JUDGMENT 1. Feeling aggrieved by the judgment of conviction and order of sentence dated 19.8.1998 passed by learned Second Additional Sessions Judge, Chhattarpur in Sessions Trial No. 70/97 convicting the appellant under section 376 (1) IPC and thereby sentencing him to suffer RI of 10 years and fine of Rs. 200/-; in default of payment of fine, further RI of 1 month, the appellant has knocked the doors of this Court by preferring this appeal under section 374 (2) of the Code of Criminal Procedure, 1973. 2. In brief the case of prosecution is that prosecutrix having age of 9 years was residing along with her parents. On the date of incident appellant under the pretext that he is going to Mela (fair) took permission of the mother of the prosecutrix to carry the prosecutrix with him so that she may also be able to purchase the earthen pitcher pot (Matka) as a result of which the mother of the prosecutrix accorded her permission and eventually the appellant upon his bicycle carried the prosecutrix to the fair. In the fair, appellant met with his friend co-accused Pawan Tiwari alias Sanju and both of them carried the prosecutrix nearby a Nala under the pretext that appellant is required to go for evacuation. However, nearby the Nala, the co-accused Pawan Tiwari caught hold the prosecutrix and undressed her while appellant committed rape over her. The prosecutrix who was minor at the time of incident was screaming but nobody came there to rescue her. She was also not ready to have sexual intercouse with appellant and was not a consenting party. On coming back to her home, she narrated the entire episode to her parents as a result of which FIR was lodged by the prosecutrix in the connecting Police Station. 3. On lodging of the First Information Report, the criminal law was triggered and set in motion. The investigating Agency registered the case against the appellant and co-accused Pawan Tiwari and sent the prosecutrix for her medical examination to obtain her MLC report. The appellant was also arrested and he too was also sent for medical examination. 4. After the investigation was over, a charge sheet was submitted in the committal Court which on its turn committed the case to the Court of Sessions and from where it was received by the Trial Court for trial. 5. The appellant was also arrested and he too was also sent for medical examination. 4. After the investigation was over, a charge sheet was submitted in the committal Court which on its turn committed the case to the Court of Sessions and from where it was received by the Trial Court for trial. 5. The learned trial Judge on the basis of the material available in the charge sheet framed charge punishable under section 376 (1) IPC against the present appellant while co-accused Pawan Tiwari alias Sanju was charged under section 376 (1)/34 IPC. Needless to say, both the accused persons abjured their guilt and pleaded complete innocence. 6. In order to prove the charge, the prosecution examined as many as 12 witnesses and also proved Ex. P/1 to P/18, the documents on record. The defence of the appellant is of false implication and the same defence he set forth in his statement recorded under section 313 CrPC. However, in support of his defence, he did not choose to examine any witness. 7. The learned trial Judge on the basis of the evidence placed on record came to hold that charge under section 376 (1) IPC is proved against the appellant and eventually convicted him and passed the sentence which I have mentioned herein above. 8. In this manner, this appeal has been filed by the appellant assailing his judgment of conviction and order of sentence. 9. Vehementally, it has been put forth by Shri Sharad Verma, learned counsel for the appellant that if testimony of the prosecutrix is considered in its proper perspective, it would reveal that her testimony does not inspire any confidence and if that would the position, the learned trial Court committed grave error in convicting the appellant under section 376 (1) IPC. In support of his contention, learned counsel has placed heavy reliance on the decision of Supreme Court Radhu v. State of Madhya Pradesh (2007) 12 SCC 57 and Single Bench decision of this Court Chain Singh v. State of M.P. 2002 (II) MPWN 71 . An alternative submission has also been put forth by him that if this Court comes to the conclusion that some offence has been committed by the appellant, that would not go beyond section 376/511 IPC on bare perusal of statement of the prosecutrix. An alternative submission has also been put forth by him that if this Court comes to the conclusion that some offence has been committed by the appellant, that would not go beyond section 376/511 IPC on bare perusal of statement of the prosecutrix. By placing reliance on the two decisions of Supreme Court State of M.P. v. Bala alias Balaram 2005 (2) Vidhi Bhasvar 222 = (2005) 8 SCC 1 and also State of M.P. v. Babulal 2008 (3) JLJ 53 = 2008 (1) MPLJ (Cri.) 530 (SC) on the point of sentence, learned counsel has submitted that some leniency may be adopted. 10. On the other hand, Shri Akshay Namdeo, learned Public Prosecutor argued in support of the impugned judgment and submitted that cogent reasons have been assigned by learned Trial Court on the basis of the testimony of the prosecutrix as well on the medical evidence in order to hold that on the alleged date of incident the prosecutrix was minor and appellant committed vile act of rape upon her and if that would be the position, this appeal sans substance and the same deserves to be dismissed. 11. Having heard learned counsel for the parties, I am of the view that this appeal deserves to be allowed in part. 12. In the present case, the appellant has been charged for the offence under section 376 (1) IPC. I have gone through the findings rendered by learned Trial Court and I find that there is a specific finding that prosecutrix was minor on the date of incident. The reasons assigned by learned Trial Court is supported by the evidence of Radiologist Dr. S.K. Gupta (PW-3) who has opined that prosecutrix was a minor. According to the Doctor, the age of prosecutrix was between 10 to 12 years. According to medical jurisprudence, there shall also be variation of two years on either side. Hence, according to me, the learned Trial Court has rightly arrived at a finding that the age of prosecutrix on the date of incident was below 16 years. 13. The question now would rest on the pivot that whether the appellant has rightly been convicted for the offence punishable under section 376 (1) IPC or not. Hence, according to me, the learned Trial Court has rightly arrived at a finding that the age of prosecutrix on the date of incident was below 16 years. 13. The question now would rest on the pivot that whether the appellant has rightly been convicted for the offence punishable under section 376 (1) IPC or not. 14.It is well settled in law that if an accused is prosecuted for committing sexual offence, the evidence of prosecutrix alone is required to be considered and no corroboration is needed, but, at the same time her testimony should inspire full confidence so as to infer that accused has committed that particular offence. By keeping this well settled law in my mind, I shall now examine the evidence of prosecutrix. 15. I have already held herein above by affirming the finding of learned Trial Court that the age of the prosecutrix was below 16 years on the date of incident. On bare perusal of testimony of the prosecutrix, it is gathered that from Mela (fair) when she was returning along with the appellant on the bicycle, he under the false pretext of evacuation carried her nearby a Nala where appellant by undressing himself committed sexual intercourse with the prosecutrix. Specifically, the prosecutrix has stated that appellant inserted penis in her vagina. At this juncture, learned counsel for the appellant submitted that in very specific words the word ‘insertion’ has not been stated by the prosecutrix but simply she has stated that appellant touched his private part upon the private part of the prosecutrix. However, this submission cannot be taken to be true and accepted for the simple reason that further prosecutrix has stated that on account of the penetration by the appellant, the blood started oozing from her private part. Further she has stated that when the appellant touched his private part with her private part it was painful to her. The matter should be visualized from this angle that prosecutrix is a minor and belongs to village community and, therefore, what actually she mean to say has to be inferred. If the appellant would have only touched his penis with the private part of the prosecutrix, certainly blood would not have come out from her vagina and, therefore, it can be inferred that appellant inserted his penis inside the vagina of the prosecutrix. 16. If the appellant would have only touched his penis with the private part of the prosecutrix, certainly blood would not have come out from her vagina and, therefore, it can be inferred that appellant inserted his penis inside the vagina of the prosecutrix. 16. The prosecutrix was cross-examined at length but she remained vivid in her testimony although there was a roving cross examination over her. According to me, the learned Trial Court did not commit any error in placing reliance on the testimony of the prosecutrix. Apart from what I have held hereinabove, on bare perusal of the testimony of Dr. (Smt.) Rama Parihar (PW-10), it is gathered that at the margin of the hymen of the prosecutrix there was congestion at the area of labia minora which was reddish in colour. In para 5 of her testimony the lady doctor further stated that in the MLC report she has clarified that because labia minora was reddish in colour, it would mean that partially the penis was inserted and firmly this lady doctor is saying that on the basis of the report, she is of the view that partially the penis was instead. At this juncture, it would be condign to go through section 375 IPC by paying heed to first explanation wherein the legislature has enacted that “penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape”. There is no law as such that if there is partial penetration, the offence under section 376 IPC will not be proved. On going through the aforesaid explanation, I am of the view that penetration would also include partial penetration and, therefore, according to me, learned Trial Court did not commit any error in convicting the appellant under section 376 (1) IPC. 17. Learned counsel for the appellant has invited my attention to para 7 of the cross-examination of the prosecutrix and submitted that her hymen was found to be intact and, therefore, according to him, it cannot be said that prosecutrix was sexually intercoursed by the appellant. But I do not find any substance in such submission for the simple reason that it is always not necessary that on account of sexual intercourse the hymen would tear. 18. But I do not find any substance in such submission for the simple reason that it is always not necessary that on account of sexual intercourse the hymen would tear. 18. The decision of Supreme Court Radhu (supra) placed reliance by learned counsel for the appellant is not at all applicable in the present case because in that case the testimony of the prosecutrix was not inspiring the confidence and in those circumstances, it was held by the apex Court that the charge of rape is not proved. This decision is not entirely against the prosecution because it is specifically held in this decision that absence of injuries on the private part of the victim will not by itself falsify the case of rape, nor can be construed as evidence of consent, nor the opinion of a doctor that there was no evidence of any sexual intercourse or rape sufficient to disbelieve the victim. The Single Bench decision of this Court Chain Singh (supra) is also not applicable in the present case because in that case prosecutrix was not found to be minor and in those circumstances, it was held that she was consenting party. However, in the present case, the situation is altogether different since the age of prosecutrix has been proved to be below 16 years and hence, I hereby affirm the judgment of conviction of the appellant by which he has been convicted under section 376 (1) IPC. 19. The question would now rest on the pivot that what should be the adequate punishment. Since the charge was framed against the appellant under section 376 (1) and not 376 (2) (f) IPC and he has been convicted by the Trial Court for that offence, therefore, according to me, it would be appropriate to pass minimum sentence of 7 years. The period of sentence of 10 years RI as awarded by learned Trial Court is hereby reduced to 7 years RI. 20. Resultantly, this appeal succeeds in part. The conviction of appellant under section 376 (1) IPC is hereby affirmed. However, the sentence is reduced from 10 years RI to 7 years RI. The appellant is on bail. The period of sentence of 10 years RI as awarded by learned Trial Court is hereby reduced to 7 years RI. 20. Resultantly, this appeal succeeds in part. The conviction of appellant under section 376 (1) IPC is hereby affirmed. However, the sentence is reduced from 10 years RI to 7 years RI. The appellant is on bail. His bail bonds stand cancelled only upon his surrender before learned Trial Court on or before 7th of May, 2012, failing which the learned Trial Court shall issue arrest warrant against him and shall also issue show cause notice to his surety and may pass necessary orders in accordance to the law. However, if appellant offers his arrest on or before 7th May, 2012, he shall be sent to undergo the remaining part of sentence and in that case, the bail bonds of the appellant shall stand cancelled. 21. Registry of this Court is hereby directed to send the record of the learned Trial Court posthaste so as to reach that Court much prior to 7th May, 2012. Registry is further directed to send the original bail bond papers of the appellant to learned Trial Court. A photocopy of the aforesaid bail bond papers shall be kept in the record of this file.