2021 Supreme(SC) 626

SUPREME COURT OF INDIA
SURYA KANT, HIMA KOHLI, JJ.
State of Madhya Pradesh – Appellant
Versus
Mahendra alias Golu – Respondent
Criminal Appeal No. 1827 of 2011
Decided On : 25-10-2021

IMPORTANT POINTS
(1) There is a visible distinction between ‘preparation’ and ‘attempt’ to commit an offence and it all depends on statutory edict coupled with nature of evidence produced in a case.
(2) What constitutes an `attempt’ is a mixed question of law and facts – ‘Attempt’ is direct movement towards commission after preparations are over.
(3) ‘Preparation’ or ‘attempt’ to commit offence will be predominantly determined on evaluation of act and conduct of an accused and as to whether or not incident tantamounts to transgressing the thin space between ‘preparation’ and ‘attempt’.

Headnote:

(A) Indian Penal Code, 1860 – Sections 376/511 – Distinction between ‘Preparation’ and ‘Attempt’ to commit rape – In every crime, there is first, Mens Rea (intention to commit), secondly, preparation to commit it, and thirdly, attempt to commit it – If third stage, that is, ‘attempt’ is successful, then crime is complete – If attempt fails, crime is not complete, but law still punishes person for attempting said act – ‘Attempt’ is punishable because even an unsuccessful commission of offence is preceded by mens rea, moral guilt, and its depraving impact on societal values is no less than actual commission – There is a visible distinction between ‘preparation’ and ‘attempt’ to commit an offence and it all depends on statutory edict coupled with nature of evidence produced in a case – Stage of ‘preparation’ consists of deliberation, devising or arranging means or measures, which would be necessary for commission of offence – Whereas, an ‘attempt’ to commit offence, starts immediately after completion of preparation – ‘Attempt’ is execution of mens rea after preparation – `Attempt’ starts where `preparation’ comes to an end, though it falls short of actual commission of crime – However, if attributes are unambiguously beyond stage of preparation, then misdemeanours shall qualify to be termed as an ‘attempt’ to commit principal offence and such ‘attempt’ in itself is a punishable offence in view of Section 511 IPC – ‘Preparation’ or ‘attempt’ to commit offence will be predominantly determined on evaluation of act and conduct of an accused and as to whether or not incident tantamounts to transgressing the thin space between `preparation’ and ‘attempt’ – If no overt act is attributed to accused to commit offence and only elementary exercise was undertaken and if such preparatory acts cause a strong inference of likelihood of commission of actual offence, accused will be guilty of preparation to commit crime, which may or may not be punishable, depending upon intent and import of penal laws. (Paras 11, 12 and 13)

(B) Indian Penal Code, 1860 – Section 511 – Attempt to commit offence – What constitutes an `attempt’ is a mixed question of law and facts – ‘Attempt’ is direct movement towards commission after preparations are over – It is essential to prove that attempt was with an intent to commit offence – An attempt is possible even when accused is unsuccessful in committing principal offence – Similarly, if attempt to commit a crime is accomplished, then crime stands committed for all intents and purposes. (Para 20)

(C) Indian Penal Code, 1860 – Section 354 – Attempt to outrage modesty – Conviction and sentence – There is overwhelming evidence on record to prove respondent’s deliberate overt steps to take minor girls inside his house; closing door(s); undressing victims and rubbing his genitals on those of prosecutrices – As victims started crying, respondent could not succeed in his penultimate act and there was a sheer providential escape from actual penetration – Had respondent succeeded in penetration, even partially, his act would have fallen within contours of `Rape’ as it stood conservatively defined under Section 375 IPC at that time – Both have unequivocally stated as to how respondent allured them and indulged in all those traumatic acts which have already been narrated in preceding paragraphs – Statements of both victim children inspire full confidence, establish their innocence and evince a natural version without any remote possibility of tutoring – Perceived contradiction is not adequate to unsettle the narrative on which case of 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 prosecution – Victim’s deposition even on a standalone basis is sufficient for conviction unless cogent reasons for corroboration exist – Act of the respondent of luring minor girls, taking them inside room, closing doors and taking victims to a room with motive of carnal knowledge, was end of ‘preparation’ to commit offence – His following action of stripping prosecutrices and himself and rubbing his genitals against those of victims was indeed an endeavour to commit sexual intercourse – These acts of respondent were deliberately done with manifest intention to commit offence aimed and were reasonably proximate to consummation of offence – Since acts of respondent exceeded stage beyond preparation and preceded actual penetration, Trial Court rightly held him guilty of attempting to commit rape as punishable within ambit and scope of Section 511 read with Section 375 IPC as it stood in force at the time of occurrence – Judgment of High Court set aside and that of Trial Court restored. (Paras 21 to 25)

Facts of the case:

State of Madhya Pradesh 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 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 Imprisonment. Question which falls for 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 modesty of the victims?

Findings of Court:

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.

Result : Appeal allowed.