TARAKESHWAR SAHU versus STATE OF BIHAR (NOW JHARKHAND)

Citation: [2006] SUPP. 7 S.C.R. 10 · Decided: 29-09-2006 · Supreme Court of India · Bench: S.B. SINHA · Disposal: Case Partly allowed
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Judgment (excerpt)

A 
B 
TARAKESHWAR SAHU 
\.'. 
ST A TE OF BIHAR (NOW JHARKHAND) 
SEPTEMBER 29, 2006 
(S.B. SINHA AND DAL VEER BHANDARI, JJ.] 
Penal Code, 1860-Sections 354, 366, 375 and 376-Criminal 
Procedure Code, 1973-Section 222-Accused forcibly took a minor with 
C intention to commit rape on her and was caught before he could commit the 
act-Trial Court convicted the accused under section 376 rlw 511 I PC and 
sentenced him to seven years rigorous imprisonment-High Court confirmed 
the convlction and sentence awarded by the trial court-Correctness of-
Held, on evidence on record, the accused did not do any penetration into 
private part of the victim-Hence, conviction of the accused under section 
D 376 r/w 5/I IPC is set aside-Invoking section 222 Cr.P.C., the accused is 
convicled under sections 366 and 354 I PC and sentenced to 5 years and 2 
years rigorous imprisonment respectively. 
Appellant forcibly took prosecutrix, who is a minor, for committing rape 
on her. When the prosecutrix raised an alarm, PW 1, PW 2, PW 3, PW 6 
E and other co-villagers came immediately and caught the appellant before he 
attempted to ravish her. PWl and other villagers went to police station and 
lodged a First Information Report. The appellant was charged for the offence 
punishable under sections 376/511 IPC. The trial court convicted the appellant 
under sections 376/511 IPC and sentenced to seven years imprisonment. The 
F High Court, in appeal, confirmed the conviction and sentence awarded by the 
trial court. Hence the appeal before this Court. 
Partly allowing the appeal, the Court 
HELD: I.I. The appellant had forcibly taken her with the intention of 
G committing sexual intercourse with her. The important ingredient of the 
offence under Section 375 punishable under Section 376 IPC is penetration 
which is altogether missing in the instant case. No offence under Section 
376 IPC can be made out unless there was penetration to some extent. In 
absence of penetration to any extent, it would not bring the offence of the 
appellant within the four corners of Section 375 IPC. There has not been any 
H 
10 
TARAKESHW AR SAHU 1·. STA TE OF BIHAR (NOW .IHARKHAND) 
II 
) 
attempt of penetration to the slightest degree. The conviction under Section A 
376/51 t IPC is wholly illegal and unsustainable.119-B-C; 23-BI 
State of U.P. v. Babu/ Nath, ( 199416 SCC 29 and Aman Kumar and Anr. 
v. State of Haryana, (200414 SCC 379, referred to. 
State of Kera/av. Kundumkara Govindam, 119691 CrLJ 818 and Nirma/ B 
Kumar v. State, (2002) CrLJ 3352 (P&H) referred to. 
R v. Hill, 117811 1 East PC 4391; R. v. M. Rue (1838) 8 C & P 641; R v. 
Allen, (1839) 9 C & P 31; R v. Hughes (1841) 2 Mood 190; R v. Lines, (1844) 
1 C & K 393; R v. Marsden (1891) 2 QB 149 and Rex v. James Lloyd, (1836) c 
7 C and P 317:173 ER 14, referred to. 
Halsburys Statutes of England and Wales, 4th Edition, Vol. 121 and 
Encyclopaedia of Crime and Justice (Vol. 4 page 13561, referred to. 
1.3. The appellant has forcibly taken the prosecutrix with the intention 
D 
of committing illicit intercourse. The offence committed by the appellant would 
fall within the four corners of section 366 IPC. The essential ingredients of 
the offence punishable under Section 366 IPC are clearly present in this case. 
The act of the accused proves that during the kidnapping of the prosecutrix 
or forcibly taking her, the accused had intention or knew it likely that the 
prosecutrix would be forced to have illicit intercourse. Hence, it is not a mere E 
case of kidnapping for indecent assault but the purpose for which kidnapping 
was done by the accused has been proved. (13-C; 26-F-G; 28-CI 
Lakhjit Singh & Anr. v. State of Punjab, (19941 Supp. 1 SCC 173; 
Shamnsaheb M. Mu/ttani v. State of Karnataka, (20011 2 SCC 577 and 
Rajendra v. State of Maharashtra, (19971 SCC (Cri) 840, referred to. 
F 
Niranjan Singh v. State (Delhi) (1986) 2 Crimes 335 and Vishnu v. State 
of Maharashtra, (1997) (CrLJ) 1724 (Born), referred to. 
Kha/ilur Ramman v. Emperor, AIR (1933) Rangoon 98, referred to. 
G 
1.4. On the basis of evidence and documents on record, the appellant is 
also guilty under Section 354 IPC because all the ingredients of Section 354 
IPC are present. 128-FI 
Raju Pandurang Mahale v. State of Maharashtra, (20041 4 SCC 371; 
> 
Rupan Deol Bajaj v. Kanwar Pal Singh Gill, AIR (1996) SC 309 and State of H 
12 
SUPREME COURT REPORTS [2006] SUPP. 7 S.C.R. 
A Punjab v. ;\fajor Singh, AIR (1967) SC 63, referre
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