Judgment ( 1. ) APPELLANT has been convicted under Section 376 read with Section 511, IPC and sentenced to three and half years R. I. with fine of Rs. 1,000/-, vide judgment dated 26-3-2004 in Sessions Trial No. 134/2003. Against which he has preferred this appeal under Section 374 of the Code of Criminal Procedure. ( 2. ) AS per prosecution story on 23-2-2003 prosecution aged about 5 years was playing outside the house. Raju Batham (P. W. 3) and Kantibai (P. W. 2) are her parents/father and mother. When she was playing outside the house, appellant came there and tempted her for giving biscuits and chocolates and took her in his room and she was laid on mat. He removed her undergarments and also removed his garments and started fingering in her vagina and touched her vagina from his penis and laid over her body. When she felt pain, she cried. In the meantime, sister of the appellant came on spot and pressed her mouth. Blood oozed from her private part and thereafter accused left her free. She came to her house and narrated the story to her Uncle Manoj and mother Kantibai. Thereafter her mother went to lodge the report to Police Station Gwalior, where FIR was lodged by prosecutrix, which is Ex. P-1; on the basis of which crime was registered, criminal law was set into motion and the prosecutrix was referred for medical examination. She was examined by Dr. Yashodhara Batham (P. W. 4 ). Slide of the vaginal swab was prepared and her clothes were also seized. Spot map Ex. P-5 was prepared. Plastic mat was also seized by seizure memo Ex. P-6 and thereafter both the accused persons were arrested. Accused Pancham was also medically examined and after investigation charge-sheet was filed. ( 3. ) DURING trial, accused persons abjured their guilt. Trial Court acquitted one accused Mahesh Kumari and found that the charge under Section 201, IPC is not found proved against her but convicted the appellant under Section 376 read with Section 511, IPC and sentenced as aforesaid, against which he has preferred this appeal. ( 4. ) I have heard learned Counsel for the parties. Learned Counsel for the appellant submitted that the appellant is a young boy of 22 years and he has been falsely implicated due to enmity with Raju Batham (P. W. 3 ). ( 4. ) I have heard learned Counsel for the parties. Learned Counsel for the appellant submitted that the appellant is a young boy of 22 years and he has been falsely implicated due to enmity with Raju Batham (P. W. 3 ). He further submitted that the case will fall under Section 354, IPC, not under Section 376/511, IPC. Therefore, looking to the enmity and young age the jail sentence be reduced from three and half years to three years and he be released. In reply, Shri C. S. Dixit, learned Public Prosecutor supported the impugned judgment. ( 5. ) DURING trial prosecution examined prosecutrix (P. W. 1), her mother Kantibai (P. W. 2), her father (P. W. 3) and Ramesh Dubey (P. W. 8), who is the neighbour and who has supported the prosecution story, the prosecutrix had narrated the story to them. ( 6. ) DR. Yashodhara Batham (P. W. 4) had examined the prosecutrix. Jagnandan Singh (P. W. 7) has reported FIR and Shelja Gupta (P. W. 9) has performed the investigation. Kalicharan (P. W. 6) is the witness of Ex. P-5 spot-map and Raghuraj Singh (P. W. 5) has proved the fact of sending copy of FIR to the Magistrate. In defence, tow witnesses Ramshree (D. W. 1) and Omprakash (D. W. 2) were also examined on the question of enmity and for demanding money. ( 7. ) IT is not in dispute that the prosecutrix (P. W. 1) is a girl aged about 6-7 years. Her statement was recorded. She has stated that on the date of incident she was playing outside of her house. Appellant Pancham called her and gave temptation of toffies and chocolates and he took her to his room where he was speaking filthy words. He removed her underwear, thereafter he also removed his clothes. He started fingering in her vagina and rubbing her chest. She was laid on a mat and thereafter he also laid over her and was doing bad thing. Because of this bad work blood came out from her vagina. She started weeping. In the meantime, Mahesh Kumari came and pressed her mouth and thereafter accused left her free. She reported the matter to her mother and also to the father and uncle Manoj in the evening. Because of this bad work blood came out from her vagina. She started weeping. In the meantime, Mahesh Kumari came and pressed her mouth and thereafter accused left her free. She reported the matter to her mother and also to the father and uncle Manoj in the evening. Though on the insistence of Public Prosecutor she has stated that he did bad work by penetrating her penis into her vagina but in the cross-examination she consistently maintained that he did bad work by fingering into her vagina. Dr. Yashodhara Batham (P. W. 4) had medically examined her and she found that blood stains were present on the medial aspects of both the legs, external genitalia also stained with blood, IIIrd degree perineal tear were present, right lateral vaginal wall tear present. Two vaginal swabs were taken and slides were prepared. The clothes which she was wearing at the time of incident were seized, packed, sealed and handed over to the Constable. In the cross- examination she has stated that she has not seen any external injury on the private part of the prosecutrix. She was unable to give any opinion about the rape with her, but she stated that the injuries received by her may be caused by fingering forcefully. Kantibai (P. W. 2) has deposed that in the evening prosecutrix went out of the house. She searched her and she was found at about 7 p. m. at the Chauraha and thereafter she narrated the story to her. Raju Batham (P. W. 3 has also narrated the same story. Kalicharan (P. W. 6) is the witness to whom Raju Batham had told about the commission of crime by the appellant. ( 8. ) FROM the aforesaid evidence, on record, Trial Court has found that there is no evidence available on record about the penetration. The only evidence available is of removing her clothes by the appellant and thereafter laying over the body of the girl and fingering. Now the question would be whether under such facts the case will fall under Section 354 or under Section 376/511, IPC. ( 9. The only evidence available is of removing her clothes by the appellant and thereafter laying over the body of the girl and fingering. Now the question would be whether under such facts the case will fall under Section 354 or under Section 376/511, IPC. ( 9. ) LEARNED Counsel for the appellant submitted that as per the decision in the case of Balkrishna v. State of Madhya Pradesh [criminal Appeal No. 131/87 (G), decided on 27-10-1988], in a case where the evidence of fingering in private part, pressing her breast and biting cheek was available, the offence was considered under Section 354, IPC and not under Sections 376 and 511, IPC. ( 10. ) NO doubt, the act will come under Section 354, IPC but in the case of Madanlal v. State of J and K (1998 Cr. LJ 667) the Supreme Court has summarized the difference between preparation and an attempt to commit the offence which consists chiefly in the greater degree of determination and what is necessary to prove for an offence of an attempt to commit rape has been committed is that the accused has gone beyond the stage on preparation. If an accused strips a girl naked and then making her flat on the ground undresses himself and then forcibly rubs his erected penis on the private part of the girl but fails to penetrate the same into vagina and on such rubbing ejaculates himself then it can not be said that it was a case of merely assault under Section 354, IPC but it will be an attempt to commit rape under Section 376 read with Section 511, IPC. ( 11. ) IN the case of Abhayanand Mishra v. State of Bihar ,, AIR1961 SC 1698 , 1962 (0 )BLJR1 , 1961 Crilj822 , [1962 ]2 SCR241 , Supreme Court has held that there is a thin line between the preparation for and an attempt to commit an offence. Undoubtedly, a culprit first intends to commit the offence, then makes preparation for committing it and thereafter attempts to commit the offence. If the attempt succeeds, he has committed the offence; if it fails due to reasons beyond his control, he is said to have attempted to commit the offence,. Undoubtedly, a culprit first intends to commit the offence, then makes preparation for committing it and thereafter attempts to commit the offence. If the attempt succeeds, he has committed the offence; if it fails due to reasons beyond his control, he is said to have attempted to commit the offence,. Attempt to commit an offence, therefore, can be said to begin when the preparations are complete and the culprit commences to do something with the intention of committing the offence and which is a step towards the commission of the offence. The moment he commences to do an act with the necessary intention, he commences his attempt to commit the offence. The Supreme Court has further held about the construction of Section 511, IPC as under :-" a person commits the offence of attempt to commit a particular offence when (i) he intends to commit that particular offence; and (ii) he, having made preparations and with the intention to commit the offence, does an act towards its commission; such an act need not be the penultimate act towards the commission of that offence but must be an act during the course of committing that offence. " ( 12. ) SECTION 511, IPC clearly provides that whoever attempts to commit an offence punishable by this Code shall be punished with the imprisonment for one-half of the longest term of imprisonment provided for that particular offence. ( 13. ) CONSIDERING the facts of this case and the evidence on record and also the medical evidence on record in this case, the appellant has travelled beyond the stage of preparation. On the pretext of toffee and chocolate he brought the girl in his home, he striped her naked then made her flat on the ground, undressed himself and laid over her and then started fingering in her vagina. Dr. Yashodhara Batham (P. W. 4) has stated that she has applied stitches on the skin as well as on the ractum. From this, it is clear that such an injury can be caused by inserting the finger into the vagina of the prosecutrix. Dr. Yashodhara Batham (P. W. 4) has stated that she has applied stitches on the skin as well as on the ractum. From this, it is clear that such an injury can be caused by inserting the finger into the vagina of the prosecutrix. Therefore, it appears that the Trial Court has rightly concluded the matter and has rightly held and it is proved beyond reasonable doubt that the intention of the accused was clear and he wanted to commit sexual act with the prosecutrix, but either due to her tender age or due to some other reason he could not commit rape though he attempted for it. Considering the totality of the facts and circumstances of the case, it is a case of attempt to commit rape and not only a case of merely assault. Thus, I do not find that the Trial Court has committed any illegality in convicting the appellant under Sections 376 and 511, IPC. ( 14. ) AS discussed above, under the facts and circumstances of the case, no case is made out for interference in this appeal. Consequently, this appeal fails and is hereby dismissed.