JUDGMENT P.N. DESHMUKH, J. 1. This appeal takes exception to the judgment and order dated 26.7.2013, passed in Sessions Case No. 69 of 2012, by the learned Sessions Judge, Osmanabad, convicting the appellant for the offence punishable under Section 376(2)(f) of the Indian Penal Code and sentencing him to suffer rigorous imprisonment for ten years and to pay fine of Rs. 10,000/- in default, to suffer rigorous imprisonment for one year. 2. In brief, the case of prosecution is that, at the time of incident complainant-Suresh was residing with his wife and prosecutrix, aged about 10 years at village Kakramba, along with his mother-in-law Vimal, where the prosecutrix was studying and her school timings were from 9.00 a.m. to 5.00 p.m. It is case of prosecution that on the date of incident when the prosecutrix after having her meals in the house in the afternoon, was returning back to school, the appellant, who is 65 years old man, working for one Karim Shaikh for grazing his cattle at Kakramba, met the prosecutrix and by enticing her by offering Rs. 2/- for purchase of a pen, took her to his house. However, since some old lady was present in his house, he took the prosecutrix in the nearby cattle shed of one Devgunde and committed rape upon her. It is case of the prosecution that the prosecutrix narrated the incident to her grand-mother Vimal, who contacted the appellant and enquired about the incident, upon which he requested her to apologize him and prayed for pardon. Vimal also verified person of the prosecutrix and found swelling on her private part. Suresh father of the prosecutrix at the material time was working as a driver and on the day of incident had visited Tuljapur. Vimal, therefore, went to Tuljapur along with the prosecutrix in search of Suresh and found him at the bus-stop, on the road leading to Kakramba. On seeing Vimal and the prosecutrix the complainant asked as to how come they were at Tuljapur, when Vimal narrated him the entire incident, Suresh thus visited Tuljapur Police Station and lodged report. 3. On the basis of report lodged by Suresh, offence came to be registered vide Crime No. 38 of 2012 and investigated by Suresh Sabale, API, who recorded statement of the prosecutrix in presence of President, District Mahila Dakshata Samiti, Tuljapur and seized clothes, which were on her person. 3. On the basis of report lodged by Suresh, offence came to be registered vide Crime No. 38 of 2012 and investigated by Suresh Sabale, API, who recorded statement of the prosecutrix in presence of President, District Mahila Dakshata Samiti, Tuljapur and seized clothes, which were on her person. On the following day, spot panchanama came to be prepared on 10.3.2013 and the appellant was arrested. The clothes on his person were seized. On the same day the prosecutrix was referred for her medical examination. The appellant was also referred for his medical examination. On recording statements of witnesses and on forwarding seized muddemal articles for its analysis to CA, charge-sheet came to be filed in this crime in the Court of learned Judicial Magistrate, F.C. Tuljapur. In the course of time, the case came to be committed for its trial before the Sessions Court, Osmanabad. Charge was framed against the appellant for the offence punishable under section 376(2)(f) of the Indian Penal Code, to which he pleaded not guilty and claimed to be tried. The defence of the appellant is of total denial. 4. Learned Trial Court on considering evidence on record, convicted the appellant as above. Hence, this appeal. 5. Heard Mr. A.G. Kulkarni, learned Counsel for the appellant and Mr. G.R. Ingole, learned APP for the 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. 6. PW-2 Suresh Yadav, father of minor prosecutrix has stated that on the day of incident, he left home situated at Kakramba and went to Tuljapur for attending his duty. At about 5 p.m. when he was present at Bus-stop, he found the prosecutrix (his daughter) and PW-4 Vimal his mother-in-law, to whom he enquired about the reason for being present there, upon which PW-4 Vimal informed that after the prosecutrix had come from school at 2.30 p.m. for having lunch, she returned back home crying and had informed that the appellant on the pretext of offering her some money, took her to cattle shed and on removing her clothes, sexually molested her, due to which she cried. PW-2 Suresh further stated that he was informed by PW-4 Vimal that the prosecutrix has informed her that the appellant during the course of said act had closed her mouth and after returning home, she had narrated the incident to her. According to his evidence, PW-4 Vimal verified the person of the prosecutrix and noted that her private part was swollen. Accordingly, on receiving such information PW- 2 Suresh visited Tuljapur Police Station and lodged his report Exh.17. In the cross-examination, it is suggested to PW-2 Suresh that appellant holds four acres of land, which was intended to be purchased by PW-2 Suresh. However, since the appellant refused for said transaction, he came to be falsely implicated. Except for above, nothing is brought on record in the cross-examination of the complainant PW-2 Suresh. 7. Evidence of PW-4 Vimal fully corroborates version of the complainant PW-2 Suresh, who has stated that the prosecutrix is her grand-daughter and was studying in 4th standard at the time of incident. She further stated that on the day of incident, PW-2 Suresh father of the prosecutrix had been to Tuljapur since he works as a driver. However, she was in the house. She further stated that on that day the prosecutrix returned home from her school for meals and went back to her school. However, returned back at 2.30 p.m. in frightened condition and informed that one old person who was grazing cattle, on false pretext took her to his house and then to the cattle shed of one Devgunde and at this place by removing clothes on her person as well as his Dhoti, committed rape upon her. PW-4 Vimal further stated that she searched for said old cattle grazer who is identified by her as the accused present in the Court and has deposed that on her contacting him and questioning about the incident, the appellant prayed for apology. PW-4 Vimal further stated that on confirming the above fact, she came to Tuljapur with prosecutrix and met PW-2 Suresh at the bus-stop to whom she narrated the incident, upon which he lodged police complaint. PW-4 Vimal further stated that on confirming the above fact, she came to Tuljapur with prosecutrix and met PW-2 Suresh at the bus-stop to whom she narrated the incident, upon which he lodged police complaint. In the cross-examination though PW-4 Vimal admitted that school hours of the prosecutrix were from 9.00 a.m. to 5.00 p.m. and that the mid-day meal is served to the students in the school, she has specifically denied that on the day of incident prosecutrix had not returned home in the recess. She has further denied that she had not searched for the appellant nor the appellant had apologized her. Similar suggestion as given to PW-1 Suresh is also given to this witness about the appellant holding four acres land and his refusal to sell the same to the complainant, due to which he is falsely implicated, which is denied by this witness also. 8. Evidence of both these witnesses is found corroborated by the evidence of PW-3 the victim girl, who has stated that when the incident took place, she was in 4th standard and after she was going back to her school on having her mid-day meals at home, the appellant was present near Maruti Temple, who offered her Rs. 2/- and purchased one pen for her from nearby grocery shop and asked her to accompany him to his house. However, the prosecutrix expressed her reluctance. Inspite of that the appellant took her to his house. However, on finding some old woman present in the house, the appellant took her to nearby cattle shed of Devgunde. The PW-3 prosecutrix stated that at this spot the appellant removed her clothes and also removed his Dhoti and committed rape upon her due to which she cried. The appellant closed her mouth with his hand and left after sometime. According to further evidence of PW-3 prosecutrix, she then went to home and narrated the incident to her grand-mother PW-4 Vimal, who brought her to Tuljapur and narrated said information to her father, who thus visited police station, where she was enquired by police and her statement was recorded. According to PW-3 prosecutrix, she was referred to medical examination on the second day. According to PW-3 prosecutrix, she was referred to medical examination on the second day. On considering cross-examination of PW-3 prosecutrix, nothing material is elicited to establish innocence of the appellant, except for prosecutrix admitting her school hours between 9 a.m. to 5 p.m. and school providing her mid-day meals on regular basis. However, it is noted that it is nowhere suggested that on the day of incident, she had not visited her home in the recess for meals. 9. From the evidence of PW-1 Dr. Minakshi Lamture, who has examined PW-3 prosecutrix, prosecution has further established that on 10.3.2012, PW-3 prosecutrix was examined by this witness in her capacity as Medical Officer attached to Civil Hospital, Osmanabad and on examining her, she noted that hymen of the girl was ruptured and vagina was admitting tip of finger. Said Medical Officer has opined that there is possibility of sexual intercourse and accordingly issued medical certificate at Exh.14. The certificate pertaining to age of prosecutrix is at Exh.15, according to which the age of victim is determined between 9 to 10 years. Though in the cross-examination of PW-1 Dr. Minakshi, it is brought on record that there are many reasons for rupture of hymen and one of it is due to doing cycling exercise, it is no case of the appellant that the prosecutrix at any given point of time was doing cycling, as such there is nothing to hold that rupture of hymen of the prosecutrix was not due to sexual assault on her but for some other reasons. On the contrary the oral version of PW-1 Dr. Minakshi found corroborated with medical certificate Exh.14, wherein the prosecutrix is found examined on 10.3.2012 at 11.30 a.m. who was accompanied by PW-4 Vimal, referred by police for examination and was found having ruptured hymen, though no external injuries were found. The Medical Officer has also expressed possibility of her subjecting to sexual intercourse as the hymen is found ruptured. 10. The case of prosecution is further found substantiated from the evidence of PW-8 Dr. Sindhu Kadam, Medical Officer, attached to Sub-District Hospital, Tuljapur, when she stated that on 10.3.2012, while she was on duty, she examined the appellant in a Medico-legal case and on examining him found that the appellant was capable for performing sexual intercourse and accordingly issued certificate at Exh.31. 11. Sindhu Kadam, Medical Officer, attached to Sub-District Hospital, Tuljapur, when she stated that on 10.3.2012, while she was on duty, she examined the appellant in a Medico-legal case and on examining him found that the appellant was capable for performing sexual intercourse and accordingly issued certificate at Exh.31. 11. Above discussed evidence of material witnesses being PW-3 prosecutrix, her grand-mother PW-4 Vimal, father PW-2 Suresh having corroborated to each other and having further corroboration of the evidence of PW-1 Dr. Minakshi, together with Medical Certificate - Exh.14 and evidence of PW-8 Dr. Sindhu Kadam, certifying the appellant to be capable of performing sexual act, the prosecution is found to have established the charge levelled against the appellant beyond reasonable doubt, as admittedly PW-3 prosecutrix at the time of incident was 10 years minor girl. 12. Learned Counsel for the appellant, referring to the evidence of PW-2 Suresh, since admitting in the cross-examination that there are number of residential houses near the spot i.e. cattle shed having no door to it and as such is an open space and further admitting that there is road having traffic to the East side of cattle shed, has contended that the prosecution case cannot be relied upon, as no such act of rape as alleged by the prosecution can be committed by any person at such open space. The above arguments are further substantiated by learned defence Counsel by referring to the evidence of PW-3 prosecutrix when in her cross-examination she has admitted that on the day of incident, there was marriage ceremony in the village and as such there were number of persons in the village. It is thus contended that considering the fact that there was some function in the village and considering the situation of the cattle shed, where the incident as alleged is taken place, it is submitted that the prosecution case does not appear to be truthful on this count. I have duly considered the submissions advanced above. From the evidence of PW-3 prosecutrix, it has come on record that after she was referred for her medical examination, she had shown spot of incident to police. The above evidence of PW-3 prosecutrix is found corroborated by the evidence of PW-7 Pandurang Kanade, when he has stated that on 10.3.2012 he acted as panch when police drew spot panchanama in respect of cattle shed of one Devgunde. The above evidence of PW-3 prosecutrix is found corroborated by the evidence of PW-7 Pandurang Kanade, when he has stated that on 10.3.2012 he acted as panch when police drew spot panchanama in respect of cattle shed of one Devgunde. He has stated that one small girl has shown the spot. According to his evidence this cattle shed was covered by tin sheets and was having walls and accordingly panchanama Exh.26 was drawn. Learned defence Counsel has submitted that this witness is not worthy to be relied upon since he admitted that his signatures were taken on panchanama Exh.27 near the house of Machindra. However, on perusal of cross-examination it appears that nothing is suggested to this witness as to what is distance between the spot and house of Machindra. On the contrary from the map drawn at Exh.26, it reveals that house of Machindra Devgunde is situated near to cattle shed. As such I find no substance in not relying on PW-7 Panch for this reason. In-fact, from the contents of spot panchanama, it reveals that the cattle shed is owned by Dattatray Devgunde, facing East having about 40 tin sheets, admeasuring 45 x 12 ft. having walls and on north side having tin sheets. Considering the above contents, there is nothing to hold that the spot where the incident took place is open space. As such even if the cattle shed is situated nearby the road, since it is found having walls and tin sheets partly, it cannot be said that it was a open space and thus, no act as alleged by the prosecution can be committed there. 13. Apart from ocular evidence of PW-3 prosecutrix, which is found corroborated by the medical evidence and of her father and grand-mother, and though prosecution has placed on record C.A. report Exh.27, according to which the skirt of the prosecutrix is certified to have found stains of semen. Above evidence cannot be considered in favour of the prosecution as the prosecution has failed to prove seizure panchanama of clothes of the prosecutrix, nor from the record it appears that the appellant on being examined under section 313 of Cr. P.C. has been questioned with reference to such incriminating evidence of C.A. report. In that view of the matter, above piece of evidence needs to be kept out of consideration. P.C. has been questioned with reference to such incriminating evidence of C.A. report. In that view of the matter, above piece of evidence needs to be kept out of consideration. However, even said evidence is not considered for the reasons stated above, there is nothing on record to disbelieve the version of the prosecutrix, who is minor girl aged 10 years, nor there is any reason to disbelieve PW-4 Vimal-grand mother of the prosecutrix or her father PW-2 Suresh. The case set out on behalf of the appellant about PW-2 Suresh falsely implicating the appellant since he refused to enter into transaction of sale of four acres land owned by him, does not appear to be convincing as except for bare suggestion as above, nothing is brought of record to further substantiate said defence. 14. In the background of facts involved in this appeal, learned Counsel for the appellant has relied upon the decision in the case of Ajmoddin Balu Tamboli vs. State of Maharashtra, 2013 ALL MR (Cri) 1421, wherein the accused was convicted for the offence punishable under section 354 of the Indian Penal Code instead of section 376 of the Indian Penal Code observing that no injury was found on the person of victim except that labia majora was raddish, tender and swollen and hymen was intact. However, the authority relied upon cannot be made applicable to the facts involved in the appeal for the reason that in the appeal the Medical Officer had in clear terms stated that on her examining the minor girl, hymen was found ruptured. Learned Counsel for defence has further relied upon case of Narendra Kumar vs. State (NCT of Delhi), 2012 ALL MR (Cri) 2400 (SC): AIR 2012 SC 2281 , wherein rape was alleged to have taken place on the prosecutrix by the side of busy and well electrified road and as such her version that nobody responded to her hue and cry was found to be improbable. In that view of the matters, the facts involved in the case relied and the appeal in hand are totally found distinguishing, as in the case in appeal, the spot where the offence is committed is cattle shed and as discussed above, is found well covered and as such is not open space, nor found located on busy road. In that view of the matters, the facts involved in the case relied and the appeal in hand are totally found distinguishing, as in the case in appeal, the spot where the offence is committed is cattle shed and as discussed above, is found well covered and as such is not open space, nor found located on busy road. As against this, with reference to the fact in the appeal, I find it useful to refer to the decision of the Apex Court in the case of Wahid Khan vs. State of Madhya Pradesh, 2010 ALL MR (Cri) 303 (SC): AIR 2010 SC 1 , 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. 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. 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." 15. In the light of above legal principle and evidence discussed above, I find no merit in the appeal. Thus, the Criminal Appeal is dismissed. Appeal dismissed.