Judgment : 1. This Criminal Appeal is filed against the judgement dated 6.10.2010 made in SC.No.162/2010 by the learned Principal Sessions Judge, Villupuram, thereby convicting and sentencing the Appellant/accused for the offence under Section 376(2)(f) read with 511 of IPC to undergo 10 years Rigorous Imprisonment and to pay a fine of Rs.25,000/-, in default to undergo two years Rigorous Imprisonment. 2. The case of the Prosecution is as follows:- a. PW.1 the complainant is the mother of PW.5, the victim girl Gayathri, who was studying 5th Standard in the Onkur Village and the father of the victim girl Perumal was doing Mason Work. The Appellant/ accused was living in the house opposite to the house of the victim girl. On 25.8.2009 when PW.1 went out for coolie work, at 1.00 p.m. the victim girl came back to her house from the School for taking lunch and before taking lunch, she went to the Coconut Grove near the house of the accused for toilet purpose. At that time, the Appellant came there and took her forcibly to his house and attempted to rape her and gave Rs.5 to her not to tell the incident to anybody. b. When PW.1, after finishing the coolie work, came back to her house, she found the victim girl crying and shivering. When PW.1 questioned the victim girl, she narrated the incident to her mother. Immediately, PW.1 informed to her husband and he came to the house on 27.8.2009 and they took the victim girl to the Government Hospital, Tindivanam, where they were referred to Government Hospital, Villupuram. Thereafter, on 28.8.2009 at 3.00 p.m., PW.1 gave Ex.P1 complaint against the Appellant to the All Women Police Station, Tindivanam. On receipt of Ex.P1, PW.8, Sub Inspector of Police attached to the said Police Station registered a case in Cr.No.12/2009 under Sections 376 and 511 of IPC and prepared Ex.P8 First Information Report and sent the same to the concerned court and to PW.9, the Inspector of Police for investigation. PW.9 went to the place of occurrence and prepared Ex.P9 rough sketch and went to the Government Hospital, Villupuram and examined the witnesses and recorded their statements. PW.9, after completing investigation and after receiving forensic reports Ex.P2, Ex.P3, Ex.P5, filed the final report against the accused under Sections 376(2)(f) read with 511 of IPC on 12.12.2009. 3. PW.9 went to the place of occurrence and prepared Ex.P9 rough sketch and went to the Government Hospital, Villupuram and examined the witnesses and recorded their statements. PW.9, after completing investigation and after receiving forensic reports Ex.P2, Ex.P3, Ex.P5, filed the final report against the accused under Sections 376(2)(f) read with 511 of IPC on 12.12.2009. 3. The case was taken on file in SC.No.162/2010 by the learned Principal Sessions Judge, Villupuram and necessary charges were framed. In order to bring home the charges against the accused, the prosecution examined as many as 9 witnesses (PW.1 to PW.9) and also marked Exs.P1 to P9. On completion of the evidence on the side of the prosecution, the accused was questioned under Section 313 Cr.PC as to the incriminating circumstances found in the evidence of prosecution witnesses and the accused has come with the version of total denial and stated that he has been falsely implicated in this case. The court below, after hearing the arguments advanced on either side and looking into the materials available on record, found the accused/appellant guilty and awarded punishments as referred to above, which is challenged in this Criminal Appeal. 4. Mr.V.Bhiman, the learned counsel for the Appellant vehemently contended that there was inordinate delay in lodging the First Information Report. The learned counsel submitted that though the occurrence has taken place on 25.8.2009, but the First Information Report was registered on 28.8.2009, that is, three days after the occurrence and there is no plausible explanation for the said delay. It was contended that this delay had assumed importance and was fatal, as PW.1, the mother of the victim girl had tutored her daughter to implicate the accused. The learned counsel contended that had there been such an incident as projected by the Prosecution, it would not have been missed the sight of the neighbours in the said small village and it is not possible for any person to take a girl to any nearby bush without being noticed by others. 5. The learned counsel contended that had there been such an incident as projected by the Prosecution, it would not have been missed the sight of the neighbours in the said small village and it is not possible for any person to take a girl to any nearby bush without being noticed by others. 5. The learned counsel for the Appellant, referring to the testimony of Doctor, who conducted physical examination of the girl that there is no injuries on her private parts and the hymen was also found intact, submits that even the evidence of the prosecutrix is not conclusive to the effect that penetration was done by the Appellant and in these circumstances, at best, the Appellant can be convicted under Section 376 read with 511 of IPC. It is argued that there is no evidence to establish that the Appellant committed rape on the victim, more particularly, when there is no medical evidence in that regard and therefore,the conviction and sentence imposed by the Trial Court is bad in law. 6. On the other hand, Mr. V.M.R.Rajendran, the learned Additional Public Prosecutor has supported the judgement and has contended that the evidence clearly indicates that the Appellant used force, which is evident from the nail marks on her cheek and committed rape and therefore, no interference is required with the impugned judgement and order of conviction. 7. I have reappreciated the whole evidence on record in the light of broad and reasonable probabilities of the case. 8. The Prosecutrix PW.5 has stated in her evidence that at the time of occurrence, she was studying in Class V and she came home for taking lunch. As she was suffering stomach pain, she went to the coconut grove to ease herself. At that time, the Appellant came there, lifted her and took her to his house, bolted the door from inside and stripped her off her clothes. He removed his dress and laid his body over her and did something. At that time, a white liquid like substance was oozing on her legs. She has further stated that he gave her a five rupee note and told her not to disclose it to anyone. After, she came home, she felt acute stomach pain and hence, narrated the incident to her mother after she returned home from work. 9. At that time, a white liquid like substance was oozing on her legs. She has further stated that he gave her a five rupee note and told her not to disclose it to anyone. After, she came home, she felt acute stomach pain and hence, narrated the incident to her mother after she returned home from work. 9. In the cross examination also, she reiterated the same thing and denied the suggestion that she was deposing as tutored by the Police. Her testimony is corroborated by her mother PW.1. Besides, her testimony has been corroborated by PW.6 neighbour to whom she has reported the incident immediately after the occurrence. The testimony of the prosecutrix is not shaken in the cross examination and there is no reason to disbelieve her, as no girl would ever lie on such a vital issue. The prosecutrix's account of act committed by the Appellant is very natural and confidence inspiring. Her mother, PW.1, whose testimony too was found natural trustworthy, despite the fact that she had washed of the clothes worn by the victim at the time of incident, she had found a nail mark on the cheeks of her daughter. 10. The learned counsel for the Appellant pointed out that the victim was taken to the Government Hospital, Tindivanam, but the accident register copy issued by the said hospital is not filed. He would submit that the said vital document, which contains the true version made by the victim and her mother, had been suppressed by the Prosecution. I am unable to countenance the arguments advanced by the learned counsel for the Appellant. The Prosecutrix has been taken to the Tindivanam Government Hospital and from there straight-away she had been referred to Villupuram Government Head Quarters Hospital. Her evidence does not indicate that the victim girl was clinically examined by the Doctors at the Government Hospital, Tindivanam. In fact, PW.9 the Investigating Officer has clearly stated that the victim girl was not treated in any other hospital before she was brought to Villupuram Government Head Quarters Hospital. 11. The case of the Prosecution was also questioned on the ground of delay of nearly three days. It was contended that this delay had assumed importance and was fatal because it resulted in embellishment and false implication of the Appellant. 11. The case of the Prosecution was also questioned on the ground of delay of nearly three days. It was contended that this delay had assumed importance and was fatal because it resulted in embellishment and false implication of the Appellant. As regards the contention regarding the delay in lodging the First Information Report, the real question is about the explanation for the delay. It is not at all unnatural for the mother of the victim girl to await the arrival of her husband when an offence of this nature is committed before taking a decision to lodge a report with the police. The reputation and prestige of the family and the career and future of a young child are involved in such cases. Therefore, the conduct of the mother in not reporting the incident till the arrival of her husband cannot be doubted. It has come out on evidence that PW.1 informed her husband over phone that the victim girl was not feeling well without disclosing the incident to him, probably she did not want to make him panic at the working place. He had come to the house on 27.8.2009 and PW.1 had told her husband as to what had happened to their daughter. The police station was at a distance of 17 kms. The police was reported on the next day at 3.00 p.m. The delay in reporting the matter to the Police has, thus, been fully explained. 12. Though there has been some delay in filing the complaint, the same has been explained by the mother of the victim. The fact that the father was working as a mason in a different place on the date of occurrence is not disputed. In such circumstances, since the Prosecutrix is a minor who was violated, the possibility of there being hesitation on the part of the mother to lodge a complaint cannot be overruled. Hence, the factum of delay in filing the complaint would not be fatal so as to vitiate the Prosecution case. 13. The learned counsel for the Appellant pointed out to the statement of the Doctor and submitted that the date of incident was stated to her by the victim's mother as 26.8.2009 and the Doctor has reiterated the same in her evidence which would render the entire case of the Prosecution doubtful. 13. The learned counsel for the Appellant pointed out to the statement of the Doctor and submitted that the date of incident was stated to her by the victim's mother as 26.8.2009 and the Doctor has reiterated the same in her evidence which would render the entire case of the Prosecution doubtful. It is true that the date of incident has been mentioned as 26.8.2009, but that would not affect the case of the Prosecution. The Prosecutrix and her mother, in their evidence, have given the correct date and in Ex.P1 complaint also the date of the incident is given as 25.8.2009. The mentioning of a wrong date by the Doctor do not in any way corrode the credibility of the Prosecution case. 14. The evidence of the witnesses, particularly that of the Prosecutrix, goes to show that the Appellant herein, who was called as brother (Anna) by the victim girl, had taken the victim to his residence and committed the sexual act on her. When a tender aged girl like the prosecutrix is subjected to the sexual assault, it cannot be expected from her to explain whether there was penetration. 15. The Prosecutrix was aged 10 years at the time of occurrence. According to the evidence of the Doctor PW.2 who examined the Prosecutrix after the occurrence, there was no injury on her private part and hymen was found intact. But, she had found a nail mark on her cheek. However, the Prosecutrix's evidence clearly establishes the fact that the Appellant had stripped off her dress and removed his dress and made her to lie down on the floor. He had laid himself over her and did sexual act on her. It appears that since he discharged, he could not penetrate and was unable to complete the offence of rape. However, it is clear that the Appellant did attempt to commit rape. In the facts and circumstances of the present case, the offence of an attempt to commit rape by the accused has been clearly established. 16. In Koppula Venkat Rao Vs. State of AP (2004-3-SCC-602), the Honourable Supreme Court, having regard to the fact situation arising therein that an offence under Section 376/511 of IPC was proved, held:- "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. 16. In Koppula Venkat Rao Vs. State of AP (2004-3-SCC-602), the Honourable Supreme Court, having regard to the fact situation arising therein that an offence under Section 376/511 of IPC was proved, held:- "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 of 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 connection has not been established. Courts below were not correct in their view. When the evidence of the prosecutrix is considered in the proper perspective, it is clear that the commission of actual rape has not been established. However, the evidence is sufficient to prove that attempt to commit rape was made. That being the position, conviction is altered from Section 376 of IPC to Sections 376/511 of IPC." 17. Yet again in Aman Kumar Vs. State of Haryana (2004-4-SCC-379), it was categorically stated:- "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 pundendum of the woman, no matter how little." 18. The actus reus is complete with penetration. The medical examination did not suggest penetration and the evidence conclusively proved that there was an attempt to commit rape. Considering the whole aspect of the matter and the evidence of the Prosecutrix in the proper perspective, it is clear that the commission of actual rape has not been established. However, the evidence is sufficient to prove that attempt to commit rape was made. That being the position, conviction altered from 376(2)(f) read with 511 of IPC to Section 376/511 of IPC and sentencing the Appellant to undergo five years Rigorous Imprisonment and to pay a fine of Rs.25,000/- would meet the ends of justice. On failure to pay the said fine amount, the Appellant shall undergo one year Rigorous Imprisonment. That being the position, conviction altered from 376(2)(f) read with 511 of IPC to Section 376/511 of IPC and sentencing the Appellant to undergo five years Rigorous Imprisonment and to pay a fine of Rs.25,000/- would meet the ends of justice. On failure to pay the said fine amount, the Appellant shall undergo one year Rigorous Imprisonment. On realisation of the fine amount, the whole fine amount of Rs.25,000/-shall be paid to the minor girl with a direction to the mother of the victim girl to deposit it in the name of minor victim girl till she attains majority. 19. In the result, this Criminal Appeal is partly allowed. The impugned judgement of conviction and sentence is modified as under:- The Appellant is convicted and sentenced for the offence under Section 376/511 of IPC to undergo five years Rigorous Imprisonment and to pay a fine of Rs.25,000/-, in default to undergo one year Rigorous Imprisonment. On realisation of the fine amount, the whole fine amount of Rs.25,000/-shall be paid to the minor girl with a direction to the mother of the victim girl to deposit it in the name of minor victim girl till she attains majority.