S. D. Pandit ( 1 ) JAGDISH Prasad, appellant convicted of the offence punishable under Section 376 of the Indian Penal Code by the Additional Sessionsjudge of Delhi in Sessions Case No. 189/87on24. 1. 1991 and is sentenced to sufferimprisonment for life and to pay a fine of Rs. 6,000. 00 and in default to sufferfurther R. I. for two years with a direction to pay Rs. 5,000. 00 as compensationto the victim Shivani Sood, daughter of Kesari Dass Sood. ( 2 ) SHRI Kesari Dass Sood is resident of House No. l/206/47,sanatandharam Building, Sadar Bazar, Delhi Cantonment. He is residing there alongwithhis wife and children. The present appellant is his neighbour. ( 3 ) ON 4. 3. 1987 there was a function in the house of the appellant on accountof birth of his grant child. Gita Devi, wife of Kesari Dass Sood, had gone to thehouse of the present accused alongwith her daughter, victim Shivani Sood, inorder to attend a Kirtan. The grand-daughter of the present appellant, viz. , Shaluis of the age group of the victim Shivani Sood. When the function was goingon the ground floor of the house, victim Shivani Sood and Shalu were playingthe game of Chhupa-Chhupi alongwith other children, viz. , Golu, Bholu andpinku. When they were so playing the present appellant took Shivani in his roomon the first floor and there he removed her under-wear (Kucchi) and put his maleorgan-in her private part. She felt pain. Thereupon appellant got up and wentaway and child Shivani also went down. ( 4 ) SHIVANI s father Kesari Dass Sood had returned home on that day at about9. 30 p. m. and he had learnt that his wife, Geeta Devi, and daughter Shivani hadgone to the appellant s house for attending Kirtan. At about 10. 40p. m. he foundhis daughter and wife retuming home. At that time he found that there were bloodstains on Shivani s frock as well as on her thighs. When he made inquiries from heras to what had happened to her, she disclosed to him that Shalu s grand-father, thepresent appellant, had done something with her. He found that her Kucchi (Nikar)was also blood stained. He, therefore took her to PW/10, Dr. Harish Sood. Dr. Harish Sood on questioning the girl came to know that she was sexually assaulted. When he made inquiries from heras to what had happened to her, she disclosed to him that Shalu s grand-father, thepresent appellant, had done something with her. He found that her Kucchi (Nikar)was also blood stained. He, therefore took her to PW/10, Dr. Harish Sood. Dr. Harish Sood on questioning the girl came to know that she was sexually assaulted. He took victim Shivani with her father, PW/2 Kesari Dass Sood, to Delhi Cantonment Police Station. There Kesari Dass Sood lodged his complaint. ( 5 ) ON the strength of his complaint the First Information Report wasregistered as First Information Report No. 170 /87. Thereafter, the Investigatingofficer went to the house of the present appellant. There he found blood stainson the Chhadar (bed-sheet) on the bed of the appellant. He also found that theappellant had washed his Lungi, which was also having blood stains. He seizedboth these articles under memoranda. The Investigation Officer, thereafter, sentchild Shivani Sood to Medical Officer, PW/13 Dr. Renu Mishra. Dr. Renu Mishrahad found that there were blood stains on the medical surface of both the thighs. Her undergarments were blood stained. She also found that her heimen admittedtip of finger but was very tender and painful. Dr. Renu Mishra did not carry outvaginal examination as the child did not allow her to do so. However, she tookvaginal swab and vulval swab. The Medical Officer sealed the frok and underwearof the child as well as vaginal and vulval swabs and forward the same to Chemicalanalyser. The appellant was arrested and he was also sent for examination topw/3 Dr. Bindal Gupta. On completion of the necessary investigation the presentappellant was challaned by the Police of Delhi Cantonment Police Station. Butsince the offence punishable under Section 376 of the Indian Penal Code isexclusively triable by the Court of Session the learned Metropolitan Magistratecommitted the accused to the Court of Sessions. ( 6 ) CHARGE was framed against the present appellant for the offence undersection 376 of the Indian Penal Code on 20. 7. 1987. Accused appellant pleaded notguilty to the charge. His defence is of total denial and false implication. ( 7 ) IN order to prove the case of the prosecution, the prosecution hadexamined in all 14 witnesses, including victim Shivani. 7. 1987. Accused appellant pleaded notguilty to the charge. His defence is of total denial and false implication. ( 7 ) IN order to prove the case of the prosecution, the prosecution hadexamined in all 14 witnesses, including victim Shivani. The learned Additionalsessions Judge, had found the evidence led by the prosecution quite sufficient tohold the appellant guilty ofthe offence punishable under Section 376, Indian Penalcode and he accordingly sentenced him, as stated above. ( 8 ). Shri D. C. Mathur, learned Counsel for the appellant, has urged before usthat in view of the medical evidence on record it is not at all possible to hold thatappellant Jagdish Prasad had committed rape on child Shivani. He urged beforeus that even if this Court happened to accept the evidence led by the prosecutionthe same would at the most disclose an offence punishable undersection 376 readwith Section 511 of the Indian Penal Code. He also contended before us that thepunishment awarded to the present appellant is very harsh. ( 9 ) AS against, the Shri P. S. Sharma, learned Standing Counsel (Criminal) forthe State, urged before us that the evidence on record clearly shows that theappellant has committed an offence punishable under Section 376 and he contended that in view of the nature of the offence the punishment awarded to himis quite appropriate. He, thus, contended that the present appeal bedismissed. ( 10 ) THE main and material question that emerges for determination in thiscase is as to whether appellant committed rape onShivani Sood. To put in anutshell, rape means, having sexual intercourse with a woman without herconsent and against her will and if the woman is below the age of 16 years then herconsent is immaterial. Even slightest penetration is suffident to constitute a rape. In the present case, as usual, the only direct evidence against the accused is thetestimony of Shivani. It is settled that in rape cases direct evidence is not availablebeyond the words of the raped woman. It is also settled that there is no rule orpractice that there must be in every case corroboration to the testimony of thevictim before a conviction can be allowed to stand. In the case of Bharwadabhoginbhai Hirjibhai v. State of Gujarat, AIR 1983 S. C. 753 the followingprinciples are laid down: "corroboration is not the sine qua non for a conviction in a rape case. In the case of Bharwadabhoginbhai Hirjibhai v. State of Gujarat, AIR 1983 S. C. 753 the followingprinciples are laid down: "corroboration is not the sine qua non for a conviction in a rape case. In theindian setting, refusal to act on the testimony of a victim of sexual assault inthe absence of corroboration as a rule is adding insult to injury. Why shouldthe evidence of the girl or the woman who complains of rape of sexualmolestation be viewed with the aid of spectacles fitted with lenses taggedwith doubt, disbelief or suspicion? To do so is to justify the charge of malechauvinism in a male dominated society. " "a girl or a woman in the tradition bound non-permissive society of Indiawould be extremely reluctant even to admit that only incident which islikely to reflect on her chastity had every occurred. She would be consciousof the danger of being ostracized by the society or being looked down bythe society including by her own family members, relatives, friends, andneighbours. She would face the risk of losing the love and respect of herown husband and near relatives, and of her matrimonial home andhappiness being shattered. If she is unmarried, she would apprehend thatwould be difficult to secure an alliance with a suitable match from arespectable or an acceptable family. In view of these and similar factors,the victims and their relatives are not too keen to bring the culprit to book. And when in the face of these factors the crime is brought to light there is abuilt-in assurance that the charge is genuine rather than fabricated. "therefore, bearing the above observations of the Supreme Court in mind weproceed to consider the evidence in this case. ( 11 ) AS usual, in the case the direct evidence is of the victim Shivani. Shivaniwas hardly six to six and a half years of age at the time of the incident in question. Due to the said age she is not in a position to understand and to describe the sexualacts, as could be seen from her testimony on record. She has deposed that on thatday she had gone to the house of the appellant alongwith her mother as there wassome Kirtan in that house. Due to the said age she is not in a position to understand and to describe the sexualacts, as could be seen from her testimony on record. She has deposed that on thatday she had gone to the house of the appellant alongwith her mother as there wassome Kirtan in that house. She has further deposed that she was playing therewith the appellant s grand-daughter Shalu and other children and when she wasso playing she happened to go upstairs in the room which was having moredarkness than light and in that room the present appellant was present. She hasdeposed in her examination-in-chief as under: "the accused came out there. He did not say anything to me and took meto his room. At that time I was wearing a frock and an underwear. Theaccused was wearing a shirt and lungi at that time. He took out my Kucchi. The accused did something with his organ after taking off my Kucchi. "the accused put his organ in my private part. I felt pain in my private part. I did not weep. I did not cry. My Kucchi went red. I came down and wentto my mother. "the said child witness is cross-examination at length but from her cross-examination it is not possible to hold that there was any tutoring to the said childwitness. There is no material in her cross-examination to discard the aboveevidence of the said child witness. ( 12 ) PW2, Kesari Dass Sood, is father of Shivani and he has deposed in hisexamination-in-chief as under:- "at about 10. 30 p. m. my daughter baby Shivani and my wife returnedhome. I saw blood on the thighs of my daughter Shivani. On furtherexamination, I found her back side of the frock and her Kucchi also bloodstained. I immediately removed baby Shivani to the Doctor and I took myson alongwith me. I could not imagine eyen in my dream that she couldbe raped. While I was about to take her to the Doctor, she said, "kuch Nahinhua. Shalu ke baba ne muchh kiya hai. "the said witness had taken her to Public Witness 10 Dr. Harish Sood. Dr. Harish Soodhad stated in his examination-in-chief as under:- "he also told me that when his daughter Shivani aged six years old returnedfrom the house of Jagdish Prasad, she was bleeding. Shalu ke baba ne muchh kiya hai. "the said witness had taken her to Public Witness 10 Dr. Harish Sood. Dr. Harish Soodhad stated in his examination-in-chief as under:- "he also told me that when his daughter Shivani aged six years old returnedfrom the house of Jagdish Prasad, she was bleeding. I also found thedaughter of Kesari Dass who was having blood stains on her panty and frock. In my presence Kesaridass asked from her daughter Shivani as to what had. happened with her and as to why the blood was oozing from beneath herpanty. His daughter disclosed that Jagdish Prasad had inserted his penisin her private part in the room on the first floor of the house of Jagdishprasad. Thereupon Kesaridass, myself and Shivani had gone to the Policestation on the same night where a report was lodged by Kesari Dass. "in his cross-examination the following material is brought out : "i had taken off the panty from the body of baby, Shivani in the presence ofher father and saw myself that there were blood stains on the panty and therewas blood around the private part of the baby. At the time I saw Shivani aftertaking off her panty I found that the private party was wet and blood wasoozing out in small quantity. I did not notice any external injury on theprivate part of Shivani and I had not examined her internally. " ( 13 ) DR. Renu Mishra, PW/13, who had examined Shivani at 1. 25 a. m. on thenight between 4. 3. 1987 and 5. 3. 1987, has deposed as under: "there was no external mark of injury over her body. Her undergarmentswere blood stained. There was no mark of injury on the private parts. However, there were blood stains over the medical surface of both thighs. Onseparation the labia minora there were no fresh lacirations seen in the hymen. The hymen admitted tip of finger but was very tender (painful ). So the childdid not allow per vaginum internal examination. There was no activebleeding from any site. "she has further deposed that she had taken the child s underwear, frock, vaginalswab and vulval swab and sealed them. These were later on sent and chemicalanalyser s report. The evidence of the Medical Officer clearly shows that she hadnot carried out the internal examination of child Shivani. There was no activebleeding from any site. "she has further deposed that she had taken the child s underwear, frock, vaginalswab and vulval swab and sealed them. These were later on sent and chemicalanalyser s report. The evidence of the Medical Officer clearly shows that she hadnot carried out the internal examination of child Shivani. Child Shivani was minorand when she had found the dried blood onm medival surface of thighs of thesaid child and it was alleged that the child was raped, it was her duty to examinethe child with the consent of the parents under the general anasthesia or localanasthesia. She has admitted in her cross-examination that she had not soughtpermission from her parents to examine Shivani under general or local anasthesia. Thus, it is obvious that the Medical Officer, Dr. Renu Mishra, had not performedher duty properly and correctly as she had not carried out the internalexamination of the child. The evidence as to whether there was any injuries on theinternal part of child s vagina or not has not thus come on record. ( 14 ) IT must be further mentioned here that not only there was blood on herunderwear as well as her frock, the police had seized the bed sheet on which alsothere were blood stains. The underwear of Shivani, her frock, the vaginal andvulval swabs taken by Dr. Renu Mishra and the bed-sheet were forwarded to thechemical Analyser and the report of Senior Scientist Officer of the Central Forensicscience Laboratory shows that alongwith the, said articles the sample of the bloodof the appellant was also recieved by him. The accused s blood is of 0 Groupand the report of the Chemical Analyser shows that on vaginal swab he had found blood of b Group. He had also found blood of b group on the bed sheet. Hehad further found that there was blood of 0 and b group on Shivani s frock aswell as underwear - He had also found semen stains on her underwear ofappellant s blood group. The presence of the blood and semen of the blood groupof the accused on her clothes and the presence of blood of her group on the bedsheet of the accused s bed gives the necessary corroboration to her claim. The presence of the blood and semen of the blood groupof the accused on her clothes and the presence of blood of her group on the bedsheet of the accused s bed gives the necessary corroboration to her claim. Thepresence of blood in her vulva and the fact that the Doctor found that her hymenwas very tender and painful indicates and suggests that the accused must havemade slight penetration and must have made an attempt to have sexual intercoursewith her. Child Shivani has deposed that when the accused had pressed his maleorgan on her private part she had felt pain. So when she had felt pain the accusedmust have withdrawn from her. ( 15 ) IT must be mentioned her that if the cross-examination of Shivani herfather as well as Dr. Harish Sood, PW/10 , are taken into consideration then itwould be quite clear that there is no material in their cross-examination to show orsuggest that they have got any animosity or ill will towards the present appellant. On the contrary, it has come in evidence of Shivani s father that relations betweenhim and the present appellant and his family members were quite good and theywere on visiting terms till the date of incident in question. Therefore, in thecircumstances, it is not at all probable that Shivani s father will try to stake thereputation and life of his daughter in making the claim against the presentappellant without any foundation or reasonable cause. In these circumstances,there is no reason to discard and disbelieve the oral evidence of these threewitnesses. ( 16 ) IT is true that the Medical Officer, PW/3, Dr. Bindal Gupta, who hadexamined the appellant on the fateful night had not found any injury on the personor on the organ of the present appellant. Here again we would like to observethat there was no thorough examination by the said Doctor of the present appellant. When the appellant was alleged to have raped a minor child it was necessary thatthe Doctor should have conducted thorough examination to find out as towhether there was any injury on the person or on the organ of the person allegedto have committed the rape. It is also necessary to find out as to whethersmegama was present on his penis or not. The detection of smegama is not onlyto prove the prosecution case but it is also to prove the innocence of the accused. It is also necessary to find out as to whethersmegama was present on his penis or not. The detection of smegama is not onlyto prove the prosecution case but it is also to prove the innocence of the accused. But it seems that the Doctor who carried out the said examination is not awareof these basic principles regarding examination of the person alleged to havecommitted rape, as has been the case of the Doctor who did not carry out theinternal examination of the victim. Thus, the medical officers in this case were nottrue to their jobs. ( 17 ) AT the cost of repetition it must be said that Dr. Renumishra had foundthat the hymen of Shivani was tender and painful. She had found blood stainson the medical surface of both thighs of the victim. The vaginal swabs takenby her indicated bleeding inside. Alongwith this evidence, the followingmaterial brought out in the cross-examination of Shivani s father, Kesari Dasssood must be considered: "my daughter - prosecutrix followed her mother after my wife had takenthe Parshad from house of the accused. Both of them came walking to theirhouse,therewasabnormalityseenbymein herwalking. However,whenshecame close and on seeing the bleeding on her clothes, suspicion developed. "thus, the material brought out in the cross-examination of the father of the victimimmediately after the act is that the victim had difficulty in walking. Thus, onconsideration of the aforesaid evidence, it is quite clear that the appellant on thatday must have inserted his penis in her private part and attempted to havesexual intercourse with her. In the case of State of Uttar Pradeshv. Babu Lalnath, 1995 (1) Chandigarh Criminal Cases 17, it has been held that "even slightestattempt to penetration into the private part would amount to rape. " It would be vclear from the following paragraph No. 8:- "8. It may here by noticed that Section 375 of the Indian Penal Code defines rape and theexplanation to Section 375 reads as follows:-"explanation": Penetration is sufficient to constitute the sexual intercoursenecessary to the offence of rape. "from the explanation reproduced above, it is distinctly clear that ingredients which are essential for proving a charge of rape are the accomplishmentof the offence of rape neither Section 375 of Indian Penal Code nor the explanationattached thereto require that there should necessarily be complete penetration of the penis into the private part of the victim/prosecutrix. "from the explanation reproduced above, it is distinctly clear that ingredients which are essential for proving a charge of rape are the accomplishmentof the offence of rape neither Section 375 of Indian Penal Code nor the explanationattached thereto require that there should necessarily be complete penetration of the penis into the private part of the victim/prosecutrix. In othewords, to constitute the offence of rape it is not at all necessary that thereshould be complete penetration of the male organ with emission of semen and rupture of hymen. Even partial or slightest penetration of the maleorgan within the labiamajora or the vulva or pudenda with or without anyemission of semen or even an attempt at penetration into the private part ofthe victim wold be quite enough for the purpose of Sections 375 and 376 ofindian Penal Code That being so, it is quite possible to commit legally the offence of rapeeven without causing any injury to the genitals or leaving any seminalstains. " ( 18 ) IT must further be mentioned here that immediately after the incidentvictim s father and Dr. Harish Sood, PW/10 had gone to the house of the accusedand at that time it was told that the accused had washed his Dhoti and that he hadgone away. Police had attached the washed Dhoti of the accused and the saidwashed Dhoti was forwarded to Chemical Analyser alongwith the bed sheet andother articles and the said Dhoti was found by the Chemical Analyser to. containblood stains of group 0 . If this finding of the Chemical Analyser is taken intoconsideration alongwith the evidence of Dr. Bindal Gupta, PW/3, it would showthat Dr. Bindal Gupta had not performed his duty property. Therefore, merelybecause Dr. Bindal Gupta had not performed his duty properly, we are unable todistrust the victim. No doubt the accused had taken the defence that on that day hewas overjoyed on the arrive of a grand son and, therefore, he could not controlhimself and he enjoyed sex with his wife who was in her mensturation and due tothe same there were blood stains on the bed sheet of his bed. This claim of theaccused does not at all seem to be probable. This claim of theaccused does not at all seem to be probable. Apart from this even considering theexplanation given by him, what at the most could be said in his favour is that theblood stains on the Chhadar were of his wife but there is no explanation as to howthere were blood stains on his Dhoti of his own blood group, which was washedby him on that night and how there were blood stains of his blood group on theunderwear and frock of the child. ( 19 ) IN the view of the above discussion, we agree with the finding of thetrial Court that the accused had committed the offence of rape and therefore, hewas rightly convicted by the learned Additional Sessions Judge. ( 20 ) IT is urged before us by the learned Counsel for the appellant that thesentence of imprisonment for life is very harsh. No doubt, the offence committedby the accused is heinous. The material brought on record shows after thisincident in question his wife took also died. The accused is in jail since, the dateof the incident till today except for few periods on Which he was releated oninterim bail. The accused is also very old. Therefore, taking into considerationthese circumstances, and the fact that the accused had made slight penetrationand only attempted to have a complete intercourse with the child and that notmuch damage was caused to her organ, we hold that the sentence of imprisonmentfor life be reduced to the period of 10 years. However, the order of fine andcompensation awarded by the Trial Court deserves to be maintained. Weaccordingly modify only the order of sentence. ( 21 ) THE appeal is partly allowed only on the point of sentence. The order ofconviction passed by the Trial Court is maintained. However, the order ofsentence of imprisonment for life, ordered by the Trial Court is set aside and inits place the order of sentence for a period of 10 years of R. I. is passed. The orderof compensation and fine and further R. I. for a period of two years in default ofpayment of fine, as passed by the Trial Court is maintained.