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2012 DIGILAW 332 (CHH)

VINOD KUMAR SAHU v. STATE OF C. G.

2012-12-14

RADHE SHYAM SHARMA

body2012
JUDGMENT 1. This appeal is directed against judgment dated 27-2-2004 passed by Additional Sessions Judge, Manendragarh District Korea in Sessions Trial No.440/2002. By the impugned judgment, accused persons/appellants Vinod Kumar Sahu and Hemantchand Sahu have been convicted and sentenced in the following manner with a direction to run the sentences concurrently:- Conviction Sentence Under Sections 341 and 341/34 IPC Simple imprisonment for 1 month Under Sections 342 and 342/34 IPC Rigorous imprisonment for 2 months Under Section 376(2)(g) IPC Rigorous imprisonment for 10 years and to pay fine of Rs. 1,000/- each, in default of payment of fine, to further undergo rigorous imprisonment for 5 months 2. Case of the prosecution, in brief, is as under: On 26-3-2002, prosecutrix (PW-4) was returning after attending the examination of class 10lh from Podi Bachara High School to her Village Amka. When she reached near the house of appellant Hemantchand Sahu, both the appellants came and caught her bicycle, due to which, prosecutrix (PW-4) fell down. Thereafter, the appellants took prosecutrix (PW-4) in the house of appellant Hemantchand and closed the door. Appellant Vinod Kumar Sahu removed clothes of prosecutrix (PW-4) and removed his clothes also and thereafter committed sexual intercourse with her. At that time, appellant Hemantchand Sahu gagged mouth of prosecutrix (PW -4) with a piece of cloth and caught her hands. After some time, mother of appellant Hemantchand Sahu came to the house and opened the door, then the appellants fled from there and prosecutrix (PW-4) came out of the house. Prosecutrix (PW-4) met Kamleshwari (PW-8) on the way and narrated the incident to her. She also narrated the incident to her mother Juganbai (PW-5), Sonmati (PW-7) and Fulbasiya (PW-9). She narrated the incident to her father Sadhuram (PW-6) too. Prosecutrix (PW-4) made written complaint (Ex.P-6) to police. On the basis of Ex.P-6, Dehati Nalishi (Ex.P-I0) was recorded under Sections 354, 341 and 342 read with Section 34 IPC. Regular First Information Report (Ex.P-12) was recorded in Police Station Khadganva. Prosecutrix (PW-4) also made written complaint to Superintendent of Police, Korea vide EX.P-7. Prosecutrix (PW4) was sent to Community Health Centre, Manendragarh for medical examination vide EX.P-13. Dr. Smt. N. Yadav Rohan (PW-2) examined prosecutrix (PW4) and gave her report (Ex.P-2), in which, she found healed abrasion over the medial aspect of dorsum of right hand, 1 X 0.5cm with dry scab present in the centre of wound. Prosecutrix (PW4) was sent to Community Health Centre, Manendragarh for medical examination vide EX.P-13. Dr. Smt. N. Yadav Rohan (PW-2) examined prosecutrix (PW4) and gave her report (Ex.P-2), in which, she found healed abrasion over the medial aspect of dorsum of right hand, 1 X 0.5cm with dry scab present in the centre of wound. Prosecutrix (PW-4) was sent for X-Ray examination for determination of age. Dr. Ashish Karan (PW-1) took out X-Ray and gave his report (Ex.P-1), in which, he opined that the age of prosecutrix (PW-4) was between 17-19 years. In further investigation, under garments of prosecutrix (PW-4) were seized vide EX.P-8. Spot map was prepared vide Ex.P-9. Underwear of appellant Hemantchand Sahu was seized vide EX.P-4. Underwear of appellant Vinod Kumar Sahu was seized vide Ex.P-5. Slide of vaginal swab of prosecutrix (PW4) was seized vide EX.P-15. The seized articles were sent to Forensic Science Laboratory, Raipur for examination vide Ex.P-16. After completion of the investigation, charge-sheet was filed against the appellants in the Court of Judicial Magistrate First Class, Manendragarh, who, in turn, committed the case to the Court of Session, Surguja (Ambikapur), from where it was received on transfer by Additional Sessions Judge, Manendragarh, who, conducted the trial and convicted and sentenced the appellants as mentioned above. 3. Shri Pankaj Shrivastava, learned counsel for the appellants argued that the FIR was lodged belatedly. In the written complaint (Ex.P-6) and Dehati Nalishi (Ex.P-10), no allegation has made regarding rape. It is a case of false implication. He further argued that the learned trial Court did not appreciate the evidence on record in the right perspective and unduly attached too much importance to the statement of prosecutrix (PW -4). There are inherent probabilities in the evidence of prosecutrix (PW-4), which make the prosecution case doubtful. This aspect was totally ignored by the learned trial Court. He placed reliance on State Vs. Vicky and others 2012 Cri. L.J. 3904. 4. On the other hand, Shri Vinay Harit, learned Deputy Advocate General and Smt. Madhunisha Singh, learned Panel Lawyer for the State/ respondent, supporting the impugned judgment, submitted that the conviction and sentence awarded by the learned Additional Sessions Judge to the appellants do not warrant any interference by this Court. 5. Having heard rival contentions of the parties, I have perused the record of Sessions Trial No.440/2002 with utmost circumspection. 5. Having heard rival contentions of the parties, I have perused the record of Sessions Trial No.440/2002 with utmost circumspection. The conviction of the appellants is based on the evidence of prosecutrix (PW-4), Juganbai (PW5), Sadhuram (PW-6), Sonmati (PW-7) and Kamleshwari (PW-8). 6. Now, I shall first deal with question of delay in lodging the First Information Report. 7. Prosecutrix (PW-4) deposed that on 26-3-2002, at about 12 Noon, she was returning home from Podi Bachara on her bicycle. As soon as she reached at Sakriya near the house of appellant Hemantchand Sahu, both the appellants told her to stop. She did not stop, then .both the appellants caught her bicycle. She fell down. The appellants took her in the house of appellant Hemantchand Sahu and closed the door. The appellants gagged her mouth with a piece of cloth. Appellant Vinod Kumar Sahu removed her clothes and he removed his .c1othes also. Thereafter, he committed forcible sexual intercourse with her. At that time, appellant Hemantchand Sahu had, gagging her mouth with a piece of cloth, caught her. She further deposed that she narrated the incident to her mother Juganbai (PW-5) and father Sadhuram (PW-6). 8. Prosecutrix (PW-4) deposed that she made written complaint (Ex.P6) to police. On the basis of Ex.P-6, Dehati Nalishi (Ex.P-10) was recorded. ASI Y.N. Bhardwaj (PW-10) deposed that on 27-3-2002, prosecutrix (PW-4) made a written complaint (Ex.P-6). On the basis of Ex.P-6, he had recorded Dehati Nalishi (Ex.P-10). 9. The date and time of the incident is 26-3-2002 at about 12 Noon and the written complaint (Ex.P-6) was made on 27-3-2002. In the written complaint (Ex.P-6), it is mentioned that on the date of incident, the father of prosecutrix (PW -4) had gone to market. He returned home at about 10 PM. When he was going to lodge report in police, Gendlal Sahu, who is father of appellant Vinod Kumar Sahu and who was in drunken state, quarreled with him and also committed marpeet with him. These contents are mentioned in Dehati Nalishi (Ex.P-10) also. Dehati Nalishi (Ex.P-10) was recorded on 273-2002 at about 8:30 AM. 10. Delay in lodging the FIR in rape cases cannot be used as a ritualistic formula for discarding prosecution case and doubting its authenticity. It only puts the Court on guard to search for and consider if any explanation has been offered for the delay. Dehati Nalishi (Ex.P-10) was recorded on 273-2002 at about 8:30 AM. 10. Delay in lodging the FIR in rape cases cannot be used as a ritualistic formula for discarding prosecution case and doubting its authenticity. It only puts the Court on guard to search for and consider if any explanation has been offered for the delay. Once it is offered, the Court is to only see whether it is satisfactory or not. In case, if the prosecution fails to satisfactorily explain the delay and there is possibility of embellishments or exaggerations in the prosecution version on account of such delay, it is relevant factor. On the other hand, satisfactory explanation for the delay is weighty enough to reject the plea of false implication. 11. In Tulshidas Kanolkar Vs. State of Goa (2003) 8 SCC 590 , the Hon'ble Supreme Court observed thus: "5. We shall first deal with the question of delay. The unusual circumstances satisfactorily explained the delay in lodging of the first information report. In any event, delay per se is not a mitigating circumstance for the accused when accusations of rape are involved. Delay in lodging the first information report cannot be used as a ritualistic formula for discarding the prosecution case and doubting its authenticity. It only puts the court on guard to search for and consider if any explanation has been offered for the delay. Once it is offered, the court is to only see whether it is satisfactory or not. In case if the prosecution fails to satisfactorily explain the delay and there is possibility of embellishment or exaggeration in the prosecution version on account of such delay, it is a relevant factor. On the other hand, satisfactory explanation of the delay is weighty enough to reject the plea of false implication or vulnerability of the prosecution case. As the factual scenario shows, the victim was totally unaware of the catastrophe which had befallen her. That being so, the mere delay in lodging of the first information report does not in any way render the prosecution version brittle." 12. In Sohan Singh and another Vs. State of Bihar (2010) 1 SCC 68 , the Hon'ble Supreme Court observed thus: "13. When FIR by a Hindu lady is to be lodged with regard to commission of offence like rape, many questions would obviously crop up for consideration before cine finally decides to lodge the FIR. In Sohan Singh and another Vs. State of Bihar (2010) 1 SCC 68 , the Hon'ble Supreme Court observed thus: "13. When FIR by a Hindu lady is to be lodged with regard to commission of offence like rape, many questions would obviously crop up for consideration before cine finally decides to lodge the FIR. It is difficult to appreciate the plight of the victim who has been criminally assaulted in such a manner. Obviously, the prosecutrix must have also gone through great turmoil and only after giving it a serious thought, must have decided to lodge the FIR. Precisely this appears to be the reason for little delayed FIR. As mentioned hereinabove, the delay has already been found to be properly explained by both the courts below. Thus, we are not required to deal with this issue any more." 13. Mere delay in lodging the FIR cannot be a ground by itself for throwing the entire prosecution case overboard. The Court has to seek an explanation for delay and test the truthfulness and plausibility of the reason assigned. If the delay is explained to the satisfaction of the Court, it cannot be counted against the prosecution. In the instant case, prosecutrix (PW-4) was an unmarried young girl and her father was not present at home at the time of incident. He returned home at about 10 PM, then she narrated the incident to him. 14. Prosecutrix (PW-4) and Sadhuram (PW-6) deposed that on the date of incident, they were going to Police Station for lodging report. Gendlal Sahu, father of appellant Vinod Kumar Sahu, met them. At that time, he was in drunken condition. He started quarrelling with Sadhuram (PW-6) and also committed marpeet with him. Therefore, prosecutrix (PW-4) and Sadhuram (PW-6) could not go to the police station for lodging the report. In the next morning, i.e., on 27-3-2002, at about 8:30 AM, written complaint (Ex.P-6) was lodged by prosecutrix (PW-4). Therefore, the explanation offered by the prosecution for delay in lodging the written complaint (Ex.P-6) and in recording of Dehati Nalishi (Ex.P-I0) is plausible and reliable. 15. Now, I shall examine whether the statement of prosecutrix (PW4) is sufficient to convict the appellants? 16. Prosecutrix (PW-4) deposed that on 26-3-2002, at about 12 Noon, she was returning home from Podi Bachara on her bicycle. 15. Now, I shall examine whether the statement of prosecutrix (PW4) is sufficient to convict the appellants? 16. Prosecutrix (PW-4) deposed that on 26-3-2002, at about 12 Noon, she was returning home from Podi Bachara on her bicycle. As soon as she reached at Sakriya near the house of appellant Hemantchand Sahu, both the appellants told her to stop. She did not stop, then both the appellants caught her bicycle. She fell down. The appellants took her in the house of appellant Hemantchand Sahu and closed the door. The appellants gagged her mouth with a piece of cloth. Appellant Vinod Kumar Sahu removed her clothes and he removed his clothes also. Thereafter, he committed forcible sexual intercourse with her. At that time, appellant Hemantchand Sahu had, gagging her mouth with a piece of cloth, caught her. 17. In Mohd. Imran Khan Vs. State (Govt. of NCT of Delhi 2012 Cri. L.J. 693 (SC)), the Hon'ble Supreme Court observed as follows: "Evidence of Prosecutrix : 15. It is a trite law that a woman, who is the victim of sexual assault, is not an accomplice to the crime but is a victim of another person's lust. The prosecutrix stands at a higher pedestal than an injured witness as she suffers from emotional injury. Therefore, her evidence need not be tested with the same amount of suspicion as that of an accomplice. The Indian Evidence Act, 1872 (hereinafter called 'Evidence Act'), nowhere says that her evidence cannot be accepted unless it is corroborated in material particulars. She is undoubtedly a competent witness under Section 118 of Evidence Act and her evidence must receive the same weight as is attached to an injured in cases of physical violence. The same degree of care and caution must attach in the evaluation of her evidence as in the case of an injured complainant or witness and no more. If the court keeps this in mind and feels satisfied that it can act on the evidence of the prosecutrix, there is no rule of law or practice incorporated in the Evidence Act similar to illustration (b) to Section 114 which requires it to look for corroboration. If for some reason the court is hesitant to place implicit reliance on the testimony of the prosecutrix it may look for evidence which may lend assurance to her testimony short of corroboration required in the case of an accomplice. If for some reason the court is hesitant to place implicit reliance on the testimony of the prosecutrix it may look for evidence which may lend assurance to her testimony short of corroboration required in the case of an accomplice. If the totality of the circumstances appearing on the record of the case disclose that the prosecutrix does not have a strong motive to falsely involve the person charged, the court should ordinarily have no hesitation in accepting her evidence. The court must be alive to its responsibility and the sensitive while dealing with cases' involving sexual molestations. Rape is not merely a physical assault, rather it often distracts the whole personality of the victim. The rapist degrades the very soul of the helpless female and, therefore, the testimony of the prosecutrix must be appreciated in the background of the entire case and in such cases, non-examination even of other witnesses may not be a serious infirmity in the prosecution case, particularly where the witnesses had not seen the commission of the offence. (Vide: State of Maharashtra Vs. Chandra prakash Kewalchand Jain, AIR 1990 SC 658 : (1990 Cri LJ 889); State of UP. Vs. Pappu @ Yunus & Anr., AIR 2005 SC 1248 : (2004 AIR SCW 6563); and Vijay @ Chinee Vs. State of MP., (2010) 8 SCC 191 ): (AIR 2011 SC (Cri) 940 : 2010 AIR SCW 5510). Thus, the law that emerges on the issue is to the effect that statement of prosecutrix, if found to be worthy of credence and reliable, requires no corroboration. The court may convict the accused on the sole testimony of the prosecutrix." 18. Prosecutrix (PW-4) deposed in paragraph 10 of cross-examination that she herself had written the complaint (Ex.P-6) in the police station and it bears signatures of her father Sadhuram (PW -6) and a witness Ashok Kumar Shrivastava also. She further deposed that it is true that when she lodged the written complaint (Ex.P-6) on 27-3-2002, the police had come for investigation and had, at that time, recorded statements of herself and of her father and mother. She further deposed that she sustained injury over her right hand and no any other injury was sustained by her. She further deposed that when she narrated the incident to police, she was asked to submit her complaint in writing. She had not written about her screaming in the complaint. 19. She further deposed that she sustained injury over her right hand and no any other injury was sustained by her. She further deposed that when she narrated the incident to police, she was asked to submit her complaint in writing. She had not written about her screaming in the complaint. 19. Juganbai (PW-5), Sadhuram (PW-6), Sonmati (PW-7) and Kamleshwari (PW-8) deposed that prosecutrix (PW-4) narrated them that the appellants caught her, gagged her mouth and committed sexual intercourse with her. 20. Learned counsel for the appellants submitted that Gendlal Sahu, father of appellant Vinod Kumar Sahu had lodged a report against Sadhuram (PW6), father of the prosecutrix). Therefore, the appellants have been falsely implicated by Sadhuram (PW-6) in the instant case and evidence of prosecutrix (PW-4) is not trustworthy. 21. In Balwant Singh and others Vs. State of Punjab AIR 1987 SC 1080 , the Hon'ble Supreme Court held thus: "14. It is difficult for us to accept the contention of the appellants that because of enmity of the father of the prosecutrix against the appellants, they have been falsely implicated in the case. It may be that litigations are going on between Dalip Singh and the appellants, but it is absurd to suggest that because of the litigations or any enmity that he may have against the appellants, the father of the prosecutrix would falsely involve his daughter in a case of rape by the appellants. On the contrary, the High Court has rightly observed that the appellants, who are debtors, had a common interest to bring disrepute to Dalip Singh, their creditor, by committing rape on his daughter, Kumari Rajwant Kaur (P.W.2). There is, therefore, no substance in the contention of the appellants that they have been falsely implicated in the case on account of the enmity of Dalip Singh against them." 22. In Prithi Chand Vs. State of Himachal Pradesh AIR 1989 SC 702 , the Hon'ble Supreme Court held thus: "9. It was next contended that the appellant was falsely involved due to a long standing enmity between the father of the appellant and the girl's father. The prosecutrix has in her deposition stated that the two families were not on talking or visiting terms, since their relations were strained. It was next contended that the appellant was falsely involved due to a long standing enmity between the father of the appellant and the girl's father. The prosecutrix has in her deposition stated that the two families were not on talking or visiting terms, since their relations were strained. It was suggested in the course of cross-examination that Ratna, the son of PW-8 Phulan Devi was intimate with the prosecutrix and he had raped the girl. In his statement under Section 313 of the Code of Criminal Procedure, he put forth the case that when he returned to his village in the evening, he saw some ladies at the girl's house and heard the girl saying that she was subjected to rape by Ratna. It is not possible to believe that the prosecutrix and her parents would allow the real culprit to escape and falsely involve an innocent person for the commission of the crime. Except for the suggestion made in the cross-examination of PW-8 Phulan Devi, Ratna's mother and the statement under Section 313 of the Code of Criminal Procedure there is no other material on record which can give credence to the suggestion." 23. In Vishnu alias Undrya Vs. State of Maharashtra (2006) 1 SCC 283 , the Hon'ble Supreme Court observed thus: "24. The accused in Section 313 Cr. P.C. statement has completely denied that he had any sexual intercourse with the prosecutrix. Question 19 (p. 154 of the original record) was put to him about the statement of the prosecutrix regarding forcible intercourse with her on the fateful day, to which he replied, "This is false." Question 64 (p. 167 of the original record) was put to him as to whether he wished to say anything more in his defence, to which he replied, "I am innocent and falsely involved in this case." How he was falsely implicated has not been explained." (See also Pramod Mahto and others VS. State of Bihar AIR 1989 SC 1475 ) 24. In the instant case, appellant Vinod Kumar Sahu stated in 313 Cr. P.C. statement that one day prior to the date of incident, Sadhuram (PW-6), Gorelal and Rupnarayan assaulted his father and threw him in a field. His uncle Ambika (brother of his father) came to his house and enquired about his father. Then, he, Ambika, Vinod and Budhlal made search for his father. P.C. statement that one day prior to the date of incident, Sadhuram (PW-6), Gorelal and Rupnarayan assaulted his father and threw him in a field. His uncle Ambika (brother of his father) came to his house and enquired about his father. Then, he, Ambika, Vinod and Budhlal made search for his father. They found his father lying in the field. His father Gendlal Sahu lodged FIR in Police Outpost Podi. His father was sent to Baikunthpur Hospital for medical treatment. Thereafter, Sadhuram (PW-6), to save himself from the case got registered by his father Gendlal Sahu, got the instant case registered against him through his daughter prosecutrix (PW-4) and falsely implicated him. 25. From the evidence of prosecution witnesses, it reveals that some quarrel had taken place between the family members of the appellants and the family members of the prosecutrix (PW-4). Gendlal Sahu, father of appellant Vinod Kumar Sahu had lodged a report in police station prior to lodging of written complaint (Ex.P-6) by prosecutrix (PW-4) and recording of Dehati Nalishi (Ex.P-10). It appears that the report was lodged by Gendlal Sahu to take defence in favour of the appellants. It is not possible to believe that prosecutrix (PW4) and her father Sadhuram (PW-6) would allow the real culprit to escape and falsely involve the appellants. Therefore, the defence taken by the appellants is not acceptable. 26. Now, I shall examine whether the offence under Section 376(2)(g) IPC is made out against the appellants? 27. Prosecutrix (PW-4) deposed that on 26-3-2002, at about 12 Noon, she was returning home from Podi Bachara on her bicycle. As soon as she reached at Sakriya near the house of appellant Hemantchand Sahu, both the appellants told her to stop. She did not stop, then both the appellants caught her bicycle. She fell down. The appellants took her in the house of appellant Hemantchand Sahu and closed the door. The appellants gagged her mouth with a piece of cloth. Appellant Vinod Kumar Sahu removed her clothes and he removed his clothes also. Thereafter, he committed forcible sexual intercourse with her. At that time, appellant Hemantchand Sahu had, gagging her mouth with a piece of cloth, caught her. 28. Prosecutrix (PW-4) deposed that she was sent for medical examination. Dr. The appellants gagged her mouth with a piece of cloth. Appellant Vinod Kumar Sahu removed her clothes and he removed his clothes also. Thereafter, he committed forcible sexual intercourse with her. At that time, appellant Hemantchand Sahu had, gagging her mouth with a piece of cloth, caught her. 28. Prosecutrix (PW-4) deposed that she was sent for medical examination. Dr. Smt. N. Yadav Rohan (PW-2) deposed that she examined prosecutrix (PW4) and gave her report (Ex.P-2), in which, she opined that definite opinion of rape could not be given but attempt of rape was possible on prosecutrix (PW-4). 29. Prosecutrix (PW-4) deposed in paragraph 10 of cross-examination that she herself had written the complaint (Ex.P-6) in the police station and it bears signatures of her father Sadhuram (PW-6) and a witness Ashok Kumar Shrivastava also. She further deposed that it is true that when she lodged the written complaint (Ex.P-6) on 27-3-2002, the police had come for investigation and had, at that time, recorded Statements of herself and of her father and mother. She further deposed that she sustained injury over her right hand and no any other injury was sustained by her. She further deposed that when she narrated the incident to police, she was asked to submit her complaint in writing. She had not written about her screaming in the complaint. Looking to the evidence of Sadhuram (PW-6), it is evident that the written complaint (Ex.P6) was written by prosecutrix (PW-4) herself and she herself admitted that she had written Ex.P-6 in the police station. 30. In written complaint (Ex.P-6) and Dehati Nalishi (Ex.P-10), it is not mentioned regarding committing of sexual intercourse by the appellants with prosecutrix (PW-4). In Ex.P-6, it is mentioned that: ^^fuosnu gS fd fnukad 26-3-2002 dks eSa Ldwy ls vius ?kj tkjh jgh Fkh rc ldfj;k esa 12 cts izHkq ds ?kj ds ikl fouksn vkSj gseUnpUn vks nksuksa esjs lk;dy dks lkeus ls idM+ fy, vkSj eSa fxj xbZ blds ckn og nksuksa esjs dks mBkdj dejs esa ys x;s vkSj gseUrpUn njoktk cUn dj fn;k vkSj fouksn esjs diM+s [kksy fn;k vkSj og esjs Åij ysV x;k vkSj gseUn pUn esjs gkFk dks idM+ fn;k Fkk vkSj eqag esa diM+k Mkyk Fkk blds ckn gseUrpUn dh ek¡ vkdj njoktk [kksyh vkSj og nksuksa Hkkx x;s blds ckn eSa vius ?kj vk xbZA^^ 31. Initially prosecutrix, (PW-4) made written complaint (Ex.P-6) against the appellants. In Ex.P-6, prosecutrix (PW-4) did not disclose entire incident of rape. On 3-4-2002, another written complaint (Ex.P-7) was made by prosecutrix (PW-4) to the Police Superintendent, Korea (Baikunthpur). The case diary statements of Sadhuram (PW-6) and Juganbai (PW-5) were recorded on 27-3-2002. In the case diary statements also, none of them stated that prosecutrix (PW-4) was subjected to rape by the appellants. Subsequently, on 3-4-2002, when, second written complaint (Ex.P-7) was lodged by prosecutrix (PW-4), incident of rape was stated. Therefore, the second• written complaint (Ex.P-7) becomes doubtful. 32. Prosecutrix (PW-4) specifically deposed that both the appellants caught her bicycle, due to which, she fell down. The appellants took her in the house of appellant Hemantchand Sahu and closed the door. The appellants gagged her mouth with a piece of cloth. Appellant Vinod Kumar Sahu removed her clothes and slept over her. Appellant Hemantchand Sahu gagged her mouth and caught her hand. 33. In Koppula Venkat Rao Vs. State of Andhra Pradesh (2004) 3 SCC 602 , the Hon'ble Supreme Court held thus: "10. An attempt to commit an offence is an act, or a series of acts, which leads inevitably to the commission of the offence, unless something, which the doer of the act neither foresaw nor intended, happens to prevent this. An attempt may be described to be an act done in part-execution of a criminal design, amounting to more than mere preparation, but falling short of actual consummation, and, possessing, except for failure to consummate, all the elements of the substantive crime. In other words, an attempt consists in it the intent to commit a crime, falling short of, its actual commission or consummation/completion. It may consequently be defined as that which if not prevented would have resulted in the full consummation of the act attempted. The illustrations given in Section 511 clearly show the legislative intention to make a difference between the cases of a mere preparation and an attempt. 11. In order to. find an accused guilty of an attempt with intent to commit a rape, court has to be satisfied that the accused, 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. 11. In order to. find an accused guilty of an attempt with intent to commit a rape, court has to be satisfied that the accused, 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. Indecent assaults are often magnified into attempts at rape. In order to come to a conclusion that the conduct of the accused was indicative of a determination to gratify his passion at all events, and in spite of all resistance, materials must exist. Surrounding circumstances many time throw beacon light on that aspect. 12. The sine qua non of the offence of rape is penetration, and not ejaculation. Ejaculation without penetration constitutes an attempt to commit rape and not actual rape. Definition of "rape" as contained in Section 375 IPC refers to "sexual intercourse" and the Explanation appended to the section provides that penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape. Intercourse means sexual connection. In the instant case that connections has not been established. Courts below were not correct in their view." 34. In the instant case, from the evidence of prosecutrix (PW-4) it is evident that the appellants caught prosecutrix (PW-4), took her in the house of appellant Hemantchand Sahu, caused her to fall down, appellant Vinod Kumar Sahu removed her clothes, gagged her mouth to prevent her from screaming and slept over her in order to commit rape with her. At that time, appellant Hemantchand Sahu had caught her hands. Prosecutrix (PW-4) stated that when the mother of appellant Hemantchand Sahu arrived there, appellant Vinod Kumar Sahu stood up from her body and both the appellants fled from there. This shows a determined intention on the part of the appellants to commit rape with prosecutrix (PW-4). Had mother of appellant Hemantchand Sahu not come there, both the appellants would certainly have committed rape with prosecutrix (PW-4). Therefore, all these series of acts performed by the appellants with clear cut definite and determined intention to commit rape with the girl clearly amount to attempt of rape. 35. To constitute an offence under Section 376 IPC, sexual intercourse is essential. Intercourse means sexual connection. In the Instant case, that connection has not been established. Therefore, the appellants cannot be convicted under Section 376(2)(g) IPC. 35. To constitute an offence under Section 376 IPC, sexual intercourse is essential. Intercourse means sexual connection. In the Instant case, that connection has not been established. Therefore, the appellants cannot be convicted under Section 376(2)(g) IPC. Their offence is liable to be punished under Section 376/511 IPC. 36. In view of above discussion, it would be appropriate to set aside the conviction of the appellants under Section 376(2)(g) IPC and convict them under Section 376/511 IPC. 37. So far as conviction under Sections 341, 341/34, 342 and 342/34 IPC is concerned, instead thereof, the appellants are convicted under Sections 341/34, 342/34 and 376/511 IPC only. 38. Consequently, the appeal is partly allowed. The conviction and sentence awarded by the trial Court to the appellants under Sections 341, 342 and 376(2)(g) IPC are set aside, but they are convicted under Sections 341/34, 342/34 and 376/511 IPC. The appellants are sentenced with rigorous imprisonment for 5 years for the offence under Section 376/511 IPC. The sentences awarded by the trial Court to them under Sections 341/34 and 342/34 IPC are maintained. Fine of Rs.1,000/- is imposed upon each of the appellants for the offence under Section 376/511 IPC which shall be deposited before the trial Court. In default of payment of fine, they shall be liable to further undergo rigorous imprisonment for 5 months. The appellants shall surrender before the trial Court forthwith to serve the remaining part of jail sentence, if any. Appeal Partly Allowed.