Judgment This appeal is directed against the judgment and order dated 15/3/2011 passed by learned Additional Sessions Judge, Washim in Sessions Atrocity Case No.25/2009 whereby the accused was convicted for the offence punishable under section 376 of the Indian Penal Code and was sentenced to suffer rigorous imprisonment for seven years and to pay fine of Rs.500/-, in default to suffer rigorous imprisonment for two months and was further convicted for the offence punishable under section 3(1)(xii) of the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act and was sentenced to suffer rigorous imprisonment for six months and to pay fine of Rs.200/-, in default to suffer rigorous imprisonment for two weeks. Both the sentences were ordered to run concurrently. 2. The prosecution case is thus :- The complainant -Ratnakala (P.W.1), R/o village Manoli within the jurisdiction of police station Mangrulpir has two daughters namely Sonali aged about eight years and Kajal aged about three years. The incident occurred on 11/9/2009 in the noon time. In her agricultural land there is a temple of goddess Anusaya Mata. Along with her daughter Kajal, she had visited the said temple. At that time Panchfulabai -her mother in law, Laxmibai -her mother, accused and his mother Nanda had also come to the temple. When Kajal was playing outside the temple, the accused carried Kajal with him on the pretext that she would be offered Mung Pods. After an hour he brought her back. At that time, Kajal was crying. Ratnakala was asking Kajal to sit but she was not able to sit down and continued to cry. When Ratnakala asked her as to what had happened, she informed her that the accused lied (slept) on her. Ratnakala (P.W.1) then checked the private parts of Kajal and found swelling and little bleeding. Then she carried Kajal to the hospital and from there to the police station. On the basis of report lodged by her, the offence came to be registered. Kajal was sent for medical examination. The Medical Officer found the swelling both on labia majora and labia minora. There was redness on labia minora. Hymen had shown tears at the upper part and swelling. The accused was also sent for medical examination. No injuries were found on his person including his genital organ and perinial region. On completion of the investigation, the charge-sheet was submitted. 3. There was redness on labia minora. Hymen had shown tears at the upper part and swelling. The accused was also sent for medical examination. No injuries were found on his person including his genital organ and perinial region. On completion of the investigation, the charge-sheet was submitted. 3. Learned Additional Sessions Judge framed and explained the charge of the offence punishable under section 376 of the Indian Penal Code as well as under section 3(1)(xii) of the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act since it was revealed that Kajal belongs to schedule caste. The accused pleaded not guilty and claimed to be tried. Five witnesses were examined. After considering the evidence brought on record, learned Additional Sessions Judge held that the ingredients of section 376 of the Indian Penal Code as well as section 3(1)(xii) of the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities), Act have been established. He, therefore, proceeded to convict and sentence the accused, as stated above. 4. Mr. Kurekar, learned counsel appearing for the accused/appellant, took me through the evidence, oral as well as documentary, relied upon by the prosecution. According to him, the story as narrated by the witnesses is improbable. It is highly improbable to believe that in presence of so many persons gathered in the temple, the accused would carry Kajal to commit heinous act like rape. Because of enmity between the family, false case has been filed, he urged. 5. Mr. Doifode, learned A.P.P. appearing for the State/respondent, supported the judgment and order of conviction. His contention is that the evidence of Ratnakala (P.W.1) is fully supported by the medical evidence. Penetration, howsoever it may be, is sufficient to constitute rape, he urged. Lastly, he submits that there is no merit in this appeal and is liable to be dismissed. 6. The case of the prosecution mainly rests upon the testimony of Ratnakala (P.W.1). According to her, on 11/9/2009 she and her daughter Kajal, aged about 3 years, had been to Anusayamata Mandir which is located in her field. Some persons from her family, accused and mother of the accused had also come to the said temple. It was noon time. Kajal was playing outside the temple. Accused carried her with him on the pretext that he would give her 'mung' pods. After an hour the accused returned with Kajal. Kajal was crying. Some persons from her family, accused and mother of the accused had also come to the said temple. It was noon time. Kajal was playing outside the temple. Accused carried her with him on the pretext that he would give her 'mung' pods. After an hour the accused returned with Kajal. Kajal was crying. When she asked Kajal to sit down, she was unable to sit and therefore, she had asked as to what had happened. Kajal replied by saying that the accused had lied over her. Presumably, this raised suspicion in her mind and therefore, she had checked her private parts and found swelling and bleeding. At that time, the accused was not there. Firstly, she carried Kajal to the hospital and narrated the incident to the doctor present there. They had suggested her to carry Kajal to the police station. Therefore, she brought her to the police station and lodged F.I.R. (Exh.17). The police referred Kajal for medical examination to Rural Hospital, Mangrulpir and from there Kajal was carried to Civil Hospital, Akola. She further deposed about her caste and produced certificate (Exh.19). According to her, accused neither belongs to schedule caste nor Scheduled Tribe. The knicker worn by Kajal was attached and identified by this witness and marked Article 1. 7. What is transpired in her cross examination is that the land owned by her is adjoining to the land owned by the accused. She denied the suggestion that her husband and one Ramabai were interested in purchasing the land of the accused. It was also suggested to her that because the accused declined to sell his land, this false case has been foisted on him. Then she was questioned about the location of the temple. The defence of the accused is that because Kajal was carried on bicycle and was made to sit on rod, she had received injuries. Then it was suggested that seeing injuries sustained by Kajal this false case has been foisted on the accused. At the very first blush, such defence does not appear worth considering, particularly, when examined in the light of attending and surrounding circumstances. The version of Ratnakala (P.W.1) is corroborated by her conduct and the contents in the F.I.R. (Exh.17). Then it was suggested that seeing injuries sustained by Kajal this false case has been foisted on the accused. At the very first blush, such defence does not appear worth considering, particularly, when examined in the light of attending and surrounding circumstances. The version of Ratnakala (P.W.1) is corroborated by her conduct and the contents in the F.I.R. (Exh.17). Learned counsel for appellant has invited my attention to the statement of Ratnakala (P.W.1) to the effect that Kajal had informed her that accused had committed sexual intercourse with her. According to the learned counsel it is highly improbable to believe that a girl of three to four years would make such a statement or would reveal such thing. He seems to be right, however, this is not sufficient to dislodge the prosecution case. For better appreciation the relevant portion of the evidence of Ratnakala (P.W.1) is reproduced hereunder : "I had asked her as to why she cannot squat, thereupon she said that accused had slept on her. I had sen her vagina, it was swollen with bleeding and moist with sticky substance and further told me that accused had sexual intercourse with her. When accused had brought Kajal, that time, she was weeping and leaving her, accused went away." Firstly, Kajal had informed her mother that accused lied over her. The statement of Ratnakala (P.W.1) that Kajal had also informed her that accused had committed sexual intercourse with Kajal appears to be an exaggeration since this is conspicuously absent in the F.I.R. (Exh.17). 8. Other witness is Panchfula (P.W.2). On the day of the incident, she had gone to the temple and had seen the accused carrying Kajal on the pretext that she would be given 'mung' pods. Her version is similar to the version of Ratnakala (P.W.1). Nothing surfaced in her cross examination to raise doubt about the veracity of the prosecution case. 9. The next important piece of evidence is medical evidence. Dr. Raut (P.W.3) Assistant Professor in Government Medical College examined Kajal. He found following injuries. "I have examined said patient and noted bilateral labial swelling and redness. Thee was hymenal tear, upper part. In my opinion as per history and clinical finding of physical examination those were consistent with attempt of sexual intercourse. Accordingly, I had issued certificate. Now shown to me is same, it is signed by me, it is at Ex.34. "I have examined said patient and noted bilateral labial swelling and redness. Thee was hymenal tear, upper part. In my opinion as per history and clinical finding of physical examination those were consistent with attempt of sexual intercourse. Accordingly, I had issued certificate. Now shown to me is same, it is signed by me, it is at Ex.34. Now says above certificate was issued by me on 12-9-2009 as per the findings recorded by me after examination of said patient as per her bed head ticket. Said examination now shown to me is in my hand, it bears my signature, it is at Ex.35. Above patient was referred to out Unit from O P D" 10. In his cross examination, he clarified that his opinion of "attempt of sexual intercourse" was subject to confirmation by the Chemical Analyzer. He admitted that if the girl is made to sit on the rod of the bicycle and carried to a distance of two to three kilometers, the injuries to labia majora and labia minora are possible. It is very strange to observe that neither to Ratnakala (P.W.1) nor to Panchfula (P.W.2) it was suggested that the accused had carried Kajal on bicycle. It is also not suggested that Ratnakala (PW.1) had rode bicycle and made Kajal to sit on the steel rod. Therefore, the admission taken out from the mouth of Dr. Raut (P.W.3) being hypothetical is not relevant to the facts of the present case. Moreover, the tear of the hymen is suggestive of the fact that there was penetration. It is known fact that in a girl of such tender age hymen is deeply situated. In this regard, a reference can be made to Modi's Medical Jurisprudence and Toxicology (22nd Edition), page 476 : "The hymen is situated more deeply in children than in nubile girls, and so it more often escapes injury in an attempted rape on children." The fresh tear noticed by Dr. Raut is suggestive of the force or violence applied by the accused. Explanation to section 375 provides as under : "Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape." This follows that penetration, howsoever little it may be, is sufficient to constitute rape. In that light of the matter, opinion expressed by Dr. Raut is suggestive of the force or violence applied by the accused. Explanation to section 375 provides as under : "Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape." This follows that penetration, howsoever little it may be, is sufficient to constitute rape. In that light of the matter, opinion expressed by Dr. Raut (PW..3) would not bring the case within the ambit of section 376 read with 511 of the Indian Penal Code. 11. Contention of learned counsel for the accused that no injury was seen on the person of accused (Exh.29) is the circumstance consistent with his innocence, cannot be accepted for the simple reason that victim was the girl of very tender age. In such situation it is unlikely that culprit receives any injury. Further, negative C.A. Report is also not the factor to create doubt about truthfulness of the prosecution case. 12. Considering the impeccable testimony of Ratnakala (P.W.1) which is fully corroborated by the medical evidence, I am of the view that the prosecution has succeeded in proving beyond reasonable doubt that the accused sexually assaulted Kajal. There is no denial to the fact that Kajal belongs to schedule caste and accused belongs to the caste which is neither scheduled caste nor scheduled tribe. In that light of the matter, learned Additional Sessions Judge was perfectly justified in holding the accused guilty of the offence under section 3(1)(xii) of the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act. In fact, considering the age of victim, the conviction ought to have been under section 376(2)(f), instead of under section 376. 13. Now, coming to the quantum of sentence, learned counsel for the appellant contended that the sentence of seven years awarded to the accused is on higher side and rather harsh. The accused on the day of incident was a boy of twenty years and therefore, needs to be shown leniency. Learned Additional Sessions Judge has dealt with this aspect and observed: "Having considering the above submissions, coupled with the facts of case, which suggest that victim in this case is a girl of 4 years, was taken away by accused from her mother's custody and thereafter he had committed a heinous act of sexually ravishing said minor victim. Of course, the offence proved by prosecution against accused is inhuman in nature. Of course, the offence proved by prosecution against accused is inhuman in nature. But at the same time, by adverting to the proportionality of sentence, I find that accused though does not deserve leniency, but should be awarded minimum sentence as prescribed under the penal provisions of sec.376 of I.P.C." Except the fact that on the day of incident the accused was of twenty years old there is no mitigating circumstance. The law mandates minimum punishment of seven years particularly, when the victim is below twelve years of age. This is a case where the accused made prey to 3 years old girl to satisfy his carnal lust. Therefore, imposing sentence less than minimum provided under law is not justified. 14. In that light of the matter, I do not find any merit in this appeal. Appeal is dismissed.