JUDGMENT 1. - This criminal appeal under section. 374 Criminal Penal Code arises out of the judgment and order dated 17.3.1998 passed by the learned Sessions Judge, Sikar, by which he found the accused-appellant guilty of having committed offence under section 376 Indian Penal Code and accordingly convicted and sentenced him to rigorous imprisonment for 10 years with a fine of Rs. 2,000/-, in default thereof, to further undergo simple imprisonment for six months. 2. On 23.5.1997, PW-7 Richpal lodged a written report Ex.P/1 at Police Station Raghunathgarh (Sikar) alleging therein that at about 8.00 a.m. her daughter Sunita had gone to attend the call of nature in `Kheda' (out side the house), where the accused-appellant forcibly committed rape on her. On her raising hue and cry, two persons namely Bhagirath S/o Natha and Bhagirath S/o Kesha came there, the accused ran away. Bhagirath S/o Natha took her to her house and informed her father of the incident. 3. On the above report, police registered a case vide FIR Ex.P/2 and proceeded with the investigation. Police prepared the site plan Ex.P/8 and got the prosecutrix medically examined. Police arrested the accused-appellant and also got him medically examined to find whether he was capable to perform sexual intercourse. Police also seized a Chaddi of the accused which he was wearing at the time of commission of offence. 4. The police having completed entire formalities, submitted a charge-sheet against the appellant under section 376 Indian Penal Code and Section. 3 of SC/ST (Prevention of Atrocities) Act in the Court of learned Judicial Magistrate, Sikar who, in turn, committed the case to the Court of Sessions. 5. The case came to be tried by the Special Judge, who framed charges against the appellant under section. 376 Indian Penal Code and Section 3 of the SC/ST (Prevention of Atrocities) Act, to which the appellant denied and claimed trial. During trial the prosecution examined as many as 11 witnesses and filed some documents. On conclusion of trial, the learned Special Judge acquitted the accused of the charge under section. 3 of the SC/ST (Prevention of Atrocities) Act and held the charge under section. 376 Indian Penal Code duly proved against the accused. He was consequently convicted and sentenced as mentioned above. 6. On conclusion of trial, the learned Special Judge acquitted the accused of the charge under section. 3 of the SC/ST (Prevention of Atrocities) Act and held the charge under section. 376 Indian Penal Code duly proved against the accused. He was consequently convicted and sentenced as mentioned above. 6. I have heard learned counsel for the accused-appellant and the Public Prosecutor and gone through the impugned judgment and the record of the case. 7. Learned counsel for the accused-appellant has made a scathing criticism of the judgment of the trial Court and contended vehemently that the conviction of the accused-appellant was wholly unwarranted. In assailing the conviction, learned counsel raised various points, which I propose to deal with a seriatim. 8. The first contention is that PW-4 Miss. Sunita, who was the main witness being the alleged victim of rape has not been examined and therefore no reliance can be placed on what the other witnesses testified against the accused-appellant. 9. I have considered the above argument. The prosecutrix was included in the list of witnesses and she was produced for her examination in the Court as PW-4. The trial Court having felt that she was mentally retard and was neither capable of understanding the things nor was able to explain anything, dis-charged the witness. In my opinion, the trial Court was right in discharging the prosecutrix on the ground of she being mentally retard. I have also gone through the relevant evidence on this point. PW-9 Dr. V.D. Meel has stated in his examination in chief that he had examined Sunita D/o Richpal to find out her mental state of affairs and on examination he was of the opinion that Sunita was suffering from `moderate mental retardation'. The witness further stated that she was not capable of answering the questions put to her. The report prepared by him is Ex.P/10, which also indicates that Sunita was mentally retard. Similarly, PW-10 Dr. Smt. Radha Chaudhary had examined Sunita to find out whether rape was committed on her. She has stated in her statement that Sunita was having dull mind (mentally retard). Thus, in view of specific assertion of two doctors, the trial Court was fully justified in discharging PW-4 Sunita and no adverse inference can be drawn for non-examination of Sunita as witness. 10. She has stated in her statement that Sunita was having dull mind (mentally retard). Thus, in view of specific assertion of two doctors, the trial Court was fully justified in discharging PW-4 Sunita and no adverse inference can be drawn for non-examination of Sunita as witness. 10. The next contention of the learned counsel for the appellant is that it has not been established beyond reasonable doubts that rape was committed. He argued with vehemence that the medical evidence does not support the fact of rape having been committed as there is no opinion of the doctor as to the commission of rape. He further argued that on chemical examination, semen was also not detected on Vaginal swab, vaginal smear, pubic hair, frock and Salwar of the prosecutrix. These two facts are sufficient to hold the prosecution version false and baseless and it can safely be said that accused was innocent. Simply because semen was not detected on items 2 to 6 referred to above, it cannot be said that no rape was committed. 11. To deal with the above argument, it Would be profitable to refer to the relevant evidence. First in the sequence is the statement of PW-10 Dr. Smt. Radha Chaudhari who had medically examined the prosecutrix. This witness has categorically stated that the cloths of the prosecutrix were dirty and were stained with blood. Her underwear was also stained with blood. The witness has further stated that there were signs of teeth bite and abrasion on the cheek and that there was abrasion on the hymen of the prosecutrix. A perusal of medical examination report, Ex.P/6 of the accused makes it clear that there were multiple bruises at the back and face of the accused. The facts that (i) semen was detected on the underwear of the prosecutrix (ii) signs of teeth bite on the cheek of the prosecutrix and (iii) the marks of violence on the body of accused were detected (iv) abrasion on the hymen of prosecutrix are sufficient to constitute the fact of commission of rape by the appellant. The facts that (i) semen was detected on the underwear of the prosecutrix (ii) signs of teeth bite on the cheek of the prosecutrix and (iii) the marks of violence on the body of accused were detected (iv) abrasion on the hymen of prosecutrix are sufficient to constitute the fact of commission of rape by the appellant. Not only this, the prosecutrix offered resistance at her level best against the force employed by the accused as is established from the fact that marks of violence were present on the back and face of the accused.Now coming to the third submission that there is no such report on record to suggest that accused was competent to perform sexual intercourse, suffice it to say that PW-9 Dr. V.D. Meel has put his remarks in Ex.P/6 in specific terms that he find nothing to suggest that said accused-Tara Chand is incapable to perform the sexual intercourse. Thus, Ex.P/6 in itself is sufficient to infer that accused was fully competent to perform sexual intercourse. The argument of the learned counsel for the appellant that there is no medical evidence on record to suggest that accused is guilty of committing rape on the prosecutrix stands wiped off in view of existence of medical report Ex.P/6 of the accused and the document has been admitted during trial and there is endorsement to this effect on the document. 12. I have also carefully gone through the case law cited at the Bar. In Rahim Beg v. State of U.P., AIR 1973 SC 343 , the question before the Apex Court was whether, in a case of rape alleged to have been committed by a fully developed man on a girl of 10 or 12 years who was virgin and whose hymen was intact, what would be the impact of absence of injuries on the male organ of accused. The Apex Court held that absence of injuries on the male organ of accused would point to the innocence of accused. The Court further held that detection of semen on Languet of a young man can be because of variety of reasons and would not necessarily connect him with the offence of rape. The facts of this case are totally different than those involved in the present case and therefore, the case cited before me has no application to the facts of the present case. 13. The facts of this case are totally different than those involved in the present case and therefore, the case cited before me has no application to the facts of the present case. 13. It has been strongly contended that there were material contradictions in the statements of prosecution witnesses, particularly in the statements of PW-2 to PW-5 and the trial Court has ignored these material contradictions, which go to the root of the case and make the prosecution story false. 14. I have scanned the evidence, PW-2 Bhawani Singh, Constable is a formal witness. He had deposited two packets in the Forensic Science Laboratory, Jaipur and obtained the receipt Ex.P/7. PW-3 Bhagirath is an eye-witness of the incident. He has stated that when he along with Bhagirath S/o Keshara was passing through the Kheda of Badri Brahmin, he heard some noise "Chhudao Chhudao", he went there and found the accused lying on Sunita and was committing rape on her. When he tried to catch hold of him, the accused ran away. PW-4 Sunita is the victim of rape and was not examined in the trial Court as she was mentally retard. PW-5 Bhagirath S/o Keshar Balai has fully supported the statement of PW-3 Bhagirath S/o Natha Ram. It is true that minor contradictions in the statements of witnesses are bound to be there because of various reasons, particularly the lapse of time between the day of incident and the day of recording the statements. However, in the case in hand, I do not find any contradiction, which could be considered as fatal to the prosecution case. That apart, the conduct of these two witnesses (PW-3 & PW-5) cannot, to my mind, be said to be unnatural simply because the accused could not be caught despite their physical presence. Both the witnesses have pin pointedly stated that on hearing her cries, they rushed towards the place of incident and saw the accused lying and committing rape on the prosecutrix. They chased the accused but he escaped. 15. Lastly, it has been argued that no independent witness has been examined by the prosecution despite the fact that the place where incident happened was a thickly populated area. This fact in itself is sufficient to cast doubt on the genesis of the prosecution story. They chased the accused but he escaped. 15. Lastly, it has been argued that no independent witness has been examined by the prosecution despite the fact that the place where incident happened was a thickly populated area. This fact in itself is sufficient to cast doubt on the genesis of the prosecution story. A glance at the site plan shows that the place where incident took place is a Kheda (field) of Badri Brahmin. Towards north of the place of incident, there is a public path and towards east, west and south there are fields of Ishwar Singh, Kalyan Singh and Ishwar Singh S/o Bhanwar Singh and therefore, it cannot be said that the place where incident happened, was a thickly populated area and when once the prosecution has examined PW-3 and PW-5 as witnesses to the incident, the prosecution was not at all required to examine other independent witness. 16. All that can be safely said on the basis of the evidence on record is that the accused-appellant caught hold of the prosecutrix, made her to fall on the ground and succeeded in fulfilling his sexual lust despite the resistance offered by the prosecutrix against the force employed by the accused. The act of the accused, thus, amounts to commission of rape. 17. No other contention was raised. From what has been discussed above, the accused should be held guilty under section. 376 Indian Penal Code. 18. On the question of sentence, counsel for the accused-appellant has submitted that taking into consideration the age of the accused being 19 years at the time of commission of offence and the fact that he has been in jail for more than 4 and 1/2 years, a lenient view may be taken and he may be sentenced to the term already undergone by him. 19. I have considered the above submission. The accused has been in jail since 23.5.1997 i.e. more than 4 years and 7 months. While considering the question of sentence, their Lordships of the Supreme Court in State of Himachal Pradesh v. Mango Ram, (2000) 7 SCC 224 convicted the accused under section. 376 Indian Penal Code, but reduced the sentence to the period already undergone. This Court also in Dhoor Singh & Ors. v. State of Rajasthan, 2000 WLC (Raj.) 248 (UC) while maintaining conviction of the appellants under section. 376 Indian Penal Code, but reduced the sentence to the period already undergone. This Court also in Dhoor Singh & Ors. v. State of Rajasthan, 2000 WLC (Raj.) 248 (UC) while maintaining conviction of the appellants under section. 376 & 366 Indian Penal Code reduced the sentence of 7 years to the period already undergone i.e. 2 years and 1 month. 20. Having considered the facts and circumstances of the case, the age of the accused-appellant at the time of incident, the period of more than 4 and half years already served out and in view of the case laws cited above, I am of the view that the ends of justice would be met, if the sentence awarded to the accused-appellant is reduced to the period already undergone by him. 21. In the result, the conviction of the accused-appellant under section. 376 Indian Penal Code is confirmed with the modification on the question of sentence that the sentence awarded to the appellant is reduced to the period already undergone. With this modification on the point of sentence, the appeal stands dismissed. The accused-appellant is in j, ill and he be released forthwith, if not wanted in any other case.Appeal dismissed. *******