M.L. Singhal, J.
1. In case F.I.R. No. 34, dated 27-1-1997 of Police Station Naraingarh (Sessions Case No. 38 of 1997), Nirmal Kumar alias Kaka-accused aged 21 years was convicted by the learned Additional Sessions Judge, Ambala under Section 376, I.P.C. and was sentenced to undergo R.I. for 10 years and to pay a fine of Rs. 1,000/-and in default of payment of fine, to further undergo R.I. for one year vide order dated 2-4-1998.
2. The prosecution case in brief is that on 25-1-1997, Baldev Raj son of Petu Ram of village Bakarpur who is Teacher in Adarsh Public School, Khanpur Lobana, after attending the school, went to his relations in Nawan Shahar in District Yamuna Nagar. From there, he returned to his school on the morning of 27-1-1997. He did not go to his village during this period. After attending his school, he returned to his village Bakarpur on 27-1-1997 at about 4 p.m. His wife Meena told him that on 25-1-1997, at about 4 p.m., when their daughter-Vandana was playing in the street, Nirmal Kumar alias Kaka-accused took her to his residence. She further told him that when Vandana came back, she was found weeping. Since she did not stop weeping, she took her to a doctor. The doctor gave her medicine. She further told him that on 26-1-1997, she again took her to the doctor and got medicine. She further told him that when on 27-1-199-7 morning, she was changing the clothes of Vandana, she found her vagina in a very bad shape and she kept her hand on her vagina. She further told him that she enquired her about the person who had committed foul play with her and she gave out that it was Nirmal Kumar alias Kaka who had committed rape on her. On 27-1-1997 at about 8.30 p.m., Baldev Raj (P.W. 6) took his daughter Vandana to Police Station, Naraingarh and got F.I.R. No. 34, dated 27-1-1997 under Section 376, I.P.C. registered at Police Station, Naraingarh. The police along with him took Vandana to Civil Hospital, Naraingarh for medical examination. Vandana was medically examined by Dr. Shanta Gupta on 27-1-1997 at 9.35 p.m. On examination, she found congestion and inflammation of both labia majora and labia minora, redness on inner side of labia minora and vaginal mucosa. There was slight discharge from the vaginal opening. Hymen was intact. The doctor took swabs from that discharge. She handed over two vials containing vaginal swabs, sealed in a packet bearing two seals. She was of the opinion that Vandana had not been subjected to sexual intercourse. According to her, congestion and inflammation of both labia minora and labia majora and redness in the inner side of labia minora and vaginal mucosa is possible if a person attempts to rape the victim.
3. Dr. A.K. Gupta, Medical Officer, Civil Hospital, Naraingarh medically examined Nirmal Kumar alias Kaka on 28-1-1997 and found that he was capable of sexual intercourse. On examination of genitalia, penis, scrotum and testes, he was of this opinion. He did not find any injury on his genitalia. No discharge was present. He took into possession the underwear Ex. P1 which the accused was wearing at that time. The doctor made that underwear into a sealed parcel and handed it over to the police.
4. The vials containing vaginal swabs were sent to the Forensic Science Laboratory. Similarly, the underwear worn by the accused at the time of his medical examination was sent to the Forensic Science Laboratory. The Chemical Examiner detected no human semen on the vaginal swabs. He detected human semen on the underwear of the accused.
5. After investigation, Nirmal Kumar alias Kaka was challaned under Section 376, I.P.C.
6. The case was committed to the Court of Session by the Chief Judicial Magistrate, Ambala vide order dated 5-5-1997.
7. The accused was charged under Section 376, I.P.C. by the learned Additional Sessions Judge, Ambala vide order dated 26-5-1997. The accused pleaded not guilty to the charge and claimed trial.
8. At the conclusion of the trial, the accused was found guilty of the charge. He was accordingly convicted and sentenced him as indicated above.
9. The accused has knocked the door of this Court through this criminal appeal and has prayed for acquittal.
10. I have heard the learned counsel for the appellant, the learned A.A.G. for the State of Haryana and have gone through the record.
11. It was submitted by the learned counsel for the appellant that it. is not a case of rape. It may be a case of attempted rape. It was submitted that Dr. Shanta Gupta (P.W. 1), Medical Officer, Civil Hospital, Naraingarh who medically examined Vandana on 27-1-1997 at 9.35 p.m. stated that she had not been subjected to sexual intercourse. She stated so after looking at the report of the Forensic Science Laboratory. She stated that congestion and inflammation of bot) labia minora and labia majora and redness in the inner side of labia minora and mucosa is possible, if a person attempts to rape the victim.
12. It was submitted that there was no rape upon Vandana as the doctor did not find any external mark of injury on any part of the body of Nirmal Kumar alias Kaka. He did not find any injury/bruise on glans or near genitalia. He did not find any discharge from penile orifice. It was submitted that Nirmal kumar alias Kaka was an adult aged 21 years and if he had tried to penetrate his penis into the narrow vagina of Vandana aged 4 years, there would have been injury/ bruise on glans or near genitalia.
13. Smt. Meena (P.W. 8) staled that on 25-1-1997 at about 4 p.m. her daughter Vandana aged 4 years was playing in the street in front of her house. She was cleaning the utensils in the house. She saw accused-Nirmal Kumar alias Kaka taking away her daughter from the street. The accused was on visiting terms with them. So, she did not suspect that the accused would indulge into any foul play. After 15 minutes, her daughter carre weeping. She consoled her and she stopped weeping. After sometime, she again started weeping. She then took her to the doctor who gave her medicine. On 27-1-1997 in the morning hours, when she was changing the clothes of her daughter, she found her vagina in a very bad shape. She enquired her about the person who had played foul with her vagina. She then named the accused. She kept mum as her husband was away to Nawan Shahar, District Jagadhri. He came from there on 27-1-1997 at about 4 p.m. She told the entire story to her husband. Her daughter had told her thai the accused after removing her clothes, had raped her. She stated that when she removed the clothes of her daughter, blood-stains were found on her clothes. Blood-stains were also present in the vagina.
14. The question that arises is whether it was rape or attempted rape?
15. 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.
16. In Encyclopaedia of Crime and Justice (Vol. 4) at page 1356, it is stated:--
Even slightest penetration is sufficient and emission is unnecessary.
17. 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.
18. In American Jurisprudence, it is staled that slight penetration is sufficient to complete the crime of rape.
19. Code 263 of Penal Code of California reads thus :
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.
20. In Gaur's 'The Penal Law of India' 6th End. 1955 (Vol. II) page 1678, it is observed that even vulval penetration has been held to be sufficient tor a conviction of rape.
21. In Taylor's Principles and Practice of Medical Jurisprudence at page 69, rape is defined as unlawful sexual intercourse by a man with a female other than his wife, without her consent. The merest penetration of the penis between the labia associated with the lack of consent is sufficient to constitute the offence.
22. It was submitted that the offence of rape is constituted even if there is the slightest penetration of the male organ in the vagina of the prosecutrix. In order to constitute the offence of rape, penetration of the male organ in the vulva of the vagina of the prosecutrix is a condition sine qua non.
23. Rape is defined in Section 375, I.P.C. as under:
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 -- When 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.
24. There can be thus, no manner of doubt that to constitute the offence of rape, it is not necessary that there should be full penetration of the male organ into the vagina. Even slight penetration of the male organ into the vagina is sufficient.
25. Vandana was a girl aged 4 years only. Dr. Shanta Gupta found on medical examination congestion, inflammation of both la-bia majora and labia minora and redness on inner side of labia minora and vaginal mucosa. She found the hymen intact.
26. In Modi's Textbook of Medical Jurisprudence and Toxicology, it is written that in small children, the hymen being situated high up in the canal, is not usually ruptured, but may become red and congested along with the inflammation and bruising of the labia.
27. If the hymen of Vandana was intact, that is not suggestive of the fact that there was no rape on her or there was no attempt at rape on her.
28. It was submitted by the learned counsel for the appellant relying upon para 22 of the Taylor's Principles and Practice of Medical Jurisprudence that mere redness of the labia minora is not indicative of the recent sexual activity and it may be no more than an indication of lack of personal hygiene especially in young girls. Swelling and tenderness of the labia minora may be indicative of sexual activity, but is certainly not indicative of lack of consent.
29. Frequently, even in the absence of frank hymenal tearing, there is abrasion and bruising of the hymen and the vaginal orifice. Such a finding is certainly consistent with penetration of the hymenal orifice, but it is often difficult to differentiate between digital and penile penetration. The differential diagnosis must depend on the extent of the bruising, the elasticity of the hymen, and the size of the hymenal orifice.
30. Penile penetration into the vagina or the anus of a small child cannot be accomplished without considerable force, and thus will very frequently result in some injury to the penis of the assailant.
31. It is submitted that if there had been penetration of the penis of the accused, who was an adult aged 21 years into the narrow vagina of Vandana aged 4 years, there would have been some injury or bruise to the vagina of the victim and the penis of the accused. It was submitted that Dr. A.K. Gupta did not notice any injury on the penis of the accused and, therefore, it cannot be said that there was any penetration of the penis into the vagina of Vandana.
32. In Suresh v. State of Haryana (1997) 4 Rec Cri R 576 (Punj & Har), there was charge of rape on Suresh on a girl of 12 years. No injury was found on the body and penis of the accused. No bleeding of the vagina. It was held that it was an attempt to commit rape punishable under Sections 376/511, I.P.C.
33. In this case, we are concerned with whether there was rape on Vandana, a girl aged 4 years, by the accused, or it was an attempt at rape. How could there be any injury on the penis of the accused when there was not much penetration of the penis into the vagina of Vandana. If he had tried to penetrate it further into the vagina of Vandana aged 4 years, there would have been injury on his penis and further injury to the vagina of Vandana. There was congestion and inflammation of both labia minora and labia majora and redness on inner side of labia minora and vaginal mucosa. So far as Vandana is concerned, she was not a grown up girl. She was not menstruating. It cannot be taken that redness on the inner side of the labia minora and vaginal mucosa was due to the lack of personal hygiene of Vandana. Swelling and tenderness of the labia minora is indicative of sexual activity.
34. In Suresh's case (1997 (4) Rec Cri R 576) (supra), it was not believed that the vagina of the prosecutrix who was aged 12 years, was bleeding and this also contributed to the finding that Sheetal was not raped, but there was only an attempt at rape on her.
35. In the case in hand, stains of semen were found on the underwear of the accused.
36. In Mohd. Habib v. State (1988) 2 Rec Cri R 150 : 1989 Cri LJ 137 (Delhi), it was held that where a minor girl of 10 years is alleged to have been subjected to rape by a fully developed man, there will be injuries on the male organ of the accused. Absence of injuries on male organ of the accused would point tp his innocence. In that case, Mohd. Habib was stated to have committed rape on Aruna Kumari. Dr. Suresh Kumar, who medically examined Mohd. Habib, did not find any injury on his penis. His penis was found to be fully developed. Dr. Aruna Behl who examined Aruna Kumari (victim), did not find bleeding from the vagina, nor did she find any bruising, nor any swelling, redness or inflammation. It was found that if rape had been committed on Aruna Kumari by the accused, who was a fully developed man, the doctor would definitely have found at least some swelling, redness or inflammation on the female organ.
37. In Raheem Beg v. State of U.P., 1972 Cri LJ 1260 (SC) in para 26, it was observed that according to Dr. Katyar, Medical Officer of District Jail, Rai Bareli, if a girl of 10 years or 12 years who is a virgin and whose hymen is intact, is subjected to rape by a fully developed man, there are likely to be injuries on the male organ of the man. No injury was, however, detected on the male organ of any of the 2 accused. The absence of any of such injuries on the male organ of the accused would, thus point to their innocence.
38. It was submitted by the learned counsel for the appellant that Dr. Shanta Gupta who medically examined Vandana, stated that she was not subjected to sexual intercourse. She gave this opinion on the basis of the medical examination conducted by her on Vandana and the report of the Forensic Science Laboratory. It was submitted that Dr. Shanta Gupta has stated that there will be congestion and inflammation of both labia majora and labia minora and redness on inner side of labia minora and vaginal mucose, if a person attempts to rape the victim.
39. It appears that Dr. Shanta Gupta is not aware of what 'rape' in legal parlance means. In legal parlance, slightest degree of penetration of the vulva by the penis with or without emission of semen is sufficient to constitute the offence of rape. In this case, there had been penetration of the penis of the accused into the vagina of Vandana, though penetration was slight. If there had been no penetration of the penis into the vagina of Vandana, there would have been no question of congestion and inflammation of both labia majora and labia minora and redness on the inner side of the labia minora and vaginal mucosa. There were stains of semen found on the underwear worn by the accused. This also suggests his involvement in the sexual activity. Smt. Meena, who is the mother of Vandana, has stated that when she was removing the clothes of Vandana, blood-stains were found on her clothes. Blood-stains were also present in the vagina.
40. When questioned under Section 313, Cr.P.C., the accused had no explanation regarding congestion of the labia majora, labia minora and redness on inner side of labia minora and vaginal mucosa of Vandana.
41. Similarly, the accused had no explanation why the stains of human semen were found on his underwear which he was wearing at the time of his medical examination.
42. Rape is not only a crime against the person of a woman who is raped, but it is a crime against the entire society.
43. In my opinion, Nirmal Kumar alias Kaka was justifiably convicted of the charge of rape. He was justifiably sentenced to R.I. for 10 years. He behaved like a savage and a brute and made a hapless girl of 4 years, the object of his sexual lust. He allowed his animal instinct to outweigh the norms of decency and cultural behaviour.
44. For the reasons given above, this appeal fails and is dismissed. Conviction and sentence passed upon him by the Additional Sessions Judge are maintained.