Attempt to Rape under BNS: Meaning, Ingredients and Landmark Cases

The criminal law reaches the person who attempts rape as it reaches the person who completes it. Both have the same criminal intention; the difference is that the attempted rapist has not, for some reason, brought about the penetration required for the completed offence. Section 62 of the Bharatiya Nyaya Sanhita, 2023, read with Section 63, punishes attempt to rape. The threshold question is a familiar one: at what point does conduct cross from preparation into attempt. Two adjacent offences complicate the analysis: Section 74 (assault to outrage modesty) and Section 76 (assault with intent to disrobe) cover conduct that stops short of an attempt at penetration. This module walks through the statutory framework, the ingredients of attempt to rape, the distinguishing case law, and the difference between attempt to rape and the adjacent offences of outrage of modesty and disrobing.

1. Introduction

Attempt to rape in the framework of the BNS

The Bharatiya Nyaya Sanhita does not contain a specific section for attempt to rape. Unlike attempt to murder (Section 109) or attempt to culpable homicide (Section 110), attempt to rape falls under the residual attempt provision, Section 62 BNS. It is prosecuted under Section 62 read with Sections 63 (definition of rape) and 64 (punishment for rape). The residual character has consequences for punishment (up to half of the rape punishment) and for the analytical framework (the general attempt doctrine applies).

Why the offence matters

The three reasons attempt to rape is a distinct offence

Preventive intervention. The criminal law can intervene before the penetration required for rape occurs. This protects the victim from the completed offence.
Moral culpability. The person who tries and fails has demonstrated the same criminal intention as the person who succeeds. The failure often comes from circumstances beyond his control (the victim's resistance, an interruption, a physical inability), and moral responsibility remains.
Distinguishing from lesser offences. Without a distinct offence of attempt to rape, conduct that clearly aimed at rape but stopped short would have to be charged under lesser sections (outrage of modesty, disrobing, assault). The residual provision under Section 62 ensures that attempt to rape is punished as such.

2. Statutory Framework

Section 62 BNS as the residual provision

Section 62 BNS, discussed at length in a separate module, punishes any attempt to commit an offence for which no express provision is made. Rape is such an offence: Section 63 defines rape and Section 64 punishes it, but no separate section punishes the attempt. Section 62 fills the gap.

Section 62 read with Sections 63 and 64

The reading together

A person who attempts to commit rape as defined in Section 63 BNS commits an offence. The attempt is prosecutable under Section 62 BNS, and the punishment is up to one half of the punishment for the substantive offence of rape.

Punishment

Punishment for attempt to rape under Section 62 read with Section 64(1) is up to one half of the punishment for rape. Since the punishment for rape is a minimum of ten years extending to life, the punishment for attempt is up to five years for the minimum and up to half of life (that is, ten years, treating life as twenty years under Section 6 BNS) for the maximum. Where the attempt would, if successful, have constituted an aggravated form of rape (Sections 64(2), 65, 66, 70), the punishment is up to half of the enhanced substantive punishment. In practice, courts often impose sentences at the lower end of the range for pure attempts, reserving the higher end for attempts with aggravating factors.

3. Ingredients of Attempt to Rape

Intention to commit rape

The first ingredient is the specific intention to commit rape. The accused must have intended the penetration required for the completed offence, done under one of the seven circumstances that negate consent under Section 63. Where the intention was only to outrage the modesty of the woman, or only to disrobe her, or to commit some other offence short of rape, no attempt to rape is made out. The distinction between intention to rape and intention to outrage modesty is often the central question in these cases.

An act done in pursuance of that intention

The second ingredient is an act done in pursuance of the intention. Mere intention, however clearly formed, is not attempt. The actor must have taken a physical step towards commission. Approaches, threats, use of force, and beginning to disrobe the victim have all been held to be relevant acts in the case law.

The act is a step towards commission and not mere preparation

The third and most difficult ingredient. The act must be a step towards commission, going beyond preparation. Where the actor is still preparing (following the victim, planning the assault, purchasing means), no attempt is made out. Where he has begun to execute (using force, undressing the victim, positioning himself for penetration), attempt is present. The line between preparation and attempt is drawn using the general tests: proximity, locus poenitentiae, equivocality, and on-the-job theory.

The Abhayanand Mishra principle applied to attempt to rape

The act constituting attempt need not be the penultimate act, that is, the act immediately preceding the penetration. It is enough that the actor has taken a step towards commission after preparation is complete. A sexual assault involving forcible removal of clothing, use of physical force, or positioning for penetration is a step towards rape, even where actual penetration is prevented by the victim's escape or resistance.

4. Distinguishing Attempt from Preparation

The classical tests applied

The general tests for distinguishing preparation from attempt (see the separate module on Preparation vs Attempt) apply to attempt to rape. In the context of sexual offences, the tests translate as follows:

Proximity test. How close was the accused to the completed offence. Grabbing the victim and forcing her to the ground is proximate. Following her from a distance is preparation.
Locus poenitentiae test. Could the accused still have withdrawn without committing the offence. If he had removed the victim's clothing and was already using force, withdrawal would require active reversal. He is at attempt. If he was still merely approaching, he could still turn back. He is at preparation.
Equivocality test. Does the conduct unambiguously point to rape. Where the conduct could be explained by an intention to outrage modesty or to rob, the equivocality test may not be satisfied. Where the conduct can only be explained by an intention to rape, it is.
On-the-job theory. Has the accused begun the criminal act of rape. Beginning to remove the victim's clothing while restraining her is beginning the act. Merely threatening her is not.

The locus poenitentiae question

The locus poenitentiae question is particularly important in attempt to rape cases. Where the accused has grabbed the victim, thrown her to the ground, and begun to remove her clothing, withdrawal would require him to actively reverse his conduct. The room for repentance has closed. He has committed himself, and he is at attempt. Where he has merely approached the victim and made threatening remarks, withdrawal is still possible without active reversal. He is at preparation.

The multi-test approach in Koppula Venkat Rao

📖 Koppula Venkat Rao v. State of Andhra Pradesh, (2004) 3 SCC 602

The Supreme Court considered attempt to rape in a case where the accused had attempted forcible intercourse but had not achieved penetration. The Court applied the multi-test approach: proximity, locus poenitentiae, equivocality, and on-the-job factor. On the facts, the Court held that the conduct amounted to attempt to rape, not merely outrage of modesty or preparation. Rule: modern statement of the multi-test approach in attempt to rape.

5. Distinguishing Attempt to Rape from Outrage of Modesty

Section 74 BNS: assault to outrage modesty

Section 74 BNS punishes assault or use of criminal force to any woman with intention or knowledge of outraging her modesty. Compared to attempt to rape, Section 74 has a lower threshold: it requires only an intention to outrage modesty, not an intention to rape. Punishment is one to five years, compared to up to half of ten years or more for attempt to rape.

The intention question

Attempt to Rape	Outrage of Modesty
Intention to commit rape: specific intention to achieve the penetration required for Section 63.	Intention to outrage modesty: general intention to insult, humiliate or violate the woman's sense of decency, without a specific intention to achieve penetration.
Conduct: acts towards penetration (removing clothing, use of significant force, positioning for penetration).	Conduct: acts affecting modesty (touching intimate parts, grabbing, forcibly kissing) without steps towards penetration.
Punishment (attempt): up to half of the punishment for rape, that is up to life imprisonment for the most serious aggravated forms.	Punishment: one to five years and fine.
Section 62 read with Section 63 and Section 64.	Section 74 BNS.
Illustration: A grabs Z, throws her to the ground, tears off her clothing, but is interrupted before penetration.	Illustration: A grabs Z's chest and torso, but does not attempt to remove her clothing or achieve penetration.

When conduct falls under which section

Courts have not always drawn the line clearly. In Aman Kumar v. State of Haryana, (2004) 4 SCC 379, the Supreme Court held that conduct constituting attempt to rape must go beyond merely outraging modesty. The court must find that the accused had an intention to rape, not merely to outrage. Where the intention is uncertain, courts often lean towards conviction under Section 74 rather than under Section 62 read with Section 63, because the higher offence requires proof of specific rape intention.

6. Distinguishing Attempt to Rape from Assault to Disrobe

Section 76 BNS: assault with intent to disrobe

Section 76 BNS (formerly Section 354B IPC) punishes assault or criminal force with the intention of disrobing a woman or compelling her to be naked. The offence was added by the 2013 amendment to address the specific evil of using nudity as an instrument of humiliation, particularly in caste and communal violence contexts. Punishment: three to seven years and fine.

The overlap and the distinction

There is significant overlap between attempt to rape and Section 76. In many attempt to rape cases, the accused begins by disrobing the victim as a step towards penetration. Section 76 covers the disrobing itself. The distinction lies in the intention:

If the intention was to rape, the disrobing is a step towards the rape, and attempt to rape (Section 62 read with Section 63) is the appropriate charge.
If the intention was to humiliate or shame the woman by disrobing her, without a specific intention to rape, Section 76 is the appropriate charge.

In practice, prosecutions often charge both, with the more serious offence (attempt to rape) as the primary charge and Section 76 as the alternative. Where the court cannot find proof of specific intention to rape, it may convict under Section 76.

7. Judicial Elaboration

Koppula Venkat Rao v. State of Andhra Pradesh

📖 Koppula Venkat Rao v. State of Andhra Pradesh, (2004) 3 SCC 602

The accused had forced himself upon the prosecutrix, had thrown her to the ground, and had begun to remove her clothing. He was stopped by the arrival of others before he could achieve penetration. The Supreme Court held that his conduct amounted to attempt to rape, not merely outrage of modesty. He had gone beyond preparation. The intention to rape was proved by the specific nature of his acts. Rule: forcible undressing of the victim combined with use of physical force, in the absence of any alternative explanation, is attempt to rape.

Aman Kumar v. State of Haryana

📖 Aman Kumar v. State of Haryana, (2004) 4 SCC 379

The Supreme Court considered whether conduct alleged against the accused amounted to attempt to rape or only to outrage of modesty. The Court held that attempt to rape requires proof of specific intention to rape. Where the intention is only to outrage modesty, or is uncertain, the charge should be under Section 354 IPC (now Section 74 BNS), not under Section 62 read with Section 63. Rule: the intention to rape must be positively proved, not inferred from ambiguous conduct.

Madan Lal v. State of Jammu and Kashmir

📖 Madan Lal v. State of Jammu and Kashmir, AIR 1998 SC 386

The Supreme Court considered the difference between attempt to rape and outrage of modesty. The Court held that mere indecent assault does not amount to attempt to rape unless there is a definite intention to rape, evidenced by acts that go beyond outraging modesty. Rule: attempt to rape requires proof of the rape intention specifically, distinguishable from a general intention to sexually assault.

Tarkeshwar Sahu v. State of Bihar

📖 Tarkeshwar Sahu v. State of Bihar, (2006) 8 SCC 560

The Supreme Court considered a case where the accused had entered the victim's room and had begun sexual assault, but had not achieved penetration due to interruption. The Court held that the conduct amounted to attempt to rape. The forcible entry, the beginning of sexual assault, and the absence of any other plausible explanation established the specific intention to rape. Rule: the sequence of the accused's conduct, viewed as a whole, may establish the intention to rape even where individual acts might be equivocal.

Rajinder v. State of Himachal Pradesh

📖 Rajinder v. State of Himachal Pradesh, (2009) 16 SCC 69

The Supreme Court considered a case where the accused had assaulted the victim but had been stopped before any sexual act occurred. The Court held that on the facts, the intention to rape had not been established beyond reasonable doubt. The conviction was altered from Section 511 read with Section 376 IPC (now Section 62 read with Section 63 BNS) to Section 354 IPC (now Section 74 BNS). Rule: where the intention to rape cannot be proved beyond reasonable doubt, the conviction should be under the lower offence.

8. Punishment for Attempt to Rape

Section 62 BNS provides for punishment of up to one half of the longest term prescribed for the substantive offence, or the fine, or both. Applied to attempt to rape:

Attempt to ordinary rape (Section 64(1)): up to five years for the minimum, and up to ten years (half of twenty years, being the statutory construction of life imprisonment under Section 6 BNS) for the maximum.
Attempt to aggravated rape (Section 64(2), 65, 66, 70): up to half of the enhanced punishment. Where the substantive punishment includes life meaning natural life, the attempt punishment may be up to ten years or more.
Fine: at the court's discretion within the range prescribed for the substantive offence.

In practice, courts often impose sentences at the lower end of the range for pure attempts (three to five years), reserving the higher end for attempts with aggravating factors. The Court in Aparna Bhat v. State of Madhya Pradesh, (2021) 3 SCC 407, cautioned against inappropriate leniency and reminded courts that sentencing must reflect the gravity of the conduct.

9. Consolidated Landmark Judgments

Koppula Venkat Rao v. State of Andhra Pradesh, (2004) 3 SCC 602. Multi-test approach. Forcible undressing plus force plus interruption held to be attempt to rape.
Aman Kumar v. State of Haryana, (2004) 4 SCC 379. Specific intention to rape must be proved. Where uncertain, Section 354 IPC (now Section 74 BNS) is appropriate.
Madan Lal v. State of Jammu and Kashmir, AIR 1998 SC 386. Distinction between attempt to rape and outrage of modesty. Definite intention to rape required.
Tarkeshwar Sahu v. State of Bihar, (2006) 8 SCC 560. Sequence of conduct as a whole may establish the rape intention.
Rajinder v. State of Himachal Pradesh, (2009) 16 SCC 69. Where intention to rape is not proved beyond reasonable doubt, conviction should be under Section 354 IPC (now Section 74 BNS).
State v. Om Prakash, (2011) 14 SCC 174. Consideration of forcible undressing and its treatment as attempt to rape.
Malkiat Singh v. State of Punjab, AIR 1970 SC 713. General attempt doctrine. Locus poenitentiae test applied.
Abhayanand Mishra v. State of Bihar, AIR 1961 SC 1698. General attempt doctrine. Act need not be penultimate.
State of Maharashtra v. Mohd. Yakub, (1980) 3 SCC 57. Multi-test approach in attempt cases.
R. v. Eagleton, (1855) 6 Cox CC 559. Foundational English case. Proximity test.
Aparna Bhat v. State of Madhya Pradesh, (2021) 3 SCC 407. Guidelines against inappropriate leniency in sentencing sexual offence cases.
State of Punjab v. Gurmit Singh, (1996) 2 SCC 384. Evidentiary treatment of the prosecutrix. Corroboration not always required. Applies to attempt cases as well.

Frequently Asked Questions

Is attempt to rape a separate offence under the BNS?

Attempt to rape is punished under Section 62 BNS (the residual attempt provision) read with Section 63 (definition of rape) and Section 64 (punishment for rape). The BNS does not have a specific section titled attempt to rape (unlike attempt to murder, which has Section 109 BNS). But the residual provision ensures that the offence is fully punishable.

What are the ingredients of attempt to rape?

Three ingredients: (i) intention to commit rape (specific intention to achieve the penetration required for Section 63); (ii) an act done in pursuance of that intention; and (iii) the act is a step towards commission, not mere preparation. The act need not be the penultimate act; it is enough that the accused has begun to execute the offence.

What is the difference between attempt to rape and outrage of modesty?

Attempt to rape requires specific intention to achieve the penetration required for Section 63 BNS. Outrage of modesty under Section 74 BNS requires only an intention to outrage the woman's sense of decency, without a specific intention to rape. In Aman Kumar v State of Haryana, (2004) 4 SCC 379, the Supreme Court held that where the intention to rape is not positively proved, the conviction should be under Section 74 (Section 354 IPC in that case), not under attempt to rape.

What is the punishment for attempt to rape under the BNS?

Under Section 62 BNS read with Section 64, the punishment is up to one half of the punishment for rape. For ordinary rape, this is up to five years for the minimum and up to ten years (half of twenty years, the statutory construction of life imprisonment under Section 6 BNS) for the maximum. For attempted aggravated rape (Sections 64(2), 65, 66, 70), the punishment is up to half of the enhanced substantive punishment.

What is the leading Indian case on attempt to rape?

Koppula Venkat Rao v State of Andhra Pradesh, (2004) 3 SCC 602, is the leading modern authority. The Supreme Court applied the multi-test approach (proximity, locus poenitentiae, equivocality, on-the-job factor) to hold that the accused's conduct amounted to attempt to rape. Aman Kumar v State of Haryana, (2004) 4 SCC 379, is equally important on the requirement of specific intention to rape.

Can the accused be convicted of both attempt to rape and outrage of modesty?

Ordinarily, no. The two offences are alternative charges: attempt to rape is the higher offence, and outrage of modesty is the lower. Where the intention to rape is proved, attempt to rape is made out, and the outrage of modesty charge is subsumed. Where the intention to rape is not proved, only the outrage of modesty charge (or Section 76 if disrobing is involved) succeeds. Section 337 BNSS on the framing of charges may permit alternative or additional charging in appropriate cases.

Attempt to Rape BNS