Ujjal Bhuyan, J.

1. This appeal has been filed against the judgment and order dated 30-08-2003 passed by the learned Adhoc Additional Sessions Judge, Karimganj in Sessions Case No. 25 of 1998 convicting the appellant u/s 354/457 of the Indian Penal Code (IPC) and sentencing him to undergo rigorous imprisonment (RI) for one year and fine of Rs. 500/- in default, to suffer RI for a further period of one month for the offence u/s 354 IPC and RI for 3 years and fine of Rs. 2000/- in default, to suffer RI for a further period of 3 months for the offence u/s 457 IPC, both sentences to run concurrently. The facts leading to the filing of this appeal may be briefly stated.

2. A first information was lodged before the Ratabari police station on 27.03.1994 at 2:20 am by one Md. Islam Uddin alleging that at about 1:00 am at night one Abdul Matin entered into the dwelling house of Siraj Uddin and attempted to commit rape on his sister Mustt. Mustafa Begum. On the basis of the same, Ratabari Police Station Case No. 75/1994 u/s 457/376/511 IPC was registered.

3. The police investigated the case and on completion of the investigation submitted charge-sheet against the accused Abdul Matin under the aforesaid provisions. The case, which was then registered as G.R. Case No. 202 of 1994, was committed to the Court of Session, Karimganj. Subsequently, the case was transferred to the Court of the learned Adhoc Additional Sessions Judge, Karimganj for trial.

4. The learned trial Court framed two charges against the accused, one for committing an offence punishable u/s 457 IPC and the other u/s 376/511 IPC. When the charges were read over and explained to the accused, he pleaded not guilty and claimed to be tried.

5. The prosecution examined as many as six witnesses to prove the charges brought against the accused. The defence side did not adduce any evidence. However, the defence took the plea of complete denial.

6. After considering the evidence adduced and after hearing the arguments of both the sides, the learned trial Court held that the charges u/s 354/457 IPC stood well established against the accused and accordingly convicted him under the aforesaid sections and imposed the sentences as indicated above.

7. Aggrieved, the accused is in appeal. This Court by separate orders dated 23.09.2003 admitted the appeal and allowed the appellant accused to go on fresh bail.

8. I have heard Mr. M. Bhuyan, learned Counsel for the appellant as well as Mr. K. Munir, learned Additional Public Prosecutor, Assam appearing for the state respondent.

9. Mr. Bhuyan, learned Counsel for the appellant fairly submitted that based on the materials on record he would not argue for a clean and clear acquittal of the appellant. He, however contends that when the charge u/s 376 IPC could not be proved against the accused, he ought to have been convicted for a lesser offence, such as the one u/s 509 IPC. According to him, the offence u/s 354 IPC is not a minor offence as it is construed to be a major offence. In this connection, he refers to the provision of Section 222 of the Code of Criminal Procedure, 1973 (Cr. P.C.) to contend that when the charge for the major offence could not be proved, the conviction should have been brought down to a minor offence such as the one u/s 509 IPC. He therefore submits that the conviction may be altered accordingly and the sentence imposed suitably modified. In support of his submissions, learned Counsel places reliance on the following decisions:-

(1) Bankay vs. State, AIR 1961 All 131

(2) Vazhambalakkal Thomachan vs. State of Kerala, 1978 Cri. L.J 498

(3) Shamnsahed M. Multtani vs. State of Karnataka, (2001)2 SCC 577

10. On the other hand, Mr. Munir, learned Additional Public Prosecutor submits that the ingredients constituting offences u/s 354/457 IPC are clearly present and, therefore, the learned trial Court was justified in convicting the appellant under the aforesaid sections. He further submits that compared to the offence u/s 376