JUDGMENT 1. This Appeal has been directed against the judgment and order dated 7 th December, 2007 delivered by learned 2nd Ad-hoc Additional Sessions Judge, Gadchiroli in Sessions Case No.49/2001 convicting the appellant (hereinafter referred to as the ''accused'' ) for offence punishable under Section 376 read with Section 511 of the Indian Penal Code and sentencing him to suffer rigorous imprisonment for a period of two years. 2. The factual matrix of the prosecution case can be narrated as under : The victim (PW4), who was aged about 10-years at the relevant point of time, was resident of Ward No.1 Aheri and was prosecuting her studies in V standard at Saibaba High School. The accused, aged about 22-years, was residing opposite the house of the victim. On the day of the incident i.e. 8.5.2001, at about 7.00pm, the accused came to the house of the victim. At that time, her mother had gone out to the market, whereas her father was busy with his work in a shop. The accused asked the victim to accompany him and said that they would make a phone call to her house from the terrace and enjoy the phone. PW4-victim along with the accused went to the terrace to the house of the accused. From that place, the accused made a phone call to the father of the victim and the victim talked with her father and switched off the phone. Thereafter, the accused kissed the victim and committed forcible sexual intercourse with her. It is the case of the prosecution that the victim returned to her house weeping and narrated the ordeal to her father. The father of the victim along with some other persons went to the house of the accused, however, the accused and his mother quarreled with them. The victim along with her father proceeded to the Police Station and lodged the complaint (Exh. 52). 3. The offence came to be registered on the basis of the report lodged by the victim. The accused was arrested on the same day. The victim as well as the accused were referred for medical examination. The clothes of the accused as well as that of the victim were seized vide seizure panchnama (Exh.42). Seized articles were sent to the CA office for its examination. The accused was arrested on the same day. The victim as well as the accused were referred for medical examination. The clothes of the accused as well as that of the victim were seized vide seizure panchnama (Exh.42). Seized articles were sent to the CA office for its examination. The spot panchnama (Exh.39) was drawn on the same day, so also the mobile set of the accused was seized. The statements of the witnesses were recorded. After completion of due investigation, charge-sheet was submitted in the court of learrned JMFC Aheri. The case was committed to the Court of Sessions at Gadchiroli. The learned Sessions Judge after recording the evidence and hearing both sides convicted the accused, as aforesaid. Earlier the charge was framed for offence punishable u/s.376 IPC; however the accused was convicted for offence punishable under section 376 read with section 511 of the IPC. 4. The prosecution has examined in all nine witnesses. The defence of the accused was of total denial. I have heard Mr. G.G. Bade, learned Advocate for the accused and Mr. Amit Chutke, learned APP for the respondent-State. With their able assistance I have gone through the record and proceedings of the case. 5. The learned counsel for the accused vociferously argued that the learned trial Judge has not assessed the evidence led by the prosecution witnesses in its proper perspective and has erroneously convicted the accused. He submitted that even though there are glaring discrepancies in the testimony of the witnesses examined by the prosecution, still the accused was convicted, based on the said evidence. He further submitted that there is absolutely no medical evidence on record to connect the accused with the guilt and relying upon the testimony of the victim, who was a child witness, the trial Judge has convicted the accused. The learned Advocate submitted that the entire case of the prosecution is under the shadow of doubt and, in view thereof, prays that the impugned judgment be set aside. 6. Per contra, Mr. Amit Chutke, learned APP supported the impugned judgment and order and submitted that the evidence was properly assessed by the trial Court and there are no material discrepancies as such in the testimony of the witnesses which go to the root of the prosecution case and the accused herein has been rightly convicted by the trial Court. Per contra, Mr. Amit Chutke, learned APP supported the impugned judgment and order and submitted that the evidence was properly assessed by the trial Court and there are no material discrepancies as such in the testimony of the witnesses which go to the root of the prosecution case and the accused herein has been rightly convicted by the trial Court. He submitted that the testimony of the victim is consistent and cogent and although the medical evidence does not support the case of the prosecution, the CA report is positive, in the sense that the semen stains were found on the frock of the victim. He lastly submitted that the evidence on record establishes the guilt of the accused guilty for offence punishable u/s. 376 r/ws. 511 of the IPC. 7. In order to appreciate the rival contentions of both sides the evidence of the witnesses is to be scrutinized carefully. The prosecution has heavily relied upon the testimony of the child witness PW4-victim, who was aged about ten years at the relevant time. At the outset,it may be mentioned that the age of the victim is not disputed by the defence. It is well-settled by now that the evidence of the child witness is to be scrutinized carefully as the chances of being tutored cannot be completely ruled out. 8. The testimony of PW4-victim shows that on the fateful day, i.e. 8.5.2001, the accused who was residing in front of her house visited her house while she was watching TV. The accused too came to watch TV. At that time, her parents were not present in the house. The accused switched off the TV and asked her to accompany him to the terrace of his house and said that they will have fun on mobile. Accordingly, PW4 alongwith Akshita Jakkojwar(PW7), Chaitali (not examined) and Anuja (not examined) proceeded to the terrace of the house of the accused. The accused gave a phone call to the father of the victim. The victim talked to her father and informed him that she was on the terrace of the house of the accused. According to PW4, the accused then kissed her. The accused asked the other children to return to their house as he was making a phone call. Accordingly, the other children went away. The accused then forcibly made the victim to lie down and touched her breasts. According to PW4, the accused then kissed her. The accused asked the other children to return to their house as he was making a phone call. Accordingly, the other children went away. The accused then forcibly made the victim to lie down and touched her breasts. He also touched her private part. The accused then forcibly committed intercourse with her. The victim tried to raise an alarm however the accused gagged her mouth by his hand. Thereafter the accused left that place. The victim went to her house and narrated the incident to her father. PW6-Devidas, her father along with her uncle and brother went to the house of the accused. However the accused and his father were not ready to listen. The victim then along with her parents proceeded to the Police Station and lodged oral report (Exh.52). 9. An exhaustive cross-examination of PW4-victim shows that her testimony is not shaken. The victim however admitted that she has not used the word ''rape'' when she actually disclosed the actual happening of the incident to the Police. However, the said version does not lose the credibility of the victim in any manner. It was suggested to the victim that there is a kirana (grocery) shop in the house of the accused and also a cloth shop. She admitted that her parents used to purchase the grocery as well as clothes from the shop of the accused. So also her parents were having credit account in the those shops and due to the some credit amount there was a quarrel between the father of the accused and her father and due to the said quarrel, her father had threatened the father of the accused that he would involve the accused in a false case. The victim vociferously denied the said case put up to her. 10. The testimony of the victim finds corroboration from the evidence of PW7-Akshita to the effect that they all were taken by the accused on the terrace of his house, by the accused. Thereafter the accused sent all of them away, except the victim, on the pretext of receiving a phone call. Accordingly, all the children came down from the terrace except the victim who was left with the accused. PW7 denied that all of them have lodged a false case against the accused. 11. Thereafter the accused sent all of them away, except the victim, on the pretext of receiving a phone call. Accordingly, all the children came down from the terrace except the victim who was left with the accused. PW7 denied that all of them have lodged a false case against the accused. 11. The evidence of PW5-Shobha Kaidalwar, who is the aunt of the victim, indicates that at the time of the incident she was a guest in the house of the victim. At the relevant time, she was present along with victim at the house, watching the TV. The accused came to the house to watch TV. The children including PW 7-Akshita were playing in the courtyard. After some time, the accused left that place along with the victim and other children. After some time, she received a phone call. It was from the victim and victim informed her she was on the terrace of the house of the accused. After half-an-hour, the victim returned to her house crying. On making enquiry, the victim disclosed the incident to her. At the relevant time, the parents of the victim also returned to the house. The victim narrated the incident to all of them. No doubt, PW5- Shobha has tried to exaggerate by saying that she examined the private part of the victim and found swelling on it. However, it is common knowledge that normally in such matters the witnesses are in the habit of exaggerating the things. It was also suggested to the victim in her cross-examination that there was a quarrel between her father and father of the accused and the father of the victim had threatened the accused to implicate him in a false case. The testimony of PW5-Shobha is corroborated with the testimony of the victim on material aspects. 12. The deposition of the father of the victim, Devidas (PW 6) is also on the same lines. According to him, the victim talked to him on phone and informed that she was on the terrace of the house of the accused. On returning home, the victim disclosed the incident to him. PW6 deposed that the victim informed him that she was taken by the accused on the terrace and by removing clothes, he forcibly committed intercourse with her. PW6 along with other person, then went to the house of the accused. On returning home, the victim disclosed the incident to him. PW6 deposed that the victim informed him that she was taken by the accused on the terrace and by removing clothes, he forcibly committed intercourse with her. PW6 along with other person, then went to the house of the accused. However the accused was not present in the house. His father denied that his son has committed such a heinous act. PW6 also denied the case put to him that he used to purchase clothes from the shop of the accused on credit and when the father of the accused demanded money there was an altercation between them and PW6 threatened the father of the accused to falsely implicate the accused in a case. PW6,however, denied that his daughter did not use the term intercourse. 13. The testimony of the aforesaid witnesses indicate that on the day of the incident i.e. 8.5.2001 at 7.00 p.m. the victim was taken by the accused on his terrace along with other children. He accused asked the other children to go away and when he was alone with the victim, he committed sexual intercourse with her. The identity of the accused is not challenged by the defence; so also the testimony of all these witnesses has not been shattered in the cross-examination. Significantly, the victim was ten years old at the relevant point of time and when her evidence was recorded she was 16-years old. The age of the victim is not disputed by the defence. 14. Now coming to the medical evidence, the deposition of PW2 Dr. Pravin Kinake, the medical officer, shows that there was no sign of external injury to the vulva with intact hymen. PW2 opined that the penetration had not occurred. Thus, undisputedly the medical evidence does not corroborate with the testimony of the victim in the context of commission of forcible sexual intercourse with her. 15. The seizure panchnama (Exh.42) indicates that the clothes of the victim i.e. body frock, frock and knicker were seized from the victim on 10.5.2001, two days after the incident, showing stains on it. 16. PW3-Sanjiv Ratnawar deposed about the fact that he acted as a panch while the seizure panchnama was prepared. No doubt, PW3 only speaks about the seizure of underwear from the victim. He deposed that he has signed on the said panchnama. 16. PW3-Sanjiv Ratnawar deposed about the fact that he acted as a panch while the seizure panchnama was prepared. No doubt, PW3 only speaks about the seizure of underwear from the victim. He deposed that he has signed on the said panchnama. PW 3 categorically denied that all the seizure panchnamas were prepared by the police and thereafter at once he signed those papers. It is not shaken in the cross-examination of PW3 that the clothes of the victim were taken charge by the police in his presence and the police prepared the panchnamas accordingly. 17. The testimony of PW9-Dilip Zalake, the Investigating officer also shows that he has seized the clothes of the victim and sent seized clothes to the CA office with his requisition (Exh.48). It is worthwhile to note that the CA report (Exh.69) shows that human semen was detected on the frock of the victim. Thus, the CA report supports the case of the prosecution. 18. The overall assessment of the evidence on record shows that at the time of the incident, the victim was aged about ten years. No doubt, she narrated the incident to her parents immediately after the incident and accordingly the oral report was also lodged by her on the same day. However the medical evidence does not support the version of the victim that forcible sexual intercourse was committed by the accused. In any case, the testimony of the victim with regard to the fact that she was taken by the accused on the terrace of the house of the accused and he touched his private part to her private part has not been shaken in the cross-examination at all. So also the presence of the accused with the victim on the terrace of the house of the accused has been established by the prosecution. Considering the age of the victim at the relevant time, the victim might have not understood as to what actual act the accused committed with her particularly when the accused tried to insert his private part to her private part. However the fact remains that from the evidence of the victim, it appears that the accused simply touched his private part to the private part of the victim. It further appears that prior to the commission of rape, the accused discharged his semen and, therefore, the semen stains were found on the frock of the victim. However the fact remains that from the evidence of the victim, it appears that the accused simply touched his private part to the private part of the victim. It further appears that prior to the commission of rape, the accused discharged his semen and, therefore, the semen stains were found on the frock of the victim. Thus the case of attempt to commit rape is made out by the prosecution. 19. In case of Aman Kumar and another v. State of Haryana, reported in (2004) 4 SCC 379 , the Hon''ble Apex Court has held as under:- 9. A culprit first intends to commit the offence, then makes preparation for committing it and thereafter attempts to commit the offence. If the attempt succeeds, he has committed the offence; if it fails due to reasons beyond his control, he is said to have attempted to commit the offence. Attempt to commit an offence can be said to begin when the preparations are complete and the culprit commences to do something with the intention of committing the offence and which is a step towards the commission of the offence. The moment he commences to do an act with the necessary intention, he commences his attempt to commit the offence. The word ''attempt'' is not itself defined, and must, therefore, be taken in its ordinary meaning. This is exactly what the provisions of Section 511 require. An attempt to commit a crime is to be distinguished from an intention to commit it; and from preparation made for its commission. Mere intention to commit an offence, not followed by any act, cannot constitute an offence. '' 11. In order to find an accused guilty of an attempt with intent to commit a rape, court has to be satisfied that the accused, when he laid hold of the prosecutrix, not only desired to gratify his passions upon her person, but that he intended to do so at all events, and notwithstanding any resistance on her part. Indecent assaults are often magnified into attempts at rape. In order to come to a conclusion that the conduct of the accused was indicative of a determination to gratify his passion at all events, and in spite of all resistance, material must exist.'' ''5. It is well settled that a prosecutrix complaining of having been a victim of the offence of rape is not an accomplice after the crime. In order to come to a conclusion that the conduct of the accused was indicative of a determination to gratify his passion at all events, and in spite of all resistance, material must exist.'' ''5. It is well settled that a prosecutrix complaining of having been a victim of the offence of rape is not an accomplice after the crime. There is no rule of law that her testimony cannot be acted upon without corroboration in material particulars. She stands on a higher pedestal than an injured witness. In the latter case, there is injury on the physical form, while in the former it is both physical as well as psychological and emotional.'' 19. In State of Maharashtra .vs. Chandraprakash Kewalchand Jain, reported in 1 (1990) 1 SCC 550 , time and again, it is held by the Hon''ble Apex Court that : ''A prosecutrix of a sex offence cannot be put on a par with an accomplice. She is in fact a victim of the crime. The Evidence Act nowhere says that her evidence cannot be accepted unless it is corroborated in material particulars. She is undoubtedly a competent witness under Section 118 and her evidence must receive the same weight as is attached to an injured in cases of physical violence. The same degree of case and caution must attach in the evaluation of her evidence as in the case of an injured complainant or witness and no more. What is necessary is that the court must be alive to and conscious of the fact that it is dealing with the evidence of a person who is interested in the outcome of the charge levelled by her. If the court keeps this in mind and feels satisfied that it can act on the evidence of the prosecutrix, there is no rule of law or practice incorporated in the Evidence Act similar to Illustration (b) to Section 114 which requires it to look for corroboration. If for some reason the court is hesitant to place implicit reliance on the testimony of the prosecutrix it may look for evidence which may lend assurance to her testimony short of corroboration required in the case of an accomplice. The nature of evidence required to lend assurance to the testimony of the prosecutrix must necessarily depend on the facts and circumstances of each case. The nature of evidence required to lend assurance to the testimony of the prosecutrix must necessarily depend on the facts and circumstances of each case. But if a prosecutrix is an adult and of full understanding the court is entitled to base a conviction on her evidence unless the same is shown to be infirm and not trustworthy. If the totality of the circumstances appearing on the record of the case disclose that the prosecutrix does not have a strong motive to falsely involve the person charged, the court should ordinarily have no hesitation in accepting her evidence.'' As regards the concealment of the offence, it is further held that : ''A girl, in a tradition-bound non-permissive society in India, would be extremely reluctant even to admit that any incident which is likely to reflect upon her chastity had occurred, being conscious of the danger of being ostracized by the society or being looked down by the society.'' 20. In case of State of H.P. v. Sanjay Kumar alias Sunny reported in 2017 (3) Mh.L.J. (Cri.)(S.C.) 68 , the Hon''ble apex Court has held in paragraph 31 as under :- ''31. By now it is well settled that the testimony of a victim in cases of sexual offences is vital and unless there are compelling reasons which necessitate looking for corroboration of a statement, the Courts should find no difficulty to act on the testimony of the victim of a sexual assault alone to convict the accused. No doubt, her testimony has to inspire confidence. Seeking corroboration to a statement before relying upon the same as a rule, in such cases, would literally amount to adding insult to injury. The deposition of the prosecutrix has, thus, to be taken as a whole. Needless to reiterate that the victim of rape is not an accomplice and her evidence can be acted upon without corroboration. She stands at a higher pedestal than an injured witness does. If the Court finds it difficult to accept her version, it may seek corroboration from some evidence which lends assurance to her version. To insist on corroboration, except in the rarest of rare cases, is to equate one who is a victim of the lust of another with an accomplice to a crime and thereby insult womanhood. If the Court finds it difficult to accept her version, it may seek corroboration from some evidence which lends assurance to her version. To insist on corroboration, except in the rarest of rare cases, is to equate one who is a victim of the lust of another with an accomplice to a crime and thereby insult womanhood. It would be adding insult to injury to tell a woman that her claim of rape will not be believed unless it is corroborate in material particulars, as in the case of an accomplice to crime. Why should the evidence of the girl or the woman who complains of rape or sexual molestation be viewed with the aid of spectacles fitted with lenses tinged with doubt, disbelief or suspicion? The plea about lack of corroboration has no substance.'' 21. In case of discrepancies in the evidence of the witnesses, in Jugendra Singh v. State of Uttar Pradesh, reported in (2012) 6 SCC 297 , the Hon''ble apex Court in paragraphs 41, 42, 43 and 49 has held as under :- ''41. In State of U.P. v. M.K. Anthony (1985) 1 SCC 505 this Court has observed (SCC p. 331, para 15) that in case of ''[m]inor discrepancies on trivial matters not touching the core of the case, hyper technical approach by taking sentences torn out of context here or there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the root of the matter would not ordinarily permit rejection of the evidence as a whole''. 42. In Rammi v. State of M.P. (199) 8 SCC 649 , this Curt has held as follows :(SCC p. 656, para 24) ''24.When an eyewitness is examined at length it is quite possible for him to make some discrepancies. No true witness can possibly escape from making some discrepant details. Perhaps an untrue witness who is well tutored can successfully make his testimony totally non-discrepant. But courts should bear in mind that it is only when discrepancies in the evidence of a witness were so incompatible with the credibility of the version that the court is justified in jettisoning his evidence. Perhaps an untrue witness who is well tutored can successfully make his testimony totally non-discrepant. But courts should bear in mind that it is only when discrepancies in the evidence of a witness were so incompatible with the credibility of the version that the court is justified in jettisoning his evidence. But too serious a view to be adopted on mere variations falling in the narration of an incident (either as between the evidence of two witnesses or as between two statements of the same witness) is an unrealistic approach for judicial scrutiny.'' 43. In Appabhai v. State of Gujarat (1988 Supp SCC 24) this Court has ruled thus :(SCC pp.246-47, para 13). ''13 The court while appreciating the evidence must not attach undue importance to minor discrepancies. The discrepancies which do not shake the basic version of the prosecution case may be discarded. The discrepancies which are due to normal errors of perception or observation should not be given importance. The errors due to lapse of memory may be given due allowance. The court by calling into aid its vast experience of men and matters in different cases must evaluate the entire material on record by excluding the exaggerated version given by any witness. When a doubt arises in respect of certain facts alleged by such witness, the proper course is to ignore that fact only unless it goes into the root of the matter so as to demolish the entire prosecution story. The witnesses nowadays go on adding embellishments to their version perhaps for the fear of their testimony being rejected by the court. The courts, however, should not disbelieve the evidence of such witlessness altogether if they were otherwise trustworthy. 49. Rape or an attempt to rape is a crime not against an individual but a crime which destroys the basic equilibrium of the social atmosphere. The consequential death is more horrendous. It is to be kept in mind that an offence against the body of a woman lowers her dignity and mars her reputation. It is said that one''s physical frame is his or her temple. No one has any right of encroachment. '' 22. Thus, the learned trial Judge has properly assessed the evidence led by the prosecution witnesses in its right perspective and has convicted him. No irregularity as such such is found in the impugned judgment. It is said that one''s physical frame is his or her temple. No one has any right of encroachment. '' 22. Thus, the learned trial Judge has properly assessed the evidence led by the prosecution witnesses in its right perspective and has convicted him. No irregularity as such such is found in the impugned judgment. The prosecution has beyond reasonable doubt established that the accused has attempted to commit rape on the victim. No interference is therefore called for in the impugned judgment. 23. At this stage, the learned Advocate for the accused submitted that the incident had taken place about 20 years back and the accused is now settled in his life, so also he is the only earning member in the family. He also suffers from heart problems. He submitted that the accused has already undergone four and a half months in jail. The learned Advocate therefore prayed for leniency. Learned counsel for the accused placed reliance upon the judgment reported in (2006) 9 SCC 713 in the case of Yerumalla Latchaiah vs. State of A.P. wherein the Honble Apex Court has held that medical evidence is inconsistent with the evidence of the victim, who was aged about 8 years, and as there was no sign of rape, the accused was entitled for acquittal. 24. In the instant case, the accused has not been convicted u/s 376 IPC, however on finding semen stains on the frock of the victim, the trial Court has rightly convicted the accused for attempt to commit rape. In view thereof, the aforesaid case law is of no assistance to the case in hand. For the reasons aforestated, the following order is passed:- Order i) Criminal Appeal No.558/2007 is dismissed. ii) The conviction and sentence awarded by the learned 2nd Adhoc Additional Sessions Judge,Gadchiroli in Sessions Case No. 49/2001 of the appellant/accused under section 376 r/ws.511 of the IPC, is hereby maintained. iii) The appellant/accused shall surrender to his bail bond to undergo the remaining sentence, within a period of four weeks, from the date of receipt of this order.