S.S. Vyas, J.
1. This is jail appeal by accused Bagdiram against the judgment of the learned Sessions Judge, Pratabgarh dated February 25, 1983 convicting the appellant under Section 376, IPC. and sentencing to 5 years' rigorous imprisonment with a fine of Rs. 500/-, in default of payment of fine to further undergo 3 months, like imprisonment.
2. In the afternoon of 11.2.82, the prosecutrix Ramudi (PW. 1) a girl of tender age of 11-12 years went to her field situate in village Mayakhera to bring the grass. When she reached there, the accused who was hiding him self came out from the standing crop. He caught hold of her and threw her down. Thereafter, he lifted her skirt and committed rape on her, she started weeping but the accused did not leave her. Hearing her screams, P.W. 2 Mangu and P.W. 3 Jeeva, who were passing by that side, came there. Seeing them, the accused ran away. They brought the girl to her house. On the next day, P.W. 2 Mangu went to Police Station, Arnod and lodged report Ex. P/1 of the occurrence, f he police registered a case & proceeded with investigation. The medical examination of the prosecutrix was made on 12-2-82 by P.W. 7 Dr. Arnoh Ahmed, the then the Medical Officer in charge, Government Hospital, Arnod. He was of the opinion that there had been sexual act out side the vagina and upto the portion below the hymen, but there was no penetration into the hymen. The accused was arrested on 12.82. The clothes viz. skirt of the prosecutrix and underwear of the accused were seized and sealed. On chemical examination, human semen is detected on both of them. On the completion of investigation, the Police submitted a challan against the accused in the court of the learned Judicial Magistrate, Pratabgarh who is his turn committed the case for trial to the court of Sessions Judge, Pratabgarh The learned trial Judge, framed a charge under Section 376, IPC against the accused. He denied the guilt and claimed absolute innocence. During trial, the prosecution examined 11 witnesses and filed some documents. In defence, the accused adduced no evidence. On the conclusion of trial, the learned Sessions Judge held the charge duly proved against the accused. He was consequently convicted and sentenced as mentioned above Aggrieved against his conviction and sentence, the accused has taken this appeal.
3. I have heard the learned Amicus Curiae and the Public Prosecutor.
4. Learned Amicus Curiae made a scathing criticism of the judgment of the trial court and contended vehemently that the conviction of the accused was wholly unwarranted. In assailing, the conviction, he took various poiats, which I propose to deal with at seratim.
5. The first contention is that the prosecutrix P.W. I Ramudi was a child of tender age of 10-12 years No preliminary examination was made by the trial court to ascertain her competency to testify and whether she under stood the sanctity of oath. And yet, oath was administered to her and she was examined as a witness. It was argued with vehemence that the preliminary examination of a child witness is imperative and any departure from it makes his or her statement inadmissible. Admittedly, P.W. 1 Ramudi is a child. Her age has been mentioned from 10-12 years in her statement. The statement does not show that any Vior Dire was made to judge her competency to testify. But the absence of Vior Dire does not render IPSO FACTO the statement of a child witness inadmissible, provided it can not be gathered from the statement that he or she understood the questions and had given rational answers. Where there is no preliminary examination, it is the recorded statement of a child, which ordinarily furnishes sufficient material to judge the competency of that witness. If the recorded statement of a child witness shows that he or she has a rational understanding it can not be wiped off merely on account of the absence of Vior. Dire. There is consensus of judicial opinion on this point including the view of this Court taken in State of Rajasthan v. Vijayram 1968 RLW 1.
6. In the instant case, the statement of P.W. 1 Mst. Ramudi shows that she had a rational understanding The way, in which, she replied the questions both in examination in chief and cross examination leaves the impression that she had rational understanding and was competent to testify. Her statement, therefore, can not be wiped off from consideration, The first contention, thus, holds no ground.
7. It was next contended that the accused was wrongly convicted. There was no convincing and acceptable evidence to show that the girl was raped by the accused. It was argued that the prosecution P.W. 2 Mangu were closely related. P.W. 3 Jeeva was a chance witness. No reliance can be placed on what they testified against the accused. I have gone through the evidence of these witnesses carefully.
8. The prosecutrix PW. 1 Mst. Ramudi deposed that in the afternoon of the day of occurrence, she went to her field to bring the grass. The accused, who had hidden himself in the standing crops came out. He caught hold of her and took her aside. There, he threw her down and raised her skirt. Thereafter, he committed rape on her. She started weeping. She was cross examined; but nothing could be elicited from her, which may make her testimony unworthy of belief or credit. It has not been suggested that there was any bid blood between her and the accused. No reason has been ascribed before me as to why she would depose falsely against the accused.
9. There is then ample corroboration of what she stated against the accused. PW. 2 Mangu deposed that he and PW. 3 Jeeva were coming together and happened to pass near the place of occurrence. They heard screams in the field and went to that side. He saw the accused committing sexual intercourse with Ramudi. Seeing them, he took to heels. He and Jeeva PW. 3 ran after him but could cot catch him and he made good his escape. They took the girl to the village and thereafter, he went to police station to lodge the report. PW. 3 Jeeva also gave the same account of the incident. He stated that hearing the screams of Ramudi, he went towards her. He saw the accused running away. Ramudi PW. 1 told him that the accused had committed rape on her. She was then weeping. He and Mangu PW. 2, who was with him, took her to the village. There is nothing in the cross examination of these witnesses to help the accused. No previous enmity and strained relations exist between them and the accused. The learned trial Judge accepted their testimony as true and no reasons are there to persuade me to take a different view.
10. From what has been stated by the prosecutrix PW. 1 Ramudi and the two witnesses, it can be safely concluded that the accused made an assault on the girl, felled her down and lay over her.
11. It was pointed out by the earned Counsel that there was delay in lodging report of the occurrence to the police and that makes the entire prosecution story highly suspicious. The occurrence took place in the late afternoon of 11-2-82 and the first informat:on report Ex. P/1 was lodge at 4.30 p.m. on 12.2.82. Now, Police Station, Arnod, where the report was lodged is nearly 21 K.M. away from the place of occurrence. P.W.2 Mangu, who had lodged the report, stated that they reached the village after sun-set. He is an illiterate rustic villager. Looking to the distance of the Police Station and the other circumstances, the delay of some hours can not be made a ground to discard the whole prosecution story.
12. It was next argued that no offence under Section 376, IPC is made out Though, the prosecutrix stated that there was full intercourse with her, the medical evidence does not support her on this material point. The offence made out if any, should be taken only of an attempt. The contention is not without force.
13. The Medical examination of the prosecutrix Ramudi (P.W. I) was made at about 5.30 p.m. on 12.2.82 by Dr. Anish Ahmed (P.W. 7). The report issued by him is Ex. P/3. He stated that on examination, he found the following-
Labia Manora-Bruised and Tender.Labia Minora-Bruised and Tender.Hymen-intact and admits one index finger but is painful. No injuryon the thigh, breast and cheeks.
14. The doctor further stated that there had been sexual act out side the vagina and upto the portion below the hymen, but there was no penetration into the hymen.
15. It was argued by the learned Public Prosecutor that as per explanation annexed to Section 375, IPC penetration is sufficient to constitute the sexual intercourse to make out the offence of rape, it is immaterial to what extent and death, the penetration has taken place It was urged that even partial penetration has been accepted as sexual intercourse sufficient to make out the offence of rape.
16. I have taken the respective contentioners into consideration. It is true that all that is required to make out an offence of rape, is that the private parts of the male must be inserted in those of the female. As such, even partial penetration is sufficient to constitute an offence under Section 376, IPC. But, the difficulty in the instant case, is the want of required material on the point The girl is of the tender age of 10-12 years. No injuries were noticed by the doctor on her private parts Of course, the doctor found Labia Majora and Labia Minora brusied and tender. But the the hymen was found unrupturned. The doctor did not state that Labia (majora or minora) was found bruised due to an injury. It was held in Sureshchand v. The State of Haryana 1976 Cr. L.J. 452 that in case of a girl of tender age, if penetration takes place, there should be wide spread damage of the fourchette, hymen, labia majora, labia minora, vulvza and the vaginal canal. If no injuries are noticed on the labia majora and labia minora, it can be deduced that no penetration had taken place. The offence in these circumstances would not be of a rape but that of an attempt to commit rape.
17. The prosecutrix P.W. 1 Ramudi deposed that penetration was full and there was bleeding from her private parts. She also deposed that the skirt she was wearing got drenched with the blood of her private parts. But these facts are not borne by the medical evidence. No blood was found on her skirt. The doctor also did not notice any blood on her private parts. In these circumstances, coupled with the facts that her hymen was found intact and unruptured and no injuries were found on her private puts, it is difficult to hold that penetration even pertial had taken place As such, no offence of rape can be said to have been made out.
18. All that can be safely said on the basis of the testimony of prosecutrix is that the accused took the girl aside, felled her down, raised her skirt and lay over her. He tried to insert her male organ in the private parts of the girl. The act of the accused, thus, amounts to an attempt to commit rape. A similar view was taken in Suwalal v. State of Rajasthan 1972 R.L.W. 620.
19. No other contention was raised. From what has been discussed above, the accused should be held guilty under Section 376/511 and not under Section 376, IPC.
20. In the result, the appeal of accused Bagdiram is partly allowed, his conviction under Section 376 is altered to one under Section 376/511, IPC and he is sentenced to two years Rule I. The accused is already in Jail and he be informed of the result of appeal.