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2. Judgment of conviction is challenged on the ground that without any evidence relating to attempt to commit rape against the appellant the Court below has convicted & sentenced the appellant and thereby committed illegality.

3. Case of the prosecution, in brief, is that on 30-9-2007 at about 9 a.m. the prosecutrix, aged about 8 years, was playing near the house which was under construction, the accused went near the prosecutrix, took her inside a vacant room, undressed himself & the prosecutrix, lay her down on the land and was attempting to commit rape on her. While the accused was taking the prosecutrix towards the room, Takeshwar (PW-4) objected him and immediately ran away and informed to the brother of the prosecutrix namely, Asha Ram (PW-3). Asha Ram (PW-3), Takeshwar (PW-4) & Mantram reached towards the place of incident and saw that the accused was attempting to commit rape on the prosecutrix. They caught hold of the accused. Asha Ram (PW-3) immediately lodged the report, same was written in Dehati Nalishi Ex.P-2 and on the basis of Dehati Nalishi, F.I.R. Ex.P-5 was registered. The prosecutrix was sent for medical examination vide Ex.P-6 and she was examined by the doctor. No injury was found on the prosecutrix. Her secondary sexual characters were not developed, hymen was intact, no internal injury was found over her private part and vagina does not admit even one finger. Two slides were prepared from the vagina of the prosecutrix and handed over to the Police. The accused was taken into custody vide Ex.P-11. He was sent for medical examination. He was examined by Dr. V. Dutta (PW-1) vide Ex.P-1 who opined that the accused is capable for committing sexual intercourse. Spot map was prepared vide Ex.P-3. Caste certificates Exs.P-9 & P-10 were seized vide Ex.P-8.

8. On the other hand, learned counsel appearing on behalf of the State/ respondent supported the judgment of the Court below and submitted that the prosecution has proved its case beyond all reasonable doubts. Evidence of the prosecutrix & other witnesses inspire confidence and trustworthy, sufficient for drawing inference that the appellant has not used criminal force with intent to outrage the modesty of the prosecutrix, but has attempted to commit rape on her. Learned counsel placed reliance in the matter of Vishnu v. State of Madhya Pradesh3 in which it has been held by the M.P. High Court that the prosecutrix & accused were lying undressed and the appellant was lying over the prosecutrix, offence under Section 376 read with Section 511 of the I.P.C. is made out against the appellant.

11. Takeshwar (PW-4) has deposed that on the date of incident he was coming from the shop, at that time the accused was dragging the prosecutrix towards a house, he objected to it on which the accused scolded him whereupon he ran towards the brother of the prosecutrix Asha Ram. He along with Asha Ram & Mantram immediately rushed towards the house where the accused & the prosecutrix were undressed, they caught hold of the accused.

12. Asha Ram (PW-3) has deposed that he was informed by Takeshwar (PW-4) that one person has taken the prosecutrix towards a house on which he along with Takeshwar rushed towards that house where they saw that the accused was undressed, the prosecutrix was also undressed and the accused lay the prosecutrix on the floor and he was trying to lay over her. He lodged the report vide Ex.P-2. The Police prepared spot map vide Ex.P-3. He consented for medical examination of her sister vide Ex.P-4.

21. In the instant case, the appellant took the prosecutrix to a lonely place inside a room where he undressed himself and also the prosecutrix. After laying her on the floor, the accused was just trying to sit over her, at that time; he was caught by the brother of the prosecutrix & other witnesses. This shows that with intention to commit the offence of rape the accused prepared himself by undressing himself and also undressing the prosecutrix and after laying her on the floor, he tried to sit over her. If he was not caught by the brother of the prosecutrix & others, he must have succeeded in the commission of offence of rape. Facts of the present case are suggestive of the fact that the appellant has not tried to outrage the modesty of a woman, but had attempted to commit rape on her. In this case, indecent assault has not been modified into attempt at rape.