Judgment JITENDRA CHAUHAN. J. 1. On 13-61997 sahun, the appellant, was summoned for trial for offence under Sec.376 (f) of the Indian Penal Code for committing rape upon Sahina aged about 6/7 years. The trial court on 11-11-1998 held the appellant guilty of the offence charged, and vide order dated 13-11-1998 the appellant was sentenced to undergo rigorous imprisonment for 12 years and to pay a fine of Rs.5,000.00 . In default of payment of fine, the appellant-accused was to further undergo rigorous imprisonment for 2 years. 2. The present appeal has been filed against the judgment and order dated 11 / 13-11-1998 passed by the learned additional Sessions Judge, Gurgaon. 3. On 20-2-1997, Jabbar Khan son of khillu got his statement recorded before assistant Sub Inspector Ram Kumar Police post Bichhore that at about 9.00 a. m. when he came back from his field, his daughter sahina, was found crying. Sahina told the complainant that Sahun son of Ismail took her to the fields of mustard crop and after opening her salwar fell upon her. On untying the salwar of Sahina, the complainant saw blood upon the thighs of Sahina. 4. In a state of shock, the complainant along with his daughter proceeded to his house. Mohammad Azad son of Jahur Khan of the same village met the complainant on the way. The complainant narrated the incident to him. On that Mohammad Azad told the complainant that he saw Sahun, the appellant, going towards the village on his bicycle. As per the police proceedings, on the aforementioned statement, an offence punishable under Sec.376 (f) of the indian Penal Code was found to be made out. Accordingly, a report in this regard was sent to the police station for registration of FIR at about 3.25 p. m. by Ram Kumar, ASI. On receipt of the above report, an FIR was registered on 20-2-1997. The special report was sent to the Illaqa Magistrate the same day at 5.00 p. m. 5. The spot inspection was carried out by P. W.8 Ram Kumar, ASI and the rough site plan Exhibit PE was prepared. 6. The prosecutrix was medico-legally examined on 20-2-1997 at 6.00 p. m. by P. W.1 Dr. Santosh Jain, Medical Officer, CHC, hospital, Ferozepur Jhirka. The following injuries were found on the person of the prosecutrix :- " 1. The spot inspection was carried out by P. W.8 Ram Kumar, ASI and the rough site plan Exhibit PE was prepared. 6. The prosecutrix was medico-legally examined on 20-2-1997 at 6.00 p. m. by P. W.1 Dr. Santosh Jain, Medical Officer, CHC, hospital, Ferozepur Jhirka. The following injuries were found on the person of the prosecutrix :- " 1. Per chest examination NAD no external injury was seen but abdomen examination, NAD, no external injury was seen. Vaginal Examination : external Examination :- pubic hair absent due to patient is under age. No spot of semen was present at the public area. No spot of semen was present on the labia majora and libia minora. Internal Examination :- P/v was not done due to the patient under age bleeding was present from the vagina area and vaginal orifice. No swelling was present and no tear was present. Vagina Swab was taken from the vaginal orifice. Shirt (Kamij) and Salwar were taken from Sahina and was handed over to the police. Duration cannot be ascertained. Opinion will be given after chemical examination of Vagina Swab. Regarding para No.3 of MLR of Sahina, was under age at the time of medical examination her internal vaginal examination was not done, so it cannot be said that the hymen of the prosecutrix was tore or not. " 7 The appellant, Sahun was medico legally examined by P. W.9 Dr. S. K. Sharma, s. M. O. CHC, Jamalpur, District Jhajjar. On examination, the following injuries were found on his person :- " 1. A star shape irregular lacerated wound measuring 1 x 1 x 1/4 cms. on the right parietal region of forehead. There was some swelling surrounding it. Wound contained some purulent discharge present in it.2. A lacerated wound measuring 1 x 1/2 x 1/4 cms. containing purulent dischare and situated on the right side of back of head. It was also surrounded by swelling all around.3. Circular 1/3 x 1/3 cms. wound situated in front of forehead.1 cm on the left of mid-line. It was covered reddish brown scabb. Nature of Injuries duration of injuries were 3 to 4 hours. Local Examination :- Penis is normal and circumscribed. Note :- (1) Accused was not wearing underwear when he was brought for examination. Circular 1/3 x 1/3 cms. wound situated in front of forehead.1 cm on the left of mid-line. It was covered reddish brown scabb. Nature of Injuries duration of injuries were 3 to 4 hours. Local Examination :- Penis is normal and circumscribed. Note :- (1) Accused was not wearing underwear when he was brought for examination. (2) pubic hair was cut with a scissors and put in the vail bearing two seals and handed over to the police. (3) A penile swab was taken put in a glass vail and sealed with two seals and handed over to the police. (4) An envelop bearing three seals was also handed over to the police. The patient was capable of doing intercourse. " exhibit PL is the FSL report. Based upon the examination, the results obtained were analysed as under :-1. Blood was detected on Exhibit-la (Salwar), Exhibit-1b (Ladys shirt) and Ex-hibit-2 (Vaginal Swab ). However, blood could not be detected on Exhibit-3 (Swab) and exhibit-4 (pubic hair ).2. Semen could not be detected on any of the exhibits mentioned above. " 8 The prosecution recorded the statements of ten witnesses. The material witnesses are P. W.1, Dr. Santosh Jain, medical Officer, P. W.2, Jabbar Khan, complainant, P. W.6, Shri Mohammad Azad, P. W.7, sahina and P. W.8, Shri Ram Kumar, ASI. 9. P. W.1, Dr. Santosh Jain, Medical officer carried out the medico legal examination of the prosecutrix whereas P. W.9, Dr. S. K. Sharma, S. M. O. conducted the medico legal examination of the accused/appellant. The star witness in the present case was P. W.2, Jabbar Khan, the father of the prosecutrix. P. W.6, Shri Mohammad Azad, P. W.7, sahina is the prosecutrix. Ram Kumar, ASI appeared as P. W.8. 10. After recording the evidence of the prosecution, the accused was examined under Sec.313 of the Code of Criminal procedure. The accused pleaded false implication. The accused set up defence that his cattle destroyed the crop of the complainant Jabbar Khan, who caused injuries to the accused and in order to save himself falsely implicated him (the accused) in the instant case. 11. It was argued on behalf of the accused that it was not clear from the statement of P. W.2-Jabbar Khan that the accused raped Sahina. 11. It was argued on behalf of the accused that it was not clear from the statement of P. W.2-Jabbar Khan that the accused raped Sahina. After the examination-in-chief, P. W.2, Jabbar Khan in his cross-examination stated that his daughter, the prosecutrix, received injuries on account of a fall. In the same manner, P. W.6 Shri mohammad Azad retracted from his statement that he met P. W.2 Jabbar Khan when he was on his way from the field to his house. It is relevant to point out that the complainant p. W.2, father of the prosecutrix was declared hostile. 12. As per report of the Forensic science Laboratory, Exhibit PL, no semen was detected on the clothes of the prosecutrix. In the absence of semen on the clothes of the prosecutrix, it was suggested that the clothes were changed. In that eventuality, there would not have been any blood on her clothes. On the basis of above facts, it was argued that the prosecution case was highly doubtful. 13. It was also stressed that as per medico Legal Report, Exhibit PA, conducted by P. W.9 Dr. S. K. Sharma, S. M. O. three injuries were found on the person of the accused. The injuries were caused by the complainant as his crop was damaged by the cattle of the accused. The complainant lodged the FIR against the appellant in order to shield himself. 14. It was further argued that as the prosecutrix was a child witness of 6/7 years of age, and was admitted tutored by the counsel on the date of deposition before the learned trial Court, her testimony should not be relied upon. The learned counsel for the appellant concluded that the prosecution failed to establish its case beyond reasonable doubt and the appellant deserved to be acquitted. 15. In the similar circumstances, the Hon ble Supreme Court in Amar Singh V/s. State of Punjab, 1987 (1) RCR (Cri) 389 : (1987 Cri LJ 706) disbelieved the prosecution witness as there were material contradictions regarding the place of occurrence. In the instant case, P. W.5 stated in her ex-amination-in-chief that accused took the deceased to the courtyard of the house of bachhan Singh where he was beaten by amar Singh. She further stated that after killing Piara Singh on the spot, the accused took him inside the room of the house. In the instant case, P. W.5 stated in her ex-amination-in-chief that accused took the deceased to the courtyard of the house of bachhan Singh where he was beaten by amar Singh. She further stated that after killing Piara Singh on the spot, the accused took him inside the room of the house. Therefore, it was held that her evidence was inconsistent as to the place where Piara singh was killed. 16. The Hon ble Supreme Court dealing with testimony of the child witness in Ram singh V/s. The State, 1973 (1) CLR 48, held that though there was no precise criteria for appraising the evidence of a child witness can be laid down, yet one broad test is, whether there was possibility of any tutoring. If the test is found in the positive, the court will not, as a rule of prudence, convict the accused on a murder charge on the basis of child evidence. 17. As against this, learned counsel for the State has argued that it was after ten months of the examination of P. W.2 and p. W.6 that they retracted from their statements. However, in examination-in-chief, both these P. Ws. admitted that rape was committed by the accused. The prosecutrix though a child witness categorically stated that rape was committed upon her by the accused. Moreover, P. W.8 Ram Kumar, ASI supported the version of the prosecutrix. 18. In this context of observations of the Hon ble Supreme Court in Radha Mohan singh alias Lal Saheb V/s. State of U. P. (2006)2 SCC 450 : (2006 Cri LJ 1121) wherein P. W.3 had fully supported the prosecution case. In his cross-examination, which was recorded on the same date, the details of the weapons being carried by each of the accused and also the specific role played by them in assaulting the deceased and other injured persons were given. As his cross-examination could not be completed it was resumed on the next day and then he gave a statement that he could not see the incident on account of darkness. The evidence of such witness could not be treated as effaced or washed off the record altogether but the same can be accepted to the extent his version is found to be dependable on a careful scrutiny thereof. The evidence of such witness could not be treated as effaced or washed off the record altogether but the same can be accepted to the extent his version is found to be dependable on a careful scrutiny thereof. The Hon ble Supreme court concurred that the view taken by the learned Sessions Judge as well as the High court that on account of the pressure exerted upon him by the accused, tried to support them in his cross-examination on the next day. 19. In Khujji alias Surendra Tiwari V/s. State of Madhya Pradesh (1991) 3 SCC 627 : 1991 Cri LJ 2653, the Hon ble Supreme court observed that in the present case, the examination-in-chief of the witness was recorded. He had identified all the assailants by name. The examination-in-chief which was recorded on November 16, 1976 gives all other relevant details in cross-examination commenced on December 15, 1978. In cross-examination he made a statement that the appellants had their backs towards him and hence he could not see their faces. The Hon ble Supreme Court found that there were no material contradictions in his evidence to doubt his testimony. He is totally independent witness who had no cause to give false evidence against the appellant and his companions. Therefore, evidence was accepted regarding the time, place and manner of incident as well as the identity of the assailants. 20. The learned State Counsel further submits that so far the offence of rape is concerned, it is not necessary that there should be complete penetration of penis with emission of semen and rupture of hymen. As per the Medico Legal Report of the prosecutrix, there was no injury of vagina and the doctor opined that possibility of rape could not be ruled out. In this context, in rajinder Satta Zarekar V/s. State of Goa 2008 (1) RCR (Cri) 229 : (2008 Cri LJ 710), the Hon ble Supreme Court observed as under :- 14. Learned counsel for the appellant has next submitted that the doctor had found that the hymen of Sonia was intact and, therefore, the charge for rape under Section 376, IPC as defined in Sec.375, IPC has not been made out. Learned counsel for the appellant has next submitted that the doctor had found that the hymen of Sonia was intact and, therefore, the charge for rape under Section 376, IPC as defined in Sec.375, IPC has not been made out. An identical question was considered by a Bench of this Court in santosh Kumar V/s. State of M. P. , 2006 (4)RCR (Cri) 123 : (2006 Cri LJ 4594) : 2006 (3) Apex Criminal 147 :2006 (8) JT (SC) 171 and para 10 of the report is reproduced below :-10. The question, which arises for consideration is whether the proved facts establish the offence of rape. It is not necessary for us to refer to various authorities as the said question has been examined in considerable detail in Madan Gopal Kakkad V/s. Naval Dubey, (1992 (3) RCR (Cri) 461): 1992 (3) JT (SC) 270 : 1992 AIR SCW 1480 and paras 37 to 39 of the said judgment are being reproduced below : 37. We feel that it would be quite appropriate, in this context, to reproduce the opinion expressed by Modi in Medical jurisprudence and Toxicology (Twenty First Edition)at page 369 which reads thus : "thus 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. Partial penetration of the penis within the labia majora or the valva 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. In such a case the medical officer should mention the negative facts in this report, but should not give his opinion that no rape had been committed. Rape is crime and not a medical condition. Rape is a legal term and not a diagnosis to be made by the medical officer treating the victim. The only statement that can be made by the medical officer is that there is evidence of recent sexual activity. Whether the rape has occurred or not is a legal conclusion, not a medical one. " 38. Rape is a legal term and not a diagnosis to be made by the medical officer treating the victim. The only statement that can be made by the medical officer is that there is evidence of recent sexual activity. Whether the rape has occurred or not is a legal conclusion, not a medical one. " 38. In Parikhs Text book of Medical jurisprudence and Toxicology, the following passage is found : "sexual intercourse-In law, this term is held to mean the slightest degree of penetration of the vulva by the penis with or without emission of semen. It is therefore quite possible to commit legally the offence of rape without producing any injury to the genitals or leaving any seminal stains. " 39. In Encyclopedia of Crime and Justice (Vol.4) at page 1356, it is stated : ". . . . . . . . . . even slight penetration is sufficient and emission is, unnecessary. " therefore, the absence of injuries on the private parts of a victim specially a married lady cannot, ipso facto, lead to an inference that no rape has been committed. Here the victim was a very young girl of six years of age and it is quite likely that full penetration did not take place as the accused a grown up person of over 20 years of age. The injuries clearly indicate that rape, as defined in Sec.375, IPC, did not take place. 21. In State of Rajasthan V/s. Gajendra singh, 2008 (3) RCR (Criminal) 943 : (2008 air SCW 5785), the Hon ble Supreme Court held as under :- 10. The offence of rape occurs in Chapter xvi of IPC. It is an offence affecting the human body. In that Chapter, there is a separate heading for sexual offence, which encompasses Sections 375, 376, 376-A, 376-B, 376-C and 376-D. rape is defined in Sec.375. Sections 375 and 376 have been substantially changed by Criminal Law (Amendment) Act, 1983, and several new sections were introduced by the new Act, i. e.376-A, 376-B, 376-C and 376-D. The fact that sweeping changes were introduced reflects the legislative intent to curb with iron hand, the offence of rape which affects the dignity of a woman. Sections 375 and 376 have been substantially changed by Criminal Law (Amendment) Act, 1983, and several new sections were introduced by the new Act, i. e.376-A, 376-B, 376-C and 376-D. The fact that sweeping changes were introduced reflects the legislative intent to curb with iron hand, the offence of rape which affects the dignity of a woman. The offence of rape in its simplest term is the ravishment of a woman, without her consent, by force, fear or fraud, or as the carnal knowledge of a woman by force against her will, rape or raptus is when a man hath carnal knowledge of a woman by force and against her will (Co. Litt.123-b); or as expressed more fully, rapie is the carnal knowledge of any woman, above the age of particular years, against her will; or of a woman child, under that age, with or against her will (Hale PC 628 ). The essential words in an indictment for rape are rapuit and carnaliter cognovit; but carnaliter cognovit, nor any other circumlocution without the word rapuit, are not sufficient in a legal sense to express rape; 1 Hon.6, 19, Edw.4, 26 a (Hale PC 628 ). In the crime of rape carnal knowledge means the penetration to the slightest degree of the organ alleged to have been carnally known by the male organ of generation (Stephens "criminal Law" 9th ed. P.262 ). In encyclopedia of Crime and justice (Volume 4, page 1356) it is stated ". . . . . . even slight penetration is sufficient and emission is unnecessary". In Halsburys statutes of England and Wales (Fourth edition) Volume 12, it is stated that even the slightest degree of penetration is sufficient to prove sexual intercourse. It is violation with violence of the private person of a woman-an-outrage by all means. By the very nature of the offence it is an obnoxious act of the highest order. " 22. Admittedly, P. W.2 Jabbar Khan and p. W.6 Mohammad Azad in their examina-tion-in-chief deposed that rape was committed upon the prosecutrix. It was only after a gap of about ten months the prosecution witnesses retracted from their statements. The stand that the earlier statements were made under pressure, does not appeal to reason and inspire confidence. " 22. Admittedly, P. W.2 Jabbar Khan and p. W.6 Mohammad Azad in their examina-tion-in-chief deposed that rape was committed upon the prosecutrix. It was only after a gap of about ten months the prosecution witnesses retracted from their statements. The stand that the earlier statements were made under pressure, does not appeal to reason and inspire confidence. On the contrary, analysis and evaluation of the statements made on behalf of the prosecution overwhelmingly point towards the fact that rape had been committed upon the prosecutrix. The retraction of P. W.2 and P. W.6 appears to be under pressure or on some consideration. 23. Therefore, we disbelieve the statements of P. W.2 Jabbar Khan and P. W.6 mohammad Azad to the extent of retraction. It is on account of the conduct, as displayed by the complainant, the father of the prosecutrix and P. W.6-Mohammad Azad that a large number of criminals go unpunished. This gives encouragement to the criminals resulting in lowering the majesty of law, causing a deep scar on the social fabric of the Society, forcing the helpless victim to suffer pain and mental agony throughout the life. 24. The Courts are duty bound to respond to the cries of the victim. If an appropriate punishment is not imposed upon the guilty, it would weaken the justice dispensing system and cause damage to the credibility of the institution of justice. 25. The victim in the present case though a child of 6/7 years has consistently maintained her stand that she was raped by the accused. The statement of the prosecutrix-Sahina read with the medical evidence, overwhelmingly establishes the fact that rape was committed upon her by the accused. 26. There was no allegation of bias against the investigating agency. Therefore, we hold that the rape was committed on the prosecutrix by the accused. 27. The occurrence in the present case took place in the year 1997 and the accused was released on bail after suffering incar-ceration for four years and one month. 28. Although, we are convinced that in a case under Sec.376 (f) of the Indian penal Code, no leniency should be shown, still there are mitigating factors to reduce the sentence. It is worth noting that the accused was about 20 years of age when the alleged occurrence took place. The accused suffered incarceration for four years and one month before he was released on bail. It is worth noting that the accused was about 20 years of age when the alleged occurrence took place. The accused suffered incarceration for four years and one month before he was released on bail. The accused must have got married and having a family to support. Above all what is weighing in our mind is that no violence was committed on the prosecutrix. In these circumstances, we consider it appropriate to reduce the sentence to 10 years. 29. In the result, appeal is dismissed with modification to the extent that the sentence is reduced from 12 years R. I. to 10 years R. I. However, the remaining part of the judgment/order of sentence and fine of learned trial Court is maintained. The accused be taken into custody forthwith to suffer the remaining imprisonment. Order accordingly.