Written by Saumya Tripathi student at Dr. Ram Manohar Lohiya National Law University, Lucknow
Introduction
Attempt to commit a crime takes place when a person develops the intention to commit an offense and does everything that is required to commit it but fails. Attempt is punishable under the Section 62 of the Bhartiya Nyaya Sanhita, 2023 (hereinafter, ‘BNS’). Although the BNS does not clearly define the term attempt, the Supreme Court has interpreted it through cases. The law regarding attempts remains complex and unclear due to several reasons, inter alia, a lack of a precise definition of attempt, differences in mental and physical elements, and the lack of a narrow interpretation.
This article seeks to analyse the jurisprudence surrounding the attempt to rape in India and how the subjectivity and inconsistency in law has been unfavourable to women in general. In light of the recent controversial verdict of Allahabad High Court which held that groping and untying strings of the pyjama of a minor girl does not constitute attempt to rape, has sparked the debate around the blurring lines of what constitutes preparation and attempt, specifically in rape cases, which is one of the most stigmatised crimes for the victim.
The ground is fraught with difficulties due to the sensitive nature of the crime and the non-adaptation to the 2013 amendment which broadened the net of rape laws. The judicial ambiguity about what is the penultimate act in rape cases is a by-product of the fact that it is still stuck in the discarded statutory definition of rape, wherein penetration was the ultimate requirement. The only new input is that the intention of the accused is the key factor in distinguishing cases of attempt to rape and outraging the modesty of women. But again, the matter of fact is that intention is to be gauged by the acts of the accused.
Analysing Attempt to Rape
Between rape and attempt to commit rape, there is a rare area covered by section 354 IPC i.e. assault or criminal force to woman with intent to outrage her modesty or indecent assault. The dividing line between attempt to commit rape and indecent assault is not only thin but also is practically invisible.
The contemporary understanding of the law is intention-centric. In Koppula Venakat Rao, it was held that an accused guilty of an attempt with intent to commit 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 by her.
Incidentally, the line from judgement, “Indecent assaults are often magnified into attempts at rape..” is often quoted to support the argument that to constitute an attempt to rape, severe circumstances of culpability are required. However, it is well to be noted that surrounding factors may not necessarily indicate whether an infallible determination to rape existed. It is to be noted that it is a case of the year 2004, and had this been a case post-2013 amendments, it would squarely fall within the boundaries of the offence of rape.
State of MP v. Mahendra was a case where the limits of proximity test were extended and the court recognized that the stage of preparation ends, and attempt begins in a rape case begins the moment accused with a carnal intent takes the victim to a secluded location. The Court held that the act of the accused of closing the doors and taking the victims to a room with the motive of carnal knowledge was the end of ‘preparation’. His following action of stripping the prosecutrices and rubbing his genitals against theirs was deliberately done with manifest intention to commit rape and was reasonably proximate to the offence.
On these lines, the judgement of the Allahabad HC in Akash and Ors v. State of UP, that the actions of the accused—grabbing the X’s breasts, breaking the string of her pyjama, and attempting to drag her beneath a culvert—did not constitute an attempt to rape raises significant concerns regarding its interpretation of the law and its application to sexual offences.
The accused’s actions in breaking X’s pajama string and attempting to drag her beneath the culvert constitute a direct movement towards commission of rape. The next immediate step would have been rape itself, had the witnesses not interrupted. The Court failed to recognize that the accused had progressed beyond preparation and into the realm of attempt, as they had already engaged in acts directly proximate to the completion of rape.
The Problems with the Proximity test
Different Interpretations
The Supreme Court has established two different criteria under the proximity rule to distinguish between preparation and attempt. The first is an intention-based approach, where the proximity of the act is gauged in relation to the individual’s intention rather than physical actions. The second focuses on physical proximity, considering an act to be an attempt if it is physically close to the commission of the offence. The intention-based approach suggests that an act must reflect intent, which, in most cases, is determined with aid of circumstantial evidence.
Scholars and jurists have proposed different interpretations to refine this classification. For example, in a New Zealand case, an objective assessment of physical actions was considered the sole determinant of proximity. These differing perspectives make it difficult to establish a universal interpretation.
Complexity of Mens Rea of Attempt to Rape
In Koppula Venkat Rao v. State of Andhra Pradesh, it was held that indecent assaults can amount to an attempt to commit rape if the accused intended to perform all the necessary acts leading to the offence but failed. Therefore, determining whether mere disrobing qualifies as an attempt to commit rape hinges on the presence of mens rea.
The basic challenge is to distinguish between the specific intent to outrage modesty and the intent to commit rape. In terms of outraging the modesty, mens rea involves an intent to outrage modesty or to disrobe. The difficulty arises in determining whether the accused’s actions were solely meant to outrage modesty/disrobe or they were steps towards rape. Since the mens rea of these provisions is not mutually exclusive, an accused may have knowledge that his actions will outrage the victim’s modesty while simultaneously intending to commit rape, a distinction that appears to have been misapplied in the present case.
Whether the offence of attempt to rape was made out or not depends on the distinct circumstances of each case, while keeping in mind the proximity of the accused. The contemporary understanding of the law of attempt is intention-centric, i.e. more than the act, it is the state of mind of the doer that is determinative of the fact whether attempt is made out or not. Moreover, the Supreme Court has reinforced a stricter stance by recognizing the gravity of disrobing as sufficient to constitute an attempt.
Practical Difficulties
According to women’s rights lawyer and writer Flavia Agnes, a significant challenge in applying the proximity test lies in the victim’s obligation to prove beyond a reasonable doubt that the accused attempted penetration. In many instances, victims struggle to meet this stringent standard of proof, making it difficult to establish an attempt. Consequently, courts often dismiss charges of attempted rape due to the absence of attempt to penetration and instead convict the accused under Section 354 IPC or Section 74 BNS for outraging a woman’s modesty. This underscores the precarious nature of the offense of attempt to rape, which exists in a legal gray area.
Conclusion and Reflections
Incorporating a Statutory Provision
One of the straightforward approaches to address the uncertainty would be to introduce a statutory provision defining attempt like the United Kingdom did by the Criminal Attempts Act, 1981. But it is easier said than done, as a universal formula so to speak is impractical insofar as each case differs in its severity, consequence, motive, impact, etc.
Bhartiya Nyaya Sanhita does not define an attempt, it only prescribes punishment. Attempts have been made to incorporate a definition for Attempt. The first was by the Law Commission, in its Forty-Second Report on the Indian Penal Code, which proposed to define and penalise attempts based on three parameters, (i) acting on intent, (ii) proximity to committing the crime, and (iii) failure due to circumstances beyond the individual’s control.
However, in its One Hundred Fifty-Sixth Report, it rejected these changes for twofold reasons. Firstly, no universally applicable definition of an attempt could be formulated. Secondly, that such a definition would not adequately distinguish between preparation and attempt.
A definition, nevertheless, could benefit the jurisprudence as far as it would incorporate the doctrine of proximity along with other precedentially established elements. The definition should be inclusive and non-exhaustive, giving ample scope for flexibility in interpretation.
Analysing the circumstances of the Act
In assessing the proximity of an act to the offence of rape, various subjective factors such as the behaviour of accused, surrounding circumstances and the response of the victim should be considered. Factors such as forcibly taking the victim to a secluded location and the victim’s immediate reaction have been carefully examined in previous cases to determine culpability. Both the Supreme Court and High Courts, including the Bombay and Karnataka High Courts, have effectively applied this analysis to convict accused individuals of attempted rape in cases involving disrobing.