Sr. No. 50 HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT JAMMU Reserved on: 28.08.2025 Pronounced on: 11.09.2025 CRA No. 63/2014 Sanjay Kumar, Age 25 years, S/o Romesh Lal, R/o Budh Charia, Tehsil Akhnoor, District Jammu. A/P Central Jail Amphalla, Tehsil & District Jammu. …. Appellant(s) Through: - Mrs. Rozina Afzal, Advocate. V/s 1. State of J&K Th. Police Station, Akhnoor, Tehsil Akhnoor, Jammu; 2. Superintendent, Central Jail Amphalla, Tehsil & District Jammu. …. Respondent(s) Through: - Mr. Ravinder Gupta, AAG. CORAM: HON’BLE MR. JUSTICESANJEEV KUMAR, JUDGE HON’BLE MR. JUSTICE SANJAY PARIHAR, JUDGE JUDGMENT Per-Sanjay Parihar-J 1. This Criminal Appeal is directed against the judgment and order dated 27.10.2014 (for short, “the impugned judgment”) passed by, IIIrd Additional Sessions Judge, Jammu (hereinafter referred to as, “the trial Court”), whereby the appellant-Sanjay Kumar has been held guilty of offence under Section 376 RPC and sentenced to undergo rigorous imprisonment of twelve years and fine of ₹50,000/- in default to undergo simple imprisonment for six months. The appellant has also been held 2 CRA No. 63/2014 guilty for the offence u/s 341 RPC and sentenced to simple imprisonment of one month with a fine of Rs 500/-, which sentence is sought to be set aside by holding the appellant not guilty on various grounds, as enumerated in the memo of appeal. 2. Before we delve into the grounds raised in the appeal, we would like to delineate the proceedings that have been held so far. On the strength of incident dated 22.06.2012 at village Budh Charai, Tehsil Akhnoor, when the prosecutrix (for short, “the victim”), aged 8/9 years, had gone to the house of her grandfather for bringing butter milk, when at about 10.00/11.00 in the morning while she was coming back home, the appellant herein is alleged to have blocked her way, lifted her and took her to the nearby forest, removed her clothes, thereby committing rape on her. She allegedly raised an alarm, upon which her mother (PW-1), namely, Toshi Devi, came, and on seeing her, the appellant fled away from the spot. The victim narrated the incident to her mother and her grandfather, PW-5 Prem Dass, and they informed the Lamberdar, Chowkidar and Naib Sarpanch of the village about the occurrence. 3. PW-1 informed her husband, PW-2 Kuldeep Raj, father of the victim, who at that relevant time was employed at Katra. Upon receiving the information, he came back in evening and lodged a written report at Police Post Chowki Chora, which was diarised as DD No. 21 dated 22.06.2012. On the basis thereof, 3 CRA No. 63/2014 FIR No. 142/2012 came to be registered for offences under Sections 341, 376 and 511 RPC against the appellant, pursuant to which investigation commenced. During the course of the investigation, the victim was medically examined and was also produced before the Judicial Magistrate for recording her statement under Section 164-A Cr.PC, along with that of her mother. The Investigating Officer, besides procuring the medical report, also obtained the Date of Birth Certificate of the victim. On completion of the investigation, the appellant was found to have committed offences punishable under Sections 341 and 376 RPC, whereupon he was arrested on 23.06.2012. The charge-sheet was presented before the Court of JMIC, Akhnoor, which, by order dated 28.07.2012, committed the case to the Sessions Court at Jammu. The charge-sheet was initially taken up by the learned Principal Sessions Judge, Jammu, and was thereafter transferred to the trial court. 4. The record reveals that, in terms of the order dated 28.08.2012, the appellant was charge-sheeted for offences under Sections 341, 376 and 511 RPC. However, after recording the evidence of PW-1 Toshi Devi, the part statement of the victim, as well as that of the medical expert, the trial Court, by order dated 01.04.2013, altered the charge to one under Sections 376/341 RPC. The alteration was based on the finding that the deposition of the material witnesses, including the victim and the medical expert, disclosed prima facie material to warrant the 4 CRA No. 63/2014 commission of an offence under Section 376 RPC. The trial Court further observed that such an alteration would not prejudice the appellant, as he was afforded the liberty to further cross-examine the victim and the medical expert. Thereafter, the prosecution completed the examination of the victim and the medical expert, in addition to PW-5 Prem Dass, PW-2 Kuldeep Raj, PW-7 Kuldeep Singh (ASI), PW-8 Joginder Singh and PW-9 Mahesh Sharma (SHO). 5. A brief resume of evidence lead by the prosecution and defence is taken down hereby, enabling us to appreciate the merits of this appeal. PW-3 (the victim), in her deposition, stated that on the date of occurrence, she had gone to her grandfather‟s house to fetch butter milk. While returning, the appellant met her on the way, offered her a bubble gum to lure her, and thereafter took her to a nearby forest. There, he removed her clothes and committed a “bad act” with her. She further stated that the appellant threatened her not to disclose the incident to anyone. According to her, the appellant not only disrobed her but also lay upon her. She started crying, and in the meantime, her mother, who had been searching for her, reached the spot, lifted her in a naked condition, and took her home. Later in the evening, her father, who was working as a labourer at Katra, returned home around 5:00 p.m., whereafter she narrated the incident to him. She also 5 CRA No. 63/2014 confirmed that she made a similar statement before the Magistrate under Section 164-A Cr.PC. In cross-examination, she admitted that the house of the accused is near theirs, and before the incident, she used to address the appellant as Chacha. She further deposed that neither she, nor her mother, nor her father had ever quarrelled with the appellant. She reiterated that she narrated the entire occurrence both to her mother and father. She explained that her grandfather runs a small grocery shop, and ahead of the shop and house, there is a hillock with several trees and bushes adjoining the kacha road. The appellant took her into those bushes. She stated that she had raised an alarm, but nobody came to her rescue. The appellant removed her clothes, and when her mother reached the spot in search of her, he fled from the scene after putting on his pants. At that time, he was without a shirt but had carried his shirt with him. On her further cross-examination conducted on 27.07.2013, she deposed that she was a student, but at the time of the incident, summer vacations were going on. On the day she went to her grandfather‟s house for butter milk, she did not see any other person on the roadside. She stated that the appellant lifted her in his lap, despite her crying, and carried her about 20 metres inside the forest. She also deposed that she sustained injury marks on her back, suffered bleeding on her arm, and had shown her injuries to the doctor. She handed over her shirt and 6 CRA No. 63/2014 trousers to the doctor during the medical examination. She further reiterated that, on hearing her cries, her mother had reached the spot. She also admitted that she narrated the entire incident before the Panchayat. 6. PW-1, namely, Toshi Devi (mother of the victim), deposed in her statement that she had sent her daughter to the house of her father-in-law to get butter milk. When the victim did not come back home, she went for her search, and while searching, she heard the cries of her daughter. She, accordingly, went to the scene of the crime and found her daughter in a naked condition, and the appellant, on seeing her, had fled away. The victim told her mother that the appellant, after removing her clothes, had tried to commit a bad act with her. There was a Panchayat in the village, wherein the accused/appellant herein confessed his guilt. She claimed that an FIR was lodged by her husband, who came from Katra, and it was only thereafter, the matter was reported to the police. She admitted to having made a statement under Section 164-A Cr.PC as well. She further went on to narrate that the shop of her father-in-law is near the place of occurrence. There is also a flour mill of Prem Dass, which is 2/3 feet away from the scene of the crime. At that time, there were 2/3 people present at the said mill. At around 8.00 a.m, she had sent her daughter to bring curd, and when she did not come back, she was searching for her. She further stated that she had 7 CRA No. 63/2014 found her daughter in the pathway, who was crying, and there was butter milk on her clothes. She had taken her daughter to the house of the appellant and informed him that he had committed a bad act with her daughter. At that time, the appellant was changing his clothes; however, he refused to have committed any such act. The victim had told her that the appellant had removed her clothes and also removed his clothes, put his private part in the victim‟s private part. She had informed her father-in-law about the occurrence as well as her husband, who at that time was in Katra. Thereafter, the father- in-law called for a Panchayat in the village, where the appellant and his mother came, and the appellant admitted his guilt. However, the mother of the appellant was saying that her son would not commit such a bad act. She denied the suggestion that the appellant is being falsely implicated. 7. PW-2, namely, Kuldeep Raj (father of the victim),is found narrating that on 22.06.2012, while he was working at Katra, he was telephonically informed by his wife that Papu alias Sanjay (appellant herein) had committed a bad act with the daughter of the witness. He came back by the evening, and at that time, the Panchayat people were discussing the matter. Thereafter, he informed the police by giving a written application, which was scribed by a villager, on which basis, an FIR was registered, which complaint is exhibited as EXTP-2, whereafter the victim was medically examined and her clothes were seized. At that 8 CRA No. 63/2014 time, she was a third-class student, studying in Government Middle School, Budha Charai, and her age was between 8 & 8½ years. The police had obtained the Date of Birth Certificate of the victim from him, which is marked as “A”. On cross-examination, PW-Kuldeep Raj denied the suggestion that there are bad relations between him and the appellant and that there is neither any acrimony between them nor have they got any dispute. He had talked to the village Panchayat after his wife informed him about the incident, whereby the appellant had committed a bad act (rape of his daughter) by taking her into the bushes. The written application was scribedby the Naib Sarpanch, which written application was later given by him to the police for registration of the case. 8. PW-5 Prem Nath (the grandfather of the victim), in his cross- examination, has deposed that the victim had come to his house to take butter milk, which she took. After some time, his daughter-in-law came with the victim, who was crying and told her mother and the witness that while coming back with butter milk, the appellant had lifted her, taken her on one side in the bushes, where he removed her trousers and committed a bad act. Upon hearing her cries, the mother had gone, but on seeing her, the appellant fled away. The matter was taken to the Panchayat, where the appellant was called, who admitted his guilt. Later on, his son informed the police. 9 CRA No. 63/2014 On cross-examination, PW-Prem Dass admitted that when he reached the place of occurrence, the lower clothes of the victim were already removed, and he was told by his daughter-in-law that the appellant, on seeing her, had fled away. The witnesses claimed that when he reached the scene of the crime, the victim had become unconscious. It was the mother of the victim who came to him in search of the victim. The witness further stated that the victim wasbitterly weeping, and when the matter was taken to the Panchayat, they suggested taking the same to the police. 9. PW-7 Kuldeep Singh (ASI) is found narrating that he had initially investigated the matter and prepared the site plan, which is exhibited as EXTP-8. He also seizedthe clothes of the victim, prepared its seizure, got her medical examination from the medical expert and also seized the Date of Birth Certificate. Later on, the appellant was arrested on 23.06.2012. On cross-examination, PW-Kuldeep Singh narrated that at the time of preparation of the site plan, the Lamberdar and Chowkidar were present, but admitted that there is no flour or saw mill near the crime scene, wherefrom, the houses are at adistance of half a kilometer. The occurrence had taken place between 10.00 to 11.30 A.M, whereas the FIR was lodged at 9.00 P.M. The complainant came in person. The clothes were seized on 23.07.2012, but the same were not sent to FSL, as the 10 CRA No. 63/2014 mother of the victim had told him that she had washed the clothes. 10. PW-8 Joginder Singh (S.I.)is found narrating that he got the statement of the victim recorded under Section 164-A Cr. PC,along with that of her mother. He also raised certain queries to the Medical Officer (Dr. Manisha Bhagat) with regard to the medical examination of the victim and obtained a report. After completion of the investigation, he found the appellant to have committed an offence under Section 376/341 RPC because the appellant had blocked the way of the victim, taken her towards the bushes, where he raped her, which fact was corroborated by the medical evidence. 11. PW-6 (Dr. Manisha Bhagat) claimed that on 23.07.2012, at about 10.30 A.M, the victim was brought to her for medical examination. She inquired from her as to what had happened, to which the victim narratedthat she had been taken by the appellant to an isolated roadside place when she was returning from her grandfather's house. The clothes of the victim were forcibly taken out and assaulted. The victim was brought to SDH Akhnoor after 27 hours of the incident. She examined the victim and found that there was fresh abrasion over labia, vagina slight bleed was present, hymn appeared ruptured, vaginal smears were taken and sent for semen stains and after examining the victim, she had opined that the possibility of rape with her was there and since she was 11 CRA No. 63/2014 brought for examination at a later stage, the vaginal smear staining was negative for semen. On cross-examination, she stated that whatever the victim told her, she recorded verbatim in the report. The victim had told her about the site of the occurrence beingan isolated place,and also told her about the forcible removal of the clothes by the appellant.She admitted that the victim did not tell her that the occurrence had taken her in the forest. She admitted to not mentioning in the report about the presence of ragged tears in the hymen of the victim with lack ofepithelial healing, but admitted that there were signs of recent intercourse, as ragged tears in the hymen were found. She did not mention the presence of oedema. She further stated to be correct that the superficial injuries found on the vagina must be carefully assessed in light of the personal hygiene. There is no mention of redness/tenderness/swelling in the vulva in her certificate because she has given positive findings and not negative ones, as is being asked. She admitted that the circumference of the vaginal opening is as broad in an eight-year-old as the circumference of 2 to 3 centimeters, whereas the average width of a male penis of 25 years is 5 cm to 6 cm.The medical expert further admitted that the accident of injury varies in different cases, depending upon the disproportion between the male and female parts. Apartfrom forcible sexual intercourse with the little victim, the hymen can be ruptured by cycling and horse 12 CRA No. 63/2014 riding.She denied the suggestion that injury tothe private part of the victim was possible by the forcible insertion of fingers of a person. 12. PW-9 (Mahesh Sharma, SHO) in his examination-in-chief has deposed that on 22.06.2012, while he was posted as SHO, Police Station, Akhnoor, he had received a docket of police post, Chowki Chora alongwith a written application/report regarding registration of FIR, upon which, an FIR No. 142/2012 for offence under Section 376, 341 & 511 RPC was registered against the accused/appellant herein present in the Court. After registration of the FIR, investigation was entrusted to ASI Kuldeep Singh, who completed the same, and after completion of the investigation, a challan was presented in the Court. On cross-examination, PW-9 has stated that none of the members of the Panchayat had come to him. He had not gone to the said village in connection with the said case and hadnot conducted an investigation in this case; however, he had obtained the knowledge of the same from the CD file 13. The appellant, when examined under Section 342 Cr.P.C. with reference to the incriminating circumstances appearing against him, stated that the witnesses had deposed falsely. He denied that the victim was ever in his company or that he had committed any wrongful act with her. He further contended that all the prosecution witnesses, in connivance with the police, had 13 CRA No. 63/2014 concocted a false case against him owing to a land dispute with the father of the victim, who had allegedly occupied 25 kanals of his land. According to him, when he demanded restitution thereof, he was falsely implicated in the present case. In defence, the appellant has produced two witnesses, namely, DW-Vinod Kumar and DW-Sham Lal. A brief resume of the statements of the defence witnesses is as under: - 14. DW-1 (Vinod Kumar) in examination-in-chief has stated that The appellant is known to him. His house is situated at a distance of about100 meters from the house of the appellant. There is a land dispute between the father of the appellant and the father of the victim, andtheir family members havequarrelled with one another a number of times. On the day of the occurrence, he was working on a road, whichis at a distance of half a kilometre from the house of the appellant. The appellant met him at 10.00 a.m, Thereafter, he went back to his house. At about 1.00 p.m, when he was going towards his house and reached at the house of the appellant, themother of the victim had come there and told the motherof the appellant that hehad threatened the victim while she was coming back home after bringing curd from the house ofher grandmother. Thereafter, he left for his house and came to know, in the evening that the appellant had been arrested by the police. He, along with the accused, has been working at Katra since 2000 14 CRA No. 63/2014 for about five years, and as such, knows the appellant very well. The appellant bears a good moral character, his father resides at Chandigarh, and he is the only earning member of the house. The complainant had lodged a false case against the appellant. The disputed land is at a distance of 300 meters from the house of the accused. As the complainant had gone to dispossess the appellant from his land, he has implicated him in a false and frivolous case. He does not have any knowledge about any Panchayat; however, he had the knowledge of the said Panchayat when the appellant was arrested by the police, but he was not present in the said Panchayat. On cross-examination, he has stated that there is no case pending in other Court regarding the land dispute. He wasnot present in such a Panchayat regarding the said land dispute; however, he had heard that there was such a Panchayat. He has further stated that before 11.00 a.m. or beforethat, he did not know what had happened between the appellant and the victim, as he does not have any personal knowledge about the same. 15. DW-2 (Sham Lal), in his examination in chief, has stated that the appellant is a resident of his village. He bears good moral character, and he has not heard any complaint about the appellant‟s character. On the day of the occurrence, he had gone to another village, Chowki Chora and at 4.00 p.m., when he came back, he had seen that 8/10 people were talking to one 15 CRA No. 63/2014 another. He, too, had gone there and found that the victim and her mother were present there. The mother of the victim had said that the accused had threatened the victim, who had brought curd from the house of her grandmother, and the appellant had thrown the same. Thereafter, he had left the said place, and on the next day, the police had arrested the appellant. He had heard about the land dispute between the parties. The complainant has implicated the appellant in a false and frivolous case based ona land dispute. The father of the accused is handicapped.On cross-examination, the witness admitted that he was not present at the relevant time and, therefore, could not depose as to what transpired between the appellant and the victim. He also conceded that, though there was a land dispute between the parties, no case in that regard was pending in Court. 16. The trial Court, on appreciation of evidence, found the testimony of the victim consistent and corroborated by her mother, grandfather, and medical evidence. It held that the prosecution had established that the appellant had lured the victim, taken her to a secluded place, and committed forcible sexual intercourse with her. The defence plea of false implication owing to a land dispute was found without basis. Accordingly, the appellant was convicted under Sections 376 and 341 RPC and sentenced to rigorous imprisonment for 16 CRA No. 63/2014 twelve years with a fine of ₹50,000/- for the former offence, and to simple imprisonment for one month with a fine of ₹500/- for the latter. The period already undergone in custody was set off, and compensation of ₹50,500/- was directed to be paid to the victim from the fine amount. 17. L C for appellant, assailing the judgment of conviction, contended that the prosecution witnesses were inconsistent, uncorroborated, and interested, and that the medical injuries did not tally with the alleged time of occurrence. It was urged that no independent witness, including members of the Panchayat before whom the appellant was alleged to have confessed, had been examined. The defence further emphasised that the mother of the victim had not seen the appellant at the spot, that the victim, being a child of tender years, could be tutored in view of an existing land dispute, and that the absence of struggle marks belied the allegation of rape. It was also argued that while the prosecution's case was premised on an attempt to commit rape, the trial Court erroneously convicted the appellant under Sections 376 and 341 RPC. Per contra, learned counsel for the respondents submitted that the testimonies of the victim and her family members were natural, consistent, and corroborated by medical evidence, including the history recorded by the medical expert. The plea of land dispute was found baseless, as the defence had failed to 17 CRA No. 63/2014 substantiate it. It was contended that, considering the social background of the victim‟s family, it was improbable that the child would be used to settle personal enmity. The trial Court‟s finding of guilt was defended as reasoned and sustainable in law. 18. We have gone through the record of the trial Court, and have heard both the counsels. 19. The victim in the present case was stated to be about 8–9 years of age. To prove her age, the prosecution relies on the victim's Date of Birth Certificate. Having considered the arguments advanced at the Bar, we find that there is no dispute regarding the age of the victim. Much emphasis, however, has been laid on the contention that any independent witness has not corroborated the occurrence and that the prosecution did not examine the members of the Panchayat before whom the appellant is alleged to have confessed his involvement in the incident dated 22.06.2012. According to PW–Toshi Devi (mother of the victim), upon finding the victim weeping and naked below waist, she enquired, whereupon the victim narrated the incident to her. PW–Toshi Devi then informed her father-in- law, PW–5 Prem Nath, and also telephonically conveyed the same to her husband, PW–2, who was then at Katra. Thereafter, a Panchayat was convened in which the appellant is stated to have admitted his guilt. It is noteworthy that PW–7, PW–8, and PW–9, who were associated with the investigation, claimed not 18 CRA No. 63/2014 to have examined any witness from the said Panchayat. The trial Court too did not deal with the issue of any extra-judicial confession by the appellant. It is, therefore, evident that the prosecution's case primarily rests upon the testimony of the victim and her immediate relatives, namely her mother, father, and grandfather. The core question that arises for consideration is whether, based on the material available on record, the charge of rape against the appellant stands duly established. For that purpose, it becomes imperative to carefully appreciate the testimonies of the aforesaid witnesses. 20. Insofar as the testimony of the victim is concerned, from the evidence on record, it is evident that she was subjected to lengthy cross-examination. Her statement was deferred on two occasions, thereby requiring her to appear before the Court on three different dates for the conclusion of her cross- examination. Despite such exhaustive and searching cross- examination, nothing has emerged either from the statement of the victim or that of her mother which could cast even the slightest doubt on the false implication of the appellant.During cross-examination, a suggestion was put to the victim that her father bore past enmity with the appellant on account of a land dispute. The victim categorically denied the same. On an overall appreciation of the record, we find no evidence of any animosity between the complainant (father of the victim) and the appellant. The defence, through DW–Vinod Kumar and 19 CRA No. 63/2014 DW–Sham Lal, made a feeble attempt to introduce a plea of false implication; however, such suggestions have not withstood scrutiny. Even from the testimony of the defence witnesses, nothing has surfaced which could suggest the existence of any land dispute. In his statement under Section 342 Cr.P.C., the appellant claimed that his land was under illegal possession, yet this assertion too fails to gain support from the testimony of the defence witnesses. 21. In this backdrop, it is imperative to bear in mind that the allegations concern the rape of a minor child of 8–9 years of age. Considering the social strata to which the victim belongs, it is inconceivable that her parents would exploit their own child by fabricating such a grave allegation merely to settle scores with the appellant. The offence of rape inflicts a permanent scar, leaving deep psychological trauma not only upon the victim but also upon her family. It is, therefore, wholly improbable that a parent would concoct a false story of rape to falsely implicate any person. In the present case, there is not even an „iota of evidence‟ to suggest that the victim or her parents had any motive whatsoever to implicate the appellant falsely. Having carefully examined the evidence of all prosecution as well as defence witnesses, we are of the considered opinion that the prosecution evidence fully rules out the possibility of false implication. 20 CRA No. 63/2014 22. Having considered the material on record, the issue that arises for determination is whether the testimony of the victim inspires confidence and whether there exists factual support for the same. The victim has given a categorical account of the occurrence, stating that while she was returning home after having procured buttermilk from her grandfather‟s house, she was intercepted by the appellant at a place situated near the grocery shop of her grandfather. She has further deposed that, ahead of the said shop, there exists a hillock with several trees and bushes adjoining the kacha road, and it was in those bushes that the appellant forcibly took her. 23. According to the victim, the appellant disrobed her and, after removing her trousers, lay upon her and committed a bad act with her. She has also narrated that the appellant threatened her not to disclose the incident to anyone. The victim further stated that the act caused her severe pain, due to which she cried aloud, attracting the attention of her mother, who arrived at the spot and lifted her in that condition. Thereafter, she narrated the entire occurrence to her mother. 24. PW–Toshi Devi, the mother of the victim, has corroborated this version. She has stated that when her daughter did not return home, she went in search of her and, upon hearing her cries, rushed to the scene of the occurrence. There she found her daughter in a naked condition and also witnessed the appellant fleeing from the scene of the crime. 21 CRA No. 63/2014 25. It was contended by learned counsel for the appellant that during the course of cross-examination, PW–1 admitted that while searching for the victim, she found her crying while returning, carrying buttermilk, half of which had fallen, and that she was in tears. This, according to the defence, implies that PW–1 had not witnessed the actual incident, and consequently, the testimony of the victim does not stand corroborated by the evidence of her mother. 26. We have carefully examined the depositions on record and find force in the submissions advanced by learned counsel for the respondents. In her cross-examination, PW–1 categorically deposed that when her daughter did not return, she went in search of her and found her in the pathway, crying, with buttermilk spilt over her clothes. PW–1 further stated that thereafter she took her daughter to the house of the appellant and confronted him as to why he had committed the bad act upon her child. This part of the testimony of PW–1 clearly demonstrates that she had not witnessed the occurrence herself and had come to know of the incident only from the narration of her daughter, i.e., the victim. 27. Similarly, PW–2 was not at home at the relevant time, as he was at Katra, and therefore, he too had no direct knowledge of the incident. PW–5, Prem Nath, also appears to have made improvements in his testimony, since if his version that he saw the appellant fleeing from the spot is to be accepted, the natural 22 CRA No. 63/2014 course of conduct would have been to apprehend the appellant immediately. The absence of such conduct makes his testimony doubtful. Thus, there is every likelihood that PW–5 had not actually witnessed the appellant in the company of the victim. 28. In these circumstances, the case essentially rests upon the testimony of the victim. It is by now well settled through a catena of judicial pronouncements that in cases of sexual assault, the testimony of the prosecutrix stands on par with that of an injured witness. Corroboration is not a sine qua non for sustaining conviction if the testimony of the victim inspires confidence and appears to be credible and trustworthy. The testimony of the victim reveals that she had prior acquaintance with the appellant, whom she used to address as Chacha. According to her statement, she was offered a bubble gum by the appellant and thereafter taken to a secluded place. At another stage, she deposed that she was lifted by the appellant and taken to the scene of the occurrence. The defence has attempted to highlight this variation as a contradiction. 29. On careful consideration, this Court finds that whether the victim was enticed by the offer of bubble gum or was physically lifted and carried by the appellant, the essential fact remains that she was taken by him to an isolated place where the offence was committed. Given the tender age of the victim (8–9 years) and the rigours of prolonged cross-examination, such minor 23 CRA No. 63/2014 inconsistencies are natural and do not undermine the core of her testimony. 30. The victim‟s statement that the appellant disrobed her, removed his own clothes, and committed sexual assault is corroborated by her immediate disclosure to her mother (PW-1). The medical evidence also lends support to the prosecution's case, as the examining doctor noted recent injuries on the private parts of the child and opined that the possibility of sexual assault was present, though the vaginal smear was negative for semen on account of delay in examination. 31. From the testimony of the victim and the statement of the medical expert, we find no reason to disbelieve the version put forth by the victim. The medical expert, when specifically questioned by the defence as to whether the injuries on the private part of the victim could have been caused by the forcible insertion of fingers, categorically denied the suggestion. She further deposed that, considering the age of the victim, the circumference of her private part would be about 2–3 centimetres, whereas the average width of a male organ of a 25-year-old person is 5–6 centimetres. She clarified that the nature of injuries in such cases may vary, depending on the disproportion between the male and female organs. The doctor also ruled out the possibility of the injuries being attributable to a lack of hygiene. 24 CRA No. 63/2014 32. The evidence further establishes that the victim was found by her mother in a distressed and naked state, and her clothes were drenched with buttermilk. Upon being questioned, she immediately narrated the incident to her mother, who in turn informed her father-in-law and husband. The FIR was lodged the same evening when her father returned from Katra. 33. The defence attempted to suggest that the injuries on the back and elbows, as narrated by the victim, were not supported by the medical evidence and that this indicated a false allegation. We are unable to accept this contention. The medical record clearly reflects that the Medical Officer prescribed ointment for injuries, which could reasonably have been in respect of injuries caused during the assault by the appellant. Once the possibility of self-inflicted injuries is ruled out, the fact that the victim has consistently named the appellant as the perpetrator of the crime cannot be dismissed as false implication. 34. The victim narrated the incident not only to her mother but also reiterated the same before her father, grandfather, and the medical expert. At no stage has her testimony been successfully impeached in cross-examination. In these circumstances, there is no reason to disbelieve her version 35. Counsel for the appellant, during the course of hearing, took the stand that even if the whole evidence is to be taken true, but at the most, the appellant can be said to have committed offence of an attempt to commit rape and given the testimony of the 25 CRA No. 63/2014 medical expert, the nature of injuries caused squarely bring the case of the prosecution within the ambit of attempt to rape. So, the trial Court has erred in convicting the appellant for the offence under Section 376 RPC, which is contested by the respondent on the premise that even a slight penetration would come within the purview of Section 375RPC. Thus, the finding returned by the trial Court is in accordance with the law. 36. The question, which we now address, is whether the proved facts established the offence of rape in this regard in the case titled, “State of Uttar Pradesh Vs. Babul Nath, (1994) 6 SCC 29”. In the said case, the victim was five years old and as per the medical expert, if, she was not subject to sexual intercourse and the finger could not have been easily inserted in her private part, as observed by the lady doctor; that this fact was ignored by the High Court by holding that the victim was subjected to indecent assault only, discarding the observation of the High Court, it was observed as under:- “8. It may here be noticed that Section 375 of the IPC defines rape, and the Explanation to Section 375 reads as follows:- "Explanation.-Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape." From the Explanation reproduced above, it is distinctly clear that the ingredients. Whatis essential for proving a charge of rape is the accomplishment of the act with force and resistance. To constitute the offence of rape, neither Section 375 of IPC nor the Explanation attached thereto requires that there should necessarily be complete penetration of the penis into the private part of the victim/prosecutrix. In 26 CRA No. 63/2014 other words, to constitute the offence of rape, it is not at all necessary that there should be complete penetration of the male organ with emission of semen and rupture of the hymen. Even partial or slightest penetration of the male organ within the labia majora or the vulva or pudenda with or without any emission of semen or even an attempt at penetration into the private part of the victim would be quite enough for Sections 375 and 376 of IPC. That being so it is quite possible to commit legally the offence of rape even without causing any injury to the genitals or leaving any seminal stains. But in the present case before us as noticed above, there is more than enough evidence positively showing that there was sexual activity on the victim and she was subjected to sexual assault without which she would not have sustained injuries of the nature found on her private part by the doctor who examined her.” 37. In “Wahid Khan Vs. State of Madhya Pradesh, 2010 (2) SCC 9”, the victim was a minor and was subjected to rape, though during medical examination, her hymen was found intact, and the offence of rape was not proved. In the said case, at paras-20 & 21, being relevant and germane to the case in hand, have been held as under: - 20. It is appropriate in this context to reproduce the opinion expressed by Modi in Medical Jurisprudence and Toxicology (Twenty Second Edition) at page 495, which reads thus: - “Thus, to constitute the offence of rape, there doesn't need to be complete penetration of the 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 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 to the effect of whether there is evidence of recent sexual activity. Whether the rape has occurred or not is a legal conclusion, not a medical one.” [Emphasis supplied] 21. Similarly, in Parikh's Textbook of Medical Jurisprudence and Toxicology, 'sexual intercourse' has been defined as under:“Sexual intercourse. - In law, this term is held to mean 27 CRA No. 63/2014 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.” 38. In “Rajendra Datta Zarekar Vs. State of Goa, (2007) 14 SCC 560”, a similar question was considered. In the said case, it was found that the victim was six years of age, and it was quite likely for that full penetration did not take place, as the accused was grown up person of over twenty years and injury clearly indicates that rape, as defined under Section 375 IPC, did take place because there was a bruise reddish 2 x 1.5 CMS. area on the right labia majora and right labia minora, which was tender to touch, besides, there was a laceration of 5mm x 2 mm on the right labia minora near the clitoris, which was tender to touch. Though the hymen was intact, its border was bruised. In that background, the plea of there being no rape was negated. 39. The legal plea advanced on behalf of the appellant that, at the most, an offence of attempt to commit rape is made out is untenable in view of the law laid down in the aforesaid “supra” that even the slightest penetration is sufficient to constitute rape within the meaning of Section 375 IPC. In the present case, the victim‟s testimony, coupled with the medical findings, clearly establishes the commission of rape, and the trial Court was justified in convicting the appellant under Section 376 RPC. The argument that the victim, being a child of tender age, was susceptible to tutoring has no substance. The evidence on record 28 CRA No. 63/2014 does not suggest tutoring or false implication. On the contrary, the consistent narration of the victim, duly supported by her mother and the medical expert, leaves no scope for doubt. 39. Learned counsel for the appellant, while concluding her submissions, contended that serious prejudice has been caused to the appellant since he was initially charged with the offence of attempt to commit rape, but subsequently, the charge came to be altered to one under Section 376 RPC. We have carefully examined the record and find no merit in the said contention. It is evident that though the FIR was registered for offences under Sections 376, 341 and 511 RPC, whereas the challan was laid only for offences punishable under Sections 376 / 341 RPC. This, in itself, establishes that during the course of investigation, it was concluded that the case was not merely one of attempt, but that the victim had, in fact, been subjected to rape as defined under Section 375 RPC. 40. It further transpires that while framing the formal charge, the offences recorded in the FIR were reproduced in the Fard-e- jurm, and the trial commenced accordingly. Upon examination of the victim and the medical expert, the trial Court formed the considered opinion that the offence under Section 376 RPC was made out and, accordingly, altered the charge vide order dated 01.04.2013. Significantly, the said order of alteration of charge remained unquestioned, and at no stage during the trial was any 29 CRA No. 63/2014 objection raised on behalf of the appellant. This clearly indicates that the appellant was at all material times aware of the charge under Section 376 RPC and not merely of an attempt to rape. 41. Even otherwise, any irregularity in the framing of the charge is curable under law, the trial Court being fully empowered to alter or amend the charge if the circumstances of the case so warrant. The plea of prejudice now sought to be raised, therefore, appears to be a mere afterthought. We therefore find no reason to interfere with the finding of conviction so recorded. The trial court has assessed the evidence in proper perspective, and we do not find its reasoning to be perverse. 42. The incident occurred on 22.06.2012; the appellant, who was then more than 25 years of age, has undergone the ordeal of trial and pendency of appeal for over a decade. It has also been brought to our notice that the appellant has also got married. In these mitigating circumstances, while upholding the conviction of the appellant for the offence under Section 376 RPC, we are inclined to reduce the quantum to rigorous imprisonment of ten (10) years,but enhance it with a fine of ₹1,00,000/- (Rupees One Lac) and, in default, shall further undergo imprisonment of one year. The conviction and sentence under Section 341 RPC is maintained. Out of the fine amount, a sum of ₹90,000/- (Rupees Ninety Thousand) shall be paid as compensation to the victim, who, by now, may have attained majority and settled in her life. 30 CRA No. 63/2014 We are of the considered view that she deserves to be suitably compensated for the trauma and suffering inflicted upon her by the acts of the appellant. 43. The appeal, therefore, is found meritless and is, accordingly, dismissed. The sentence, accordingly, is modified as above. The copy of the judgment shall be notified to the trial Court for taking sequential steps. The bail bond of the appellant shall stand withdrawn. He shall immediately surrender before the trial Court to undergo the sentence as above. The trial Court shall commit him to custody after redrawing sentence order in terms of the judgment hereinabove. 44. (Sanjay Parihar) (Sanjeev Kumar) Judge Judge JAMMU 11 .09.2025 Ram Krishan Whether the order is speaking? Yes Whether the order is reportable? Yes Ram Krishan 2025.09.09 14:10 I attest to the accuracy and integrity of this document