J.R. CHOPRA, J. — This is an appeal against the judgment of the learned Additional Sessions Judge, Sri Ganganagar dated March 15, 1978 whereby the learned lower court has convicted accused-appellant Madanlal of the offence under s. 376/511 I.P.C. and has sentenced him to undergo two years rigorous imprisonment. 2. The facts of this case briefly stated are that: P.W.1 Jagdish and P.W. 8 Mohanlal produced P.W. 5 Mst. Shanti and accused Madanlal before the Incharge, Police Station (Kotwali) Sri Ganganagar on January 15, 1977 at about 8 P. M. and lodged an oral report to the effect that P. W. 2 Rameshwarlal came and told that somebody was committing rape with a girl in Patel Garden, whereupon, he accompanied him alongwith PW 6 Ramjilal and there, they found that accused Madanlal was sleeping on Mst. Shanti He made her naked and was himself lying naked on her. He has closed the mouth of Mst. Shanti by his hands so that she may not raise any hue and cry. She was weeping at that time and the accused was fully drunk. They then brought both of them to the Police Station. This report lodged at Police Station Kotwali has been marked Ex. P. 1. The site inspection memo has been marked Ex P2-A and the site plan has been marked Ex. P.2 The girl was examined on the request of the Police and her examination report has been marked Ex.P.4. whereas the medical examination report of the accused has been marked Ex. P.5. The Khes (Chadder) on which they were sleeping has also been seized vide memo Ex.P.6. The accused was arrested vide arrest memo Ex. P. 7. 3. After usual investigation, the case against the accused was challaned in the court of learned Chief Judicial Magistrate, Sriganganagar from where this being a sessions triable offence, the case was committed for trial to the court of learned Sessions Judge, Sri Ganganagar, who in his turn transferred the case for trial to the court of learned Addl. Sessions Judge. Sri Ganganagar. The accused was charged with the offence under s. 376/511 I.P.C. The accused did not plead guilty to the charge and claimed trial whereupon, the prosecution examined in all 8 witnesses in the case. The statement of the accused was recorded under s. 313 Cr.P.C. The accused examined D.W.I Ramchander in his defence. Sessions Judge. Sri Ganganagar. The accused was charged with the offence under s. 376/511 I.P.C. The accused did not plead guilty to the charge and claimed trial whereupon, the prosecution examined in all 8 witnesses in the case. The statement of the accused was recorded under s. 313 Cr.P.C. The accused examined D.W.I Ramchander in his defence. The accused took the plea that this girl was actually habituated to steal the vegetables and fruits from the fruit market. On that day, she tried to steal some oranges from his Redi (business place). He, therefore, gave beating to the girl whereupon the driver with whom, he quarrelled on that very day, alongwith his companions brought him to the Kotwali. After hearing the parties, the learned lower court decided the case as aforesaid. 4. Aggrieved against this judgment, the accused appellant has preferred this appeal. 5. In this case, the prosecution has examined three eye witnesses of the occurrence in addition to the prosecutrix P.W.5. Mst. Shanti. P.W. 5 Mst. Shanti is a girl aged about 11-12 years. She has stated that she went to ease herself and when she was tying the knot of her Salwar, the accused caught hold of his arms and told him that he will give her certain articles in the market and so, she should accompany him. After telling this, he brought her to the Patel Garden and, there, below the stair case, he spread the Khes and later, he put off her Salwar and fell her down on the Khes. She then started crying whereupon, the accused put his hand on her mouth. Later, the accused also untied his Payjama and slept over her. 6. Although he has not been said in so many words in her examination-in-chief but in her cross-examination, she has stated that he also put off his Payjama and when the witnesses came and they flashed the torch, the accused stood from over her which clearly shows that he made her naked and he himself become naked and he was lying over her at the time when the witnesses intervened. This statement of Mst. Shanti is fully corroborated by the testimony of P.W. 2 Rameshwarlal. 7. P.W. 2 Rameshwarlal has stated that he went to the Patel Park to urinate and while urinating, he saw somebody moving under the stair-case. This statement of Mst. Shanti is fully corroborated by the testimony of P.W. 2 Rameshwarlal. 7. P.W. 2 Rameshwarlal has stated that he went to the Patel Park to urinate and while urinating, he saw somebody moving under the stair-case. He then immediately ran out and called P.W. 1 Jagdish and P.W. 8 Mohanlal etc. and when they reached near the stair-case, they found that the accused was lying naked over the naked girl i.e. P.W. 5 Mst Shanti and was trying to commit the rape. When he was pulled up from over Mst. Shanti, he gave out his name as Madanlal then both of them were taken to the Police Station and, there, they were handed over to the Police. He has further stated in his cross-examination that he also heard the noise of weeping while he was urinating and, therefore, he became suspicious. 8. P.W. 1 Jagdish and P.W. 6 Ramjilal have stated that P.W. 2 Rameshwarlal gave them a sign to come there and so they went to the Patel Park and there, they saw accused Madanlal lying over Mst. Shanti and both of them were naked at that time. They then pulled the accused from over Mst. Shanti. A chaddar (Khes) was spread over there and on which the girl was lying naked and over her, the accused was lying naked. The report of the incident was lodged by P.W. 8 Mohanlal and P.W. 1 Jagdish which has been marked Ex. P. 1. This report was lodged before P.W. 3 Tekchand, who was Incharge S. H.O. of the Kotwali within half an hour of the incident and the case under s. 376/511 I.P.C. was registered. 9. P.W. 4 Dr. S.P. Goel has stated that the accused was under the influence of liquor at that time although he was not fully drunk. From this evidence, it is clear that the accused took away Mst. Shanti to the Patel Park. The learned lower court has not believed her testimony regarding the fact that she was forcibly taken away through the market. It appears that she was persuaded to accompany the accused on certain inducements offered to her. From this evidence, it is clear that the accused took away Mst. Shanti to the Patel Park. The learned lower court has not believed her testimony regarding the fact that she was forcibly taken away through the market. It appears that she was persuaded to accompany the accused on certain inducements offered to her. As stated above, at the Patel Park, the accused spread over the Khes and then he untied the Salwar of the girl and made her naked and then he himself put of his Payjama and when the witnesses arrived there, he was lying over her and was trying to commit the rape. 10. Mr. M.L. Garg learned counsel appearing for the accused-appellant has submitted that from the testimony of these witnesses, the offence under s. 354 I.P.C. is made out against the accused but it cannot be held that the accused has made an attempt to commit rape with her. There are four stages of a particular crime, the first is intention, the second is preparation, the third is attempt and the forth is actually commission of the offence. Now, it has to be seen when this preparation ends and the stage of attempting to commit the offence starts. In this respect, we may notice a decision of the Allahabad High Court in the matter of the petition of R. Macerea (ILR. 15(1893)- AH-173), wherein a Division Bench consisting of Knox and Blair, JJ. laid down law as under: "Section 511 of the Indian Penal Code was not meant to cover only the penultimate act towards completion of an offence and not acts precedent, if those acts are done in the course of the attempt to commit the offence, are done with the intent to commit it and done towards its commission. "Whether any given act or series of acts amounts to an attempt of which the law will take notice of merely to preparation is a question of fact in each case." In Abhayanand Mishra Vs. State of Bihar (1) their lordships of the Supreme Court observed as follows:- "The question whether a certain act amounts to an attempt to commit a particular offence is a question of fact dependent on the nature of the offence and the steps necessary to take in order to commit it. No exhaustive precise definition of what would amount to an attempt to commit an offence is possible. No exhaustive precise definition of what would amount to an attempt to commit an offence is possible. There is a thin line between the preparation for and an attempt to commit an offence. Undoubtedly, 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 reason beyond his control, he is said to have attempted to commit the offence, Attempt to commit an offence, therefore, 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. A person commits the offence of attempt to commit a particular offence when (i) he intends to commit that particular offence; and (ii) he having made preparations and with the intention to commit the offence does an act towards its commission, such an act need not be penultimate act towards the commission of that offence but must be an act during the course of committing that offence." In State of Raj.V. Parasmal (2) V.P. Tyagi, J. (as he then was) has been pleased to lay down as follows: "When a person intends to commit a particular offence and then conducts himself in such a manner which clearly indicates his desire to translate that intention into action, and in pursuance of such an intention, if he does something which may help him to accomplish that desire, then it can safely be held that he committed an offence of attempt to commit a particular offence. It is not necessary that the act which falls under the definition of an attempt should in all circumstances be a penultimate act towards the commission of that offence. It is not necessary that the act which falls under the definition of an attempt should in all circumstances be a penultimate act towards the commission of that offence. That act may fall at any stage during the series of acts which go to constitute an offence under s.511." A somewhat similar question arose in Malkiat Singh V. State of Punjab (3) wherein their lordships of the Supreme Court have been pleased to lay down as follows: "As a matter of law, a preparation for committing an offence is different from attempt to commit it The preparation consists in devising or arranging the means or measures necessary for the commission of the offence. On the other hand, an attempt to commit the offence is a direct movement towards the commission after preparations are made. In order that a person may be convicted of an attempt to commit a crime, he must be shown first to have had an intention to commit the offence, and secondly to have done an act which constitutes the actus reus of a criminal attempt. The sufficiency of the actus reus is a question of law which had led to difficulty because of the necessity of distinguishing between acts which are merely preparatory to the commission of a crime, and those which are sufficiently proximate to it to amount to an attempt to commit it. If a man buys a box of matches, he cannot be convicted of attempted arson, however, clearly it may be proved that he intended to set fire to a haystack at the time of the purchase. If a man buys a box of matches, he cannot be convicted of attempted arson, however, clearly it may be proved that he intended to set fire to a haystack at the time of the purchase. Nor can he be convicted of this offence if he approaches to stack with the matches in his pocket but if he bends down near the stack and lights a match which he extinguishes on perceiving that he is being watched, he may be guilty of an attempt to burn it," From this ruling, it is clear that carrying of a match box in the pocket even upto the place where the fire has to be lit is merely a case of preparation but once the accused with the intention of litting fire to a haystack approached the stack not only with the match-box in his pocket but he bended down near the stack and lighted a match which he extinguished on perceiving that he is being watched, he is guilty of attempting to commit an offence to burn it. 12. A Division Bench of the Madhya Pradesh High Court in State of M.P.V. Muratsingh Her Prashad (4) observed as under : "An attempt in order to be criminal need not be the penultimate act,.... law if there is present an intention coupled with some overt act in execution thereof. For purposes of criminal liability, it is sufficient if the attempt had gone so far that the crime would have been completed but for extra venous intervention, which frustrated its consummation. The dividing line between mere preparation and an attempt is something thin and has to be decided on the facts of each case. An attempt is a direct movement towards the commission after the preparation has been made. There is a greater degree of determination in attempt as compared with preparation. Act remotely leading to the commission of an offence are not to be considered as attempt to commit it but acts which are immediately connected with it are attempt. The difference between mere preparation and actual attempt to commit an offence consists in the greater degree of determination in attempt as compared with preparation. Act remotely leading to the commission of an offence are not to be considered as attempt to commit it but acts which are immediately connected with it are attempt. The difference between mere preparation and actual attempt to commit an offence consists in the greater degree of determination in attempt as compared with preparation. An attempt to commit an offence is an act, or series of act which leads inevitably to the commission of the offence unless something which the doer of the act or acts neither foresaw nor intended, happens to prevent it." In State of Maharashtra V. Mohd. Yakub (5) a similar question arose for consideration before their lordships of the Supreme Court. R.S. Sarkaria, J (as he then was) speaking for the court while relying on Abahyanand Misharas case (supra) observed as under: "What constitutes an attempt is a mixed question of law and fact, depending largely on the circumstances of the particular case. Attempt" defines a precise and exact definition. Broadly speaking all crimes which consist of the commission of affirmative acts are preceded by some covert or overt conduct which may be divided into three stages. The first stage exists when the culprit first entertains the idea or intention to commit an offence. In the second stage, he makes preparations to commit it. The third stage is reached when the culprit takes deliberate overt steps to commit the offence. Such overt act or step in order to be criminal need not be the penultimate act towards the commission of the offence. It is sufficient if such act or acts were deliberately done and manifest a clear intention to commit the offence aimed, being reasonably proximate to the consummation of the offence". O. Chinnappa Reddy, J. concurring with the judgment of R.S. Sarkaria J. separately observed as under: "In order to constitute an attempt first there must be an intention to commit a particular offence second, some act must have been done which would necessarily have to be done towards the commission of the offence, and third such act must be proximate to the intended result. The measure of proximity is not in relation to time and action but in relation to intention. The measure of proximity is not in relation to time and action but in relation to intention. In other words, the act must reveal with reasonable certainty, in conjunction with other facts and circumstances and not necessarily in isolation an intention, as distinguished from a mere desire or object to commit the particular offence though the act by itself may be merely suggestive or indicative of such intention but, that it must be that is, it must be indicative or suggestive of the intention. In the instant case, the fact that the truck was driven upto a lonely creek from where the silver could be transferred into a sea-foring vessel was suggestive or indicative though not conclusive that the accused wanted to export the silver. It might have been open to the accused to plead that the silver was not to be exported but only to be transported in the course on intercostal trade. But, the circumstances that all this was done in a clandestine fashion, at dead of night, revealed with reasonable certainty, the intention of the accused that the silver was to be exported. 13. A bare perusal of all the above quoted authorities reveals that an attempt to commit an offence has not been defined in any provision of the Penal Code. It is the stage beyond preparation and it precedes the actual commission of the offence. An attempt to commit an offence is not meant to cover only the Penultimate act towards the completion of an offence but it also covers all thos we acts or series of acts which travel beyond the scope of preparation and exhibit a definite intention and determination to commit a particular offence. It need not be an act which just precedes the last act on the happening of which the offence itself is committed but it covers all those acts or series of acts which may precede the penultimate act towards the commission of that offence. In other words these acts or series of acts must be such which exhibits a definite determination to commit a particular offence and it covers all those acts which may constitute an actus reus of a criminal attempt. Such an act must be so suffi-ciently proximate to the actual commission of an offence that but for some intervention or obstruction, which may be natural or otherwise, the accused would definitely have committed that offence. Such an act must be so suffi-ciently proximate to the actual commission of an offence that but for some intervention or obstruction, which may be natural or otherwise, the accused would definitely have committed that offence. 14. In this case, the accused has not only untied the Salwar of the girl but he has put off his Payjama also. He spread his Khes on the ground and closed her mouth in order to stop her from crying and slept over her in order to commit rape on her. Mst. Shanti has stated that when the witnesses arrived, the accused stood up from over her whereas the eye witnesses have stated that they pulled the accused from over Mst. Shanti i.e. he was pulled while he was sleeping naked below the waist. This shows a determined intention on his part to commit rape on her and if the witnesses have not intervened, he would certainly have committed rape on her and, therefore, all these series of acts performed by the accused with a clear cut, definite and determined intention to commit rape on the girl clearly amounted to an attempt to commit rape on Mst. Shanti. 15. If the girl is embraced or she is kissed against her will or she is exposed to some other indecent acts, it amounts to an offence under s. 354 I.P.C. but if the girl is made naked, she is fallen on the ground and the accused lies on her naked and tries to commit the rape on her, I am convinced that all these series of the acts committed by the accused cannot be explained on any other hypothesis then the one that he attempted to commit the rape on that her. If the witnesses had not intervened, he would have committed rape with her. I am not inclined to agree with the submission of Mr. Garg that if on account of the intervention of the witnesses, the accused was not able to make an attempt to penetrate his penis inside the vagina of the girl, the accused cannot be held guilty of the offence under s. 376/511 IPC. 16. Mr M.L. Garg, learned counsel appearing for the accused-appellant has drawn my attention to a decision of the Madhya Pradesh High Court in State vs. Babulal (6). In that case, a ruling of the Bombay High Court in Ahmed Asalt Mirkhan (Cr. 16. Mr M.L. Garg, learned counsel appearing for the accused-appellant has drawn my attention to a decision of the Madhya Pradesh High Court in State vs. Babulal (6). In that case, a ruling of the Bombay High Court in Ahmed Asalt Mirkhan (Cr. Appeal No. 161 of 1980, decided on 12.6 1980 was referred to by the Court for learned author Ratanlals Law of Crimes-Page-922). In Ahmed Asart Mirkhans case (supra), the complainant, a milkman aged 12 or 13 years who was hawking milk entered the accuseds house to deliver milk. The d sot up from the bed on which he was lying and chained the door from inside. He then removed his clothes and the girls petticoat, picked her up and laid her on the bed and set on her chest. He put his hand over her mouth to prevent her crying and placed his private parts against her. There was no penetration. The girl struggled and cried and so, the accused desisted and she got up and unchained the door and went out. In these circumstances, it was held that the accused was not guilty of attempt to commit rape but of indecent assault Ahmed Asarat Mirkhans case (supra) has not even been relied on by the Madhya Pradesh High Court in State vs. Babulal (supra). In State v. Babulal (supra) the accused made the girl naked but he did not expose nor attempted to expose his private parts and, therefore, it was held that it was not a case of attempt to commit rape but it was one covered under s. 354 I.P.C. 17. As stated above, in the instant case, the accused made the girl naked and after that not only exposed his private parts to her but he slept over the girl which showed his strong determination to commit rape with her and, therefore even as per State V. Babulal (supra), the accused can safely be held guilty of the offence under s. 376/511 I.P.C. 18. Mr MX. Garg, learned counsel for the accused-appellant has further drawn my attention to a decision of the Punjab Chief Court reported in Nuna V. Emperor (7) wherein the accused took off a girls clothes, threw her on the ground and then set down beside her. He said nothing to her nor did he do anything more to her. Mr MX. Garg, learned counsel for the accused-appellant has further drawn my attention to a decision of the Punjab Chief Court reported in Nuna V. Emperor (7) wherein the accused took off a girls clothes, threw her on the ground and then set down beside her. He said nothing to her nor did he do anything more to her. In those circumstances, it was held that the accused has committed an offence under s. 354 I.P.C. and he was not guilty of an attempt to commit rape. In the case before us, after making the girl naked, and after falling her down, the accused slept over the girl naked and, therefore, the facts of Nunas case (supra) cannot be applied to the facts of the case in hand. 19. Mst. Shanti may be a child witness and to some extent, she may be a consenting party but looking to the age, she could not have given any valid consent. Moreover, her testimony is fully corroborated by the testimony of P.W. 1 Jagdish, P.W.2 Rameshwarlal and PW 6 Ramjilal and therefore, it cannot be held to be a case based on the uncorroborated testimony of the prosecutrix. In this case, although the girl may be a willing party but looking to her age, she could not have given any valid legal consent. 20. Mr. Mathur, learned Public Prosecutor appearing for the State has drawn my attention to a decision of Lahore High Court reported in Mahraj Din. V. Emperor (8) wherein a lad of 18 years was convicted of an attempt to commit rape on a female child of 5-1/2 years. The child stripped of her trousers was found seated on the naked thighs of the accused but there was no bleeding from her private parts with the exception of fresh redness at the entrance to the vagina. The girl bore no other mark of injury and her hymen was intact. She also did not cry out. In those circumstances, it was held that this was not merely an indecent assault by the accused but that he attempted, though unsuccessfully to effect penetration and hence the offence was an attempt to commit rape. 21. In Kishansingh V. Emperor (9) accused Kishansingh took advantage of the absence of his neighbour and occupancy tenant Gangu and he stepped across from his own roof to that of Gangu where Mst. 21. In Kishansingh V. Emperor (9) accused Kishansingh took advantage of the absence of his neighbour and occupancy tenant Gangu and he stepped across from his own roof to that of Gangu where Mst. Jaiker, the neighbours daughter was lying unprotected on her charpoye. This was at night. He caught hold of the girl got on to the chorpoy with her, undid the string of her payajama and was seen struggling with her when Mst. Mooli came up in answer to her daughters cries. He then ran away. In these facts, it was held that the accused has rightly been convicted of the offence under s. 376/511 IPC because he was determined to commit rape with the girl and he was stopped from proceeding further on account of the intervention of the girls mother. The facts of that case are almost applied in para materia with the facts of the case in hand. 22. Looking to the facts and circumstances of this case, I am convinced that it is not a case of outraging the modesty of a girl but it is a case where the accused has actually attempted to commit the rape on Mst. Shanti and, therefore, he has rightly been held guilty of the offence under s. 376/511 I.P.C. and so, the conviction of the accused deserves to be sustained. 23. So far as the sentence is concerned, he has been sentenced to two years rigorous imprisonment. The occurrence has taken place on 19.1.1977 i.e. about more than 9 years have already been elapsed. Looking to these facts and circumstances of this case, I am inclined to take a lenient view regarding the sentence. I, therefore, deem it fit that the ends of justice will be met if the accused is sentenced to one years rigorous imprisonment instead of two years. 24. In the result, this appeal is partly accepted and the conviction of the accused appellant Madanlal under s. 376/511 I.P.C. is maintained and instead of two years rigorous imprisonment he is sentenced one years rigorous imprisonment together with a fine of Rs 200/-. If he fails to deposit the amount of fine, he shall further undergo one months rigorous imprisonment. He is already on bail, his bail bonds are cancelled. He is directed to surrender himself before the learned Addl. Sessions Judge, Sri Ganganagar to serve out the remaining sentence. The learned Addl. If he fails to deposit the amount of fine, he shall further undergo one months rigorous imprisonment. He is already on bail, his bail bonds are cancelled. He is directed to surrender himself before the learned Addl. Sessions Judge, Sri Ganganagar to serve out the remaining sentence. The learned Addl. Sessions Judge, Sri Ganganagar is also directed to effect the arrest of the accused to undergo the remaining sentence imposed against him.