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2019 DIGILAW 1007 (JHR)

Khelwa Mahto @ Khemlal Mahto v. State Of Bihar

2019-05-08

APARESH KUMAR SINGH, KAILASH PRASAD DEO

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JUDGMENT 1. Heard Learned Counsel for the appellants Mr. Sumir Prasad and Mr. A.N. Deo in the respective Criminal Appeals and Mr. Ravi Prakash, Additional Public Prosecutor representing the State. 2. It is a case in which all the four F.I.R. named accused persons (appellants herein) have been convicted for the charge of rape under Section 376 of the I.P.C.; further house trespass in order to commit offence punishable with imprisonment for life under Section 450 of the I.P.C. and also under Section 3(2)(v) of the Scheduled Caste/Scheduled Tribe (Prevention of Atrocities) Act, 1989 by the judgment of conviction dated 20th December 1996 rendered in Sessions Trial No.148/1996 arising out of Katkamsandi P.S. Case No.77/1995, corresponding to G.R. No.1365/1995, T.R. No.739/1996 by the learned Special Judge, Scheduled Caste/Scheduled Tribe (Prevention of Atrocities) Act, Hazaribagh. All these appellants have been sentenced to undergo rigorous imprisonment for life against their convictions under each of these Sections. Sentences were directed to run concurrently. 3. The prosecution case is based upon the Fardbeyan of the prosecutrix (P.W.5) recorded at 14 hours on 17th August 1995 at Pelawal Outpost by Sub-Inspector Arun Kumar Singh, Incharge, Pelawal O.P. The gist of the allegation is as under :- The informant ''X'' (name withheld) daughter of Thuma Dhan of village Haram, P.S. Katkamsandi, District Hazaribag gave her statement in presence of her mother Duggi and co-villager Budhuwa Oraon son of Late Ruiya Oraon at Pelawal O.P. that on Wednesday at 4 P.M. while she was alone in her house, since her father had gone to his relative to Piti village and her mother had gone out for manual labour, 4 accused persons of her village namely (1) Lokan Mahto son of Chaman Mahto (2) Konjha Mahto son of Badan Mahto (3) Khelwa Mahto son of Chaita Mahto and (4) Bhunua Mahto son of Jataha Mahto came to her house. Lokan Mahto caught hold of her, Konjha Mahto caught hold of her leg and fell her down and then Lokan Mahto committed rape upon her. Thereafter Konjha Mahto also committed rape upon her. Then they went outside and stood at the door when Khelwa Mahto and Bhunua Mahto also committed rape upon her one after the other. They left thereafter threatening that if she disclosed the occurrence to anyone, she would be killed. Thereafter Konjha Mahto also committed rape upon her. Then they went outside and stood at the door when Khelwa Mahto and Bhunua Mahto also committed rape upon her one after the other. They left thereafter threatening that if she disclosed the occurrence to anyone, she would be killed. Out of fear she remained in her house and after sunset when her mother returned, she disclosed the occurrence to her. Since it was night, in the morning she walked down to Pelawal P.S. and gave her statement. 4. On institution of formal F.I.R. and upon conclusion of investigation, all these four appellants were chargesheeted for trial by chargesheet no.46/1995 dated 31st August, 1995 under Sections 376/450/34 I.P.C. and Section 3(1-12) of the S.C/S.T (Prevention of Atrocities) Act. Since the case was triable by the court of Sessions, it was committed to the learned court of Special Judge, S.C./S.T. (Prevention of Atrocities) Act where on 21st May 1996 charges were framed under Sections 376 and 450 of the I.P.C. and Section 3(2)(v) of the Scheduled Caste/Scheduled Tribe (Prevention of Atrocities) Act. Accused denied their involvement and claimed to be tried on the charges being read over and explained to them in Hindi. 5. During course of trial prosecution examined altogether seven witnesses named as under :- 1. Bhado Oraon 2. Sawan Oraon 3. Dukhi Devi @ Duggi Devi 4. Radhwa Oraon 5. Prosecutrix ''X'' (name withheld) 6. Arun Kumar Singh 7. Dr.(Mrs.) Chinta Kumari Verma It also adduced certain documentary evidence up to Ext.3 as under :- Ext.1 - Fardbeyan Ext.2 - Formal F.I.R. Ext.3 - Medical report of victim. All proved without objection. 6. After closure of the prosecution evidence, the statement of the accused was recorded under Section 313 of the Cr.P.C. in which they denied their involvement and claimed themselves to be innocent. However, no defence witness or exhibits were adduced on behalf of the accused. 7. Learned trial court on consideration of the evidence on record and the submissions of the counsel for the parties, found the charges proved and accordingly convicted them and further sentenced all of them to undergo life imprisonment. Thus, all the four convicts are before us in these two connected appeal. 8. 7. Learned trial court on consideration of the evidence on record and the submissions of the counsel for the parties, found the charges proved and accordingly convicted them and further sentenced all of them to undergo life imprisonment. Thus, all the four convicts are before us in these two connected appeal. 8. Learned counsel for the appellants have assailed the impugned findings inter-alia on the following counts: At the outset it has been pointed out that the Fardbeyan has been recorded after almost 22 hours on 17th August 1995 from the time of occurrence i.e. 4 P.M. on 16th August 1995. F.I.R. was kept in the Police Station and it was seen by the learned Chief Judicial Magistrate only on 19th August 1995. The prosecution has consumed ample time to concoct and implicate these four accused persons, the reason being a dispute relating to cutting of forest trees raised by the Forest Committee in which these four persons were members. In that regard evidence of the Investigating Officer at paragraphs-9 and 11 in particular have been relied upon. Learned counsel for the appellants further pointed out that P.W.1 Bhado Oraon and P.W.2 Sawan Oraon are sons of Late Budhu Oraon and P.W.4 Radhwa Oraon is the widow of Budhu Oraon who was murdered after 15 days of the occurrence. Budhu Oraon had accompanied the informant to the Police Station for recording of her Fardbeyan. P.W.1 has categorically stated in his deposition that these accused persons were behind his murder, though as a matter of fact all these accused persons were taken into custody on 18th August 1995 as is also evident from para-6 of the statement of Investigating Officer. Grudge to settle scores is therefore writ large from the statement of all these three prosecution witnesses who only, have come forward to support the case of the prosecution. They are however not eye-witnesses to the occurrence. In fact the prosecutrix is the only eye-witness as not even her mother P.W.3 Dukhi Devi who had gone out for manual labour was present at that time. Informant''s father has not been examined by the prosecution in support of the case. No other independent villager has come forward to support the case of the prosecution. In fact the prosecutrix is the only eye-witness as not even her mother P.W.3 Dukhi Devi who had gone out for manual labour was present at that time. Informant''s father has not been examined by the prosecution in support of the case. No other independent villager has come forward to support the case of the prosecution. P.W.3 - informant''s mother in her statement at para-2 has only named Lokan Mahto and Konjha Mahto as having committed rape upon the victim and the other two accused/appellants Khelwa and Bhunua were reportedly standing at the door. This is a significant contradiction from the original prosecution story. 9. Prosecutrix / informant has alleged that she suffered bruises on her body during the sexual assault. She also stated during trial that her torn clothes were handed over to the Investigating Officer. Dr. (Mrs.) Chinta Kumari Verma P.W.7 examined the prosecutrix on 17th August 1995 at 3.30 P.M. She, however, did not notice any external injury on her body. The injury report which has been proved by her and marked Ext.3 does not show presence of any spermatozoa. In her cross-examination, this witness P.W.7 has stated that the girl came walking. If the girl of this age is raped by four persons, her private part will be ruptured badly. She did not remember if she was feeling pain in walking. She also stated that sometimes such injury may be manufactured. She has also been cross-examined on the point of her double signatures on the injury report which she has explained that it was not added as an after-thought. As per the medical report and radiological examination, the girl was aged 13 years having a weight of 45 Kgs., 4''5" height and breast undeveloped. The medical evidence thus fails to corroborate the ocular testimony of rape by four persons on the prosecutrix who was a minor girl. Statement of the Investigating Officer P.W.6 has also been referred to and based thereupon it has been suggested that Katkamsandi P.S. was at a distance of 40 kms. from the place of occurrence and no bus used to ply from the village Haram to the Police Station but the informant claims to have reached there in the morning of 17th August 1995 walking on foot from her village. This also renders her story unbelievable. from the place of occurrence and no bus used to ply from the village Haram to the Police Station but the informant claims to have reached there in the morning of 17th August 1995 walking on foot from her village. This also renders her story unbelievable. If the evidence on record is read in entirety, false implication of each of these appellants is clearly made out both on the weight of the medical evidence and the previous enmity between the prosecution party and the appellants. Appellants were members of the Jungle Committee who were resisting cutting of trees by the informant''s parents and others. As per the description of place of occurrence by the Investigating Officer, the forest is only at a distance of about 100-200 yards from her house. Prosecutrix has also accepted in her statement that they used to bring firewood from the forest. This was resisted by the appellants leading to their false implication. Learned counsel for the appellants have also pointed out that the order of sentence suffers from error in law as no punishment of life imprisonment is prescribed under Section 450 of the I.P.C. The appellants, therefore, deserve to be acquitted from the charge by giving them the benefit of doubt. Their appeals should be allowed. 10. Learned Additional Public Prosecutor Mr. Ravi Prakash has vehemently supported the findings recorded by the learned trial court against these appellants. He submits that they are based on appreciation of the entire material evidence brought on record and do not suffer from any perversity or error in application of law to the facts and circumstances of the case. The minor girl of 13 years who is herself the informant, cannot be expected to falsely implicate these accused persons as alleged only on the ground that the appellants were members of Forest Committee who may be resisting cutting of the forest. However, the prosecutrix P.W.5 in her statement during cross-examination has clearly denied the suggestion of any meeting of the Jungle Committee held on 16th August, 1995 till 3 P.M. Reference is made to the statement of the Investigating Officer at para-5 which described the place of occurrence and para-9 and 11 where there is hint of a meeting of Jungle Committee held on 16th August 1995. However, there is no evidence to the effect that the meeting ended up in a quarrel with the informant party with the accused, as a result of which there was false implication of the accused persons by the informant party without any actual occurrence. Learned counsel for the State further submits that the victim is an illiterate girl of 13 years living in an interior place without the facilities of watch or other means. Her statement as to the time when she reached the Police Station or the mode of reaching the Police Station are not of such significance which could dent the core of the prosecution case. Pelawal O.P. of course is not at a distance of 40 kms. where the informant along with her mother and Budhua Oraon had reached in the morning of 17th August 1995. Much weightage should not be attached to such minor inconsistencies being raised by the appellants for creating a doubt. Learned counsel for the State has also referred to the testimony of the prosecutrix where she has fully supported her case as made out in the F.I.R. There is no improvement or contradiction so far as the description of the place and the manner of occurrence is concerned as also the involvement of these four accused persons in causing rape upon her one after the other. Not much significance should either be attached to absence of external injury during her medical examination since rape was committed in the confines of her earthen house and by appellants who were between 25 to 27 years of age much stronger than the prosecutrix who was 13 years of age and only 45 kgs. in weight. The medical evidence shows penetration into her private parts which is sufficient to constitute the offence of rape as per Explanation-1 of Section 375 of the IPC (as unamended). The statement of P.W.7 during her cross-examination cannot dilute the scientific findings recorded by the Medical Officer on the physical examination of the prosecutrix which clearly suggests sexual assault upon her. The injury report Ext.3 has been placed by learned counsel for the State and is quoted hereunder :- "Ht - 4''5" Wt 45 kg Teeth Upper-14 Lower-13 minor signs absent, breast undeveloped, Ext. examination - no injury anywhere in the body Int. Examination - Small entroytus, vaginal orifice- small, ecchymosed tear of hymen present. Clotted blood under tissues present. The injury report Ext.3 has been placed by learned counsel for the State and is quoted hereunder :- "Ht - 4''5" Wt 45 kg Teeth Upper-14 Lower-13 minor signs absent, breast undeveloped, Ext. examination - no injury anywhere in the body Int. Examination - Small entroytus, vaginal orifice- small, ecchymosed tear of hymen present. Clotted blood under tissues present. Tenderness painful (++) discharge- present, vaginal swab- spermatozoa not found. X-ray (i) greater lesser ..... not found. (ii) Epiphysis iliac crest not appeared. (iii) Epiphysis of lower end of radius and ulna - not found. Epiphysis of ulnar process - not found. Opinion- According to above examined point, the age of the girl appears to be about 13 (thirteen) years, injury of the private parts revealed commitment of slight penetration. Sd/- 17/8/95 Rape has been committed within 24 hours of the time of examination. Sd/- 17/8/95" It is further submitted that non-seizure of the clothes by Investigating Officer or non-sending of incriminating articles/ substance/ clothes to the forensic science laboratory would not dilute the case of the prosecution if on the basis of ocular testimony duly corroborated by medical evidence, the charges of rape, house trespass and the offence under S.C./S.T. Act as contemplated under Section 3(2)(v) are clearly made out. Learned counsel for the State submits that the prosecution case has been proved beyond shadow of all reasonable doubt leaving no scope of any interference in appeal on re-appreciation of the evidence on record. The appeal is, therefore, fit to be dismissed. 11. We have considered the submissions of learned Counsel for the appellants and the State. We have also gone through the entire materials brought on record in the form of Fardbeyan, framing of the charge, evidence of 7 prosecution witnesses, 3 prosecution exhibits and the statement of the accused under Section 313 of the Cr.P.C. We have perused the impugned judgment of conviction and order of sentence also. 12. Before proceeding with the analysis of the evidence on record we would like to profitably quote the opinion of the Apex Court as rendered in the case of Jugendra Singh v. State of U.P. , (2012) 6 SCC 297 para-49 as under :- "49. Rape or an attempt to rape is a crime not against an individual but a crime which destroys the basic equilibrium of the social atmosphere. The consequential death is more horrendous. Rape or an attempt to rape is a crime not against an individual but a crime which destroys the basic equilibrium of the social atmosphere. The consequential death is more horrendous. It is to be kept in mind that an offence against the body of a woman lowers her dignity and mars her reputation. It is said that one''s physical frame is his or her temple. No one has any right of encroachment. An attempt for the momentary pleasure of the accused has caused the death of a child and had a devastating effect on her family and, in the ultimate eventuate, on the collective at large. When a family suffers in such a manner, the society as a whole is compelled to suffer as it creates an incurable dent in the fabric of the social milieu. The cry of the collective has to be answered and respected and that is what exactly the High Court has done by converting the decision of acquittal to that of conviction and imposed the sentence as per law." The Hon''ble Apex Court in the case of Parhlad & Anr. Vs. State of Haryana , (2015) 8 SCC 688 para-17 has held as under as to the impact of such a sexual assault on a vulnerable girl and also on the social equilibrium:- "17. It has to be borne in mind that an offence of rape is basically an assault on the human rights of a victim. It is an attack on her individuality. It creates an incurable dent in her right and free will and personal sovereignty over the physical frame. Everyone in any civilized society has to show respect for the other individual and no individual has any right to invade on physical frame of another in any manner. It is not only an offence but such an act creates a scar in the marrows of the mind of the victim. Anyone who indulges in a crime of such nature not only does he violate the penal provision of IPC but also the right of equality, right of individual identity and in the ultimate eventuality an important aspect of rule of law which is a constitutional commitment. The Constitution of India, an organic document, confers rights. It does not condescend or confer any allowance or grant. The Constitution of India, an organic document, confers rights. It does not condescend or confer any allowance or grant. It recognizes rights and the rights are strongly entrenched in the constitutional framework, its ethos and philosophy, subject to certain limitations. Dignity of every citizen flows from the fundamental precepts of the equality clause engrafted under Article 14 and right to life under Article 21 of the Constitution, for they are the "fons juris" of our Constitution. The said rights are constitutionally secured." 13. In the present factual matrix, the prosecutrix is a 13 year old minor girl. In her evidence while being examined as P.W.5 she is consistent in her statement as made out in the Fardbeyan as regards, the time of occurrence, the place of occurrence and the commission of act of rape by the 4 accused persons one after the other. She has reiterated that after all these 4 accused/appellants entered her house while she was alone, accused Lokan put her down and Konjha caught hold of her both legs and then she was raped. Thereafter, Lokan caught hold of her legs and Konjha committed rape upon her. Thereafter, they went out and stood at the door when the remaining two accused, namely, Khelwa and Bhunua committed rape upon her one after the other. She was also threatened with dire consequences from speaking out. Since her mother returned late in the evening and it was night by that time, on the next morning she and her mother first went to the house of her neighbour, Budhwa Oraon and narrated the incidence in presence of his family members including his wife. Thereafter, they went to the Katkamsandi Police Station where her Fardbeyan was recorded and she inscribed her thumb impression thereupon. This Fardbeyan has been duly proved by the Investigating Officer during his examination. He has also stated that Fardbeyan was read over to her and explained whereafter she inscribed her thumb impression. Formal F.I.R has also been proved by the Investigating Officer being in the handwriting of Assistant Sub-Inspector, Krishna Bihari Singh as Ext.-2. P.W.-5 had stated that she is illiterate. She has categorically denied any instance of a meeting of Jungle Committee on 16th August, 1995 on the suggestion of the accused persons. The accused persons have not adduced any evidence on their part to contradict her. P.W.-5 had stated that she is illiterate. She has categorically denied any instance of a meeting of Jungle Committee on 16th August, 1995 on the suggestion of the accused persons. The accused persons have not adduced any evidence on their part to contradict her. There are minor inconsistencies in the statement of P.W.5 and P.W.3, her mother as to the time when they reached the Police Station at 8 O''clock or 9 O''clock, but they are not of such consequence as are not sufficient to disbelieve the prosecution case. In this regard, we are tempted to quote the opinion of the Apex Court as rendered in the case of Rammi v. State of M.P , (1999) 8 SCC 649 , para-24 usefully relied upon in the case of Jugendra Singh (Supra) as well, is quoted hereunder: "24. When an eyewitness is examined at length it is quite possible for him to make some discrepancies. No true witness can possibly escape from making some discrepant details. Perhaps an untrue witness who is well tutored can successfully make his testimony totally non-discrepant. But courts should bear in mind that it is only when discrepancies in the evidence of a witness are so incompatible with the credibility of his version that the court is justified in jettisoning his evidence. But too serious a view to be adopted on mere variations falling in the narration of an incident (either as between the evidence of two witnesses or as between two statements of the same witness) is an unrealistic approach for judicial scrutiny." 14. On this legal premise, we are also inclined to shrug aside the minor inconsistency in her statement so far as the existence of bruises on her body is concerned as it was not found during her medical examination or the time of reaching the Pelawal O.P. We cannot lose sight of the fact that her age was assessed to be 13 years on radiological examination by P.W.7. Appellants were of the age between 25 to 27-28 years at the time of commission of the offence and were much stronger compared to her. She was alone in the house and had little support to resist. Two persons each time facilitated the commission of the offence, one by catching hold of her legs and the other by the actual act. She was alone in the house and had little support to resist. Two persons each time facilitated the commission of the offence, one by catching hold of her legs and the other by the actual act. The scientific evidence found by P.W.7 on external and internal examination of the prosecutrix as quoted hereinabove (Ext.-3) points out that the entroytus was small so was the vaginal orifice. There was ecchymosis tear of hymen present. Ecchymosis is a discolouration of the skin resulting from bleeding underneath. The doctor also found blood clot under tissues present. There was painful tenderness and discharge was also present. However, vaginal swab did not show presence of spermatozoa. Presence of spermatozoa is not mandatory to constitute an act of rape. Medical expert (P.W.7) in her opinion has opined that the injury of private parts revealed commitment of slight penetration and that rape was committed within 24 hours of the time of examination. As per Explation-1 under Section 375 (unamended), penetration is sufficient to constitute sexual intercourse necessary to the offence of rape. Section 375 (unamended) is quoted hereunder: "Section 375. Rape- A man is said to commit "rape" who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following descriptions:- First- Against her will. Secondly- Without her consent. Thirdly- With her consent when her consent has been obtained by putting her or any person in whom she is interested, in fear of death or of hurt. Fourthly- With her consent, when the man knows that he is not her husband and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married. Fifthly- With her consent when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent. Sixthly- With or without her consent, when she is under sixteen years of age. Explanation .- Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape. Exception - Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape." 15. Section 376(g) (unamended) defines gang rape. Sixthly- With or without her consent, when she is under sixteen years of age. Explanation .- Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape. Exception - Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape." 15. Section 376(g) (unamended) defines gang rape. Explanation-1 thereof of Section 376 provides "Where a woman is raped by one or more in a group of persons acting in furtherance of their common intention, each of the persons shall be deemed to have committed gang rape within the meaning of Sub-Section. Section 376 (unamended) provides for the punishment of gang rape i.e. rigorous imprisonment for a term which shall not be less than 10 years, but which may be for life and shall also be liable to fine. 16. On behalf of the appellants they have tried to draw support from the statement made in cross-examination by P.W.7 at Paras-7 and 8. Appellants have urged that rape/sexual assault on a 13 year old minor girl by four persons is not proved. On due consideration thereof, however we are of the opinion that in the wake of the scientific evidence found by P.W.7 on internal examination of the prosecutrix as quoted hereinabove, her observations during cross-examination at paras-7 and 8 could not eclipse the scientific findings recorded by her or in the nature of injury to the private parts (Ext.-3). The Apex Court in the case of Madan Gopal Kakkad v. Naval Dubey & Anr. , (1992) 3 SCC 204 has elaborated on Explanation-1 of Section 375. It has been observed that it''s a consistent view that even the slightest penetration is sufficient to make out an offence of rape and the depth of penetration is immaterial. A medical witness called in as an expert to assist the Court is not a witness of fact and the evidence given by the Medical Officer is really of an advisory character given on the basis of symptoms found on examination. A medical witness called in as an expert to assist the Court is not a witness of fact and the evidence given by the Medical Officer is really of an advisory character given on the basis of symptoms found on examination. The expert witness is excepted to put before the Court all materials inclusive of the data which induced him to come to the conclusion to enlighten the Court on the technical aspect of the case by explaining the term of science so that the Court although, not an expert may form of its own judgment on those materials after giving due regard to the expert opinion, because once the expert''s opinion is accepted, it is not the opinion of the Medical Officer but of the Court. At para-37 of the report, the Apex Court has further opined that rape is a 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 that there is evidence of recent sexual activity. Whether the rape has occurred or not is a legal conclusion, not a medical one. We are inclined to quote with profit the illuminating opinion of the Apex Court as above at paras- 34 to 44 and 48 of the report in the case of Madan Gopal Kakkad (supra) as under : "34. A medical witness called in as an expert to assist the Court is not a witness of fact and the evidence given by the Medical Officer is really of an advisory character given on the basis of the symptoms found on examination. The expert witness is excepted to put before the Court all materials inclusive of the data which induced him to come to the conclusion and enlighten the Court on the technical aspect of the case by explaining the terms of science so that the Court although, not an expert may form its own judgment on those materials after giving due regard to the expert''s opinion because once the expert''s opinion is accepted, it is not the opinion of the Medical Officer but of the Court. 35. 35. Nariman, J. in Queen v. Ahmed Ally while expressing his view on medical evidence has observed as follows: "The evidence of a medical man or other skilled witnesses, however, eminent, as to what he thinks may or may not have taken place under particular combination of circumstances, however, confidently, he may speak, is ordinarily a matter of mere opinion." 36. Fazal Ali, J. in Pratap Misra v. State of Orissa has stated thus: "... [I]t is well settled that the medical jurisprudence is not an exact science and it is indeed difficult for any Doctor to say with precision and exactitude as to when a particular injury was caused ... as to the exact time when the appellants may have had sexual intercourse with the prosecutrix." 37. We feel that it would be quite appropriate, in this context, to reproduce the opinion expressed by Modi in Medical Jurisprudence and Toxicology (Twenty-first Edition) at page 369 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 that there is evidence of recent sexual activity. Whether the rape has occurred or not is a legal conclusion, not a medical one." 38. In Parikh''s Textbook of Medical Jurisprudence and Toxicology, the following passage is found: "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." 39. It is therefore quite possible to commit legally the offence of rape without producing any injury to the genitals or leaving any seminal stains." 39. In Encyclopedia of Crime and Justice (Vol. 4) at page 1356, it is stated: "... [E]ven slight penetration is sufficient and emission is unnecessary." 40. In Halsbury''s Statutes of England and Wales, (Fourth Edition), Volume 12, it is stated that even the slightest degree of penetration is sufficient to prove sexual intercourse within the meaning of Section 44 of the Sexual Offences Act, 1956. Vide (1) R. v. Hughes; (2) R. v. Lines and R. v. Nicholls. 41. See also Harris''s Criminal Law, (Twenty-second Edition) at page 465. 42. In American Jurisprudence, it is stated that slight penetration is sufficient to complete the crime of rape. Code 263 of Penal Code of California reads thus: "Rape; essentials - Penetration sufficient.- The essential guilt of rape consists in the outrage to the person and feelings of the victim of the rape. Any sexual penetration, however slight, is sufficient to complete the crime." 43. The First Explanation to Section 375 of Indian Penal Code which defines ''Rape'' reads thus: "Explanation.- Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape." 44. In interpreting the above explanation whether complete penetration is necessary to constitute an offence of rape, various High Courts have taken a consistent view that even the slightest penetration is sufficient to make out an offence of rape and the depth of penetration is immaterial. Reference may be made to (1) Natha v. Emperor; (2) Abdul Majid v. Emperor; (3) Mst. Jantan v. Emperor; (4) Ghanashyam Misra v. State; (5) Das Bernard v. State. In re Anthony it has been held that while there must be penetration in the technical sense, the slightest penetration would be sufficient and a complete act of sexual intercourse is not at all necessary. In Gour''s The Penal Law of India, 6th Edn. 1955 (Vol. II), page 1678, it is observed, "Even vulval penetration has been held to be sufficient for a conviction of rape. 48. In Gour''s The Penal Law of India, 6th Edn. 1955 (Vol. II), page 1678, it is observed, "Even vulval penetration has been held to be sufficient for a conviction of rape. 48. When the evidence of PW 1 is taken with the evidence of medical officer who found an abrasion on the medial side of labia majora and redness present around the labia minora with white discharge even after 5 days, it can be safely concluded that there was partial penetration within the labia majora or the vulva or pudenda which in the legal sense is sufficient to constitute the offence of rape. Moreover, the respondent himself has confessed twice admitting the commission of rape without rupturing the hymen which confession is not disbelieved by the High Court. The respondent is a medical officer who has got the practical knowledge of the anatomy of a human being and the tender sexual organ of a young girl and who must have been quite aware of the implication of his confession having fully understood the meaning of the word ''rape''. Therefore, as admitted by the respondent himself, he without forcibly and completely penetrating his penis into the vagina of PW 13 had slightly penetrated within the labia majora or vulva or pudenda without rupturing the hymen and thereby satisfied his lust after emission of semens. In this context, it is not necessary to enter into any nice discussion as to how far the male organ has entered in the vulva or pudenda of PW 13 since it is made clear that there was penetration attracting the provisions of Section 375 IPC. The evidence of PW 13 is amply corroborated not only by the medical evidence and the corroborating evidence of PW 12 but also by the plenary confession of the respondent himself." 17. It is now well settled that in a case of rape, evidence of prosecutrix, if she otherwise is reliable and competent is sufficient to base a finding of conviction. In the present case, we find that P.W. 3, her mother has stated in support of the first information story projected by the prosecutrix. It is now well settled that in a case of rape, evidence of prosecutrix, if she otherwise is reliable and competent is sufficient to base a finding of conviction. In the present case, we find that P.W. 3, her mother has stated in support of the first information story projected by the prosecutrix. We have gone through the case diary, specifically the statement of Dukhi Devi @ Duggi Devi (P.W.3) at paragraph-3 as an aid by resorting to Section 173(3) of Cr.P.C. We find that her statement at para-2 made during trial is not a contradiction nor even an improvement as in her statement made under Section 161 of the Cr.P.C., she had consistently stated the names of all four accused persons disclosed by the prosecutrix in the act of commission of rape. If the informant''s father has not been examined by the prosecution, that will not have the effect of taking away the weight of the evidence of the prosecutrix and her mother, as father was also not present at the time of occurrence. 18. Learned counsel for the appellants have harped on the plea of enmity between prosecution party, specifically P.Ws. 1, 2 and 4, who are sons and widow of Budhwa Oraon, who got killed after the occurrence on 15th November, 1995 and who had accompanied the prosecutrix to the police station as a witness to the Fardbeyan. In support, it has been argued that these appellants were taken in custody on 18th August, 1995 two days after the occurrence itself and their involvement in murder of Budhwa Oraon was not possible. On examining this argument, we find that such a connection for false implication of the appellants is too far-fetched. If the P.Ws. 1, 2 and 4 sons and widow of Budhan Oraon had a grudge against the accused, false implication of these accused persons by the prosecutrix who was not their relative but a neighbour of these prosecution witnesses is something difficult to accept. Moreover, on comparison of the statement of the prosecutrix as recorded under Section 161 Cr.P.C by the Investigating Officer P.W.6, we find that such a statement attributed to her at para-11 of his statement during trial is complete falsehood. The prosecutrix never stated in her statement under Section 161 Cr.P.C about any meeting of Jungle Committee held between 12 p.m. to 3.30 p.m on the date of occurrence 16th August, 1995. The prosecutrix never stated in her statement under Section 161 Cr.P.C about any meeting of Jungle Committee held between 12 p.m. to 3.30 p.m on the date of occurrence 16th August, 1995. We also find that the accused persons have not brought on record the F.I.R instituted in relation to the murder of Budhwa Oraon to defeat the argument of conspiracy nor have they made any statement under Section 313 Cr.P.C when confronted with the material evidence brought on record. This argument, therefore, does not cut much ice. We have also taken into note the contentions urged on behalf of the appellant as to the defect in investigation. This is by now wellsettled that such lapses in investigation would not lead to acquittal of the accused persons if the evidence on record both ocular and scientific, in the nature of injury report adduced by P.W.-7 are of such weight and credence as are able to establish the charge beyond all reasonable doubt. Reliance is placed on the case of Dhanaj Singh Vs. State of Punjab , (2004) 3 SCC 654 and in the case of Hema Vs. State through Inspector of Police, Madras , (2013) AIR SC 1000. 19. Prosecution Witnesses no. 1, Bhado Oraon and Prosecution Witness No 4, Radhwa Oraon both though hearsay witnesses have supported the case of the prosecution as having heard about the incidence and the name of the accused persons from the mouth of the prosecutrix. 20. Considered in entirety, we are satisfied that the impugned findings rendered by learned Trial Court do not suffer from any error in appreciation of evidence or illegality which render it vulnerable to be set aside in appeal. At the end, we consider it proper to clarify that the sentence of life imprisonment awarded under Section 450 I.P.C is not inconsonance with the prescribed provisions quoted hereunder: "450. House-trespass in order to commit offence punishable with imprisonment for life - Whoever commits housetrespass in order to the committing of any offence punishable with imprisonment for life, shall be punished with imprisonment of either description for a term not exceeding ten years, and shall also be liable to fine." It envisages a maximum of 10 years of punishment for the act of house-trespass in order to commit an offence punishable with life imprisonment. Therefore, the learned Trial Court has fallen in error on this count. Therefore, the learned Trial Court has fallen in error on this count. We accordingly modify the sentence under Section 450 of I.P.C to 10 years of rigorous imprisonment. All the sentences have been directed to run concurrently by the Trial Court which needs no interference. 21. With this modification in the sentence awarded under Section 450 I.P.C., the appeals are dismissed. Appellants are on bail, their bail bonds are hereby cancelled. They are directed to surrender before the Court to serve out the remainder of the sentence. Let Lower Court Records be sent down to the concerned Court along with a copy of judgment.