JUDGMENT 1. - The accused appellant has been convicted for the offences under sections 376 and 365 Indian Penal Code. He has been sentenced as under : Under Section. 376 I.P.C. : Life imprisonment and a fine of Rs. 10,000/- and in default of payment of fine to undergo five years R.I. Under Section. 365 I.P.C. : Three years R I. and a fine of Rs. 1,000/- and in default of payment of fine to undergo further six months imprisonment. 2. The facts leading to this case lie in a very short compass. Huma @ Jayada was only 4 years old when the incident occurred. She is related to the accused and has referred to him as Marnmu Bhaiya. The accused took her to the hill side where she was raped When the girl was missed at home her family members went in search of her and they learnt that, she had gone with the accused The informant Hasan and Farida. sister of the prosecutrix went in search towards the hill side and there they met the accused. He was questioned about the child Huma, but he refused to give any information The he was asked to join them in the search. Then accused lead the way and took them on the other side of the hill, where they found Hama, who was bleeding from the private parts On questioning, Huma told that the accused had brought her to that place and that he was responsible for her condition. There was blood on the neck and face of Huma, besides small injuries This first information report was lodged on 15-2-1989 and the incident is of the same day. 3. The girl Huma was medically examined and the following was her condition including injuries 1. Clothes no any clothes are wear by Jayada on lower part. 2. Injuries (a) Abrasion on rt. cheeck below rt. eye size 2" x 1" (b) Bleeding from nose clotted blood outside nostrils. (c) Rt. eye (conjictive) is reddish in colour (d) Multiple scratches and abrasion all over neck except back side. 3 External gennitals no any injury is seen around the public area. urethra but blood is present near vaginal orifice and posterior formices 4. Internal vaginal examination on opening blading tearing of posterior formices and hymen is tearing and blood coming from this part. 3 External gennitals no any injury is seen around the public area. urethra but blood is present near vaginal orifice and posterior formices 4. Internal vaginal examination on opening blading tearing of posterior formices and hymen is tearing and blood coming from this part. There was no injury around pubic area, urethra but blood was present near vaginal and posterior formices. There was bleeding and tearing of posterior formices and hymen was torn and blood was coming out from this part. In the opinion of the doctor forceful intercourse was tried with the girl but for expert opinion she was referred to Government Hospital and vaginal swab was sent for chemical analysis. On medical examination Dr. Usha Agrawal found that there was injury on posterior forchette with small tear. The report of the Forensic Science Laboratory says that there was no semen on frock, towel chaddi and vaginal swab 4. Before coming to the case, which can be said to have been made out by the prosecution we may lock in to the statement of the girl Hurna @ Jahida, who was only five years old when her statement was recorded and was only four years old when the incident occurred. She stated that her Mammu Bhaiya took her to the hill and her neck was squeezed by him. Her own words are Then she was tied with a rope and thrown in a ditch. He kept stones on her chest then blood started coming out from her private parts. According to her this blood was taken out by the accused by a rope She was carried on the hill by the accused on the pretext that he would give plum to her. 5. The accused is a man of 2l years of age He has denied the entire prosecution story. He is a married man and there were no injury marks on her person when examined by the doctor. 6. The other witnesses in the case are those who have given the evidence that Huma @ Jahida was seen going with the accused and that Ali Hasan and Narida Begum recovered her from the other side of the hill where they were taken by the accused. 7. PW 5 Dr. 6. The other witnesses in the case are those who have given the evidence that Huma @ Jahida was seen going with the accused and that Ali Hasan and Narida Begum recovered her from the other side of the hill where they were taken by the accused. 7. PW 5 Dr. Dhanna Lal Meena, who was Medical Officer in the Government Hospital Chhabra examined Huma @ Jahida and on the basis of the condition of Huma @ Jahida on her private parts he was of the opinion that forceful intercourse had been attempted PW 6 Dr Usha Agrawal is a Gynaecologist and according to her definite opinion about rape could be given on the basis of the FSL report. There was tear around posterior portion of vulva and clotted blood around it. 8. On the basis of the evidence on record there can be no doubt that the child Huma was taken by the accused on the pretext of providing plum in the lonely area of hill side and it is also apparent that the girl Huma knew accused very well and there was no hesitation for Huma in going along with accused appellant. It can also be said that the accused appellant was responsible for the condition of Huma, but the only question which remains is in what manner she was injured 9. The learned counsel for the appellant has not challenged the conviction of the appellant under section 365 Indian Penal Code because there is over whelming evidence that Huma was taken away by the accused appellant on the other side of the hill on some pretext but it has been contended that the offence under section 376 Indian Penal Code is not made out. First of all reference has been made to the statement of Huma herself, who has stated that blood was taken out by a rope, which means that there is no evidence about penetration of the male organ of the appellant. It is argued that there was no injury or swelling or blood stains on the accused so as to connect him with the offence of rape Referring to the medical evidence it is stated that vaginal swab was not positive for semen and this also shows that there was no penetration. 10. It is argued that there was no injury or swelling or blood stains on the accused so as to connect him with the offence of rape Referring to the medical evidence it is stated that vaginal swab was not positive for semen and this also shows that there was no penetration. 10. Reliance has been placed on Shanker Tukaram v. State of Maharashtra, 1977 Cr LJ 476 , wherein it was held that for the offence under section 376 Indian Penal Code. penetration in vulva must be established and when the medical evidence showed that the congestion was quarter of an inch from vulva, then conviction was altered to section 376 read with section 511 Indian Penal Code. 11. In Padam Singh v. State of Rajasthan, 1982 Raj. Cr Cases 141 a child of three and half years old at the time of examination before the court was held to be an incompetent witness. There was no evidence of injury on the private parts of the accused and the report of the Chemical Examiner was not produced; in the circumstances it was held that offence under Section 354 Indian Penal Code alone was made out even though the child was bleeding from the vagina. 12. On the other hand the learned Public Prosecutor has placed reliance on Dalchand v. State, 1969 Cr LJ 585 , wherein considering the injuries on the private parts of the prosecutrix, it was held that absence of injuries on the person of the accused and particularly penis cannot be the sole ground for discarding the prosecution evidence. 13. In State of Karnataka v. Mahabaleshwar Gourya Naik, AIR 1992 SC 2043 it was held that the charge of rape can be proved by other evidence showing criminal act of accused in case the prosecutrix is not available. 14. In Sua Lal v. State of Rajasthan, 1972 Part I WLN 738 , it was held that in each case the court has to appraise the evidence to see to what extent it is worthy of acceptance and merely because in one or two respects the court considers it unsafe to rely on the testimony of a witness, it does not necessarily follow as a matter of law that it must be discarded in all other respects as well. In this case the conviction under section 376 Indian Penal Code was altered to section 376 Indian Penal Code read with section 511 Indian Penal Code. 15. Similarly in Suresh Chand v. State of Haryana, 1976 Cr LJ 452 , the medical evidence that forechette was lacerated and hymen was not injured was held to be sufficient to convict the accused for the offence of attempt to commit rape 16. It can be said that lack of any marks of injuries on the accused would not conclusively go to establish his innocence. It is the condition of the girl which is also relevant and would mainly decide as to what offence can be said to be have been committed. The statement of the prosecutrix, looking to her age and the fact that she was known very well to the accused would not be the last word for deciding the nature of the offence. 17. Huma was first examined by the Medical Officer at Chhabra by Dr. Dhhana Lal Meena and as seen above besides the injuries on the cheek and neck, blood was present near orifice and posterior formices. On opening bleeding tearing of posterior formices, and hymen was tearing and blood was coming from this part. He advised specialists opinion, though he gave his opinion that forceful intercourse had been tried with the girl. When the girl Huma was examined by the Gynaecologist Dr. Usha Agrawal, she gave opinion that hymen and urethra was intact and there was clotted blood around vulva and there was a small tea, 1/4 cm in the post forechette. She deferred her definite opinion as she wanted to see the report of the vaginal swab. The result of the FSL report is that there was no semen detected from the clothes as well as vaginal swab. In such circumstances when the hymen and urethra were not ruptured then the offence of the accused can be said to be an attempt to commit rape and not the actual rape itself. 18. In this case the sentence imposed by the learned Addl. In such circumstances when the hymen and urethra were not ruptured then the offence of the accused can be said to be an attempt to commit rape and not the actual rape itself. 18. In this case the sentence imposed by the learned Addl. Sessions Judge is life imprisonment and when this conviction under Section 376 Indian Penal Code is to be altered to Section 376 Indian Penal Code read with section 511 Indian Penal Code then looking to the fact that the girl upon whom the rape was attempted was under 12 years of age the appropriate sentence would be 7 years rigorous imprisonment and a fine of Rs 5,000/-. 19. In the result the appeal of the appellant is partly allowed. The conviction and sentence for the offence under Section 365 Indian Penal Code is maintained. The appellant is acquitted of the offence under Section 376 Indian Penal Code but the conviction is altered and he is convicted for the offence under section 376 Indian Penal Code read with section 511 Indian Penal Code, for which the appellant is sentenced to 7 years rigorous imprisonment and a fine of 5,000/- and in default of payment of fine he shall undergo rigorous imprisonment for two years. The accused appellant is in jail, he shall undergo his remaining sentence.Appeal Partly allowed. *******