JUDGMENT 1. - This appeal is directed against the judgment dated 30.7.1981 passed by the learned Sessions Judge, Jalore, convicting the appellant for the offence under Section 376 IPC and sentencing him to five years rigorous imprisonment and to pay a fine of Rs. two hundred and in default of payment to further undergo five months' rigorous imprisonment. 2. The prosecution case is that on 22.12.1980, PW 5 Surta lodged an FIR at Police Station Jalore, stating that on 21.12.1980, his niece Miss Tulchhi aged ten years had gone for grazing the cattle. She was accompanied by her younger sister Laju, Asia and Pankhi. It is alleged that in the afternoon, accused Shankeriya approached the prosecutrix Miss Tulchhi and asked her to accompany. It is further alleged that the accused Shankeriya lifted her "Ghaghra'' and committed rape on her. Hearing the cries of Mst. Tulchhi, her other companions reached on the spot. Seeing them, accused Shankeriya ran away. Thereafter, they all returned to the house. Mst. Tulchhi reported the incident to her mother. On this information, police registered a case for the offence under Section 376 IPC and proceeded with investigation. After usual investigation, police filed a challan against the appellant for the offence under Secs. 376 and 354 IPC. The learned trial Judge relying on the testimony of PW 1 Mst. Tulchhi and PW 3 Asia, corroborated by medical evidence, convicted the appellant and sentenced him as stated above. 3. It is contended by Mr. Doongar Singh, learned counsel appearing for the appellant, that the prosecution witnesses viz.; PW 1, PW 2 and PW 4 are related tc each other and the very eye witnesses have admitted the presence of PW 8. Toliya and PW 12 Pankhi, who have not supported these witnesses. It is further submitted that one set of eye witnesses have contradicted the other set of eye witnesses. It is also elicited in the cross examination that Mst. Tulchhi was earlier engaged with accused Shankeriya, on that account, the relations between the two families had become strained. Learned counsel appearing for the appellant has also read the statement of PW 11 Dr. Rajendra Prasadi Purohit and contended that the prosecution has failed to establish that the rape was committed on Mst. Tulchhi. It is submitted that in any case, it cannot be a case beyond attempt to rape punishable under Section 376/511 IPC. 4. Learned counsel appearing for the appellant has also read the statement of PW 11 Dr. Rajendra Prasadi Purohit and contended that the prosecution has failed to establish that the rape was committed on Mst. Tulchhi. It is submitted that in any case, it cannot be a case beyond attempt to rape punishable under Section 376/511 IPC. 4. On the other hand, it is contended by Mr. Panney Singh learned Addl. Public Prosecutor that there is no reason to disbelieve the statement of PW 1 Mst. Tulchhi. Her statement is corroborated by the other two eye witnesses and the medical evidence. So far as PW 8 Toliya and PW 12 Pankhi are concerned, it is submitted by the learned Public Prosecutor that they have not supported the prosecution case and, therefore, they have been declared hostile. In view of this, it cannot be said that there are two sets of witnesses. So far as the medical evidence is concerned, it is submitted by Mr. Panney Singh that a careful reading of the statement of the doctor clearly shows that there was a penetration and, as such, the Trial Court has rightly recorded the conviction of the appellant under Section 376 IPC. 5. I have considered the rival contentions and have also perused the statement of the PW 1 Mst. Tulchhi. She stated that the accused Shankeriya asked her to lift the "Ghaghra" and threw her on the ground. She also stated that the accused set on her legs and he tried to insert his penis on account of which she suffered pain. It is elicited in the cross examination that though she told the police that the accused inserted his penis and raped but as to why the said statement was not recorded by the police, she stated that she was not aware. The statement of PW 3 Asia is almost on the same line. It is stated by him that he could see the incident form a distance of two pawdas. PW 11 Dr. Rajendra Prasad Purohit has stated that he examined Mst. Tulchhi on 23.12.1980. He proved injury report Ex.P. 8. He found no external marks of injury on the labia majora and labia minor. He opined that sexual intercourse was attempted. He further opined that the complete penetration could not take place as the hymen was not completely torn. PW 11 Dr. Rajendra Prasad Purohit has stated that he examined Mst. Tulchhi on 23.12.1980. He proved injury report Ex.P. 8. He found no external marks of injury on the labia majora and labia minor. He opined that sexual intercourse was attempted. He further opined that the complete penetration could not take place as the hymen was not completely torn. Reading the statement of the doctor and seeing the injury report particularly the fact that the hymen was not torn and that there was no external injury, the statement of the prosecutrix to the extent that the accused tried to penetrate his penis, cannot be believed. It is also not believable that Asia could witness the actual act of penetration of penis from a distance of two pawdas. Thus, the prosecution has failed to establish that the rape was committed on Mst. Tulchhi. The prosecution of course has succeeded in establishing that the accused made an attempt to commit rape on Mst. Tulchhi. Thus, the conviction of the appellant deserves to be converted from the offence under Section 376 IPC to Section 376/511 IPC. 6. It is next submitted by Mr. Doongar Singh learned counsel appearing for the appellant that at the time of the incident, the accused was 17 years of age and, as such, in view of the mandatory provisions of Section 6 of the Probation of Offenders Act, he is entitled to the benefit of probation. The contention deserves to be accepted. 7. In view of the aforesaid, the appeal is partly allowed, the conviction of the appellant under Section 376 IPC is set aside and the appellant's conviction is converted from the offence under Section 376 IPC to 376/511 IPC. As the appellant was 17 years of age at the time of the incident and considering all the facts and circumstances of the case and more particularly the incident is of 1981, I consider it an appropriate case for enlarging the appellant on probation. In view of this, it is directed that the appellant shall be released on probation on furnishing a personal bond in the sum of Rs. five thousand and a surety bond in the like amount to the satisfaction of the Trial Court an undertaking to receive the sentence as and when called upon to do so and to keep peace and be of good behaviour during the period of one year. five thousand and a surety bond in the like amount to the satisfaction of the Trial Court an undertaking to receive the sentence as and when called upon to do so and to keep peace and be of good behaviour during the period of one year. The appellant is granted six weeks time for furnishing the bonds as directed above. *******