JUDGMENT K.C. Puri, J.:- This appeal arises from the judgment/order dated 6.6.2007/11.6.2007 passed by Ms. Bimlesh Tanwar, Additional Sessions Judge, Hisar, whereby she convicted the accused under Section 376/511 IPC and sentenced him to undergo rigorous imprisonment for five years and to pay a fine of Rs.1,000/- and in default of payment of fine, to undergo further rigorous imprisonment for one month. 2. The prosecution story is epitomized as under;­ 3. At the very outset, it is mentioned that the name of the prosecutrix is not being written, in view of the judgments of the Hon’ble Supreme Court) Dr.Kiran, Principal Government Girls, College Hisar filed application Exhibit P A, in which she alleged that one girl of that college had come to the college to take admission form for B.A. IIlrd year. When she was returning back and reached about one acre away from gate No.2 of Guru Jambeshwar University, one person who was coming behind her dragged her to the bushes to forcibly commit rape on her. She raised an alarm. On hearing the noise, Hari Singh son of Banwari Lal, Jagdish son of Sukh Ram, Raju son of Subhash and Pritam son of Mohan Lal rushed to the spot and saw that one person was trying to rape the girl who, on seeing them, ran away from there after scaling over the wall of GJU. They chased him and the accused was apprehended by aforesaid persons. The prosecutrix told her that Pawan Kumar had made an attempt to rape her. 4. After the completion of investigation, challan was presented in the trial Court against the accused. 5. In order to prove its case, the prosecution examined PW-1 Dr. Kiarn. PW-2 Monika, PW-3 Daya Nand, PW-4 Raju Draftsman, PW-5 Pritam, PW -6 Amar Singh, PW-7 Rakesh Kumar, PW-8 ASI Ran Singh, PW-9 Constable Ram Mehar Singh, PW-10 Dr. B.S.Khatri and PW-11 Raju. 6. After the close of prosecution evidence, the statement of the accused was recorded under Section 313 Cr.P.C. He denied prosecution allegations and pleaded false implication. 7. In his defence evidence, the accused has examined Shiv Lal, Cash-cum-Accounts Clerk as DW-1. 8. The learned counsel for the appellant has not challenged the manner of occurrence but has contended that even if the ,prosecution story is taken as correct, in that case, also, the ingredients of offence under Section 376/511 IPC are not made out. 7. In his defence evidence, the accused has examined Shiv Lal, Cash-cum-Accounts Clerk as DW-1. 8. The learned counsel for the appellant has not challenged the manner of occurrence but has contended that even if the ,prosecution story is taken as correct, in that case, also, the ingredients of offence under Section 376/511 IPC are not made out. It is contended that the prosecutrix or any of the witnesses has not stated that the accused had undressed himself or that he has undressed the prosecutrix. The specific allegation by the prosecutrix is that she was laid down on the ground and the accused caught hold of her from her neck. It is further stated that the prosecutrix has not stated that the accused tried to commit rape upon her. It is contended that the offence of rape is complete only in case there is penetration of penis in the vagina of a female. So, when both the prosecutrix and the accused have not undressed themselves, so there was no question of committing attempt to rape. It is contended that at the most, the offence under Section 354 IPC is made out. Lastly, it is contended that the charge-sheet was also submitted under Section 354 IPC and not under Section 376/511 IPC. The authorities relied upon by the learned trial Court are distinguishable. In authority in case Ramkripal Versus State of Madhya Pradesh, [2007(3) LAW HERALD (SC) 1995] : 2007(2) Recent Criminal Reports (Criminal) 391, actual rape has been committed. So, that authority is remotely connected to the facts of the present case. Authority in case Koppula Venkat Rao v. State of Andhra Pradesh, AIR 2004 Supreme Court 1874 is also not helpful to the prosecution. It is contended that in para No.20 of the said authority also, it has been mentioned that the sine quo non of the offence of rape is penetration and not ejaculation. In that case, there was ejaculation and, on that count, the accused was convicted under Section 376/511 IPC. In the present case, there is no allegation of ejaculation of the accused, so the offence under Section 376 read with Section 511 IPC is not made out. 9. The learned counsel for the appellant, to support his contention, has relied upon authority in case Tarkeshwar Sahu Versus State of Bihar (Now Jharkhand), 2006(4) Crimes 171. In the present case, there is no allegation of ejaculation of the accused, so the offence under Section 376 read with Section 511 IPC is not made out. 9. The learned counsel for the appellant, to support his contention, has relied upon authority in case Tarkeshwar Sahu Versus State of Bihar (Now Jharkhand), 2006(4) Crimes 171. On the strength of the said authority, it is argued that there is no allegation that there was an attempt to penetrate to slightest degree and as such the ingredients of offence under Section 376/511 are not made out. 10. Lastly, it is submitted that as per custody certificate, the appellant has already undergone incarceration for a period of 2 years and 7 months. In authority in case Dilbag Singh Versus State of Haryana, 2008(1) R.C.R. (Criminal) 350, this Court has reduced the sentence to one year in respect of offence under Section 376/511 IPC. So, a prayer has been made for the reduction of sentence. 11. The State counsel has supported the judgment of the learned trial Court and has contended that the learned trial Court has rightly held that the intention of the accused was simply to have forcible sex with the prosecutrix. She was laid down on the ground and caught hold by the accused from her neck and it was only on account of the presence of the witnesses that the accused could not be successful in the act of commission of rape. It is contended that the punishment of five years cannot be said to be excessive, in these circumstances. 12. I have carefully considered he submissions made by both the parties and have gone through the record of the case. 13. Before completion of crime, human mind has to pass four steps as under:- (1) Intention to commit; (2) Preparation to commit it; (3) Attempt to commit it; and (4) If the attempt is successful, then crime is complete. 14. Section 511 IPC is a general provision dealing with the attempts to commit offences and not made punishable by other specific section. It makes punishable all attempts to commit offences punishable with imprisonment and not only those punishable for life or death. 15. In the present case, the allegations are that the accused attempted to commit rape. Section 375 IPC defines rape whereas Section 376 envisages punishment for rape. It makes punishable all attempts to commit offences punishable with imprisonment and not only those punishable for life or death. 15. In the present case, the allegations are that the accused attempted to commit rape. Section 375 IPC defines rape whereas Section 376 envisages punishment for rape. There is explanation in Section 375 IPC to the effect that penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape. So, the natural corollary is that provisions of Section 376/511 IPC would be attracted in case the accused tried to penetrate his penis in the vagina of prosecutrix. In the present case, from the testimony of the prosecutrix, it is revealed that neither the accused undressed himself nor he undressed the prosecutrix. The only attribution to the accused is that he caught hold of the prosecutrix, laid her on the ground and then caught hold of her neck. The Apex Court in authority in case Tarkeshwar Sahu (supra), has held in para No.22 as under:­ “22.In the backdrop of settled legal position, when we examine the instant case, the conclusion becomes irresistible that the conviction of the appellant under Sections 376/511 IPC is wholly unsustainable. What to talk about the penetration, there has not been any attempt of penetration to the slightest degree. The appellant had neither undress himself nor even asked the prosecutrix to undress so there was no question of penetration. In the absence of any attempt to penetrate, the conviction under Section 376/511 IPC is wholly illegal and unsustainable.” 16. So, from the perusal of that judgment, it is revealed that in the facts of the present case, the provisions of Section 376/511 IPC are not attracted. So far as authority in case Ramkripal (supra) is concerned, in that case, the accused had ravished the prosecutrix. Genital of accused penetrated in genital of prosecutrix and she was having immense pain in her private part. Blood oozed from, her private part which had besmeared her undergarment. So, in that case, there was complete penetration. 17. In authority in case Koppula Venkat Rao (supra) and relied upon by the trial Court, the prosecutrix was undressed by removing her Sari but before completing the sex, the accused ejaculated. So, in these set of circumstances, it was held that it was a case under Section 376/511 IPC. So, in that case, there was complete penetration. 17. In authority in case Koppula Venkat Rao (supra) and relied upon by the trial Court, the prosecutrix was undressed by removing her Sari but before completing the sex, the accused ejaculated. So, in these set of circumstances, it was held that it was a case under Section 376/511 IPC. In the present case, there is neither allegation of ejaculation of accused nor undressing both the prosecutrix and himself. So, I am of the view that the finding of the learned trial Court whereby the accused stands convicted under Section 376/511 IPC is without any basis and the accused stands acquitted under the said provision of law. 18. Now, the question arises whether the appellant, in the facts and circumstances of the present case, should go scot-free. The answer to that question is in the negative. In authority in case Ramkripal (supra), relied upon by the accused himself, it has been mentioned that according to Section 222 Cr.P.C., if the offence under Section 376/511 IPC is not proved, in that case, the accused can be convicted under Section 354 IPC. In authority in case Ramkripal (supra), it has been laid down that the following ingredients of Section 354 IPC are to be proved; (a) That the assault must be on a woman; (b) That the accused must have used criminal force on her; (c) That the criminal force must have been used on the woman intending thereby to outrage her modesty. The above-said ingredients are complete, in the present case. By invoking the provisions of Section 222 Cr.P.C., the accused stands convicted under Section 354 IPC. The maximum punishment awarded under Section 354 IPC is upto two years. The appellant has already undergone incarceration (or a period of 2 years and 7 months as per custody certificate. So, the accused is sentenced to imprisonment for a period of two years which he had already undergone. As directed by the trial Court, he is also directed to pay a fine of Rs.1,000/- under Section 354 IPC. 19. So far as authority in case DiIbag Singh (supra) is concerned, the same relates to reduction of sentence for offence under Section 376 read with Section 511 IPC. Since the accused stands acquitted under Section 376/511 IPC, so the said authority does not apply to the facts of the present case. 19. So far as authority in case DiIbag Singh (supra) is concerned, the same relates to reduction of sentence for offence under Section 376 read with Section 511 IPC. Since the accused stands acquitted under Section 376/511 IPC, so the said authority does not apply to the facts of the present case. In view of above discussion, the appeal is partly accepted. The accused stands acquitted under Section 376/511 IPC. However, he stands convicted under Section 354 IPC and sentenced to undergo rigorous imprisonment for a period of two years and to pay a fine of Rs.1,000/- and in default of payment of fine, to undergo further rigorous imprisonment for three months. This appeal stands disposed of in the above terms. A copy of this judgment be sent to the learned trial Court for strict compliance. ------------------