Removing Girl's Innerwear, Getting Naked Isn't Rape Attempt, Says Raj HC

In a contentious judgement, the Rajasthan High Court said that the act of removing the inner wear of a minor and getting naked in front of her doesn't account for an attempt to commit rape. Rather, this makes a case of outraging a woman's modesty. The court hence removed the charge of rape attempt from a man accused of sexually harassing a 6-year-old girl in 1991.

As per the reports, the single-bench court headed by Anup Kumar Dhand said that a person cannot be guilty under Section 376 and Section 511 of the Indian Penal Code (IPC) and attract charges of 'attempt to rape' if they remove the underwear of the survivor and get naked. It will rather attract the charges of outraging a woman's modesty punishable under Section 354 of the IPC.

Stages of attempting rape

Emphasising the idea of 'attempt', the court said that to consider an act as an attempt to commit rape, it should at least go beyond the stage of preparation. 

The court further elaborated on the various stages of attempts of rape. Justice Dhand said, "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." 

Details of the case

The case in question, Suwalal Son Of Gopi By Caste Raigar vs State, is over three decades old. A man filed a police complaint in Todaraisingh, Tonk district saying that on March 9, 1991, his 6-year-old granddaughter was drinking water at the water booth. Around 8 pm, Suwalal, who was 25 years old then, picked her up and took her to a nearby Dharmshala. He removed her innerwear and got naked. But when the girl cried for help, the villagers came to her rescue and Suwalal fled the spot. 

The District Court Of Tonk convicted Suwalal of attempting rape and he was in jail for two-and-a-half months. However, he appealed to the Rajasthan High Court.

The court's statement  

The court observed that since the accused fled the scene after undressing himself and the girl, the charge of attempting rape is not applicable. To prove the accused guilty of attempting rape, the girl's advocate will have to prove that the act went beyond the stage of penetration. 

To prove his point, Justice Dhand quoted Damodar Behera vs Odisha and Sittu vs Rajasthan State, in which the girl was forcibly stripped naked and the accused had developed a physical relationship with her. This, the judge said, is a case of attempt to rape. 

“In my opinion, from these facts, no case for an offence under Section 376/511 I.P.C. can be held to be proved. In other words, the accused-appellant cannot be held to be guilty of attempting 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 her modesty or with the 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 the present accused has not proceeded beyond the stage of preparation,” Justice Dhand said while modifying Sections 376/511 imposed on the accused and changing it to Section 354. 

Not the first kind of ruling

In 2021, the Bombay High Court said that a 39-year-old man was not guilty of sexually assaulting a 12-year-old because there was no 'skin-to-skin' contact when he groped her. As per the case, the man had invited the girl to his house under the pretext of giving her a guava. Then, he started touching her chest and tried to remove her underwear. 

The lower court convicted him of sexual assault and sentenced him to three years of imprisonment. But the accused filed a petition in the high court. The case was ruled over by Justice Pushpa Ganediwala who found the man not guilty.

She said, "Considering the stringent nature of punishment provided for the offence, in the opinion of this court, stricter proof and serious allegations are required." The judge said that Section 7 of the POCSO Act act defines skin-to-skin contact as a sexual assault which didn't happen in the case.  

She convicted the man for a lesser stringent charge of molestation and sentenced him to one-year imprisonment. 

However, later, the Supreme Court out-ruled the judgement saying that it was an "absurd" interpretation of Section 7 of the POCSO Act to restrict 'physical touch' to 'skin-to-skin contact'. Rather, the court said that any touch with an intention to sexually assault is an offence. 

What do we conclude?

These judgements show the core issue of why many survivors of rape and sexual assault do not register a case. Categorising sexual offences into 'stages of attempting rape', going beyond the 'preparation stage' and skin-to-skin contact will provide the abusers with a loophole to commit the crime and yet escape the punishment. It will not only undermine the seriousness of the crime but also subject the survivor to a shameful trial. Will any survivor be comfortable talking about the details of the offence? Will she (assuming the survivor to be a woman) not feel shameful and traumatic in recalling how exactly the accused removed her pants and where he touched her? 

Why are these details necessary to define if an act is a rape attempt or an outrage of modesty? Aren't both the charges equally serious and deserve stringent punishment? Yes, there are issues of false rape cases. But that needs police investigation's intervention. Moreover, just because some women file false cases, is it fair to subject every woman to a traumatic trial who has suffered? 

In cases of rape, the trauma of the survivor is huge - not only because of the incident but also because of social criticism. If courts do not consider this, where will rape survivors seek justice? So, rather than categorising sexual offences, the system must focus on penalising the sexual intent itself- nipping the sexual crimes in the bud. 

Views expressed are the author's own