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4. The Trial Court convicted the respondent for the offence under Section 376(2)(f) read with Section 511 IPC though acquitted him under Sections 3(2)(v) of the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, 1989. The respondent was sentenced to undergo rigorous imprisonment of 5 years and fine of Rs.

Page | 3 5000/­.

5. The respondent laid challenge to his conviction before the Principal Bench of Madhya Pradesh High Court and vide impugned judgment dated 08.10.2009, the High Court modified the judgment of the Trial Court; set aside the conviction under Section 376(2)(f) read with Section 511 IPC and convicted the respondent under Section 354 IPC and sentenced him to undergo 2 years of rigorous imprisonment and fine of Rs. 5000/­. The High Court was of the opinion that:

“17. On going through the evidence on record particularly allegations in FIR Ex.P/1, I am of the view that the appellant did not make all efforts to attempt to commit rape with both prosecutrix, he had not gone beyond the stage of preparation and he did not intend to do so at all events. It is well settled principle of law that preparation of any offence cannot be termed as attempt to commit the same offence, I am of the considered view that the strength of evidence on record the offence of indecent assault by the appellant on both the prosecutrix u/s 354 IPC is made out beyond reasonable doubt……… Consequently the appellant is acquitted of charge 376 (2)­(f) read with Section 511 IPC two counts.

The Appellant is convicted u/s 354 of IPC.” Page | 4 [Emphasis applied]

6. The aforestated modification and resultant reduction in sentence are assailed before us at the instance of the Prosecution. CONTENTIONS OF PARTIES:

7. Mr. Mukul Singh, learned Counsel for the State vehemently contended that there are explicit allegations of ‘attempt to commit rape’ against the respondent. Both the prosecutrices have deposed as ‘X’ (PW­1) and ‘Y’ (PW­2) and supported the prosecution case. They unshakably faced the grilling cross­examination and have minutely explained how the diabolic offence was committed. Both the victims have admirably withstood the pressure of a humiliating and unnerving cross­examination. Their depositions have been duly corroborated by ‘Z’ (PW­8)—a chance witness of the circumstances. He urged that the Trial Court had rightly convicted the respondent for the commission of offence under Section 376 (2)(f) read with Section 511 IPC which has been unjustifiably modified by the High Court overlooking the soul of the Statute or the settled principles attracted to the facts and circumstances of the case. Learned Counsel further argued that the High Court miserably failed to appreciate the ingredients of ‘attempt’ to commit rape and has lightened it as a case of mere ‘preparation’ Page | 5 in a cavalier and insensitive manner.

17. Even prior thereto, this Court in Madan Lal vs. State of J&K2 opined that the degree of the act of an accused is notably decisive to differentiate between ‘preparation’ and ‘attempt’ to commit rape. It was held thus:

“12. The difference between preparation and an attempt to commit an offence consists chiefly in the greater degree of determination and what is (1997) 7 SCC 677 Page | 12 necessary to prove for an offence of an attempt to commit rape has been committed is that the accused has gone beyond the stage of preparation. If an accused strips a girl naked and then making her lie flat on the ground undresses himself and then forcibly rubs his erected penis on the private parts of the girl but fails to penetrate the same into the vagina and on such rubbing ejaculates himself then it is difficult for us to hold that it was a case of merely assault under Section 354 IPC and not an attempt to commit rape under Section 376 read with Section 511 IPC.