Judgment :- Appeal is by the accused challenging the order of the Fast Track Court X, Bangalore in SC 453/2006 convicting him for the offence punishable under S.375, IPC and sentencing to undergo rigorous imprisonment for 10 years and to pay fine of Rs.2,000/-and in default, to undergo rigorous imprisonment for one year and also sentenced for the offence under S.323, IPC, to undergo rigorous imprisonment for one year and further, to undergo rigorous imprisonment of one month for the offence under S.341, IPC. According to the prosecution, on 20.1.2006 around 12.00 noon at Papireddy Palya Link Road, BDA Layout, II State, Nagarbhavi, when the victim aged about 9 years daughter of PW-1 Imam BI, had been to answer nature call, at that time the accused followed and induced her to take money and asked her to go with him and when she refused, having assaulted on her face, ragged her by holding her hairs, made her lie on the ground and, having undressed her, committed rape on her. On the strength of the complaint filed by the victim’s mother, after investigation and after recording the statement of the victim, after subjecting the victim and the accused for medical examination and after securing the report, the police filed charge sheet. On such committal, the matter was taken up by the Fast Track Court, on assignment. Charges were framed for the offences punishable under S.323, 341 and 376, IPC. The accused pleaded not guilty and claimed to be tried. During trial, the prosecution examined in all twelve witnesses. Thereafter, the accused was examined under S.313, Cr.PC. His defense was total denial. After hearing, the impugned order of conviction and sentence was passed against which, accused is before this Court. Heard the counsel representing the parties. After hearing the parties, the points that arise for my consideration are- Whether the prosecution has proved beyond reasonable doubt that the accused has committed rape of the victim as alleged; Whether the trial court has committed any error in convicting and sentencing the accused for the offence under S.376, IPC as well as under S.321 and 341, IPC; What offence if any, the accused has committed; What order? So far as the capacity of the accused to commit rape is concerned, on such arrest being made, he was produced before PW 4 – Dr Shivarudrappa who is a Professor in Victoria Hospital. So far as the capacity of the accused to commit rape is concerned, on such arrest being made, he was produced before PW 4 – Dr Shivarudrappa who is a Professor in Victoria Hospital. He has examined the accused and also has collected the semen. He has also spoken about the capacity of the accused to perform intercourse. The victim/PW 5 initially was examined by the trial court as to her capability for giving evidence and then, proceeded to examine her having found that she is a competent witness. She has spoken about the accused having made an attempt on her as narrated in the prosecution case. It is also her evidence that the accused has undressed her and he also undressed, at that time when she shouted, the accused assaulted on the face and committed rape on her. At that moment, her mother was coming to see her and one PW3 was also coming behind her mother and on seeing them, the accused ran away. She explained to her mother as to what happened. Thereafter, herself and her mother went to the place where her father was found and informed him of the incident. Later, they searched for the accused but, could not find him. Thereafter, they went to the police station and narrated the incident. She was taken to the hospital thereafter and was subjected to examination. The doctor who examined the victim i.e., Dr Shakuntala who is a senior specialist at Vanivilas Hospital, having examined the victim, has reported that two abrasions are found over the left check; abrasion over the right elbow joint and left knee joint; scratch marks over the right thigh and abrasions over the mid back and right infra scapula. The doctor has also opined that the injuries could have been caused within six to seven hours. The victim was taken to the hospital on the very same day evening. However, in the course of cross examination, she has opined tat since the hymen was in fact, there was no penetration. Regarding sustaining of such injuries, she has given her opinion that, if a person attempted to molest, such injuries are possible. The evidence of PW1 is similar to that of the victim i.e., as narrated by the victim to her mother. Regarding sustaining of such injuries, she has given her opinion that, if a person attempted to molest, such injuries are possible. The evidence of PW1 is similar to that of the victim i.e., as narrated by the victim to her mother. The evidence of other witnesses viz., the investigating officer and also the Dr Satish – PW 8 would go to show that the accused was capable of performing sexual intercourse and he was physically well developed. The accused has been identified by the victim. When the accused was capable of performing sexual intercourse and several abrasions were found on the body, although the victim has highlighted that the accused has committed rape on her though the opinion of the doctor who examined her is that there is no rupture of the hymen, except for some abrasions, it is also to be taken note of that the victim being a small girl of eight to nine years, would not be knowing actually how rape would have been committed. Might be the accused having undressed the victim and having undressed himself, after assaulting and dragging her to some distance, having felled her on the ground, made an attempt. The fact that seminal stains were found on the material objects which were seized from the body of the victim as well as the accused depicts at, it is a clear case of an attempt to commit rape on the victim. As noted on the evidence of the victim, when she came out to answer nature call, at that time the accused attempted on ;her, she cried and at that time, her mother and behind her PW3 were coming and on noticing them, the accused has ran away,. The police on such complaint being filed, have arrested and subjected the accused for medical examination and there is also evidence regarding his potentiality and capability to perform sexual intercourse. In the cross-examination of the victim, it has been elicited from her that nobody was there when the accused committed rape on her. PW 1, the mother who came there later has narrated the incident as stated by the victim PW 5. PW 2 is the father of the victim and he is only a hearsay witness. In the cross-examination of the victim, it has been elicited from her that nobody was there when the accused committed rape on her. PW 1, the mother who came there later has narrated the incident as stated by the victim PW 5. PW 2 is the father of the victim and he is only a hearsay witness. It appears, the accused having attained the age of adolescence-at the time of commission of the offence he was aged about 20 years, is said to have committed rape on the victim having found a chance when nobody was there near the scene of offence. Of course, later the mother of the victim came on hearing the crises/shout of the victim. In the course of natural conduct the accused has assaulted the victim when she raised a hue and cry and has also dragged her by holding her fairs and having felled her down, attempted to commit rape. As is noted, the scene of offence is an open ground with rough surface and some abrasions and injury were found on the body of the victim because of the conduct of the accused in felling the victim and attempting to commit rape. The evidence of PW 3 is also to the effect that, he saw the accused running on the other side of the road, he tried to catch him but, he ran away. The victim has deposed about the accused slapping her when she resisted and the trial court has opined that the accused has committed the offence of causing simple hurt and wrongful restraint. Based on the evidence of the victim and the medical evidence, the trial court has opined that the accused committed rape on the victim and that the evidence of the victim corroborated with the medical evidence, is sufficient to hold the accused guilty of the offence. Learned counsel representing the accused submitted, accused is not guilty of the offence and accused has not been identified and at the most, it is a matter of outraging the modesty of woman but, not a case of rape or attempt to commit rape when, as per the medical opinion, there is no rupture of the hymen. It is also her argument, even according to the victim, when she cried her mother was coming. It is also her argument, even according to the victim, when she cried her mother was coming. Might be at that time the accused could have undressed her and the injuries were also natural when the victim fell on the ground and it does not corroborate the fact to hold that it is a case of attempt to commit rape. On the other hand, Government Pleader submitted that the evidence of the victim coupled with the evidence of the doctor would definitely prove the case against the accused for the offence under S.376, IPC despite non-rupture of the hymen. In the case on hand, as is noted, there is no penetration. Of course, an attempt is shown to have been made by the accused in undressing the victim and having felled her down, to commit sexual intercourse but, there is no rupture of the hymen. In the circumstances, when there is no penetration, necessarily it has to be treated as an attempt to commit rape. I may refer to a decision of the Supreme Court in the case of Koppula Venkat Rao Vs State of Andhra Pradesh – 2004 (3) SCC 602 wherein it is ;held that ejaculation without penetration constitutes an attempt to commit rape and not actual rape. In the case on hand, what is narrated by the victim is that, accused has offered money and when she refused or did not co-operate, the accused dragged her having held her hairs, felled her on the ground, having undressed her and he also having undressed, attempted to commit rape. Whether there was ejaculation or not, but the evidence of the victim is, he has committed rape. What is also to be noted is the evidence of the doctor, who has specifically stated that there is no penetration and necessarily when the victim was aged 8 or 9 years and a minor and when the hymen was in tact, necessarily the offence of rape has not been completed. The accused is also hardly 20 years. He committed rape on the victim who is a minor aged about 8-9 years. The accused is also hardly 20 years. He committed rape on the victim who is a minor aged about 8-9 years. In the case of State of Madhya Pradesh Vs Munna Choubey & Anr – AIR 2005 SC 682 , regarding imposition of sentence, the Apex Court has opined that in cases of offence under S.376(1) and (2), sentence less than what is prescribed can be prescribed only by a reasoned order and that reason should be adequate and special and not fanciful. The Apex Court further opined that the law should adopt corrective machinery or deterrence based on factual matrix. The facts and circumstances in a given case, nature of the crime, manner in which it was planned and committed, motive for the commission of the crime, conduct of the accused and all other attendant circumstances are relevant facts which enter into the arena of consideration. It has also held that criminal law adheres in general with the principle of proportionality ……..it ordinarily allows some significant discretion to the Judge in arriving at a sentence in each case presumably to permit sentence that reflects mere subtle consideration of culpability that are raised by the special facts of each case. In the case on hand, the trial court of course based on the evidence, without exercising discretion whether it is a case of actual rape or attempt to commit rape, has convicted the accused for the offence under S.376, IPC. The factual background and circumstances of the case and also the medical evidence clearly depicts the fact that it is not a case of rape but, it is an attempt to commit rape,. It is also not a case on an attempt to outrage the modesty of a woman. Thus, the offence committed by the accused is one under S.376 r/w S.511, IPC. Accordingly, it is boiled down to the said offence. Apart from that the, accused has been convicted under S.323, IPC in causing simple hurt and also for wrongful restraint under S.341, IPC which need not be interfered with. So far as punishment is concerned, the minimum sentence in a case of rape of a minor, is seven years. The present case is necessarily a case of an attempt to commit rape. So far as punishment is concerned, the minimum sentence in a case of rape of a minor, is seven years. The present case is necessarily a case of an attempt to commit rape. The punishment prescribed under S.376, IPC is imprisonment for life or ten years but, it should not be less than seven years in case of rape of a minor. Here is a case where actually an attempt to commit rape is established by the prosecution beyond reasonable doubt. The accused is sentenced by the trial court to undergo rigorous imprisonment for ten years and also default sentence. The imposition of sentence has to be reduced from tat of committing rape to an attempt to commit rape. The family of the victim had come in search of work to Bangalore and were living in an isolated place and when the parents were away, the accused found an occasion to commit rape. The accused in order to satisfy the urge to have sex, having attained the age of adolescence, could have made an attempt to persuade the victim by offering some money so that she would oblige him and when she resisted, naturally he would have attempted to drag her and having felled her, attempted to commit rape on her. This of course, is unlike rape being committed heiniously out of lust or for any other reason. The age factor of the accused also would have counted and added to that, the background in which the accused is brought up would also have a bearing on his conduct and behaviour, for which an exception could be taken in sentencing him. Accordingly, the sentence for the offence under S.376 r/w S.511, IPC is reduced from ten years to five years and the sentence in so far as offence under S.341 and 323, IPC are concerned, are ordered to run concurrently. So far as imposing of fine is concerned, the accused shall pay fine of Rs.5,000/-and in default, sentenced to undergo simple imprisonment for two months. In the result, appeal is allowed in part. Accused is entitle to the benefit of set of under S.428, Cr.PC for the sentence already undergone by him during trial and subsequently thereon.