ORDER : 1. This appeal takes exception to the Judgment and Order passed by the Additional Sessions Judge, Brihan Mumbai dated June 21, 2001 in Sessions Case No.1425 of 1999 convicting the appellant/accused for offence punishable under section 376 r/w 511 of I.P.Code. Broadly stated, the prosecution case is that the accused was seen holding Pooja on his lap. Pooja, at the relevant time, was only 5 to 6 years of age. Meena(P.W.2), happens to be the maternal aunt of said Pooja. P.W.2 claims to have witnessed the scene including the fact that the accused was inserting his finger in the private part of Pooja. As soon as P.W.2 noticed that scene, she raised shouts whereupon accused threw away Pooja and escaped from the scene. P.W.2 claims to have immediately informed her husband Babulal, who has been examined as P.W.3. Both took Pooja to the nearest Police station. Thereafter, they were directed to the Government Hospital. Pooja was admitted in the Government Hospital and treated for the injury suffered by her. P.W.6 Dr.Vilas R. Dhanuk has spoken about the nature of injuries found on the private part of Pooja, to be of third degree. It is relevant to note that prosecution did not examine Pooja for the reasons mentioned by the Investigating Officer(P.W.8). The trial Court has accepted that explanation. Accordingly, the evidence regarding factum of rape has come on record only in the form of evidence of P.W.2, who claims to have witnessed the incident. 2. As noted earlier, P.W.2 in her statement before the police had stated that she saw accused holding Pooja on his lap and inserting finger in her private part. There is no specific mention of the fact that "his pant zip was open". However, before the Court P.W.2 asserted that at the relevant time the chain of his(accused) pant was open. The witness has been cross-examined and she has admitted in paragraph-1 at page-36 of the Cross-examination that she had told police that accused had inserted finger in the private part of her niece by taking her on his lap. She has further stated that she did inform the police that the accused had opened zip of "his" pant. The witness has been cross-examined and she has admitted in paragraph-1 at page-36 of the Cross-examination that she had told police that accused had inserted finger in the private part of her niece by taking her on his lap. She has further stated that she did inform the police that the accused had opened zip of "his" pant. The trial Court has made note that the Spl.Public Prosecutor accepted that there is no specific mention in the Statement of P.W.2 before the police about the fact that zip of the pant of the accused was seen open by her. On this basis, the trial Court ruled that there was omission in respect of the words "his own pant’s zip open". Referring to the above said evidence, the trial Court in paragraph-17 of the impugned Judgement has noted that even though the evidence of P.W.6 Medical Officer establishes the fact that Pooja had sustained third degree injuries on her private part and was required to be operated, but then proceeded to hold that the substantive evidence regarding offence of rape was only of P.W.2, in which the specific case established against the accused was only that she had seen the accused inserting finger in the private part of Pooja. The trial Court thus proceeded to hold that it cannot be said that the accused had committed rape on Pooja as such. The trial Court then proceeded to hold that if P.W.2 had not reached at the spot at that time, the 4 accused would have been successful to satisfy his lust by committing rape on the girl of tender age. Inspite of this finding, the trial Court proceeded to convict the appellant for offence punishable under section 376 r/w 511 of I.P.Code and directed that the appellant shall suffer rigorous imprisonment for period of 10 years. This decision is subject matter of challenge in the present appeal. 3. Indeed, the counsel for the appellant made fervent effort to persuade this court that the accused deserves to be acquitted having regard to the fact situation of the present case. According to him, the evidence of P.W.2 was not sufficient to hold the accused guilty of the offence under section 376 or 511 of I.P.C. Firstly, her evidence is of interested person and given out of animosity. Besides, P.W.2 did not identify the accused in court. According to him, the evidence of P.W.2 was not sufficient to hold the accused guilty of the offence under section 376 or 511 of I.P.C. Firstly, her evidence is of interested person and given out of animosity. Besides, P.W.2 did not identify the accused in court. Pooja, who allegedly suffered the unsavoury act of the accused has not been examined by the prosecution. Other infirmities were also pressed into service to contend that the appellant should be acquitted of the charge. 4. However, on marshalling the evidence on record and going through the reasons recorded by the trial Court, particularly, the manner in which evidence of P.W.2 and P.W.3 has been weighed by the trial Court, the same appears to be the correct approach and a possible view. The evidence of P.W.2, who has witnessed the incident, is corroborated by the evidence of P.W.3. The trial Court was conscious that the evidence of P.W.3 is hearsay evidence. However, it is rightly found that the prosecution case is fortified from the evidence of P.W.6, who has spoken about the injuries sustained by Pooja on account of the unsavoury act of the accused. All minor details have been carefully analysed by the trial Court to conclude that the injury sustained by Pooja was attributable to the act of the appellant/accused. The prosecution has established the presence of the appellant/accused at the scene of offence as also committing the offence as seen by P.W.2 herself. The evidence of P.W.2 has remained unshaken. So far as the said finding reached by the trial Court, in my opinion, warrants no interference. 5. As is mentioned earlier, the trial Court has analysed the entire evidence in proper perspective and taking totality of the situation into account has rightly opined about the complicity of the appellant/accused in the commission of the offence, which opinion is a possible view. Thus understood, it is not a case for acquittal of the appellant. 6. The counsel for the appellant is however, justified in contending that the conclusion reached by the trial Court, even if accepted as it is, offence under section 376 of I.P.Code is not established. Notably, the conclusion reached by the trial Court that the appellant/accused attempted to commit offence of rape has not been challenged. Indeed, the trial Court has rightly found that offence of rape has not been made out against the appellant/accused. Notably, the conclusion reached by the trial Court that the appellant/accused attempted to commit offence of rape has not been challenged. Indeed, the trial Court has rightly found that offence of rape has not been made out against the appellant/accused. It is well established position that the quintessence for constituting offence of rape is penetration of male organ within the labia majora or the vulva or pudenda with or without any emission or semen or even an attempt of penetration into the private part of the victim completely, partially or slightly would be enough. That evidence however, is lacking in the present case. The evidence, which has come on record is only of "insertion of finger" in the private part of Pooja and on account of which, Pooja sustained injury of third degree in her private part. P.W.6 has deposed that Pooja was admitted in the hospital with history of sexual assault and on local examination, certain injuries were found on her person. The same is described in paragraph-5 as under: "5. On local examination, it was found that:- There was (Third degree) a perennial tear. There was no active bleeding. There were no seminal (Semens) stains. P.V.and P.R. was not done as patient was not co-operative. Rectal Serosa was seen. i.e. the injury had extended from the vagina through the perennial muscle and upto the rectal serosa and it is called third decree i.e. highest. There is no degree above 3rd degree and it was highest. 6. There is no place for natural healing and therefore she was posted for surgery i.e. for medical suturing." There is no doubt therefore, that Pooja has been subjected by appellant/accused to unsavoury act, which fact is established from the oral evidence of prosecution witnesses and corroborated by other evidence. The fact remains that the injury sustained by Pooja on her private part at best is attributable to the act of appellant inserting finger in the private part and not on account of penetration of the male organ as such. 7. If this is the nature of evidence, the conclusion becomes irresistible that conviction of the appellant under section 376/511 I.P.Code cannot be sustained, either in fact or in law. The question is, in such a case what is the option open to the Court. 7. If this is the nature of evidence, the conclusion becomes irresistible that conviction of the appellant under section 376/511 I.P.Code cannot be sustained, either in fact or in law. The question is, in such a case what is the option open to the Court. It is well established position that it is open to the Court to proceed against the accused on the basis of evidence for the minor of offence. If any authority is required on this proposition, we have the latest decision of the Apex Court in the case of Tarkeshwar Sahu V/s. State of Bihar(Now Jharkhand) decided on September 29, 2006 in Criminal Appeal No.1036 of 2005. Even in that case similar position obtained. The Apex Court has held that conviction under section 376/511 of I.P.Code cannot be sustained. Having regard to the evidence and documents on record, after referring to catena of decisions on the point, the Apex Court went on to observe that in the fact situation of that case the accused can be held guilty of offence of kidnapping under section 363/366 I.P.Code and assault or criminal force to woman with intent to outrage her modesty under section 354 of I.P.Code. Even in the present case, I have no hesitation in resorting to that course and record conviction against the appellant/accused for offence under section 366 and 354 of I.P.Code. For, there is clear evidence that Pooja was kidnapped from the lawful guardianship of her parents by the appellant/accused and taken to the scene of offence. Thereafter, the Appellant made her to sit on his lap and was seen inserting his finger in the private part of Pooja. In other words, Pooja was kidnapped and abducted by the appellant with intent that she may be compelled to or with a view to force or seduce her to illicit intercourse. The appellant/accused in fact, translated his intent by making Pooja to sit on his lap and was seen inserting finger in her private part. The force applied by the appellant is demonstrated by the medical evidence. P.W.6 has spoken about the nature of injury caused to the private part of Pooja. It was of such intensity that natural healing was not possible. The doctors were required to undertake on minor surgery to remedy the injury. The injury has been described as "third degree injury" through and inside the private part of Pooja. P.W.6 has spoken about the nature of injury caused to the private part of Pooja. It was of such intensity that natural healing was not possible. The doctors were required to undertake on minor surgery to remedy the injury. The injury has been described as "third degree injury" through and inside the private part of Pooja. A priori, even if the appellant/accused may succeed in contending that there is no evidence of penetration of male organ, the fact established from the evidence on hand as has been rightly held by the trial Court is that the appellant was seen inserting finger in the private part of Pooja. The appellant abused the innocence of the young girl who was hardly 5 to 6 years at the relevant time. For her tender age she could not have resisted the force employed by the appellant/accused and meekly suffered the injury to her private part, which injury has been established to be of third degree. From the evidence on record, there is no manner of doubt that the appellant/accused can be safely convicted for offence under section 366 of I.P.Code for having kidnapped or abducted Pooja with intent that she may be compelled and knowing it well that she was likely to be compelled or forced or seduced to illicit intercourse. Obviously, on the finding reached as above, there is no manner of doubt that the appellant/accused was responsible for the assault or use of criminal force on Pooja with intent to outrage or knowing it to be likely that he will thereby outrage her modesty. Thereby the accused is also guilty of offence punishable under section 354 of I.P.Code. In other words, although on the abovesaid finding, the order of conviction of the appellant/accused under section 376/511 of I.P.Code was to be overturned, at the same time, on the basis of self-same evidence, there is no manner of doubt that the appellant instead is guilty of offence under section 366 and 354 of I.P.Code. Accordingly, in the ends of justice, it is the bounden duty of this Court to record conviction against the appellant under section 366/354 of I.P.Code. 8. The next question is what should be the quantum of sentence. Accordingly, in the ends of justice, it is the bounden duty of this Court to record conviction against the appellant under section 366/354 of I.P.Code. 8. The next question is what should be the quantum of sentence. There can be no manner of doubt that if prosecution had established the case of penetration of male organ, the sentence in the fact situation of the present case could not have been anything but 10 years of R.I. as awarded by the trial Court. However, the appellant having been found guilty of minor offence under section 366/354 of I.P.Code, will have to be awarded sentence proportionately. However, as the offence in question is committed by the Appellant in barbaric manner, resulting in causing third degree injury on the private part of Pooja as has been established by the evidence of P.W.6 medical officer, the appellant could be awarded punishment provided for by law for the said minor offence. In that, for the offence under section 366 of I.P.Code the appellant can be punished with imprisonment of either description for a term, which may extend to ten years and shall also be liable to fine. The other offence, for which the appellant has been held guilty of outraging modesty of woman under section 354 of I.P.Code, the appellant can be punished with imprisonment of either description for a term, which may extend to two years and with fine or with both. In my considered opinion, in the ends of justice, the appellant deserves to be sentenced to undergo R.I. for a period of seven years and pay fine of Rs.10,000/- i.d. to undergo S.I. for period of 10 months for offence under section 366 I.P.Code. Additionally, to undergo R.I. for a period of two years and pay fine of Rs.1,000/- i.d. to undergo S.I. for a period of one month for offence under section 354 of I.P.Code. Sentence of both these offence however, shall run concurrently. Accordingly, I proceed to pass the following order. Accordingly, this appeal partly succeeds on the following terms. (i) Impugned Judgment and Order is modified by holding that the appellant is convicted for the offence punishable under section 366 of I.P.Code and sentenced to suffer R.I. for seven years and to pay fine in the sum of Rs.10,000/- i.d. to suffer S.I. for a period of ten months. Accordingly, this appeal partly succeeds on the following terms. (i) Impugned Judgment and Order is modified by holding that the appellant is convicted for the offence punishable under section 366 of I.P.Code and sentenced to suffer R.I. for seven years and to pay fine in the sum of Rs.10,000/- i.d. to suffer S.I. for a period of ten months. (ii) The appellant is also convicted for the offence punishable under section 354 of I.P.Code and sentenced to suffer R.I. for two years and to pay fine of Rs.1,000/- i.d. to suffer S.I. for one month. (iii) Sentences for both the offences shall run concurrently. (iv) The amount of fine if deposited by the appellant shall be made over to Pooja, daughter of Janardhan Lagas forthwith. (v) Muddemal be disposed of in accordance with law. Appeal partly allowed