JUDGMENT 1. - Mahendra Singh s/o Bachhan Singh was tried by the court of Special Judge (Women Atrocities-Dowry Cases), Jaipur City, for having committed rape upon his minor daughter aged ten years (name withheld to protect her identity thus, hereinafter to be referred as the victim/P.W.11). 2. The trial court vide the impugned judgment dated 28.7.2005, held the appellant guilty of offence under Section 376 (2)(f) IPC and sentenced the appellant to undergo life imprisonment and to pay a fine of Rs. 100/-, in default thereof, to undergo three month R.I. 3. Aggrieved against his conviction and sentence, the appellant has filed the present appeal. 4. The criminal proceedings were set into motion on the basis of written report (Exhibit-P/1) submitted by Manjeet Kaur (P.W.1), who claims herself to be a neighbour of the victim. The written report (Exhibit-P/1) on the basis of which a formal FIR (Exhibit-P/10) was registered at P.S. Kanota, District Jaipur for the offence under Section 376 (2)(f) IPC, when translated into English, reads as under:- "To, SHO Saheb, Police Station Kanota, Jaipur. Sir, It is submitted that I am resident of JDA Colony, Paladi Meena. Mahendra Singh, Mistri is resident of Mahawar Colony. He is having one son and one daughter and his wife had expired 8/9 years ago. I knew Mahendra Singh for the last few days. He is an alcoholic and an evil man. His children sometime used to visit my house. Yesterday, on 12.5.2004, in the evening at about 6:00 PM, his daughter (name withheld to protect her identity) aged ten years along with her landlady Anita Koli came to my house. The child/victim told me that on Sunday night, her father Mahendra Singh s/o Bachhan Singh (Sikh), resident of Abhagarh, Transport Nagar, Jaipur, Plot No. 29, Mahawar Colony, Paladi Meena, had dragged her in a room and had committed a wrong act. He had also beaten her face. Upon which, I took the child/victim along with Anita Koli and went to her house in Mahawar Colony, where Mahendra Singh was under the influence of liquor. He confessed his guilt and I becoming angry and had slapped Mahendra Singh. Thereafter, I had informed the police. Applicant Smt. Manjeet Kaur w/o Baldev Singh (b/c Sikh) JDA Colony, Paladi Meena, Jaipur" 5. The above said FIR was investigated. He confessed his guilt and I becoming angry and had slapped Mahendra Singh. Thereafter, I had informed the police. Applicant Smt. Manjeet Kaur w/o Baldev Singh (b/c Sikh) JDA Colony, Paladi Meena, Jaipur" 5. The above said FIR was investigated. The investigating agency came to the conclusion that the appellant is guilty of offence and had submitted the report of investigation against the appellant. The said report of investigation along with the accused was committed to the concerned court and the trial was entrusted to the court of Special Judge (Women Atrocities - Dowry Cases), Jaipur City. The said court charged the appellant, Mahendra Singh for the offence under Section 376 IPC. The charge stated that the appellant, Mahendra Singh on 9.5.2004, had committed the rape of his daughter aged ten years (name withheld to protect her identity). The appellant pleaded not guilty and claimed trial. 6. The prosecution examined the complainant, Manjeet Kaur in the court as P.W.1. She reiterated as to what was stated by her in the written report (Exhibit-P/1). This witness further admitted in cross-examination that she is mother of three children. This witness denied the suggestion that Mahendra Singh had a quarrel with her children. However, she admitted that the house of Mahendra Singh is at a distance from her house. 7. In nutshell, this witness in her deposition stated that the victim had narrated the occurrence to her and she had confronted the accused who had admitted his guilt. 8. Roshan (P.W.2) in the court stated that he knew the accused, Mahendra Singh from 7/8 months. He was father of one son and a daughter. They were residing in Paladi Meena. This witness gave the name of victim and further stated that as to what had happened with the victim, he is not aware. This witness was declared hostile by the prosecution. 9. Anita (P.W.3), the landlady of the victim has also not supported the prosecution and she was also declared hostile. This witness stated in the court that she had gone to her parental house and therefore, she is not aware about any incident. 10. The victim herself appeared in the court as P.W.11. The court asked few questions to her and having satisfied itself, that the witness is able to understand the questions, had put her in the witness box. This witness stated in the court that she had gone to her parental house and therefore, she is not aware about any incident. 10. The victim herself appeared in the court as P.W.11. The court asked few questions to her and having satisfied itself, that the witness is able to understand the questions, had put her in the witness box. The victim stated that a year ago before her deposition in the court, in the summer she was sleeping in the room. Her father was sleeping outside the room. In the night, her father woke him up and asked for giving him a glass of water. After she had given glass of water and had slept, her father also slept along with her. Her father committed rape. Her father had removed his Pajama and underwear. Thereafter, her father had removed her underwear and had put his organ in her vagina. 11. Having noted the evidence of the victim, we will also have a quick glance over the testimony of various other witnesses. 12. Puranmal (P.W.4) in the court stated that in his presence, the police had prepared the site plan (Exhibit-P/4) and the appellant, Mahendra Singh was arrested vide memo Exhibit-P/5 on 13.5.2004. 13. Navratan (P.W.5) in the court also deposed that in his presence the police had prepared the site plan (Exhibit-P/4) and the police had taken into possession the Pajama of victim vide memo Exhibit-P/6 and mattress vide memo Exhibit-P/7. 14. Dr. Rajendra Patani (P.W.6) had medico-legally examined the accused-appellant, Mahendra Singh and stated that on examination he found Mahendra Singh capable to perform sexual intercourse. 15. Nekiram (P.W.7) in the court denied that in his presence the police had taken any underwear into possession vide memo Exhibit-P/9. This witness was declared hostile. 16. Material witness to be noted for us is Dr. Dinesh Mittal (P.W.8), who had conducted medico-legal examination of the victim. 17. Dr. Dinesh Mittal (P.W.8) in the court stated that there was neither an internal nor external mark of injury on the person of victim. The victim's hymen was intact. The vaginal swab was sent for chemical examination and as per his opinion, no rape was committed. We shall reproduce the entire statement of Dr. 17. Dr. Dinesh Mittal (P.W.8) in the court stated that there was neither an internal nor external mark of injury on the person of victim. The victim's hymen was intact. The vaginal swab was sent for chemical examination and as per his opinion, no rape was committed. We shall reproduce the entire statement of Dr. Dinesh Mittal in vernacular for ready reference, as under:- " fnukad 13-5-2004 dks iqfyl Fkkuk dkuksrk ds izfrosnu ij eSaus dqekjh lq[kfpUnz iq=h egsUn flag tkfr flD[k] mez 10 lky fuoklh egkoj dkWyksuh] ikyM+h eh.kk] t;iqj dk esfMdy eqvk;uk fd;k FkkA ml le; esjh fu;qfDr dfu"B&fo'ks"kK lh0,p0lh0 cLlh] t;iqj esa FkhA bUtjh%& 'kjhj ij dksbZ ckgjh pksV ugha ikbZ xbZA tuukaxksa ij dksbZ pksV ugha ikbZ xbZA gk;eu lgh lyker~ ik;k x;kA oStkbZuy Lokc jklk;fud ijh{k.k gsrq ,Q0,l0,y0 fHktok;k x;kA esjs jk; mijksDr ijh{k.k ds vk/kkj ij dksbZ cykRdkj gksuk ugha ik;k x;kA QkbZuy ( vafre ) jk; jklk;fud ijh{k.k dh fjiksVZ vkus ds ckn nh tk;sxhA fjiksVZ izn'kZ ih&10 gS ftl ij , ls ch esjs gLrk{kj gSaA lh ls Mh jk; gS ,Dl LFkku ij uewuk lhy vafdr gSA okbZLFkku ij lq[kfoUnz ds nka;s gkFk dh vaxwBk fu'kkuh gSA ftjg odhy eqyfte fuyA iqu% ijh{k.k fuyA " 18. We need not notice the evidence of remaining witnesses, who had participated in the investigation. Suffice it to say that the prosecution in all had examined twelve witnesses. Thereafter, the statement of the accused, Mahendra Singh was recorded under Section 313 Cr.P.C. and all incriminating evidence was put to him. He denied the same and pleaded false implication. The accused-appellant took a stand that six months before the registration of the case, Manjeet Kaur (P.W.1) had given him a threat that she will send him to prison for 5/7 years. The accused used to restrain the victim from visiting the house of Manjeet Kaur (P.W.1). He had not done anything wrong and has been falsely implicated. 19. The accused-appellant, Mahendra Singh, in the court appeared as D.W.1 and stated that he is father of two children. His wife had died. He was bringing up his children. They were going to school. This witness stated that he had not committed the rape upon his daughter. Manjeet Sardarni used to stay in Paladi Meena and used to incite his children. Manjeet used to call the children, for doing her domestic work. His wife had died. He was bringing up his children. They were going to school. This witness stated that he had not committed the rape upon his daughter. Manjeet Sardarni used to stay in Paladi Meena and used to incite his children. Manjeet used to call the children, for doing her domestic work. The witness had restrained the victim to go to the house of Manjeet. The accused has further stated that he had a quarrel with Manjeet Kaur and she had given a threat that she will falsely implicate him. 20. Kailash (D.W.2) in the court stated that Mahendra Singh was working in his factory and from 8.5.2004 till 14.5.2004, he was doing night shift in the factory and was with him. 21. Karan Singh (D.W.3) a co-employee of the accused, stated in the court that between 8.5.2004 to 14.5.2004, the appellant had worked in the night shift in the factory of Kailash (D.W.2). 22. Having given the gist of the entire evidence, perused the record and having read the paper book, we cannot ignore the fact that the victim appearing as P.W.11, has specifically stated that in the night her father had removed the clothes and had put his male organ in her vagina. At the time of occurrence, as per arrest memo (Exhibit-P/5), the accused appellant was aged 38 years. The age of the victim was ten years. If a robust male, well built person insert his penis in the vagina of a ten years old girl child, the same is bound to cause an abrasion or scratch on the libia manora or labia majora. The penetration is bound to cause injury on the private parts of the girl child aged ten years. In the present case, we have reproduced the testimony of Dr. Dinesh Mittal (P.W.8), who has specifically stated that as per his opinion, no rape had taken place. There was neither any external nor internal injury on the private parts of the victim. The hymen of the victim was intact. 23. A Three Judges Bench of Hon'ble Supreme Court in the case of Yerumalla Latchaiah v. State of A.P. [ (2006) 9 SCC 713 ] , held that the medical evidence belie the version given by the prosecutrix and had recorded the acquittal. The hymen of the victim was intact. 23. A Three Judges Bench of Hon'ble Supreme Court in the case of Yerumalla Latchaiah v. State of A.P. [ (2006) 9 SCC 713 ] , held that the medical evidence belie the version given by the prosecutrix and had recorded the acquittal. We shall reproduce the relevant portion of the judgment as under:- "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 (PW 7) 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. " 24. The Hon'ble Supreme Court in the case of Aman Kumar & Anr. v. State of Haryana [ (2004) 4 SCC 379 ] has held as under:- "The rupture of hymen is by no means necessary to constitute the offence of rape. Even a slight penetration in the vulva is sufficient to constitute the offence of rape and rupture of the hymen is not necessary. Vulva penetration with or without violence is as much rape as vaginal penetration. The statute merely requires evidence of penetration, and this may occur with the hymen remaining intact. The actus reus is complete with penetration. It is well settled that the prosecutrix cannot be considered as accomplice and, therefore, her testimony cannot be equated with that of an accomplice in an offence of rape. In examination of genital organs, state of hymen offers the most reliable clue. While examining the hymen, certain anatomical characteristics should be remembered before assigning any significance to the findings. The shape and the texture of the hymen is variable. This variation, sometimes permits penetration without injury. This is possible because of the peculiar shape of the orifice or increased elasticity. While examining the hymen, certain anatomical characteristics should be remembered before assigning any significance to the findings. The shape and the texture of the hymen is variable. This variation, sometimes permits penetration without injury. This is possible because of the peculiar shape of the orifice or increased elasticity. On the other hand, sometimes the hymen may be more firm, less elastic and gets stretched and lacerated earlier. Thus a relatively less forceful penetration may not give rise to injuries ordinarily possible with a forceful attempt. The anatomical feature with regard to hymen which merits consideration is its anatomical situation. Next to hymen in positive importance, but more than that in frequency, are the injuries on labia majora. These, viz. labia majora are the first to be encountered by the male organ. They are subjected to blunt forceful blows, depending on the vigour and force used by the accused and counteracted by the victim. (Emphasis Supplied) Further, examination of the females for marks of injuries elsewhere on the body forms a very important piece of evidence. To constitute the offence of rape, it is not necessary that there should be complete penetration of the penis with emission of semen and rupture of hymen. Partial penetration within the labia majora of the vulva or pudendum with or without emission of semen is sufficient to constitute the offence of rape as defined in the law. The depth of penetration is immaterial in an offence punishable under Section 376 IPC." 25. In the case of Aman Kumar (supra) having held that penetration is sine qua non for the offence of rape considering that there was no injury on the private parts of the victim, the Hon'ble Supreme Court had set aside the conviction of the appellant in that case under Section 376(2)(g) IPC and had convicted him for the offence under Section 354 IPC to two years imprisonment. 26. In the present case also, we cannot ignore that appellant is a well built robust man, who was working as Mistri in a factory, allegedly had committed rape upon the victim aged ten years and yet, there was no injury on the private parts of the victim, including labia manora and labia majora. Neither any scratch nor an abrasion was present. Furthermore, hymen has been found intact. Neither any scratch nor an abrasion was present. Furthermore, hymen has been found intact. A forceful thrust by a man aged 38 years is bound to cause some injury on the private parts of a child aged ten years. We cannot ignore the testimony of Dr. Dinesh Mittal (P.W.8) who has ruled out rape in the present case. 27. Thus, taking into consideration the ratio of both the judgments rendered by the Hon'ble Supreme Court in the cases of Aman Kumar (supra) and Yerumalla Latchaiah (supra), we are of the view that in the present case, the penetration had not taken place and the offence under Section 376(2)(f) IPC is not made out. However, we cannot become oblivious of the fact that the victim (P.W.11) has stated that the accused undressed himself and also the victim. Thus, the appellant had made an attempt to commit rape. 28. We find the appellant guilty of offence under Section 376/511 IPC for having made an attempt to commit rape upon the victim. The appellant was arrested on 13.5.2004 and he has undergone more than eleven years. The minimum sentence prescribed under Section 376(2)(f) is ten years and Section 511 IPC says that where the sentence can extend to imprisonment for life sentence upto one half of life imprisonment can be awarded. Considering that the accused appellant was convicted for life imprisonment and has to undergo minimum sentence of fourteen years and has already undergone more than eleven years of sentence, we are of the view that the ends of justice will be fully met in case we reduce the sentence to the period of eleven years already undergone by the appellant. 29. However, we maintain the sentence of fine and default clause.With the above modification in conviction and sentence, the present appeal is disposed of.Appeal disposed of. *******