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9. In regard to the incident it is deposed by the victim during the trial that ―on 26.06.2012 at about 02.00PM, I had gone to take water from near Panchwati Mandir. At that time, accused Gaurav resident of gali no. 10 in our neighbourhood was also standing there. He called me on the pretext that my sister ( name withheld to conceal the identity of the victim) had made a phone call and wanted to talk to me. For this reason, I accompanied the accused. The accused took me to his house. Nobody else was there in the house. The accused kissed on my lips and removed my clothes forcefully. Thereafter, the accused started kissing my body. The accused also removed his clothes. The accused came over my body. The accused sucked my breasts also and rubbed my vagina. Thereafter, the accused inserted his penis into my vagina. Thereafter, the accused said that he knows my mother and that I should daily visit him otherwise he would kill my mother. Thereafter, put on my clothes and went home and narrated the entire incident to my sister. She (name withheld to conceal the identity of victim) informed my mother on phone. My mother came back home and made a call at number 100. Police came to our home. The police inquired from me about the incident and recorded my statement.‖ The victim stated that her mother came at 3.30 PM. She stated that she disclosed the entire incident to her mother. But in the cross-examination she stated that she did not disclose the entire incident to her mother when she reached home and that she told her that one boy namely Gaurav had misbehaved with her, removed her clothes, she state that on hearing this, her mother called the police. The call was made by the mother from her phone about eve-teasing. If the victim had told entire facts to her then it remains unexplained as to why the call was not made with true facts. The prosecution has examined elder sister of the victim to whom she narrated the incident and who made call to her mother as PW9 and she stated that her mother made call to police in her presence and she has also not explained the reason why the call was made only of eve-teasing if rape was committed upon the victim. It is also not explained if mother had come to know about the incident upon her arrival to home at 3.30 PM then why she made call to the police at 7.45PM.

12. The victim stated that ―I had narrated the entire fats in my statement under Section 164 CrPC to the Magistrate. My statement made to the Magistrate is correct wherein I have stated that the accused was trying to insert his penis into my vagina and that with efforts I tried to save myself as asked him ‗Bhaiya mujhe jane do please, mujhe bahut dard ho raha he.' Thus it is clear from the statement of the victim that there were no penetration and accused only tried to insert his penis into her vagina. But as per statement made to the police as well as made in the Court there was full penetration.

(h) She came back home and narrated the incident to her sister.

(i) Her sister called their mother, who came back home and on being informed by the daughters about the incident, made a call on 100 number.

33. The statements are consistent, duly corroborated by: (a) the statements of PW-5 and PW-9; (b) the medical examination of the prosecutrix Ex. PW- 8/BB., and; (c) the FSL report Ex.PW-17/A, and inspire the confidence of this Court.

34. We are appalled that in the impugned judgment rendered by the trial court, the Ld. ASJ has completely ignored and effaced the MLC (Ex. PW 8/B), even though the same has been exhibited on record. In the MLC, the examining doctor found that the breast of the prosecutrix was swollen and teeth marks were also present on the chest. There was a cut mark around 1 cm on the left cheek bone. The hymen was found to be torn admitting tip of finger. This medical report of the prosecutrix fully corroborates her statement that the accused had sucked her breasts. The fact that the hymen was found torn also corroborates the statement of the victim that she was raped by the accused. Pertinently, she had disclosed that the accused had penetrated her in her statement u/s 161 Cr PC which was recorded on the date of the incident. Even in her statement recorded u/s 164 Cr PC, the prosecutrix had disclosed that the accused had inserted his penis into her vagina. She had also disclosed that she had requested the accused to let her go, as she was experiencing a lot of pain. In her testimony recorded before the court, she had categorically stated that the accused had inserted his penis into her vagina. The statement of the prosecutrix also stood corroborated by the statements of her mother Pinki PW-5 and the statement of her sister Neetu PW-9, to which we have already made reference.

39. The learned ASJ has also proceeded to conclude, on the basis of the statement of the victim recorded u/s 164 Cr PC, that there was no penetration and the accused only tried to insert his penis into her vagina. The learned ASJ on this basis has discredited the victim since she had claimed before the police that there was full penetration, and she had also deposed before the court that she had been raped by the accused.

40. Once again, we find the approach of the learned ASJ to be completely perverse. The victim was only about 12 years of age. She would have had no idea about what is full penetration, or partial penetration. She had described the act committed by the accused upon her. She had stated that he had inserted his penis into her vagina. She had also stated that she had experienced a lot of pain. Pain would result upon the penetration of the penis into the vagina. Pertinently, the hymen was found torn, admitting a finger tip. In any event, whether the penetration was full or partial makes no difference, since the offence is complete even if the penetration were partial. However, the medical evidence on record establishes that the penetration was full, since the hymen of the prosecutrix was torn. Non-examination of Chhotu, the friend of the brother of the prosecutrix with whom the utensil for filing the water was left is neither here nor there, since he was not a witness to the crime.