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7. I have heard the learned counsel for the parties and perused the record.

8. The learned counsel for the accused appellant urged before me that the trial Court has committed serious error of law in convicting the accused for the offence under Section 376 read with Section 511 of IPC even when it acquitted the accused of the offence under Section 376 IPC. The contention of the learned counsel for the accused appellant is that since no charge under Section 376 read with Section 511 IPC was framed against the accused appellant and once the trial Court came to the conclusion that offence under Section 376 has not been proved, it ought to have acquitted the accused and could not have convicted the accused for the offence under Section 376 read with Section 511 IPC. The learned counsel also submitted that the statement of prosecutrix Satwaleela suffers from material contradictiongs and is not believable. According to the learned counsel, the accused appellant has been falsely implicated and therefore, the conviction and sentence awarded by the trial Court deserves to be set aside by this Court in appeal.

13. Coming to the first argument of the learned counsel for the appellant, first that once the trial Court acquitted the accused appellant for the offence under Section 376 IPC, in the absence of any charge under Section 376 read with Section 511 IPC, the trial Court ought to have acquitted the accused and could not have convicted the accused for the offence under Section 376 read with Section 511 IPC, it may be observed that this argument of the learned counsel is not having any merit. Section 222(3) of the Code of Criminal Procedure provides that when a person is charged with an offence, he may be convicted of an attempt to commit such offence, although the attempt is not separately charged. This means that if the main offence is not held to be proved and attempt to commit the main offence is proved by the evidence on record, it is not impermissible to the Court to convict the accused on the basis of the said evidence of an attempt to commit main offence, even though no separate charge for attempt to commit the offence has been framed. When the accused is charged of the main offence, he is well aware of the allegations and accusations against him relating to that offence, but if during the trial, evidence is wanting or lacking to convict the accused for the main offence, but the said evidence is sufficient to convict the accused for an attempt of that main offence, by virtue of sub-section (3) of Section 222, even in the absence of the separate charge, the Court is empowered to convict the accused for the attempt to commit the main offence. Such procedure cannot be said to cause any prejudice to the accused. The charge of attempt to commit an offence is implict in the charge of main offence and it is not open to the accused to raise grievance that since he has been acquitted of the main offence charged against him, he cannot be convicted for an offence of an attempt to commit such offence. All the facts relevant to commission of crime of an attempt to commit rape in the present case and the evidence relating to commission of an offence of an attempt to commit rape against accused was known to him and the said evidence and material operating against the accused for an offence to attempt to commit rape were put to the accused in his statement under Section 313 of Code of Criminal Procedure and for this reason also, it cannot be said that any prejudice has been caused to the accused by not framing separate charge under Section 511 of the Indian Penal Code. In this view of the matter, non-framing of charge by prosecution under Section 376 read with Section 511 IPC was immaterial and of no consequence. When the appellant was already charged for the offence under Section 376 IPC and if the trial Court held that from the evidence which has come on record, it is proved that accused has attempted to commit rape on prosecutrix, it cannot be said that accused could not be convicted for the offence under Section 376 read with Section 511 of IPC. I, therefore, hold that accused could be convicted for the offence under Section 376 read with Section 511 of IPC in the absence of specific charge under these sections when accused was already charged for the offence under Section 376 IPC. Now the question remains whether from the evidence which has come on record, it can be held that the accused has committed an attempt to commit rape on the prosecutrix (P.W. 1).

14. Satvaleela (P.W. 1) has given detailed version of the entire incident. She has testified that on the date of incident at about 10 to 11 a.m. while she was carrying tiffin for her husband to the field, on the way near the bank of tank, the accused came from behind, the caught the portion of her Sari, pulled her, dragged her inside bank of the tank, put her on the ground and removed her Sari from her person. He ran in naked condition to the field of her husband Jaiwantabai (P.W. 2) has stated that on the date of incident while she was going to her field at about 10 to 11 a.m. for collecting fuel wood, she heard some noise and so she looked around. She saw the accused and Sari was in his hand. She asked accused who was he and on that accused went back. When she started going back by the bank of the tank, she met Shantabai (P.W. 3). She has also stated that when they came on the spot, she found Sari lying there and Satvaleela (P.W. 1) was wearing Lungi. Similarly Shantabai (P.W. 3) has also made her statement to that effect. Confronted with her police statement, portion 'A', she admitted that the prosecutrix told her that her Sari was completly removed from her person. Maroti (P.W. 9) has also in his deposition stated that he saw prosecutrix Satvaleela running in a naked condition to the field of her husband. Presence of Jaiwantabai (P.W. 2) and Shantabai (P.W. 3) to the place stated by them in their deposition does not appear to be improbable. In the statement of Satvaleela (P.W. 1) prosecutrix to the effect that while she was carrying tiffin of her husband to his field at the bank of tank, the accused came from behind, caught the portion of her Sari, dragged her inside the bank of the tank, put her on the ground and removed her Sari from her person. It is seen from her medical examination that there were number of nail scratches found in between both breast area, over breast area, over cheek right side from right angle of mouth and over right clavical region and also that her blouse was matted with soil and backside matted with Chikhal (mud). The testimony of prosecutrix Satvaleela (P.W. 1) to that extent is believable and duly corroborated by the medical evidence as well as the testimony of Jaiwantabai (P.W. 2), Shantabai (P.W. 3) and Maroti (P.W. 9). Minor contradictions pointed out by the defence are not material and does not make the testimony of these witnesses unbelievable to that extent. I, therefore, find myself in full agreement with the reasons given by the trial Court that the accused attempted to commit rape on prosecutrix Satvaleela (P.W. 1), and the conviction of the accused for the said offence under Section 376 read with Section 511 IPC deserves to be maintained and does not call for any interference in this appeal. Conviction of the accused appellant, therefore, for the offence under Section 376 read with Section 511 IPC for attempting to commit rape on prosecutrix Satvaleela (P.W. 1) is upheld.

15. Adverting now to sentence, it may be observed that the offence of rape having not been found proved and accused having been held guilty for the offence of Section 376 read with Section 511 IPC, in my view, interest of justice will be met if the sentence of rigorous imprisonment for five years awarded by the trial Court is reduced to three years and which I hereby reduce.

16. In view of the foregoing discussion, this Criminal Appeal is partly allowed. Conviction of the accused appellant for the offence under Section 376 read with Section 511 of IPC passed by Additional Sessions Judge, Chandrapur in its judgment dated 28-8-1991 in Sessions Case No. 80/88 State of Maharashtra v. Kishor Raghunath Shrirame is maintained. However, sentence awarded by the said Court to the accused appellant is reduced to three years rigorous imprisonment. Sentence of fine awarded by the trial Court is maintained. Bail bonds furnished by the accused are cancelled and he is directed to surrender forthwith to the authorities concerned to serve out the remaining sentence. Order accordingly.