JUDGMENT Hon’ble B.S. Verma, J. Since both the appeals arise out against the same judgment and order dated 31-5-2011, passed by Addl. District and Sessions Judge/ 4th F.T.C. Dehradun in Sessions Trial No. 110/2009 State versus Atiq and Raja, therefore, for the sake of convenience, they are being decided by this common judgment. 2. The learned Addl. Sessions Judge has convicted both the accused/appellants Atiq and Raja U/Ss 376 (2)(g) and 452 I.P.C. and both of them were sentenced to undergo R.I. for ten years U/S 376(2)(g) I.P.C. and to pay a fine of Rs. 10,000/- and in default of payment of fine to further undergo S.I. for three months. Both of them were sentenced to undergo R.I. for two years U/S 452 I.P.C. and to pay a fine of Rs. 5,00/- each and in default of payment of fine to further undergo S.I. for a month. All the sentences were directed to run concurrently. 3. Brief facts of the prosecution case are that Prem Singh S/o Late Sri Dilbar Singh R/o Village Kulhal P.S. Vikas Nagar District Dehradun lodged a complaint dated 21.3.2009 at P.S. Kotwali Vikas Nagar with the allegations that on 19-3-2009 he and his wife had gone out to their work and their daughter, i.e. prosecutrix aged 13 years was alone at their home. Accused Atiq and Raja entered their house and committed rape upon his daughter. The children of the complainant had also reached his house after attending their school and both the culprits fled away from the spot after extending threats to the prosecutrix. Both the culprits were seen fleeing away from the spot by Ashok Kumar and Kalu Ram and on his return to home his daughter narrated the whole incident to him. On the basis of written report Ext. Ka.3, Chick F.I.R. Ext. Ka.10 was prepared and a case crime No. 82/2009 U/Ss 452/376/506 I.P.C. was registered against both the accused persons in the G.D. No. 14 dated 21.3.2009 at 10.30 am, copy of G.D. is Ext. Ka.11. The investigating officer visited the place of occurrence and prepared site plan Ext. Ka.12. The I.O. arrested the accused Atiq on 27.3.2009 and prepared arrest memos Ext. Ka.13 and Ka. 14. The another accused Raja @ Rajendra was also arrested on the same day and arrest memos Ext. Ka.15 and Ka.16 were prepared. Ka.11. The investigating officer visited the place of occurrence and prepared site plan Ext. Ka.12. The I.O. arrested the accused Atiq on 27.3.2009 and prepared arrest memos Ext. Ka.13 and Ka. 14. The another accused Raja @ Rajendra was also arrested on the same day and arrest memos Ext. Ka.15 and Ka.16 were prepared. The prosecutrix was medically examined by the doctor on 21.3.2009 and prepared medical report Ext. Ka.4 and also prepared supplementary report dated 24.3.2009, Ext. Ka.5. The statement of prosecutrix was also recorded the by Judicial Magistrate Vikas Nagar U/S 164 Cr.P.C. which is Ext.Ka.1 on record. The investigating officer are completion of investigation, submitted charge sheet Ext. Ka.19 against the accused persons. 4. The Judicial Magistrate concerned committed the case to the court of sessions for trial. 5. The Sessions Court framed charges U/Ss 452/376 (2)(g) I.P.C. against the accused persons, who pleaded not guilty and claimed to be tried. 6. The prosecution to prove the guilt of the accused examined as many as eight witnesses. P.W.1, prosecutrix, P.W.2, Prem Singh, P.W.3, Rai Singh, P.W.4, Dr. Sujata Singh, P.W.5, Ashok Kumar, P.W.6, Dr. Sanjay Jain, P.W.7, Smt. Saroj Sharma and P.W.8, Raghubeer Singh I.O. of the case. 7. The accused persons in their statement recorded U/S 313 Cr.P.C. denied the prosecution case and have alleged that they have been falsely implicated in the case. In their defence, they took the plea of alibi and have examined Mohd. Kurbaan D.W.1. 8. The learned Addl. Sessions Judge, after considering the evidence on record and having heard counsel for the parties, held both the accused persons guilty of offences U/S 452 and 376(2)(g) I.P.C. and accordingly passed the sentences against them. 9. Feeling aggrieved, these appeals have been preferred by the accused/appellants. 10. I have heard learned counsel for the parties and perused the record. 11. Learned Counsel appearing on behalf of the appellants have submitted that the F.I.R. has been lodged with considerable delay, after due consultation and deliberations and satisfactory explanation has been given by the complainant for the delay and the whole prosecution case based on such an F.I.R. does not inspire confidence. 12. The above submission has no substance. P.W.2, Prem Singh, father of prosecutrix is the complainant in the case. 12. The above submission has no substance. P.W.2, Prem Singh, father of prosecutrix is the complainant in the case. The incident is said to be of 19.3.2009 and the written report has been lodged at the police station on 21.3.2009 at 10.30 a.m. P.W.2, Prem Singh in the cross-examination has stated on the day of occurrence he had gone to police chauki and no one was there as the police personnel had gone out for some important task. He further stated that at the first instance he was not thinking to lodge the F.I.R. for the sake of reputation of his daughter. On 20.3.2009 he had sent his wife on work and he remained thinking of reputation of the daughter and when he made up his mind not to spare the culprits, he lodged the F.I.R. on 21.3.2009 in the morning. The explanation offered by the complainant seems to be plausible and the delay has been explained satisfactorily. In my opinion the delay in lodging the F.I.R. is not fatal to the prosecution case. 13. The evidence of prosecutrix P.W.1, is important. She has given on oath statement that on 19-3-2009 she was all alone at her house and both the accused persons Atiq and Raja entered the house and started misbehaving with her. She further stated that accused Atiq entered into house from the front door and accused Raja from back door and caught her hand and shut her month. Accused Raja closed the door and started misbehaving with her. She further stated that first accused Atiq and then accused Raja committed rape upon her and when the accused were doing the misdeed with her, her sisters and brother had also arrived from the school. Thereafter both the accused fled away from the spot after extending threat of life not to disclose the incident, otherwise they would kill her. She also explained the misdeed of accused persons and stated that they entered their urine organ into her urine organ. She further stated that her statement U/S 164 Cr.P.C. were also recorded by the Magistrate. From the statement of this witness it is proved that both the accused entered her house, caught hold of her and committed rape upon her against her will. 14. P.W.2, Prem Singh Thapa, complainant has deposed that his daughter was aged about 12-13 years. She further stated that her statement U/S 164 Cr.P.C. were also recorded by the Magistrate. From the statement of this witness it is proved that both the accused entered her house, caught hold of her and committed rape upon her against her will. 14. P.W.2, Prem Singh Thapa, complainant has deposed that his daughter was aged about 12-13 years. On 19-3-2009 he and his wife had gone at Paunta tea shop and his other children Ram Singh and Pooja had gone to school and Km. Sita was alone at home. At about 5.30-6.00 p.m. when he returned to his home his son Ram Singh informed him that accused persons had committed rape upon his daughter and she could not tell him because she was feeling ashamed. He further deposed that he had gone to police chauki but nobody was found there. This witness has proved the written report Ext. Ka.3. He further deposed that after lodging the complaint, prosecutrix was medically examined. 15. P.W.3, Ram Singh is the witness who had seen the accused persons fleeing away from his house when he had returned from is school. He has deposed that on 19-3-2009 at about 2 p.m. his sister Pooja and he were coming from School and saw that Atiq and Raja were running towards Yamuna holding their trousers. Thereafter his sister Km. Sita told him that both the accused persons committed rape on her. In the evening at 7.30 p.m. when his father returned home from his work, he narrated the incident to him. 16. All the above witnesses have been cross-examined at a length, but nothing could be elicited from it which may render their statements unworthy and disbelievable. No suggestion has been put to these witnesses as to why they have given the statement against the accused persons. No suggestion is put to the witnesses about any enmity between the accused and the complainant side. In my opinion the statements of these witnesses are reliable and trustworthy. 17. P.W.4, Dr. Sujata Singh has medically examined the prosecutrix and has prepared medical report Ext. Ka.4. According to the medical report, breasts of prosecutrix were not well developed, axillary hair not developed. In the supplementary report the doctor found no marks of injury on external or private parts of body. Vagina was admitting one finger easily and there was no discharge seen. The urine pregnancy test was negative. Ka.4. According to the medical report, breasts of prosecutrix were not well developed, axillary hair not developed. In the supplementary report the doctor found no marks of injury on external or private parts of body. Vagina was admitting one finger easily and there was no discharge seen. The urine pregnancy test was negative. Vaginal smear was negative for spermatozoa. All epiphysis of three joints ( x-ray elbow, knee and writ) were not fused. In the opinion of the doctor, according to pathological report the age of the prosecutrix was above 12 years and less than 15 years. However, no definite opinion about rape could be given by the doctor. This witness in her cross-examination has stated that there was swelling in her uterus in ultrasound and it may be possible due to infection. The doctor also admitted that it is not necessary that in the case of rape hymen is found ruptured. She further stated that in the medical report she has not mentioned that hymen of prosecutrix was found ruptured because where one finger easily admits no definite opinion can be given about the rupture of hymen. In the cross-examination this witness further stated that where a small girl is raped by two persons chances of friction in vagina are possible but which is not in the case at hand. 18. It is settled law that to constitute the offence of rape, it is not necessary that there should be complete penetration of the penis with the emission of semen and the rupture of hymen. Partial penetration of the penis with the labia majora or the vulva or pudenda, with or without the emission of semen, or even an attempt at penetration is quite sufficient for the purpose of law. Therefore, it is quite probable that the rape is possible without producing any injury to the genitals or leaving any seminal stains. 19. P.W.4, Dr. Sujata Singh in her cross-examination has admitted that there was slight swelling in the uterus and it may be due to infection. The prosecutrix in her statement on oath has given a categorical statement that both the accused had committed forcible rape upon her. In her cross-examination this witness further explained that the accused persons put their urinal organ in her urinal organ. The above statement of the prosecutrix is natural and trustworthy. The prosecutrix in her statement on oath has given a categorical statement that both the accused had committed forcible rape upon her. In her cross-examination this witness further explained that the accused persons put their urinal organ in her urinal organ. The above statement of the prosecutrix is natural and trustworthy. Defendant has not been able to assign any reason as to why the prosecutrix would depose falsely against the accused at the cost of her reputation and judicial notice can be taken of the fact that ordinarily the family of the victim would not intend to get a stigma attached to the victim with a view to implicate a person in the offence of rape. It is settled principle of law that the medical evidence itself being a part of the evidence is required to be appreciated in the context of ocular evidence and other circumstances surrounding thereto. 20. The accused/appellants in their defence got examined D.W.1 Sri Mohammed Kurban who has stated that he is doing the work of white-washing from last 7-8 years and he knew Atiq and Rajendra working with him. In the year 2009 in village Nawad Himachal Pradesh he did the work of whitewash from January 2009 to 31st March 2009 and at that time both these accused persons were daily wagers and on 19-3-2009 they were working with him since 9 o’clock to 5 p.m. at the home of Patwariji and work was completed on 31.3.2009. In the cross-examination this witness has admitted that he was not maintaining attendance register or some record of daily wages of these accused persons. He also admitted that he is not having any written agreement of the work done by him. He also failed to tell the name of Patwariji at whose house he was doing the work of white-wash. This witness also stated in his cross-examination that whenever he does the work outside Saharanpur, he use to engage the labourer from the vicinity of the working place. The statement of this witness is totally false. The Police on 27-3-2009 arrested the accused Atiq and accused Raja was arrested on 28-3-2009 and arrest memos Ext. Ka. 13 to Ka. 16 were prepared in the presence of the witnesses and the arrest memos also bear the signatures of the accused persons. The statement of this witness is totally false. The Police on 27-3-2009 arrested the accused Atiq and accused Raja was arrested on 28-3-2009 and arrest memos Ext. Ka. 13 to Ka. 16 were prepared in the presence of the witnesses and the arrest memos also bear the signatures of the accused persons. The plea of alibi taken by the accused persons has not been proved and the learned trial court has correctly rejected the plea of alibi. 21. Learned counsel appearing on behalf of the appellants have submitted that according to prosecutrix accused Atiq committed rape on her for half an hour and accused Raja has committed rape on her for ten minutes and this statement of prosecutrix is totally against the medical report as no injury was found by the doctor on the private part of the prosecutrix. 22. P.W.4, Dr. Sujata Singh in her cross-examination has stated that in ultrasound swelling was detected in the uterus of prosecutrix and it may be possible due to infection. The doctor also admitted that it is not necessary that in the case of rape hymen is found ruptured. She further stated that in the medical report she has not mentioned that hymen of prosecutrix was found ruptured because where one finger easily admits no definite opinion can be given about the rupture of hymen. In the cross-examination this witness further stated that where a small girl is raped by two persons chances of friction in vagina are possible but which is not in the case at hand. From medical evidence it is quite clear that the doctor has not given any opinion about rupture of hymen of prosecutrix but swelling was detected on her private part in the ultrasound. By not giving opinion of rupture of hymen by the doctor, it does not mean that rape was not committed on the prosecutrix. The doctor further found that vagina was admitting one finger and in the case where vagina admits the finger there is no need to give opinion of rupture of hymen, therefore, inference can be drawn that the hymen of the proseuctrix was ruptured. 23. The important aspect of the case is that the defence has no case either of previous enmity between the parties or there was love affairs. 23. The important aspect of the case is that the defence has no case either of previous enmity between the parties or there was love affairs. The sole testimony of prosecutrix is reliable and trustworthy and cannot be discarded simply for the reasons that the doctor did not find any injury on her body or private part and the doctor could not give definite opinion of rape. The consent of prosecutrix also has no importance as her pathological age was found by the doctor between 12 and 15 years and the prosecutrix and her father had given her age 13 years at the time of incident. The date of birth certificate issued by the Principal of the College has also been proved as Ext. Ka.9 and according to this certificate her date of birth is 20-4-1996. The incident had occurred on 19-3-2009 therefore according the school certificate also her age was about 13 years. Thus the prosecution has proved beyond all reasonable doubt that the prosecutrix was a minor girl at the time of incident. 24. The prosecution has been able to prove the guilt of the accused/appellants U/S 452 I.P.C. and U/S 376 (2)(g) I.P.C. 25. So far as the sentences awarded against the accused/appellants are concerned, learned counsel appearing on behalf of the appellants have submitted that the accused/appellants are young boys and whole of their life is on stake. It is further contended that they are the sole bread-earner of their family, therefore, a lenient view should be taken in awarding the sentence to them. 26. Both the accused/appellants have given their age as 22 years in their statement U/S 313 Cr.P.C. therefore looking to their young age and their responsibility towards their family, as well as the facts and circumstances of the case, in my opinion the sentence of ten years R.I. passed against the accused/appellants by the trial court seems to be severe punishment and the same needs to be reduced and in my opinion a sentence of seven years R.I. U/s 376 (2)(g) I.P.C. will meets the ends of justice. 27. Thus, in view of discussion made in the foregoing paragraphs, the conviction of both the accused/appellants recorded by the trial court U/Ss 452 and 376(2)(g) I.P.C. is maintained. The sentence of two years passed by the trial court against the appellants U/S 452 I.P.C. and to pay a fine of Rs. 27. Thus, in view of discussion made in the foregoing paragraphs, the conviction of both the accused/appellants recorded by the trial court U/Ss 452 and 376(2)(g) I.P.C. is maintained. The sentence of two years passed by the trial court against the appellants U/S 452 I.P.C. and to pay a fine of Rs. 500/- each and in default of payment of fine to undergo S.I. for one month is maintained. However, the sentence of ten years R.I. passed by the trial court against both the accused/appellants U/S 376(2)(g) I.P.C. is reduced to seven years and the fine of Rs. 10,000/- imposed by the trial court against both the appellants U/S 376(2)(g) I.P.C. shall remain intact and in default of payment of fine each of them shall have to undergo S.I. for a further period of three months. All the sentences shall run concurrently. 28. With the above modification, in the sentence passed by trial court against both the accused/appellant U/S 376 (2)(g) I.P.C., both the appeals are partly allowed. 29. Both the accused/appellants are already in jail and they shall be detained in prison to serve out the sentences passed against them. 30. Let the record be transmitted to the trial court concerned forthwith for compliance.