Lipi Agarwal
Saksham Agrawal
Introduction
The Rajasthan High Court has recently issued a troublesome ruling that attempted to distinguish between “attempt to commit rape” under §376 read with §511 of the Indian Penal Code (IPC) and “assault to outrage the modesty of a woman” under §354. It defines the criteria that constitute an “attempt” and underscores critical differences between attempting rape and indecent assault.
Here, the accused undressed both himself and a six-year-old girl but fled when she raised an alarm. The absence of any attempt at penetration, inter alia, led the court to conclude that the actions fell under §354 rather than §376/511. This judgement complicates how Indian Courts determine whether an act is an attempt to commit rape.
This article will first, outline the legal framework of what constitutes an attempt to rape under §376/511, focusing on judicial interpretation and key stages of an attempt to rape. Secondly, it will examine the problematic implications of current standards, highlighting inconsistencies and issues with defining ‘proximity’ and ‘intent’. Thirdly, the discussion will delve into the specific context of disrobing, analysing its treatment in various cases, and proposing a refined legal test. Finally, it will suggest solutions to achieve a clearer and more consistent judicial approach, ensuring acts like disrobing are appropriately classified as attempts to rape when warranted.
Defining an Attempt to Rape Under §376/§511 of IPC
An attempt to commit rape is addressed through the combined application of §376, now §64 of the Bhartiya Nyaya Sanhita, 2023 (BNS) and §511 (§62 of the BNS) since there is no separate provision for an attempt to rape in the penal code. §376 specifies the punishment for rape while §511 deals with the punishment for attempting to commit offences punishable with imprisonment for life or other imprisonments. When read together, they create the legal basis for prosecuting and punishing an attempt to commit rape.
While interpreting these sections, Indian Courts have laid out a seemingly definitive procedure to test whether an act qualifies as an attempt, emphasising three key stages (see here). There must be a definitive intention to commit the act of rape and some preparatory steps towards committing rape. The acts of the accused must go beyond mere preparation and be proximate to the completion of the rape. Finally, the actions must be deliberate and clearly indicate an intention to commit rape. However, the interpretation of these tests remains complex.
Problems With The Judicial Interpretation of ‘Proximity’ In §365/511
The judiciary has always placed a very specific emphasis on whether the actions are ‘proximate’ enough to the completion of the crime. However, the degree of proximity required to cross the line of preparation into an attempt remains unclear. Thus, although the three prongs may seem like a definitive interpretation of §376/511, the application of the test creates ambiguity and unjust decisions.
Inconsistency within the proximity definition
In the absence of a definitive provision for an attempt to commit rape, the application of any definition or tests in judicial interpretation varies greatly. The law of attempts in general is definitive and widely agreed upon, adhering to the stance articulated in Abhyanand Mishra that an attempt is committed when-
“…having made preparations and with the intention to commit an offence, the person does an act toward its commission, which need not be the penultimate act towards the commission of that offence but must be an act during the course of committing that offence.”
If we apply this test to cases of attempt of sexual assault, then disrobing of the victim can constitute an attempt to rape, as disrobing, albeit not being the penultimate act, is an act towards the commission of rape.
However, the law on attempt to commit the specific offence of rape is not settled, especially regarding ‘proximity’. Some courts still use the ‘penultimate test’ where the offence of attempt to rape is made only when there is an attempt to penetrate, since “penetration is the sine qua non of the offence of rape”. Since under §375 (now §63) penetration, however slight, is sufficient to constitute the sexual intercourse necessary to the offence of rape, the element of attempted penetration is given heavy weightage in determining a case of attempt.
Another test used is where an attempt to rape is made out when “the accused intended to gratify his passions on the victim despite all odds or resistance” (see here, here and here). Using the victim’s ‘resistance’ as the sole distinguishing factor between an attempt from actual rape risks complicating the line between the two offences, as the mere presence/absence of resistance will then be the leading factor under Court’s consideration. Furthermore, this criterion fails to adequately address scenarios where the victim did not or could not offer resistance. Moreover, its application by the courts has also been inconsistent, with some erroneously conflating it with other established legal tests for attempt.
The current case itself examined two such inconsistent cases, both involving disrobing, where first, the existence of resistance was seen as circumstantial evidence and then, the existence of an attempt to penetrate was checked. In Sittu v State of Rajasthan, where there was also an attempt to penetrate, it was held as an attempt to rape. However, in Damodar Behera v. State of Orissa, where the three accused disrobed the victim but ran off before attempting to penetrate, it was not held to be an attempt to commit rape but an act under §354. By relying on these two judgements together, the present case follows a conflated test where the offence of an attempt to rape is made out when a) there is intent to rape despite any resistance and b) an attempt of penetration (as an act which will ‘inevitably’ lead to the commission of the offence unless interrupted by an external factor). However, as opposed to the present judgement’s reasoning, this cannot be taken as a set precedent, as various courts have deviated from this ‘test’, mainly due to the confusing differentiation of attempt to rape from outraging the modesty of a woman.
Grading the Gravity of Acts – Inconsistent Judicial Standards
§354 deals with assault or criminal force used against a woman with the intent to outrage her modesty. The current interpretation and application of §354 has essentially made it a graded offence w.r.t. §376/511, wherein an attempt to rape is seen as a subset of indecent assault and thus seen as a default provision for sexual offences (see here, here and here). Thus, the acts of the accused are also analysed on a graded scale – the more ‘grave’ the acts are, the more likely they are categorised as ‘proximate’ under §376/511 and not §354, despite there being any definitive view on how proximate or grave an act must be to move the conviction from §354 to §376/511.
For instance, as seen in Damodar Behera, only if in addition to disrobing, there is a further indecent act towards the commission of rape, it is likely to be held as an attempt to rape rather than indecent assault. The inconsistency in the present tests of attempt to rape where ‘attempt to penetrate’ is seen as essential and confusion arises as courts have instead started to define proximity in terms of the degree of the act. This leads to a converse corollary – anything which is not seen as causing ‘grave’ unrest to the victim, is outrightly treated as outside the purview of §376/511, as in the present case. Thus, the current judgement deviates from any ‘laid out’ tests by erroneously conflating various tests and falls prey to the general trend of seeing the ‘graveness’ of the acts instead of the further intention of the accused.
Navigating the Complexity of Mens Rea in Attempted Rape and Indecent Assault
This judgement also disregards the importance of intent as laid out in precedents. The Andhra Pradesh HC maintains that indecent assaults take the form of an attempt to commit rape if the accused intended to do all the acts which may lead to consummation but fell short of actual commission. Thus, the question of mens rea is essential in determining whether mere disrobing amounts to an attempt to commit rape. However, the nature of this mens rea is in itself complex and needs to be dealt with caution.
The challenge lies in proving the specific intent to outrage modesty, as opposed to an intent to commit rape. Under §354 and §354B, the mens rea involves the specific intent to outrage modesty or to disrobe, respectively. These can sometimes overlap with the intention to commit rape, especially when undressing is a step towards committing rape. The problem arises in determining whether the intent was purely to outrage modesty/disrobe or whether it was a step towards rape. The mens rea of these provisions are not mutually exclusive – an accused may well have the intent or knowledge that his actions will outrage the modesty of the victim, and simultaneously possess an intent to commit rape as well, something the present case seems to misapply.
Furthermore, §375 does not always require proving mens rea to the same extent as attempts. The act of penetration itself can establish the offence, with consent being central to the crime rather than the specific intent of the accused. This makes it challenging to determine the mens rea for an attempt to commit rape. For an attempt, the prosecution must show the accused had a clear intent to rape and took substantial steps towards it, which is inherently more complex than proving the act of rape itself, where the focus is on the non-consensual nature.
Judicial interpretation of what constitutes an attempt to rape often hinges on the specific facts of each case, particularly the ‘proximity’ of the acts. An act like disrobing is often classified as not being attempted rape. However, courts must consider if the actions were accompanied by a clear intent to commit rape or if they fall into the category of outraging modesty or intent to disrobe. The SC has reinforced the gravity and intent of the act of disrobing itself as sufficient to constitute an attempt, reflecting an appreciable stringent approach towards such actions.
Therefore, distinguishing between an attempt to commit rape and offences under §354 and §354B involves complex considerations of mens rea and the specific actions taken by the accused. Proving clear intent to commit rape and steps that are proximate to the offence adds layers of complexity, leading to challenges in prosecution and judicial interpretation.
Redefining the lines – A possible way forward
Blurred boundaries – The 2013 Amendment
As already seen, the current standard of testing proximity places an unjust importance on the attempt to ‘penetrate’. This could have been a suitable test if rape was merely penetration – and this attempt to penetrate equates to an attempt to rape. However, after the Criminal Law (Amendment) Act of 2013, the definition of rape has been broadened to include acts other than non-vaginal penetration as well, including penetration in mouth, urethra, etc. and non-penetrative sexual assault (applying mouth and touching private parts). With this new definition. The current tests of ‘proximity’ complicate the distinction between rape and attempt to rape. For instance, certain acts of sexual assault, such as rubbing the penis against the private parts of the victim (without penetration) would now be considered as an offence of rape, instead of the previous position of these acts as an attempt to rape. Thus, if penetration is no longer the ‘sine qua non’ of the offence of rape, the acts which were previously considered by the courts as being ‘proximate’ to penetration now constitute an offence of rape itself. Thus, the 2023 amendment should have prompted the courts to change the existing definitions and tests of ‘attempt to rape’ and ‘proximity’ to be redefined.
However, as already seen, the courts have continued to apply the standards derived before 2013. They have continued to test for proximity to penetration, disregarding the broadened definition of rape. The Justice Verma Committee Report in 2013 pointed out that there must be an offence of ‘sexual assault’ must be included in the IPC which includes “all forms of non-consensual non-penetrative touching of a sexual nature”. A quick review of the vast difference in punishments in §376/511 and §354 also highlights the importance of such a provision for sexual assault. However, neither the 2013 Criminal Law Amendment nor the new Bhartiya Nyaya Sanhita, 2023 incorporated a separate provision for such sexual assault. Therefore, in the continued absence of a specific offence of non-penetrative sexual acts, the current approach towards testing proximity and attempt must be modified to ensure justice.
A New Approach – Rethinking the test of proximity
To address the ambiguity in judicial interpretations and ensure a more consistent application of the law, we propose a clear and broader test for Indian Courts in determining an attempt to commit rape. This involves establishing a standard for evaluating the proximity of actions to the commission of rape and clarifying the nature of proximity and intent required. Given the variability of the offence of rape itself, it is challenging to create an objective test. Thus, our proposed test includes considering the subjective factors, such as the nature of actions, context and circumstances, and intent and capability.
Nature of Actions
Specific actions taken by the accused, such as undressing the victim or using force, should be evaluated to determine if they indicate an intent to commit rape, without relying on the presence of ‘resistance’ by the victim or an attempt to penetrate. This follows from the general position on attempts established by the Indian Judiciary, stemming from the need to differentiate between preparatory acts and those proximate to the completion of the crime. The SC has often emphasised this distinction to ensure that only the latter are categorised as attempts. Therefore, the presence of a clear intent to rape, with an act of disrobing, must be analysed to make a case for an attempted rape under §376/511.
Further, the nature of the actions does not simply mean the sole ‘gravity’ of the actions. This complicates cases where there is a clear intent to rape, as opposed to a mere intent to outrage modesty, along with the act of disrobing (which is, unfortunately, not seen by Courts as a ‘grave enough’ act) and leads to injustice. Thus, the nature of an act must not be judged on the metric of its ‘graveness’ by an objective standard.
Context and Circumstances
The subjective context in which the actions occurred, including the environment and the victim’s response, should be considered to assess the proximity of the actions to the actual commission of rape. This involves understanding the surrounding environment and situational factors that can influence the nature of the offence. This approach is derived from the legal principle that the context in which an act is committed can significantly alter its legal interpretation. The Supreme Court has highlighted the need for contextual analysis, noting that the actions of the accused must be viewed within the specific circumstances in which they occurred. The act of forcibly taking the victim to a secluded location, the victim’s immediate reaction and other such contextual factors have been successfully analysed to hold the accused guilty of attempted rape in disrobing cases by the Supreme Court, and High Courts such as the Bombay and the Karnataka HC.
In the present case, the victim was merely 6 years of age. The accused took her to a secluded dharamshala, at around 8 pm in the night. Even though the newer cases would have the Protection of Children from Sexual Offences Act (POCSO), 2012 applicable in similar facts, the question of proximity remains the same, as seen in Abhay Singh vs State. Thus, the Court should have taken perusal of these facts in determining whether the disrobing amounted to an act proximate or grave enough to constitute an attempt to commit rape.
Intent and Capability
Whether the accused had the clear intent and the capability to commit the rape should also be considered. This includes evaluating the accused’s statements, threats, and overall behaviour leading up to the act. This derives from the current law of attempts where the SC has emphasised the necessity of proving the accused’s intention to commit the offence as a critical element of an attempt. The assessment of this focuses on the mental state of the accused and their potential to commit the crime, which is rooted in the principle of mens rea.
Various High Courts, such as the Sikkim and Madhya Pradesh HCs, have set precedents to examine the accused’s intent and capability, ruling that the acts of the respondent were deliberately done with the manifest intention to commit the offence aimed and thus were reasonably proximate to the consummation of the offence. This stance was supported by the SC in the State of Punjab v. Major Singh.
Additionally, while considering the mens rea of the accused, two mistakes need to be avoided. Firstly, a mere presence of intent or knowledge on the accused that his acts may lead to outraging of modesty (under §354) cannot by default negate the possible existence of an intent to commit rape as well. It is because of this dichotomy that the courts find it very easy to not rule under 376/511, since a ‘safer’ to prove alternative (§354) exists. Secondly, the intent to rape must not be seen as an intent to commit rape ‘despite all resistance’ making it almost ‘inevitable’. This understanding leads to the provision of attempted rape losing all practicality – since the courts then see the fleeing of the accused due to an alarm as not being an attempt because ‘he stopped the acts when he faced a little resistance’, as seen in Damodar Behara and as applied in the present case. Thus, keeping these factors in consideration, the presence of clear intent can be a crucial determinant in distinguishing an attempt to rape from other forms of sexual harassment.
Ultimately, these three broad factors are necessary to be tested by the Courts in attempted rape cases, to provide a more individualised yet consistent judicial standard. This is also particularly essential when we look at the vast difference in the punishments for rape and outraging modesty. Rape under §376 (now §64) can be punished from 10 years imprisonment to life imprisonment. Therefore, an attempt to rape under §376/511 (now §64/62) can be punished from five years to half of life imprisonment. However, outraging modesty under u/s 354 (now §74) is punishable with one year imprisonment which can extend to five years. Considering the difference in the maximum punishments, an overtly inconsistent (and unjust) application of the law on rape could lead to disproportionately high (or low) sentences for actions that do not warrant it. Thus, these factors are essential to align the punishment with the actual crime committed to ensure justice in both directions – protecting victims and ensuring proportionate sentences for the accused.
Conclusion
This ruling brings into light critical issues in the legal interpretation of an attempt to commit rape under §376/511, and its distinction from assault to outrage modesty under §354. The rationale it used to rule an act of disrobing as indecent assault rather than an attempt to rape highlights the need for a clearer legal framework. The current test for ‘proximity’ and ‘intent’ used fall short of actual justice due to the misapplication of ‘graveness’ of the acts and unjust emphasis on ‘resistance/against all odds’ by the victim.
Thus, the key factors that must be considered include the nature of the actions, the intent of the accused, and the proximity of those actions to the actual commission of the crime. The variation in judicial decisions highlights the need for a more definitive and consistent legal framework. It underscores the importance of considering the specific context and circumstances and the accused’s intent to determine the proximity of their actions to the commission of rape. Therefore, an act of disrobing with no further actions should not be dismissed as not being attempted rape merely because the act is not considered proximate enough to rape after testing proximity with unjust standards.
Lipi Agarwal and Saksham Agrawal are second-year B.A., LL.B. (Hons.) students at the National Law School of India University, Bengaluru, with a particular interest in criminal justice and reforms.
The opinions expressed in the Blog are personal to the authors. The University does not subscribe to the views expressed in the article/blog and does not take any responsibility for the same.
