Yet courts have in general been reluctant to do so even when the accused has been caught while attempting to rape. They often rely upon technicality of the absence of penetration to rule out attempt and have invariably imposed on the accused the relatively minor punishment of imprisonment up to two years for molestation.

In this context, we must recall the 2006 Supreme Court judgment in the Tarakeshwar Sahu versus the State. A resident of Jharkhand, Sahu, had lured a 12-year-old girl into his hut, had disrobed himself and the girl and was attempting to rape the child when apprehended. Justices S.B. Sinha and Dalbir Bhandari, delivering the judgment, rejected the application of section 511 IPC on the ground that the section dealt only with attempts to commit such offence as are punishable with life imprisonment. They held that no person can be punished for attempt to rape under the IPC and convicted Sahu for molestation under section 354.

Similarly in Jai Chand versus the State, although the accused, a hospital orderly, had forcibly laid the complainant nurse on the bed, after breaking the strap of her trousers, the high court held that no attempt to rape had been proved, because the accused had not gone beyond the stage of preparation. Therefore, the court, overturning the conviction of attempt to rape pronounced by the trial court, reduced it to molestation under section 354. Courts have also relied on the 19th-century Empress versus Shankar decision. In that case, the court held that a person can be convicted of an attempt to commit rape only if his conduct indicates a determination to gratify his passions, despite all resistance by the woman. As such, even in cases where a woman cried out for help or hit the assailant who ran away, the courts have held that it cannot be said that the accused was determined to have sexual intercourse, directing conviction under section 354.

... contd.