Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1827 OF 2011
| STATE OF MADHYA PRADESH | ..... APPELLANT |
|---|---|
| VERSUS | |
| MAHENDRA ALIAS GOLU | ..... RESPONDENT |
JUDGMENT
SURYA KANT, J.
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
Signature Not Verified
Digitally signed by
Vishal Anand
Date: 2021.10.25
17:18:10 IST
Reason:
Imprisonment .
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BRIEF FACTS:
2. The prosecution case is that, about a fortnight prior to
20.12.2005 (date of registration of FIR), the two victimprosecutrix
who are named as ‘X’ (PW1) and ‘Y’ (PW2), aged about 9 years
and 8 years respectively, were playing ‘gillidanda’ in the street
located near the respondent’s house. The respondent who was
known to both the victims by virtue of living in the same locality,
called them with the inducement that he will give them money.
Lured by the promise of getting money, both 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 closed all the doors of the house from inside. He then led
the victims to one of the rooms in the house and declared that he would
marry them. It is stated that the respondent thereafter undressed
PW1 and made her lie down on the cotton cot which was kept in the
room. Meanwhile, he also took off his clothes and started rubbing
his genitals against the genitals of PW1. Further, in the same
identical manner, the abovementioned act was repeated with
PW2.
3. Both the minor victims, as an obvious reaction to the
respondent’s acts must have felt scared and shocked because of
which they allegedly started crying. The respondent apprehending
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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
friend who is named as ‘Z’ (PW8). Fortunately, the incident which
could have remained buried forever, surfaced because of the fateful
and inadvertent intervention of PW8. It is stated that on the
occasion of a religious gathering at PW2’s house, PW8 started
teasing PW2 by calling her as ‘respondent’s wife’, which led to PW6
(PW2’s mother) inquiring the reasons behind the same. This chance
probe spiralled into the victims revealing the incident’s details to
their mothers. On the same day of the gathering, PW2 confided in
PW6 when the latter prodded her to share the details of the
incident. Similarly, PW1 confided in PW3 (PW1’s mother) on the
same day in the evening. The mothers (PW3 and PW6) then
communicated the same to their respective husbands. 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
4.
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.
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5000/.
5. The respondent laid challenge to his conviction before the
Principal Bench of Madhya Pradesh High Court and vide impugned
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
respondent under Section 354 IPC and sentenced him to undergo
2 years of rigorous imprisonment and fine of Rs. 5000/. The
High Court was of the opinion that:
“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
stage of preparation and he did not intend to
do so at all events . It is well settled principle of
law that preparation of any offence cannot be termed
as attempt to commit the same offence, I am of the
considered view that the strength of evidence on
record the offence of indecent assault by the
appellant on both the prosecutrix is
u/s 354 IPC
made out beyond reasonable doubt………
Consequently the appellant is acquitted of charge
376 (2)(f) read with Section 511 IPC two counts.
The Appellant is convicted u/s of .”
354 IPC
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[Emphasis applied]
6. The aforestated modification and resultant reduction in
sentence are assailed before us at the instance of the Prosecution.
CONTENTIONS OF PARTIES:
Mr. Mukul Singh, learned Counsel for the State vehemently
7.
contended that there are explicit allegations of ‘attempt to commit
rape’ against the respondent. Both the prosecutrices have deposed
as ‘X’ (PW1) and ‘Y’ (PW2) and supported the prosecution case.
They unshakably faced the grilling crossexamination and have
minutely explained how the diabolic offence was committed. Both
the victims have admirably withstood the pressure of a
humiliating and unnerving crossexamination. Their depositions
have been duly corroborated by ‘Z’ (PW8)—a chance witness of
the circumstances. He urged that the Trial Court had rightly
convicted the respondent for the commission of offence under
Section 376 (2)(f) read with Section 511 IPC which has been
unjustifiably modified by the High Court overlooking the soul of the
Statute or the settled principles attracted to the facts and
circumstances of the case. Learned Counsel further argued that the
High Court miserably failed to appreciate the ingredients of ‘attempt’
to commit rape and has lightened it as a case of mere ‘preparation’
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in a cavalier and insensitive manner.
8. Contrarily, learned Counsel for the respondent submitted that
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
between ‘attempt’ to commit an offence or mere ‘preparation’ thereof
and erringly convicted the respondent for the offence of ‘attempt’ to
commit rape. He passionately argued that the High Court has
rightly rectified the patent error and modified the conviction from
‘ attempt to commit rape’ to an offence of ‘outraging the modesty’ of
a woman, as defined under Section 354 of IPC. Further, learned
Counsel for the respondent has also urged that there was a
material contradiction in the testimony of PW8 visàvis both the
victims regarding the former’s presence near the place of
occurrence which makes the prosecution story highly doubtful.
9. In all fairness, Mr. Praveen Chaturvedi, learned Counsel for
the respondent has heavily relied upon the decision of this Court
1
in Aman Kumar vs. State of Haryana to buttress his
contention of distinct features of mere ‘preparation’ to commit an
offence, as compared to an actual ‘attempt’ to commit it. He, in
specific, relied upon the following paragraphs of the cited
decision:
1
(2004) 4 SCC 379
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“ A culprit first intends to commit the offence, then makes
9.
preparation for committing it and thereafter attempts to
commit the offence. If the attempt succeeds, he has committed
the offence; if it fails due to reasons beyond his control, he is
said to have attempted to commit the offence. Attempt to
commit an offence can be said to begin when the preparations
are complete and the culprit commences to do something with
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
in its ordinary meaning. This is exactly what the provisions of
Section 511 require. An attempt to commit a crime is to be
distinguished from an intention to commit it; and from
preparation made for its commission. Mere intention to commit
an offence, not followed by any act, cannot constitute an
offence. The will is not to be taken for the deed unless there
be some external act which shows that progress has been
made in the direction of it, or towards maturing and effecting
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
when the preparation is to commit offences under Section 122
(waging war against the Government of India) and Section
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399 (preparation to commit dacoity). The dividing line between
a mere preparation and an attempt is sometimes thin and has
to be decided on the facts of each case. There is a greater
degree of determination in attempt as compared with
preparation.
10. An attempt to commit an offence is an act, or a series of
acts, which leads inevitably to the commission of the offence,
unless something, which the doer of the act neither foresaw
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
crime. In other words, an attempt consists in it the intent to
commit a crime, falling short of, its actual commission. It may
consequently be defined as that which if not prevented would
have resulted in the full consummation of the act attempted.
The illustrations given in Section 511 clearly show the
legislative intention to make a difference between the cases of
a mere preparation and an attempt.”
QUESTIONS FOR DETERMINATION:
10. 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
511 IPC or was it a mere ‘preparation’ which led to outraging the
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modesty of the victims?
ANALYSIS:
Distinction between ‘Preparation’ and ‘Attempt’ to commit rape
11. 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.
12. 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 o f 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
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falls short of actual commission of the crime.
13. 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.
14. Section 511 IPC is a general provision dealing with attempts to
commit offences which are not made punishable by other specific
| “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
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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, onehalf
of the longest term of imprisonment provided for that offence,
| or with such fine as is provided for the offence, or with both” | . | ||
|---|---|---|---|
components of the offence of ‘Rape’ under Section 375 IPC, as was in
force at the time when the occurrence took place in the instant case.
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
descriptions:—
First .—Against her will.
.—Without her consent.
Secondly
Thirdly .—xxx xxx xxx
Fourthly .— xxx xxx xxx
Fifthly .— xxx xxx xxx
Sixthly .—With or without her consent, when she is
under sixteen years of age.
Explanation .—Penetration is sufficient to constitute
the sexual intercourse necessary to the offence of rape.
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.—Sexual intercourse by a man with his own
Exception
wife, the wife not being under fifteen years of age, is not
rape.”
A plain reading of the above provision spells out that sexual
16.
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. In , it was summarised that:
Aman Kumar (supra)
“7. Penetration is the sine qua non for an offence of rape. In
order to constitute penetration, there must be evidence clear
and cogent to prove that some part of the virile member of
the accused was within the labia of the pudendum of the
woman, no matter how little (see Joseph Lines, IC&K 893).”
Even prior thereto, this Court in
17. Madan Lal vs. State of
2
J&K opined that the degree of the act of an accused is notably
decisive to differentiate between ‘preparation’ and ‘attempt’ to
commit rape. It was held thus:
“12. The difference between preparation and an
attempt to commit an offence consists chiefly in the
greater degree of determination and what is
2
(1997) 7 SCC 677
Page | 12
necessary to prove for an offence of an attempt to
commit rape has been committed is that the accused
has gone beyond the stage of preparation. If an
accused strips a girl naked and then making her lie
flat on the ground undresses himself and then forcibly
rubs his erected penis on the private parts of the girl
but fails to penetrate the same into the vagina and
on such rubbing ejaculates himself then it is difficult
for us to hold that it was a case of merely assault
under Section 354 IPC and not an attempt to commit
rape under Section 376 read with Section 511 IPC.
In the facts and circumstances of the present case the
offence of an attempt to commit rape by the accused
has been clearly established and the High Court
rightly convicted him under Section 376 read with
Section 511 IPC.”
18. The difference between `attempt’ and `preparation’ in a rape
case was again elicited by this Court in
Koppula Venkat Rao vs.
3
, laying down that
State of A.P. :
“10. An attempt to commit an offence is an act, or
a series of acts, which leads inevitably to the
commission of the offence, unless something, which
the doer of the act neither foresaw 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
3
(2004) 3 SCC 602
Page | 13
than mere preparation, but falling short of
actual consummation, and, possessing,
except for failure to consummate, all the
elements of the substantive crime. In other
words, an attempt consists in it the intent to commit
a crime, falling short of, its actual commission or
consummation/completion. It may consequently be
defined as that which if not prevented would have
resulted in the full consummation of the act
attempted. The illustrations given in Section 511
clearly show the legislative intention to make a
difference between the cases of a mere
preparation and an attempt.
11. In order to find an accused guilty of an
attempt with intent to commit rape, court
has to be satisfied that the accused, when
he laid hold of the prosecutrix, not only
desired to gratify his passions upon her
person, but that he intended to do so at all
events, and notwithstanding any resistance
on her part. Indecent assaults are often
magnified into attempts at rape. In order to come
to a conclusion that the conduct of the accused
was indicative of a determination to gratify his
passion at all events, and in spite of all resistance,
materials must exist. Surrounding circumstances
many times throw beacon light on that aspect.”
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[Emphasis applied]
19. In light of the statutory provisions as construed by this Court
from time to time in the cited decisions, let us examine whether the
respondent attempted to commit rape of the prosecutrices or there
was only preparation on his behalf?
20. We may at the outset explain that 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.
There is overwhelming evidence on record to prove the
21.
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
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time.
22. The deposition by the victims ( PW1 and PW2) 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 victimchildren inspire full confidence,
establish their innocence and evince a natural version without
any remote possibility of tutoring.
Additionally, the feeble contention regarding the contradiction
23.
between the testimonies of PW8 visàvis both the victims is equally
untenable. The perceived contradiction is not adequate to unsettle
the narrative on which the case of the prosecution is based. Even
otherwise, this contradiction can at best be seen as a mere
‘exaggeration’ on behalf of a child witness whose remaining
testimony completely supports the prosecution. As correctly pointed
out by the Trial Court, the pivotal fact that the details of the incident
were shared by the victims with PW8 remains undisputed and as
such the Courts are obliged not to discard the entire testimony on
the basis of a minor exaggeration. Furthermore, this Court has time
and again reiterated that the victim’s deposition even on a
standalone basis is sufficient for conviction unless cogent reasons for
corroboration exist.
In our considered opinion, the act of the respondent of
24.
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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
Section 511 read with Section 375 IPC as it stood in force at the
time of occurrence.
CONCLUSION :
25. 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. 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. In case the respondent fails to surrender, the
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Police Authorities are directed to arrest him and send a
compliance report.
26. The appeal stands disposed of in the above terms.
………..………………… J.
(SURYA KANT)
………..………………… J.
(HIMA KOHLI)
NEW DELHI
DATED : 25.10. 2021
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