Judgment Sudhanshu Dhulia, J. 1. This Criminal Appeal arises out of an order of the trial court dated 24.5.2001 passed by the learned Additional Sessions Judge, Second Fast Track Court, Dehradun in Sessions Trial No. 133 of 1999 convicting the present appellant under Section 376/511 IPC i.e. attempt to rape a 11 years old girl and consequently sentencing him to 10 years of rigorous imprisonment with a fine of Rs. 8,000/- and one year’s further imprisonment on default in the payment of fine. 2. The prosecutrix belongs to Nepalese family. Since her mother had turned insane, her father left her in care of her uncle and aunt and left for Nepal, a few year back. The accused Nirmal Singh is the maternal uncle of Kumari Rekha and was working as a class IV employee in Indian Military Academy, Dehradun (for short, “IMA”) and used to reside in the IMA campus. The accused and his wife have four children of their own aged about 12, 10, 8 and 4 years, respectively. The prosecutrix, as referred above, resided with them in their house for the last few years. She used to study in class V in a nearby primary school at Panditbari, Dehradun. When she did not report for her classes on 9.9.1999, her class teacher namely Smt. Dinesh who was the Principal in charge of the school, on the relevant day sent another girl of the same class Kumari Archana Rawat to fetch the prosecutrix and after a few minutes Kumari Archna Rawat and the prosecutrix arrived at the school campus and thereafter on being questioned by the class teacher as to why she had remained absent for the last two days, the prosecutrix started weeping. At this, the class teacher summoned other teachers of the school and all of them in private asked the girl the reason, as to why she is crying. Then the girl replied that her “mama” (maternal uncle) had done some obscene act with her on the night of 3.9.1999 and then again on 7.9.1999. Since the primary school comes under the jurisdiction of “Gram Pradhan” and it being a village area the class teacher went to the “Gram Pradhan” of Village Panchayat Panditbari, Dehradun and on dictation of the “Gram Pradhan” a First Information Report was lodged under Section 376 IPC at police station Cantt, Dehradun. Consequently, the accused was arrested. Since the primary school comes under the jurisdiction of “Gram Pradhan” and it being a village area the class teacher went to the “Gram Pradhan” of Village Panchayat Panditbari, Dehradun and on dictation of the “Gram Pradhan” a First Information Report was lodged under Section 376 IPC at police station Cantt, Dehradun. Consequently, the accused was arrested. A chargesheet was filed by the police and subsequently the matter was committed to the sessions for trial. 3. After framing of the charges the trial commenced against the appellant. The prosecution in support of its case examined as many as seven witnesses. 4. Kumari Rekha i.e. the prosecutrix was medically examined on 9.9.1999 at 9:30 PM at District Women Hospital, Dehradun by a lady doctor namely Renu Negi and the opinion was that the girl was fully conscious, axillary and pubic hair had not yet erupted, breasts were small and just started developing and there was no mark of any injury on her body. The medical report further states that her hymen was not torn and there was no bleeding, about 2 MM linear laceration was noticed at lower part in midline of vaginal orifice and that the vagina admits little finger with difficulty, vaginal swab was taken and sent for histopathology. No definite opinion of rape was given. The girl was also sent for X-ray examination. After X-ray examination the opinion of the doctor was given that the girl is above 10 years and below 12 years of age. Pathological report regarding spermatazoa was found negative. 5. Let us first and foremost examine the statement given by the prosecutrix herself as P.W. 2. Her statement was recorded in the Court on 6.4.2000. In her examination in chief, the Presiding Officer had first asked her few questions in order to confirm whether the witness is fit for deposition or not and after being confirmed that she is fit for deposition further questions were put to her. The prosecutrix states that her age at present (at the time of giving statement) is 12 years and she recognise the accused namely Nirmal Singh and that he is her “mama” i.e. maternal uncle. She further states that the incident is of 3.9.1999 while she was residing in the house of her “mama” i.e. the accused. The prosecutrix states that her age at present (at the time of giving statement) is 12 years and she recognise the accused namely Nirmal Singh and that he is her “mama” i.e. maternal uncle. She further states that the incident is of 3.9.1999 while she was residing in the house of her “mama” i.e. the accused. Her “mami” (maternal aunt) had gone to her parents’ house and at that time in the house there were the accused and his two children namely Amit and Sumit. Her “mama” came in the night at 10 O’clock after his duties. Prosecutrix was asked to switch off the lights and to close the door. Thereafter her “mama” i.e. the appellant asked her to lie down, which she did. After that her “mama” took off his underwear and then the underwear of the prosecutrix and started “misbehaving” with her. This prosecutrix then specifically states that he had placed his genitals on her private part. Thereafter she states that the same act was repeated by her “mama” on the night of 7.9.1999 as well. The next day i.e. on 8.9.1999 she did not go to her school. She further states that she studies in primary school in class V and when she did not report for classes on the next day, her teacher requisitioned 2-3 girls to fetch her and asked her as to what was the reason for not reporting for the classes and on her (the class teacher) questioning, she narrated the entire incident of the previous night. Thereafter her teacher called the “Gram Pradhan” and the entire incident was told to him and the “Gram Pradhan” subsequently reported the matter to the police. On being questioned by the court, she answered that her “mama” resides in a servant quarter in IMA and that she resides with her “mama”, since her childhood, and that when her mother had turned insane and her father was returning to Nepal, her “mama” and “mami” did not allow her to go with her father and kept her in their house, and since then she is with them. On being cross-examined she answers that her “mama” has four children. The eldest is Amit who is 12 years of age, next to him is a girl aged about 8 years, then is Sumit aged 8 years and the youngest is Rohit aged 4 years. On being cross-examined she answers that her “mama” has four children. The eldest is Amit who is 12 years of age, next to him is a girl aged about 8 years, then is Sumit aged 8 years and the youngest is Rohit aged 4 years. She answered all the questions of the defence with ease. One suggestion was given by the defence that there was some altercation between her “mama” and the class teacher regarding payment of fee in which her teacher has rebuffed her “mama” as to the fact that he is sending his own children to English medium school whereas he is sending his niece to Hindi medium school and still not paying the school fee. This suggestion is being made by the defence in order to show that the entire complaint was lodged before the police on instigation of this class teacher namely Smt. Dinesh who had an axe to grind against the accused. With the same intention another question which has been put to the prosecutrix as to whether she remained absent on previous occasions as well on which her answer in the affirmative but she further replied that on those occasions her teacher did not send any girl to fetch her. The suggestion is obvious, why should the school teacher bother so much this time when she did not bother on earlier occasions. On being specifically put a question by the defence as to whether she was tuitored by her teacher to tell this before this court, she flatly denied the allegation. 6. It is a settled position of law that in a case of rape or even attempt to rape, the prosecutrix is like an injured witness. Moreover, it is again a settled position of law that in order to establish a case of Section 376 IPC/511 IPC, against the accused the sole testimony of the prosecutrix is enough, provided it is believable, and it need not be corroborated by any other evidence. There is not a shadow of doubt in the mind of this Court that this girl of 11 to 12 years of age is speaking nothing but the truth. Her statement given in the court is entirely believable, and inspires confidence. There is not a shadow of doubt in the mind of this Court that this girl of 11 to 12 years of age is speaking nothing but the truth. Her statement given in the court is entirely believable, and inspires confidence. Apart from this, the medical evidence also suggests that although there are no injuries and the hymen of the girl is intact, there is a laceration at lower part in midline of vaginal orifice. 7. In her examination in chief P.W.1 i.e. Smt. Dinesh who was the class teacher of the prosecutrix, states that the prosecutrix was a student of Primary School, Panditbari, Dehradun where she herself is a teacher and on 9.9.1999 she was also acting as Principal in-charge as the Principal was on leave. When Kumari Rekha did not report to the classes she sent another girl of her class Kumari Archna Rawat to fetch the prosecutrix and when the prosecutrix came to the school she asked her the reason as to why she was absent and on her being questioned Kumari Rekha started crying. When the prosecutrix started crying even more then she requested other teachers of the schools and all of them sought reasons for her crying to which she replied that her “mama” has done some “badtamizi’ i.e. some obscene act, with her. However, she did not disclose as to what kind of obscene act was done on her. This witness then submits that since the school comes within Gram Pradhan area, the matter was reported to the Gram Pradhan. It is the Gram Pradhan who took the statement of the girl in private and thereafter the report was given to the police. For the reasons best known to the prosecution, at this stage this witness was declared as hostile, and the learned Additional District Government Counsel was asked to put question to this witness to which she has replied that prosecutrix had informed her that on 7.9.1999 at about 10:00 P.M. in the night her “mama” Nirmal Singh removed her under garments and thereafter he mounted on her and did bad things to her. When the girl was further asked to elaborate as to what were the bad things done by her “mama”, she said that he had placed his genitals on her private parts. 8. When the girl was further asked to elaborate as to what were the bad things done by her “mama”, she said that he had placed his genitals on her private parts. 8. Learned counsel for the defence heavily relied upon the statement given by the Gram Pradhan P.W. 3, who states that the report was filed on being asked by the Police Inspector and not by the class teacher and he further states that although the teacher had come to his place the girl had not come along with her and he had never questioned the girl. Whatever, the Police Inspector asked to write he had written. Although the statement of this witness contradicts the statement of class teacher, who in turn has been declared hostile, it does not give much help to the defence for the reason that what is primarily relevant for our purposes is the statement of the prosecutrix which is totally believable, and inspires confidence. 9. The other witness examined is Renu Negi PW 5 who had medically examined the prosecutrix on 9.9.1999. She verified the medical report given by her and further says that pelvic and pubic hair of the girl not yet erupted, the hymen was not torn nor did she find any blood, a small laceration was found on her vagina, etc. She says that no definite opinion of rape could be given. 10. The trial court after appreciating the entire evidence and hearing the case of the defence came to the conclusion that the accused had at least made an attempt to rape the prosecutrix, who is under 12 years of age and thereafter on reading of Section 376 IPC read with Section 511 IPC, since for the actual commission of rape on a girl under 12 years of age, the maximum punishment being life, a sentence of 10 years R.I. has been given. 11. Sri Lokendra Dobhal, Advocate appearing for the appellant before this Court has taken this Court again to the medical evidence and the statement of doctor, namely, Renu Negi as well as to the statement of the Gram Pradhan PW 3, and tried to elaborate that it cannot be a case of attempt to rape and maximum it can be a case under Section 354 IPC and the findings need to be altered if at all a conviction has to be made in this case. 12. 12. The Hon’ble Apex Court has held in innumerable cases that even a partial penetration is sufficient for the commission of rape. On the basis of the statement given by the prosecutrix corroborated with the medical evidence where at least a laceration has been found at lower part in midline of vaginal orifice, this could have been a case under Section 376 IPC as well. But nevertheless, the trial court after appreciating the entire evidence has come to the conclusion that it is not a case of rape but attempt to rape – a conclusion based on reasoning and logic, as well as appreciation of facts. To say that there is not even an attempt to rape would not be correct as the Hon’ble Apex Court has drawn difference between a “preparation to commit a crime” and “attempt to commit a crime”. Hon’ble Apex Court while drawing the distinction between an intention or preparation for committing an offence and attempt to commit an offence states as follows in Koppula Venkat Rao v. State of A.P. [ (2004) 3 SCC 602 ] : "Attempt to commit an offence can be said to begin when the preparations are complete and the culprit commences to do something with the intention of committing the offence and which is a step towards the commission of the offence. The moment he commences to do an act with the necessary intention, he commences his attempt to commit the offence. The word ‘attempt’ is not itself defined, and must, therefore, be taken in its ordinary meaning. This is exactly what the provisions of Section 511 require. An attempt to commit a crime is to be distinguished from an intention to commit it; and from preparation made for its commission. Mere intention to commit an offence, not followed by any act, cannot constitute an offence. The will is not to be taken for the deed unless there be some external act which shows that progress has been made in the direction of it, or towards maturing and effecting it. Intention is the direction of conduct towards the object chosen upon considering the motives which suggest the choice. Preparation consists in devising or arranging the means or measure necessary for the commission of the offence. It differs widely from attempt which is the direct movement towards the commission after preparations are made. Intention is the direction of conduct towards the object chosen upon considering the motives which suggest the choice. Preparation consists in devising or arranging the means or measure necessary for the commission of the offence. It differs widely from attempt which is the direct movement towards the commission after preparations are made. Preparation to commit an offence is punishable only when the preparation is to commit offence under Section 122 (waging war against the Government of India) and Section 399 (preparation to commit dacoity). The dividing line between a mere preparation and an attempt is sometimes thin and has to be decided on the facts of each case." 13. Undoubtedly the accused/appellant had crossed the stage of preparation of crime and had crossed the line where at least it could be said that he had attempted to commit rape, if not having actually committed it. 14. Therefore, technically, there may or may not have been a rape as that benefit has already been given to the accused but the trauma, torture and the agony that a girl of 11 years had to go through in the night of 7.9.1999 can be easily understood when her real maternal uncle made an attempt to commit this dastardly act, on that fateful night. The medical evidence further proves the case of the prosecution beyond a reasonable doubt. 15. In view of the above, this Court is completely satisfied with the findings of conviction arrived at by the trial court against the accused under Section 376/511 need not be interfered with. Regarding sentence, the language of Section 511 IPC clearly states that whoever attempts to commit an offence punishable by this Code with imprisonment for life or imprisonment, where no express provision is made by this Code for the punishment for a term which may extend to one-half of the imprisonment for life or, as the case may be, one-half of the longest term of imprisonment provided for that offence, or with such fine as is provided for the offence, or with both. Now under Section 376(2) (f) IPC the maximum punishment for rape of a woman when she is under twelve years of age is life imprisonment. Now when a fraction of life imprisonment has to be calculated it has to be calculated under Section 57 IPC. Section 57 IPC reads as under :- “57. Now under Section 376(2) (f) IPC the maximum punishment for rape of a woman when she is under twelve years of age is life imprisonment. Now when a fraction of life imprisonment has to be calculated it has to be calculated under Section 57 IPC. Section 57 IPC reads as under :- “57. Fractions of terms of punishment – In calculating fractions of terms of punishment, [imprisonment] for life shall be reckoned as equivalent to [imprisonment] for twenty years.” 16. Therefore, while awarding the sentence the trial court has kept in mind that the maximum sentence would be 20 years and therefore one-half of it would be 10 years which has been awarded to the accused. However, the sentence could have been less than the one-half of the maximum, as the language of Section 511 IPC states that the sentence “may extend to one-half of the imprisonment for life”. It may not be exactly half. This Court feels that the sentence of 5 years of rigorous imprisonment, under the circumstances, would serve the ends of justice. Consequently the sentence awarded to the accused stands modified to that extent. 17. As far as fine is concerned, the same shall remain as it was awarded. Out of Rs. 8,000/- of fine, Rs. 1,000/- was to be deposited with the State and Rs. 7,000/- was to be deposited in a fixed deposit. Vide interim order dated 11.9.2001 of this Court, the fine imposed upon the accused was suspended. The said interim order is hereby vacated. Since fine has not been deposited, this Court directs as follows : The accused is directed to deposit Rs. 1,000/- to the State, and since Rs. 7,000/- was to be deposited in the fixed account of the prosecutrix by order of the trial court, which would have in normal course earned interest and been at least more than Rs. 25,000/- as on today, the accused is hereby directed to give the prosecutrix Rs. 25,000/- either by depositing it in her bank account or by any other means to the satisfaction of the learned Sessions Judge, Dehradun. It is further directed that in absence of payment of fine as directed, the accused shall undergo a further imprisonment of six months. 18. Subject to the modification in sentence as above, the appeal is partly allowed. The appellant is on bail. His bail is cancelled. It is further directed that in absence of payment of fine as directed, the accused shall undergo a further imprisonment of six months. 18. Subject to the modification in sentence as above, the appeal is partly allowed. The appellant is on bail. His bail is cancelled. He shall be taken into custody forthwith and shall carry out the remaining period of sentence awarded by this Court which is 5 years of rigorous imprisonment, subject to the conclusions made above. The period of sentence already undergone by the appellant during trial and appeal shall be adjusted from the sentence awarded to the appellant. 19. Let a copy of this judgment be sent to the trial court to make appellant serve out the sentence as modified by this Court, and for ensuring the deposit of fine. Lower Court record be sent back.