K.U.CHANDIWAL, J.

1. Heard. The appeal is admitted on 16.5.2012. The accused/appellant is in custody, facing conviction in Sessions Case No.96/2011 for an offence under Section 376 r/w Section 511 of Indian Penal Code, directing to undergo R.I. for five years and to pay a fine of Rs.2,000/, in default, R.I. for two months. Fine amount is deposited before the learned Additional Sessions Judge at Beed on 5.5.2012 vide Receipt Sr.No.0366627.

2. The prosecutrix resides in the same village of the accused/appellant. Her aunt Smt. Aashabai reported the matter to police, informing of rape upon her niece (the prosecutrix) on 22.12.2010 in the afternoon at around 2.30 p.m. This, according to her, was witnessed since she reached home and noticed that her niece, the prosecutrix, was yelling and due to her screams, she went forward to the house, near the hut meant for kitchen. The prosecutrix was seen lying prostrate and one Vaibhav was guarding while the appellant Bhaiyya @ Badrinath had mounted the prosecutrix. She threw brickbats and enquired with her niece, the prosecutrix, in which it revealed that the prosecutrix was sexually abused by the appellant and his accomplice Vaibhav. This gave rise to registration of an FIR. The investigation was carried. The prosecutrix, as also the appellant, was referred for medical examination. Spot panchanama was drawn (admitted). The spot panchanama does not indicate presence of brickbats.

3. The material part is, substantial evidence of PW No.2, the prosecutrix. In unequivocal terms, she has stated, that on the date of incident, she had been to school at Gadhi and on return home, two boys (the accused and his friend) came to her house. They removed her nicker. Firstly, accused Vaibhav mounted on her, then other accused sat on her. They asked, whether she needs money. She conveyed in negative. Then her aunt came and threw stones towards the accused, the accused sneaked away. Her relatives took her to police station and thereafter to the hospital. Her apparels were taken charge. She had identified her apparels in the court.

4. The FIR of PW No.1Aashabai (aunt) is complete violence of what PW No.2 has stated. A curious part in the evidence is, PW No.2, the prosecutrix, accepts that, at the time of lodging the FIR, she remained outside the police station. The matter was reported to police by her aunt PW No.1 along with one Tukaram Sawaleshwar. However, PW No.1 denies about presence of said Tukaram Sawaleshwar. PW No.3 Sheelabai is a villager, a distant relative of the prosecutrix and Aashabai. She has not witnessed the events. Whatever she has learnt, it was from Aashabai. Evidence of mother Aashabai (PW No.5) is again hearsay. PW No.4 and one Babulal were the panch witnesses in respect of seizure of articles 8 and 9. However, the CA report does not corroborate the prosecution case. PW No.6 Dr. Sonali Deshpande gave evidence based on the official record, however, did not notice any injury on the person of the prosecutrix. The scar and hymen tear noticed was old.

5. Thus, the overall survey of the evidence illustrate, there was no penetration nor attempt to penetrate. The evidence, at the most of the prosecutrix, leans that accused had made the prosecutrix to lie on the ground; removed her nicker. The learned Judge found the same to be an attempt to commit rape on prosecutrix. The essential ingredients for offence under Section 376 and 511 of IPC warrant intention. The accused/appellant allegedly was mounting on the body of the prosecutrix.

6. Section 511 of IPC illustrate, " 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 int