Batta, J.
1. The appellant was tried for the offence of rape on prosecutrix aged 7 years and has been convicted by the impugned judgment, which is challenged in this appeal, to undergo Rigorous Imprisonment for 10 years and fine of Rs. 5,000/- in default, six months' Rigorous Imprisonment. The period of detention during the trial with effect from 27-1-92 to 27-2-92 has been ordered to be set-off in accordance with Section 428, Cr.P.C. The appellant has been convicted under section 376(2)(f) of the I.P.C.
2. The prosecution case lies in a narrow compass. The appellant along with his parents are staying in a house in separate portion and the other portion of the house is occupied by the father of the prosecutrix. The father of the appellant and the father of the prosecutrix are brothers. Besides the said brothers, the other brothers are also occupying the joint house, but all of them live in separate portions. The prosecution case is that on 26th January, 1992 prosecutrix went to the School at about 8.00 a.m. to attend flag hoisting ceremony in the School and returned back at about 10.00 a.m. The father of the prosecutrix and her mother had left the house and the only other member of their family namely the brother of the prosecutrix was also not there in the house on that day. After the prosecutrix returned from the flag hoisting ceremony, she removed her dress which she had worn for the purpose of attending flag hoisting ceremony and put on a petticoat after which she went out of the house to look for her mother. When she reached near the Tulsi plant, which is in front of their house, the appellant caught hold of her mouth, lifted her and took her to the cattle shed. Thereafter the appellant removed her underwear as well as his own underwear and had sexual intercourse with her. The prosecutrix had bleeding injuries and swelling on her private parts. In the evening at about 6.00 p.m. the mother of the prosecutrix, who has been examined as P.W. 8, returned home and found the prosecutrix lying on a bench. On seeing her mother, the prosecutrix started crying P.W. 8, mother of the prosecutrix made inquiries with the prosecutrix as to what had happened, but initially she was reluctant to say anything. However, when she persisted in making inquires with her, she revealed that the appellant had sexual intercourse with her and as a result of which she was bleeding and there was pain in her private parts. P.W. 8 found that the underwear of the prosecutrix was missing and the private parts of the prosecutrix were swollen. The prosecutrix was even finding it difficult to stand or sit. In the meantime the father of the prosecutrix also arrived. The mother of the prosecutrix informed him what had happened. He also independently made inquiries with the prosecutrix and the prosecutrix also revealed to him as to what had happened. The father of the prosecutrix tried to contact the appellant and his father, but they were not available in the house. Thereafter the father of the prosecutrix took her to the Police Station and lodged F.I.R. (Exh. PW. 1/A). The said F.I.R. was lodged at 22.15 hours on 26-1-92 itself. On the same night, the Police recorded the statement of P.W. 8, mother of the prosecutrix. On 27-1-92 the prosecutrix was sent for medical examination to Goa Medical College where Dr. Audi, P.W. 4 examined her. On examination he found that on the private parts of the prosecutrix there was a bruise of 4 x 3 cms. in inner part of both libia majora and besides that there was a tear of 0.5 cms. x 0.5 cms. on the fourchette. He did not find any injury on the hymen. The margin of tear in the fourchette was bleeding on touch and swollen. In the opinion of Dr. Audi, P.W. 4 a hard and blunt object may be erected penis penetrated in the private part causing tear in the private part. The age of the tear was less than 24 hours at the time of examination and at any rate it could not be more than 36 hours.
3. On 27-1-92 the appellant was found lying near the house of his Aunt and she reported the same to Arvind Pednekar, P.W. 10. The said Arvind Pednekar informed the Police. The appellant was sent for examination to Asilo hospital where he was examined by Dr. Maria Silva, P.W. 3 at 6.00 p.m. on 27-1-92. According to her, she examined the appellant, who was brought by Mapusa Police, with the history of consumption of poison. The appellant was arrested and after completing the investigation charge-sheet was filed.
4. The case of the appellant was that of total denial and two witnesses were examined on behalf of the appellant.
5. The lower court accepted the evidence of the prosecutrix P.W. 9, her mother P.W. 8, her father P.W. 1 and medical evidence of Dr. Audi P.W. 4. Before examining the prosecutrix, her competency as a witness was determined under section 118 of the Indian Evidence Act. The lower Court also found that the prosecutrix or her parents did not have strong motive to falsely implicate the appellant. Accordingly, the lower Court convicted the appellant as aforesaid.
6. Learned Advocate Shri S. D. Lotlikar, appearing for the appellant, submitted that even if the prosecution evidence is taken in its totality, no offence of rape has been established by the prosecution. He took us through the evidence of P.W. 1 father of the prosecutrix P.W. 8, mother of the prosecutrix as well as the evidence of the prosecutrix P.W. 9. His main contention on this evidence is that the prosecutrix has not revealed any material details of the offence in question and on the basis of the evidence on record it cannot be concluded that there was penetration. In this respect he has drawn our attention to the evidence of Dr. Audi, P.W. 4 and more specifically to the fact that there are no injuries on the inner aspect of the thighs and absence of injuries on the vaginal walls. His contention further is that the prosecution has failed to prove that there was any penetration and the evidence of Dr. Audi is not sufficient to come to the conclusion that there was penetration within the meaning of the law. Relying upon the judgment of the apex Court in State of Karnataka v. Sureshbabu Puk Raj Porral, : 1994CriLJ1216 it has been contended that in the absence of narration of the details of the incident by the prosecutrix, the lower Court erred in convicting the appellant under section 376 of I.P.C.
7. Government Advocate Shri G. U. Bhobe, on the other hand, submitted that from the evidence on record it has been proved that the incident took place on the flag hoisting day i.e. on 26th January, 1992. His further contention is that the prosecutrix being too young, it is no expected from her that she would give details as to how the intercourse took place; that the prosecutrix in unambiguous terms has stated that the appellant removed her underwear and thereafter his. According to Shri Bhobe, this evidence of the prosecutrix has to be examined in the light of what was revealed by her to her parents on their return to the house. Shri Bhobe also took us through the evidence of P.W. 1 and P.W. 8, parents of the prosecutrix and submitted that the prosecutrix in unambiguous terms had informed them as to what had happened. In addition, the private parts of the prosecutrix were found to be swollen and this aspect of the matter has been fully proved through the evidence of Dr. Audi, P.W. 4. According to Shri Bhobe, the evidence of Dr. Audi does not leave any scope for doubt that there was definitely penetration and as such there is no reason whatsoever to interfere with the conviction as well as the sentence imposed by the lower Court.
8. We have examined the record and canned through the evidence on record. Besides the evidence of the prosecutrix, her parents and medical evidence of Dr. Audi, the evidence of Dr. Maria Silva P.W. 3 and that of Arvind Pednekar, P.W. 10 has also an important bearing in the matter to which we will refer at a later stage after examining the evidence of prosecutrix, her parents and Dr. Audi.
9. The prosecution case is that the incident in question took place on 26th January, 1992 on the flag hoisting day. The prosecutrix herself as well as her mother P.W. 8 have stated that the incident in question took place on flag hoisting day. The prosecution had also examined P.W. 5 Manohar Bhandare who is teaching in the School in which the prosecutrix was studying in Std. II. He has stated that on 26th January, 1992, being Republic Day, there was flag hoisting in the School in the morning at 8.30 a.m. and it got over by 9.30 to 10.00 a.m. He has further stated that the prosecutrix had attended the flag hoisting occasion on that day.
10. The prosecutrix had left for attending flag hoisting ceremony in her School at about 8.00 a.m. Her parents had also left the house and only other member of their family namely her brother was not there in house on that day. The prosecutrix has deposed that after she returned from flag hoisting, she saw the appellant standing outside the house in the courtyard; the appellant took her into the cow shed, removed her underwear and also his underwear and threatened to kill if she disclosed to her mother.
11. At this stage, we would like to refer to the evidence of P.W. 1 and P.W. 8 in order to note down the details relating to the said cow shed where the incident is reported to have taken place. P.W. 1, father of the prosecutrix has stated that it is not possible to look at the cattle shed from the house, but the cattle shed can be seen from 'Tulsi' plant if one stands there. The said Tulsi plant is on the front side of the house. At the relevant time the cattle shed was being used by all the five brothers, but according to P.W. 8 on the relevant date of the incident there were no cattle in the cow shed. P.W. 1 has further stated that on one side that is the front side there is a wall to the cow shed and on all remaining sides there are banana plantation, as a result of which it is not possible for anyone to see the people entering the cow shed or standing there from outside. The position of the cow shed, as revealed by P.W. 1, would go to show that if a person was standing outside the cow shed it would not be possible to know what was happening in the cow shed. P.W. 8, the mother of the prosecutrix has also confirmed this fact when she states that if one person stands outside the cow shed it is not possible to see completely as to what is going on in the cow shed. She has stated that there was no cattle in the cow shed on the date of the incident and height of the cow shed is about 2 metres and there is a wall of one metre on the sides.
12. Reverting back to the prosecution case and more particularly to the evidence of the parents of the prosecutrix, it is to be noted that the prosecutrix had informed them as to what had happened. P.W. 8, mother of the prosecutrix had found that the prosecutrix was lying on the bench and upon persistent inquires made with her, she revealed that the appellant had sexual intercourse with her. It is pertinent to note that on seeing her mother, the prosecutrix started crying which is the normal reaction of a child after passing through a traumatic incident. The prosecutrix complained of having pain in her private parts and on examination of her private parts, P.W. 8 found that her underwear was missing and her private parts were swollen. Thus, even though the prosecutrix has not given the details, in her deposition in the Court, she has divulged the incident to her mother and subsequently to her father as well on their return to the house after 6.00 p.m. on the date of the incident itself.
13. We are in agreement with the contention of Public Prosecutor, Shri Bhobe that it is too much to expect that a child 6 1/2 years would give minute details of what had happened and the Court has to take into consideration the totality of the circumstances available on record to come to some finding in this matter. The ruling upon which reliance has been placed by Advocate Shri Lotlikar cannot be applied to the facts and circumstances of the case before us. In the said case the prosecutrix was 16 years old and was not able to state what the accused had done and she went on saying that the accused did something to her which he ought not to have done. In the case before us the prosecutrix herself is hardly 6 1/2 and as we have already pointed out that it is too much to expect from her to give exact details of the incident.
14. Learned Advocate Shri Lotlikar had drawn our attention to the fact that the mother of the prosecutrix had in fact not stated in her Police statement that the prosecutrix had revealed to her that the appellant had sexual intercourse with her. She was confronted with her Police statement where the fact of sexual intercourse specifically was not recorded. However, what was stated by P.W. 8 in her Police statement was that her daughter informed her that the appellant did something in her private parts and with his private part in the afternoon in the cow shed. Probably more than that could not be expected from a girl of 6 1/2 years old. It is important to note that the statement of P.W. 8 was promptly recorded by the Police on the intervening night on 26th January to 27th January, 1992.
15. Coming to the evidence of P.W. 1, it is to be noted that after his return from work in the evening, he was informed of the incident by his wife, P.W. 8. P.W. 8 revealed to P.W. 1 that the prosecutrix had injuries on her private parts which were swollen. P.W. 1 also independently made inquires with the prosecutrix and she informed him that on reaching near the 'Tulsi' plant the accused came and caught hold of her, by holding her mouth, lifted her and took her to the cattle shed. She also revealed that the accused had thrown her on the ground, removed her dress and she sustained bleeding injuries/swelling on her private parts. According to P.W. 9 she was bleeding profusely from her private parts. The fact of bleeding gets complete corroboration from the evidence of Dr. Audi who examined the prosecutrix on 27-1-92 and according to him he found that the margin of the tear in the fourchette was swollen and bleeding on touch. The father of the prosecutrix promptly lodged the F.I.R. with the Police at 22.15 hours.
16. A vague attempt was made in the lower Court to demonstrate that the appellant had been falsely implicated in the crime on account of enmity between the families of the prosecutrix and that of the appellant. The father of the appellant and the father of the prosecutrix are brothers.
17. The first suggestion on this aspect which was put to P.W. 1, father of the prosecutrix was that he along with his brother and father were convicted in a murder case of Krishna Mandrekar. This does not seem to have any bearing on the question of previous enmity between the two brothers. Admittedly the father of the appellant and the father of the prosecutrix were not in visiting terms and were not speaking to each other on account of some civil dispute which was pending. But, this by itself cannot be treated as a strong motive on the part of the prosecutrix to implicate the appellant in the crime. The manner in which the prosecutrix revealed the incident to her parents inspires confidence in what was revealed by her to them.
18. The next challenge which in fact is the major challenge of Advocate Shri Lotlikar is that there was no penetration and for that purpose we have to examine the evidence of Dr. Audi. P.W. 4 who had examined the prosecutrix on 27th January, 1992. He has stated that on examination he found that on the private part there was a bruise of 4 x 3 cms. in the inner part of both labia majora. A tear of 0.5 cms. x 0.5 cms. was also present on the fourchette. Margin of the tear in the fourchette was swollen and was bleeding on touch. It is also stated that no injuries were present on the hymen. According to Dr. Audi a hard blunt object may be erected had penetrated in the private part causing tear in the private part. The age of the tear was less than 24 hours at the time of examination and at any rate it could not be more than 36 hours. It is no doubt true that there were no injuries on the inner aspect of the thighs of the prosecutrix and the vaginal walls were normal. But on the basis of the injuries found on the private parts of the prosecutrix, Dr. Audi was of the opinion that a hard blunt object may be erected penis, penetrated in the private part causing tear in the private part. Explanation to Section 375 lays down that penetration is sufficient to constitute sexual intercourse necessary for the offence of rape. It is now well settled that in order to constitute penetration it must be proved that some part of the virile member of the accused was within the labia of the pudendum of the woman, no matter how little. The only thing to be ascertained is whether the private parts of the accused did enter into the person of the woman. It is not necessary to decide how far they entered. It is also well settled that it is not essential that the hymen should be ruptured, provided it is clearly proved that there was penetration even though partial. Modi's Medical Jurisprudence and Toxicology. Twenty-First Edition at page 369 has made the following observations on this aspect :-
'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 respect of the injuries found on the fourchette, it has been observed in Modi's Medical Jurisprudence and Toxicology at page 375 as under :-
'The fourchette and posterior commissural are not usually injured in cases of rape, but they may be torn, if the violence used in very great indeed. The extent of injury to the hymen and genital canal depends upon the degree of disproportion between the genital organs of both parties and the violence used on the female.
In small children the hymen is not usually ruptured, but may become red and congested along with the inflammation and bruising of the labia. If considerable violence is used, there is often laceration of fourchette and perinaeum.'
19. In the light of the above and more particularly the evidence of Dr. Audi, we do not find any substance in the contention advanced by Shri Lotlikar that the prosecution has failed to prove that there was any penetration in this case.
20. On the question of corroboration of the evidence of the prosecutrix, the apex Court in Bharwada Bhoginbhai Hirjibhai v. State of Gujarat, : 1983CriLJ1096 has made observations which have material bearing in the matter :-
'Corroboration is not the sine qua non for a conviction in a rape case. In the Indian setting, refusal to act on the testimony of a victim of sexual assault in the absence of corroboration as a rule is adding insult to injury. Why should the evidence of the girl or the woman who complains of rape or sexual molestation be viewed with the aid of spectacles fitted with lenses tinged with doubt, disbelief or suspicion To do so is to justify the charge of male chauvinism in a male dominated society. : 1952CriLJ547 Rel. on (Paras 7, 9).'
A girl or a woman in the tradition bound non-permissive society of India would be extremely reluctant even to admit that any incident which is likely to reflect on her chastity had ever occurred. She would be conscious of the danger of being ostracized by the society or being looked down by the society including by her own family members, relatives, friends and neighbours. She would face the risk of losing the love and respect of her own husband and near relatives, and of her matrimonial home and happiness being shattered. If she is unmarried, she would apprehend that it would be difficult to secure an alliance with a suitable match from a respectable or an acceptable family. In view of these and similar factors the victims and their relatives are not too keen to bring the culprit to books. And when in the face of these factors the crime is brought to light there is a built-in assurance that the charge is genuine rather than fabricated. (Paras 9, 10, 11).
On principle the evidence of a victim of sexual assault stands on par with evidence of an injured witness. Just as a witness who has sustained an injury (which is not shown or believed to be self inflicted) is the best witness in the sense that he is least likely to exculpate the real offender, the evidence of a victim of a sex-offence is entitled to great weight, absence of corroboration notwithstanding. And while corroboration in the form of eye witness account of an independent witness may often be forthcoming in physical assault cases, such evidence cannot be expected in sex offences, having regard to the very nature of the offence. It would therefore be adding insult to injury to insist on corroboration drawing inspiration from the rules devised by the Courts in the Western World. If the evidence of the victim does not suffer from any basic infirmity, and the 'probabilities factor' does not render it unworthy of credence, as a general rule, there is no reason to insist on corroboration except from the medical evidence where, having regard to the circumstances of the case, medical evidence can be expected to be forthcoming subject to the following qualification : Corroboration may be insisted upon when a woman having attained majority is found in a compromising position and there is a likelihood of her having levelled such an accusation on account of the instinct of self-preservation. Or when the 'probabilities factor' is found to be out of tune.'
21. The apex Court in State of Maharashtra v. Chandraprakash Kewalchand Jain, : 1990CriLJ889 has reiterated the principles laid down by the apex Court earlier and it is necessary to quote the following observations of the apex Court at page 894, of Cri LJ :
'A prosecutrix of a sex offence cannot be put on part with an accomplice. She is in fact a victim of the crime. The Evidence Act nowhere says that her evidence cannot be accepted unless it is corroborated in material particulars. She is undoubtedly a competent witness under section 118 and her evidence must receive the same weight as is attached to an injured in cases of physical violence. The same degree of care and caution must attach in the evaluation of her evidence as in the case of an injured complainant or witness and no more. What is necessary is that the court must be alive to and conscious of the fact that it is dealing with the evidence of a person who is interested in the outcome of the charge levelled by her. If the court keeps this in mind and feels satisfied that it can act on the evidence of the prosecutrix, there is no rule of law or practice incorporated in the Evidence Act similar to illustration (b) to Section 114 which requires it to look for corroboration. If for some reason the court is hesitant to place implicit reliance on the testimony of the prosecutrix it may look for evidence which may lend assurance to her testimony short of corroboration required in the case of an accomplice. The nature of evidence required to lend assurance to the testimony of the prosecutrix must necessarily depend on the facts and circumstances of each case. But if a prosecutrix is an adult and of full understanding the court is entitled to base a conviction of her evidence unless the same is shown to be infirm and not trustworthy. If the totality of the circumstances appearing on the record of the case disclose that the prosecutrix does not have a strong motive to falsely involve the person charged, the court should ordinarily have no hesitation in accepting her evidence.'
The said principles have been once again reaffirmed by the apex Court in State of Punjab v. Gurmit Singh, : 1996CriLJ1728 .
22. The law laid down by the Apex Court is that there is no rule of law or practice that the evidence of the prosecutrix cannot be relied upon without corroboration and as such it has been laid down that corroboration is not a sine qua non for a conviction in a rape case. If the evidence of the victim does not suffer from any basic infirmity and the 'probabilities factor' does not render it unworthy of credence, as a general rule, there is no reason to insist on corroboration except from medical evidence, where, having regard to the circumstances of the case, medical evidence can be expected to be forth-coming.
23. Applying the said principles laid down by the Apex Court we find that there is no reason to either disbelieve or discard the testimony of the prosecutrix which is fact gets complete corroboration from the testimony of her parents to whom she revealed the incident as soon as they returned home and in addition to that there is perfect corroboration of medical evidence of Dr. Audi (P.W. 4) on record.
24. Another aspect having some material bearing in the matter to which we have referred to earlier is the fact that on 27th January, 1992 the appellant was found lying near her Aunt's house and this fact was reported by his Aunt to P.W. 10 Arvind Pednekar who in turn reported the matter to the Police. It is also important to note that the father of the prosecutrix had gone to the portion occupied by the appellant and his father, but none of them were available there and the defence case was that he had gone to his Aunt's house. The appellant was taken for examination to Asilo hospital where he was examined by Dr. Maria Silva at 6 p.m. on 27-1-92. He was taken there with the history of alleged consumption of poison. According to her, the patient was given adequate treatment and the nature and intensity of poisoning can be determined only after a chemical analysis of the gastric contents. She told the police party who had brought the appellant that if the appellant shows any sign of delirious state and abnormal behaviour he should be brought to the hospital. Of course after clinical examination she did not find signs of poisoning. Even though the gastric contents were sent for chemical analysis, the report of the Chemical Analyser was not produced. This circumstance further lends support to the prosecution case regarding the involvement of the appellant in the incident and reflects repentance on the part of the appellant in relation to the incident in question.
25. For the aforesaid reason, we are of the opinion that the conviction of the appellant is well founded and we do not see any reason to interfere with the said conviction. Coming to the question of sentence which has been imposed by the lower Court, it has been urged by Advocate Shri Lotlikar that taking into consideration the facts and circumstances and the fact that the appellant even tried to end his life by taking poison, it would not be proper to sustain the sentence of 10 years imprisonment and he prays for reduction in the sentence. Public Prosecutor Shri Bhobe, on the other hand, has stated that no special reasons have been brought forth by the appellant for taking any lenient view in the matter.
26. We have given serious thought on the question of sentence to be imposed on the appellant. It is no doubt true that the Statute provides for minimum sentence of 10 years imprisonment, but we have to bear in mind that the appellant who is otherwise young had even tried to take poison in order to attempt to end his life, which shows that the appellant had shown repentance in relation to the incident. In addition Advocate Shri Lotlikar for the appellant submitted that after the appellant serves his sentence, he shall not stay in the same house in which the prosecutrix is staying. This undertaking would be helpful in sorting out the question of psychological trauma which the prosecutrix may have in the matter. Therefore, taking into consideration the facts and circumstances of the case we are of the opinion that the sentence of imprisonment should be reduced from 10 years to 7 years rigorous imprisonment. Benefit of the period spent during the trial under section 428 Cr.P.C. has already been given by the lower Court. It appears that the appellant was committed to Central Jail to serve the sentence imposed on 23rd May, 1995 and he was released on bail pending appeal before this Court on 31st May, 1995. Therefore, the said period from 23rd May, 1995 to 31st May, 1995 shall also be taken into consideration and the said period shall be deducted from the sentence of imprisonment.
27. In view of the above, the appeal is dismissed, except to the extent of reduction of sentence from 10 years rigorous imprisonment to 7 years rigorous imprisonment. Since it is represented by Advocate Shri Lotlikar that the marriage of the sister of the appellant has been fixed on 20th May, 1996, the appellant shall surrender on or before 25th May, 1996 before the Addl. Sessions Judge, Mapusa. The fine of Rs. 5000/- and in default six months rigorous imprisonment imposed by the lower Court is maintained.
28. Appeal dismissed.