Judgment M.L.Singhal, J. 1. In case FIR No. 70 dated 13.2.1998 registered under Sections 452, 376/511 of the Indian Penal Code at Police Station Khol (Sessions Case No. 14 of 1998). Chand Singh son of Kanhi Ram caste Ahir, resident of village Luhana was convicted by the Additional Sessions Judge, Rewari vide order dated 13.1.1999 and was sentenced to undergo imprisonment as follows : Section 452 Indian Penal Code R.I. for seven years and fine of Rs. 30,000/- in default of payment of fine to undergo R.I. for three years. Section 376/511 Indian Penal Code R.I. for seven years and fine of Rs. 30,000/- in default of payment of fine to undergo R.I. for three years. 2. Both the substantive sentences were ordered to run concurrently. Not satisfied with the conviction and sentence imposed upon him by Additional Sessions Judge, Rewari vide order dated 13/15.1.1999, Chand Singh has come up in appeal to this Court. 3. The prosecution case in brief is that, Smt. Bhuri Devi widow of Chiranji Lal, aged about 90 years, was blind for the last 20 years. On 9.2.1998 at about 4.00 P.M., she was lying on a cot in the Bramda of her house while every other member of the family, whether male or female, was away to the fields. Children were also away to the school. Chand Singh accused intruded into the house and sat on the same cot. He started indulging into indecent acts with her. He started pinching her. He started fondling her feet. He lifted her peticoat and lay on her. She raised hue and cry. In the meantime, her grand-daughter (dohti) Neelam came from school. Her grandson Naresh and Vijender also came. On seeing them, he ran away. If they had not arrived, he would have raped her. She narrated the entire incident to the members of the family. Panchayat was also gathered to sort out this matter. Panchayat could not sort out this matter. Kanhi Ram father of Chand Singh accused refused to abide by any decision of the Panchayat. Even he refused to cause the appearance of his son Chand Singh before the Panchayat. The matter was reported to the Police by Chiranji Lal Sarpanch, Gram Panchayat, Luhana on 13. Panchayat could not sort out this matter. Kanhi Ram father of Chand Singh accused refused to abide by any decision of the Panchayat. Even he refused to cause the appearance of his son Chand Singh before the Panchayat. The matter was reported to the Police by Chiranji Lal Sarpanch, Gram Panchayat, Luhana on 13. 2.1998 vide application Exhibit P-C, on the basis of which case FIR No. 70 dated 13.2.1998 was registered at Police Station Khol under Sections 452, 376/511 of the Indian Penal Code. After investigation, Chand Singh was challaned. 4. Case was committed to the Court of Session by Chief Judicial Magistrate, Rewari vide order dated 23.4.1998. Accused was charged under Sections 452, 376/511 of the Indian Penal Code by Additional Sessions Judge, Rewari. Accused pleaded not guilty to the charge and claimed trial. 5. At the conclusion of the trial, accused was convicted and sentenced by Additional Sessions Judge, Rewari as indicated above. 6. I have heard learned counsel for the appellant and learned Assistant Advocate General for the State of Haryana and gone through the record. 7. Learned counsel for the appellant submitted that Smt. Bhuri, prosecutrix, could not be produced at the trial as she was since dead. Case hinges upon the statement of her grand-daughter (dohti) Neelam. It was submitted that so far as Neelam is concerned, she is a child of 12 years old. Her statement is not spontaneous. She has stated whatever was tutored to her. 8. Suffice it to say Neelam is sufficiently mature. She was studying in 8th standard. A child who is studying in 8th standard is sufficiently mature. She has stated that she has known the accused since her childhood. Smt. Bhuri was her grand-mother. She died three or four months ago on 9.2.1998. She was returning from school. After school hours, when she reached home, she saw Chand Singh accused having caught her grand-mother and lying on her. She raised raula. He ran away. Her maternal uncle also reached there. Her grand- mother told everything about the incident that had happened with her to her maternal uncle Naresh. She stated that her grand-mother was 90 years old. She stated that she had seen the accused lying on her grand-mother when she was at a distance of 15-20 paces. She raised raula. He ran away. Her maternal uncle also reached there. Her grand- mother told everything about the incident that had happened with her to her maternal uncle Naresh. She stated that her grand-mother was 90 years old. She stated that she had seen the accused lying on her grand-mother when she was at a distance of 15-20 paces. She stated that her grand-mothers clothes were not torn but she was made naked by lifting her lower body part clothes up. She stated that before the arrival of her maternal uncle Naresh, the accused had run away. Naresh, who is Smt. Bhuris grandson, stated that Smt. Bhuri was her grand-mother. She was 90 years old. She died on 25.5.1998. Her eye sight was very weak. On 9.2.1998, when he returned from the fields at 4.00 P.M., he noticed that accused Chand Singh was sitting on the cot of his grand mother. Her clothes were torn. She was weeping. Neelam, her grand-daughter (dohti), had raised alarm and had pointed that Chand Singh accused was inside the house. He tried to catch Chand Singh but he pushed him and ran away. Many people came to their house. His grand-mother Bhuri informed them that accused Chand Singh had committed sexual intercourse with her. Chiranji Lal, Sarpanch of village Luhana stated that he made complaint Exhibit P-C in writing to the Police on 13.2.1998. It was signed by large number of persons of the village, who had been called upon to resolve a common cause. Dr. P.D. Mehra, Medical Officer, General Hospital, Rewari, examined Chand Singh on 19.3.1998 and found him capable of sexual intercourse. 9. Learned counsel for the appellant submitted that Neelam has deposed to a tutored statement. Besides the statement of Neelam, there is no evidence to connect the accused with the charge of rape on her grand-mother (Nani) Smt. Bhuri. He submitted that there could be no question of accused having made in attempt at rape Bhuri, who was 90 years old, while he himself was 40 years old. It was submitted that it is not possible to believe that man aged 40 would commit sexual assault on an extremely old woman aged 90 who cannot satisfy his sexual lust. 10. Suffice it to say, we cannot go by conjectures and surmises. We have to go by positive evidence. Neelam, PW-3 has made a categoric statement. It was submitted that it is not possible to believe that man aged 40 would commit sexual assault on an extremely old woman aged 90 who cannot satisfy his sexual lust. 10. Suffice it to say, we cannot go by conjectures and surmises. We have to go by positive evidence. Neelam, PW-3 has made a categoric statement. Chiranji Lal, Sarpanch of the Panchayat of village Luhana has stated that there took place the assembly of Panchayat/Bradri of the village to resolve this incident. This incident could not be resolved and then they made complaint to the Police which was signed by almost the entire village where through they prayed that accused be dealt with a firm hand and severe punishment be imposed upon him, so that, there was no intrusion upon the modesty of women folk of the village in future. 11. It was submitted by learned counsel for the appellant that no offence under Section 376/511 of the Indian Penal Code was made out against Chand Singh assuming that the prosecution case is true, only offence punishable under Section 354 of the Indian Penal Code would be made out. It was submitted that when there is no evidence that the accused tried to insert his penis into the vagina of Smt. Bhuri, it could not be said that he had tried to commit rape upon her. It was submitted that it was only an indecent assault committed by the accused upon Smt. Bhuri or the use of criminal force by him upon her with a view to outraging her modesty and thus gratify his lust. 12. Suffice it to say, the evidence is that he lifted her petticoat up and lay on her. This shows that he had done so to gratify his sexual lust on her. Accused was 40 years old while prosecutrix was 90 years old. She could not offer any resistance. Fact that he lay on her, suggests that he was in the act of sexual intercourse with her or he was attempting to have sexual intercourse with her. Neelam is sufficiently mature. She has stated in so many words that her grand-mother was made naked by lifting her lower both parts clothes up and the accused lay on her. 13. Fact that he lay on her, suggests that he was in the act of sexual intercourse with her or he was attempting to have sexual intercourse with her. Neelam is sufficiently mature. She has stated in so many words that her grand-mother was made naked by lifting her lower both parts clothes up and the accused lay on her. 13. For an offence of attempt to commit rape, the prosecution is required to establish that, action on the part of the accused had gone beyond the stage of preparation. The difference between mere preparation and an actual attempt to commit an offence consists chiefly in the greater degree of determination. In Subhash Chander v. State of Haryana, 1993 RCR Punjab 283, it was held that 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 but 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 an actual attempt to commit an offence consists chiefly in the greater degree of determination. 14. Accused made an attempt at rape and it was not merely the use of criminal force to Smt. Bhuri by the accused with a view to outraging her modesty. 15. For the reasons given above, I am of the opinion that the accused was justifiably convicted of the charge framed against him under Section 376/511 of the Indian Penal Code. He should have been convicted under Section 451 of the Indian Penal Code but not under Section 452 of the Indian Penal Code. 16. There is no reason to slash the sentence of imprisonment imposed upon him so far as charge under Section 376/511 of the Indian Penal Code is concerned. When we took to the fact that he was 40 years old and made a woman aged 90 the object of his sexual lust. He lost all sense of decency when he intruded into the house of Smt. Bhuri finding her alone and he first sat on a cot with her and then lifted her petticoat and lay himself on her. He behaved like a savage and a brute. He does not deserve to be shown any leniency. Fine imposed upon him is however, excessive. A sum of Rs. He behaved like a savage and a brute. He does not deserve to be shown any leniency. Fine imposed upon him is however, excessive. A sum of Rs. 5,000/ - is imposed as fine on each count. Conviction imposed upon him under Section 452 of the Indian Penal Code is altered to one under Section 451 of the Indian Penal Code, sentence is however reduced to be two years rigorous imprisonment under Section 451 of the Indian Penal Code. In default of payment of fine, he will undergo further six months R.I. each. 17. Substantive sentences shall run concurrently subject to what has been said above, this appeal fails and is dismissed.