STATE OF MADHYA PRADESH versus MAHENDRA ALIAS GOLU

Citation: [2021] 10 S.C.R. 133 · Decided: 25-10-2021 · Supreme Court of India · Bench: SURYA KANT · Disposal: Appeal(s) allowed

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Judgment (excerpt)

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133
133
STATE OF MADHYA PRADESH
v.
MAHENDRA ALIAS GOLU
(Criminal Appeal No. 1827 of 2011)
OCTOBER 25, 2021
[SURYA KANT AND HIMA KOHLI, JJ.]
Penal Code, 1860: s.376(2)(f) or s.354 – Prosecution case
was that about fortnight prior to the date of registration of FIR, the
two victim-prosecutrix (PW-1 and PW-2) aged about 9 years and 8
years respectively were playing in the street near the respondent’s
house – Respondent lured them with promise to give money and
took them to his house and took off his clothes and undressed PW-
1 and started rubbing his genital against her genital and repeated
same act with PW-2 – Both the girls got scared and started crying
and he threatened them with physcial harm – After few days, victims
revealed the incident to PW-8 and thereafter the parents came to
know about the incident – Trial Court convicted the respondent
under s. 376(2)(f) r/w s. 511 – High Court set aside the conviction
under s.376(2)(f) r/w s.511 and instead convicted him under s. 354
and consequently reduced sentence from 5 years to 2 years In the
instant appeal, the State contended that High Court erred in
modifying conviction to one under s. 354; that 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 insensitive manner
– Held: 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 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 s.511 read with s.375 as it stood in force at the
time of occurrence.
[2021] 10 S.C.R. 133
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134
SUPREME COURT REPORTS
[2021] 10 S.C.R.
Criminal Jurisprudence: ‘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.
Penal Code, 1860: s.375 – Distinction between ‘preparation’
and ‘attempt’ to commit an offence – 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 commission of 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.
Allowing the appeal, the Court
HELD: 1.1 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][141-G-H; 142-A]
1.2 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 of 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.
[Para 12

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