D. M. PATNAIK, J. ( 1 ) THE appellant assails his conviction for the offence under section 376 of the Indian Penal Code and sentence of ten years rigorous imprisonment. ( 2 ) PROSECUTION case is, on 4/2/1991 around 4 p. m. the victim girl aged about six years while returning from a shop with grocery articles, the appellant who owned a tailoring shop at Kadarabad road in Balasore town called her inside the shop and stripped her naked and made her sit on his lap and committed rape on her. The mother of the victim girl searching her reached the place and found the girl coming out of the shop of the appellant. On being asked, the girl disclosed the incident. Hearing this, the mother gave out loudly which attracted a gathering. Police being informed reached the spot where the F. I. R. Was lodged. During investigation the victim girl was medically examined and the doctor opined that possibility of rape having been committed could not be ruled out. The appellant pleaded innocence and further pleaded that this was outcome of the rivalry with one Baistrab Choudhury who on account of the enmity during election foisted this false case against him. ( 3 ) MR. P. K. Mishra, learned counsel for the appellant, strenuously urged for the acquittal on the ground that the medical evidence totally ruled out the possibility of a rape and, therefore, the finding of the trial court on that score is erroneous, Mr. Mishra also draw the attention of this Court to the evidence on record touching various infirmities in the prosecution case. Miss. C. Kasturi, learned Additional Standing Counsel, on the other hand, supported the judgment of the trial court. ( 4 ) ADMITTEDLY the victim girl was six year old. P. W. 11 the doctor who conducted the ossification test found that she was aged about 6 to 8 years. This age of the girl is not challenged P. W. 12 was the doctor who examined the girl on the same day around 12 midnights on police requisition. He found the hymen intact. According to him, the tip of the finger did not admit into the vagina. There was no internal or external injury on the private part, nor any injury neither on any other part of the body nor on the breasts. He found the hymen intact. According to him, the tip of the finger did not admit into the vagina. There was no internal or external injury on the private part, nor any injury neither on any other part of the body nor on the breasts. There was no foreign hair or semen stains noticed near the vagina. The doctor found water discharge on the vulva and vagina, which, according to him, was not common with a girl of that age. The labio minora was red and inflamed. In para 2 of the examination-in-chief, he opined that taking the fact of massive watery discharge on the vulva and vagina and the fact of the labio minora being red and inflamed, he concluded that there was possibility of penetration of the male organ into her vagina. In cross-examination he stated that the vaginal hole was less than the circumference of his (doctorts) fingertip He stated that inflammation of the vagina costly also be caused due to unhygienic diseases. He also stated that if there was inflammation of the vulva there may be passive watery discharge and that this inflammation is caused if the girl remains in unhygienic condition. To a courts question he answered that, such inflammatory condition of the organ may be also responsible for the massive watery discharge. In para 6 to the courts further question he stated that, this watery discharge from the vagina and redness and inflammation of the lobia minora might be due to disease of gonorrhea to which the doctor answered and stated that these three conditions are possible due to disease. In view of this shaky evidence of the doctor it can hardly be believed that there was penetration. The absence of any in jury on the private part of the girl rules out the possibility of any rape- having been committed. ( 5 ) BESIDES, the evidence of the girl (P. W. 4) also does not inspire confidence to conclude that the appellant committed rape. The material part of her evidence was, she was sent by her mother to market to purchase some articles. While coming back to the house with the articles the- accused called her inside his shop with a plea to take her pant measurement. Inside the shop, he removed her pant and carried on the act of rape by penetrating his private part into the vagina. While coming back to the house with the articles the- accused called her inside his shop with a plea to take her pant measurement. Inside the shop, he removed her pant and carried on the act of rape by penetrating his private part into the vagina. He did this by making her sit on his lap. She felt pain and started weeping. After the act, she put on her pant, collected the purchased articles and came out of the shop of the accused. At this time she saw her mother standing at little distance. She went with her to their house and it was in the house she narrated about the incident to both her father and mother, after which they brought her back to the spot and thereafter many persons gathered. The material part of her evidence in the cross-examination was that the accused sat on the floor by the side of an admiral while committing the offence with her. At that time the door of his shop was half opened. The accused sat on the floor with crossed-legs while she sat on his lap facing towards him. His private part was visible to her. He pushed the penis into the vagina once. There was full penetration, but there was no bleeding. She did not feel any pain in the vagina while the appellant was committing this act. But she stated that she felt pain when she saw her mother near the shop of the accused after she came out of the shop. On hearing her mother calling, she came out of the shop, which her mother saw and near the shop she told the incident to her mother and after her mother heard this she started shouting and people gathered one by one. ( 6 ) THE above evidence of the girl as is found from the cross-examination disproves the case of rape. It is highly improbable to conceive that a girl aged 6 years, having her hymen intact and the vaginal passage or the place near about bearing no injury, and (according to the doctor) whose vaginal passage would not even admit tip of the finger, would not feel any pain on account of the organ of the appellant being thrust inside the vagina. This statement in her evidence and the medical evidence makes the story of penetration highly improbable. This statement in her evidence and the medical evidence makes the story of penetration highly improbable. To add to his, P. W. 10 die doctor who examined the appellant on the next day at 4 p. m. opined that he was capable of doing sexual intercourse. He also found no sign of recent sexual intercourse on his private part. But one thing is significant that the evidence of the doctor does not indicate that the appellant had any injury on his private part though the doctor stated to have examined him and collected seminal fluid for pathological examination. When it is an alleged rape with full penetration of a well developed male organ into the vaginal passage of a girl of six years of age, which according to the doctor would be difficult to admit even the tip of the foggers, there would be likelihood of injury on the private part of the person committing rape and absence of such an injury on the private part of the accused would the us point to innocence of the accused vide para 26 of the decision of the Supreme Court in Rahim Beg and Anr. v. State of U. P. Thus I hold that the appellant did not commit any act of rape and, therefore, he is acquitted of that charge. Next is to find out whether the appellant could be said to have committed any other offence. ( 7 ) I do not find any reason as to why this small girl would like to expose the appellant to such a calumny. Her evidence so far as penetration is concerned has been disbelieved. But then there is no reason to disbelieve her testimony that the appellant called her inside the shop, removed her pant, stripped her naked and made her to sit on his lap, and exposed his private part. It can hardly be believed that a girl of that age would be so meticulously tutored so as to narrate this part of the incident as stated by her with such perfection that her testimony would not be shaken in cross examination. The very fact that the appellant admitted in his 313 statements that the girl had come to him at that time strengthens this part of the testimony of the girl. The very fact that the appellant admitted in his 313 statements that the girl had come to him at that time strengthens this part of the testimony of the girl. From this, it can be inferred that taking advantage of the lone presence of the girl inside the shop the possibility of the appellant being tempted to satisfy his lust for sex would not be ruled out. In a case of similar nature, reported in Maharaj Din v. Emperor2, the Court did not find the appellant to have committed any offence of rape but it was an attempt to commit rape. Therefore, I hold that the appellant is liable for attempting to commit rape punishable under section 376 read with section 511, I. P. C. ( 8 ) MR Mishra submitted that tile entire case against the appellant is false and according to him, one Baistnab Choudhury, not examined in this case, was the person who masterminded this on account of political rivalry. Mr. Mishra drew the attention of this Court to the evidence on record in this regard. He also submitted that non examination of said Baistnab Choudhury made the prosecution case doubtful. No doubt it is proved from the evidence of P. Ws. 1 and 2 that this Baistnab Choudhury was present inside the courtroom for sometime when these witnesses were examined. The argument of Mr. Mishra that this would show the unseen hand of said Baistnab Choudhury in foisting this false case against tie appellant couldnt be accepted because it is also proved from the evidence that said Baistnab Choudhury is a Mohair in Balasore court. Therefore, it would be difficult to assume that presence of said Baistnab at any precise moment inside the court could be linked with any role he might have to play for prosecution of the appellant. No doubt, P. W. 3, mother of the girl admitted in para 3 of cross-examination that she was working as maidservant in the house of Baistnab Choudhury. It is further found from the evidence of P. W. 1 that the house of said Baistnab Choudhury was in front of the shop of the appellant and this is admittedly on the main road where the people gathered. It is further found from the evidence of P. W. 1 that the house of said Baistnab Choudhury was in front of the shop of the appellant and this is admittedly on the main road where the people gathered. Except the suggestion to the witnesses and the statement of the appellant in the 313 statements that there was animosity between the appellant and said Baistnab Choudhury on account of political rivalry, there is no other material to hold this. What is established is, said Baistnab Choudhury is a front-door neighbor of the appellant and even assuming for the sake of argument that he had any such enmity with the appellant, it can hardly be believed that he could have been in position to tutor a girl of six years of age to falsely implicate the appellant with the heinous offence like the rape. In the worst case it may be inferred that because of this enmity, said Baistnab Choudhury as an antagonist of the appellant might have tried to exploit the situation by taking active part for prosecution of the appellant. That apart, there is nothing in the evidence of either the mother on he victim girl that Baistnab Choudhury was also a witness who heard the story from P. W. 3. For the above reasons, non- examination of said Baistnab Choudhury would not affect the Prosecution case. ( 9 ) IN the result, the criminal appeal is dismissed. The sentence of ten years. R. I. is reduced to 3 years R. I. for the offence u/s. 376 read with section 511, I. P. C. Appeal dismissed. .