence on record, the accused did not do any penetration into
private part of the victim-Hence, conviction of the accused under section
D 376 r/w 5/I IPC is set aside-Invoking section 222 Cr.P.C., the accused is
convicled under sections 366 and 354 I PC and sentenced to 5 years and 2
years rigorous imprisonment respectively.
Appellant forcibly took prosecutrix, who is a minor, for committing rape
on her. When the prosecutrix raised an alarm, PW 1, PW 2, PW 3, PW 6
E and other co-villagers came immediately and caught the appellant before he
attempted to ravish her. PWl and other villagers went to police station and
lodged a First Information Report. The appellant was charged for the offence
punishable under sections 376/511 IPC. The trial court convicted the appellant
under sections 376/511 IPC and sentenced to seven years imprisonment. The
F High Court, in appeal, confirmed the conviction and sentence awarded by the
trial court. Hence the appeal before this Court.
Partly allowing the appeal, the Court
HELD: I.I. The appellant had forcibly taken her with the intention of
G committing sexual intercourse with her. The important ingredient of the
offence under Section 375 punishable under Section 376 IPC is penetration
which is altogether missing in the instant case. No offence under Section
376 IPC can be made out unless there was penetration to some extent. In
absence of penetration to any extent, it would not bring the offence of the
appellant within the four corners of Section 375 IPC. There has not been any
H
10
TARAKESHW AR SAHU 1·. STA TE OF BIHAR (NOW .IHARKHAND)
II
)
attempt of penetration to the slightest degree. The conviction under Section A
376/51 t IPC is wholly illegal and unsustainable.119-B-C; 23-BI
State of U.P. v. Babu/ Nath, ( 199416 SCC 29 and Aman Kumar and Anr.
v. State of Haryana, (200414 SCC 379, referred to.
State of Kera/av. Kundumkara Govindam, 119691 CrLJ 818 and Nirma/ B
Kumar v. State, (2002) CrLJ 3352 (P&H) referred to.
R v. Hill, 117811 1 East PC 4391; R. v. M. Rue (1838) 8 C & P 641; R v.
Allen, (1839) 9 C & P 31; R v. Hughes (1841) 2 Mood 190; R v. Lines, (1844)
1 C & K 393; R v. Marsden (1891) 2 QB 149 and Rex v. James Lloyd, (1836) c
7 C and P 317:173 ER 14, referred to.
Halsburys Statutes of England and Wales, 4th Edition, Vol. 121 and
Encyclopaedia of Crime and Justice (Vol. 4 page 13561, referred to.
1.3. The appellant has forcibly taken the prosecutrix with the intention
D
of committing illicit intercourse. The offence committed by the appellant would
fall within the four corners of section 366 IPC. The essential ingredients of
the offence punishable under Section 366 IPC are clearly present in this case.
The act of the accused proves that during the kidnapping of the prosecutrix
or forcibly taking her, the accused had intention or knew it likely that the
prosecutrix would be forced to have illicit intercourse. Hence, it is not a mere E
case of kidnapping for indecent assault but the purpose for which kidnapping
was done by the accused has been proved. (13-C; 26-F-G; 28-CI
Lakhjit Singh & Anr. v. State of Punjab, (19941 Supp. 1 SCC 173;
Shamnsaheb M. Mu/ttani v. State of Karnataka, (20011 2 SCC 577 and
Rajendra v. State of Maharashtra, (19971 SCC (Cri) 840, referred to.
F
Niranjan Singh v. State (Delhi) (1986) 2 Crimes 335 and Vishnu v. State
of Maharashtra, (1997) (CrLJ) 1724 (Born), referred to.
Kha/ilur Ramman v. Emperor, AIR (1933) Rangoon 98, referred to.
G
1.4. On the basis of evidence and documents on record, the appellant is
also guilty under Section 354 IPC becau

## Text

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A
B
TARAKESHWAR SAHU
\.'.
ST A TE OF BIHAR (NOW JHARKHAND)
SEPTEMBER 29, 2006
(S.B. SINHA AND DAL VEER BHANDARI, JJ.]
Penal Code, 1860-Sections 354, 366, 375 and 376-Criminal
Procedure Code, 1973-Section 222-Accused forcibly took a minor with
C intention to commit rape on her and was caught before he could commit the
act-Trial Court convicted the accused under section 376 rlw 511 I PC and
sentenced him to seven years rigorous imprisonment-High Court confirmed
the convlction and sentence awarded by the trial court-Correctness ofHeld, on evidence on record, the accused did not do any penetration into
private part of the victim-Hence, conviction of the accused under section
D 376 r/w 5/I IPC is set aside-Invoking section 222 Cr.P.C., the accused is
convicled under sections 366 and 354 I PC and sentenced to 5 years and 2
years rigorous imprisonment respectively.
Appellant forcibly took prosecutrix, who is a minor, for committing rape
on her. When the prosecutrix raised an alarm, PW 1, PW 2, PW 3, PW 6
E and other co-villagers came immediately and caught the appellant before he
attempted to ravish her. PWl and other villagers went to police station and
lodged a First Information Report. The appellant was charged for the offence
punishable under sections 376/511 IPC. The trial court convicted the appellant
under sections 376/511 IPC and sentenced to seven years imprisonment. The
F High Court, in appeal, confirmed the conviction and sentence awarded by the
trial court. Hence the appeal before this Court.
Partly allowing the appeal, the Court
HELD: I.I. The appellant had forcibly taken her with the intention of
G committing sexual intercourse with her. The important ingredient of the
offence under Section 375 punishable under Section 376 IPC is penetration
which is altogether missing in the instant case. No offence under Section
376 IPC can be made out unless there was penetration to some extent. In
absence of penetration to any extent, it would not bring the offence of the
appellant within the four corners of Section 375 IPC. There has not been any
H
10
TARAKESHW AR SAHU 1·. STA TE OF BIHAR (NOW .IHARKHAND)
II
)
attempt of penetration to the slightest degree. The conviction under Section A
376/51 t IPC is wholly illegal and unsustainable.119-B-C; 23-BI
State of U.P. v. Babu/ Nath, ( 199416 SCC 29 and Aman Kumar and Anr.
v. State of Haryana, (200414 SCC 379, referred to.
State of Kera/av. Kundumkara Govindam, 119691 CrLJ 818 and Nirma/ B
Kumar v. State, (2002) CrLJ 3352 (P&H) referred to.
R v. Hill, 117811 1 East PC 4391; R. v. M. Rue (1838) 8 C & P 641; R v.
Allen, (1839) 9 C & P 31; R v. Hughes (1841) 2 Mood 190; R v. Lines, (1844)
1 C & K 393; R v. Marsden (1891) 2 QB 149 and Rex v. James Lloyd, (1836) c
7 C and P 317:173 ER 14, referred to.
Halsburys Statutes of England and Wales, 4th Edition, Vol. 121 and
Encyclopaedia of Crime and Justice (Vol. 4 page 13561, referred to.
1.3. The appellant has forcibly taken the prosecutrix with the intention
D
of committing illicit intercourse. The offence committed by the appellant would
fall within the four corners of section 366 IPC. The essential ingredients of
the offence punishable under Section 366 IPC are clearly present in this case.
The act of the accused proves that during the kidnapping of the prosecutrix
or forcibly taking her, the accused had intention or knew it likely that the
prosecutrix would be forced to have illicit intercourse. Hence, it is not a mere E
case of kidnapping for indecent assault but the purpose for which kidnapping
was done by the accused has been proved. (13-C; 26-F-G; 28-CI
Lakhjit Singh & Anr. v. State of Punjab, (19941 Supp. 1 SCC 173;
Shamnsaheb M. Mu/ttani v. State of Karnataka, (20011 2 SCC 577 and
Rajendra v. State of Maharashtra, (19971 SCC (Cri) 840, referred to.
F
Niranjan Singh v. State (Delhi) (1986) 2 Crimes 335 and Vishnu v. State
of Maharashtra, (1997) (CrLJ) 1724 (Born), referred to.
Kha/ilur Ramman v. Emperor, AIR (1933) Rangoon 98, referred to.
G
1.4. On the basis of evidence and documents on record, the appellant is
also guilty under Section 354 IPC because all the ingredients of Section 354
IPC are present. 128-FI
Raju Pandurang Mahale v. State of Maharashtra, (20041 4 SCC 371;
>
Rupan Deol Bajaj v. Kanwar Pal Singh Gill, AIR (1996) SC 309 and State of H
12
SUPREME COURT REPORTS [2006] SUPP. 7 S.C.R.
A Punjab v. ;\fajor Singh, AIR (1967) SC 63, referred to.
Major Singh lachh111an Singh v. State, AIR (1963) Pun 443; State of
Kercila v. Hamsa, (1988) 3 Crimes 161; Kanhu Charan Patra v. State, (1996)
CrLJ 1151 (Orissa); .Jai Chand v. State, (1996) CrLJ 2039 (Delhi); Raja v.
State of Rajasthan, (1998) CrLJ 1609 Rajasthan; State of Karnataka v.
B Khaleel, (2004) CrLJ NOC 10; Nuna v. Emperor, 15 IC 309: 13 CrLJ 469
and Bishe11"!1\l'ar Murmu v. State (2004) CrLJ 326 (Jharkhand); Keshab
Padhan v. State o/Drissa. (1976) Cuttack LR Cr 236; Ram Mehar v. State of
HmJ1ana, (1998) CrLJ 1999 (Punjab & Haryana); Rameshwar v. State of
Haryana, (1984) CrLJ 786 (Punjab & Haryana) and Shokut v. State of
C Rajasthan, (2002) CrLJ 364 (Rajasthan), referred to.
Outlines of Criminal Law by Kenny (19th Edn.), referred to.
2.3. In view of the foregoing facts and circumstances of the case, the
crime committed by the accused was at initial stage of preparation. The offence
D committed does not come within the purview of offence punishable under
Sections 376/511 IPC. The appellant was charged under Sections 376/511
IPC but on Invoking the provisions of Section 222 Cr.P.C., the accused charged
with major offence can always be convicted for the minor offence, if necessary
ingredients of minor offer.cc are present. On evaluation of the entire evidence
and documents on record, the appellant is clearly guilty of the offences under
E Sections 366 and 354 IPC. The ends of justice would be subserved by
convicting the appellant under Sections 366/354 IPC. The appellant is
sentenced to undergo imprisonment for five years under Section 366 IPC.
The appellant is also convicted under Section 354 IPC and sentenced to two
years rigorous imprisonment. [28-D-E; 34-A-Bf
F
G
H
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. I 036 of
2005.
From the Judgment and Order dated 6.8.2004 of the High Court of
Jharkhand at Ranchi in Crl. A. No. 277/1999.
Chandrakant, A.C. for the Appellant.
Gopal Prasad and Sarbajit Dutta for the Respondent.
The Judgment of the Court was delivered by
DAL VEER BHANDARI, J. This appeal is directed against the judgment
l
f
•
I
·"
TARAKESHWARSAHU1·. STATE OF BlHAR(NOW JHARKHAND)[DALVEERl3HANDARl,lj J 3
of the Jharkhand High Court at Ranchi, Jharkhand passed in Criminal Appeal A
No. 277 of 1999, dismissing the appeal filed by the Appellant and upholding
the judgment of the Additional Judicial Commissioner, Ranchi, whereby the
Appellant was found guilty for the offence punishable under Sections 376/
511 of Indian Penal Code and was sentenced to undergo rigorous imprisonment
for seven years.
Facts which are necessary to dispose of this appeal, in nutshell, are as
follows.
B
On 18th February, 1998, at about 1.30 a.m., Tara Muni Kumari, aged
about 12 years, came out of her house to answer the call of nature. The
appellant at that time had forcibly taken her to his Gumti for committing illicit C
sexual intercourse with her. The said Gumti of the appellant was only few feet
away from the house of the prosecutrix. It is alleged that the prosecutrix raised
an alarm, and immediately thereafter several persons including PW I Ram
Charan Baitha, the informant and the father of the prosecutrix, Sahdeo Sahu
PW2, Deonandan Sahu PW3 the Sarpanch of the village, Jewalal Sahu PW6 D
came from the adjoining houses and caught the appellant before he could
even make any attempt to ravish her. Due to immediate arrival of PW I and
other co-villagers on hearing hue and cry raised by the prosecutrix, the
appellant could not succeed in ravishing her. Immediately after this episode,
PW I Ram Charan Baitha, father of the prosecutrix along with other villagers,
who appeared as witnesses in this case, had gone to the police station and E
lodged a first information report at 2.30 a.m. The FIR was lodged within one
hour of the incident. All the persons who had gone to the police station and
later appeared as witnesses were residing in the close vicinity and were
natural witnesses to the incident. The appellant was charged for the offence
punishable under Sections 376/511 IPC, to which he did not plead guilty and F
claimed himself to be innocent. According to him, he was falsely implicated
in the instant case at the instance of Gyan Kumar Sahu PW5 and the informant
Ram Charan Baitha PW!.
The prosecution had examined ten witnesses to substantiate its case.
The prosecutrix Tara Muni Kumari was examined as PW7. Sahdeo Sahu PW:L, G
a retired school teacher, who resided in the same vicinity. Deonandan Sahu,
another neighbour was examined as PW3. Bahadur Bai th a, the brother of the
prosecutrix was examined as PW4. Gyan Kumar Sahu, a student of Modern
College was examined as PW5. Jewalal Sahu was examined as PW6. Manju
)
Devi, mother of the prosecutrix was examined as PW8. Ram Prasad Baitha, H
14
SUPREME COURT REPORTS [2006) SUPP. 7 S.C.R.
A grandfather of the prosecutrix was examined as PW9 and lshwar Dayal Singh,
Assistant Sub-Inspector was examined as PWIO.
The statements of PW I to PW5 are consistent, in which all of them had
stated that they resided in close proximity to the house of the accused and
victim Tara Muni Kumari. On 18.2.1998, at 1.30 a.m., on hearing an alarm of
B the prosecutrix, they got up and ran to the Gumti of the appellant and found
that the prosecutrix Tara Muni Kumari was crying in front of the appellant
Tarkeshwar Sahu. Number of villagers had also assembled there. In the
presence of all of them, she had narrated that the appellant had forcibly lifted
her and took her to his Gumti with the clear intention to outrage her modesty
C but the appellant had failed in his attempt because on raising an alarm by the
prosecutrix the father of the prosecutrix and other villagers had assembled
there. Statements of PWI to PW5 were recorded during 24.6. 1998 to I 5.7. 1998.
Their statements by and large narrate the consistent version. These witnesses
finnly withstood the cross-examination. Other set of witnesses who were
examined later on from 12.8.1998 to I 0.3.1999 had not supported the version
D of the prosecution and consequently they were declared hostile. It is quite
evident that the witnesses which were examined from 12.8.1998 to I 0.3. I 999
were won over by the appellant. There is clear and cogent evidence of PW I
to PW5 on record supporting the entire prosecution story. The prosecutrix,
PW7 was declared hostile but in her cross-examination she had clearly
E mentioned as under:
F
"Tarkeshwar Sahu tried to commit rape on my person, but did not
succeed due to protest made by me; he used to tease other girls also."
In further cross-examination, PW7 stated that "I cannot tell who the person
was."
On the basis of the above statement, PW7 was declared hostile. PW8
and PW9 also did not support the prosecution story and they were also
declared hostile. lshwar Dayal Singh, Assistant Sub-Inspector was examined
as PWI 0. He gave elaborate description of the Gumti. He submitted that he
G had recorded the statements of the witnesses. According to the statements
of the witnesses, they saw Tara Muni and Tarkeshwar coming out of the
Gumti. The prosecutrix clearly stated that the appellant forcibly took her and
kept her inside the Gumti. The prosecutrix further stated that the appellant .
took her in his lap inside the Gum ti and told her to lie down with the intention
to commit rape on her. The trial court arrived at a finding that the prosecution
H had fully established the charge under sections 376/511 !PC against the
TARAKESHWARSAHU "·STATE OF BIHAR(NOW JHARKHAND) [DAL VEER BHANDARl,J] J 5
appellant Tarkeshwar Sahu beyond all reasonable doubt. Consequently, the A
appellant was found guilty under sections 376/511 IPC and he was convicted
and sentenced to seven years rigorous imprisonment.
Being aggrieved by the judgment of the trial court, the appellant had
preferred an appeal before the Jharkhand High Court at Ranchi. The learned
B
Single Judge carefully scrutinized the entire evidence on record. The High
Court observed that there is a twelve feet wide road which intervenes between
the house of the appellant and that of the informant PW 1, the father of the
..
prosecutrix. The Gumti in question was in the east of the house of the
appellant and was on the front of the road. The Investigating Officer, in para
9 of his evidence, had deposed that the distance of the Gumti from the place c
where prosecutrix had gone to answer the call of nature was about 50 yards.
The High Court also observed that there was evidence on record to show that
the houses of PWs 2, 3, 4 and 5 were located close to the said Gumti. It was
established from the evidence on record that the appellant used to sleep in
the said Gumti for the last three months prior to the alleged incident whereas,
his parents used to sleep in the house. The High Court had critically examined D
"
the entire prosecution version. Relevant portion of the judgment reads as
under:
"PW7 Tara Muni Kumari, the daughter of the informant has deposed
that in the night of the occurrence she had come out from her house
E
for nature's call and one unknown person caught her and attempted
to confine her in the said Gumti and she raised alarms and the
neighbours came there and they caught the said man. However, she
was declared hostile by the prosecution. She has stated in her crossexamination that it was a dark night and nothing was visible and she
did not identify that man and she also did not know his name till date. F
Manju Devi, PW& mother of Tara Muni Kumari has deposed that Tara
Muni Kumari had come out of her house for nature's call and one
unknown person carried her inside the Gumti stuffing her mouth and
on her alarms she came to the Gumti and saw her daughter and the
said man (Tarkeshwar Sahu) coming out of the said Gumti. She has G
..
also deposed that she does not identify that man. She has also been
declared hostile by the prosecution. In her cross-examination, she has
disclosed that the person who has carried her daughter inside the said
Gumti is not the resident of the locality and she does not identify him .
"
.),
Ram Prasad Baitha, PW9 the paternal grand father of Tara Muni H
16
A
B
c
D
E
F
G
H
SUPREME COURT REPORTS [2006] SUPP. 7 S.C.R.
Kumari who has also been declared hostile by the prosecution has
deposed that Tara Muni Kumari had told her that one unknown
person has carried her to the said Gumti. It, therefore, appears from
the evidence of PWs 7,8 and 9 that they have not named the appellant
as a participant in the occurrence carrying Tara Muni Kumari from the
place where she had gone for nature's call to the said Gumti. However,
PW7 has deposed very categorically that the persons who had
assembled there had apprehended the said man and PW3 Deonandan
Sahu has deposed that the said apprehended person was none but
the appellant who has been brought to the police station. It is equally
relevant to mention here that PW7 and PW8 however corroborates the
prosecution case that Tara Muni Kumari has been carried to the said
Gumti and confined there and she has raised alarms. PW! Ram Charan
Baitha, the informant has deposed that on the alarms raised by her
daughter Tara Muni Kumari, he ran to the said Gumti belonging to the
appellant and found Tara Muni Kumari crying there in front of the said
Gumti and the villagers came there. However, he has also stated in the
next breath that Tara Muni Kumari was raising alarms inside the Gumti
and the appellant opened the Gumti and Tara Muni Kumari and the
appellant came out of the said Gumti. He has further deposed that on
query Tara Muni Kumari told him that when she had come for the
nature's call the appellant forcibly carried her and brought her inside
the Gumti where he attempted to ravish her but because she raised
alarms the appellant could not succeed in ravishing her.
PW2 Sahdeo Sahu, PW3 Deonandan Sahu and PW4 Bahadur
Baitha in their evidence on oath has corroborated the testimony of the
informant in material particulars. PW5 had also come to the place of
occurrence on alarms and when he reached to the place of occurrence
he found Tara Muni Kumari outside the Gumti and he was told about
the incident. It, therefore, stands established by the evidence on the
record that Tara Muni Kumari was carried to the said Gumti and
confined there and on alarms when the informant and others assembled
there she came out of the said Gumti along with the appellant who was
apprehended by them and brought to the police station and inside the
said Gumti the appellant had made attempt to ravish her but due to
the intervening circumstance he could not succeed in his attempt in
respect thereof. Even PW2 in para 9 of his cross examination has
stated that the parents of the appellant had also accoll'panied the
informant and others to the said police station along with the appellant
'
•
.
... ,
TARAKESHWARSAHU•. STA TEOF BIHAR(NOW JIL'.RKHANO)[DAL VEER BHANOARl,J.] J 7
I
who was apprehended by the infonnant and others. It is a circumstance . A
of unimpeachable character which supports the prosecution dse
.
I •
regarding the participation of the appellant in the occurrence in question
and in this view of the matter.the absence of identification of the
· appellant by PW7 and PW8 does not cut much ice. Furthennore, . __ ,
PW IO, the 1.0. has categorically deposed that PW7 has stated before . B
him that the appellant has lifted her in his lap and confined her in the
Gumti and attempted to ravish her and PW8 in her statement has also
stated that PW7 Tara Muni had told her that the appellant has carried
her to the said Gumti. _It; therefore, appears that PW7 and PW8 have
deliberately suppressed_ in their evidence regarding the, identification
of the appellant as a participant in this case. Thus, the non- C
identification by PW7 and PW8 of the appellant as a participant in the
·occurrence in question in view of the overwhelming evidence of the
other witnesses of the prosecution who are natural, competent and
independ_ent witness of the occurrence does not at all cast a cloud of
suspicion to the credibility of the warf and woof of the prosecution
case.'
9
D
The High Court also observed that the prosecution witnesses had no
animus to depose falsely against the appellant. According to the impugned .
judgment, there was no semblance of enmity between the appellant on one
hand and PWs I to 4, 7, 8 and 9 on the other. According to the High Court, . E
all the witnesses were the most natural and independent witnesses of the
incident and there was nothing oit record to sho~ that they had any animus,
grudge or vendetta against the appellant to defiose falsely against the appellant.
In this view of the matter, the High Court did not see any justification in
discarding their testimony. The High Court independently came to the finding
that false implication of_ the appellant was totally ruled out in the facts and F
circumstances of this case. According to the High Court, the trial court was
perfectly justified in ·awarding the sentence of seven years rigorous
imprisonment to the appellant and consequently the appeal filed by the
appellant was dismissed by the High Court.
,.,
Looking to the gr~vity of the offence, we ourselves have examined the · G
entire evidence and documents on record. Even on· close scrutiny and
marshalling of evidence, we could not persuade ourselves to take a different
view than taken by the courts below as far as the conviction of the appellant
is concerned. In our considered view, the prosecution version is both, truthful
and credible~ We are clearly of the view that the appellant had forcibly taken H
18
SUPREME COURT REPORTS [2006] SUPP. 7 S.C.R.
A the prosecutrix to the Gumti to outrage her modesty but before he could do
anything, on raising an alarm by the prosecutrix, the father of the prosecutrix
and other villagers had assembled there and she was rescued.
Now, the moot question which squarely falls for our consideration
pertains to the correct and appropriate sections of the Indian Penal Code
B under which the appellant is required to be convicted according to the
offence he had committed. The trial court and the High Court had convicted
the appellant under Sections 376/511 IPC. In order to arrive at the correct
conclusion, we deem it appropriate to examine the basic ingredients of section
375 IPC punishable under Section 376 IPC to demonstrate whether the
C conviction of the appellant under Sections 376/511 IPC is sustainable.
D
E
F
G
H
"375. Rape.-A man is said to commit "rape" who, except in the case
hereinafter excepted, has sexual intercourse with a woman under
circumstances falling under any of the six following descriptions:-
First. Against her will.
-
Secondly. Without her consent.
Thirdly. With her consent, when her consent has been obtained
by putting her or any person in whom she is interested in fear
of death or of hurt.
Fourthly. With her consent, when the man knows that he is not
her husband, and that her consent is given because she believes
that he is another man to whom she is or believes herself to be
lawfully married.
Fifthly. With her consent, when, at the time of giving such
consent, by reason of unsoundness of mind or intoxication or the
administration by him personally or through another of any
stupefying or unwholesome substance, she is unable to
understand the nature and consequences of that to which she
gives consent.
Sixthly. With or without her consent, when she is under sixteen
years of age.
Explanation. Penetration is sufficient to constitute the sexual
intercourse necessary to the offence of rape.
Exception. Sexual intercourse by a man with his own wife, the wife
•
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>
TARAKESHWARSAHUr. STATE OF BIHAR(NOW JHARKHAND) [DALVEERBHANDARl,l] J 9
not being under fifteen years of age, is not rape."
Under Section 375 IPC, six categories indicated above are the basic
ingredients of the offence. In the facts and circumstances of this case, the
prosecutrix was about 12 years of age, therefore, her consent was irrelevant.
A
The appellant had forcibly taken her to his Gumti with the intention of
committing sexual intercourse with her. The important ingredient of the offence B
under Section 375 punishable under Section 376 IPC is penetration which is
altogether missing in the instant case. No offence under Section 376 !PC can
be made out unless there was penetration to some extent. In absence of
penetration to any extent would not bring the offence of the appellant within
the four corners of Section 3 75 of the Indian Penal Code. Therefore, the basic C
ingredients for proving a charge of rape are the accomplishment of the act
with force. The other important ingredient is penetration of the male organ
within the labia majora or the vulva or pudenda with or without any emission
of semen or even an attempt at penetration into the private part of the victim
completely, partially or slightly would be enough for the purpose of Sections
375 and 376 IPC. This Court had an occasion to deal with the basic ingredients D
of this offence in the case of State of U.P. v. Babu/ Nath'. In this case, this
Court dealt with the basic ingredients of the offence under Section 375 in the
following words:-"
8. It may here be noticed that Section 375 of the IPC defines rape and
the Explanation to Section 375 reads as follows:
E
"Explanation: Penetration is sufficient to constitute the sexual
intercourse necessary to the offence of rape."
From the Explanation reproduced above it is distinctly clear that
ingredients which are essential for proving a charge of rape are the F
accomplishment of the act with force and resistance. To constitute the
offence of rape neither Section 375 of IPC nor the Explanation attached
thereto require that there should necessarily be complete penetration
of the penis into the private part of the victim/prosecutrix. In other
words to constitute the offence of rape it is not at all necessary that
there should be complete penetration of the male organ with emission G
of semen and rupture of hymen. Even partial or slightest penetration
of the male organ within the labia majora or the vulva or pudenda with
or without any emission of semen or even an attempt at penetration
1.
[1994] 6 sec 29.
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SUPREME COURT REPORTS [2006] SUPP. 7 S.C.R.
into the private part of the victim would be quite enough for the
purpose of Sections 375 and 376 of IPC. That being so it is quite
possible to comm it legally the offence of rape even without causing
any injury to the genitals or leaving any seminal stains. But in the
present case before us as noticed above there is more than enough
evidence positively showing that there was sexual activity on the
victim and she was subjected to sexual assault without which she
would not have sustained injuries of the nature found on her private
part by the doctor who examined her."
The ingredients of the offence have also been examined by the Kerala
C High Court in the case of State of Kera/av. Kundumkara Govindam2• In this
case, the Court observed as under:
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F
"The crux of the offence ~/s 3 76 IPC is rape and it postulates a sexual
intercourse. The word "intercourse" means sexual connection. It may
be defined as mutual frequent action by members of independent
organization. By a metaphor the word "intercourse" like the word
"commerce" is applied to the relation of sexes. In intercourse there is
temporary visitation of one organization by a member of the other
organization for certain clearly defined and limited objects. The primary
object of the visiting organization is to obtain euphoria by means of
a detent of the nerves consequent on the sexual crisis. There is no
intercourse unless the visiting member is enveloped at least partially
by the visited organization, for intercourse connotes reciprocity. In
. intercourse between thighs the visiting male organ is enveloped at
least partially by the organism visited, the thighs; the thighs are kept
together and tight."
The word "penetrate", according to Concise Oxford Dictionary means
"find access into or through, pass through".
In order to constitute rape, what section 375 !PC requires is medical
evidence of penetration, and this may occur and the hymen remain imact. In
G view of the explanation to section 375, mere penetration of penis in vagina
is an offence of rape. Slightest penetration is sufficient for conviction under
Section 376 !PC.
Position of law in England is the same. To constitute the offence: of
H
2.
(1969) Crl.J 818.
TARAKESHWAR SAHU 1• STA TEOF BIHAR (NOW JHARKHAND)[DAL VEER BHANDARl,J] 21
,,•
rape, there must be a penetration3. Even the slightest, penetration will be A
sufficient. Where a penetration was proved, but not of such a depth as to
injure the hymen, still it was held to be sufficient to constitute the crime of
rape. This principle has been laid down in R v. M'Rue' and R v. Allen'. In the
case of R. v. Hughes' and R. v. lines', the Coui1 has taken the view that 'proof
...
>
of the rupture of the hymen is unnecessary'. In the case of R. v. Marsden',
the Court has laid down that 'it is now unnecessary to prove actual emission B
of seed; sexual intercourse is deemed complete upon proof of penetration
only.
In the case of Nirmal Kumar v. State•, the Court held as under:-
"Even slightest degree of penetration of the vulva by the penis with C
or without emission of semen is sufficient to constitute the offence
of rape. The accused in this case had committed rape upon a minor
girl aged 4 years and he could not explain the reasons regarding
congestion of labia majora, labia minora and redness of inner side of
labia minor and vaginal mucosa of victim. Stains of semen were also D
found on the underwear worn by the accused. The conviction of
accused held proper."
The distinction between rape and criminal assault has been aptly
described in the English case Rex. v. James lloyd10 In this case, while
summing up the charge to the jury, Justice Patterson observed:
E
3 .
4.
5.
6.
7.
8.
9.
10.
"In order to find the prisoner guilty of an assault with intent to
commit a rape, you must be satisfied that the prisoner, when he laid
hold of the prosecutrix, not only desired to gratify his passions upon
R. v. Hill (1781) I East PC 3439.
(1838) 8 c & p 641.
(1839) 9 c & p 31.
(I 841) 2 Mood 190
(1844) I C & K 393.
(1891) 2 QB 149.
(2002) CrLJ 3352 (P&H)
(1836) 7 C and P 317: 173 ER 14.
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SUPREME COURT REPORTS [2006] SUPP. 7 S.C.R.
her person but that he intended to do so at all events, and
notwithstanding any resistance on her part."
A similar case was decided by Mirza and Broomfield JJ. of the Bombay
High Court in Ahmed Asalt Mirkhan
11 • In that case the complainant, a milkmaid,
aged 12 or 13 years, who was hawking milk, entered the accused house to
B deliver milk. The accused got up from the bed on which he was lying and
chained the door from inside. He then removed his clothes and the girl's
petticoat, picked her up, laid her on the bed, and sat on her chest. He put
his hand over 'her mouth to prevent her crying and placed his private part
against hers. There was no penetration. The girl struggled and cried and so
C the accused desisted and she got up, unchained the door and went out. It
was held that the accused was not guilty of attempt to commit rape but of
indecent assault. The point of distinction between an offence 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 is just going to have sexual
connection with her.
D
In Halsbury's Statutes of England and Wales, 4th Edition, Vol. 12, it is
sated that even the slightest degree of penetration is sufficient to prove
sexual intercourse.
In Encyclopaedia of Crime and Justice (Vol. 4 page 1356), it is stated
E " ... even slight penetration is sufficient and emission is unnecessary".
F
In the case of Aman Kumar & Anr. v. State of Haryana 12, this Court
stated as under:
"Penetration is the sine qua non for an offence of rape. In order
to constitute penetration, there must be evidence clear and cogent to
prove that some part of the virile member of the accused was within
the labia of the pudendum of the woman, no matter how little."
In view of the catena of judgments of Indian and English Courts, it is
abundantly clear that slight degree of penetration of the penis in vagina is
G sufficient to hold accused guilty for the offence under Section 375 !PC
11. Criminal Appeal No. 161of1930. decided on 12.8.1930 reported in Law of Crimes by
Ratanlal Dhirajlal's, Page 922.
H 12. [2004J 4 sec 379.
,.,.
..
,;.
TARAKESHW AR SAHU r. STA TEOFBIHAR (NOW JHARKHAND)[DAL VEER BHANDARIJ] 23
punishable under Section 376 IPC.
A
In the backdrop of settled legal position, when we examine the instant
case, the conclusion becomes irresistible that the conviction of the appellant
under Sections 376/511 IPC is wholly unsustainable. What to talk about the
penetration, there has not been any attempt of penetration to the slightest
degree. The appellant had neither undressed himself nor even asked the B
prosecutrix to undress so there was no question of penetration. In the absence
of any attempt to penetrate, the conviction under Section 376/511 IPC is
wholly illegal and unsustainable.
In the instant case, the accused has been charged with Sections 376/ C
511 IPC only. In absence of charge under any other section, the question now
arises - whether the accused should be acquitted; or whether he should be
convicted for committing any other offence pertaining to forcibly outraging
the modesty of a girl. In a situation like this, we would like to invoke Section
222 of the Code of Criminal Procedure, which provides that in a case where
the accused is charged with a major offence and the said charge is not D
proved, the accused may be convicted of the minor offence, though he was
not charged with it. Section 222 Cr.P.C. reads as under:-
"222. When offence proved included in offence charged.-{I) When
a person is charged with an offence consisting of several particulars,
a combination of some only of which constitutes a complete minor E
offence, and such combination is proved, but the remaining particulars
are not proved, he may be convicted of the minor offence, though he
was not charged with it.
(2) When a person is charged with an offence and facts are
proved which reduce it to a minor offence, he may be convicted of F
the minor offence, although he is not charged with it.
(3) When a person is charged with an offence, he may be convicted
of an attempt to commit such offence although the attempt is not
separately charged.
(4) Nothing in this section shall be deemed to authorise a
conviction of any minor offence where the conditions requisite for the
initiation of proceedings in respect of that minor offence have not
been satisfied."
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SUPREME COURT REPORTS [2006] SUPP. 7 S.C.R.
A
In this section, two illustrations have been given which would amply
B
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D
describe that when an accused is charged with major offence and the
ingredients of the major offence are missing and ingredients of minor offence
are made out then he may be convicted for the minor offence even though
he was not charged with it. Both the illustrations given in the said section
read as under:
"(a) A is charged under section 407 of the Indian Penal Code (45 of
1860) with criminal breach of trust in respect of property entrusted to
him as a carrier. It appears that he did commit criminal breach of trust
under section 406 of that Code in respect of the property, but that it
was not entrusted to him as a carrier. He may be convicted of criminal
breach of trust under the said section 406.
(b) A is charged under section 325 of the Indian Penal Code (45 of
1860), with causing grievous hurt. He proves that he acted on grave
and sudden provocation. He may be convicted under section 335 of
that Code."
In the case lakhjit Singh & Anr. v. State of Punjab 13, this Court had
an occasion to examine the similar question of law. In this case, the accused
was charged and tried under Section 302 of the Indian Penal Code but
ingredients of Section 302 were missing but ingredients of Section 306 were
E present, therefore, the Court deemed it proper to convert the conviction of
the appellant from Section 302 to Section 306 !PC. In this case, it was urged
that the accused cannot be tried under Section 306 !PC because the accused
were not put to notice to meet a charge under Section 306 !PC and, therefore,
they are prejudiced by not framing a charge under Section 306 !PC; therefore,
presumption under Section 113-A of Indian Evidence Act cannot be drawn
F and consequently a conviction under Section 306 !PC cannot be awarded.
According to this Court, in the facts and circumstances, section 306 was
attracted and the appellants' conviction under Section 302 !PC was set aside
and instead they were convicted under section 306 IPC.
G
A three-Judge Bench of this Court in the case of Shamnsaheb M.
Mu/ttani v. State of Karnataka" had an occasion to deal with Section 222
of the Code of Criminal Procedure. The Court came to the conclusion that
13. (1994] Supp I sec 173.
H
14. 120011 2 sec sn
TARAKESHWAR SAHU v. STATE OF BIHAR(NOW JHARKHAND) [DAL VEER BHANDARl.J.] 25
when an accused is charged with a major offence and if the ingredients of A
major offence are not proved, the accused can be convicted for minor offence,
if ingredients of minor offence are available. The relevant discussion is in
paragraphs 16, 17 and 18 of the judgment, which read as under:-
"16. What is meant by "a minor offence" for the purpose of Section
222 of the Code? Although the said expression is not defined in the B
Code it can be discerned from the context that the test of minor
offence is not merely that the prescribed punishment is less than the
major offence. The two illustrations provided in the section would
bring the above point home well. Only if the two offences are cognate
offences, wherein the main ingredients are common, the one punishable C
among them with a lesser sentence can be regarded as a minor offence
vis-a-vis the other offence.
17. The composition of the offence under Section 304-B IPC is vastly
different from the formation of the offence of murder under Section
302 !PC and hence the former cannot be regarded as minor offence vis- D
a-vis the latter. However, the position would be different when the
charge also contains the offence under Section 498-A IPC (husband
or relative of husband of a woman subjecting her to cruelty). As the
world "cruelty" is explained as including, inter a/ia,
"harassment of the woman where such harassment is with a view to E
coercing her or any person related to her to meet any unlawful demand
for any property or valuable security or is on account of failure by
her or any person related to her to meet such demand".
18. So when a person is charged with an offence under Section 302
and 498-A IPC on the allegation that he caused the death of a bride
after subjecting her to harassment with a demand for dowry, within a F
period of 7 years of marriage, a situation may arise, as in this case,
that the offence of murder is not established as against the accused.
Nonetheless, all other ingredients necessary for the offence under
Section 304-B IPC would stand established. Can the accused be
convicted in such a case for the offence under Section 304-B IPC G
without the said offence forming part of the charge?"
On careful analysis of the prosecution evidence and documents on
record, the appellant cannot be held guilty for committing an offence
punishable under Sections 376/511 !PC. According to the version of the
prosecution, the appellant had forcibly taken the prosecutrix to his Gumti for H
26
SUPREME COURT REPORTS [2006] SUPP. 7 S.C.R.
A committing illicit intercourse with her. But before the appellant could ravish
the prosecutrix, she raised an alann and immediately thereafter, her father PW 1
Ram Charan Baitha and other co-villagers residing in the vicinity assembled
at the spot and immediately thereafter, the appellant and the prosecutrix came
out of the Gumti. In this view of the matter, no offence under Sections 376/
511 IPC is made out.
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E
In this view of the matter, it has become imperative to examine the legal
position whether the offence of the appellant falls within the four corners of
other provisions incorporated in the Indian Penal Code relating to outraging
the modesty of a woman/girl under Sections 366 and 354.
Section 366 !PC is set out as under:
"366. Kidnapping, abducting or inducing woman to compel her
marriage, etc.-Whoever kidnaps or abducts any woman with intent
that she may be compelled, or knowing it to be likely that she will be
compelled, to marry any person against her will, or in order that she
may be forced or seduced to illicit intercourse, or knowing it to be
likely that she will be forced or seduced to illicit intercourse, shall be
punished with imprisonment of either description for a tenn which may
extend to ten years, and shall also be liable to fine; and whoever, by
means of criminal intimidation as defined in this Code or of abuse of
authority or any other method of compulsion, induces any woman to
go from any place with intent that she may be, or knowing that it is
likely that she will be, forced or seduced to illicit intercourse with
another person shall be punishable as aforesaid".
The essential ingredient of the offence punishable under Section 366
F IPC is that when a person has forcibly taken a minor girl with the intention
as specified in that section, then the offence is clearly made out.