JUDGMENT (Deepak Gupta, J.) - This Appeal is directed against the judgment of the learned Addl. Sessions Judge, Kangra at Dharamshala in Sessions Trial No. 51-II/2005 whereby he has convicted the appellant of having committed the offence of attempt to rape punishable under Section 376 read with Section 511 IPC and sentenced him to five years’ rigorous imprisonment and to pay fine of Rs. 5000/-. In default of payment of fine the accused has been directed to undergo simple imprisonment for a period of one more year. 2.The prosecution story, in brief, is that on 5.6.2005 Smt. Babita Devi alongwith her four children had gone to wash clothes at Goh Nalla at about 11 a.m. The prosecutrix was one of these four children. After washing the clothes she and the children returned to the house. When they returned to the house they found that keys had been left behind at the Nalla and therefore the prosecutrix was sent back to the Nalla to bring the keys. The prosecutrix did not return immediately. She came back after about half an hour. She was crying. She told her mother that one person had caught hold of her and untied the string (nara) of her salwar. He thereafter forced her to lie down in bushes along side the water channel. He put his hand on her mouth and tried to rape her. Luckily for the prosecutrix, two boys Sonu and Monu sons of Raj Kumar appeared at the spot. On seeing them the accused fled away from the spot. According to the prosecution before leaving the spot accused threatened all the children with dire consequences in case they told anyone about the incident. On the date of the incident the husband of the mother returned home late in the evening and therefore FIR Ext. PW-3/A was lodged on the next date. The prosecutrix was got medically examined. Investigation was done and thereafter the challan was filed against the accused. The accused was charged with having committed offence of attempt to rape. The prosecution examined 13 witnesses. Statement of the accused was recorded under Section 313 Cr. P.C. and thereafter the accused was convicted and sentenced as mentioned above. 3.As far as the age of the prosecutrix is concerned there seems to be no doubt with regard to the same. The accused was charged with having committed offence of attempt to rape. The prosecution examined 13 witnesses. Statement of the accused was recorded under Section 313 Cr. P.C. and thereafter the accused was convicted and sentenced as mentioned above. 3.As far as the age of the prosecutrix is concerned there seems to be no doubt with regard to the same. PW-7 Kishori Lal has produced the birth register according to which the date of birth of the prosecutrix is 16.2.1995. The version with regard to the age is also supported by the parents of the prosecutrix and therefore it is apparent that at the time when the incident took place the prosecutrix was less then 11 years of age. 4.The prosecutrix was examined as PW-4. Since she was of tender age questions were put to her to ascertain whether she could differentiate between right or wrong. According to her when she, her mother and brothers returned from Goh-nalla after washing clothes they found that the house was locked and the keys had been left behind. Her mother asked the prosecutrix to go back to the Goh-Nalla to bring the keys. She went back to the Nalla and found the keys and was returning to her house. When she was near the bridge she met the accused Ajay who took her to the bushes. He opened her salwar and made her lie down on the ground. The accused thereafter took off his pants and underwear. He then lay down on top of the prosecutrix. The prosecutrix tried to cry but the accused had closed her mouth with his hands. In the meantime Sonu and Monu came there. As soon as he saw these two boys the accused rose and wore his clothes. According to the prosecutrix Ajay gave a banana to Sonu and threatened all of them not to disclose about this occurrence to any person. She thereafter wore her salwar and came back her house. She informed her mother about the occurrence. In cross examination she has stated that she was examined in hospital. She admits that she had told her mother that the person who abused her was elder to her father. She has admitted that the accused is much younger than her father. She thereafter wore her salwar and came back her house. She informed her mother about the occurrence. In cross examination she has stated that she was examined in hospital. She admits that she had told her mother that the person who abused her was elder to her father. She has admitted that the accused is much younger than her father. She admits that the villagers had gathered in her house on the date of occurrence and her parents had talked to the villagers assembled there and thereafter the matter was reported to the police. She has been confronted with her statement made to the police in which it is not recorded that the accused took off his underwear and pants and she also again wore her salwar. In cross examination she firstly stated that her mother had disclosed the name of the accused to the villagers but later she again stated that the villagers had told the name of accused to her mother. She volunteered that one Vinod had told the name to her mother. She however was emphatic that she knows the accused herself. She also states that she had told the police that the name of the accused had been disclosed to her mother by Vinod Kumar. 5.PW-3 Babita Kumari is the mother of the prosecutrix. According to her when her daughter returned from the Goh-Nalla she told her about the occurrence. One person who was as old as her father had taken off his trousers and the salwar of the prosecutrix and lay down on top of her. In the meantime Sonu and Monu came and the accused fled away. On that date the prosecutrix had not disclosed the name of the accused to her. She further states that the name of the accused was disclosed by the villagers to her. In cross examination she admits that the daughter did not disclose the name of any person on the date of occurrence. She also admits that all the villagers gathered at their house and after discussions and consultations, a report was lodged with the police. 6.Sonu @ Suman Kumar was examined as PW-5. He was declared hostile and cross examined. In cross examination by the prosecution he admitted that his statement was recorded by the police after 2-3 days. She also admits that all the villagers gathered at their house and after discussions and consultations, a report was lodged with the police. 6.Sonu @ Suman Kumar was examined as PW-5. He was declared hostile and cross examined. In cross examination by the prosecution he admitted that his statement was recorded by the police after 2-3 days. He also admitted that the statement had been read over to him and he admitted the same to be correct. He admitted some portions of the statement but denied having made statement portions “B” to “B” and “D” to “D” of the statement. His statement is a bundle of contradictions. On the one hand he denied the suggestion put to him by the prosecution that the moment the accused saw them he got up and started wearing underwear and pants but on the other hand he admits the suggestion that accused had taken off his underwear and pants and was trying to do a wrong act with the prosecutrix. He also admits that the accused had created fear in the area and therefore he (the witness) is not deposing against the accused. In my opinion, it would have been much more appropriate for the Court, keeping in view the young age of this witness, to have first found out from him as to whether he can differentiate between the right or wrong. He should have also tried to make the witness comfortable and confident. The witness when examined was only 13 years. In regard to such a witness it is the duty of the Court to ensure that such a witness is not browbeaten either by the prosecution or by the defence. The Court should also play a positive role in eliciting the truth from such a witness. However, in view of the contradictions of the statement of this witness not much reliance can be placed on the same. 7.PW-10 is the father of the prosecutrix. He returned home on 6.6.2005 when he was informed about the occurrence by his wife and thereafter both went and reported the matter to the police. He also admits that his wife had told him that the prosecutrix had informed her that a person elder than her father had committed the bad act with her. 8.PW-1 Dr. M.K. Rana examined the prosecutrix. He also admits that his wife had told him that the prosecutrix had informed her that a person elder than her father had committed the bad act with her. 8.PW-1 Dr. M.K. Rana examined the prosecutrix. According to him there was no injury on the prosecutrix and no sexual act appeared to have been committed on her. 9.Shri Harish Behal, learned Counsel for the appellant submits that there are various contradictions in the prosecution version. According to the prosecutrix she had disclosed the name to the mother but the mother says that the name was disclosed to her by the villagers on the next day. He also submits that both the mother and father have admitted that the prosecutrix had told the mother that the person who molested her was elder to her father. He contends that the accused was only 22 years whereas the father was 38 years. Further it is urged that the FIR was lodged after consultations and due deliberations. According to him the prosecutrix failed to identify the accused and no reliance can be placed on her statement. Sh Behal has also urged that there is no injury on the person of the prosecutrix and since admittedly the said attempt to rape has taken place in a stony area the version of the prosecutrix cannot be believed. In the alternative he submits that there was no overt act on the part of the accused which would amount to an attempt to rape and at best this was a case of an offence of molestation punishable under Section 354 IPC but the accused could not have been convicted under Section 376 read with Section 511 IPC. 10.the Apex Court in Koppula Venkat Rao v. State of A.P., 2003(3) SCC 602 dealt with the question as to what are the essential ingredients of the offence of attempt to rape. The following observations of the Court are extremely relevant: 8. the plea relating to applicability of Section 376 read with Section 511, IPC needs careful consideration. In every crime, there is first, intention to commit, secondly preparation to commit it, 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 law punishes the person attempting the act. In every crime, there is first, intention to commit, secondly preparation to commit it, 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 law punishes the person attempting the act. Section 511 is a general provision dealing with attempts to commit offences not made punishable by other specific sections. It makes punishable with imprisonment and not only those punishable with death. An attempt is made punishable, because every attempt, although it falls short of success, must create alarm, which by itself is an injury, and the moral guilt of the offender is the same as if he had succeeded. Moral guilt must be united to injury in order to justify punishment. As the injury is not as great as if the act had been committed, only half the punishment is awarded. 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. 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 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 requires. 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 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. Intention is the direction of 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 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. 10. An attempt to commit an offence is an act, or a series or acts, which lead inevitably to the commission of the offence, unless something, which the doer of the act neither foresaw nor intended, happens to prevent this. An attempt may be described to be an act done in part execution of a criminal design, amounting to more than mere preparation, but falling short of actual consummation, and, possessing, except for failure to consummate, all the elements of the substantive crime. In other words, an attempt consists in it the intent to commit a crime, falling short of, its actual commissioner or consummation/completion. It may consequently be defined as that which if not prevented would have resulted in the full consummation of the act attempted. The illustrations given in Section 511 clearly show the legislative intention to make a difference between the cases of a mere preparation and an attempt. 11. In order to find an accused guilty of an attempt with intent to commit a rape, Court has to be satisfied that the accused, 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 part. Indecent assaults are often magnified into attempts at rape. In order to come to a conclusion that the conduct of the accused was indicative of a determination to gratify his passion at all events, and in spite of all resistance, materials must exists. Indecent assaults are often magnified into attempts at rape. In order to come to a conclusion that the conduct of the accused was indicative of a determination to gratify his passion at all events, and in spite of all resistance, materials must exists. Surrounding circumstances many times throw beacon light on that aspect.” 11.The law in also well settled that the conviction in a rape case or even in an attempt to rape case can be based on the sole testimony of the prosecutrix so long as the testimony of the prosecutrix inspires confidence. 12.It is in the light of the aforesaid law laid down by the Apex Court that the evidence has to be considered. 13.In the present case in the light of what I have already discussed above it is not prudent or wise to rely upon the statement of Sonu who was examined as PW-5. Monu who is other alleged eye-witness was not examined. His age is younger to that of Sonu. Therefore, the fate of the entire case hinges around the statement of the prosecutrix and her mother. It would however be pertinent to mention that even the accused has put suggestions to the witnesses admitting his presence on the spot. According to the suggestions put to Sonu by the defence, Sonu had demanded a banana from the accused and the accused had given him a banana without any threat. This suggestion itself shows that the presence of the accused on the spot is not denied. 14.The question which next arises is why the prosecutrix or her family should falsely implicate the accused? There is no material on record to show that there is any enmity between the two sides. The prosecutrix was barely 11 years old. Her statement inspires confidence. True it may be, that there are minor contradictions but while appreciating the evidence of the prosecutrix one must remember that her statement must be examined as that of any small child of tender age. The Court must ensure that she has not been tutored to put up a concocted case. After reading the statement of the prosecutrix, I am convinced that she is telling the truth. Her statement finds corroboration from the statement of the mother. 15.One of the points raised is that according to the prosecutrix the person who committed the offence on her was elder than her father. After reading the statement of the prosecutrix, I am convinced that she is telling the truth. Her statement finds corroboration from the statement of the mother. 15.One of the points raised is that according to the prosecutrix the person who committed the offence on her was elder than her father. Both the parents admit that the prosecutrix told this to the mother. It is true that the accused is younger than the father but one must keep in mind the fact that for a young child undergoing a terrifying and harrowing experience the accused must have appeared to be a demon and therefore in her child like perception she stated that he was elder to her father. The fact that she alongwith her mother had gone to wash clothes has virtually not been tested in cross examination. Similarly, there is no challenge to her testimony that she had gone to Goh-nalla alone to find the keys. The presence of the accused at the spot is not denied. In fact the presence of Sonu and Monu is also not denied. The statement of Sonu, as pointed out above, is quite contradictory. On the one hand he states that the accused has created a fear in the area and that the accused was trying to do bad act with the prosecutrix but on the other hand he denies the same. I think, in my opinion, the Presiding Officer could have played a much better role when this witness was being examined. 16.The contention that a false case has been cooked up after deliberations with the villagers cannot also be accepted. No doubt the mother has stated that the matter was first discussed with the villagers. One has to keep into consideration the fact that the father of the prosecutrix was not present. The matter would have obviously discussed the matter with the co-villagers. In Indian society parents are loathe to file cases where the reputation of their daughters may get spoiled. Therefore, the matter was discussed with the villagers and after the father came back the matter was reported to the police. There is nothing on record to show that any of the villagers had any enmity against the accused or that at the instance of any villager a false case was filed against the accused. Therefore, the matter was discussed with the villagers and after the father came back the matter was reported to the police. There is nothing on record to show that any of the villagers had any enmity against the accused or that at the instance of any villager a false case was filed against the accused. 17.I am of the considered opinion that keeping in view the statement of the prosecutrix and her mother, it stands proved beyond doubt that the incident occurred as narrated by the prosecutrix. 18.The question that next arises is whether the offence made out is an offence under Section 354 or an offence under Section 376 read with Section 511 IPC. Sh. Behal has placed strong reliance on the following judgments: (1) Rameshwar v. State of Haryana, 1984 Cri. L.J. 786, (2) Kandarpa Thakuria v. The State of Assam and others, 1992 Cri. L.J. 3084, (3) Damodar Behera and another v. State of Orissa, 1996 Cri. L.J. 346, and (4) Hari Mohapatra and another, 1996 Cri. L.J. 2952. In my view none of these authorities have any application to the facts of the present case. 19.What amount to attempt to rape has been clearly laid down in Koppula Venkat Rao’s case mentioned supra. The Apex Court has held that an attempt to rape is made punishable because every attempt though it falls short of success must create alarm. First an accused makes preparation for committing an offence and therefore attempts to commit an offence. It is only if he fails due to reasons beyond his control to complete the offence can it be said that he attempted to commit the offence. 20.In the present case, the accused had taken off the salwar of the prosecutrix. He had taken off his own pants and underwear. He was lying naked on top of the prosecutrix. He had covered her mouth with his hands. It was only because of a fortuitous circumstance i.e. Monu and Sonu coming there that the accused did not complete the act which he had started off to commit. While taking this view I am also taking into consideration the fact that the prosecutrix is only about 11 years and the accused is twice her age. There could have been no physical resistance from her side. While taking this view I am also taking into consideration the fact that the prosecutrix is only about 11 years and the accused is twice her age. There could have been no physical resistance from her side. If Sonu and Monu had not suddenly came to the scene of occurrence there was nothing which would have prevented the accused from completing the offence. The sentence imposed is absolutely correct and calls for no interference. Therefore, I am clearly of the opinion that the learned trial Judge has rightly held the accused guilty of having committed the offence of attempt to rape. 21.In view of the above discussion, I find no merit in the appeal which is dismissed. M.R.B. ———————