JUDGMENT Wangdi, J. The Appellant in this Appeal seeks to assail the judgment dated 30-04-2013 passed by the Learned Judge, Fast Track Court, East Sikkim at Gangtok in Sessions Trial Case No.10 of 2013 by which he was convicted and sentenced for offence under Sections 376/511 and 342 of the Indian Penal Code, 1860 (in short the ‘IPC’). 2. The gravamen of the prosecution case is that on 09-01-2011 at about 19.45 hours a telephonic information was received from a plain clothes staff of Namchi Police Station stating that a scream of a girl was heard by a passerby at the Rock Garden, Namchi, South Sikkim. On being reported of this, S.I. Sameer Pradhan, P.W.3 and other staff were deputed to the spot by the O/C, Namchi P.S., P.W.1 who later brought a minor girl, Mingma Laki Sherpa, the victim, and the Appellant/Accused Passang Lepcha along with vehicle bearing No.SK-04/9150 to the Police Station and reported that the girl was found half naked in the vehicle and that the Appellant was a driver of that vehicle who tried to drive away when approached by the police vehicle in which they were travelling. 3. Case under Sections 376/511 IPC was registered against the said Passang Lepcha which was endorsed to P.W.8, S.I. Renuka Chettri, for investigation. 4. Investigation of the case revealed that the victim girl, a student of Phalidara School, South Sikkim, had come to Namchi in the evening of 19-01-2011 to visit her relative at the Namchi Hospital. After meeting him she went in search of a vehicle to return home when she was spotted by the Appellant who offered her to give a lift. When she refused, the Appellant forced her into the vehicle which he was driving and, on the way at the Rock Garden undressed her and tried to rape her. However, she resisted the Appellant with fist and blows and screams for help which was heard by a passerby who informed W/C Puspa Lall Sharma, P.W.4, leading to the information given at the Police Station and the subsequent registration of the case against the Appellant. 5. After investigation, charge-sheet was filed before the Learned Sessions Judge, South and West Sikkim at Namchi, who upon consideration of the materials on record framed charges under Sections 342 and 376/511 IPC against the Appellant. Upon being read out to him, he denied the charges and claimed trial. 6. 5. After investigation, charge-sheet was filed before the Learned Sessions Judge, South and West Sikkim at Namchi, who upon consideration of the materials on record framed charges under Sections 342 and 376/511 IPC against the Appellant. Upon being read out to him, he denied the charges and claimed trial. 6. The case was ultimately heard by the Fast Track Court and the Learned Judge, Fast Track Court upon consideration of the evidence on record, held the Appellant guilty of the charges under Sections 376/511 IPC and accordingly sentenced him to undergo imprisonment for 3½ years and to pay a fine of Rs.1,000/- in default of payment of which he was directed to undergo further imprisonment of one month for offence and, for the offence under Section 342 IPC, imprisonment for six months and a fine of Rs.500/-, in default of which he was directed to undergo imprisonment of fifteen days with both the sentences running concurrently remitting the period of detention already undergone by him in judicial custody. 7 (i). Mr. Jorgay Namka, Learned Advocate, representing the Appellant, chose not to argue on the findings of the Fast Track Court on the facts of the case and limited his submissions only to the nature of the offence against which the Appellant was convicted. (ii) Relying upon the decision of Tika Ram Chettri vs. State of Sikkim : 2010 CRI.L.J. 4025 (Sikkim) he submitted that the facts and circumstances of the case did not call for the Appellant being convicted under Sections 376/511 IPC but ought to have been under Section 354 IPC, i.e., outraging the modesty of a woman. He heavily relied upon the evidence of P.W.5, N/K Kul Bahadur Sunar to state that there was nothing in his evidence to indicate that the girl was half naked with her lower part of her garment removed and, that when the police encountered them, the Appellant and the victim were sitting separately inside the vehicle. In support of his submission he referred to the following evidence of P.W.5, laying emphasis on the underlined portions:- “……………………….….. Inside the said vehicle, the accused and a girl were found. I noticed the girl wearing a dress appearing like a ‘medi’ (half frock) without lower garment. We brought the accused and the victim and handed over them to O/C Namchi Police Station. Cross-examination by Ld. Counsel Shri Lazarus Mukhia for the accused person. Inside the said vehicle, the accused and a girl were found. I noticed the girl wearing a dress appearing like a ‘medi’ (half frock) without lower garment. We brought the accused and the victim and handed over them to O/C Namchi Police Station. Cross-examination by Ld. Counsel Shri Lazarus Mukhia for the accused person. It is true the accused and the victim were sitting separately inside the vehicle. ……………………. …………….….………….” (iii) It is next contended that although it is the case of the prosecution that the investigation of the case had begun on an information received from a passerby, the informant was not at all examined. (iv) Mr. Jorgay further submitted that the case of the Appellant was fully covered by the decision of Tarkeshwar Sahu vs. State of Bihar (now Jharkhand) : (2006) 8 SCC 560 , where on identical facts the Hon’ble Supreme Court had converted the offence under Sections 376/511 IPC to Section 354 IPC. It was prayed that the offence charged against the Appellant be altered to 354 IPC and the sentence reduced commensurately. 8 (i). Mr. Karma Thinlay Namgyal, Learned Additional Public Prosecutor, on the other hand submitted that the evidence of P.W.5 upon which the Learned Defence Counsel has relied, is not the sole evidence. As per him, the evidence of the victim girl herself, who had appeared as P.W.2 read with the evidence of P.W.3, S.I. Sameer Pradhan and P.W.4, W/C Puspa Lall Sharma, clearly made out a case under Sections 376/511 IPC against the Appellant. The portions of the evidence of these witnesses relied upon by the Learned Additional Public Prosecutor are reproduced in seriatim below:- P.W.2 – Mingma Laki Sherpa “I know the accused present in the dock. On 19.01.2011 in the afternoon at about 3 p.m. I came out from my house at Phanidara at went to see my uncle at District Hospital Namchi. After seeing him I came to Jorethang Taxi Stand as my brother was to come from Jorethang in order to go to hospital to see our uncle. At Jorethang Taxi Stand the accused, who is a driver of the taxi Savari asked me as to where I was going. He also told me that he would give a lift in his vehicle to go back home but I declined. At Jorethang Taxi Stand the accused, who is a driver of the taxi Savari asked me as to where I was going. He also told me that he would give a lift in his vehicle to go back home but I declined. As my brother did not come to Taxi Stand I left Taxi Stand to go to hospital again but the accused followed me in his Savari and forced me to board his taxi. The accused, thereafter, took me towards 9th Mile on Jorethang Road, it could be around 5.30 p.m. when we reached 9th Mile. At 9th Mile the accused asked me to come out from the vehicle and accompany him to nearby a place for chatting which I declined. The accused, thereafter, forcibly took me out from the vehicle and dragged me to a nearby placed and forcibly removed my clothes and tried to sexually assault me. I tried to prevent him from doing so by scratching him on his face. The accused thereafter took me to Rock garden at Namchi and there also he closed all the doors to his vehicle and attempted to sexually assault me after undressing me. I started scratching him and also screamed for help, one vehicle came to the place and the accused hurriedly left me. The police personnel came out from the vehicle and apprehended the accused and took him to the police station, I was also taken to the police station from where I was sent to the Namchi Hospital for medical examination.…………………………..” P.W.3 – Sameer Pradhan “That on 19.01.2011 around 1900 hours I was on my duty at Namchi P.S. wherein my O/C P.I. C.B. Basnett informed me that he had received an information about a girl screaming for help near Rock garden, Namchi. On his direction I visited the spot wherein I intercepted one vehicle bearing No:SK-04/9150 which was parked in the middle of the road. I immediately went towards the vehicle and saw one minor girl in a semi-nude condition crying inside the vehicle in the front seat. I immediately apprehended the driver later identified as Passang Lepcha who is present in the dock today. He was on the front seat, his pants were also opened and pulled down to his knees. I immediately went towards the vehicle and saw one minor girl in a semi-nude condition crying inside the vehicle in the front seat. I immediately apprehended the driver later identified as Passang Lepcha who is present in the dock today. He was on the front seat, his pants were also opened and pulled down to his knees. I immediately informed my O/C about the matter over the wireless set and later produce both of them to the P.S. and handed them both over to the Officer-in-charge.” P.W.4 – W/C Puspa Lall Sharma “……………………………………. At about 1910 hours I received a source information stating that a girl was heard screaming from inside a vehicle near the Rock Garden. Accordingly I relayed the source information to the O/C Namchi Police Station.” [underlining mine] (ii) Apart from the above evidence, the Learned Additional Public Prosecutor, also referred to the report of the Medical Officer at the District Hospital, Namchi, Exhibit 7, pertaining to the Appellant by which the following injuries were noted:- “L/E–1) Abrasion 0.5 x 0.2 cm (+) lower lip 2) Scratch mark (+) c bruise (+) ant part of neck over the thyroid cartilage 3) Scratch mark (+) measuring 0.5 x 0.3 (+) lateral aspect (dorsal part) of ® hand. 4) No injuries seen over the private part.” (iii) It is thus submitted that the ingredients required for the offence falling under Sections 342 and 376/511 IPC were fully made out and, therefore, no interference was called for by this Court in the impugned judgment. Relying upon Koppula Venkat Rao vs. State of A.P. : (2004) 3 SCC 602 , it was submitted that the evidence established beyond any reasonable doubt that the Appellant intended to rape the victim and that he would have succeeded had the police not arrived on time. 9 (i). Upon consideration of the submissions made by the Learned Counsel for the respective parties, the records and the evidence, I am inclined to hold that there is no merit in the Appeal for reasons as stated under:- (ii) The evidence of the prosecution witnesses extracted above clearly indicates that the Appellant intended to rape the victim, a minor, taking advantage of her being alone in the late evening of that fateful day. I find consistency and corroboration in the evidence of P.W.1, P.I. Chakra Bahadur Basnett with that of P.W.3, S.I. Sameer Pradhan and P.W.5, Naik Kul Bahadur Sunar who were deployed for enquiry to the place where scream of a girl was heard as reported by W/C Puspa Lall Sharma, P.W.4. The evidence establishes the fact that the Appellant with evil intentions had offered the victim girl, P.W.2, a lift to return home and, on her refusal forcibly pulled her into the vehicle and on the way used force to undress and indeed succeeded in undressing her of her clothes on the lower part of her body. He would have succeeded in his design of committing rape on the girl had the police not intervened. As per the evidence of P.W.3, the Appellant was also found with his pants pulled down to his knees. (iii) The evidence of P.W.2 the victim girl herself clinches the case against the Appellant who is found to have withstood the cross-examination most firmly. (iv) The injuries found on the hand and face of the Appellant as borne out by the medical report, Exhibit 7, corroborates the evidence of the victim P.W.2, that she had resisted the assault by the Appellant by scratching him on his face. (v) The facts in the cases of Tika Ram Chettri (supra) and Tarkeshwar Sahu (supra) relied upon on behalf of the Appellant clearly differ from the facts and circumstances of the present case. (vi) In Tika Ram Chettri (supra) the foundation of the case against the accused is set out in paragraph 1 which reads as under:- “………………………………………….. “Tika Maya Chettri lifted me and forced me to lie down on the bed. He then took out my underwear and also put his hand over my mouth so that I could not shout. He then took out his private part and started rubbing it in between my thighs. He did not, however, put it in my private part. After sometime he left me.” …………………………………………………” From the above, it is evident that the accused did not attempt to commit rape nor did he appear to have the intention to do so. The act at its worst was an indecent assault on the victim falling within the ambit of Section 354 IPC. After sometime he left me.” …………………………………………………” From the above, it is evident that the accused did not attempt to commit rape nor did he appear to have the intention to do so. The act at its worst was an indecent assault on the victim falling within the ambit of Section 354 IPC. (vii) Facts in Tarkeshwar Sahu (supra) the case is even worse for the Appellant as would be evident from paragraph 2 of the judgment which is reproduced below:- “………………………………………… On 18-2-1998, at about 1.30 a.m., Tara Muni Kumari, aged about 12 years, came out of her house to answer the call of nature. The appellant at that time had forcibly taken her to his gumti for committing illicit sexual intercourse with her. The said gumti of the appellant was only few feet away from the house of the prosecutrix. It is alleged that the prosecutrix raised an alarm, and immediately thereafter several persons including PW1 Ram Charan Baitha, the informant and the father of the prosecutrix, Sahdeo Sahu, PW 2; Deonandan Sahu, PW 3 the Sarpanch of the village. Jewalal Sahu, PW 6 came from the adjoining houses and caught the appellant before he could even make any attempt to ravish her. Due to immediate arrival of PW 1 and other co-villagers on hearing hue and cry raised by the prosecutrix, the appellant could not succeed in ravishing her. ………………………………..” As would be evident from the above, the accused was caught immediately after reaching the Gumti with the girl whom he wanted to ravish. However, in the case at hand, there is no denying of the fact that the Appellant had gone much further as revealed from the evidence discussed above. (viii) In Koppula Venkat Rao (supra) relied upon by the Learned Additional Public Prosecutor it has been held as under:- “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. Section 511 is a general provision dealing with attempts to commit offences not made punishable by other specific sections. 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 all attempts to commit offences 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 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 to 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. It differs widely from attempt which is the direct movement towards the commission after preparations are made. 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 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. 10. An attempt to commit an offence is an act, or a series of acts, which leads 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 commission 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 exist. 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 exist. Surrounding circumstances many times throw beacon light on that aspect.” [underlining mine] (ix) Following from the above, the facts and circumstances clearly reveal that had the victim girl not resisted and had the police not arrived on time the act of rape upon her by the Appellant would have been fully consummated. The Appellant is, therefore, undoubtedly guilty of the offences under Sections 376/511 and 342 IPC. 10. Under these circumstances, I find no reason as to why this Court should interfere with the finding of the Fast Track Court. 11. In the result, the Appeal is dismissed. 12. No order as to costs. 13. Let a copy of this judgment along with the original records of the case be transmitted to the Fast Track Court, East and North Sikkim at Gangtok forthwith for its due compliance.