JUDGMENT Shiv Dayal Shrivastava, J. The Appellant was tried under Section 376 read with Section 511 of the Indian Penal Code by the Sessions Judge, Ujjain. He was found guilty for that offence and was sentenced to suffer two years' rigorous imprisonment. Aggrieved by the conviction and sentence, this appeal has been preferred by him. The facts of the case are that on January 12, 1957, when the Appellant was going in a bullock-cart towards Tarana, he met on the way a girl by name Hiri (P. W. 4) aged about 10 years. She was going on foot and was accompanied by her younger brother Dhulia (P. W. 5) aged about 6 years, and another boy Dhanna of about the same age. They were going to have some corn grinded at a flour-mill at Tarana from their village Karanj. They also got into the oart and after they had gone a little distance, the Appellant stopped the cart and handed over the reins to Dhulia. It is said that the accused demanded fare from Hiri and on her expressing inability to pay, she was asked to go with the Appellant on one side of the track. After taking her a few steps from there, it is alleged, the Appellant tried to commit rape on her. Ramchandra and Babukhan happened to pass that way and they asked the Appellant not to do it but he threatened these persons not to interfere. It is said that the act could not be completed although it was attempted. According to Hiri, the Appellant actually gob her lie down, sat on her waist, and did the sexual act. Hiri related all this, first of all, to Nanuram who happened to come that way after the Appellant had proceeded further leaving the girl behind. Nanuram informed Kana about this who tried to take over the cartman (Appellant) but did not succeed because the Appellant made good his escape. The same evening, the Appellant was apprehended by some shepherds and was brought to the police station at Tarana. Hiri was also brought there simultaneously and she lodged the first information report. The main evidence in this case consists of Hiri P. W. 4 (the girl herself), Dhulia P. W. 5 (her brother), Dhannibai P. W. 2 (her mother), Dr. Narayandas P. W. 14, Ramchandra P. W. 6, Babukhan P. W. 11 and Nanuram P. W. 12. Hiri was also brought there simultaneously and she lodged the first information report. The main evidence in this case consists of Hiri P. W. 4 (the girl herself), Dhulia P. W. 5 (her brother), Dhannibai P. W. 2 (her mother), Dr. Narayandas P. W. 14, Ramchandra P. W. 6, Babukhan P. W. 11 and Nanuram P. W. 12. Hiri is a girl of 10 years. A perusal of her statement shows that she alleged a complete sexual act including penetration. Not only that, she went on to say that she felt something wet on her body (indicating that the Appellant spent himself). But Dr. Narayandas who examined the girl on that very day at 8-0 p.m. stated that there was no injury on her private part or any other part of her body. Now, she was a girl of tender years and it is impossible that if she were subjected to intercourse, there would not have been marks of any injury in her private parts. I shall discuss later the statements of Ramchandra and Babukhan, who said that the Appellant made movements at least for some time. Even if an attempt were made by laying her, there would be some marks of at least scratches on her person. But the doctor not only said that there was no injury on her private parts, but also that there was no injury on 'any part of her body'. Again, the Appellant was examined by the same doctor at 8-20 p.m. on that very day. The doctor said in his deposition that there was no sign on his private part about his having had sexual intercourse and that there was no discharge from the urethra. It does not appear from the statement of the doctor whether he actually examined the knees of the Appellant. Questions were, however, put to him in cross-examination and he said that if a person would kneel in a field and make movements, there would be present redness on his knees. In answer to questions put by the Court he said that the redness would disappear after half an hour. Without attaching importance to this part of the medical evidence, it is very clear that the girl had no injury on her person. This leads me to the inference that the girl exaggerated the incident. In answer to questions put by the Court he said that the redness would disappear after half an hour. Without attaching importance to this part of the medical evidence, it is very clear that the girl had no injury on her person. This leads me to the inference that the girl exaggerated the incident. Then I will first discuss the testimony of the two eye-witnesses, Ramchandra P. W. 6 and Babukhan P. W. 11. They were boys of 17 and 16 respectively. They said that they were going on bicycles and they saw the Appellant and Hiri in a compromising position. They however did not stop and went ahead about 20 or 25 steps but then they thought of getting the girl relieved and so they came back. According to their statements when they first saw the girl and the Appellant, the girl was lying flat and the Appellant was sitting on her; and, when they came back, then also they saw them in the same position and the Appellant was continuing the sexual act, the girl being naked. They further said that Babukhan remonstrated and asked the Appellant to leave the girl as she was very tender but the Appellant replied that it was none of their concern and be further said that he had a Lathi, When Babukhan said that he too had a knife, the Appellant got up and the girl also stood up and both of them went towards Karanj. Now, Shri Khanwilkar, the learned Counsel for the Appellant contends that this whole story is unbelievable. In my opinion, there is force in this argument. It is not conceivable that a young lad of about 20 years, as the Appellant is, would persist in the sexual act with such a small girl at a place hardly a few paces from the track and would even persist in committing that aot in the presence of two persons; himself remaining in that position. The story is really absurd. In Ramdas v. State of West Bengal AIR 1954 SC 711 , their Lordships observed: The Story of a person trying to outrage the modesty of two women in the presence of two gentlemen is so unnatural, that there must be clear and unimpeachable evidence before it can be accepted. I therefore disbelieve Ramohandra and Babukhan and reject their evidence. In Ramdas v. State of West Bengal AIR 1954 SC 711 , their Lordships observed: The Story of a person trying to outrage the modesty of two women in the presence of two gentlemen is so unnatural, that there must be clear and unimpeachable evidence before it can be accepted. I therefore disbelieve Ramohandra and Babukhan and reject their evidence. However, as I will discuss later, it is fully proved that the Appellant had taken the girl aside and wanted to take undue liberties with her. The girl reported this matter first of all to Nanuram P. W. 12 and it was this witness who told others about it and got the Appellant apprehended and brought them to the police station. A perusal of Nanuram's statement leaves no doubt that this witness tried to belie himself in many particulars. He said that he did not go to the police station at all, while it came out in the statement of Dhannibai, the mother of the girl, that he was actually seen at the police station. Now, this and other discrepancies become material because the witness admitted in his deposition that previously there had been some quarrel between the witness and the Appellant. It seems that from him exaggeration started because he said in the examination-in-chief-- Thus all that the girl complained to this witness was that the Appellant took undue liberty and it was the inference of the witness from it that he (Appellant) committed the sexual act. He was cross-examined about the expression and when he was particularly asked, he said that that expression could also mean embracing: No doubt, the witness further said that for the actual act of intercourse also that expression is used, but where the girl did not say so in so many words, nor did the witness interrogate her, (which became necessary when an ambiguous term was used), benefit must be given to the accused and that meaning must be attached which is favourable to him. The learned Deputy Government Advocate invites my attention to the extra-judicial confession made by the Appellant in the presence of villagers when he was apprehended. In that situation he admitted that he did the act but said that it was done with her consent. In his statement in the Court, the Appellant explained it by saying that he was frightened when he was caught. In that situation he admitted that he did the act but said that it was done with her consent. In his statement in the Court, the Appellant explained it by saying that he was frightened when he was caught. The explanation is reasonable and in view of other circumstances, I do not rely on the extrajudicial confession. The result of this discussion is that I am satisfied that no sexual act was attempted; that the stage known as 'attempt' in criminal law did not reach; and that the Appellant has been wrongly convicted under Section 376/511, Indian Penal Code. But the prosecution case is not wholly without foundation and here I recall the observations of Mahajan C.J., in Abdul Goni v. State of Madhya Pradesh AIR 1954 SC 31 -- The Court should make an effort to disengage the truth from the falsehood and to sift the grain from the chaff. It is an error to take an easy course of holding the evidence discrepant and the whole case untrue. In the first place, the statement of Dhulia P. W. 5 (brother of Hiri) is very convincing. According to this witness, the girl was taken by the Appellant on one side off the track about 10 or 15 paces. Secondly, the girl complained to Nanuram that the Appellant took undue liberty with her (i.e. embraced her). Then again, the statement of Dhannibai P. W. 2 (mother of the girl) is important. Dhannibai reached the police station Tarana when she came to know that Hiri had been taken there. On reaching the police station, she found her daughter Hiri and her son Dhulia sitting there. In her statement in the Court, she said that she remained in the police station throughout the night and when she returned in the morning, Hiri told her on the way, that the Appellant had oaught hold of her hand, that she began to cry and that Ramchandra and one other boy came on bicycle and rescued her. There is no reason whatsoever to disbelieve Dhulia or Dhannibai. Shri Khanwilkar has not been able to tell me any such reason. In these circumstances, I am convinced that the Appellant outraged the modesty of this young girl and thereby committed an offence punishable under Section 354, Indian Penal Code. There is no reason whatsoever to disbelieve Dhulia or Dhannibai. Shri Khanwilkar has not been able to tell me any such reason. In these circumstances, I am convinced that the Appellant outraged the modesty of this young girl and thereby committed an offence punishable under Section 354, Indian Penal Code. In this view of the matter, the conviction of the Appellant is altered to one under Section 354, Indian Penal Code and the sentence is also altered to one pf imprisonment for the period he has already undergone and a fine of Rs.50. In default of payment of fine, the Appellant shall suffer further imprisonment (rigorous) for one month.