JUDGMENT 1. - This criminal appeal under Section 374 (2) of the Code of Criminal Procedure, 1973 (for short, "the Code" hereinafter) is directed against the judgment and order dated 03.12.2004 passed by the Sessions Judge, Pratapgarh, district Chittorgarh (for short, "the trial Court") in Sessions Case No. 86/2004, whereby the trial Court convicted the appellant for the offences under Sections 376 (1), 451 and 323, IPC and sentenced him to seven years rigorous imprisonment and a fine of Rs. 10,000/-, in default of payment of fine further to undergo six months simple imprisonment for the offence under Section 376, (1) IPC, one year's simple imprisonment and a fine of Rs. 2000/- in default of payment of fine further to undergo one month's simple imprisonment for the offence under Section 451 IPC, and six months simple imprisonment for the. offence under Section 323 IPC. All the sentences were directed to run concurrently. Aggrieved by the judgment and order impugned, the appellant has filed the instant appeal. 2. Briefly stated, the facts of the case, to the extent they are relevant and necessary for the decision of this appeal, are that PW. 6, the prosecutrix aged about 20 years,, .on 03.03.2004 filed a complaint Exhibit P-4 before the Judicial Magistrate, Pratapgarh against the appellant inter alia alleging therein that on 19.02.2004, she was all alone in her house as her husband and mother-in-law had gone to the field and father-in-law had gone to Mohida. At about 4:00 PM, the appellant came to her house, asked about other family members and finding the prosecutrix all alone in the house, caught hold her hand, fell her on the ground, sat on her chest, threatened her not to raise cry and thereafter, committed rape on her. It was also alleged that PW. 11 Shyamu Bai came there and thereafter the appellant ran away. It was alleged that PW. 11 Shyamu Bai and PW. 3 Shiva saw the appellant running. The said complaint was sent to the police for investigation under Section 156 (3) of the Code. The police registered a crime report on receipt of the said complaint against the appellant for the offences under Sections 323, 452 and 376, IPC vide Chak FIR Exhibit P-13 and the investigation ensued. After usual investigation, the police filed Challan against the appellant for the offences noticed above. The police registered a crime report on receipt of the said complaint against the appellant for the offences under Sections 323, 452 and 376, IPC vide Chak FIR Exhibit P-13 and the investigation ensued. After usual investigation, the police filed Challan against the appellant for the offences noticed above. The trial Court framed charges against the appellants for the offences under Sections 323, 451 and 376 (1), IPC, on which the appellant denied the charges and sought trial. The prosecution adduced evidence by producing 13 witnesses and the documents Exhibit P-1 to Exhibit P-16. The appellant made statement under Section 313 of the Code and denied the allegations. On appreciation of the evidence, the trial Court, vide judgment and order impugned, convicted and sentenced the appellant as noticed above. Hence, this appeal. 3. I have heard learned Counsel for the appellant and the Public Prosecutor for the State. Carefully perused the judgment and order impugned, as also the record of the trial Court. 4. It is contended by the learned Counsel for the appellant that the occurrence alleged to have taken place on 19.02,2004 whereas the complaint was filed on 03.03.2004 Le- almost after 11-12 days and the delay in lodging the report has not been explained. According to the learned Counsel, the crime report was registered by the police on 09.03.2004, though the police station is situate at the distance of only 15 kms; therefore, according to the learned Counsel, the prosecution case is not beyond the shadow of suspicion. It was further contended that PW. 11 Shyamu Bai, who alleged to have reached the place of occurrence, has not supported the prosecution case and PW. 3 Shiva is not a reliable evidence for the reason that had PW 3 .Shiva seen the appellant going out from the house of the prosecutrix, he would have certainly made some efforts to catch hold the appellant, but according to the statement of PW. 3 Shiva, he simply went away. It was further contended that the prosecutrix and PW 3 Shiva stated that the prosecutrix suffered injuries on her back, whereas according .to the medical evidence, the prosecutrix has not suffered any such injury, which falsifies the version given by the prosecutrix. 3 Shiva, he simply went away. It was further contended that the prosecutrix and PW 3 Shiva stated that the prosecutrix suffered injuries on her back, whereas according .to the medical evidence, the prosecutrix has not suffered any such injury, which falsifies the version given by the prosecutrix. Lastly, it was contended that the prosecutrix, in her statement, no where stated that the appellant committed sexual intercourse with her against her will and without her consent and, thus, according to the learned Counsel, the prosecution has failed to prove the case against the appellant for the offence under Section 376 (1), IPC. 5. Learned Public Prosecutor has supported the judgment and order impugned and contended that though PW. 11 Smt. Shyamu Bai has not supported the prosecution case and turned hostile, but PW. 3 Shiva, who at the relevant time was passing through the house of the prosecutrix and happened to have seen the appellant going out from the house of the prosecutrix and on being asked as to what had happened; the prosecutrix informed him that the appellant came to her house, closed the doors, fell on her and committed rape on her. 6. I have given my thoughtful consideration to the rival contentions made by the learned Counsel for the parties. I have scanned, scrutinised and evaluated the evidence on record. 7. It is true that the complaint Exhibit P-4 was filed by the prosecutrix on 03.03.2004 alleging the occurrence of 19.02.2004. In the complaint, it was alleged that the crime report was lodged to the Police Out Post and she was assured that they would do the needful, but noticing that nothing has been done, the complaint was filed. PW. 13 Heera Lal Meena, the Station House Officer, Police Station, Begun, categorically stated that he received the complaint Exhibit P-4 on 09.03.2004 and prior to that, the prosecutrix had not lodged any report with the police. There is no witness to support the version of the prosecutrix that any report was lodged to the police before filling the complaint Exhibit P-4. 8. PW. 11 Shyamu Bai is the immediate neighboured of the prosecutrix. She categorically stated that she did not witness any occurrence. She was declared hostile since she did not support the prosecution case. 9. PW. 8. PW. 11 Shyamu Bai is the immediate neighboured of the prosecutrix. She categorically stated that she did not witness any occurrence. She was declared hostile since she did not support the prosecution case. 9. PW. 3 Shiva stated that he heard the cries of the prosecutrix and saw the appellant going out from the house of the prosecutrix. The prosecutrix was all. alone in the house and she has poor vision. On being asked, the prosecutrix informed that the appellant entered her house, closed the doors, fell on her and did the wrong act. He stated that PW. 1 Kani Ram, the father-in-law of the prosecutrix came first and thereafter he reached there. He stated that he saw the prosecutrix having injuries on her back. 10. PW. 1 Kani Ram, the father-in-law of the prosecutrix, stated that at about 4:00 PM, when he came back to his house, his daughter-in-law, the prosecutrix, informed that the appellant came to their house, closed the doors, showed a knife and committed rape. He went to his field and informed this fact to his son, the husband of the prosecutrix. He also stated that in the occurrence, the prosecutrix suffered injuries on her back. He stated that the rape was committed on a cot and broken bangles were lying there. However, he is not a witness to the occurrence. So also is the case of PW. 2 Kesu ,Ram, the husband of the prosecutrix who stated that when he came to the house, his Wife, the prosecutrix, informed that the appellant committed rape on her twice. 11. The main witness is PW. 6, the prosecutrix herself, who has stated that at about 4:00 PM on the date of occurrence, while she was taking meals, the appellant entered her house since the gate was open, sat on the cot, asked about the other family members, she said that nobody is at the house and he should come after sometime, whereupon the appellant closed the door, took her in a room, fell her on the ground and committed rape. She stated that the appellant did with her what husband and wife, while sleeping together, do. Thereafter, the appellant lifted her and thrown her on the cot, by I which her bangles were broken. She suffered injuries on the back. Thereafter, PW. 3 Shiva came for purchasing Biri and he saw the appellant running. She stated that the appellant did with her what husband and wife, while sleeping together, do. Thereafter, the appellant lifted her and thrown her on the cot, by I which her bangles were broken. She suffered injuries on the back. Thereafter, PW. 3 Shiva came for purchasing Biri and he saw the appellant running. She informed him that such an act has taken place with her. After sometime, her father-in-law PW. 2 Kani Ram came and she stated him that the appellant sat on her chest for half an hour and thereafter PW. 11 Shyamu Bai came and 1 then the appellant went away. She stated that her husband was scolded by the police on the ground that a false report had been brought. The prosecutrix was medically examined by PW. 7 Dr. Kirshna Eran and the doctor noticed that her hymen was having old tears. No injury on the private parts of the prosecutrix was found and the Doctor stated the vaginal canal of 2 the prosecutrix admitted two fingers easily. 12. PW. 8 Dr. Man Mal Sankhla medically examined the prosecutrix and proved Exhibit P-6 and Exhibit P-7. Vide Exhibit P-10, the appellant was medically examined and he was found to be capable to perform sexual intercourse. 13. PW. 9 Ranjit alias Raju is a witness to the site map Exhibit P-1. PW. 10 Ratan Singh is the police official who took the articles to State Forensic Science Laboratory vide Exhibit P-8. PW. 12 Udai Lal is the Malkhana Incharge, who proved the forwarding letter Exhibit P-12 and the receipt Exhibit P-11, by which the seal articles were sent to the State Forensic 3 Science Laboratory. Exhibit P-16 is the FSL report, according to which human semen was detected in the vaginal smear of the prosecutrix which was taken on 09.03.2004, thus, in no manner it connects the appellant with the commission of the rape. 14. From the close scrutiny of the statements of the witnesses, more particularly the statement of the prosecutrix PW. 6 and two witnesses PW. 1 Kani Ram and PW. 2 Shiva, it appears that the appellant committed house trespass in order to commit an offence and also used criminal force by pushing the prosecutrix on the cot and lying her down on the ground. Thus, the offence under Sections 451 and 323, IPC are fully proved against the appellant beyond reasonable doubt. 15. 1 Kani Ram and PW. 2 Shiva, it appears that the appellant committed house trespass in order to commit an offence and also used criminal force by pushing the prosecutrix on the cot and lying her down on the ground. Thus, the offence under Sections 451 and 323, IPC are fully proved against the appellant beyond reasonable doubt. 15. So far as offence of rape, as envisaged under Section 376 IPC and punishable under Section 376 (1), IPC, is concerned, there is absolutely no evidence that the appellant committed sexual intercourse with the prosecutrix against her will and without her consent. In her statement, the prosecutrix stated that the appellant caught hold her hand, put her on the ground, sat over her and thereafter sat on her chest for half an hour. To construe an offence of rape, penetration of male organ (penis) in the vagina of the female l is sine qua non. In Aman Kumar & Anr. v. State of Haryana, 2004 (4) SCC 379 , the Hon'ble Supreme Court held as under : "Penetration is the sine qua non for an offence of rape. In order to--' constitute penetration, there must be evidence clear and cogent to prove that some part of the virile member of the accused was within the labia of the pudendum of the woman, no matter how little. The depth of penetration is immaterial in an offence punishable under Section 376, IPC. Even a slight penetration in the vulva is sufficient to constitute the offence of rape and rupture of the hymen is not necessary. Vulva penetration with or without violence is as much rape as vaginal penetration. The statute merely requires evidence of penetration, and this may occur with the hymen remaining intact. The actus reus is complete with penetration. Thus, to constitute the offence or rape, it is not necessary that there should be complete penetration of the penis with emission of semen and rupture of hymen. Partial penetration within the labia majora of the vulva or pudendum with or without emission of semen is sufficient to constitute the offence of rape as defined in the law." 16. It is true that presence of injury on the body of the victim is not sine qua non to prove the charge of rape. Partial penetration within the labia majora of the vulva or pudendum with or without emission of semen is sufficient to constitute the offence of rape as defined in the law." 16. It is true that presence of injury on the body of the victim is not sine qua non to prove the charge of rape. In the instant case, though the prosecutrix and the witnesses have sated that the prosecutrix suffered injuries on her back, but according to the medical evidence, the prosecutrix suffered no external injury. Thus, the version of the prosecution that the prosecutrix suffered injuries on the back, does not find corroboration from the medical evidence. What the prosecutrix has stated in her statement is that the appellant did with her what husband and wife, when sleep together, do. From this evidence, it cannot be inferred that the appellant had a sexual intercourse with the prosecutrix. Until and unless a definite evidence is there that the appellant committed sexual intercourse with the prosecutrix against will and without her consent, the conviction under Section 376 (1), IPC cannot be sustained. In the instant case, there is absolutely no evidence on record to this effect. Even the witnesses, who allegedly reached at the place of the occurrence, also do not say that the prosecutrix informed that the appellant had a forcible sexual intercourse with her. Thus, keeping in view the decision of the Hon'ble Supreme Court in Aman Kumar & Anr v. State of Haryana's case (Supra), there being no evidence of penetration which is sine qua non to constitute an offence of rape, in my view, the prosecution has failed to prove the offence under Section 376 (1) IPC against' the appellant. However, from the evidence of the prosecutrix, it has been established that it was the appellant who caught hold the hand of the prosecutrix, fell her on the ground and sat on her chest. By this evidence, the prosecution has been able to prove that the appellant used criminal force against the prosecutrix with intent to outrage her modesty, which is an offence punishable under Section 354, IPC. In this view of the matter, the conviction of the appellant for the offence under Section 376 (1), IPC cannot be sustained and instead thereof, the appellant can safely be convicted for the offence under Section 354, IPC. In this view of the matter, the conviction of the appellant for the offence under Section 376 (1), IPC cannot be sustained and instead thereof, the appellant can safely be convicted for the offence under Section 354, IPC. However, the conviction and sentence of the appellant for the offences under Section 451 and 323 are maintained. The appellant is in custody since 17.03.2004 till this date and as such he has undergone the imprisonment for one year and ten months. 17. Consequently, the appeal is partly allowed. The conviction and sentence awarded by the Sessions Judge, Pratapgarh, district Chittorgarh in Sessions Case No. 86/2004, vide impugned judgment and order dated 03.12.2004 to appellant Bheru Lal S/o Baluram Gayari for the offences under Sections 451 and 323 IPC are maintained. However, the conviction and sentence awarded to the appellant by the trial Court for the offence under Section 376(1), IPC are hereby set aside and instead thereof, the appellant is convicted for the offence under Section 354, IPC and sentenced to the period of imprisonment already undergone by him. The appellant is in jail. On depositing the amount of fine awarded by the trial Court for the offence under Section 451, IPC, the appellant be set at liberty forthwith, if not required in any other case.Appeal partly allowed. *******