JUDGMENT K.C Sood, J.—Appellant Hukam Singh, hereinafter referred to as the "accused" having been convicted by the learned Sessions Judge, Kinnaur for an offence punishable under Section 376 read with Section 511 of the Indian Penal Code is in this appeal. The accused is sentenced to suffer rigorous imprisonment for seven years and pay a fine of rupees 22,000/-. In case of default in the payment of fine, he is to suffer further rigorous imprisonment for one year. 2. The accused was not, represented by Counsel and therefore, Shri Anup Chitkara, Advocate, was appointed as Legal Aid Counsel. Prosecution case: 3. The accused aged about 31 years, at the relevant time, is resident of village Kareri (Rehnu) in Tehsil Rampur of District Shimla. He was married to Ramki Devi (PW 2). Three children were born out of the wedlock. Victim is the youngest child. Ramki Devi had left her matrimonial home along with her two sons due to differences with her husband, twelve years prior to the lodging of the First Information Report, when victim was one and half years of age. She started living in her parental house. The victim remained with her father and was brought up by her grand-mother Champu Devi. The victim was about thirteen and half to fourteen years of age at the relevant time. On September 19, 2002, Ramki Devi (PW2) lodged report with the Police Station, Rampur alleging that her daughter, the victim, came to her on September 16, 2002 and told her that her father, the accused, has been sexually abusing her for the last one year in the sense that he would come under intoxication in the evening, remove his clothes and lie over the victim. She explained that she did not approach the Police earlier as her father Brahmu Ram was not in the house. The F.I.R. was signed apart from complainant Ramki Devi, by her father Dharmu Ram and the victim. 4. The Police after investigation of the case, sent the accused for trial for the offences punishable under Section 376 read with Sections 511 and 506 of the Indian Penal Code. However, learned Sessions Judge, in his wisdom, charged the accused for the offences punishable under Sections 376, 376 read with Sections 511 and 506 of the Indian Penal Code. 4. The Police after investigation of the case, sent the accused for trial for the offences punishable under Section 376 read with Sections 511 and 506 of the Indian Penal Code. However, learned Sessions Judge, in his wisdom, charged the accused for the offences punishable under Sections 376, 376 read with Sections 511 and 506 of the Indian Penal Code. The accused, however, was convicted for an offence punishable under Section 376 read with Section 511 of the Indian Penal Code. 5. The accused claimed innocence and pleaded false implication because of enmity with his wife, complainant Ramku Devi. 6. Heard Mr. Anup Chitkara, learned Counsel for the appellant and Mr. Ashok Chaudhary, learned Additional Advocate General for the State. The evidence was reappraised with the help of learned Counsel for the accused and learned Additional Advocate General. The conviction of the accused is assailed on the grounds : (a) The evidence of the victim is neither reliable nor inspire confidence and conviction cannot be based on her sole testimony, more so, when she is found to be of tender age and had not understood the sanctity of the oath. (b) Material evidence has been with held by the prosecution. (c) Possibility of accused having been falsely implicated by Ramki Devi cannot be ruled out. 7. In the alternative, learned Counsel for the appellant submitted that even if the allegations are assumed to be true, no case under Section 376 read with Section 511 is made out as no attempt, admittedly, was made to commit rape on the victim. 8. The victim admittedly is a child witness. She was between thirteen to fourteen years of age at the relevant time. The trial Judge did not question the victim to ascertain whether she was competent witness and understood the sanctity of the oath. 9. The victim appearing as PW1 states that she was about one and half years of age when her mother left her matrimonial home to her parental house leaving her with the accused. Her father brought another lady named Sumna who left her father after about one month. It is her evidence that her two elder brothers live with her mother at their maternal uncles house. It is her evidence that her father used to come in the night in intoxicated condition, would take her from her grand-mother to his room and lay upon her. It is her evidence that her two elder brothers live with her mother at their maternal uncles house. It is her evidence that her father used to come in the night in intoxicated condition, would take her from her grand-mother to his room and lay upon her. According to her, the accused used to remove his clothes and salwar. He would touch his penis on her vagina and whitish semen would come out which spread out. This act was used to be done by the accused in a routine manner. It is her evidence that she narrated the incident to her grand-mother Champu Devi. She asked her grand-mother to send her to her mothers house and she thereafter went to her maternal uncles house to live with her mother. She narrated the incident to her mother. Her mother brought her to the Police Station, Rampur and lodged complaint Exhibit PW1/A which was also signed by her. She was subjected to medical examination. It is her evidence that she used to clean the whitish semen from the clothes which is called Dhatu (a head gear) which was taken into possession by the Police. She also gave her salwar and shirt to the Police. 10. The victim in her cross-examination was unable to give the date, month or year when her statement was recorded by the Police. She also states that her mother returned back to her fathers house when she was about six years of age and that her father used to beat her mother. When confronted with her statement to the Police, it was found that she had not stated so in her statement under Section 161 of the Code of Criminal Procedure (Exhibit PW1/A). It is her evidence that the father of her mother had expired though mother of her mother is alive. It is her further evidence that when her mother returned back to her fathers house, she could not recognize her as she had left her when she was one and half years of age. She admits that her father used to go out for work and would return back to the house after a year and two months. She also states in her cross-examination that her father had left the house in the month of August, 2002 and returned back in December, 2002. She admits that her father used to go out for work and would return back to the house after a year and two months. She also states in her cross-examination that her father had left the house in the month of August, 2002 and returned back in December, 2002. It is her evidence that in fact, she used to sleep with her grand-mother and her mother never called on her till she became about twelve years of age. According to her, she had never visited village Bhatera where her mother live with her maternal uncle. She also admits that her mother had wanted her father to live with her in her parental house but her father refused. It is her evidence that her mother did not have cordial relations with her father. 11. It is true that conviction of an accused for sexual offence can be maintained on the sole testimony of a victim provided such testimony inspires confidence, is reliable and acceptable. It is also well settled that corroboration of the testimony of the victim is not required, nevertheless, it is equally settled that if the testimony of a victim does not inspire confidence or is tainted, then the Court must satisfy its judicial conscience. 12. In the present case, it is difficult to place implicit reliance on the testimony of the victim, more so, when she does not understand the sanctity of the oath. In her cross-examination, she states: "It is correct to suggest that I do not know why oath is administered in the Court". 13. In the facts and circumstances of the case, the possibility of her making false allegation at the instance of her mother who admittedly is on inimical terms with the accused cannot be ruled out. The victim in her evidence states that her father used to beat her mother but it is admitted position that the mother of the victim Ramki Devi (PW2) left her matrimonial home when victim was one and half years of age and she never thereafter lived in the house of her husband. Appearing as PW2, Ramki Devi states that she was married to accused. Two sons and a daughter were born out of the wedlock. Appearing as PW2, Ramki Devi states that she was married to accused. Two sons and a daughter were born out of the wedlock. She left her matrimonial home twelve years back when her evidence was recorded and victim used to live with the accused and it is only after the alleged incident that victim started living with her. The reason she left her matrimonial house was that accused would come intoxicated in the night and beat her. She does not say that she returned back to her matrimonial home at any point of time. In fact, she emphasized in her cross-examination that she did not visit her matrimonial home within those twelve years. In her own words: "......I am residing separately from the accused since 22 years. I did not visit my matrimonial home within 12 years". 14. In view of this evidence, the victim could not have seen her father beating her mother Ramki Devi and this must have been tutored to her by her mother. Though the victim states that her mother returned back to her fathers house when she was six years of age but does not say when she again left. This aspect of the case renders the evidence of the victim open to doubt. The victim in her statement stated that the father of her mother had died but admittedly father of Ramki Devi (her mother) is alive, apart from the fact that he accompanied Ramki Devi to lodge and sign-the FIR. Ramki Devi in her evidence states that: "My father is present in the Court premises". 15. Victim in her evidence, as noticed earlier, clearly states that her mother left the house in the month of August during apple season and returned back in the month of December 2002 but record shows that the First Information Report was lodged on September 19, 2002 and accused was arrested on September 25, 2002 though it is not clear from where he was arrested. It is manifest that victim has poor understanding. Her statement does not inspire confidence. 16. It is manifest that victim has poor understanding. Her statement does not inspire confidence. 16. The victim gave history of sexual abuse, to the Doctor who medically examined her, saying that she was sexually abused for the last one year by her father Hukam Singh by putting off her clothes and then lie over her naked and rub his penis on her vagina and used to ejaculate over the vagina but never penetrated the penis inside the vagina. Last sexual abuse was committed about one week prior to the examination. If the father of the victim was away from August onwards, according to the victim, then obviously, last sexual abuse could not have taken place one week prior to the examination of the victim who was medically examined on September 19, 2002, the day F.I.R. was recorded. 17. Dr. Rajan Uppal (PW16) medically examined the victim on September 19, 2002. It is his evidence: "I examined the prosecutrix on September 19, 2002 and observed as under: "Alleged history of sexual abuse for the last one year by her father Hukam Singh. He used to put off her clothes and then lie over her naked and rub his penis on her vagina and used to ejaculate over the vagina but never penetrated the penis inside the vagina. Last sexual abuse was done about 1 week prior to examination. Presently the clothes she was wearing were new clothes (Salwar, Shirt and Sweater). Yet her menstruation was not started. She had taken bath after the sexual abuse". 18. It may be noticed that in the F.I.R. Exhibit PW1/A, there is no allegation that accused used to rub his penis on the vagina of the prosecutrix. In her statement to the Investigating Officer under Section 161 of the Code of Criminal Procedure (Mark Ext. PW1/A) she does not say that accused used to rub his penis on her vagina. Rather, her allegation in the statement was that he used to rub his penis between her legs. 19. This apart, the allegation of victim is that she used to clean the semen with her Dhatu (Exhibit P-l). She also states that accused used to place "kharcha" (material made from hair of goats) under her but no blood or semen was found by the Chemical Examiner who examined the Dhatu and Kharcha at the time of the incident. 19. This apart, the allegation of victim is that she used to clean the semen with her Dhatu (Exhibit P-l). She also states that accused used to place "kharcha" (material made from hair of goats) under her but no blood or semen was found by the Chemical Examiner who examined the Dhatu and Kharcha at the time of the incident. Both the Dhatu and Kharcha were subjected to Chemical Examination by the Assistant Director and Scientific Officer of the Forensic Science Laboratory, Himachal Pradesh. The experts in their report Exhibit PW14/A clearly say that neither blood nor any semen stain was found on these two articles. However, semen was found on the pant of the accused but that in itself will not support the prosecution case. Admittedly, accused is a young person and the semen stain on his pant can exist because of variety of reasons including involuntary discharge in the pant, moreso, when it is admitted position that accused used to remove the clothes before lying over the victim. 20. In the present case, as noticed earlier, material witness namely, Champu Devi, grand-mother of the victim, has not been examined. It is the evidence of the victim that her father used to take her from her grandmother during night time and used to lie over her after removing his clothes and her salwar. It is the further evidence of the victim that she narrated this incident to her grand-mother Champu Devi. Why Champu Devi has not been examined is not explained. This also creates doubts in the prosecution story. 21. Learned Counsel for the accused stressed that allegation of victim that accused used to rub his penis, who at the relevant time was aged twelve to fourteen years, during the period spreading over one year, without attempting to insert her vagina is highly improbable and against the basic sexual behaviour and instinct. The allegation against the accused as made by the victim is that her father used to touch his penis on her vagina and whitest semen would come out. This apparently is against the sexual behaviour of a young human male. We must remember that the accused is none else but father of the victim. If the accused had wanted to satisfy his sexual lust, he would not have stopped just touching the penis with the vagina and ejaculate for one year without even an attempt to penetrate. This apparently is against the sexual behaviour of a young human male. We must remember that the accused is none else but father of the victim. If the accused had wanted to satisfy his sexual lust, he would not have stopped just touching the penis with the vagina and ejaculate for one year without even an attempt to penetrate. Dr. Tanzin Chhokit (PW15) medically examined the accused and found that accused was capable of sexual activity. 22. Looking to the evidence on the record in its entirety, the fact that grand-mother of the victim has not been examined, the fact that victim being of tender age had not understood the sanctity of the oath or about what she was deposing, the fact that victim left the house of his father in his absence, the fact that the accused is on inimical terms with his wife, the possibility of false implication of the accused at the instance of Ramku Devi, his wife, cannot be ruled out. 23. As already noticed by me, even though the evidence of victim alone is sufficient to convict the accused in sexual offences, but in view of the evidence discussed above, the false implication on account of differences between the accused and his wife, the mother of the victim, cannot be entirely ruled out. 24. At this stage, I may also notice the contention of the learned Counsel for the accused that even if the evidence of the victim is accepted as a whole, it does not prove the commission of attempted rape for which accused has been convicted. 25. Learned Counsel refers to Arun Kumar and another v. State of Haryana, 2004 (2) Crimes 66 (SC). Their Lordships in that case observed:— "10. An attempt to commit an offence is an act, or a series of acts, which leads inevitably to the commission of the offence, unless something, which the doer of the act neither foresaw nor intended, happens to prevent this. An attempt may be described to be an act done in part execution of a criminal design, amounting to more than mere preparation, but falling short of actual consummation, and possessing, except for failure to consummate, all the elements of the substantive crime. In other words, an attempt consists in it the intent to commit a crime, falling short of, its actual commission. In other words, an attempt consists in it the intent to commit a crime, falling short of, its actual commission. It may consequently be defined as that which if not prevented would have resulted in the full consummation of the act attempted. The illustrations given in Section 511 clearly show the legislative intention to make a difference between the cases of a mere preparation and an attempt. 11. 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" 26. In the present case, by no stretch, it can be said that accused was determined to have sexual intercourse with his daughter, the victim, in all events. There was nothing to stop him even if the version given by the victim is taken as true. There was no intervening circumstance which prevented rape if he had so wanted and therefore, in my view, the evidence of the prosecutrix taken at its face value, does not make out a case of attempted rape under Section 376 read with Section 511 of the Indian Penal Code. But in the present case, as already discussed, the evidence of the victim is neither reliable nor is acceptable. The possibility of the accused having been falsely implicated at the instance of his wife cannot be ruled out. 27. The conclusion is the prosecution has not been able to prove the case against the accused beyond reasonable doubt. The accused is entitled to acquittal. 28. In result, the appeal is allowed. The conviction and sentence imposed upon the accused by the learned trial Judge by his impugned judgment is quashed and set aside. The accused is acquitted. His bail bonds are discharged. Fine, if deposited, shall be refunded back to the accused. The accused shall be set free immediately. 28. In result, the appeal is allowed. The conviction and sentence imposed upon the accused by the learned trial Judge by his impugned judgment is quashed and set aside. The accused is acquitted. His bail bonds are discharged. Fine, if deposited, shall be refunded back to the accused. The accused shall be set free immediately. A copy of the judgment be sent by the Registry to the accused through the Superintendent of Jail where he is presently lodged. Appeal allowed.