JUDGMENT Hon’ble B.S.Verma, J. (Oral) This Criminal Appeal, U/S 374 of Criminal Procedure Code (in short Cr.P.C.), has been preferred against the judgment and order dated 13-7-2001, passed by 3rd F.T.C./Additional Sessions Judge Haridwar, in S.T.No. 71 of 1999, State Vs. Kala, whereby the accused Kala was found guilty U/S 376 I.P.C. and he was sentenced to undergo R.I. for seven years and to pay a fine of Rs. 1000/- and in default of payment of fine to further undergo three months imprisonment. 2. The prosecution case, in short, is that on 22-8-1998 Baleswar S/o Sukkad R/o Khanpur P.S. Bhagwanpur, District Haridwar handed over a written complaint at P.S. Bhagwanpur to the effect that on 21.8.98 his wife Smt. Santari Devi had gone to attend the natural call and when she was attending the natural call in the sugarcane field of Om Prakash, accused Kala caught hold of her and committed forcible rape upon her. On raising alarm by the victim, Mani Ram and Janeshwar reached there and on seeing these persons the accused fled away from the spot. On reaching her home, the victim narrated the incident to him. On the basis of the written report, Ext. Ka.7 the case crime No. 93/1998 was registered U/S 376 I.P.C. against the accused, copy of G.D. is Ext. Ka.8. S.I. Nanhe Ram Sagar conducted investigation of the case. He prepared site plan Ext. Ka.5 of the place of occurrence and he also took custody of the wearing cloths of Smt. Santari Devi and prepared memo Ext. Ka.1. The victim was medically examined by the doctor. The I.O. after completing the investigation submitted charge sheet Ext. Ka.6 against the accused. 3. The Magistrate concerned committed the case to the court of Sessions for trial. 4. On 16-11-1999, the learned 3rd F.T.C./Addl. Sessions Judge, Haridwar framed charge U/S 376 I.P.C. against the accused, to which he pleaded not guilty and claimed trial after giving the copies to the accused. The prosecution to prove its case has examined P.W.1, Smt. Santari Devi, P.W.2 Baleshwar, P.W.3, Mani Ram, P.W.4, Dr. Urmila Bohra, P.W.5, S.I. Nanhe Ram. 5. The accused in his statement U/S 313 Cr.P.C. denied the prosecution allegation and stated that he has falsely been implicated in the case. In defence, the accused has Hari Chand D.W.1 and also filed certificate issued by Block Development Officer Bhagwanpur. 6. The learned Addl. Urmila Bohra, P.W.5, S.I. Nanhe Ram. 5. The accused in his statement U/S 313 Cr.P.C. denied the prosecution allegation and stated that he has falsely been implicated in the case. In defence, the accused has Hari Chand D.W.1 and also filed certificate issued by Block Development Officer Bhagwanpur. 6. The learned Addl. Sessions Judge after considering the evidence of witnesses and hearing the parties found the accused Kala guilty U/S 376 I.P.C. and accordingly sentenced him. 7. Feeling aggrieved the accused/appellant has preferred this appeal. 8. I have heard learned Amicus Curiae on behalf of appellant and learned Addl. G.A. on behalf of State. 9. Learned Amicus Curiae has contended that to establish rape penetration is essential and not ejaculation. Ejaculation without penetration constitutes an attempt to commit rape and not actual rape. In the instant case the prosecutrix is a married woman and she has nowhere in her statement on oath deposed that the accused had inserted his male organ in to her private part. She has simply stated that the accused had committed rape upon her but she has not stated in specific terms that the accused had inserted his male organ inside her private part and then committed rape upon her. 10. Learned Amicus Cariae in support of his above contentions has relied upon the case of Koppula Venkat Rao vs State of A.P. rendered in criminal Appeal no. 84 of 1998 Decided on 10-3-2004-reported in 2004 (2) ACR 1053(SC). In this cited case the Apex Court has observed that the sine qua non of the offence of rape is penetration, and no ejaculation. Ejaculation without penetration constitutes an attempt to commit rape and not actual rape. Definition of rape as contained in Section 375 I.P.C. 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 and in the above cited case it was found that intercourse has not been established and the courts below were not correct in their view. 11. In the another cited case of Santosh Vs. 11. In the another cited case of Santosh Vs. The State ( N.C.T. of Delhi) passed by Delhi High Court in Criminal Appeal No. 26/2009 decided on 17-2-2011, it has been observed that no evidence had come on record to suggest that appellant had penetrated his male organ into private part of victim/prosecutrix whereas explanation to Section 376 I.P.C. makes it clear that penetration is necessary to constitute sexual intercourse which is requisite for offence of rape. Thus, appellant cannot be held guilty of offence U/S 376 I.P.C. His act would certainly amount to outraging modesty of woman accordingly the appellant was convicted U/S 354 I.P.C. 12. In the case at hand the prosecution allegation against the appellant is that he has committed rape upon Smt. Santari Devi. Now it is to be seen whether the act of accused comes within the purview of Section 376 I.P.C. or not?. The statement of Smt. Santari Devi is important. She has deposed that on 17.5.2000 at about 4 P.M. she had gone for natural call. Her mother in law had gone to take grass from the jungle. When she was attending the natural call in the sugarcane field, accused Kala closed her mouth by wrapping his Tahmad and caught hold of her hand from behind and dragged her. He committed rape upon her. She raised alarm and Janeshwar and Mani Ram reached there and the accused ran away from the spot. From perusal of examination in chief of this witness nowhere she has narrated that the accused inserted his male organ in her private part and penetration was there. In her cross-examination also this witness has not given such type of statement. At page 10 of the statement of this witness answer to court question she has given the statement that Kala had done bad work with her for 5-6 minutes and he had been discharged. By this statement of prosecutrix it does not mean that Kala had inserted his male organ inside her private part and there was penetration. When there was no penetration it cannot said that sexual intercourse was committed by the accused upon the prosecutrix in view explanation to Section 375 I.P.C. The medical evidence also does not prove the offence of rape. P.W.4, Dr. When there was no penetration it cannot said that sexual intercourse was committed by the accused upon the prosecutrix in view explanation to Section 375 I.P.C. The medical evidence also does not prove the offence of rape. P.W.4, Dr. Urmila Bohra had conducted the medical examination of the prosecutrix on 22-8-1998 at 10 p.m. The doctor has stated that there was no injury on the body of prosecutrix, breast were developed, auxiliary and public hair were developed. In internal examination the hymen was torn, vagina was admitting two fingers. On pathology test no spermatozoa dead or alive was found and age of the woman was above 18 years. The doctor has not given definite opinion of commission of rape upon the lady. So far as the eye witness account of the occurrence is concerned, Mani Ram P.W.3 is the eye witness of the occurrence. This witness has supported the statement of Smt. Santari Devi. This witness has deposed that when santari Devi had gone to attend the call of nature there accused Kala caught hold of her and he committed rape upon her and on raising alarm by Santari, he and Janeshwar had gone to the place of occurrence and on seeing them the accused had fled away towards jungle. No reason has been assigned to the prosecutrix as well as eye witness P.W.3, Mani Ram as to why they have given false statement against the accused. The accused Kala is the Jeth, elder brother of husband of Smt. Santari Devi, and this witness would not have deposed falsely against her Jeth. The testimony of these witnesses is reliable and trustworthy that accused Kala had caught hold of Smt. Santari Devi and he tried to commit rape upon her against her will. The accused Kala is the Jeth, elder brother of husband of Smt. Santari Devi, and this witness would not have deposed falsely against her Jeth. The testimony of these witnesses is reliable and trustworthy that accused Kala had caught hold of Smt. Santari Devi and he tried to commit rape upon her against her will. Since this fact has not come specific terms in the deposition of Smt. Santari Devi that the accused Kala had inserted his male organ in her private part and there was penetration and the only statement of this witness is that the accused has done bad work with her and at some time she stated that he committed rape upon her but the statement of the prosecutirx is not sufficient to constitute the offence of Section 376 I.P.C. until she narrates that there was penetration done by the accused after inserting his male organ in her private part, and the act done by the accused is covered U/S 511 I.P.C. he has attempted to commit rape upon the prosecutrix. 13. Thus the accused appellant Kala is convicted for an offence punishable U/S 376 I.P.C. read with Section 511 I.P.C. The punishment U/S 376 I.P.C. is minimum 10 years and a sentence of five years U/S 376 read with Section 511 I.P.C. would meet the ends of justice. 14. The appeal is partly allowed. The impugned judgment and order passed by learned Sessions Judge is modified to the extent that the accused/appellant Kala is not held guilty U/S 376 I.P.C. but he is held guilty for an offence punishable U/S 376/511 I.P.C. His conviction and sentence awarded U/S 376 I.P.C. is set aside and he is sentenced to undergo five years R.I. U/S 376/511 I.P.C. 15. He is on bail. His bail bonds are cancelled and sureties discharged. He shall be taken into custody forthwith to serve out the sentence passed against him. 16. Let the L.C.R. be returned to the trial court for compliance.