JUDGMENT : Michael Zothankhuma, J. Heard Mr. B.Lalramenga, learned Amicus Curiae. Also heard Mrs. Linda L.Fambawl, Additional Public Prosecutor. 2. This is a jail appeal submitted against the Judgment & Order dated 1.5.2014 passed by the District & Sessions Judge, Aizawl in connection with SR No.17 of 2013, Criminal Trial No.287 of 2012 under Section 376(1), 323, 354 IPC, wherein the accused wad found guilty under the aforementioned charges and sentenced with R.I. for a period of 7 years and is also liable for fine of Rs. 1,000/- i.d. simple imprisonment for 10 days u/s 376(1) IPC, (ii) sentenced with Simple Imprisonment for a period of 6 months u/s 323 IPC & (iii) sentenced with Simple Imprisonment for a period of 12 months u/s 354 IPC. All the sentences were to run concurrently and the period of detention was to be set off. 3. The husband of the victim Zoliani, submitted a complaint dated 1.12.2012 to the effect that on the night of 27.11.2012, at around 9:00 p.m, his wife (36 years) was forcefully dragged outside their house to Vaphai Field by the appellant and raped. The complaint also states that the victim's sister who tried to save the victim was also beaten up by the appellant. Accordingly, Champhai P.S. Case No.189 of 2012 was registered on 1.12.2012. Charges under Section 376(1), 323 & 354 IPC was framed on 11.3.2013 against the appellant. 6 (six) prosecution witnesses were examined which included the victim. The Sessions Judge having found the appellant guilty of rape under Section 376(1) and also under Section 323 and 354 IPC had convicted and sentenced the appellant as mentioned above. 4. Mr. B.Lalramenga, Amicus Curiae submits that the appellant and the victim were in love and that no rape was committed by the appellant. The Amicus Curiae submits that the appellant has had intercourse with the consent of the victim and there were no question of rape being committed by the appellant, as it appears during examination of the appellant under Section 313 Cr.P.C. 5. The Amicus Curiae submits that on cross-examination, the victim had stated as follows :- "it is a fact that the accused did not penetrate his male organ on my private parts". The Amicus Curiae submits that on cross-examination, the victim had stated as follows :- "it is a fact that the accused did not penetrate his male organ on my private parts". The Amicus Curiae also submits that the cross-examination of the victim's sister Lalrithangi is to the effect that : "I saw the accused lying on top of my sister but I did not see the accused having sexual intercourse with her". The above 2 (two) statements made by the victim and her sister, according to the Amicus Curiae, clearly shows that the victim had not being raped by the appellant. The appellant's counsel submits that penetration being the essential ingredient to constitute rape prior to the amendment of the Section 376 IPC in 2013, the Trial Court could not have come to a finding that the appellant had committed rape as there was no penetration. 6. The Amicus Curiae submits that the accused can be best be found guilty of outraging the modesty of the victim, for which the punishment is provided for under Section 354 IPC. The Amicus Curiae has relied upon the Judgment of the Apex Court in State of Maharashtra v. Mohd. Yakub & Ors reported in 1983 SCC 57 to state that even an offence of attempt to rape has not been made out as per the evidence recorded by the Trial Court. He submits that the Apex Court in the above case has held as follows :- "Let me now state the result of the search and research: In order to constitute 'an attempt', first, there must be an intentin to commit a particular offence, second, some act must have been done which would necessarily have to be done towards the commission of the offence, and, third, such act must be 'proximate' to the intended result. The measure of proximity is not in relation to time and action but in relation to intention. In other words, the act must reveal, with reasonable certainty, in conjunction with other facts and circumstances and not necessarily in isolation, an intention, as distinguished from a mere desire or object, to commit the particular offence, though the act by itself may be merely suggestive or indicative of such intention; but, that it must be, that is, it must be indicative or suggestive of the intention". 7. Mrs. Linda L.Fambawl, Addl. 7. Mrs. Linda L.Fambawl, Addl. Public Prosecutor submits that the evidence recorded by the Trial Court clearly goes to show that rape was committed by the appellant upon the victim. The Addl. Public Prosecutor also submits that besides rape, the appellant had voluntarily caused hurt upon the sister and husband of the victim besides assaulting and outraging the modesty of the victim. 8. The Addl. Public Prosecutor submits that the appellant is ahabitual offender and that the appellant had a case registered against him earlier for attempt to rape. The Addl. Public Prosecutor submits that the earlier case registered against the appellant was Champhai P.S. Case No. 89 of 2011 dated 2.7.2011 under Section 376/511 IPC. The Addl. Public Prosecutor submits that the earlier case which was registered as SR No.182 of 2011 in Criminal Trial No.162 of 2011 culminated in Judgment and Order dated 22.4.2013 wherein the Additional Session Judge-IV, Aizawl reduced the charged under Section 376-511 IPC under Section 222(2) Cr.P.C. to 354 IPC and the appellant was sentenced to undergo R.I. for a term of 1(one) year and 6 (six) months. The Addl. Public Prosecutor thus prays that the Judgment & Order dated 1.5.2014 passed in SR No.17 of 2013 (Criminal Trial No.287 of 2012) should be upheld. 9. I have heard the learned counsels for the parties and on perusal of the records, I find that the victim's husband has stated in evidence as follows :- "However, we did not provide him liquor. As it was getting late I and my wife told both of them to go to their respective houses. Laltanzuala was reluctant to go. I pushed him out of the house. Meanwhile, the accused catch hold of my wife Zoliani on her left hand. Though she struggled to free herself and despite my intervention by pulling her, I could not catch hold of her. The accused was carrying a Dao in his bag and was also holding a wooden stick of about 4 feet. The accused threatened me not to interfere and was about to struck me with the stick. The accused forcibly pulled my wife Zoliani by holding her hand and took her down the steps leading to a playground which is near a Veterinary Quarter Complex. The accused threatened me not to interfere and was about to struck me with the stick. The accused forcibly pulled my wife Zoliani by holding her hand and took her down the steps leading to a playground which is near a Veterinary Quarter Complex. My wife could not returned home that evening and spend the night at my daughter's house as she sustained multiple injuries being inflicted by the accused. I met my wife after few days at her parent's house as I could not move out of the house due to pain on my knee. When I saw my wife she stated to me that she was rape by the accused on that evening." 10. The evidence of the victim is to the effect that the accused pulled the victim to the field and then to the Jungle within the land belonging to Veterinary Department. Further evidence of the victim is as follows :- "The accused tried to forcibly have sexual intercourse with me. But I continued to struggle. He covered my mouth with his hands and so as to free myself I had a fight with him. Ultimately he struck me on my back with a stick for three times and I was unable to move. I would like to state that while he was pulling me down the steps, my sister Lalrithangi ran after us and both of us were shouting but there was no one who heard us or came forward to our rescue. My sister Lalrithangi intervene while I was struggling on the way but she could not help me further because the accused struck her with the stick he was holding on her neck. After the accused took me to the jungle he also grabbed my throat and I was unable to shout anymore, the accused raped me. (The PW wept while deposing). Hearing about the incident, my relatives came searching for me and after hearing the sound made by them, the accused left me and fled away. I was then taken to my daughter's house which is near the playground. The next day I was taken to the house of my parents. I was unable to move for four days and four nights due to the injuries I had sustained." 11. I was then taken to my daughter's house which is near the playground. The next day I was taken to the house of my parents. I was unable to move for four days and four nights due to the injuries I had sustained." 11. The evidence of the Doctor (PW No.4) is to the effect that he found the following injuries on the victim which is as follows :- "1) Laceration 2x.05 cm over right aspect of forehead. 2) Bruished 2 x 0.3 cm over right aspect of neck. 3) Multipel small bruished and scratch mark over left forearm. 4) Blackish blue colouration overleft forearm which is tender. 5) Blackish blue discolouration with tenderness swelling 11.5x20 cm over chest behind left posterior axillary line. 6) Multiple small and large bruished and scratch mark over left lower back, buttock. 7) Bruish mark 1.5x5 cm over left dorsum of foot and over right lateral calf. On her vaginal examination it is seen that the victim is a mother and had given birth to children. I found that there was no injury on her labia majora, labia minora and vaginal wall. Her hymen was also not intact. I however found whitish vaginal discharged seen in vagina which is collected and pathological examination shows shed epithelium and pus. As per my impression I found that the injuries sustained by the alleged rape victim could be the result of forceful attack. The vaginal examination could however not ascertain a case of rape since the victim is not a virgin having given birth to a child." 12. The examination of the Inspector LT Fala Khiangte, Office-in- Charge, Champhai Police Station (PW-No.5) is to the effect that he took the statements of the victim and the witnesses. The OC also seized the wooden log that was used by the appellant to hit the victim's sister. 13. The I.O (PW-6) was examined by the Trial Court, who stated that after investigation she filed the charge sheet wherein the IO found a prima facie case under Section 371(1), 342, 323, 354 IPC. However, charges were framed against the accused appellant only in respect of 376(1), 323 and 354 IPC. 14. 13. The I.O (PW-6) was examined by the Trial Court, who stated that after investigation she filed the charge sheet wherein the IO found a prima facie case under Section 371(1), 342, 323, 354 IPC. However, charges were framed against the accused appellant only in respect of 376(1), 323 and 354 IPC. 14. The examination of the accused appellant under Section 313 is to the effect that the appellant had sexual intercourse with the victim Zoliani on the relevant day, but it was by mutual consent since the victim was in love with the appellant. In the 313 Cr.P.C examination, the appellant has also stated that he did not hit the husband and sister of the victim with the stick on the relevant day. With regard to the question as to the appellant running away on hearing the noise made by the victim relatives who had come searching for the victim, the appellant has stated that he did not run away. 15. A perusal of the evidence given by the victim is to the effect that the appellant had raped her. However, the victim in her cross- examination has stated that the appellant's male organ did not penetrate her private parts. The statement of the victim's sister, who is an eye witness is to the effect that she saw the appellant lying on top of her sister but did not see the appellant having sexual intercourse with the victim. The Apex Court in Sashi v. Union of India reported in 2004 5 SCC 518 , Satyapal v. State of Haryana reported in 2009 6 SCC 635 and Wahid Khan v. State of Madhya Pradesh reported in 2010 2 SCC 9 has held that rape is penetration of the vagina by the penis. For satisfying the ingredient of rape, complete penetration is not necessary and the slightest penetration constitutes rape. The statements made by the victim and her sister in their cross-examination, in my view, goes to show that there was no penetration by the appellant's male organ into the private parts of the victim. Thus, as per the requirements under the un-amended Section 376 IPC, a finding of rape could not have been made by the Trial Court. 16. The statements made by the victim and her sister in their cross-examination, in my view, goes to show that there was no penetration by the appellant's male organ into the private parts of the victim. Thus, as per the requirements under the un-amended Section 376 IPC, a finding of rape could not have been made by the Trial Court. 16. Though, the appellant in his examination under 313 Cr.P.C. has stated that he had sexual intercourse with the victim on that fateful day, the Supreme Court in the case of Raj Kumar Singh Alias Raju Alias Batya v. State of Rajasthan reported in 2013 5 SCC 722 has held that conviction cannot be based upon the statement made under Section 313 Cr.P.C. Para 41 of Raj Kumar Singh (Supra) is reproduced below :- "41. In view of the above, the law on the issue can be summarised to the effect that statement under Section 313 CrPC is recorded to meet the requirement of the principles of natural justice as it requires that an accused may be given an opportunity to furnish explanation of the incriminating material which had come against him in the trial. However, his statement cannot be made a basis for his conviction. His answers to the questions put to him under Section 313 CrPC cannot be used to fill up the gaps left by the prosecution witnesses in their depositions. Thus, the statement of the accused is not a substantive piece of evidence and therefore, it can be used only for appreciating the evidence led by the prosecution, though it cannot be a substitute for the evidence of the prosecution. In cases the prosecution evidence is not found sufficient to sustain conviction of the accused, the inculpatory part of his statement cannot be made the sole basis of his conviction. The statement under Section 313 CrPC is not recorded after administering oath to the accused. Therefore, it cannot be treated as an evidence within the meaning of Section 3 of the Evidence Act, though the accused has a right if he chooses to be a witness, and once he makes that option, he can be administered oath and examined as a witness in defence as required under Section 315 CrPC. Therefore, it cannot be treated as an evidence within the meaning of Section 3 of the Evidence Act, though the accused has a right if he chooses to be a witness, and once he makes that option, he can be administered oath and examined as a witness in defence as required under Section 315 CrPC. An adverse inference can be taken against the accused only and only if the incriminating material stood fully established and the accused is not able to furnish any explanation for the same. However, the accused has a right to remain silent as he cannot be forced to become a witness against himself". 17. The question that has to be decided is whether the statement given by the appellant under Section 313 Cr.P.C. be used as corroborative evidence with regard to whether rape had been committed on the victim. 18. The Apex Court in Ashok Debbarma alias Achak Debbarma v. State of Tripura reported in 2014 4 SCC 747 has held that conviction cannot be passed solely on section 313 statements but can be used for corroboration along with other evidence for conviction. In the present case, there is discrepancy in the evidence adduced by the victim in her examination-in-chief and under cross-examination. The Apex Court in the case of Viyay Alias Chinee v. State of Madhya Pradesh reported in 2010 (8) SCC 191 has held that discrepancy in the statement of the prosecutrix have to be ignored if there is no dispute regarding the place of occurrence and the incident that occurred. The problem in the present case is that the discrepancy with regard to the victim's evidence is with the core issue of whether rape had been committed. The incident of rape is to have the ingredient of penetration. However, the cross-examination of the victim is to the effect that the male organ of the appellant did not penetrate the victim's private parts. As the victim had made discrepancies in her examination-in-chief and cross-examination, 2 (two) conflicting views can arise from the evidence given by the victim. It is settled law that when 2 (two) views are available, the view favourable to the accused should be taken. As the victim had made discrepancies in her examination-in-chief and cross-examination, 2 (two) conflicting views can arise from the evidence given by the victim. It is settled law that when 2 (two) views are available, the view favourable to the accused should be taken. As the discrepancy in the evidence of the victim is not with regard to trivial issues but with the core issue of penetration, the Judgment of the Apex Court in the case of Viyay Alias Chinee (supra) is not applicable to the present case. Accordingly, I am of the view that the Trial Court could not have arrived at a finding of rape against the appellant. This is further fortified by the evidence of the victim's sister, who in her cross-examination has stated that she did not see the accused appellant having sexual intercourse with her sister. 19. The fact that the appellant in his 313 Cr.P.C. statement has stated that he had sexual intercourse with the victim on that particular day would be in consonance with the evidence of the victim in her examination-in-chief that the appellant had raped her. It is also the finding of this Court that the appellant had caused injury to the victim, victim's sister and husband of the victim. However, due to the statement of the victim that there was no penetration, and keeping in view the evidence of the victim's sister and the victim, I find that a case of rape has not been made out, but a case of attempt to rape has been made out. There was no reason for the appellant to take the victim from her house to jungle at night and lie on top of her. The evidence adduced clearly shows that there was an attempt to rape and accordingly, I alter the conviction of the accused appellant from Section 376(1) IPC to Section 376 (1)/511 IPC. This alteration has been done keeping in view the Judgment of the Apex Court in Premiya alias Prem Prakash v. State of Rajasthan reported in 2009 1 SCC (CRI) 20. 20. On the question of sentencing, the Amicus Curiae has submitted that the appellant should be sentenced to the period of detention already undergone. The Addl. Public Prosecutor on the other hand submits that the appellant should be given the maximum punishment of half of life imprisonment. 21. 20. On the question of sentencing, the Amicus Curiae has submitted that the appellant should be sentenced to the period of detention already undergone. The Addl. Public Prosecutor on the other hand submits that the appellant should be given the maximum punishment of half of life imprisonment. 21. On considering the submission of the parties and not losing sight of the appellant having been convicted in an earlier case under Section 354 IPC, I sentence the appellant to undergo RI for a period of 5 (five) years under Section 376(1)/511 IPC. The sentence imposed upon the appellant under Section 323 & 354 IPC passed by the Sessions Judge is not disturbed and is accordingly upheld. The present appeal petition is disposed of by modifying the Judgment & Order dated 1.5.2014 passed by the District & Sessions Judge, Aizawl only with respect to the alteration of the charge framed under Section 376(1) IPC to Section 376(1)/511 IPC. The sentencing with respect to the other charges are upheld. All the sentences are to run concurrently and the period of detention will also be set off. 22. This Court appreciates the assistance given by Mr. B.Lalramenga, Amicus Curiae and his fee is fixed at Rs. 7,500/- (Rupees seven thousand five hundred)only to be paid by the State Legal Services Authority, Mizoram. LCRs to be returned. The appeal is allowed to the extent indicated above.