ORDER
K.C. Sood, J.
1. Appellant Gulam Ahmed, hereinafter referred to as 'the accused', was tried and convicted for an offence punishable under Section 376 read with Section 511 of the Indian Penal Code for an attempted rape of a minor girl of eleven years, hereinafter referred to as 'the victim'. The accused was sentenced to suffer rigorous imprisonment for five years and to pay a fine of rupees 10,000/-. In case of default in the payment of fine, the accused in directed to undergo imprisonment for six months.
2. Dissatisfied by his conviction, the accused is in this appeal.
3. The prosecution case appears to be:
The victim, a student of class five and eleven years of age at the relevant time, is daughter of Sant Ram who is blind. The accused along with some Kashmiri labours was employed by Leela Devi, mother of the victim, for felling and sawing 'safeda' trees. In the fore-noon of March 18, 2001, the mother of the victim sent the victim to feed goat in the nearby cow shed. Accused approached the victim at the cow shed and took her towards near-by nullah down below the cow shed. He took her dupatta, put it on the ground and laid down her on the dupatta. He also tore her salwar and attempted sexual intercourse after taking off his pants. Before the accused could penetrate, succeed, Leda Devi came calling the victim. She saw accused lying over the victim. On seeing the mother of the victim, the accused got up, put on his pants and fled away. The accused, however, had ejaculated On the shawl of the victim.
4. The defence of the accused is that he was employed by the mother of the victim along with three Kashmiri labours to fell and saw the 'safeda' and 'mango' trees for a consideration of rupees 4000/-. Even after they finished the work in five days, they were not paid the settled amount but were offered only rupees 1000/-. She started quarrelling and accused him of having committed theft in their house. Both the mother of the victim and her father had approached former Pradhan Narain Dutt at Sunhani and informed him that the accused had committed theft in her house. She had told one Roop Lal of the same village and thus has falsely been implicated.
5. Trial Judge after having gone through the evidence of the victim, her mother and the other witnesses, came to the conclusion that accused attempted rape on the victim and convicted the accused, as noticed earlier.
6. Heard Mr. K. B. Khajuria advocate for the appellant and Mr. D. S. Nainta, learned Deputy Advocate General for the respondent State.
7. The thrust of the arguments of learned Counsel for the accused is that the medical evidence does not show any attempt of rape as no injury was found on the person of the victim and accused has falsely been implicated because of the quarrel between the accused and the parents of the victim regarding wages. He further submits that even if prosecution story is believed, then what at the most can be said is that the accused is guilty of outraging the modesty of the victim but certainly not of attempted rape.
8. It is admitted position before me that the prosecutrix at the relevant time was about eleven years of age. It is also not in dispute that she was found to be habitual to sexual intercourse by the concerned doctor. It is also true that no injury was found on the person of the victim. However, even if it is assumed that the victim was consenting party, it will not absolve the accused as she was only eleven years of age at the relevant time.
9. It is the evidence of the victim that accused took her to the nearby nullah where he put shawl of the victim on the ground, tore her sarwar, took off his pants, made the prosecutrix to lie on the ground and laid over her. It is her evidence that in the meanwhile, her mother came calling her. Accused immediately got up, put up his pants and fled away, It is her evidence that while liquid was ejaculated by the accused on her shawl. There is nothing in the cross-examination of this witness to dent her story.
10. Leela Devi (PW4), the mother of the victim supporting the version of the victim says that she had sent her daughter to feed goat in the cow shed between 10.00 or 11.00 a.m. She saw accused at the same time going towards cow shed. When her daughter did not return from the cow shed, she went to cow shed but did not find victim. Then she came towards nullah and saw the accused laying over the victim. Accused seeing her put on his pants and fled away. She found that the accused had ejaculated on the shawl of her daughter. It is her evidence that she went in search of the accused towards Sunhani but did not told the former Pradhan about the incident as the honour of the family was involved. However, she went to the house of Pradhan of Gram Panchayat Sunhani and told him about the attempted rape of her daughter by the accused. The Pradhan informed the Police on telephone. Police came to the spot on the same day at about 6.00 or 7.00 p.m. and recorded the statement of the victim which is Exhibit PW 3/A and forms basis for the F. I. R. In cross-examination, she says that she never told former Pradhan Narain Dutt about the occurrence. She maintains that wages settled with the labour for felling the trees were rupees 1400/-. There is nothing in the cross-examination of this witness which may dent her reliability or show that the accused has falsely been implicated. In cross-examination she says that the cattle shed is at higher level whereas nullah is at a lower level. The place of occurrence from the cattle shed is about 10-15 steps and cattle shed in turn is about 5-6 steps from her house. She admits that salwar was torn only from one place. She also reaffirms that she was calling her daughter by name before she reached the spot. She denies the suggestion that quarrel ensued between her and the accused for the wages.
11. Prem Singh, Pradhan Gram Panchayat Sunhani (PW5) says that he was called by. Leela Devi to Sunhani and he reached there at about 5.00 p.m. Victim was also with Leela Devi and she told him that the accused having attempted to rape the victim during the day. He in turn informed the police on telephone. The police came and he joined the investigation. According to him, statement of the victim and her mother was recorded at village Dohak. He says that shawl Exhibit P1 was not handed over by Leela Devi to the police in his presence though he admits that the memo regarding handing over of the shawl to the police (Exhibit PW4/A) is signed by him but after seeing his signatures on Exhibit PW4/A he says that he does not remember whether he had read the contents of this document or not. There is nothing in the cross-examination of this witness which can even remotely show that the occurrence was not narrated by the victim to this witness immediately after the incident.
12. Upinder Singh (PW-13) Up-pradhan of the village says that the mother of the victim Leela Devi had asked him whether he had seen Kashmiri labour going and he informed her that three Kashmiri labours had gone towards about 10-15 minutes earlier. In the evening, he came to know that police had come in the house of Leela Devi. He also went there. Leela Devi and the victim told the police that accused had sexually assaulted the victim. Pradhan Prem Singh was also present at that time. He was cross-examined by the Public Prosecutor for no apparent reason. However, in his cross-examination he says that he does not remember if shawl Exhibit P1 was handed over to the police by Leela Devi. He however, admits his signatures on the Memo Exhibit PW4/A witnessing the handing over of the shawl to the police. He also then admits that this shawl was taken into possession by the police and sealed in a packet.
13. Dr. Sanjay Dhinian (PW7) medically examined the victim on March 19, 2001. According to Dr. Dhiman, no injury, abrasion or scratch mark was found on any part of the body of the victim. No blood stain was seen anywhere including the breast. Abdominal examination was conducted and no abnormality detected at the time of examination. Genital organs like labia majora and labia minora were developed. Pubic hairs were present. No blood stain was found over the thigh and genital area. On vaginal examination, (sic)ulva hymen was found absent and well healed. Vaginal smear was taken from vagina for examination and patient was referred to the District Hospital for gynecologist opinion. It is his further evidence that salwar of the victim Exhibit P-2 was given to the police after having sealed the same. This parcel was sealed with the seal of the hospital. The vaginal smear slides and sealed parcel of salwar was also handed over to the police along with the medico legal report.
14. From the report of the Forensic Laboratory it is proved that the accused had ejaculated on the shawl. Semen stains were also found on his pants which pants admittedly was taken from his person immediately after his arrest on the date of occurrence.
15. Now the question which arises for consideration is whether in the facts and circumstances of this case, a case for attempted rape is made out or not.
16. Penetration indeed is necessary ingredient for an offence of rape and in order to prove penetration, there has to be clear and cogent evidence to this effect. Admittedly, in the present case, penetration did not take place. So far the question of attempted rape, i.e., Section 376 read with Section 511 of the Indian Penal Code is concerned, it must be remembered that in very offence, there is:
(a) Intention to commit crime
(b) Preparation to commit the crime, and
(c) Attempt to commit it.
17. It is only when the third stage, i.e., attempt is successful, that crime is completed. If the attempt fails for some reason, the crime is not completed but law punishes such person for attempt to commit such crime.
18. Section 511 is a provision in the Indian Penal Code designed to deal with the attempt to commit offences which are not punishable by any specific provision in the Code. Section 511 of the Code makes punishable attempts to commit offences even if such offences are not completed for any intervening reason. As observed by the Apex Court in Aman Kumar and Anr. v. State of Haryana : 2004CriLJ1399 an attempt is made punishable because every attempt to commit crime though falls short of success create alarm. The injury and moral guilt of the offender is the same as if he had succeeded. The following observations of the Apex Court are apposite (para 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 said to have attempted to commit the offence. If the attempt succeeds, he has committed the offence; if it fails due to reasons beyond his control, he is 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 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 commission. Mere intention to commit an offence, not followed by any act, cannot constitute an offence. The will is not 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 of the 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 preparations are made. Preparation to commit an offence is 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 case. There is a greater degree of determination in attempt as compared with preparation.
19. In the present case, the accused had taken the victim to nullah down below the cow shed, he laid her over the shawl on the ground, taken out his pants, laid over her but only the calling of the mother of the victim, prevented him from penetrating but in the process, he ejaculated 0:1 the shawl the stains of which were also found on his pants. The offence would have been completed but for the intervening circumstance, i.e., calling of the mother of the victim who reached the spot before penetration could take place and therefore, the act of the accused would squarely fall under Section 376 read with Section 511 of the Indian Penal Code.
20. It is true mere intention to commit an offence, is not crime unless such intention is followed by an act. Mere intention is not suggestive of attempt.
21. In this case, the accused with intent to commit rape to satisfy his lust laid the victim on the ground over the shawl tore her salwar, opened his pants, laid over her which would show that he intended to gratify his passion on her person in all events. It is only when the mother of the victim calling and looking for the victim reached near the spot that he got up from the body of the victim I and fled away.
22. The conviction recorded by the trial Judge for attempted rape under Section 376 read with Section 511 of the Indian Penal Code cannot be said to be against the weight of the evidence or probability factor.
23. The submissions of the learned Counsel for the accused that the accused is only guilty of outraging the modesty are only to be noticed to be rejected for the foregoing reasons.
24. No other point was urged before me. In result, appeal fails and is dismissed.