Judgment :- This Criminal Appeal is directed against the Judgment dated 10.10.2001 made in S.C.No.44 of 1999 by the Court of IV Additional Sessions Judge (PCR), Madurai, thereby convicting appellants/accused Nos.1 and 2 for the commission of an offence punishable under Section 376 r/w.511 IPC and sentencing both of them to undergo rigorous imprisonment for seven years each and also to pay a fine of Rs.2,000/= and in default, to undergo a further term of rigorous imprisonment for six months. 2. The charge against appellant/accused Nos.1 and 2 by the lower court is that both of them joining hands with each other, with an intent to commit the offence of rape on the victim girl, since she belongs to the scheduled caste, on 21.12.1998, at about 7.00 a.m., when the victim was going to the Manjoor Government High School, the first accused, plucking her school bag and throwing the same away and lifting her physically and the second accused, shutting her mouth when she raised alarm and taking her to the land of the first accused and making her lie on the grass, they not only untied the buttons of her blouse, but also lifted her petticoat, thus attempting to rape her and hence, both the accused became liable to be tried for the commission of the offence punishable under Section 376 r/w.511 IPC r/w. Section 3(2)(v) of the SC/ST (Prevention of Atrocities) Act and hence the charge. 3. The trial court, having framed the said charge, based on the facts and circumstances revealed from the case of the prosecution and permitting the parties to record their evidence, has conducted a full trial of the case with due opportunity for both to be heard. During trial, on the part of the prosecution, whose duty it is to prove the case put up to the requirement of law beyond all reasonable doubts, eleven witnesses have been examined for oral evidence as P.Ws.1 to 11; 15 documents have been marked as Exs.P.1 to P.15 for documentary evidence and five material objects have also been marked as M.Os.1 to 5. On the contrary, the witnesses examined, the documents and the material objects marked on the part of the defence were nil. 4. On the contrary, the witnesses examined, the documents and the material objects marked on the part of the defence were nil. 4. The court below, in consideration of the facts encircling the whole case and having appreciated the evidence in its own way, has ultimately held that the prosecution has proved the case beyond all reasonable doubts and passed the judgment convicting the accused under Section 376 r/w.511 IPC and sentencing both of them to undergo rigorous imprisonment for seven years each and to pay a fine of Rs.2,000/= and in default, to undergo a further term of rigorous imprisonment for six months, but acquitted the accused for the offence charged and punishable under Section 3(2)(v) of the SC/ST (Prevention of Atrocities) Act, testifying the validity of the conviction and sentence, appellants/A.1 and A.2 have preferred the above criminal appeal on certain grounds as pleaded in the grounds of appeal. 5. Looking at the case of the prosecution as projected through the evidence, this Court is able to see that P.W.1, Karuppaiah, the father of the victim has deposed that the victim is his third daughter and that he belongs to Hindu Scheduled Caste community; that he knows both the accused; that the victim, at the time of occurrence, was studying 9th Standard; that on the date of occurrence, he had gone to the forest for cutting wood (viragu); that at about 8 a.m., as usual, when his daughter was walking on the bank of the Manjoor sluice, both the accused lifted her and stripped off her clothes and attempted to rape her and after hearing a coughing sound of somebody, they left her there itself and ran off, which he came to know from his daughter; that thereafter, he took his daughter to the school and reported the matter to the Principal and the Panchayat President and on their advice, he went to Paramakudi Taluk Police Station and lodged Ex.P.1, complaint and the Police sent his daughter to the Paramakudi Government Hospital and thereafter, the Police visited the spot, which is nothing but the land belonging to A.1 and prepared Ex.P.2, observation mahazar and rough sketch and that he was examined by the police on the spot. This witness would also depose that immediately after coming to know about the occurrence, he went to the spot, where everything was in the shambles and his daughter's school bag was also lying there, which he collected; that his daughter's clothes were torn at that time. 6. P.W.2 is the victim and she has deposed that she is aged 18 years and studying 9th Standard; that at the time of occurrence, she was studying 8th Standard; that she knew the first accused; that on 21.12.1998, when she was going to the School by the bank of Manjoor sluice, the first accused was standing there and he plucked her school bag and lifted her to the nearby bush with the help of the second accused, who was with him and when she shouted, the second accused shut her mouth and making her lie near the fencing on the grass floor, A.1 attempted to remove her petticoat and since she held the petticoat and blouse tight, they both were torn and at that time, since there was a coughing sound from the Eastern side, both the accused, leaving her there itself, had run off from the scene of occurrence; that then she went to her father, who was at a distance of « km. from the place of occurrence and explained him about the occurrence and her father came along with her to the place of occurrence, picking up the school bag which was lying there and went to the village and explained to the Panchayat President, and then he went to the school and told the Headmaster also and on their advice, they went to the Police Station the next day on 22.12.1998 and lodged a complaint; that after examining her, the police sent her to the Hospital; that the Police also recovered her blouse and petticoat, which would be marked as M.Os.4 and 5 respectively. 7. Since P.W.3 denied knowledge of the occurrence, he would be treated hostile by the prosecution. 7. Since P.W.3 denied knowledge of the occurrence, he would be treated hostile by the prosecution. P.W.4, who is the husband of the Panchayat President of Manjoor village, would depose that he knew P.W.1; that on 21.12.1998, at about 5 p.m. when he was at home, P.W.1 came to him and told that when his daughter was going to the school, two persons attempted to rape her and requested him to hear the parties and resolve the subject; that he directed P.W.1 to go to the Police Station and lodge the complaint. 8. P.W.5 is the medical witness and a Doctor attached to Paramakudi Government Hospital and this witness would depose that on 22.12.1998, when she was at the hospital, she examined the victim P.W.1, who said that on 21.12.1998 at about 7.30 a.m. at Manjoor sluice, two persons attempted to rape her; that on examination, she found no external injuries and she issued Ex.P.3, accident register. 9. P.W.6 is also a Doctor attached to the Ramnad Government Hospital and this witness would depose that on 23.02.1999 when she was on duty, P.W.2 was summoned before her for examination and the victim alleged that on 21.12.1998 at about 8.30 a.m., when she was going to the school, at the Manjoor sluice, two boys, plucking her bag and tearing her clothes, attempted to rape her and since she raised an alarm, others came to her rescue and her clothes were recovered by the Police. This witness would also depose that with the permission of her father, she examined her and opined that pubic hair were present, but says that neither nail marks nor bite marks were seen on the stomach or thighs or breasts; that there were no injuries in her private part also and it was quite normal; that the hymen was not torn and there was no discharge; that she has issued the certificate to the effect that the victim was capable of having sexual intercourse, but till recently, she had not had any such intercourse at all and would issue Ex.P.4 final opinion; that her blood and urine were tested and also the body was scanned and nothing abnormal was found. 10. 10. P.W.7 is a Doctor attached to Ramnad Government Hospital and she would depose that on 23.02.1999 at about 9.55 a.m., A.1 was brought before him by P.C.1659 with a requisition to examine him and on examination, he found him to be 23 years old and this witness would certify that he was capable of having sexual intercourse and would issue Ex.P.5 certificate. Likewise, this witness would also examine A.2 and would issue Ex.P.6 certificate to the effect that he was capable of having sexual intercourse. This witness would further depose that he examined P.W.2, who was brought by her father and would admit her in the maternity ward for being examined by the expert. The accident register entered into regarding the details of P.W.2 would be marked as Ex.P.7. 10. P.W.8 is a Doctor and Radiologist attached to the Ramnad Government Hospital and this witness would depose that on 26.02.1999, P.W.2 was referred to her for examining her radiologically in order to ascertain her age; that she would take 5 X-rays and certify that the victim would of the age between 18 and 20; the certificate issued to the said effect is marked as Ex.P.8 and the X-rays numbering 5 would be marked as M.O.1 series. Likewise, A.1, who was also referred to P.W.8, medical officer and radiologist for ascertaining his age and she would ascertain his age to the effect that he had completed 20 years; the certificate issued would be marked as Ex.P.9 and the X-rays numbering 4 taken from A.1 would be marked as M.O.2 series. In the same manner for A.2 also, this witness would ascertain the age as having completed 20 years and issued Ex.P.10 certificate, besides marking the X-rays numbering four, taken to ascertain his age, would be marked as M.O.3 series. 11. P.W.9 was the Tahsildar of Paramakudi and he would depose that on 12.1.1999, he had issued the community certificate to the effect that the second accused was belonging to 'Kammala' community he and would mark same as Ex.P.11. Likewise, he has issued a community certificate on 30.12.1998 to the effect that A.1 was belonging to 'Yadava' community which would be marked as Ex.P.12. This witness would further depose that on 30.12.1998, he has issued Ex.P.13, Community Certificate to P.W.2 that she belongs to Hindu 'Pallan' community, which is a scheduled caste community. Likewise, he has issued a community certificate on 30.12.1998 to the effect that A.1 was belonging to 'Yadava' community which would be marked as Ex.P.12. This witness would further depose that on 30.12.1998, he has issued Ex.P.13, Community Certificate to P.W.2 that she belongs to Hindu 'Pallan' community, which is a scheduled caste community. He would also depose that he issued these certificates as per the requisition of the Deputy Superintendent of Police and certified by the Village Administrative Officer and the Revenue Inspector. 12. P.W.10 is the Sub Inspector of Police attached to the Paramakudi Police Station and he would depose that on 22.12.1998, when he was in the Police Station, P.W.1 appeared before him at 3.45 p.m. and lodged a written complaint and he registered the same in Crime No.164 of 1998 under Section 376 r/w. 511 IPC and 3(2)(v) of the SC/ST (Prevention Atrocities) Act and prepared Ex.P.14 F.I.R. and sent the original to the Court and the copies to the superior officers for investigation. This witness would also depose to the effect that he referred P.W.2, who was accompanied by P.W.1, to the hospital for medical treatment. 13. P.W.11 is the Deputy Superintendent of Police and the Investigating Officer and he would depose that on 22.12.1998, when he was on duty at Paramakudi Sub Division, about 5 p.m., he received the FIR and at 6 p.m., he inspected the spot in the presence of the witnesses and prepared Ex.P.15 rough sketch and examined P.Ws.1 and 2 and other witnesses; then he formed a separate Wing to cause the arrest of the accused; that on 23.12.1998, he examined P.W.4 and other witnesses and recorded their statements; that on 24.12.1998 at about 11 a.m., P.W.1 identifying, he arrested A.1 and taking him to the Police Station and preparing a memo. for medical examination, he would refer him to the Government Hospital; that on 25.12.1998, he examined P.W.3 and recorded his statement; that even on 22.12.1998, he advised the Inspector of Police to refer P.W.2 to the hospital for being examined medically; that since the second accused surrendered before the Court, noting the same, he then arranged for the community certificate to be obtained for P.W.2 and the accused. He has also referred the accused for medical examination with a requisition; that on 22.4.1999, P.W.2 and accused No.1 and 2 were examined medically and he obtained the certificates, besides examining the Doctors concerned; that having examined the Tahsildar on 12.1.1999, he obtained the Community Certificates concerned with P.W.2 and accused No.1 and 2, and on completion of the investigation, he laid the charge sheet on 22.4.1999 for commission of the offence punishable under Sections 376 r/w. 511 IPC and 3(2)(v) of the SC/ST (Prevention of Atrocities) Act; that on 22.1.1998, P.Ws.1 and 2 have appeared in the Police Station and immediately after lodging the complaint, M.Os.4 and 5 were recovered from P.W.2 by P.W.10. 14. On the above evidence placed on record, the trial court, having traced the facts and circumstances pleaded on the part of the prosecution and having discussed the evidence extracting the relevant portion of the same, one by one, and appreciating the same in the manner required by law, particularly the medical evidence and further noting that under Section 8(j) of the Indian Evidence Act, the subsequent conduct of P.W.2 in reporting the matter to her father P.W.1, who was the proper person to take action against the culprits, is admissible in evidence as res gestae and hence P.W.1 can be taken for the purpose of corroborating the evidence of P.W.2, who narrated before the court as to what had actually happened on the date of occurrence and the natural manner in which P.W.2 narrated the entire events, the trial court would not find any exaggeration of the events that had taken place. 15. 15. Further considering the arguments on the part of the defence to the effect that P.W.2 might have had some affair and in order to protect herself, she would have falsely implicated these two accused, but since nothing was elicited by the defence at the time of cross examination of P.Ws.1 and 2 as to why they should falsely implicate the accused in a case of this nature, the lower court would not trust the same and would doubt whether the father would come forward to implicate someone to testify the statement of his daughter, who was a school girl, just for the simple reason of falsely implicating a case against the accused when there was no enmity between the accused and the complainant at all and thus brushing aside this theory of the defence; that having confidence in the medical evidence and giving credence to the evidence of the other witnesses and the chain of evidence supplied and assigning reason for no injury either external or internal having been noted by the medical witnesses, admitting that it is a case of attempted rape with sufficient force and had not any disturbance like the coughing sound been heard, the commission of offence would have been complete and further pointing out proper reasons for having come to the Police Station delayed by one day, ultimately reposing confidence in P.Ws.1 and 2 and the connecting evidence supplied, the trial court would not find any evidence for an offence to have been made out or proved under Section 3(2)(v) of the SC/ST (Prevention of Atrocities) Act and since it has not at all been substantiated, refusing to convict the appellants/A.1 and A.3 under that provision of law, the lower court would find sufficient evidence and materials for the accused to be convicted for the offence punishable under Section 376 r/w.511 IPC, which according to the lower court, have been proved by the prosecution beyond all reasonable doubts and hence convicting and sentencing both the accused in the manner mentioned supra. 16. 16. Though the lower court has well appreciated the evidence and has arrived at its conclusions, still, it is the admitted case of the prosecution that it is only an attempt of rape and not the completion of the offence of rape, and therefore, this Court is not of the view that the offence under Section 376 r/w. 511 IPC has been committed on the part of the appellants/A.1 and A.2 and it would fall under Section 354 IPC for which alone, appellants/A.1 and A.2 would become liable to be convicted and sentenced. 17. At this juncture, it has become relevant to consider the judgments referred by the learned counsel appearing on behalf of the appellants, the first one delivered in Malkiat Singh VS. State of Punjab reported in AIR 1970 SC 713 wherein it has been held : "The test for determining whether the act of the accused person constituted an attempt or preparation is whether the overt acts already done are such that if the offender changes his mind and does not proceed further in its progress, the acts already done would be completely harmless." The second judgment is the one delivered in Amirthalingam VS. State, reported in 1996-1-L.W. (Crl.) 165 wherein a learned single Judge of this Court has held : "In this case, no doubt, catching of P.W.1's hands, pushing her down and lifting her saree, were all only the stage of preparation. Therefore, the attempt for rape had not commenced. Ex.D.1 reveals that on her shouting for help, the revision petitioner himself released her and she escaped from him. Therefore, when Ex.D.1 itself reads that the revision petitioner himself released her on account of her shouting, it cannot be said that his attempt had failed due to the reasons beyond his control. Hence, certainly the offence will not fall under Section 376 IPC r/w. 511 IPC. But catching hold P.W.1's hands, pushing her down and lifting her saree, will amount to outraging the modesty of a woman falling within the definition of Section 354 IPC. Therefore, the revision petitioner is guilty of the offence under Section 354 IPC for which he has to be dealt with. For the offence under Section 354 IPC, I feel that 1 year rigorous imprisonment and a fine of Rs.300/= will be an adequate punishment." 18. Therefore, the revision petitioner is guilty of the offence under Section 354 IPC for which he has to be dealt with. For the offence under Section 354 IPC, I feel that 1 year rigorous imprisonment and a fine of Rs.300/= will be an adequate punishment." 18. Following the above dictum of law already arrived at by the Apex Court and the learned single Judge of this Court in the circumstances of the case, it is only prudent to conclude that while holding that the case put up by the prosecution clearly comes to be proved in evidence, but for conviction and sentence not under Section 376 r/w. 511 IPC, for which absolutely there is no case admittedly and this Court has to only conclude that the offence proved on facts and circumstances brought forth by the prosecution could only be brought under Section 354 IPC and the accused convicted and sentenced accordingly. 19. It further comes to be known that already the accused have served the sentence for a total period of 1 year + 3 months and 1 year + 2 « months respectively, and this Court is of the view that for the said commission of offence punishable under Section 354 IPC, the sentence already served is sufficient to meet the ends of justice. In result, (i) the above appeal is allowed in part; (ii) the appellants/accused are found guilty of the offence punishable under Section 354 IPC, instead of Section 376 r/w. 511 IPC as ordered by the court below. (iii) however, the period of sentence already undergone by the appellants/accused is held sufficient for the offence punishable under Section 354 IPC. Further, the sentence of fine imposed by the court below is sustained. Appellants/accused shall be released forthwith, if they are not required in any other case.