A two-judge Bench of Justice Surya Kant and Justice Hima Kohli has held that the overt acts of the Respondents were deliberately done with manifest intention to commit the offence, aimed and exceeded the stage beyond preparation and preceded the actual penetration, the Respondent was guilty of attempt to commit rape and came under the scope of Section 511 IPC read with section 375 IPC.
An appeal was preferred by the State against the judgment of Madhya Pradesh High Court which had set aside the Respondent's conviction under Section 376(2)(f) IPC read with Section 511 IPC and instead was held guilty under Section 354 IPC. The sentence of the Respondent was thereby reduced from 5 years to 2 years rigorous imprisonment.
In this case, the Respondent was accused of attempting to commit rape of two minor girls who were living in the same locality as that of the Respondent. After the incident came to the knowledge of the families of the two girls, an FIR was registered against the Respondent. The Trial Court convicted the Respondent for the offence under 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.
Upon appeal, the High Court reduced the sentence of the Respondent by observing that he did not make all efforts to commit rape with both prosecutrixes and had not gone beyond the stage of preparation.
The Appellant contended before the Court that the High Court had failed to appreciate the ingredients of 'attempt' to commit rape and lightened it as a case of mere 'preparation' in an indifferent and insensitive manner.
While the Respondent argued that nothing beyond the preparation to commit rape was proved and relied upon the decision of Aman Kumar v. State of Haryana to make a distinction between mere preparation to commit an offence as compared to an actual attempt to commit it.
The issue which was dealt with by the Court was whether the offence proved to have been committed by the respondent amounts to an '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 modesty of the victims.
The distinction between 'Preparation' and 'Attempt' to commit rape
The Court made the following observations while making a distinction between 'Preparation' and 'Attempt' to commit rape –
1) A settled proposition of Criminal Jurisprudence is that in every crime there is at first, Mens Rea (intention to commit), second, preparation to commit it, and third, attempt to commit it. If attempt is successful then crime is complete. But if an attempt fails, the crime is not complete but the law would still punish the person for attempt. The attempt would be punishable since an incomplete commission of offence is preceded by mens rea, moral guilt, and its depraving effect on the society which is no less than the actual commission.
2) The visible distinction between 'preparation' and 'attempt' to commit an offence would depend on the statutory edict along with the nature of evidence produced. The stage of 'preparation' would include deliberation, devising, or arranging means or measures for committing the crime. For 'attempt' to commit the offence would begin immediately after completion of preparation. Attempt' is the execution of mens rea after preparation. `Attempt' starts where `preparation' comes to an end, though it falls short of the actual commission of the crime.
3) If attributes are clearly beyond the stage of preparation then the misdemeanors shall be qualified to be termed as an 'attempt' to commit the offence and would be punishable under Section 511 of 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.
4) Section 511 IPC is a general provision dealing with attempts to commit offences which are not made punishable by other specific sections of the Code.
5) 'Attempt' is the direct movement towards the commission after the preparations are over. It is essential to prove that the attempt was with 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.
The Court, in the light of the aforementioned observations, allowed the appeal and upheld the judgment of the Trial Court and directed the Respondent to surrender within two weeks and serve the remainder of the sentence as awarded by the Trial Court.