JUDGMENT S.L. Jain, J. 1. Appellant Kallu Ahirwar stands convicted for offences punishable under sections 450 and 376(2)(f), Indian Penal Code and sentenced to R.I. for seven years with fine of Rs. 1,000.00 and R.I. for ten years with fine of Rs. 5,000.00, respectively, by the impugned judgment and order dated February 12, 1998, passed by 1st additional Sessions Judge, Tikamgarh, in Sessions Trial No. 60/97. 2. The prosecution case, in brief, is that prosecutrix Sunita is the daughter of Ghanshyam (PW6) and Smt. Pushpa (PW 4). On 13-4-97, at about 4 P. M. Ghanshyam (PW6) had gone to Bazar at village Sakera. Smt. Pushpa had gone somewhere in the village. Prosecutrix Sunita was giving food to her brother and sister who were twins. Appellant came inside the house of the prosecutrix and enquired about her parents. When he learnt from the prosecutrix that he parents are outside the house, he committed rape on the prosecutrix. During the course of incident Pushpa, the mother of prosecutrix returned home. When she objected on the conduct of the appellant, he ran away. 3. After some time Ghanshyam (PW 6), the father of prosecutrix also returned home, whom the incident was narrated. FIR of the incident was lodged at P.S. Prithvipur, District Tikamgarh, as per Ex.P-7. A crime for offences punishable under sections 450 and 376(2)(f), Indian Penal Code was registered and investigation commenced. 4. The prosecutrix was sent for medical examination. She was examined by Dr. Smt. Madhu Jain, Assistant Surgeon. On her examination, Dr. Smt. Madhu Jain found that : Secondary sexual characters of the prosecutrix were not developed. No marks of injury were found all over her body. Thigh separation was not painful. The hymen of the prosecutrix was found intact. Vagina admitted tip of little finger only. Minute abrasion was found on inner aspect of labia minor right side, lower part. No bleeding was found. She found post fourchitte intact. No tear was present. The nicker of prosecutrix was recovered by Dr. Smt. Jain as certain stains of blood were found thereon. Vaginal smear of the prosecutrix was also collected and two slides were prepared. She advised for ossification test to ascertain age of the prosecutrix. 5. S.I., R.G. Pandey (PW 12) prepared the spot map. No tear was present. The nicker of prosecutrix was recovered by Dr. Smt. Jain as certain stains of blood were found thereon. Vaginal smear of the prosecutrix was also collected and two slides were prepared. She advised for ossification test to ascertain age of the prosecutrix. 5. S.I., R.G. Pandey (PW 12) prepared the spot map. When the appellant was running away soon after the arrival of mother of the prosecutrix, Pushpa Bai had caught hold of his shirt and snatched the same. This shirt was recovered from Pushpa Bai. Appellant was arrested. He was sent for medical examination. He was examined by Dr. M. K. Jain (PW 10), who found that the appellant is well developed man and capable of performing sexual intercourse. The underwear of the appellant was also recovered. As per report of FSL spermatozoa were found in the semen of the appellant but no spermatozoa were found in the slides of prosecutrix though blood was found therein. 6. After investigation a challan for the aforesaid offences was filed against the appellant and the case was committed to the Court of Session. 7. The learned Additional Sessions Judge framed a charge against the appellant for the alleged offences. The appellant abjured the guilt and claimed to be tried. His defence is that he was falsely implicated in the case. 8. On the basis of the above prosecution case, the trial Court cane to the conclusion that prosecution established its case beyond reasonable court and appellant was responsible for house trespass and rape and accordingly, convicted and sentenced him as indicated above, by the judgment and order impugned. 9. Aggrieved by the conviction and sentences recorded by the learned Additional Sessions Judge, the appellant has come up in this appeal. 10. I have heard Shri S. C. Datt, learned senior counsel with Shri S. Pandit, Advocate, appearing for the appellant and Shri Sanjeev Shukla, learned Panel Lawyer, appearing for the State, and perused the record of the trial Court. 11. Shri Datt, learned senior counsel, appearing for the appellant led me through the record and contended that the learned Additional Sessions Judge has committed an error in holding the appellant guilty of charges levelled against him. He submitted that the conviction and sentences imposed upon the appellant are illegal and incorrect, as such, are liable to be set aside. 12. Shri Datt, learned senior counsel, appearing for the appellant led me through the record and contended that the learned Additional Sessions Judge has committed an error in holding the appellant guilty of charges levelled against him. He submitted that the conviction and sentences imposed upon the appellant are illegal and incorrect, as such, are liable to be set aside. 12. On the other hand, Shri Prakash Gupta, learned State counsel has supported the judgment recorded by the trial Court convicting and sentencing the appellant as indicated above. 13. The prosecution, in support, of its case, has examined prosecutrix Sunita (PW 3), her mother Smt. Pushpa (PW 4), her father Ghanshyam (PW 6), the doctors who examined the prosecutrix and the appellant, the Investigating Officer and other formal witnesses. 14. Ku. Sunita (PW 3) has stated that on the date of the incident when her parents were not present in the house, the appellant entered her house and committed rape on her. The accused continued the intercourse for a considerable time. When her mother came from the village, she caught hold of the shirt of accused. The accused ran away but his shirt was snatched by her mother. When her father reached home, accused was brought from his house and was tied with a rope. She went to the police station Prithvipur and lodged the FIR. 15. Smt. Pushpa (PW 4) has stated that on the date of the incident her husband was not at home. She also had gone to hand pump to fetch water. Her daughter Sunita was playing with her siblings who were twin. When she reached home she saw the appellant committing rape on her daughter. She found blood in the underwear of her daughter. On seeing her, the appellant tried to run away but she snatched his bushshirt. On hearing her cries, some of the villagers had reached there. She narrated the incident to these persons. After about one hour her husband also returned. The appellant was brought from his house and was tied with a rope. 16. Ghanshyam (PW 6) also corroborated the version of his daughter and wife. 17. So far as allegation of rape on the prosecutrix is concerned, the same is not fully corroborated by medical evidence. Dr. Smt. Madhu Jain (PW 1) has stated that prosecutrix was examined by her. Her hymen was found intact. 16. Ghanshyam (PW 6) also corroborated the version of his daughter and wife. 17. So far as allegation of rape on the prosecutrix is concerned, the same is not fully corroborated by medical evidence. Dr. Smt. Madhu Jain (PW 1) has stated that prosecutrix was examined by her. Her hymen was found intact. Her vagina admitted only tip of small finger. She also found abrasion on the right labia minora of the prosecutrix. She did not find bleeding from the said injury. She found post fourchitte intact. She did not find tear. She has stated that no definite opinion can be given regarding rape on the prosecutrix. In her cross examination Dr. Smt. Jain has admitted that the scratch found on the labia minora can be caused during the process of itching. She did not find bleeding. She has also admitted in her statement that if a young man of 30 years of age commits rape on a young girl, the hymen of the girl will tear but in this case, the hymen of the prosecutrix was found intact. 18. Normally, no girl or her parents would come forward to make a humiliating statement against the honor of the girl or fable with rape unless it was true but in this case I find some exaggeration in the evidence of prosecutrix and her mother because the evidence is not corroborated by medical evidence. 19. There is ample evidence that the prosecutrix was aged about 9 years and the accused was a well built young man of 30 years. Had thee been penetration, extensive damage would have been caused to the vagina of the prosecutrix. Since the hymen was found intact, it cannot be said that there was penetration. So far as the incident is concerned, the evidence of prosecutrix and her parents cannot be disbelieved except that in fact, rape was not committed on the prosecutrix and only an attempt to commit rape was made. 20. It is true that degree of penetration is not material for charge under section 376, Indian Penal Code and even valuable penetration is sufficient for establishing charge of rape but in this case where no damage has been caused to the vagina, it cannot be said that penetration had taken place. 20. It is true that degree of penetration is not material for charge under section 376, Indian Penal Code and even valuable penetration is sufficient for establishing charge of rape but in this case where no damage has been caused to the vagina, it cannot be said that penetration had taken place. Where there was no injury on the private part of the prosecutrix except minor scratch on labia minora, which according to the Doctor can be caused while itching and it appears that the penetration was not complete, but an attempt of penetration was made, therefore, the accused can be held guilty of offence punishable under section 376/511, Indian Penal Code. 21. The accused was examined by Dr. Mahendra Kumar Jain (PW 10), who found no injury on his genitalia. Admittedly, the accused was strong and robust man and the doctor opined that vagina admitted only tip of little finger with difficulty and the hymen was found intact. Therefore, absence of injury on the male generative organ of accused also establishes that there was no penetration. 22. From the evidence of prosecutrix and her mother, it is well established that accused committed house trespass in order to commit rape on the prosecutrix. The trial Court has also found that the offence punishable under section 450, Indian Penal Code is proved beyond reasonable doubt. The approach of the trial Court as to the evidence adduced in the case, so far as offence of house trespass is concerned, is legal, proper and reasonable, therefore, the order of convicting the accused for offence punishable under section 450, Indian Penal Code cannot be interfered with. 23. Accordingly, for the aforesaid reasons, the order of conviction against the appellant for offence punishable under section 450, Indian Penal Code is maintained. His conviction for the offence punishable under section 276(2)(f), Indian Penal Code is set aside and the same is altered to one punishable under section 376 read with section 511, Indian Penal Code. 24. So far as the sentence is concerned, the appellant is in custody since 17-4-1996 and the incident occurred long back and appellant has been convicted for offences punishable under sections 450 and 376 read with section 511, Indian Penal Code, instead of section 376(2)(f), Indian Penal Code, the sentence for the period already undergone by the appellant shall be just and appropriate and it will meet the ends of justice. Therefore, the sentences imposed upon the appellant for offence punishable under sections 450 and 376(2)(f), Indian Penal Code stand set aside. He is sentenced to the period already undergone by him for the offence punishable under sections 450 and 376 read with section 511, Indian Penal Code. In view of the substantive sentence of imprisonment, sentence of fine is set aside. The amount of fine, if has already been paid by the appellant shall be returned to him. The appellant is in jail. He shall be released forthwith, if not required in connection with any other case.