The central legal point established in the judgment is the interpretation of the intent to commit sexual intercourse notwithstanding any resistance as a determining factor in cases of attempted rape under the Indian Penal Code.

JUDGMENT :

This Criminal Appeal under section 374(2) of Criminal Procedure Code has been filed being aggrieved by the judgment, finding and sentence dated 4-10-2005 passed by First Additional Judge to the Court of First Additional Sessions Judge, Katni in Sessions Trial No. 71/2005, whereby the appellant has been convicted under sections 363, 366 and 376/511 of Indian Penal Code and sentenced to R.I. for 2 years with fine of Rs. 500/-, R.I. for 7 years with fine of Rs. 500/- and R.I. for 10 years with fine of Rs. 1,000/-, in default of payment of fine R.I. for 1 month, 1 month and 2 months respectively.

2. Prosecution case in short is that victim aged 10 years was residing with father and grandmother at village Basadi and was studying in class-IVth. On 14-2-2005 at 6:00 p.m. she went to kirana shop to purchase some rice. On returning therefrom she was sitting on turning with Puja Gupta. Appellant came there on a bicycle and on his assurance that she will be dropped at her house, he carried her on bicycle to Nursery. He removed his pant and the chaddi of the prosecutrix. She started weeping. He pressed her mouth, lie down on the ground and tried to mount over her. She again started weeping then he left her and threatened not to tell this thing to anybody else then he put on his pant and prosecutrix also put on her chaddi. Then he dropped her at some place near to her house from there she went to her house on foot. There she narrated entire incident to her father, uncle and grandmother. It was also stated that she sustained the nail marks on her left cheek on account of pressing of her mouth by the appellant. On this Crime No. 26/2005 was registered under sections 376, 506 and 511 of Indian Penal Code at police station Badwara. She was sent for medical examination which was conducted by Dr. Versha Rai (PW-4). Map was prepared. Statements of the witnesses were recorded. Accused was arrested. After completing the investigation, charge-sheet was filed in the Court of J.M.F.C., Katni who committed the case to the Sessions Court for trial.

3. Appellant was charged under sections 363, 366 and 376/511 of Indian Penal Code. He abjured the guilt and claimed to be tried mainly contending that he has been falsely implicated. Prosecution examined as many as 9 witnesses and appellant examined 2 witnesses in defence. After appreciating the evidence, trial Court found him guilty under sections 363, 366 and 376/511 of Indian Penal Code and convicted and sentenced thereunder as stated hereinabove in para No. 1 of the judgment. Being aggrieved by the judgment finding and sentence passed by trial Court, instant appeal has been preferred on the grounds mentioned therein.

4. Learned counsel for the appellant has submitted that there is delay in lodging F.I.R. Appellant did not take or entice the prosecutrix but she accompanied at her own will. She has not sustained any injury. No offence under section 376/511 of Indian Penal Code is made out, maximum offence under section 354 of Indian Penal Code may be made out. Learned counsel further submitted that there is old rivalry in between the parties. The finding of guilt is erroneous which deserves to be set aside and the appellant is entitled for acquittal.

5. On the contrary, Smt. Sushila Paliwal, learned G.A. appearing on behalf of the respondent/State supported the impugned judgment, finding and sentence mainly contending that the statement of prosecutrix is corroborated by the medical evidence. The finding of guilt is proper hence does not call for any interference.

6. The main point for consideration in this appeal is that whether trial Court has committed any illegality in convicting and sentencing the appellant under sections 363, 366 and 376/511 of Indian Penal Code?

7. Victim (PW-6) is the star witness to this case. She has stated in her deposition that she went to purchase rice from kirana shop in the evening. Pooja Gupta (PW-8) was also with her. When she was returning therefrom she saw appellant wa