Holding

Penetration was proved by medical evidence, establishing the offence of rape under Section 376 IPC, and the conviction was upheld.

Summary

The appellant, Ramkripal, was convicted of rape under Section 376 of the IPC for forcibly having sexual intercourse with a woman who was collecting grass. The trial court, based on the victim’s testimony and medical evidence of perineal laceration and a torn hymen, found penetration and sentenced him to seven years’ rigorous imprisonment; the High Court affirmed this conviction. On appeal, the appellant argued that inconsistencies in witness statements and the medical reports precluded a finding of rape, contending that at most the conduct could be charged under Section 354 (outraging modesty) or Section 511 (attempt). The Supreme Court examined the statutory definition of rape, emphasizing that penetration is the essential element, and held that the medical findings established penetration, thereby constituting rape. The Court also clarified the ingredients of an offence under Section 354 and the scope of attempt under Section 511, concluding that the lower courts were justified in their findings. The appeal was dismissed, upholding the conviction.

Issues considered

The act amounted to rape under Section 376 IPC requiring proof of penetration.
Whether the conduct could be characterized only as outraging modesty under Section 354 IPC.
Whether the conduct amounted merely to an attempt under Section 511 IPC.
The relevance and sufficiency of medical evidence in establishing penetration.
The effect of alleged inconsistencies in witness testimony on the conviction.

Legislation cited

Indian Penal Code, 1860s. 354, s. 375, s. 376, s. 511

Subjects

rapeSection 376 IPCpenetrationsexual assaultmodestySection 354 IPCattemptSection 511 IPCmedical evidenceconviction

Judgment

.,;
RAMKRIPAL S/O SHYAMLAL CHARMAKAR A
v.
STATE OF MADHYA PRADESH

MARCH 19, 2007

[DR. ARIJIT PASAYAT AND S.H. KAPADIA, JJ.] B

Penal Code, 1860:

Ss. 375 and 376-Rape-Evidence ofprosecutrix supported by medical
evidence- Conviction by trial court-Affirmed by High Court-Held, courts c
below were perfectly justified in their view.

s.354-0utraging modesty of a woman-Ingredients explained.

s.511-Attempt to commit offence-Constituent of the provision
discussed D
j
Appellant was prosecuted under Section 376 IPC. The prosecution ca~e
was that when the prosecutrix after collecting green grass was returning·

- home, the appellant ravished her. The trial court convicted the accused of the
offence charged. The High Court affirmed the conviction and the sentence.
E
In the present appeal it was contended for the accused-appellant that
keeping in view the inconsistencies in the evidence of the witnesses and from
the evidence of the doctors, in any event, no offence under section 376 IPC
was made out and at the most the offence could be in terms of section 354 or
section 511 IPC.
) E
Dismissing the appeal, the Court

HELD: 1. 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; and (c) that the criminal force must have been G
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 ultimate test for ascertaining whether modesty has been

125 H
-+---
126 SUPREME COURT REPORTS [2007] 4 S.C;R.

A outraged is whether the action of the offender is such as could·be:perceived
as one which is capable of shocking the sense of decency.of a woman.
(Paras 9;10.and 13] (128-E,:F; :129..;GI

Rupan Deal Bajaj (Mrs.) and Anr. v. Kanwar Pal Singh Gill and Anr.,
(1995] 6 SCC 194 1; Raju Pandurang Mahale v. State of Maharashtra and
B Anr., (2004) 4 SCC 3712 and State of Punjab v. Major Singh, AIR (1967) SC
633, relied on.

Rex v. James Llyod, (1876) 7 C&P 817, referred to.

The Shorter Oxford Dictionary (Third Edn.), referred to.
c
2.1. Attemptto commit an offence, as envisagediby.section.511 •IPC, 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
D 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. (Para 15] (130-B, CJ

2.2. An attempt consists in it the intent to .commit a ciime, Jailing short
E of, its actual co~mission or consummation/completio,n. 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 5Il
clearly show the •legislative :intention ,to make a difference:bet~een ,the:cases
of a mere preparation and an attempt. (Para 16] (130-G-H; 131-AI

F 3. 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 ~o "sexual intercourse" and the Explanation appended to the section
provides that penetration is sufficient to.constitute1the·sexual intercourse
necessary to the offence of rape. ·Intercourse means •sexual connection. !In the
G instant case, that connection has.been,clearly established.'Whenvthe evidence

I. 1995[4] Supp. SCR 237.
~-

2. 2004[2] SCR 287.

H 3. 1966[2] SCR 286_
·-t-

RAMKRIPAL S/0 SHYAMLAL CHARMAKAR "- STATE OF MADHYA PRADESH [PASAYAT, !.] 127
of the prosecutrix alongwith that of the doctor (PW-7) is considered in the A
proper perspective, it is clear that the commission of actual rape has been
established. Courts below were perfectly justified in their view.
[Para 17 and 181 (131-A-B-C)

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 370 of
~ B
-..J From the Judgment and Order dated 1 l.OL2005 of the High Court at
Madhya Pradesh at Jabalpur in Crl. Appeal No. 178 of 1990.

Promila, (A.C.) for the Appellant.
c
Siddhartha Dave and Vibha Datta Makhija for the Respondent.

The Judgment of the Court was delivered by

DR. ARIJIT PASAYAT, J. 1. Leave granted.
D
2. Challenge in this appeal is to the judgment rendered by a learned
Single Judge of the Madhya Pradesh High Court at Jabalpur, dismissing the
)
appeal filed by the appellant against the judgment of the learned III Additional
Sessions Judge, Satna. Appellant was found guilty of offences punishable
under Section 376 of the Indian Penal Code, 1860 (in short the 'IPC') and was
sentenced to undergo RI for seven years. E
3. Prosecution version as unfolded during trial is as follows:

4. Victim (PW-1) had gone in the field near Makararbandh to bring green
grass and after collecting the green grass she was on her way back to her
home. The appellant came to her and proposed for sexual intercourse. The F
,J
victim protested and told that she will infonn her mother in respect thereof;
The appellant induced her not to say so to her mother as he will provide
Rs.10/- to her. The appellant felled her on the ground and removed her
undergarment and ravished her. She was crying in pain and at this th~
appellant had stuffed her mouth by clothes. The genital of the appellant had G
penetrated in her genital which gave immense pain to her and, thereafter, the
appellant left her. She saw blood oozing from her private part which ha~
besmeared her undergannent. After the return from the said field she ha~
narrated the incident to the brothers and their wives.

5. On completion of investigation the charge-sheet was placed. Accused H
128 SUPREME COURT REPORTS [2007) 4 S.C.R.

A faced trial. In order to establish the accusations the prosecution examined I 0
witnesses. The accused pleaded innocence and false implication. According
to him, a false case was posed at the instance of Rambhan Singh, Sarpanch
(PW-3). The Trial Court found the evidence of the pro~ecutrix to be cogent
and credible and accordingly as noted above, it found the accused guilty.

B 6. In appeal, the conclusions of the Trial Court were affirmed by the
High Court.

7. In support of the appeal, Ms. Promila, learned Amicus Curiae
appearing for the appellant submitted that the Trial Court and the High Court
C failed to notice inconsistencies in the evidence of the witnesses and in any
event no offence under Section 376 IPC is made out. Strong reliance is placed
on the evidence of the doctors PW-7 and PW-8 to contend that at the most
the offence can be in terms of Section 354 IPC or Section 511 IPC.

8. Per contra, learned counsel for the respondent-State. submitted that
D the Trial Court and the High Court have analysed the evidence in great detail
and have rightly concluded that offence punishable under Section 376 IPC.

9. 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
E 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).i That the criminal, force must have been used on the woman
F intending thereby to outrage her modesty.

I 0. What constitutes an outrage to female modesty is nowhere defined
in IPC. The essence ofa 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
G 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
H without any deliberate intention having such outrage alone for its object. As
·----t-

RAMKRIPAL S/O SHY AMI.AL CHARMAKAR 1•_ STATE OF MADHYA PRADESH [PASAYAT, J_] J29

indicated above, the word 'modesty' is not defined in IPC. The Shorter Oxford A
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."
B
11. 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 C
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 D
that he was just going to have sexual connection with her.

12. Webster's Third New International Dictionary of the English
Language defines modesty as "freedom from coarseness, indelicacy or
indecency; a regard for propriety in dress, speech or conduct".

13. In State of Punjab v. Major Singh, AIR (1967) SC 63 a question
arose whether a female child of seven and a half months could be said to be
possessed of 'modesty' which could be outraged. In answering the above
question the majority view was that when any act done to or in the presence
of a woman is clearly suggestive of sex according to the common notions of
mankind that must fall within the mischief of Section 354 IPC. Needless to say, F
)
the "common notions of mankind" referred to have to be gauged by
contemporary societal standards. It was further observed in the said case that
the essence of a woman's modesty is her sex and from her very birth she
possesses the modesty which is the attribute of her sex. From the above
dictionary meaning of 'modesty' and the interpretation given to that word by G
this Court in Major Singh 's case (supra) the ultimate test for ascertaining
whether modesty has been outraged is whether the action of the offender is
such as could be perceived as one which is capable of shocking the sense
of decency of a woman. The above position was noted in Rupan Deol Bajaj
(Mrs.) and Anr. v. Kanwar Pal Singh Gill and Anr., [1995] 6 SCC 194).
H
130 SUPREME COURT REPORTS [2007] 4 S.C.R.

A 14. The above position was highlighted in Raju Pandurang Mahale v. >...
State of Maharashtra and Anr., [2004] 4 SCC 371.

J5. 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
B 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 1he ,commences to do an act with the necessary intention, he
C 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 51•1 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
D 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
E widely from attempt -which is the direct movement towards the commission
after .preparations are made. Preparation to commit an offence is punishable
or..ly .when the preparation is .to commit offences under Section 122 (waging
war against the Govemmentof 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
F greater degree of detennination in attempt as compared with preparation.
<.
16. 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
G 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
H not prevented would have resulted in the full consummation of the· act
RAMKRIPAL S/0 SHYAMLAL CHARM AK AR 1·. STATE OF MADHYA PRADESH [PA SAY AT. J] J3, J

attempted. The illustrations given in Section 511 clearly show the legislative A
intention to make a difference between the cases of a mere preparation and
an attempt.

17. 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 B
refers to "sexual intercourse" and the Explanation appended to the Section
...I
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. C
18. When the evidence of the prosecutrix is considered in the proper
perspective, it is clear that the commission of actual rape has been established.

19. The evidence of PW-7 is also relevant. It has been noted by the
High Court as follows: D
"PW-7, Dr. Asha Saxena has deposed to have examined PW-I,
Jalebia on 29.2.1998 and she had found superficial laceration present
over perineum just at the bottom of Labia Majora and Labia Minora,
the size of which is 1/4 ems. x 1/4 ems. She has further deposed that
the hymen membrane of the victim was found torn and there was fresh E
bleeding from slight touch and she has also found that her vaginal
orifice admits one finger with difficulty."

20. Above being the position, we find no merit in this appeal which is
accordingly dismissed. We record our appreciation for Ms. Promila, learned
Amicus Curiae who placed the relevant materials for consideration. F
RP. Appeal dismissed.