MEHTA, J. - (1.) THE prosecution story, in brief, is that accused Sua Lal was a neighbour of Ram Deo, P. W. 3. THEy both lived in Bajaj Nagar, Jaipur. Ram Deo's daughter Mst. Pushpa, P. W. I, 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', set on her and then committed sexual intercourse with her. She called for help. Several people, including Kishan Lal, P. W. 2, Mst. Ramli (grand mother of Mst. Pushpa) P. W. 4, Mst. Anandi (anut of Mst Pushpa), P. W. 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, P. W. 4, apprised him of the happening. THEreafter Mst. Pushpa also told him how the accused had behaved her indecently. THEreafter Ram Deo went to Police Station, Gandi 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 Addl. 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 sec. 376, I. P. C. THE accused denied the indictment under sec. 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 sec. 342, Cr P. C , admitted that he was a neighbour of Ram Deo and that his daughter Mst. Pushpa was about 6 years of 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, its judgment, dated May 8, 1972, found Sua Lal guilty under sec. 376, I. P. C. and sentenced him to two years' rigorous 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 of 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, Sualal 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 sec. 376, I. P. C. , could not have been recorded. Dr. S. B. Mathur, Medical Jurist, S. M. S. Hospital, Jaipur, conducted the medical examination of Mst. Pushpa on December 14, 1970, at 7. 35 p. m. The result of his examination is reproduced below : - "no for sign body present. Vulva child-like, posterior commissure and fourchette are intact. Hymen-anular type elastic, no tare present. Vaginal canal little finger cannot be introduced. Vaginal discharge-not present. Vulva-vaginal swab and smears collected for examination of semen, spermatozoa and gonocecci. " 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 the 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. 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 out may became red and congested alongwith the inflammation and bruising of the labia, or, if considerable violence is used, there is often laceration of the fourchette and perineum. " Tayl or in his monumental work, Principles and Practice of Medical Jurisprudence, 10th Edition, II, writes at pages 60-62 - "it 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 some local injury in the attempt to enter the vagina of a child. . . . . . . The absence of marks of violence on the genistas 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. , page 602, it is said : - "where a full grown man has carried the offence upon a chlid beyond the minimum degree of generation which brings him within the law, it is probable that he will cause injuries for exceeding the mere distruction of virginity which are often evidenced by ruptures or lacerations of a dangerous fatal character. " It is true that young children are more frequently raped than adult women as they are less capable of offering resistance, and in India, the practice of child marriage, might have created a desire for intercourse with immature girls. Basides' an occasional motive for the rape is the old world superstition, common everywhere, that intercourse with a virgin will cure venerial diseases. 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 bad 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 attempt to enter the child's vagina. Explanation, appended to sec. 375 I P. C. , reads: "penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape. " In the case of Reg vs. Ferroll, Bombay High Court Sessions February, 1879, the prisoner was charged with rape on a child six years old. The child had not complained, and 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 gonorrhoea so was the prisoner. It was clear that the penetration had been only vulval. Gecenj. directed the jury that that was sufficient to constitute rape and the prisoner was convicted of rape. 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. P. 8 shows that the swab was negative for semen, spermatozoa and gonococci. Only smear on the glass slide was found positive for spematozoa 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 vs. Nathu Mal (l), "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. " Now the question that survives for consideration is if the offence under sec. 376, I. P. C. , has not been brought home, beyond challenge, can the accused be punished of the arraignment of sec. 376/511, I. P. C. In re Amrit Bazar Patrika Press Ltd. (2) Special Bench of the Calcutta High Court, consisting of Woodruff, 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 mere 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 attempt 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 & English Encyclopaedia of Law, Vol. III, P. 250 ( 2nd Ed. ). 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 his 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 then 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 fai , 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 vs. Sita Ram (3) : "evidence substantially true not infrequently assumes too perfect a form and witnesses, such as children, not infrequently get a story by heart which is nonetheless a ture story. The real tests are how consistent the story is with itself, how it stands the test of cross-examination and how far it fits in with the rest of the evidence and the circumstances of the case. " Mst. Pushpa, an innocent minor child, had 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 Valarshak vs. Standard Coal Co (4 ). It may be noted that there is a note of the trial court in the statement that the witness was a 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 S. 13 of that Act omission to take oath does not effect 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 vs. Emperor (5), wherein Young J. observe d 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 vs. Raj (6 ). 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 it 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 trustworthy, in its essential details. 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 2169, "in most British Jurisdictions 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 vs. State of Rajas-than (7 ). The statement of Mst. Pushpa is corroborated by P. W. 2 Kishanlal. He says that on hearing the screams of Pushpa he rushed to the spot from his betel shop, situate near the house of Ram Deo. Anandi told him that she had been misbehaved by Sualal. Sualal 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 accident. 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 the 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 is it a rule of 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 Ahir vs. State of Bihar (8 ). Therefore, his evidence cannot be discarded. Mst. Ramli, P. W. 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 P. W. 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 Lai 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 the prosecutrix is further supported by P. W. 6 Ram Deo. He saw the girl weeping and her thighs 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 apprise 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 vs. State of Haryana) (9 ). In the words of Widgery J. in R. vs. Cooper (l0), 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 Sua Lal under S. 376/511, I. P. C. is fully made out. I accordingly accept this appeal partially. I alter the conviction of the appellant from one under S. 376 to one under S. 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 of payment of which to undergo further rigorous imprisonment for 6 months. I further direct that out of the amount of 300/-, if realised, Rs. 200/-, shall be paid to Mst. Pushpa as compensation under S. 565, Cr. P. G. . ;