JUDGMENT This appeal takes exception to the judgment passed by the Adhoc Additional Sessions Judge, Gangakhed, dated 01.07.2013 in Sessions Case No.25 of 2012, thereby convicting the appellant for the offences punishable under section 376 read with section 511 of the Indian Penal Code, sentencing the appellant to suffer rigorous imprisonment for seven years and to pay fine of Rs. 5000/-, in default, to suffer rigorous imprisonment for six months. Out of the fine amount, an amount of Rs. 3000/- is directed to be paid to the complainant, who is mother of the prosecutrix. 2. In brief it is case of the prosecution that at the time of the incident, the prosecutrix was residing with her parents at Mahatpuri, Tq. Gangakhed, Dist. Parbhani. The parents of the prosecutrix at that time were working on the brick kiln of one Maruti Shinde. The appellant was also working on the same brick kiln and was residing in the neighbourhood. Subsequently, the appellant left the job of Maruti Shinde and was residing in a hut situated near the farmhouse of one Matin Seth. The incident occurred on 30.11.2009. It was market day. The father of prosecutrix had been to Hyderabad. The mother of the prosecutrix had sent her to her employer Maroti Seth for collecting wages as it was market day. Accordingly, when the prosecutrix was proceeding near from the bus stop, the appellant who was selling custard apple there, called her saying that he would offer her custard apple and took her in his house and sexually assaulted her. 3. According to the prosecution the prosecutrix who at the material time was seven years old on returning back home disclosed about the incident to her mother. Her mother, there upon, examined private part of the victim and found swelling thereon. She also noted abrasion on the chick of her daughter. On next day, the father of prosecutrix returned back from Hyderabad to whom her mother disclosed about said incident and thereafter report came to be lodged by P.W.5-Makbulbee mother of the prosecutrix. 4. On the basis of report at Exh.21, offence came to be registered vide Crime No. 69 of 2009 by A.S.1. Rathod for the offences punishable under section 376 & 506 of the Indian Penal Code. The prosecutrix was referred to medical examination and her clothes were seized. Spot panchanama was drawn. 4. On the basis of report at Exh.21, offence came to be registered vide Crime No. 69 of 2009 by A.S.1. Rathod for the offences punishable under section 376 & 506 of the Indian Penal Code. The prosecutrix was referred to medical examination and her clothes were seized. Spot panchanama was drawn. On recording statements of the material witnesses, the investigation was concluded and chargesheet was filed in the Court of learned Magistrate. The appellant could not be arrested as he was absconding. Charge-sheet was thus filed in the absence of the appellant, who was subsequently arrested on 03.05.2012 from village Khadka, Tal. Sonpeth. 5. In due course of time, the case came to be committed for trial before the Sessions Court. Charge came to be framed against the appellant vide Exh.8 for the offences punishable under sections 376 and 506 of the Indian Penal Code to which he pleaded not guilty and claimed to be tried. The defence of the appellant was of total denial and of false implication. 6. Heard learned Counsel Mr. Ram Shinde for the appellant and learned A.P.P. for respondent/State, to effectively evaluate the submissions advanced by the learned Counsels for both the sides, with their assistance I have scrutinized the evidence on record. 7. The prosecutrix, who on the date of the incident was seven years old, has stated that Makbulbee is her mother and when she was in second standard, she was residing along with her parents, who were working on brick kiln at Mahatpuri. On the point of incident, she stated that her father was out of station and as it was a market day (Monday), her mother directed her to go to Matin Seth - her employer to bring amount of her wages. When she was proceeding, on way, she met appellant, who was selling custard apples who was earlier working on the same brick kiln, who said her to come to his house and that he would offer her custard apple. The prosecutrix further stated that therefore she went to the house of the appellant, when he closed the door of his house and removed her clothes as well as cloths on his person. She further stated that the appellant thereafter applied oil on her private part, he slept on her person and pressed her chest. However, on her raising cry, he left her. She further stated that the appellant thereafter applied oil on her private part, he slept on her person and pressed her chest. However, on her raising cry, he left her. She further stated that when she attempted to run away, the appellant informed her "Tumhare Maa Ki Kasam Kisiko Bolane Ka Nahi". Thereafter, the prosecutrix wore her clothes and went to her house. It is her specific evidence that on reaching house she narrated the incident to her mother and on arrival of her father she was taken to Sonpeth police station and from there for her medical examination to Civil Hospital, Parbhani. In her cross-examination, it has come on record that she identified the appellant as she was knowing him even prior to the incident, as the appellant was working on same brick kiln where her parents were working. She has further stated that the house of the appellant was near her house. In her cross-examination, it has further come on record that at the time of the incident, as the prosecutrix raised shouts, the appellant put cotton swab in her mouth. Rest of the suggestions put to her about appellant not calling her to his house and not applying oil on her private part and not pressing her chest are duly denied by her. No reason is putforth to the prosecutrix who is a minor girl aged seven years at the time of incident, for falsely implicating the appellant. 8. The evidence of the prosecutrix is duly corroborated by version of her mother - Makbulbee, when she stated that the incident took place before three years, when they were residing at village Mahatpuri, when the prosecutrix was seven years old. She stated that at that time she was working along with her husband on brick kiln of one Maruti Shinde, where the appellant was working and was residing near their house and after some time was residing near the house of one Matin Seth. Her evidence further corroborates version of the prosecutrix of her directing her daughter to go to her employer for collecting amount of her wages. Accordingly, the prosecutrix at around 2.00 p.m. proceeded for collecting said wages. Her evidence further corroborates version of the prosecutrix of her directing her daughter to go to her employer for collecting amount of her wages. Accordingly, the prosecutrix at around 2.00 p.m. proceeded for collecting said wages. However, returned back within half an hour and was crying due to which she asked her reason, when the prosecutrix told her that the appellant who was selling the custard apple took her to his house and on closing the door he has removed his clothes as well as her clothes and though she was shouting by putting cotton swab in her mouth, applied oil on her private part, slept on her person, pressed her chest and committed rape. She also corroborates the prosecutrix on the aspect of appellant saying her "Aayeechi Shapath Tu Konala Kahi Sangu Nakos", before leaving his house. The mother of the prosecutrix further stated that on receiving information from her daughter, she removed her clothes and noted swelling on her private part and found abrasion on her face and chick. She further stated that she informed about the incident to the brick kiln owner Maruti Shinde. However, he did not help her. Two days thereafter her husband returned back from Hyderabad to whom she narrated the incident and on the following day, lodged report at Sonpeth Police Station. In her cross-examination, she has stated that house of the appellant was far away from her house and incident occurred on market day. There was no person passing by the road, which was in between her house and house of Matin Seth, near whose house the appellant resides. Though she has admitted that except for informing to Maruti Seth, she has not given information to anyone. This cannot be considered against the prosecution in any way as natural conduct of the prosecutrix's mother would be only to inform about such incident to the person known to her and Maruti Seth being owner of brick kiln, where she was working, she in the natural course of her conduct informed him. However, he had not helped her in any way and in that event the complainant left with no other alternative than to wait till the arrival of her husband who arrived after two days and thereafter he was informed of the incident by her and then report came to be lodged. However, he had not helped her in any way and in that event the complainant left with no other alternative than to wait till the arrival of her husband who arrived after two days and thereafter he was informed of the incident by her and then report came to be lodged. In that view of the matter, even if there is delay of 3 days in lodging the report on 02.12.2009 in respect of the incident occurred on 30.11.2009, above evidence can be construed sufficient to hold that the delay in lodging report is satisfactorily explained. In the same context, it is also noted that there was no reason for mother of the prosecutrix to refer her to any Doctor as suggested and thus it is only on lodging her report on 02.12.2009, the prosecutrix was referred to the Government Hospital at Parbhani for medical examination. Nothing material is elicited in the cross-examination of the prosecutrix or of her mother to doubt these evidence. Even reason is putforth to them establishing false implication of the appellant. 9. Evidence of both these witnesses is found further corroborated on all the material aspects by P.W. No.9-Shaikh Layak s/o. Hamid Shaikh, father of the prosecutrix, who has stated that three years prior to the incident he along with prosecutrix and his wife were residing at Mahatpuri and working as labourer on the brick kiln of Maruti, where the appellant was also working, however, had subsequently left this job and was residing in a house near farmhouse of Matin Seth. He has stated that during the time of incident the appellant was in business of sale of custard apple and on the day of incident he was required to go to Hyderabad as his mother was ill. He stated that two days after the incident, he returned back and was informed by his wife about the incident. His evidence fully corroborates with the evidence of the prosecutrix as well as his wife on the point of incident stating entire details, as narrated by the prosecutrix to her mother and thereafter by the mother to this witness. In the cross-examination it is suggested to him that when the appellant was removed from his job by his employer, there was quarrel between him and the appellant and there was exchange of words between them, which fact is denied by him. In the cross-examination it is suggested to him that when the appellant was removed from his job by his employer, there was quarrel between him and the appellant and there was exchange of words between them, which fact is denied by him. In fact, it is noted that no case is suggested for the appellant, as to on what count there was quarrel, as such for the above suggestion, nothing is elicited in the cross-examination of this witness, which evidence finds fully corroborated by the prosecutrix and her mother. 10. Above material evidence is further corroborated by the evidence of P.W.7 Dr. Kousar Parvez Zikaria, who has stated that on 04.12.2009, she was attached as Medical Officer at Civil Hospital, Parbhani and on that day, prosecutrix was referred to her by Sonpeth Police Station for her medical examination. According to 'this witness, the prosecutrix was aged 8-10 years and on her physical examination, she noted abrasion over right cheek, near right eye admeasuring 3x3 cm., abrasion over both legs shin admeasuring ½ x ½ cm. and abrasion over right iliac crest admeasuring 1 x ½ cm. On medical examination, this Medical Officer noted tenderness over vulval region and hymen to be intact, which was not admitting finger tips. According to the observation of the Medical Officer, though there were no signs of forcible sexual intercourse, she stated that there was attempt to commit sexual intercourse. She further stated that there were abrasions over cheek, legs and iliac crest of the patient and has observed that the abrasions were possible by nails. She has accordingly placed on record medical certificate at Exh.35. In her cross-examination, it has come on record that she had not noted any injury on the back, but on the basis of tenderness on the vulval region, she reported that there was attempt to commit rape. 11. Based on the above medical evidence learned Counsel for the appellant, submitted that since there were no signs of forcible intercourse as stated by this witness, charge framed under section 376 of the Indian Penal Code cannot said to be established and to substantiate said submission, has relied upon the case of Jagdish Balaram Narangikar Vs. State of Maharashtra, 2012 (4) Mh.L.J.(Cri.) 89 : (2012 ALL MR (Cri) 2044). It was an appeal against conviction and sentence for committing rape on minor. State of Maharashtra, 2012 (4) Mh.L.J.(Cri.) 89 : (2012 ALL MR (Cri) 2044). It was an appeal against conviction and sentence for committing rape on minor. The medical evidence did not support the prosecution case as it revealed that hymen of the victim was intact and there was no local vulval injury. In that view of the matter, the conviction and sentence of the appellant was, thus held to be not sustainable. The case relied, however, cannot be made use of in favour of the appellant, in view of the fact that in the appeal in hand, there is specific evidence of the medical officer that on medical examination she noted tenderness on vulval region and though hymen was found intact, it was opined that there were no sings of forcible sexual intercourse, but there was attempt to commit sexual intercourse. Learned Counsel for the appellant also relied upon case of Tukaram Govind Yadav Vs. State of Maharashtra, 2011 (2) Mh.L.J.(Cri) 232: (2011 ALL MR (Cri) 157). However, the facts involved in that case are distinguishing as in that case as the mother of the victim immediately reached to the house of the accused where he had taken the prosecutrix and had removed her clothes and was about to commit intercourse, mother reached and thus the accused got up, as such the accused was found guilty only for the offence punishable under section 354 of the Indian Penal Code. 12. As against this, considering the facts in appeal together with, the evidence of the prosecutrix, her parents as well as medical evidence on record, I find it useful to refer to the decision of the Apex Court in the case of Wahid Khan Vs. State of Madhya Pradesh, AIR 2010 SC 1 : (2010 ALL MR (Cri) 303 (S.C.)), wherein paras 25 to 28 of the judgment, it is observed as under : 25. It has been a consistent view of this Court that even a slightest penetration is sufficient to make out an offence of rape and depth of penetration is immaterial. 26. It is appropriate in this context to reproduce the opinion expressed by Modi in Medical Jurisprudence and Toxicology (Twenty Second Edition) at page 495 which reads thus: "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. 26. It is appropriate in this context to reproduce the opinion expressed by Modi in Medical Jurisprudence and Toxicology (Twenty Second Edition) at page 495 which reads thus: "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 genitals or leaving any seminal stains. In such a case, the medical officer should mention the negative facts in his report, but should not give his opinion that no rape had been committed. Rape is crime and not a medical condition. Rape is a legal term and not a diagnosis to be made by the medical officer treating the victim. The only statement that can be made by the medical officer is to the effect whether there is evidence of recent sexual activity. Whether the rape has occurred or not is a legal conclusion, not a medical one." [Emphasis supplied] 27. Similarly in Parikh's Textbook of Medical Jurisprudence and Toxicology, 'sexual intercourse' has been defined as under: "Sexual intercourse.- In law, this term is held to mean the slightest degree of penetration of the vulva by the penis with or without emission of semen. It is therefore quite possible to commit legally the offence of rape without producing any injury to the genitals or leaving any seminal stains. " 28. If the aforesaid facts are kept in mind, it cannot be disputed that the act of the appellant would certainly constitute an offence of rape and leaves no amount of doubt in our mind." Thus, even as per medical evidence, hymen is found in-tact and vagina was not admitting finger tips. The Apex Court in pursuance to the expression in the Modi's Textbook of Medical Jurisprudence and Toxicology and Parekh's Textbook of Medical Jurisprudence and Toxicology, held that 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. 13. The Apex Court in pursuance to the expression in the Modi's Textbook of Medical Jurisprudence and Toxicology and Parekh's Textbook of Medical Jurisprudence and Toxicology, held that 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. 13. From the above discussed evidence, prosecution has thus amply established that after appellant took prosecutrix in his room, he closed door and removed her clothes and also removed his clothes. He applied oil on her private part, slept on her person and pressed her chest. When she was crying, she was let free. It is further established that immediately, on return of the prosecutrix to her home, she narrated the incident to her mother, who examined her person and noted swelling on her private part. The evidence of P.W. 7-Dr. Kousar also established the fact of her noticing tenderness over vulval region. In that view of the matter, there is sufficient evidence to hold and conclude that there was attempt to commit sexual intercourse with the minor girl, though in the entire evidence on record, it nowhere appears that there was penetration. 14. In the background of above evidence, subsequent conduct of the appellant is also material to be noted, as immediately after the incident he found absconding from the date of incident i.e. on 30.11.2009 and inspite of search, was not found in Mahatpuri. The evidence of Investigating Officer reveals that as the appellant absconded, the charge-sheet was filed in his absence and it is only on 03.05.2012, the appellant is arrested from village Khadka, Tal. Sonpeth. No explanation is putforth on behalf of the appellant on said aspect, nor on the aspect as to what required him to leave village Mahatpuri immediately after the incident. Though absence of the appellant from the village by itself may not be a circumstance which can be considered against him, looking to the facts of the case, it was necessary for the appellant to explain as to what required him to leave his ordinary place of residence that too immediately after the incident. On considering all these aspects, the appellant is thus, found to have attempted to commit rape on the prosecutrix. The prosecution is thus found to have established the charges levelled against the appellant for the offence punishable under section 376 of the Indian Penal Code. On considering all these aspects, the appellant is thus, found to have attempted to commit rape on the prosecutrix. The prosecution is thus found to have established the charges levelled against the appellant for the offence punishable under section 376 of the Indian Penal Code. 15. I, therefore, find no substance in the appeal. The appeal is, therefore, dismissed. 16. At this stage, I must record appreciation for Mr. Ram Shinde, who was appointed to represent the appellant. I found that he had meticulously prepared the matter and he has very ably argued the appeal. As Mr. Shinde is an appointed advocate, I quantify legal fees to be paid to him for this appeal, by the High Court Legal Services Committee at Rs.5000/-. (Rupees Five Thousand). Appeal dismissed.