Judgment Kanwaljit Singh Ahluwalia, J. 1. The present appeal has been filed by Chander son of Kanhaiya Lal. He was tried along with one Premveer, acquitted accused, in case FIR No. 89 dated 4.2.1999, registered at Police Station Central, Faridabad, under Sections 376 and 120-B IPC. 2. The Court of Additional Sessions Judge, Faridabad, vide its judgment dated 12.2.2002, had acquitted the appellant for the offence under Section 376 IPC but found him guilty for the offence punishable under Section 376 read with Section 511 IPC. Vide a separate order dated 15.2.2002, the appellant was sentenced to undergo rigorous imprisonment for the said offence for a period of five years and to pay a fine of Rs. 5,000/-. It was further ordered that in default of payment of fine, the appellant would further undergo rigorous imprisonment for a period of one year and three months. 3. FIR Ex. PG/2 was lodged in the present case on the statement Ex. PG made by the prosecutrix (her name is withheld in order to protect her identity). The prosecutrix, in her statement, stated that she was resident of Sant Nagar, Mathura Road, Faridabad. Her father was running a Tea stall near the smadh of Peer Baba. They were nine brothers and sisters, out of which, two were brothers and seven were sisters. She was at number four. On 3.2.1999 at about 7.30 P.M., she was alone at her house. Her father had gone to meet her elder sister who was married. Her mother and other siblings were at the tea stall. At that time, Chander, who used to visit Premveer in the neighbourhood, had come. Chander used to sleep at the house of Premveer. Therefore, he was known to the prosecutrix. Chander arrived at the house of the prosecutrix and forcibly caught hold of her hand and dragged her to the house of Premveer. At that time, nobody was at the house of Premveer. He forcibly removed the clothes of the prosecutrix. When the prosecutrix raised a noise, her neck was pressed due to which blood started oozing from her mouth and face. Her bangles were also broken. It was also stated that Chander wanted to commit rape forcibly with the prosecutrix. On the noise raised, her mother Sitara and brother Shabir were attracted at the spot. On seeing them, the accused- appellant ran away from the spot. Her bangles were also broken. It was also stated that Chander wanted to commit rape forcibly with the prosecutrix. On the noise raised, her mother Sitara and brother Shabir were attracted at the spot. On seeing them, the accused- appellant ran away from the spot. After her father returned home, the complaint was made to the police. 4. On the basis of the above statement Ex. PG, made by the prosecutrix, formal FIR Ex. PG/2 was registered. 5. The above said FIR was investigated and the report under Section 173 Cr.P.C. was submitted. 6. The appellant along with Premveer was charged on 27.7.1999, by the Court of Additional Sessions Judge, Faridabad. The appellant was charged for the offence under Section 376 IPC, whereas his co-accused Premveer was charged with the aid of Section 120-B IPC. 7. It will be pertinent to mention here that against the acquittal of the appellant for the offence under Section 376 IPC, the State has not opted to file any appeal. 8. Sitara, mother of the prosecutrix, appeared as PW.1. Her examination-in- chief reads as under :- "The prosecutrix ...... aged about 20-22 years is my daughter. About two years ago, my daughter disappeared and we got nun-plussed. However, my husband was not present at the house on the given date. I started search of my daughter. My daughter had gone to the house of her maternal uncle of her own accord but not kidnapped by anyone. However, none of the accused persons committed rape on my daughter. (At this stage, learned PP requests to cross examine the witness as she is suppressing the truth. Heard. The witness is declared hostile and P.P. is allowed to cross examine her)". 9. She was declared as hostile and cross-examined by the Public Prosecutor. The prosecution failed to gain anything from her cross-examination. 10. Shabir, brother of the prosecutrix, appeared as PW.2 and stated as under :- "I do not know anything about this case. Accused Chander has not been seen by me from coming out from the house of Premvir accused on 3.2.1999 at about 7.30 P.M. Both the accused present in the Court never committed rape on my sister ........ (At this stage, the P.P. requests to cross examine the witness as he is suppressing the truth. Heard. The witness is declared hostile and P.P. is allowed to cross examine him)". 11. (At this stage, the P.P. requests to cross examine the witness as he is suppressing the truth. Heard. The witness is declared hostile and P.P. is allowed to cross examine him)". 11. He was also declared as hostile and cross-examined by the Public Prosecutor. The prosecution could not secure any edge. 12. Bahar Khan, father of the prosecutrix, appeared as PW.3. He was also declared as hostile. His examination-in-chief reads as under:- "I do not know anything about this case. My son and wife never told me regarding committing rape on my daughter ....... by accused Chander in the house of Premvir present in the Court. (At this stage, learned P.P. Requests to cross examine the witness as he is suppressing the truth. Heard. The witness is declared hostile and P.P. is allowed to cross examine him)". 13. He was also cross-examined by the Public Prosecutor but it proved futile for the prosecution. The prosecutrix appeared as PW.4. Her examination-in-chief reads as under :- "Before marriage I used to live in Sant Nagar, Faridabad. About two years ago, I was present at my house all alone. It was about 8-9 P.M. my father had gone to the house of my sister. My mother was working at a Tea- stall, wooden log. In the meantime, accused Chander present in the Court came to my house and took me to the house of Premvir and committed rape on me. The accused used force against me while committing rape and thus blood came out from my mouth and I also sustained injuries on my neck and throat. After a while, my mother and brother, namely Shabir reached there. My mother notice me in naked position and then she made me to wear the clothes. Thereafter, the accused fled away. Co-accused Premvir was standing as a guard of his house. I also lodged the matter with the police under my thumb impression along with my parents i.e. Ex. PG". In the categoric terms, she has levelled the allegation of rape. 14 The trial Judge held that the prosecutrix had improved her version, therefore, no offence under Section 376 IPC is made out. He, however, convicted the appellant for the offence under Section 376 read with Section 511 IPC. 15. Mr. Gorakh Nath, Advocate, appearing for the appellant has submitted that the trial Court had committed grave error by relying upon Ex. He, however, convicted the appellant for the offence under Section 376 read with Section 511 IPC. 15. Mr. Gorakh Nath, Advocate, appearing for the appellant has submitted that the trial Court had committed grave error by relying upon Ex. PG, statement made by the prosecutrix before the police as the same is not a substantive piece of evidence. He further stated that once the Court has not believed the statement of the prosecutrix, made in the Court, no reliance could be placed upon her statement Ex. PG. Thus, the conviction of the appellant for the offence under Section 376 read with Section 511 IPC is bad in the eyes of law. 16. Mr. Manish Deswal, Deputy Advocate General, Haryana, appearing for the State, has submitted that the testimony of the prosecutrix PW.4 aspires confidence. 17. I have given my thoughtful consideration to the rival submission of learned counsel for the parties and perused the record. 18. The prosecutrix, when appeared in the Court as PW.4, stated that she was raped by appellant Chander and was rescued by her mother PW.1 Sitara and brother PW.2 Shabir. They have not proved her case. Even her father PW.3 Bahar Khan had also not lent corroboration to her testimony. In her cross- examination, the prosecutrix stated that appellant Chander met her on the way from her house to the tea stall. The appellant had gagged the mouth of the prosecutrix and took her to the house of Premveer. Even if the allegations, levelled in the FIR, are also believed, the clothes of the prosecutrix were removed. If that is so, the question arises as to what offence is made out. 19. This Court in case titled as "Satbir v. State of Haryana (Criminal Appeal No. 986-SB of 1999, decided on 9.2.2010) considered the case law in which the offence under Section 376 read with Section 511 IPC is made out. It will be pertinent to reproduce the relevant portion of judgment rendered in Satbirs case (supra) :- "In State of Madhya Pradesh v. Babulal, AIR 1960 Madhya Pradesh 155 it was held as under :- "(5) The facts stated above are also mentioned in the first information report. The challan was put up by the police under Section 354 I.P.C. Admittedly from the facts stated above, it is clear that it is not an offence of rape. The challan was put up by the police under Section 354 I.P.C. Admittedly from the facts stated above, it is clear that it is not an offence of rape. The question is whether it was an attempt to commit rape or a criminal assault. The distinction between the two is sometimes very meagre. In Rex v. James Lloyd, (1836) 7 C and P 817 : 173 ER 141 while summing up the charge to the jury, Justice Patterson observed : "In order to find the prisoner guilty of an assault with intent to commit a rape, you must be satisfied that the prisoner, 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." In Impress v. Shankar, ILR 5 Bom 403 the accused was charged for an attempt to commit rape. There the observations of M. Melvill, J., which are quoted below, are very pertinent : "We believe that in this country indecent assaults are often magnified into attempts at rape and even more often into rape itself; and we think that conviction of an attempt at rape ought not to be arrived at unless the Court be satisfied that the conduct of the accused indicated a determination to gratify his passions at all events, and in spite of all resistance." In the present case, from the facts by the trying Magistrate and in the first information report, it is seen that the girl was made naked. There is no other action on the part of the accused. It is quite possible that ultimately he would not have proceeded to have sexual intercourse on account of her unwillingness. If the dictum of Justice Patterson in the above cited case is followed, I cannot see from the prosecution case that the accused was determined to have sexual intercourse at all events, because as soon as he saw the uncle of the prosecutrix, he ran away. For an offence of an attempt to commit rape, the prosecution must establish that it has gone beyond the stage of preparation. The difference between mere preparation and actual attempt to commit an offence consists chiefly in the greater degree of determination. (6) A similar case was decided by Mirza and Broomfield JJ. For an offence of an attempt to commit rape, the prosecution must establish that it has gone beyond the stage of preparation. The difference between mere preparation and actual attempt to commit an offence consists chiefly in the greater degree of determination. (6) A similar case was decided by Mirza and Broomfield JJ. Of the Bombay High Court in Ahmed Asalt Mirkhan (Criminal Appeal No. 161 of 1930, D/- 12- 6-1930 reported in Ratanlals Law of Crimes, p. 922). In that case the complainant, a milkmaid, aged 12 or 13 years, who was hawking milk, entered the accuseds house to deliver milk. The accused got up from the bed on which he was lying and chained the door from inside. He then removed his clothes and the girls petticoat, picked her up, laid her on the bed, and sat on her chest. He put his hand over her mouth to prevent her crying and placed his private parts against hers. There was no penetration. The girl struggled and cried and so the accused desisted and she got up, unchained the door and went out. It was held that the accused was not guilty of attempt to commit rape but of indecent assault. The point of distinction between an offence to commit rape and to commit indecent assault is that there should be some action on the part of the accused which would show that he is just going to have sexual connection with her. In the Bombay case the cries of the girl desisted the accused. In the instant case the appearance of the uncle of the girl stopped him. In the present case, as already stated, the accused only made the girl naked. He did not expose nor attempted to expose his private part. For all these reasons I cannot agree with the learned Additional Sessions Judge that from the challan or the first information report it was undoubtedly a case of an offence to commit rape so as to oust the jurisdiction of the trying Magistrate." After discussing the evidence, the Court came to conclusion that offence will fall under Section 354 IPC. In Ram Pratap v. State of Rajasthan, 2002 Crl. L.J. 1430, the Court held that where apparels worn by the victim were torn, the offence will fall under Section 354 IPC. In Hari Mohapatra and another v. State of Orissa and others, 1996 Crl. In Ram Pratap v. State of Rajasthan, 2002 Crl. L.J. 1430, the Court held that where apparels worn by the victim were torn, the offence will fall under Section 354 IPC. In Hari Mohapatra and another v. State of Orissa and others, 1996 Crl. L.J. 2952, where the accused entered into room, closed the door, molested the victim by squeezing her breast and also tried to open her pant, it was held that offence will fall under Section 354 IPC. This Court in Subash Chander v. State of Haryana, 1983 Recent Criminal Reports 283 held that quite often indecent assaults are magnified into attempts of rape and even more often into rape itself. In the present case prosecutrix had suffered injuries. The Court held that offence will fall under Section 354 IPC. In Jai Chand v. State, 1996(2) Recent Criminal Reports 244, Delhi High Court held that where prosecutrix was forcibly laid on the bed, string of her pajama was broken, underwear was drawn and bite was taken on her cheek, offence will fall under Section 354 IPC, as due to push given by the prosecutrix, the accused left the spot. Therefore, it was held that he was not determined to attempt sexual intercourse. In Shiv Shanker v. State of U.P., 2002 Criminal Law Journal 2673, a Division Bench of Allahabad High Court held as under :- "43. The appellant was also charged with the offence punishable under Section 376 read with 511 I.P.C. The learned Sessions Judge had also convicted and sentenced the appellant under said Sections. But having gone through the evidence on record, we find that the evidence of the prosecution was to the effect that the appellant caught hold of Smt. Usha Devi and made her fall down. There was no sufficient evidence on record to show that the appellant attempted to commit rape on the deceased. The medical evidence also did not indicate any such attempt. The catching hold of the deceased and making her fall down cannot be said an attempt to rape, but it amounted to assault or force used to outrage the modesty of the deceased. Therefore, though there was no sufficient evidence to make out the offence punishable under Section 376 read with 511 I.P.C., we are of the view that conviction of appellant under Section 376/511 I.P.C. Is liable to be converted into conviction under Section 354 I.P.C." 20. Therefore, though there was no sufficient evidence to make out the offence punishable under Section 376 read with 511 I.P.C., we are of the view that conviction of appellant under Section 376/511 I.P.C. Is liable to be converted into conviction under Section 354 I.P.C." 20. In view of various judgments noticed above, the offence in present case will fall under Section 354 IPC and not under Sections 376 read with Section 511 IPC. 21. In the present case, occurrence pertains to the year 1999 and a period of 11 years are going to elapse. Taking into consideration the long protracted trial, this Court has to determine as to what sentence is to be imposed upon the appellant under Section 354 IPC once the appellant has been acquitted for the offence under Section 376 read with Section 511 IPC. 22. Section 354 IPC prescribes maximum sentence of two years. Considering the mental pain and agony of protracted trial, the appellant is sentenced to undergo rigorous imprisonment for nine months for offence under Section 354 IPC. With the observations made above, the present appeal is disposed of.