What amounts to attempt to rape? Supreme Court explains in a 2005 attempted rape of minor girls 

Supreme Court: In a case where the accused had lured minor girls aged 8 and 9, took them inside the room, closed the doors and rubbed his genitals against those of the victims, the bench of Surya Kant* and Hima Kohli, JJ has held that these acts were deliberately done with manifest intention to commit the offence of rape and were reasonably proximate to the consummation of the offence.

The Court held that since the acts of the respondent exceeded the stage beyond preparation and preceded the actual penetration, he was 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 incident dates back to the year 2005.

Distinction between ‘Preparation’ and ‘Attempt’ to commit rape

The Court took the opportunity to lay down the distinction between ‘Preparation’ and ‘Attempt’ to commit rape and explained the three stages of commission of a crime.

  1. Mens Rea (intentio
  2. n to commit),
  3. preparation to commit it, and
  4. 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.”

It was further explained that 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.

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

What amounts to rape?

A plain reading of the offence of ‘Rape’ under Section 375 IPC as it stood at the time of commission of offence in the present case shows 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.

Rulings explaining the meaning of ‘penetration’ under the unamended Penal Code which was in force at the relevant time

Aman Kumar v. State of   Haryana, (2004) 4 SCC 379

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 accused was within the labia of the pudendum of the woman, no matter how little.

Koppula Venkat Rao vs. State of A.P, (2004) 3 SCC 602

In order to find an accused guilty of an attempt with intent 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. 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.

Madan Lal vs. State of J&K, (1997) 7 SCC 677

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 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 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 established and the High Court rightly convicted him under Section 376 read with Section 511 IPC.

Why was the case at hand a fit case of “attempt” to rape?

There was 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 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.”

[State of Madhya Pradesh v. Mahendra, 2021 SCC OnLine SC 965, decided on 25.10.2021]


For State: Advocate Mukul Singh

For Respondent: Advocate Praveen Chaturvedi

*Judgment by: Justice Surya Kant

Know Thy Judge | Justice Surya Kant

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