JUDGMENT 1. This is jail appeal filed by the convict-appellant against the judgment and order of sentence dated 24.7.1996 passed by the learned Sessions Judge, Rajsamand in Sessions Case no. 140/95 thereby convicting the accused- appellant under section 376 r/w Sections 511 & 324, IPC and imposing a sentence of seven years' R.I. and a fine of Rs. 1,000/-, in default of payment of fine, six months' R.I. under the first count and a sentence of two years' R.I. and a fine of Rs. 500/- and, in default of payment of fine, three months' R.I. under second count. Both the substantive sentences were also ordered to run concurrently. It was further ordered that in case of realisation of amount of fine so imposed, a sum of Rs. 1,500 / - was to be paid to the prosecutrix Smt. Laxmi. 2. Briefly stated, the prosecution story giving rise to this appeal is as follows:- PW 8 Smt. Laxmi is wife of PW 9 Mangu, PW 1 Smt. Kamala is wife of PW 7 Sohan Lal. Both Mangu and Sohan Lal are real brothers. The residential houses of Sohan Lal as well as Mangu are situated at a little distance from each other in the Village Pitambpura. On 26.6.1995, PW 9 Mangu left his house to fetch bricks in a tractor. He could not return to his house in the following night intervening 26.6.1995 and 27.6.1995. His wife PW 8 Smt. Laxmi was alone at her house. The parents of Mangu had also gone to some other village. In his absence, on 26.6.1995, the accused, who is distantly related to the sister of mother of Mangu and Sohan Lal, happened to visit house of Mangu. In the night, he was sleeping on a cot in the outer yard of the house of Mangu whereas Smt. Laxmi was sleeping in her room. Since it was hot summer, she did not close the doors from in-side and, so, at about mid-night, the accused entered the room wherein Smt. Laxmi was sleeping on a cot and, after catching her hand by one hand and placing another hand on the mouth of Smt. Laxmi, he attempted to forcibly seduce her to sexual intercourse to which she violently resisted. She cried and attempted to resist the evil design and action of the accused and, as a result, being annoyed, the accused picked up an axe hanging on the wall and he immediately gave a blow of axe from its sharp side on the right side of the face of Smt. Laxmi. Smt. Laxmi bled from the wound caused by the accused. She ran out crying towards the house of PW 7 Sohan Lal. Sohan Lal followed by PW 1 Smt. Kamala, came towards her. Sohan Lal saw the accused fleeing away from the house of Mangu. He left his shoes and T-shirt at the house of Mangu. Smt. Laxmi was taken to her house. Sohan Lal left out to inform Mangu about the incident. He went to the house of PW 2 Gopal who is their brother-in-law but since Mangu was not there he followed by Gopal returned. Gopal also reached the house of Mangu and, meanwhile, Mangu also returned to his house. Smt. Laxmi narrated whole incident to her husband Mangu. Mangu lodged Ex. P/9 written report with Bhanwar Singh, S.H.O., P.S., Deogarh who registered Ex. P/10 FIR and entrusted investigation to PW 5 Ahmed Noor, A.S.I. Ahmed Noor proceeded to the spot and carried out site inspection and prepared Ex. P/3 site-plan. He also took into possession blood stained blouse vide Ex. P/4 besides blood stained and control soils from the place of occurrence. The axe lying at the spot was taken into possession vide Ex. P/5 seizure- memo. The T-shirt and the shoes left by the accused at the place of occurrence were also seized by Ex. P/6 memo. Smt. Laxmi was medically examined by PW 4 Dr. B.L. Malvi and he found a wound caused by a sharp edged weapon like an axe on the right side of the face of Smt. Laxmi and prepared Ex. P/2 M.L.R. 3. After completion of investigation, a charge-sheet under sections 376/511 & 307, IPC was filed in the Court of Civil Judge (J.D.) and Judicial Magistrate, Deogarh who, in turn, committed the case to the Court of Sessions Judge, Rajsamand. The learned Sessions Judge, charged the accused with ,the commission of the said offences to which the accused pleaded not guilty and hence the trial was completed. 4. The learned Sessions Judge, charged the accused with ,the commission of the said offences to which the accused pleaded not guilty and hence the trial was completed. 4. The prosecution examined as many as 9 witnesses besides produced documentary evidence in support of its case while the accused-appellant did not adduce any defence evidence. On being examined under section 313, Cr.P.C., the accused denied the prosecution story and instead took a plea that since Smt. Laxmi owed a sum of Rs. 1,300/- to him, because of animosity he was falsely implicated. 5. After hearing both the sides, the learned trial Judge vide his impugned judgment and order, relying upon the prosecution evidence, held the accused-appellant guilty of commission of offences punishable under section 376/511, IPC but, however, he acquitted accused-appellant of offence punishable under section 307, IPC and, instead, he convicted him u /s. 324, IPC and imposed sentences under both the counts as referred to herein-before. Being aggrieved, the accused-petitioner preferred this appeal. 6. I have heard Shri K.K. Shah, Amicus Curiae, for the accused-appellant as well as the learned P.P. and have also perused the impugned judgment along with the record of the trial Court and considered the same carefully. 7. Before disposing of the contentions raised by the learned Amicus Curiae on behalf of the appellant, it is convenient and proper to summarise the prosecution evidence. 8. PW 8 Smt. Laxmi has stated that she was sleeping in her room while the accused, after taking his meals, was sleeping out-side in the open court-yard. At about 1.00 or 2.00 a.m. in the night, the accused suddenly caught her hand while she was asleep. He placed another hand on her mouth and warned her not to shout and, in the process, the accused also attempted to pull her clothes but she got up and resisted and started towards the house of her husband but the accused picked up an axe hanging on the wall and gave a blow on right side of her face resulting injury and instantaneous bleeding from the wound so caused. While she was crying and heading towards house of PW 7 Sohan Lal, as is also fully corroborated by the statement of Sohan Lal, besides his wife PW 1 Smt. Kamala, the accused immediately, leaving his shoes and the T-shirt there, fled away from there. While she was crying and heading towards house of PW 7 Sohan Lal, as is also fully corroborated by the statement of Sohan Lal, besides his wife PW 1 Smt. Kamala, the accused immediately, leaving his shoes and the T-shirt there, fled away from there. He was also seen fleeing from there by PW 7 Sohan Lai. She further stated that PW 9 Mangu was not present at her house, as are statements of PW 9 Mangu as well as PW 7 Sohan Lal. Sohan Lal immediately went to PW 2 Gopal and narrated this incident to Gopal who also came to the house of Mangu. Gopal also lends support to the statement of Sohan Lal. Mangu also returned to his house in the morning and he was narrated whole story by his wife. He lodged Ex. P/9 written report with Bhanwar Singh who registered Ex. P/10 FIR, as is also stated by PW 5 Ahmed Noor, A.S.I. Ahmed Noor investigated the case and he prepared site plan besides took into possession control and blood stained soils from the place of occurrence and T-shirt and shoes left out by the accused at the scene of occurrence, besides the blood stained blouse of Smt. Laxmi. He prepared Ex. P/4, Ex. P/5 and Ex. P/6 memorandums in proof thereof.PW 4 Dr. B.L. Malvi examined injury of Smt. Laxmi vide Ex. P/2 M.L.R. and opined that the same injury, though simple in nature, was caused by a sharp edged weapon which could also be an axe. 9. As against this, the accused, as above, only alleged that he was implicated falsely because of animosity. He did not allege as to with whom he was inimical. Besides, he has pleaded that Smt. Laxmi owed a sum of Rs. 1,300/- to him whereas he neither asked or confronted Smt. Laxmi with this fact as to whether she was indebted to the accused or not. Similarly, he did not put this suggestion to PW 9 Mangu as well. Besides, he also did not suggest to either Smt. Laxmi or PW 9 Mangu, PW 7 Sohan Lal and PW 1 Smt. Kamala as well that he had animosity with either of them. Similarly, he did not put this suggestion to PW 9 Mangu as well. Besides, he also did not suggest to either Smt. Laxmi or PW 9 Mangu, PW 7 Sohan Lal and PW 1 Smt. Kamala as well that he had animosity with either of them. As a result, the defence so advanced being belated and in absence of any proof, being an after thought, is found to be wholly false and untenable which also did not find favour with the learned trial Judge. 10. Now, as regards the day, time and place of occurrence, there is no doubt about it. The identity of the accused is also not a subject matter of challenge. 11. PW 8 Smt. Laxmi, as supported by PW 1 Smt. Kamala, has proved that the appellant, being distantly related from the side of her in-laws', in absence of PW 9 Mangu, her husband who had gone out to fetch bricks on a tractor, stayed in her house on the fateful night. At about mid-night, the appellant surreptitiously entered her room and he caught her hand by one hand, while he kept his another hand on her mouth warning her not to shout or cry. She resisted it. He also attempted to remove her clothes but without any success. She got up and started to go to the house of PW 7 Sohan Lal, situated nearby and, meanwhile, the appellant picked up an axe hanging on the wall and inflicted its blow from its sharp edged side on the right side of the face resulting in an injury below the ear as a result of which it started bleeding. She cried which attracted appearance of PW 7 Sohan Lal followed by his wife PW 1 Smt. Kamala. They met her on the way to their house. Meanwhile, the accused made good his escape from there who was also seen running from the scene of occurrence. He also left his shoes and 'Baniyan' (under garment) whereat he was sleeping, in the open court yard of the house of PW 9 Mangu before the incident, which were taken into possession by PW 5 Ahmed Noor at the time of site inspection. PW 4 Dr. Malvi has proved the injury vide Ex. P/2 M.L.R. found on the person of Smt. Laxmi, caused by a sharp weapon like an axe. PW 4 Dr. Malvi has proved the injury vide Ex. P/2 M.L.R. found on the person of Smt. Laxmi, caused by a sharp weapon like an axe. It was simple in nature.Besides, PW 7 Sohan Lal narrated this incident to PW 2 Gopal, brother-in-law of PW 9 Mangu who also, followed by PW 9 Mangu, reached the house of Mangu whereat Smt. Laxmi was lying in an injured condition who, as is the statement of PW 9 Mangu and so also mentioned in Ex. P/9 report, narrated the incident to Mangu resulting in lodging of Ex. P/9 report on which Ex. P/10 FIR was registered. 12. On consideration of the nature of medical evidence, the nature of injury being simple and Smt. Laxmi not having been found to be unconscious or semi-unconscious, keeping in view, the further statements of PW 7 Sohan Lal, PW 1 Smt. Kamala and PW 9 Mangu, the casual statement of Smt. Laxmi, apparently, by way of an exaggeration, that she regained consciousness after four days and then only she narrated this incident to PW 9 Mangu is of no consequence. This can be ignored in view of the overwhelming evidence of the prosecution, as above, on the face of defence suggesting that a scuffle ensued and Smt. Laxmi, falling on the edge of the axe, got herself injured, it is doubtless to sustain the findings of the trial Court that it was the accused who wanted to sexually assault Smt. Laxmi and facing a stiff resistance against the same, he picked up an axe from there and intentionally hurt Smt. Laxmi with the same before fleeing away from the scene of occurrence resulting in Simple injury. This conclusion cannot be challenged from the side of the appellant. 13. Therefore, as also contended by the learned Amicus Curiae, the only bone of contention is whether the learned trial Judge rightly held the appellant guilty of commission of an offence punishable u /s. 376/511, IPC as well instead of under section 354 IPC. 14. The learned Amicus Curiae has contended that even on the facts found by the trial Court, the act of the appellant did not fall within the definition of attempt to commit sexual intercourse amounting to rape as defined under section 375, IPC and, instead, an offence punishable under section 354, IPC, also is made out. 14. The learned Amicus Curiae has contended that even on the facts found by the trial Court, the act of the appellant did not fall within the definition of attempt to commit sexual intercourse amounting to rape as defined under section 375, IPC and, instead, an offence punishable under section 354, IPC, also is made out. The learned P.P. has mainly countered it on the ground that in the dead of night, finding the prosecutrix Smt. Laxmi alone in her bed-room, in absence of her husband, the appellant entered the room while she was asleep and caught her hand, placing another hand on her mouth to disable from shouting for help and also unsuccessfully attempted to take off her clothes. That being so, the sole intention and consequential preparation and, lastly, attempt was made to seduce Smt. Laxmi to sexual intercourse. However, she resisted and got freed herself from the clutches of the appellant and, before, she could escape, crying for help, the appellant, out of sheer disgust and frustration picked up an axe and hurt Smt. Laxmi and took to his heals. Therefore, the act of attempt to commit sexual intercourse amounting to rape was complete. 15. The Hon'ble Apex Court in Abbayanand v. State of Bihar, AIR 1961 SC 1698 in a case of attempted cheating, while explaining the word attempt vis-a-vis the intention and preparation observed in paras 11 and 16 respectively of the judgment:- "11. Another contention for the appellant is that the facts proved do not go beyond the stage of preparation for the commission of the offence of 'cheating' and do not make out the offence of attempting to cheat. 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 reasons 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. 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. This is clear from from the general expression 'attempt to commit an offence' and is exactly what the provisions of Section 511, IPC require. The relevant portion of Section 511, IPC is:- "Whoever attempts to commit an offence punishable by this Code . . 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 punishment of such attempt, be punished . These provisions require that it is only when one, firstly, attempts to commit an offence and, secondly, in such attempt, does any act towards the commission of the offence, that he is punishable for that attempt to commit the offence. It follows, therefore, that the act which would make the culprit's attempt to commit an offence punishable, must be an act which, by itself or in combination with the other acts, leads to the commission of the offence. 26. We may summarise our views about the construction of Section 511, IPC, thus 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 preparation 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 Rameshwar v. State of Haryana, 1984 Cr.L.J. (P&H) , almost on similar facts in which the accused entered the house of a lady, caught hold of her and tried to open the string of her `salwar' to commit rape upon her to which she resisted, giving a blow of an axe on the upper limb of the accused, it was held as follows in Para 8:- "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. In the present case it has been found that the appellant caught hold of the prosecutrix Smt. Darshan wife of Balbir and tried to open the string of her salwar to commit rape upon her, but she resisted. She picked up a kulhari and gave an injury on the upper limb of the appellant and then the latter made good his escape. The appellant tried to open the string of the salwar worn by the prosecutrix but he failed to do so. There is no other action on the part of the appellant. If the dictum of Justice Patterson in. the above cited case is followed, I cannot see from the prosecution case, that the accused was determined to have sexual intercourse at all events, because as soon as he was given a kulhari blow by the prosecutrix, he ran away. For an offence of an attempt to commit rape, the prosecution must establish that it has gone beyond the stage of preparation. The difference between mere preparation and actual attempt to commit an offence consists chiefly in the greater degree of determination. In the instant case, the appellant did not even expose nor attempted to expose." The learned Judge in Rameshwar's case (supra) cited with approval State of M.P. v. Babulal, AIR 1960 MP 155 in which the accused had caught hold of the girl and assaulted her with a stick. He felled her down on the ground forcibly, snatched her 'lungara' and thereby made her naked. The cries of the girl attracted her uncle who came to the spot. On seeing him the accused ran away. He felled her down on the ground forcibly, snatched her 'lungara' and thereby made her naked. The cries of the girl attracted her uncle who came to the spot. On seeing him the accused ran away. In these circumstances, the Court held that the facts did not show that the accused was determined to have sexual intercourse at all events because as soon as he saw the uncle of the prosecutrix, he ran away. Further he only made the girl naked. He did not expose nor did attempt to expose his private parts. Therefore, it was held that it was not a case of an attempt to commit rape but one under section 354, IPC only. The question is whether it was an attempt to commit rape or a criminal assault, the distinction between the two, being meagre, In Rex v. James Llyod, (1836) 7 C and P. 317: 173 ER 141 , while summing up the charge to Jury, Justice Patterson observed:- "In order to find the prisoner guilty of an assault with intent to commit a rape, you must be satisfied that the prisoner, 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 parts. In Empress v. Shankar, 1980-81 ILR 5 Born. 403 , the accused was charged for an attempt to commit rape. There the observations of M. Melvill, J., which are quoted below, are very pertinent:- We believe that in this country indecent assaults are often magnified into attempts at rape, and even more often into rape itself : and we think that conviction of an attempt at rape ought not to be arrived at unless the Court be satisfied that the conduct of the accused indicated a determination to gratify his passions at all events, and inspite of all resistance." In the instant case, the appellant approached Smt. Laxmi, held her hands in one hand putting his another hand on her mouth warning her not to shout. Besides, if so assumed, he is accused of attempting to pull/remove clothes of the prosecutrix which she is stated to have successfully resisted. She could not be made naked nor did the appellant take off his own clothes. Besides, if so assumed, he is accused of attempting to pull/remove clothes of the prosecutrix which she is stated to have successfully resisted. She could not be made naked nor did the appellant take off his own clothes. He could not fall over the prosecutrix who was resistant and she tried to get freed from the clutches of the appellant and cried before running towards the house of PW 7 Sohan Lal and, as a last act, the appellant inflicted an injury with the axe before he made good his escape from the scene. These facts do not help in arriving at a conclusion that the appellant was determined to have sexual intercourse at all events, because as soon as the prosecutrix got herself freed from the hands of the appellant, she shouted and set on to run towards the house of PW 7 Sohan Lal but, before it, the appellant, as a token of last expression of disgust, anguish and frustration, gave an axe blow on the right side of her face injuring her. He simultaneously made good his escape therefrom. The prosecution failed to establish that the act of the appellant had gone beyond the stage of preparation amounting to an attempt to commit rape. 16. Therefore, the learned Sessions Judge was not right in holding that the appellant was guilty of committing an act of attempt to rape, in absence of evidence in this respect, and hence the conviction of the appellant under section 376/511, IPC cannot be sustained. Instead, the appellant is found to be guilty of committing an offence punish,able under section 354, IPC simpliciter. 17. As a result, this appeal succeeds in part.Accordingly, this appeal is partly accepted. The conviction and sentence recorded under section 375 /511,1PC are set aside and, instead, the appellant is convicted under section 354, IPC and a sentence of rigorous imprisonment of 2 years and a fine of Rs. 1,000/- and, in default, 3 months' rigorous imprisonment is imposed. The sentences of imprisonment and fine imposed under section 324, IPC in the impugned judgment, on the appellant are left undisturbed and intact. However, both the substantive sentences shall run concurrently. The order of payment of compensation to the prosecution is affirmed.Appeal Partly allowed. *******