JUDGMENT The appellant in this case stand convicted under Section 376 of the Indian Penal Code and sentenced to one year of R.I. and Rs. 500/- of find and indefault of payment of fine 3 months of R.I. The amount of fine has been ordered to be paid as compensation to the prosecutrix, Manjula, P.W. 1, 2. The case of prosecution may be narrated briefly. Manjula, P.W. 1 a girl of about 10 years of age is a ward of Rehman Sab P.W. 2, and she was residing with P.W. 2 at Khareawada, Sambhaji. The accused was residing in the neighbourhood of P.W. 1, at Khareawada. On the day of the incident i.e., on 17-1-1971 in the afternoon, there was a football match being played at the ground in the vicinity of the house of the accused, which house has only one room. P.W. 1 was witnessing the match that was being played at the said ground, when the accuse called her to this house saying that the would give her sweets. When she went to his house he closed the door, removed his underwear, as also hers, slept over her and had sexual intercourse with her. She resisted and told him to get away and as she was crying and shouting the gagged her mouth with hands. After the act was over, he opened the door and allowed he to go but nut before giving here some biscuits and chocolates. When she was leaving the house of the accused, she was seen by Laxmi P.W. 5, a close neighbor of the accused, by Jankibai, P.W. 7 another neighbour and another old woman Paidaman who could not be examined by the prosecution in the trial Court P.W. 5, 7 and Paidaman questioned P.W. 1 as to what had happened inside the house of the accused and she narrated to them the incident. The matter reached to the ears of P.W. 2 when he came home from his business at night time. He got the fact confirm from P.W. 1 and lodged a complaint to the Police. The Police arrested the accused at his house in the early hours of 18-1-71, took possession of some incriminating articles like underwear and other clothing, and got the accuse as well as the prosecutrix medically examined. 3. The accused has flatly denied the charge against him. His case is that of an alibi. The Police arrested the accused at his house in the early hours of 18-1-71, took possession of some incriminating articles like underwear and other clothing, and got the accuse as well as the prosecutrix medically examined. 3. The accused has flatly denied the charge against him. His case is that of an alibi. According to him he was working for Jayanti Shipping Company at the relevant time and on the day of the incident he went out of the house at 8.00 a.m. for work; that as it was a Sunday the office being closed he had not to sign the muster roll. He worked on the "Damodar Prasad" Barge, where the manager of the company, the Director and brother of the Director and other workers were present. He was repairing and fitting a search light and a horn. He returned from the Vasco Ship Yard at 12.00 noon and came to his house at 12.30 when he found some dirty water being thrown near his room. He He questioned P.W. 5 about it when suddenly P.W. 2 came out of his house and attempted to beat him an told him, "I will show you afterwards". P.W. 2 and husband of Laxmi are both black-marketiers and had ask him to purchase from them some foreign good which he had refused to do. After his meals he went to the shipyard at 2.00 and asked the welder by name Afonso Fernandes (D.W. 1) to prepare 2 clamps for the said shipyard. At about 3.30 p.m. the company Director came against to the barge and he told the director that he needed some batteries which the director promised to give in the next morning. After the work was over at 5.30 p.m. he left in the company of D.W. 1 for Paradise Hotel and thereafter for the Church. 4. The points that arise for my termination are as follows :- (1) Whether it is prove that the accused had sexual intercourse with Manjula, P.W. 1. (2) Whether Manjula, P.W. 1 was below 16 years of age on the relevant date. 5. As regards the second point there can be no doubt whatsoever that on the relevant date Manjula, P.W. 1 was below 16 years of age and her age was between 9 to 11 years. The evidence of this fact consists of the deposition of Dr. Kashinath Sardesai, P.W. 4. 5. As regards the second point there can be no doubt whatsoever that on the relevant date Manjula, P.W. 1 was below 16 years of age and her age was between 9 to 11 years. The evidence of this fact consists of the deposition of Dr. Kashinath Sardesai, P.W. 4. He has held a number of tests and car me to the conclusion that P.W. 1 was about 9 to 10 years of age on the relevant date. The doctor was cross-examined at length on this point, however, he has given cogent reason supporting his opinion and his testimony could not be shaken, Besides, we have the evident of P.W. 2 who was stated that the age of the girl must haven been about 10 to 11 years. I have no hesitation in accepting the fact that P.W. 1 was below 16 years of age at the relevant time. That being the case, the question of consent does not arise. 6. Turning to the first point we have the evidence of P.W. 1 who as given a narration as to how she was called by the assessed in his house and he removed her underwear and slept over her. P.W. 5 stated in her examination-in-chief that she saw P.W. 1 coming out of the house of the accused at her examination-in-chief that she saw P.W. 1 coming out of the house of the accused at about 4.00 p.m. However, she was reluctant to give out any details of the matter and hence was declared, hostile. She did not come out with a different version when she was cross-examined by the Addl. P.P. However, when questioned by the Court she deposed that P.W. 7 and Paidama questioned P.W. 1 as to what had happened and she (witness) also talked to P.W. 1 immediately after P.W. 1 had come out of the house of the accused. She also stated that she saw chocolates in the hands of P.W. 1. P.P. However, when questioned by the Court she deposed that P.W. 7 and Paidama questioned P.W. 1 as to what had happened and she (witness) also talked to P.W. 1 immediately after P.W. 1 had come out of the house of the accused. She also stated that she saw chocolates in the hands of P.W. 1. Similar to the case of this witness, was the case of P.W. 7 who first did not come up with the whole truth and had to be declared hostile, yet did not change her statement when cross-examined by P.P. To the Court she stated than on the day of incident when she was sitting in her shop, Paidama came and asked her to accompany her as one girl was crying and shouting inside the house of the accused. They went to the house of the accuse and found it close. After sometime she saw P.W. 1 being questioned in front of P.W. 5's house as to what had happened inside the house and that she informed that the accuse that undressed her and had sexual intercourse with her. 7. Upon reading the testimony of P.W. 5 and 7 it is clear that these two witnesses were trying to help the accused and for that reason have made somewhat contradictory statements. However, they did come out with the true story when questioned by the Court and their testimony corroborates P.W. 1 as far as leaving the house of he accused at the material time with some sweets in her hands is concerned. As far as testimony of P.W. 1 is concerned, as she is a girl of hardly 10 years of age, it does not appear plausible that she would concoct a story of this nature. Tutoring has also to be rule out as the story was given no sooner she cam out of the room. I have no hesitation to believe that show was called by the accused inside his house on the pretext that he would given her some sweets and that he undressed her and has some act with her. Whether the act that he had with her amounts to rape or not, is a point that I shall deal with now. 8. P.W. 1's testimony get corroboration as I have already stated from the testimony of P.W. 5 and 7 and also from medical evidence. Whether the act that he had with her amounts to rape or not, is a point that I shall deal with now. 8. P.W. 1's testimony get corroboration as I have already stated from the testimony of P.W. 5 and 7 and also from medical evidence. As regards the point as to whether there had been penetration or not we have to scrutinize the evidence of P.W. 1 carefully and cautiously. Firstly because the prosecutrix is a young girl who is not capable of understanding what is exactly penetration or what exactly sexual intercourse is (her answers to Court questions on the point of colours are pertinent in this respect), and secondly because of the medical evidence. The medical evidence on the point of sexual offence is that the hymen was jot ruptured, and that it was intact. There was congestion of the inner side of the labia majora at the level of vaginal opening at the left-side. The posterior commissure and fourchette were intact. The congestion of the vaginal wall outside the hymen and underneath the labia majora was reddish and that showed that it was a fresh injury. The Medical Officer, from all these facts, drew the conclusion that an "attempt to sexual intercourse has most probably been made to the extent of applying force (erected penis) up to the level of hymen". The hymen having been found intact, the fact of complete penetration within the vaginal walls has to be rule out. Of course, for the offenses of rape to be committed it is not necessary that there should be complete penetration. Partial penetration within the labia majors of the vulva on pudendum with or without emission of simmer is quite sufficient under law. In Medical Jurisprudence by R. M. Jhala and V. B. Raju (P. 320) it is mentioned that "In case of girls under 12 years where examination of hymen may not prove useful, examination of labia majora gives conclusive evidence. The narrowness of the canal makes it inevitable for the male organ to inflict blunt, forceful blow on the labia. Such blow invariably leads to contusion, because of looseness and vascularity. The interesting feature of such contusion is its vividness specially on the side it forms the inner wall of vagina. Against the pink background of the mucous membrane darkred contusion is visible even on initial inspection. Such blow invariably leads to contusion, because of looseness and vascularity. The interesting feature of such contusion is its vividness specially on the side it forms the inner wall of vagina. Against the pink background of the mucous membrane darkred contusion is visible even on initial inspection. This is also an important point to be remembered in post-mortem examination with history of rape. Apart from this, the contusion gives rise to pain and is tender on palpation. Sometimes specially in the case of young girls, such contusion is accompanied by laceration of vulva. Such tear, because of uneven and excessive force invariably used in acts of rape, is eccentric and more often in lower half. This is because of relatively increased stretching power of the upper half of vagina or increased rigidity of the lower part." 9. In the present case we find that the doctor deposed to only a congestion in the liabia majors. He doe not speak of concession. From the Dorland's Medical Dictionary it is seen that "congestion" in abnormal accumulation of a blood in a party whereas "contusion" is injury to tissues caused by blunt force which did not disrupt or lacerate from surface. It would therefore be seen that contusion and congestion are two different things and Jhala and Raju speak of contusion and not of congection as the evidence of penetration in case of girls below 12 years of age. 10. The doctor has stated having collected some samples of vaginal smears and swabs and one cotton swab of whitish dried spot found near the vulva of P.W. 1 and that uretheral swab and urethral smear slides of the accused were sent to the Chemical Analyser. From the Chemical Analyser's Report it is seen that the swabs collected from P.W. 1 had no sperms nor Gramnegative deplocci were detected. Further from the report in respect of the clothes of P.W. 1 and the accused, it is seen that no semen was detected on the underwear and benign belonging to the accused and that two human seminal stains were detected on a bush shirt belonging to the accused and one human seminal stain on the underwear of P.W. 1. The presence of a seminal stain on underwear of P.W. 1 may go to show that there was emission of semen. The presence of a seminal stain on underwear of P.W. 1 may go to show that there was emission of semen. However, this itself cannot be a conclusive proof to the fact that there was penetration, in view of the medical evident analysed by me above. It was not elucidated from P.W. 1 whether there was penetration, and as to what was the degree of penetration. What P.W. 1 stated before the Court is; "Ekkat Khiya" which he trial Court translated meaning sexual intercourse. It will be difficult to believe that a girl of 10 to 11 years of age can understand the meaning of the word sexual intercourse or of the words "ekkat khiya". It was necessary for the Court to come to a definite conclusion as regards penetration, to get elucidation from the prosecutrix in view of the medical evidence. It is doubtful from the medical evidence whether there was penetration in the vulva or in the pudendum for that would have left traces of contusion. The learned Sessions Judge has relied upon the following passage contain din Medical Jurisprudence by Modi :- "In small children the hymen, being situate high up in the canal, is not usually ruptured, but may become red and congested along with the in inflammation and bruising of the labia or, if considerable violence is used there is often laceration of the fourchette and periaeum." In this passage Dr. Modi had opined that although hymen may not be ruptured if there has been penetration, it (this must be referred to hymen) may become red and congested and that this may be accompanied "inflammation and bruising of the labia." In the present case we find that there was no bruising of the labia but only a congestion and three was no congestion and radiations of the hymen. Therefore, it cannot be safely said that there was partial penetration. In fact the doctor (P.W. 4) himself appears to be doubtful on the point of penetrations the has expressed his conclusion in a doubtful manner and did not give his clear reply on the point of penetration in the cross-examination. What was found is a mere congestion and that might have been caused due to the superficial application of force of the male organ to the private part of the prosecutrix. What was found is a mere congestion and that might have been caused due to the superficial application of force of the male organ to the private part of the prosecutrix. At any the fact of penetration is not free from doubt, in view of the medical evidence as well as the evidence of P.W. 1. However, there can be no doubt as to the fact that there was at least an attempt on the part of the accused to have unlawful intercourse with P.W. 1. 11. The accused examined one Afonso Fernandes as his witness to support his case of alibi. The learned trial Judge has assessed the evidence of this witness and has given cogent reasons why the witness could not be believed. I am in agreement with the assessment made by the trial Judge on the evidence of this witness. The proof of his alibi could be establish by him by examining the director manager and a brother of the director of the company, who, according to the accused, were present on the barge. His failure to examine these witnesses further renders his case of alibi improbable. I am in agreement with the trial judge that the accused fails to prove alibi. 12. I therefore, hod the accused to be guilty of an offence of attempt to commit rape. My attention was adverted by the learned Government Pleader to the young age of the accused, a fact, which he states appears to have passed un-noticed to the learned Sessions Judge. It appear that the learned Governments pleader is of the opinion that the Probation of Offenders Act should be applied to the accused as he was below 21 years of age. The accused was held guilty of an offence punishable with imprisonment for life. Such offenses are excepted from the application of Section 6 of the said Act. Besides this fact, the other condition which must be satisfied is that the person found guilty should be below 21 years of age. In the statement made under Section 342, Cri.P.C. the accuse has given his age as 23 years. In a number of decisions (refer AIR 1967 Orissa 4 : 1968 Cri LJ 1672) (Raj), it has been held that the crucial date of reckoning age is the date on which the trial Court had to deal with the offender. In the statement made under Section 342, Cri.P.C. the accuse has given his age as 23 years. In a number of decisions (refer AIR 1967 Orissa 4 : 1968 Cri LJ 1672) (Raj), it has been held that the crucial date of reckoning age is the date on which the trial Court had to deal with the offender. In the present case therefore the age of the accused has to be considered as 23 years. Hence Section 6 of the Probation of Offenders Act is inapplicable to the case. In view of the fact that the accuse is a young man of 23 years of age, that he has been in custody from the beginning of the year 1971, I feel that the sentence undergone by the appellant would meet the ends of justice. ORDER The appeal is partly allowed. The appellant is convicted under Section 376 r/w 511 of the I.P.C. and sentenced to the term of imprisonment already undergone by him. He shall be set at liberty forthwith. Appeal allowed in part.