BHARGAVA, J.—This is an application in revision by Sittu against his conviction under sec. 376 read with sec. 511 of the Indian Penal Code. He has been sentenced to rigorous imprisonment for two years and to pay a fine of Rs. 100/-.

2. The facts are that on 14th August, 1963, the petitioner forcibly took Vimla a girl aged 12 years to a nearby pit when she was returning from village Akbarpur to her own village Allapur, felled her down in the pit, removed her Shalvar and made her naked. He too became naked by removing the Lang of his Dhoti. He fell upon the girl and tried to introduce his male organ into the private parts of the girl. The girl put up a strong resistance and so there was no penetration. Cries of the girl attracted one Noor Shah (P. W. 9) to the place of occurrence. Noor Shah saw the petitioner lying on Vimla who was then naked. The petitioner hurled stones upon Noor Shah as a result of which he ran away from there, but on the request of the girl he informed her relations. The petitioner again felled her down and lay upon her, but the girl again resisted. In the meantime, Beliram (P.W. 3), Amarchand (P. W. 6) Santasingh (P.W. 4) and Nanak Chand (P.W. 8) arrived at. the spot. The matter was reported to the police and the petitioner was taken out of the pit by the police Head Constable.

3. The medical Officer found the lower part of hymen of Vimla reddened and in view of that he was of the opinion that penetration was possibly attempted but not effected. The girl had also as many as 39 injuries on her body which according to the medical opinion were caused by thorn pricks. There were also injuries on the lip of the girl which according to the medical opinion was caused by blows. At the time of medical examination, forehead, eyebrows, neck, cheek and hair of Vimla were soiled with mud. Her Kurta was also soiled with mud.

4. The petitioner denied the charge and stated that he was beaten by Beliram (P.W. 3), Amarchand (P. W. 6), Santasingh (P. W. 4) and Nanakchand (P.W. 8) He stated that Vimla who had taken his cycle got frightened and fell in a pit and that he was falsely implicated in the case.

5. Both the courts below believed the evidence of the prosecution witnesses and came to the finding that an attempt to commit rape was made by the petitioner, upon Vimla. |

6. The only point which has been urged in this Court is that on the facts found by the courts below, the act of the accused amounts to an offence under sec. 354 of the Indian Penal Code and not under sec. 376 read with sec. 511 of the Indian Penal Code. In support of this contention reliance is placed on State of Madhya Pradesh vs. Babulal (1). There the accused had caught hold of the girl and assaulted her with a stick. He felled her down on the ground forcibly, snatched her lugra and thereby made her naked. The cries of the girl attracted her uncle who came to the spot. On seeing him the accused ran away. In these circumstances the court held that the facts did not show that the accused was determined to have intercourse at all events because as soon as he saw the uncle of the prosecutrix, he ran away. Further he only made the girl naked. He did not expose nor attempted to expose his private part. Therefore, it was not a case of an attempt to commit rape but one under sec. 354 Penal Code. In the above decision reference has also been made to an unreported decision of the Bombay High Court where a milk-maid aged 12 or 13 years who was hawking milk, entered the accuseds house to deliver milk. The accused got up from the bed on which he was lying and chained the door from inside. He then removed his clothes and the girls petticoat, picked her up; laid her on the bed, and sat on her chest. He put his hand over her mouth to prevent her crying and placed his private parts against hers. There was no penetration. The girl struggled and cried and so the accused desisted and she got up, unchained the door and went out. It was held by Mirza and Broomfield, JJ. of the Bom

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