JUDGMENT 1. - This appeal was heard in part by me on 21.8.1990 and since then it is in the daily cause list. Today, the learned Public Prosecutor stated that the file is not with him as it was sent to some other Public Prosecutor, who is not in Court today. Hence I am deprived of the valuable assistance which the Public Prosecutor could render in this criminal appeal. I am writing this specifically because this is not the only case in which this has happened but this is the usual story in practically every case. 2. Both the appellants have been convicted by the Additional Sessions Judge No. 1 Bharatpur for the offence under Section 37o(2)(g) IPC and sentenced to 10 years rigorous imprisonment and a fine of Rs. 500/- tach and in default of payment of fine to undergo six months imprisonment. Against this conviction and sentence passed on 12th Jan. 1990 the present appeal has been filed. 3. The date of incident is 27.6.1989. Harchandi was arrested on 20-7-1989 and since then he is in Jail. The second appellant was arrested on 23-7-1989 and released on 28-7-1989. After his conviction on 12.1.1990 he was sent to Jail and after preferring this appeal he was released on bail on 21 5-1990. 4. The facts leading to this case are that on 27.6.1989 Kumari Geeta, a girl of about 11 years was grazing her goats in the juugle and the accused Harchandi and Ashok were cutting babool trees. In the afternoon accused Ashok caught hold of Geeta and took her near Harchandi. Harchandi fell her down and took off her clothes and underwear and started committing rape upon her. When she shouted, a sweeper boy who was nearby came there and both Harchandi and Ashok ran away. Geeta went weeping towards the village and in the way met one Shyam and she narrated the story to him. Then she went to her house and told the story to her mother and father, who took her to the Hospital. After examining her Dr. Bhcpal Singh (PW. 9) prepared a report and informed the police. The police recorded the statement of Geeta and registered a case under Section 376/511 IPC. After investigation a charge sheet was filed under sections 376 and 109 IPC. 5. After examining her Dr. Bhcpal Singh (PW. 9) prepared a report and informed the police. The police recorded the statement of Geeta and registered a case under Section 376/511 IPC. After investigation a charge sheet was filed under sections 376 and 109 IPC. 5. The learned Additional Sessions Judge No. 1 Bharatpur framed charge for offence under Section 376 (2) (g) IPC. 6. The learned Additional Sessions Judge recorded the statements of the witnesses and the statement of the accused and arrived at the conclusion that Harchandi committed rape with Geeta and that Ashok had carried her towards Harchandi and had caught hold of her hands and feet and prevented her from shouting therefore he was also guilty of the same offence as Harchandi. In view of this both the accused were held guilty of the offence under Section 376 (2) (g) IPC. This offence is commission of gang rape. 7. The learned counsel for the appellant has first of all argued that the appellant Asbok was less than 16 years of age at the time of commission of offence and he is entitled to raise this plea for the first time even in appeal. He has placed reliance on AIR 1984 SC 237 . The material which is before the Court in respect of age of Ashok may be looked into. At the time he was examined under section 313 Cr.P.C. on 2-12-1989 he gave out his age as 15 years and the court assessed his age at 18 years. Before his arrest he got himself medically examined for purposes of determination of age and the doctor who examined him has opined that his age was above 18 years. Radiological tests were also conducted and on the basis of the same the Radiologist gave his opinion that he was above 18 years and below 19 years of age. The appellant Ashok does not have any other evidence with him to show that his age was below 16 years at the time of the alleged occurrence. Radiological tests were also conducted and on the basis of the same the Radiologist gave his opinion that he was above 18 years and below 19 years of age. The appellant Ashok does not have any other evidence with him to show that his age was below 16 years at the time of the alleged occurrence. When he has been medically examined and his age has been found to be over 18 year and approximate age assessed by the Additional Sessions Judge is also 18 years then there is no reason to hold that he was below 16 years of age and it can also be said that no useful purpose would be served by holding a further enquiry into the age of this appellant. 8. Before coming to the facts of the case and the statement of the main witness Geeta, I would like to look into the report of the doctor, who examined Geeta. According to the report Ex.P. 10, the labia Majora and Minora were found thick and elastic and rounded. There was no injury on the anuc. The hymen was deeply situated and had a 0.2 c.m. tear on the lower part and only a tip of the little finger could be admitted in the hymen. The injury was fresh and had soft clotted blood on it. He opined that penetration through hymen had not taken place. There were no other injuries on her body. This report has been proved by Dr. Bhopal Singh Chowdhary. when he appeared in the witness box as P.W.9. He stated in cross examination that hymen injury could not be caused by a fall on a babool stick. 9. The learned counsel for the appellant has contended that on the basis of medical evidence there was no penetration through the hymen hence the offence can not be one under section 376 IPC and if on the basis of the facts it can be said that Harchandi tried to rape Geeta then at the most the offence would be under section 376 IPC read with section 511 IPC. Attacking the oral evidence in the case, it has been pointed out that the sweeper boy who came on the site on hearing the shouts of Geeta has not been produced as a witness and that Shyam to whom Geeta narrated the incident has turned hostile and that the mother of Geeta has not been produced and she would have been a relevant witness as the story was first narrated by Geeta to her. First of all, on the basis of the oral evidence in the case I shall see as to what act can be said to have been proved against each of the appellant. 10. PW 1 Geeta is the main witness in the case and it has to be remembered that her age at the time of the incident was only II years. She has stated that she was sitting under a babool tree while the two appellants were sitting under another babool tree, when Ashok came and took her near Harchandi. She was felled on the ground and Ashok caught h dd of her hand;, and feet. Harchandi removed her underwear and then started raping her. She shouted and a man came there and the accused ran away. She blooded from her private parts and her underwear was also stained. She has stated that Harchandi had undressed while committing the act. The learned counsel for the appellant has contended that story should not be believed because Getta in her statement under section 161 Cr. P.C. stated that Ashok caught hold of her and took to the babool tree where Harchandi was sitting. I am unable to disbelieve the story of Geeta merely because of this contradiction. Geeta is a girl of tender age and it cannot be expected that she would narrate the incident in a very graphic manner so as to say that there would be no deviation from the statement made earlier. The main thing to be seen is whether her story can be said to have been corroborated by some evidence in some manner and if this is so then the testimony cannot be disbelieved merely on account of a minor contradiction. The medical examination report Ex P/9 supports the version of Geeta that some attempt to commit rape had been made upon her. The medical examination report Ex P/9 supports the version of Geeta that some attempt to commit rape had been made upon her. The act may not be complete but it cannot be said that the story of rape has been given out without any basis. Out of the proved facts what offence would be made out is a different matter. First the finding of facts have to be stated and then it will be seen as to what offence can be said to have been committed by the appellants. I see no reason to disbelieve Geeta when she has stated that she was carried away by Ashok to Harchandi and then Harchandi committed rape with her. The failure to examine the boy who came there may be said to be a lapse on the part of the investigation and prosecution but then because of his absence, the story would not become a false story. 11. Geeta told about the incident to her mother but she has not been examined as witness. The father who has been examined has said that Geeta gave out the story in the presence of the doctor. The mother, had she been examined would have helped the case to some extent, but she was not an eye witness and she had only heard from Geeta as to what had happened. In such circumstances it cannot be said that without her testimony the offence against the accused cannot be established. 12. PW.4 Shyam who has turned hostile is an uncle of both the accused and his turning hostile is not unexpected. Geeta had told the incident to Shyam not to get any sympathy from him but in order to inform him as to what his relations Harchandi and Ashok had done to her. The version of Geeta will not become false by Shyam not supporting her. 13. The medical evidence in the case will be helpful in determining as to what offence can be said to be made out against the appellants. It ma/'be mentioned here that the doctor who examined Geeta could have rendered more assistance to the court by describing her clothes and also the story which she gave out but then he did not seize her clothes. The blood stained under wear of Geeta is said to have been seized by police a day after she was taken to the Hospital. The blood stained under wear of Geeta is said to have been seized by police a day after she was taken to the Hospital. This sort of indicative evidence is very material for purposes of corroboration of the main story and it should not be overlooked by the experts who are generally independent persons having no interest in the dispute between the parties. However the chemical examination report has not been produced hence the seizure of the blood stained under wear loses its significance. 14. First of all it is to be seen as to how the learned Sessions Judge has arrived at the conclusion that the offence in the case falls under section 376(2 (g) IPC which is gang rape. Gang rape has been defined as "where a woman is raped by one or more in a group of persons acting in furtherance of the common interest then each f them shall be deemed to have committed gang rape.". The question which arises is whether the term a group of persons used in explanation (1) of section 376 IPC would mean two persons or it would mean more than two persons. A group is generally understood to be a collection of a number of persons and normally two persons by themselves will not be said to be a group. The word group has been defined in the Websters Third Dictionary as 'inclupture or painting as two or more figures forming a distinctive unit complete in itself or forming part of a larger composition. The other meaning given is "a relatively small number of individuals assembled or standing together". Group can be a number of persons, number not being specified. If the Legislature intended to say that two persons could also form a group then the same could have been stated specifically and the words group of persons would not have been used or the word two or more persons could have been used. Actually the rape may be by one or more person but rape has to be in a group of persons acting in furtherance of common intention. It can be said that when more persons are involved in the commission of rape the offence may be a gang rape. But if the number of persons is only two then they would not fall in the category of group of persons". It can be said that when more persons are involved in the commission of rape the offence may be a gang rape. But if the number of persons is only two then they would not fall in the category of group of persons". In view of this the appellants cannot be said to be guilty of gang rape falling under section 376(2)(g) IPC. 15. The learned counsel for the petitioner has contended that the act of Harchandi in this case does not amount to commission of rape and at the most it can be said to be an attempt to commit the rape. He has placed reliance on a decision of this Court in Bagdi Ram v. State of Rajasthan . In this case the prosecutrix was about 11 years of age on medical examination labia majora and labia minora were found bruised and tender but hymen was intact and there were no other injuries. The Doctor gave the opinion that there had been sexual act out side the vagina and upto the portion below the hymen, but there was no penetration into the hymen. The explanation of section 375 says that penetration is sufficient to constitute the sexual intercourse necessary for the offence of rape. This explanation was taken into consideration and it was held that in case of a girl of tender age, if penetration takes place, there should be wide spread damage of the four chette hymen, laoia majora and labia minora and it can be deduced that no penetration had taken place and the offence would be one of attempt to commit rape. From the definition of rape as given in section 375 IPC, it is difficult to say as to what part should be crossed by penetration for the purposes of commission of rape. Partial penetration can also be such which may show that the penetration has actually taken place. If the injury is such which shows that penetration is not complete but attempt to penetrate is made, in my view the act would amount to attempt to commit rape. Partial penetration can also be such which may show that the penetration has actually taken place. If the injury is such which shows that penetration is not complete but attempt to penetrate is made, in my view the act would amount to attempt to commit rape. Considering the circumstances of the present case and looking to the minor injury of 0.2 c.m. on the hymen and no other injury on the private parts, it can be said that the accused Harchandi had made an attempt to enter his organ in the private parts of the girl Geeta but then this was not a full penetration and only an attempt to enter. The offence of Harchandi would fall under section 376 IPC read with section 511 IPC. 16. Coming to the act of Ashok. It was found by the learned Sessions Judge that it was a Dreplanned act on account of which Ashok assisted Harchandi in the commission of rape, therefore he would also be guilty of the same offence. It has been established by the statement of Geeta that Ashok took her to the tree where Harchandi was sitting and when the act of rape was made by Harchandi then he caught hold of her hands and feet and even pressed her mouth. It may be said that doing three things at the same time may not be physically possible but then the participation of Ashok in the incident and the acts done by him go to show that he aided the doing of the act and his act facilitated the commission of the offence by Harchandi. It is difficult to say what was the offence which the appellant Ashok intended to abet so whatever offence has been committed by Harchandi can be said to have been abetted by him and he would be guilty of having abetted the offence of section 376/511 IPC read with section 109 IPC. 17. In view of this the appeal of the appellants is partly allowed. Instead of conviction for the offence under section 376(2)(g) IPC, the appellant Harchandi is convicted under section 376 IPC read with section 511 IPC and Ashok is convicted under section 376/511 read with section 109 IPC. Both of them are sentenced to two years rigorous imprisonment and a fine of Rs. 250/- each. In default of payment of fine they would further undergo rigorous imprisonment for three months. Both of them are sentenced to two years rigorous imprisonment and a fine of Rs. 250/- each. In default of payment of fine they would further undergo rigorous imprisonment for three months. *******