The main legal point established in the judgment is the distinction between an attempt to commit rape under Section 511 of the Indian Penal Code and the offence of outraging the modesty of a woman under Section 354 of the Indian Penal Code.

Rajesh H. Shukla, J.

1. The present appeal under Section 374(2) of the Code of Criminal Procedure, 1973 filed by the appellant-original accused is directed against the impugned judgment and order rendered in Sessions Case No. 4/2012 by the Sessions Judge, Narmada, Rajpipla dated 13.03.2012 recording conviction and imposing sentence as stated in detail in the impugned judgment and order.

2. The fact of the case briefly summarized are as follows:-

2.1 On 01.10.2011, the complainant-father had lodged a complaint with Sagbara Police Station alleging that minor daughter aged about 6 years had gone to the shop/stall of the accused in the evening at about 06:45 hours to get reel, at that time, the accused is said to have taken the victim inside the shop and had closed the curtain and, thereafter, taken out his penis opening zip and gave it to the victim and got it ejaculated. When one person viz., Shankarbhai came in search of the victim, he found it resulting in verbal altercation, for which, the complaint was lodged being C.R. No. I-36/2011 for the offence under Sections 354 and 342 of the Indian Penal Code. However, report was made for adding Sections376 and 511 of the Indian Penal Code.

2.2 After the investigation was over, the chargesheet for the alleged offences came to be filed, where it was registered as Criminal Case No. 2/2012. However, as the offences were triable by the Court of Sessions, it was committed to the Court of Sessions.

2.3 Thereafter, the Court below proceeded with the trial and recorded the evidence of the prosecution witnesses.

2.4 After recording of the evidence of the prosecution witnesses was over, the Court below recorded further statement of the accused under Section 313 of the Code of Criminal Procedure, 1973.

2.5 After hearing learned APP as well as learned advocate for the defence, the Sessions Judge passed impugned judgment and order recording conviction as stated therein.

3. It is this judgment and order which has been assailed in the present appeal on the grounds stated in the memo of appeal.

4. Heard learned advocate, Shri Pratik Barot for the appellant-accused and learned APP Ms. Hansa Punani for the respondent-State.

5. Learned advocate, Shri Barot referred to the papers and submitted that the Court below has not carefully looked into the provisions of the Law as defined under Section375 of the Indian Penal Code. It is contended that the Court below had failed to appreciate that the offence under Section 376 of the Indian Penal Code would be attracted if the penetration had taken place with the victim and, therefore, there could not be any conviction for the offence under Section 511 of the Indian Penal Code. He submitted that the evidence of Shankarbhai Vasava, PW-3 at Exh. 11, who is stated to be eyewitness, has not been properly appreciated. He submitted that as per the evidence of this witness, when he came there, there was quarrel looking at the situation and, therefore, when the victim had left, the offence regarding attempt to rape, could not have been committed. He also referred to this aspect and further statement recorded under Section 313 of the Code of Criminal Procedure, 1973 and submitted that the proceedings were going on for removal of encroachment of his property and the village was against him, which may have led to a false implication.

6. Learned advocate, Shri Barot read the charge as well as testimony of the victim, PW-2 at Exh. 10 and submitted that though she is minor, specific question and answers which have been put to her, has been answered and it could be relevant for the purpose of considering the conviction of the accused for the offence under Section 511 of the Indian Penal Code. He submitted that the moot question is whether the accused could have been convicted for the offence under Section 511 of the Indian Penal Code or for an attempt to rape. He submitted that at the most, the accused could have been convicted for the offence under Section 354 of the Indian Pen