JUDGMENT Heard Sri Syed Ghouse Basha, Counsel representing the appellant-accused and the Additional Public Prosecutor Sri Mohd. Usman Sahid. 2. The appellant-accused was charged with Section 376 (2) (f) IPC for committing rape on a child-P.W.2 on 11-9-1998. On appreciation of the evidence of P .Ws.1 to 13 and Exs.P-1 to P-11 and M.Os.1 to 3, the Assistant Sessions Judge, Nalgonda, arrived at a conclusion that the appellant-accused is guilty of an offence under Section 376 (2) (f) IPC and he convicted and sentenced the accused to undergo Rigorous Imprisonment for ten years and to pay a fine of Rs.500/- in default, to undergo Simple Imprisonment for three months. Aggrieved by the same, the present criminal appeal is filed. 3. The judgment in Sessions Case No.75 of 2000 on the file of the learned Assistant Sessions Judge, Nalgonda, was delivered on 15-7-2000, and this Court by an order dated 5-9-2000 had observed that the petitioner-appellant has been convicted for the offence under Section 376(2)(f) IPC and sentenced to undergo Rigorous Imprisonment for ten years. He is in custody for the last two years and this bail application has been filed which is opposed by the learned Pubic Prosecutor who submits that since the accused has been convicted in a serious offence and sentenced to undergo Rigorous Imprisonment for ten years, therefore, this Court may direct early disposal of the appeal. The bail application is dismissed. The appeal be processed and listed for final hearing in the last week of October, 2000. 4. It is brought to the notice of this Court, in view of the fact that the bail application was dismissed, the appellant-accused is in jail. Sri Syed Ghouse Basha, the learned Counsel representing the appellant-accused had taken this Court through the evidence of P.Ws.2, 1 and 8 and also the medical evidence and would submit that especially, in the light of the evidence of the child witness P.W.2 and the medical evidence, at the best it may be a case falling under Section 511 IPC. The learned Counsel also had taken this Court through the evidence available on record and would conclude that imposition of Rigorous Imprisonment for ten years and also to pay a fine of Rs.500/- in default, to undergo Simple Imprisonment for three months, definitely would be on higher side. 5. On the contrary, the learned Additional Public Prosecutor Sri Mohd. The learned Counsel also had taken this Court through the evidence available on record and would conclude that imposition of Rigorous Imprisonment for ten years and also to pay a fine of Rs.500/- in default, to undergo Simple Imprisonment for three months, definitely would be on higher side. 5. On the contrary, the learned Additional Public Prosecutor Sri Mohd. Usman Sahid, would contend that this is a case where a child like P.W.2 is involved and the accused perpetrated a heinous crime as against a child, and a child of such younger age would not have deposed anything more, but the evidence of P. W.2 is so natural and convincing and believable that the appellant-accused had committed the offence as against the child-P.W.2. The learned Additional Public Prosecutor would also submit that the medical evidence specified about the possibility of rape. The material objects and also the evidence of P. W.1 coupled with the evidence of P. W.8 would clearly show that the offence was committed by the appellant-accused and hence, the learned Assistant Sessions Judge, Nalgonda is well justified in imposing such punishment. The learned Additional Public Prosecutor placed strong reliance on Madan Gopal Kakkad v. Naval Dubey AIR 1992 (3) SCC 204 . 6. The case of the prosecution is that on 11-9-1998 at about 7-30 p.m. P. W.2 Asamalla Lavanya, a girl of 6 years and her friend Kothi Anitha-P.W.8 were playing near the water tank at S.C. Colony, Shaligouraram village and at that time, the accused went there, took P.W.2 Lavanya behind Flag Post of CPI (M) Party and inauguration stone and laid her down on the ground and committed rape on her forcibly. Meanwhile P.W.1-A. Yellamma, mother of P.W.2 called her daughter as "Lavanya" "Lavanya" and on hearing the same, P.W.2 went to her mother weeping and when enquired P.W.2 disclosed the occurrence to her mother and both of them went to the house of the accused and abused him and P.W.2 was taken to R.M.P. Doctor P.WA, who had given some treatment and advised them to take P.W.2 to the Government Hospital and inasmuch as it was night P.W.s.1 and 2 could not go to the Police Station on the same day. On 12-9-1998 at about 10.30 a.m. P.Ws.1 and 2 went to the Police Station and lodged a report narrating the occurrence to P. W.12 Sub-Inspector of Police, who registered the same as crime and had taken up investigation. The Inspector of Police-P.W.13 recorded the statements of P.Ws.1 and 2 and referred P. W.2 to Government Head Quarter Hospital, Nalgonda, for medical examination. P.W.3 Civil Assistant Surgeon, Government Head Quarters Hospital, Nalgonda who attended the victim girl-P.W.2 took her vaginal smears on slides and sent to Forensic Science Laboratory for examination. P.W.13 Inspector of Police visited the scene of offence, conducted panchanama and prepared a sketch in the presence of P.Ws.9 and 10 and seized the clothes wore by P.W.2 at the time of occurrence, under the cover of panchanama in the presence of P.Ws.9 and 10 and secured the presence of P.Ws.4 to 6 and 8 and examined them, and arrested the accused on 13-9-1998 and interrogated. During the course of investigation, the accused confessed the offence. P.W.13 Investigating Officer in the presence of P.W.11-P. Bixam and another, seized the dhoti from the possession of the accused under a cover of confessional panch an am a and had sent the accused to Government Head Quarters Hospital for potency test, P.W.7-Doctor examined the accused and issued the certificate opining that there is nothing to suggest that accused is not potent. The report received from the Forensic Science Laboratory, Hyderabad, shows the presence of Hymen blood semen and spermatozoa are detected on item Nos.2, 3 and 4 and after receipt of F.S.I., report, P.W.3-Doctor gave the final opinion stating that in view of the F.S.I. report, the semen was found on clothes and vaginal slides, the possibility of rape cannot be denied and in the light of the evidence collected during the course of investigation by the investigating officer P.W.13, have been satisfied that the accused committed an offence under Section 376(2)(f) IPC, filed the charge-sheet. 7. The learned Judicial Magistrate of First Class, Nakrekal had taken the case on file as P.R.C. No.13 of 1999 and committed the matter to the Court of Sessions, which in turn was made to the Assistant Sessions Judge, Nalgonda and inasmuch as the accused pleaded not guilty, the learned Judge proceeded with the trial, examined P.Ws.1 to 13 and marked Exs.P-1 to P-11 ad M.Os.1 to 3 and ultimately, found him guilty. 8. 8. EX.P-1 was made by P.W.1 and the same reads as hereunder: "I am Asamalla Yellamma, My husband is Narasimha, aged about 28 years. Caste: Mala, Village: Saligowraram. My appeal is that on 11-9-1998, in the evening at about 7-30 p.m. My daughter, Lavanya. aged about 6 years and our neighbour girl. K. Anitha, while they were playing in our S.C. Colony, at Water Tank. meanwhile, one Ganta Mallaiah, S/o. Yellaiah, who is our caste man, aged about 28 years, a resident of Saligowraram, has lifted out our daughter Lavanya and he has taken her to a hay-stock nearby and he raped her there. Meanwhile, as I have called our daughter as Lavanya, then she came to me by weeping. Then, as I have asked her as to what had happened, then she told me that one Ganta Mallaiah has lifted and taken her to a hay-stock nearby and he raped her there. Then, as I have lifted my daughter, her cut drawer is wet and gumsoon, I told about this incident to our brothers named Kothi Venkaiah and Biksham. Then, we have proceeded to the house of Ganta Yellaiah and as we have asked him as to why he did like that. Then, his younger brothers and Gandla China Narasaiah, China Bala Ram have come there and scolded him. Then, I have taken my daughter to the Doctor, Devender. He has given some Glucose to our daughter and thus she was treated. As, it is night time, I did not go to Police Station. Hence, I request you to take action on the accused Ganta Mallaiah as per law and do justice." 9. P.W.2 is a child witness and the victim girl. The learned Assistant Sessions Judge, Nalgonda observed that since the witness is a minor of about 8 years, the learned Judge to satisfy whether this witness was capable of giving rational answers had put certain preliminary questions and recorded the answers. This witness also further deposed that P.W.1 is her mother and she knows the accused present in the Court hall, is also resident of their village and she knows Anitha who is her friend and both of them used to play. This witness also further deposed that P.W.1 is her mother and she knows the accused present in the Court hall, is also resident of their village and she knows Anitha who is her friend and both of them used to play. She further deposed that while she was studying 2nd class, on one day, herself and Anitha were playing in the sand in their village after evening hours, meanwhile the accused came there, and took both of them, near to flag hoisting bare and after going there, Anitha ran away and then the accused inserted his lungi into her mouth and closed her mouth. M.Os.1 and 2 are her underwear and banian which she wore at the time of incident and they were removed by the accused. P. W.2 also deposed that "AAA Taruvata Nannu Aagamu Chesinadu" "Aagamu Ante" The Court recorded that the witness is not explaining what is meant by "Aagamu". In spite of best efforts by the Court and the learned Additional Public Prosecutor, the witness continues to weep without explaining anything about the incident. P.W.2 also deposed that after the incident, the accused went to his house and she went to her house. She further deposed that after going to the house, she narrated the incident to her mother and she was examined by the police. She further deposed that she was taken to the Hospital of Devendra Chary and later the police referred her to the Hospital in Nalgonda. This witness was cross-examined. She deposed that she used to watch the T.V. regularly in the house of Venkaiah, helper and she used to watch the movie in the T.V. in the nights and her mother used to come to the house of the said Venkaiah in the nights to take her after watching the T.V. and she used to watch all types of movies in the T.V. and she was never frightened while watching any type of movie in the T. V. She also deposed that while returning home, this witness and her friends used to talk about the devil stories in the T.V. and she used to have dreams in the nights and sometimes, she used to talk in deep sleep. But it is pertinent to note that she had deposed that it is not true to say on that day also nothing had happened and she was frightened in the sleep on account of watching a movie in the T.V. She no doubt deposed that she came to the place with her mother four times and her mother told her to depose in the Court and she had deposed what all had happened and not what her mother asked to depose. This is the evidence of P. W .2. No doubt, specifically she was unable to depose. But however, she deposed about "Aagam Nannu Chesinadu". This is the evidence of the child witness which is just natural and convincing. There is nothing to suggest even from this evidence of P.W.2, that she had been tutored in such a fashion and there cannot be any specific animosity to this young child as against this appellant accused alone. 10. The evidence of P.W.1, the mother of P.W.2, who had lodged EX.P-1 is also material. She had specifically deposed that on the fateful day when she examined and found blood stains to the underwear of Lavanya and she informed it to Kothi Bixam and Kothi Venkataiah, and all of them went to the house of the accused and made galata and that on the same day P .W.2 was taken to a private Doctor Devendra Chary for treatment and on the next day they had gone to Nakrekal Police Station and presented Ex. P-1 report. No doubt, this witness was cross-examined about certain aspects relating to the material objects and non-furnishing of details in EX.P-1. The witness in fact had deposed about all the aspects inclusive of M.Os.1 and 2 and she had denied the suggestion that this case was foisted against the accused on mere suspicion. 11. P.W.8 is another child witness of aged 8 years on the date of examination, and the Court after putting certain preliminary questions, being satisfied that the witness knows the purpose for which she was brought to the Court, had proceeded to record her evidence without administering the oath. 11. P.W.8 is another child witness of aged 8 years on the date of examination, and the Court after putting certain preliminary questions, being satisfied that the witness knows the purpose for which she was brought to the Court, had proceeded to record her evidence without administering the oath. This witness deposed about P.W.2 and herself playing during night hours at water tank and the water tank is near the house of helper Venkulu, and at that time the accused came to them and took away P.W.2 by the side of pial (Gadde) and the accused also caught hold of her hand, but she snatched away her hand and ran towards her house and the accused closed the mouth of P.W.2, and on seeing, she ran away to her house and informed the same to her father. This witness also was cross-examined on the same lines as P.W.2 was cross-examined. 12. P.WA-Dr. Devendra Chary deposed about P. W.2 being brought to his clinic by her mother-P.W.1 and two brothers of P.W.1 and he was told that P. W.2 was sexually assaulted and he examined P.W.2 and observed downing of pulse and sufferance and gave pain killer tablet and saline and later he advised them to go to the Government hospital. 13. P.W.5 is the father of P.W.8. He deposed that he knows P.W.2 and Anitha is his own daughter and her daughter came shouting and crying on the fateful day and his elder daughter Pitchamma told him that P.W.1 's daughter was sexually assaulted by the accused and this witness also narrated about the other post incident events. 14. P.W.6 deposed that after he returned from the fields, he heard from somebody that the accused sexually assaulted P.W.2, but he had no personal knowledge about the same and no doubt this witness was declared hostile and was cross-examined and EX.P-5 was marked. 15. P.W.9 was examined on the aspect of seizure of M.Os.1 and 2 and no doubt deposed that he does not remember whether the police seized M.Os.1 and 2 on the same day from the house of P.W.1 in their presence and drafted the panchanama. This witness deposed about EX.P-7 but had not supported the prosecution and hence, this witness was declared hostile. 16. P.W.10 also was examined in relation to EX.P-7. But however, this witness was also declared hostile. This witness deposed about EX.P-7 but had not supported the prosecution and hence, this witness was declared hostile. 16. P.W.10 also was examined in relation to EX.P-7. But however, this witness was also declared hostile. P.W.11 is the panch witness in relating to EX.P-8 and this witness deposed that M.O.3 was seized from the house of the accused and EX.P-8 is the panchanama and the seizure panchanama was prepared in their presence. 17. P.W.3-Government Civil Assistant Surgeon, District Head Quarters Hospital, Nalgonda, deposed that on 12-8-1998 she received a requisition from the Sub-Inspector of Police, Nakrekal Police Station to examine P.W.2 on the allegation of rape and accordingly, she examined P.W.2 on 12-9-1998 at 3-10 p.m. and found that abdomen soft, for vaginal, hymen intact admitting tip/finger, two vaginal slides taken to be sent to Forensic Science Laboratory, Hyderabad. She further deposed that she received report of the Forensic Science Laboratory stating that the presence of human semen and spermatozoa on the cloths and vaginal slides. She deposed that basing on the report of the F.S.I., Hyderabad, she gave final report opining that the possibility of rape on P.W.2 cannot be denied. Exs.P-2 and P-3 are the preliminary and final reports and EX.P-4 is the F.S.L. Report. In the cross-examination this witness deposed that it is true normally every girl below the age of ten years will admit tip of little finger. 18. P.W.7 is the Civil Assistant Surgeon and he had examined the accused relating to potency and he issued EX.P-6 certificate. 19. P.W.12 is the S.I. of police to whom EX.P-1 was presented and he registered the case in crime No.61 of 1998 and submitted copies of FIRs. EX.P-9 is the original FIR. 20. P.W.13 is the Investigating Officer and he had deposed the details of investigation, examination of the witness, seizure of M.Os., preparation of rough sketch of the scene of offence Ex. P-11, securing the presence of the witnesses, making of enquiries, arrest of the accused, sending P.W.2 and also the accused for the purpose of examination and obtaining the medical opinion. He deposed that after completing investigation, he filed the charge-sheet. The relevant portion of the statements of the witnesses, who were declared hostile also had been put to this witness. 21. He deposed that after completing investigation, he filed the charge-sheet. The relevant portion of the statements of the witnesses, who were declared hostile also had been put to this witness. 21. On the strength of this evidence, clear findings had been recorded by the learned Judge to the effect that the ingredients of Section 376(2)(f) IPC had been satisfied. The main contention which had been advanced by the learned Counsel for the appellant-accused is that the medical evidence only show the possibility of rape that means it may be possible or may not be possible and when two views are possible, the view which is in favour of the accused may have to be preferred and hence, even if the evidence of P.Ws.1, 2, 5 and 8 to be believed in relation to incident at the best, it may fall under Section 376(2)(f) read with Section 511 IPC and definitely, it is not a case clearly falling under Section 376(2)(f) IPC. The victim is a child of tender age and P.W.1 clearly deposed about the blood. The material objects seized and also the medical evidence would definitely point out that the offence was committed by the appellant-accused. 22. In Madan Gopa Kakkad case (1 supra) the Apex Court observed at paragraph No.34 as follows: "A medical witness called in as an expert to assist the Court is not a witness of fact and the evidence given by the medical officer is really of an advisory character given on the basis of the symptoms found on examination. 22. In Madan Gopa Kakkad case (1 supra) the Apex Court observed at paragraph No.34 as follows: "A medical witness called in as an expert to assist the Court is not a witness of fact and the evidence given by the medical officer is really of an advisory character given on the basis of the symptoms found on examination. The expert witness is expected to put before the Court all materials inclusive of the data which induced him to come to the conclusion and enlighten the Court on the technical aspect of the case by explaining the terms of science so that the Court although not an expert may from its own judgment on those materials after giving the regard to the expert's opinion because once the expert's opinion is accepted, it is not the opinion of the medical officer, but of the Court." The Apex Court also while dealing with the commission of such offence of sexual assault of female children observed as follows: "Before parting with the judgment, with deep concern, we may point out that though all sexual assaults on female children are not reported and do not come to light yet there is alarming and shocking increase of sexual offences committed on children. This is due to the reasons that children are ignorant of the act of the rape and are not able to offer resistance and become easy prey for lusty brutes who display the unscrupulous, deceitful and insidious art of luring female children and young girls. Therefore, such offenders who are menace to the civilized society should be mercilessly and inexorably punished in the severest terms. We feel that Judges who bear the Sword of Justice should not hesitate to use that sword with the utmost severity, to the full and to the end if the gravity of the offences so demand." The learned Additional Public Prosecutor placed strong reliance on the above decision and would contend that in such offences perpetrated as against children deterrent punishment to be imposed. 23. 23. In Sakshi v. Union of Indici, the Apex Court while dealing with the definition of rape and observing that the rape cannot be enlarged to include all forms of "penetration", held as hereunder: "The main question which requires consideration is whether by a process of judicial interpretation the provisions of Section 375, IPC can be so altered so as to include all forms of penetration such as penile/vaginal penetration, penile/oral penetration penile/anal penetration, finger/vagina and finger/ anal penetration and object/vaginal penetration within its ambit. Section 375, uses the expression "sexual intercourse" but the said expression has not been defined. The dictionary meaning of the word "sexual intercourse" is hetrosexual intercourse involving penetration of the vagina by the penis. The Indian Penal Code was drafted by the First Indian Law Commission of which Lord Mecaulay was the president. It was Presented to the Legislative Council in 1856 and was passed on Oct. 6, 1860. The Penal Code has undergone very few changes in the last more than 140 years. Except for clause sixthly of Section 375 regarding the age of the woman (which in view of Section 10 denotes a female human being of any age) no major amendment has been made in the said provision. Subsection (2) of Section 376 and Sections 376-A to 376-0 were inserted by Criminal Law (Amendment) Act, 1983 but sub-section (2) of Section 376 merely deals with special types of situations and provides for a minimum sentence of 10 years. It does of situations and provides for a minimum sentence of 10 years. It does not in any manner alter the definition of 'rape' as given in Section 375, IPC. Similarly, Section 354 which deals with assault or criminal force to woman with intent to outrage her modesty and Section 377 which deals with unnatural offences have not undergone any major amendment. It is well settled principle that the intention of the Legislature is primarily to be gathered from the language used, which means that attention should be paid to what has been said as also to what has not been said. As a consequence a construction which requires for its support addition or substitution of words or which results in rejection of words as meaningless has to be avoided. It is contrary of words as meaningless has to be avoided. As a consequence a construction which requires for its support addition or substitution of words or which results in rejection of words as meaningless has to be avoided. It is contrary of words as meaningless has to be avoided. It is contrary to all rules of construction to read words into an Act unless it is absolutely necessary to do so. Similarly it is wrong and dangerous to proceed by substituting some other words for words of the statute. It is equally well settled that a statute enacting an offence or imposing a penalty is strictly construed. The fact that an enactment is a penal provision is in itself a reason for hesitation before ascribing to phrases used in it a meaning broader than that they would ordinary bear. (Principles of Statutory interpretation by Justice G.P. Singh, p.58 and 751 Ninth Edition). Sections 354,375 and 377, IPC have come up for consideration before the superior Courts of the country on innumerable occasions in a period of almost one and a half century. Only sexual intercourse, namely, heterosexual intercourse involving penetration of the vagina by the penis coupled with the explanation that penetration is sufficient to constitute the sexual intercourse necessary for the offence of rape has been held to come within the purview of Section 375 IPC. The wide definition which the petitioner wants to be given to "rape" as defined in Section 375, IPC so that the same may become an offence punishable under Section 376, IPC has neither been considered nor accepted by any Court in India so far. Prosecution of an accused for an offence under Section 376, IPC on radically enlarged meaning of Section 375, IPC as suggested by the petitioner may violate the guarantee enshrined in Art.20(1) of the Constitution which says that no person shall be convicted of any offence except for violation of a law in force at the time of the commission of the act charged as an offence, nor be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence." 24. Taking into consideration the overall facts and circumstances, and in view of the decisions cited supra, the conviction under Section 376(2)(f) IPC is hereby confirmed. 25. Taking into consideration the overall facts and circumstances, and in view of the decisions cited supra, the conviction under Section 376(2)(f) IPC is hereby confirmed. 25. In the result, the conviction imposed by the learned Assistant Sections Judge, Nalgonda in Sessions Case No.75 of 2000 on 15-7-2000 against the appellant-accused for the offence under Section 376(2)(f) IPC is hereby confirmed, but the sentence of rigorous imprisonment for a period of ten years is modified and reduced to a period of seven years, and as far as the payment of fine of RS.500/- in default to undergo simple imprisonment for three months is concerned, the same is hereby confirmed. Except to the modifications specified supra, in all other respects, the findings of the learned Judge are hereby confirmed and accordingly, the Criminal Appeal shall stand dismissed.