An attempt to commit rape requires a greater degree of determination than mere preparation, and the prosecution must establish that the accused intended to commit the offence at all events.

1. This appeal is directed against an order of the learned Additional Sessions Judge, Sonepat, convicting the appellant under Ss. 376/511 and 450. Penal Code, and sentencing him to 2 years rigorous imprisonment and a fine of Rs. 100.00 under the first count and to 6 months rigorous imprisonment and a fine of Rs. 100.00 under the second count with the direction that the substantive sentences so awarded to him, shall run concurrently.

2. The prosecution case against the appellant is as under; On 14th April, 1980, at about midday, Rameshwar accused entered the house of Balbir, in his neighbourhood and caught hold of his wife Smt. Darshan and tried to open the string of her salwar to commit rape upon her, but she resisted. She picked up a kulhari, which was lying nearby and gave an injury on the upper limb of Rameshwar. The accused then made good his escape. Lakhi Ram saw the accused running away from the house of Balbir. Parbhu, father-in-law of Smt. Darshan was apprised of this incident. The husband of the prosecutrix was stated to be out of station and he returned to the village after several days, A panchayat was convened and the father of the accused wanted time to produce his son and to apologize before the panchayat but on his failure to do so, a case was registered at Police Station Gohana on the statement of Smt. Darshan. which is Exhibit P. C. Sub-Inspector Niranjan Dev. P.W. 9. went to the spot and prepared its visual plan. Exhibit p. H. He also took into possession a pair of chappals and kulhari. produced by Smt. Darshan. The accused got himself admitted in Willington Hospital. New Delhi, on 14-4-1980. Sub-Inspector Sat Pal, P.W, 10. of Police Station Mandir Marg, New Delhi, sent his report, Exhibit P. K. to the Station House Officer, Police Station, Gohana regarding the admission of the accused in the said hospital. The accused was arrested on 22-4-1980. On the same day, he was got medically examined from Dr. R.A, Gupta. P.W.1. who found the following injuries on his person:

1. There was POP splint which was applied on the left upper limb from mid arm to M. P. joints. Advised to obtain the details from concerned hospital as stated by the patient where he was examined on 14-4-1980.

2. There was an abrasion on the left knee joint on front 1"x1/2" crusted and irregular. The duration of injury No. 2 was stated to be between 3 to 7 days, having been caused by a blunt weapon. After necessary investigation, the accused was challaned and committed.

3. The prosecution examined as many as 10 witnesses. The accused when examined under S. 313, Criminal p. C. denied the prosecution allegations and pleaded false complicity in the case. Kailash Chand Garg, Dr. K. K. Garg and Rati Ram were examined in defence,

4. The trial Court on the basis of the material placed before it convicted and sentenced the accused as indicated above and hence the appeal at his instance.

5. The only point which was pressed upon me by the learned counsel for the appellant is that on the facts found by the trial Court, the act of the appellant amounts to an offence under S.354, Penal Code, and not under S.376 read with S.511,Penal Code. In support of this contention reliance is placed on State of Madhya Pradesh v, Babulal,. AIR 1960 Madhya Pra 155: (1960 Cri LJ 612). There the accused had caught hold of the girl and assaulted her with a stick. He felled her down on the ground forcibly, snatched her lugra and thereby made her naked. The cries of the girl attracted her uncle who came to the spot. On seeing him the accused ran away. In these circumstances, the Court held that the facts did not show that the accused was determined to have intercourse at all events because as soon as he saw the uncle of the prosecutrix, he ran away. Further he only made the girl naked. He did not expose nor attempted to expose his private part. Therefore, it was held that it was not a case of an attempt to commit rape but one under S.354, Penal Code.

6. Admittedly from th