D. P. HIREMATH, J. ( 1 ) THE appellant on charge of offences under sections 451, 366-a and 376, IPC before the sessions court at bidar was found guilty of these offences and sentenced to suffer rigorous imprisonment for six months under Section 451, IPC. , Rigorous imprisonment for five years under Section 366-a, IPC and a fine of Rs. 500/- with default sentence and rigorous imprisonment for 10 years for the offence under Section 376, IPC and a fine of Rs. 1. 000/- with default sentence. ( 2 ) THE victim girl vishali who gave her age as 10 years when she was examined in December 1987 in the sessions court could have been about 7 to 8 years when this offence took place in September 1984. P. w-4 - sadashiva was a teacher in manavya vikasa vidyalaya of degalur village and the father of vishali was also a teacher in another school of the same village. It appears, at bhalki town some entertainment programmes were being arranged in ganesha festival. In the year 1984, in ganesha festival this p. w-4 was invited to give some dance and music programme. Accordingly, a party of 7 or 8 girls and some boys was taken by him to bhalki. This "music party" as he calls it included even 10 or 11 adults. Their programme was arranged in a locality called ganja at bhalki and they were lodged in a nearby house belonging to p. w-6. The entertainment commenced by about 10 p. m. on the same night and the first item was the dance programme of vishali - p. w-1. By about 11 p. m. or 12 midnight she had given 2 or 3 more programmes and as she was feeling sleepy she was taken to their residential house and was made to sleep there. The leader of this party p. w-4 having made her sleep there bolted the front door from outside and went back for the programme. Everything was over by about 1 a. m. when all of them returned to their lodging place after the programme, they found vishali missing. P. w-4 set out in search of her along with one radhe shyam on his luna and when they went some distance towards railway track they heard the screaming voice of vishali. Nearby there were huts of voddara people. P. w-4 set out in search of her along with one radhe shyam on his luna and when they went some distance towards railway track they heard the screaming voice of vishali. Nearby there were huts of voddara people. From one of those huts, two persons by name lakshmana and hanumantha were taken by them and they proceeded towards the direction from where they heard the screaming voice of p. w-1. They had taken a torch with them and while flashing the torch light, they saw the accused getting up from a place some distance away from them adjusting his lungi and chaddi and on seeing them he started running. He was chased by these people and caught when he fell in a nala some distance away. Having caught him they brought him near the place where vishali was and both of them were taken to the auditorium. On being questioned, p. W-1 told that the accused had forcible intercourse with her. The accused as well as p. w-1 were then taken to the police station and produced before the p. s. i.- p. w-10. ( 3 ) IT may be mentioned here that on the same night at about 1-30 a. m. p. w-4 on finding that p. w-1 was missing from their lodge had filed a compliant at the police station of bhalki as per ex. P-6 on which a case for an offence under Section 366-a, IPC in crime No. 164/1984 was registered. Even the police people were on search for the missing girl soon after this report was given. When this p. s. i, was near the auditorium, p. w-1 as well as the accused were produced before him by p. w-5, p. w-9 and others. It transpired that the name of the person caught is jairaj. Immediately, they were taken to the police station, statement of p. w-1 was recorded and the accused was kept in the police station after he was arrested. P. w-1 was taken by p. w-10 himself to the government hospital at bhalki where she was examined by a lady medical officer and on the report of the medical officer, the Section of the offence was changed into one under Section 376, IPC in the F. I. R. without any loss of time the opinion of the doctor as per ex. P-3 was secured. P-3 was secured. He then seized the clothes from the person of the accused viz. , A lungi and an underwear which is called jyangi. On the following morning at about 7-15 a. m. he took the accused to nittur primary health centre where he was examined for the injuries on his person and also for evidence of recent intercourse. The C. P. I. who continued investigation visited the scene of offence in sy. No. 174 of bhalki and found some beeds, small knife and a chaddi which were all seized. The clothes of the accused as well as p. w-1 were sent for chemical examination. On completion of investigation charge sheet for the offences aforesaid came to be filed before the committal court. ( 4 ) ON considering the evidence led before the sessions court it found the accused guilty of these offences and convicted and sentenced him accordingly. In challenging this judgment of conviction and sentence it is urged on behalf of the appellant that the sessions court was not right in believing the evidence of the prosecution witnesses when the possibility of someone else being responsible for the sexual assault on p. w-1 cannot be ruled out and the accused who is from another village has been falsely implicated. The distance given by the witnesses from where they heard the voice of p. w-1 makes it improbable that these witnesses could have gone there and apprehended the accused. Added to this, p. w-1 the girl has stated that the accused did not do anything and therefore, the accused could not have been found guilty by the sessions court. ( 5 ) THE medical evidence given by p. w-2, lmo of general hospital, bhalki, leaves no room for doubt that that night there was sexual assault on this girl. Particularly, it is necessary to note she was examined at 4 a. m. on 9-9-1984 and her age has been stated to be 8 years. The p. s. i. had taken the girl with a history of kidnap and rape. P. w-2 saw the following injuries on her person:"1) contusion on both nipples;2) contusion over left thigh medial aspect;3) contusion over right thigh medial aspect. she examined her genital organ and found the following: 1) right labia bruised and lacerated, swollen and red in colour,2) left labia bruised swollen and red in colour. P. w-2 saw the following injuries on her person:"1) contusion on both nipples;2) contusion over left thigh medial aspect;3) contusion over right thigh medial aspect. she examined her genital organ and found the following: 1) right labia bruised and lacerated, swollen and red in colour,2) left labia bruised swollen and red in colour. on opening the labia within vagina she found slight blood clot and white discharge. Hymen congested. "the girl complained of pain and she examined her under local anaesthesia. The vaginal smear was taken for spermotoza examination and on microscopic examination she found non-motile sperms. The sperms would become non-motile within an hour or two after the discharge. She also preserved the nails. The patient complained of burning muturation and difficulty to pass urine. She was discharged at about 1 p. m. the following day after treatment and in view of the injuries noticed by her she gave her opinion that the girl was raped. The certificate issued by her is at ex. P-2. Nothing of consequence was elicited in her cross-examination. The suggestion made that swelling would be caused even if there is some disease was admitted but the witness added that the symptoms of any such disease would also be present. She denied that swelling of the genital would cause pain at the time of passing urine. To a question if rupture of hymen is necessary in case of rape, her reply was that it is not necessary in all cases. In the instant case, the hymen was only congested but there was no evidence of rupture though some blood clots were seen on opening the labia. How the sperm became non-motile has been stated by the witness and this would only indicate that in fact the semen had entered the vagina. With this evidence on record the sessions court rightly found that there was evidence of rape on this girl and the sub-inspector-p. w-10 was very prompt in immediately subjecting her to the medical examination even though it was an ungodly hour and p. w-2 has also examined her without any loss of time. When this clear evidence of rape having been committed on this minor girl of 8 years is on record it now falls to be considered if the accused appellant could be held to be the rapist. When this clear evidence of rape having been committed on this minor girl of 8 years is on record it now falls to be considered if the accused appellant could be held to be the rapist. ( 6 ) THE evidence of p. w-5 and p. w-9 has been relied upon by the prosecution in support of the charge. P. w-5 deposed that when himself and radhe shyam were in search of the girl and went near the huts of voddar, they heard the crying voice of p. w-1 from a distance. Seeing these huts they went there and took two persons by name lakshman and hanumantha for their help and proceeded towards the place from where the voice of p. w-1 was heard. In that torch light they also saw the person who had lifted away p. w-1 from the place where she was sleeping and he was seen adjusting his chaddi and holding the lungi in his hands he started running. Having ran some distance he fell in a hall a and they apprehended him by chasing. Having ascertained his name which was given as jairaj they brought him to the place where vishali was and both of them taken to the place where they were giving the programmes. P. w-9-lakshmana, voddar testified that at about 2 a. m. that night, radhe shyam and p. w-5 called them and having woke up they informed them that their help was required to trace their m issing girl. All of them went towards railway bridge and p. w-5 shouted for p. w-1 taking her name. That girl shouted from that place that something was being done to her. When the torch was flashed over her they saw one person lying on the girl and having seen the torch light he started running from the place. The person who left the spot running away from the spot fell in the nala water. He was apprehended and brought to the place where this girl was lying. ( 7 ) P. W-9 has stated in his cross-examination that the distance from where p. w-1 responded was about 100 feet from them and saw her for the first time from a distance of 75 to 80 feet. According to him, it was a dark night where as according to p. w-2 there was also moon light. ( 7 ) P. W-9 has stated in his cross-examination that the distance from where p. w-1 responded was about 100 feet from them and saw her for the first time from a distance of 75 to 80 feet. According to him, it was a dark night where as according to p. w-2 there was also moon light. In order to argue about the improbability, appellant's counsel invited our attention to the admissions of p. w-5 ana urged that they could not have heard the voice from a distance of one kilometre and even after hearing the voice they travelled the distance of about half a kilometre taking 15 minutes. If the evidence of this witness that they chased the person who was found near the girl and apprehended him when he fell in the nala is reliable and acceptable, then these versions with regard to the distance and the time taken to reach the place become insignificant as it was only by approximation that the same could have been stated. In an open land and in a quiet night shouting, crying or screaming voice could be heard even from considerable distance depending on the voice raised. Therefore, from this admission alone it cannot be said that the witnesses are stating falsehood about their hearing the screaming voice of p. w-1. Though it was elicited that the accused belongs to a nearby village called gadagi in his statement under Section 313, cr. P. c. accused gave his residence as bhalki town. There are no conceivable reasons for these witnesses who were not even acqua inted with the accused earlier to falsely implicate in a serious charge of this nature. It is further necessary to note that p. w-1 though cross-examined by the prosecution as she did not state all the facts stated before the investigating officer she distinctly identified the accused and had no doubt in her mind about it. ( 8 ) SHE has testified that when she was lifted and being carried by the person, the front door was open and then identifies that it was the accused before the court who had carried her. She also stated that in the adavi he did something to her and having made her to sit, her frock was lifted up, then she added he lifted the frock and he did not do anything. She also stated that in the adavi he did something to her and having made her to sit, her frock was lifted up, then she added he lifted the frock and he did not do anything. In the meanwhile, p. W-5 whom she calls uncle govind came there and on seeing them approaching, the accused ran away. P. w-5 and others who had accompanied him chased the accused, brought him to the place where she was and both of them were handed over to the police. From there she was sent to the hospital at bhalki. It was argued that no identification parade was held and therefore identification for the first time in court should not be given any value. We are unable to accept this argument for the simple reason that it was not in a flash of a moment that p. W-l saw the accused. It was he who had lifted her, taken her to the land in question and then he was brought back and along with her was taken to the police station and produced before the p. s. i. therefore, there was no reason to hold any test identification parade. We do not find any infirmity or conjuncture on the part of p. W-l in the matter of identifying the accused. The other argument that p. W-l did not support the prosecution story that the accused committed rape on her is equally untenable for the reason that in a criminal prosecution state is the complainant as offence is against the state. We have got herein the case of a girl of tender age who was 8 years old when this offence was committed and having supported the prosecution story half way she fell back on the actual act of sexual intercourse. She however stated that she had pain on her private part. There was also injury and for that reason she was taken to the hospital. Her attention was drawn to the statement under Section 164, Cr. P. C. that she had stated that the accused had committed sexual intercourse with her but she denied it. Her attention was also drawn to the statement made by her that on account of this intercourse there was burning in her urinary track and for a while she was even quiet and became alert in a little while. These were also denied. Her attention was also drawn to the statement made by her that on account of this intercourse there was burning in her urinary track and for a while she was even quiet and became alert in a little while. These were also denied. In the cross-examination for the accused when suggested that the police had tutored her to state falsehood against the accused, she denied it. In our view, this part of the evidence of p. W-l does not in any way affect the credibility of the other witnesses or the value of the medical evidence. In cases of this nature at times the girls are reluctant to speak about the acts of intercourse in the court. In the instant case, we have got a child of 8 years who could not have understood the implications of truth or falsehood. She was not administered oath. Under the circumstances, the other available circumstances coupled with her evidence which meets the prosecution half way, we do not find any reasons to discard her evidence and come to a conclusion that it is totally a fabricated story. ( 9 ) THE accused was sent by the p. s. i, for medical examination on the following day to nittur primary health centre where p. W-3 found the following injuries on his person:"i) vertical abrasion over the front of right shoulder size 21/2 x 0. 1ii) horizontal abrasion over the upper part of left side chest size 0. 5"x 0. 4"iii) obliquely vertical abrasion over the inner part of middle of left thigh; size 11/2 x 0. 1"iv) horizontal abrasion over the front of lower aspect of right knee size 1. 4" x 0. 9". v) vertical abrasion in front and lower aspect of left knee size 1/2" x0. 1". having examined the male organ p. w-3 found that the accused was potent but no sniegma was present under the prepule. There was also seen no abrasion over fracnum. No injuries on genitals. However, pubic hair were matted with semen. The injuries and other symptoms found on the accused according to this witness pointed to recent co-habitation. Those injuries were fresh in nature and they were about six hours old. He stated in the cross-examination that for discharge of semen there need not be any act of coitus. There is no connection between the formation of smegma and discharge of semen. Those injuries were fresh in nature and they were about six hours old. He stated in the cross-examination that for discharge of semen there need not be any act of coitus. There is no connection between the formation of smegma and discharge of semen. Smegma would be present only due to the collection of secretion of some glands and as well as dirt. He admitted that ex. P. 5 certificate issued by him did not make mention of there being any sexual intercourse by the accused. It is pertinent to note that right from the time of apprehension till he was taken to p. w-3 accused was in police custody and there was no occasion or reason for semen getting matted on the pubic hair during this period. If this matted hair associated with mud is also considered it lends support to the prosecution case of the accused being responsible for committing tape on p. w-1. Penetration however slight is necessary to constitute an offence of rape and in the instant case looking to the condition of the hymen which was conjested and also looking to the presence of non-motile sperm on the labia, the prosecution has established beyond doubt that there was penetration and it was the accused and the accused alone who was responsible for committing rape on this girl of tender age. ( 10 ) LEARNED counsel for the appellant invited our attention to a decision of the Supreme Court in the case of rahim beg v The State of uttarpradesh, AIR 1973 SC 343 in which the Supreme Court observed that in the absence of injury to the male organ in case of rape over a girl of 10 or 12 years of age whose hymen was intact, the innocence of the accused could be inferred. We have got a case of a child of 8 years whose hymen could not have been developed and when the hymen of a girl of 10 or 12 years was not ruptured and it may be hymen was hard enough to cause injury to the male organ. That situation does not obtain in this case. No facts are identical in a case of this nature and everything depends on the reliability or otherwise of the evidence tendered in support of the charge. That situation does not obtain in this case. No facts are identical in a case of this nature and everything depends on the reliability or otherwise of the evidence tendered in support of the charge. We have no doubt in our mind that the evidence in this case is foolproof, unassailable and conclusive. It must go to the credit of p. w-10 and the medical officer who had brought on record the signs of rape without any loss of time. In our view, the sessions court was perfectly justified in finding the accused guilty of the offence for which he is charged and we find no ground to interfere with the finding of the sessions court or in the sentence. If the age of the accused and the age of the girl is taken into consideration, it is patently clear that the accused with his beastly lust raped the girl of a tender age and deterrent punishment is called for. We therefore dismiss this appeal and confirm the conviction and sentence passed by the sessions court. His bail bonds stand cancelled and he shall now surrender to his bail to undergo the sentence. The appellant is entitled to set-off under Section 428, cr. P. c. of the period of detention from the date of his arrest till he was released on bail. --- *** --- .