It is essential to prove that the attempt was with an intent to commit the offence: Supreme Court

State of Madhya Pradesh hereinafter referred to as “Appellant”) is in appeal against the impugned judgment dated 08.10.2009 passed by the High Court of Madhya Pradesh Principal Bench at Jabalpur whereby the respondent’s conviction under Section 376(2)(f) read with Section 511 of Indian Penal Code for short “IPC”) has been set aside and instead he has been held guilty under Section 354 IPC and consequently his sentence has been reduced from 5 years to 2 years Rigorous Digitally signed byVishal AnandDate: 2021.10.2517:18:10 ISTReason:Signature Not Verified BRIEF FACTS The prosecution case is that about a fortnight prior to 20.12.2005 the two victim­prosecutrix who are named as ‘X’ and ‘Y’ aged about 9 years and 8 years respectively were playing ‘gilli­danda’ in the street located near the respondent’s house. The respondent who was called them with the inducement that he will give them money the incident. Taking advantage of this opportune moment the marry them. It is stated that the respondent thereafter undressed his genitals against the genitals of PW­1. Further in the same identical manner the above­mentioned act was repeated with Both the minor victims as an obvious reaction to the that the neighbours could possibly hear the victims’ voices told them not to disclose anything about this incident and silenced them by threatening them with physical harm. However after a few days both victims revealed the details of the incident to their and inadvertent intervention of PW­8. It is stated that on the occasion of a religious gathering at PW­2’s house PW­8 started probe spiralled into the victims revealing the incident’s details to PW­6 when the latter prodded her to share the details of the incident. Similarly PW­1 confided in PW­3 on the same day in the evening. The mothers then Section 376(2)(f) read with Section 511 IPC though acquitted him Prevention of Atrocities) Act 1989. The respondent was sentenced to undergo rigorous imprisonment of 5 years and fine of Rs The respondent laid challenge to his conviction before the judgment dated 08.10.2009 the High Court modified the judgment of the Trial Court set aside the conviction under Section 376(2)(f) read with Section 511 IPC and convicted the 2 years of rigorous imprisonment and fine of Rs. 5000 ­. The “17. On going through the evidence on record particularly allegations in FIR Ex.P 1 I am of the view that the appellant did not make all efforts to attempt to commit rape with both prosecutrix he had not gone beyond the as attempt to commit the same offence I am of the record the offence of indecent assault by the appellant on both the prosecutrix u s 354 IPC is Consequently the appellant is acquitted of charge 376 read with Section 511 IPC two counts The aforestated modification and resultant reduction in 7. Mr. Mukul Singh learned Counsel for the State vehemently as ‘X’and ‘Y’and supported the prosecution case the victims have admirably withstood the pressure of a humiliating and unnerving cross­examination. Their depositions have been duly corroborated by ‘Z’ read with Section 511 IPC which has been Statute or the settled principles attracted to the facts and even if the prosecution case is accepted as gospel truth nothing beyond the ‘preparation’ to commit rape has been proved. He emphasised that the Trial Court failed to draw the distinction commit rape. He passionately argued that the High Court has rightly rectified the patent error and modified the conviction from a woman as defined under Section 354 of IPC. Further learned Counsel for the respondent has also urged that there was a victims regarding the former’s presence near the place of In all fairness Mr. Praveen Chaturvedi learned Counsel for in Aman Kumar vs. State of Haryana1 to buttress his offence as compared to an actual ‘attempt’ to commit it. He in specific relied upon the following paragraphs of the cited “9. A culprit first intends to commit the offence then makes preparation for committing it and thereafter attempts to the offence if it fails due to reasons beyond his control he is said to have attempted to commit the offence. Attempt to the intention of committing the offence and which is a step towards the commission of the offence. The moment he commences to do an act with the necessary intention he commences his attempt to commit the offence. The word “attempt” is not itself defined and must therefore be taken Section 511 require. An attempt to commit a crime is to be distinguished from an intention to commit it and from an offence not followed by any act cannot constitute an be some external act which shows that progress has been it. Intention is the direction of conduct towards the object chosen upon considering the motives which suggest the choice. Preparation consists in devising or arranging the means or measures necessary for the commission of the offence. It differs widely from attempt which is the direct movement towards the commission after preparations are made. Preparation to commit an offence is punishable only waging war against the Government of India) and Section degree of determination in attempt as compared with acts which leads inevitably to the commission of the offence nor intended happens to prevent this. An attempt may be described to be an act done in part­execution 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 commit a crime falling short of its actual commission. It may The illustrations given in Section 511 clearly show the In this factual backdrop the question which falls for our consideration is whether the offence proved to have been committed by the respondent amounts to ‘attempt’ to commit rape within the meaning of Section 376(2)(f) read with Section modesty of the victims It is a settled preposition of Criminal Jurisprudence that in every crime there is first Mens Rea secondly preparation to commit it and thirdly attempt to commit it. If the third stage that is ‘attempt’ is successful then the crime is complete. If the attempt fails the crime is not act. ‘Attempt’ is punishable because even an unsuccessful commission of offence is preceded by mens rea moral guilt and its 12. There is a visible distinction between ‘preparation’ and stage of ‘preparation’ consists of deliberation devising or arranging the means or measures which would be necessary for the offence starts immediately after the completion of preparation ‘Attempt’ is the execution of mens rea after preparation Attempt’ starts where `preparation’ comes to an end though it 13. However if the attributes are unambiguously beyond the stage an ‘attempt’ to commit the principal offence and such ‘attempt’ in itself is a punishable offence in view of Section 511 IPC. The ‘preparation’ or ‘attempt’ to commit the offence will be and only elementary exercise was undertaken and if such preparatory acts cause a strong inference of the likelihood of commission of the actual offence the accused will be guilty of preparation to commit the crime which may or may not be commit offences which are not made punishable by other specific sections of the Code and it provides inter alia that “whoever attempts to commit an offence punishable by this Code with imprisonment for life or imprisonment or to cause such an offence to be committed and in such attempt does any act towards the commission of the offence shall where no express provision is made by this Code for the punishment of such attempt be punished with imprisonment of any description half of the imprisonment for life or as the case may be one­half The definition of ‘Rape’ before the 2013 Amendment used to provide that “A man is said to commit “rape” who except in the case hereinafter excepted has sexual intercourse with a woman under circumstances falling under any of the six following Fifthly.— xxx xxx xxx Sixthly.—With or without her consent when she is Explanation.—Penetration is sufficient to constitute wife the wife not being under fifteen years of age is not 16. A plain reading of the above provision spells out that sexual male organ into the female parts however slight it may be. This Court has on numerous occasions explained what ‘penetration’ the accused was within the labia of the pudendum of the woman no matter how littleundressing the victims and rubbing and there was a sheer providential escape from actual 22. The deposition by the victims are impeccable. Both have unequivocally stated as to how the establish their innocence and evince a natural version without 23. Additionally the feeble contention regarding the contradiction otherwise this contradiction can at best be seen as a mere ‘exaggeration’ on behalf of a child witness whose remaining and again reiterated that the victim’s deposition even on a In our considered opinion the act of the respondent of luring the minor girls taking them inside the room closing the knowledge was the end of ‘preparation’ to commit the offence His following action of stripping the prosecutrices and himself an endeavour to commit sexual intercourse. These acts of the respondent were deliberately done with manifest intention to to commit rape as punishable within the ambit and scope of 25. The findings given contrarily by the High Court in ignorance of the material evidence on record are perverse and u n tenable in the eyes of law. We thus allow the appeal set Court. The respondent is directed to surrender within two Police Authorities are directed to arrest him and send a

Summary: An attempt is possible even when the accused is unsuccessful in committing the principal offence. Similarly, if the attempt to commit a crime is accomplished, then the crime stands committed for all intents and purposes as held by the Hon’ble Supreme Court through the learned bench led by Justice Surya Kant in the case of State of Madhya Pradesh v. Mahendra Alias Golu (Criminal Appeal No. 1827 Of 2011) The brief facts of the case are that, about a fortnight prior to the date of registration of FIR, the two victim prosecutrix, aged about 9 years and 8 years respectively, were playing in the street located near the respondent’s house. The respondent, called them with the inducement that he will give them money. Both the victims went along with the respondent to his house which was totally empty at the time of the incident. Taking advantage of this opportune moment, the respondent thereafter undressed both the victims and made her lie down and started rubbing his genitals against the genitals of the both the victims. Both the minor victims, felt scared and shocked because of which they allegedly started crying. The respondent silenced them by threatening them with physical harm. However, after a few days, both victims revealed the details of the incident. After a lapse of 15 days of the incident, the present FIR was thus filed. The Trial Court convicted the respondent for the offence under Section 376(2)(f) read with Section 511 IPC though acquitted him under Sections 3(2)(v) of the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, 1989. The respondent was sentenced to undergo rigorous imprisonment of 5 years and fine of Rs. 5000/­. The respondent laid challenge to his conviction before the Principal Bench of Madhya Pradesh High Court and vide impugned judgment, the High Court modified the judgment of the Trial Court; set aside the conviction under Section 376(2)(f) read with Section 511 IPC and convicted the respondent under Section 354 IPC and sentenced him to undergo 2 years of rigorous imprisonment and fine of Rs. 5000/­. The aforestated modification and resultant reduction in sentence are assailed before us at the instance of the Prosecution. After the perusal of the facts and arguments by the respective parties, the Hon’ble Court held, “In our considered opinion, the act of the respondent of luring the minor girls, taking them inside the room, closing the doors and taking the victims to a room with the motive of carnal knowledge, was the end of ‘preparation’ to commit the offence. Since the acts of the respondent exceeded the stage beyond preparation and preceded the actual penetration, the Trial Court rightly held him guilty of attempting to commit rape as punishable within the ambit and scope of Section 511 read with Section 375 IPC as it stood in force at the time of occurrence. We, thus, allow the appeal, set aside the judgment of the High Court and restore that of the Trial Court. The respondent is directed to surrender within two weeks and serve the remainder of his sentence as awarded by the Trial Court.”