SCC citation: (2022) 12 SCC 442.
FACTS
Two young Girls of age 8 and 9 years old on December 2005 were playing near a neighbour’s house, the neighbour who was in acquaintance with these girls lured them for coming to his house by promising them money in return. Once they reached his Home the accused locked all doors and entrances of the house and then sexually assaulted both the girls one after another By rubbing his genitals against hers. When the victims cried accused silenced them by threatening to them with physical harm. After few days they told this incidence to their friend. Later during a religious gathering organised in one of the victim’s house friend teased her about the incident. This made their mothers suspicious who inquired and discovered the whole incident after questioning the girls
The families discussed the matter and filed a police report fifteen days after the incident on the date 20/12/2005 The local trial court found the man guilty of attempt to rape and sentenced him to five years in prison with a fine of ₹5000. However, the High Court later changed the conviction to indecent assault and reduced his prison sentence to two years with ₹5000
ISSUES
- Whether the respondent’s act surpassed the threshold from mere preparation to criminal attempt ?
- Whether the ingredients of section 376[1] and section 511[2] of IPC [3]were satisfied ?
- Whether High Court is justified in it’s approach to substitute the conviction under section 376 [4]and section 511[5] with section 354 IPC[6] ?
- What is the legal distinction between “preparation” and “attempt” in criminal law and in cases involving sexual offences ?
CONTENTION OF PARTIES
APPELLANT
The appellant counsel contended that there is a clear and explicit existence of allegations of “attempt to rape” by both the minor victims against the respondent. Both victims have firmly stood and answer the cross examination with a detailed and minute explanation of how the incident or Act was unfolded despite the pressure and humiliating question by the respondent showcasing that case did not have leave space for a reasonable doubt or unexplained or left out questions and facts. Further appellant relied on trial court’s judgement stating it was correct in it approach to convict the accused for the attempt to commit rape under Section 376(2)(f)[7] with Section 511 IPC[8] and argued that High Court has failed to understand the ingredients of an attempt to commit rape, it reduced the crime to a case of mere preparation in a careless and insensitive manner thus was unjustified in reducing the charge to Section 354 IPC[9].
RESPONDENT
The respondent counsel contended that even if prosecution’s story is entirely connected or True in nature the accused’s action has not gone beyond the stage of mere preparation to commit rape and trial court was incorrect and failing to distinguish between preparation to commit an offence and an actual attempt thus wrongly convicted the accused. The high court corrected this error in judgement by altering conviction from “attempt to commit rape” to “outraging the modesty” of a woman under Section 354 IPC[10]. Further respondent also raised doubt about the inconsistency of prosecution’s story with victim’s friend being near the crime scene, making prosecution’s whole story highly doubtful.
Respondent also rested it’s case on precedent Aman Kumar v. State of Haryana(2004)[11], which established difference between attempt and preparation Which explains journey of offence in four stages : Intention, preparation, attempt and commission now an attempt starts when the preparation is completed and accused should commit an external overt act towards commission which will lead to accomplishment of crime unless stopped by an external factor outside of culprit’s control and preparation is mere stage and only leads to conviction in few exceptional offences like dacoity and waging war against the state. Respondent argued that accused acts of locking the entrances and luring the girls were mere preparation and since his actions fell short for movement toward actual sexual penetration therefore the intent required to qualify as an “attempt is lacking.
RATIONALE
The honourable Supreme Court held that preparation consists of arranging the necessary means to commit an offence while attempt begins with an overt act to execute the mens rea after preparation is complete, the overact depends upon the conduct of the accused which specifies the stage is attempt or preparation if his attributes are beyond preparation and cross that threshold than it is an attempt. On application of this understanding court held that respondent’s preparation ended after he lured the girls inside, locked the doors and the overt act here was stripping them and himself, and rubbing his genitals against theirs a clear attempt to commit sexual assault and since he could not commence the act because the victim started to cry and escape from actual penetration his act was penultimate to completion of offence resulting an fully established attempt.
RATIO DECIDENDI
The ratio decidendi of this case lies in judicial understanding of different stages of a crime and when they transit from one to another. As stated by the court preparation is gathering necessary means to commit the offence and it ends when an act is done to final accomplishment of the offence court explained with the precedent Aman Kumar v. State of Haryana(2004)[12] that penetration is sine qua non for completion of sexual offence and since accused was near the actual penetration it was correct to classify his act as an attempt because it was penultimate to accomplishment had it been not stopped by an external uncontrolled variable and legislative intent is clear to distinguishing “direct movement towards commission after preparations are made” as per section 511.[13]
Court also used Madan Lal v. State of J&K (1997)[14] to quote an exact factual matrix where Judgement that acts of accused such as stripping off the girl, Rubbing his genitals against Her and stripping up himself but failing to penetrate is an attempt to sexually assault the child and such highly determined actions cannot be justified as mere preparation and constituted an attempt court also said that a minor inconsistency in Testimony of victim’s friend does not negates the whole prosecution’s story the key fact that he was told about the incident by victim is undisputed also victims’ own testimony is consistent and cannot be taken as mugged up storyline hence Trial Court was correct in it’s approach.
OBITER DICTA
Court explained the definition of “penetration” in plain language as requires the male organ to pass “within the labia of the pudendum of the woman, no matter how little”. Though central question was regarding whether attempt was committed or not but Court also broadly explained legal and textual meaning of the word penetration. Further court reiterated philosophy of why even an attempt is punishable that is an unsuccessful attempt of offence is preceded by mens rea, moral guilt, and its depraving impact on societal values is no less than the actual commission.
DEFECTS OF LAW
Few defects are suspected in this ruling as per study and analysis of the ruling.
THE VAGUENESS OF TRUE DETERMINATION & CHAIN OF ACTS
Criminal behaviour is a spectrum which continues till final commencement act, An accused may take various interconnected steps out of which few can be mere preparatory in nature and some can be actual attempt to commence but may look like a preparatory acts in nature and vice versa is also possible in a offence where several acts are inter weaved it becomes difficult to say whether attempt was made earlier preparation or not and which act is preparation and which one is attempt and issues still lingers in case where act itself is unjust or can be considered an actual attempt towards commencement like section 74 [15]of Bhartiya Nyaya Sanhita [16]Assault with Intent to Outrage Modesty.
SPONTANEOUS CRIMES WITHOUT A “PREPARATION”
In spontaneous crimes preparation is effectively zero either the attempt commences or entirely fails for example a sudden assault or Molestation cases at Trains or in an alleyway at night. These kind of crimes start with the attempt itself and require no actual preparation as such and moreover the crime is not necessary to unfold in stages of preparation and attempt with an understanding that attempt is committed after preparation has been complete can fail to accommodate crimes born out of immediate impulse thus creating a conceptual loophole where execution of mens rea is instantaneous collapsing the timeline of preparation followed by attempt.
THE AMBIGUITY IN CONNECTED OFFENCES
In cases where an predecessor offence is committed to effect another main offence than which offence will be contemplated as preparatory or an attempt to commit the main offence? For example a person with mens rea commits abduction or kidnapping with the ultimate motive to commit sexual assault with the victim now this may lead to ambiguity was the first offence an attempt to commit the second or It was an preparation to commit the second offence or they operate as separate offence despite the transition and what if person fails in main offence will he be penalised for just kidnapping or he can be punished for attempt for sexual assault also thus rigid definition cannot independently determine at what stage of offence or which offence is attempt or mere preparation.
INFERENCE
- Judiciary emphasizes the natural and consistent testimonies of minor if it is consistent with the factual matrix presented by the prosecution.
- Court ignores minor inconsistency in testimony if the primary facts are consistent within testimony and factual matrix of prosecution negating it as a reasonable doubt.
- Judgement holds that Victim’ statement is sufficient to attract liability and absolute corroboration for conviction is not necessary.
- Court also held that sexual assaults should not be merely treated as a preparation when determined acts like stripping up of victim shows clear intention and penultimate attempt for completion.
BY ARNAV SHRIVASTAVA,
SCHOOL OF LAW, BENNETT UNIVERSITY
[1] Indian Penal Code, 1860, § 376, No. 45, Acts of Parliament, 1860 (India).
[2] Id. At § 511.
[3] Id.
[4] Id At § 376.
[5] Id. At § 511.
[6] Id. at § 354.
[7] Id. at § 376(2)(f).
[8] Id. at § 511.
[9] Id. At § 354.
[10] Id.
[11] Aman Kumar v. State of Haryana, (2004) 4 SCC 379 (India).
[12] Id.
[13] Indian Penal Code, 1860, § 511, No. 45, Acts of Parliament, 1860 (India), supra note 2.
[14] Madan Lal v. State of J&K, (1997) 7 SCC 677 (India).
[15] Bharatiya Nyaya Sanhita, 2023, § 74, No. 45, Acts of Parliament, 2023 (India).
[16] Id.