JUDGMENT Normally, a child wakes up early in the morning every day, remains cheerful all along the day, inspires his/her parents and appears having God particle hidden into his/her heart. It is common used phrase that “child is the father of man. Children are the future of the society. It is our sacred duty to guide them properly, settle examples of principles for them, provide them protection, proper care, education, love, adoration and what not. But what happened with a little unlucky girl: she was called by the accused (to which the victim used to call Sonu-Bhaiya) inside his room pretending her to watch T.V. and then betrayed her. The accused snatched away the fairy dreams of the little girl. A girl of mature age could have protested, but the innocent victim was not able to do so. The statements of the PW-1 and PW-3 (parents of the victim) depict the aftermath of commission of rape, what happened with the victim. After committing rape, the accused laid the little girl in a cot at the verandah outside his room; for at that time, the girl became unconscious after the incident; when the accused laid the victim in unconscious state in a cot, flies were flying over her mouth while she was sleeping; she was sweating also; on next day also she was not in common state; she was in grimy state but she refused to take bath; on removing her clothes by her mother, her clothes were found bloodstained, which were also sent for laboratory examination and thereafter girl told about the incident. 2. This is a case where this Court is examining the correctness of the testimony of a rape victim (who at the time of incident was about 6 years old and at the time of tendering evidence before the trial Court, was 8 years old) in the light of medical report, which does not support the version of the victim. 3. Heard learned counsel for the parties and perused the Lower Court Record. 4. The facts, leading to the appeal, are that on 22.05.1999 (PW-1) Ishwar Lal, father of Km. Jyoti (victim) lodged a written report (Ext.A-1) with the Superintendent of Police, Dehradun alleging that on 19.05.1999 at 4:00 p.m. he was preparing edible, as he used to sell grams. The accused Sonu took his daughter Km. 4. The facts, leading to the appeal, are that on 22.05.1999 (PW-1) Ishwar Lal, father of Km. Jyoti (victim) lodged a written report (Ext.A-1) with the Superintendent of Police, Dehradun alleging that on 19.05.1999 at 4:00 p.m. he was preparing edible, as he used to sell grams. The accused Sonu took his daughter Km. Jyoti, aged 5 years in his room pretexting her to see television. Thereafter, after committing rape on her daughter, at 6:00 p.m. the accused laid her daughter in a cot outside the room. When his daughter remained lying in unconscious state then, on next day, he noticed that there was bleeding from her vulva, as her clothes were bloodstained. On being inquired, his daughter disclosed that the house owner Sonu committed rape on her. On the basis of written report, a case crime No. 329 of 1999 was registered and a F.I.R. (Ext. A-3) was lodged against the accused Sonu under Section 376, I.P.C. and an entry was made in the General Diary (Ext. A-4). Investigation of the case was entrusted to Sub Inspector A.P. Gautam (PW-6) who during investigation, recorded statements of the witnesses and after making spot inspection, prepared site plan (Ext. A-8). Earlier on 22.05.1999 at 1:00 p.m., Dr. Smt. Asha Gupta-Medical Officer, Women Hospital, Dehradun conducted medical examination of Km. Jyoti and prepared medical examination report Ext.A-6. Thereafter, on 26.05.1999 at 12:30 p.m., on protest and under the orders of CMS, Doon Hospital, a team comprising PW-5 Dr. Gopi Baunthiyal, Medical Officer and one Dr. Pathania, Female Hospital, Dehradun again conducted medical examination of Km. Jyoti. In the medical examination (Ext. A-5), Doctor Gopi Baunthiyal found that at the time of medical examination, the girl was having 3.4.5 height; weight 15 Kg., teeth 5+5/5+5; the girl was fully conscious; well oriented; no marks of external injury was present; axillary and pubic hair were absent and breast was not developed. On being examined internally, the doctor did not find any mark of injury on her private part; hymen was intact and vagina did not admit tip of little finger. Vaginal smear was taken and sent for pathological test. The doctor could not give any opinion about rape. No marks of external injury were present. For determination of age, Km. Jyoti was referred to Radiologist for conducting X-Ray of wrist, elbow, knee and ankle. PW-7 Dr. Vaginal smear was taken and sent for pathological test. The doctor could not give any opinion about rape. No marks of external injury were present. For determination of age, Km. Jyoti was referred to Radiologist for conducting X-Ray of wrist, elbow, knee and ankle. PW-7 Dr. P.K. Nautiyal, Senior Radiologist conducted X-Ray of some organs of Km. Jyoti and prepared report Ext.A-12. He found that there was no fusion of the bones at the wrist joint or elbow, which appeared epiphysis for medial epicondyle and not fused from shaft, the epiphysis of knees and elbow were not fused at the joints. He found carpal bones were five in numbers. Based on this set of examination report, he found that the girl was aged about 5-6 years. On the basis of X-ray report, Dr. Gopi Baunthiyal prepared supplementary report (Ext. A-7), according to which the age of the victim at the time of medical examination was 5-6 years, but no definite opinion about rape could be given. Underwear and frock of Km. Jyoti were sent for chemical examination and report Ext. A-15 was received from the Scientific Officer, Forensic Science Lab, Agra. In said report, it is mentioned that the underwear and frock were found bloodstained, sperm was also found in the underwear, human blood was also found in these clothes and human semen was also found in the underwear. Completion of investigation culminated into filing of charge-sheet Ext. A-11. 5. Statements of the Km. Jyoti-the victim under Section 164, Cr.P.C. were recorded by Addl. Chief Judicial Magistrate, Dehradun on 05.06.1999. In her statement, she stated that Ishwar Lal is her father. Deepak and Suraj are her brothers and Deepika and Arti are her sisters. She could not tell the names of days. She stated that she was watching T.V. in the house of brother-Sonu. It was day not the night. None else was viewing television. Sonu was inside the room, who removed her underwear. When she was asked whether the underwear was removed or was put off by her own, she replied that it was removed. She stated that thereafter brother-Sonu put off his underwear and laid her in a cot and put his penis on her vagina and what happened thereafter, she does not know. 6. When she was asked whether the underwear was removed or was put off by her own, she replied that it was removed. She stated that thereafter brother-Sonu put off his underwear and laid her in a cot and put his penis on her vagina and what happened thereafter, she does not know. 6. Learned Chief Judicial Magistrate, Dehradun on receipt of the charge-sheet, after giving necessary copies to the accused, as required u/S. 207, Cr.P.C., committed the case to the Court of Sessions for trial on 23.11.2000 under Section 209, Cr.P.C. 7. Learned District and Sessions Judge, Dehradun after hearing the parties on 28.04.2001 framed the charge of offence punishable under Sections 363, 366 and 376, I.P.C. against the appellant/accused Sonu alias Pradeep. The charge was read over and explained to the accused, who pleaded not guilty and claimed to be tried. 8. The prosecution, in order to prove its case, got examined PW-1 Ishwar Lal-father of the victim, PW-2 Km. Jyoti-victim, PW-3 Smt. Sushila-mother of the victim, PW-4 Constable Mohan Singh, who lodged F.I.R. and made entry in the G.D., PW-5 Dr. Gopi Baunthiyal, who conducted medical examination, PW-6 SI Ajay Pal Gautam, Investigating Officer, PW-7 Dr. P.K. Nautiyal, Senior Radiologist, PW-8 Jaipal Singh, PW-9 Babu Lal and PW-10 Constable Rohtash Kumar. 9. PW-1 Ishwar lal in his statement has stated that the incident is of 19.05.1999. He was preparing grams. His daughter Jyoti was viewing television in the room of the accused Sonu. It was 4:00 p.m. After committing filthy action with Jyoti, the accused laid his daughter in a cot at verandah outside the room and told him that his daughter is slept, she is sweating and do fanning. He did so. Then he started preparing edibles. At 5:30 p.m. he went market for selling grams. At 9:00-9:30 p.m. when he returned, he took meal and slept. This witness further stated that on next day, he told his daughter to take bath but she refused to do so due to ailment. In that evening, again he went market to sell grams and when he returned from market at 9:30 p.m., his mother and his wife told him that they intend to vacate the house. With exclamation, he enquired and told that there is no dispute with the owner. Then his wife disclosed that the accused Sonu has committed rape on Jyoti. In that evening, again he went market to sell grams and when he returned from market at 9:30 p.m., his mother and his wife told him that they intend to vacate the house. With exclamation, he enquired and told that there is no dispute with the owner. Then his wife disclosed that the accused Sonu has committed rape on Jyoti. Next day, he called his uncle Babu Lal (PW-9) and all of them went in the office of Prem Batra. The accused was called in the office of Prem Batra where the accused confessed his guilt. Next day, i.e. on 22.05.1999, after scribing first information report, same was handed over to SSP. This witness proved the F.I.R. Ext.-A1. 10. PW-2 is Km. Jyoti, at the time of tendering evidence, she was eight years of age and she was in the capacity to understand the questions put to her. She stated that she knows the accused Sonu. She stated that lot of days before she, her parents, sisters and brothers used to live in the house of the accused at Patelnagar. Her father used to prepare and sell grams in the market. In their house, at Patelnager, they had no television. The accused Sonu had television and she used to go in the house of the accused to view television. One evening, she had gone in the house of the accused to view TV. At that time, the accused Sonu was present in his house. He was alone in the house. This witness has stated that on that day, the accused Sonu, himself called her inside to view TV and when she went to view TV, the accused Sonu laid her in a cot and then after removing her underwear the accused put off his underwear. The accused started hurling filthy words, thereafter the accused penetrated his penis into her vagina. Blood came out from her vagina. In the process of penetration, she shrieked. When she shouted for help of her mother, the accused threatened to kill her. At that time she was wearing underwear and frock. Fans were in operation. There was fan in the house of the accused, but it was not moving. After committing rape, the accused took her and laid her in a cot. She was unconscious, she was sweatting. After some time, she regained her conscious. She stated that her underwear and frock were bloodstained. Fans were in operation. There was fan in the house of the accused, but it was not moving. After committing rape, the accused took her and laid her in a cot. She was unconscious, she was sweatting. After some time, she regained her conscious. She stated that her underwear and frock were bloodstained. She further stated that she was medically examined in the hospital. On being inquired by the police, she narrated the incident to the police. She has further stated that her statements were recorded by the Magistrate, where she reiterated the entire incident. This witness has proved the statement recorded under Section 164, Cr.P.C. This witness has also identified the material exhibits Frock Ext.-1 and Underwear Ext.-2. 11. PW-3 is Smt. Sushila- mother of the victim who has stated that 3-3½ years before, they were tenant in the house of the accused Sonu in Patelnagar, Dehradun. The tenancy remained for three months. At that time, her husband was a hawker, who used to sell grams and other edibles. Km. Jyoti is her daughter. She stated that it was evening on 19.05.1999 when the incident took place. Her daughter Jyoti was playing at the verandah of the accused Sonu. She, this witness, was inside her room. Verandah was in front of. Accused Sonu called Jyoti to come into view TV. Jyoti went inside. This witness herself heard the conversation. For a period of one hour, Jyoti did not return back. At 5:00 p.m. this witness saw Jyoti in unconscious state laying in a cot in the verandah. Flies were flying over her mouth, she was sweating also. Accused Sonu enquired in exclamation, what happened to your daughter? Then this witness called upon her daughter Jyoti, but she didn’t reply, as she was unconscious. Her daughter did not disclose anything. Next day, when her father insisted her to take bath, she refused. When witness saw Jyoti grimy, she insisted to change her clothes. In the process of unclothing Jyoti, this witness saw that all her clothes were bloodstained. She kept the underwear and frock with her. When she inquired the cause of blood staining, then Jyoti disclosed entire incident saying that the accused Sonu laid her in a cot and after removing her underwear the accused penetrated his penis into her vagina and when she shrieked, the accused Sonu shut her mouth with his hand. She kept the underwear and frock with her. When she inquired the cause of blood staining, then Jyoti disclosed entire incident saying that the accused Sonu laid her in a cot and after removing her underwear the accused penetrated his penis into her vagina and when she shrieked, the accused Sonu shut her mouth with his hand. She further stated that when her husband returned from hawking, she narrated the entire episode to him with the further request to vacate the house. Thereafter, the FIR was lodged. The underwear and frock of the victim were also handed over to the police. 12. PW-5 is Dr. Gopi Baunthiyal, Medical Officer, who conducted medical on the person of the victim on 26.05.1999 at Female Hospital, Dehradun. This witness proved medical report Ext. A-5, medico legal case (Ext. A-6) prepared by Dr. Smt. Asha Gupta on 22.05.1999 and supplementary report Ext. A-7, according to which at the time of medical examination, age of the victim was 5 to 6 years. PW-7 is Dr. P.K. Nautiyal, Senior Radiologist, who conducted radiological test on the person of the victim and prepared report Ext.A-12. PW-4 is Constable Mohan Singh, who on receiving first information report, prepared Chik Report Ext.-3 and made an entry in the G.D. (Ext. A-4). PW-10 is Constable Rohtash Kumar, who proved recovery memo i.e. frock and underwear (Ext.A14). PW-8 is Jaipal Singh, who was declared hostile and PW-9 is Babu Lal, who has stated that at the time of said incident, the complainant Ishwari Lal alongwith his family was residing in the house of the accused Sonu and before this witness, the accused confessed his guilt. PW-6 is Sub-Inspector Ajay Pal Gautam, Investigation Officer, who during investigation, recorded statement of witnesses, prepared cite plan Ext.A-8, arrested accused, took the prosecutrix for medical examination and also for recording her statement under Section 164, Cr.P.C., sent the clothes of the victim for chemical examination and after completion of investigation submitted charge-sheet against the accused, which is Ext. A-11 on record. 13. A-11 on record. 13. Learned District and Sessions Judge, Dehradun, after considering the statement recorded under Section 164, Cr.P.C., statement of prosecution witnesses, the statements of the accused/appellant under Section 313, Cr.P.C., the medical report of the victim as well as the statement of the doctor, convicted the accused/appellant under Section 376 (2) of the Indian Penal Code, 1860 (for short I.P.C.) and has been sentenced to undergo rigorous imprisonment for ten years with fine of ` 10,000/- under Section 376 (2), I.P.C., and in default of payment of fine further imprisonment for six months. It was directed that the prosecutrix is entitled a sum of ` 8,000/- as compensation out of fine awarded to the accused. 14. Learned Amicus-curiae and the counsel for the accused/appellant Mr. Lokendra Dobhal argued that the guilt of the accused is not proved and the trial Court has wrongly convicted the accused/appellant. Submission of the learned counsel for the appellant is that the prosecution has failed to prove its case beyond reasonable doubt against the accused. They submitted that there is inordinate delay in lodging the F.I.R. as the alleged incident is said to have occurred on 19.05.1999, whereas the F.I.R. has been lodged on 22.05.1999 and there is no explanation of lodging the F.I.R. belatedly. It is contended that in order to prove the guilt of the accused, evidence of Medical Officer is vital. They submitted that in the medical examination, no injury was found on the private parts of the victim, hymen was intact, vagina could not admit tip of little figure, no sign of forceful intercourse was found, inasmuch as there was no penetration of penis in the vagina and the doctor could not give any finding about commission of rape, therefore, commission of crime of rape is not at all proved. It is vehemently contended that before lodging the F.I.R., the accused and his family members were in the apprehension that Sonu (accused) can be implicated in any false case. The counsel appearing for the accused/appellant further submitted that the accused has falsely been implicated due to enmity. Learned counsel for the accused/appellant contended that in FSL report, there is merely mention of human blood, but it is not proved as to whose blood is found in the bloodstained clothes, thus it does not directly connect the accused with the commission of crime. Mr. Learned counsel for the accused/appellant contended that in FSL report, there is merely mention of human blood, but it is not proved as to whose blood is found in the bloodstained clothes, thus it does not directly connect the accused with the commission of crime. Mr. Lokendra Dobhal, Advocate for the appellant by referring paragraph-3 of the judgment reported in (2006)3 SCC (Crl) 373 Yerumalla Latchaiah v. State of A.P., submitted that the appellant is entitled to acquittal. Paragraph-3 of the judgment is reproduced below:- “3. In the present case, age of the victim was only eight years at the time of alleged occurrence. Immediately after the occurrence, she was examined by Dr. K. Sucheritha (PW7) who has stated in her evidence that no injury was found on any part of the body of the victim, much less on private part. Hymen was found intact and the doctor has specifically stated that there was no sign of rape at all. In the medical report, it has been stated that vaginal smears collected and examined under the microscope but no sperm detected. The evidence of the prosecutrix is belied by the medical evidence. In our view, in the facts and circumstances of the present case, the High Court was not justified in upholding the conviction. 15. Learned Assistant Govt. Advocate for the State refuted the submission advanced by learned counsel for the accused and submitted that testimony of the victim and other witnesses is sufficient to prove the case of the prosecution. He submitted that statement given by the victim under Section 164, Cr.P.C. fully corroborates the prosecution story. He contended that in an incident of attempt to rape, the medical report is merely supplementary evidence and it cannot gloss over the testimony of the victim. He submits that in the process of sex, penetration is not necessary, and even if no penetration was done all attempts to commit rape have been done, therefore the solitary and unshaken evidence of victim is sufficient to prove the guilt beyond reasonable doubt. Relying upon the judgment of Hon’ble Apex Court in the case of Mahendra Singh v. State of M.P., reported in (2007) 3 Supreme Court Cases (Cri.) 583 : (2007 AIR SCW 4628), learned Assistant Govt. Relying upon the judgment of Hon’ble Apex Court in the case of Mahendra Singh v. State of M.P., reported in (2007) 3 Supreme Court Cases (Cri.) 583 : (2007 AIR SCW 4628), learned Assistant Govt. Advocate for the State submitted that it is now a well-settled principle of law that in the case of rape conviction can be based on solitary evidence of the victim. He contended that in absence of definite opinion about the rape, the oral testimony of the victim couldn’t be disbelieved. According to learned A.G.A., the statement of the victim is sufficient for conviction. He contended that at the time of said incident, the victim was merely 5 years of age, which is proved on record. He submitted that the delay in lodging the F.I.R. has been explained. He contended that human blood found in the FSL examination is sufficient to prove the guilt beyond reasonable doubt. He contends that the counsel for the defence has taken plea that no blood sample of the accused was taken by the investigating officer in order to match the sample with the human blood found in the bloodstained clothes of the victim at the time of FSL examination, but this question was never put to any of the witnesses examined before the trial Court, therefore no benefit can be given to the accused in absence of any medical report of the accused. 16. I have carefully considered the submissions of learned counsel for the parties. It is true that medical report does not fully support the case of the prosecution as vagina was found intact and no injury was found on private parts of the victim. If facts are seen in totality, then it comes out that it is a case of rape. The victim, who at the time of giving statement, was 8 years old, in her statement clearly stated that accused/appellant called her to his room to see the television. The accused laid her in a cot and then after removing her underwear, the accused/ appellant put off his underwear. The accused/appellant started hurling filthy words and thereafter penetrated his penis into her vagina. Blood came out from her vagina. This statement of the girl is fully supported by the Forensic Science Laboratory Report in which the underwear and frock were found bloodstained. Sperm was also found in the underwear. The accused/appellant started hurling filthy words and thereafter penetrated his penis into her vagina. Blood came out from her vagina. This statement of the girl is fully supported by the Forensic Science Laboratory Report in which the underwear and frock were found bloodstained. Sperm was also found in the underwear. Therefore, the testimony of the victim is found trustworthy. For commission of rape full penetration or full intercourse is not necessary. Small penetration is sufficient for commission of this crime. It is a case where doctor has opined that no definite opinion could be given about commission of rape but testimony of the prosecutrix, in a case of rape, directly alleging the accused for committing rape on her, cannot be disbelieved or ignored. I have also considered the case law (2006) 3 SCC (Cri.) 373 cited by the counsel for the appellant. In that case, medical examination was conducted immediately after the occurrence, whereas in the present case, first medical examination was conducted after 70 hours of the incident and second medical was conducted 7 days after the incident. In the case law, cited by the counsel for the appellant, the doctor opined that there was no sign of rape, whereas in the case in hand, the doctor mentioned that no opinion could be given about the rape. Moreover, in the present case, human blood and semen was also found on the clothes of the victim. Thus, facts of both the cases are different. Considering the facts and circumstances of the case, the accused/ appellant cannot be granted benefit of the judgment cited by the counsel for the appellant. 17. For the preceding reasons, I do not find any force in the appeal and the same is dismissed. The conviction and sentence awarded by the trial Court against accused Sonu alias Pradeep, in respect of offence punishable under Section 376 (2), I.P.C, is hereby affirmed. The accused/appellant is on bail. His bail-bonds are hereby cancelled. The accused/appellant Sonu alias Pradeep be taken in custody immediately to make accused to serve out the sentence awarded to him. Let a copy of this judgment, along with the record of the Court below be sent to the Trial Court. 18. Before parting, this Court would like to observe that in the present case, no proper chemical examination was conducted. Clothes of the victim were not sent of chemical examination in time. Let a copy of this judgment, along with the record of the Court below be sent to the Trial Court. 18. Before parting, this Court would like to observe that in the present case, no proper chemical examination was conducted. Clothes of the victim were not sent of chemical examination in time. Neither steps were taken for matching the blood of the girl nor attempt was made for matching sperm of the accused/appellant. Nowadays, every facility is available with the State Machinery. Medical science is advanced. Even facility of DNA test is available. However, no sincere efforts are being made by the Investigating Agencies of the State, in this regard. Half-hearted efforts in conducting investigation put the Courts in difficult situation in reaching a just conclusion. State Government is required to look into these aspects of the matter and direction should be issued to the concerned in this regard. Let copy of this judgment be sent to the Chief Secretary as well as to the Home Secretary of the State Government for taking appropriate action. Appeal dismissed.