JUDGMENT - B.G. DEO, J.:---An interesting point involved in this appeal is when an accused has been acquitted of the offence under section 376 of the Indian Penal Code, i.e. for rape whether he can be convicted of the offence under section 354 of the Indian Penal Code on the same set of facts.

2. The appellant was acquitted of the offence under section 376 of the Indian Penal Code by the Additional Sessions Judge, Khamgaon, on 30-3-1982. There was one other accused by name Janardhan accused No. 2 who was similarly acquitted of the said charge. The allegation against both the appellants were that on 21-12-1981 at Shahapur they committed rape on P.W. 2 Rushikala. P.W. 2 Rushikala was born on 30-8-1966 and was 15 years and 8 months old on the day of the offence.

3. I have heard Shri Palshikar learned Counsel for the appellant and Shri Gadkari learned A.G.P. (Public Prosecutor) for the State.

4. The prosecution story about both the accused in secession having committed rape on P.W. 2 Rushikala was negatived by the learned Sessions Judge who observed as follows :

"P.W. 2 Rushikala was born on 30-8-1966 and was under 16 years of age on the date of the offence. Her consent is therefore not material in view of section 375. I.P.C. However, for want of corroboration from the medical expert regarding actual penetration of male organ in the private part of P.W. 2 Rushikala, I am inclined to give benefit of doubt to the accused person regarding the charge of rape or attempted rape. But the fact that each of the accused has indulged in some sort of sex play by exposing private part of Rushikala is proved beyond doubt. It is proved by the prosecution beyond doubt that the two accused must have conspired to molest Rushikala, who was major of the two girls and who had developed visible signs of female sex."

5. Rushikala was examined four or five hours after the incident by Dr. Nalini Bala (P.W. 4). Rushikala had alleged that she was dragged and thrown on cement and she had sustained many injuries. This evidence was not supported by the medical examination. Similarly, the version of the girl that each of the two accused had completed sexual intercourse with her could not be accepted. The learned Sessions Judge observed as below :---

"It is improbable to take a view that when two young persons commit sexual intercourse with such a small girl, no injury will be caused to her private part. Absence of signs of violence on the body of Rushikala, particularly on her vulva, indicates that male organ was not thrusted inside. Perhaps no such attempt was made in this case. In any case, the matter becomes very doubtful. Because of such medical evidence, it is not possible to hold that the accused persons committed rape on the girl. Even finding of attempted rape cannot be reached without hesitation in this case."

Having thus found that the evidence of P.W. 2 Rushikala was an exaggerated one, the learned Sessions Judge discussed the evidence of the other victim P.W. 3 Shakuntala and the circumstances of the case and came to the conclusion that some sexual play was indulged into by the appellant with Rushikala. For want of medical evidence, for showing that there was some resistance and, for want of other evidence showing that there was penetration, the learned trial Court thought it fit not to convict the appellant under section 376 of the Indian Penal Code. However, considering the offence under section 354 I.P.C., as a lesser offence than the one under section 376 of the Indian Penal Code, the learned trial Court proceeded to convict the accused under section 354 of the Indian Penal Code and sentenced him to suffer rigorous imprisonment for eighteen months and to pay fine of Rs. 200/- and in default of payment of fine to undergo rigorous imprisonment for two months Section 34, I.P.C. has also been applied by the trial Court which to my mind does not appear to be correct as it is an individual act of the appellant vis-a-vis P.W. 2 Rushikala that the alleged offe

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