The distinction between preparation and attempt in sexual offenses requires clear evidence of intent and action beyond mere preparation.

JUDGMENT :

Anoop Kumar Dhand, J.

1. The appellant impugns the judgment dated 03.07.1991, passed by the Sessions Judge, Tonk in Sessions Case No.20/1991 by which he has been convicted under Section 376/511 IPC and sentenced to undergo 3 years and 6 months of rigorous imprisonment with a fine of Rs.100 and in default thereof to undergo 3 months simple imprisonment.

Factual matrix of the case:

2. Brief facts of the case are that on 09.03.1991, the Complainant-Juwara (PW-3) lodged a complaint (Ex.P2) at the Police Station, Todaraisingh, District Tonk, alleging therein that his grand-daughter “D” aged about 6 years was drinking water at the Pyau (Water Booth) near Dharamshala, where the accused came around 8:00 PM in the evening and forcefully took her into Dharamshala with an intention to commit rape on her. When the girl raised hue and cry, the villagers arrived and rescued her, otherwise the accused might have had committed rape on her. Upon this report, a Crime Report No.40/1991 (Ex.P3) was registered at the Police Station, Todaraisingh, District Tonk, for the offence punishable under Section 376/511 IPC. After investigation, charge sheet was submitted against the appellant for the above offence, and thereafter the Trial Court framed charges against the appellant for the above offence, wherein the appellant pleaded not guilty and claimed trial.

3. During the course of trial, the prosecution examined as many as 7 witnesses and exhibited 5 documents. Thereafter the statements of the appellant were recorded under Section 313 Cr.P.C.

4. Upon conclusion of the trial, the learned Trial Judge vide judgment dated 03.07.1991 convicted and sentenced the appellant for the offence, as aforesaid. Hence this criminal appeal.

Submissions on behalf of the appellant:

5. Learned counsel for the appellant submits that looking to the allegations levelled against the appellant, by the prosecutrix ‘D’ (PW-2) in her statements, no offence under Section 376/511 IPC is made out. Counsel submits that, the only allegation against the appellant is that he took off the inner-wear of the prosecutrix and also undressed himself. Counsel submits that there is no allegation of attempt to rape levelled against the appellant and there is no corroborative medical evidence against the appellant connecting him with the alleged incident. Counsel submits that under these circumstances, the Trial Court has committed an error in convicting the appellant for the above offence. Hence, under these circumstances, interference of this court is warranted and the appellant is liable to be acquitted of all the charges.

Submission on behalf of the State:

6. Per contra, learned Public Prosecutor opposed the arguments raised by the counsel for the appellant and submitted that as per the statements of the prosecutrix ‘D’ (PW-2) specific allegations are there against the appellant that he took-off the inner-wear of the prosecutrix and undressed himself as well. Counsel submits that no cross examination has been done by the appellant from the said witness at the time, when the statements of the prosecutrix ‘D’ (PW-2) were recorded. Counsel submits that under these circumstances, the offence of attempt to rape has been established. Counsel submits that considering, overall evidence available on the record, the learned Trial Court has rightly convicted the appellant for the offence, as stated above. Lastly, he argued that under these circumstances, no interference of this Court is warranted.

Analysis & Discussion:

7. Heard and considered the submissions made at Bar and perused the material available on the record.

8. Perusal of the record indicates that the FIR (Ex.P3) was registered at the instance of grand-father of the prosecutrix ‘D’ i.e., PW-3 Juwara wherein allegation was levelled against the appellant that he has forcefully taken the prosecturix ‘D’ inside the Dharamshala and when the prosecutrix ‘D’ raised hue and cry the villagers gathered there and rescued her. Similar statement has been