JUDGMENT Kuldip Chand Sood, J.—Appellant Dhani Ram (accused for short) was prosecuted for an offence punishable under Section 376 of the Indian Penal Code for having sexually molested and raped a girl child of five years Kumari Somti Devi and was convicted for the offence by the learned Additional Sessions Judge, Sirmaur District at Nahan (HP) vide his judgment dated August 11, 1999 and sentenced to suffer rigorous imprisonment for ten years and to pay a fine of Rs. 2,000. In case of default in payment of fine accused is to suffer further rigorous imprisonment for six months. 2. Aggrieved by his conviction, accused filed this appeal from Model Central Jail, Nahan, where he is undergoing the sentence imposed upon him. Accused was not represented by a counsel. He prayed for the appointment of a legal aid counsel to represent him in this case. Accordingly, Mr. Bimal Gupta, Advocate, was appointed as counsel for the accused. PROSECUTION CASE 3. Kumari Somati Devi, hereinafter referred to as "the victim", is the daughter of Julfi Ram resident of village Manpur in Paonta Sahib. Negi Ram (PW 3) is nephew and neighbour of Julfi Ram. Accused is resident of village Firahari in District Saharanpur (U.P.). Accused is known to Negi Ram, as both of them used to work in Halwais shop. On the evening of 2nd May, 1998, accused came to visit Negi Ram and stayed in his house. After taking meals in the evening, accused lied down in a bed in the verandah/court yard of Negi Rams house. Negi Ram (PW-3) went to the house of his uncle Julfi Ram to gossip. At that time, "the victim" was playing outside her house, near the place where accused was lying. Negi Ram and Julfi Ram were gossiping when they heard cries of "the victim" they also heard Dhani Ram trying to quiten the victim saying that he would give her sweets and she should stop crying. The victim kept on crying. Dhani Ram brought the victim in his lap. But the victim kept on crying. Julfi Ram, father of the victim, asked the child as to what had happened to her. She pointed towards her private part and said that pain has been caused there by Dhani Rami (Gukhoo Kiyd). Julfi Ram after removing underwear of the victim found that she was bleeding from her vagina. But the victim kept on crying. Julfi Ram, father of the victim, asked the child as to what had happened to her. She pointed towards her private part and said that pain has been caused there by Dhani Rami (Gukhoo Kiyd). Julfi Ram after removing underwear of the victim found that she was bleeding from her vagina. Both Negi Ram and father of the victim Julfi Ram went to Panchayat Pardhan Smt. Prabhi Devi (PW-4) and informed her about the incident. Prabhi Devi advised them to wait till next morning. On the next morning Prabhi Devi (PW-4), her husband and another Panch of the Panchayat Smt. Maya Devi, visited the house of Julfi Ram. Smt. Prabhi Devi examined the victim and her underwear. She noticed swelling on the private part of the victim and found that vagina was swollen and bleeding. She questioned the victim. At that time Dhani Ram was also present. She advised Julfi Ram to report the matter to the police and gave him a letter (Ex. P3) for the Station House Officer. The police came to the village. Statement of Julfi Ram (Ex. P/4) was recorded, on the basis of which formal FIR (Ex. PW-ll/A) was registered. The victim was medically examined. Accused was also sent for his medical examination. Salwar (Ex. M-l), Shirt (Ex. M-2) and Underwear (Ex. M-3) were taken into possession by the Doctor and later sent for chemical examination. 4. The accused was charged for an offence punishable under Section 376 of the Indian Penal Code by the learned trial Court. 5. Case of the accused is that of denial. According to him, Negi Ram owed some money to him and, therefore, he has falsely implicated him in this case. 6. Learned trial Judge on the basis of the evidence of Julfi Ram (PW-2), Negi Ram (PW-3), Smt. Prabhi Devi (PW-4), Kirpal Singh (PW-5) and medical evidence concluded that prosecution has been successful in proving the offence with which accused was charged and accordingly convicted him. 7. We have heard Mr. Bimal Gupta, learned Counsel for the accused-appellant and Mr. Ashok Sharma, learned Additional Public Prosecutor-cum-Assistant Advocate General and have also gone through the record. 8. There is no dispute that the victim was a child of about five years of age at the time of occurrence. 7. We have heard Mr. Bimal Gupta, learned Counsel for the accused-appellant and Mr. Ashok Sharma, learned Additional Public Prosecutor-cum-Assistant Advocate General and have also gone through the record. 8. There is no dispute that the victim was a child of about five years of age at the time of occurrence. Evidence of (PW-2) Julfi Ram (father of victim) and (PW-3) Negi Ram is not seriously disputed. Learned Counsel for the accused submits that prosecution has not been able to establish the case against the accused beyond reasonable doubt for the reasons: (a) medical evidence is not indicative of any rape on the person of the victim; (b) The victim not examined as witness; (c) defence of accused that he has been falsely implicated has not been considered. 9. We have re-appraised the entire evidence with the help of learned Counsel for the accused. It is the evidence of Julfi Ram, father of the victim, that house of Negi Ram, his nephew, is adjacent to his own house at a distance of 2 or 3 paces. On the day of occurrence, accused had come to the house of Negi Ram. At about 8 p.m. Negi Ram was sitting with him, his aunt and wife at his house. Accused was lying on cot in the courtyard/verandah of the house of Negi Ram. The victim, his daughter, was playing outside the house of Negi Ram. After some time they heard weeps of the victim. Accused Dhani Ram came to their house with the victim in his lap. The victim continued to weep inspite of the attempts of the accused to quiten her by offering her sweets. On enquiry she told him pointing towards her private part that accused has caused her pain. On this he (Julfi Ram) removed underwear of the victim and found that she was bleeding from her vagina. Accused on this left his house. He and Negi Ram went to the house of Prabhi Devi (PW-4), President of the Panchayat and narrated her the incident. She in turn told them that she would visit his house next day morning. Next morning Prabhi Devi along with Kirpal Singh and Maya Devi Panchayat Panch visited his house. She also sent for the accused. 10. Smt. Prabhi Devi looked at the victim and found that the victim was having swelling on the vagina. She in turn told them that she would visit his house next day morning. Next morning Prabhi Devi along with Kirpal Singh and Maya Devi Panchayat Panch visited his house. She also sent for the accused. 10. Smt. Prabhi Devi looked at the victim and found that the victim was having swelling on the vagina. She also found that the victim was bleeding from vulva. On inquiry from the victim, she pointed towards accused Dhani Ram and informed that Dhani Ram had injured her (Gukhoo Kar Diya). Smt. Prabhi Devi, advised Julfi Ram to lodge a report with the police and accordingly gave him a letter (Ex. P-3). 11. Evidence of Julfi Ram is fully corroborated by the evidence of Negi Ram (PW-3), Smt. Prabhi Devi (PW-4) and Kirpal Singh (PW-5) on this aspect of the case. It is the evidence of Negi Ram that accused had come to his house to stay with him on 2nd May, 1998. After serving the accused with food he made bed for him to sleep and he himself went to the house of his uncle Julfi Ram at about 8 p.m. At that time the victim was playing outside the house of Julfi Ram and she went towards Dhani Ram. After some time, they heard cries of the victim. They also heard Dhani Ram trying to quiten her and saying that he would give her sweets and she should stop crying. Dhani Ram brought the victim to them in his lap. The victim continued crying. Julfi Ram asked his daughter as to what had happened to her. The victim pointed towards her private part and said that she had been caused pain at that place by Dhani Ram. All of them then, after removing the underwear of the victim, saw bleeding from the vagina. Corroborating Julfi Ram he states that they went to Panchayat Pradhan Smt. Prabhi Devi who asked them to keep vigil on Dhani Ram accused and told them that she would come next morning. Next day morning, according to this witness, Smt. Prabhi Devi and member of the Panchayat examined the victim and then advised them to lodge a report with the police. Next day morning, according to this witness, Smt. Prabhi Devi and member of the Panchayat examined the victim and then advised them to lodge a report with the police. Smt. Prabhi Devi, President of the Panchayat (PW-4) corroborating the prosecution version on this aspect of the case specifically states that on the next day morning she visited the house of Julfi Ram, she looked at the victim and her underwear. She found swelling on the vagina of the victim. She also saw that the victim was bleeding from her vagina. On her asking the victim pointed towards accused and told her that it was the accused who has injured her at that place. It is her evidence that she advised Julfi Ram to lodge a report with the police and accordingly gave him a letter (Ex. P-3). Kirpal Singh (PW-5) is also Panch of Panchayat Manpura Devra. It is his evidence that at the request of Panchayat Pradhan, Prabhi Devi he accompanied Smt. Prabhi Devi to the house of Julfi Ram along with Maya Devi another Panch. They saw swelling on the vagina of the victim which was also bleeding. He further corroborates the prosecution case and states that the victim pointed towards the accused as the person who caused her injury in the vagina. All these witnesses have been cross-examined at length but their evidence remain un-shaken. 12. The evidence of Julfi Ram (PW-2), Negi Ram (PW-3), Smt. Prabhi Devi (PW-4) and Kirpal Singh (PW-5) is fully corroborated by medical evidence. Dr. Shahida Ali, Medical Officer, Civil Hospital, Paonta Sahib (PW-1) examined the victim on 3rd May, 1998. She did not find any injury mark on external genitalia i.e. labia minora, majora and perineum but did find blood mixed pinkish staining with small blood clots around introitus. She found hymen of the child victim in torn condition. There was no fresh bleeding at that time from the edges. According to the Doctor, vagina of the victim was narrow, tight, mucosa was rugose, reddish in colour and sensitive to touch. Opening allowed passage of little finger. The Doctor further states that smear was taken from the vagina and during preparation of smear, fresh bleeding started from the torn edges of the hymen. As per the opinion of the Doctor vaginal penetration had taken place as the hymen was ruptrued. Opening allowed passage of little finger. The Doctor further states that smear was taken from the vagina and during preparation of smear, fresh bleeding started from the torn edges of the hymen. As per the opinion of the Doctor vaginal penetration had taken place as the hymen was ruptrued. In the cross-examination she admits that there is possibility of external injury on the external genitalia of a female in case of forcible penetration of a male organ in a female child of seven years of age. It was suggested that the injury found on the private part of the victim could be caused by insertion of some wooden stick or by nails. 13. This witness in the medico-legal-certificate (Ex. P-l) opined that the medical evidence on the person of the victim was suggestive of vaginal penetration as the hymen was ruptured. The accused after his arrest was medically examined on 3rd May, 1998 by Doctor Asheesh Sharma (PW-7) Medical Officer, Civil Hospital, Paonta Sahib. Doctor Sharma noticed the following injury: "Small lacerated 2-2 mm prepucial injury present on the inside which was exposed on retraction of prepuce which was tender and raw. No crust present. Testes were normal adult size. No stains were present on scrotum or perenial area. Erection was there on manipulation of tests for examination. OPINION 1. On examination Dhani Ram was a normal adult male and nothing was found by me to believe that he could not perform sexual inter-course. 2. There are findings to show that he had committed sexual intercourse within last 24 hours". (a) MEDICAL EVIDENCE IS NOT INDICATIVE OF ANY RAPE ON THE PERSON OF THE VICTIM. 14. The contention of learned Counsel for the accused is that absence of injury on labia majora and minora of the victim is indicative of the fact that she was not subjected to any sexual inter-course. The contention is misplaced and cannot be accepted. 15. Section 375 of the Indian Penal Code, to constitute rape, does not contemplate complete penetration of penis into the private part of the victim. Even partial or slightest penetration of penis within the labia majora or the vulva or pudenda is sufficient to constitute rape within the meaning of Sections 375 and 376 of the Indian Penal Code. The act of sexual assault or rape would be complete even without causing any injury to genitalia of the victim. Even partial or slightest penetration of penis within the labia majora or the vulva or pudenda is sufficient to constitute rape within the meaning of Sections 375 and 376 of the Indian Penal Code. The act of sexual assault or rape would be complete even without causing any injury to genitalia of the victim. Thus, it is possible to commit offence of rape even without causing any injury to genitalia. However, in this case there is sufficient evidence which unerringly shows that the victim was subjected to sexual assault without which she would not have sustained injuries of the nature found on her hymen. Dr. Shahida Ali found that hymen of the victim was completely torn. The unimpeachable evidence of Julfi Ram, father of the victim, Negi Ram, Smt. Prabhi Devi and Kartar Singh that the victim was bleeding from her private part when they saw the victim, medical evidence of the physical condition of the victim, coupled with the fact that there was injury on the penis of the accused, as found by Doctor Asheesh Sharma, proves the version of the prosecution. 16. Modi in his Jurisprudence, 11th Ed., page 312 has made the following observations: "In addition to scratches or lacerations on the penis caused by the finger nails of the victim during a struggle an abrasion or laceration may be discovered on the prepuce or glans penis, but more often on the feaenum due to the forcible introduction or the organ into the narrow vagina of virgin, especially of a child, but it is not necessary that there should be marks of injuries on the penis in such cases.” (Emphasis supplied) 17. In the present case slight blood mixed pinkish staining with small blood clots around introitus, torn hymen and fresh bleeding when smear was taken from the vagina coupled with the injury on the perpuce of the accused, shows that the accused did indulge in sexual activity on the victim though there might not have been total or complete penetration. 18. In State of U.P. v. Babul Nath, (1994) 6 Supreme Court Cases 29, their Lordships, interpreting Section 375 of the Indian Penal Code and explanation thereto, observed, in para (8) of the judgment, as follows : "8. 18. In State of U.P. v. Babul Nath, (1994) 6 Supreme Court Cases 29, their Lordships, interpreting Section 375 of the Indian Penal Code and explanation thereto, observed, in para (8) of the judgment, as follows : "8. It may here be noticed that Section 375 of the IPC defines rape and the explanation to Section 375 reads as follows: Explanation.—Penetration is sufficient to constitute the sexual inter-course necessary 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 accomplishment of the act with force and resistance. To constitute the offence of rape neither Section 375 of IPC nor the Explanation attached thereto require that there should necessarily be complete penetration of the penis into the private part of the victim/prosecutrix. In other words to constitute the offence of rape it is not at all necessary that there should be complete penetration of the male organ with emission of semen and rupture of hymen. Even partial or slightest penetration of the male organ within the labia majora or the vulva or pudenda with or without any emission of semen or even an attempt at penetration into the private part of victim would be quite enough for the purpose of Sections 375 and 376 of IPC. That being so it is quite possible to commit legally the offence of rape even without causing any injury to the genitals or leaving any seminal stains. But in the present case before us as noticed above there is more than enough evidence positively showing that there was sexual activity on the victim and she was subjected to sexual assault without which she would not have sustained injuries of the nature found on her private part by the doctor who examined her." 19. The sexual activity of accused on the innocent hapless child is further strengthened from the fact that Dr. Asheesh Sharma (PW-7) found that smegma was absent under prepuce of the accused. The presence of smegma round the glans is indeed proof against penetration, as it is rubbed off during the act of sexual inter-course. In other words presence of smegma excludes the possibility of recent sexual inter-course. 20. Asheesh Sharma (PW-7) found that smegma was absent under prepuce of the accused. The presence of smegma round the glans is indeed proof against penetration, as it is rubbed off during the act of sexual inter-course. In other words presence of smegma excludes the possibility of recent sexual inter-course. 20. We are satisfied from the evidence on record that accused did insert his penis into private part of the victim though there might not have been complete penetration. The hymen was torn as it is located very near to entrance. There is no merit in the arguments of the learned Counsel for the accused that the medical evidence is not indicative of any rape on the person of the victim. (b) Victim not examined as witness 21. The next contention of Mr. Gupta, is that non examination of the victim is fatal to the prosecution case and the accused is entitled to acquittal on this ground alone. We are not impressed. The prosecution cannot be thrown out on the ground that the victim has not been examined. It is not that the victim has been with held by the prosecution, infact the victim was produced in the court and sought to be examined by the prosecution as PW-6 but the learned Sessions Judge found that the victim, a child, was not a competent witness to depose. The learned Sessions Judge further found that the victim was not capable of understanding the questions put to her and she was unable to give rational answers thereof. Learned Sessions Judge recorded the following note as to the competence of the witness to depose: "I have seen the witness present in the court, she is a child witness of average intelligence. The girl is stated to be studying in Class 1st of the village school. I have seen the girl and by appearance, she does not appear to be more than 4 or 5 years of age. Her father is an illiterate person and the possibility cannot be ruled out that the age of the girl has been wrongly recorded. I have questioned the girl in general and she is not capable of telling anything except her own name. The girl is not capable of understanding the questions put to her, nor she is capable of giving the rational answers thereof. The witness is therefore not competent to depose and therefore cannot be examined. I have questioned the girl in general and she is not capable of telling anything except her own name. The girl is not capable of understanding the questions put to her, nor she is capable of giving the rational answers thereof. The witness is therefore not competent to depose and therefore cannot be examined. The learned Public Prosecutor and the learned defence counsel are also of the opinion that the child is not a competent witness to depose." Even if the victim, who is of tender age, was examined in the court it would not have been of any consequence. She was incapable of understanding the questions or giving rational answers and, therefore, not competent to give evidence. In the circumstances, noticed above, mere non-examination of the victim is not fatal, more so when the offence against the accused is proved by other acceptable evidence on record. The view we have taken is supported by Shamsher Tappi v. State of U.P. 1995 (Cri. LJ 2328); Shilla alias Shilender v. State of Haryana (1995 Cri. LJ 3566); State of Himachal Pradesh v. Madan Mohan, (1995 Cri. LJ 3845) and Mange v. State of Haryana, (1979) 4 Supreme Court Cases 349. We, have no hesitation to hold that non-examination of the victim, in the circumstances of this case, is of no adverse consequence to the prosecution case. (c) DEFENCE OF ACCUSED THAT HE HAS BEEN FALSELY IMPLICATED HAS NOT BEEN CONSIDERED. 22. In the end, learned Counsel for the accused submits that accused has falsely been implicated as Negi Ram owed some money to accused. The contention is only to be noticed to be rejected. There is no question of false implication of the accused in this case. The accused admittedly was not known to the father of victim Julfi Ram. He was known only to Negi Ram nephew of Julfi Ram and he admittedly had come to house of Negi Ram to stay. Had there been any enmity between Negi Ram and accused, Negi Ram would not have invited the accused to stay with him and make him comfortable after serving meals. The accused according to Dr. Asheesh Sharma who examined the accused, told him that the consumed liquor and he does not remember as to what happened thereafter except that he was given beatings by the villagers. The accused according to Dr. Asheesh Sharma who examined the accused, told him that the consumed liquor and he does not remember as to what happened thereafter except that he was given beatings by the villagers. Defence that accused has been falsely implicated as Negi Ram, nephew of the father of victim owed some money, is an after thought. This apart, it is inconceivable that parent of the victim would falsely implicate an unknown innocent person for an offence of rape of his daughter allowing real culprit to go scot-free. There is no material on record which may indicate false implication of the accused. 23. We are satisfied from the evidence discussed above that six years old victim was subjected to rape by the accused. 24. We find no merit in this appeal and the same is dismissed. Appeal dismissed.