- (1.) Petitioners have filed this petition under Section 397 read with Section 401 of the Code of Criminal Procedure, 1973 challenging the order dated 27.9.2010 whereby charge was ordered to be framed against the petitioners under Section 376 read with Section 511 of the Indian Penal Code ('IPC' for short) and Sections 323, 451, 506 IPC.
(2.) Learned counsel for the petitioner has submitted that perusal of the FIR itself reveals that no offence under Sections 376 read with Section 511 IPC was made out in the present case. In support of his arguments, learned counsel has placed reliance on Raju Pandurang Mahale vs. State of Maharasthra, 2004 AIR(SC) 1677wherein it has been held as under:- "What constitutes an outrage to female modesty is nowhere defined. The essence of a 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 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 without any deliberate intention having such outrage alone for its object. As indicted above, the word 'modesty' is not defined in IPC. The shorter Oxford Dictionary (Third Edn) defines the word 'modesty' in relation to woman as follows." "Decorous in manner and conduct; not forward or lowe;Shame-fast; Scrupulously chast".
(3.) Learned counsel has also placed reliance on Aman Kumar and another vs. State of Haryana, 2004 2 JT 274. Paras 10 and 11 of the said judgment read as under:- "10. An attempt to commit an offence is an act, or a series of act, 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 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. It may consequently be defined as that which if not prevented would have resulted in the full consummation of the act attempted. The illustration given in Section 511 clearly show the legislative intention to make a difference between the cases of a mere preparation and an attempt. 11.In order to find an accused guilty of an attempt with intent to commit a 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 on her part. Indecent assaults are often magnified into attempts at rape. In order to come to a conclusion that the conduct of the accused was indicative of a determination to gratify his passion at all events, and in spite of all resistance, materials must exist. Surrounding circumstances many times through beacon light on that aspect." ;