JUDGEMENT 1. Vide order dated 23/25-4-1998 of Additional Sessions Judge, Jagadhri, Bhupinder alias Mohinder Singh accused was convicted and sentenced to undergo rigorous imprisonment for a period of ten years and to pay fine of Rs. 1000/- for having raped Rahisa daughter of Dilsad, a girl aged about 8 years on 10-7-1996 in the area of village Devdhar, police station Chhachrauli. 2. The prosecution case in brief is that Rahisa, daughter of complainant Dilsad, aged 8 years was reading in a Madan's Private School in village Devdhar in first standard. In that school, his neighbour Naresh's daughter Rinki, aged 5 years was also reading. Those girls used to be left at the school on the morning by their respective fathers. After the school was over, they used to return to their respective houses on foot. As usual on 10-7-1996, Dilsad left his daughter Rahisa in the school at about 7.00 a.m., and went on duty to Nathanpur, where he was working as RTM in the Electricity Board. At about 3.00 p.m., when he was away to village Lakkar for attending some complaint, he was told by his neighbour Mohd. Mustafa that his daughter Rahisa had been raped by an unknown young man at about 1.30 p.m., in a sugarcane field which is at a distance of one killa away from the gher of Raj Kumar Ex-Sarpanch of village Devdhar. He was told that his daughter was in bad shape and that he should reach home without any delay. He and Mohd. Mustafa came to his house immediately. He found the clothes of his daughter stained with blood. He asked her as to what had happened to her. At that time, Rahisa was in a state of grave nervousness. He and his wife took Rahisa to Chhachrauli hospital for treatment. The doctor medically examined her and started giving her treatment. He reported the matter to the police vide statement Ex. PF, on the basis of which FIR No. 20 was registered at police station Chhachrauli under Section 376 of the Indian Penal Code. After investigation, Bhupinder alias Mohinder Singh was challaned under Section 376, I. P. C. Case was committed to the Court of Session by Chief Judicial Magistrate, Jagadhri vide order dated 26-8-1996. 3. Accused was charged under Section 376, I. P. C. by Additional Sessions Judge, Jagadhri vide order dated 3-10-1996. After investigation, Bhupinder alias Mohinder Singh was challaned under Section 376, I. P. C. Case was committed to the Court of Session by Chief Judicial Magistrate, Jagadhri vide order dated 26-8-1996. 3. Accused was charged under Section 376, I. P. C. by Additional Sessions Judge, Jagadhri vide order dated 3-10-1996. Accused pleaded not guilty to the charge and claimed trial. 4. At the conclusion of the trial, the accused was convicted and sentenced to undergo rigorous imprisonment for ten years and to pay fine of Rs. 1000/- and in default of payment of fine, to undergo further rigorous imprisonment for two months vide order dated 23/25-4-1998. 5. Aggrieved by the order dated 23/25-4-1998 convicting and sentencing him passed by Additional Sessions Judge, Jagadhri the accused has come up in appeal to this Court. 6. It was submitted by the learned counsel for the appellant that he is not named in the first information report. He should have been put up at test identification parade. He was not put up at test indtification parade. His identification in Court is no identification in the eye of law. Ramesh Kumar, PW-6 whose statement was recorded by the Investigating Officer on 11-7-1996, stated that on 10-7-1996, he had gone to village Begumpur. From Begumpur, he was returning to village Devdhar. There is a culvert between villages Begumpur and Devdhar. Near that culvert, there is gher of Daya Ram where he saw Bhupinder accused on his cycle going towards Begumpur. He saw him at about 1.30 p.m., or 2.00 p.m. In the meanwhile Suresh Kumar came from the side of Devdhar and went towards village Malimajra. He saw two female children going towards village Malimajra. He went on his way towards village Devdhar and therefrom he went to village Khizrabad. On the following morning, he came to know that in Malimajra a rape had been committed with a girl of 7 years of age. He had personally known Bhupinder. He suspected Bhupinder to have raped Rahisa, as he had raped one or two small girls earlier also. 7. Rahisa, PW-13 stated that she was a student of Bhartiya Vidya Mandir, Devdhar. Rinki was also a student of that school. On 10-7-1996, at about 1.30 p.m. she along with Rinki was returning home from school. Near a culvert, they met Bhupinder accused, who offered to take them to their village on his cycle. 7. Rahisa, PW-13 stated that she was a student of Bhartiya Vidya Mandir, Devdhar. Rinki was also a student of that school. On 10-7-1996, at about 1.30 p.m. she along with Rinki was returning home from school. Near a culvert, they met Bhupinder accused, who offered to take them to their village on his cycle. They took lift on his cycle. After a short distance, there was a sugarcane field. He stopped the cycle and asked them to help in picking up a bundle of grass. She went inside the sugarcane field to help the accused in picking up the bundle of grass and Rinki kept standing outside the sugarcane field. Accused forcibly removed her underwear and committed rape upon her. He threatened her with death, in case she disclosed this incident to anyone. Then he put her underwear and brought her out of the sugarcane field. Suresh met her and Rinki a little ahead of that field. Suresh brought them home. 8. Rinki, PW-14 stated that on 10th of a month, when she was studying in first standard, she was going home with Rahisa. They were coming from their school Bhartiya Vidya Mandir, Devdhar. When they were near a culvert, accused met them. He was on cycle. He told her to stand there, while he was taking away Rahisa. He took Rahisa to a field of sugarcane. After a shortwhile, Rahisa and the accused came out of the sugarcane field. Clothes of Rahisa were soiled and the accused went away. Then they came across Suresh. He brought them to village Malimajra. 9. It is true that the accused was not put at test identification parade. It is equally true that he too did not claim that he be put up at test identification parade. When he did not apply for being put up at test identification parade, he cannot take advantage of this thing that he was not put up at test identification parade. 10. The accused was medically examined by Dr. V. K. Wadhawan, PW-2 Medical Officer, Primary Health Centre, Chhachrauli on 13-7-1996 at 5.10 p.m. He found that he was well built with secondary sex character well developed. His genitalia was well developed. There was abrasion at the glans of the penis at 5' clock position. There was no injury to prepuce. Smegma was present. V. K. Wadhawan, PW-2 Medical Officer, Primary Health Centre, Chhachrauli on 13-7-1996 at 5.10 p.m. He found that he was well built with secondary sex character well developed. His genitalia was well developed. There was abrasion at the glans of the penis at 5' clock position. There was no injury to prepuce. Smegma was present. In his cross-examination, he stated that if there is complete penetration in the vagina of a nine year old girl, there would be injury to prepuce. In this case there was injury to glans of the penis. Dr. Asha Wadhawan, PW-1 Medical Officer, Primary Health Centre, Chhachrauli stated that on 10-7-1996, she medico-legally examined Rahisa, daughter of Dilsad, aged 8 years, female, resident of Malimajra. She found that her clothes were stained with blood and mud. She preserved the clothes and handed over the same to the police duly sealed. Blood stains were present on the inner side of thigh supra pubic region and perineum. Labia majora was swollen and stained with blood. There was laceration of right labia majora. This laceration was continued downward with the laceration of posterior commissure and perineum. The margin of the wound was swollen, tender and red on touch. Hymen was lacerated at 6' clock position. Edges of the wound were tender and read on touch. On pressing the abdomen a soft reddish clot came out of the vagina. That clot was preserved and handed over to the police. Vaginal swab was taken, preserved and handed over to the police. She stated that there was possibility of rape on her. She stated that complete penetration cannot be ruled out in this case. Assistant Director (Biology), Forensic Science Laboratory (H), Madhuban was of the opinion that semen was detected on skirt, Exh. 1a. Blood was also detected on this exhibit. Exh. 1b. shirt was stained with numerous small and large blood stains. Semen was detected on Exh. 1c. underwear. Underwear was also stained with one large blood stains. Blood was detected on Exh. 2a, slides. Semen could not be detected on this exhibit. Blood was detected on Exh. 2b. Semen could not be detected on this exhibit. Blood was not detected on Exh. 3, blood stained grass. Neither blood nor semen could be detected on Exh. 4a, shirt. Semen was detected on Exh. 4b, payjama. Blood could not be detected on this exhibit. 2a, slides. Semen could not be detected on this exhibit. Blood was detected on Exh. 2b. Semen could not be detected on this exhibit. Blood was not detected on Exh. 3, blood stained grass. Neither blood nor semen could be detected on Exh. 4a, shirt. Semen was detected on Exh. 4b, payjama. Blood could not be detected on this exhibit. It is, thus, clear that Forensic Science Laboratory found blood and semen on the clothes of the girl and the vaginal swab. Accused has not explained why injury to his glans of the penis. He has not explained why semen on his payjama. In this case, thus, the circumstances are operating very harshly against the accused. 11. It was submitted by the learned counsel for the appellant that it was the duty of the Court to have recorded a finding that Rahisa and Rinki, who were small children could understand the sanctity of speaking the truth. It was submitted that in this case learned trial Court has not recorded its opinion that they understood the sanctity of speaking the truth. Suffice it to say both of these girls were examined without oath, because they were not understanding the sanctity of oath. They, however, gave rational answers to the questions put to them by the Court and the Court felt that they are good witnesses and will be truthful. It was submitted by the learned counsel for the appellant that it was not a case of rape. It may have been a case of criminal assault with intent to outrage the modesty of a female or at best, attempt to rape. It was submitted that there is no evidence of penetration. Suffice it to say if there had been no penetration, there would have been no injury to the glans of the penis of the accused. When the abdomen of Rahisa was pressed, soft reddish clot came out of the vagina. There was laceration of right labia majora. Labia majora was swollen and stained with blood. Blood stain was present on the inner side of thigh supra pubic region and perineum. Margin of the wound was swollen, tender and red on touch. Hymen was lacerated at six clock position. Edges of the wound were tender and red on touch. All this suggests that there was penetration of penis into the vagina of Rahisa. Blood stain was present on the inner side of thigh supra pubic region and perineum. Margin of the wound was swollen, tender and red on touch. Hymen was lacerated at six clock position. Edges of the wound were tender and red on touch. All this suggests that there was penetration of penis into the vagina of Rahisa. PW-6 Ramesh Kumar found the accused near the place of occurrence at about 1.30 p.m. or 2.00 p.m. In my opinion, learned Additional Sessions Judge justifiably found the charge of rape proved against the accused. 12. Faced with this situation, learned counsel for the appellant submitted that there is no evidence that Rahisa was a girl of 8/9 years old and, therefore, lenient view be taken in the matter of sentence, as the accused was aged 18/19 years and was on the threshold of life. It was also submitted that the uncertainty of this trial kept looming on his head for all these years. It was submitted that leniency should be shown to the accused because due to extreme youth, he could not control his passions. In my opinion, the sentence awarded does not call for any mitigation. Appellant is a savage and a brute. He acted like a savage and a brute. He should have thought that he was an adult fully developed sexually and if he raped a child of 8/9 years old, he would destroy her vagina beyond repair. How could a girl aged 8/9 years bear the insertion of male organ by a youth of 19 years into her narrow margin. 13. For the reasons given above, this appeal fails and is dismissed. Appeal dismissed.