State of Madhya Pradesh v. Mahendra Alias Golu

SURYA KANT, J. 1. 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 3 54 IPC and consequently his sentence has been reduced from 5 years to 2 years Rigorous imprisonment. BRIEF FACTS: 2. The prosecution case is that, about a fortnight prior to 20.12.2005 (date of registration of FIR), the two victim-prosecutrix who are named as ‘X’ (PW-1) and ‘Y’ (PW-2), aged about 9 years and 8 years respectively, were playing ‘gilli-danda’ in the street loc ated 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 ge tting money, both victims went along with the respondent to his house whi ch was totally empty at the time of the incident. Taking advanta ge 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 PW-1 and made her lie down on the cotto n cot which was kept in the room. Meanwhile, he also took off his clothes and STATE OF MADHY A PRADESH v. MAHENDRA ALIAS GOLU started rubbing his genitals against the genitals of PW-1. Further, in the same identical manner, the above-mentioned act was repeate d with PW-2. 3. Both the minor victims, as an obvious reaction t o the respondent’s acts must have felt scared and shocked because of which they allegedly started crying. The respondent apprehending t hat 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 r evealed the details of the incident to their friend who is named as ‘Z ’ (PW-8). Fortunately, the incident which could have remained buried fore ver, surfaced because of the fateful and inadvertent intervention of PW-8. It is stated that on the occasion of a religious gathering at PW-2’s house, PW-8 started teasing PW-2 by calling her as ‘respondent’s wife’, which led to PW-6 (PW-2’s mother) inquiring the reasons behind t he same. This chance probe spiralled into the victims revealing the incident’s details to their mothers. On the same day of the gathering, PW-2 c onfided in PW-6 when the latter prodded her to share the details of the i ncident. Similarly, PW-1 confided in PW-3 (PW1’s mother) on the same day in the evening. The mothers (PW-3 and PW-6) 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. 5000/-. 5. The respondent laid challenge to his conviction before the Principal Bench of Madhya Pradesh High Court and vide impugne d 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 w ith 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 particu larly 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 preparati on 139 and he did not intend to do so at all events . It is well settled principle of law that preparation of any offence ca nnot be termed as attempt to commit the same offence, I am o f the considered view that the strength of evidence on reco rd the offence of indecent assault by the appellant on bot h 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.” [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 depos ed as ‘X’ (PW-1) and ‘Y’ (PW-2) and supported the prosecution c ase. They unshakably faced the grilling cross-examination and have min utely explained how the diabolic offence was committed. Both the vi ctims have admirably withstood the pressure of a humiliating and unnerving cross-examination. Their depositions have been duly corrobor ated by ‘Z’ (PW-8)—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 h as 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’ 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 th at the Trial Court failed to draw the distinction between ‘attempt’ to commit an offence or mere ‘preparation’ thereof and erringly convic ted the respondent for the offence of ‘attempt’ to commit rape. He passionately argued that the High Court has rightly rectified the patent error and STATE OF MADHY A PRADESH v. MAHENDRA ALIAS GOLU [SURYA KANT, J.] 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 u rged that there was a material contradiction in the testimony of PW-8 vis-à-vis both the victims regarding the former’s presence near t he 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 Haryana 1 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: “9. A culprit first intends to commit the offence, then m akes preparation for committing it and thereafter attempts to commit the offence. If the attempt succeeds, he has commit ted the offence; if it fails due to reasons beyond his cont rol, he is said to have attempted to commit the offence. Attempt to commit an offence can be said to begin when the preparatio ns 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 commence s 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 fr om an intention to commit it; and from preparation made f or 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 ac t 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 consideri ng the motives which suggest the choice. Preparation consi sts in devising or arranging the means or measures necessary for the commission of the offence. It differs widely from a ttempt which is the direct movement towards the commission a fter 1 (2004) 4 SCC 379 141 preparations are made. Preparation to commit an off ence is punishable only when the preparation is to commit o ffences under Section 122 (waging war against the Governmen t of India) and Section 399 (preparation to commit dacoity). The dividing line between a mere preparation and an attempt i s sometimes thin and has to be decided on the facts o f 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 offenc e, unless something, which the doer of the act neither fo resaw nor intended, happens to prevent this. An attempt m ay be described to be an act done in part-execution of a cr iminal design, amounting to more than mere preparation, but falling short of actual consummation, and, possessing, exce pt for failure to consummate, all the elements of the subs tantive crime. In other words, an attempt consists in it the i ntent 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 attempt ed. The illustrations given in Section 511 clearly show the legislative intention to make a difference between th e 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 w as it a mere ‘preparation’ which led to outraging the modesty of the victims? ANALYSIS: Distinction between ‘Preparation’ and ‘Attempt’ to commit rape 11. It is a settled preposition of Criminal Jurisprudence that i n 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 beca use even an STATE OF MADHY A PRADESH v. MAHENDRA ALIAS GOLU [SURYA KANT, J.] 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 ‘preparati on’ 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 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 ‘preparat ion’ 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 sp ace between `preparation’ and ‘attempt’. If no overt act is attributed to the accused to commit the offence and only elementary exercise was under taken 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 s pecific sections of the Code and it provides, inter alia, that, “whoever attempts to commit an offence punishable by this Code with imprison ment for life or imprisonment, or to cause such an offen ce to be committed, and in such attempt does any act towards the commission of the offence, shall, where no express pro vision is made by this Code for the punishment of such attemp t, be punished with imprisonment of any description provided f or the offence, for a term which may extend to one- half o f the imprisonment for life or, as the case may be, one-h alf of the longest term of imprisonment provided for that offence, o r with such fine as is provided for the offence, or with both”. 143 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 in stant case. The definition of ‘Rape’, before the 2013 Amendment, used to provide that “A man is said to commit “rape” who, except in the c ase hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six followin g 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. Exception.—Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not ra pe.” 16. A plain reading of the above provision spells out that sexual intercourse with a woman below sixteen years, with or wi thout her consent, amounted to ‘Rape’ and mere penetration was suffic ient to prove such offence. The expression ‘penetration’ denotes ingr ess 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 cl ear 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 not ably decisive to 2 (1997) 7 SCC 677 STATE OF MADHYA PRADESH v. MAHENDRA ALIAS GOLU [SURYA KANT, J.] differentiate between ‘preparation’ and ‘attempt’ to commit rape. It was held thus: “12. The difference between preparation and an atte mpt to commit an offence consists chiefly in the greater d egree of determination and what is necessary to prove for an offen ce of an attempt to commit rape has been committed is that the accused has gone beyond the stage of preparation. I f an accused strips a girl naked and then making her lie fl at 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. I n the facts and circumstances of the present case the offence o f an attempt to commit rape by the accused has been clea rly 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 offenc e, unless something, which the doer of the act neither fo resaw nor intended, happens to prevent this. An attempt may be described to be an act done in part-execution of a criminal design, amounting to more than mere preparation, but falling short of actual consummation, and, possessing, exce pt for failure to consummate, all the elements of the subs tantive crime. In other words, an attempt consists in it the intent to commit a crime, falling short of, its actual commis sion 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 i n Section 511 clearly show the legislative intention to make a difference between the cases of a mere preparation and an attempt. 3 (2004) 3 SCC 602 145 11. In order to find an accused guilty of an attempt with intent to commit rape, court has to be satisfied that the a ccused, 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 o f the accused was indicative of a determination to gratif y his passion at all events, and in spite of all resistance, mater ials must exist. Surrounding circumstances many times th row beacon light on that aspect.” [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 whet her 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 o ffence. 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 al l intents and purposes. 21. There is overwhelming evidence on record to prove t he 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 I PC at that time. 22. The deposition by the victims (PW-1 and PW-2) a re 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 victim-children inspire full confidence, establish their innocence and evince a natural version without any remote possibility of tutoring. STATE OF MADHYA PRADESH v. MAHENDRA ALIAS GOLU [SURYA KANT, J.] 23. Additionally, the feeble contention regarding the contradiction between the testimonies of PW-8 vis-à-vis both the victims is equally untenable. The perceived contradiction is not adequate to un settle 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 w ith PW-8 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 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 proxim ate to the consummation of the offence. Since the acts of the respondent exceeded the stage beyond preparation and preceded the actual penetrati on, the Trial Court rightly held him guilty of attempting to commit ra pe 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 untena ble in the eyes of law. We, thus, allow the appeal, set aside the judgm ent 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 Police Authorities are directed to arrest him and send a compliance report. 26. The appeal stands disposed of in the above terms. Devika Gujral Appeal allowed.