JUDGMENT : KAILASH PRASAD DEO, J. 1. Heard learned Amicus Curiae Mr. Rajesh Kumar Mahtha representing the appellant and learned counsel for the State Mr. Anand Kumar Pandey, Additional Public Prosecutor. 2. The instant criminal appeal has been preferred against the judgment of conviction dated 03.01.2014 and order of sentence dated 06.01.2014 passed by learned Additional Sessions Judge-1, West Singhbhum at Chaibasa in Sessions Trial No. 36 of 2009 whereby the appellant has been held guilty for the offence committed and punishable under Section 376(2)(f) I.P.C and awarded R.I. for life with fine of Rs.5,000/- and in case of default in payment of fine, he shall further undergo S.I. for three months. 3. The prosecution case is based upon the fardbeyan of Jyoti Tarkote (P.W.3) recorded by A.S.I Nandlal Prasad (P.W.14) on 06.11.2008 (Thursday) at 21.30 Hrs in General Hospital, Kiriburu. Informant has stated that her mother has died yesterday i.e., on 04.11.2008 and funeral of the dead body was performed on yesterday (Wednesday). Her father has already died few years ago. Informant, her brother namely Raghu Tarkote (P.W.5) along with her sister, Victim (name is not being disclosed) P.W.4 aged about 7-8 years were residing in a thatched house. It is stated that today (Thursday), informant’s younger sister, victim aged about 7-8 years went out of her house at around 5 P.M. for playing on the road/ street. When she returned at around 6.30 P.M., she was crying and disclosed that Manoj Kerai (appellant), resident of the same mohalla has taken her by enticing her to give toffee towards the hostel and under the culvert in the bushes, he thrashed and assaulted her and after removing her undergarment did bad things. While disclosing this fact the victim started crying loudly. After hearing the brawl, neighbourers came there and also informed about the occurrence. Thereafter, Manoj Kerai, son of Mochi Ram Kerai resident of village Meghahataburu, House no. 21/7, Kiriburu, District West Singhbhum was searched and was caught, who confessed his guilt and was apologizing with folded hand. But the residents of the mohalla took him to the Police Station. Informant has brought her sister for treatment and medical checkup. Informant has claimed that Manoj Kerai has committed rape upon her minor sister. 4. 21/7, Kiriburu, District West Singhbhum was searched and was caught, who confessed his guilt and was apologizing with folded hand. But the residents of the mohalla took him to the Police Station. Informant has brought her sister for treatment and medical checkup. Informant has claimed that Manoj Kerai has committed rape upon her minor sister. 4. On the basis of fardbeyan of the informant, Police has registered Sadar Mahila P.S. Case No. 12 of 2008 dated 07.11.2008 under Section 376 of the I.P.C against Manoj Kerai. On completion of investigation police has submitted charge-sheet vide number 12 of 2008 dated 30.11.2008 under Section 376(2)(f) of the I.P.C against the accused Manoj Kerai. The cognizance of the offence has taken on 02.01.2009 and the case has committed to the Court of Sessions vide order dated 19.01.2009. 5. The charge has been framed against the appellant Manoj Kerai under Section 376(2)(f) of the I.P.C vide order dated 04.01.2010 The contents of charge has been read over and explained to the accused in Hindi to which he has pleaded not guilty and claimed to be tried. 6. In order to prove the case, prosecution has examined altogether 17 prosecution witnesses and also exhibited a number of document up to Ext. 8. I. Shanti Tarkote, one of the sister of the victim has been examined as P.W.1. II. Sonu Angaria has been examined as P.W.2 but has been declared hostile by the prosecution. III. Jyoti Tarkote, informant of the case has been examined as P.W.3. IV. Victim has been examined as P.W.4. V. Raghu Tarkote, brother of the informant and the victim has been examined as P.W.5. VI. Chandu Munda, sister of the appellant has been examined as P.W.6. VII. Rakesh Karuwa has been examined as P.W.7. VIII. Dr. Santosh Kr. Srivastava has been examined as P.W.8. He is one of the Medical Officer of the Medical Board constituted by the Deputy Superintendent Dr. A.K.Mishra consisting of Dr. Meena Kalundia, Dr. Niru Jha and Dr. Santosh Kr. Srivastava who has proved his signature and signature of Dr. Niru Jha and Dr. Meena Kalundia on the medical report, which have been marked as Ext. 1, 1/1 and 1/2 respectively. IX. Madhusudan Das, Senior Medical Officer posted at Kiriburu General Hospital who has examined the victim on 06.11.2008 has been examined as P.W.9. Niru Jha and Dr. Santosh Kr. Srivastava who has proved his signature and signature of Dr. Niru Jha and Dr. Meena Kalundia on the medical report, which have been marked as Ext. 1, 1/1 and 1/2 respectively. IX. Madhusudan Das, Senior Medical Officer posted at Kiriburu General Hospital who has examined the victim on 06.11.2008 has been examined as P.W.9. Injury report issued by him has been subsequently marked exhibit 7 on proved by P.W.15 Durga Prasad. X. Chandra Mohan Bhanj has been examined as P.W.10. XI. Deepak Paswan has been examined as P.W.11 but has been declared hostile by the prosecution. XII. Dr. Meena Kalundia, one of the Medical Officer of the Medical Board who has examined the victim on 10.11.2008 with Dr. Santosh Kumar Srivastava and Dr. Niru Jha has been examined as P.W.12. She has proved the medical report, which has been marked as Ext.2. XIII. Dr. Niru Jha, another medical officer of the Medical Board has been examined as P.W.13 and her signature on the medical report has already been proved and marked as Ext.1/1. XIV. Nandlal Prasad, ASI being the first Investigating Officer, who has recorded the fardbeyan of the informant on 06.11.2008 at 9.30 Hrs at General Hospital, Kiriburu has been examined as P.W.14. He has proved the fardbeyan in his handwriting and signature which has been marked as Ext.3 and endorsement on the fardbeyan in his handwriting and signature which has been sent to Mahila Police Station for institution of the case, has been proved and marked as Ext.3/1.The signature of the Officer-In-Charge Sri Akshay Kr Ram of the Mahila P.S on the formal F.I.R has been proved and marked as Ext. 4. The medical requisition for examination of the victim prepared under carbon process in his handwriting and signature has been proved and marked as Ext.5. The application of this witness for recording of statement of the victim under Section 164 Cr.P.C prepared under the carbon process in his handwriting and signature has been proved and marked as Ext.6. XV. Durga Prasad, an advocate clerk has been examined as P.W.15. He has proved the medical report in handwriting and signature of Dr. Madhusudan Das, which has been marked as Ext.7. XVI. XV. Durga Prasad, an advocate clerk has been examined as P.W.15. He has proved the medical report in handwriting and signature of Dr. Madhusudan Das, which has been marked as Ext.7. XVI. Shyamlal Saroj, learned Chief Judicial Magistrate, Chatra has been examined as P.W.16, who has recorded the statement of the victim under Section 164 Cr.P.C bearing right thumb impression of the victim and the same has been read over and explained to the victim by the office clerk Ayub Honhaga and the certificate of which written by Ayub Honhanga has been proved and marked as Ext.8. XVII. Rama Shankar Pandey, ASI of Muffassil P.S. and part Investigating Officer of the case has been examined as P.W.17. He has submitted the charge-sheet under Section 376(2)(f) of the I.P.C against accused Manoj Kerai. 7. After closure of the prosecution evidence the accused Manoj Kerai has been examined under Section 313 Cr. P.C on 16.12.2013 where he has denied about his involvement in this case and has submitted that the elder sister of Jyoti Tarkote was interested in solemnizing her marriage with him, which he has refused and as such, he has been falsely implicated in this case. But no defence witness or document has been brought on record. 8. After hearing learned counsel for the parties and on the basis of materials available on the record, learned trial court has held the appellant guilty and convicted the appellant under Section 376(2)(f) of the I.P.C and sentenced him to undergo R.I. for life with a fine of Rs.5000/- and in case in default in payment of fine, he shall further undergo S.I for three months. 9. The instant criminal appeal has been preferred by the Jharkhand State legal Services Authority (JHALSA) through its panel lawyer assailing the impugned judgment of conviction and order of sentence. The same was admitted and has been placed for hearing. 10. Heard learned Amicus Curiae Mr. Rajesh Kumar Mahatha and learned counsel for the State Mr. Anand Kumar Pandey, Additional Public Prosecutor. 11. Learned Amicus Curiae Mr. Rajesh Kumar Mahatha has submitted that the impugned judgment of conviction and order of sentence passed by learned Trial Court is not sustainable in the eyes of law. Learned Amicus Curiae has submitted that though the victim P.W.4 was examined by the Medical Officer on the same day by Dr. 11. Learned Amicus Curiae Mr. Rajesh Kumar Mahatha has submitted that the impugned judgment of conviction and order of sentence passed by learned Trial Court is not sustainable in the eyes of law. Learned Amicus Curiae has submitted that though the victim P.W.4 was examined by the Medical Officer on the same day by Dr. Madhusudan Das (P.W.9) but he has not found any sign of rape and the medical report prepared in the handwriting of Dr. Madhusudan Das has been brought on record, which has been proved and marked as Ext.7. Learned Amicus Curiae has submitted that while examining the victim on 07.11.2008 the doctor has taken her consent and after that the doctor has medically examined her. The doctor during physical examination of the victim has observed as follows:- Physical Examination - Pubic and axillary hair absent - Breast not developed - Puberty not started - Behaviour of patient good - Clothing not changed - Urine / motion not passed - Bath not taken - Mental condition good Doctor on the basis of examination of the victim did not find any injury on the genital part nor any injury was found on the perineum and cervix or on cheeks; lips; breast; thigh or genitals. No spermatozoa was found in swab test. As per the opinion of the Doctor and senior consultant (O&G) of Kiriburu Hospital, there is no evidence of sexual harassment / rape. 12. Learned Amicus Curiae has thus submitted that on the date of alleged occurrence, without changing clothes or taking bath or even without passing of urine or motion, the victim was medically examined by the doctor, who has not found any sign of rape and as such the impugned judgment of conviction and order of sentence is bad in law and cannot sustain in the eyes of law. Learned Amicus Curiae has submitted that admittedly there is no eye witness to the occurrence and the statement of the victim given to her sister i.e., informant of the case, became the basis for institution of the F.I.R against the appellant. Learned Amicus Curiae has thus submitted that though informant has been examined P.W.3, she has categorically stated in para 9 of her deposition that she used to work in the house of the appellant as domestic help. Appellant is elder to her in age. Learned Amicus Curiae has thus submitted that though informant has been examined P.W.3, she has categorically stated in para 9 of her deposition that she used to work in the house of the appellant as domestic help. Appellant is elder to her in age. He has never tried to catch hold of her while she was working nor has tried to entice her nor has ever touched her body or hand and other family members were also residing in the house with appellant. Informant has categorically stated that even after taking liquor the accused has not done any indecent act with her, rather she has stated that while she was working in the house of the appellant, behavior of the appellant was good. Learned Amicus Curiae has thus submitted that informant who is grownup lady, has not experienced any indecent act by the appellant while she was working in the house of the appellant as domestic help but prosecution has been initiated on her statement as disclosed by the victim P.W.4, who has not attained the age of puberty and her secondary sexual character has not developed as it appears from the medical report. Though there is no positive sign of rape and the medical officer has completely ruled out the commission of rape / sexual assault through Ext. 7, even then the learned Trial Court has convicted the appellant under Section 376(2)(f) of the I.P.C. As such the impugned judgment of conviction and order of sentence is bad in law. 13. Learned Amicus Curiae has further drawn attention of this Court towards the medical evidence of the Medical Board constituted dated 10.11.2008. The medical report has been proved and marked as Ext. 2 prepared by Dr. S.K.Srivastava (P.W.8) Dr. Niru Jha (P.W.13) and Dr. Meena Kalundia (P.W.12), who are members of the Medial Board and their signature have already been proved and marked as Ext. 1, 1/1 and 1/2. From the opinion of the Medical Board, no spermatozoa dead or alive has been found. As per the radiological report, victim is aged about 6 years. As per the opinion of the Medical Board, forceful penetration of vagina has been tried. 1, 1/1 and 1/2. From the opinion of the Medical Board, no spermatozoa dead or alive has been found. As per the radiological report, victim is aged about 6 years. As per the opinion of the Medical Board, forceful penetration of vagina has been tried. Learned Amicus Curiae has thus submitted that though this medical report is of subsequent date 11.11.2008 i.e., after 4 days of the alleged occurrence but that also does not support the case of the prosecution so far as rape or sexual assault upon the victim is concerned. Learned Amicus Curiae has thus submitted that on that basis the impugned judgment of conviction and order of sentence is not sustainable in the eyes of law. 14. To buttress his arguments, learned Amicus Curiae has placed the un-amended provision of section 375 I.P.C which reads as under: “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.” Learned Amicus Curiae has thus submitted that the ingredients constituting rape as defined under the provision of Section 375 is not present in the instant case and as such conviction of the appellant is not sustainable in the eyes of law. Learned Amicus Curiae has further submitted that considering the lack of evidence adduced by the prosecution, appellant deserves to be acquitted from the charge and conviction under Section 376(2)(f) of the I.P.C. 15. Learned counsel for the State Mr. Anand Kumar Pandey, Additional Public Prosecutor has vehemently argued the case and submitted that the impugned judgment of conviction and order of sentence has been passed by the learned Trial Court on the basis of the materials brought on record. Learned counsel for the State has submitted that the victim is a minor girl of 6 years age and she has been sexually ravished by this appellant by enticing her to provide toffee. Appellant has failed to prove any grudge of victim in falsely implicating him. Learned counsel for the State has submitted that the victim (P.W.4) came to her house crying and disclosed the occurrence to her sister, informant (P.W.3) and thereafter while she was crying, other residents of the mohalla also came there. They have heard about the occurrence and caught the appellant. The appellant was produced before the police by the people of the mohalla. Even the sister of the appellant, Chandu Munda who has been examined in this case as P.W.6, has supported the case of the prosecution. She has stated in her examination-in-chief that she had seen that the residents of mohalla were assaulting her brother in the evening three years ago and took him to the police station. Learned counsel for the State has submitted that the victim was examined under section 164 Cr.PC by the Chief Judicial Magistrate on 11.11.2008 which has been proved and marked as Ext.8, wherein she has supported her case. Learned counsel for the State has submitted that the victim is a minor girl and as such, apparent injury has not been found because of elasticity remains in hymen at that age, but the victim has supported her case in her evidence. As such, the conviction of the appellant on the basis of the materials brought on record, does not warrant interference by this Court. Learned counsel for the State has thus submitted that this Court may upheld the impugned judgment of conviction and order of sentence in view of the medical evidence (Ext.2) which shows that forceful penetration of vagina has been tried. Learned counsel for the State has thus submitted that this Court may upheld the impugned judgment of conviction and order of sentence in view of the medical evidence (Ext.2) which shows that forceful penetration of vagina has been tried. As such, conviction of the appellant under section 376(2)(f) I.P.C is sustainable in the eyes of law as the victim is aged about 6 years. 16. Heard, learned Amicus Curiae Mr. Rajesh Kumar Mahatha; learned counsel for the State Mr. Anand Kumar Pandey, Additional Public Prosecutor; perused the materials brought on record including the First Information Report; framing of the charge; evidence of 17 prosecution witnesses; 8 prosecution exhibits; statement of the accused recorded under Section 313 Cr.P.C and the impugned judgment of conviction and order of sentence. 17. While scrutinizing the evidence, this Court has minutely gone through the First Information Report. From perusal of the First Information Report, it appears that Jyoti Tarkote (P.W.3) is the informant of the case being elder sister of the victim (P.W.4). As per the information disclosed by the victim (P.W.4), FIR has been lodged against Manoj Kerai who was caught by the people of the mohalla and has confessed his guilt. The victim was examined under section 164 Cr.PC on 11.11.2008 and her statement has been recorded by the learned Chief Judicial Magistrate, which has been brought on record as Ext.8. Victim was initially examined by the Medical Officer. The medical report has been brought on record, which has been proved and marked as Ext.7. As per the medical evidence dated 07.11.2008 (Ext.7) brought on record, doctor has categorically stated that there is no evidence of sexual harassment / rape. 18. During trial, several witnesses have been examined on behalf of the prosecution. Shanti Tarkote who is the eldest sister of the victim, has been examined as P.W.1. Though she has not been declared hostile by the prosecution, but she has not supported the case of the prosecution. Her evidence suggest that she was cross-examined initially by the prosecution and as such, her evidence is of no value in the present case. She has categorically stated that her statement has not been recorded by the police during investigation. Sonu Angaria, a neighbourer, has been examined as P.W.2. He has not supported the case of the prosecution and has been declared hostile by the prosecution. She has categorically stated that her statement has not been recorded by the police during investigation. Sonu Angaria, a neighbourer, has been examined as P.W.2. He has not supported the case of the prosecution and has been declared hostile by the prosecution. Jyoti Tarkote, informant of the case, has been examined as P.W.3. She has lodged the First Information Report on the basis of the disclosure made by the victim(P.W.4). She has stated in her cross-examination that when her sister returned, at that time, her pant was opened and blood was oozing, who disclosed that rape has been committed. On that day, her sister had worn salwar suit of white colour, but there was no mark of injury on her body or any stain on her salwar, rather there was some stain of soil on her clothes. Though, in her statement at para-9 of her cross-examination, this witness has stated that while she was working in the house of the appellant as a domestic help, appellant has never tried to catch hold of her, nor has tried to entice her, nor has even touched her body or hand. She has further stated that even after taking liquor, appellant has never done any indecent act with her, rather at para-11, she has categorically stated that when she was working in the house of the appellant, his behaviour was decent. The victim has been examined as P.W.4. She has stated that while she was playing with other children, the appellant Manoj Kerai came there and asked her to go with him on the pretext of providing her something to eat and thereafter, lifted her in the lap, gave her biscuits from the shop and taking her near culvert and after breaking rope of her undergarment he slept over her. When the victim started crying, she was assaulted on her cheek by the appellant and thereafter victim came running to her house and disclosed the occurrence to her sister. Victim has identified the appellant present in the dock and said that he has slept over her. The victim was cross-examined by the defence at length, but nothing has been elucidated to disbelieve the prosecution case. 19. Raghu Tarkote is the brother of the victim and informant. He has been examined as P.W.5. Victim has identified the appellant present in the dock and said that he has slept over her. The victim was cross-examined by the defence at length, but nothing has been elucidated to disbelieve the prosecution case. 19. Raghu Tarkote is the brother of the victim and informant. He has been examined as P.W.5. He is a hearsay witness who got information about the occurrence from the victim after she returned at 6.00 pm to her house. Her sister has stated that by opening her skirts, Manoj had done bad things with her. He is a hearsay witness whose evidence is based on the disclosure made by the victim. Chandu Munda is the sister of the appellant. She has been examined as P.W.6. She has supported the prosecution case, though, being the sister of the appellant, to the extent that three years ago, Manoj was assaulted by the residents of mohalla and has been taken to the police station. This witness has not been cross-examined by the defence. Rakesh Karuwa has been examined as P.W.7. He is a hearsay witness who has not been cross-examined by the defence. 20. Dr. Santosh Kumar Srivastava, one of the Medical Officer of the Medical Board, has been examined as P.W.8. He has proved his signature as well as signature of Dr. Niru Jha and Dr. Meena Kalundia on the medical report dated 11.11.2008, which have been marked as Ext.1, 1/1 and ½ respectively. Another doctor of the Medical Board Dr. Meena Kalundia has been examined as P.W.12. She has proved the medical report with her signature as well as the signature of Dr. S.K. Srivastava and Dr. Niru Jha, which has been marked as Ext.2. The doctor has opined that radiologically, the victim is aged about 6 years. As per the final opinion of the Medical Board, forceful penetration of vagina has been tried. Another Medical Officer of the Medical Board Dr. Niru Jha, has been examined as P.W.13. Her signature on the report of Medical Board has already been proved and marked as Ext.1/1. Apart from these three Medical Officers, Dr. Madhusudan Das, who has examined the victim on 6.11.2008 at Kiriburu General Hospital, has been examined as P.W.9. He has not found any stain of blood, semen or mud, nor any injury was detected over perineum and cervix. No injury was found on cheek, lips, breast, thigh or genitals. Apart from these three Medical Officers, Dr. Madhusudan Das, who has examined the victim on 6.11.2008 at Kiriburu General Hospital, has been examined as P.W.9. He has not found any stain of blood, semen or mud, nor any injury was detected over perineum and cervix. No injury was found on cheek, lips, breast, thigh or genitals. No spermatozoa was found in swab test. As per the clinical finding, there is no evidence of sexual harassment / rape. 21. Chandra Mohan Bhanj, a hearsay witness, has been examined as P.W.10. Deepak Paswan (P.W.11), another hearsay witness, has been declared hostile by the prosecution. Nand Lal Prasad, who is the Investigating Officer of the case, has been examined as P.W.14. He has recorded the fardbeyan of the informant and thereafter, investigated the case. He has inspected the place of occurrence and after part investigation, he has handed over the charge to the another Investigating Officer Rama Shankar Pandey who has been examined as P.W.17. He has submitted charge sheet. Durga Prasad, an Advocate Clerk, has been examined as P.W.15. He has proved the medical report of Dr. Madhusudan Das (P.W.9), which has been marked as Ext.7. Though this witness has stated that the report has not been prepared in his presence, rather he has only identified the handwriting and signature. Shyam Lal Saroj has been examined as P.W.16. He is the Chief Judicial Magistrate who has recorded the statement of the victim under section 164 Cr.PC, which was read over and explained to her and to that effect, a certificate has been written in the handwriting of his clerk Ayub Honhaga, which has been proved and marked as Ext.8. 22. From perusal of the materials on record, it appears that the initial medical report brought on record as Ext.7 prepared by Dr. Madhusudan Das (P.W.9) suggests that no sexual assault / rape has been committed on the victim nor any blood or semen was found or spermatozoa was found. Another medical report prepared by the Medical Board consisting of Dr. Santosh Kumar Srivastava (P.W.8), Dr. Meena Kalundia (P.W.12) and Dr. Niru Jha(P.W.13) marked as Ext. 2 suggest that forceful penetration of vagina has been tried. The age of the victim has been assessed by the Medical Board on the basis of radiological test in about 6 years. Another medical report prepared by the Medical Board consisting of Dr. Santosh Kumar Srivastava (P.W.8), Dr. Meena Kalundia (P.W.12) and Dr. Niru Jha(P.W.13) marked as Ext. 2 suggest that forceful penetration of vagina has been tried. The age of the victim has been assessed by the Medical Board on the basis of radiological test in about 6 years. The statement of the victim recorded under Section 164 Cr.P.C has been proved and marked as Ext. 8 shows that she was disrobed from the lower part and thereafter appellant has slept over her. She has categorically stated that the appellant has committed wrong thing with her. 23. From perusal of Ext. 2, it appears that Medical Board has mentioned redness on vulvar region and fourchette present but hymen intact. Reliance is placed upon the judgment in the case of Madan Gopal Kakkad Vrs. Naval Dubey and another reported in 1992(3) SCC 204 , para 35 to 44 and 48 are quoted hereunder: 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. 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.” (emphasis supplied) 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. 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. 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. 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. 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.” 24. In light of the judgment in the case Madan Gopal Kakkad (supra), we have analyzed the evidence brought on record. Ext.2 shows hymen intact, redness on vulvar region and fourchette present and forceful penetration of vagina has been tried though spermatozoa was not found dead or alive. From the ocular evidence it is apparent that victim was enticed by the appellant on allurement of providing toffee. Thereafter she was sexually assaulted by the appellant though the hymen did not rupture but there was an attempt of forceful penetration of vagina i.e., vulvar region which consist of labia majora and labia minora. That is the reason that Medical Board has found redness in vulvar region and fourchette. The presence of semen is not found and the hymen was not ruptured and thereby the appellant was not satisfied with his lust. Modi Medical Jurisprudence and Toxicology (Twenty-first Edition) at page 369 has been quoted at para 37 of the judgment of Madan Gopal Kakkad (supra). It has been explained in Modi Medical Jurisprudence that it is quite possible to commit legally the offence of rape without producing any injury to the genital or leaving any seminal stains. In such a case, the medical officer should mention the negative facts in his record but should not give any opinion that no rape has committed. Rape is crime and not a medical condition. Rape is 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. Rape is crime and not a medical condition. Rape is 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 and not a medical one. The medical evidence brought on record in the present case coupled with the statement of the victim PW4 recorded under Section 164 Cr.P.C which has been proved and marked Ext. 8 and her testimony as P.W4 brings the case of the appellant under un-amended provision of Explanation no.1 of Section 375 of the I.P.C for which punishment has been laid down under Section 376 of the I.P.C. 25. Reliance is also placed on a judgment rendered by the Apex Court in the case of Radhakrishna Nagesh Vrs. State of Andhra Pradesh as reported in (2013)11 SCC 688 , para32 is quoted hereunder:- “32. In light of the above judgments, it can safely be concluded that there was limited penetration due to which probably the hymen of the victim girl was not ruptured. The Court should adhere to a comprehensive approach in order to examine the case of the prosecution. But as regards the facts and circumstances of the present case, the presence of the element of mens rea on part of the accused cannot be denied. He had fully prepared himself. He first lured the girl not only by enticing her, but even by actually purchasing bangles for her. Thereafter, he took the girl to a room where he threatened her of physical assault as a consequence of which the girl did not raise protest. This is why no marks of physical injury could be noticed on her body. The absence of injuries in the context of the present case would not justify drawing of any adverse inference against the prosecution, but on the contrary would support the case of the prosecution”. From perusal of the same and compared the same with the evidence of the present case, it appears that absence of any injury on the victim is because she was initially enticed by providing chocolate and also threatened by physical assault as a consequence of which the victim did not raise protest. From perusal of the same and compared the same with the evidence of the present case, it appears that absence of any injury on the victim is because she was initially enticed by providing chocolate and also threatened by physical assault as a consequence of which the victim did not raise protest. That is the reason that no mark of physical injury could be noticed on her body. The absence of injury in this context would not justify to draw any adverse inference against the prosecution but to the contrary supported the case of the prosecution where victim is a minor girl and as such redness has been found in vulvar region and fourchette. 26. Under the aforesaid circumstances, on careful scrutiny of the prosecution evidence, we are of the opinion that learned Trail Court has rightly convicted the appellant under Section 376(2)(f) of the I.P.C. and the same is upheld and affirmed. So far as the sentence awarded by the learned Trial Court is concerned, considering the nature of allegation, conduct of the appellant, his character as described by the informant P.W.3 in paras 9, 10 and 11 of her cross examination and his young age, we are of the opinion that the sentence imposed by the learned Trial Court is excessive and as such the same warrants interference by this Court. 27. Considering the totality of the matter, we modify the sentence of R.I. for life imposed on the appellant Manoj Kerai to R.I. for 10 years. The appellant has remained in custody for more than 11 years. As such, the period already undergone by the appellant is sufficient. Accordingly, the appellant Manoj Kerai is directed to be released forthwith, if not wanted in any other case. 28. Accordingly, the criminal appeal is dismissed with modification in the sentence. 29. Let a copy of the judgment along with the Lower Court Record be sent down to the Court below. 30. Before parting, we appreciate the valuable assistance rendered by learned Amicus Curiae Mr. Rajesh Kumar Mahatha in assisting the Court. We direct the Secretary, Jharkhand High Court Legal Services Committee to release his admissible legal remuneration within a period of 4 weeks from the date of production of certified copy of the judgment along with an application.