L.S. Mehta, J.
1. The prosecution story, in brief, is that accused Sua Lal was a neighbour of Ram Deo, PW 3 They both lived in Bajaj Nagar, Jaipur. Ram Deo's daughter Mst. Pushpa, PW 1, aged 6 or 7 years, was playing with other girls on December 4, 1970. at about 12.30 p.m. While she was so playing, accused Sua Lal caught hold of her, got on his 'Charpoy with her, undid the string of his 'Chaddi', sat on her and then committed sexual inter-course with her. She called for help Several people, including Kishan Lal, PW 2, Mst. Ramli (grand mother of Mst. Pushpa) PW. 4 Mst. Anahdi (aunt of Mst. Mst. Pushpa) PW 5, and others appeared on the scene. These persons saw Sua Lal escaping and concealing himself into his kitchen. The same day Ram Deo, PW 3, returned home at about 1 p.m. Mst. Ramli, PW 4, apprised him of the happening Thereafter Mst. Pushpa also told him how the accused had behaved her incidently. Thereafter Ram Deo went to police station, Gandhi Nagar and lodged first information report that very day at 1.50 p.m. The police registered a case and took over investigation. After necessary investigation the police presented a challan to the court of Additional Munsiff-Magistrate, Jaipur City (East). Learned Additional Munsiff Magistrate conducted preliminary inquiry in accordance with the provisions of Sec, 207-A, Cr. P.C. and committed the accused to the court of Sessions Judge, Jaipur District, Jaipur, to face trial under Section 376, I.P.C. The accused denied the indictment under Section 376, I.P.C. and claimed trial. In support of its case the prosecution examined 10 witnesses. Prisoner Sua Lal in his statement, recorded under Section 342, Cr. P.C. admitted that he was a neighbour of Ram Deo and that his daughter Mst. Puspa was about 6 years if age. He also admitted that he was lying on a cot in his house at about 12 in the noon and was reading a book. He denied the rest of the prosecution allegations. He further deposed that he had been beaten by the people, as a result thereof he sustained injuries, which started bleeding. On account of such bleeding his underwear and his 'Chaddar' were stained with blood. Mst. Pushpa's frock got stained with blood because of his injuries. Four years prior to the occurrence Mst. Pushpa's father Ram Deo had imputed false accusation against his mother and it is on account of that reason that enmity had existed between him and Ram Deo. He did not produce any evidence in his defence. The trial court, by its judgment, dated May 8, 1972, found Sua Lal guilty under Section 376, I.P.C. and sentenced him two years' rigorours imprisonment and to pay a fine of Rs. 500/-, in default of payment of which to suffer further rigorous imprisonment for six months. The trial court directed that out of the amount of fine Rs. 500/-, if recovered, Rs. 300/-, should be applied for payment to Mst. Pushpa as compensation for the injuries caused to her,
2. Dissatisfied by the above verdict, Sua Lal has taken this appeal. The first contention of learned Counsel for the appellant is that as no injuries were found on the private parts of Mst. Pushpa, nor was her hymen torn, his conviction under Section 376, I.P.C., could not have been recorded.
3. Dr. S. B Mathur, Medical Jurist, S.M.S. Hospital, Jaipur, conducted the medical examination of Mst. Pushpa on December 14, 1970, at 7.30 p.m. The result of his examination is reproduced below:
No foreign body present. Vulva child-like, posterior commissure and fourchette are intact Hymen-enular type elastic, no (sic) present. Vaginal canal-little finger cannot be introduced. Vaginal discharge-not present Vulva-vaginal swab and smears collected for examination of semen, spermatozoa and gonococci.
In the opinion of the Doctor the girl was about 6 to 7 years of age. On receipt of the Chemical Examiner's report Ex- P 8, which reads that smear on the glass slide was positive for spermatozoa but negative for gonococci, Dr. Mathur was of the view that Pushpa had been subjected to sexual intercourse within 3 to 4 days prior to the examination. The Doctor also stated that at the time of examination the vagina and the thighs of the girl were neither found stained with blood, nor did he see any injury on the vagina. External genitals were also free from injuries.
4. Modi in his Medical Jurisprudence and Toxicology, Eighteenth Edition, writes at page 325:
In small children the hymen, being situated high up in the canal, is not usually ruptured but may become red and congested along with the inflammation and bruising of the labia, or, it considerable violence is used, there is often laceration of the fourchette and perinacum.
Taylor in his monumental work, Principles and Practice of Medical Jurisprudence, 12th Edition, Volume II, writes at pages 60-62:
I is impossible to conceive and forcible intercourse should take place in children without bruising, effusion of blood, or a laceration of the private parts. The size of an adult male organ must necessarily cause come local injury in the attempt to enter the vagina of a child.... The absence of marks of violence on the genitals of the child, when an early examination has been made, is strong evidence that rape has not been committed.
In Mayne's Criminal Law of India. 4th Edn., p. 602, it is said:
Where a full grown man has carried the offence upon a child beyond the minimum degree of penetration which brings him within the law, it is probable that he will cause injuries for exceeding the mere destruction of virginity which are often evidenced by ruptures; or lacerations of a dangerous or fatal character.
It is true that young children are more frequently raped than adult women as they are has capable of offering resistance, and in India, the practice of child marriage, might have created a desire for intercourses with immature girls. Besides, an occasional motive for the rape is the old world superstition, common every-where, that intercourse with a virgin will cure venereal diseases.
5. In this case the Chemical Examiner's report Ex-P 8 shows that smear on the glass slide was negative for gonococci. So was the swab. Similarly the medical evidence does not show that the private part of the victim had had any mark of violence or that there was bruising or effusion of blood or laceration. Had the penetration taken place, the male organ should have caused some injury in its attempts to enter the child's vagina.
6. Explanation, appended to Section 375, I.P.C., reads;
Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape.
In the case of Reg v. Perroll, Bombay High Court Sessions February, 1879, the prisoner was charged with rape on a child of six years old. The child had not complained, & admitted on cross-examination that she had not been hurt. The medical evidence proved that there was no injury to the private parts The child was found to be suffering from gonorrhea so was the prisoner. It was clear that the penetration had been only vulval. Green, J. directed the jury that was sufficient to constitute rape and the prisoner was convicted of rape.
7. Dr. S.B. Mathur, after examining the Chemical Examiner's report, on swab and smears, no doubt expressed the view that Pushpa had been subjected to sexual intercourse. The Chemical Examiner's report Ex-D 8 shows that the swab was negative for semen, spermatozoa and gonococci. Only smear on. the glass slide was found positive for spermatozoa and negative for gonococci. Apart from the statement of the prosecutrix, there is no other real corroborative evidence that penetration was actually effected. As has been observed by Johnstone, J. in Chhote Lal v. Nathu Mal AIR 1930 Lah 193, 'The report of the Chemical Examiner regarding the presence of semen on the complainant's clothing is not sufficient to prove that the complainant was actually raped.'
8. Now the question that survives for consideration is if the offence under Section 376, I.P.C., has not been brought home, beyond challenge, can the accused be punished of the arraignment of Sac. 376/511, I.P.C. In re Amrit Bazar Patrika Press Ltd. ILR 47 Cal 190 Special Bench of the Calcutta High Court, consisting of Woodroffe, Mookerjee and Fletcher, JJ. defined 'attempt', in the most condensed form:
Attempt is an act done in part execution of a criminal design amounting to more than more preparation, but falling short of actual consummation, and possessing, except for failure to consummate, all the elements of the substantive crime in other words, an attempts-consists in the intent to commit a crime, combined with the doing of some act adapted to, but falling short of its actual commission it may, consequently be defined as that which if not prevented would have resulted in the full consummation of the act attempted.
Stephen in his celebrated work, Digest of the Criminal Law, 8th Edition, says in Article 29:
An attempt to commit a crime is an act done with intent to commit that crime and forming part of a series of acts which would constitute its actual commission if it were not interrupted. The point at which such series of acts begins cannot be defined but depends upon the circumstances of each particular case.
Attempt is also defined as;
An act done in part execution of a criminal design amounting to more than mere preparation, but falling short of actual consummation and possessing except for failure to consummate, all the elements of the substantive crime.' Vide American and English Encycloppedia of Law, Vol III, P. 250 (2nd Edition).
Judged by this test, there can, I think, be no doubt whatever that the accused, who obviously intended to commit rape, did more than one definite act in part execution of his criminal design. There is the statement of Mst. Pushpa,' aged 6 or 7 years, as to how she had been caught hold of by the accused on the date of the occurrence when she was playing with her own sister Mst. Suji of her own age and got on the 'Charpoy' with her. He sat on her after undoing the string of his 'Chaddi' (underwear) and then penetrated his organ into her private parts. She raised screams and in answer to her cries her aunt came up He the concealed himself in the 'Bukhari' of his kitchen. Learned Counsel for the accused drew my pointed attention to the cross-examination of the witness in which she, contrary to the prosecution version, says that the accused took her by catching hold of her finger and not by actually lifting her This is only a very minor contradiction which hardly deserves any notice. In the cross-examination the girl further says that when one of her fingers were caught, she raised an alarm, whereupon her aunt and her mother had arrived and despite that Sua Lal had taken her away and sat on her. In this connection it may be stated that at times a cross-examiner by his unfair style tries to take advantage of inexperience of children by putting them misleading or erroneous questions for extracting favourable answers. This seldom impresses courts. The fundamental rule to be observed in dealing with the child testimony is to be fair, considerate and gentle in cross-examining a child. One should not be domineering See Woodroffe and Ameer Ali's Law of Evidence, Vol. 3, p. 2479 (12th Edn). As has been pointed out by their Lordships of the Privy Council in Bhojraj v. Sita Ram AIR 1936PC 69:
Evidence substantially true not infrequently assumes to perfect a form and witnesses, such as children, not infrequently get a story by heart which is nonetheless a true story. The real (sic) are how consistent the story is with itself, how it stands the test of cross-examination & how far it fits in with the rest of the evidence and the circumstances of the case.
Mst. Pushpa, an innocent minor child, had no enimosity or malice with the accused. She was playing with the accused's own minor sister. The trial court, which witnessed her demeanour and appreciated the manner in which questions were answered with candour, could alone form reliable opinion about her evidence. This Court should not ordinarily interfere with the trial court's opinion as to the credibility of this witness: see Valarahak v. Standard Coal Co. AIR 1943 PC 159. It may be noted that there is a note of the trial court in the statement that the witness was competent witness, though she did not understand the significance of oath. This note is based upon several questions put by the court to the witness and the answers furnished by her. This shows that the child understands the duty of speaking the truth Oaths Act does not deal with the competency and under Section 13 of that Act omission to take oath does not affect the admissibility of the evidence. Apart from the above mentioned minor infirmities, the, evidence of Mst. Pushpa in so far as attempt to commit rape upon her is concerned, appears to me to be substantially true and is consistent with the prosecution story. Learned Counsel for the appellant has cited Asmatullah v. Emperor AIR 1933 All 296, wherein Young, J. observed that the evidence of perjured witness is of no value whatever. It amounts to nothing. It can neither be multiplied, nor corroborated Learned Counsel further cited Heer Singh v. Raj. . In that case it has been laid down that when a party comes to the court with a story, which cannot be believed as to the essential details, it is impossible to rely on a part of the story for the purpose of convicting the accused. Both the above authorities cannot render any assistance to the appellant in this case. I have already held that the substantial part of the story as revealed by the prosecutrix, Mst. Pushpa, is trust-worthy, in its essential details.
9. It is no doubt true that normally when there is a child witness, the court should look for corroboration by way of caution and prudence. As wigmore has said in Article 2162, 'in most British Jurisprudence and in a few of the United States, a statute requires the testimony of a child, to be corroborated.' In India there is no such thing But prudence demands that the testimony of a child witness must be corroborated: vide Rameshwar Kalyan Singh v. State of Rajasthan : 1952CriLJ547 .
10. The statement of Mst. Pushpa is corroborated by PW 2 Kishanlal. He says that on hearing the screams of Pushpa he rushed to the spot from his betel shop, situated near the house of Ram Deo. Anandi told him that she had been misbehaved by Sua Lal. Sua Lal had concealed himself in his 'Bhukhari'. He took him out. In the cross-examination the witness has no doubt forgotten the season of the occurrence. The witness's name appears in the first information report (Ex-P 1), filed soon after the incident. This inconsistency is inconsequential and it may be due to lapse of memory. Learned Counsel for the appellant then urged that the witness denies that the accused had been beaten on the spot. This evidence is inconsistent with the medical evidence, which suggests that certain injuries were found on the person of accused. It may be that the witness had resorted to a falsehood. Falsus in uno falsus in omnibus (false in one thing, false in every thing) is not a sound rule of law, nor it is a sound practice. Hardly one comes across in this country a witness, whose 'evidence does not contain a grain of untruth or, at any rate, exaggerations, embroideries, or embellishments: see Ugar Anir v. State of Bihar : AIR1965SC277 . Therefore, his evidence cannot be discarded. Mst. Ramli, PW 4, grand-mother of Mst. Pushpa. also reached the spot on hearing the screams of her grand-daughter. She had been apprised by Pushpa of what had happened and how she had been caught by Sua Lal and was indecently behaved by him after bolting the door of his room from inside. She also saw blood stains on the bed-sheet. She saw Sua Lal escaping in his kitchen, at a distance of about 50 ft. from the place of the occurrence. In the cross-examination the witness has said that she did not see Sua Lal being beaten by others. The criticism in respect of the evidence of Kishan Lal also holds good in so far as her testimony is concerned. Mst. Anandi PW 5 also corroborates the statement of Mst. Pushpa. She is the aunt of Pushpa. She reached the spot on the yelling of her niece for help and forced Sua Lal to open his room. On seeing her Sua Lal concealed himself in his 'Bukhari'. No doubt, the witness has said that the prosecutrix had told her that Sua Lal had thrust his finger into her private parts The witness has explained that by this she understood that the accused had thrust his male organ into her private parts. At one place the witness has said that soon after she left the place and, therefore, she could not say as to how Sua Lal had been beaten by others. The statement of prosecutrix is further supported by PW 6 Ram Deo. He saw the girl weeping and her things and private parts were smeared with blood. The first information report was also lodged soon after the event. All these circumstances amply corroborate the evidence of the prosecutrix. In each case the court has to appraise the evidence to see to what extent it is worthy of acceptance and merely because in one or two respects the court considers it unsafe to rely on the testimony of a witness it does not necessarily follow as a matter of law that it must be discarded in all other respects as well (see Rai Singh v. State of Haryana : 1971CriLJ1738 . In the words of Vidgery, J. in R. v. Cooper 1969 (1) All. E.R. 32, as a result of 'reaction which can be produced by the general feel of the case as the court experiences it' and after giving earnest thought in the matter, I hold that the case against appellant Sualal Under Section 376/511, I.P.C. is fully made out.
11. I accordingly accept this appeal partially. I convection of the appellant from one under Section 376 to one under Section 376/511, I.P.C. and sentence him to one and a half years' rigorous imprisonment and to pay a fine of Rs. 300/-, in default or payment of which to undergo further rigorous imprisonment for six months. I further direct that out of the amount of 300/- if realised, Rs. 200/-, shall be paid to Mst. Pushpa as compensation Under Section 545, Cr. P.C.