Judgment : ARUNACHALAM, J. ( 1 ) PETITIONER, palanisamy Gounder, was convicted in S. C. 8 of 1987, on the me of the 5th Addi. , Asst. , Sessions Judge, Coimbatore, under section 376, I. P. C. , read with Section 511, I. P. C. and sentenced to undergo rigorous imprisonment for 2-1/2 years and pay a fine of Rs. 1,500/-in default to suffer rigorous imprisonment for one more year. He was further found guilty under section 506 part II, I. P. C. , (two counts) and sentenced to undergo rigorous imprisonment for one year under each count. Substantive sentence of imprisonment were directed to run concurrently. ( 2 ) AGGRIEVED petitioner challenged the substantive ability of his convictions and consequent sentences by preferring C. A. No. 77 of 1988 before the Additional Sessions Judge, Coimbatore. Appellate Court concurred with the findings of fact recorded by the learned trial Judge while observing that the facts may as well indicate rape simpliciter. However, in the opinion of the appellate Court, petitioner was liable to be convicted under section 506 part I I. P. C. and not under section 506 part II, I. P. C. Conviction was accordingly modified, but sentence of rigorous imprisonment for one year was maintained. Conviction for attempt to rape as well as sentence imposed were confirmed. ( 3 ) OCCURRENCE which led to this prosecution is alleged to have taken place at or about 3 a. m. , on 8. 7. 1985 at Kottapalayam Village, P. W. 1 Daivathal, daughter of P.W. 2 Muthusamy, is the victim. P. Ws. 1 and 2 are agricultural labourers. P. W. 1 is aged about 19 years at the time of occurrence. Petitioner is a land-lord and P. W. 1 was used to be engaged as a labourer along with several other girls in the garden land of the petitioner. Petitioner used to tense her on certain occasions, when she was so engaged as a cccli. P. W. 1 did not take such overtures, very seriously. While so, when she was sleeping on the pial of her house at 3 a. m. , on 8. 7. 1985, petitioner, after threatening to kill her, when she raised a hue and cry, forcibly committed rape. On hearing her cries, P. W. 2 her father, P. W. 3 a neighbour and several others rushed to the scene. While so, when she was sleeping on the pial of her house at 3 a. m. , on 8. 7. 1985, petitioner, after threatening to kill her, when she raised a hue and cry, forcibly committed rape. On hearing her cries, P. W. 2 her father, P. W. 3 a neighbour and several others rushed to the scene. P. W. 2 noticed the petitioner standing near his house. When P. W. 2 questioned the petitioner, as to why he was found near his residence at that unearthly hour, petitioner offered to pay Rs. 100/- to P. W. 2 and threatend to stab him in the event of his creating a scene. P. W. 3 was treated hostile by the prosecution, since he denied knowledge about the occurrence. P. Ws. 1 and 2 complained to P. WA Palanisamy Gounder, the advised them to prefer a complaint at the police station. Soon thereafter, a complaint was lodged. Petitioner was arrested on 9. 7. 1985 at 3 p. m. ( 4 ) P. W. 5 Dr. Geethanjali examined the victim at 930 p. m. , on 8. 7. 1985 and found the following injuries1. marks of violence scratch mark If 2 cm. in length on the right cheek about 2 cm. , away from the angle of the mouth. 2. 3 scratch marks 1/2 cm. , in length at intervals of 2 cms. on the left cheek. 3. In both breasts four scratch marks 1/2 cm. , in length at intervals of 2 cms. in the upper and inner part. 4. 2 scratch marks 1 cm. , in length in both things in the inner aspect in the upper third. ( 5 ) GENITALS separation of thighs is not painful. No seminal stain or blood stain were seen over the private part of the victim. There was no external injury in the form of bruises; scratch mark, laceration or swelling any where over the, monspubia, labia, majorn and perineum. Hymen was found absent. There was neither redness nor bleeding or tear in the vagina. There was no discharge from the vagina or urethra. Ex. P. 2 is the wound certificate. P. W. 5 was unable to give an opinion if P. W. 1 had been raped or not. 5. Petitioner was found potent by the medical officer who examined him. On the basis of the oral evidence of P. Ws. There was no discharge from the vagina or urethra. Ex. P. 2 is the wound certificate. P. W. 5 was unable to give an opinion if P. W. 1 had been raped or not. 5. Petitioner was found potent by the medical officer who examined him. On the basis of the oral evidence of P. Ws. 1 and 2 coupled with the medical evidence, the petitioner was found guilty and dealt with as stated earlier. ( 6 ) IN this revision, Mr. P. Venkatasubramaniam, learned counsel appearing on behalf of the petitioner, contended that the evidence of P. W. 1 by any standard cannot inspire confidence, for she claims to have had forcible intercourse with the petitioner for over one hour which was apparently artificial. He pointed out that as was suggested to P. W. 1, she was a kept concubine of Natarajan Gounder a local villager, who was also present in court during trial. P. W. 1 admitted that Nataraja Gounder locked as though was present, in the court precincts. Connecting this admission, it was pointed out by the learned defence counsel that P. W. 2 had admitted that Natarajan Gounder and Chinnakutty were enemies of the petitioner and friends of his family. If that be so, false implication of the petitioner can be inferred. He submitted that on the medical evidence, it will not be possible to hold that the petitioner had either or committed rape or even attempted to commit rape. No seminal stains were found in the cloths seized from the victim. On these contentions, 1 have heard Mr. G. Kumaravel, learned Govt. Advocate. He contended that there was some exaggeration in the evidence of P. W. I, but in spite of such infirmity, the basis fabric of the prosecution case cannot be doubted. He contended that the medical evidence, at least to a limited extent corroborated the ocular version of P. W. 1. This was not a case where there was any delay in preferring the complaint. He urged that the verdict of the courts below needed no interference. ( 7 ) I have carefully considered the divergent contentions. P. W. 1 is a young girl aged about 19 years. It will be very difficult to accept the defence contention that she had been used as a tool by her father, Natarajan Gounder and Chinnakutty to wrong vengeance against the petitioner. ( 7 ) I have carefully considered the divergent contentions. P. W. 1 is a young girl aged about 19 years. It will be very difficult to accept the defence contention that she had been used as a tool by her father, Natarajan Gounder and Chinnakutty to wrong vengeance against the petitioner. It appears odd that a young girl would have been made to speak of rape, especially when she was unmarried and it was bound to affect her future. There appears to be nothing unnatural in Natarajan Gounder and Chinnakutty having been present in court compound, during trial for P. W. 2 has admitted that they were his friends. Though P. W. 1 has stated that she was not aware of sexual intercourse, before this occurrence, it is apparent that she had told the Doctor (P. W. 5) that she has had sexual intercourse previously with a known person. Obviously P. W. 1 was not speaking the entire truth about her prior sexual adventure. Even in chief-examination, she has described the whole sexual act and has further added that for over an hour, the petitioner indulged in such intercourse, she has deposed that she was sleeping and hence did not realise the presence of the petitioner till he caught hold of her breasts. If that be so, she must have raised a hue and cry immediately, which must have attracted the attention of the neighbours. Hence, it is not possible to conclude that the petitioner indulged in any sexual activity for over an hour. This, as rightly pointed out by the learned Govt. , Advocate, is totally an exaggeration. P. W. 1 when cross-examined admitted that none-else knew about the intercourse petitioner had with her and in spite of her shouting none came near her. If the petitioner, has had sexual experience earlier, one can probably visualise consent on her part, but such consent has to be ruled out on the peculiar facts, for certain scratches were noticed on P. W. 1 on her cheek, mouth, breasts and thighs. However if P. W. 1 could be expected to have shouted, which she must have done in the normal course, it is possible to visualise the presence of P. W. 2 her father, at the scene soon thereafter. However if P. W. 1 could be expected to have shouted, which she must have done in the normal course, it is possible to visualise the presence of P. W. 2 her father, at the scene soon thereafter. In view of medical evidence not even disclosing redness in the vagina, it prima facie appears that it would be difficult to find the petitioner guilty of even attempt to rape. If the evidence of P. W. 1 does not contain so much of exaggeration, it might have been possible to conclude that the petitioner had attempted to rape her. While appreciating evidence of a witness, who has partially spoken truth and partially spoken untruth, courts, are to be on guard, while deciding the nature of offence committed by the accused. While it is not possible to totally agree with the defence counsel, that no incident as such had happened and the petitioner, was falsely implicated, it is quite possible to conceive that the petitioner had attempted to outrage the modesty of P. W. 1 who was working quite often in his garden land and to whom he had made prior overtures. On the peculiar facts of this case, though the line of demarcation, between the offences under section 376 read with section 511, I. P. C. , and Section 354 I. P. C. , is, thin, I am of the view that it will be more apt to convict the petitioner under Section 354, I. P. C. rather for-the offence of attempting to rape P. W. 1. In that view; conviction under Section 376 read with section 511, I. P. C. shall stand set aside and instead the petitioner is convicted under Section 354, I. P. C. For the modified conviction, I sentence the petitioner to undergo rigorous imprisonment for 18 months. The sentence of fine is maintained for the modified conviction. Convictions recorded under Section 506 part (I), I. P. C. , and consequent sentences shall also stand confirmed. ( 8 ) LEARNED counsel for the petitioner as well as the Govt. Advocate brought to my notice that beneficial remissions in sentence notified by the state Government will enure in favour of the petitioner and the entire sentence of 18 months R. I. will stand wiped out. ( 8 ) LEARNED counsel for the petitioner as well as the Govt. Advocate brought to my notice that beneficial remissions in sentence notified by the state Government will enure in favour of the petitioner and the entire sentence of 18 months R. I. will stand wiped out. If that be so, the petitioner need not have to surrender before the prison authorities to undergo the unexpired portion of his sentence of imprisonment. However, the sentence of fine shall stand confirmed. This revision is ordered accordingly. Revision partly allowed.