Judgment S.B.SINHA, J. 1. The sole appellant Biren Mukhi has been convicted by the impugned judgment, dated 18-7-1987 passed by Sri Paras Nath Singh Ist Additional Sessions Judge, Jamshedpur in Sessions Trial No. 489 of 1985, for commission of an offence under Section 376 of the Indian Penal Code for committing rape on Dayamanty at her house situated at Bhalubasa Harijan Basti, P. S. Sitaramdera, District Singhbhum on 2-10-1984 and has been sentenced to undergo rigorous imprisonment for four years. 2. By an order, dated 24-7-1987 a learned single Judge of this Court while admitting the appeal also directed issuance of notice to show cause upon the appellant, as to why, in the event of the success of the prosecution case, the sentence imposed against him shall not be enhanced. In this situation, this appeal has been placed before this Bench for hearing. 3. The fact of the matter lies in a very narrow compass. 4. A first information report was lodged at about 13.45 hours on 3-10-1984 at Tata Main Hospital by Lila Mukhi (P.W. 4) alleging inter alid therein that on 2-10-1984 while she and her husband (Sahadeo Mukhi) had gone out of their house leaving behind their son Romesh (P.W. 3) and three daughters including the victim girl namely, Dayamanti (P.W. 6) at their residence being Qr. No. 177, Harijan Basti, Bhalubasa, P. S. Sitaramdera. 5. At the relevant time P.W. 3 had gone out of the house for a bath and at about 11.30 A.M. when the daughters of the informant were alone in their house the appellant came there, caught hold of the hands of victim, tied up her hands with a dhoti, pressed her mouth with his hands and fell her on a palang and thereafter he stripped off her panty shirt and criminally assaulted her. 6. While P.W. 6 started crying, Romesh (P.W. 3) came back and seeing him the appellant fled away. 7. Allegedly when the informant and her husband returned home they came to learn the aforementioned occurrence and took her to Tata Main Hospital. 8. It appears that on the same day Dayamanty was examined by Dr. R. Tata, Associate Specialist Gyenechology of Tata Main Hospital at about 6.30 P.M. 9. 7. Allegedly when the informant and her husband returned home they came to learn the aforementioned occurrence and took her to Tata Main Hospital. 8. It appears that on the same day Dayamanty was examined by Dr. R. Tata, Associate Specialist Gyenechology of Tata Main Hospital at about 6.30 P.M. 9. It is alleged that the doctor of the Tata Main Hospital advised them to admit the victim in the hospital but Sahadeo Mukhi (husband of the informant) preferred to take her back to house and to admit her in the hospital of an occasion arises therefor. On 3-10-1984 when the victim complained of pain in her private parts, the informant again took her to Tata Main Hospital for treatment and got her admitted. 10. The fardbeyan of P.W. 4 (Lila Devi) was recorded by A.S.I. at Tata Main Hospital at about 12 noon on 3-10-1884. 11. In support of its ease the prosecution examined seven witnesses. P.W. 1 Dr. Mrs. R. Tata is Associate Specialist in Gyenechology of the Tata Main Hospital. She stated in her deposition that on 2-10-1984 at about 6.30 P.M. she examined P.W. 6 and she found the following injuries : "Imflamation of hymen. Slight brownish stains on underwear. Hymen intact, but inflamed and tendey. She was aged about 8 years. Mark of identification was pigmentation on skin of epigastrium 1" x 1/2". The injury report prepared by her was marked an Ext. 1. 12. In cross-examination she stated that she had not given any opinion about the rape in her report. She further stated that she got the stains examined by a pathologist but the original report of the pathologist was not on the record. 13. P.W. 2 is Sahadeo Mukhi. He supported the prosecution case and categorically stated that when he and her wife came back they learnt about the entire occurrence from P.W. 6. He stated that he informed the Mukhia (Kurtul Mukhi) of the area who did not take down his complaint in writing and stated that he was busy in puja. He allegedly waited for the Mukhia (Kurtul Mukhi) till about 3 P.M. and as the condition of his daughter was serious he took her to the Tata Main Hospital. He further stated that he went to the Sitaramdera P. S. at about 11.30 A.M., on the next day when Dayamanty had already been admitted In the hospital. 14. He allegedly waited for the Mukhia (Kurtul Mukhi) till about 3 P.M. and as the condition of his daughter was serious he took her to the Tata Main Hospital. He further stated that he went to the Sitaramdera P. S. at about 11.30 A.M., on the next day when Dayamanty had already been admitted In the hospital. 14. He frankly admitted that although Sakchi and Bistupur Police Stations fall on the way from his house to Tata Main Hospital, he did not inform the Police Station. He voluntarily admitted that his wife had been suffering from illness and having learnt about the occurrence she became ill and as he also became nervous and as such he did not inform the police. He frankly stated that he asked many persons to depose in this case but no body obliged him. He further stated that the appellant is the grandson of Kurtul Mukhi who is the Mukhia. 15. P.W. 3 is Romesh Mukhi. He was aged about 12 years at the date of his deposition. He stated in his deposition that while he had gone out of his house for taking bath, his sister Sumanty came and informed him that the appellant has entered into his house. He found the appellant stopped the victim and the hands and mouth of Dayamanty were tied up with lungi and seeing him the appellant fled away from the near door. He stated that P.W. 6 told him that Biren had committed rape on her. This witness further stated that he made hulla and on hearing the same various people of the locality came to the place but as the appellant was the grandson of the Mukhia, nobody told anything. 16. He further stated that a police party came there and he also told them about the occurrence but they also did not ask any other persons about the incident. The evidence of this witness appears to be trustworthy. 17. P.W. 4 is the informant She supported her statements made in the first information report, in her examination-in-chief. In her cross-examination she admitted that no attempt had been made to inform the police on 2nd October, 1984. She further stated that they went to Mukhia who said that the matter would be decided after two-three days. There is nothing in the evidence of this witness also to discredit her. 18. P.W. 5 (Sumanty) was merely tendered. In her cross-examination she admitted that no attempt had been made to inform the police on 2nd October, 1984. She further stated that they went to Mukhia who said that the matter would be decided after two-three days. There is nothing in the evidence of this witness also to discredit her. 18. P.W. 5 (Sumanty) was merely tendered. She was aged about seven on the day of deposition and thus she was aged about four years on the day of occurrence. 19. P.W. 6 the victim. She was child witness. From her deposition it appears that the learned Court below made an endorsement to the effect that she understands the question put to her and gave correct answer. She has given a detail description of the entire occurrence. However, it appears from her statement that she was tutored to depose in this case for about ten days. P.W. 7 is a formal witness. 20. The learned Court below on the basis of the evidences on record came to the conclusion that the prosecution has been able to prove its case beyond all shadow of doubt. 21. Mr. Laljee Sahay, learned counsel appearing on behalf of the appellant, has raised four contentions in support of this appeal. Firstly, the learned counsel contended that as the investigating officer was not examined, the prosecution case must be held to have failed to prove its case. The learned counsel further submitted that no independent witness was examined, although the occurrence in question has taken place in broad day light in a thickly populated area. According to the learned counsel an inference should be drawn against the prosecution for non-examination of the independent witnesses. 22. It was next contended by the learned counsel that there was an inordinate delay in lodging of the first information report and on that ground also the prosecution case should be viewed with suspicion. 23. It was next contended by the learned counsel that in any event it is a case in which the doctor has not given any opinion about the rape and the pathology report about the alleged stains on clothings had also not been brought on record and thus the prosecution must be held to have failed to prove its case. 23. It was next contended by the learned counsel that in any event it is a case in which the doctor has not given any opinion about the rape and the pathology report about the alleged stains on clothings had also not been brought on record and thus the prosecution must be held to have failed to prove its case. It was further contended by the learned counsel that in view of the fact that the victim girl was tutored for about ten days, no reliance can be placed on her evidence. 24. The learned counsel further submitted that in any event the appellant may be held guilty for an offence only under Section 354 of the Indian Penal Code. 25. Mr. S. N. Rajgarhia, the learned counsel appearing on behalf of the State, on the other hand, submitted that in the instant case the prosecution has fully proved its case as against the appellant beyond all reasonable doubt It was further submitted by the learned counsel that non-examination by the investigating officer is not fatal to the prosecution case as thereby the appellant has not been prejudiced at all. 26. The learned counsel next contended that the delay in lodging the first information report has adequately been explained. The learned counsel further submitted that the witnesses have categorically stated that the independent witnesses declined to depose as against the appellant as he is the grandson of the Mukhia. 27. It was further submitted that although P.W. 1 has not given any definite opinion as to whether the victim had been raped or not, the injuries found by her must be held to be sufficient for proving the factum of criminal assault. 28. With regard to the veracity of the testimony of P.W. 6, the learned counsel submitted that she had answered the question put to her intelligibly and it is possible that she stated about being tutored for ten days without understanding the implication thereof. 29. So far the delay in lodging the first information report is concerned, there cannot be any doubt that some delay has occurred. 30. It is well-known that for various social reasons the parents of a girl are reluctant, to lodge a case before the police particularly in a case where a girl has been raped. 31. 29. So far the delay in lodging the first information report is concerned, there cannot be any doubt that some delay has occurred. 30. It is well-known that for various social reasons the parents of a girl are reluctant, to lodge a case before the police particularly in a case where a girl has been raped. 31. Further it is evident that the grand father of the appellant had been the Mukhia of the community. He was thus an influential person. It is, therefore, for this reason P.W. 2 seems to have gone to him first so that he may do something about this matter. It is also borne out from the records that P.W. 2 is a Harijan. 32. From the evidence of P.W. 2 and P.W. 3 it is evident that the Mukhia also did not help them in any manner whatsoever. Only in the afternoon when the condition of the victim became serious, they took her to Tata Main Hospital where evidently she was examined by one doctor and was treated. 33. From a perusal of the first information report itself, it would be evident that doctor of the Tata Main Hospital advised them to admit the victim, but P.W. 2 was not inclined therefor as he thought that the daughter may be admitted if any emergency arises and as such the parents took their daughter back home. 34. Only on the next day when the victim again complained of severe pain in her private parts, the parents thought it fit to get her treated and with that end in view again brought her back to the Tata Main Hospital where the first information report was lodged. 35. It is not one of those cases where the parents of the victim girl wanted to hide anything as they frankly stated that they did not inform the police. 36. P.W. 2 as noticed hereinbefore, further stated that as he himself became nervous and his wife also became indisposed, they did not go to the police station. In a case of this nature, in our opinion, the delay in lodging the first information report itself cannot be said to be fatal to the prosecution case. 37. So far non-examination of the investigating officer is concerned, we are of the view that the appellant has not been prejudiced at all by reason thereof. 38. Mr. In a case of this nature, in our opinion, the delay in lodging the first information report itself cannot be said to be fatal to the prosecution case. 37. So far non-examination of the investigating officer is concerned, we are of the view that the appellant has not been prejudiced at all by reason thereof. 38. Mr. Laljee Sahay, learned counsel appearing on behalf of the appellant, has not been able to point out before us any material to show that by reason of non-examination of Investigating Officer, the prosecution has become prejudiced in any manner whatsoever. 39. No statement of material importance appears to have been put to the prosecution witnesses to the effect that they made any earlier statements before the police contrary to their statements in Court. In this view of the matter, we are of the opinion that the appellant was not at all prejudiced by reason of non-examination of the investigating officer. 40. So tar non-examination of independent witnesses are concerned, the prosecution has brought enough materials to show as to why no independent witnesses could be examined. 41. P.W. 2 in his deposition very frankly stated that although he told about the incident to his neighbourers and although he requested many of them to depose in this case but nobody acceded to his requests in view of the fact that the appellant happened to be grandson of the Mukhia. Even P.W. 3 who was of the tender age at the time of occurrence and was merely twelve years of age at the time of his deposition categorically stated that although immediately after occurrence various persons assembled near their house but everybody kept mum as the appellant happened to be the grandson of the Mukhia. 42. In Appabhai V/s. State of Gujarat, reported in 1988 East Cr C 288 (SC) : AIR 1988 SC 696 : 1988 Cr LJ 848, the Supreme Court held as follows : "It is no doubt true that the prosecution has not been able to produce any independent witness to the incident that took place at the bus stand. There must have been several of such witnesses. But the prosecution case can not be thrown out or doubted on that ground alone. Experience reminds us that civilized people are generally insensitive when a crime is committed even in their presence. They withdraw both from the victim and the vigilante. There must have been several of such witnesses. But the prosecution case can not be thrown out or doubted on that ground alone. Experience reminds us that civilized people are generally insensitive when a crime is committed even in their presence. They withdraw both from the victim and the vigilante. They keep themselves away from the Court unless it is inevitable. They think that crime like civil dispute is between two individuals or parties and they should not involve themselves. This kind of apathy of the general public is indeed unfortunate, but it is there everywhere whether in Village life, towns or cities. One cannot ignore this handicap with which the investigating agency has to discharge its duties. The Court, therefore, instead of doubting the prosecution case for want of independent witness must consider the broad spectrum of the prosecution version and then search for the nugget of truth with due regard to probability, if any, suggested by the accused." 43. It is true that P.W. 1 in her evidence did not give any definite opinion that rape was committed on P.W. 6. However, the fact that P.W. 6 was examined by P. W. 1 on the day on which the occurrence took place and she found that the hymen was inflamed and it was tender. Some brownish stain was further found on her underwear P.W. 2 and P.W. 3 stated that P.W. 6 complained of pain on her private parts. 44. According to the P.W. 2 her condition became serious on 2nd October, 1984 itself and although she was treated at Tata Main Hospital on that date. After having been examined by P.W. 1, she again complained of severe pain on the next day and then again he had to be admitted in the said hospital. 45. From Ext. 1 it appears that at the first opportunity the doctor was told about the occurrence in details that the appellant had assaulted the victim sexually. Those statements were made before P.W. 1 by the victim girl hereself. 46. It is well-known that in young girls under the age of 12 years the hymen is situated relatively more posteriorly (in backward position) and higher up in a narrow vaginal canal. Those statements were made before P.W. 1 by the victim girl hereself. 46. It is well-known that in young girls under the age of 12 years the hymen is situated relatively more posteriorly (in backward position) and higher up in a narrow vaginal canal. This prevents the hymen from coming in contact with the male organ in forceful penetration of the organ, This also saves the hymen from bearing the brunt of the blow and thus it escapes injury. Thus absence of injury to hymen in a girl under 12 years does not rule out the act of rape. (See R. M. Jhala & V. B. Eaju in Medical Jurisprudence, 4th Edition, page 452). 47. P.W. 3 who was also a boy of tender age testified that when he came to the house she found the appellant was atop P.W. 6. 48. In terms of Section 375 of the Indian Penal Code, even a slight penetration is sufficient to constitute the sexual intercourse necessary to make out an offence the rape. 49. In the instant case although, the prosecutrix stated in her deposition that she had been raped but no statement was made by her as to whether the main ingredients of Section 375 of the Indian Penal Code namely as to whether the act of sexual intercourse was complete or not. 50. P.W. 1 the dector who examined P.W. 6 also did not opine as to whether rape was committed by the appellant upon P.W. 6 or not. 51. However, in view of the evidence of P.W. 2, P.W. 3, coupled with the evidence of P.W. 6 and from the medical evidence it is clear that the appellant atleast made an attempt to commit rape upon P.W. 6. 52. This view of ours finds support from the fact that the prosecutrix complained of pain on her private parts in the evening of the day on which the occurrence took place and pursuant whereof she was examined and treated at the Tata Main Hospital. 53. Even the doctor who attended on P.W. 6 advised her parents to get her admitted in the hospital Even on the next day she complained of severe pain and only on that she was again brought to the hospital for treatment. 54. P.W. 1 in her report clearly found that hymen was inflamed and tendered. 55. 53. Even the doctor who attended on P.W. 6 advised her parents to get her admitted in the hospital Even on the next day she complained of severe pain and only on that she was again brought to the hospital for treatment. 54. P.W. 1 in her report clearly found that hymen was inflamed and tendered. 55. Taking thus all facts and circumstances into consideration there can not be any doubt that some external force on the private parts of the P.W. 6 was applied It is, therefore, clear that even if there is some doubt as to whether the appellant is guilty of commission of an offence under Section 376 of the Indian Penal Code nor not, he is certainly guilty of commission of an offence under Section 376/511 of the Indian Penal Code. By way of extra precaution and prudence, we, therefore, alter the conviction of the appellant from an offence under Section 376 of the Indian Penal Code to an offence under Section 376/511 thereof. 56. The question which now arises for consideration is as to the quantum of punishment required to be imposed upon the appellant. As notice upon the appellant as to why the sentence imposed upon him should not be enhanced. 57. The appellant has not filed any showcause in writing. However, Mr. Laljee Sahay, address us on this question also. 58. It is not in dispute that P.W. 6 was a girl of eight years at the time, when the alleged offence was cinimitted. In terms of Section 376 (2) (f) of the Indian Penal Code this Court has to impose a sentence not less than ten years rigorous imprisonment as well as fine. 59. Section 511 of the Indian Penal Code reads as follows : "Punishment for attempting to commit offences punishable with imprisonment for life or other imprisonment. Whoever attempts to commit an offence punishable by this Code with imprisonment for life or imprisonment, or to cause such an offence to be committed, and in such attempt does any act towards the commission of the offence shall where no express provision is made by this Code for the punishment of such attempt, be punished with imprisonment of any description provided for that offence, or with such fine as. is provided for the offence, or with both" 60. is provided for the offence, or with both" 60. From a bare perusal of the aforementioned provision it is evident that in a case where an attempt is made for commission of an offence, the accused will be liable for punishment of half of the punishment provide for the commission of an offence in respect whereof an attement was made. 61. In such a situation, we have no option but to award the minimum punishment upon the appellant which would be five years rigorous imprisonment. Besides the aforementioned terms of imprisonment, the appellant is also liable to pay fine and in our opinion, in the facts and circumstances of the case, the appellant should be directed to pay a sum of Rs. 2000/- by way of fine and in default to undergo simple imprisonment for a period of six months more. If the fine is realised from the appellant, the said amount is directed to be paid to the victim girl namely Dayamanty. 62. Before partiing with the case, it may be mentioned, that the learned Court below committed an illegality in awarding of sentence of four years rigorous imprisonment to the appellant, although he found him guilty of an offence under Section 376 of the Indian Penal Code. 63. Regard being had to the fact that the victim girl was aged about eight years only, the sentence imposed upon the appellant by the learned Court below, must be held to be against the mandate of the law. It is, therefore, clear that this Court has rightly issued a rule of enhancement. 64. In the result, this appeal is dismissed with the modification in conviction of the appellant, as mentioned hereinbefore and he is sentenced to five years rigorous imprisonment and he is further directed to pay a fine of Rs. 2000/- and in default further simple imprisonment of six months. The fine, if realised, shall be paid to the victim as directed hereinbefore. D.Sinha, J. 65 I agree.