JUDGMENT - J.M. GANDHI, J.:---This is an appeal arising out an order of conviction and sentence passed by the Additional Sessions Judge, Pune, dated 24th June, 1974, convicting the accused appellant under section 376 I.P.C. and sentencing him to suffer R.I. for one year and a fine of Rs. 200/- or in default to suffer R.I. for one month. 2. This appeal has a very narrow compass and the question which arises mainly is whether the conviction of the accused under section 376 I.P.C. can be sustained. The facts of the are very simple and they are narrated in the judgment of the lower Court. I do not, therefore, propose to deal with the facts of the case in greater detail. 3. Mr. Agarwal for the accused submitted before me that the conviction was unwarranted and that this was a case of some accident relating to an injury of a private part of a young girl and the necessary ingredients for the purpose of establishing the offence under section 376 are not established. He took me through the evidence of the girl, who is aged five, her mother and her father and also through the medical evidence. The learned Additional Sessions Judge has very carefully shifted the entire evidence and considered the evidence of the girl, though a child witness, being such that he was inspired that the child was not telling a lie when the child said that injury resulting into bleeding from her private part was caused by the private part of the accused. Mr. Agarwal, however, submitted that this is a slightly improved version of what the child narrated immediately after the alleged offence. He said that no doubt the child said that the accused took out blood from her private part, but the second part, namely, that it was by the use of the private part of the accused was not narrated by her immediately after the alleged offence. Therefore, he wanted me not to accept the word of the child, as also that of the father and mother and to come to the conclusion that this was a mere case of an accident. 4. I have carefully gone through the evidence of all the three witnesses. Therefore, he wanted me not to accept the word of the child, as also that of the father and mother and to come to the conclusion that this was a mere case of an accident. 4. I have carefully gone through the evidence of all the three witnesses. Even though the child is only 5 years old, the way in which she has given answers and the manner in which is an mistakable terms she stated before the lower Court that the bleeding from her private part was due to the private part of the accused, and as such the statement having come from an innocent child and there being no previous enmity either between the child and the accused or the parents of the child and the accused and the relations being so cordial between the two families, I have no hesitation in accept the version of the child when she said that the injury to her private part was caused by the private part of the accused. I have not in detail discussed the evidence because it has been discussed at length in the judgment of the lower Court. 5. The second point that has been raised by Mr. Agarwal and which is of some importance is that even if the Court were to accept everything that the child stated and the evidence of the doctor, the offence under section 376 I.P.C. cannot be said to have been committed. He submitted that if the Court is not inclined to come to the conclusion that this was an accident, the Court should at least hold that this case was an attempt to commit rape and not the rape under section 376 I.P.C. 6. Mr. Deshmukh appearing for the State on this point has taken me through the evidence of the doctor. I take slightly a different view from what the learned Additional Sessions Judge has taken and I would, therefore, like to refer to the medical evidence in some detail. 7. The medical evidence is of Dr. Bharti Vasant Sathe, (P.W. 9). Dr. Sathe examined the child on 5-12-1973 at about 5 p.m. which is the date of the offence and hardly few hours after the alleged offence of rape was committed. She stated that in her opinion the girl was about 3½ to 4 years old. 7. The medical evidence is of Dr. Bharti Vasant Sathe, (P.W. 9). Dr. Sathe examined the child on 5-12-1973 at about 5 p.m. which is the date of the offence and hardly few hours after the alleged offence of rape was committed. She stated that in her opinion the girl was about 3½ to 4 years old. On external examination she did not notice any external injuries or makes of violence. On external examination of the private parts of the girl, she found congestion at the introitus. The hymen was intact. There was bleeding through the fourchette. Upon perectal examination, she noticed that the uterus was of normal size and she also noticed that fornices were clear. She collected the vaginal smear, preserved it in a bottle for the purpose of chemical examination and she sent the same to the Chemical Analyser for report. After referring to the records produced, she produced a certificate (Ex. 24) which she had issued. As far as her opinion was concerned, in para 5 she deposed : "In my opinion the congestion of the introitus may be due to the pressure of a male penis on that part. Introitus is a part of the vulva. The pressuer on introitus is possible only after the male penis has entered the vulva. There was bleeding from introitus more from the fourchette). When there is congestion it is always due to injury. Fourchette is the lowest part of introitus and it is the lower end of introitus. Even though the hymen was intact the injury i.e. congestion was around the hymen. In the case of a small girl of child the hymen is not quite easily torn as the passage is very small for the purpose of the penetration of a male organ." 8. She has been cross-examination at length and an attempt was made to show that the injury which was found on the girl Neeta could possibly have been caused by an accident while the child was playing on the body of the accused, his finger might have touched her private part and resulted into the bleeding. But this suggestion has been negatived by the doctor. In her cross-examination, she has stated. But this suggestion has been negatived by the doctor. In her cross-examination, she has stated. "In the instant case, I did not notice any inflamation of or abrasions on the walls of vaginal passage." "I accept the proposition from the book by Glaistar and Renteul, 12th Edition, p 412 under the head : Local evidence of rape that "the size in the sexual parts of a virgin female which when found would support the examiner in concluding that rape has been committed" and (1) recent rupture of the hymen. (II) Presence of blood, fresh or dried, about the vulva. (III) Marks of bruising, abrasions, or inflamation of the parts and (IV) presence of semen in the vagina." "In addition to these signs there may be other sings such as discomfort in walking etc. In the instant case excepting congestion followed by bleeding, I did not across any other injury. Excepting the complaint of pains from the private part I did not come across any other complaint of pain from any other part of injury on any other part. The girl was experiencing difficulty in walking. The congestion was in an area of half an inch. The congestion was about quarter of an inch from the vulva. For causing such congestion the foreign part might have entered about the fourth inch." "9. I do not accept that slight pressuer would cause congestion. For causing such congestion moderate degree of pressuer is required. Insertion of finger may cause such congestion. I mean forcible insertion of finger. I had collected the swab from the vagina to see whether there was seminal discharge and I had collected the blood of the girl to see whether the girl had contacted any veneral disease. Both the samples were sent to the Chemical Analyser, Bombay, and his reports are received. I produce these reports now Ex. 26. The C.A., has reported that no spermatozoa was detected any V.D.R.L., test was negative. In cases of this type, the entry of male organ into the female organ would be difficult and the girl would scream." On a question put by the Court, she replied : "We had detained her as there was bleeding and the patient was complaining of pain from her private part. We discharged her as believed." 9. In cases of this type, the entry of male organ into the female organ would be difficult and the girl would scream." On a question put by the Court, she replied : "We had detained her as there was bleeding and the patient was complaining of pain from her private part. We discharged her as believed." 9. Now, on this evidence, the most important question which rises is whether the ingredients under section 376 I.P.C. are established. Under section 376 the following ingredients are required to be established, viz., (1) that the accused had sexual intercourse with the woman in question; (2) that the act was done and it must be under circumstances falling under any of the five clause in section 375.; (3) that such woman was not the wife and was not under twelve years of age; (4) that there was penetration. As far as the present case is concerned, there is no dispute about the age of the child that the child was about 4 or 5 years. It is not the case of either side that there was sexual intercourse. The question then arises is whether there was penetration of a male organ into the childs private part. A crime can be said to be complete if the penetration takes place. The offence is made punishable if there is an attempt to thrust a male organ into the womans private part. Explanation to section 375 which defines the offence of rape reads as follows :---"Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape." 10. Mr. Agarwal submitted before me that though the doctor in her examination-in-chief had stated in para 5 that the pressure on introitus is possible only after the male penis has entered the vulva. In her cross-examination she has admitted in paras 8 and 9 that excepting the complaint of pain from the private part, she (the girl) did not come across any other complaint of pain from any other part or injury to any other part of the body. The doctor has further admitted that the congestion was in an area of half an inch. The doctor has further admitted that the congestion was about quarter of an inch from the vulva and for causing such congestion the foreign part might have entered about one fourth inch. The doctor has further admitted that the congestion was in an area of half an inch. The doctor has further admitted that the congestion was about quarter of an inch from the vulva and for causing such congestion the foreign part might have entered about one fourth inch. He submitted that from these answers, it cannot be said that the doctor wanted to say that the male penis had entered the vagina. Reading from Dorlands Medical Dictionary, he said "fourchette" is a posterior junction of labia majora and introitus has been defined as the entrances to a cavity or space. He also relied upon a passage from Modys Medical Jurisprudence and Technology, 19th Edn., Chapter XVI, p. 309. Describing the genitals of a woman, the passage reads : The labia majora are usually thick, firm, elastic and well-rounded, and lie in contact with each other so as to cover completely the vulva. The labia minora are soft, small and rose-coloured and the clitoris is small. The vestibule, a traingular area lying between labia minora with the clitoris as the apex and the anterior margin of the hymen as the base is narrow. The posterior commissure and the fourchette are in tact and crescent shaped. They are rarely destroyed by sexual intercourse but are not infrequently lacerated in attempts at sexual intercourse on children. The vagina is narrow and tight with rugose walls, but the rugosity of the vagina cannot be considered as a diagnostic proof of virginity, as it is only removed by the first birth, and not merely by sexual intercourse; besides, in some cases it may be absent in a virgin". Reading this passage from Modis Medical Jurisprudence and Toxicology Mr. Agarwal submitted that the bleeding from fourchette only shows that there was an injury to labia majora and that there was congestion above introitus and even assuming that there was some bleeding, it cannot be said that there was any penetration of vulva. It was further submitted by him that before the Court can convict a person under section 376 I.P.C. penetration has to be established. It is true that the penetration is sufficient to establish a charge of sexual intercourse. It was further submitted by him that before the Court can convict a person under section 376 I.P.C. penetration has to be established. It is true that the penetration is sufficient to establish a charge of sexual intercourse. He submitted that the doctor has obviously made a statement which she has subsequently resciled and she admitted in the cross-examination that the congestion was in an area of half an inch, the congestion was about quarter or an inch from the vulva. This would clearly show that there was not even any congestion in the vulva much less any penetration of vulva and, therefore, it cannot be said that there was an offence under section 376 I.P.C. 11. Mr. Deshmukh, however, submitted that once the doctor has in her examination stated that introitus is a part of the vulva and the pressure on the introitus is possible only if the male penis has entered the vulva, the Court must hold that there was penetration in vagina. He also drew my attention to the fact that there was a bleeding, from introitus and more from fourchette and further that when there was congestion, it was always due to the injury. 12. Now, the next answer given by doctor is very pertinent. She said that "fourchette" is the lowest part of introitus and it is the lower end of introitus. Even though the hymen was intact, injury i.e. congestion was around the hymen". I have read the definition of fourchette and introitus. It clearly shows that it has nothing to do with vulva. No doubt the doctor had stated that introitus was a part of the vulva but in the next breach she stated that fourchette was a part of the introitus and fourchette is defined as the posterior junction of a labia majora. In these circumstances, at least a reasonable doubt arises in the mind, whether there was a penetration in the vulva and I think that this is a fit case looking to all the circumstances of the case that though the accused person in the speedy act might have attempted to do something has not done penetration into the vulva of the childs private part. Once this part of the evidence cannot be accepted and once there is no clear cut proof of penetration in vulva, it is nobodys case that there was a sexual intercourse or any other further injury to any other private part. Under the circumstances it is not safe to hold that an offence under section 376 I.P.C. has been committed. 13. My attention was drawn to two authorities, viz., where in the case of (Reg. v. Ferrol)1, Cri.L.J. 1925 P. 1185. Green J. directed the Jury that "vulva penetration only was sufficient, under the law of India, to constitute rape". In that case, it was observed that the medical evidence proved that there was no injury to the parts. The child was found to be suffering from gonorrhoea, so was the prisoner. It was clear that the penetration (if any) had been only vulval. 14. In another decision (Jantan v. Emperior)2, 1936 Cri.L.J. it has been held that there is a distinction between vulval penetration and vaginal penetration. It is not necessary that the hymen should be ruptured in every case. In order to constitute rape the statute merely requires medical evidence of penetration and this may occur and the hymen remain intact." 15. As the authorities clearly lay down before rape can be established; it must be shown that there was penetration in vulva and in the evidence which I have clearly cited, the Doctor has in unmistakable terms admitted that the congestion was about quarter of an inch from the vulva, which goes to show that there was no penetration in the vulva. In these circumstances, I hold that there is no establishment of ingredient of penetration as required under section 376 I.P.C. In this view of the evidence, I think that the accused is entitled to the benefit of doubt and the offence committed is not the one under section 376 I.P.C. 16. The next question then arises is whether the accused is guilty of an offence to commit an attempt of rape. If one were to read section 376 read with section 511 I.P.C., there will not to be any hesitation to come to the conclusion that once we accept the word of the child and the conduct of the parents in taking immediate action and the medical evidence, that there was an attempt to commit rape by the accused. If one were to read section 376 read with section 511 I.P.C., there will not to be any hesitation to come to the conclusion that once we accept the word of the child and the conduct of the parents in taking immediate action and the medical evidence, that there was an attempt to commit rape by the accused. But, it appears that before he could do anything the girl got injured and started bleeding. But he had already proceeded in the action and it cannot be said to be mere preparation, but it was an attempt to commit rape. I hold that though the prosecution has not established the offence under section 376 I.P.C. the evidence of the prosecution is clinching to shows that the accused has attempted to commit rape and therefore, he is guilty under section 376 read with section 511 I.P.C. 17. This brings me to the next question about the sentence. As I have come to the conclusion that the offence under section 376 I.P.C. is not established, I set aside the order of conviction and sentence passed by the learned Additional Sessions Judge. It was urged at the bar that the accused person is a young engineer and this being his first offence, he should be given the benefit under section 360 of the Code of Criminal Procedure. The provisions of section 360 are new provisions and they have been introduced with a view to see that the first offender instead of turning into a die-hard criminal, may, if released on probation or bond, be easily adjustable to the Society and a more desirable result would follow. Section 360 applied when the offender is above the age of 21 and when the offence is not punishable for more than 7 years. If the accused would have been guilty under section 376 for rape, the provision of section 360 could not have been applied. But as a I have come to the conclusion that in this particular case this is only an attempt, there is no offence of rape committed, section 360 has application. If the accused would have been guilty under section 376 for rape, the provision of section 360 could not have been applied. But as a I have come to the conclusion that in this particular case this is only an attempt, there is no offence of rape committed, section 360 has application. Section 360 provides : (1) When any person not under twenty-one years of age is convicted of an offence punishable with fine only or with imprisonment of a term of seven years or less, or when any person under twenty-one years of age or any woman is convicted of an offence not punishable with death or imprisonment for life, and no previous conviction is proved against the offender, if it appears to the Court before which he is convicted, regard being had to the age, character or antecedents of the offender, and to the circumstances in which the offence was committed, that it is expedient that the offender should be released on probation of good conduct, the Court may Finstead of sentencing him at once to any punishment, direct that he be released on his entering into a bond, a with or without sureties, to appear and receive sentence when called upon during such period (not ex-ceeding three years) as the Court may direct and in the meantime to keep the peace and be of good behaviour." Looking at the scheme of section 360 it is clear that the legislature intends that instead of sentencing a man he should be released on personal bond of keeping peace and be of food behaviour. 18. Mr. Agarwal appearing for the appellant drew my attention to the facts of the case and submitted that the relations between the two families were very cordial. There is nothing on record to show any bad antecedents of about his character and this being his first offence, the Court should exercise its discretion under section 360. In support of his arguments, Mr. There is nothing on record to show any bad antecedents of about his character and this being his first offence, the Court should exercise its discretion under section 360. In support of his arguments, Mr. Agarwal submitted that the learned Additional Sessions Judge has also considered this aspect, as to whether the accused should be released under the Probation of Offenders Act, and he drew my attention to the remarks made by the learned Additional Sessions Judge, in para 27 on p. 55 which run as under :-- "In the instant case, I feel that there is more the element of stupidity than the element of brutality in the act of the accused. It appears that the girl aged 4/5 was moving on the body of the accused without any nicker below her skirt and the accused, a young un-married man did not resist the temptation of satisfying the curiosity about the sex organ and thus the act of the accused appears to be more a stupid act but not brutal act looking to the circumstances of the case and the prevalent cordiality between the two families. Thus, either the girl retracted or the accused retracted on seeing the girl bleeding and after finding that his act had caused bleeding he started wiping things but any how the matter reached the ears of the parents of the girl and thus the accused came to be prosecuted and rightly so." 19. After taking into consideration this, the learned Judge did not feel inclined to give the benefit of the Probation of Offenders Act to the accused, relying upon the authority where such a discretion was used by the District Judge was set aside by the High Court in Lahore and sentenced a man to six months imprisonment. Apart from the Probation of Offenders Act, the provisions of the Criminal Procedure Code in section 360, in my opinion, are very wide. The purpose of the legislature is very clear and the object of the legislature is to see that whenever the Court thinks it expedient, looking to the age, and the character of the accused and the circumstances in which the offence has been committed, instead of sentencing him to release him on his personal bond with or without surety for keeping peace and to be of good behaviour. In my opinion, this introduction of section 360 clearly indicates the mind of the legislation. After years of experience, the legislature has found that instead of sentencing them to jail and thereby turning them into die-hard criminals it would be very difficult for them to adjust themselves after coming back; in a proper and fit case, the Court should exercise its discretion and instead of sentencing him, release him on a bound for keeping peace and be of good behaviour. I am supported by the very observations of the lower Court that even the lower Court also felt that there was more the element of stupidity than the element of brutality in the act of the accused. No doubt this caused injury to the girl. But, as no private part had been affected, neither there was any penetration of the vagina or of the vulva. I think, that this is a fit case, whether the accused is a yough diploma holder in engineering is given a chance and the end of justice will be met sufficiently if he executes a bond for two years to be of good behavious and keep peace. 20. In the light of the above discussion, I think, I should exercise my discretion. In order to pass a final order, I have asked Mr. Agarwal for the accused to provide all the information under section 360(7) of the Criminal Procedure Code. 21. The appeal is therefore partly allowed. The accused, after ascertaining the above facts, be released on his signing a personal bond in the sum of Rs. 500/- and further that he will keep peace and be of good behaviour for a period of two years from the date of the order. -----