JUDGMENT 1. . - This appeal has been filed by the accused appellant from jail against the judgment and order dated 2-1-2002 passed by the learned Addl. Sessions Judge (Fast Track), Bikaner in Sessions Case No. 113/2001 by which he convicted the accused appellant for the offence under section 376 and 342 Indian Penal Code and sentenced in the following manner : Name of accused appellant : Convicted under Section Sentence awarded Lalu Ram 376 Indian Penal Code Ten years RI and to pay a fine of Rs. 3000/- in defaul fo payment of fine to further undergo RI for six months. 342 Indian Penal Code One year Ri and to pay a fine of Rs. 500/- in default of payment of fine to further undergo RI for 15 days. 2. Since it is a jail appeal and accused appellant was not being represented by anybody, therefore, this Court vide order dated 2.5.2003 appointed Mr. B.S. Sandhu as Amicus Curiae to argue the case on behalf of the accused appellant. 3. It arises in the following circumstances:- On 13.7.2000, PW1 Asaram lodged an oral report with the Police Station Nokha District Bikaner stating inter alia that on 12.7.2000, his grand daughter PW-3 Rameshwari daughter of Madanlal, aged about 7-8 years (hereinafter referred to as child prosecutrix) had gone to field for the purpose of grazing goats and in the evening at about 6.00 PM, the child prosecutrix returned home and at that time, she was weeping and she told her mother PW-7 Malli Devi that after grazing the goats when she was returning home, near the houses of Lohars, the accused appellants met her and told her that he would give her Rs. 2/- and then he took her in his but and put her on the ground and after opening his underwear, he put his penis into her vagina, as a result of which she felt pain and blood came out and thereafter, she cried and on hearing her cries, PW-2 Tulchharam came there, who brought her to the house. On this report, police registered the case and chalked out regular FIR Ex. P/1 and the investigation was started by PW4 Om Prakash, who was at that time SHO. During investigation, PW-4 Om Prakash prepared the site plan Ex. On this report, police registered the case and chalked out regular FIR Ex. P/1 and the investigation was started by PW4 Om Prakash, who was at that time SHO. During investigation, PW-4 Om Prakash prepared the site plan Ex. P/2 and the child prosecutrix PW-3 Rameshwari was got medically examined by the Medical Board and her medical examination report is Ex. P/3, and for proving the medical examination report one of the members of the Medical Board, namely, Dr. Santosh Khajutiya, PW-6 was produced by the prosecution. The accused appellant was arrested on 14-7-2000 through arrest memo Ex. P/4. The accused appellant was also got medically examined by PW-5 Dr. Vijay Kashyap and his medical examination report is Ex. P/8. After usual investigation, police submitted challan against the accused appellant in the Court of Magistrate, from where the case was committed to the Court of Sessions. On 11-12-2000, the learned Addl. Sessions Judge, Bikaner framed charges for the offence under Sections 376 and 342 Indian Penal Code against the accused appellant. The charges were read over and explained to the accused appellant, who pleaded slot guilty and claimed trial. During trial, the prosecution in support of its case examined as many as 7 witnesses and got exhibited some documents. Thereafter, statement of the accused appellant under Section 313 Criminal Procedure Code was recorded. In defence, no evidence was led by the accused appellant.After conclusion of trial, the learned Addl. Sessions Judge (Fast Track), Bikaner through impugned judgment and order dated 2-1-2002 convicted the accused appellant for the offence under Sections 376 and 342 Indian Penal Code and sentenced in the manner as indicated above holding inter alia that the prosecution has been able to prove its case beyond all reasonable doubts against the accused appellant for the offence under Sections 376 and 342 Indian Penal Code. Aggrieved from the said judgment and order dated 2-1-2002 passed by the learned Addl. Sessions Judge (Fast Track), Bikaner, this appeal has been filed by the accused appellant from jail. 4. In this appeal, the following submissions have been made by the learned counsel for the accused appellant : (i) That the statement of the child prosecutrix PW-3 Rameshwari does not inspire confidence and since there is no eyewitness of the occurrence, therefore, her statement should have not been believed by the learned trial Judge. 4. In this appeal, the following submissions have been made by the learned counsel for the accused appellant : (i) That the statement of the child prosecutrix PW-3 Rameshwari does not inspire confidence and since there is no eyewitness of the occurrence, therefore, her statement should have not been believed by the learned trial Judge. (ii) That in this case even as per the statement of PW-6 Dr. Santosh, there was not a complete penetration in the vagina of the child prosecutrix PW-3 Rameshwari and therefore, the findings of the learned trial Judge that the accused appellant committed rape with the child prosecutrix are wholly erroneous one and should be set aside. (iii) That FSL report Ex. P/7 does not corroborate the case of rape as semen was not detected in vaginal swab and smear. (iv) That since the hymen was not ruptured and there was no outer injury on the vagina of the child prosecutrix, therefore, the case of the prosecution that the accused appellant committed rape with her should have not been believed. Hence, it was prayed that this appeal be allowed and accused appellant be acquitted of the charges framed against him. 5. On the other hand, the learned Public Prosecutor supported the impugned judgment and order passed by the learned Addl. Sessions Judge (Fast Track), Bikaner. 6. I have heard the learned counsel for the accused appellant and the learned Public Prosecutor and gone through the record of the case. 7. Before proceeding further, first the age of the child prosecutrix PW-3 Rameshwari has to be determined. 8. In the report Ex. P/1, which was lodged by PW 1 Asaram, the age of the child prosecutrix PW-3 Rameshwari has been mentioned as 7-8 years. Similarly, the child prosecutrix has also mentioned her age as 8 years when she was examined in Court on 30-6-2001, though the incident took place on 12-7-2000. 9. PW-4 Om Prakash, who was I.O of this case, has stated that during investigation, he procured school certificate from the Government Upper Primary School, Charkada, Nokha and the same is Ex. P/5 and in that School Certificate, the date of birth of the child prosecutrix was stated to be 15-1-1992. 10. It may be stated here that for determination of age of any person, school certificate or the birth certificate is the best evidence and since there is school certificate Ex. P/5 and in that School Certificate, the date of birth of the child prosecutrix was stated to be 15-1-1992. 10. It may be stated here that for determination of age of any person, school certificate or the birth certificate is the best evidence and since there is school certificate Ex. P/5 on record, therefore, it should be treated as best evidence for determining the age of the child prosecutrix PW-3 Rameshwari. 11. Apart from this, the symptoms, which have been found in her medical examination report Ex. P/3 conducted by PW-6 Dr. Santosh, also show that the child prosecutrix was not above the age of 8 years of the date of occurrence as in that report Ex.P/3, it was specifically mentioned that auxiliary and pubic hairs were not present and her breasts were not developed. Therefore, these signs also show that she was a child of 7-8 years. 12. Therefore, it can easily be concluded that on the date of occurrence, the child prosecutrix PW-3 Rameshwari was about 7-8 years of age and the findings of the learned trial Judge in this respect are liable to be confirmed one. 13. Now, the medical evidence of this case has to be seen and examined on the point of rape. 14. PW-6 Dr. Santosh in her statement recorded in Court has stated that on 13-7-2000, she was Medical Officer in P.B.M. Hospital, Bikaner and on that day, a Medical Board was constituted to medically examine the child prosecutrix PW-3 Rameshwari and she was one of the members of that Medical Board and after medical examination of child prosecutrix, she has come to the following conclusion : (i) That no injury was found on the person of the child prosecutrix. (ii) That her menstrual has not yet started. (iii) That there was no staining on her private part. (iv) That her hymen was intact, but (a) There was congestion at 3'o clock and 9'o clock position on the inner side of labia minora adjacent to vaginal orifice. (b) Abrasion 0.2 x 0.2 cm at anal orifice at posteriorly. She has proved the medical examination report Ex. P/3. After seeing the medical examination report Ex. P/3 and the FSL report Ex. (b) Abrasion 0.2 x 0.2 cm at anal orifice at posteriorly. She has proved the medical examination report Ex. P/3. After seeing the medical examination report Ex. P/3 and the FSL report Ex. P/7, she has further stated that an attempt to commit rape with the child prosecutrix was made because inside her labia minora, there was congestion at 3'o clock and 9'o clock position and abrasion 0.2 x 0.2 cm at anal orifice at posteriorly. She has further stated that these two symptoms occur only when penis touches the vagina of girl, otherwise not. 15. Thus, from the statement of PW-6 Dr. Santosh and the medical examination report Ex. P/3 of the child prosecutrix, the fact that an attempt to commit rape with the child prosecutrix was made and there were signs of male penis touching the vagina of the child prosecutrix stands proved. 16. Now the evidence of the child prosecutrix PW-3 Rameshwari has to be examined critically. 17. Before examining her statement, appreciation of evidence of child witness and legal position in respect of child witness has to be seen. 18. It is well settled that although legally there is no bar to accepting the uncorroborated testimony of a child witness yet prudence requires that Courts should not act on the uncorroborated evidence of a child whether sworn or unsworn. This was so held by Their Lordship of the Privy Council in Mohamed Suqal Esa Mamasan Rer Alalah v. King AIR 1946 PC 3 : 1946 ALJ 100. The same view was taken by Their Lordships of the Hon'ble Supreme Court in Rameshwar Kalyan Singh v. State of Rajasthan AIR 1952 Supreme Court 54 and later on, in so many cases. 19. As to the nature and extent of corroboration, which should be required, it may be stated here that it did not mean that the corroboration as to the identity must extend to all circumstances necessary to identify the accused with the offence, yet there has to be independent evidence which would make it reasonably safe to believe the witness's story that the accused was the one who committed the offence. 20. The law has also cast duty on the Court while recording the evidence of the child witnesses. The competency to testify depends on the witness's ability to understand questions put to him and to give rational answers to those questions. 20. The law has also cast duty on the Court while recording the evidence of the child witnesses. The competency to testify depends on the witness's ability to understand questions put to him and to give rational answers to those questions. Once a witness is found to be a competent witness, even if he is not competent witness to take an oath or if there is an omission to take an oath that will not invalidate proceedings or render inadmissible the evidence. The rule generally is in favour of admission of evidence though the weight to be attached to it will naturally be a matter for consideration by the court. There is always competency unless the court considers otherwise. 21. Whenever a witness appears before the court, the court will proceed on the basis that he is competent to testify. The satisfaction to be arrived at by preliminary examination of witness. However, his evidence does not become inadmissible in evidence in absence of such preliminary examination. 22. In Raja Ram Yadav v. State of Bihar JT 1996(4) SC 140 : 1996(1) Supreme (Crl.) 404 : 1996 (1) Crimes 59 the Hon'ble Supreme Court observed that the evidence of a child witness is not required to be rejected per se but the court, as a rule of prudence, considers such evidence with close scrutiny and only on being convinced about the quality of such evidence and its reliability, bases the conviction by accepting the deposition of the child witness. In this respect, the judgment of the Hon'ble Supreme Court in Suryanarayna v. State of Karnataka JT 2001 (1) SC 230 : 2001 (10 Supreme (Cr.) 1 : 2001 (1) Crimes 99 may be referred to. 23. Keeping in mind the above legal position, the evidence of the child prosecutrix PW-3 Rameshwari is being examined. 24. It may be stated here that before recording the statement of the child prosecutrix PW-3 Rameshwari, preliminary questions were put to her by the learned trial court and after giving a finding that she had understood about truth ness and falsehood, the learned trial court recorded her statement. Thus, the learned trial court has observed the principle of recording statement of child witness in right perspective. 25. Thus, the learned trial court has observed the principle of recording statement of child witness in right perspective. 25. The child prosecutrix PW-3 Rameshwari in her statement recorded in Court has stated that when she was returning to her home from the field, the accused appellant met her and he took her to but and thereafter, he put off his underwear and slept over her and put his penis into her vagina, as a result of which, she felt pain and blood also came out from her vagina and thereafter, PW-2 Tulcharam came there, who brought her to home and at that time, her mother PW-7 Malli Devi alone was in the house and she told the whole story to her mother PW-7 Malli Devi and the report Ex. P/1 was lodged by her grand father PW-1 Asaram.She was cross-examined, but nothing has come out from her cross- examination which affects her testimony and on the contrary, it appears that she is telling correct version and she is not falsely implicating the accused appellant in this case and she had no axe to grind against the accused appellant. Therefore, her statement appears to be straightforward and trustworthy. 26. Furthermore, the statement of the child prosecutrix PW-3 Rameshwari gets corroboration from the statements of her grand father PW-1 Asaram and her mother PW-7 Malli Devi and also from the medical evidence, as stated above. 27. PW-2 Tulchharam has also stated that he took the child prosecutrix to her home and at that time, PW-1 Asaram was not in the house and her mother PW-7 Malli Devi was there. Therefore, the statement of the child prosecutrix PW-3 Rameshwari that she was brought to home by PW-2 Tulchharam is proved by the statement of PW-2 Tulchharam. 28. Hence, looking to the statement of the child prosecutrix PW-3 Rameshwari, which is corroborated by the other evidence and medical evidence, it can easily be concluded that accused appellant put his penis into the vagina of the child prosecutrix PW-3 Rameshwari. 29. The question for consideration is whether by above finding that the accused appellant put his penis into the vagina of the child prosecutrix PW-3 Rameshwari, a case of complete rape has been made out against the accused appellant or not. 30. 29. The question for consideration is whether by above finding that the accused appellant put his penis into the vagina of the child prosecutrix PW-3 Rameshwari, a case of complete rape has been made out against the accused appellant or not. 30. It may be stated here that in India, it is not necessary that there should be complete penetration of penis with emission of semen and rupture of hymen. Partial penetration of the penis within the labia majora or the vuvla or pudenda with or without emission of semen or even an attempt at penetration is quite sufficient for the purpose of the law. It is, therefore, quite possible to commit legally the offence of rape without producing any injury to the genitals or leaving any seminal stains. 31. The actus rens is complete with penetration. Emission is not relevant. (See the Queen v/s Marsden) (1821) 11 QBD 149). 32. Looking to this aspect, if no injury is found on other part of the body of the child prosecutrix, but congestion was found on the inner side of labia minora adjacent to vaginal orifice and abrasion was also found at anal orifice, it would certainly lead to the conclusion that the accused appellant put his penis with some force into the vagina of the child prosecutrix and by putting the penis into her vagina, the offence is complete and thus, the accused appellant was rightly convicted for the offence under Section 376 Indian Penal Code. 33. So far as the argument that there was no complete penetration into the vagina of the child prosecutrix is concerned, it may be stated here that to constitute the offence of rape, it is not necessary that there should be complete penetration of penis with emission of semen and rupture of hymen. Since the child prosecutrix was near about 7-8 years old, therefore, no question of penetration in full sense arises and by putting the penis into her vagina, the offence is complete. 34. Furthermore, if semen was not detected as per FSL report Ex. P/7, it would not affect the case of the prosecution. 35. So far as the argument that since there was no outer injury on the vagina of the child prosecutrix, therefore, the case of the prosecution that accused appellant committed rape with her should have not been believed is concerned, the same carries no weight. P/7, it would not affect the case of the prosecution. 35. So far as the argument that since there was no outer injury on the vagina of the child prosecutrix, therefore, the case of the prosecution that accused appellant committed rape with her should have not been believed is concerned, the same carries no weight. No doubt no outer injury on the vagina of the child prosecutrix, was found, but there was congestion on the inner side of labia minora adjacent to vaginal orifice and abrasion at anal orifice and they lead to the conclusion that the accused appellant put his penis into her vagina. 36. On point whether hymen ruptured or not, a distinction has to be drawn between cases of adult woman and small children. In small children, the hymen is not usually ruptured, but may become red and congested along with the inflammation and bruising of the labia. If considerable violence is used, there is often laceration of four chette and perinaeum.In the present case, there was congestion on the inner side of labia minora adjacent to vaginal orifice and also abrasion at anal orifice and it suggests that the accused appellant put his penis into vagina of the child prosecutrix and since the child prosecutrix was 7-8 years old, the penis of the accused appellant could have not entered into her vagina easily and as per her statement, she felt pain and matter ended and in such circumstances, no question of rupturing of hymen arises. 37. For the reasons stated above, all the submissions made by the learned counsel for the accused appellant stand rejected and the findings of the learned trial Judge holding the accused appellant guilty for the offence of rape are liable to be confirmed, as they are based on correct appreciation of evidence and they do not suffer from any infirmity or illegality.Appeal dismissed. *******