JUDGMENT : V.M. Deshpande, J. 1. Being dissatisfied with the judgment and order of conviction dated 01.4.2013 in Sessions Trial No. 7 of 2012, by which the learned Sessions Judge, Chandrapur, convicted the appellant for the offence punishable under Section 376(2)(f) of Indian Penal Code and sentenced 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, has preferred the present appeal. 2. The facts giving rise to this appeal are summarized as under: (a) On 24.10.2011 Smt. Nirmalabai (P.W. 1) came to police station Sindewahi. On the said day, Somnath Wagh (P.W. 8) was discharging his duties as Police Sub Inspector in the said police station. Nirmalabai came there along with her daughter, who is the prosecutrix in the present case. (b) Nirmalabai gave her oral report to Somnath Wagh. As per her dictate the report was reduced into writing. Same is at Ex. 14. The report was disclosing commission of a cognizable offence. Therefore, P.W. 8 Somnath Wagh registered a crime for the offence punishable under Section 376 of Indian Penal Code vide Crime No. 67/11. The printed F.I.R. is at Ex. 15. (c) As per first informant Nirmalabai, she is having two daughters and one son. Eldest is the prosecutrix. Her age was 8 years at the time of lodging of F.I.R. Her son is Shubham, who is aged about 3 years whereas her youngest daughter is Vidya who is aged about 1 1/2 year. Nirmalabai along with her kids was residing in the house of Babybai Lokhande, who is her sister, at village Jatalapur. The appellant resides adjacent to the house of Babybai. (d) On 24.10.2011 in the morning at about 11-30 O'clock, the first informant left her house for lake to wash the clothes. Her sister Babybai had gone to the agricultural field in the morning itself. At the time of leaving the house, the first informant asked the prosecutrix to look after other siblings. (e) At about 12-30 p.m. the first informant returned to her house. That time prosecutrix pointed out finger towards the appellant and narrated to the first informant that the appellant, who is referred by the prosecutrix as "Aba ji" called her at his house, removed her clothes and abused her physically, due to which her private part is having pains. (e) At about 12-30 p.m. the first informant returned to her house. That time prosecutrix pointed out finger towards the appellant and narrated to the first informant that the appellant, who is referred by the prosecutrix as "Aba ji" called her at his house, removed her clothes and abused her physically, due to which her private part is having pains. Upon that the first informant examined the private part of her daughter (prosecutrix) and noticed that there was swelling on her private part. Therefore, she approached the police authorities and lodged a report. 3. After registration of the crime, Somnath Wagh (P.W. 8) referred the prosecutrix for her medical examination along with requisition letter (Ex. 28). He visited the spot of incident and drew spot panchanama in presence of panchas vide Ex. 20. He arrested the appellant under arrest memo (Ex. 48). The appellant was also referred for medical examination. The clothes of the appellant were also seized under seizure memo (Ex. 23). 4. Medical examination of prosecutrix was done at General Hospital, Chandrapur. Her clothes were seized vide seizure memo (Ex. 26). After completion of usual investigation, charge-sheet was presented by the Investigating Officer before the Court of law. 5. Offence was exclusively triable by the Court of Sessions. Therefore, the learned Magistrate passed order of committal and case reached to the Court of Sessions, which was registered as Sessions Case No. 7 of 2012. Learned Sessions Judge framed the charge against the appellant for the offence punishable under Section 376(2)(f) of Indian Penal Code and it was explained to him. The appellant denied the charge and claimed for trial. 6. In order to bring home the guilt of the appellant, the prosecution has examined the following witnesses: 7. The learned Judge of the trial Court evaluated the prosecution case on the basis of the evidence produced on record, both oral as well as documentary, by the prosecution. The Court below was of the view, after appreciation of the evidence, that the prosecution was successful in bringing home the guilt of the appellant. Therefore, he convicted him and also passed the consequent order of sentence, as observed in the opening paragraph of this judgment. 8. I have heard Shri D.A. Sonwane, learned counsel appointed by the Legal Aid Committee, for the appellant and Shri R.S. Nayak, learned APP for the State. Therefore, he convicted him and also passed the consequent order of sentence, as observed in the opening paragraph of this judgment. 8. I have heard Shri D.A. Sonwane, learned counsel appointed by the Legal Aid Committee, for the appellant and Shri R.S. Nayak, learned APP for the State. With the able assistance of both the learned counsel, I have gone through the record and proceedings. 9. The learned counsel for the appellant submitted that in any case the appellant cannot be convicted for the offence punishable under Section 376(2)(f) of Indian Penal Code. According to him, no rape was committed on the minor girl by the appellant. In order to buttress his submission, it is his contention that since no injuries were noticed on the private parts of the appellant by Dr. Sandip Dadmal (P.W. 6), while issuing the medical certificate of the appellant (Ex. 36), it is clear that the appellant cannot be held guilty and cannot be convicted for rape. He submitted that it is the case of the appellant, as it could be seen from the line of cross-examination, that the appellant has played with the private part of the prosecutrix by his fingers only and, therefore, the appellant can be punished for the offence of outraging modesty of the prosecutrix. He relied upon a reported case of this Court in Baban @ Yeshwant Vithal Katalkar v. State of Maharashtra reported in 2007 (2) Mh.L.J. (Cri) 583. He also relied upon a reported case of Hon'ble Apex Court in Ramkripal Shyamlal Charmakar v. State of Madhya Pradesh reported in AIR 2007 SC (Supp) 49. 10. Per contra, learned APP vehemently submitted that the appellant, a full grown person, has subjected the prosecutrix, aged about 8 years, to his lust and from the medical evidence as available in the prosecution case, there cannot be any doubt that the appellant has committed rape on a minor girl. 11. From the line of cross-examination of the prosecutrix at the hands of the appellant, and as per the submission even before this Court, it is not in dispute that at the relevant time of commission of offence, the prosecutrix was in the company of the appellant. 11. From the line of cross-examination of the prosecutrix at the hands of the appellant, and as per the submission even before this Court, it is not in dispute that at the relevant time of commission of offence, the prosecutrix was in the company of the appellant. As per prosecution case, the appellant has committed rape on a minor girl when she was in his company whereas as per the defence, he has played with the private parts of the prosecutrix with his fingers only and, therefore, he has committed the offence of outraging the modesty. 12. The prosecution case revolves around evidence of prosecutrix (P.W. 2) and her medical evidence. Since last two months of the occurrence, the prosecutrix was residing along with her mother in the house of her maternal aunt. The location of the house of the appellant, as per the F.I.R. (Ex. 14) is adjacent to the house of sister of first informant. The said aspect is not denied by the appellant. In such situation and looking to the stay of about two months, the version of the prosecutrix that she was knowing the appellant cannot be faulted. His age is in between 55 to 60 years and, therefore, if he is being called as "Aba Ji" by the prosecutrix, as she claimed in her testimony, in my view, is most natural. 13. The evidence of prosecutrix and her mother Nirmalabai is corroborative to each other insofar as leaving of Nirmalabai to lake for washing the clothes is concerned. The version of prosecutrix and or her mother is not challenged at all, that at the relevant time the prosecutrix along with her other sibling alone was in the house. 14. As per the version of the prosecutrix, after she plucked flowers the appellant called her at his house. Her evidence discloses that she obliged his direction. The said version of the prosecutrix cannot be suspected since the innocent girl heard the call from her neighbor, who is an elderly person. That time, looking to her age, she could not have visualized that the appellant was having any bad intention in his mind. Further, her version to the effect that she was called by the appellant to his house is not at all challenged. That time, looking to her age, she could not have visualized that the appellant was having any bad intention in his mind. Further, her version to the effect that she was called by the appellant to his house is not at all challenged. On the contrary, her claim to that effect is substantiated in her cross-examination, as it can be seen from the following: "It is correct to say that at the time of incident, I went to house of the accused for plucking flowers of marigold. It is correct to say that at that time, the accused called me at his house." The prosecutrix was bold enough to state from the witness-box about the physical abuse/atrocity committed on her by the appellant. In her cross-examination it was suggested to her that the appellant had inserted his two fingers in her private part. Not only such suggestion was stoutly denied by that little bold girl but she specifically narrated even during her cross-examination that the appellant inserted his private part in her private part. 15. Immediate lodging of F.I.R. rules out the possibility of false implication. It cannot be expected from the said little girl to rush to the police station on her own, especially when it is established on record that the police station is 1 km. away from village Jatalapur. Therefore, her wait to reach her mother to the place is most natural. After reaching to her home, Nirmalabai (P.W. 1) was immediately informed by the prosecutrix about the happening to her. As per the F.I.R. the first informant was residing along with her sister. Consistent evidence of the prosecution shows that on the date of the incident in the morning itself, sister of the first informant went for agricultural implementation. Therefore, if the first informant made a wait to herself for her sister Bayabai and after narration of the incident to her if the first information report is lodged at 6-30 p.m. of the very same day, it cannot be said that there is a delay in lodging the F.I.R., as faintly argued by the learned counsel for the appellant. 16. Dr. Pallavi Ingale (P.W. 5) was the Medical officer at General Hospital, Chandrapur. On 25.10.2011 when she was on duty, she received a requisition letter from police station Sindewahi. The requisition letter is at Ex. 28. By the said requisition letter, Dr. 16. Dr. Pallavi Ingale (P.W. 5) was the Medical officer at General Hospital, Chandrapur. On 25.10.2011 when she was on duty, she received a requisition letter from police station Sindewahi. The requisition letter is at Ex. 28. By the said requisition letter, Dr. Pallavi was requested for medical examination of the prosecutrix. 17. On examination, Dr. Pallavi found that the age of prosecutrix is 8 years. She was brought to her by lady police constable. Necessary consent of Nirmalabai (P.W. 1), mother of the prosecutrix, was obtained. Evidence of Dr. Pallavi reveals that prosecutrix herself narrated the history and as per her narration the medical officer noted down the same. It will be useful to reproduce the relevant part of evidence of Dr. Pallavi for correct appreciation of evidence in this case: "On examination of the victim, I found pain in her perineal region. On private part examination, I found that her posterior fourchette was very tender and reddish. Edgers were hyperemic, red and edematous. Her hymen was torn at 1 O'clock position." Dr. Pallavi proved the medical certificate of victim. It is at Ex. 29. During her cross-examination, Dr. Pallavi has denied the suggestion that hymen will tear due to fall, but injuries can cause. 18. The evidence of the prosecutrix cannot be doubted if it inspires confidence. The prosecutrix was not having any reason to falsely implicate the appellant. Though in his statement recorded under Section 313 of Code of Criminal Procedure, the appellant has stated that the complainant was on cross terms with him and therefore she has involved him in this case falsely, is hardly any plausible explanation. The duration of residence of the first informant along with the prosecutrix in the neighborhood of the appellant was only for two months. When Nirmalabai was available for the cross-examination, nothing was suggested to her that she was having any dispute with the appellant. On the contrary, the suggestion was that the appellant was having dispute with the sister of the first informant and, therefore, he is falsely implicated. When Nirmalabai was available for the cross-examination, nothing was suggested to her that she was having any dispute with the appellant. On the contrary, the suggestion was that the appellant was having dispute with the sister of the first informant and, therefore, he is falsely implicated. When the F.I.R. is lodged immediately and there is nothing to show and/or even to suggest that the evidence of the prosecutrix is an exaggeration, I am of the view that full credit has to be given to the courageous girl who minced no word to state to the Court from the witness-box in respect of happenings to her at the hands of the appellant. Merely because no injuries were found on the private part of the appellant, as observed in the injury certificate (Ex. 36), he cannot be absolved from the punishment. Even the learned author Modi in Modi's Medical Jurisprudence and Toxicology (22nd Edition), has observed as under: "(ix) Injuries to the genital parts may result from force exerted by the accused or from force applied by the victim. In addition to scratches or lacerations on the penis caused by the finger nails of the victim during a struggle, an abrasion or a laceration may be discovered on the prepuce or glans penis, but more often on the fraenum, due to the forcible introduction of the organ into the narrow vagina of a virgin, especially of a child, but it is not necessary that there should always be marks of injuries on the penis in such cases." 19. Learned counsel for the appellant submitted that no semen stains were found in the report of chemical analyzer. Semen stains will be noticed only on ejaculation. It is not the case of the prosecutrix herself that anything was discharged in her private part. In that view of the matter, if no semen stains were found on her vaginal swab or on the clothes, the case of the prosecution cannot be thrown in the dust bin. 20. To constitute an offence of rape, penetration is sufficient. The medical evidence of the prosecutrix clearly establish penetration in her private part. In that view of the matter, if no semen stains were found on her vaginal swab or on the clothes, the case of the prosecution cannot be thrown in the dust bin. 20. To constitute an offence of rape, penetration is sufficient. The medical evidence of the prosecutrix clearly establish penetration in her private part. In that view of the matter and looking to the consistency in the version of the prosecutrix, the submission of the appellant will have to be rejected that the appellant has only played with the private parts of the prosecutrix with his fingers and no penetration of his private part was done. 21. In view of the aforesaid re-appreciation of entire prosecution case, I see no reason to convert the conviction of the appellant from the offence of rape to the offence for outraging the modesty. Hence, the appeal is dismissed. Learned counsel appointed to represent the appellant be paid Rs. 5,000/- as fees.