JUDGMENT A. S. NAIDU, J. : The order of conviction and sentence passed by the learned C.J.M.-cum-Asst. Sessions Judge, Keonjhar in S.T. Case No. 116 of 2001 convicting the appellant for commis¬sion of offence under Section 376(2)(f) of the I.P.C. and sen¬tencing him to under go R.I. for ten years and to pay a fine of Rs.10,000/-, in default to undergo R.I. for two years is assailed in this Crl.Appeal. 2. Bereft of unnecessary details the facts in short are that on 18th May, 1998 at about 10.00 A.M. Kirtan Behari Behera, P.W.2,left his house for work. Thereafter Susila, P.W.1, his wife, went to the village pond to take bath and their minor chil¬dren, namely, Mamata Behera, P.W.3 aged about 11 years and Rama¬chandra Behera, P.W.4 aged about 9 years remained alone in the house. At about 10.00 A.M., it was alleged that the appellant entered into the house of P.W.2 and taking advantage of the absence of parents in the house dragged Mamata, P.W.3, the minor daughter of Kirtan to the verandah, made her life on the ground, removed her panty and committed sexual intercourse with her in spite of her strong resistance. Ramachandra Behera, P.W.4, the younger brother of Mamata, tried to obstruct, but it was alleged that the appellant kicked him off. It was further alleged that the victim girl, P.W.3, being forcibly raped by the appellant lost her senses and after the alleged act the appellant fled away. After returning from the pond, Susila, P.W.1, sprinkled water on the face of her daughter P.W.3. Thereafter P.W.3 re¬gained senses and narrated the occurrence to her mother. Susila also found the panty of Mamata, P.W.3, was stained with blood and semen. It was alleged that Susila took her daughter and her undergarments to the house of the appellant Ajit, but then Ajit denied the allegation and rather abused them and threatened to assault them. After Kirtan, P.W.2, returned from his work in the evening, Susila narrated all the facts to him and at the instance of Kirtan a Panchayat Meeting was convened. It was alleged that although the appellant Ajit, did not attend the said meeting, he was found guilty and it was decided that Mamata will be looked after by the family of Ajit as their daughter and an agreement would be executed to that effect. It was alleged that although the appellant Ajit, did not attend the said meeting, he was found guilty and it was decided that Mamata will be looked after by the family of Ajit as their daughter and an agreement would be executed to that effect. Another meeting was also con¬vened on 26.5.1998, but the Villagers refused to interfere in the matter. Kirtan, P.W.2, thereafter lodged F.I.R. on 27.5.1998. During investigation the victim girl, Mamata, was sent for medi¬cal examination and her seized garments were also sent for chemi¬cal examination. After completion of investigation charge sheet was submitted against the appellant. The plea of the appellant as would be evident from his examination under Section 313 of the Cr.P.C. is completely denial of the occurrence. It was rather stated by him that he had been falsely implicated in the case. 3. To substantiate its case, prosecution got examined ten witnesses and exhibited seven documents. The defence neither got any witness examined nor did exhibit any document. Out of the witnesses examined by prosecution, P.W.1 was the informant, P.W.2 was the father of the victim girl, P.W.3 was the victim girl, P.W.4 was the brother of the victim girl, PWs. 5, 6 and 7 were co-villagers, P.Ws.8 and 10 were investigating officers and P.W.9 was a doctor. The Trial Court at the very outset observed that in a rape trial the Court should be sensitive to the gender and should act on the sole testimony of the prosecutrix if it in¬spires confidence without seeking any support. Applying the said principle the evidence was analysed and the Court came to the conclusion that prosecution had proved the charge under Section 376(2)(f) of the I.P.C., but then had miserably failed to prove the charges under Sections-294, 506 and 509 of the I.P.C. On the basis of such conclusion, the Court below found the accused guilty of the charge under Section 376(2)(f) of I.P.C., but then acquitted him of other charges and sentenced him as indicated above. 4. Mr. Parija, learned counsel appearing for the accused-appellant, forcefully submitted that it would be evident from the judgment itself that the Court below made of its mind to convict the accused as the allegation of rape on a minor child was there and was thus prejudiced. In short, according to Mr. Parija, learned Asst. Sessions Judge prejudged the case before analysing the evidence. In short, according to Mr. Parija, learned Asst. Sessions Judge prejudged the case before analysing the evidence. Relying upon the evidence of P.W.9, the doctor, Mr. Parija submitted that as the medical evidence completely nega¬tived the allegation of rape the Court below acted illegally in accepting the oral evidence which was not only absurd but was aimed at vilifying the accused. According to him this is a fit case where the order of conviction and sentence should be set aside and the appellant should be acquitted. 5. Learned counsel for the State, at the other hand, forcefully submitted that the Court below properly appreciated the entire evidence. According to him the statement of the vic¬tim, who was a minor, as well as the availability of corroborating evidence of eye witness were sufficient to convict the appellant. According to him the conclusions arrived at are just and proper and this Court should not interfere with the order of conviction specially in view of the fact that a minor girl had been raped. 6. I have heard learned counsel for the parties at length. This being an appeal, I went through the evidence and scanned it once again. Admittedly the occurrence took place on 18.5.1998 and the F.I.R. was lodged on 27.5.1998, i.e., nine days after the date of occurrence. The delay in lodging the F.I.R., though, cannot be a ground to reject the prosecution case, the same was required to be satisfactorily explained, in the absence of which it would be fatal to the prosecution case. Supreme Court in the case of State of Himachal Pradesh v. Gian Chand reported in 2001(I) O.L.R. (S.C.) 367 has observed that delay in filing an F.I.R. in a rape case is normal. In the present case the delay has been explained only by the P.W.1. According to her a Panchay¬at Meeting was convened and as the Panchayat advised her to take shelter in Court, the F.I.R. was filed. P.Ws.5 and 7 the co-villagers have spoken about convening the meeting, but then it was stated that as the accused did not attend the meeting no decision could be taken. P.W.6, who was the Headmaster of the School, proved the date of birth of the victim girl, Mamata. Apart from the aforesaid three witnesses, there was no independ¬ent witness nor any villager who spoke about the occurrence. P.Ws. 3 and 4 were child witnesses. P.W.6, who was the Headmaster of the School, proved the date of birth of the victim girl, Mamata. Apart from the aforesaid three witnesses, there was no independ¬ent witness nor any villager who spoke about the occurrence. P.Ws. 3 and 4 were child witnesses. P.W.3, the victim girl, in her deposition clearly stated that the appellant Ajit had entered into her premises, dragged her to the verandah forcibly, made her lie on the verandah, removed her wearing panty and though she tried to resist she could not get rid of his clutch. Thereafter the appellant committed sexual intercourse against her consent. It was stated that the accused-appellant had gagged her mouth for which she could not raise hullah. It was further stated that she had suffered bleeding injuries on her private part and had lost sense. According to her, she regained her sense after some time. The only other important witness was her brother, P.W.4., who was also a child witness and had stated that appellant Ajit had entered into their house and finding no adult member, dragged Mamata to the verandah, made her lie on the ground, opened her panty and forcibly committed sexual intercourse. When P.W.4 tried to pull the leg of the accused, the latter gave him a kick. It was stated that P.W.3 lost sense and the accused went away to his house. According to P.W.1, the mother of the victim Mamata, when she returned back from pond after taking bath she found Mamata lying unconscious. She sprinkled water on her whereafter she regained sense. She ascertained from P.W.4, her son, that taking advantage of her absence the appellant Ajit had enter into their house, dragged Mamata to the verandah and committed sexual inter¬course. According to this witness the panty, which Mamata was wearing at the relevant time, was stained with blood and semen. P.W.2 was a post occurrence witness and except the convening a Panchayat meeting, he has not thrown any light on the occurrence. P.W.6 who was the Headmaster of a School proved the School Admis¬sion Register. According to him the date of birth of the victim was 5.6.1988. Thus, on the date of occurrence, she was a little short of 10 years’ of age. P.W.7 was a villager. According to him though a meeting was convened, no decision was taken due to non-appearance of the accused. According to him the date of birth of the victim was 5.6.1988. Thus, on the date of occurrence, she was a little short of 10 years’ of age. P.W.7 was a villager. According to him though a meeting was convened, no decision was taken due to non-appearance of the accused. P.W.9 was the doctor and the most important witness. She had examined the victim girl and had arrived at a finding that “it cannot be said that she was sub¬jected to sexual intercourse on 18.5.98”. She found no injury on or around the private part or anywhere else on the person of the victim girl. No foreign substance was found on or around her private part. In cross examination she stated “in case of sexual intercourse the hymen will be ruptured”. A reading of the evi¬dence of P.W.9 reveals that the hymen of the victim girl was intact. There was no bleeding nor any scar either on the private part or any portion of the body of the victim girl. On pathologi¬cal test no spermatozoa was found in her vaginal fluid. That apart the prosecution has failed to prove from the chemical examination that any blood stain or semen stain could be detected on under garments of the victim girl. But then P.W.1, in her evidence, has clearly stated that the panty of the victim girl was stained with blood. This statement was not corroborated by the chemical examination report. Perusal of the entire evidence in extenso reveals that except the evidence of P.Ws.3 and 4, the two child witnesses, there was no other evidence to connect the appellant with the alleged crime. The statement of P.W.3, a young girl of about ten years to the effect that the appellant had entered into their house and taking advantage of absence of her parents dragged her to the verandah and ravished her got corrobo¬rated from the evidence of her brother P.W.4. P.W.4’s evidence supported the evidence of P.W.3 that while he tried to resist the action of the appellant the latter gave him a kick. Thus the prosecution allegation that the appellant had entered into the house of victim girl and finding no other adult member tried to ravish the young girl cannot be thrown out. But then from the evidence of the Doctor, P.W.9, it appears the victim could not be subjected to sexual intercourse on 18.5.1998. Thus the prosecution allegation that the appellant had entered into the house of victim girl and finding no other adult member tried to ravish the young girl cannot be thrown out. But then from the evidence of the Doctor, P.W.9, it appears the victim could not be subjected to sexual intercourse on 18.5.1998. This fact is also forfeited as in the chemical examination no blood stain or semen stain was found on the panty of the victim. Added to all these, there was delay in filing the F.I.R. 7. After going through the evidence both oral and documen¬tary, I find that the evidence of P.W.3 and 4, the two child witnesses, clearly established the fact that the appellant had entered into the house of the victim girl and had ravished her, but then relying upon the medical evidence of P.W.9, the doctor, I entertain some doubt with regard to the commission of the offence of rape. 8. The fundamental principle of criminal jurisprudence is that the onus or proving every thing essential to establish the charge against the accused lies upon the prosecution which must prove the charge substantially as laid that to prove to the hilt and beyond all reasonable doubt. In a criminal trial the onus never changes, inasmuch every man is to be regarded as innocent until the contrary is proved. Criminality is never to be presumed unless otherwise directed by the statute. Suspicion or conjecture however strong it may be is not equal to legal proof. Considering the facts of the present case in the touch stone of the aforesaid legal principles, I find that the prosecution was able to successfully prove that the appellant entered into the house of the victim on the date of occurrence and had ravished P.W.3, who was a girl of about 10 years. But then it has totally failed to substantiate the charge of rape. The said allegation cannot be accepted without a pinch of salt in view of the clear evidence of the doctor, P.W.9, and her report Ext.9. But then there is enough evidence to lead to a conclusion that the appellant attempted to commit rape on P.W.3. 9. But then it has totally failed to substantiate the charge of rape. The said allegation cannot be accepted without a pinch of salt in view of the clear evidence of the doctor, P.W.9, and her report Ext.9. But then there is enough evidence to lead to a conclusion that the appellant attempted to commit rape on P.W.3. 9. 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 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. The sine qua non of the offence of rape is penetra¬tion, and not ejaculation. Ejaculation without penetration con¬stitutes and attempt to commit rape and not actual rape. Defini¬tion of ‘rape’ as contained in S.375, I.P.C. refers to ‘sexual intercourse’ and the Explanation appended to the Section provides that penetration is sufficient to constitute the offence of rape. The medical evidence throws a doubt with regard to alleged com¬mission of rape. 10. Under the aforesaid circumstances, this Court sets aside the impugned judgment and acquits the appellant of the charge under Section 376(2)(f) I.P.C., but then convicts him of the offence under Section 376/511 I.P.C. As it appears that the appellant is in custody for more than four years, this Court therefore sentences him to undergo R.I. for the period of impris¬onment already undergone by him and to pay a fine of Rs.5,000/-, in default to undergo R.I. for a period of one year. Out of the fine amount, a sum of Rs.4,000/- (Rupees four thousand) shall be paid to P.W.1, the informant, who shall receive the same on behalf of the victim girl. The Crl.Appeal is accordingly allowed in part. Crl. Appeal allowed in part.