ORDER
Rajendra Saxena, J.
1. This jail appeal has been preferred against the judgment dated 6-6-91 passed by the learned Special Judge, S. C. & S. T. (Prevention of Atrocities) Act, Sriganganagar. whereby he convicted the appellant for the offences Under Section 376 IPC and under Section 3(xi), S.C. & S.T. (Prevention of Atrocities) Act and sentenced him to ten years R.I. and a fine of Rs. 4000/- and in default to further undergo S.I. for six months on the first count and to two years’ R.I. and a fine of Rs. 1000/- and in default to further undergo S.I. for two months on the second count.
2. Briefly the facts-necessary for disposal of this appeal are that the appellant was the servant of Gopi Ram (PW-1) and was staying with him near the Kiln in the R.C.P. Colony, Suratgarh. On 4-10-90. in the morning. Gopi Ram (PW-1) alongwith appellant Thana Ram had gone with his camel cart. Since on the way camel cart went out of order, Gopi Ram took his camel cart for repairs to a Mistri, while the appellant came back to the house of Gopi Ram with the camel at about 12 noon. It is alleged that at about I PM. Smt. Sohni (PW-2) wife of Gopi Ram was taking bath in her room. At that point of time, she heard the screams of her daughter Chhoti aged five years. She immediately rushed to her another room, which was situated near the kiln, where she found that the appellant was lying over Kumari Chhoti on the cot and was committing rape with her. At that time, the appellant was naked and he had also opened the underwear of Chhoti. Thereupon, Smt. Sohni pushed the appellant and rescued her daughter. She noticed that blood was ozzing out from the vagina of Kumari Chhoti. Thereafter the appellant ran away. Smt. SSohni also raised alarm, which attracted PW-3 Manphool and PW-4 Nakshatra Singh, who were working nearby. They also saw the appellant Thana running away from that room. Smt. Sohni narrated the incident to them and also called her husband. Smt. Sohni lodged an oral report about the incident before PW-7 Dinesh Sharma, SHO.P.S. – Suratgarh on the same day at about 3 PM. whereupon FIR Ex. P.I was drawn and the case was registered.
3. PW-5 Dr. Omprakash Sharma, Junior Specialist (Surgery), Govt. Hospital. Suratgarh examined prosecutrix Kumari Chhoti on the same day at 3.40 PM. He found that her underwear was stained with blood and semen like stains. He noticed a bruise 1″ x 1/4″ on the lateral aspect of the right side of her chest. He also noticed blood stains on her external genitalia and blood in the vagina on the posterior side. There was a laceration 1/2 cm x I cm on the posterior wall of the vagina, which bleeded on touch. The hymen was torn fresh on posterior side, which also bleeded on touch. The Doctor vide his report Ex.P.2 opined that Kumari Chhoti was subjected to rape.
4. The raiological examination of the prosecutrix was conducted on 5-10-90. The Radiologist, opined that her age was about 5-6 years. The I.O. inspected the site, seized the blood and semen stained underwear of the prosecutrix vide seizure memo Ex.P.6. The appellant was also arrested on the same day and his underwear was seized and scaled vide seizure memo Ex.P.6. After completion of the investigation, a challan was filed in the Court of learned MJM. Suratgarh, who in his turn committed the case to the learned Special Judge.
5. The appellant was charged for the offences Under Section 376 and under Section 3(1)(xi). S.C. & S.T. (Prevention of Atrocities) Act, 1989. The appellant denied the indictment and claimed trial.
6. The prosecution examined as many as seven witnesses. The appellant in his plea recorded Under Section 313 Cr.P.C. denied the circumstances appearing against him in the prosecution evidence. He, however, admitted that he was examined by the Doctor and that his underwear was also seized by the Police. He also admitted that he was working with PW I Gopi Ram and asserted that when he demanded his wages, he has been falsely implicated in this case. However, in his defence, he did not adduce any evidence. The learned Special Judge after trial found the appellant guilty and sentenced him in the manner detailed above. Hence this appeal.
7. I have heard Mr. Anil Kumar Singh, Amicus Curiae and Shri K. L. Thakur. learned P.P. at length and carefully perused the record of the trial court.
8. Mr. Anil Kumar Singh has strenuously contended that P.W. 5 Dr. Omprakash Sharma examined the appellant on 4-10-1990 at 4.35 PM. but he did not find any marks of struggle on his body nor any stains of blood or semen on his pubic hair. The Doctor also specifically mentioned in his report Ex. P4 that smegma was present on the dorsal side of the glens and that there was no injury on his penis and prepuce or scrotum. Mr. Singh has, therefore, contended that the presence of smegma negatives the possibility of complete penetration. He has also placed reliance on the case of R. Beg v. State of U.P. . In that case, rape was alleged to have been committed by a Policeman on a girl often or twleve years, who was virgin and whose hymen was intact. The Apex Court held that the absence of injury on the male organ of the accused would point to his innocence for the offence of rape.
9. On the other hand. Mr. Thakur. learned P.P. has argued that in this case the proxecutrix Kumari Chhoti was aged only 5-6 years and had not developed the faculty of understanding, therefore, she could not be examined. But her mother Smt. Sohni (PW 2). who had immediately arrived at the place of the occurrence after hearing the screams of Kumari Chhoti. has deposed that she had seen the appellant committing rape with her daughter; that she pushed the appellant and rescued her daughter and that Chholi was bleeding profusely from her vagina. The alarm raised by Smt. Sohni also attracted PW 3 Manphool and PW 4 Nakshtra Singh, who had seen the appellant running away from the place of the occurrence and to whom Smt. Sohni had narrated the incident. The report in this case was also immediately lodged in the Police Station without any delay. Kumari Chhoti was also examined by the Doctor, who found injuries on her vagina and noticed (hat her hymen was torn fresh on the posterior side. According to him. the appellant is aged about 35 years whereas the prosecutrix is a girl of tender age of 5-6 years and, therefore, there was no question on her part to put resistance or make struggle. Shri Thukur has submitted that as per medical report Ex. P4. smegma was present only on the dorsal side of the glens of the appellant, therefore, it is apparent that the smegma was not present on the remaining part of the glens of the accused. According to him, in presence of the voluminous direct evidence against the appellant, simply because the smegma was found present on the posterior side of the glens of the appellant, by no stretch of imagination, it can be held that the appellant had not committed the rape. The learned P.P. also reiterated the reasoning given by the learned trial Judge.
10. I have given my thoughtful and careful consideration to the rival contentions. The appellant in his plea, Under Section 313, Cr.P.C. has admitted that he was working as a servant with PW 1 Gopiram. The presence of PW 2 Smt. Sohni at the place of occurrence has been well established. She has deposed that on hearing the screams of her daughter Kumari Chhoti, she immediately rushed to her another room situated near the kiln, where she found that the appellant was lying naked over Kumari Chhoti; that he had also unfastened her underwear and was committing rape with her. Thereupon, she pushed the appellant, snatched Kumari Chhoti and rescued her and that her vagina was bleeding. She has stated that thereafter the appellant ran away. It is worthwhile to note here that during cross examination, not a single question about the rape has been put to Smt. Sohini, therefore, there is no reason to disbelieve, her sworn testimony. Moreover, no mother will impute such a wild allegation against a person adversely affecting the honour of her infant daughter. To my mind, the testimony of Smt. Sohni has not been shaken at all and that she is a reliable witness.
11. P.W. 3 Manphool and PW 4 Nakshtra Singh, who were working nearby the kiln, have stated that on hearing the alarm raised by Gopiram’s wife, they came to her room near the kiln. There, they saw the appellant running away therefrom, that they went inside the room and found that Kumari Chhoti was bleeding from her vagina and that her underwear was also stained with blood. They further deposed that Kumari Chhoti was weeping and that Gopi Ram’s wife informed them that the appellant had committed rape with Chhoti. She also gave details of the incident. Manphool (PW 3) and Nakshtra Singh (PW 4) are independent witnesses and learned trial Judge has rightly believed their testimony.
12. Thus, there is voluminous direct evidence against the appellant in this case. The statement of Smt. Sohni also finds substantial corroboration from the statement of PW 5 Dr. Omprakash Sharma, who has proved the medical examination report (Ex. P3). He has specifically stated that the hymen of Kumari Chhoti was torn afresh and that she was subjected to rape. The Doctor has also deposed that he had examined the appellant and found him capable of committing sexual intercourse.
13. In Medical Jurisprudence by Jhala and Raju, Fifth edition, at page 464, the learned authors have observed as under:
“Presence of smegma.- In rape cases, if the gland of male organ is covered by smegma, it negatives the possibility of recent complete penetration. If the accused is not circumcised, the existence of smegma round the corona gland is proof against penetration since it is rubbed off during the act. The smegma accumulates, if no bath is taken within 24 hours. In rape cases, the investigation must get the male organ of the alleged offender examined.”
The learned authors have specifically observed that if the gland of male organ is covered by smegma, it negatives the possibility of the recent complete penetration. I respectfully agree with this observation but in the case on hand, the Doctor noticed smegma only on the dorsal side of appellant’s glens and did not notice the presence of smegma on the remaining portion of the gland of his penis. Kumari Chhoti was a girl of 5-6 years of age and, therefore, there was no question of complete penetration of appellant’s penis, who was aged about 35 years, in her vagina. The complete penetration of his penis was rather physically impossible. Not a single question was put to Doctor Omprakash Sharma as to whether he had found the smegma present on rest of the part of glens of the appellant. Therefore, by presence of smegma only on the dorsal side of appellant’s glens, cannot completely rule out or negative the possibility of rape committed by him on Kumari Chhoti. It is also true that the Doctor did not find any injury on the penis and prepuce or scrotum of the appellant but as mentioned earlier, the victim of rape was an infant girl of 5-6 years of age, whose vagina was so tender and soft. Therefore, no injury on the penis of the appellant could possibly be caused.
14. In R. Beg’s case (supra), it was alleged that two accused persons committed rape with a girl aged ten years, committed her murder and took away her ornaments. There was no direct evidence in that case. The trial court and the High Court relied on the circumstantial evidence viz. the appellants were seen following that girl in the field; that her dead body was found near the bushes, that her mouth was found stuffed, that her dhoti with all the buttons of front side of her blouse were found open; that her vagina was bleeding and that her three silver ornaments were found missing from her body. The alleged extra judicial confession was also relied by the trial Court and the High Court. The appellants were convicted for the offences Under Sections 302, 376 and 340 IPC. The Apex Court after reappraising the evidence disbelieved the testimony of the witnesses, who had seen the appellants following that girl. The alleged extra judicial confession was also found to be lacking in probability and, as such the same did not inspire any confidence. The alleged recovery of ornaments at the instance of the appellant was also disbelieved due to third degree methods adopted by the police on the appellants during investigation. The Apex Court also held that the semen stains on ‘Langot’ of any man can exist because of variety of reasons and would not necessarily connect him with the offence of rape. In that case, the Doctor also did not find any injury on the male organs of the appellants, because the appellants were subjected to medical examination at a late stage and not immediately after the occurrence. In such circumstances, it was held that the absence of injury on the male organ of the accused would point out his innocence for the indictment of rape alleged to have been committed with a girl of 10 or 12 years, who was virgin and whose hymen was found intact. It is, therefore, abundantly apparent that the facts of R. Beg’s case (supra) are clearly distinguishable from the facts of the instant case. In this case, the prosecution has adduced clear, cogent and convincing direct evidence against the appellants, which has been fully corroborated by the medical evidence. Therefore, R. Beg’s case does not come to the rescue of the appellant.
15. In this case, the prosecutrix Kumari Chhoti has not been examined, because she was a chi Id of 5-6 years. But her non-examination is not fatal to the prosecution case because any infirmity occasioned by her non-examination has been cured by the testimony of eye witness Smt. Sohni, the corroborative evidence of PW 3 and PW 4 and the medical evidence.
16. In Manga v. State of Haryana, , the victim of rape was a deaf and dumb girl of 13 years and she was not examined. However, the prosecution evidence against the accused consisted statement of an eye witness, which was corroborated by blood stained Salwar of the prosecutrix and the medical evidence of the doctor, who had examined the victim at the time of the rape and found that Tier hymen was torn and ruptured. It was held by the Apex Court that mere circumstance that the doctor did not find redness or inflammation around bruises of the victim would not be sufficient to put the prosecution case out of court because the fact that there was a rupture of the hymen and a bruise around the hymen was sufficient to prove the act of rape. It was further held that since the prosecutrix was deaf and dumb girl of only 13 years of age, no useful purpose would have been served by examining her and moreover, if there was any infirmity in the prosecution case for her non-examination, the same was removed by the examination of PW 4 eye witness, who was a full fledged eye witness to the act of rape. Similar are the facts of the instant case. Hence the non-examination of prosecutrix Kumari Chhoti aged 5-6 years, who had not developed the faculty of understanding, is not fatal.
17. The defence taken by the appellant that Kumari Chhoti might have received injuries by inserting a stick in her vagina is patently absurd, false and a creature of after thought. Firstly, no stick was found at the place of the occurrence. Secondly, no such question was put to any of the prosecution witnesses by the appellant. Admittedly, the prosecutrix belongs to Meghwal community which is a Scheduled Caste.
18. In such circumstances, the learned trial Judge has correctly scanned and evaluated the prosecution evidence and has not committed any illegality either of fact or law in finding the appellant guilty of the offence Under Section 376 IPC and under Section 3(xi), S.C. & S.T. (Prevention of Atrocities) Act, 1989. The appellant has been awarded minimum sentence often years’ R.I. and a fine of Rs. 4000/- for the offence Under Section 376(2)(f) IPC. Keeping in view of facts & circumstances of the case, the fine appears to me excessive. To my mind, the minimum sentence of ten years’ R.I. and a fine of Rs. 1000/- only for the offence Under Section 376 IPC would suffice to meet the ends of justice. The sentence of two years” R.I. awarded to the appellant for the offence Under Section 3(1)(xi), S.C. & S.T. (Prevention of Atrocities) Act. 1989 is quite adequate. However, the fine of Rs. 1000/- appears to be excessive, which deserves to be reduced to Rs. 100/- only.
19. In the premise of the above discussion, this appeal is partly allowed and the conviction of the appellant for the offences Under Sections 376(2)(f) IPC and 3(1)(xi) of the S.C. & S.T. (Prevention of Atrocities) Act, 1989 is maintained. His sentence from ten years’ R.I. Under Section 376(2)(f) IPC is also maintained but his fine of Rs. 4000/- is reduced to Rs. 1000/- only and in default to further undergo one month’s S.I. The appellant’s substantive sentence for the offence Under Section 3(1)(xi) of the aforesaid Act of 1989 is maintained but his fine from Rs. 1000/- is reduced to Rs. 100/- only and in default of payment of fine, he will further undergo one month’s. S.I. The appellant be informed accordingly through Superintendent, District Jail, Sriganganagar.