Judgment PRASUN KUMAR DEB, J. 1. The above accused appellant faced trial under Section 376, IPC and then convicted under Section 376(2)(F) of the IPC for committing rape on Megha Gupta, a minor girl aged about four years and sentenced to rigorous imprisonment for fifteen years. The accused- appellant has remained in custody since the date of his arrest and by this time he has completed about eight years of sentence behind the bar. 2. The prosecution case in brief, is that the accused- appellant, Anil Kumar Roy @ Madan @ Jham Lal was residing in the neighbourhood of the informant PW 4 Nirmala Devi at Mohalla Kali Bazar in Ward No. 10 of Araria Town within P.S. Araria in the district of Araria. The victim Megha Gupta happens to be the minor daughter aged about four years at the time of occurrence of the informant Nirmala Devi. Nirmala Devi was residing with her child along with her brother- in-law, husband, father-in-law PW 6 Krishna Prasad. On 22.2.1992 Nirmala Devi sent her daughter Megha Gupta to return a Lota to her neighbour Shrimati Bhageshwari Devi alias Rajo Wali (PW 1) through which milk was sent to her by Rajo Bali. At about 12.15 p.m. the girl came back with a half burnt piece of sugar cane in her hands having nervous and disturbed face. She reported to her mother PW 4 Nirmala Devi that "Madan Chacha had urinated in her pant". The informant became very much nervous and started examining the pant of the girl. When she removed her pant she found semens were smeared on her private part as well as in the thighs and the pant itself was wet with semen. The informant told some neighbours including PW 1 and showed the condition of the victim girl. One Madan Katriwala was a tenant at the relevant time at the house of the informant and she thought that the said Madan might have committed offence as Madan used to play with her daughter and was having much affection towards the minor girl. The neighbours forbade the informant to go the house of Madan. When her father-in-law, husband and brother-in-law came home she reported the matter and her father-in- law stated that he would ask Madan when he returns home as he was not in the house at that time. The neighbours forbade the informant to go the house of Madan. When her father-in-law, husband and brother-in-law came home she reported the matter and her father-in- law stated that he would ask Madan when he returns home as he was not in the house at that time. In the evening he confronted Madan who had denied and the girl also did not point towards Madan Katriwala, the tenant of the father-in-law of the informant. As per girls showing the offence was committed in the next room where Madan was residing as a tenant and that vacant room was occupied by the informants father-in-law and there was a bed sheet having bed cover spread over it. Madan used to reside in the tenanted room along with his brother. On the next morning the girl pointed towards the house of the accused- appellant and there she also pointed out towards the accused-appellant as the person who had committed the offence and she termed him as Madan Chacha although the accused-appellant was not named or called as Madan. As the matter was of great shame then and then no information was lodged with the Police but an attempt was made by the father-in- law of the informant to have a panchayati and accordingly a panchayati was held wherein at the first instance the girl pointed towards the accused-appellant but afterwards when again she was asked she had gone towards Madan Katriwala. The Panchayat did not give any verdict and then when police came to the place of occurrence on 27.2.1999 at 10.20 hours hearing rumour that a minor girl had been ravished in the village while he came to the neighbouring village in connection with another case then PW 4 gave her fardbeyan and on the basis of that a FIR was registered under Section 376 of the Indian Penal Code. The girl was also examined by a doctor PW 9 Usha Rani Jaiswal but she did not find any mark of violence on the private parts of the girl rather her hymen was found to be intact. Police held investigation, arrested the accused but when T.I.P. was held by the Investigating Office at his own instance in presence of some witnesses the girl could not clearly catch hold of the accused- appellant facing trial and her demeanour and attitude were found very confusing. Police held investigation, arrested the accused but when T.I.P. was held by the Investigating Office at his own instance in presence of some witnesses the girl could not clearly catch hold of the accused- appellant facing trial and her demeanour and attitude were found very confusing. At one point of time she had caught-hold of the Lungi of the brother of the Madan Katriwala. However, after full investigation, the Investigating Officer could come to the conclusion that it was the accused-appellant who had ravished the minor girl and then submitted charge-sheet against him. On being committed to the Sessions charge was framed against the accused-appellant under Section 376 of the Indian Penal Code vide order dated 7.1.1993. On being read over and explained of the charge, the accused-appellant pleaded not guilty. 3. The defence is denial of the prosecution case in toto and it has been averred that the accused-appellant has been falsely implicated in the case. 4. For and on behalf of the prosecution as many as 11 witnesses have been examined. Out of them vital witnesses are PW 1 Bhageshwari Devi @ Rajo Wali who was reported of the occurrence by the informant and in her presence the condition of the girl was also disclosed and sne herself found that the victim girl Megha Gupta was having semens on her private part, thighs and on the pant. PW 2 is the victim girl herself who had stated about the occurrence before the Court and has also identified the accused- appellant as an offender in the Court itself. PW 4 Nirmala Devi is the informant and the mother of the victim girl Megha Gupta. PW 3 Roona Devi is a reported witness. PW 5 Ramji Prasad and PW 7 Gopal Prasad are the brothers-in-law of the informant, PW 5 and PW 6 Krishna Prasad father-in- law the informant have supported the prosecution case in toto as hear-say witnesses. They were also present when the victim girl had identified the accused-appellant by pointing towards him at his own house and also were present at the Panchayati wherein also Megha Gupta had at the first instance identified the accused-appellant. PW 7 Gopal Prasad has just been tendered. PW 8 is an independent witness who has present at the Panchayat and according to him on being asked for the second time the girl had gone towards Madan Katriwala. PW 9 Dr. PW 7 Gopal Prasad has just been tendered. PW 8 is an independent witness who has present at the Panchayat and according to him on being asked for the second time the girl had gone towards Madan Katriwala. PW 9 Dr. Usha Rani Jaiswal has examined the girl at the instance of the investigation agency but according to the prosecution she examined the girl and prescribed her some ointment on the date of occurrence itself. But those could not be brought by any documentary evidence and PW 9 has also not supported the same. She had only proved her report when she examined the girl at the instance of the investigation agency. She did not find any external or internal injury over any part of the body of the victim. Hymen was not ruptured. Vaginal swab did not contain spermatozoa dead or alive on pathological test. PW 10 and PW 11 are the Police Officers who took part in the investigation itself. 5. For and on behalf of the defence one DW has been examined as DW 1 Noor Jahan. She was practically a charge-sheeted witness for the prosecution but the prosecution did not examine her on the plea that she had already been gained over by the defence. She had stated that she did not see anything on the victim girl although she was present amongst other neighbours when called by the informant soon after the occurrence and, as such, she denied the prosecution case itself. 6. After scrutinising the evidence on record learned Court below after taking consideration of the objections raised regarding identification of the accused-appellant came to the finding that the prosecution could be able to prove the guilt of the accused-appellant beyond all reasonable doubt and, as such, convicted and sentenced him as mentioned above. 7. 6. After scrutinising the evidence on record learned Court below after taking consideration of the objections raised regarding identification of the accused-appellant came to the finding that the prosecution could be able to prove the guilt of the accused-appellant beyond all reasonable doubt and, as such, convicted and sentenced him as mentioned above. 7. The impugned judgment has been assailed for and on behalf of the accused-appellant on the following grounds : (i) the delay in lodging of the FIR has not been explained which creates a doubt about the case and there remains possibility of false implication (ii) the accused-appellant being never known as Madan while the prosecutrix had named her as Madan Chacha deepens the cloud regarding identification when there is already another Madan a tenant in the house of the informant (iii) the prosecutrix, the minor girl, had at different times identified different persons as the offender which gives benefit in favour of the accused-appellant (iv) even if all the allegations are taken to be true then also the case does snot come within the purview of Section 376 of the IPC as there is no proof that the girl was actually ravished and, at best, it can come under Section 354, IPC of outraging the modesty. 8. All the points raised from the side of the learned counsel appearing for and on behalf of the accused-appellant had been averted by Lala Kailash Behari Prasad, the State counsel by referring to the materials on record and the evidence adduced from the side of the prosecution. 9. The evidence of all the witnesses for and on behalf of the prosecution and that of the defence has been minutely and elaborately stated and disclosed by the learned Sessions Judge in the impugned judgment and, as such, I am not going to reiterate the same. Only the portion of the evidence and the materials on record shall be referred for the purpose of coming to a just decision in this appeal, as on going through the discussions regarding the evidence I could find that the learned Sessions Judge has no where misread or non-read any part of the evidence of any of the witnesses rather the evidence as it is on the record had been very ably described by the learned Sessions Judge together with his inference on discussion. 10. 10. The first point raised with regard to the delay in lodging of the informant, it is found that such delay has been explained in the FIR itself. After the occurrence was reported to the informant she was really in a fix as to what really happened it was beyond any imagination that a four years girl could be tried to be ravished by any person and, as such, she waited for the male members of the family to come home but soon after the occurrence she had shown the condition of the girl by calling the neighbouring woman folk. As the identity of the person could not be properly guessed then the family members were in a fix as to what to do although the girl had pointed out towards the house of the accused-appellant and also pointing towards the accused- appellant as her ravisher but still then they wanted the same to be confirmed in presence of the villagers and, as such, pcmchayati was held. Moreover, such sort of offences are not being immediately informed to the Police for the sake of shame and to save the dignity of not only of the prosecutrix but also for a family as a whole. Because rape of a girl in a family becomes a taboo in the society. In the present case after going through the evidence on record and also the FIR it could be found that the delay was duly explained. When the Panchayat failed to take any proper action in the matter, then only the informant thought it fit to inform the police and by that time after hearing rumour police had also reached the village where the occurrence took place. Thus, the first point raised from the side of the accused-appellant, I do not find that the delay in lodging of the FIR is fatal in the circumstances of the present case. 11. The second and third point raised is with regard to the proper identity of the accused-appellant to have been involved in the crime. This point was also raised before the Court below and the same has been elaborately discussed by the learned Sessions Judge in the impugned judgment and I totally agree with the inferences and conclusion arrived at regarding the identity of the accused- appellant of being involved in the crime. This point was also raised before the Court below and the same has been elaborately discussed by the learned Sessions Judge in the impugned judgment and I totally agree with the inferences and conclusion arrived at regarding the identity of the accused- appellant of being involved in the crime. At the very first instance it could be understood the offence has been committed on an innocent girl who was not having any idea regarding intercourse or the sexual relationship between a male and female and for that reason she had just informed to her mother that one Madan Chacha had urinated on her person. Ejaculation through penis was known to her at that age to be only as urination. The girl was identifying the offender as Madan Chacha although it has come in the evidence that the accused- appellant has never been named as Madan as he was named as Anil Kumar Roy @ Jhamlal. But for some reasons or the others the girl was naming her offender i.e. the accused appellant as Madan Chacha. It might be that with very ill intention the accused- appellant had introduced himself as Madan Chacha to the minor girl only to conceal his identity and to make confusion as there was already another Madan in the neighbourhood. Soon after the occurrence the girl had denied about involvement of Madan Katriwala and on the same breath she had pointed towards the house of the present accused-appellant and that on the next day when the family members with neighbours went to the house of the accused-appellant the girl pointed towards the accused-appellant as the offender naming him as Madan Chacha. Then comes the panchayati wherein also the girl at the very instance had pointed towards the accused-appellant as the offender but then again when the panchayat members made her to get identification for the second time she had gone towards Madan Katriwala. It was definitely due to the confusions being made by the members of the panchayat It can be very well visualised that for long three days the girl was being interrogated regarding the identity of ravisher and there was every possibility of being confused when she was only aged about four years. It was definitely due to the confusions being made by the members of the panchayat It can be very well visualised that for long three days the girl was being interrogated regarding the identity of ravisher and there was every possibility of being confused when she was only aged about four years. But at the very first instance and for the second instance she had pointed towards the accused- appellant and on the very first day of the occurrence she had totally denied of involvement of tenant Madan in the crime. Learned Court below has rightly held that only due to confusing circumstances the prosecutrix had gone towards Madan Katriwala before Panchayat for the second time of identification and then before police in presence of other witnesses towards the brother of Madan Katriwala. On consideration of the materials on record and totality of the evidence on record and on proper and close scrutiny of the evidence on record I also come to the finding that this accused- appellant was the offender of the crime and there was no scope to point towards any other else regarding the commission of the crime. 12. The last point then raised as to whether even if the allegations are taken to be true whether it comes within the purview of Section 376 of the IPC or not. Learned Sessions Judge has given much stress on critising the evidence of doctor who was alleged to have examined the victim on the date* of occurrence itself. There is nothing on record that she had examined the private part of the girl even if it is taken to be true that she had prescribed an ointment on the date of occurrence. It might be that the doctor was negligent but such negligence of the doctor or non-proof of the earlier prescription etc. cannot go to protect the prosecution rather it would go in favour of the accused-appellant as her evidence is to be considered as per the records which I find to be against prosecution. There is no scope of any surmise and conjecture, in this respect. As per the doctors evidence the private part had never been ravished. No injury could be found either external or internal. There is no scope of any surmise and conjecture, in this respect. As per the doctors evidence the private part had never been ravished. No injury could be found either external or internal. It is also the case of the prosecution that ejaculation was there not inside the vagina but outside it as semens were found on the external part of the private part and on the thighs and also the pant was smeared and wet with the semens. If the whole thing is visualised it could be understood and found that the accused-appellant must have an intention to satisfy his lust by ravishing a minor girl of four years but that was found to be impossible to him and he must have reached up to the peak of the last stage of satisfaction of his lust as a result either for masturbation or for natural consequences of coming to the last stage of ejaculation, the semen had fallen at the outer part of the private part of the girl and on her thighs and pant. For an offence of ravishing there are stages. First stage comes of outraging of modesty. Then the stage comes for preparation of commission of offence and then there is the attempt to commit rape and the last stage is penetration for fulfillment of lust for the purpose of rape. In the present case if the situation is visualised in proper perspective it could be found that outraging of modesty was complete when the girl was opened up of her pant and then there was definitely preparation for commission of rape and then the attempt was made but no. penetration could be possible and before that ejaculation ended and. as such, it had not reached the last stage of rape rather it remained up to the stage of attempt to commission of rape and hence on consideration of all the evidence on record and also the facts that the girl had never complained of any pain on her private part rather even after the said offence was committed then also she was normal and she started playing in the Angan itself which showed that there was no penetration or even attempt of penetration. If that attempt would have also be made then also considering the adult age of the accused-appellant and the minor age of the victim there must have been some external/internal injuries but as per doctors evidence there was none. Moreover, it could be found that when semens were there outside the private parts and thighs etc. then ejaculation was made before any penetration was made. Hence I find and hold that the case definitely does not come within the purview of Section 376(2)(F) of the Indian Penal Code rather it comes within the purview of attempt to commit rape and, as such, the offence committed by the accused- appellant can, at best, come under Section 376/511, IPC. On consideration of all the materials on record as per discussions above I find and hold that the prosecution could be able to prove the guilt of the accused- appellant not under Section 376, IPC simpliciter rather under Section 376/511, IPC. It must be held that the case in hand discloses most pervert act of an adult person when he attempted to ravish a minor girl of four years who can be of the age of his own daughter. Regarding punishment I find that the accused-appellant has remained in custody for about eight years and considering the gravity of the offence, in my opinion, the sentence should not be more than the period undergone for ends of justice. 13. In the result, the appeal is rejected with a modification in a penal section of punishment to the extent of Sections 376/511 of the IPC instead of Section 376(2)(F) of the IPC and also with the modification in the sentence to the period undergone. The accused- appellant may be released forthwith if not wanted in any other case. SHIVA KIRTI SINGH, J. 14 I agree.