JUDGMENT (ORAL) A.A. Desai, J. - The Additional Sessions Judge, South Goa, Margao, accepting the testimony of the prosecution witnesses P.W. 8 Kranti Naik, P.W. 1 Joanita Naik, P.W. 2 Dr. Kamat and P.W. 4 Dr. Audi, recorded the finding of conviction for the offence punishable under Section 376 of Indian Penal Code against the Appellant/Accused for having committed rape on 9-5-1998 at M 9.30 p.m. in the residential premises of the accused. The involvement of the accused in the instant case is seriously disputed by Mr. Lotlikar, tearing for the accused/Appellant only contention raised by him is t u having regard to the material as me on record, the offence could not instituted as one punishable under Won 376. I.P.C. having regard to the ground raised and after examining the material on record. 2. Undisputedly, at the relevant time, the prosecutrix P.W. 8 Kranti was aged about 5 years. The family of accused and Kranti has very intimate relation and they were residing in the neighbourhood of each other. As usual, on the day of the incident, P.W. 8 Kranti was in the house of the accused. In her deposition she has stated about the incident as thus: "The accused put me on the cot and removed my cheddi. I started getting pain on my lower part. Blood started coming out from my lower part. Thereafter the accused kept me near a well. It was in front of the house of the accused. I started crying due to pain." Medica1 evidence does not suggest either way rupture of hymen which would have been obvious in case of penetration. As such, taking into account the aspect that after the incident the prosecutrix Kranti was standing near the well, this fact also is an indication that there could not be penetration, which otherwise would have been unbearable to the prosecutrix having regard to her tender age. As such, conviction for the offence punishable under Section 376 of Indian Penal Code cannot be sustained. 3. Having regard to the circumstances as brought on record, particularly making the prosecutrix to lie down and the act of removing her underwear and causing her bleeding injury at her private part together go to show that the accused has definitely made an attempt to commit rape. Therefore, the offence would be punishable under Section 376 read with Section 511 of Indian Penal Code. 4. Therefore, the offence would be punishable under Section 376 read with Section 511 of Indian Penal Code. 4. We have heard Mr. Lotlikar and the learned Special Public Prosecutor. Having regard to the peculiar circumstance that the incident is of May 1988 and the accused has children and family to support, we pass the following Order: The Appeal is partly allowed. The finding of conviction and sentence for offence punishable under Section 376, I.P.C. are hereby set aside. Instead, we convict the Appellant/accused for the offence punishable under Section 376 r/w Section 511 of Indian Penal Code and direct him to suffer Rigorous Imprisonment for a period of 2 years. He shall also pay a fine of Rs.2,000/-; in case of default, he shall suffer Rigorous Imprisonment for a period of 1 month. The bail bonds shall stand cancelled. The Appellant shall surrender to his bonds within a period of 2 weeks. Appeal allowed partly.