In the verdict, the top court dealt extensively with the terms, 'preparation' and the 'attempt', the pre-requisites of a criminal offence, and said the attempt consists the intention, "moral guilt" and its depraving impact on the societal values is no less than the actual crime.
The judgement came on an appeal of the Madhya Pradesh government in which the apex court termed as "untenable" the verdict of the High Court which had acquitted a convict on a harsher charge of attempting to rape two girls of the age of eight and nine years respectively in his house, saying he only prepared and did not attempt to rape the minors.
The Madhya Pradesh High Court had set aside the trial court's order of conviction under Section 376(2)(f) (rape of a minor) read with Section 511 (attempt to commit rape) of the IPC and instead, held guilty under Section 354 (outraging the modesty) under the IPC and consequently had reduced the jail term from 5 years to 2 years.
The apex court bench comprising Chief Justice N V Ramana and Justices Surya Kant and Hima Kohli set aside the high court verdict, restored the trial court's order and punishment of five years jail term for the offence of attempt to rape, and asked the police to file a compliance report on the surrender of the convict to jail.
The high court had distinguished between two terms, preparation and attempt, used in the IPC and said the accused "did not make all efforts to attempt to commit rape with both prosecutrixes, he had not gone beyond the stage of preparation and he did not intend to do so at all events. It is a well-settled principle of law that preparation of any offence cannot be termed as an attempt to commit the same offence".
The high court verdict led the top court to deal with the legal prerequisites of a criminal act such as 'mens rea' (intention to commit offence), preparation, attempt to commit an offence, and the commission of an offence.
"It is a settled proposition of criminal Jurisprudence that in every crime, there is first, Mens Rea, 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 the law still punishes the person for attempting the said act.
"'Attempt' is punishable because even an unsuccessful commission of the offence is preceded by mens rea, moral guilt, and its depraving impact on the societal values is no less than the actual commission," the bench said.
While the stage of 'preparation' consists of deliberation, devising, or arranging the means or measures, which would be necessary for the commission of the offence, the 'attempt' to commit the offence, starts immediately after the completion of preparation.
"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'," the bench said.
''In our considered opinion, the act of the convict 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,'' the bench said.
"His following action of stripping the prosecutrix 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," the judgement said.
Since the acts of the convict "exceeded the stage beyond preparation and preceded the actual penetration", the trial court rightly held him guilty of attempting to commit rape, it said.
"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," it said.
It directed the convict 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, the Police Authorities are directed to arrest him and send a compliance report," it said.
As per police, in 2005, two minor victims of 9 and 8 years respectively were induced by their neighbors in his house when they were playing 'gilli¬danda' in a street near their house.
The accused attempted to rape the girls.