S.S. Dewan, J.
1. Is appeal is directed against an order of the learned Additional Sessions Judge, Sonepat. convicting the appellant under Sections 376/511 and 450. Penal Code, and sentencing him to 2 years rigorous imprisonment and a fine of Rs. 100/- under the first count and to 6 months rigorous imprisonment and a fine of Rs. 100/- under the second count with the direction that the substantive sentences so awarded to him shall run concurrently.
2. The prosecution case against the appellant is as under:
On 14th April. 1980. at about midday, Rameshwnr accused entered the house of Balbir, in his neighbourhood and caught hold of his wife Smt. Darshan and tried to open the string of her salwar to commit rape upon her. but she resisted. She picked up a kulhari, which was lying nearby and gave an injury on the upper limb of Rameshwar, The accused then made good his escape, Lakhi Ram saw the accused running away from the house of Balbir. Par-bhu. father-in-law of Smt. Darshan was apprised of this incident. The husband of the prosecutrix was stated to be out of station and he returned to the village after several days. A panehayat was convened and the father of the accused wanted time to produce his son and to apologize before the panehayat, but on his failure to do so. a case was registered at Police Station Gohama on the statement of Smt. Darshan, which is Exhibit P.C. Sub-Inspector Niranian Dev. P.W. 9. went to the spot and prepared its visual plan, Exhibit P.H. He also took into possession a pair of chappals and kulhari, produced by Smt. Darshan. The accused got himself admitted in Willington Hospital, New Delhi, on 14-4-1980. Sub-Inspector Sat Pal. P.W. 10, of Police Station Mandir Marg. New Delhi, sent his report. Exhibit P.K. to the Station House Officer, Police Station, Gohana regarding the admission of the accused in the said hospital. The accused was arrested on 22-4-1980. On the same day, he was got medically examined from Dr. R.A. Gupta. P. W. 1. who found the following injuries on his person:
1. There was POP splint which was applied on the left upper limb from mid arm to M. P. joints. Advised to obtain the details from concerned hospital as Stated by the patient where he was examined on 14-4-1980.
2. There was an abrasion on the left knee joint on front 1' x 1/2' crusted and irregular.
The duration of injury No. 2 was stated to be between 3 to 7 days, having been caused by a blunt weapon. After necessary investigation, the accused was challaned and committed.
3. The prosecution examined as many as 10 witnesses. The accused when examined under Section 313. Criminal P. C. denied the prosecution allegations and pleaded false complicity in the case. Kailash Chand Garg. Dr. K.K. Garg and Rati Ram were examined in defence.
4. The trial Court on the basis of the material placed before it convicted and sentenced the accused as indicated above and hence the appeal at his instance.
5. The only point which was pressed upon me by the learned Counsel for the appellant is that on the facts found by the trial Court, the act of the appellant amounts to an offence under Section 354, Penal Code and not under Section 376 read with Section 511, Penal Code. In support of this contention reliance is placed on State of Madhya Pradesh v. Babulal : AIR1960MP155 . There the accused had caught hold of the girl and assaulted her with a stick. He felled her down on the ground forcibly, snatched her lugra 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 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 attempted to expose his private part. Therefore, it was held that it was not a case of an attempt to commit rape but one under Section 354, Penal Code.
6. Admittedly from the facts stated above, it is clear that it is not an offence of rape. The question is whether it was an attempt to commit rape or a criminal assault. The distinction between the two is sometimes very meagre. In Rex v. James Lloyd (1836) 7 C and P 317 : 173 ER 141, while summing up the charge to the 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 part.
7. In Empress v. Shankar (1880-81) ILR 5 Bom 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 in spite of all resistance.
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 wifs 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 present case, the appellant did not even expose nor attempted to expose his private part. For all these reasons I cannot agree with the learned Additional Sessions Judge that from the evidence on record it was undoubtedly a case of an attempt to commit rape. He is doubtless guilty of committing an offence under Section 354, Penal Code. I, therefore, set aside his conviction and sentence recorded under Section 376/511. Penal Code. However, I convict him under Section 354. Penal Code. The appellant is 20 years of age and he is stated to be a student of B. A. and also appears to be a first offender. I, therefore, sentence him to imprisonment to the period already undergone by him but impose a fine of Rs. 500/- on him. In default of payment of fine, he shall suffer rigorous imprisonment for 6 months. The conviction of the appellant under Section 450. Penal Code, is maintained but his sentence of imprisonment is reduced to the period already undergone by him. The amount of fine if realized, whole of it shall be paid to Smt. Darshan, P. W. The appeal of the appellant is accepted to this extent only.