JUDGMENT Surinder Singh, J. The appellant felt aggrieved by the judgment of conviction passed by the learned Additional Sessions Judge in Sessions trial No.4 of 2010 decided on 16.4.2012 for attempted rape on a female child aged about 9 years studying in 4th standard, whereby he has been sentenced to undergo rigorous imprisonment for a period of five years and to pay a fine of `.10,000/- with default clause. The fine amount after its realisation has been ordered to be paid to the prosecutrix, as compensation. 2. In short the prosecution story as unfolded by the prosecution witnesses can be stated thus. On 18th September, 2009, at about 6 p.m., PW2 Banti Devi mother of the prosecutrix had sent her to bring goats from the fields. The appellant hereinafter to be referred as the accused at that time was standing at a boulder. He allured the prosecutrix to take a corncob. When the prosecutrix reached near the accused, he laid her on the ground, removed her Salwar and also his underwear. When the prosecutrix asked as to what he was doing, he gagged her mouth and is alleged to have done bad act (GALAT KAAM). The prosecutrix picked up her Salwar and ran towards her home. Her mother (PW2) was milking the cow. She asked the prosecutrix to light the fire in the hearth, but she did not do so due to acute pain in her body. When PW2 came there and saw that the prosecutrix had not obeyed her direction, she started abusing her and asked the reason for lighting the fire. Then prosecutrix narrated the entire story to her. Thereafter PW2 called her son PW3 Neem Chand, in the meantime, she gave bath to her daughter and waited for other members of the family to come. (ii) Thereafter the matter was reported to the police on 20.9.2009 in terms of FIR Ext.PW1/A by the prosecutrix accompanied by her brother Neem Chand aforesaid. (iii) Police got her medically examined from PW5 Dr. Anupama Sharma. She found that the vitals of the prosecutrix were stable. Menarche, Thelarche and Pubarche all were found absent. There was no injury on her body, hymen was found intact and there was no inflammation and anus was also normal. For skeletal age, she was referred to the Radiologist. (iii) Police got her medically examined from PW5 Dr. Anupama Sharma. She found that the vitals of the prosecutrix were stable. Menarche, Thelarche and Pubarche all were found absent. There was no injury on her body, hymen was found intact and there was no inflammation and anus was also normal. For skeletal age, she was referred to the Radiologist. On the basis of epiphysis of bone, she was opined to be less than 9 years of age (Ext.PW5/C). (iv) The Doctor took into possession her Shirt Ext.P1 and Salwar Ext.P2 which were worn by her and sealed. She also took swabs of the secretions around hymen. All these articles were sealed and handed over to the police for forensic examination and issued Medico Legal Certificate Ext.PW5/B. Doctor did not find anything suggestive to sexual intercourse. (v) PW9 Inspector/ SHO Jagdish Chand conducted the investigation. He visited the spot and prepared the site plan Ext.PW9/A of the place of alleged incident. He also obtained the birth certificate Ext.PW8/B and the abstract of birth register Ext.PW6/C from the Panchayat concerned. Accused was arrested and for further investigation the file was handed over to PW12 ASI Raghuvir. (vi) During the interrogation of the accused by PW12 aforesaid, he had handed over his underwear Ext.P3 to the police, which was also sealed and sent for forensic examination. The accused was also subject to the medical examination, which was conducted by PW6 Dr. Vivek Moudgil. He found him fit to perform sexual intercourse and issued MLC Ext.PW6/B (vii) The articles aforesaid were sent for the forensic examination and report of the FSL is Ext.PW10/B. The blood and semen were not detected on the wearing apparels of the prosecutrix and the underwear of the accused. 3. Initially, the FIR was lodged under Section 376 of the Indian Penal Code, but on getting the medical reports and opinion, the police concluded it to be a case of attempted rape, as such challan was presented for the offences punishable under Section 376 read with Section 511 of the Indian Penal Code. 4. The accused was accordingly put on trial for the attempted rape. He pleaded not guilty to the charge and claimed trial. Prosecution examined its witnesses and the appellant was also examined under Section 313 of the Code of Criminal Procedure. His case was denial simplictior. 4. The accused was accordingly put on trial for the attempted rape. He pleaded not guilty to the charge and claimed trial. Prosecution examined its witnesses and the appellant was also examined under Section 313 of the Code of Criminal Procedure. His case was denial simplictior. When called upon to enter into his defence, he examined Sant Ram as DW1. He stated that on 18.9.2009, he was grazing his goats in the jungle, at that time he had dialled the Mobile number of Neem Chand and the prosecutrix talked to her brother, but surprisingly, no suggestion to this fact was put to PW3 Neem Chand at the time of cross-examination and he also did not say as to what she stated on phone to her brother. 5. The learned trial Court disbelieved the aforesaid defence as also his false implication as alleged and at the end of trial, he was convicted and sentenced the accused, as aforesaid. Feeling aggrieved, the accused preferred the present appeal. 6. Shri Shrawan Dogra, learned counsel for the accused vehemently argued that the statement of the prosecutrix is not coherent. It requires in depth and meticulous examination for the reasons that the mother of the prosecutrix was not having good terms with the accused. The other evidence of the prosecutrix is quite shaky as in cross-examination the prosecutrix admitted that she was told outside the Court what she was to state in the Court and there was contradiction in the statement of PW2 Banti Devi, her mother, as according to her, she was crying and did not lit the fire, whereas this fact of crying was not stated by the prosecutrix and further referred to her cross-examination whereby she admitted that the accused had purchased the land from Pritmo and Devi Ram jointly, which could be the cause for filing a false case and further that the accused had quarrelled with her mother-in-law. The learned counsel further argued that one of the elder sister of the prosecutrix was admittedly an unmarried mother of a minor child, who had been provided two biswa of land by one Dhanwant and once Shri Lekh Raj had stayed in her house, where he consumed the liquor and pushed the door of her daughter, resulting into scuffle and a case of eve teasing against him. These facts according to the learned counsel if seen together in the light of medical evidence are enough to conclude that the accused was framed in a false case. 7. Shri P.M. Negi, learned Deputy Advocate General while supporting the impugned judgment of conviction and sentence submitted that the prosecutrix, though a child, was able to discern between right and wrong as observed by the learned trial Court. She fully understood the implication of what she was saying and faced the stiff cross-examination very well. She did not mince any word while narrating the incident. Her testimony being a child cannot be doubted as it being satisfactory and worth inspiring confidence also duly corroborated by her mother and brother Neem Chand. He admitted that the medical evidence did not show any complete and partial penetration, but according to Shri Negi, the accused had crossed the limit of preparation and had gone beyond that, but some how could not complete the offence of rape. It is also argued that neither any sworn enmity is proved nor the previous incident cited could make any dent. It is also submitted that an allegation which mars the future of a female child is never levelled by any parent. Therefore, no fault can be found in the impugned judgment on any ground. 8. I have given my thoughtful consideration to the rival contentions of the parties and have carefully and cautiously reappraised and scanned the evidence on record. 9. The perusal of the record shows that before recording the statement of the prosecutrix, the learned trial Court had recorded his opinion after putting certain questions to her whether she understood the duty of speaking the truth and recorded her statement on oath when he was satisfied that she understood its sanctity. 10. Though there is every scope to tutor a child, but it cannot alone be a ground to come to this conclusion, for that the testimony of the child as a whole has to be seen whether he/she has been tutored or not, which could only be ascertained by examining the evidence and the contents thereof to find out the traces of tutoring, if the statement of the child is corroborated in material particulars appearing on record, his/her evidence will be of a great value to substantiate the charge. 11. 11. I am aware that the evidence of a child witness must be evaluated more carefully and with greater circumspection because a child is susceptible to be swayed by what others tell him and thus a child witness is an easy prey to tutoring. But on the scrutiny of the statement of the prosecutrix, this possibility is completely ruled out. 12. Though the prosecutrix had stated that she was told outside the Court to what she was to speak in the Court, but in her further cross-examination, she completely denied that she was told to make the statement in the Court as per the story propounded. She, without mincing any word corroborated the version initially given by her in the FIR. She also testified that the accused called her to take a corncob. When she went there, the accused opened her Salwar and his underwear as well and laid upon her. He also testified that while opening the Salwar, she had asked as to what he was doing but whatever the accused had done, in her words, was a ‘bad act’ (Galat Kaam). Thereafter he fled away. She stated that she returned to her house, her mother was milking the cow. She asked her to lit the fire in the kitchen, but as she was suffering pain in her body, she could not do it. She was scolded by her mother, then she narrated about the entire incident to her. Thereafter her mother gave her bath and took her to the bed. PW3 Neem Chand was called. PW2 corroborated the story of the prosecutrix in material particulars and statement of PW3 Neem Chand lent strength to it. He testified that he was informed by his mother that the accused had committed something bad with the prosecutrix. 13. PW2 Banti Devi and PW3 Neem Chand both were cross-examined at length by the defence. Banti Devi stated that besides two sons, she had five daughters, her elder daughter is an unmarried mother of a child and two biswa of land was given by Dhanwant. According to PW3 they had paid for the said land to Dhanwant. PW2 also stated that once Lekh Raj stayed in her house and after consuming liquor, he pushed the door of her daughter, which led to the scuffle and the allegation of eve teasing was made against him. She also admitted that accused quarrelled with her mother-in-law. According to PW3 they had paid for the said land to Dhanwant. PW2 also stated that once Lekh Raj stayed in her house and after consuming liquor, he pushed the door of her daughter, which led to the scuffle and the allegation of eve teasing was made against him. She also admitted that accused quarrelled with her mother-in-law. These previous incidents and also that one of the daughters of PW2 has been an unmarried mother, according to the learned Counsel are the factors which weigh against the prosecution, are devoid of any merit and has no bearing with this case. Even PW3 Neem Chand specifically denied that there had been any dispute regarding the land with accused. He also denied having tutored the prosecutrix to make a particular story against the accused in the Court and also that the FIR was result of deliberations. Further PW4 Prakash Chand stated that he had visited the house of the prosecutrix. On being asked, she told him that she was called by the accused. At that time, she was lying in the bed, to him she appeared to be ill, which corroborates the fact of the condition of the prosecutrix. She also did not say that she was raped. Even PW5 Dr. Anupama Sharma and the forensic reports, negates the sexual intercourse with the prosecutrix. 14. On the critical examination of the evidence aforesaid, I do not find any embellishment, exaggeration or inconsistency in the statement of the prosecutrix, but she is found to be able to discern between ight and wrong when examined in the Court. She faced the stiff cross-examination very well. Her testimony is supported by the statement of her mother and brother in material particulars, which does not smack of any tutoring. The prosecution has been able to prove from the above evidence that the accused had gone beyond the stage of preparation as not only he put off the trouser of the prosecutrix, but also had taken out his own underwear and laid upon her. Because of her tender age, she could not repel his advances, but she questioned him about his deed. She left her and escaped. When the prosecutrix reached home, she narrated the incident to her mother and was given bath. Her clothes were changed. When the other members of the family came, she was in the bed. Because of her tender age, she could not repel his advances, but she questioned him about his deed. She left her and escaped. When the prosecutrix reached home, she narrated the incident to her mother and was given bath. Her clothes were changed. When the other members of the family came, she was in the bed. All these established facts show that the accused had the determination to gratify his passion. 15. The contention of the learned counsel for the accused that this case was because of a rivalry between the mother of the prosecutrix and the accused is not appealing as no one would involve his/her unmarried daughter of a tender age putting at stake her future and the reputation of the family. Thus, I do not find any fault in the conviction of the accused. 16. For the offence charged, once the accused has been held guilty for attempted rape on a minor child of nine years, the minimum sentence is half of the prescribed as the minimum sentence for rape on a child of less than 12 years is 10 years, but it can be reduced for the special reasons in view of explanation-II of Section 376 of the Indian Penal Code. 17. The learned Counsel for the accused prayed for leniency in sentence keeping in view the advanced old age. The perusal of the record shows that at the time of framing of the charge, he was 70 years and on the date of incident about 69 years, and now about 72 years. There should have no reason for the accused to be so lustful and passionate because of his old age and yield to his base instinct. Be that as it may. Keeping in view the extenuating and mitigating circumstances and also the old age of the accused, the custodial sentence for a longer period in this age would finish his life, therefore, while maintaining the conviction for the alleged rape, the appeal is partly allowed by reducing the custodial sentence to one year rigorous imprisonment without disturbing the fine. 18. The accused is serving the sentence, modified jail warrants be sent by the learned trial Court to the Superintendent of the concerned jail. 19. Send down the records of the trial court forthwith.