The distinction between attempt and preparation in the context of the offense of rape, and the factors to be considered in determining whether an accused person had the intent to complete the offense.

( 1 ) APPELLANT Ankariya S/o Hardi challenges his conviction u/s, 376/511 I. P. C. and sentence of four years rigorous imprisonment awarded to him by additional Judge Camp Barwani of the Court of Session Judge, Mandleshwar by his judgment dated 9-4-1986.

( 2 ) THE case for prosecution is that appellant (hereinafter called 'the accused') was stranger to prosecutrix Phoolbai (P. W. 3 ). In the night of incident on 25-6-1985 the accused went to Renja's house and represented that he is a surpunch of village 'aamjhiri Gumadia' and his name is Ankaria. He was afraid as it was dark he requested Renja to allow him to sleep in his house that night. Renja acceded to his request gave him food and piece of cloth to lie on. The three accused, Phoolbai (P. W. 3) and her husband Renja (P. W. 4) slept in the same room "tapra". At about 11-00 p. m. in the night, Phoolbai (P. W. 3) was awakened and she found the cord of her petiticoat loosened and the accused trying to sit on her waist. She pushed the accused and cried out to her husband, who got up and lighted the lamp "chimni". Phoolbai (P. W. 3) complained to Renja (P. W. 4) that the accused was trying to molest her, had removed her cloth and sat on her waist. They narrated that they then took the accused to Hathha (P. W. 6) patel of the village, who asked them to lodge a report at the out-post. While going to the out-post on the way, they met three police-men who took them to out-post, Chachria where Phoolbai (P. W. 3) lodged First information report Ex. P/3, which was unwritten down by Sohanlal (P. W. 8) and offence u/s. 376/511 I. P. C. was registered, and accused sent for medical examination After investigation challan was put up against the accused. ( 3 ) THE accused pleaded not guilty to the charge u/s. 376/511. In his examination while denying material allegations, he stated that on the date of incident, he had drunk liquor, he had 500/- rupees in his pocket, which Renja had seen. On Renja's asking he drank more liquor. It was raining. When he was going to his house, Renja (P. W. 4) asked him to stay for the night, Renja quarrelled with him about money, snatched his money, slapped him and lodged false report against him, about injuries on his person he stated that it was due to beating by police. He did not examine any witness in defence.

( 4 ) SHRI Jaisingh learned counsel for the appellant submitted that whole story was unnatural and it was sheer concoction. According to him, no man, while husband of a woman was sleeping nearby would try to molest his wife. The accused was not armed. It is unreasonable that an unarmed man would dare to make an attempt to commit rape on Phoolbai when her husband was sleeping nearby. It also appears unnatural that the accused would remain at the place while Renja lighted a lamp and Sukhlal came to the place. According to him, whole story is a pure fabrication and the accused deserves an acquittal. In the alternative, he submitted that the offence if any made out against the accused would not be one u/s. 376 IPC attempt to commit rape but one u / S. 354 I PC assault or use of criminal force to woman with intent to outrage her modesty. In support of this argument, Shri Jaisingh relied on Phanu @ Chhotelal v. State of M. P. (1972 JLJ 124 ). The point for determination is whether any and if so what offence is made out against the appellant.

( 5 ) PHOOLBAI (P. W. 3) has stated about accused coming to her house, requesting for stay for the night and sleeping at her house. She also stated that in the midnight accused had removed cord of her peticoat and was sitting on her waist and that she pushed him, cried out to her husband. Her husband Renja (P. W. 4) corroborating his wife Phoolbai (P. W. 3) speaks of allowing the accused to stay in his house for the night. He further states that in the midnight he saw his wife naked and the accused sitting holding his wife. He cried out to Sukhlal and on his coming narrated the incident to him. Sukhalal (