JUDGMENT : S. K. PALO, J. 1. This appeal has been preferred section 374(2) of the Code of Criminal Procedure assailing the judgment and conviction dated 18th July, 2001 pronounced by Special Judge, Bhopal in under the SC ST (POA) Act, 1989 whereby the appellant has been convicted under section 376(2)(f), 366-A, of Indian Penal Code and section 3(2)(v) of ST SC (POA) Act, 1989 and sentenced the appellant to, (i) life imprisonment with fine of Rs. 10,000/- in lieu of fine, additional R.I. of three months (ii) rigorous imprisonment for ten years and fine of Rs. 2,000 in lieu of the additional R.I. for three months in default R.I. for three months life imprisonment with fine of Rs. 3,000/- has been awarded respectively. 2. It is not disputed that the prosecutrix aged about five years is a member of scheduled caste. The appellant was a tenant of Tarabai in the neighbourhood of the complainant Dhanobai (PW 1), the mother of prosecutrix (PW 9). It is also not disputed that the Doctor examined the appellant/accused and opined that nothing found significant during the examination to suggest that the person under examination is incapable of performing sexual intercourse. 3. The prosecution story hinges mainly on the sole testimony of the minor prosecutrix (PW9). 4. Filtering the unnecessary details, the facts which are requisite to be stated are that on 2-10-2000 at about 2:00 p.m. near the Hanuman Temple, Acharya Narendra Dev Nagar, Bhopal, the prosecutrix had gone to purchase suparee (betel nut) from the shop of Sunil (PW4). Her mother Dhanobai (PW1) had also gone there. On asking why she has come to the shop, the minor prosecutrix informed that the uncle who is the tenant residing in the house of Tarabai, had asked her to bring gutkha and toffee. In presence of Dhanobai (PW 1), the prosecutrix left the place taking the gutkha and toffee. Dhanobai having purchased her articles left for home after 5-7 minutes. On the way, she heard the prosecutrix crying. When she went towards the house of Tarabai in which the accused Lal Babu Khan was the tenant, she saw the prosecutrix standing at the door step of the house of the accused and was crying loudly. There she also found the accused sitting wearing his undergarment. On asking the prosecutrix, she informed that "uncle" had spitted on her private parts. There she also found the accused sitting wearing his undergarment. On asking the prosecutrix, she informed that "uncle" had spitted on her private parts. She saw some white slippery substance looked like "semen" on the inner part of thighs of the prosecutrix. On seeing this Dhanobai (PW1) the mother of the prosecutrix started crying. Hearing their cries, nearby people Sanjay Thakur (PW 3), Lachhibai, Babybai (PW 5) Ramkalibai (PW 6) and Sunil (PW 4) came there and caught the appellant Lal Babu Khan. Sunil (PW 4) informed the police. All of them went to the police station, where Dhanobai (PW 1) lodged the report. 5. After investigation, charge-sheet has been filed. On framing of charge under section 366-A, 376 of Indian Penal Code and under section 3(2)(v) of the Scheduled Caste and Scheduled Tribe, Prevention of Atrocities Act, the accused abjured guilt and claimed false implication. The defence taken by him is that his landlord wanted to evict him, therefore, with the connivance of the prosecutrix and her mother, he has been falsely implicated. 6. The learned trial Court convicted the appellant vide impugned judgment dated 18-7-2001 and sentenced as stated above. 7. On behalf of the appellant, the same has been assailed on the ground that the learned trial Court erred in not relying Ex. P/1 and the statements Ex. D1 to D3. It is also contended that there are material contradictions between the statements of Ramkali (PW6) and Dhanobai (PW1). The learned lower Court failed to consider the statement of Dr. Vibhawari (PW7). No injury was found on the prosecutrix, therefore, the offence alleged has not been proved, hence, requested for setting aside the judgment and conviction of the appellant and for acquittal. In alternative, it is also prayed that the appellant could have given the benefit of Probation of Offender Act instead of the harsh and severe punishment imposed on him. 8. Learned G. A for the State, on the other hand, opposed the same and contended that the evidence available in the case is sufficient for holding the appellant guilty and justified the impugned judgment and the conviction. 9. We have given the thoughtful consideration on the submissions made by both the parties. 10. It is strenuously argued by the learned counsel for the appellant that the age of the prosecutrix was not legally proved. 9. We have given the thoughtful consideration on the submissions made by both the parties. 10. It is strenuously argued by the learned counsel for the appellant that the age of the prosecutrix was not legally proved. Neither any certificate of birth nor any report has been filed to determine the age of the prosecutrix, therefore, the appellant is entitled for the benefit of doubt. 11. On perusal of the report dated 2-1-2000 drawn by Dr. Vibhawari, Resident Officer of Sultaniya Lady Hospital, Bhopal, it appears that she assessed the age of prosecutrix as five years. Mother of the prosecutrix Dhanobai (PW1) has also narrated her age to be of five years. Jamuna Prasad, the father of the prosecutrix has been examined as (PW2), has produced the Janma Kundali (Birth Chart) marked as Ex. P/5, which shows she was born on 19-12-1993 at 6:25 p.m. Even if this document is not an authenticated document for proving the age of the prosecutrix but by any stretch of imagination, the age of the prosecutrix cannot be held to be more than sixteen years. At the same time, we cannot overlook the estimated age written by Dr. Vibhawari (PW7), therefore, the contention of the learned counsel for the appellant is of no avail. 12. The minor prosecutrix had gone to the shop of Sunil (PW 1) who has supported the prosecution story that the appellant had sent the minor prosecutrix to bring gutkha and toffee for him. He has also stated that the appellant was residing as a tenant in the house of Tarabai. Dhanobai (PW 1) has stated that she had gone to the shop of Sunil where her daughter, the prosecutrix had come to purchase gutkha and toffee for the appellant. After 5-7 minutes, the prosecutrix left the shop. She heard the crying of her minor daughter. She reached the house of Tarabai on hearing her cries and saw the minor girl crying at the door step of the house of accused. The accused was also found sitting there wearing his underwear. When she asked the minor girl what has happened the prosecutrix told her that the accused sent her for purchase of gutkha and toffee. The accused to whom she addressed as "uncle" offered her toffee and took her inside the house. She told that he rubbed his private parts after removing her undergarments. Because of which she was crying. When she asked the minor girl what has happened the prosecutrix told her that the accused sent her for purchase of gutkha and toffee. The accused to whom she addressed as "uncle" offered her toffee and took her inside the house. She told that he rubbed his private parts after removing her undergarments. Because of which she was crying. In her statement before the Court, she could explain the proceedings in her own words which not only indicates the incident as she understood but also shows that she has not been tutored. She has answered each and every question so far as possible, as it has happened. There is nothing untoward or unnatural in her statement which could entail to disbelieve her version. She has clearly stated that this was the first instance that the accused has called her and asked her to bring gutkha and toffee for him. 13. Dr. Vibhawari, (PW 7) who examined the prosecutrix has observed that hymen was intact but there was redness over the introitus area. There was stain-marks near the thighs. There is a possibility of an attempt of sexual intercourse. Redness over the introitus area present white stain marks. There was stain marks on the material present over the rear aspect of both thighs. There was white stain and blood stain marks over the underwear of the girl, which was sealed and handed over to the police. 14. The incident took place at about 2:00 p.m. The report was lodged at about 3:05 pm. The medico legal examination was conducted at 6:55 p.m on the same day. We have no reason to disbelieve the statement of Resident Medical Officer. 15. Regarding the contention that there was no mark of injury on the body of the prosecutrix, we hasten to clarify that penetration is sufficient to constitute rape and it is not necessary that injury is essential to prove the crime of rape, as has been held in Bansilal vs. State of M. P., 1999(1) Current Criminal Journal 160 (M. P.). 16. It, is not worthy to refer Madan Gopal Kakkad vs. Naval Dubey, 1992 SCC (3) 204 in which the Hon'ble Apex Court has referred "Medical Jurisprudence" written by Modi and held that "Sexual Intercourse in law:- "this term is held to mean the slightest degree of penetration of the valve by the penis with or without emission of semen. 16. It, is not worthy to refer Madan Gopal Kakkad vs. Naval Dubey, 1992 SCC (3) 204 in which the Hon'ble Apex Court has referred "Medical Jurisprudence" written by Modi and held that "Sexual Intercourse in law:- "this term is held to mean the slightest degree of penetration of the valve by the penis with or without emission of semen. It is, therefore, quite possible to commit legally the offence of rape without producing the injury to the genitals or leave any seminal stains." 17. The redness on the introitus area of the victim, the white stains and blood stains marks over her underwear clearly indicates the commission of offence with the minor girl which also corroborates her statement. 18. Immediately on her crying when the other witnesses reached the spot which includes Sunil (PW 4), the shop keeper, Babybai and Ramkalibai (PW 5) and (PW 6) the neighbours, who supported the prosecution story stating that when they reached the spot, the minor prosecutrix narrated that the appellant whom she addressed as "uncle" had touched his private parts and spitted (discharged) on her private part. 19. It is unreasonable to say that the accused could have falsely been implicated with the help of the minor girl by his landlord Tarabai to evict her house. This plea by the accused seems to be made to escape the criminal liability. No evidence has been led in this regard. 20. Though, there are certain discrepancies and contradictions but such discrepancies and contradictions are natural and rules out the possibility of being tutored. 21. Rape leases a permanent scar and has serious psychological impact on victim and also her family members. No one would normally concoct story of rape just to implicate a person falsely. The false implication of the accused in rape is normally improbable specially when the prosecutrix, who is a girl aged about five years. 22. More so the evidence of Dr. Vibhawari (PW 7) also corroborated the statement of the prosecutrix. The prosecutrix and the accused are residents of the same area and in fact they are neighbours. Therefore, there was no question of any wrong identification. The F.S.L report of the undergarment of the prosecutrix containing positive for human spermatozoa also supports the prosecution story and also blood cells are seen in Articles A1 and A2. 23. The prosecutrix and the accused are residents of the same area and in fact they are neighbours. Therefore, there was no question of any wrong identification. The F.S.L report of the undergarment of the prosecutrix containing positive for human spermatozoa also supports the prosecution story and also blood cells are seen in Articles A1 and A2. 23. Sunil (PW4) and Devibai (PW5) and Ramkali (PW6) have not fully supported the prosecution story and they have denied their police statement Ex. D1, D2 and D3. It seems that these prosecution witnesses have not come forward to state the truth. The other witnesses and part of the statements of these witnesses cannot be overlooked specially when the statement of minor prosecutrix is supported by the medical evidence. 24. There is no enmity between the parties. There was prompt F.I.R. and prompt medical examination. The accused allured the minor prosecutrix to bring toffee for her. The accused placed his male organ on the private parts of the prosecutrix which is supported by the medical evidence and the discharge of semen on her inner thighs, all goes to show that the accused had committed the sexual assault on the minor prosecutrix. 25. For the discussion made above, we have no hesitation in holding the accused guilty for the offence of kidnapping and rape. 26. The minor prosecutrix was a member of scheduled caste, however, merely because she belonged to scheduled caste, this is no ground on which the accused can be convicted for an offence under section 3(2)(5) of the SC ST (POA) Act, 1989. There is not an iota of evidence to show that the appellant by his conduct done something that is directed to offend the sensibility of the prosecutrix in relation to the caste to which she belongs. 27. From the provisions of section 3(2) of the SC ST (POA) Act, it is clear that the Statute laid stress on the intention of the accused in committing such offence. Therefore, mere knowledge that the victim belongs to Scheduled Caste or Scheduled Tribe community is not sufficient to constitute an offence under section 3(2)(v) of the Act. On the other hand, such knowledge should necessarily be coupled with intention to commit such an offence, in order to belittle the person as he/she belongs to Scheduled Caste or Scheduled Tribe community. 28. On the other hand, such knowledge should necessarily be coupled with intention to commit such an offence, in order to belittle the person as he/she belongs to Scheduled Caste or Scheduled Tribe community. 28. In the present case, it is difficult to draw an inference that the accused had the intention to commit the offence under section 376 of Indian Penal Code against the prosecutrix only because she belongs to scheduled caste community. That being so, the accused cannot be found guilty of the offence punishable under section 3(2)(v) of the SC ST (POA) Act, 1989. In this regard we may refer to Abdul Gafarsab vs. State of Karnatka, 1998 Cri.L.J. 2488, Amir vs. State, 2004 Cri.L.J. 3686; Vinayak Bihari @ Vinayak Sharma, 2005 Cri.L.J. 2452 (Uttaranchal). 29. The words "on the ground such person is member of Scheduled Caste or Scheduled Tribe" used in the section will only be applicable in case where the rape was not committed on the ground that she belonged to scheduled caste community. Where the rape was not committed on the victim on the ground that she belonged to the scheduled caste, the conviction and sentence under section 3(2), (5) of the SC ST (POA) Act, 1989 was not maintainable. (See Hanamath vs. State, 2006 Cri.L.J. 1844 Karnataka) 30. Therefore, we allow the appeal to the extent and acquit the accused Lal Babu Khan from the charges of offence section 3(2)(v) of SC ST (POA) Act, 1989. 31. Now we shall deal with the sentence part of the appeal. The learned trial Court has imposed life imprisonment under section 376 (2) (f) Indian Penal Code with fine of Rs. 10,000/- and rigorous imprisonment for ten years and imposed a fine of Rs. 2,000/- for offence under section 366-A of Indian Penal Code of Indian Penal Code. 32. Keeping in view of circumstances prevailed in this case, having in mind the fact that the hymen of the victim remained intact, we maintain sentence imposed by the learned trial Court for offence under section 366-A, Indian Penal Code, but we deem it fit to reduce the sentence imposed under section 376(2)(f) of the Indian Penal Code from life imprisonment to rigorous imprisonment for sixteen years and fine of Rs. 10,000/-. In lieu of the fine, the appellant has to undergo additional rigorous imprisonment for six months. 33. 10,000/-. In lieu of the fine, the appellant has to undergo additional rigorous imprisonment for six months. 33. The appeal is partially allowed with this modification and is disposed of.