Rajasthan High Court
Credit: Website/hcraj.nic.in
Jaipur: The Rajasthan High Court ruling in a 33-year-old case has stated that the act of removing a minor girl’s inner wear and making oneself naked will not attract the offence of ‘attempt to commit rape’.
In the case, which dates back to March 9, 1991, from Todaraisingh in Tonk district, in which the complainant's then six-year-old grand-daughter was accosted by the accused Suvalal when she had gone out to drink water around 8 pm in the night and forcefully took her into a nearby dharamshala, where he took off her inner wear and undressed himself. When the child cried for help, the villagers rushed and rescued her.
During the course of trial, the prosecution examined as many as seven witnesses and exhibited five documents. Thereafter, the statements of the appellant were recorded under Section 313 CrPC.
While delivering the judgment in this case, the single bench of Justice Anup Kumar Dhand stated that taking off a girl’s underwear and getting naked oneself does not fall under Section 376 and Section 511 of the IPC and will not attract the offence of ‘attempt to commit rape’.
IPC Section 376 says whoever commits sexual assault would face an imprisonment of not less than seven years and which may extend upto 10 years and shall also be liable to fine. Section 511 applies to attempts to commit offences which are punishable with any imprisonment under the IPC.
The court ruled that the act would attract the offence of ‘outraging the modesty of a woman’ punishable under Section 354 of the IPC. The ruling was given on May 13, 2024.
The judge wrote “In my opinion, from these facts no case for offence under Section 376/511 IPC can be held to be proved. In other words, the accused appellant cannot 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 with an intention to outrage modesty or with knowledge that her modesty was likely to be outraged. Thus, it is a clear case of Section 354 IPC as the act of the present accused has not proceeded beyond the state of preparation.”
Child rights activists are, however, more intrigued by the delay in delivering justice in this case.
Vidya Reddy, who works with TULIR (Centre for the Prevention and Healing of Child Sexual Abuse), Chennai told DH she is more amazed at the number of years it has taken to deliver justice and that is a story in itself.
About the ruling, Vidya says, “If you look at the two actions - that of 'removing inner wear and getting the child naked' are two separate acts. They need not indicate rape. People could be gratified in many ways - there are many fetishes which the average person might consider weird. We do not know what exactly happened in this case and what the accused person thought of doing. The surprising thing is that the ruling is being given in a 33-year-old case. It is actually a case fit for 'justice delayed is justice denied'”.
Vidya adds, “Also POCSO wasn’t there 33 years back, but if the case ruling was based on the Act, it would have been viewed very differently. It would not have taken into account just the acts but the context and the relationship with accused as well - and then may have even been viewed as aggravated sexual assault, attracting a higher sentence.”
Citing a somewhat similar case of Chatu Lal versus the state of Uttarakhand (criminal appeal no 2127 of 2009), wherein the victim was an adult, Vijay Goyal, a child rights activist in Jaipur, says “The Supreme Court convicted the accused for offences under Section 354 and Section 511 read with Section 376 IPC. Although the victim was an adult in this case.”
However, Swagata Raha, a legal researcher and Co-director of Restorative Practices, Enfold, Bengaluru, says, “Based on the news report, it appears that this is a case from 1991, a time when the law addressed child sexual abuse in a very limited manner. The POCSO Act was not applicable and anything shorn of penetration of the vagina by the penis would fall under outraging the modesty of a woman under Section 354, IPC.”