Penal Code, 1860: s.376(2)(f) or s.354 – Prosecution case was that about fortnight prior to the date of registration of FIR, the two victim-prosecutrix (PW-1 and PW-2) aged about 9 years and 8 years respectively were playing in the street near the respondent’s house – Respondent lured them with promise to give money and took them to his house and took off his clothes and undressed PW1 and started rubbing his genital against her genital and repeated same act with PW-2 – Both the girls got scared and started crying and he threatened them with physcial harm – After few days, victims revealed the incident to PW-8 and thereafter the parents came to know about the incident – Trial Court convicted the respondent under s. 376(2)(f) r/w s. 511 – High Court set aside the conviction under s.376(2)(f) r/w s.511 and instead convicted him under s. 354 and consequently reduced sentence from 5 years to 2 years In the instant appeal, the State contended that High Court erred in modifying conviction to one under s. 354; that High Court miserably failed to appreciate the ingredients of ‘attempt to commit rape’ and has lightened it as a case of mere preparation in a insensitive manner – Held: 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 – His following action of stripping the prosecutrices and himself, and rubbing his genitals against those of the victims was indeed an endeavour to commit sexual intercourse – These acts of the respondent were deliberately done with manifest intention to commit the offence aimed and were reasonably proximate to the consummation of 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 s.511 read with s.375 as it stood in force at the time of occurrence.
Criminal Jurisprudence: ‘Attempt’ is punishable because even an unsuccessful commission of offence is preceded by mens rea, moral guilt, and its depraving impact on the societal values is no less than the actual commission.
Penal Code, 1860: s.375 – Distinction between ‘preparation’ and ‘attempt’ to commit an offence – There is a visible distinction between ‘preparation’ and ‘attempt’ to commit an offence and it all depends on the statutory edict coupled with the nature of evidence produced in a case – The stage of ‘preparation’ consists of deliberation, devising or arranging the means or measures, which would be necessary for commission of offence – Whereas, an ‘attempt’ to commit 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 falls short of actual commission of the crime. Allowing the appeal, the Court
HELD: 1.1 It is a settled preposition of Criminal Jurisprudence that in every crime, there is first, Mens Rea (intention to commit), 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 complete, but law still punishes the person for attempting the said act. ‘Attempt’ is punishable because even an unsuccessful commission of offence is preceded by mens rea, moral guilt, and its depraving impact on the societal values is no less than the actual commission. [Para 11][141-G-H; 142-A]
1.2 There is a visible distinction between ‘preparation’ and ‘attempt’ to commit an offence and it all depends on the statutory edict coupled with the nature of evidence produced in a case. The stage of ‘preparation’ consists of deliberation, devising or arranging the means or measures, which would be necessary for the commission of the offence. Whereas, an ‘attempt’ to commit 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 falls short of actual commission of the crime. [Para 12][142-B-C]
1.3 However, if the attributes are unambiguously beyond the stage of preparation, then the misdemeanours shall qualify to be termed as 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 predominantly determined on evaluation of the act and conduct of an accused; and as to whether or not the incident tantamounts to transgressing the thin space between `preparation’ and ‘attempt’. If no overt act is attributed to the accused to commit the offence 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 punishable, depending upon the intent and import of the penal laws. [Para 13][142-C-E]
2. Section 511 IPC is a general provision dealing with attempts to 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 provided for the offence, for a term which may extend to one-half of the imprisonment for life or, as the case may be, one-half of the longest term of imprisonment provided for that offence, or with such fine as is provided for the offence, or with both”. A plain reading of Section 375 IPC before the 2013 Amendment spells out that sexual intercourse with a woman below sixteen years, with or without her consent, amounted to ‘Rape’ and mere penetration was sufficient to prove such offence. The expression ‘penetration’ denotes ingress of male organ into the female parts, however slight it may be. This Court has on numerous occasions explained what ‘penetration’ conveys under the unamended Penal Code which was in force at the relevant time. [Paras 14, 16] [142-F-H; 143-E-F]
Aman Kumar vs. State of Haryana (2004) 4 SCC 379 : [2004] 2 SCR 237; Madan Lal vs. State of J&K (1997)
7 SCC 677 : [1997] 3 Suppl. SCR 337; Koppula Venkat Rao vs. State of A.P. (2004) 3 SCC 602 : [2004] 2 SCR 944 – relied on.
3.1 What constitutes an ‘attempt’ is a mixed question of law and facts. ‘Attempt’ is the direct movement towards the commission after the preparations are over. It is essential to prove that the attempt was with an intent to commit the offence. 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. [Para 20][145-D-E]
3.2 There is overwhelming evidence on record to prove the respondent’s deliberate overt steps to take the minor girls inside his house; closing the door(s); undressing the victims and rubbing his genitals on those of the prosecutrices. As the victims started crying, the respondent could not succeed in his penultimate act and there was a sheer providential escape from actual penetration. Had the respondent succeeded in penetration, even partially, his act would have fallen within the contours of ‘Rape’ as it stood conservatively defined under Section 375 IPC at that time. [Para 21][145-E-G]
3.3 The deposition by the victims (PW-1 and PW-2) are impeccable. Both have unequivocally stated as to how the respondent allured them and indulged in all those traumatic acts which have already been narrated in the preceding paragraphs. The statements of both the victim-children inspire full confidence, establish their innocence and evince a natural version without any remote possibility of tutoring. [Para 22][145-G-H]
3.4 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. The findings given contrarily by the High Court in ignorance of the material evidence on record, are perverse and untenable in the eyes of law. [Paras 24, 25][146-E-F]
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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