The court established that intent coupled with action constitutes an attempt to commit an offence, underscoring the need to distinguish between mere intention and substantive actions towards a crime.

1. This appeal is directed against the judgment of conviction and sentence dated 18/12/1998 passed by the II Additional Sessions Judge, Baloda - Bazar in S.T. No. 458/96 whereby learned Additional Sessions Judge convicted the appellant under S.376 read with S.511 of IPC and sentenced him to undergo rigorous imprisonment for five years with fine of Rs. 500/-, in default of payment of fine, to further undergo simple imprisonment for three months.

2. Appellant has been convicted for attempting to commit rape with the prosecutrix at 06.45 am on 11/01/95.

3. FIR Ext. P / 1 was lodged by the prosecutrix at 14.15 hours on the date of incident itself. She informed the Police that in the morning she had gone to attend nature's call in the nearby agricultural field. When she was about to return, the appellant came to the place and threatened that he would ruin her. He caught hold of her, fell on the ground and climbed over her. She pushed the appellant by kick and raised alarm on which the appellant pressed her mouth. When she tried to raise further alarm, the appellant freed her and went away. When she was coming back weeping, the appellant again threatened that if the incident is disclosed to anybody she would be killed. The incident was informed to Chamar Sai, Gendi Bai and her husband. Mother of Adbul had also heard the alarm raised by the prosecutrix. She stated in the FIR that she has pain over her neck. After recording the FIR, the Police conducted the investigation and submitted the charge - sheet for committing offence under S.376 and S.506 of the IPC and the trial Court framed charges under the said sections. At the end of trial, the appellant has been convicted under S.376/511 of IPC.

4. Learned counsel for the appellant has argued that even if the prosecution case is believed, the offence would fall under S.354 of IPC and not under S.376 read with S.511 of IPC, therefore, the impugned judgment and conviction deserves to be set - aside.

5. Learned State counsel would support the impugned judgment.

6. Prosecutrix has been examined as PW 1. She has supported the version stated to the Police as recorded in the FIR. Her evidence is duly supported by PW 2 Rekhabai who happens to be her sister - in - law (Devrani), PW 4 Peer Bi, PW 5 Chamar Sai (father - in - law of prosecutrix). PW 6 Harishchandra is a witness who was one of the person assembled in the house of the prosecutrix when a meeting was convened immediately after the incident. This witness has also supported the evidence of prosecutrix by saying that she had narrated the incident to the villagers, who assembled in the house of prosecutrix. PW 8 Hariram Sahu is another witness, who has supported the case of prosecution. PW 9 Dr. (Smt.) Bhanu Deshlahra has medically examined the prosecutrix. The prosecutrix had informed this Medical Officer about pain over both the ears and neck.

7. From the above evidence, it would clearly appear that the prosecutrix has neither resiled from her version nor diluted case against the appellant. Her version finds support from other witnesses, therefore, it is fully proved that the incident had happened wherein the appellant caught hold of the prosecutrix, fell her on the ground and tried to disrobe her by climbing over the prosecutrix.

8. The question now to be determined is as to whether the act of the appellant would amount to attempt to commit rape or it would amount to outraging the modesty of the prosecutrix.

9. The law as to when offence under S.376 read with S.511 of the IPC would apply has been dealt w