Introduction 

• This is a landmark judgment where the Court laid down  
• The Judgment was delivered by a 2- judge Bench consisting of Justice SB Sinha and Justice Dalveer Bhandari.  

Facts   

• On 18th February 1998, at about 1:30 a.m., 12-year-old Tara Muni Kumari went out of her house to answer nature's call. 
• The appellant, Tarkeshwar Sahu, allegedly forcibly took her to his Gumti (a small structure) located a few feet away from her house with the intention of committing sexual assault. 
• The prosecutrix raised an alarm, which alerted several neighbors and her father (Ram Charan Baitha, PW1). 
• Due to the immediate arrival of her father and other villagers who heard her cries, the appellant was unable to succeed in his attempt to assault her. 
• The father of the prosecutrix along with other villagers went to the police station and lodged an FIR at 2:30 a.m., within one hour of the incident. 
• The appellant was charged under Sections 376/511 of the Indian Penal Code, 1860 (IPC) (attempt to rape). 
• The prosecution examined ten witnesses, with PW1 to PW5 providing consistent testimonies supporting the prosecution's case. 
• Some witnesses (PW7, PW8, and PW9) were later declared hostile, though the prosecutrix (PW7) admitted in cross-examination that "Tarkeshwar Sahu tried to commit rape on my person, but did not succeed due to protest made by me." 
• The trial court found the appellant guilty and sentenced him to seven years of rigorous imprisonment. 
• The Jharkhand High Court dismissed the appellant's appeal, finding that the prosecution had established the case beyond reasonable doubt despite some witnesses turning hostile. 

Issues Involved  

• Whether the Appellant can be held liable for attempt to rape under Section 376 read with Section 511 of IPC?  

Observations 

• The Court held that for rape conviction under Section 376 IPC, penetration is an essential ingredient, which was missing in this case. 
• The court clarified that even partial or slight penetration would be sufficient for a rape conviction, but there was no evidence of any penetration or attempt at penetration in this case. 
• The appellant had neither undressed himself nor asked the prosecutrix to undress, ruling out any attempt of penetration. 
• The Court determined that the conviction under Sections 376/511 IPC (attempt to rape) was unsustainable given the evidence. 
• The court found that the crime committed was at an initial stage of preparation and better classified under Sections 366 (kidnapping) and 354 IPC (outraging modesty of a woman). 
• The court explained that modesty is an attribute associated with female human beings as a class, and actions shocking the sense of decency of a woman constitute outraging her modesty. 
• The Court set aside the judgments of the High Court and trial court, instead convicting the appellant under Sections 366 and 354 IPC. 
• The appellant was sentenced to five years imprisonment under Section 366 IPC and two years rigorous imprisonment under Section 354 IPC, with both sentences to run concurrently.

Conclusion 

• The Supreme Court in the present case set aside the conviction for attempted rape (Sections 376/511 IPC), finding insufficient evidence of penetration or attempt of penetration. 
• Instead, the Court convicted the appellant under Sections 366 (kidnapping) and 354 (outraging modesty), sentencing him to five years and two years imprisonment respectively, to run concurrently.