JUDGMENT : A.K. Parichha, J. - This appeal is directed against the judgment of the Learned Assistant Sessions Judge, Chatrapur in Sessions Case No. 25 of 1994 wherein the Appellant has been convicted for offence u/s 376 of the I.P,C. and sentenced to undergo rigorous imprisonment for a period of ten years. 2. Prosecution case in nutshell, is that, on 7th September, 1993 at about 11 A.M. while the prosecutrix, who is a deaf and dumb girl, was performing weeding operation in their land at village Sahapur alone, the Appellant came near her on the pretext of asking for some gudakhu and taking advantage of the lonely situation, suddenly caught hold of her, threw her on the muddy land, removed her clothes and performed sexual intercourse with her by force despite her resistance. Immediately after the occurrence, the victim girl came weeping and narrated the incident to her mother through signs and gestures. The mother of the victim girl called some villagers, who brought Appellant, interrogated him and after being satisfied about the genuineness of the allegations, advised the mother of the victim girl to inform the police about the incident. Accordingly, the mother of the victim girl went to Purusottampur Police Station and lodged the report, Basing on that report, a case was registered, investigation was conducted and charge-sheet was submitted u/s 376, Indian Penal Code. The Appellant denied the allegations made against him and took the plea that false case has been created against him by the family of the victim girl due to previous enmity. 3. To substantiate the charge, the prosecution examined as many as 15 witnesses. Out of them, P.W.9 is the prosecutrix, P.W.8 is her mother, P.W.1 is the Grama Rakhi, who arrived at the spot and accompanied the victim to the police station. P.W.2 is the scribe of the F.I.R.. P. Ws. 3, 10, 11, 13 and 14 are the co-villagers of the parties. P. Ws. 4 & 5 are the Scientific Officers of D.F.S.L., Chhatrapur and Phulbani respectively, P.W.6 is the doctor of M.K.C.G. Medical College, who examined the Appellant on police requisition and found him sexually potent, P.W.7 is the teacher of Deaf and Dumb school, Berhampur, who interpreted the statement of the victim girl before the Magistrate and the Court, P.W.12 is the police A.S.I.. who received the F.I.R., registered the case, started investigation and made seizure of the clothes and broken bangles of the victim girl, P.W.15 is the Inspector of Police, who took charge of the investigation, sent the victim girl and the accused for medical examination, sent the seized articles for chemical and serological examination and submitted the charge-sheet. Besides the oral evidence, documents such as F.I.R., seizure lists, reports of the doctors, reports of the Scientific Officers, statement of the victim girl recorded u/s 164, Code of Criminal Procedure and some material objects were also adduced in evidence. The Appellant did not produce any witness or document. On consideration of the materials on record, Learned Trial Judge found that the evidence of the prosecutrix is reliable and her statement is also corroborated by the evidence of the post occurrence witnesses and seizure of incriminating articles. He accordingly convicted the Appellant for the offence of rape and awarded the sentence indicated above. 4. Mrs. Bharati Das, Learned Counsel appearing for the Appellant submits that the prosecutrix is a deaf and dumb girl and the interpreter was also not very sure about some of the gestures she made and so much reliance should not have been placed on her evidence. She further submits that when some of the P. Ws. did not support the statement of the victim girl and the medical reports were also supportive to the allegation of rape, conviction u/s 376, Indian Penal Code recorded by the Trial Court was not legal and proper. According to her even if the entire evidence of the prosecution is accepted as true only a case u/s 354, Indian Penal Code is made out and for that reason, the conviction and sentence u/s 376, Indian Penal Code recorded against the Appellant should be set aside. 5. Mr. A.K. Mishra, Learned Standing Counsel per contra argues that through the victim girl is a deaf and dumb, her statement was interpreted clearly and faithfully by the interpreter and there was no scope for any ambiguity or doubt about her statement. He submits that not only the statement of P.W.9 was reliable but her statement was also corroborated by the post occurrence witnesses and seizure of incriminating articles. He argues that once the evidence of the prosecutrix is found reliable, then the Court can record the conviction against the accused even without seeking any corroboration. Mr. He submits that not only the statement of P.W.9 was reliable but her statement was also corroborated by the post occurrence witnesses and seizure of incriminating articles. He argues that once the evidence of the prosecutrix is found reliable, then the Court can record the conviction against the accused even without seeking any corroboration. Mr. Mishra thoroughly supports the reasonings and findings of the Learned Trial Court. 6. P.W.9 is a deaf and dumb girl. She gave her statement through signs and gestures, which were interpreted by P.W.7, who is expert in the field being a teacher of Deaf and Dumb School. P.W.7 stated on oath that he has acquired qualification to interpret the signs and gestures of a deaf and dumb person and that he faithfully interpreted the statements of P.W.7. In such a situation, there was no scope for entertaining any doubt about the correctness of the interpretation of the statement of P.W.9. 7. P.W.9 alleged that while she was performing weeding operation in their land alone, the Appellant came near her, asked for some gudakhu and when she refused, he pulled her hair, threw her on the ground, removed her saree, tore open her blouse, spread her legs, gagged her mouth with her saree and committed sexual intercourse with her against her consent. She claimed that she resisted the act of ravishment in the process of which some of her bangles were broken. According to her she sustained pain on her private part and her body and clothes were soiled with mud of the land. She alleged that the Appellant after committing the sexual intercourse by force, threatened her with dire consequences if she narrates the incident to anyone, but she came weeping to the village and narrated the incident to her mother through signs and gestures and her mother in turn told the villagers. P.W.8 corroborated the statement of P.W.9 and further stated that she called some villagers, who brought the Appellant to enqurie about the allegation and asked him to marry the victim girl and to give her some landed property as security, but when the Appellant did not agree, they advised her to report the matter in the police station and accordingly, she went with P.W.9 and the Grama rakhi to the police station and lodged the report, Ext.1. P.W.1, the Grama rakhi, P. Ws. P.W.1, the Grama rakhi, P. Ws. 10 and 13 the villagers supported the statements of P. Ws. 8 and 9 substantially. The police A.S.I., P.W.12, stated that he received the report, Ext.1, registered the case, seized the mud stained blouse and saree of the victim girl, vide seizure list Ext. 6, the wearing apparels of the accused vide seizure list Ext. 7 and the broken bangles from the spot vide Ext. 3. P.W.15 stated that he took charge of the investigation, sent the victim girl and the Appellant for medical examination to M.K.C.G. Medical College and Hospital and obtained the medical reports from the doctors. He also stated that he sent the seized articles for chemical and serological examination. 8. Though the Appellant took the plea that he has been falsely implicated by the victim girl and her family members due to previous enmity, he did not produce any evidence or circumstance to establish such previous enmity. In fact, no evidence or reason was available on record to show that the prosecutrix or her family members had any reason to falsely implicate the Appellant. 9. Law is now settled that conviction u/s 376, Indian Penal Code against an accused can be recorded basing on the sole testimony of the prosecutrix if such statement is found reliable, unimpeachable, unblemished and above board. In the present case, P.W.9, who is a'deaf and dumb girl stated through signs and gestures before her mother and villagers immediately after the occurrence that she was ravished by the Appellant. She also gave similar statements before the Magistrate u/s 164, Code of Criminal Procedure and that statement has been marked as Ext. 5. She reiterated her statements before the Trial Court. From the evidence of P. Ws. 1, 8 and 13 it can be gathered that immediately after the occurrence, P.W.9 narrated about the Incident and at that time her clothes and person were found soiled with mud. P.W.12 stated that some broken bangles were found lying on the spot and according to the report of the chemical examiner those broken bangles matched with the bangles of P.W.9. These evidences can be taken as corroboration to the evidence of P.W.9. 10. P.W.12 stated that some broken bangles were found lying on the spot and according to the report of the chemical examiner those broken bangles matched with the bangles of P.W.9. These evidences can be taken as corroboration to the evidence of P.W.9. 10. Argument is offered from the side of the Appellant that reports of the doctors are contrary to the allegations of the prosecutrix and for that reason there was ample scope for entertaining doubt about the genuineness of her allegations. The evidence of the doctor, P.W.6 and his report Ext. 4 show that the Appellant was found sexually potent but there was no injury on his person or private part. The medical report, Ext. 10 also reveals that no injury on the private part of the victim girl was there and her.hymen was intact and her vaginal canal tightly admitted only the little finger. As has been observed in the cases of Balwant Singh v. State of Punjab, AIR 1987 S.C. 559; Rabinarayan Das Vs. State of Orissa Sankarlal v. State of M.P., 1994 Cri.L.J. 336 (MP), Chotu v. State of Rajasthan; 1994 Cri.L.J., NOC, 451 (Raj, absence of injury on the person of the victim and accused does not falsify the allegation of rape as it is not probable that whenever resistance is offered, there is bound to be injury on the body of the victim of the accused. Moreover, when an accused commits rape in a lonely place, one cannot expect any resistance or violence from the prosecutrix to the extent of causing injuries to herself and the accused. (See: State of Maharashtra v. Prakash, 1989 Cri L.J. 389 (Bom) (D.B.). The very fact that soon after the occurrence, the person and clothes of the victim girl were found soiled with mud, her blouse was in torn condition and some of the broken bangles of the victim were found at the spot and those broken bangles matched with the bangles which the victim girl was wearing suggest that the victim girl and her mother have not cooked up a false story. 11. Now the question is as to whether under the above noted circumstances, the Appellant can be found guilty u/s 376, Indian Penal Code. 12. For conviction u/s 376, Indian Penal Code, penetration is sine qua non. 11. Now the question is as to whether under the above noted circumstances, the Appellant can be found guilty u/s 376, Indian Penal Code. 12. For conviction u/s 376, Indian Penal Code, penetration is sine qua non. In the present case the medical report shows that there was no injury or mark of violence on the private part of the victim girl and her hymen was in tact. The report also shows that her vaginal canal tightly admitted the little finger only. No semen stain was detected on the clothes of the victim girl or the Appellant. In such a situation, it is difficult to conclude beyond all reasonable doubt that there was penetration of the penis of the Appellant into the vaginal canal of P.W.9.That being so, conviction u/s 376, Indian Penal Code is not possible. 13. The next question, which arises for consideration is whether the act of the accused would come within the scope of Sections 376/511, Indian Penal Code or Section 354, Indian Penal Code. 14. The offence u/s 354, Indian Penal Code is only committed when a person assaults or uses criminal force to a woman,intending to outrage or knowing it to be likely that he will thereby outrage her modesty, whereas attempt of rape is attracted when the conduct of the accused indicates a determination to gratify his passion at all events and in spite of all resistance. The facts and circumstances of each case, therefore, would decide whether the act of the accused amounts to an attempt of rape or criminal assault to out-rage the modesty. In the present case, the evidence of the prosecutrix and the surrounding evidence reveal that an accused finding the victim girl alone forcibly threw her on the ground, removed her clothes, gagged her mouth, spread her legs, climbed on her to perform the sexual act. Evidence is wanting that there was actual penetration. The situation thus clearly raises inference that the accused did not simply want to outrage the modesty of the victim girl, but he wanted to gratify his passion despite resistance of the victim. That being so, the act of the Appellant clearly comes within the definition of attempt to commit rape. Appellant will, therefore, be liable for the offence under Sections 376/511, Indian Penal Code. 15. That being so, the act of the Appellant clearly comes within the definition of attempt to commit rape. Appellant will, therefore, be liable for the offence under Sections 376/511, Indian Penal Code. 15. Accordingly, in the result, the conviction and sentence u/s 376, Indian Penal Code is set aside and modified to one under Sections 376/511, Indian Penal Code. Attempt of rape being a lesser offence than the offence of rape, the sentence imposed is also reduced to R.I. for four years with fine of Rs. 2,000/-, in default to undergo for a further period of three months. The period of detention as UTP, if any, be set off against the sentence as per the provisions of Section 428, Code of Criminal Procedure The appeal is accordingly partly allowed. Final Result : Allowed