The State of Madhya Pradesh Home Department Station House Officer vs Mahendra @ Golu

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1827 OF 2011

STATE OF MADHYA PRADESH ..... APPELLANT VERSUS

MAHENDRA ALIAS GOLU ..... RESPONDENT

JUDGMENT

SURYA KANT, J.

State of Madhya Pradesh (hereinafter referred to as

“Appellant”) 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

(for short, “IPC”) 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 Signature Not Verified Digitally signed by Vishal Anand Date: 2021.10.25

Imprisonment.

17:18:10 IST Reason:

Page | 1 BRIEF FACTS:

2. The prosecution case is that, about a fortnight prior to

20.12.2005 (date of registration of FIR), the two victim­prosecutrix

who are named as ‘X’ (PW­1) and ‘Y’ (PW­2), aged about 9 years

and 8 years respectively, were playing ‘gilli­danda’ in the street

located near the respondent’s house. The respondent who was

known to both the victims by virtue of living in the same locality,

called them with the inducement that he will give them money.

Lured by the promise of getting money, both victims went along with

the respondent to his house which was totally empty at the time of

the incident. Taking advantage of this opportune moment, the

respondent closed all the doors of the house from inside. He then led

the victims to one of the rooms in the house and declared that he would

marry them. It is stated that the respondent thereafter undressed

PW­1 and made her lie down on the cotton cot which was kept in the

room. Meanwhile, he also took off his clothes and started rubbing

his genitals against the genitals of PW­1. Further, in the same

identical manner, the above­mentioned act was repeated with

PW­2.

3. Both the minor victims, as an obvious reaction to the

respondent’s acts must have felt scared and shocked because of

which they allegedly started crying. The respondent apprehending

Page | 2 that the neighbours could possibly hear the victims’ voices, told

them not to disclose anything about this incident and silenced

them by threatening them with physical harm. However, after a

few days, both victims revealed the details of the incident to their

friend who is named as ‘Z’ (PW­8). Fortunately, the incident which

could have remained buried forever, surfaced because of the fateful

and inadvertent intervention of PW­8. It is stated that on the

occasion of a religious gathering at PW­2’s house, PW­8 started

teasing PW­2 by calling her as ‘respondent’s wife’, which led to PW­6

(PW­2’s mother) inquiring the reasons behind the same. This chance

probe spiralled into the victims revealing the incident’s details to

their mothers. On the same day of the gathering, PW­2 confided in

PW­6 when the latter prodded her to share the details of the

incident. Similarly, PW­1 confided in PW­3 (PW1’s mother) on the

same day in the evening. The mothers (PW­3 and PW­6) then

communicated the same to their respective husbands. After a lapse

of 15 days of the incident, the present FIR was thus filed.

4. The Trial Court convicted the respondent for the offence under

Section 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. The respondent was sentenced

to undergo rigorous imprisonment of 5 years and fine of Rs.

Page | 3 5000/­.

5. The respondent laid challenge to his conviction before the

Principal Bench of Madhya Pradesh High Court and vide impugned

judgment dated 08.10.2009, the High Court modified the

judgment of the Trial Court; set aside the conviction under

Section 376(2)(f) read with Section 511 IPC and convicted the

respondent under Section 354 IPC and sentenced him to undergo

2 years of rigorous imprisonment and fine of Rs. 5000/­. The

High Court was of the opinion that:

“17. On going through the evidence on record particularly allegations in FIR Ex.P/1, I am of the view that the appellant did not make all efforts to attempt to commit rape with both prosecutrix, he had not gone beyond the stage of preparation and he did not intend to do so at all events. It is well settled principle of law that preparation of any offence cannot be termed as attempt to commit the same offence, I am of the considered view that the strength of evidence on record the offence of indecent assault by the appellant on both the prosecutrix u/s 354 IPC is made out beyond reasonable doubt……… Consequently the appellant is acquitted of charge 376 (2)­(f) read with Section 511 IPC two counts.

The Appellant is convicted u/s 354 of IPC.”

Page | 4 [Emphasis applied]

6. The aforestated modification and resultant reduction in

sentence are assailed before us at the instance of the Prosecution.

CONTENTIONS OF PARTIES:

7. Mr. Mukul Singh, learned Counsel for the State vehemently

contended that there are explicit allegations of ‘attempt to commit

rape’ against the respondent. Both the prosecutrices have deposed

as ‘X’ (PW­1) and ‘Y’ (PW­2) and supported the prosecution case.

They unshakably faced the grilling cross­examination and have

minutely explained how the diabolic offence was committed. Both

the victims have admirably withstood the pressure of a

humiliating and unnerving cross­examination. Their depositions

have been duly corroborated by ‘Z’ (PW­8)—a chance witness of

the circumstances. He urged that the Trial Court had rightly

convicted the respondent for the commission of offence under

Section 376 (2)(f) read with Section 511 IPC which has been

unjustifiably modified by the High Court overlooking the soul of the

Statute or the settled principles attracted to the facts and

circumstances of the case. Learned Counsel further argued that the

High Court miserably failed to appreciate the ingredients of ‘attempt’

to commit rape and has lightened it as a case of mere ‘preparation’

Page | 5 in a cavalier and insensitive manner.

8. Contrarily, learned Counsel for the respondent submitted that

even if the prosecution case is accepted as gospel truth, nothing

beyond the ‘preparation’ to commit rape has been proved. He

emphasised that the Trial Court failed to draw the distinction

between ‘attempt’ to commit an offence or mere ‘preparation’ thereof

and erringly convicted the respondent for the offence of ‘attempt’ to

commit rape. He passionately argued that the High Court has

rightly rectified the patent error and modified the conviction from

‘attempt to commit rape’ to an offence of ‘outraging the modesty’ of

a woman, as defined under Section 354 of IPC. Further, learned

Counsel for the respondent has also urged that there was a

material contradiction in the testimony of PW­8 vis­à­vis both the

victims regarding the former’s presence near the place of

occurrence which makes the prosecution story highly doubtful.

9. In all fairness, Mr. Praveen Chaturvedi, learned Counsel for

the respondent has heavily relied upon the decision of this Court

in Aman Kumar vs. State of Haryana1 to buttress his

contention of distinct features of mere ‘preparation’ to commit an

offence, as compared to an actual ‘attempt’ to commit it. He, in

specific, relied upon the following paragraphs of the cited

decision:

1

(2004) 4 SCC 379 Page | 6 “9. A culprit first intends to commit the offence, then makes preparation for committing it and thereafter attempts to commit the offence. If the attempt succeeds, he has committed the offence; if it fails due to reasons beyond his control, he is said to have attempted to commit the offence. Attempt to commit an offence can be said to begin when the preparations are complete and the culprit commences to do something with the intention of committing the offence and which is a step towards the commission of the offence. The moment he commences to do an act with the necessary intention, he commences his attempt to commit the offence. The word “attempt” is not itself defined, and must, therefore, be taken in its ordinary meaning. This is exactly what the provisions of Section 511 require. An attempt to commit a crime is to be distinguished from an intention to commit it; and from preparation made for its commission. Mere intention to commit an offence, not followed by any act, cannot constitute an offence. The will is not to be taken for the deed unless there be some external act which shows that progress has been made in the direction of it, or towards maturing and effecting it. Intention is the direction of conduct towards the object chosen upon considering the motives which suggest the choice. Preparation consists in devising or arranging the means or measures necessary for the commission of the offence. It differs widely from attempt which is the direct movement towards the commission after preparations are made. Preparation to commit an offence is punishable only when the preparation is to commit offences under Section 122 (waging war against the Government of India) and Section

Page | 7 399 (preparation to commit dacoity). The dividing line between a mere preparation and an attempt is sometimes thin and has to be decided on the facts of each case. There is a greater degree of determination in attempt as compared with preparation.

10. An attempt to commit an offence is an act, or a series of acts, which leads inevitably to the commission of the offence, unless something, which the doer of the act neither foresaw nor intended, happens to prevent this. An attempt may be described to be an act done in part­execution of a criminal design, amounting to more than mere preparation, but falling short of actual consummation, and, possessing, except for failure to consummate, all the elements of the substantive crime. In other words, an attempt consists in it the intent to commit a crime, falling short of, its actual commission. It may consequently be defined as that which if not prevented would have resulted in the full consummation of the act attempted. The illustrations given in Section 511 clearly show the legislative intention to make a difference between the cases of a mere preparation and an attempt.”

QUESTIONS FOR DETERMINATION:

10. In this factual backdrop, the question which falls for our

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 the Page | 8 modesty of the victims?

ANALYSIS:

Distinction between ‘Preparation’ and ‘Attempt’ to commit rape

11. It is a settled preposition of Criminal Jurisprudence that in

every crime, there is first, Mens Rea (intention to commit),

secondly, preparation to commit it, and thirdly, attempt to

commit it. If the third stage, that is, ‘attempt’ is successful, then

the crime is complete. If the attempt fails, the crime is not

complete, but law still punishes the person for attempting the said

act. ‘Attempt’ is punishable because even an unsuccessful

commission of offence is preceded by mens rea, moral guilt, and its

depraving impact on the societal values is no less than the actual

commission.

12. There is a visible distinction between ‘preparation’ and

‘attempt’ to commit an offence and it all depends on the statutory

edict coupled with the nature of evidence produced in a case. The

stage of ‘preparation’ consists of deliberation, devising or arranging

the means or measures, which would be necessary for the

commission o f the offence. Whereas, an ‘attempt’ to commit the

offence, starts immediately after the completion of preparation.

‘Attempt’ is the execution of mens rea after preparation.

`Attempt’ starts where `preparation’ comes to an end, though it Page | 9 falls short of actual commission of the crime.

13. However, if the attributes are unambiguously beyond the stage

of preparation, then the misdemeanours shall qualify to be termed as

an ‘attempt’ to commit the principal offence and such ‘attempt’ in

itself is a punishable offence in view of Section 511 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.

14. 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 and it provides, inter alia, that, “whoever

attempts to commit an offence punishable by this Code with

imprisonment for life or imprisonment, or to cause such an

offence to be committed, and in such attempt does any act

Page | 10 towards the commission of the offence, shall, where no express

provision is made by this Code for the punishment of such

attempt, be punished with imprisonment of any description

provided for the offence, for a term which may extend to one­

half of the imprisonment for life or, as the case may be, one­half

of the longest term of imprisonment provided for that offence,

or with such fine as is provided for the offence, or with both”.

15. It is extremely relevant at this stage to brush up the elementary

components of the offence of ‘Rape’ under Section 375 IPC, as was in

force at the time when the occurrence took place in the instant case.

The definition of ‘Rape’, before the 2013 Amendment, used to provide

that “A man is said to commit “rape” who, except in the case

hereinafter excepted, has sexual intercourse with a woman

under circumstances falling under any of the six following

descriptions:—

First.—Against her will.

Secondly.—Without her consent.

Thirdly.—xxx xxx xxx Fourthly.— xxx xxx xxx Fifthly.— xxx xxx xxx

Sixthly.—With or without her consent, when she is under sixteen years of age.

Explanation.—Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape.

Page | 11 Exception.—Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape.”

16. A plain reading of the above provision spells out that sexual

intercourse with a woman below sixteen years, with or without her

consent, amounted to ‘Rape’ and mere penetration was sufficient to

prove such offence. The expression ‘penetration’ denotes ingress of

male organ into the female parts, however slight it may be. This

Court has on numerous occasions explained what ‘penetration’

conveys under the unamended Penal Code which was in force at the

relevant time. In Aman Kumar (supra), it was summarised that:­

“7. Penetration is the sine qua non for an offence of rape. In order to constitute penetration, there must be evidence clear and cogent to prove that some part of the virile member of the accused was within the labia of the pudendum of the woman, no matter how little (see Joseph Lines, IC&K 893).”

17. Even prior thereto, this Court in Madan Lal vs. State of

J&K2 opined that the degree of the act of an accused is notably

decisive to differentiate between ‘preparation’ and ‘attempt’ to

commit rape. It was held thus:

“12. The difference between preparation and an attempt to commit an offence consists chiefly in the greater degree of determination and what is

2 (1997) 7 SCC 677 Page | 12 necessary to prove for an offence of an attempt to commit rape has been committed is that the accused has gone beyond the stage of preparation. If an accused strips a girl naked and then making her lie flat on the ground undresses himself and then forcibly rubs his erected penis on the private parts of the girl but fails to penetrate the same into the vagina and on such rubbing ejaculates himself then it is difficult for us to hold that it was a case of merely assault under Section 354 IPC and not an attempt to commit rape under Section 376 read with Section 511 IPC.

In the facts and circumstances of the present case the offence of an attempt to commit rape by the accused has been clearly established and the High Court rightly convicted him under Section 376 read with Section 511 IPC.”

18. The difference between `attempt’ and `preparation’ in a rape

case was again elicited by this Court in Koppula Venkat Rao vs.

State of A.P.3, laying down that:­

“10. An attempt to commit an offence is an act, or a series of acts, which leads inevitably to the commission of the offence, unless something, which the doer of the act neither foresaw nor intended, happens to prevent this. An attempt may be described to be an act done in part­execution of a criminal design, amounting to more

3 (2004) 3 SCC 602 Page | 13 than mere preparation, but falling short of actual consummation, and, possessing, except for failure to consummate, all the elements of the substantive crime. In other words, an attempt consists in it the intent to commit a crime, falling short of, its actual commission or consummation/completion. It may consequently be defined as that which if not prevented would have resulted in the full consummation of the act attempted. The illustrations given in Section 511 clearly show the legislative intention to make a difference between the cases of a mere preparation and an attempt.

11. In order to find an accused guilty of an attempt with intent to commit rape, court has to be satisfied that the accused, when he laid hold of the prosecutrix, not only desired to gratify his passions upon her person, but that he intended to do so at all events, and notwithstanding any resistance on her part. Indecent assaults are often magnified into attempts at rape. In order to come to a conclusion that the conduct of the accused was indicative of a determination to gratify his passion at all events, and in spite of all resistance, materials must exist. Surrounding circumstances many times throw beacon light on that aspect.”

Page | 14 [Emphasis applied]

19. In light of the statutory provisions as construed by this Court

from time to time in the cited decisions, let us examine whether the

respondent attempted to commit rape of the prosecutrices or there

was only preparation on his behalf?

20. We may at the outset explain that what constitutes an

`attempt’ is a mixed question of law and facts. ‘Attempt’ is

the direct movement towards the commission after the

preparations are over. It is essential to prove that the

attempt was with an 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.

21. There is overwhelming evidence on record to prove the

respondent’s deliberate overt steps to take the minor girls inside

his house; closing the door(s); undressing the victims and rubbing

his genitals on those of the prosecutrices. As the victims started

crying, the respondent could not succeed in his penultimate act

and there was a sheer providential escape from actual

penetration. Had the respondent succeeded in penetration, even

partially, his act would have fallen within the contours of `Rape’

as it stood conservatively defined under Section 375 IPC at that Page | 15 time.

22. The deposition by the victims (PW­1 and PW­2) are

impeccable. Both have unequivocally stated as to how the

respondent allured them and indulged in all those traumatic acts

which have already been narrated in the preceding paragraphs.

The statements of both the victim­children inspire full confidence,

establish their innocence and evince a natural version without

any remote possibility of tutoring.

23. Additionally, the feeble contention regarding the contradiction

between the testimonies of PW­8 vis­à­vis both the victims is equally

untenable. The perceived contradiction is not adequate to unsettle

the narrative on which the case of the 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 the prosecution. As correctly pointed

out by the Trial Court, the 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. Furthermore, this Court has time

and again reiterated that the victim’s deposition even on a

standalone basis is sufficient for conviction unless cogent reasons for

corroboration exist.

24. In our considered opinion, the act of the respondent of

Page | 16 luring the minor girls, taking them inside the room, closing the

doors and taking the victims to a room with the motive of carnal

knowledge, was the end of ‘preparation’ to commit the offence.

His following action of stripping the prosecutrices and himself,

and rubbing his genitals against those of the victims was indeed

an endeavour to commit sexual intercourse. These acts of the

respondent were deliberately done with manifest intention to

commit the offence aimed and were reasonably proximate to the

consummation of the offence. Since the acts of the respondent

exceeded the stage beyond preparation and preceded the actual

penetration, the Trial Court rightly held him guilty of attempting

to commit rape as punishable within the ambit and scope of

Section 511 read with Section 375 IPC as it stood in force at the

time of occurrence.

CONCLUSION:

25. The findings given contrarily by the High Court in

ignorance of the material evidence on record, are perverse and

u n tenable in the eyes of law. We, thus, allow the appeal, set

aside the judgment of the High Court and restore that of the Trial

Court. The respondent is directed to surrender within two

weeks and serve the remainder of his sentence as awarded by

the Trial Court. In case the respondent fails to surrender, the

Page | 17 Police Authorities are directed to arrest him and send a

compliance report.

26. The appeal stands disposed of in the above terms.

………..………………… J.

(SURYA KANT)

………..………………… J.

(HIMA KOHLI)

NEW DELHI DATED : 25.10. 2021

Page | 18