JUDGMENT : 1. Since these two appeals are in respect of the same judgment and order passed by the learned Fast Track Court Judge, Ramanagara and since common questions of law and facts are involved in both the appeals, they are taken together to dispose of them by this common order. 2. Criminal Appeal No.83/2013 is preferred by the State being aggrieved by the judgment and order dated 10.10.2012 passed in Sessions Case No.66/2010 on the file of the Presiding Officer, Fast Track Court at Ramanagara, wherein the respondent-accused has been acquitted for the offence punishable under Section 376 of IPC. Criminal Appeal No.85/2013 is also preferred by the State being aggrieved by the part of judgment and order dated 10.10.2012 passed in Sessions Case No.66/2010 on the file of Presiding Officer, Fast Track Court, Ramanagara wherein the respondent-accused has been convicted for the offence punishable under section 511 of IPC, on the ground that sentence imposed on the accused is inadequate. 3. Brief facts of the prosecution case are, mother of victim girl, has lodged a complaint as per Ex.P1, stating that victim is her daughter, aged 6 years. When she had been to the public tap to collect water, accused person who was present there on the pretext of giving sweets to her, took her to the hut situated nearby and had removed the clothes of the victim girl and firstly, made an attempt for sodomy and then tried to commit rape on her. At that time, since the girl screamed, complainant on hearing her screaming voice rushed to the said place and saw that accused person was making an attempt to commit rape on her daughter. On seeing the complainant, accused person ran away from the said place. Accordingly, it is stated by the complainant that accused person may be secured and appropriate action may be taken against him. On the basis of the said complaint, case came to be registered in Crime No. 47/2010 for the offence punishable under Section 376 read with Section 511 of IPC. After conducting investigation, the Investigating Officer has filed the charge sheet as against the accused person for the offences punishable under Section 376 and 511 of IPC. Thereafter, the learned Fast Track Court Judge, Ramanagara has framed the charges as against the accused for the offences punishable under Sections 376 and 511 of IPC. After conducting investigation, the Investigating Officer has filed the charge sheet as against the accused person for the offences punishable under Section 376 and 511 of IPC. Thereafter, the learned Fast Track Court Judge, Ramanagara has framed the charges as against the accused for the offences punishable under Sections 376 and 511 of IPC. When the charges were read over and explained to the accused, he denied the charges and claimed to be tried. Accordingly, matter was set down for conducting trial. In support of its case, the prosecution in all examined 12 witnesses as PWs1 to 12 and got marked 11 documents with sub-markings and 12 material objects as M.Os.1 to 12. Thereafter, accused person has been examined under Section 313 of Cr.P.C and his statement came to be recorded. On the side of the defence, no witnesses were examined or any documents were marked. On hearing the arguments of both sides and considering the materials placed on record, both oral and documentary, the learned Fast Track Court Judge has come to the conclusion that the prosecution was able to establish the offence punishable under Section 511 of IPC, but has failed to prove the offence punishable under Section 376 of IPC. The learned Fast Track Judge has convicted the accused for the offence under Section 511 of IPC and sentenced him to undergo simple imprisonment for a period of two years and four months and also imposed a fine of Rs.1000/-, in default to pay the fine amount, to undergo simple imprisonment for a period of one month. Being aggrieved by the judgment and order passed by the learned Fast Track Judge, Ramanagara, the State is before this Court in these two appeals. 4. We have heard the learned Additional State Public Prosecutor for the appellant-State and the learned Amicus Curiae for the respondent-accused, in respect of both the appeals. 5. Learned Additional State Public Prosecutor has submitted that looking to the prosecution material and more particularly the oral evidence of P.Ws.1 and 2, the mother of victim girl and the victim girl herself and also the oral evidence of PW7/Dr.Chandrakala who has examined the victim girl, prosecution has proved the charge as against the accused even for the offence under Section 376 of IPC. It is submitted that the oral evidence of PW8/Ananth Ramaiah –Head Constable who has been deputed to apprehend the accused person clearly shows that the accused has been apprehended on 22.03.2010 i.e., eleven days after the alleged incident. Till such time, accused remained absconded from the village which clearly shows that he was having guilty conscious. He also referred to the evidence of other prosecution witnesses and submitted that the prosecution has established the charge even for the offence under Section 376 of IPC with worth believable material. As such, the learned Fast Track Judge ought to have convicted the accused even for the offence punishable under Section 376 of IPC. He submitted that there is a wrong reading of the entire material by the learned Fast Track Judge that there is no proof of alleged offence under Section 376 of IPC and convicted the accused only for the offence under Section 511 of IPC. Hence, it is submitted that in view of the materials available on record, both the appeals be allowed by setting aside the judgment and order passed by the learned Fast Track Judge. 6. Per-contra, learned Amicus Curiae appearing for the accused taking us through the entire material on record submitted that the complaint averments itself shows that it is merely an attempt to commit rape and not a case of rape. He refers to the oral evidence of P.W.1, the mother of the victim girl, so also, P.W.7, the Doctor’s evidence and submitted that even the evidence of these two witnesses would show that it only an attempt and not a completed offence of rape. It is submitted that though as per the evidence of PW7, there was injury to the private part of the victim girl and the hymen was ruptured, in her chief examination, PW7 has clearly admitted that if there is an attempt to commit rape, there is possibility of sustaining injury to the private part as well as rupturing of the hymen. Even looking to this material, it can be said that there is an attempt to commit rape but not completed offence of rape. With regard to the evidence of PW2victim girl, learned Amicus Curiae submitted that the questions put to PW2 and the answers given by the victim girl, are not specifically mentioned by the learned Fast Track Court Judge in the deposition of PW2. With regard to the evidence of PW2victim girl, learned Amicus Curiae submitted that the questions put to PW2 and the answers given by the victim girl, are not specifically mentioned by the learned Fast Track Court Judge in the deposition of PW2. The same could have been done to appreciate the fact as to whether the victim girl was having understanding capacity to give evidence in the proceedings. On that ground also, the learned Amicus Curiae has challenged the procedure adopted by the learned Fast Track Court Judge and submitted that looking to all the materials placed by the prosecution, both oral and documentary, the learned Fast Track Court Judge has rightly come to the conclusion in holding that, only the offence under Section 511 of IPC has been established by the prosecution and not the offence under Section 376 of IPC. Accordingly, it is submitted that no illegality has been committed by the learned Fast Track Court Judge in holding that the offence of rape has not been established by the prosecution and no grounds are made out to interfere into the well reasoned judgment and order passed by the learned Fast Track Court Judge. Accordingly, sought for dismissal of both the appeals. 7. We have perused the grounds urged in the appeal memorandum in respect of both the appeals, oral evidence of PWs.1 to 12 and the documents produced by the prosecution before the trial court. We have also considered the oral submissions made by the learned counsel on both sides at the bar. 8. Let us examine as to whether, the learned Fast Track Court Judge has come to the right conclusion in the matter or the matter requires interference in these two appeals. 9. Perusing the contents of Ex.P1, the complaint, it is no doubt true as submitted by the learned Amicus Curiae, P.W.1, mother of the victim girl has stated that on the date of incident, she saw that accused was making an attempt to commit rape on her daughter P.W.2. But during the course of her oral evidence PW1 has deposed that on that day as her uncle had expired, she had been to attend his funeral. She came back and took bath, at that time, her victim daughter was playing nearby the Anjaneyaswamy Temple where a public tap is situated. But during the course of her oral evidence PW1 has deposed that on that day as her uncle had expired, she had been to attend his funeral. She came back and took bath, at that time, her victim daughter was playing nearby the Anjaneyaswamy Temple where a public tap is situated. Thereafter on hearing weeping noise of her daughter, complainant went to the said place and saw that there were no clothes on the body of victim and accused person had removed the clothes of victim, made her to lie on the ground and he had also removed his nicker and pant and was wearing only the shirt and he was putting his private part into the private part of her daughter and was committing rape on her. She assaulted the accused with the help of coconut shell and also with mud crust to the lower limb of the accused. When she came out of the shed to call other persons for help, the accused ran away towards the garden of one Ramanna. She also deposed in her evidence that there was injury on the private part and also inside the private part of her daughter and it was bleeding. The victim girl was weeping stating that there is burning sensation in the private part. Then she gave bath to her daughter and told about the same before the elders. They advised the complainant to go the police station and give complaint. Accordingly, she went to the police station and lodged the complaint as per Ex.P1. She identified her signature as Ex.P1(a). She further deposed that before lodging the complaint she took her daughter to the hospital and after lodging the complaint, police have conducted the mahazar. At that time, CW5 Chowdaiah, CW4 Muniyappa and other people of the village were present. She deposed that she has seen the mahazer – Ex.P2 and it bears her signature as per Ex.P2(a). In her cross-examination she deposed that when she came back from attending the funeral to her house, there were five persons in her house. Her house is a tiled roof house. In between Anjaneyaswamy Temple and her house there is one more house. Usually people would be there in the said temple. In her cross-examination she deposed that when she came back from attending the funeral to her house, there were five persons in her house. Her house is a tiled roof house. In between Anjaneyaswamy Temple and her house there is one more house. Usually people would be there in the said temple. At about 2.00 to 2.30 p.m. on the date of incident her daughter was playing near the tap of the said temple and people would be coming to the said tap to collect water. When it was suggested that always the said place would be crowded with people, she answered that there would be some persons. She further deposed that she heard the weeping noise of her daughter from the shed. When she went and saw her, only petty coat was there on the body of her daughter and accused was wearing only shirt and had removed his pant and nicker. She herself has seen the accused committing the offence on her daughter. After she shouted and made hue and cry, people started coming to the said place, in the meanwhile, accused person ran away from the said place. She bathed her daughter and thereafter took her to the hospital. She also deposed that earlier there was no any sort of galata between herself and the accused person. 10. In the deposition of PW2 – victim it is mentioned by the learned Fast Track Court Judge that in the beginning some questions were put to the victim girl and as she has given proper answers, he considered that the victim is capable to give evidence in the matter and the proceedings were conducted in-camera. The victim girl has deposed that she has seen the accused person present before the Court. He is from Kudur. On the date of incident, she was playing at the temple. Accused person told her that he will give her Rs.10/- and also will get chocolates to her and took her near by the hut and made her to lie on the ground and pushed the langa upwards and put his private part into the her private part. She sustained injury on her private part and by that time her mother came to the said place. She has also deposed that she told about these things before the police also. Her mother took her to the hospital and got her treated. She sustained injury on her private part and by that time her mother came to the said place. She has also deposed that she told about these things before the police also. Her mother took her to the hospital and got her treated. In the cross-examination, she deposed that when she was playing nearby the temple, the accused had slept in the said temple and at that time only herself and accused person were present in the temple and there were no other small children. The alleged hut is situate behind her house and accused took her to the said hut. Initially he gave Rs.10/- to her and thereafter snatched the same. She screamed loudly. She also deposed that when she went to the hut there were clothes on her body, but accused removed her clothes and she told before her mother that she is getting pain in her private part. Then she was bathed and taken to the hospital by her mother, but she does not know the day on which she was taken to the hospital. She further deposed that on some other day she was taken to the hospital and not on the same day and when police came to the house, she has given statement before them. When she was in hospital, police did not come to the hospital and enquire her. 11. P.Ws3, 4 and 5, all these witnesses have turned hostile to the case of the prosecution. When they were cross examined by the Public Prosecutor, nothing has been elicited from their mouth to believe the story of prosecution. 12. PW7 – Dr. Chandrakala has deposed that Kudur Police Sub-Inspector gave the requisition on 11.03.2010 at about 4:00 p.m. stating that there is a sexual assault on the child aged 7 years old and made a request to examine the child and to submit the report. She went to the hospital at about 4:00 p.m. and examined the victim girl. During her examination, she noticed two injuries, viz., 1. The left side of the labia majora was injured, 2. The hymen was ruptured. Accordingly, she submitted her report as per Ex.P7 and Ex.P7(a) is her signature. The mother of the victim girl told that the girl was sexually assaulted at 2:30 p.m. on the date of incident. During her examination, she noticed two injuries, viz., 1. The left side of the labia majora was injured, 2. The hymen was ruptured. Accordingly, she submitted her report as per Ex.P7 and Ex.P7(a) is her signature. The mother of the victim girl told that the girl was sexually assaulted at 2:30 p.m. on the date of incident. She collected the skirt, underwear and also vaginal swab of the victim girl and sealed those articles and sent them to the police. She has stated that when there is an attempt to commit rape, there is a possibility of sustaining injury that she has mentioned. In the cross-examination, she deposed that she submitted report as per Ex.P7 on 12.03.2010. There is a possibility of sustaining such injuries with the help of nails or when the fingers were put into the private part. On seeing the injuries on the victim girl, she can assess the time of the commission of the offence. She admitted the suggestion that if there are scabs or bubbles on the said part and if a person with the help of fingers or nails scratches the said portion, there is a possibility of sustaining said injuries on labia majora. She also admitted the suggestion that there are possibilities of occurring of such injuries at the outer part of the vagina. There are possibilities of injury Nos.1 and 2 mentioned by her, even though there is no sexual assault. 13. PW8 – Head Constable has deposed that on 21.03.2010 himself and Police Constable 1501 Ramakrishna were deputed to search and apprehend the accused person. They went towards Tumkur and other places. On the basis of the information of the informant, they apprehended the accused person on 22.03.2010 (the month is wrongly typed as 2 instead of 3 in the deposition) near Halegubbi in the morning at 6:00 a.m. and they produced him before the Circle Inspector, Magadi at 8.30 a.m. and same was informed to his superiors. In the cross-examination of this witnesses no suggestion is made that the accused was apprehended at the said place on 23.02.2010 and that the accused never raped and absconded and was very much available in the village. 14. P.W.12, the Investigating Officer has deposed that on 22.3.2010 he received the case file from PSI, Kudur and verified the investigation done so far. 14. P.W.12, the Investigating Officer has deposed that on 22.3.2010 he received the case file from PSI, Kudur and verified the investigation done so far. On the same day, he deputed Head Constable Ananth Ramaiah and Ramakrishnaiah in search of the accused and received the report submitted by the said Police Personnel as per Ex.P10 and Ex.P10(a) is his signature. On 18.4.2010 he recorded the statements of Siddalingamma, Muniyappa, Chowdaiah and the victim girl, so also, further statement of Narasamma, the complainant and also received the FSL report, so also, report from the medical officer. 15. Though the complainant has mentioned in the complaint that accused was making an attempt to commit rape on her daughter, but the evidence of the victim girl P.W.2 clearly shows that accused person has put his private part into the private part of the victim girl and because of that she sustained injury on her private part and also there was bleeding. The evidence of the victim girl is also corroborated by the evidence of P.W.7, the doctor who also deposed that left side of labia majora was injured and hymen was ruptured which clearly shows that it is possible only by penetration of a private part of the accused person. the medical report also in support of the prosecution case. Even the penetration of the private part of a male is sufficient to complete the offence of rape even though there is no discharge or ejaculation. Further the evidence of the victim girl is supported by the medical evidence. Though P.W.7 during her cross-examination has deposed that there is possibility of sustaining such injuries with nails or when there is a scratch by the fingers, no such suggestions were made to P.W.2 victim girl. In that light, it is not acceptable. 16. Insofar as the conduct of the accused person is concerned, if he was innocent and not involved in committing the said offences, there was no necessity for him to leave the village for a period of 11 days. The fact of his abscondence for 11 days is established by the prosecution with worth believable material i.e., by the evidence of P.W.8 constable wherein he has clearly deposed that himself and another police constable were deputed to apprehend the accused and after searching the village and nearby places they apprehended the accused person on 22.3.2010. The fact of his abscondence for 11 days is established by the prosecution with worth believable material i.e., by the evidence of P.W.8 constable wherein he has clearly deposed that himself and another police constable were deputed to apprehend the accused and after searching the village and nearby places they apprehended the accused person on 22.3.2010. During the course of cross-examination, there is no suggestion that he has not at all apprehended the accused person at the said place and he was very much available in the village. In the absence of such a suggestion, the prosecution was able to prove that there was abscondence of the accused, since as per Section 8 of the Indian Evidence Act, the conduct of the accused is very much material in appreciating the case of the prosecution as well as defence of the accused. 17. The oral and documentary evidence available on record clearly establishes that there was a completed offence of rape on the victim girl by the accused and only on the ground that P.W.1, the complainant has mentioned in the complaint that there was an attempt to commit rape, the entire material on record cannot be brushed aside. The learned Fast Track Judge has lost sight of these important materials and has wrongly opined that there is only an attempt and not a completed offence of rape. The finding arrived at by the learned Fast Track Judge is perverse and capricious and not sustainable in law. 18. Accordingly, Crl.A.No.83/2013 is allowed. We are of the opinion that prosecution has proved the charge as against the accused for the offence under Section 376 of IPC. Accordingly, accused is convicted for the offence under Section 376 of IPC. Since the offence under Section 376 of IPC itself is proved, the question of considering Crl.A.No.85/2013 for the offence under Section 511 of IPC does not survive for consideration. Hence, Crl.A.No.85/2013 stands disposed of. At this stage, we have heard the learned Amicus Curiae, so also, the learned Addl. State Public Prosecutor on the aspect of sentence. Learned Amicus Curiae has submitted that P.W.6Dr.Prabhudeva Gowda has deposed that accused person is aged between 60-65 years and in view of the same, some leniency may be shown to the accused while imposing sentence on him. But the learned Addl. State Public Prosecutor on the aspect of sentence. Learned Amicus Curiae has submitted that P.W.6Dr.Prabhudeva Gowda has deposed that accused person is aged between 60-65 years and in view of the same, some leniency may be shown to the accused while imposing sentence on him. But the learned Addl. State Public Prosecutor has opposed the same contending that such a heinous offence has been committed on the girl aged 6 years, as such, no such leniency be shown towards him and maximum sentence be imposed on him for the said offence. 19. Perusing the entire material placed on record and the submissions made by the learned Amicus Curiae regarding the age factor of the accused person, we are of the opinion that 10 years rigorous imprisonment with fine of Rs.10,000/- is appropriate and reasonable. Accordingly, the respondent-accused is convicted and sentenced to undergo rigorous imprisonment for a period of 10 years and to pay a fine of Rs.10,000/-, in default to pay the fine amount, to undergo further simple imprisonment for a period of six months, for the offence punishable under Section 376 of IPC. Out of the fine amount realized, an amount of Rs.9,000/- be paid to the victim girl by way of compensation under Section 357 of Cr.P.C. and remaining amount of Rs.1,000/- be remitted to the State. The accused is entitled for set off of the custody period he has already undergone. The concerned trial Court shall secure the accused to undergo the sentence imposed. We appreciate the valuable assistance rendered by Sri. B.N. Jagadeesh, learned Amicus Curiae. Hence, Registry is hereby directed to pay an amount of Rs.10,000/- (Rupees Ten thousand only) to the learned Amicus Curiae, as honorarium.