JUDGMENT N. ANANDA, J.—The State has filed this appeal against acquittal of respondent (hereinafter referred to as accused) for an offence punishable under Section 376 IPC. 2. We have heard Sri N.S. Sampangiramaiah, learned HCGP and Sri. G.M. Ananda, learned Counsel for accused. We have been taken through the evidence and the impugned judgment. 3. In brief, the case of prosecution and inter-se relationship of some of the prosecution witnesses may be stated thus: P.W. 2. P.M. Arunkumar and P.W. 4. Laxmi are the parents of victim girl (aged about 3 years at the time of incident). They are the residents of Tyagaraja Colony in Madikeri Town. The accused was their neighbour. P.W. 2 was working in rice mill at Madikeri. P.W. 4 was working as a maid servant. The victim is their second child. At the relevant time. P.W. 4 used to leave victim in Anganavadi before going to household work. She used to keep food for her daughter (victim) in the neighbouring house. P.W. 4, after completing her work as maid servant in different houses used to return home during afternoon. On 24.2.2004 at about 2.30 p.m., when victim was near her house accused induced her to give sweets and took her to his house and committed rape on her. The victim ran out of the house of accused and she was crying. In the meanwhile, P.W. 4 returned home and questioned victim as to why she was crying. The victim narrated to her mother (P.W. 4) that accused had taken her to his house and did something on her private part. She felt paining and, therefore, she ran out of the house of accused. P.W. 4 saw accused moving out of his house. When questioned by P.W. 4, accused avoided to answer her and left that place. P.W. 4 informed the matter to her husband (P.W. 2), who lodged first information against accused and set the law into motion. The victim was subjected to medical examination. Her clothes were seized by the Investigating Officer. Accused was arrested and he was subjected to medical examination. His clothes were also seized and the incriminating articles were sent to F.S.L. The police visited the place, prepared spot inspection report and recorded the statements of witnesses and on completion of investigation, submitted the final report against accused for an offence punishable under Section 376 IPC. 4. On behalf of prosecution, P.Ws. His clothes were also seized and the incriminating articles were sent to F.S.L. The police visited the place, prepared spot inspection report and recorded the statements of witnesses and on completion of investigation, submitted the final report against accused for an offence punishable under Section 376 IPC. 4. On behalf of prosecution, P.Ws. 1 to 19 were examined and documents as per Exs.P-1 to P-19 and material object as per M.O.1 were marked. The contradictory portion of statement of P.W. 4 recorded under 161 Cr.P.C. were marked as Exs. D-1 and D-2. 5. After examination of accused under 313 Cr.P.C, accused had filed a written statement contending that there were disputes between accused and P.W. 2. At the relevant time he was working as a timber merchant. Therefore, the Investigating Officer also bore grudge against accused. On 24.2.2004, accused had gone to Kushalnagar in connection with his timber business and returned home only alter 7.00 p.m. Thereafter, at about 8.30 p.m. two police constables came to his house and took him to the police station. 6. The learned trial judge on appreciation of evidence and on hearing the learned Counsel for parties acquitted the accused by assigning following reasons:(i) the independent post occurrence witnesses have not supported the case of prosecution. (ii) there was delay in production of accused before the jurisdictional Magistrate. (iii) the evidence given by parents of victim is discrepant. (iv) the medical evidence does not indicate that victim was subjected to rape. 7. Before adverting to the post occurrence witnesses evidence given by parents of victim, we will refer to medical evidence given by P.W. 12 Dr. Umadevi. P.W. 12 has deposed: that on 24.2.2004 at about 7.40 p.m.., victim (girl aged about 3 years) was brought by her mother (P.W. 4) with the history of rape. On examination, she found there was mild abrasion and induration over the labem majora. She had given medical certificate as per Ex.P-12, which reveals that there was some discharge on the vaginal wall. P.W. 12 collected discharge and sent it for F.S.L. P.W. 12, considering the absence of seminal stains on private parts of victim opined that there was no incident of rape on victim. 8. In our considered opinion, the opinion furnished by P.W. 12 is not supported by reasons. P.W. 12 collected discharge and sent it for F.S.L. P.W. 12, considering the absence of seminal stains on private parts of victim opined that there was no incident of rape on victim. 8. In our considered opinion, the opinion furnished by P.W. 12 is not supported by reasons. P.W. 12 had noticed that there was an abrasion and induration over labem majora and discharge on vaginal wall. During cross-examination, P.W. 12 has admitted that mild induration could be caused by fingers, nail or any other foreign objects. During cross-examination. P.W. 12 has stated that discharge found on vaginal wall is normal physical discharge. In our considered opinion, the answer given by P.W. 12 that abrasion and induration of labem majora can be caused by fingers, nails and other foreign objects is totally hypothetical. The victim was aged about 3 years. It cannot be said that victim had introduced foreign objects into her vagina to cause above injuries. The evidence of P.W. 12 that discharge found on walls of vagina of victim was normal physical discharge cannot be accepted as the victim was aged about three years. It appears, P.W. 12 was inclined to give a negative medical opinion. Therefore, we are of the considered opinion that victim was subjected to sexual violence. 9. The next point for determination is whether accused had sexually assaulted the victim. P.W. 4, Laxmi is the mother of victim. P.W. 4 has deposed;- that on the date of incident at about 8.30 p.m. when she returned home, she saw her daughter (victim) coming out of the house of the accused and she was crying. At that time accused was alone in the house. The wife of accused had gone to coolie work. P.W. 4 questioned her daughter (victim), she told P.W. 4 that accused removed her clothes and also her under garments and laid on her and accused inserted his private part into the private part of victim. The victim complained of pain on her private part and also complained of stomach pain. P.W. 4 observed some sticky stains on under garments of victim. The neighbours who were present at that time, advised P.W. 4 to take victim to the hospital. P.Ws. 2 and 4 took the victim to the Government Hospital at Madikeri. The Doctor, on examination of victim, asked P.W. 4 to bring the undergarments of victim. P.W. 4 observed some sticky stains on under garments of victim. The neighbours who were present at that time, advised P.W. 4 to take victim to the hospital. P.Ws. 2 and 4 took the victim to the Government Hospital at Madikeri. The Doctor, on examination of victim, asked P.W. 4 to bring the undergarments of victim. P.W. 2 the father of victim produced the undergarments of victim before the Doctor on the same day at about 8.30 p.m. During cross-examination, P.W. 4 has admitted that accused was residing in their adjacent house since about 3 to 4 years. About 1 or 1½ years before the date of incident, accused got married. After learning the incident from victim, P.W. 4 questioned accused whether he had done anything to victim. Accused saying that he had not done anything locked his house and went away. P.W. 4 and her neighbours used to collect water from the public tap situate by the side of the house of accused. About 2 months prior to the incident, accused obstructed the path way by putting a fence. The neighbours had given a complaint to the Town Municipality against accused. P.Ws. 2 and 4 were not visiting the house of accused and so also accused was not visiting the house of P.Ws. 2 and 4. P.W. 4 has denied the suggestion that she had given a false evidence against accused due to previous enmity. 10. P.W. 2 is the father of victim. P.W. 2 has deposed that on the date of incident at about 6.00 p.m., when he was working in the rice mill, P.W. 4 came to the mill and told P.W. 4 that accused had committed rape on victim and the victim was complaining of pain on her private part. The victim told P.W. 2 that accused removed his undergarments and garments of victim and tried to insert his private part into the private part of victim. P.Ws. 2 and 4 took the victim to the District Hospital at Madikeri. The medical officer examined the victim at about 7.00 p.m., and on the same day, P.W. 2 lodged first information with Madikeri Town police. On the next day, the police visited the place of inspection, prepared spot inspection report. P.W. 2 produced the frock and undergarment, half trousers of victim. During cross-examination, P.W. 2 has denied the suggestion that he had enmity against accused. On the next day, the police visited the place of inspection, prepared spot inspection report. P.W. 2 produced the frock and undergarment, half trousers of victim. During cross-examination, P.W. 2 has denied the suggestion that he had enmity against accused. P.W. 2 has admitted that P.W. 2 and others had lodged complaint against the accused stating that he had killed a street dog and that was about 2 months prior to the incident in question. P.W. 2 has deposed that accused and P.W. 2 were not in good terms before the incident. P.W. 2 has deposed that accused wanted to marry the younger sister of P.W. 4. Accused had tried to assault the mother-in-law of P.W. 2 and this had happened 7 months prior to the date of incident. 11. Thus, we find that there was no cordiality between accused and P.Ws. 2 and 4. As already stated the victim was aged about 3 years at the time of incident. As per evidence of P.W. 13, the victim was born on 16.3.2001. The copy of birth certificate of victim reveals that the victim was born on 16.3.2001. The incident took place on 24.2.2004. Thus, as on the date of incident, victim was less than three years of age. This fact has not been controverted by the accused. Due to the tender age, the victim was not able to clearly communicate as to what was done to her by the accused. Even she was not capable of understanding as to what had been done to her by the accused. The victim in the manner she had understood the incident had narrated the same to her parents. The victim was aged about 3 years. She did not have any grudge or enmity against accused to pin point at the accused. Therefore, the evidence of parents of victim does not suffer from any discrepancy. Soon after noticing the plight of their daughter, her mother took her to the hospital. Her father had lodged first information. The medical examination by P.W. 2 and the contents of wound certificate as per Ex.P-12 would reveal that there was an abrasion and in duration over the labem majora and discharge on the walls of vagina of victim. The medical examination of victim would reveal that she had been sexually assaulted. 12. The learned Counsel for accused would submit that injuries could be due to pathological disease. The medical examination of victim would reveal that she had been sexually assaulted. 12. The learned Counsel for accused would submit that injuries could be due to pathological disease. We cannot accept this submission because the evidence adduced by the prosecution cannot be read in isolation. There was not only in duration of labem majora, there was also an abrasion. There was discharge on the wall of vagina. These facts are clearly indicated in the wound certificate. P.W. 12. Dr. Umadevi has deposed these facts. The contention of the defence that accused was falsely implicated by P.Ws. 2 and 4 has no basis. P.Ws. 2 and 4 are the parents of victim. They did not bear grudge or enmity against accused though they were not in talking or visiting terms with accused. Even if there was enmity between accused and P.Ws. 2 and 4, it is hardly possible to conceive that P.Ws. 2 and 4 would concoct a case of rape against accused that too by projecting their innocent daughter, aged about 3 years as the victim of rape. P.Ws. 2 and 4 have deposed about the plight of the victim immediately after the occurrence. Their evidence is also supported by the medical evidence. 13. In the circumstances, there are no reasons to suspect the evidence of P.Ws. 2 and 4. It is true that the immediate post occurrence witnesses namely, P.Ws. 5, 6 and 7 have not supported the case of the prosecution. They were declared as hostile witnesses but that cannot be a ground to discard the consistent and credible evidence given by the parents of victim. The learned trial Judge has ignored the medical evidence. The learned trial Judge has not considered the background of P.Ws. 2 and 4 and has failed to notice that P.Ws. 2 and 4 had no reasons to concoct a case of rape against accused that too by projecting their daughter (girl aged about 3 years) as the victim of rape. The learned trial Judge has failed to notice that P.Ws. 2 and 4 being the parents of victim would be least disposed to project their daughter (girl aged about 3 years) as a victim of rape and subject her to humiliation. The contents of FSL report indicate that seminal stains were found on the half trousers of the victim. 14. The learned trial Judge has failed to notice that P.Ws. 2 and 4 being the parents of victim would be least disposed to project their daughter (girl aged about 3 years) as a victim of rape and subject her to humiliation. The contents of FSL report indicate that seminal stains were found on the half trousers of the victim. 14. In the written statement filed by the accused after he was examined under section 313 Cr.P.C, the accused has stated that on the date of incident, he was not in town. He had gone to Kushalnagar in relation to timber business. He returned home at about 7.00 p.m. After sometime, two police constables came and arrested him, in a way accused had pleaded alibi. 15. As could be seen from the order sheet maintained by the trial Court, the accused pleaded his indigency to engage an advocate. Therefore, a Standing Counsel was appointed by the trial Court. In this appeal also the accused had pleaded his indigency to engage an advocate. Therefore, Sri B. Anand, learned Counsel was appointed as the Counsel by the High Court Legal Aid Committee to defend accused. The accused having pleaded indigency to appoint an advocate to defend has come out with a story that he was timber merchant and on the date of incident he had gone to Kushalnagar for timber business. When the accused was carrying timber business, the Investigating Officer had enmity against accused. The accused has not produced any material to show that he was carrying on business in timber. The statement filed by the accused that he was in Kushalnagar at the time of incident and he returned back at about. 7.00 p.m. is an after thought. The accused in order to wriggle out from the case has filed written statement to put forth false plea of alibi. This would also provide an additional circumstance against accused. 16. The learned trial Judge by holding that the independent post occurrence witnesses have not supported the case of the prosecution has discarded the evidence of the parents of victim. The learned trial Judge has failed to notice the injuries found on the private parts of the victim so also the stains found on the vaginal wall of victim. The learned trial Judge has discarded the contents of F.S.L report by assigning untenable reasons. Therefore, we cannot sustain the impugned judgment. 17. The learned trial Judge has failed to notice the injuries found on the private parts of the victim so also the stains found on the vaginal wall of victim. The learned trial Judge has discarded the contents of F.S.L report by assigning untenable reasons. Therefore, we cannot sustain the impugned judgment. 17. The next point for determination is whether the accused had committed rape or he had attempted to commit rape. In the discussion made supra, we have narrated the injuries found on the victim. Due to incomplete medical evidence, we hold that accused had attempted to commit rape on victim. The learned Counsel for accused submits that accused is a married person. He has wife and children to care for. He does not bear any criminal antecedents and pleads leniency in the matter of sentence. 18. The learned Government Pleader submits that accused had committed rape on victim. However, due to incomplete medical evidence, accused has been held guilty of an attempt of rape. Therefore, no leniency is called for in the matter of sentence under Section 376(2)(f) IPC. The offence of rape committed against victim of less than 12 years age is punishable with minimum imprisonment for a period of 10 years. In the case on hand, we have held the accused guilty of an offence punishable under Section 376(2)(f) read with 511 IPC. Therefore, we deem it proper to sentence the accused to undergo imprisonment for a period of five years and pay fine of Rs. 10,000/- in default to undergo simple imprisonment for a period of six months. 19. In the result, we pass the following: The appeal is accepted in part. The impugned judgment is modified. The acquittal of accused under Section 376 is confirmed. The accused is convicted for an offence punishable under Section 376(2)(f) read with 511 IPC. The accused is sentenced to undergo rigorous imprisonment for a period of five years and pay fine of Rs. 10,000/- in default to undergo simple imprisonment for a period of six months. The period of detention undergone by accused dining trial and during the pendency of appeal is given set off as provided under Section 428 Cr.P.C. We appreciate the assistance rendered by Sri G.M. Anand, learned Counsel appointed by the High Court Legal Aid Committee.