Judgment : This Criminal Jail Appeal, has been preferred against the judgment and order dated 16-3-2009, passed by Sessions Judge, Dehradun, in Sessions Trial No. 88 of 2008, State Vs. Sarju, whereby the accused/appellant Sarju was convicted U/S 376 (2) (f) of the I.P.C. and was sentenced to undergo 10 years R.I. and imposed a fine of Rs. 5000/- and in default of payment of fine to further undergo six months R.I. 2. The prosecution case, in brief, is that on 19-5-2008, complainant Amit Thapa S/o Bheem Bahadur, handed over a written report at P.S. Rishikesh to this effect that accused Sarju is residing in his house as a tenant from two months, whose wife had died about two years back and he has a son and a daughter (aged seven) year. Accused Sarju often comes his house in drunken condition and used to beat his daughter and according to his daughter, the accused does misdeed with her. It was also mentioned in the written report that on 18-5-2008 at about 2 am in the night accused Sarju was doing marpit with his daughter and when the complainant asked the daughter of the accused, she told him that the accused does misdeed with her and she does not want to sleep with him. 3. On the basis of written report Ext. Ka.1, chick F.R.I. Ext. Ka.6 was prepared and case crime No. 189/2008, U/Ss 376/323 I.P.C. was registered against the accused, the carbon copy of G.D. of registration of the case is Ext. Ka. 7. 4. The case was investigated by S.I. Om Prakash Arya. He arrested the accused on 20-5-2008 and prepared arrest memo Ext. Ka.15 and Ka.16. He also took into custody the underwear of the accused and prepared memo Ext. Ka.9. He also took custody of the cloths of the prosecutrix vide memo Ext. Ka.2 and prepared site-plan Ext. Ka.14 of the place of occurrence. After completion of investigation charge sheet Ext. Ka.14 was submitted against the accused. 5. The Judicial Magistrate, Rishikesh, vide his order dated 25-7-2008 committed the case to the court of Sessions. 6. The Sessions Judge, Dehradun framed charge U/S 376 I.P.C. against the accused. The accused pleaded not guilty and claimed his trial. 7. Ka.14 of the place of occurrence. After completion of investigation charge sheet Ext. Ka.14 was submitted against the accused. 5. The Judicial Magistrate, Rishikesh, vide his order dated 25-7-2008 committed the case to the court of Sessions. 6. The Sessions Judge, Dehradun framed charge U/S 376 I.P.C. against the accused. The accused pleaded not guilty and claimed his trial. 7. The prosecution in order to prove its case got examined, P.W.1, Amit Thapa, complainant, P.W.2, Smt. Tara Devi, mother of the complainant, P.W.3, Meenu, prosecutrix, P.W.4, Shanti Devi, P.W.5, Dr. Sangita Sharma, P.W.6, Dr. Guman Singh Rana, P.W.7, S.I. Narendra Singh, and P.W.8, S.I. Om Prakash Arya, I.O. of the case. 8. The accused in his statement U/S 313 Cr.P.C. denied the charge of rape. However he admitted that he had did marpit with the girl. He also admitted the age of the girl as seven years. He also admitted this fact that Km. Meenu was living with him and his son was residing at Delhi with Smt. Shanti Devi. The accused also alleged that his daughter Km. Meenu used to go to the house of landlord and for this reason he was annoyed with his daughter. His son Mansa and daughter Meenu were born from his wife Smt. Aarti. The accused has also taken the defence that he is impotent and is incapable of sexual intercourse. 9. The learned Sessions Judge, after considering the evidence on record and hearing the parties, found the accused guilty of offence punishable U/S 376 (2)(f) of the I.P.C. and accordingly convicted him. 10. Feeling aggrieved, the accused has preferred this appeal from the jail. 11. I have heard learned Amicus Curiae on behalf of the appellant and learned Addl. G.A. on behalf of the State and perused the evidence on record. 12. The accused/appellant has been convicted for the offence of committing rape upon his own daughter aged about seven years. The witnesses of facts examined by the prosecution are P.W.1, complainant Amit Thapa, P.W.2, Smt. Tara Devi, landlady of the accused, P.W.3, Km. Meenu and P.W.4 Shanti Devi. 13. P.W.1, Amit Thapa has proved the written report Ext.Ka.1. He has stated that on 18-5-2008, the accused was his tenant. The daughter of the accused, aged about 7-8 years, was living with the accused. In the night at about 1-2 am, the accused was beating his daughter Meenu. Meenu and P.W.4 Shanti Devi. 13. P.W.1, Amit Thapa has proved the written report Ext.Ka.1. He has stated that on 18-5-2008, the accused was his tenant. The daughter of the accused, aged about 7-8 years, was living with the accused. In the night at about 1-2 am, the accused was beating his daughter Meenu. Hearing the weeping of the girl, this witness, his mother, father, sister and sister-in-law went outside the room of the accused and when they went inside the room of the accused they saw that Meenu was weeping and when they asked her the cause of weeping, the girl told them that her father used to do misdeed with her, he took out her cloths from her body and she would not sleep with her father. Thereafter in the next day this witness got prepared the written report and handed it over at the police station. This witness has also stated that the cloths worn by the girl were taken into custody by police in his presence. He has proved the memo Ext. Ka.2. This witness was cross-examined at length, but nothing incriminating has come from it which may render the testimony of this witness as unreliable. 14. P.W.2, Smt. Tara Devi is the mother of complainant Amit Thapa. This witness has fully supported the statement of P.W.1, Amit Thapa and narrated the fact that when they went at the house of accused Km. Meenu had complained them about the misdeed of her father. In the cross-examination this witness has clarified that Km. Meenu had told them that her father after opening his trouser’s string, used to climb upon her, but this witness has admitted that accused had not done any wrong with Meenu in her presence. The statement of this witness is reliable and trustworthy. 15. P.W.3, Km. Meenu is the prosectrix. The court has observed the age of the girl about 7-8 years and asked some questions to examine her competency to give statement and the court found her capable of giving statement. The prosecutrix gave on oath statement that her mother’s name was Mintoo, who had died near Diwali. After her death, her father used to sleep her with him. She has further stated that her father after putting out her cloths, used to do wrong with her and when she objected to it, her father used to give threat to kill her. After her death, her father used to sleep her with him. She has further stated that her father after putting out her cloths, used to do wrong with her and when she objected to it, her father used to give threat to kill her. This witness also corroborated the prosecution case that in the night when her father put out her cloths from her body she started weeping then her father beated her and on her weeping, her landlord came there and she had narrated the whole story to them and then the landlord had carried her to police station. The witness pointing towards the accused Sarju has stated that he is her father. In her cross-examination this witness has explained that misdeed means, the accused used to put his toilet-organ to her toilet-organ. This witness also stated that when her father had done misdeed with her, blood had come out, and she was pained. From the statement of this witness, it is quite clear that accused and Km. Meenu were living together and the accused used to put out her cloths and did sexual intercourse with her. The statement of the child witness is natural and trustworthy. 16. The prosecutrix was also examined U/s 164 Cr.P.C. and she in her statement recorded U/S 164 Cr.P.C. has narrated the prosecution case. 17. There appears to be no reason as to why she would state falsely against her own father. 18. Now it is to be seen whether rape was committed by the accused upon Km. Meenu or the accused was not successful in committing the rape and she had attempted to commit rape upon the girl. 19. The incident is said to be of the night in between 18th and 19th May, 2008 and the girl was medically examined by the doctor on 20-5-2008 and the doctor P.W.4, Sangita Sharma had prepared the medical report Ext. Ka.3. The doctor found that auxillary hair of the girl were not developed, breasts were not developed. No lump felt. No mark of external injury seen on any part of body and no menses started. 20. On examination of private part, pubic hair not developed. No matting itching. Hymen was intact. Slightly lateral wall of vaginal inflation was seen. No bleeding was on touch. No injury on private part. On touching outer portion of vagina, the girl was feeling pain. No mark of external injury seen on any part of body and no menses started. 20. On examination of private part, pubic hair not developed. No matting itching. Hymen was intact. Slightly lateral wall of vaginal inflation was seen. No bleeding was on touch. No injury on private part. On touching outer portion of vagina, the girl was feeling pain. The vaginal swab was taken and two slides of vaginal swab was sent to pathologist and for confirmation of age x-ray was advised. The doctor could not give definite opinion about rape upon the girl. This witness further stated that pathology report of Km. Meenu had come before her and according to pathology report no spermatozoa was found in the vaginal swab and the age of Km. Meenu was above seven years but below twelve years. In the cross examination this witness has stated that when she had medically examined Km. Meenu, her cloths of private part were put out and she had not found any blood on her cloths. 21. P.W.6, Dr. Guman Singh Rana, had taken x-ray of wrist, elbow and knee joints of Km. Meenu and had prepared report Ext. Ka.5. This witness has stated that age of Km. Meenu is above seven years and below twelve years. 22. The report of Forensic Science Laboratory Uttarakhand has been proved Ext. Ka.18. According to this report semen was detected on under-wear, kurta, salwar and kids underwear. 23. In the case of Koppula Venkat Rao versus State of A.P. reported in 2004(2)ACR 1053 (SC), it has been held that the sine qua non of the offence of rape is penetration, and not ejaculation. Ejaculation without penetration constitutes an attempt to commit rape and not actual rape. Definition of rape as contained in Section 375 I.P.C. refers to ‘sexual intercourse’ and the explanation appended to the section provides that penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape. Intercourse means sexual connection. 24. In the case of Aman Kumar and another versus State of Haryana, reported in (2004) 4 Supreme Court Cases 379, it has been held in para-7 as under:- “Penetration is the sine qua non for an offence of rape. Intercourse means sexual connection. 24. In the case of Aman Kumar and another versus State of Haryana, reported in (2004) 4 Supreme Court Cases 379, it has been held in para-7 as under:- “Penetration is the sine qua non for an offence of rape. In order to constitute penetration, there must be evidence clear and cogent to prove that some part of the virile member of the accused was within the labia of the pudendum of the woman, no matter how little (see Joseph Lines, IC &K 893). It is well known in the medical world that the examination of smegma loses all importance after twenty-four hours of the performance of the sexual intercourse. [see S.P. Kohli (Dr) v. High Court of Punjab and Haryana (1979) 1 SCC 212 ]. In rape cases, if the gland of the male organ is covered by smegma, it negatives the possibility of recent complete penetration. If the accused is not circumcised, the existence of smegma around the corona gland is proof against penetration, since it is rubbed off during the act. The smegma accumulates if no bath is taken within twenty-four hours. The rupture of hymen is by no means necessary to constitute the offence of rape. Even a slight penetration in the vulva is sufficient to constitute the offence of rape and rupture of the hymen is not necessary. Vulva penetration with of without violence is as much rape as vaginal penetration. The statute merely requires evidence of penetration, and this may occur with the hymen remaining intact. The actus reus is complete with penetration. It is well settled that the prosecutrix cannot be considered as accomplice and, therefore, her testimony cannot be equated with that of an accomplice in an offence of rape. In examination of genital organs, state of hymen offers the most reliable clue. While examining the hymen, certain anatomical characteristics should be remembered before assigning any significance to the findings. The shape and the texture of the hymen is variable. This variation, sometimes permits penetration without injury. This is possible because of the peculiar shape of the orifice or increased elasticity. On the other hand, sometimes the hymen may be more firm, less elastic and gets stretched and lacerated earlier. Thus a relatively less forceful penetration may not give rise to injuries ordinarily possible with a forceful attempt. This variation, sometimes permits penetration without injury. This is possible because of the peculiar shape of the orifice or increased elasticity. On the other hand, sometimes the hymen may be more firm, less elastic and gets stretched and lacerated earlier. Thus a relatively less forceful penetration may not give rise to injuries ordinarily possible with a forceful attempt. The anatomical feature with regard to hymen which merits consideration is its anatomical situation. Next to hymen in positive importance, but more than that in frequency, are the injuries on libia majora. These, viz. libia majora, are the first to be encountered by the male organ. They are subjected to blunt forceful blows, depending on the vigour and force used by the accused and counteracted by the victim. Further examination of the female for marks of injuries elsewhere on the body forms a very important piece of evidence. To constitute the offence of rape, it is not necessary that there should be complete penetration of the penis with emission of semen and rupture of hymen. Partial penetration within the labia majora of the vulva or pudendum with or without emission of semen is sufficient to constitute the offence of rape as defined in the law. The depth of penetration is immaterial in an offence punishable under Section 376 I.P.C.” 25. In the case at hand the girl in her cross-examination has clarified that the meaning of misdeed is that her father used to put her toilet-organ into her toilet-organ. It means that accused had put his penis into the vagina of the girl. In the medical examination the doctor found the hymen intact, no injury mark on private part or all over the body of the girl. However slightly inflammation was seen on lateral wall of vagina and the on touching outer portion of vagina the girl was experiencing pain. The doctor could not give any definite opinion that rape was committed upon the girl. 26. P.W.5, Dr. Sangita Sharma in para-7 of her examination-in-chief has stated that if some person attempts to do sexual intercourse with a girl of like age of the prosecutrix, and in this process if there is slightly penetration, then in such situation in the lateral part of vagina of the girl there would be inflammation like in the instant case, and on touching vagina pain is possible. Thus the doctor has not denied the possibility of slight penetration in the present case and slight penetration is sufficient to constitute the offence of rape and rupture of the hymen is not necessary. In the above cited case of Aman Kumar, the Apex Court has observed that the Even a slight penetration in the vulva is sufficient to constitute the offence of rape and rupture of hymen is not necessary. Vulva penetration with or without violence is as much rape as vaginal penetration. The statute merely requires evidence of penetration, and this may occur with the hymen remaining intact. It has further been observed that to constitute the offence of rape, it is not necessary that there should be complete penetration of the penis with emission of semen and rupture of hymen. Partial penetration within the labia majora of the vulva or pudendum with or without emission of semen is sufficient to constitute the offence of rape as defined in the law. The depth of penetration is immaterial in an offence punishable U/S 376 I.P.C. 27. Thus to constitute the offence of rape, it is not necessary that there should be complete penetration of the penis with emission of semen and rupture of hymen. Partial penetration within the labia majora of the vulva or pudendum with or without emission of semen is sufficient to constitute the offence of rape as defined in the law. Thus, it is to be seen whether experiencing pain on the outer portion of vagina and inflammation on the lateral wall of vagina of the girl found by the doctor, comes within the category of penetration. This swelling/redness on the lateral wall of the vagina of the girl and on touching of outer portion of vagina by the doctor the girl experienced pain, coupled with the statement of the girl that the accused had put her toilet-organ into her toilet-organ, will cover within the category of slight penetration. The heinous allegation of a girl upon her father cannot be brushed aside and the cannot be excused for his monstrous act. It may be possible that the hymen of the girl was intact and there was no mark of injury on the private part or on any part of the body of girl, therefore, the doctor was not in a position to give definite opinion about rape. It may be possible that the hymen of the girl was intact and there was no mark of injury on the private part or on any part of the body of girl, therefore, the doctor was not in a position to give definite opinion about rape. However the doctor has not given clear-cut opinion that no rape was committed upon the girl and simply on this basis it cannot be concluded that penetration was not there. The observation of the doctor P.W.5, in para-7, that if some person attempts to do sexual intercourse with a girl of like age of the prosecutrix, and in this process if there is slightly penetration, then in such situation in the lateral part of vagina of the girl there would be inflammation like in the instant case, and on touching vagina pain is possible. 28. Here it may be noted that the investigation officer had taken into custody the underwear of the accused and the salwar and kids underwear of the girl and these articles were sent to chemical examination and the Forensic Science Laboratory has given the report that semen was found on these articles and this fact also strengthens the statement of the girl that the accused had been successful in completing his lust with the girl. 29. Learned Amicus Curiae has submitted that the accused was impotent and was not capable of committing rape and this circumstance completely rule out the possibility of committing rape by the accused upon the girl. 30. I do not find any substance in the above submission of learned counsel for the accused, firstly on the ground that if the accused was impotent and was not capable of intercourse, he could very well got himself examined by the doctor and produce evidence in this direction before the court and secondly the contention of the learned Amicus Curiae cannot be accepted for the reason that the Forensic Science Laboratory had found semen on the underwear of the accused and the cloths of the victim. This circumstance goes against the accused that has taken false excuse to save himself from the crime. 31. P.W.4, Smt. Shanti Devi is the elder sister of deceased Mintoo (wife of accused) and this witness has been examined to prove that after the incident the girl was handed over to her by the police. 32. This circumstance goes against the accused that has taken false excuse to save himself from the crime. 31. P.W.4, Smt. Shanti Devi is the elder sister of deceased Mintoo (wife of accused) and this witness has been examined to prove that after the incident the girl was handed over to her by the police. 32. P.W.7 S.I. Narendra Singh has drawn the chick F.I.R. on the basis of written report and had registered the case in G.D. This witness has proved these documents. 33. P.W.8, S.I. Om Prakash Arya, I.O. of the case has narrated about the investigation and has proved the prosecution papers prepared by him during investigation and there is nothing improbable in his statement which may reflect towards any defect in the investigation. 34. In view of the discussion made in foregoing paragraphs of the judgment, I do not find any infirmity in the conclusion drawn by the learned Sessions Judge holding the accused/appellant guilty of Section 376 (2)(f) I.P.C. and sentencing him to undergo R.I. for 10 years and imposing fine of Rs. 5,000/- against the accused/appellant. 35. The appeal lacks merit and is hereby dismissed. The impugned judgment and order dated 16-9-2009, passed by the trial court is affirmed. 36. The accused/appellant is already in jail and he shall be detained in prison to serve out the sentences passed against him.