G. YETHLRAJULU, J. ( 1 ) A-1 and A-2 in S. C. No. 461 of 20002 on the file of the v Additional Sessions Judge, Guntur, preferred the present appeal. They were charged for the offence under Sections 376 (2) (f) and 376 (2) (f) read with 34 of I. P. C. respectively. The accused denied the charges and claimed for trial. ( 2 ) THE case of the prosecution leading to the conviction of the appellants is briefly as follows:-The victim girl and the accused are the residents of ilavaram village. The victim girl by name Kanaka Durga was the daughter of PW-1. She was aged about 10 years and studying sixth class. On 23-01-2002 at about noon time, the victim girl went to purchase eatables for 50 Ps. given by PW-1 and she was going in front of A-ls house. A-l took her inside his house on the pretext of giving Marie Gold flowers. At that time, A-2 was in the company of A-l waited outtside the house. A-l, after taking the girl into the house, laid her on a cot and committed rape on her. The girl returned to her house by weeping and bleeding from vagina. She complained to PW-1 of the pain In the stomach. PW-1 went to. PW-2 and informed him. She discussed this matter with her relatives and presented Ex. P-1 report to the police at 6-30 PM. The police registered a crime under Section 376 (2) (f) of I. P. C. and issued FIR to all the concerned. The victim was sent to the Government hospital at repalle for medical examination. One Dr. K. Swarajyalakshmi examined the victim girl at 10-00 PM and issued wound certificate under Ex. P-6. She qpined that there was an attempt to commit rape. The Inspector off Police reached the Government hospital, Repalle and recorded the statements of PWs. 1 to 3. On the next day, he went to Ilawaram and examined PW-4, who alleged to have seen A-l taking the victim girl into the house. The Inspector later visited the house of A-l and A-2 and found them absent. On 25-01-2002, the bloodstained clothes of the girl were collected. On 27-01-2002, the Inspector of Police arrested a-l and A-2 and sent them for remand after getting A-1 examined on his potency. After completion of the investigation, the police laid the charge sheet. The Inspector later visited the house of A-l and A-2 and found them absent. On 25-01-2002, the bloodstained clothes of the girl were collected. On 27-01-2002, the Inspector of Police arrested a-l and A-2 and sent them for remand after getting A-1 examined on his potency. After completion of the investigation, the police laid the charge sheet. ( 3 ) THE prosecution, in order to prove the guilt of the accused, examined PWs. l to 10 and marked Exs. P-1 to P-11 and m. Os. 1 to 8. No oral or documentary evidence was adduced on defence side. After completion of the trial, the lower court found a-l guilty of the offence under Section 376 (2) (f) of I. P. C. and accordingly, convicted him and sentenced to undergo imprisonment for life and also to pay fine of Rs. 5,000/-, in default to suffer simple imprisonment for four years. A-2 was also convicted for the offence under Section 376 (2) (f) read with 34 of I. P. C. and sentenced to undergo imprisonment for life and also to pay a fine of Rs. 5,000/-, in default to suffer simple imprisonment for four years. The accused, being aggrieved by judgment of the Sessions Court, dated 15-10-2004, preferred the present Appeal challenging its validity and legality. ( 4 ) THE plea of the accused is one of denial, therefore, the point for consideration is: "whether the prosecution provedl the guilt of the accused beyond reasonable doubt and whether the convictions and the sentences imposed on the appellants are liable is liable tobe set aside or modified?" ( 5 ) THE story of the prosecution is that the appellants committed rape on the victim girl by taking her into the house of a-1 at about noon time on 23-01-2002. The age of the victim girl is not in dispute, therefore, as on the date of commission of the offence, she was a minor girl aged about 10 years, A-1 was about 25 years and A-2 was about 22 years old. The plea of the accused is simple denial of the offence and pleaded that the case has been foisted against them. ( 6 ) UNDER the above circumstances, it has to be examined whether the prosecution placed sufficient material to prove the guilt of the accused beyond reasonable doubt. The plea of the accused is simple denial of the offence and pleaded that the case has been foisted against them. ( 6 ) UNDER the above circumstances, it has to be examined whether the prosecution placed sufficient material to prove the guilt of the accused beyond reasonable doubt. Before the trial of the case, the victim died, therefore, the evidence of pw-1, the mother of the victim girl, and PW-4, who alleged to have seen A-l taking the victim girl into the house and the girl coming out weeping, assumed importance. ( 7 ) PW-1, the mother of the victim girl, deposed that her husband died about two months prior to the date of offence. The victim girl is the fourth daughter to her. By the date of offence, the victim girl was about 10 years and was studying sixth class in Ilavaram Z. P. High School. On the date of offence, the victim girl did not go to school on the ground that she has to study at the house and also do some home work. She gave 50 Ps. to the victim girl to purchase some eatables at 12-00 noon and she went outside for purchase of eatables. To purchase eatables, the victim girl has to go by the side of the house of a-l. After fifteen minutes, the victim girl came back to the house, went to the backyard and was weeping. She also went to the girl and found some bloodstains coming on her leg and her petticoat was completely bloodstained. She cleaned her both legs and also kept the petticoat in water. When she asked as to what happened, the victim girl repllied that she was called by A-1 and A-2 and offered some Marie Gold flowers. She went inside the house along with A-l. A-2 was outside the house and watching. When she entered the house, A-l laid her on a cot, and raped for about ten minutes. A-l offered to give new clothes to her and asked not to reveal the offence to anybody. She immediately went to the house off PW-2 and informed his wife about the incident. Subsequently, she informed the incident to others also. They went to the Police Station and presented a complaint drafted to her narration. The victim girl and herself signed on the complaint. The Sub-lnspector of Police examined them and recorded their statements. She immediately went to the house off PW-2 and informed his wife about the incident. Subsequently, she informed the incident to others also. They went to the Police Station and presented a complaint drafted to her narration. The victim girl and herself signed on the complaint. The Sub-lnspector of Police examined them and recorded their statements. Later, the victim girl was sent to Government Hospital, Repalle, for examination. She also accompanied the girl to the hospital. They were in the hospital for about ten days for treatment of the victim girl. After the rape, the victim girl became pale and week and despite giving medicines, she became seriously sick and ultimately died. She further deposed that by the time of the incident, the father of A-1 was attacked with paralysis and lying on the cot in the varandah of his house and he was not in a position to move. So also, the grandmother. She denied a suggestion that the victim girl died due to heart enlargement disease. She denied a suggestion that as on the date of incident, the victim girl was sick and did not go to school. She also denied a suggestion that due to political rivalry between her caste and Gowda caste, she foisted the case against A-1 and A-2. ( 8 ) THE evidence of this witness is to the effect that immediately after the arrival of the victim girl from the house of a-l, she narrated the entire incident and in support, of the victim girls version, PW-1 noticed the victim weeping and the blood coming from vagina. Despite lengthy cross-examination, the accused could not elicit any favourable information from PW-1 which is contrary to her version. ( 9 ) PW-2, a resident of the :same village and a relation of pw-1, deposed that on the date of offence, PW-1 came to his house and informed that the victim girl was raped by the accused and she asked him and PW-3 to come to her,house to see the victim girl. They all went to the house of PW-1 and saw the victim girl with some clothes covering the vagina to control the blood. After some discussion,, they went to Police Station and preferred Ex. P-1 complaint duly signed by PW-1 and the victim girl. In the cross-examination, hes stated that his house is two houses away from the house of PW--1. After some discussion,, they went to Police Station and preferred Ex. P-1 complaint duly signed by PW-1 and the victim girl. In the cross-examination, hes stated that his house is two houses away from the house of PW--1. About thirty persons were present when PW-1 informed about the rape committed by A-1. PW-1 and the victim girl boarded a rickshaw and reached the police Station. PW-3 and himself and also went to Police Station on a cycle. He denied a suggestion that PW-1 did not come to his house and she did not inform about the rape committed by a-1 against the victim girl. He also denied a suggestion that since there were disputes between Padmasalis and gowda caste, he is speaking falsehood against A-l. ( 10 ) PW-3, a resident of the same village and a relation of pw-1, deposed that on 23-01-2002, PW-2 called him at about 1-30 PM to his house. On reaching the house, he found PW-1 present and stated that the victim girl was raped by A-l by taking into his house on the pretext of giving Marie Gold flowers. Later, they all discussed the matter and decided to give a complaint to the police. Accordingly, they went to Police Station along with PW-1 and the victim girl and presented a complaint after getting drafted. This witness also denied a suggestion that he is giving false evidence due to enmity with the accused. ( 11 ) PW-4, a resident of the same village and a member of Weavers Society, deposed that on 23-01-2002 at about 12-00 noon, he went to the society building near the house of A-1 to receive their A. D. O. on that day. At the house of A-1, both the accused were present. At that time, the victim girl was proceeding in the street and when she came near the house of a-1, A-1 invited her into his house by offering Marie Gold flowers. At that time, A-2 was standing and watching near the house of A-1. Thereafter, he found the victim girl coming from the house of A-1 weeping and going towards her house. Subsequently, he came to know that the victim girl was raped by a-1. At that time, A-2 was standing and watching near the house of A-1. Thereafter, he found the victim girl coming from the house of A-1 weeping and going towards her house. Subsequently, he came to know that the victim girl was raped by a-1. In the cross-examination, he deposed that on his personal work, he waited at the Society Hall for the arrival of the A. D. O. He has not heard the voice of A-1 when he was providing Marie gold flowers to the victim girl. He denied a suggestion that the police tutored him to give false evidence. He denied a further suggestion that on the date of incident, he was not at the society and he did not see the victim girl going into the house of A-l and he is speaking falsehood. He further denied a suggestion that due to political rivalry, this false case is foisted against the accused. ( 12 ) PW-5, a resident of the same village, who was running a Kirana shop, acted as a mediator for the seizure of m. Os. 1 to 5, for the observation of the scene of offence and for the observation of the material objects at Government Hospital, repalle. ( 13 ) PW-6, a resident of the same village, deposed that he acted as a mediator for the arrest of the accused and the seizure of the properties. He also denied a suggestion that on account of the elections of panchayat, there were disputes between Padmasalis and Gowdas and on account of that, the case is foisted against the accused. ( 14 ) THE evidence of PWs. 5 and 6 is only regarding the seizure of the bloodstained clothes, observation of the scene of offence etc. The evidence of PWs. 2 and 3 is hearsay evidence and they are not witnesses to the occurrence. PW-1 is the mother of the victim. Immediately after the offence, she observed the blood coming from the vagina and clothes drenched with blood and the incident was narrated by the victim girl to her. The evidence of PW-4 is lending support to the prosecution version that he had seen A-1 and A-2 at the house of A-l and A-l taking the victim girl into the house and the girl returning from the house by weeping and proceedings to her house. The evidence of PW-4 connects the accused to the offence proper. The evidence of PW-4 is lending support to the prosecution version that he had seen A-1 and A-2 at the house of A-l and A-l taking the victim girl into the house and the girl returning from the house by weeping and proceedings to her house. The evidence of PW-4 connects the accused to the offence proper. But the learned senior counsel, Sri Bali Reddy, appearing for the appellants submitted that though PW-4 was cited as an eyewitness to A-1 taking the victim into the house, pw-4 stated in the chief examination that he was not examined by the police, but he was examined by the Magistrate. But the prosecution failed to produce Section 161 Cr. P. C. statement recorded by the Magistrate, therefore, there is any amount of doubt whether PW-4 witnessed A-l taking the girl into the house, hence, the benefit of doubt must be given to the accused. ( 15 ) IN 313 Cr. P. C. examination, A-1 stated, that he committed mistake, therefore, mercy may be shown to him. This plea of the accused is also lending support to the version of pws. 1 and 4 that A-1 was responsible for the commission of the offence. ( 16 ) THE learned counsel for the appellants submitted that in the absence of sufficient material from the prosecution evidence to make out the offence, the mere statement of the accused in Section 313 Cr. P. C. examination is not sufficient to find him guilty of the offence, In support of his contention, the learned counsel relied on a Judgment of the Supreme Court in vijendrajit v. STATE OF BOMBAY,air 1953 Sup. Court 247 wherein the Supreme court held as follows: "conviction of the accused cannot be based merely on his statement recorded under S. 342 (Section 313 new Code)which cannot be regarded as evidence. But where the prosecution evidence disclosed that the godown was in the possession and charge of the accused and the accused in his examination under S. 342 admitted that he was in charge of the godown, whereupon no further evidence was led on the point, the Magistrate was justified in referring to the statement of the accused under S. 342 as supporting the prosecution case concerning the possession at the godown. " The principle laid down in the above is not applicable to the present case as there is evidence to show that the accused took the girl into the house. ( 17 ) IN STATE OF MAHARASHTRA v. R. B. CHOWDHARI, air 1968 SC 110 the Supreme Court held as follows: "although a statement of an accused under Section 342 can be taken into consideration in an enquiry or trial, it is not strictly evidence in the case. An accused, when he makes a statement under S. 342,, does not depose as a witness because no oath is administered to him, when he is examined under that section. " There is no dispute regarding the above principle laid down by the Supreme Court. This decisioin is also not helpful to the accused as the statement of the accused under Section 313 cr. P. C. is not the sole material to find the accused guilty of the offence. ( 18 ) IN the absence of any explanation, the statement of the accused in Section 313 Cr. P. C. can be taken into consideration to support the evidence of PWs. 1 and 4. Though the victim girl was not examined due to her death before the trial, the evidence of PWs. 1 and 4 along with Section 313 Cr. P. C. examination of the accused is lending support to the prosecution version that he was responsible for the commission of the offence. When there is sufficient evidence to show that A-1 took the girl into the house and the victim girl came out from the. house by weeping and immediattely, PW-1 found bleeding from the vagina, the inference, in the normal circumstances, was that the accused was responsible for the commission of the offence. The accused did not give any explanation as to how the victim girl received the injuries with bleeding and due to what factor the victim girl was injured. In the absence of such explanation and in view of the answer given by A-1 in Section 313 Cr. P. C. examination, it can be safely concluded that A-1 was responsible for the commission of the offence. ( 19 ) SO far as A-2 is concerned, it is the version of the prosecution that he was with A-l before the victim girl came to the place of occurrence. P. C. examination, it can be safely concluded that A-1 was responsible for the commission of the offence. ( 19 ) SO far as A-2 is concerned, it is the version of the prosecution that he was with A-l before the victim girl came to the place of occurrence. But when A-1 took the girl into the house, A-2 remained outside and no overtact has been attributed to him either by way of participation or instigation to him or common intention to commit the offence along with A-1. None of the witnesses stated whether A-2 played any role in the commission of the offence. The mere presence of A-2 in front of the house of A-1 by itself is not sufficient to conclude that he has common intention with A-1 in the commission of the offence. The lower court convicted A-2 also on the ground that he was in the company of A-1 just before the victim girl was taken into the house and he remained outside watching others not entered the house. But, since there was no evidence connecting A-2 in any way in the commission of the offence, we find that there is any amount of doubt about the role played by A-2, therefore, we are inclined to give benefit of doubt to A-2. ( 20 ) SO far as the offence of rape is concerned, the evidence of PW-7, the Doctor, through whom Ex. P-6 wound certificate was marked, is important. PW-7 stated that he examined the accused and there is no evidence that the individual is in capable of performing sexual act. He further stated that one Dr. Swarajyal Lakshmi examined the victim girl and issued Ex. P-6 wound certificate. He identified the signature and handwriting of the said Doctor. In Ex. P-6, the doctor mentioned that on external examination, he found the following injuries: 1. An abrasion is present over the labia minora in the lower part of size 1/4" x 1/4" clots are present. Bleeding present. 2. C/o. pain in the lower abdomem. Vaginal smeals and swabs are preserved for chemical Examination at R. F. S. L, Vijayawada. In Ex. P-6, the doctor mentioned that on external examination, he found the following injuries: 1. An abrasion is present over the labia minora in the lower part of size 1/4" x 1/4" clots are present. Bleeding present. 2. C/o. pain in the lower abdomem. Vaginal smeals and swabs are preserved for chemical Examination at R. F. S. L, Vijayawada. ( 21 ) AFTER receipt of the RFSL report, the doctor opined that in view of the rupture of hymen and bleeding from the vagina, redness of libia majora and labia minora and due to absence of any seminal stains, there was an attempt of rape on the victim girl. Due to tender age of the victim girl, penetration might not have taken place, therefore, there, was only an attempt to rape the victim girl due to which the hymen was ruptured. So, the opinion of the medical expert was to the effect that the victim girl was not subjected to rape, but an attempt was only made to commit the rape, therefore, the conviction given by the lower Court under Section 376 (2) (f) of I. P. C. can be converted into the offence under Section 376 (2) (f) read with 511 of I. P. C. Accordingly, we find A-1 guilty for the offence under section 376 (2) (f) read with 511 of I. P. C. ( 22 ) THE offence under Section 376 (2) (f) of I. P. C. is punishable with rigorous imprisonment for a term which shall not be less than 10 years but which may be for life and also be liable to fine. The Proviso to Section 376 indicates that the Court may for adequate and special reasons mentioned in the Judgment, impose a sentence of imprisonment for a term of less than seven years. ( 23 ) SECTION 511 of I. P. C. reads as follows: "511. Punishment for attempting to commit offences punishable with transportation or imprisonment. The Proviso to Section 376 indicates that the Court may for adequate and special reasons mentioned in the Judgment, impose a sentence of imprisonment for a term of less than seven years. ( 23 ) SECTION 511 of I. P. C. reads as follows: "511. Punishment for attempting to commit offences punishable with transportation or imprisonment. Whoever, attempts to commit an offence punishable by this Code with transportation or imprisonment, or to cause such an offence to be committed, and in such attempt does any act towards the commission of the offence, shall, where no express provision is made by this code for the punishment of such attempt, be punished with transportation or imprisonment for life or imprisonment which may extend to one half on the longest term provided for that offence, or with such fine as is provided for the offence, or with both. " According to this section, half of the punishment prescribed for the offence under Section 376 of I. P. C. can be imposed. ( 24 ) THE learned counsel for the appellants submitted that A-1 was only 25 years; as on the date of offence, that he was in jail since the date of conviction and that the victim girl is no more, therefore, he requested to take a Jenient view in the matter. ( 25 ) BY keeping in view the circumstances of the case and the material available on record, I am of the view the ends of justice would be met if the A-l is sentenced to undergo rigorous imprisonment for five years iin addition to the fine of Rs. 5,000/-already imposed by the lower Court. ( 26 ) IN the result, the Appeal is allowed in part. The conviction of A-2 for the offence under Section 376 (2) (f) read with 34 of I. P. C. and the sentence of imprisonment for life and the fine are set aside. A-2 shall be set at liberty forthwith, if he is not required in any crime. The conviction of A-l for the offence under section 376 (2) (f) of I. P. C. and the sentence of imprisonment for life and fine are also set aside. A-2 shall be set at liberty forthwith, if he is not required in any crime. The conviction of A-l for the offence under section 376 (2) (f) of I. P. C. and the sentence of imprisonment for life and fine are also set aside. However, A-l is convicted for the offence under section 376 (2) (f) read with 511 of I. P. C. for attempting to commit rape on the victim girl and sentenced to undergo rigorous imprisonment for five years and to pay a fine of Rs. 5,000/- as imposed by the lower Court, but the default sentence of rigorous imprisonment is reduced to imprisonment for one year.