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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.

Significantly, the evidence of the prosecutrix and the doctor does not specifically refer to penetration which is sine qua non for the offence of rape.

13. There is no material to show that the accused were determined to have sexual intercourse in all events. In the aforesaid background, the offence cannot be said to be an attempt to commit rape to attract culpability under Section 376/511 IPC. But the case is certainly one of indecent assault upon a woman. Essential ingredients of the offence punishable under Section 354 IPC are that the person assaulted must be a woman, and the accused must have used criminal force on her ( 19 ) criappeal147.18 final intending thereby to outrage her modesty. What constitutes an outrage to female modesty is nowhere defined. The essence of a woman's modesty is her sex. The culpable intention of the accused is the crux of the matter. The reaction of the woman is very relevant, but its absence is not always decisive. Modesty in this Section is an attribute associated with female human beings as a class. It is a virtue which attaches to a female owing to her sex. The act of pulling a woman, removing her dress coupled with a request for sexual intercourse, is such as would be an outrage to the modesty of a woman, and knowledge, that modesty is likely to be outraged, is sufficient to constitute the offence without any deliberate intention having such outrage alone for its object. As indicated above, the word "modesty" is not defined in IPC.

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.

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.