K. R. VYAS, J. ( 1 ) THE appellant Jaggu alias Jagdishchandra has challenged the judgment and order dated 27. 3. 1997 passed in Sessions Case No. 123 of 1996 by the learned Addl. Sessions Judge, Dahod Camp convicting him for offence punishable under section 376 of the IPC and sentencing to suffer R. I. for ten years and to pay a fine of Rs. 10,000. 00, in default, to undergo further R. I. for two years. ( 2 ) THE appellant was charged for committing rape on victim Amita, aged three-and-half years at about 12. 30 p. m. on 29. 4. 1996. The appellant pleaded not guilty to the charge and claimed to be tried. In his further statement recorded under section 313 of the Code of Criminal Procedure, he has stated that he is an active Congress (I) worker and the complainant side belongs to BJP and because of election propaganda, quarrel often takes place between them. Because of enmity between them, the complainant started quarrel with him with respect to the placing of hand pump near his house. According to the appellant, the other side started quarrelling that the hand pump was fixed without the permission of Municipality. He has further stated that even though the victim had fallen in a ditch, he has been falsely involved in the present offence to extract money from him and to please the leaders of BJP and for the purpose of transferring the land in their favour. The learned judge, after considering and appreciating the evidence including further statement of the appellant, accepted the prosecution case and passed judgment and order of conviction and sentence against the appellant. Hence the present appeal. ( 3 ) SANGITABEN is the mother of the victim Amita and also the complainant in the present case. She is examined at PW 2 Ex. 9. She has stated that her husband is a barber by profession and is having a shop at Dahod. She is having two children; son Mayur aged 8 years and daughter Amita aged three-and-half years. The incident had taken place before one year when she was all alone in her house. After preparing meals early as she was not keeping good health, she was taking rest. Her elder son was besides her. Her daughter Amita was playing outside the house. At about 12. The incident had taken place before one year when she was all alone in her house. After preparing meals early as she was not keeping good health, she was taking rest. Her elder son was besides her. Her daughter Amita was playing outside the house. At about 12. 30 p. m. , she had gone out to see where her daughter was. After searching her everywhere, she found her daughter coming out from the direction of the house of the appellant. She identified the appellant as the accused sitting in the Court. She has further stated that the house of the appellant is situated behind her house. She saw her daughter coming out crying from the house of the appellant. On being inquired, her daughter Amita told that the appellant carried her to his house and was made to lie down on the cot and thereafter he climbed over her. She also informed her that she was given water and she sustained nail injury. Subsequently, she was pushed into mud gathered near handpump. The complainant found blood oozing out from the private part of her daughter. The girl was taken to the house where she was given water. Many persons including Minaben and Sumanben gathered there. The complainant sent message to her husband. The complainant thereafter went to the police station with her daughter for the purpose of lodging police complaint. The police recorded complaint at Ex. 10. IN the cross examination, she has given details about the situation of the house of the appellant, handpump etc. She has admitted that mud exists because of water logging near handpump. She has further admitted that the distance between her house and the house of the appellant is about 50 to 60 feet. She has denied the suggestion that at the time of the incident, her daughter was not able to communicate because she was aged three-and-half years. She has stated that her daughter used to give proper reply to the questions put to her. She has further stated that she saw her daughter at a distance of 20 feet when she was coming out of the house of the appellant, profusely bleeding. According to her, on seeing the condition of her daughter, she was lifted and taken to her house where she was given water. In the house, her brother-in-law was there. Thereafter, Minaben also came there. According to her, on seeing the condition of her daughter, she was lifted and taken to her house where she was given water. In the house, her brother-in-law was there. Thereafter, Minaben also came there. They two accompanied her to the police station. While clarifying the presence of the persons gathered there, she has stated that initially, she and her son were there when her daughter was coming out of the house of the appellant. Minaben, Sumanben and her brother-in-law came thereafter to her house. Her husband initially did not come to the police station. However, he came subsequently at about 1. 30 or 1. 45 p. m. She has also admitted that her daughter had put on only frock which did not cover the private part of the victim. The victim had not put on "nicker". Minaben who accompanied her to the police station had lifted her daughter. The frock of her daughter was stained with mud. She denied the suggestion that her daughter fell down while playing and, therefore, sustained injuries. She denied the suggestion that she and her husband were helping BJP party in local election. She pleaded ignorance about the fact that the appellant and his relatives were helping Congress party. She has admitted that the brother of the appellant Jayanti Chavda is a lawyer by profession. However, she is not aware about the fact that Jayantibhai is the Secretary of Dahod Youth Congress. She also denied the suggestion that because of the quarrel between BJP and Congress, her husband had falsely involved the appellant. SHE has further stated in her evidence that her daughter informed her that the appellant took her to his house, made her lie down and performed act upon her. She also stated that her daughter was semi conscious when she was taken to the police station as well as to the hospital. She denied the suggestion that her husband joined them in the hospital after the treatment of her daughter commenced. She admitted the fact that her daughter came out of the house of the appellant crying. She further stated that Sumanben, PW 3 is treated as sister by her husband and she is residing opposite her house. 16. 4. 2002: ( 4 ) READING the entire evidence of the complainant Sangitaben, we find that she has narrated the entire incident in a most natural way. She further stated that Sumanben, PW 3 is treated as sister by her husband and she is residing opposite her house. 16. 4. 2002: ( 4 ) READING the entire evidence of the complainant Sangitaben, we find that she has narrated the entire incident in a most natural way. From her evidence, it is clear that on the day of the incident, she was there in the house with her son Mayur and victim Amita. As she did not find Amita outside her house, out of curiosity, she had come out of the house. It is also clear that she saw her daughter coming out of the appellants house situated about 50 to 60 feet from her house in profusely bleeding condition. On making inquiry from her daughter, she was informed by her daughter that the appellant took her to his house, made her lie down on the cot, climbed over her and committed the act. The answers given by the victim to her mother are natural. The complainant narrated the incident without exaggerating the same. She was further informed by her daughter that the appellant had given her a push, with the result, she fell down in a pool of mud. There is no reason for us to raise any doubt on the incident narrated by her. ( 5 ) SUMANBEN Chauhan, PW 3 Ex. 11 has fully corroborated the say of the complainant. According to her, she came out of her house on hearing shouts of the complainant Sangitaben. Sangitaben was shouting at the top of her voice abusing appellant for the act committed by him on her daughter. According to this witness, she saw blood oozing out from the private part of Amita. She also inquired from Amita about the incident. She was told by Amita that the appellant took her to his house, closed the door, made her lie down and climbed over her. Thereafter, she was thrown in a ditch of mud. She had accompanied complainant Amita to the police station. She had identified the appellant as accused sitting in the Court. In her cross examination, she has stated that when she saw Amita for the first time, she had put on a frock and except frock, no other clothes were there. the clothes as well as the body of Amita was stained with mud. She had identified the appellant as accused sitting in the Court. In her cross examination, she has stated that when she saw Amita for the first time, she had put on a frock and except frock, no other clothes were there. the clothes as well as the body of Amita was stained with mud. They had gone to the police station, Amita was lifted by Mina masi. She denied the suggestion that she was deposing falsely because she was treating the husband of the complainant as her brother. ( 6 ) AFTER having gone through the evidence of the complainant as well as Sangitaben, we are clearly of the opinion that both have involved the appellant in the commission of offence of rape. The incident in question had taken place at about 12. 30 p. m. and the complaint was filed at about 3. 00 or 3. 30 p. m. on the same day when the name of the appellant was disclosed as accused. There is no reason for the complainant as well as PW 3 Sumanben to falsely involve the appellant. The defence on the part of the appellant that out of political rivalry, he has been falsely involved in the case also does not appear to be a genuine defence. Merely because the appellant and the husband of the complainant are supporters of different political parties, by no stretch of imagination, it can be inferred that the complainant who is the mother of the victim would falsely involve the appellant in the serious offence of rape by involving her own minor daughter. ( 7 ) THE prosecution, in order to bring home the charge against the appellant, has also placed reliance on the medical evidence. Dr. Rajendra Srivastava, PW 1 Ex. 5, serving as Medical Officer, Cottage Hospital, Dahod at the relevant time, is examined in the instant case. According to Dr. Srivastava, the victim Amita was brought to the hospital with police yadi at 4. 00 p. m. The victim was examined by him in the company of lady doctor R. M. Patel, a Gynaecologist. According to him, the parents of the victim had given history by stating that on 29. 4. 1996, their daughter was raped. According to Dr. Srivastava, the private part of Amita was covered with towel stained with blood. The victim had not put on "nicker". According to him, the parents of the victim had given history by stating that on 29. 4. 1996, their daughter was raped. According to Dr. Srivastava, the private part of Amita was covered with towel stained with blood. The victim had not put on "nicker". The frock put on by her was stained with mud, so was her body. The thigh as well as the private part of the victim was stained with blood. There were no external injuries on the person except the private part of the victim. The blood was oozing out from genitals of the victim. On internal examination of vagina, Dr. Srivastava noticed following facts. Second degree perineal tear haemorrhage present, vaginal bleeding haemorrhage present, hymen ruptured, RBC Epithelial cells present, no spermatozoa detected. Dr. Srivastava collected blood sample and sent for analysis. AS per the opinion of Dr. Srivastava, the victim was aged 3 to 4 years and looking to her physique and condition and from the signs present on the body of the victim, it was clear that an attempt to penetrate was made. According to the doctor, if a minor girl is forcefully attempted to be penetrated, such bodily injuries are possible. IN the cross examination of Dr. Srivastava, it was suggested that if a girl falls in a ditch of mud and dashes against sharp edged substance, then injuries sustained by her on her private part are possible to which the doctor has opined that in a rare case, such things are possible. He has specifically denied the suggestion that while playing, if a finger is inserted in the private part of the victim, such injuries are possible. Dr. Srivastava has also opined that if a person commits rape by using force, the injuries on his genitals may or may not be possible. ( 8 ) AFTER having minutely examined the evidence of Dr. Srivastava, it is clear that when he examined victim Amita, she was profusely bleeding from her private part. Her hymen was ruptured. It is also clear that an attempt of forceful penetration was made. ( 9 ) MR. Unwala, learned Counsel appearing for the appellant as amicus curiae, submitted that admittedly Dr. Srivastava has opined that there were no injuries on the male organ of the appellant and, therefore, it is doubtful that appellant had committed rape. Her hymen was ruptured. It is also clear that an attempt of forceful penetration was made. ( 9 ) MR. Unwala, learned Counsel appearing for the appellant as amicus curiae, submitted that admittedly Dr. Srivastava has opined that there were no injuries on the male organ of the appellant and, therefore, it is doubtful that appellant had committed rape. In order to make good his submission, he has placed reliance on the judgment in the case of Rahim Beg Vs. State of Gujarat, AIR 1973 SC 343 . That was a case where rape was alleged to have been committed by the appellant, a fully developed man on a girl of 10 to 12 years who was virgin and whose hymen was intact. REVERTING back to the case on hand, Dr. Srivastava, in his evidence, has made it clear that the injuries on the male organ may be there, or may not be there while forcefully committing rape. In other words, in all cases of forceful rape, injury on the male organ may not necessarily be there. The Supreme Court, in the case of Rahim Beg (supra), after considering number of circumstances stated in paras 26 and 27 of the judgment, was of the opinion that there were number of circumstances which created doubt regarding the complicity of the accused and the two accused must necessarily have the benefit thereof. AS far as the present case is concerned, in view of unimpeachable evidence of the complainant duly corroborated by the evidence of Sumanben, the involvement of the appellant in the commission of offence is established beyond any manner of doubt. In this view of the matter, we see no merit in the first submission advanced by Mr. Unwala and, therefore, we reject the same. ( 10 ) MR. UNWALA alternatively submitted that even if the involvement of the appellant in the commission of offence is established, at the most, it may amount to preparation to commit rape. This is particularly in view of the fact that Dr. Srivastava did not find spermatozoa in the vagina of the victim. It was, therefore, submitted that the act committed by the appellant would establish the fact that the appellant had not gone beyond the stage of "preparation". In support of his submission, he has placed reliance on the decision of the Supreme Court in the case of Madanlal Vs. Srivastava did not find spermatozoa in the vagina of the victim. It was, therefore, submitted that the act committed by the appellant would establish the fact that the appellant had not gone beyond the stage of "preparation". In support of his submission, he has placed reliance on the decision of the Supreme Court in the case of Madanlal Vs. State of J. and K. , AIR 1998 SC 386 . The Supreme Court, in the said decision, explained that the difference between preparation and attempt to commit offence consists chiefly in the greater degree of determination and what is necessary to prove for an offence of an attempt to commit rape has been committed is that the accused has gone beyond the stage of preparation. It was a case where the accused stripped a girl naked and then making her flat on the ground undressed himself and then forcibly rubbed his erected penis on the private part of the girl, but failed to penetrate the same into vagina and on such rubbing ejaculated himself. Considering the aforesaid circumstances, the Apex Court held that it cannot be said that it was a case of merely assault under section 354 IPC and not an attempt to commit rape under section 376 read with 511 of IPC. AS far as the present case is concerned, merely because no spermatozoa was found in the vagina of the victim, it cannot be held that the appellant made only preparation and had not made any attempt to commit offence of rape. It is clearly established in the present case that the victim Amita had put on only frock. No "nicker" was put on by her. She was taken away by the appellant and then made her flat on the ground and then he rubbed his erected penis on the private part of the victim, but failed to penetrate the same into vagina, with the result her hymen was ruptured and she started profusely bleeding. In our opinion, the act committed by the appellant is not a case of merely an assault, but it is a case under section 376 of IPC. We, therefore, see no merit even in this submission of Mr. Unwala. ( 11 ) FINALLY, Mr. Unwala submitted that the injuries sustained on the private part by Amita does not necessarily involve the appellant in the commission of offence. We, therefore, see no merit even in this submission of Mr. Unwala. ( 11 ) FINALLY, Mr. Unwala submitted that the injuries sustained on the private part by Amita does not necessarily involve the appellant in the commission of offence. Learned Counsel invited our attention to the suggestion put to Dr. Srivastava, namely that if a victim while falling in a ditch of mud dashes with a sharp edged substance, such injury is possible. We see no substance in this submission and the same is required to be rejected. As observed by us earlier, Dr. Srivastava has not positively stated that the circumstances suggested in the cross examination for causing such injury were possible. On the contrary, Dr. Srivastava has opined that in a rare case, such injury is possible. No suggestion is put to any of the prosecution witnesses that the victim dashed against the handpump and thereby sustained injuries. In absence of any answer in positive and on the contrary, in view of positive evidence given by prosecution witnesses that the victim was given a push by the appellant, with the result, she fell down in a ditch of mud after the commission of act, there remains hardly anything in the suggestion. In any case, the suggestion does not take place of evidence. ( 12 ) AT this stage, it is necessary to refer to the observations of the Apex Court in the case of State of UP Vs. Babul Nath, 1994 (3) Crimes 230. In the said case, the High Court, while appreciating the evidence of a lady doctor Smt. Kohli, PW 6 observed that the lady doctor conceded that the injuries found on the private part of the girl could also be caused by instrument like a piece of glass and on that basis took the view that the opinion of the lady doctor that rape was committed on the girl becomes doubtful. Negativing the said observations, the Apex Court observed that :"this finding is wholly unwarranted and perverse for the reason that simply because the injuries on the private part of the girl could also be caused in several other ways than the sexual assault on the victim cannot lead to the conclusion that the injuries on her private part were not sustained by commission of the rape but by some other instrument in the absence of any material to support such a conclusion. "as observed earlier, in the present case, there is no positive opinion of Dr. Srivastava excepting the suggestion put to him by the defence. On the contrary, it is positively deposed by the prosecution witnesses against the appellant involving him in the offence of rape committed by him and once the same is accepted, no importance can be attached to the suggestion of the defence put to the doctor. 12. Thus, considering the facts and circumstances of the case and taking overall view of the matter, we are clearly of the opinion that the prosecution, in the instant case, has successfully established the charge levelled against the appellant. The learned trial judge, in our opinion, is justified in convicting the appellant for offence punishable under section 376 of IPC. Needless to say that we are in total agreement with the reasonings and the ultimate conclusion recorded by the learned trial judge. ( 13 ) THERE being no substance in this appeal, the same is dismissed. .