Mr. P. K. Bahri, J. ( 1 ) THE appellant, Jagdish Prashad, S/o Sh. Babu Ram, agedabout 31 years, permanent resident of Gulab Vatika, Loni Road, Ghaziabad hasbeen convicted of an offence punishable under Section 376 of Indian Penal Codevide judgment dated 24/08/1990 of an Additional Sessions Judge, Shahdaraand has been sentenced to undergo rigorous imprisonment for life and a fine ofrs. l,000. 00 and in default to further undergo rigorous imprisonment for one yearvide order dated 5/09/1990 with further following directions: "till such time the Legislature does not prescribe forcible castration, I feelsome beginning should/could be made by inducing convicts of such heinouscrimes to opt for voluntary castration so that they could be of help and utilityto their dear ones rather than keep on languishing in jail for life. I, therefore,hold and lay down that in case the accused undergoes voluntary surgicaloperation of castration, to be certified by the Medical Supdt. of the Government hospital concerned, with the prior approval and consent of the Hon blehigh Court of Delhi, his remaining sentence would be deemed to have beenwaived. " ( 2 ) HE has been held guilty of having committed rape on an infant child namelymarnta aged about 3 1/2 years on the 10/05/1987 at about 8. 30 p. m. in thecompound of house of one Ramji Lal situated in main Krishna Gali, Shahdara. ( 3 ) PW1, Smt. Usha Rani and her husband PW3 Shiv Charan Gupta, along withtheir three minor daughters were residing in House No. 600/12, Krishna Galino. ll, Maujpur, Delhi. Their eldest daughter namely Mamta was aged about 3years at the time of the occurrence. PW2, Sh. Ram Kishan, is a D. T. C. driver byprofession and is resident of House No. 660/12a, Maujpur, Delhi. ( 4 ) PW3, Sh. Shiv Charan Gupta, was earning his livelihood by selling golgappas on a hand-driven cart at the Maujpur Chowk. ( 5 ) RAMJI Lal, PW12, was residing in House No. 673/2b, Main Krishna Gali,maujpur located at a distance of about 10 to 15 pacesfrorn the house of Shiv Charan. Ram Kishan s house is also stated to be located near the house of Ramji Lal. ( 6 ) THE appellant was residing as a tenant in House No. 56, Main Krishna Gali,maujpur, belonging to one Madan Lal for the last few years prior to the occurrence. Ram Kishan s house is also stated to be located near the house of Ramji Lal. ( 6 ) THE appellant was residing as a tenant in House No. 56, Main Krishna Gali,maujpur, belonging to one Madan Lal for the last few years prior to the occurrence. The appellant is also stated to be a relative of PW12, Ramji Lal. ( 7 ) IT is the case of the prosecution that on 10/05/1987, which was a Sunday,usha Rani, PW1, along with her daughters and the family of Ramji Lal werewitnessing the Sunday evening movie on the television at her house and herdaughter Marnta had left the house for returning the empty soft drink bottle (goliwali bottle) to the nearby shopkeeper and as she had not returned for some time sousha Rani went in search of her and her husband Shiv Charan Gupta had alsoreturned with his cart from his work and both of them came to the main Krishnagali and they heard shrieks of their daughter coming from the open Court-yard ofthe house of Ramji Lal and time was about 8. 30 p. m. and they immediately rushedto the said place and they found the appellant lying over Mamta on a cot andwitnessed the appellant committing rape on their young daughter. They raised thealarm which attracted PW2, Ram Kishan to the spot. The appellant was overpowered and Shiv Charan went to call the police and he brought to the policecontrol room jeep from the Maujpur Chowk to the place of occurrence and in thatjeep the appellant and PWI to PW3 and the victim of the rape, Marnta, were takento the Police Station Yamuna Vihar. The statement of Usha Rani was recordedwhich is Ex. PW1 /a on the basis of which the case was registered as F. I. R. No. l96at 10. 05 p. m. ( 8 ) PW13, S. I. Ram Dal, had recorded the statement of Usha Rani and had beenentrusted with investigating the case. He had taken into possession red colourunderwear of Marnta which was stated to be having human semen stains whichwas produced before him after taking it off from the person of Marnta which wasconverted into a sealed parcel vide memo No. PW1/b which memo is also dated 10/05/1987. He had taken into possession red colourunderwear of Marnta which was stated to be having human semen stains whichwas produced before him after taking it off from the person of Marnta which wasconverted into a sealed parcel vide memo No. PW1/b which memo is also dated 10/05/1987. Sub-lnspector alongwith other police officials and the witnesses hadgone to the place of the occurrence and had taken into possession the cot from thecompound of the house of Ramji Lal vide recovery memo Ex. PWI /c dated 10/05/1987. ( 9 ) THE investigating officer is stated to have taken into possession a pyjama from the person of the appellant which had on it blood and human semen stains,after converting the same into sealed parcel vide memo Ex. PW2/b dated 11/05/1987. He had prepared the site plan Ex. PW13/b on the pointing out by thewitnesses which is also dated 10/05/1987. The place of occurrence, the houseof Ramji Lal, has one room at the back of the plot and there is open Courtyard infront of that room where the said cot was lying on which the appellant was foundlying over Marnta and committing rape on her. This Courtyard abuts on the mainkrishna Gali, there being no wall between the lane and the said open compound oframji Lal. There was no electricity available in the house of Ramji Lal and the houseof Ramji Lal was locked at the time of the occurrence because family of Ramji Lalwas witnessing the Sunday evening movie on television at the house of thecomplainant. ( 10 ) THE Investigating Officer had taken Mamta to J. P. N. Hospital, New Delhiat 2. 15 p. m. on 11/05/1987. PW11, Dr. Rama Lakshmi, examined Mamta andshe had recorded history as given by Mamta s mother that family was watchingtelevision at about 8 p. m. on 10/05/1987 and Mamta was sent to nearby shop togive back some medicine when allegedly she was lifted by Jagdish Prashad and heassaulted Mamta and he was apprehended at the spot by mother and father of thegirl and Ram Kishan. On examination, she found Mamta to be a small child agedabout 3 years, conscious having pulse rate of 78 per minute, she was not anaemicand she found some dried blood stains on the right ear lobe and small laceration oninside of the right ear and a bite mark on the right arm in the deltoid region 3cm x3cm bruised and tender. She also found nail marks on manubrium sterni. She also,on local examination of private part of the child, found I cm. tear on the Hymen andextending to perineum at 6 O clock position. She also found minimal freshbleeding. An underwear was found on person of Mamta which was having bloodstains. She opined that evidence of rape was present and required that the saidunderwear be preserved but she did not herself put the underwear in any sealedcover and handed over the same to any police constable or the investigating officer. She prepared the M. L. C, Ex. PW11/a. ( 11 ) PW10, Dr. H. M. Sidharth of the said hospital had taken the sample bloodofmamta and after sealing it had handed over the same to the investigating officeralong with the seal specimen. This underwear was stated to have been taken intopossession, after duly sealing it by the investigating officer, from Usha Rani viderecovery memo Ex. PW1/c dated 11/05/1987. This underwear was of greycolour. ( 12 ) THE appellant was got examined from PW9, Dr. K. N. Sharma at 11. 45 a. m. on 11/05/1987. The appellant was brought thereby Constable Baljeet Singh. Heprepared the detailed report. Ex. PW9/a. He had opined that there was nothingto suggest that the appellant did not have the sexual potency. On personal examination of the accused, he found presence of no defect on penis and the generaldevelopment of organ was found to be normal. No evidence of any injury on thepenis or over hyperplocia over carona in a ring form could be seen. He foundpresence of smegma over hyperplostic region only while rest of the glands and foreskin was free of smegma. He found evidence of suspected seminal stains on theunderwear (kachha) worn by the appellant at that time which he had handed overto the police. At that time, the appellant was wearing a shirt, trousers (pant) and avest. Nothing was found wrong on those clothes. He found evidence of suspected seminal stains on theunderwear (kachha) worn by the appellant at that time which he had handed overto the police. At that time, the appellant was wearing a shirt, trousers (pant) and avest. Nothing was found wrong on those clothes. ( 13 ) THE blood sample of the appellant was also obtained which was got sealedand taken into possession vide memo Ex. PW6/b. The underwear which wassuspected to be stained with human semen was handed over to Constable Baljeetsingh, who apparently had accompanied the appellant at the time of his medicalexamination, and was converted, into a sealed parcel vide memo Ex. PW6/c. Therecovery memos which were prepared on 10/05/1987 have been signed by Ramkishan, Shiv Charan and Constable Satender Kumar as witnesses but surprisingly,the seal, after use, has not been handed over to any independent witness but hadbeen kept with Constable Satender Kumar. Even the seal used for converting othersealed parcels, as per memos prepared on 11/05/1987, had not been handedover to any independent witness but had been handed over to Constable Satenderkumar. ( 14 ) THE case property was sent to C. F. S. L. from the Malkhana and the reportsof the C. F. S. L. were received which are Ex. PA and PB which disclosed that thealleged underwear of Mamta of red colour had human blood of ab groupwhereas the grey colour underwear of Mamta was found to have human blood of a group. The pyjama of the appellant was found to have human blood of a group and underwear of the appellant was found to have human blood of ab group. The sample blood of the appellant disclosed that it was of b group and thesample blood of Mamta was found to be of a group. All the three underwears andthe pyjama were found having human semen stains of b group. ( 15 ) THE investigating officer had recorded the statement of various witnessesand had thereafter put in the challan. The appellant, who was charged for theoffence punishable under Section 376 of the Indian Penal Code on the basis of theevidence so collected, had pleaded not guilty and had averred that in fact he hadbeen picked up from his factory at about 10. The appellant, who was charged for theoffence punishable under Section 376 of the Indian Penal Code on the basis of theevidence so collected, had pleaded not guilty and had averred that in fact he hadbeen picked up from his factory at about 10. 30 p. m. and falsely implicated in thiscase as he had a quarrel with the elder brother of Shiv Charan namely Ladli Prashadand that he was married having a daughter and a son. ( 16 ) THE learned Additional Sessions Judge had brought home the offence tothe appellant beyond any reasonable doubt in placing implicit faith in the testimonyof the parents of the child and which stood, according to his assessment, corroborated from the C. F. S. L. reports pertaining to the finding of human semen and theblood on the clothes of the appellant and also on the underwears of the child. ( 17 ) THE learned Counsel for the appellant has strenuously argued that thiscase bristles with contradictory statements of the witnesses, deliberately delayedinvestigation which allowed ample time to enable the investigating officer tofabricate evidence to show that the appellant had in fact committed rape on thelittle child. ( 18 ) THE learned Counsel for the appellant has urged that learned Additionalsessions Judge was swayed with emotional feelings rather than logically appreciating the evidence appearing on the record and had glossed over the glaringmaterial discrepancies appearing not only in the statements of the alleged eyewitnesses but also ignored glaring possibility that in all probabilities the investigating officer had created false evidence of showing blood of the child on the allegedclothes of the appellant also showing presence of stains of human semen on thealleged underwears of the child and also alleged underwear and pyjama of theappellant. He laid much emphasis on the medical report of the appellant and to thetestimony of the doctor who had prepared the said report to show that in fact theappellant had not committed any rape on that night on any child. He has urged thatno blood had oozed out from the person of the appellant as per medical report, soit becomes a my stery how the blood of AB or b group came on some of the clothesin question when admittedly the group of the blood of Marnta was a and thegroup of blood of appellant was b . He has urged thatno blood had oozed out from the person of the appellant as per medical report, soit becomes a my stery how the blood of AB or b group came on some of the clothesin question when admittedly the group of the blood of Marnta was a and thegroup of blood of appellant was b . He has drawn our attention to book of Medicaljurisprudence by Modi to show that ab group is a separate group of human bloodand the C. F. S. L. report does not show that a and b groups of blood were found onthe clothes and at any rate there is not an iota of evidence supporting theprosecution case that the appellant had bleeded in any manner so that his blood of b group could come on any of the clothes in question. ( 19 ) THE learned Counsel for the State has, on the other hand, contended thatstatements of the parents of the girl in question find support from the statement ofindependent witness Ram Kishan which prove that the appellant found an opportunity to commit rape on the little child with whom he was familiar by taking herto a lonely compound of house of Ramji Lal, whose family was away, and there wasno electricity present in that compound to enable the appellant to indulge in hissexual lust. ( 20 ) LEARNED Counsel for the State has argued that there was no earthly reasonfor the parents of the little girl to have falsely implicated the appellant for an offencewhich involves the honour of their little girl child, which would be a life-longtrauma, hanging like sword of Damocles on the future life of the said little girl. Hehas argued that lapse, if any, on the part of the investigating officer or uncalled forover-enthusiasm shown by the investigating officer in perhaps playing somemischief with regard to the clothes in question should not cast any cloud on thestraight forward and truthful statements of the parents of the girl. Hehas argued that lapse, if any, on the part of the investigating officer or uncalled forover-enthusiasm shown by the investigating officer in perhaps playing somemischief with regard to the clothes in question should not cast any cloud on thestraight forward and truthful statements of the parents of the girl. ( 21 ) HE has argued that the parents of the girl had no motive whatsoever tofalsely implicate the appellant for such a heinous offence and he also highlightedthat the appellant had not given any suggestion to PW1 or to PW2, in crossexamination, as to reason of his alleged false implication but he came out with thesuggestion to PW3, father of the girl, that he owed some money to the appellant andas he was not returning the money, so he had falsely implicated the appellant buthe points out that in his statement under Section 313, the appellant had come outwith a new story which had never been put to any of the prosecution witnesses thatthe appellant had some enmity with Ladli Prashad, elder brother of girl s father andhe had got appellant falsely implicated. He has also pointed out that the fact thatthe appellant and the girl in question were found in the compound of house oframji Lal was not controverted while cross-examining PWI to PW3 by theappellant. So, keeping in view all these circumstances, and particularly the truthfulstatements of the parents of the girl, the Court should confirm the conviction of theappellant for the offence punishable under Section 376 of Indian Penal Code. ( 22 ) THE first question to be decided in this matter is as to whether the appellanthad been found in compromising position with Mamta, child aged about 3 years,at that time and place on that day or not ? ( 23 ) THE parents of the child PW1 Usha Rani and PW3 Shiv Charan Gupta, havecategorically deposed about as to how they went in search of their little daughterand on hearing her shrieks reached the compound of Ramji Lal and found theappellant lying over Mamta. Usha Rani has stated that Mamta s underwear hadbeen taken off and appellant was also having his pyjama off and was havingintercourse with Marnta. To the similar effect is the testimony of PW3, father of thegirl. Usha Rani has stated that Mamta s underwear hadbeen taken off and appellant was also having his pyjama off and was havingintercourse with Marnta. To the similar effect is the testimony of PW3, father of thegirl. ( 24 ) RAM Kishan, who is the independent witness, who also had come to thespot had corroborated the statement of PWI and PW3 that when he reached thesaid compound of Ramji Lal, he found both, appellant and the girl present on thesaid cot with the underwear of the girl having been pulled down upto her thighs. He, however, had turned hostile as he did not narrate the facts in Court which hehad given to the police in his statement under Section 161 Criminal Procedure Codeand thus, he was confronted with the portions of the said statement, copy of whichis Ex. PW2/a, but he denied that he had stated to the police that the appellant wasfound committing rape on that little girl at that time and that pyjama of appellantwas seized by the police in his presence. He had tried to help the appellant bydeposing that in fact the appellant was wearing greenish trousers at the time whenhe was apprehended along with the girl. We do not attach any importance to thisparticular version of PW2, Ram Kishan, because there is no reason for PW1 andpw3 to have falsely concocted the facts involving the honour and future life of theirown daughter by deposing that appellant and their daughter were found incompromising position on that particular cot at that time with appellant s pyjamabeing taken off and girl s underwear being also pulled down. ( 25 ) AT least PW2, Ram Kishan, corroborate the statements of PWI and PW3that the appellant and little girl were found on that cot at that time and police wascalled and appellant, all the witnesses including the little girl had gone to the Policestation where PWI had lodged the F. I. R. ( 26 ) THE version put up by the appellant, in cross-examination of PWI, was thatappellant had been falsely implicated as there was some quarrel between PW3 andthe appellant with regard to Rs. 8,000. 00 given on loan by appellant to PW3 whichsuggestion was denied. 8,000. 00 given on loan by appellant to PW3 whichsuggestion was denied. The appellant, in his statement under Section 313, hadcome out with a new version that it was, in fact, PW3 s elder brother Ladli Prashadwho had some quarrel with him and that is why this case has been brought againsthim on false accusation. ( 27 ) WE do not believe that appellant had been falsely implicated in this case. So, we agree with the findings of the Additional Sessions Judge that in fact theappellant and the little girl Mamta were found in some compromising position atthat time in the compound of Ramji Lal which was a deserted place. Obviously, theappellant who knew the little child had on that night, finding the girl alone, hadlured her to that house of Ramji Lal which was at that time locked and there beingno electricity present in that house, so he took that girl to the excluded place forhaving his lust satisfied. ( 28 ) THE question which arises for consideration is as to whether the appellanthas been rightly held to be guilty of offence under Section 375 punishable undersection 376 of Indian Penal Code. In other words, whether the appellant hadcommitted rape on the said girl. Explanation to Section 375 makes it clear that theact of rape is complete as soon as there takes place penetration. ( 29 ) IN Halsbury Laws of England Volume 9 Section 1237, it has been mentioned that there must be evidence of penetration of the private parts of the womanby the private parts of the prisoner, but the slightest penetration is sufficient, andit is not necessary that the hymen should be ruptured. It is not necessary to proveactual emission, the carnal knowledge being deemed to be complete upon proof ofpenetration only. If penetration cannot be satisfactorily proved the prisoner maybe convicted of an attempt to commit a rape or of an indecent assault. ( 30 ) MODI Medical Jurisprudence and Toxicology, 17th Edition page 355 hasmentioned that in case of girls of less than 14 years the distensibility of the vaginalorifice has to be taken in view. If penetration takes place in case of girls of such anage, then there can be expected to be widespread damage of the fourchette, hymen,labia majora, labia minora, vulva and vaginal canal. If penetration takes place in case of girls of such anage, then there can be expected to be widespread damage of the fourchette, hymen,labia majora, labia minora, vulva and vaginal canal. ( 31 ) IN Taylor s Principles and Practice of Medical Jurisprudence Volume II 12thedition page 60, it is mentioned that it isimpossible to conceive that forcibleintercourse should take place in childhood without bruising, effusion of blood, ora laceration of the private parts. The size of the male organ must necessarily causesome local injury in the attempt to enter the vagina of a child. If the violation hastaken place within two or three days, appearance as presented by the parts may beas follows: (1) Reddening or frank inflammation with abrasion or tearing of thelining-membrane, introitus or of the vagina. (2 ). Muco-purulentdischargefromthevagina of a yellowish or greenish-yellow colour, staining the clothing; the urethramay possibly share in the inflammation. (3) In recent cases blood may be oozingfrom the injured parts or clots of blood may be found in the vulva. (4) The hymenmay be entirely destroyed, or may show lacerations. ( 32 ) NORMALLY, in rape cases, if the gland of the male of the organ is covered byuniform layer of smegma, it would negative the possibility of recent completepenetration. If the accused is not circumcised, the existence of smegma round thecorona gland is proof against penetration, since it is rubbed off during the act ofsexual intercourse. ( 33 ) KEEPING in view the aforesaid observations of the learned Authors onmedical jurisprudence, if we examine the medical legal reports of Mamta aswell asof the appellant, we find that apart from the fact that Mamta had a small minimaltear in the hymen, there was no evidence of any other injury on her private parts. There was no injury to labia majora and labia minora. There was not even swellingor redness of both of them and vulva. The appellant s medical examinationdisclosed that smegma was present over hyperplostic region and he had no injuryon his person at all. There was no injury to labia majora and labia minora. There was not even swellingor redness of both of them and vulva. The appellant s medical examinationdisclosed that smegma was present over hyperplostic region and he had no injuryon his person at all. It seems that the learned Additional Sessions Judge has heldthat because there was a tear in the hymen of Mamta, thus there had taken placesome penetration in the private parts of the girl and thus, he held the appellantguilty of the said offence, particularly also he believed the statements of PW1 andpw3 that when they had reached the spot, they found the appellant havingintercourse with the said little child. ( 34 ) IT is evident that there had not taken place any full sexual intercourse withthe child. The presence of smegma over hyperplostic region of the appellant sorgan clearly over ruled the inference that he had any complete sexual intercourse. ( 35 ) IN the present case, surprisingly the investigating officer did not take anyprompt steps to get the little girl and the appellant medically examined. He gotthem examined after many hours and it has come in the statement of PW3 thatthroughout the night Marnta as well as the appellant and Mamta s mother werekept at the Police Station. It is not understandable as to for what purpose theinvestigating officer was keeping them at the Police Station when the F. I. R. hadalready been recorded showing that rape had been committed by the appellant onmarnta. It was absolutely incumbent upon the investigating officer to have takenthe appellant as well as Mamta to the doctors at the hospital where they areavailable 24 hours for getting them medically examined. It is to be further notedhere that in the F. I. R, it was not recorded that when Pw1 and PW3 had reached theplace of occurrence, they had found any bleeding from the private parts of Mamta. Even the Investigating Officer, who had recorded the statement of PW1, has notmentioned anywhere that he had noticed any bleeding from the private parts ofmamta. The small tear in hymen does not necessary could have occurred becauseof penetration of appellant s organ in the private parts of Marnta. It is well-knownthat even little pressure on the private parts of such a small girl may bring aboutsuch small tear in the hymen. The small tear in hymen does not necessary could have occurred becauseof penetration of appellant s organ in the private parts of Marnta. It is well-knownthat even little pressure on the private parts of such a small girl may bring aboutsuch small tear in the hymen. ( 36 ) APART from this that no bleeding from the private parts of the little girl wasmentioned in the Rukka, there have appeared very serious discrepancies in the caseof the prosecution with regard to the clothes seized from the person of the appellantas well as from the person of Mamta. It was sought to be shown in the recoverymemo with regard to the first underwear of Mamta that PW1 had removed the saidunderwear of red colour from the person of Mamta and handed over the same tothe police and the same was converted into sealed parcel but PW1 had controvertedthis fact and had deposed that in fact, after the occurrence, she had brought Mamtato her house and had taken off the stained underwear of Mamta and kept it with her"bhabhi" and had put on another underwear of grey colour on person of Mamtaafter washing the private parts of Mamta. The other underwear of Mamta of greycolour was present when Mamta was taken to the doctor on the following day aftermany hours for her medical examination and it appears that Constable had takenthat underwear and handed over the same to the investigating officer whoconverted the same into a sealed parcel. ( 37 ) EX. PB, the CFSL report indicates that group of blood of the girl was of a. group and the group of blood of the appellant was of b group and on the redunderwear of Mamta and on the white underwear of appellant, human blood of ab group was found whereas on the pyjama of the appellant, human blood of a group was found. Human semen was detected on all the four pieces of clothesmentioned above which was of b group. As per Modi Medical Jurisprudence, ab group is a separate human blood group. The CFSL report does not say that a and b group of blood was found. ab group was not the blood of either theappellant or of Mamta. So, it is not explained how ab group of human bloodcould be detected on the underwear of Mamta and the underwear of the appellant. The CFSL report does not say that a and b group of blood was found. ab group was not the blood of either theappellant or of Mamta. So, it is not explained how ab group of human bloodcould be detected on the underwear of Mamta and the underwear of the appellant. ( 38 ) APART from this, it is evident from the evidence led on the record,particularly the medical report of the appellant, that there was no injury present onthe person of the appellant and so, no blood had oozed out from the body of theappellant so that the same could come on underwear of Mamta and his ownunderwear. If no blood has come out from the body of the appellant, the onlyinference is that some mischief has been played by the investigating officer insmearing the clothes with blood group ab on underwear of Marnta and alsoappellant s underwear. This possibility cannot be ruled out because admittedly,the investigating officer had not handed over the seal, with which he had convertedall these clothes into sealed parcels to any independent person but had kept it withhis own subordinate constable. ( 39 ) ANOTHER serious lapse which appears in the prosecution case is thatalthough the pyjama of the appellant is stated to have been taken into possessionby the investigating officer at the Police Station but it is not explained that incaseappellant was also wearing a stained underwear, why the same was not taken intopossession by the investigating officer when he took the pyjama of appellant inpossession. ( 40 ) LEARNED Counsel for the State has contended that in all probability, PW1was not keen initially to get her daughter medically examined and thus, theinvestigating officer was helpless in the matter and so delay occurred in gettingmamta as well as appellant medically examined. ( 41 ) WE do not find any merit in this contention. PWI and PW3 had broughtmamta as well as appellant in a police van soon after the occurrence at the policestation and an F. I. R. was lodged and a case was registered. The investigating officerhad no option but to take steps immediately for getting the appellant as well asmarnta examined from medical doctors. PWI and PW3 had broughtmamta as well as appellant in a police van soon after the occurrence at the policestation and an F. I. R. was lodged and a case was registered. The investigating officerhad no option but to take steps immediately for getting the appellant as well asmarnta examined from medical doctors. He should have taken them in the sameposition in which they were brought before him, before the doctor and it was for thedoctors to have, after medically examining them, to seize the clothes if they had anyblood or human semen and get them converted into sealed parcels with the seal ofthe doctor and then they could have been handed over to the investigating officer. Not only parents had immediately rushed to police and lodged complaint butmother of Mamta had also remained in the police station throughout the night asdesired by the investigating officer and she has never said that she was not readyto go to doctor on that night. ( 42 ) THE investigating officer has not acted fairly in investigating this case. Weare surprised that the learned Additional Sessions Judge, after noticing all theselapses of the investigating officer, had commended the investigation and hadlavished undeserved praise on the conduct of the investigation by the investigatingofficer. To say the least, the investigation done by the investigating officer wasshoddy and most probably was mischievous. ( 43 ) IN view of the aforesaid discussion, we are of the view that in allprobability, penetration of the vagina of Mamta had not taken place with the maleorgan of the appellant and thus it was not a case of rape, as understood by Section375 of the Indian Penal Code. ( 44 ) SOME of the cases have been cited by Counsel for the parties which aremostly based on their own peculiar facts. It is seldom that the facts could be similarin two criminal cases. ( 45 ) IN Rahim Beg v. The State of U. P. , A. I. R. 1973 Supreme Court 343, therewere allegations of rape having been committed by a fully developed man on a girlof 10/12 years of age who was found to be virgin and her hymen was found to beintact. There was no injury on the male organ of the accused and it was held thatsame would point towards the innocence of the accused. ( 46 ) REFERENCE was made to Mohd. There was no injury on the male organ of the accused and it was held thatsame would point towards the innocence of the accused. ( 46 ) REFERENCE was made to Mohd. Mian v. State, 37 (1989) DLT 35, which isa judgment given by one of us (P. K. Bahri, J.),"where in absence of any injuries on theprivate part of the girl, although there was small tear of hymen which was bleeding,this Court had converted the offence from 3761. P. C. to under Section 354 I. P. C. ( 47 ) HOWEVER, in the present case, we have the statements of PWI and PW3that appellant was at least making efforts to commit rape on the little girl andfortuitous arrival of PW1 and PW3 at the spot probably frustrated his attempt tocommit such a heinous crime. The presence of bite mark on the arm of the girl andsome injuries on the ear lobe of the girl also indicate in the present case that theappellant was having a lust and wanted to ravish the girl. So, it is held that theappellant is guilty of an offence of an attempt to commit rape on the little girlmamta. ( 48 ) BEFORE we part with this case, we may mention that learned Additionalsessions Judge was not right in proposing voluntary castration of appellant underthe orders of the High Court and for remission of his remaining sentence becausethis part of the order of the Additional Sessions Judge is totally illegal. The justicehas to be administered according to the law as it prevails and not on the hypothesisas to what should be the law for curbing such heinous crimes. There is no provisionin any law that if a particular accused of a rape case voluntarily undergoescastration, then the minimum sentence prescribed by the statute is to be remittedby any Court. The sentences have to be given as laid down by the Legislature. Theadditional Sessions Judge ought to have restrained himself from proposing anysuch action which was not in consonance with law. ( 49 ) IN view of the above discussion, we partly allow the appeal and convertthe conviction of the appellant from Section 376 to Section 376 read with Section 511of the Indian Penal Code. The appellant hasalready undergone more than 7 years ofrigrous imprisonment. We sentence him to the period already undergone. ( 49 ) IN view of the above discussion, we partly allow the appeal and convertthe conviction of the appellant from Section 376 to Section 376 read with Section 511of the Indian Penal Code. The appellant hasalready undergone more than 7 years ofrigrous imprisonment. We sentence him to the period already undergone. He be now released incase he is not required to be detained in any other case.