JUDGMENT Hon’ble B.S. Verma, J. This Criminal Appeal, U/S 374 of the Cr.P.C. is directed against the judgment and order dated 6-2-2012 passed by Additional Sessions Judge/ 1st F.T.C. Haldwani in Sessions Trial No. 193/2010, State Vs. Bhura @ Naseem, convicting the accused U/S 376/511 I.P.C. and sentencing him to undergo R.I. for five years and to pay a fine of Rs. 5,00/- and in default of payment of fine to further undergo imprisonment for 15 days. 2. The prosecution case in brief is that on 21.9.2009 complainant Seema Arya lodged written report, Ext. Ka.1 at P.S. Haldwani to the effect that her sister the prosecutrix is mentally disabled. On 21.9.2009 at about 3.45 p.m. when her sister was walking in the lane, a boy by enticing kidnapped her and committed rape on her and ran away leaving the girl in a field. Vijay Kumar, brother of Ila chased the accused and caught hold of him in the Samata Ashram Gali and handed over him to the police. On the basis of written report, Chick F.I.R. Ext. Ka.7 was prepared and a case crime No. 415/2009 U/Ss 376, 506 I.P.C. and Section 3(1)(X) S.C. and S.T. Act was registered against the accused. During investigation the I.O. prepared site plan, Ext. Ka. 5, of the place of occurrence and after completing the investigation submitted charge sheet, Ext. Ka.6 against the accused. 3. The learned Magistrate committed the case to the court of Sessions. The learned Addl. Sessions Judge framed charge U/S 376/511 I.P.C. against the accused, to which he pleaded not guilty and claimed to be tried. 4. The prosecution to prove its case examined P.W.1, prosecutrix, P.W.2, Vijay Kumar, P.W.3, Seema Arya, P.W.4, Dr. Anupama Hyanki, P.W.5, Sri Sadanand Date, Superintendent of Police- I.O., and P.W.6, Constable Gopal Sanwal. 5. The accused, in his statement U/S 313 Cr.P.C. denied the allegations and alleged that the witnesses have given false evidence. However, no evidence was adduced in defence. 6. The learned Additional Sessions Judge after hearing the counsel for the parties and considering the evidence on record, found the accused guilty of offence U/S 376/511 I.P.C. and passed the sentences against him. 7. Feeling aggrieved by the impugned judgment and order, the accused has filed this appeal. 8. I have heard learned Amicus Curiae on behalf of the appellant and learned Addl. 7. Feeling aggrieved by the impugned judgment and order, the accused has filed this appeal. 8. I have heard learned Amicus Curiae on behalf of the appellant and learned Addl. G.A. on behalf of the State and have gone through the record. 9. Learned Amicus Curiae appearing on behalf of the appellant has submitted that the appellant has been convicted U/S 376 read with Section 511 I.P.C. for attempting to commit rape on the prosecutrix, but there is no iota of evidence, which may indicate that the accused/appellant had attempted to commit rape on the prosecutrix. In the written report, it is mentioned that prosecutrix is a mentally retarded girl and the accused had enticed her away and committed rape on her and when the accused was running away leaving the prosecutrix in the field, Vijay Kumar, brother of prosecutrix, chased him and caught hold of him and handed over to the police. P.W.2, Vijay Kumar, an eye-witness has given on oath statement that the accused was doing wrong with prosecutrix after opening her string and when the accused saw him he tried to run away, he chased him and caught him., whereas in the statement U/S 161 Cr.P.C. this witness has not told this fact that accused was opening her string and he had simply told to the I.O. that he had seen Bhura doing some mischief with prosecutrix. 10. Learned Amicus Curiae also drew attention of the court towards the medical evidence and submitted that the hymen of the prosecutrix was found intact, and vagina was admitting only index finger tightly, there was no redness, no swelling, no injury mark, and no bleeding was seen on the private part of the prosecutrix and no spermatozoa was seen by the pathologist on the vaginal smear and the medical evidence does not indicate that any attempt for committing rape on the prosecutrix was made. Therefore, in the backdrop of oral evidence on record, as well as the medical evidence, no offence U/S 376/511 I.P.C. is made out against the accused/appellant and at the most offence of outraging the modesty of prosecutrix, punishable U/S 354 I.P.C. is attracted in the instant case. Learned Amicus Curiae in support of his contention has cited before me the case of Tarkeshwar Sahu vs. State of Bihar, reported in (2006) 8 S.C.C. 560 . 11. On the other hand learned Addl. Learned Amicus Curiae in support of his contention has cited before me the case of Tarkeshwar Sahu vs. State of Bihar, reported in (2006) 8 S.C.C. 560 . 11. On the other hand learned Addl. G.A. has contended that the accused/appellant has attempted to commit rape on the prosecturix and the learned trial court has rightly held him guilty of the offence U/S 376/511 I.P.C. In the written report it has specifically been mentioned that the accused has committed rape on the prosecutrix and the eye witness P.W.2, Vijay Kumar in his statement on oath has given a categorical statement that the accused after taking out the Salwar of prosecutrix, was doing wrong with her. 12. In order to substantiate the rival contentions of learned counsel for the parties, it is essential to examine the evidence on record with a great care and caution. 13. So far as the evidence of prosecutrix is concerned, the learned trial court after testing her capability of giving evidence, has come to the conclusion that this witness was not capable of giving right answer to the questions put to her and accordingly declared her incapable of giving evidence and her statement was not recorded. Now there is only witness produced by the prosecution- P.W.2, Vijay Kumar, who is brother of prosecutrix, and who had seen the incident. 13. P.W.2, Vijay Kumar has stated that on 21-9-2009 at about 3.30 p.m. his sister Km. Ila had gone for a walk in the Gali of the Mohalla. His sister is mentally retarded and when she did not return home, he went in search of her and then he saw that in the eucalyptus Garden of Pathak Ji, Bhura, who is of criminal nature, was doing wrong with his sister after taking out her Salwar and when he saw this witness, he started running away leaving his sister at the spot. This witness chased the accused and caught hold of him at Samta Ashram Gate and brought him to Medical Chauki and handed over him to the police. In the cross examination, this witness has stated that at the noon time no one visit the place of occurrence and in the morning the Bihari labourers, residing near Abdula Building, use to go there for attending the natural call. In the cross examination, this witness has stated that at the noon time no one visit the place of occurrence and in the morning the Bihari labourers, residing near Abdula Building, use to go there for attending the natural call. From the evidence of this witness it is quite clear that when he saw the accused the accused was wearing all the cloths on his body and this fact clearly indicates that the accused was not ready in his attempt to commit rape on the prosecutrix. In the cross-examination, this witness has stated that he does not remember whether he had told to I.O. the fact of taking out the Salwar of prosecutrix by the accused or not. This witness, was put the part of evidence given to the I.O. U/S 161 Cr.P.C., where he had told to the I.O. that he had seen Bhura doing some mischief. The I.O. P.W.5, Sri Sadanand Date has stated in his statement before the court that witness Vijay Kumar had told in his statement U/S 161 Cr.P.C. that accused was doing some mischief with the prosecutrix, but he had not used absurd words against the accused and it has also not been stated that the accused had taken out the Salwar of prosecutrix. Thus the statement of P.W.2, Vijay Kumar that he had seen the accused doing wrong with his sister after taking out her Salwar seems to be subsequent development. 15. P.W.5, Sri Sadanand Date, I.O. of the case in his cross examination has stated that Km. Ila had told him in her statement recorded U/S 161 Cr.P.C. that she loves to the accused and nothing wrong was happened with her. This witness further deposed that prosecutrix had given him the statement that accused met her in the way and talking with her in pretty manner carried her in the Garden and started doing mischief with her. Thus, from the oral evidence adduced by the prosecution it is amply proved that the accused had not attempted to commit rape on the prosecutrix and it is proved that at the time when P.W.2, Vijay Kumar had seen the accused at the place of occurrence neither the accused was undressed nor the prosecutrix. 16. Now coming to medical evidence available on record, Dr. Anupama Hyanki P.W.4, had medically examined the prosecutrix. 16. Now coming to medical evidence available on record, Dr. Anupama Hyanki P.W.4, had medically examined the prosecutrix. According to this witness, hymen of prosecutrix was intact, there was no bleeding, swelling, redness or wound in the private part. In the supplementary report no spermatozoa was found on the slide of semen of the prosecutrix and by these factors the only irresistible conclusion is to be drawn that no rape was committed upon the prosecutrix. Penetration is the sine qua non for an offence of rape. In order to constitute penetration, there must be evidence clear and cogent to prove that some part of the virile member of the accused was within the labia of the pudendum of the woman, no matter how little. In the backdrop of settled legal position, in the instant case, the conclusion becomes irresistible that the conviction of the appellant U/S 376/511 I.P.C. is wholly unsustainable. What to talk about the penetration, there has not been any attempt of penetration to the slightest degree. The appellant had neither undressed himself nor even asked the prosecutrix to undress so there was not question of penetration. In the absence of any attempt of penetrate, the conviction U/S 376/511 I.P.C. is wholly illegally and unsustainable. 17. I have also gone through the case of Tarkeshwar Sahu vs. State of Bihar(supra), cited on behalf of appellant. In the cited case the accused was convicted U/S 376/511 I.P.C. The Apex Court had altered conviction into Sections 366 and 354 I.P.C. The Hon’ble Apex Court has observed that there had not been any attempt of penetration to the slightest degree. The appellant had neither undressed himself nor even asked the prosecutrix to undress so there was no question of penetration and in absence of any attempt to penetrate, the conviction U/S 376/511 I.P.C. is wholly illegal and unsustainable. The Apex Court invoking provision of Section 222 Cr.P.C.has observed that in a case where the accused is charged with a major offence and the said charge is not proved, the accused may be convicted of the minor offence though he was not charged with it. 18. Now it is to be seen what offence has been committed by the accused/appellant in the instant case. In the written report it is mentioned that the boy of Gali had enticed away the prosecutrix and committed rape on her. 18. Now it is to be seen what offence has been committed by the accused/appellant in the instant case. In the written report it is mentioned that the boy of Gali had enticed away the prosecutrix and committed rape on her. In the statement of P.W.2, Vijay Kumar it has come that prosecutrix had gone for a walk in the Gali and when she did not return then on the asking of his father he went in search of her then he had seen Bhura doing wrong with her. P.W.5 Sri Sadanand Date has stated that the girl in her statement U/s 161 Cr.P.C. had told that she loves with the accused and nothing wrong was happened with her. She had further stated before the I.O. that accused had met her in the way and talking with her in a decent manner carried her in the Garden of eucalyptus and started doing mischief with her. When the prosecutrix had appeared in the witness box before the trial court she had given her age as 24-25 years. The radiological age has been noted by the doctor more than 18 years. Thus it is proved that the prosecutrix at the time of incident was major. 19. On the basis of evidence and documents on record, in my considered view the appellant is guilty under Section 354 I.P.C. because all the ingredients of Section 354 I.P.C. are present in the instant case. Section 354 I.P.C. reads as under:- “354. Assault or criminal force to woman with intent to outrage her modesty- Whoever assaults or uses criminal force to any woman, intending to outrage or knowing it to be likely that he will thereby outrage her modesty, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.” 20. The essence of a woman’s modesty is her sex and the culpable intention of the accused is the crux of the matter. In the instant case the accused was found with prosecutrix in eucalyptus Garden with the prosecutrix and when he had seen Vijay Kumar he ran away from there leaving the prosecutrix there and when Vijay Kumar chased him he was caught and was handed over to the police. Thus the presence of accused in the company of prosecutrix cannot be doubted. Thus the presence of accused in the company of prosecutrix cannot be doubted. It is also proved by the statement of P.W.2, Vijay Kumar as well as the statement of P.W.5, Sadanand Date, I.O. of the case, that the accused was doing some mischief with the girl. The accused was not undressed and he had not undressed the prosecutrix also. The mischievous act of the accused towards prosecutrix is indicative of the fact that the accused had intention or knowledge that his act would result in outraging her modesty. The presence of accused in the company of prosecutrix in a lonely place and doing mischief with her clearly makes out a case of Section 354 I.P.C. against the accused/appellant. 21. Therefore, in view of discussions made above, I am of the confident view that the accused is not guilty of offence U/S 376/511 I.P.C. but he is guilty under section 354 I.P.C. and a sentence of one years’ R.I. and a fine of Rs. 2,000/- and in default of payment of fine further imprisonment of six months S.I. would meets the ends of justice. 22. The appeal is partly allowed. The conviction and sentence U/s 376/511 I.P.C. passed against the accused/appellant is set aside. The accused/appellant is held guilty U/ S 354 I.P.C. and he is sentenced to undergo R.I. for one year and to pay a fine of Rs. 2,000/- and in default of payment of fine he shall further undergo six months’ S.I. The period already undergone by the accused/appellant during trial or at the stage of investigation of the case, shall be deducted from the period of sentence awarded against him. 23. The accused/appellant is on bail. His bail bonds are cancelled and sureties discharged. He be taken into custody forthwith to serve out the sentence awarded against him. 24. Let the record be transmitted to the trial court forthwith for compliance.