P. S. NARAYANA, J. ( 1 ) THE appellant/accused preferred th present Criminal Appeal as against the judgment dated 21-1-2000 made in S. C no. 322/97 on the file of Assistant Sessior judge, Gurazala convicting the appellant accused for an offence under Section 376 IPC and sentencing him to undergo Rigorous imprisonment for ten years and also to pay a fine of Rs. 5,000/- and in default of payment of fine, to undergo Simple Imprisonment for six months. ( 2 ) FACTS in nut-shell: the appellant/accused at the relevant point of time was a Constable attached to rentachintala Police Station. P. W. 1 is the prosecutrix. P. W. 2 is the niece and P. W. 3 is the son of P. W. 1. On 24-12-1995 at about 7 p. m. in the absence of P. W. 1 Police came to the house of P. W. 1 and enquired about p. W. 1 and after her return to the house she was informed of the same. The police searched the house of P. W. 1. At the time cf search P. W. 3 and his three brothers were present in the house. Again at 2 a. m. on 25-12-1995, the appellant/accused and another Dasaradha Ramaiah came to the house of P. W. 1 and at that time P. W. 1 was sleeping. She was woken up, called outside by catching hold of her hands and bolted the doors from outside keeping the children and relatives of P. W. 1 inside. The children and the relatives cried as to where she was being taken. It is also the case of the prosecution that P. W. 1 was taken to vacant site in front of the house and the appellant/accused threatened P. W. 1 that excise case would be filed and when P. W. 1 pleaded ignorance the appellant/accused insisted for an amount of rs. 1,000 / - and P. W. I expressed her inability to pay the same. Then the appellant/accused sent the other person and he came to P. W. 1 saying that he had a desire to have sexual intercourse with her. P. W. 1 prayed him that she was not such type of woman and also prayed to show mercy on her. The appellant/ accused caught P. W. 1 and took her to the nearby babul trees. P. W. 1 also raised cries. P. W. 1 prayed him that she was not such type of woman and also prayed to show mercy on her. The appellant/ accused caught P. W. 1 and took her to the nearby babul trees. P. W. 1 also raised cries. The appellant/accused outraged her modesty and also committed rape on P. W. 1 by using force. Dasaradha Ramaiah witnessed the incident and he told P. W. 1 that the appellant/accused lost his wife and as such he committed the offence and asked p. W. 1 not to reveal this to anybody. On 25-12-1995 at about 10. 30 a. m. V. A. O. Rentachintala came to Rentachintala Police station along with P. W. 1 and presented a report to P. W, 11, S. I. of Police, Ex. P-1. P. W. 11 registered Crime No. 135/96 under sections 376 and 377 r/w. Section 34 IPC. Ex. P-10 is the FIR and he had sent the FIR copies to all the concerned. Then P. W. 1 was sent to Government Hospital, Gurazala for medical examination. On 25-12-1995 at about 11 a. m. on receipt of information about the crime, P. W. l4 thec. I. of Police visited rentachintala Police Station and had taken up the investigation. P. W. 1 was present in the police station and P. W. 14 recorded the statement of P. W. 1. At about 12 o clock p. W. 14 went to the scene of offence, examined the scene of offence and drafted observation report. Ex. P-3 is the said observation report. P. W. 14 also examined the other witnesses and recorded their statements. P. W. 8, the civil Asst. Surgeon, Government Hospital, gurazala examined P. W. 1 on 25-12-1995 at 3 p. m. and opined that there are signs of attempted rape. Ex. P-4 is the certificate issued by P. W. 8. Ex. P-5 is the F. S. L. report. On 14-2-1996 at about 16. 30 hours, the appellant accused appeared before P. W. 14, the Circle inspector at Circle Office, Gurazala and p. W. 14 arrested the appellant / accused and sent him to Government Hospital, Gurazala for medical examination. P. W. 14 examined the appellant/accused. Ex. P-11 is the certificate issued by P. W. 12 and the appellant/accused was sent to judicial custody and after completion of investigation, the charge sheet was filed. P. W. 14 examined the appellant/accused. Ex. P-11 is the certificate issued by P. W. 12 and the appellant/accused was sent to judicial custody and after completion of investigation, the charge sheet was filed. ( 3 ) IN support of the case of prosecution, p. W. 1 to P. W. 14 were examined and exs. P-1 to P-12 and M. Os. 1 to 3 were marked. Exs. D-1 and D-2 also had been marked. On appreciation of the evidence available on record, the learned Assistant Sessions Judge, gurazala ultimately had arrived at the conclusion that the guilt of the appellant/ accused is proved beyond all reasonable doubt and convicted and sentenced him to undergo Rigorous Imprisonment for ten years and also to pay a fine of Rs. 5,000/-, in default of payment of fine to undergo Simple imprisonment for six months. Aggrieved by the same, the present Appeal is preferred. ( 4 ) SRI Padmanabha Reddy, the learned counsel representing the appellant/accused would point out that this appears to be a matter concerned with some excise search and it is highly improbable that when so many inmates were there in the house, the appellant/accused could have committed the alleged offence. The learned Counsel also had pointed out that the story deposed by P. W. 1 is so unnatural and the so-called commission of offence of rape by the appellant/accused cannot be believed at all especially in the light of the evidence of p. W. 8, the Doctor, who had opined that there are signs of attempted rape. The learned counsel also would point out that P. W. 1 had deposed that she was forced to bend down and was raped and this statement of p. W. 1 definitely cannot be believed since the question of bending down and the question of committing rape would be highly improbable. The learned Counsel also had pointed out to Exs. D-1 and D-2 and would contend that the sine qua non for the offence of rape is penetration and definitely the evidence of P. W. 1 is vague and the medical evidence also does not lend support to the version of the prosecution and hence the appellant/accused is entitled for acquittal. The Counsel placed strong reliance on koppula Venkat Rao v. Stateofandhm Pradesh. The Counsel placed strong reliance on koppula Venkat Rao v. Stateofandhm Pradesh. ( 5 ) PER contra, the learned Additional Public prosecutor would contend that the evidence of P. W. 1 is so clear and categorical and merely because in the medical evidence opinion was expressed relating to signs of attempted rape, by that itself it cannot be said that there is no completed offence of rape in the present case. The learned Counsel also would contend that in a case of rape, uncorroborated testimony of the prosecutrix would be, more than sufficient for basing conviction. The learned Counsel also placed reliance on Bhitpinder Sharma v. State of H. P. and also on Bhoginbhai Hirjibhai v. State of gujarat. ( 6 ) HEARD the Counsel. ( 7 ) THE brief facts of the version of the prosecution already had been specified supra. The charge against the appellant/ accused is as hereunder:"you the accused working as Constable in Rentachintala Police Station on the intervening night of 24/25-1995 at 2 a. m. visited the houses of Devalla guravamma along with Revalla dasaradha Ramaiah (Home Guard) and took her the said Guravamma into the bushes of babul trees which were located adjacent to road after sending away revalla Dasaradha Ramaiah you the accused raped the said Guravamma and thereby committed an offence punishable u / s. 376ipc and within my cognizance. "p. W. 1 as on the date of examination is shown to be of the age of 44 years and she had deposed that she got six children and all of them are male and she has been eking out her livelihood on napa business and about 4 years back on one Sunday at about 7 p. m. in her absence police came and enquired about her and on her return she was informed about the same and the police searched her house and by that time her four sons Revandla pullaiah, Kotaiah, Ramaiah and Peraiah and devandla Nageswara Rao and Bangaraiah and Venkamma were present. Again at 2 a. m. the appellant/accused and another constable Dasaradha Ramaiah P. W. 9 came to her house and at that time she was sleeping. Again at 2 a. m. the appellant/accused and another constable Dasaradha Ramaiah P. W. 9 came to her house and at that time she was sleeping. She was woken up and she was called outside by catching hold of her hands and bolted the doors outside keeping her children and relatives inside and her children and the relatives cried as to where she was being taken and she was taken to the vacant site in front of the house and they threatened her with filing of excise case and she pleaded her innocence and they demanded Rs. 1000/- and she expressed her inability to pay and prayed for mercy and the appellant/accused sent the other person and came to P. W. 1 saying that he had a liking towards her but she prayed that she was not of that type and requested to leave her and the appellant/ accused expressed his desire to have contact with her. P. W. 1 also deposed that he caught her and took her to the nearby babul trees and she also raised cries and he outraged and committed rape against her will using force and misusing his official capacity. She warded of the appellant/accused and he removed all his clothes. Dasaradha Ramaiah witnessed the incident. P. W. 1 was told that the appellant/accused lost his wife and as such he committed the offence and asked her not to reveal the incident to anybody and later she went inside the house and informed about the incident. P. W. 1, Devandla venkateswarlu and Premaraju went to the house of the appellant/accused and asked him as to what happened. The appellant/ accused pleaded innocence and later offered to pay an amount of Rs. 10,000/- admitting the offence and L. W. 5 informed P. W. 1 and asked her about the same and asked her to compromise by taking the amount of rs. 10,000/-, but she did not accept for the compromise. In the early hours she went to the police station and her report was recorded by V. A. O. on her dictation and Premaraju and Devendla Venkateswarlu were also present. Ex. P-1 is the statement given by her to the V. A. O. P. W. 1 was wearing petty coat, blue coloured saree and light black coloured jacket. M. 0. 1 is the saree, M. 0. Ex. P-1 is the statement given by her to the V. A. O. P. W. 1 was wearing petty coat, blue coloured saree and light black coloured jacket. M. 0. 1 is the saree, M. 0. 2 is the jacket and M. O. 3 is the blue coloured petty coat. She was taken to her house to note down the features at the scene of offence. M. O. 1 to m. O. 3 were seized at the hospital and police examined P. W. 1 and recorded her statement and a lady Doctor examined her. This witness, p. W. 1, was csoss-examined at length and she no doubt deposed in cross-examination that all her children were in the house and she does not know whether any excise case was filed against her. She also deposed that she was an accused in Cr. No. 78/96 under section 436 IPC and no doubt she denied certain suggestions and she also admitted that she used to send petitions against police for filing false cases against her. P. W. 1 also deposed that Police did not make any galata at her house and all of them were sleeping inside the house and she knows Rentachintala police and she does not know the appellant/ accused prior to the incident and she does not know the particulars of the appellant/ accused before the offence. She further deposed that 2 a. m. police came as the door which was not locked. The appellant/ accused knocked the door and P. W. 1 and the other inmates woke up and her children and others were not allowed to go outside the house and they were pushed inside the house and the door was locked and P. W. 1 raised cries and her children also raised cries. She also deposed that her house has two door ways. The police were in uniform and nobody from the house came out. The other person went to a distance of 12 yards. There were babul trees on the Western and Southern side and she was taken to Eastern side babul tree bushes and she was forced to bend down and was raped. Babul tree thorns had pierced on her body. She was directed to give evidence before the Deputy Superintendent of Police and she gave evidence that she was raped and the other suggestions had been denied. Babul tree thorns had pierced on her body. She was directed to give evidence before the Deputy Superintendent of Police and she gave evidence that she was raped and the other suggestions had been denied. No doubt P. W. 1 deposed that she did not state before the Police as in Ex. D-1 and also she did not tell the police as in ex. D-2. Exs. D-1 reads as hereunder: ". . . . I caught their legs. . . . . . . . ". Ex. D-2 reads as hereunder: ". . . . . . He took me in to babul trees and spoiled me. . . . . . . . . . . . ". P. W. 1 also deposed that M. O. 1 to M. O. 3 were seized at the hospital and she had stated in the report as to the demand by the appellant/accused for payment of Rs. 1000/- for not filing a case and she does not remember as to whether the fact of her raising cries had been mentioned in Ex. P-1 and certain questions were put in relation to premaraju to the effect that he is a rowdy sheeter which were no doubt denied. No doubt P. W. 1 also deposed that there are two murder cases against Premaraju. ( 8 ) THE evidence of P. W. 2 is to the limited extent that on that day she came to rentachintala and at 7 p. m. police came and searched the house and she told that at 9 p. m. two constables came and searched the house and she stated to the police that at 2 o clock the appellant/accused tried to pull her out of the house and at that juncture P. W. 1 came to her rescue. No doubt she denied the suggestion that she was not present on the day and she was speaking falsehood. This witness, P. W. 2, was aged about 70 years. ( 9 ) P. W. 3, the son of P. W. 1, was declared hostile since he deposed that he did not witness anything. P. W. 8 is the Doctor who had examined P. W. 1 and she deposed about the following injuries: multiple abrasions found on the back about 4" x 1/4"; 6" x 1/4"; 10" x 1/4". Examination of Vulva : No external/ internal injuries found. P. W. 8 is the Doctor who had examined P. W. 1 and she deposed about the following injuries: multiple abrasions found on the back about 4" x 1/4"; 6" x 1/4"; 10" x 1/4". Examination of Vulva : No external/ internal injuries found. Examination of vagina : No external/internal injuries found except vagina is soft and patulousa. " p. W. 8 further deposed that pubic hair, vaginal swabs and clothes were preserved and were sent to R. F. S. L. Vijayawada for chemical examination. She further deposed that the result of analysis showed semen only on the blue coloured cotton langa (M. O. 3) and the semen is of human origin. P. W. 8 expressed the opinion that there were signs of attempted rape. Ex. P-4 is the certificate issued by her and Ex. P-5 is the r. F. S. L. report. ( 10 ) ON the strength of the evidence of p. W. 1 and the evidence of P. W. 8, the medical evidence, submissions at length were made that the version of the prosecution that there was completed offence of rape definitely cannot be believed in the facts and circumstances of the case. In the decision referred (1) supra, at paras, 11,12 and 13 the " Apex Court held:"in order to find an accused guilty of an attempt with intent to commit a rape, court has to 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. Indecent assaults are often magnified into attempts at rape. In order to come to a conclusion that the conduct of the accused was indicative of a determination to gratify his passion at all events, and in spite of all resistance, materials must exist. Surrounding circumstances many times throw beacon light on that aspect. The sine qua non of the offence of rape is penetration and not ejaculation. Ejaculation without penetration constitutes an attempt to commit rape and not actual rape. Definition of "rape" as contained in Section 376 IPC refers to "sexual intercourse" and the Explanation appended to the section provides that penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape. Intercourse means sexual connection. In the instant case that connection has not been established. Definition of "rape" as contained in Section 376 IPC refers to "sexual intercourse" and the Explanation appended to the section provides that penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape. Intercourse means sexual connection. In the instant case that connection has not been established. Courts below were not correct in their view. When the evidence of the prosecutrix is considered in the proper perspective, it is clear that the commission of actual rape has not been established. However, the evidence is sufficient to prove that attempt to commit rape was made. That being the position, conviction is altered from Section 376 IPC to Sections 376/ 511 ipc Custodial sentence of 3 and 1/2 years would meet the ends of justice. The accused who is on bail shall surrender to custody to serve remainder of his sentence. "in the decision referred (2) supra, the Apex court while explaining the meaning of rape held:"the offence of rape in its simplest term is "the ravishment of a woman, without her consent, by force, fear or fraud, or as "the carnal knowledge of a woman by force against her will". "rape" or "raptus" is when a man hath carnal knowledge of a woman by force and against her will; or as expressed more fully, "rape is the carnal knowledge of any woman, above the age of particular years, against her will; or of a woman child, under that age, with or against her will". The essential words in an indictment for rape are rapuit and carnaliter cognovil ; but carnaliter cognovit, nor any other circumlocution without the word rapuit, are not sufficient in a legal sense to express rape. In the crime of rape, "carnal knowledge" means the penetration to any the slightest degree of the organ alleged to have been carnally known by the male organ of generation. It is violation with violence of the private person of a woman - an outrage by all means. By the very nature of the offence it is an obnoxious act of the highest order. "in the decision referred (3) supra, while dealing with testimony of prosecutrix and necessity of corroboration and extent thereof, the Apex Court placing reliance on Rameshwar v. State of Rajasthan, held:"corroboration is not the sine qua non for a conviction in a rape case. By the very nature of the offence it is an obnoxious act of the highest order. "in the decision referred (3) supra, while dealing with testimony of prosecutrix and necessity of corroboration and extent thereof, the Apex Court placing reliance on Rameshwar v. State of Rajasthan, held:"corroboration is not the sine qua non for a conviction in a rape case. In the Indian setting, refusal to act on the testimony of a victim of sexual assault in the absence of corroboration as a rule, is adding insult to injury. Why should the evidence of the girl or the woman who complaints of rape or sexual molestation be viewed with the aid of spectacles fitted with lenses tinged with doubt, disbelief or suspicion? To do so is to justify the charge of male chuvinism in a male dominated society". ( 11 ) IN the present case, P. W. 4 deposed that he knows P. W. 1 to P. W. 3 and the appellant / accused is a Police Constable attached to Rentachintala Police Station and he was informed about the rape by the appellant/accused as against P. W. 1 and he deposed about the details. No doubt the evidence of this witness is of some importance in relation to whathad transpired subsequent to the incident. ( 12 ) P. W. 5 is a resident of Rentachintala and this witness deposed that P. W. 1 informed weeping that she was raped by the police. However this witness did not see the police, but she was informed. P. W. 6 is the v. A. O. who is the scribe of Ex. P-1. P. W. 7 signed in Ex. P-3, but he was declared hostile. The evidence of the Doctor, P. W. 8, already had been discussed supra. P. W. 9 was declared hostile. P. W. 10 deposed that he had filed charge sheet on 28-9-1996, but he deposed that he had not conducted the investigation. P. W. 11 is the Sub-Inspector of police who had registered the crime and informed the matter to Circle Inspector of police and the Circle Inspector, Gurazala had taken up the investigation. P. W. 12 is the deputy Civil Surgeon, Government Hospital, gurazala who had examined the appellant/ accused and found no external injuries and collected semen and pubic hair from him and sent them to the Forensic Science laboratory for examination. Ex. P. W. 12 is the deputy Civil Surgeon, Government Hospital, gurazala who had examined the appellant/ accused and found no external injuries and collected semen and pubic hair from him and sent them to the Forensic Science laboratory for examination. Ex. P-11 is the certificate issued by him. P. W. 13 deposed that P. W. 1 came to his house in the early hours and informed that one police committed rape on her and asked him to come to the Police Station to give report. P. W. 14 is the Circle Inspector of Police who had deposed about the details of investigation and this witness was cross-examined at length. Except eliciting a minor contradiction, no serious contradictions as such had been elicited even in the evidence of P. W. 1. The improbabilities which had been seriously attacked are that when so many inmates were available, the commission of the offence would not have been possible and the further contention is to the effect that in the bent position the alleged perpetration of the offence could not have been possible. It is no doubt true that the Apex Court in Koppula venkat Rao v. State ofandhra Pradesh (supra) held that the sine qua non for establishing the offence of rape is penetration and not ejaculation and ejaculation without penetration constitutes an attempt to commit rape and not actual rape. On a careful examination of the M. Os. and also the medical evidence of P. W. 8 and also in the nature of evidence of P. W. 1, as far as the offence of section 376 IPC as such is concerned, in view of the facts and circumstances the appellant/ accused is to be given a benefit of doubt. But however, the evidence of P. W. 1 well supported by P. W. 8 would clearly establish an offence under Sec. 376 IPC r/w Sec. 511 ipc and the ingredients are thoroughly satisfied and hence convicting the appellant/ accused under Section 376 IPC under the facts and circumstances may not be justified, especially in the light of the medical evidence, but however a clear case of an offence under section 376 IPC r/w Section 511 IPC had been well established by the prosecution. The version of the prosecution in the light of the evidence of P. W. 1 also cannot be doubted on the two door theory propounded by the defence. The version of the prosecution in the light of the evidence of P. W. 1 also cannot be doubted on the two door theory propounded by the defence. In view of the facts and circumstances of the case, the conviction and sentence imposed as against the appellant/ accused under Section 376 IPC are hereby set aside. But however, the appellant/accused is hereby convicted for the offence under section 376 r/w Sec. 511 IPC and sentenced to undergo Rigorous Imprisonment for a period of four years and also to pay a fine of rs. 500/-, in default of payment of fine to undergo Simple Imprisonment for three months. The appellant/accused shall surrender to serve rest of the sentence and it is needless to say that he is entitled to set off of period of imprisonment, if any already undergone and he is also entitled to refund of rest of the fine amount imposed by the learned Judge if the same had been already paid, in accordance with law. ( 13 ) THE Appeal is accordingly partly allowed.