STATE OF MADHYA PRADESHversusMAHENDRA ALIAS GOLU

                        [2021] 10 S.C.R. 133                             133


                 STATE OF MADHYA PRADESH                                 A
                                  v.
                   MAHENDRA ALIAS GOLU
                 (Criminal Appeal No. 1827 of 2011)
                        OCTOBER 25, 2021                                 B
           [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      C
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         D
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             E
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                 F
‘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        G
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.                                                      H
                                  133
134            SUPREME COURT REPORTS                      [2021] 10 S.C.R.


A            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’
B     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’
C     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
D
             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
E     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]
F           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
G     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][142-B-C]
H
    STATE OF MADHYA PRADESH v. MAHENDRA ALIAS GOLU                      135


      1.3 However, if the attributes are unambiguously beyond           A
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
                                                                        B
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      C
preparation to commit the crime, which may or may not be
punishable, depending upon the intent and import of the penal
laws. [Para 13][142-C-E]
      2. Section 511 IPC is a general provision dealing with
attempts to commit offences which are not made punishable by            D
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               E
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, one-half of the
longest term of imprisonment provided for that offence, or with
such fine as is provided for the offence, or with both”. A plain        F
reading of Section 375 IPC before the 2013 Amendment 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          G
explained what ‘penetration’ conveys under the unamended Penal
Code which was in force at the relevant time. [Paras 14, 16]
[142-F-H; 143-E-F]

                                                                        H
136            SUPREME COURT REPORTS                    [2021] 10 S.C.R.


A           Aman Kumar vs. State of Haryana (2004) 4 SCC 379 :
            [2004] 2 SCR 237; Madan Lal vs. State of J&K (1997)
            7 SCC 677 : [1997] 3 Suppl. SCR 337; Koppula Venkat
            Rao vs. State of A.P. (2004) 3 SCC 602 : [2004] 2
            SCR 944 – relied on.
B           3.1 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
C     commit a crime is accomplished, then the crime stands committed
      for all intents and purposes. [Para 20][145-D-E]
            3.2 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
D     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
E     at that time. [Para 21][145-E-G]
            3.3 The deposition by the victims (PW-1 and PW-2) 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.
F     The statements of both the victim-children inspire full confidence,
      establish their innocence and evince a natural version without
      any remote possibility of tutoring. [Para 22][145-G-H]
            3.4 Since the acts of the respondent exceeded the stage
      beyond preparation and preceded the actual penetration, the Trial
G     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.
      The findings given contrarily by the High Court in ignorance of
      the material evidence on record, are perverse and untenable in
      the eyes of law. [Paras 24, 25][146-E-F]
H
    STATE OF MADHYA PRADESH v. MAHENDRA ALIAS GOLU                              137


                         Case Law Reference                                     A
[2004] 2 SCR 237                   relied on                para 9
[1997] 3 Suppl. SCR 337            relied on                para 17
[2004] 2 SCR 944                   relied on                para 18
     CRIMINAL APPELLATE JURISDICTION: Criminal Appeal                           B
No.1827 of 2011.
     From the Judgment and Order dated 08.10.2009 of the High Court
of Madhya Pradesh at Jabalpur in Criminal Appeal No.1089 of 2007.
       Mukul Singh, Dy. AG, Upendra Mishra, Sunny Choudhary, Advs.
for the Appellant.                                                              C
      Anil K. Sharma, Praveen Chaturvedi, Advs. for the Respondent.
      The Judgment of the Court was delivered by
      SURYA KANT, J.
      1. State of Madhya Pradesh (hereinafter referred to as                    D
“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              E
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                    F
respectively, were playing ‘gilli-danda’ 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              G
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 PW-1 and made her lie down on the cotton cot
which was kept in the room. Meanwhile, he also took off his clothes and         H
138             SUPREME COURT REPORTS                          [2021] 10 S.C.R.


A     started rubbing his genitals against the genitals of PW-1. Further, in the
      same identical manner, the above-mentioned act was repeated with
      PW-2.
              3. Both the minor victims, as an obvious reaction to the
      respondent’s acts must have felt scared and shocked because of which
B     they allegedly started crying. The respondent apprehending 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’ (PW-8).
      Fortunately, the incident which could have remained buried forever,
C     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 the same.
      This chance probe spiralled into the victims revealing the incident’s details
D     to their mothers. On the same day of the gathering, PW-2 confided in
      PW-6 when the latter prodded her to share the details of the incident.
      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.
E
            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/-.
F            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
G     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
H           prosecutrix, he had not gone beyond the stage of preparation
    STATE OF MADHYA PRADESH v. MAHENDRA ALIAS GOLU                           139
                    [SURYA KANT, J.]

      and he did not intend to do so at all events. It is well settled       A
      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
                                                                             B
      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   C
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’           D
(PW-1) and ‘Y’ (PW-2) and supported the prosecution case. They
unshakably faced the grilling cross-examination and have minutely
explained how the diabolic offence was committed. Both the victims
have admirably withstood the pressure of a humiliating and unnerving
cross-examination. Their depositions have been duly corroborated by          E
‘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 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    F
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     G
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
                                                                             H
140               SUPREME COURT REPORTS                     [2021] 10 S.C.R.


A     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 PW-8 vis-à-vis
      both the victims regarding the former’s presence near the place of
      occurrence which makes the prosecution story highly doubtful.
B
             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
C     paragraphs of the cited decision:
               “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
D              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
E              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
F              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
G              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

H     1
          (2004) 4 SCC 379
    STATE OF MADHYA PRADESH v. MAHENDRA ALIAS GOLU                            141
                    [SURYA KANT, J.]

      preparations are made. Preparation to commit an offence is              A
      punishable only when the preparation is to commit offences
      under Section 122 (waging war against the Government of
      India) and Section 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
                                                                              B
      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                C
      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, except for
      failure to consummate, all the elements of the substantive
      crime. In other words, an attempt consists in it the intent to          D
      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.”                                  E

      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        F
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?
      ANALYSIS:
      Distinction between ‘Preparation’ and ‘Attempt’ to commit rape
                                                                              G
       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          H
142            SUPREME COURT REPORTS                          [2021] 10 S.C.R.


A     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
B     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,
C     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 ‘preparation’ or
D     ‘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
E     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
F     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
G     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, one-half of the
      longest term of imprisonment provided for that offence, or with
H     such fine as is provided for the offence, or with both”.
       STATE OF MADHYA PRADESH v. MAHENDRA ALIAS GOLU                         143
                       [SURYA KANT, J.]

      15. It is extremely relevant at this stage to brush up the elementary   A
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
                                                                              B
circumstances falling under any of the six following
descriptions:—
         First.—Against her will.
         Secondly.—Without her consent.
         Thirdly.—xxx xxx xxx                                                 C
         Fourthly.— xxx xxx xxx
         Fifthly.— xxx xxx xxx
         Sixthly.—With or without her consent, when she is under
         sixteen years of age.                                                D
         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 rape.”
       16. A plain reading of the above provision spells out that sexual      E
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          F
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       G
         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
2
    (1997) 7 SCC 677                                                          H
144               SUPREME COURT REPORTS                       [2021] 10 S.C.R.


A     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 necessary to prove for an offence
B              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
C              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
D              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:-
E              “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 part-execution of a criminal
F              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 or
               consummation/completion. It may consequently be defined as
G              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.
H     3
          (2004) 3 SCC 602
    STATE OF MADHYA PRADESH v. MAHENDRA ALIAS GOLU                              145
                    [SURYA KANT, J.]

       11. In order to find an accused guilty of an attempt with intent         A
       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.
                                                                                B
       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.”
                                                       [Emphasis applied]       C
       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’      D
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               E
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       F
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 time.
                                                                                G
       22. The deposition by the victims (PW-1 and PW-2) 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
victim-children inspire full confidence, establish their innocence and evince
a natural version without any remote possibility of tutoring.                   H
146              SUPREME COURT REPORTS                       [2021] 10 S.C.R.


A            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 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
B
      prosecution. As correctly pointed out by the Trial Court, the pivotal fact
      that the details of the incident were shared by the victims with 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
C     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
D     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
E     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:
F            25. The findings given contrarily by the High Court in ignorance
      of the material evidence on record, are perverse and untenable 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,
G
      the Police Authorities are directed to arrest him and send a compliance
      report.
             26. The appeal stands disposed of in the above terms.


H     Devika Gujral                                                Appeal allowed.