Jaipur- A recent judgment by the Rajasthan High Court on a 33-year-old case has sparked significant public concern and debate.

Activists, legal experts, and academicians are advocating for stricter and more foolproof laws, especially in cases involving the sexual abuse of minors.

Although this particular judgment pertains to an incident from three decades ago, experts highlight that the Protection of Children from Sexual Offences (POCSO) Act, established in 2012, has stringent provisions that effectively address crimes like those described in this case, ensuring that offenders cannot escape justice.

Under POCSO, the actions described in this case would likely attract harsher penalties, as the Act is designed to protect children comprehensively and ensure that perpetrators face stringent consequences.

Case Background and Judgment

In the case of Suwalal v. State, the Rajasthan High Court was dealing with an incident that occurred on March 9, 1991. The complainant reported that her approximately 6-year-old granddaughter was drinking water at a booth in Todaraisingh, Tonk district, when Suwalal, the accused, forcibly took her to a nearby dharamshala with the intent to rape her. The villagers, alerted by the girl's cries, arrived in time to prevent the crime from being completed.

The trial court had originally convicted Suwalal of attempting to commit rape under Sections 376 and 511 of the Indian Penal Code (IPC), sentencing him accordingly.

However, upon appeal, the Rajasthan High Court, presided over by Justice Anoop Kumar Dhand, revised the conviction.

The court ruled that the actions of removing the minor girl's underwear and then becoming fully naked did not meet the legal criteria for an attempt to commit rape under Sections 376 and 511 IPC.

Instead, it was classified as an offense under Section 354 IPC, which pertains to outraging a woman's modesty.

Legal Interpretation and Analysis

In delivering the judgment, Justice Dhand referenced cases such as Damodar Behera v. State of Odisha and Sittu v. State of Rajasthan, where the accused had forcibly disrobed the girl and attempted to engage in physical relations despite her resistance.

In these instances, the acts were considered attempts to commit rape. According to the court, for any act to be punishable as an "attempt to commit rape," it must fulfill three stages.

The court explained these stages as follows:

1. First Stage: The Idea or Intention - This is when the perpetrator first forms the idea or intention to commit the crime.

2. Second Stage: Preparation - At this stage, the perpetrator prepares to commit the crime. This involves planning and organizing the means necessary to execute the crime.

3. Third Stage: Execution - This is when the perpetrator takes deliberate steps to commit the crime. It goes beyond mere preparation and involves actions aimed directly at committing the crime.

For an act to qualify as an attempt to commit rape, the prosecution must establish that the perpetrator has moved beyond the stage of preparation and has taken concrete steps toward executing the crime. This means that merely having the intention and preparing for the crime is not enough; there must be a clear, direct action aimed at committing the rape.

Implications and Expert Opinions

The judgment has ignited a broader discussion about the adequacy of existing laws and their interpretation in protecting minors from sexual offenses. While the High Court's ruling aligns with a stringent interpretation of criminal attempt, many argue that the laws must evolve to better protect victims and ensure that offenders are adequately punished.

Bhanwar Meghvanshi, Social Activist, Dalit Rights Activist, and Journalist, finds the judgment inappropriate and not in sync with the rising concerns over women's safety today. He states, "Removing a woman's undergarments is not considered 'attempt to rape'; this comment by the Rajasthan High Court is extremely unfortunate. It could lead to an increase in incidents of sexual harassment and exposes the anti-women mindset prevalent in the judiciary. If the judicial character itself lacks justice, where can one expect to find justice? This comment is unacceptable."

Dr. Bhanupriya Kumawat, a judicial service aspirant and lecturer at the MohanLal Sukhadia University's Law College in Udaipur, states, "Under Section 354 of the Indian Penal Code (IPC), an offender can be sentenced to a minimum of 1 year and up to 5 years for outraging the modesty of a woman. However, there is no specific provision in the IPC for an attempt to commit rape. In such cases, Sections 376 and 511 are combined to impose a sentence, which is certainly more severe than the punishment for outraging modesty. But the question arises: when it is clear that the attempt was to commit rape, how can it be considered merely an offense of outraging modesty?"

"The Indian Penal Code dates back to 1860, but while implementing it, we must consider contemporary circumstances. Male judges should seek the opinion of female judges in such cases. Decisions like these do not leave a positive impact on our justice system or society as a whole but instead embolden criminals. Heinous crimes against women will only stop when society becomes sensitive to these issues, but such decisions by the judiciary are unfortunate," she added.

Pre-POCSO Era and the Impact of Subsequent Legal Reforms

Legal experts and activists point out that the POCSO Act, enacted in 2012, provides a more robust framework for addressing sexual offenses against children.

The Mooknayak spoke to Dr Shailendra Pandya, a child rights activist and former member of the Rajasthan State Commission for Protection of Child Rights (RSCPCR). " As this case predates the enactment of the POCSO Act, prior legal provisions in the Indian Penal Code (IPC) treated acts such as non-consensual touching or even finger penetration as offenses falling under the purview of outraging modesty. POCSO did not exist at that time, nor did it find sufficient coverage under the IPC" Pandya said.

" However, following the establishment of the Act, if similar incidents were to occur, specific sections would be applicable. Section 3 of the POCSO act addresses penetrative assault, where the occurrence of rape is not a prerequisite; any touching of a girl's private parts or performing finger penetration is sufficient to warrant stringent penalties. Furthermore, under Sections 7 and 8, actions like displaying obscene material to a minor or making sexually suggestive comments or gestures, even in the absence of physical contact, are subject to severe legal consequences." he said.

The Act encompasses a wide range of sexual crimes and mandates severe penalties, reflecting a zero-tolerance approach towards such offenses.

Under POCSO, the actions described in this case would likely attract harsher penalties, as the Act is designed to protect children comprehensively and ensure that perpetrators face stringent consequences.