JUDGMENT : A.B. Chaudhari, J. 1. While Criminal Appeal No. 315 of 2002 was filed by appellant Murlidhar Ramaji Jambhule against the Judgment and Order dated 4th May, 2002 passed by learned Second Ad Hoc Additional Sessions Judge, Chandrapur, in Sessions Case No. 130 of 1996, by which appellant was convicted of offence under Section 376(2)(f) of Indian Penal Code and sentenced to undergo Rigorous Imprisonment for three years and a fine of Rs. 1,000/-, in default, Rigorous Imprisonment for two months, Criminal Appeal No. 390 of 2002 was filed by the State of Maharashtra against the same Judgment and Order dated 4th May, 2002 for enhancement of sentence for offence under Section 376(2)(f) of Indian Penal Code. 2. Both these appeals were heard together and are being decided by this common Judgment and Order. 3. It is the case of the prosecution that the incident had taken place on 22nd May, 1996 when the appellant-accused committed rape on a girl of seven years, i.e., the prosecutrix Ku. "M', in the cattle shed, in respect of which incident, an FIR [Exh.16] was lodged with Police Station by Shankar Govinda Chawakhe [PW 1], her father. The prosecution examined several witnesses and also adduced evidence of Dr. Kiran Khobragade [PW 7] to support the prosecution case by medical evidence. Trial Judge ultimately held the appellant guilty of the offence of rape on a minor girl and convicted him as stated above. 4. This Court had appointed learned Adv. Mr. R.M. Daruwala for the appellant Murlidhar Ramaji Jambhule in both these appeals. Mr. Daruwala contended that Ku. "M' [PW 4] was the only witness examined by the prosecution for proving the case of rape. The evidence of Shankar [PW 1], her father, and others was of no avail, since he only lodged an FIR and nothing more. However, the evidence of Dr. Kiran [PW 7] was tendered by the prosecution about the findings of rape by way of medical evidence. Dr. Kiran [PW 7] did not find any rape was committed, as is clear from her evidence and, therefore, the prosecution clearly failed to make out a case of rape. As such the appellant is entitled to an order of acquittal. 5. Kiran [PW 7] was tendered by the prosecution about the findings of rape by way of medical evidence. Dr. Kiran [PW 7] did not find any rape was committed, as is clear from her evidence and, therefore, the prosecution clearly failed to make out a case of rape. As such the appellant is entitled to an order of acquittal. 5. Opposing the appeal preferred by the State, Daruwala submitted that the appeal preferred by the State for enhancement of sentence is liable to be dismissed, since, as earlier stated, the offence has not been proved. At any rate, according to Mr. Daruwala, sentence of three years awarded by the learned Trial Judge cannot be said to be a lower side and having regard to the fact that the incident had alleged occurred on 22nd May, 1996, it would be unjust to raise the sentence as prayed for by the State of Maharashtra in the year 2015. 6. Per contra, learned APP for the State submitted that the Trial Judge having found that the offence of rape was committed, was not at all justified in imposing the sentence of only three years, when, admittedly, the girl was only seven years of age. The Trial Judge ought to have sentenced the appellant to ten years Rigorous Imprisonment, instead of sentencing him for three years. Opposing the appeal preferred by the appellant, counsel for the State argued that there was ample evidence on record, duly corroborated by FIR lodged by Shankar about the incident in question that the appellant had taken the girl to the cattle shed, removed her nicker and thereafter committed rape on her and, therefore, the appeal filed by the accused deserves to be dismissed. CONSIDERATION : 7. Heard learned counsel for the rival parties. Perused the entire evidence and the record. Seen the reasons given by the learned Trial Judge for recording the order of conviction. Undoubtedly, the order of conviction has been recorded under Section 376(2)(f) of the Indian Penal Code. It is an undisputed position that in so far as the offence of rape is concerned, the only evidence that is coming forth is that of Ku. "M" [PW 4], the prosecutrix, and Dr. Kiran [PW 7]. Other evidence is in the nature of corroboration. It is an undisputed position that in so far as the offence of rape is concerned, the only evidence that is coming forth is that of Ku. "M" [PW 4], the prosecutrix, and Dr. Kiran [PW 7]. Other evidence is in the nature of corroboration. It is necessary to see the evidence of PW 4 -Ku "M" as to whether her evidence really constitutes the offence of rape. I quote the following from para 1 of evidence of PW 4, which reads thus:- "1. I know the accused. Incident took place prior to about 5/6 years. At the time of incident, I was studying in Second Standard. I myself, my relative (mehuni) Manda and accused were playing. Accused came there and he took me for playing "Lapachhapi" game. Accused took me in his cattle shed. Accused removed my nicker. Accused sat on my urinal place. Then I came by crying towards my mother. I told my mother the incident which Khatya has done with me. Accused is also known as Khatya. Accused before the Court is same. There was blood on my urinal place. My father went for the marriage and he returned at about 3.00 p.m., at my house. My father took me in Bhadrawati hospital." 8. Perusal of the above evidence of PW 4 Ku. "M", the prosecutrix, clearly shows that the crucial evidence about actual commission of rape is highly doubtful. She stated that accused took her in cattle shed. He removed her nicker. Thereafter, accused sat on her urinal place. The said evidence that the accused sat on her urinal place is an omission amounting to contradiction and has been duly proved by the defence. Therefore, the actual act of rape or the penetration has not been proved by the prosecution. The requirement of law is that the prosecution must prove the minimum, i.e., the penetration. She has not stated a word about "penetration" even on the basis of said statement that the accused sat on her urinal place. In my opinion, even if accused sat on the urinal place, one cannot directly jump to the conclusion that this statement would lead one to hold that there was penetration, apart from the fact that the said portion itself is an omission. It is true that there is a further evidence given by her that there was blood on her urinal place. It is true that there is a further evidence given by her that there was blood on her urinal place. But then, in the absence of evidence of penetration, it is not possible to believe that because of any penetration, there was blood on urinal place and, therefore, the evidence becomes doubtful about the actual penetration, which the Sine qua non, for holding one guilty for offence of rape. 9. Next is the evidence of Dr. Kiran [PW 7]. Dr. Kiran in para 3 of her evidence stated thus:- "3...I examined her. I gave answers to the queries after examination as follows:- (i) The age of girl is about 7 years. (ii) Intercourse took place on the girl and it was prior to 48 hours. (iii) Swelling and redness present at valva, hymen is ruptured, at 10.00 O'clock position. No bleeding per vagina. (iv) She was frightened and she was in mental trauma. (v) No injuries were observed on the body." The evidence of Dr. Kiran does show swelling and redness present on vulva and rupture of hymen at 10 O'clock position. But then there is no bleeding present, nor any signs of blood have been found by the doctor. The same doctor, who examined the accused, did not find any injury on the accused person or rather on his glance penis and she stated in cross-examination that in such cases of a rape on the girl of seven years, the penis gets injury. From the evidence of doctor, it is clear that the evidence of rape is absent and the evidence of doctor is not a substantive evidence, but in the form of corroboration. As observed by me above, since the prosecutrix did not say anything about the penetration and the evidence of doctor also creates a doubt as to whether really there was a penetration which is the requirement of law, it is not possible to uphold the finding of conviction for rape under Section 376(2)(f) of Indian Penal Code. I, therefore, set aside the findings of conviction for the offence of rape. 10. The next question is, on the above evidence, what offence is constituted? In my opinion, the evidence of PW 4 Ku. I, therefore, set aside the findings of conviction for the offence of rape. 10. The next question is, on the above evidence, what offence is constituted? In my opinion, the evidence of PW 4 Ku. M clearly shows that the accused removed her nicker and the girl thereafter went crying towards her mother and told her about the incident which occurred due to the act of the accused with her and that there was, as per the evidence of doctor, swelling and redness present at vulva. This clearly shows that the appellant had made an attempt to commit rape on her. The submission made by the defence counsel that no offence is committed at all does not, therefore, at all appeal to me, since in so far as attempt to rape is concerned, the evidence of PW 4 -Ku. M is fully corroborated by the evidence of PW 7 Dr. Kiran. 11. The submission made by the learned counsel for the State that this Court should accept the evidence of the girl, she being of the age of seven years, she could not be expected to tell everything including the penetration, does not appeal to me. The reason is that the requirement of law that the prosecution must prove its case beyond a reasonable doubt, that too by satisfactory evidence. Merely because the age of the girl is seven years, this Court is under no duty to record a moral conviction. The conviction, if any, must be based on the legal evidence and not on the morality. Court cannot send somebody to jail for a serious offence of rape merely on probabilities or the morality, if the offence is not really proved. 12. In so far as the sentence for attempt to commit rape is concerned, I find that the appellant has been sentenced to imprisonment for three years and a fine of Rs. 1,000/- on 4th May, 2002. I think looking to the date of incident, namely 22nd May, 1996, the date of conviction and the long period, that has already passed, sentence of three years for attempt to commit rape already awarded by the Trial Judge should not be disturbed and the same should be maintained without enhancing the same. In the result, I make the following order:- ORDER: [a] Criminal Appeal Nos. 315 and 390 both of 2002 are dismissed. In the result, I make the following order:- ORDER: [a] Criminal Appeal Nos. 315 and 390 both of 2002 are dismissed. [b] The appellant-accused is held not guilty of the offence of rape, but is held guilty of attempt to commit rape, without disturbing and enhancing the sentence awarded by the Trial Judge and the same is maintained. [c] Fees payable to learned Adv. Mr. R.M. Daruwala for the appellant-accused are quantified at Rs.3,000-00 [rupees three thousand only] in each case.