Distinction Between "Preparation" & "Attempt To Rape" : Supreme Court Explains

While upholding conviction of a man accused of attempt to rape, the Supreme Court explained the distinction between 'Preparation' and 'Attempt' to commit rape.

In this case the accused was convicted under Section 376(2)(f) read with Section 511 of Indian Penal Code. In appeal, the Madhya Pradesh High Court modified it to conviction under Section 354 IPC and reduced the sentence awarded to him. The High Court took a view that he did not make all efforts to attempt to commit rape with both prosecutrix, and he had not gone beyond the stage of preparation.

The issue raised in the appeal filed by the State was whether the offence proved to have been committed by the accused  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 modesty of the victims? It may be noted that the date of occurrence of the instant crime is 20.12.2005 (that is before the enactment of POCSO and 2013 amendment of IPC redefining rape)

The court noticed that, it has come in evidence that the accused had taken the minor girls were taken inside the room, closing the doors and taking the victims to a room. That then he stripped the girls and himself, and rubbed his genitals against those of the victims. It also found that the statements of both the victim children inspire full confidence, establish their innocence and evince a natural version without any remote possibility of tutoring.

The court observed that these acts were committed with endeavour to commit sexual intercourse.

"These acts were deliberately done with manifest intention to commit the offence aimed and were reasonably proximate to the consummation of the offence. The acts of the accused exceeded the stage beyond preparation and preceded the actual penetration". the bench observed holding that the Trial Court rightly convicted him for 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.

On the distinction between penetration and attempt to rape, the court made these observations:

1. 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. (Para 12)

2.  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. (Para 11)

3. 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. (Para 13)
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 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 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 onehalf 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. (Para 14)
5. 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. (Para 20)

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