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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. 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.

14. Charge was framed under Section 376(2)(1) of the IPC and after considering the evidence the learned Additional Sessions Judge on finding that offence of rape is not proved and the prosecution has proved offence of attempt to commit rape against the appellant convicted and sentenced him under Section 376 read with Section 511 of the IPC and it appears that there is no appeal by the State and therefore the only aspect which is required to be considered is, whether the conviction of the appellant under Section 376 read with Section 511 of the IPC is proper and sustainable? To prove this offence the prospection has mainly relied upon the evidence of the complainant (PW-1), Sau. Mahajan- Headmistress (PW-4), statement of prosecutrix Exh.31 recorded by PW-4, opinion of PW-4 Exh.32 and the medical evidence of Dr. Pusha Narote (PW-5), ( 23 ) criappeal147.18 final certificate (Exh.42), report of examination of prosecutrix (Exh.43) issued by the said Doctor.

24. To draw the aforesaid conclusion, I also rely on the decision in the -case of Baburao s/o Govinda Kumoti Vs. State of Maharashtra, 2019 All MR (Cri) 310. As per the facts of the said case the victim aged 17 years was asked to remove her cloths by the appellant/accused. The accused too removed his clothes and demanded sexual favour. The victim refused to oblige and attempted to raise an alarm. The accused threatened to kill her with an iron bar. The accused made the victim lie down on the floor and subjected her to forcible sexual intercourse. The evidence on record shows that the accused and the victim were seen lying together naked. In paragraph 8 of the said decision it was observed that the pivotal question is whether the accused can be convicted for attempt to rape under Section 376 read with Section ( 39 ) criappeal147.18 final 511 of the IPC. It is proved beyond reasonable doubt, that the accused did outrage the modesty of the victim and Section 354 of the IPC is clearly attracted. However, the evidence on record is not sufficient to prove that the accused crossed the line between preparation and attempt. It is well settled that every offence has four facets. The first is intention, the second is preparation, the third is attempt and fourth is the completion of the offence if the attempt is successful. The intention of the accused, in the present case, may be vile. The fact that he asked the victim to undress and that he too undressed and both were found naked when the door was forcibly opened is suggestive at the most the preparation. However, it is difficult to record a finding that the accused did any overt act towards commission of the offence and thereby crossed the line between preparation and attempt. The appeal against conviction of the appellant was partly allowed and appellant/accused was acquitted of the offence punishable under Section 376 read with ( 40 ) criappeal147.18 final Section 511 of the IPC and Section 4 read with Section 17 of the Protection of Children from Sexual Offences Act (POCSO) Act. However, the accused was convicted for offence punishable under Section 354 of the IPC and was sentenced to suffer rigorous imprisonment for three years.

25. For the reasons discussed above, I hold that the prosecution has failed to prove offence under Section 376 read with Section 511 of the IPC against the appellant beyond reasonable doubt and the offence which is proved beyond doubt against the appellant is of outraging modesty of the prosecutrix punishable under Section 354 of the IPC. The decision in the case of Tukaram Govind Yadav (Supra) relied upon by the learned counsel for the appellant is squarely applicable to the present case. Therefore, conviction and sentence recorded by the Additional Sessions Judge against the appellant for the offence under Section 376 read with Section 511 of the IPC on the basis of incriminating evidence referred in paragraph ( 41 ) criappeal147.18 final No.24 of the impugned judgment is not sustainable. In paragraph 24 the learned Additional Sessions Judge observed that the appellant was absconding from date of incident i.e. 03.01.2014 till 08.06.2015 and he has not offered any explanation about his absence from village and the complainant (PW-1) noticed the appellant lying on the body of the prosecutrix and FIR was promptly lodged and therefore offence of attempt to commit rape has been proved against the appellant. It is true that the appellant has not offered explanation about his absence from the village for the period mentioned above, FIR was promptly lodged and PW-1 was eye witness to the incident and she noticed appellant lying on the person of the prosecutrix, but when as discussed earlier the prosecution has not established any overt act of the appellant towards the commission of the offence of rape the above referred incriminating evidence against the appellant is not sufficient to attract offence under Section 376 read with Section 511 of the IPC against the appellant. Therefore ( 42 ) criappeal147.18 final conviction and sentence recorded against the appellant for the offence under Section 376 read with Section 511 of the IPC being unsustainable is liable to be set aside and appellant is to be acquitted of the said offence. However the appellant can be convicted for offence under Section 354 of the IPC even in the absence of charge under Section 354 of the IPC as this offence being minor offence to offence under Section 376(2)(1) of the IPC under which charge was framed, in view of the provisions under Section 222 of the Code of Criminal Procedure, by allowing the appeal partly.