Supreme Court Explains the Difference Between “Preparation” and “Attempt” to Rape

While upholding a man’s rape conviction, the Bench of Justice Surya Kant and Justice Hima Kohli in Supreme Court clarified the distinction between “preparation” and “attempt” to commit rape.

In this case, the offence was committed in the year 2005, when the POCSO Act and Criminal Law Amendment Act were not in the picture. The offender was convicted under Section 376(2)(f) of the Indian Penal Code in conjunction with Section 511. 

In an appeal, the Madhya Pradesh High Court modified it to a conviction under Section 354 of the Indian Penal Code and decreased the term imposed on him.

According to the High Court, he did not make all efforts to commit rape with the prosecutrix, and he had not progressed beyond the level of preparation.

The question raised in the State’s appeal was whether the conduct committed by the accused constituted an ‘attempt’ to commit rape within the meaning of Section 376(2)(f) read with Section 511 IPC, or was it only a ‘preparation’ that resulted in the victims’ modesty being outraged. 

The court noted that evidence showed that the accused took the minor girls into the room, closed the doors and then he stripped the girls and himself naked, rubbing his genitals on the victims’. 

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It was also discovered that the testimonies of both victim youngsters inspire complete trust, prove their innocence, and evince a natural version devoid of any hint of teaching.

The court found that these acts were undertaken with the intent to engage in sexual intercourse.

Further, the court observed that the Trial Court correctly convicted him for attempting to commit rape as a criminal under Section 511 read with Section 375 IPC as it was in vogue at the time of the incident.

Distinction Between “Attempt” and “Preparation” to Rape

The Bench of Justice Surya Kant and Justice Hima Kohli explained the difference between “Attempt” and “Preparation” to Rape:

  1. The ‘preparation’ stage consists of deliberating, inventing, or arranging the means or methods required for the commission of the offence. An ‘attempt’ to perform the offence, on the other hand, begins immediately once preparation is completed. 
  2. The execution of mens rea following preparation is referred to as a ‘attempt.’ ‘Attempt’ begins where ‘preparation’ ends, though it falls short of the conduct of the crime. 
  3. It is a well-established presumption of criminal law that in every crime, there is first, Mens Rea (intention to commit), then preparation to commit, and finally, attempt to commit. If the third stage, ‘attempt,’ is successful, the crime is finished. If the effort fails, the crime is not completed, but the individual is still punished for trying the alleged conduct. ‘Attempt’ is penal because even a failed commission of an infraction is preceded by mens rea, moral culpability, and its depraving impact on societal values is no less than the actual commission. 
  4. However, if the attributes are plainly beyond the level of preparation, the misdemeanours will qualify as a ‘effort’ to commit the principal offence, and such ‘attempt’ is a chargeable offence under Section 511 IPC. 
  5. The ‘preparation’ or ‘attempt’ to commit the offence will be primarily established by a review of an accused’s act and conduct, as well as whether or not the occurrence amounts to crossing the thin line between ‘preparation’ and ‘attempt.’ 
  6. If there is no overt act 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 on the intent and import of the penal laws. 
  7. Section 511 of the IPC is a general provision dealing with attempts to commit offences that are not made punishable by other specific sections of the Code. It states, among other things, 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 punitive
  8. What constitutes a “attempt” is a legal and factual question. After the preparations are completed, the ‘attempt’ is the direct movement towards the commission. It is critical to demonstrate that the effort was made with the purpose to conduct the offence. 
  9. Even if the accused is unsuccessful in committing the main offence, an attempt is still conceivable. Similarly, if an attempt to commit a crime is successful, the crime has been committed for all intents and purposes.

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