JUDGMENT : 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. 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 Penal Code. For that, he referred to the provision of Sections 354 and 511 of the Indian Penal Code. He also referred to the judgment of the Hon'ble Apex Court in case of Aman Kumar & Anr. Vs. State of Haryana, reported in (2004) 4 SCC 379 and submitted that as observed, there are difference stages like the intention, preparation and then, attempt for the offence. He also referred to the judgment of the Hon'ble Apex Court in case of Aman Kumar & Anr. Vs. State of Haryana, reported in (2004) 4 SCC 379 and submitted that as observed, there are difference stages like the intention, preparation and then, attempt for the offence. Learned advocate, Shri Barot submitted that when the attempt is successful, the offence is committed. He therefore emphasized the observation, "The word 'attempt' is not itself defined, and must, therefore, be taken in its ordinary meaning. This is exactly what the provisions of Section 511 require. An attempt to commit a crime is to be distinguished from an intention to commit it; and from preparation made for its commission. Mere intention to commit an offence, not followed by any act, cannot constitute an offence. The will is not be taken for the deed unless there be some external act which shows that progress has been made in the direction of it, or towards maturing and effecting it. Intention is the direction of conduct towards the object chosen upon considering the motives which suggest the choice. Preparation consists in devising or arranging the means or measures necessary for the commission of the offence. It differs widely from attempt which is the direct movement towards the commission after preparations are made." 7. Learned advocate, Shri Barot referred to this judgment and submitted that as observed, if the attempt is successful then, crime is complete and in such cases, for the offence under Section 376 r/w 511 of the Indian Penal Code, if the attempt fails, the crime is not complete but Law punishes the person attempting the act as provided under Section 511 of the general provisions dealing with the attempt to commit the offence. 8. Learned advocate, Shri Barot also submitted that extent of penetration is immaterial for the offence under Section 376 of the Indian Penal Code. It requires a penetration and in the present case, neither the victim nor the accused had taken out the clothes and, therefore, the offence under Section 376 of the Indian Penal Code is out of question, the conviction for the offence under Section 511 of the Indian Penal Code is not justified. 9. Learned advocate, Shri Barot also referred to the judgment of the Hon'ble Apex Court in case of Tarkeshwar Sahu Vs. 9. Learned advocate, Shri Barot also referred to the judgment of the Hon'ble Apex Court in case of Tarkeshwar Sahu Vs. State of Bihar (Now Jharkhand), reported in (2006) 8 SCC 560 and made submission referring to the aspect of Section 376 of the Indian Penal Code as well as Section 354 of the Indian Penal Code referring to the modesty. He submitted that various cases are considered by the Hon'ble Apex Court in this judgment holding that it was a case for the offence under Section 354of the Indian Penal Code and not for the offence under Section 511 of the Indian Penal Code even if the clothes of the victim had been taken out. Learned advocate, Shri Barot referred to the judgment of the Hon'ble Apex Court in case of State of Rajasthan Vs. Shri Chand, reported in 2015 (6) Scale 224 and pointedly referred to the background of the facts as narrated in paragraph No. 2 and, thereafter, he referred to the observations made in paragraph No. 8. He submitted that both earlier judgments have been considered and it has been observed, "In both the cited judgments it is held that for the act to constitute offence of rape penetration is pre-requisite (this is the pre 2013 Criminal Amendment position of law) and therefore for the offence of attempt to rape the accused must have so advanced in his actions that it would have resulted into rape had some extraneous factors not intervened." 10. Therefore, learned advocate, Shri Barot submitted that on appreciation of material and evidence, the Court has committed an error in recording conviction for the offence under Section 511 of the Indian Penal Code. Learned advocate, Shri Barot again referred to the testimony of PW-2 at Exh. 10 and emphasized the testimony, wherein she is said to have stated after the answer with regard to what has transpired that the accused had said that she may not tell anybody and he would give her chocolate. He further referred to the testimony of PW-3, Shankarbhai Vasava at Exh. 11, who is said to have reached the place of incident first and submitted that he has also narrated about the same way about the incident corroborating the testimony of PW-2, victim at Exh. 10. 11. He further referred to the testimony of PW-3, Shankarbhai Vasava at Exh. 11, who is said to have reached the place of incident first and submitted that he has also narrated about the same way about the incident corroborating the testimony of PW-2, victim at Exh. 10. 11. Learned advocate, Shri Barot, therefore, submitted that considering the totality of the facts and circumstances and the material and evidence, the conviction for the offence under Section 511 of the Indian Penal Code may not be sustained and the present appeal may be allowed. 12. Learned APP Ms. Punani referred to the testimony of the victim, PW-2 at Exh. 10 and PW-3, Shankarbhai Vasava at Exh. 11, who is said to have reached immediately after the incident and submitted that the prosecution has proved its case beyond reasonable doubt and, hence, the judgment and order recording conviction is just and proper, which may not be interfered with by this Court. 13. In view of these rival submissions, it is required to be considered whether the present appeal deserves consideration. 14. A closer scrutiny of both these evidence would be relevant for the purpose of appreciating the submission with regard to the conviction for the offence under Section511 of the Indian Penal Code. The moot question is whether the offence could be covered under Section 354 of the Indian Penal Code or under Section 511 of the Indian Penal Code. As rightly submitted that taking the manner in which the incident has occurred and background of the facts as it is, the victim has stated as to what has transpired in her testimony at Exh. 10. She has specifically stated about what transpired. The testimony of Shankarbhai Vasava, PW-3 at Exh. 11 also corroborates who had seen as to what had transpired when he reached there. Thus it emerges that the accused had not taken out his cloth nor the clothe of the victim were taken out though the victim was totally under the control of the accused as the victim could not have resisted being minor. Therefore had there been any intention or any preparation pursuant to the intention of committing offence of rape, he would have attempted to take his cloth out and also would have denundiated the victim before the act. In the facts of the case, admittedly neither the victim nor the accused have taken out the clothes. Therefore had there been any intention or any preparation pursuant to the intention of committing offence of rape, he would have attempted to take his cloth out and also would have denundiated the victim before the act. In the facts of the case, admittedly neither the victim nor the accused have taken out the clothes. As narrated by the victim in her testimony at Exh. 10, the accused had taken out his male organ, which was held in the hand by the victim, which again suggests that there is no penetration or there is no question of touching even the male organ with that of the victim. It is in this background, the offence under Section 376 of the Indian Penal Code is ruled out and the Court below has recorded conviction under Section 511 of the Indian Penal Code. It is at that stage, it is required to be appreciated whether it could be a case falling under Section 354 of the Indian Penal Code or not. Learned advocate, Shri Barot has referred to both judgments which has in turn reference to the provision of Section 354 of the Indian Penal Code and also under Section 511 of the Indian Penal Code. The provision of Section 511 of the Indian Penal Code as discussed hereinabove has reference to the intention, preparation and then attempt for the offence. It is required to be noted that culpable intention of the accused is the crux of the matter and intention has to be gathered from the relevant material and evidence. In the facts of the case, as stated above, had there been any intention of committing rape or attempt, he would have overpowered the victim removing the cloth, which is not there. Therefore whether it would amount to outraging the modesty. The word "modesty" has not been defined, however as observed by the Hon'ble Apex Court referring to Section 354 of the Indian Penal Code, it has been stated that modesty is an attribute associated with female human beings as a class. It is a virtue which attaches to a female owing to her sex. Again as referred to in this judgment in case of Tarkeshwar Sahu (supra), "Modesty" is given as, "womanly propriety of behavior; scrupulous chastity of thought, speech and conduct (in man or woman); reserve or sense of shame proceeding from instinctive aversion to impure or coarse suggestions". 15. It is a virtue which attaches to a female owing to her sex. Again as referred to in this judgment in case of Tarkeshwar Sahu (supra), "Modesty" is given as, "womanly propriety of behavior; scrupulous chastity of thought, speech and conduct (in man or woman); reserve or sense of shame proceeding from instinctive aversion to impure or coarse suggestions". 15. The Hon'ble Apex Court in a judgment in case of State of Kerala Vs. Hamsa, reported in (1988) 3 Crimes 161 has made observations, which have been quoted, "What the legislature had in mind when it used the word modesty in Sections 354 and 509 of the Penal Code was protection of an attribute which is peculiar to woman, as a virtue which attaches to a female on account of her sex. Modesty is the attribute of female sex and she possesses it irrespective of her age. The two offences were created not only in the interest of the woman concerned, but in the interest of public morality as well. The question of infringing the modesty of a woman would of course depend upon the customs and habits of the people. Acts which are outrageous to morality would be outrageous to modesty of women. No particular yardstick of universal application can be made for measuring the amplitude of modesty of woman, as it may vary from country to country or society to society." 16. Therefore, the ultimate test for ascertaining whether the modesty of a woman has been outraged, assaulted or insulted is that the action of the offender should be such that it may be perceived as one which is capable of shocking the sense of decency of a woman. The Hon'ble Apex Court in a judgment in case of Tarkeshwar Sahu (supra), has also observed and quoted, "A well known author Kenny in his book "Outlines of Criminal Law" has dealt with the aspect of indecent assault upon a female. The relevant passage reads as under: "In England by the Sexual Offences Act, 1956, an indecent assault upon a female (of any age) is made a misdemeanour and on a charge for indecent assault upon a child or young person under the age of sixteen it is no defence that she (or he) consented to the act of indecency." 17. Thus it has to be gathered from the totality of the facts and circumstances and material and evidence. Thus it has to be gathered from the totality of the facts and circumstances and material and evidence. As emphasized by learned advocate, Shri Barot on the observation made in the judgment of the Hon'ble Apex Court in case of Tarkeshwar Sahu (supra) referring to the vary cases, which have been referred to the same cases that even if in some cases, when the clothes were taken out but did not do anything, it would attract the offence under Section 376 of the Indian Penal Code and the conviction has been recorded for the offence under Section 354 of the Indian Penal Code and not for an attempt to commit rape. It is required to be stated that whether certain act amount to attempt to commit a particular offence or not, is the question, which depending upon the nature of offence, the intention, which could be gathered and also preparation and the steps taken in furtherance of the commission of the act. Therefore as stated above, the accused having not made an attempt overpowering the victim though she was totally at his command and had not even clothes removed, would suggest about the offence falling under Section 354 of the Indian Penal Code and not under Section 511 of the Indian Penal Code. Had there been any attempt for the rape, he would have behaved with the minor taking out the clothes and making some attempt, which is not the case herein. The victim in her testimony at Exh. 10 has also stated as to what transpired narrating only a particular conduct which is corroborated by the testimony of Shankarbhai Vasava, PW-3 at Exh. 11, who was the first to visit the scene of offence. Therefore considering these testimony as well as the fact that the accused had not intended for the offence of rape nor he attempted as stated above, which could be reflected from his conduct and totality of the facts and circumstances. Therefore, the impugned judgment and order recording conviction for the offence under Section 511 of the Indian Penal Code cannot be sustained and it deserves substitution for the offence under Section 354 of the Indian Penal Code. 18. Therefore, the present appeal stands allowed partly. Therefore, the impugned judgment and order recording conviction for the offence under Section 511 of the Indian Penal Code cannot be sustained and it deserves substitution for the offence under Section 354 of the Indian Penal Code. 18. Therefore, the present appeal stands allowed partly. The impugned judgment and order recording conviction of the appellant-accused for the offence under Section 511 of the Indian Penal Code imposing sentence is hereby quashed and set aside and stand substituted for the offence under Section 354 of the Indian Penal Code. Therefore, the appellant-accused is ordered to be served RI for two years and fine of Rs. 500/-, in default, RI for six months. The conviction of the appellant-accused for the offence under Section 342 of the Indian Penal Code and sentence shall remain unaltered. Further the order by the Sessions Court for the compensation to the tune of Rs. 50,000/- shall also remain unaltered. Both the aforesaid sentences shall run concurrently. The applicant is on bail and, hence, his bail bond stands cancelled and he is directed to surrender before the jail authority within a period of four weeks as requested by learned advocate, Shri Barot.