Judgment Prabhat Kumar Sinha, J. 1. This is an appeal against the judgment dt. 15.1.1999 recorded in Sessions Trial No. 382 of 1996 by the 7th Additional Sessions Judge, Chapra under which the appellant Nand Kishore Prasad @ Nandu was convicted under section 376 of the Indian Penal Code and was sentenced to undergo rigorous imprisonment for 10 years. 2. The prosecution case, briefly stated, and as coming out of the First Information Report, Ext. 4, by one Manglawati Devi is that when at about 5 P.M. she was at home the appellant came and informed that her daughter (Kajal) has fallen down and was bleeding. Going to the house of the appellant she saw the girl, aged 6 years, unconscious and bleeding in the private part. When she gained consciousness, on being asked, she (Kajal) informed that the appellant had enticed her into his house and had tied her mouth, made her to lie down on a cot and thereafter had raped her causing rupture and bleeding. 3. The police thereafter took up investigation and subsequently submitted charge-sheet against the appellant and one Manki Devi, Manki Devi having been charged under section 201 of the Indian Penal Code. This Manki Devi, however, was acquitted under the impugned judgment. 4. Learned counsel for the appellant, besides admitting the offence, mainly has based argument on two points viz. that on reaching hospital the informant had given her statement before the police in which she did not allege occurrence of rape but subsequently she again gave her statement which is the present first information report, whereas the earlier statement recorded by police should have been treated as the first information report and secondly, that the Investigating Officer was not examined by the prosecution thereby causing prejudice to the appellant so much so that the place of occurrence could not be verified from his statement to find veracity of allegation such as whether blood was or was not found there. 5. Before adverting to these two points l will go through the evidence first. 6. The victim girl is witness No. 5 who was at the time of her evidence, assessed by the Court, 8 years old. She has clearly stated that while she was playing at the Osara, the appellant came and took her inside the house and closed the door. 6. The victim girl is witness No. 5 who was at the time of her evidence, assessed by the Court, 8 years old. She has clearly stated that while she was playing at the Osara, the appellant came and took her inside the house and closed the door. She said that thereafter the appellant threw her on a Chowki, tied her mouth and when she started crying he also threatened her. She also said that he came upon her and raped (Bura Kaam Kiya) also stating that when she started bleeding he swept that with his Lungi. She claimed that she was bleeding from her private part. She also said that she gained consciousness in the hospital where she was treated and her statement was recorded. This girl was cross-examined extensively on different dates. Her evidence has been fully discussed in the judgment of the learned lower Court which need not be repeated. Suffice it to say that though the girl was small, she well withstood the test of cross-examination and nothing material has come which could induce court to view her evidence with suspicion. 7. Learned counsel for the appellant also pointed out that P.W. 6, Baby Devi did not support the prosecution case, hence was declared hostile. However, she said that she had heard that such occurrence had taken place against Kajal at the hands of this appellant. 8. P.W. 3 is Doctor Pushpalata, who had examined the girl on 6.5.1996. The injury report was marked as Ext. 2 whereas pathological report, subsequently submitted by Dr. Deepak Kumar, was marked as Ext. 3. This witness had found that the girl was suffering from second degree on bleeding from vagina and she found tear as well rupture of hymen which were found to be recent. She found the age of the girl to be six years at that time and she did not rule out rape. The swab that was sent for pathological examination was found soaked with blood though spermatozoa was not found. In answer to a question she said that there was a rupture in the hymen and that injury was sign of rape though spermatozoa was not found. In cross-examination she, however, agreed with the observation in Modis Medical jurisprudence that in small children the hymen being situated high up in the canal, was not usually ruptured, though there could be inflammation. In cross-examination she, however, agreed with the observation in Modis Medical jurisprudence that in small children the hymen being situated high up in the canal, was not usually ruptured, though there could be inflammation. When specific question was asked the doctor said that such injury was possible by rape. So far as the medical evidence is concerned, rupture of hymen was found and the girl was bleeding. This shows penetration, howsoever meagre that may be, and a penetration is sufficient to prove rape though intercourse may not be completed which may explain absence of spermatozoa. 9. P.W. 1, Prahalad Prasad, is a hearsay witness who was told by Tara Devi that Kajal was raped by the appellant. P.W. 2 Manglawati Devi is the mother of Kajal Kumari who said that as to what initially the appellant had told her and how she found Kajal unconscious and bleeding. She further said that in the hospital she gained senses and thereafter she told actually what had happened with her. She further said that in course of investigation the police had taken her statement twice on the same night and in her earlier statement she had not made allegation (of rape). I do not find anything in her cross- examination to discredit her. 10. P.W. 4 is Tara Devi the grand mother of the victim girl who similarly has supported the prosecution case also stating that when appellant first came she had seen blood on his lungi. She also has well withstood the test of cross-examination. P.W. 7 has proved the fardbeyan which is Ext. 4. He clarified that on the first statement of the informant no offence was made out, hence F.I.R. was lodged on the basis of her second statement which revealed criminal offence. 11. From the evidence of the victim girl, as already stated, nothing emerges for which her evidence could be disbelieved. That evidence is well supported by the Medical evidence also and other witnesses have also lent support to that. 12. The defence of the accused was that the girl was swinging with curtain in a room when she fell down on a small Palang from which iron rod was protruding Which has injured her in private part. That evidence is well supported by the Medical evidence also and other witnesses have also lent support to that. 12. The defence of the accused was that the girl was swinging with curtain in a room when she fell down on a small Palang from which iron rod was protruding Which has injured her in private part. From the evidence of victim girl it appears that the said Palang was brought in the court and shown to her but she specifically said that she had not seen that bed. 13. In so far as the first objection of the learned counsel for the appellant, Shri Zeauddin, is concerned, the first statement, as it appears from the materials on the record, was given by the informant to the police on the basis of what was said to her by the appellant himself as at that time she did not know what actually had happened. What the appellant had told was mere an accident which did not make out a criminal offence, hence naturally that statement did not qualify for institution of case. It has come in the evidence that the girl subsequently gained her consciousness after which she revealed as to what had happened and on that informant gave her second statement on which the case was registered since that revealed commission of a cognizable criminal offence. Therefore, this point will not help the defence. 14. Insofar as the second point is concerned, merely non-examination of Investigating Officer will not adversely effect the prosecution case unless it is shown that by his non-examination the defence was prejudiced. The victim girl has told as to where the offence was committed and the informant had found her in the room, bleeding. Therefore, from the evidence, the place of occurrence appears to be sufficiently established. No such serious contradiction from the evidence of witnesses has to be taken which if verified with their statements recorded by the Investigating Officer could have clinched the issue in favour of the appellant. Therefore, I do not find that by non-examination of the Investigating Officer the defence was so prejudiced. 15. Therefore, I find that the learned lower Court has rightly come to the conclusion that the prosecution had proved its case for the offence punishable under section 376 of the Indian Penal Code beyond reasonable doubts. 16. Therefore, I do not find that by non-examination of the Investigating Officer the defence was so prejudiced. 15. Therefore, I find that the learned lower Court has rightly come to the conclusion that the prosecution had proved its case for the offence punishable under section 376 of the Indian Penal Code beyond reasonable doubts. 16. In so far as the sentence is concerned, the appellant has been sentenced to undergo rigorous imprisonment for 10 years. I find no reason to interfere in that so much so that the victim girl was just a child and it has come in the evidence that the appellant was related to her as cousin. 17. In the result this appeal fails, and is dismissed.