The Rajasthan High Court has ruled that merely removing a girl's innerwear and undressing oneself, without further actions, does not constitute the offense of 'attempt to commit rape' under Section 376 read with Section 511 of the IPC. However, such actions will be considered as 'assault to outrage the modesty of a woman' and are punishable under Section 354 IPC.

In making this decision, a bench led by Justice Anoop Kumar Dhand emphasized the legal definition of an "attempt" and clarified the distinction between an attempt to commit rape and an act of indecent assault.

The court stated that for an act to qualify as an attempt to commit rape, the accused must have progressed beyond mere preparation.

The Court explained that for an act to constitute the offense of "attempt," three stages must be fulfilled: first, there must be an intention to commit the offense; second, an act towards the commission of that offense; and third, the act must be close enough to the culmination of the crime. Conversely, the Court elaborated that any act falling short of this threshold, not progressing beyond the stage of preparation, constitutes indecent assault under Section 354 IPC.

"The first stage exists when the culprit first entertains the idea or intention to commit an offence. In the second stage, he makes preparations to commit it. The third stage is reached when the culprit takes deliberate overt steps to commit the offence. Such overt act or step in order to be “criminal” need not be the penultimate act towards the commission of offence. It is sufficient if such act or acts were deliberately done and manifest a clear intention to commit the offence aimed, being reasonably proximate to the consummation of the offence," it said.

In the present case, there was no allegation that the accused attempted penetration. According to the six-year-old prosecutrix, the accused undressed both her and himself, but fled the scene when she raised an alarm.

The Court then referred to the case of Sittu v. State of Rajasthan, where the girl was forcibly stripped naked, and the accused attempted to penetrate her despite her resistance. This act was considered to have crossed the stage of preparation and amounted to an attempt to commit rape. In contrast, in the case of Damodar Behera v. State of Orissa, the accused allegedly removed the victim's saree but fled upon seeing other people. This act was not deemed to have reached the stage of an attempt to commit rape, but rather fulfilled the conditions of indecent assault under Section 354 IPC.