Honble GARG, J.–This appeal has been preferred by the accused appellant against the judgment and order dated 13.5.87 passed by learned Sessions Judge, Churu in Sessions Case No. 86/86 by which the learned Sessions Judge acquitted the accused appellant for offence under Section 376 I.P.C. but convicted him under Section 376/511 I.P.C. and sentenced him as under : Offence Sentence awarded 376/511 IPC- 4 years R.I. and a fine of Rs. 250/- in default to further undergo 1 months R.I. (2). This appeal arises in the following circumstances: (i) That on 15.6.86 at about 7.30 p.m., P.W. 7 Taramani D/o Kalu Ram, aged 11 years, resident of Khivasar lodged an oral report with the police station Dudhvakhar, Dist. Churu before P.W. 12 Jagdish Singh stating that on 15.6.86, she went to the field for grazing cattle and at about 11 a.m., the accused appellant who was hidden near the field of Usman came suddenly towards her and caught hold of right hand and after embracing her, put her on the ground and he did not allow her to cry and with an intention of committing rape with her, he removed her Lehanga. It was further stated in the report that she pushed him with her hands, but he did not come under her control, but in doing so, his hand was removed from her mouth and then she cried and after her mouth and then she cried and after hearing her cries, her uncle P.W. 9 Bisna Ram who was coming from his field, came nearer to her, then after leaving P.W. 7 Taramani, the accused ran away. It is stated in the report that had P.W. 9 Bisna Ram would not have come, the accused would have committed rape with her. After coming to her house, she narrated the whole story to her mother P.W. 8 Durgi and P.W. 8 Durgi narrated the whole story to P.W. 2 Jaluram and thereafter this report was lodged. (ii) On this report, regular FIR Ex.P/9 for offence under Section 376/511 I.P.C. was chalked out by P.W. 12 Jagdish Singh and investigation was started. (iii) During investigation, accused appellant was arrested on 4.7.86 through Fard Ex.P/4 and medical examination of the prosecutrix P.W. 7 Taramani was got conducted by Dr. P.W. 3 Smt. Prem Kunwar Rathore on 16.6.86 and the medical examination report is Ex.P/3. (iii) During investigation, accused appellant was arrested on 4.7.86 through Fard Ex.P/4 and medical examination of the prosecutrix P.W. 7 Taramani was got conducted by Dr. P.W. 3 Smt. Prem Kunwar Rathore on 16.6.86 and the medical examination report is Ex.P/3. (iv) During investigation, police came to the conclusion that it was a case of complete rape and therefore, challan against the appellant was filed by the police for offence under Section 376 I.P.C. (3). That the learned Sessions Judge framed charges against the accused appellant for offence under Section 376 I.P.C. who pleaded not guilty and claimed trial. (4). During trial, as many as 12 witnesses were produced by the prosecution and thereafter statements of accused under Section 313 Cr.P.C. were recorded and no evidence was led in defence by the accused appellant though some documents were got exhibited. (5). At the conclusion of the trial, the learned Sessions Judge vide his judgment dated 13.5.87 convicted the accused appellant for offence under Section 376/511 I.P.C. in place of 376 I.P.C. inter alia holding that : (i) Statement of prosecutrix P.W. 7 Taramani does not get corroboration from the medical evidence (Ex.P/3) (ii) Statement of P.W. 7 further gets contradicted by her oral report Ex.P/9 and further her police statement Ex.D/2, wherein she has not stated that rape was committed by the accused appellant. Thus, the learned Sessions Judge found this aspect as aspect of material contradiction and thus, he came to the conclusion that prosecution has only been able to prove charge for offence under Section 376/511 I.P.C. and not for 376 I.P.C. (6). Aggrieved from the said judgment, this appeal has been filed by the accused appellant. (7). In this appeal, following submissions have been made on behalf of the accused appellant: 1. Aggrieved from the said judgment, this appeal has been filed by the accused appellant. (7). In this appeal, following submissions have been made on behalf of the accused appellant: 1. For the sake of arguments, findings of learned trial Judge are accepted, no case for offence under Section 376/511 I.P.C. is made out and at the most case of indecent assault or outraging modesty of P.W. 7 Taramani is established and, therefore, offence if found proved against the accused appellant does not travel beyond Section 334 I.P.C. and thus, he should be convicted for offence under Section 354 I.P.C. in place of 376/511 I.P.C. (ii) If Court comes to the conclusion that any offence has been committed by the accused appellant, he should be released for a period already undergone as the incident took place on 15.6.86 and 15 years have passed and further more, in this respect, it has been argued that at the time of commission of offence, the accused appellant was below 21 years of age and he was 18 years of age, thus to send this man to Jail, it will not be in the interest of justice. (8). On the contrary, the learned P.P. has opposed the submissions made by the learned counsel for the appellant and submits that the judgment and order passed by the learned trial Judge are based on correct appreciation of evidence and do not call for interference by this Court. (9). I have heard both. (10). To appreciate the above contention raised by the learned counsel for the appellant, first medical evidence produced by the prosecution in this case has to be seen and the same is found in the statement of P.W. 3 Dr. Prem Kanwar Rathore and report Ex.P/3. Medical report Ex.P/3 has been admitted by the learned counsel for the appellant during the course of trial subject to cross-examination. (11). P.W. 3 Smt. Prem Kanwar Rathore examined P.W. 7 Taramani on 16.6.86 and noticed following features: ``Axillary hairs scanty. Breast- developed according to her age. Pubic hairs scanty. MH- not attained menarch. Menstrual periods not started. Private parts thighs, and breast- No swelling. No redness. Other injuries if any will be reported by medical jurist. Examination of private parts. External Genetalia- Pubic hairs scanty, not metted. No stainine. No injury. No redness over private parts. No injury redness over labia majora. Pubic hairs scanty. MH- not attained menarch. Menstrual periods not started. Private parts thighs, and breast- No swelling. No redness. Other injuries if any will be reported by medical jurist. Examination of private parts. External Genetalia- Pubic hairs scanty, not metted. No stainine. No injury. No redness over private parts. No injury redness over labia majora. The post commister and fourchete are intact. Hymen- situated deeply elastic Not intact- elengate opening congested, not bleed on touch. No fresh bleeding. One finger passed easily P/S- Speculum passed. No vaginal mucosal injury (swab) from post FX taken and saved and handed over to medical jurist for chemical analysis for evidence of spermatazoa ex healty. (12). P.W. 3 Dr. Prem Kanwar Rathore has further admitted following facts in cross-examination: (i) No injury whatsoever was found on her private part or her body. (ii) No sexual intercourse was committed with her and no symptoms of sexual intercourse were found. (13). Thus, from the statement of P.W. 3 Dr. Prem Kanwar Rathore and from the medical report Ex.P/3, it clearly transpires that no injury either on his private part or on her body was found and no symptoms that she was forced to sexual intercourse were found and her age was determined 13 years though as per her say. (14). It may be stated here that so far as the age of prosecutrix P.W. 7 Taramani is concerned, there is no dispute that from every point of view, she was below 16 years of age. (15). Now, the oral evidence has to be discussed. (16). The FIR Ex.P/9 was lodged on the same day i.e. on 15.6.86 just after the occurrence and at the time of lodging the report P.W. 8 Smt. Durgi was also with P.W. 7 Taramani as will be evident from the statement of P.W. 8 Smt. Durgi. After going through the contents of that FIR Ex.P/9, it appears that: (i) she was caught hold of by accused appellant. (ii) her Ghaghra was removed by the accused appellant and while she was resisting, hand of the accused appellant which was put by him on her mouth was removed. (iii) then she cried and on hearing her cries, P.W. 9 Bisna Ram came and accused ran away. (17). (ii) her Ghaghra was removed by the accused appellant and while she was resisting, hand of the accused appellant which was put by him on her mouth was removed. (iii) then she cried and on hearing her cries, P.W. 9 Bisna Ram came and accused ran away. (17). In her statement before Court, P.W. 7 states that accused committed rape with her in the field of Gorkha Ram and when she cried, but P.W. 9 Bisna Ram did not come to her, but he was at some distance and seeing him, the accused appellant ran away. Thereafter P.W. 10 Girdhari came, who tried to chase the accused appellant and she became unconscious and when she was conscious, she found herself in her house and she narrated the whole story to her mother P.W. 8 Smt. Durgi and at the time when report Ex.P/9 was lodged, her mother P.W. 8 Smt. Durgi was also with her. In cross-examination P.W. 7 Taramani has admitted the following facts: (i) That because of self-respect, she did not narrate the fact of actual committing rape in report Ex.P/9. (ii) The fact that her Odhna and Lehanga were torn was stated before the police, but she does not know how the police has not mentioned this fact. (iii) The police recorded her statement and same is Ex.D/2 and she has stated the same fact that because of shame and self- respect the fact of actual committing rape was not mentioned by her before the police. (iv) The accused did not beat her and she received one injury on her stomach and accused did not bite her. (18). Another witness is P.W. 9 Bisna Ram and this witness states that while accused was committing rape, he came there and seeing him, he ran away and he is uncle of P.W. 7 Taramani. Similar is the statement of P.W. 10 Girdhari. (19). P.W. 8 Smt. Durgi is mother of the prosecutrix who states that P.W. 7 Taramani told her that accused committed rape with her and she also narrated her that there was pain in her vagina and there was bleeding also and blood was also found in Odhna and Ghaghra. In cross-examination, she admits that P.W. 7 Taramani was admitted in Churu Hospital where she was treated for 10 days and her vagina was torn and stitches were put on her vagina. (20). In cross-examination, she admits that P.W. 7 Taramani was admitted in Churu Hospital where she was treated for 10 days and her vagina was torn and stitches were put on her vagina. (20). The learned Sessions Judge has not accepted the evidence of P.W. 7 Taramani on the point that actual rape was committed with her because of the simple reason that her statement does not get corroboration from the statement of P.W. 3 Dr. Prem Kanwar Rathore and her medical evidence. Further more, statement of P.W. 3 Dr. Prem Kanwar Rathore gets contradicted on this point with her police statement Ex.D/2 and report Ex.P/9. (21). In my considered opinion, the fact that the accused appellant committed actual rape with her cannot be held to be proved from the evidence as discussed above, P.W. 3 Dr. Prem Kanwar Rathore has clearly stated that there was no injury on her private part and statement of P.W. 8 Smt. Durgi that stitches were put on her vagina cannot be accepted. (22). Similarly, statement of prosecutrix P.W. 7 Taramani on the point of actual commission of rape cannot be accepted as her statement gets contradicted from the police statement Ex.D/2 and report Ex.P/9. Therefore, findings of learned Sessions Judge on this aspect are based on correct appreciation of evidence and have been arrived at after taking into consideration the material available on record and valid reasons have been assigned by the learned Sessions Judge. (23). When the story of actual commission of rape goes off, earlier version put forward by P.W. 7 in her report Ex.P/9 comes into picture and that version has been mentioned in earlier para of the judgment that accused caught hold of P.W. 7 Taramani and put her on the ground and removed her Lehanga and before he could have entered his penis, P.W. 9 Bisna Ram after hearing cries of P.W. 7 Taramani came there and accused ran away and in this struggle, no injury was found on the person of P.W. 7 Taramani nor any injury was caused by the accused appellant. (24). The next question is whether in the facts and circumstances of the present case, offence under Section 376/511 can be held to be proved or not and whether these facts make out a case for offence under Section 354 I.P.C. or not? WHAT WORD ATTEMPT MEANS (25). (24). The next question is whether in the facts and circumstances of the present case, offence under Section 376/511 can be held to be proved or not and whether these facts make out a case for offence under Section 354 I.P.C. or not? WHAT WORD ATTEMPT MEANS (25). What constitutes an ``attempt is a mixed question of law and fact depending largely on the circumstances of the particular case. ``Attempt defines a precise and exact definition. Boradly speaking all crimes which consist of the commission of affirmative acts are preceded by some covert or overt conduct which may be divided into three stages. The first stage exists when the culprit first entertains the idea or intention to commit an offence. In the second stage, he makes preparations to commit it. The third stage is reached when the culprit takes deliberate overt steps to commit the offence. Such overt act or step in order to be ``criminal need not be the penultimate act towards the commission of offence. It is sufficient if such act or acts were deliberately done, and manifest a clear intention to commit the offence aimed, being reasonably proximate to the consummation of the offence. In order to constitute ``an attempt, first, there must be an intention to commit a particular offence; second, some act must have been done which would necessarily have to be done towards the commission of the offence and third, such act must be ``proximate to the intended result. The measure of proximity is not in relation to time and action but in relation to intention. In other words, the act must reveal with reasonable certainty, in conjunction with other other facts and circumstances and not necessarily in isolation, an intention, as distinguished from a mere desire or object, to commit the particular offence, though the act by itself may be merely suggestive or indicative of such intention, but that it must be, that is, it must be indicative or suggestive of the intention. (26). (26). In the case of Rex vs. Lloyed (1), lord Patterson, J on the point whether the act of the accused amounted to an attempt to commit rape in summing up held as under: ``In order to find the accused guilty of an assault with intent to commit a rape, you must be satisfied that the accused, when he laid hold of the prosecutrix, not only desired to gratify his passions upon her person, but that he intended to do so at all events and notwithstanding any resistance on her part. We believe that in this country indecent assaults are often magnified into attempts at rape, and even more often into rape itself; and we think a conviction of an attempt at rape ought not to be arrived at, unless the Court be satisfied that the conduct of the accused indicated a determination to gratify his passions at all events, and in spite of all resistance. In the present case, having regard to the medical evidence, and to the varying statements made at different times by the complainant, we find it impossible to place entire reliance upon her statement; and, as to the extent of the violence to which she was subjected, there is no evidence except her own statement. The Sessions Court has not believed her allegation that penetration took place and has consequently refused to convict the accused of rape. We feel a similar hesitation in coming to the conclusion, on the complainants unsupported statement that the accuseds conduct amounted to an attempt to commit rape. He seems to have desisted before he was interrupted; and no evidence has been given to show that the complainants person showed marks of violence (while the Civil Surgeons evidence is to the contrary effect), nor that the clothes, either of the complainant or the accused showed any stains which would indicate to what point the accuseds criminality had proceeded. In that case conviction was made under Section 354 I.P.C. (27). The distinction between an attempt to commit rape and to commit indecent assault is sometimes very measure. For the former, there should be some action on the part of the accused which would show that he is just going to have sexual connection with the prosecutrix. For an offence of an attempt to commit rape the prosecution must establish that it has gone beyond the stage of preparation. For the former, there should be some action on the part of the accused which would show that he is just going to have sexual connection with the prosecutrix. For an offence of an attempt to commit rape the prosecution must establish that it has gone beyond the stage of preparation. The difference between mere preparation and actual attempt to commit an offence consists chiefly in the greater degree of determination. (28). The Rajasthan High Court in a case Sittu vs. State (2), while dealing with a case whether case for offence under Section 376/511 I.P.C. was found or not, held that where girl was forcibly made naked, the accused tried to force male organ into her private parts despite strong resistance from her, would amount to attempt to commit rape and not merely indecent assault. (29). In a case Damodar Behera vs. State of Orissa (3), Orissa High Court has held that where a person alleged to have removed saree of the victim and ran away on seeing some persons and there was no material showing that accused was determined to have sexual intercourse in all events, the offence cannot be said to be attempt to commit rape to attract culpability under Section 376/511 I.P.C. but the case is certainly one of indecent assault upon a woman. (30). Looking to the above rulings and decisions on law discussed above the looking to the facts of the present case, it appears that in the present case, there is no evidence to suggest that accused appellant made his penis out and the only evidence is that P.W. 7 Taramani struggled and cried and the accused desisted and when P.W. 7 removed the hand of accused appellant from her mouth, P.W. 7 Taramani got up and after hearing her cries, P.W. 9 Bisna Ram came and seeing him, accused ran away. (31). In my opinion, from these facts no case for offence under Section 376/511 I.P.C. can be held to be proved. In other words, accused appellant cannot be held to be guilty of attempt to commit rape. The prosecution has been able to prove the case of assault or use of illegal force on P.W. 7 Taramani with an intention to outrage her modesty or with knowledge that her modesty was likely to be outraged. In other words, accused appellant cannot be held to be guilty of attempt to commit rape. The prosecution has been able to prove the case of assault or use of illegal force on P.W. 7 Taramani with an intention to outrage her modesty or with knowledge that her modesty was likely to be outraged. Thus, it is clear case of Section 376/511 I.P.C. as the act of present accused has not proceeded beyond the stage of preparation. (32). Accordingly, conviction of the accused appellant is altered from Section 376/511 I.P.C. to 354 I.P.C. and findings of learned Sessions Judge, Churu are altered accordingly and accused is to be convicted for offence under Section 354 I.P.C. in place of Section 376/511 I.P.C. ON SENTENCE (33). Sentencing an accused in criminal trial is a very sensitive exercise and it is not just routine or mechanical order. (34). In the present case, there is no dispute on the point that on the date of occurrence, the accused was 18 years of age, in other words he was below 21 years of age. The record of the trial Court further reveals that the accused has been in PC/JC for a period from 4.7.86 to 1.10.86 and on 13.5.87, he was again sent to jail while he was convicted by the learned Sessions Judge for offence under Section 376/511 I.P.C. His sentence was suspended by this Court on 19.5.87 and he was released on bail on 20.5.87. Thus, he remained in jail from 13.5.87 to 20.5.87. Thus, he has been in jail for about 3 and 1/2 months. (35). Looking to the following reasons custodial sentence of the accused appellant is restricted to the period already undergone by him and that would meet the ends of justice: (i) At the time when the offence under Section 354 I.P.C. was committed, the accused was below 21 years of age. (ii) The incident took place on 15.6.86 and near about 15 years have passed and this period is sufficient to exhaust anybody mentally, physically and economically. (iii) He has been in jail for about 3 and 1/2 months. (iv) After such a long time for offence under Section 354 I.P.C. the accused should now not be sent to jail and I do not think it proper to send back the accused appellant in custody. (iii) He has been in jail for about 3 and 1/2 months. (iv) After such a long time for offence under Section 354 I.P.C. the accused should now not be sent to jail and I do not think it proper to send back the accused appellant in custody. In the result the appeal filed by the accused appellant is partly allowed in the following manner: The judgment and order dated 13.5.87 passed by the learned Sessions Judge, Churu by which the accused appellant Shakoor was convicted for offence under Section 376/511 I.P.C. is altered to the extent that instead of offence under Section 376/511 I.P.C., he is convicted for offence under Section 354 I.P.C. and findings of learned Sessions Judge, Churu are altered accordingly. However, for offence under Section 354 I.P.C., the accused appellant is sentenced to the period already undergone by him. The order of sentence dated 13.5.87 passed by the learned Sessions Judge, Churu stands modified accordingly.