JUDGMENT : P.K. Tripathy, J. - Heard further argument and the judgment is as follows. 2. Appellant was convicted in S.T. No. 37/174 of 1996, taken up for trial in the Court of Addl. Sessions Judge, Balasore arising out of G.R. Case No. 105 of 1996 of the Court of J.M.F.C, Jaleswar. On conclusion of the trial, order of conviction was recorded against the Appellant on 20.08.1997 for the offence u/s 376, I.P.C. and the Appellant was sentenced to undergo imprisonment for a period of seven years. 3. According to the case of the prosecution, when the prosecutrix, aged between 12 to 14 years, was leaving for the school via a betel-vine, at about 6 a.m. on the date of occurrence (i.e., 23.03.1996) the accused-Appellant caught-hold of her and made attempt for rape after removing her 'chadi' and lying her on the ground. She resisted and fought and could get rid of the clutches of the Appellant by giving a kick, but when she was running away accused could catch-hold of her and again made attempt for rape after putting her on the ground. He sat over her and thereafter suddenly left the place. It appears from the evidence of P.W.12, the prosecutrix, that when she stood up she saw Tunia Behera, the owner of the betel-vine being coming. She narrated the incident to him. Apart from that, she also immediately narrated the incident to her uncle, parents, etc. Accused-Appellant denied to the charge and claimed for trial. He took the plea of alibi on the pretext that by the time of occurrence he was in the sea to catch fish. 4. To substantiate the charge, prosecution examined 14 witnesses and relied on series of documents marked Exts.1 to 10 and the wearing apparels of the accused and the victim as M. Os. I to VI. At the stage of defence evidence accused relied on the evidence of his wife, who was examined as D.W.1, to prove the plea of alibi. On assessment of the evidence of P.W.12 and the Doctors, P. Ws.5 and 6 besides the report from the State Forensic Science & Laboratory and the evidence of the parents and uncle, etc. of the victim, learned Addl. Sessions judge recorded the findings that the charge u/s 376, I.P.C. was proved and accordingly held the Appellant guilty and sentenced him in the above indicated manner. 5. of the victim, learned Addl. Sessions judge recorded the findings that the charge u/s 376, I.P.C. was proved and accordingly held the Appellant guilty and sentenced him in the above indicated manner. 5. Learned Counsel for the Appellant unsuccessfully wants to challenges the evidence of P.W.12 and states that her allegation of rape is a myth in view of the evidence of P. Ws. 5 and 6. On perusal of such evidence, this Court does not find any contradiction or illegality so as to discard the evidence of P.W.12 in relation to the occurrence. Learned Counsel for the Appellant alternatively argues that having no allegation of penetration stated by P.W.12 at any stage and in that respect the evidence of P. Ws. 5 and 6 being supportive to the contention of the Appellant, therefore, at best it may be a case u/s 376/511, I.P.C. and not a case of rape simplicitor punishable u/s 376, I.P.C. Learned Counsel for the State, on perusal of the evidence on record, fairly concedes to the alternative argument of the Appellant. This Court also finds that P.W.12 in her examination-in-chief did not speak about the accused penetrating his penis into the vagina of the victim. Section 375, I.P.C. provides that offence of rape is complete if there is penetration. Since the evidence of P. Ws. 5 and 6 also supports the stand of the Appellant that there was no penetration, therefore, this Court finds the alternative argument of the Appellant to be correct. Accordingly, conviction of the Appellant for the offence u/s 376, I.P.C. is set aside and instead of that he is convicted for the offence u/s 376/511, I.P.C. 6. Appellant was sentenced to undergo imprisonment for a period of seven years. Attempt to rape is not separately punishable under the Indian Penal Code. Therefore, keeping in view the provision in Section 511, I.P.C. and considering the question of sentence for attempting to rape, this Court does not disturb the punishment already imposed by the lower court, in as much as, in the meantime Appellant has already served the sentence. Accordingly the Criminal Appeal is allowed in part by setting aside the order of conviction u/s 376, I.P.C. but by substituting its conviction u/s 376/511, I.P.C. Final Result : Allowed