Holding

The Court held that the prosecutrix's testimony can be relied upon without corroboration unless the court finds it difficult to accept, and in the present case the evidence did not establish rape or an attempt, but did establish indecent assault under Section 354 read with Section 34.

Summary

The appellants were convicted of rape under Section 376(2)(g) IPC based largely on the testimony of the prosecutrix, a minor girl, while other witnesses turned hostile. On appeal, the Supreme Court examined whether a prosecutrix's testimony can be relied upon without corroboration and whether the evidence established the offence of rape or merely indecent assault. The Court held that a prosecutrix is not an accomplice and her testimony may be accepted without corroboration unless the court finds it difficult, in which case corroborative evidence is required. In this case, discrepancies between the prosecutrix’s statements and the medical and police records meant the prosecution failed to prove penetration, the sine qua non of rape, or an attempt under Section 511. Consequently, the conviction for rape was set aside, but the facts supported a conviction for indecent assault under Section 354 read with Section 34. The appeal was partly allowed, substituting the conviction and sentencing the appellants to two years’ imprisonment and a fine under Section 354.

Issues considered

The admissibility and sufficiency of a prosecutrix's testimony in rape cases without corroboration
Whether the evidence proved the offence of rape under Section 376 IPC
Whether the evidence established an attempt to commit rape under Section 511 IPC
Whether the appropriate conviction should be under Section 354 IPC read with Section 34

Legislation cited

Indian Evidence Act, 1872s. 3
Indian Penal Code, 1860s. 151, s. 34, s. 354, s. 376, s. 376(2)(g), s. 511

Subjects

rapeprosecutrix testimonycorroborationattemptSection 376 IPCSection 511 IPCSection 354 IPCindecent assaultpenetrationevidence law

Judgment

,..
AMAN KUMAR AND ANR. A
v.
STATE OF HARYANA

FEBRUARY 10, 2004

[DORAISWAMY RAJU AND ARIJIT PASAYAT, JJ.] B

Evidence Act, 1872-Section 3-Penal Code, 1860-Section 376-Victim
of offence of rape-Testimony-Reliability of-Held: Prosecutrix not being
accomplice, her testimony can be relied upon without corroboration-However, C
if it is difficult to accept the version, direct or circumstantial evidence may be
taken help of

Penal Code, 1860:

Section 376-Rape-Offence of-Necessary ingredients-Held: To D
constitute offence of rape slightest penetration of penis is sufficient-Further
rupture of hymen is not necessa1y but injuries 011 the b.ody forms important
piece of evidence-Evidence Act, 1872-Section 3.

Sections 3 76, 511 and 354-Allegation of commission of offence of rape
against accused-Conviction-High Court upholding the same-On appeal, E
held, there are discrepancies in the evidence of prosecutrix and also other
witnesses-Medical evidence and also evidence ofprosecutrix not referring to
penetration-Further no material to show accused determined to have the
sexual intercourse at all event thus case of attempt to commit rape under
Sections 3761511 not made out-However, there was assault on prosecutrix-
Hence accused convicted under Section 354 read with Section 34 and sentenced F
accordingly.

Section 51 I-Attempt to commit offence-Essential ingredie11ts-:-
Discussed

According to the prosecution, appellants raped a girl of tender age. G
FIR was lodged and investigations were carried out. Appellant-accused
were charge sheeted for offences under Sections 376/506 IPC. Appellant
pleaded that they were falsely implicated on account of differences between
accused and the brother of the prosecutrix. Except prosecutrix no other
237 H
...
-
238 SUPREME COURT REPORTS [2004) 2 S.C.R.

A witness including her mother, father and the person who saw accused going
away from the field after occurrence supported the prosecution version.
However, on the basis of the testimony of the prosecutrix alone trial court

B
convicted and sentenced the appellants. High Court upheld the order.
Hence the present appeal.

Appellant-accused contended that the.prosecuti~n version is highly
-
improbable; that there was false implication on account of differences
between the accused and the brother of the prosecutrix and the courts
below sh.ould not have acted on prosecutrix's evidence; that her evidence
even if accepted does not prove commission of rape and also the medical
C evidence does not prove the commission of offence; and that the evidence
taken on its entirety, and even if accepted to be true, it can be said that
there was a preparation to commit rape, but the act was not actually done.

Respondent-State contended that the evidence not only shows the ....
intention to commit rape, an attempt to do it and successful completion
D thereof, thus the evidence ofprosecutrix cannot be discarded; that on the
date of the evidence of the prosecution witnesses including mother of the
prosecutrix, the case against brother of the prosecutrix was posted and it
appeared that compromise had been arrived at to bury the hatchets,
therefore, the Courts below did not give much weight to the evidence of
those who turned hostile, or con.sider it to be a just ground to discard the
E evidence of the prosecutrix for purpose of rejecting the prosecution case.

Partly allowing the appeal, the Court ·, .
\
HELD: I. A prosecutrix complaining of having been a victim of the
offence of rape is not an accomplice after the crime. There is no rule of
F law that her testimony cannot be acted without corroboration in material
particulars. She stands at a higher pedestal than an injured witness. Jn
the latter case; there is injury on the physical form, while in the former it
is both physical as well as psychological and emotional. However, if the
court of facts finds it difficult to accept the version of the prosecutrix on
G its face value, it may search for evidence, direct or circumstantial, which
would lend assurance to her testimony. Assurance, short of corroboration
as understood in the context of an accomplice would suffice. (243-C, DI
2. Penetration is the sine qua non for an offence of rape. To constitute
the offence of rape, it is not necessary that there should be .complete
--
H penetration of the penis with emission of semen and rupture of hymen.
AMAN KUMAR v. STATE OF HARYANA 239·
Partial penetration within the labia majora of the vulva or pudendum with A
or without emission of semen is sufficient to constitute the offence of rape
as defined in the law. The actus reus is complete with slight penetration.
Furthermore, in examination of genital organs, state of hymen offers the
most reliable clue. The shape and t~e texture of the hymen is variable.
This variation, sometimes permits penetration without injury. This is
possible because of the peculiar shape of the orifice or increased elasticity. B
On the other hand, sometimes the hymen may be more firm, less elastic
and gets stretched and lacerated earlier. Thus a relatively less forceful
penetration may not give rise to injuries ordinarily possible with a forceful
attempt. Labia majora are the first to be encountered by the male organ.
They are subjected to blunt forceful blows, depending on the vigour and C
force used by the accused and counteracted by the victim. Further,
examination of the females for marks of injuries elsewhere on the body
forms a very important piece of evidence.
1244-C; 245-8; 244-F, G, H; 245-A, Bl

Dr. S.P. Kohli, Civil Surgeon, Ferozpur v. High Court of Punjab and D
Haryana thr. Registrar, 119791 I SCC 212, relied on.

Joseph lines JC & K 893, Stephens Criminal Law 9th Ed. P.262,
Encycolpedia of Crime and· Justice Volume 4, p.1356 and Halsbury's
Statutes of England and Wales (Fourth Edition) Vol. 12, referred to.
E
3.1. 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 it fails
due to reasons beyond his control, he is said to have attempted to commit
the offence and law punishes the person attempting the act under section F
SI I IPC. An attempt is made punishable, because every attempt, although
it falls short of success, must create alarm, .which by itself is an injury,
and the moral guilt of the offender is the same as if he had succeeded.
Moral guilt must be united to Injury in order to justify punishment. As
the injury is not as great as if the act had been committed, only half the
punishment is awarded. 1245-F; El G
3.2. An attempt may be described to be an act done in part execution
ofa 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. An attempt to
commit a crime is to be distinguished from an intention to commit it; and H
J
240 SUPREME COURT REPORTS (2004] 2 S.C.R.
.r
A from preparation made. The moment he commences to do aQ act with the
necessary intention, he commences his attempt to commit the offence. Mere
intention to commit an offence, not followed by any act, cannot constitute
an offence. The will is not be taken for the deed unless there be some
external act which shows that progress has been made in· the direction of
B 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. 1246~0, E; 246-A, Bl

3.3. In order to find an accused guilty of an attempt with. intent to
commit a ·rape, Court has to be satisfied that the accused, when he laid
C 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. In order to come to such a conclusion materials
must exist. Furthermore, indecent assaults are often magnified into
attempt to rape. The point of distinction between an offence of attempt to
commit rape and to commit indecent assault is that there should be some
•
D action on the part of the accused which would show that he was just going ·
to have sexual connection with her. 1246-F, G; 248-AI

4. Jn the instant case the prosecutrix's version in Court was of rape,
but on comparison .with the one given during investigatio~, certain
irreco.ncilable discrepancies are noticed. The evidence regarding actual
E commission of rape is at variance from what was recorded by police during
evidence. The father made departure from what he allegedly stated during
investigation. M'erely because he was termed as a hostile witness his entire
evidence does not get effected. Also the evidence of prosecutrix and the
doctor does not specifically refer to penetration. Furthermore, there is no
p material to show that the accused were determined to have sexual
intercourse in all events. Therefore, ·the offence cannot be said to be an
atte;111pt to commit rape to attract culpability under Section 376/511 IPC.
But the case is of indecent assault upon a woman under Section 354.
Essential ingredients of the offence punishable under Section 354 IPC are
that .the person assaulted must be a woman, and the accused must have
G used criminal force on her intending thereby' to outrage her modesty. What ·
constitutes an outrage to female modesty is nowhere defined. The essence
rif a woman's modesty is her sex. The culpable intention ofthe accused is
the crux of the matter. The reaction Of the woman isvery"'releVant, but
its absence is not always decisive. Therefore, the co~'Vi"ction of the
H appellaiits' under Section 376 (2)(g) is set aside, however tll~y .a·~e. ~o~vic~ed
AMAN KUMAR v. STATE OF HARYANA [PASAYAT, J.] 241

under Section 354 read with Section 34 IPC and sentenced accordingly. A
1247-A-D; 248-BI

Rex v. James Llyod, 1187617 C&P 817, Co. Litt. 123 b, Hale P.C. 628,
I Hen. 6. la. 9 Edw. 4. 26 a, referred to.

The Shorter Oxford Dictiona1y, (Third Edn.), referred to. B
CRIMINAL APPEL LA TE JURISDICTION : Criminal Appeal No.
1016 of 1997.

From the Judgment and Order dated 9. 7.96 of the Punjab and Haryana
High Court in Crl.A.No. 490-SB of 1995. C
Rishi Malhotra and Kirshan Datta for the Appellants.

Vinay Kumar Garg and O.P. Bhadani for the Respondent.

The Judgment of the Court was delivered by D
ARIJIT PASA YAT, J. Two appellants faced trial for having allegedly
committed rape on a girl of tender age whose name need not be indicated and
she can be described as the victim or the prosecutrix. The trial Court found
the accused persons guilty of offence punishable under Section 376 (2)(g) of
the Indian Penal Code,,1860 (in short the 'IPC'). They were each sentenced E
to undergo imprisonment for I0 years and to pay a fine of Rs. 500 each with
default stipulation. In appeal, the conviction and sentence were upheld.

Prosecution version in a nutshell is that on 5.8.1993 the prosecutrix had
gone to the field to ease herself at about 10.00 a.m. When she had reached

- near the field, the accused persons caught hold of her right arm and dragged F
her forcibly to the field. Accused Shiv Dayal shut her mouth with ner chuni
and both the accused persons thereafter forcibly raped her. They threatened
to kill her if she told about the incident to anybody. She went to her house
weeping and narrated the incident to her mother. One Karan ~ingh had seen
the accused persons going away from the field. Since the father (PW-11) and G
brother of the prosecutrix were not at home the mother (PW-9) described the
incident to a member of the Panchayat (PW-12). Report was lodged with
- police on 7.8.1993. Investigation was undertaken. The prosecutrix was
medically examined and the accused persons after arrest were also medically
examined. After. completion of investigation, charge sheet was filed for alleged
comniission of offence punishable under Section 376/506 IPC. As the accused H
242 SUPREME COURT REPORTS (2004) 2 S.C.R.

A persons pleaded innocence, the trial was held. Thirteen witnesses were
examined to fu11her the prosecution version. The prosecutrix was examined
as PW-7 while her mother was examined as PW-9 and father as PW-I I. The
accused. persons pleaded that they have been falsely implicated. As Ran
Singh, the brother of the prosecutrix had mis-appropriated funds of a temple
B and the accused persons had made a grievance, a meeting was held on 5.8.1993
where the allegations were specifically made. On 6.8.1993, Ran Singh and
his friends had stopped the accused-Aman and had given him lathi blows.
The accused Shiv Dayal and others had come to his rescue and he was taken
to the hospital where he remained till 12.8.1993. On the basis of a complaint
made by Ami Chand, brother of accused Aman, a case had also been instituted
C against Ran Singh and Others. The accused persons examined a doctor who
stated that on 6.8.1993 he had examined accused Aman and found several
injuries on his person. Another witness was examined to show about the
assaults by Ran Singh and others. During trial, interestingly except the
prosecutrix no other witness of relevance including the mother of the
prosecutrix, her father and Karan Singh who had supposedly seen the accused
D persons going away from the field immediately after the occurrence, supported
the prosecution version. The trial Court held that even though the mother of
the prosecutrix and other witnesses whose evidence would have thrown some
light had not supported. the prosecution version, yet the testimony of the
prosecutrix herself was considered sufficient for the conviction to be made
E and accordingly conviction was done as afore-stated. Similar was the view
taken by the High Court in the appeal filed by the accused persons.

In support of the appeal, learned counsel for the appellants submitted
that the prosecution version is highly improbable. Though the prosecutrix's
evidence alone can form the foundation of conviction, yet in the background
F facts of the present case, it is clearly indicated that there was false implication
on account of differences between the accused persons and the brother of the
prosecutrix, and the Courts below should not have acted on her evidence.
-
Furthermore, the evidence of the prosecutrix even if accepted does not prove
commission of rape and the medical evidence also supports such a view. At
the most, on the evidence taken on its entirety, and even if accepted to be
G true, it can be said that there was a preparation to commit rape, but the act
was not actually done.

Per contra, learned counsel for the State submitted that in our traditional
bound country a rural girl of tender age would not tarnish or damage her own
H reputation and image merely because her brother had any dispute with or
- AMAN KUMAR v. STATE OF HARYANA [PASAYAT, J.] 243
animosity against the accused persons by volunteering to falsely claim that A
she had been raped and defiled. According to him, the evidence not only
shows the intention to commit the rape, an attempt to do it and successful
completion thereof. Therefore, the evidence of PW-7 cannot be discarded.
The reasons as to why some of the prosecution witnesses including the mother
of the prosecutrix did not support the prosecution case during the stage of B
trial, have been noticed by the trial Court and the High Cou1t. It has been
noted that on the date of their evidence, the case against brother of the
prosecutrix was posted and it appeared that compromise had been arrived at
to bury the hatchets. Therefore, the Courts below were not prepared to give
much weight to the evidence of those who turned hostile, or consider it to be
a just ground to discard the evidence of the prosecutrix for purpose of rejecting C
the case of the prosecution.

It is well settled that a prosecutrix complaining of having been a victim
of the offence of rape is not an accomplice after the crime. There is no rule
of law that her testimony cannot be acted without corroboration in material
particulars. She stands at a higher pedestal than an injured witness. In the D
latter case, there is injury on the physical form, while in the former it is both
physical as well as psychological and emotional. However, if the court of
facts finds it difficult to accept the version of the prosecutrix on its face
value, it may search for evidence, direct o'r circumstantial, which would lend
assurance to her testimony. Assurance, short of corroboration as understood E
in the context of an accomplice would suffice.

The offence of rape occurs in Chapter XVI of IPC. It is an offence
affecting the human body. In that Chapter, there is a separate heading for
"Sexual offences", which encompass Sections 375, 376, 376A, 3768, 376C
and 3760. "Rape" is defined in Section 375. Sections 375 and 376 have.been F
substantially changed by Crim in al Law (Amendment) Act, 1983, and several
new sections were introduced by the new Act, i.e. 376A, 3768, 376C and
3760. The fast sweeping changes introduced reflect the legislative intent to
curb with iron hand, the offence of rape which affects the dignity of a woman.
The offence of rape in its simplest term· is 'the ravishment of a woman,
without her consent, by force, fear or fraud', or as 'the carnal knowledge of G
a woman by force against her will'. 'Rape or Raptus' is when a man hath
carnal knowledge of a woman by force and against her will(Co.Litt. 123 b);
or, as expressed more fully, 'rape is the carnal knowledge of any woman,
above the age of particular years, against her will; or of a woman child, under
that age, with or against her will'. (Hale P.C. 628) The essential words in an H
244 . SUPREME COURT REPORTS [2004] 2 S.C.R.

A iridictment for rape are rapuit and carnaliter cognovit; but carnaliter cognovit,
nor any other circumlocution without the word rapuit, are not sufficient in a
-
legal sense to express rape: (I Hen. 6, Ia, 9 Edw. 4, 26 a (Hale P.C.628). In
the crime of rape, 'carnal knowledge' means the penetration to any the slightest
degree of the organ alleged to have been carnally known by the male organ
B of generation (Stephens Criminal law, 9th Ed.,p.262). Jn "Encyclopedia of
Crime and Justice" (Volume 4, page 1356), it is stated " ...... even slight
penetration is sufficient and emission is unnecessary". In Halsburys' Statutes
-.
of England and Wales (Fourth Edition) Volume 12, it is stated that even the
slightest degree of penetration is sufficient to prove sexual intercourse. It is
violation, with violence, of the private person of a woman, an outrage by all
C means. By the very nature of th.e offence it is an obnoxious act of the high
order.

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 tile
D pudendum of the woman, no matter how little (See Joseph Lines JC & K
893). It is well-known in the medical world that the examination of smegma
loses all importance after twenty four hours of the perfonnance of the sexual
intercourse. (See Dr. SP. Kohli, Civil Surgeon, Ferozepur v. High Court of
Punjab .and Hmyana thr. Registrar, (1979) I SCC 212. In rape cases, if the
E gland of the male organ is covered by smegma, it negatives the possibility
ofrecent complete penetration. If the accused is not circumcised, the existence
of smegma round the corona gland is proof against penetration, since it is
rubbed off during the act. The smegma accumulates if no bath is taken within
twenty four hours. The rupture of hymen is by no means necessary to constitute
the offence of rape. Even a slight penetration in the vulva is sufficient to
F constitute the offence of rape and rupture of the hymen is not necessary.
Vulva penetration with or without violence is as much rape as vaginal
penetration. The statute merely requires evidei1ce of penetration, and this
may occur with the hymen remaining intact. The actus reus is complete with
penetration. It is well settled that the prosecutrix cannot be considered as
G accomplice and, therefore, her testimony cannot be equated with that of an
accomplice in an offence of rape. In examination of genital organs, state of
hymen offers the most reliable clue. While examining the hymen, certain
anatomical characteristics should be remembered before assigning any.
significance to the findings. The shape and the texture of the hymen is variable.
This variation, sometimes permits penetration without injury. This is possible
H because of the peculiar shape of the orifice or increased elasticity. On the
AMAN KUMAR v. STATE OF HARYANA [PASAYAT, J.] 245

othe.r hand, sometimes the hymen ·may be more firm, Jess elastic and gets A
stretched and lacerated earlier. Thus a relatively less forceful penetration may
not give rise to injuries ordinarily possible with a forceful attempt. The
anatomical feature with regard to hymen which merits consideration is its
anatomical situation. Next to hymen in positive importance, but more than
that in frequency, are the injuries on labia majora. These, viz. labia majora B
are the first to be encountered by the male organ. They are subjected to blunt
forceful blows, depending on the vigour and force used by the accused and
counteracted by the victim. Fut1her, examination of the females for marks of
injuries elsewhere on the body forms a very important piece of evidence. To
constitute the offence of rape, it is not necessary that there should be complete
penetration of the penis with emission of semen and rupture of hymen. Partial C
penetration within the labia majora of the vulva or pudendum with or without
emission of semen is sufficient to constitute the offence of rape as defined
in the law. The depth of penetration is immaterial in an offence punishable
under Section 376 IPC.

The plea relating to applicability of Section 376 read with Section 511, D
IPC needs careful consideration. In every crime, there is first, intention to
commit, secondly preparation to commit it, thirdly, attempt to commit it. If
the third stage, that is, attempt is successful, then the crime is complete. If
the attempt fails the crime is not complete, but law punishes the person
attempting the act. Section 511· is a general provision dealing with attempts E
to commit offences not made punishable by other specific sections. It makes
punishable all attempts to commit offences punishable with imprisonment
and not only those punishable with death. An attempt is made punishable,
because every attempt, although it falls short of success, must create alarm,
which by itself is an injury, and the moral guilt of the offender is the same
as if he had succeeded. Moral gui It must be united to injury in order to justify F
punishment. As the injury is not as great as if the act had been committed,
only half the punishment is awarded.

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 it fails due to reasons beyond his G
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 cuJprit 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 H
246 SUPREME COURT REPORTS [2004] 2 S.C.R.

·A 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 be
B 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
C 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
D 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
E 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. It may
F 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.

In order to find an accused guilty of an attempt with intent to commit
G a rape, Court has to 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. Indecent assaults are often magnified into attempts at rape. In order to
come to a conclusion that the conduct of the accused was indicative of a
H determination to gratify his passion at all events, and in spite of all resistance,
l
AMAN KUMAR v. STATE OF HARYANA [PASAYAT, J.] 247

materials must exist'. Surrounding circumstances many times throw beacon A
light on that aspect.

Though the prosecutrix's version in Court was of rape, when it is
compared with the one given dudng investigation, certain irreconcilable
discrepancies are noticed. The evidence regarding actual commission of rape
is at variance from what was recorded by police during evidence. The evidence B
of PW-11, the father who according to prosecution made departure from
what he allegedly stated during investigation is to the effect that his wife PW-
9 told her that the prosecutrix was teased by the accused persons. Merely
because he was termed as a hostile witness his entire evidence does not get
effected. Significantly, the evidence of prosecutrix and the doctor does not C
specifically refer to penetration which is sine qua non for the offence of rape.

There is no material to show that the accused were determined to have
sexual intercourse in all events. In the aforesaid background, the offence
cannot be said to be an attempt to commit rape to attract culpability under
Section 376/511 !PC. But the case is certainly one of indecent assault upon D
a woman. Essential ingredients of the offence punishable under Section 354
IPC are that the person assaulted must be a woman, and the accused must
have used criminal force on her intending thereby to outrage her modesty.
What constitutes an outrage to female modesty is nowhere defined. 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, E
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 dress
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 p
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 lowe; Shame- G
fast; Scrupulously chast."

Modesty can be described 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 H
248 SUPREME COURT REPORTS [2004] 2 S.C.R.

A 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
B distinction .between an offence of attempt to commit rape and to commit
indecen.~ 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.

In that view of the matter, it would be appropriate to set aside the
conviction of the appellants under Section 376 (2)(g) and convict them under
C Section 354 read with Section 34 IPC. Custodial sentence of two years each,
with a fine of Rs.500 each and a default stipulation of three months rigorous
imprisonment in case of failure to pay the fine would meet the ends of
justice. The appeal is allowed to the extent indicated above.

N.J. Appeal partly allowed.