Judgment Mohd. Yamin, J.-Appellant Brij lal faced trial under Sections 376, 323, 342 and 354, IPC before learned Additional Sessions Judge, Raisingh nagar. Guilt was proved against him. He was convicted for the said offences and sentenced to seven years’ rigorous imprisonment with a fine of Rs. 2000/-and in default to undergo six months’ rigorous imprisonment for offence under Section 376, IPC. It was further ordered that in case fine was recovered the same shall be given to the mother of prosecutrix as prosecutrix was minor at that time. No separate sentences were passed for other offences. Appellant aggrieved by this Judgment of conviction and sentence preferred this appeal. 2. Briefly stated facts of case are that Kamla PW-4 and her sister PW-3 Vimla who were minors went to a distance of about 1-1/2 murabba away from their village to collect grass on 23-9-1982 at 4.00 PM Appellant caught hold of Vimla and took her in a Khala in cotton crop and raped her. Kamla, who was the younger sister, immediately went to her mother having tears in her eyes and informed her parents of prosecutrix rushed towards the place of incident. They saw appellant running. They also found that Vimla was laying naked in unconscious condition and her ‘shalwar’ was lying nearby. She was bleeding per vagina. She was taken from there to the house of her parents. The incident was told to Han Ram, Budh Ram, Mani Ram etc. Then Nand Ram brought the appellant and a panchayat was organised. He admitted before panchayat that he committed rape with Vimla. Vimla gained consciousness at about 9.00 PM She told that the appellant tempted her to give a water-melon and took her in his field where cotton was growing. He fell her on the ground, opened her shalwar and raped her. She suffered such agony that she became unconscious. Since Vimla regained consciousness at about 9.00 PM and there was no means of communication available in the night, the report was lodged at police station Anupgarh next day. Police registered a case under Section 376, IPC. Prosecutrix was examined for her age and X-Ray was taken. Examination of her body was conducted and the doctor opined that the rape was committed on her. During investigation site plan Exhibit P/9, memo Exhibit P110 were prepared. Police registered a case under Section 376, IPC. Prosecutrix was examined for her age and X-Ray was taken. Examination of her body was conducted and the doctor opined that the rape was committed on her. During investigation site plan Exhibit P/9, memo Exhibit P110 were prepared. ‘Shalwar’ belonging to prosecutrix was seized vide Exhibit P/i i. Accused appellant was arrested and his underwear was seized. After investigation challan was submitted before the Munsif and Judicial Magistrate, Anupgarh who committed the case to the learned Sessions Judge. 3. Learned Sessions Judge framed and read over charges to the appellant on 28-2-1983. Appellant denied them and claimed trial. Thereupon prosecution examined as many as nine witnesses. Accused appellant was examined under Section 313, CrPC He did not examine any witness in defence. However, the defence of the appellant as stated by him under Section 313, CrPC was that Leelu Ram, father of prosecutrix, worked with him for about two months and then left. Lalu came to demand his wages. The accused appellant wanted to give money for two months only and not thereafter. Hence Lalu falsely involved the appellant. 4. I have heard the learned Counsel for the appellant as well as learned Public Prosecutor at length. 5. Learned Counsel for the appellant submitted that case under Section 376, IPC was not proved against the appellant. He submitted that a lesser offence may be made out, but case of rape is not proved. He submitted that the defence of the accused appears to be genuine. 6. On the other hand, learned Public Prosecutor submitted that the prosecution was able to establish its case under Section 376, IPC beyond doubt and conviction and sentence passed against the appellant should not be interfered. 7. Thequestion before me is whether the prosecution was able to prove offence under Section 376, IPC against the appellant? 8. Learned Counsel for the appellant first submitted that there was inordinate delay in filing the report for which there appears to be no reasonable explanation. I do not agree with this contention because the FIR itself mentions the reasons. PW-2 Rameshwari, who is mother of prosecutrix, has stated that she and her husband went to the site, brought prosecutrix, collected certain persons of the village and a panchayat was held which inquired from the appellant. I do not agree with this contention because the FIR itself mentions the reasons. PW-2 Rameshwari, who is mother of prosecutrix, has stated that she and her husband went to the site, brought prosecutrix, collected certain persons of the village and a panchayat was held which inquired from the appellant. According to her Vimla regained consciousness at 9.00 PM and since night had fallen and there was no means of communication in night to go, the report could be lodged next day. PW-3 Vimla has also corroborated that she was taken to police station next day. In the facts and circumstances of this case the delay is explained by the prosecution. 9. So far as merits of the case under Section 376, IPC are concerned, first question is as to what was the age of Vimla at the relevant time? Prosecution examined PW-8 Dr. Kailash Nath Markandey who is a Radiologist and has proved after her radiological examination that the age of Vimla was in between 9-11 years. Vimla PW-3 herself stated that she was aged only 10 years. She was elder to Kamla PW-4 who is eight years of age. Thus, it is proved beyond doubt that the prosecutrix was minor. It has not been challenged by the learned Counsel for the appellant. 10. PW-3 Vimla, the deflowered girl, stated that she and her sister went to collect grass (fodder) and when they were collecting grass from the field of appellant he called her and enticed to give a water-melon. She went near him. Appellant caught hold of her hand and took her at the place where cotton was grown. There he opened her shalwar, put her down, gagged her mouth, tied her hands, ascended on her and inserted his penis in her vagina. She started bleeding and became unconscious. She was cross examined at length and could not be shattered. She knew the appellant very well as he used to visit her parents’ house. She was not suggested at all the defence which the appellant has taken in his statement under Section 313, CrPC She is corroborated by her younger sister PW-4 Kamla who stated that accused appellant enticed Vimla to give a water-melon and when she went, appellant caught hold of her hand and took her in the crop of cotton and then ascended on her. She immediately went to her mother and informed her. She immediately went to her mother and informed her. Though these are child witnesses they should be believed because they are not tutored. Vimla is herself a victim of lust of appellant. Kamla saw him climbing on Vimla. The only question about these two witnesses is whether they were reliable or not. I do not find any weakness in their testimony and hold that both the sisters are reliable. Their mother PW-2 Rameshwari has corroborated sending them to collect grass and has also corroborated that PW-4 Kamla came to her weeping who narrated her the incident. She and her husband i.e. father of both the girls, went to the site. She found that Vimla was lying unconscious. She and her husband brought back Vimla home who regained consciousness at about 9.00 PM and narrated the sordid incident to her. In the meantime panchayat had taken place where appellant is alleged to have made extra judicial confession. Thus, Smt. Rameshwari has corroborated the story of prosecution. She had seen the girl lying in the crop of cotton and bleeding per vagina. She has also stated that the appellant after seeing her, ran away. This witness on the one hand corroborated the two girls and on the other hand also stated that the appellant was seen by her running from the place of occurrence. She did not keep silence. She collected people of village where appellant was called who made extra judicial confession. The defence of the appellant was not put even to this witness at all. The defence on the one hand is after though and on the other hand improbable because Rameshwari and Leelu Ram would not involve the honour of her unmarried minor daughter in order to foist a false case against the appellant. 11. The main criticism of the, learned Counsel for the appellant was that hymen of the prosecutrix was intact, therefore, according to him no rape was committed with her. He also submitted that there was no mark of violence on the back portion of body of prosecutrix. 12. 1 have carefully gone through the evidence of PW-7 Dr. Satya Prakash Sharma. He has stated that the marks of violence were present on the body of Vimla i.e. there was abrasion 1/8 cm x 1/4 cm on upper lip right side. There was another abrasion on the back of right elbow 3 cm x 2 cm. 12. 1 have carefully gone through the evidence of PW-7 Dr. Satya Prakash Sharma. He has stated that the marks of violence were present on the body of Vimla i.e. there was abrasion 1/8 cm x 1/4 cm on upper lip right side. There was another abrasion on the back of right elbow 3 cm x 2 cm. He further stated that gait of the victim was painful. So far as injuries on the back are concerned, in this case there could not have been injuries on back because the incident took place on the crop of cotton which was a cosy place. PW-7 Dr. Satya Prakash Sharma has stated that there was redness, swelling and inflamation of the vulva, labia majora and minora and vagina. Thus he has proved the marks of deflowerment of Vimla. This proves that rape was committed. The doctor has also stated so in so many words. 13. Learned Counsel submitted that since hymen was intact, rape is not proved. On the other hand, learned Public Prosecutor submitted that there are cases when amongst minor girls hymen remains intact. He relied on the observations in the Medical Jurisprudence by Jhala & Raju, Sixth Edition 1997, page 501 which states as follows: Even a slight penetration in the vulva is sufficient to constitute the offence of rape and rupture of the hymen is not necessary. Vulva penetration with or without violence is as much rape as vaginal penetration. The statute merely requires medical evidence of penetration and this may occur with the hymen remaining intact. 14. Learned PP relied on (1992) 2 Crimes 168 : 1992 AIR SCW 1480, Madan Gopal Kakkad v. Naval Dubey in which a minor girl of eight years was raped by a doctor. Her labia majora or vulva or pudenda were injured without rupturing the hymen and the accused who was a doctor himself admitted that it was done by him in such a manner that hymen may not be ruptured. The Supreme Court held that the offence amounted to rape. He also relied on Glaister’s Medical Jurisprudence and Toxicology Edited by the late Edgar Rentoul and Hamilton Smith (Thirteenth Edition), wherein it has been observed that both the character and extent of injury will depend upon the nature of the hymen, the extent of penetration and the amount of force used. He also relied on Glaister’s Medical Jurisprudence and Toxicology Edited by the late Edgar Rentoul and Hamilton Smith (Thirteenth Edition), wherein it has been observed that both the character and extent of injury will depend upon the nature of the hymen, the extent of penetration and the amount of force used. The hymen remains unruptured in odd cases after coitus and during resultant pregnancy and remains intact uptil ruptured by the birth of the child. In such cases the hymen is of annular and distensile type which permits the entry without rupture. He drew attention to Taylor’s Principles and Practice of Medical Jurisprudence Edited by A. Keith Mant (Thirteenth Edition) is another authority in which this subject has been dealt with at page No. 75. It has been observed that rupture of the hymen on first penetration is of course very common but it is not inevitable for the thin elastic hymen is quite capable of stretching to accommodate penetration. There is an unreported Judgment of this Court given in Mahesh Kumar v. State of Rajasthan SB Cr. Appeal No. 452/96, decided on 29-1-1998 (reported in 1998 CriLJ 1597) by Hon’ble Mittal, j. in which the rupture of hymen was not found though it was alleged that victim was raped by two persons. 15. When in case of a minor girl rupture of hymen is not inevitable and all the accompanying circumstances coupled with injuries on the person of Vimla prove that she was raped, I am of the clear opinion that the trial Court has not committed error in holding that accused was liable for raping Vimla. 16. Learned Sessions Judge did not believe the story of extra judicial confession of the appellant on the ground that people in panchayat had asked the appellant that he would be given beating unless he tells the truth. Learned Sessions Judge rightly discarded the story of extra judicial confession. It was PW-1O Dev Kishan who investigated the case. During investigation he inspected site and prepared site plan Exhibit P/9 which shows that crop where occurrence took place was about 3-3 1/2 feet high and it was such a place where if anything happens, it would not be visible to others. Thus, it is proved that the appellant took the prosecutrix to a place where nobody could behold his nefarious activity. He was very cautious. Thus, it is proved that the appellant took the prosecutrix to a place where nobody could behold his nefarious activity. He was very cautious. He detained Vimla by enticing her to give a water melon. I agree with the learned Sessions Judge that the prosecution was also able to prove the various minor offences. I concur with the finding of fact arrived by the learned Additional Sessions Judge, Raisingh-nagar. 17. The defence of emmity raised by appellant has been discussed at various stages and I find it an after thought and improbable story which cannot be accepted. 18. In view of above discussion, the appeal fails and is hereby dismissed with the modification in the sentence of fine. If it is recovered it shall not be paid to prosecutrix, least it may refresh her the sordid story of her deflowerment. His bail bonds are cancelled. Learned Additional Sessions Judge Raisinghnagar is directed to take appellant in custody to undergo the remaining part of sentence.