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G.P. MITTAL, J.

1. The State in Criminal Appeal No.813/2011 and the Appellant ( hereafter "Pankaj Chaudhary") in Criminal Appeal No.993/2009 impugn the judgment dated 12.11.2009 and the order on sentence dated 16.11.2009 whereby the latter, (i.e Pankaj Chaudhary) was convicted for the offence punishable under Sections 376 and 377 read with Section 511 Indian Penal Code (IPC). The Appellant was further convicted for the offence punishable under Section 506 IPC. He was awarded various terms of imprisonment for different offences.

10. The Appellant examined DW-1 Rich Pal and DW-2 Afroz Alam in support of the defence version. The Trial Court believed the prosecution version, found the prosecutrix to be reliable and convicted the Appellant for the offence punishable under Section 376/377 read with Section 511 IPC and under Section 506 IPC.

11. While convicting the Appellant for attempt instead of substantive offence, the Trail Court held thus:-

20. In Raju Pandurang Mahale v. State of Maharashtra & Anr., 2004 (4) SCC 371, the Supreme Court very vividly brought out the distinction between an attempt to commit an offence and preparation. The Supreme Court observed:-

"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 he 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. 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."

25. In view of the above discussion, the Appeal filed by the State has to fail and the Appeal preferred by the Appellant has to be partly allowed. The Appellant‟s conviction under Section 376/511 and 377/511 IPC is set aside, instead, he is convicted for the offence punishable under Section 354 IPC. He is sentenced to undergo Rigorous Imprisonment for two years and to pay fine of Rs. 2,000/- or in default of payment of fine to undergo further RI for three months. The conviction and sentence under Section 506 IPC needs no interference, the same is accordingly maintained. It goes without saying that the Appellant shall be given benefit under Section 428 Cr.P.C.