JUDGMENT 1. - This appeal is directed against the judgment dated 19.2.2005 passed by the learned Additional Sessions Judge (Fast Track), Parbatsar in Sessions Case No. 18/2004(13/2004), whereby, he convicted accused appellant Bhagu Ram for offence under Section 376 I.P.C. and sentenced him to undergo seven years' rigorous imprisonment and to pay a fine of Rs. 1000/- in default of payment of fine to further undergo one month's simple imprisonment. 2. The charge against the accused appellant was that on 6.3.2004, at about 4 p.m., he committed rape with Mst. Madhu Kanwar in the field of Bihari Singh, situated in the boundary of village Rasal, District Nagaur. According to the F.I.R., lodged by the father of the prosecutrix at Police Station Kuchaman on 6.3.2004 at 4 p.m., when Mst. Madhu Kanwar was going for latrine in the field of Bihari Singh, accused appellant Bhagu Ram came and committed rape with her. She came weeping to the house and told the story to her mother. When in the evening, her father Raghunath Singh came to the house, his wife narrated the story to him, upon which, he along with Mst. Madhu Kanwar and his wife went to the Police Station on the next day and lodged the F.I.R. Ex.P-4. 3. Upon this report, police registered a case for offence under Section 376 I.P.C. The prosecutrix was medically examined and after sending the clothes for chemical examination, recovered from her body, accused appellant Bhagu Ram was challaned for offence under Section 376 I.P.C. After committal, the learned trial Judge framed the charge under Section 376 I.P.C., to which he pleaded not guilty. Prosecution examined 13 witnesses. The statement of accused under Section 313 Cr.P.C. was recorded. He produced one Goma Ram DW-1 in his defence. 4. It has been contended by learned counsel for the accused appellant that from the statements of the prosecutrix and the Doctor, it has not established that any rape was committed with Mst. Madhu Kanwar. 5. On the contrary, learned Public Prosecutor has supported the judgment of the learned trial Court. 6. Having gone through the evidence of the prosecutrix Mst. Madhu Kanwar PW-6, it is revealed that at first, accused pushed her and did bad work with her. When the learned Public Prosecutor put her to question about what was the bad work, to which, she did not reply. 6. Having gone through the evidence of the prosecutrix Mst. Madhu Kanwar PW-6, it is revealed that at first, accused pushed her and did bad work with her. When the learned Public Prosecutor put her to question about what was the bad work, to which, she did not reply. Her aunt Khinvdi came to her and took her to the house, Khinvdi has been disbelieved by the prosecution. In cross-examination, the SI lO drafted the F.I.R. as per the version narrated by her mother and father. The prosecutrix Mst. Madhu Kanwar did not receive any injury. According to her, there was no solid soil on the spot and bad work was done about one step away from the place where she went for latrine. If this statement of the prosecutrix, which is the solitary statement of the offence, as the eye witness Khinvdi has been disbelieved by the learned trial Judge, is read with the statement of Doctor Kalpana Gupta PW-1, who examined Mst. Madhu Kanwar on 7.3.2004 vide Ex. P-l, she has stated that there was no evidence of any injury on perineal region and any other part of the body of the prosecutrix. As regards rape, she has opined that the prosecutrix is not habitual of intercourse and regarding recent sexual intercourse; vaginal swab has been taken for chemical examination. The report of the chemical examiner is negative with regard to the presence of simen (sic semen) except on the clothes, which were recovered from the prosecutrix. When there are no marks of injury and semen is absent from vaginal examination and the prosecutrix has not specifically stated about penetration, it cannot be said that it is a case of sexual intercourse. The evidence as put forth by the prosecutrix reveals that it is a case of attempt to commit rape, punishable under Section 376 read with Section 511 I.P.C. The learned trial Judge has not evaluated the evidence in this light. 7. Consequently, this appeal is partly allowed. The conviction of accused appellant Bhagu Ram is altered from Section 376 I.P.C. to Section 376 read with Section 511 I.P.C. The maximum punishment provided for this offence may extend to one half of the longest term of the punishment provided for that offence. The longest term is life imprisonment or imprisonment for ten years, subject to minimum sentence of seven years. The longest term is life imprisonment or imprisonment for ten years, subject to minimum sentence of seven years. When the longest term is life imprisonment and ten years' imprisonment, and the accused appellant has been convicted for seven years, he is sentenced to five years' rigorous imprisonment for offence under Section 376 read with Section 511 I.P.C., with a fine of Rs. 1000/- in default of payment of fine to further undergo one month's imprisonment. The accused appellant is in jail. He will serve out the remaining part of the sentence, if any.Appeal partly allowed. *******