JUDGMENT : SANJAY KAROL, J. 1. Appellant-convict Susheel Kumar, hereinafter referred to as the accused, has assailed the judgment dated 20.11.2009, passed by Additional Sessions Judge, Fast Track Court, Hamirpur, Himachal Pradesh, in Sessions Trial No.12 of 2009, titled as State of H.P. v. Sushil Kumar, whereby he stands convicted of the offence punishable under the provisions of Section 376 (2) (f) of the Indian Penal Code and sentenced to undergo rigorous imprisonment for a period of ten years and pay a fine of Rs.10,000/- and in default thereof to further undergo simple imprisonment for a period of four months. 2. It is the case of prosecution that on 30.5.2009, prosecutrix (PW- 3), aged six years, had gone to pay obeisance at the temple of Lord Shiva in her village Baleta Khurd. Finding her to be alone, accused took her to the back side of the temple and sexually assaulted her. Ms Sapna (PW-2), who independently had gone to the temple, heard cries of the prosecutrix and went where prosecutrix was sitting. Seeing her, accused ran away. Thereafter, Sapna led the prosecutrix to her house. When Smt. Meera Devi (PW-1), mother of the prosecutrix, learnt about the incident, she immediately called her husband Sunil Kumar (PW-4), who lodged report with the Panchayat in the shape of complaint (Ex. PW-4/A). Meeting of Panchayat took place, where after on 31.5.2009, Smt. Meera Devi (PW-1) moved an application (Ex. PW-1/A) before the District Police Officer, District Hamirpur, on the basis of which FIR No.172, dated 31.5.2009 (Ex.PW-14/A), under the provisions of Section 376/511 of the Indian Penal Code, was registered at Police Station, Sadar, District Hamirpur. Same day, prosecutrix was got medically examined from Dr. Archana Soni, who after receiving report (Ex. PA) of the Forensic Science Laboratory, pertaining to the vaginal swab (containing human blood) and other material, issued report (Ex.PW-7/D), opining that possibility of sexual assault could not be ruled out. Police conducted investigation on the spot. Accused was also arrested and got medically examined from Dr. K.S. Dogra, who issued MLC (Ex. PW-6/B). For determining the age of the prosecutrix, police took on record her birth certificate (Ex. PW-8/B). Her radiological age was also got determined from Dr. Sanjiv Sharma (PW-10). With the completion of investigation, which revealed complicity of the accused in the alleged crime, challan was presented in the Court for trial. 3. K.S. Dogra, who issued MLC (Ex. PW-6/B). For determining the age of the prosecutrix, police took on record her birth certificate (Ex. PW-8/B). Her radiological age was also got determined from Dr. Sanjiv Sharma (PW-10). With the completion of investigation, which revealed complicity of the accused in the alleged crime, challan was presented in the Court for trial. 3. Accused was charged for having committed an offence punishable under the provisions of Section 376 (1) of the Indian Penal Code, to which he did not plead guilty and claimed trial. 4. In order to establish its case, prosecution examined as many as 17 witnesses and statement of the accused under the provisions of Section 313 of the Code of Criminal Procedure was also recorded, in which he pleaded innocence and false implication. No evidence in defence was led. 5. Based on the testimonies of witnesses and the material on record, trial Court convicted the accused for having committed an offence punishable under the provisions of Section 376 (2) (g) of the Indian Penal Code and sentenced him as aforesaid. Hence, the present appeal by the accused. 6. We have heard learned counsel for the parties as also perused the record. 7. Relying upon its earlier decisions rendered in State of M.P. v. Pappu, (2008) 16b SCC 758; State of M.P. v. Ghanshyam Singh, (2003) 8 SCC 13 ; State of M.P. v. Babbu Barkare, (2005) 5 SCC 413; State of M.P. v. Sk. Shahid, (2009) 12 SCC 715 ; and State of M.P. v. Munna Choubey, (2005) 2 SCC 710 , Hon'ble the Supreme Court of India the Apex Court in Pushpanjali Sahu v. State of Orissa and another, (2012) 9 SCC 705 , has held that: “12. Before parting, we wish to reflect upon the dehumanizing act of physical violence on women escalating in the society. Sexual violence is not only an unlawful invasion of the right of privacy and sanctity of a woman but also a serious blow to her honour. It leaves a traumatic and humiliating impression on her conscience- offending her self-esteem and dignity. This Court in State of H.P. v. Shree Kant Shekari, (2004) 8 SCC 153 has viewed rape as not only a crime against the person of a woman, but a crime against the entire society. It leaves a traumatic and humiliating impression on her conscience- offending her self-esteem and dignity. This Court in State of H.P. v. Shree Kant Shekari, (2004) 8 SCC 153 has viewed rape as not only a crime against the person of a woman, but a crime against the entire society. It indelibly leaves a scar on the most cherished possession of a woman i.e. her dignity, honour, reputation and not the least her chastity. It destroys, as noted by this Court in Bodhisattwa Gautam v. Subhra Chakraborty, (1996) 1 SCC 490 the entire psychology of a woman and pushes her into deep emotional crisis. It is a crime against basic human rights, and is also violative of the victim's most cherished of the fundamental rights, namely, the right to life contained in Article 21 of the Constitution. The courts are, therefore, expected to deal with cases of sexual crime against women with utmost sensitivity. Such cases need to be dealt with sternly and severely.” (Also see: State of Uttar Pradesh v. Munesh, (2012) 9 SCC 742 ; and Jugendra Singh v. State of Uttar Pradesh, (2012) 6 SCC 297 ) 8. The Apex Court in Tulshidas Kanolkar v. State of Goa, (2003) 8 SCC 590 , has drawn difference between “consent” and “submission” in a case of rape. An act of helpless resignation in the face of inevitable compulsion, quiescence, non-resistance or passive giving in when the faculty is either clouded by fear or vitiated by duress or impaired due to mental retardation or deficiency cannot be considered to be a case of consent. 9. The Apex Court in Ramesh v. State through Inspector of Police, (2014) 9 SCC 392 , while dealing with a case where even though name of the accused was initially not recorded in the FIR, but however, on the basis of last seen theory and another incriminating circumstance of the accused leading to recovery of incriminating material, on the basis of circumstantial evidence, accused was convicted for having committed an offence punishable under the provisions of Sections 376 & 302 of the Indian Penal Code. (See also: Shankar Kisanrao Khade v. State of Maharashtra, (2013) 5 SCC 546 ). 10. That prosecutrix was a minor is not disputed before us. In any event, Shri Ajay Kumar (PW-8), Assistant Secretary, Gram Panchayat Neri, Tehsil and District Hamirpur, Himachal Pradesh, has proved Birth Certificate (Ex. (See also: Shankar Kisanrao Khade v. State of Maharashtra, (2013) 5 SCC 546 ). 10. That prosecutrix was a minor is not disputed before us. In any event, Shri Ajay Kumar (PW-8), Assistant Secretary, Gram Panchayat Neri, Tehsil and District Hamirpur, Himachal Pradesh, has proved Birth Certificate (Ex. PW-8/B) of the prosecutrix, issued under the provisions of Registration of Birth and Deaths Act, 1969 and Rules framed thereunder. Prosecutrix was born on 25.10.2003. Dr. Sanjiv Sharma (PW-10) determined the radiological age of the prosecutrix to be between 4 and 8 years. Report (Ex.PW-7/B) and X-Ray (Ex. PW-10/A to D), conducted by Shri Suresh Guleria (PW-11) are on record to such effect. 11. Thus, it stands proved that as on the date of commission of crime, prosecutrix was six years old, which fact is also corroborated by her mother. 12. From the version of Dr. Archana Soni (PW-7), who issued the MLC (Ex.PW-7/D), pertaining to the prosecutrix, it is evidently clear that hymen was intact, but congestion was present on the inner side of labia minora. Child was well oriented to time, place and responding to verbal commands. Even though child was uncooperative, yet she disclosed being molested by Sushil Kumar (accused) on 30.5.2009, who also committed “bad act”. The doctor opined that human blood detected on the vaginal swab was on account of “micro haemorrhage”, which “could be caused by the sexual attempt”. She categorically states that she noticed redness, though there was no swelling on the private parts of the prosecutrix. She states that from clinical examination, there was no evidence of penetration, but clarifies that touch of male organ with the private part amounts to rape. Suggestion though preposterous, that redness on the private part of the prosecutrix was on account of an ant bite or rubbing by fingers, is not supported by her. 13. In the instant case, the doctor has not found any traces of semen either on the clothes or private parts of the prosecutrix, but absence thereof would not negate the prosecution version of accused having committed an act of sexual assault, for we find other incriminating material on record against the accused. Proof of penetration is not necessarily linked to presence of spermatozoa in the private part of the victim. 14. Proof of penetration is not necessarily linked to presence of spermatozoa in the private part of the victim. 14. Either non-rupture of hymen or absence of signs of injury on the body of the prosecutrix, in itself, cannot be a ground to disbelieve the otherwise inspiring testimony of the prosecutrix. In Perminder alias Ladka Pola v. State of Delhi, (2014) 2 SCC 592 , the Hon'ble Supreme Court of India has held as under: 10. PW-15, the doctor who conducted the medical examination of the prosecutrix on 31.01.2001, however, has stated that there was no sign of injury on the prosecutrix and the hymen was found intact. The High Court has considered this evidence and has held that the non-rupture of hymen is not sufficient to dislodge the theory of rape and has relied on the following passage from Modi in Medical Jurisprudence and Toxicology (Twenty First Edition): “Thus, to constitute the offence of rape it is not necessary that there should be complete penetration of penis with emission of semen and rupture of hymen. Partial penetration of the penis within the Labia majora or the vulva or pudenda with or without emission of semen or even an attempt at penetration is quite sufficient for the purpose of the law. It is, therefore, quite possible to commit legally the offence of rape without producing any injury to the genital or leaving any seminal stains.” 11. Section 375, IPC, defines the offence of 'rape' and the Explanation to Section 375, IPC, states that penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape. This Court has accordingly held in Wahid Khan v. State of Madhya Pradesh [ (2010) 2 SCC 9 ] that even the slightest penetration is sufficient to make out an offence of rape and depth of penetration is immaterial. In the aforesaid case, this Court has relied on the very same passage from Modi in Medical Jurisprudence and Toxicology (Twenty Second Edition) quoted above. In the present case, even though the hymen of the prosecutrix was not ruptured the High Court has held that there was penetration which has caused bleeding in the private parts of the prosecutrix as would be evident from the fact that the underwear of the prosecutrix was stained by blood. In the present case, even though the hymen of the prosecutrix was not ruptured the High Court has held that there was penetration which has caused bleeding in the private parts of the prosecutrix as would be evident from the fact that the underwear of the prosecutrix was stained by blood. In our considered opinion, the High Court was right in holding the appellant guilty of the offence of rape and there is no merit in the contention of the learned counsel for the appellant that there was only an attempt to rape and not rape by the appellant. 15. In State of H.P. v. Gian Chand, (2001) 6 SCC 71 , the Apex Court has held as under: “17. In State of Punjab v. Gurmit Singh, (1996) 2 SCC 384 : (1996 AIR SCW 998 : AIR 1996 SC 1393 : 1996 Cri LJ 1728) , one of us, Dr. A.S. Anand, J. (as His Lordship then was) has thus spoken for the Court "A murderer destroys the physical body of his victim, a rapist degrades the very soul of the helpless female. The Courts, therefore, shoulder a great responsibility while trying an accused on charges of rape. They must deal with such cases with utmost sensitivity. The Courts should examine the broader probabilities of a case and not get swayed by minor contradictions or insignificant discrepancies in the statement of the prosecutrix, which are not of a fatal nature, to throw out an otherwise reliable prosecution case." The approach adopted by the High Court runs into the teeth of law so stated and hence stands vitiated.” 16. In Puran Chand v. State of Himachal Pradesh, (2014) 5 SCC 689 , the apex Court held that: “15. In Puran Chand v. State of Himachal Pradesh, (2014) 5 SCC 689 , the apex Court held that: “15. In fact, at this stage, the amendment introduced in the Indian Evidence Act, 1872 in Section 114-A laying down as follows is worthwhile to be referred to:- "114-A. Presumption as to absence of consent in certain prosecutions for rape.-In a prosecution for rape under clause (a) or clause (b) or clause (c) or clause (d) or clause (e) or clause (g) of sub- section (2) of section 376 of the Indian Penal Code, where sexual intercourse by the accused is proved and the question is whether it was without the consent of the woman alleged to have been raped and she states in her evidence before the Court that she did not consent, the Court shall presume that she did not consent." 1. Section 114-A no doubt addresses on the consent part of the woman only when the offence of rape is proved but it also impliedly would be applicable in a matter of this nature where the victim girl had gone to the extent of committing suicide due to the trauma of rape and yet is sought to be disbelieved at the instance of the defence that she weaved out a concocted story even though she suffered the risk of death after consuming poison. If this were to be accepted, we fail to understand and lament as to what is the need of incorporating an amendment into the Indian Evidence Act by incorporating Section 114A which clearly has been added to add weight and credence to the statement of the victim woman who suffers the offence of rape and a claustrophobic interpretation of this amended provision cannot be made to infer that the version of the victim should be believed relating merely to consent in a case where the offence of rape is proved by other evidence on record. If this view of the matter is taken into account relying upon the amended Section 114-A of the Indian Evidence Act which we clearly do, then even if there had been a doubt about the medical evidence regarding non rupture of hymen the same would be of no consequence as it is well settled by now that the offence of rape would be held to have been proved even if there is an attempt of rape on the woman and not the actual commission of rape. Thus, if the version of the victim girl is fit to be believed due to the attending circumstances that she was subjected to sexual assault of rape and the trauma of this offence on her mind was so acute which led her to the extent of committing suicide which she miraculously escaped, it would be a travesty of justice if we were to disbelieve her version which would render the amendment and incorporation of Section 114A into the Indian Evidence Act as a futile exercise on the part of the Legislature which in its wisdom has incorporated the amendment in the Indian Evidence Act clearly implying and expecting the Court to give utmost weightage to the version of the victim of the offence of rape which definition includes also the attempt to rape.” 17. In Rai Sandeep alias Deepu v. State (NCT of Delhi), (2012) 8 SCC 21 , the Apex Court has reiterated its decision in State of H.P. v. Asha Ram, (2005) 13 SCC 766 , wherein it is held that even minor contradictions or insignificant discrepancies in the statement of the prosecutrix should not be a ground for throwing out an otherwise reliable prosecution case. (See also: Narender Kumar v. State (NCT of Delhi), (2012) 7 SCC 171 ). 18. Relying upon its earlier decision in State of M.P. v. Ramesh, (2011) 4 SCC 786 , the Apex Court in Rajkumar v. State of Madhya Pradesh, (2014) 5 SCC 353 , has held that every witness is competent to depose unless the court considers that he is prevented from understanding the question put to him, or from giving rational answers by reason of tender age or extreme old age or disease or because of his mental or physical condition. Therefore, Court has to form an opinion from the circumstances as to whether the witness is able to understand the duty of speaking the truth, and further in a case of child witness, Court has to ascertain whether the witness is tutored or not. Evidence of a child witness must be evaluated more carefully and with greater circumspection as a child is susceptible to be swayed by others sayings. Trial court must ascertain whether child is able to discern between the right and/or wrong, which can be so done only by putting questions to such witness. Deposition of a child witness may require corroboration, but in case deposition inspires confidence, and there is no embellishment or improvement therein, Court may rely upon his testimony. Only in case where there is evidence on record to show that a child has been tutored, Court can reject his statement either in part of wholly. As to whether child stands tutored or not, can be inferred from the contents of his deposition. 19. Since much emphasis has been laid on the version of prosecutrix, we deem it to be appropriate to reproduce her entire testimony as under: “Question: Do you know the accused Sushil Kumar present in the Court? Ans. (No answer given. The child started weeping. Question: What do you know about the case? Ans. One Golu has put his “Lari” (penis) on my place of urination. I felt pain. Golu had also touched my place of urinatin. This was done behind the temple of “Shiva”, which is away from my house. I had worn shirt and Salwar on that day. The salwar Ext. P.1 belongs to me. Golu had put off my salwar. I had wept. Sapna had reached the spot who is present in the court today. Kumari Sapna had sent me to my house. My mother had met me outside my house. I narrated these facts to my mother. Golu is present in the Court. (witness pointed out towards the accused in attendance). XXX XXX XXX (By Shri Madan Chauhan, counsel for the accused). I had gone to the temple all alone. No other person was present in the temple at that time. It is correct that I offered water in the temple and then returned. It is correct that police people had told me that Golu had done like this. XXX XXX XXX (By Shri Madan Chauhan, counsel for the accused). I had gone to the temple all alone. No other person was present in the temple at that time. It is correct that I offered water in the temple and then returned. It is correct that police people had told me that Golu had done like this. It is correct that my mother had also tought me such statement. It is incorrect that I had fall on the material date and I felt pain. It is correct that the ant had given bite at the place of my urination. (The child witness admitted the suggestion by gestures). 20. Though the trial Court recorded the child not to have understood the sanctity of oath, yet finding the witness to be capable of being examined in Court, recorded here statement. Also, her statement has to be read, understood and appreciated as a whole. There cannot be part dissection, as the learned counsel wants us to do so. On a Court query, as to whether accused was present in the Court or not, child started weeping, and then clearly, confidently and unequivocally deposed that Golu (here she refers to the accused) had touched her place of urination behind the temple of Shiva. After putting off her salwar, when he put his “Lari” (penis) on her place of urination, she wept. Sapna (PW-2) reached the spot and sent her home. When she met her mother outside her house, she narrated the entire incident to her. In our considered view, witness has withstood the test of cross-examination. She is categorical of having gone to the temple alone and none was present there at that time. Though in her innocence, she does state that police and her mother had “told” and “taught” her to make her statement, but then this fact itself would not establish that the witness is tutored. After all she is a child. The incident took place on 30.5.2009 and she was deposing in the Court on 8.10.2009. Refreshing one's memory cannot be said to be tutoring. 21. We find that presence of accused and the prosecutrix, at the time of occurrence of crime, at the temple, situated in the village, is corroborated by Ms Sapna (PW-2), who also states that prosecutrix, who was weeping, asked her to leave her home and she led her to the path to her house. 22. 21. We find that presence of accused and the prosecutrix, at the time of occurrence of crime, at the temple, situated in the village, is corroborated by Ms Sapna (PW-2), who also states that prosecutrix, who was weeping, asked her to leave her home and she led her to the path to her house. 22. Now, Smt. Meera Devi (PW-1) categorically states that on 30.5.2009 at about 8/9 a.m., prosecutrix had gone to the temple. Finding her not to have returned home, she went towards the temple and on way met her. Prosecutrix, who was weeping, informed that behind the temple, accused after opening her salwar, put his penis on her vagina. She was told that when Sapna saw them, accused ran away. On checking private parts of the prosecutrix, she noticed redness. She immediately informed her husband Shri Sunil Kumar (PW- 4), who after reaching home, informed Pradhan of the Gram Panchayat, Neri. The Panchayat advised that the matter be reported to the police. Accordingly, on 31.5.2009, application (Ex. PW-1/A) was filed. 23. Testimony of Smt. Meera Devi stands corroborated by her husband Shri Sunil Kumar (PW-4), who clarifies that the incident was inquired into by members of the Panchayat. 24. Now, when we examine testimony of Pradhan Ms Pushpa Thakur (PW-5), we find that meeting of Panchayat was called, in which accused admitted his mistake, and when the Panchayat found the matter to be beyond their competence, decision was taken to report the matter to the police. Witness clarifies that though accused disappeared in the midst of proceedings, his grandfather remained present throughout. 25. Mere delay in lodging the FIR, if satisfactorily explained, is not a mitigating circumstance, in a case of rape. Application (Ex. PW-4/A) moved before the Panchayat, statements of Rafi Ram (Ex.PW-5/A) (grandfather of the accused) and Ms Sapna (Ex.PW-5/B), recorded during the proceedings before the Panchayat, were taken on record by the police vide memo (Ex. PW-5/C). We have not lent much credence to such statements, but however from the testimonies of Smt. Meera Devi,Shri Sunil Kumar and Smt. Pushpa Thakur, and the proceedings which took place before the Panchayat, it is evidently clear that the matter was immediately reported to the authorities and thus delay of one day in reporting the matter to the police, in the instant case, stands sufficiently explained. Pradhan has explained that her house is at a distance of 2 kms from the place of occurrence of crime and the Panchayat proceedings, which went on for two hours, commenced only at 1.30-2 p.m. After all, one cannot ignore the fact that parties hail from rural background and are not fully educated. Father of the prosecutrix has studied only upto 8th Class and mother not studied beyond 12th Class. 26. Much emphasis is laid on the admission made by the prosecutrix and Inspector Kamla Devi (PW-17), who investigated the matter, that there are houses of persons near the temple and persons were found working in the fields, at the time of occurrence. In our considered view, this fact by itself would not be sufficient to render the prosecution story to be doubtful, for it has not come on record that in the fields, adjoining to the temple, tillers/ owners were present, who could hear cries of prosecutrix and/or see the temple. Through the uncontroverted testimony of the prosecutrix and Sapna, it has come on record that none other than the accused and the prosecutrix were in the temple, at the time of occurrence of incident. Trial Court has rightly observed that had Ms Sapna not reached the spot, perhaps accused would have fully penetrated the private part of the prosecutrix, which would have been extremely fatal. 27. Thus, in our considered view, prosecution has been able to establish the guilt of the accused, beyond reasonable doubt, by leading clear, cogent, convincing and reliable piece of evidence, that on 30.5.2009 at Temple of Shiva, situated in village Baleta Khurd, he committed rape on the prosecutrix, who was a minor. 28. We find that there is one glaring error in the judgment and that is the accused, who was charged for having committed an offence punishable under the provisions of Section 376 (1), stands convicted for having committed an offence under the provisions of Section 376 (2) (f) of the Indian Penal Code, which in fact was also not the case of prosecution. There is no evidence on record that accused committed rape during communal or sectarian violence. As such, we modify the order of conviction and hold the accused guilty of offence punishable under the provisions of Section 376 (1) of the Indian Penal Code. 29. There is no evidence on record that accused committed rape during communal or sectarian violence. As such, we modify the order of conviction and hold the accused guilty of offence punishable under the provisions of Section 376 (1) of the Indian Penal Code. 29. For all the aforesaid reasons, we find no reason to interfere with the findings returned by the Court below, except for a limited extent, as noted above. The Court has fully appreciated the evidence placed on record by the parties. There is no illegality, irregularity, perversity in correct and/or in complete appreciation of the material so placed on record by the parties. Hence, the appeal is disposed of accordingly. Appeal stands disposed of, so also pending application (s), if any.