Judgment ( 1. ) APPELLANT has preferred this appeal challenging his conviction and order of sentence passed by Additional Sessions judge, Nasrullaganj, District Sehore in S. T. No. 39/98 decided on 14. 5. 99. ( 2. ) APPELLANT has been convicted under Section 376 of ipc for committing rape on a minor girl aged about five/six years (hereinafter referred to as victim) and sentenced to rigorous imprisonment for seven years with fine of Rs. 3000/-, in default further rigorous imprisonment for one year by the impugned judgment. ( 3. ) ACCORDING to prosecution, on 13. 11. 97 about 8. 30 in the morning, complainants minor daughter aged about five/six years came back to her house at Talai Mohalla, Nasrullaganj from the neighbouring house of the appellant and began washing her underwear. When her mother asked as to why she was washing her underwear, the victim told her that appellant had wet it by inserting his male organ into her vagina [***]. The same was also communicated to the father of victim. Her father Madanlal then called the appellant, but he fled away from his house. Complainant madanlal narrated the incident to his brother Ghanshyam and went alongwith his brother and daughter to the Police Station and lodged the FIR same day at 9. 15 A. M. On the basis of his report, an offence was registered against the appellant at Police Station nasrullaganj and was investigated. The victim was sent for medical examination and her vaginal slide and swab were taken. Upon her medical examination the hymen of the girl was found ruptured at 4 and 10 Oclock position. The underwear of the girl worn at the time of incident was seized. On being arrested, appellant was also sent for medical examination and was found competent to commit sexual act. The trouser of the appellant was also seized. The seized articles were sent for forensic examination. After due investigation, appellant was prosecuted under Section 376 of IPC and was put to trial. ( 4. ) APPELLANT abjured the guilt and pleaded false implication due to enmity. According to appellant, Madanlal, the father of the victim was living as a tenant in the house of the appellant and when he got it vacated, complainant Madanlal falsely implicated him. ( 5. ( 4. ) APPELLANT abjured the guilt and pleaded false implication due to enmity. According to appellant, Madanlal, the father of the victim was living as a tenant in the house of the appellant and when he got it vacated, complainant Madanlal falsely implicated him. ( 5. ) LEARNED Additional Sessions Judge, after trial and upon appreciation of the evidence adduced in the case, found the appellant guilty for committing rape on a minor girl aged about 5/6 years, convicted and sentenced him as aforesaid by the impugned judgment, which has been challenged in this appeal. ( 6. ) LEARNED Senior counsel appearing for the appellant submitted that the trial court gravely erred in convicting the appellant, though no offence under Section 376 of IPC was proved against him, alternatively he submitted that the case would fall, at the most, within the ambit of Section 376/511 of IPC. His submissions in this behalf are as follows:- (I) The victim nowhere stated that there was any penetration. (II) As per FSL report (Ex. P-7), no sperms on the slide or swab of the victim were found; absence of sperms conclusively ruled out the possibility of penetration into vaginal canal. (III)Dr. S. K. Doble (P. W-6) did not find any injury on the private part or anywhere else on the body of the appellant. Had there been a penetration by a full grown person into the vagina of a young girl, it would have caused some injury to the male organ. (IV)The appellant was 60 years old person and he could not have such erection of penis as could penetrate into the vaginal orifice of the young girl. (V) The statement of the girl that her underwear was wet and the presence of sperms found on her underwear could, at the most indicate that it was case of full discharge outside the vaginal canal without any penetration and thus, no offence more than attempt to commit rape was proved against the appellant. Learned counsel for the appellant also placed reliance on the decision rendered in the case of Gangaram Nanhoosingh Vs. The crown reported in AIR (37) 1950 Nagpur page 9. ( 7. Learned counsel for the appellant also placed reliance on the decision rendered in the case of Gangaram Nanhoosingh Vs. The crown reported in AIR (37) 1950 Nagpur page 9. ( 7. ) LEARNED counsel for the State, on the other hand, justified and supported the conviction of the appellant and submitted that the evidence of the victim coupled with the medical evidence established that there was penetration sufficient to constitute the offence of rape. Reliance was placed in this behalf on the decision of the Apex Court in the case of Madan Gopal kakkad Vs. Naval Dubey and another reported in 1992 JLJ page 377 (Supreme Court ). ( 8. ) IN view of the submissions made by learned counsel for the parties, the evidence on record is closely examined. The victim in the instant case is six years old female child examined as (P. W-2), who was about seven years of age at the time of her deposition. It was not disputed by the appellant that the victim (P. W-2) was seven years of age. Her evidence is recorded in the question-answer form. ( 9. ) THE victim (P. W-2) categorically deposed in her evidence that at the relevant time about 8 or 9 oclock in the morning, she went to the place of appellant Dagdu, who was a close neighbour, appellant seated her on his lap and put his male organ into her vagina and wet it. In her own words [***]. According to the victim (P. W-2), when she came to her house and began washing her underwear, her mother asked her why she was washing it, then she narrated the incident to her. The matter was then reported to the Police and she was taken to the Hospital. ( 10. ) THE mother of the victim, namely, Shakuntala Bai (P. W-3) also corroborated this fact that when her daughter came back from the house of the appellant, she was washing her underwear; on being asked, she told her that appellant had seated her on his lap and put his male organ into her vagina. She was shocked to hear this, then she narrated the incident to her husband, who took the girl to the Police Station and lodged the report. ( 11. She was shocked to hear this, then she narrated the incident to her husband, who took the girl to the Police Station and lodged the report. ( 11. ) MADANLAL (P. W-4), the father of the victim, also deposed that his wife had come to his shop and apprised him of the incident, then he verified it from the victim and called the appellant, but he fled away. Then he informed his brother Ghanshyam and went to the Police Station alongwith the victim and his brother and lodged the report (Ex. P-2) at Police Station Nasrullaganj. The FIR (Ex. P-2) lodged by him was recorded by Sub-Inspector Siril Das (P. W-7) on the same day on 13. 11. 97 at 9. 15 A. M. ( 12. ) THE medical evidence also lends corroboration to the version made by the victim (P. W-2) that she was sexually assaulted. Dr. S. Belia (P. W-1), who medically examined the victim (P. W-2) on 13. 11. 97, on examination of her genitals, found a tear in her hymen at 4 and 10 oclock position, its margins were also found red and bleeding, there was also a laceration on the left side of her vagina, which was also slightly bleeding. According to dr. S. Belia (P. W-1), she had also taken vaginal swab of the victim and prepared the slide, sealed it and handed it over alongwith underwear of the girl to the Constable for chemical examination. In the opinion of Dr. S. Belia (P. W-1), an attempt of rape was made on the victim and there was penetration. Her medical report (Ex. P-1) is also placed on record. ( 13. ) THE aforesaid witnesses were extensively cross-examined, but there are no reasons to doubt the version made by the victim (P. W-2) as well as the corroborative evidence of her parents and the medical evidence. There has been a suggestion in the cross-examination of Shakuntala Bai (P. W-3) and madanlal (P. W-4) of false implication of the appellant due to some controversy over the house of the appellant, where the parents of the victim used to live as tenant, but the same has been refuted by them. There has been a suggestion in the cross-examination of Shakuntala Bai (P. W-3) and madanlal (P. W-4) of false implication of the appellant due to some controversy over the house of the appellant, where the parents of the victim used to live as tenant, but the same has been refuted by them. It also does not appeal to reason that on account of such dispute or controversy, the parents of the girl would falsely implicate the appellant at the stake of her honour and reputation and would lodge a false report. The suggestion of false implication of the appellant is also demolished by the medical evidence on record, which indicates that the girl was sexually violated. There are no reasons to doubt or discard the medical evidence. Obviously the lady doctor, who examined the girl had no animus against the appellant. ( 14. ) ALTHOUGH, the victim (P. W-2) was a child witness, but she in no way is found to be a tutored witness. The law relating to the child witness is well settled. As held by the Apex Court in the case of Panchhi and Others Vs. State of U. P. reported in 1998 (7) Supreme Court Cases page 177 it is not the law that if a witness is child, his evidence shall be rejected even it is found reliable, though the evidence of a child witness must be evaluated more carefully and with greater circumspection because a child is an easy prey to tutoring. ( 15. ) THE victim (P. W-2) was also cross-examined in detail, but from the answers given by her it is clearly evident that she was familiar with appellants name, as he was a close neighbour and she often used to go to play at his house. The victim (P. W-2) also deposed that at the time of incident the wife of the appellant was not at home and his daughter was cooking food inside, then the appellant had seated her on his lap and put his male organ into her vagina. She clearly and categorically refuted the suggestion that she was tutored to give such evidence by her parents and uncle. In fact, there is nothing in her evidence so as to doubt the veracity of her statement against the appellant. She clearly and categorically refuted the suggestion that she was tutored to give such evidence by her parents and uncle. In fact, there is nothing in her evidence so as to doubt the veracity of her statement against the appellant. Upon close and careful scrutiny of her entire evidence, the same is found to be natural, reliable and it inspires confidence. The corroborative evidence of her mother Shakuntala Bai (P. W-3) and father Madanlal (P. W-4) and the FIR (Ex. P-2) lodged by him soon after the incident coupled with the medical evidence totally rule out the possibility of false implication of the appellant. ( 16. ) THE main thrust of the argument of the learned senior counsel appearing on behalf of the appellant was that the act of the appellant, even if held to be proved, did not amount to commission of the offence of rape and at the most could be an attempt to commit rape. The identical question was considered by the Apex Court in the case of Madan Gopal Kakkad Vs. Naval dubey and another reported in 1992 J. L. J. page 377 (Supreme court), and Santosh Vs. State of M. P. reported in 2006 AIR supreme Court Weekly page 4550 and then again in the case of rajendra Datta Zarekar Vs. State of Goa reported in AIR 2008 supreme Court page 572 and the following extract from modis medical Jurisprudence and Toxicology 21 Edition at page 369 was reproduced in this behalf. "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 vulva of 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 his report, but should not give his opinion that no rape had been committed. Rape is a 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. In such a case the medical officer should mention the negative facts in his report, but should not give his opinion that no rape had been committed. Rape is a 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. " The gist of the dictum laid down in all the aforesaid cases was that even the slightest penetration is sufficient to constitute an offence of rape. ( 17. ) IN view of the legal position, as emerging from the aforesaid decisions of the Apex Court, the submission made by learned senior counsel appearing for the appellant sans merit. His submission, that the victim (P. W-2) no where stated that there was no penetration, is also without substance, in view of her following statements made in her deposition:-[***] ( 18. ) THE aforesaid statement is clear and unequivocal oral evidence of penetration. The tear in the hymen of the victim at 4 and 10 oclock position and laceration plus redness on the left side of vagina and bleeding as found by Dr. S. Belia (P. W-1) also lend substantial corroboration to the fact that there was penetration, may it be slightest. ( 19. ) THE mere fact that as per FSL report (Ex. P-7), no sperms were found on the vaginal slide or swab of the victim (P. W-2), could not negate the factum of penetration in view of the tear in the hymen and the injuries found on the genitals of the girl by Dr. S. Belia (P. W-1 ). Rather In view of the injuries found on her genitals and the tear in her hymen, the submission of the learned senior counsel for the appellant that presence of the sperms on the underwear of the victim without there being sperms on her vaginal slide and swab, indicated a case of full discharge outside the vaginal canal without any penetration, also lacks merit. Had there been no penetration, there would have been no laceration to the genitals of the girl, nor any tear in her hymen could have been caused. Needless to point out that Dr. Had there been no penetration, there would have been no laceration to the genitals of the girl, nor any tear in her hymen could have been caused. Needless to point out that Dr. S. Belia (P. W-1) has negatived the possibility, nor there was any such evidence on record to indicate, that tear in the hymen and the injuries to the genitals of the victim were caused due to some external object or fall. Thus the tear in the hymen of victim (P. W-2) plus laceration on her vagina coupled with her oral evidence could well be treated as unerring evidence of penetration by the appellant into the vagina of the young victim. ( 20. ) THE submission of the learned senior counsel, that absence of any injury on the private part or anywhere else on the body of the appellant also negatived the possibility of penetration by a full grown person into the vagina of a young girl, also has no merit. The victim being an innocent child of tender years, any resistance or force from her side was not expected so as to cause any injury on the person of the appellant either on his private part or anywhere else on his body. ( 21. ) THE last submission of learned senior counsel that appellant being sixty years old person, could not have such erection of penis as to penetrate into the vaginal orifice of the young girl, is also bereft of any substance. There was nothing on record to suggest that appellants penis was attenuated and not capable of penetration. On the other hand, the evidence of dr S. K. Doble (P. W-6) is to the effect that the appellant was capable of committing sexual intercourse. The citation referred to by learned senior counsel for the appellant as reported in AIR (37)1950 Nagpur page 9 (supra) is distinguishable on facts and is of no avail to the appellant in the facts and circumstances of the case. ( 22. ) IN fact, in view of the clear and categorical statement of the victim (P. W-2) coupled with the medical evidence of dr. S. Belia (P. W-1), as discussed above, it was clearly evident and established that there was penetration sufficient to constitute the offence of rape. ( 23. ( 22. ) IN fact, in view of the clear and categorical statement of the victim (P. W-2) coupled with the medical evidence of dr. S. Belia (P. W-1), as discussed above, it was clearly evident and established that there was penetration sufficient to constitute the offence of rape. ( 23. ) IN the wake of aforesaid, it was established from the evidence on record beyond any shadow of doubt that appellant committed rape on the victim, a minor girl aged about 5/6 years. The conviction of the appellant under Section 376 of IPC as recorded by the trial court does not warrant any interference in appeal. ( 24. ) AS regards the sentence, appellant was already awarded lesser sentence of imprisonment than the minimum required under Section 376 (2) (f) of IPC for committing rape on a girl under 12 years of age. Looking to the nature of his awful act, appellant does not deserve any leniency on the ground of his old age. In fact, there are no special or adequate reasons for reducing the impugned sentence of seven years rigorous imprisonment awarded to the appellant for committing rape on a female child of tender years. No interference in the impugned sentence of imprisonment and fine is called for. ( 25. ) APPEAL being bereft of any merit is hereby dismissed. Appellant is on bail. He shall forthwith surrender to his bail bonds to serve out the remaining part of his sentence.