J. D. Jain, J. ( 1 ) THE appellant has been convicted of offences under sections 366 and 376, Indian Penal Code, by an Additional Sessions Judge videhis judgment dated 26/12/1983. He has been sentenced to rigorousimprisonment for seven years on the first count and rigorous imprisonmentfor ten years and a fine of Rs. 2. 0co. 00 on the second count ; in default ofpayment of fine, he has been awarded further rigorous imprisonment for oneyear. However, the substantive sentences on both the counts have been madeto run concurrently. Feeling he has come up in appeal against his convictionand sentence. ( 2 ) THE appellant is resident of house No. 5/5230, Regharpura, Karolbagh, New Delhi. He also owns house No. F-240, Street No. 12, Laxminagar, which is a trans-yamuna colony. Balrishan Gupta (PW 8), father ofthe prosecutrix, was living in a portion of the said house at the relevant timeas tenant of the appellant. He plies a scooter rickshaw. On 16/10/1981 at about 10. 00 p. m. he lodged a report at Police Station Shakarpur to theeffect that on return to his home after day s work he learnt that the appellanthad seduced his daughter Rekha aged about 15 years at about 2. 00 p,m. on thesaid date and that his daughter be got recovered from him. The investigationof the case was entrusted to SI Sewa Ram Sharma (PW 10) who was promptenough to proceed to the house of the appellant in Street No. 5, Regharpura,karol Bagh, New Delhi, alongwith the father of the prosecutrix and constabledarshan Kumar. On reaching the house of the appellant, he found that theappellant and Prabba, daughter of the complainant, were lying on one bed innaked condition. He recovered the girl and took her with himself vide memoex. Public Witness 8/a. He also arrested the appellant and took them both to Policestation Shakarpur where the custody of the girl was restored to her rather,she was produced before a Metropolitan Magistrate on the afternoon of 1 7/10/1981 and her statement under section 164, Code of Criminal Procedure (for short the Code ) was recorded by Shri Rajesh Kumar, Metropolitanmagistrate, it being Ex. Public Witness 1/b. On the next following day, viz. 1 8/10/1981, she was got medically examined. Dr. S. Chaudhary, Medicalofficer Police Hospital, Delhi, examined her and recorded her report Ex. Public Witness 1/b. On the next following day, viz. 1 8/10/1981, she was got medically examined. Dr. S. Chaudhary, Medicalofficer Police Hospital, Delhi, examined her and recorded her report Ex. PW 4/a. She then referred the prosecutrix to the radiologist for ossificationtest to determine her age. Dr. M. C. Bhatia, Radiologist took X-rays forassessment of her bony age and made his export Ex. Public Witness 5/a. According tohim, her age was about 14 years. The Investigation Officer also obtained acertificate of her age from the Principal, Govt. Girls Senior Secondary School,laxmi Nagar, where she was studying in the 7th class at the relevant time andon completion of investigation the appellant was challaned. ( 3 ) THE prosecution case as unfolded by the prosecutrix Prabha is that on 16/10/1981 at about 2 or 3 p. m. when she was present at her housethe appellant came there and asked her to accompany him but she refused todo so. The appellant then took her forcibly in a taxi to a restaurant inconnaught Place and offered her food which she refused to take. From therehe took her to his own house at Karol Bagh in a scooter rickshaw and heasked her the where abouts of her elder sister Meena. However, she expressedher ignorance about the same. Thereupon, the appellant gave her beating,stripped her and also undressed himself. He then committed rape on her. However, the police arrested the appellant after mid-night and she was restoredto her father. She gave her age to be 12 years on the date of the occurrence. During her cross-examination she admitted that her elder sister Meena, agedabout 22 years, had lived with the appellant for about two years and she had afemale child from him. However, she was not aware where she was living inthose days. ( 4 ) BALKISHAN Gupta has deposed to the factum of the prosecutrix havingbeen kidnapped by the appellant and her subsequent recovery from the houseof the appellant in his presence when they were lying on the same bed. Heexplained that he mentioned the name of his daughter Rekha in FIR as havingbeen kidnapped, instead of the name of Prabha out of confusion. ( 5 ) THE stand of the appellant as spelt out in his examination undersection 313 of the Code is that the elder sister of the prosecutrix, namely,meena had come to him and lived with him for two years. ( 5 ) THE stand of the appellant as spelt out in his examination undersection 313 of the Code is that the elder sister of the prosecutrix, namely,meena had come to him and lived with him for two years. She had a daughterfrom him but he eventually turned her out of his house because she was awoman of ill-repute. Therefore, Balkishan Gupta nurtured a grudge againsthim and relations between the two were strained on that account. On the dateof occurrence the prosecutrix came to his house and told him that she hadabandoned the guardianship of her parents and would like to live with himjust as her elder sister had lived with him earlier. She explained that herfather had neglected her elder sister and similarly he was neglecting her too. Moreover, he wanted to sell her to someone for a price. He i. e. the appellant,and his wife persuaded her to go back to her parents house as there was noplace for her in his house. While he and his wife were still persuading theprosecutrix to go back to her parents and he was about to take her to herhouse, the police arrived there and took both him and Prabha to the Policestation even though Prabha had told her father that she would not go back toher house alongwith him under any circumstances. He thus admitted thefactum of recovery of the prosecutrix from his house at about 11. 30 pm. on 16/10/1981 vide memo Ex. Public Witness 8/a. However, be denied havingravished her and he further asserted that she was major. ( 6 ) THE appellant examined his wife Smt. Gulab Devi in defence. Shetoo lent support to the defence version as spelt out above. During crossexamination she admitted that Prabha s elder sister Meena used to come totheir house and stay with herhusband. She also admitted that Meena had afemale child from her husband. However, she denied that in fact she wasstep-mother of the appellant, being second wife of his father Puran Chand. ( 7 ) THE most crucial question which falls for determination in this caseis regarding the age of the prosecutrix. No doubt, the father of the prosecutrixhad mentioned the name of Rekha and her age to be about 15 years in thefir, Ex. ( 7 ) THE most crucial question which falls for determination in this caseis regarding the age of the prosecutrix. No doubt, the father of the prosecutrixhad mentioned the name of Rekha and her age to be about 15 years in thefir, Ex. Public Witness 2/a but as shall be presently seen, nothing would turn upon itbecause it is an admitted fact that it was Prabha (PW 7) and not her sisterrekha who was recovered from the house of the appellant on the night between16/l7th of October 1981 under circumstances mentioned above. ( 8 ) DURING his cross-examination Balkishan Gupta said that Meena washis eldest child. She was born in the year 1962 and Prabha was his second childhaving been born one and a half year after the birth of Meena, but he did notremember where she was born. However, in the next breath he stated that heshifted to Delhi immediately after the birth of Prabha and before that he wasresiding at Jahangirabad in District Bulandshahr (U. P. ). This witness wasrecalled for further examination on the application dated 20/12/1983made by the prosecution. During his further examination he explained thathis earlier statement that Prabha was his second child bad been wrongly madebecause he was under mental tension on account his three wheeler scooteralongwith the luggage having been stolen on 26th Novmber 1983. So herectified his earlier deposition by saying that in fact Prabha was his thirdchild his son Narinder Kumar being his second child. He further deposedthat both Narinder Kumar and Prabha were born in Bhikhu Ram Hospital atpahari Dhiraj as he was residing in Gali Jatan, Pahari Dhiraj, in those days. He also testified to the correctness of their birth entries in the municipalrecords, copies Ex. C1 and C2. A perusal of Ex. C1 and C2. A perusal ofex. Cl would show that a son was born of Balkishan on 8/03/1969 atmaternity home, Pahari Dhiraj. He was his second child. According toex. C2, a daughter was born of Balkishan on 3/04/1970 apparently at thesame maternity home. She was his third child. However, these certificates ofbirth further show that Balkisban had two living children including the newlyborn son at the time of his son s birth and similarly he hed three living childrenincluding the newly born daughter at the time of the birth of third child. Inother words, no child of his had died prior to their birth. However, these certificates ofbirth further show that Balkisban had two living children including the newlyborn son at the time of his son s birth and similarly he hed three living childrenincluding the newly born daughter at the time of the birth of third child. Inother words, no child of his had died prior to their birth. It is pertinent tonote that at the time of both these births Balkishan was living at house No. 4527, Gali Jat Wali. During his cross-examination he refuted the suggestionthat Ex. C1 and C2 were not the correct entries from the municipal records. However, he explained that he did not tell the police about their birth atpahari Dhiraj because no such question was put to him by the police. Onfurther cross-examination he stated that after Prabha, his wife delivered threefemale children and all three of them were alive. ( 9 ) THE next place of evidence regarding age of the prosecutrix is theschool register in which too her date of birth is recorded as 3/04/1970. This entry has been duly proved by Smt. Kamla Chawla, Vice-Principal, Govt. Girls Senior Secondary School, Laxmi Nagar. She explained that the prosecutrix was admitted to their school on 13/07/1980 in 6th class and the saiddate of birth was verified from her primary school certificate. Of course, sheadmitted that she had not brought the admission form as the same had notbeen summoned from her. However, she offered to produce the same if sodirected. The certificate issued by her is Ex. Public Witness 6/a. ( 10 ) THERE is the medical evidence on record. According to Dr. M. C. Bhatia (PW 5), a Radiologist in Police Hospital, X-rays of the prosecutricwere taken on 19/10/1981 and they revealed that epiphysis at elbowwere united. However, line of union of medical epicondyle and olecranonprocess were clearly seen. At the wrist the epiphysis were not yet fused. Thus,he expressed the opinion that her age was around 14 years, Ex. Public Witness 5/a beinghis report. During cross-examination he stated that radiological age does notdetermine the exact chronological age of the patient and there can be adifference between the radiological age and the chronological age due todietitic, climatic and hereditary factors. He also conceded that in temperatezones epiphysis may be united earlier and there may be a difference of twoyears on either side in radiological age and chronological age. He also conceded that in temperatezones epiphysis may be united earlier and there may be a difference of twoyears on either side in radiological age and chronological age. ( 11 ) LASTLY, there is the evidence of Dr. S. Chaudhary of Police Hospital,who examined her medically on 18/10/1981. She. inter alia, deposedthat secondary sexual characters of the prosecutrix were not developed andpublic hair were not present. On cross-examination of the witness in thisrespect. ( 12 ) FROM the foregoing conspectus of evidence on record there isabsolutely no reason to doubt the correctness of her date of birth as given inthe municipal records especially when the same is duly corroborated by theentries in the school records. Surely it cannot be just a sheer coincidence. Itis true that the father of the prosecutrix has made contradictory statements, inthat in the FIR he mentioned the age of Rekha, who, according to him, hadbeen seduced by the appellant, as 15 years. However, in his examination-inchief as Public Witness 8 he stated the age of Prabha to be 12 years at the time of thisoccurrence and explained that Rekha was younger to Prabha who was hissecond child. He even went to the extent of saying that his first child Meenu@ Meena was born in the year 1962 and Prabba who was his second childwas born one and a half year after the birth of Meena. If they were so, theprosecutrix must have been around 16/17 years of age at the time of herseduction. Not only that he went to the extent of saying that he shifted todelhi immediately after the birth of Prabha and before that he was residing injahangirabad in District Bulandshahr. If this statement of his is accepted astruthful then both the birth entries Ex. C1 and C2 are rendered highly doubtful. However, for obvious reasons no reliance can be placed on the testimonyof a person like him who is not sure of what he is saying. It may be that heis a confused person and as such he cannot recall facts vividly. However, hissubsequent statement dated 24/12/1983 clearly brings out that Prabhais his third child, having been born next to his son Narinder Kumar. This isclearly borne out by documentary evidence, viz. , entries Ex, Cl and C2 fromthe municipal records which were prepared by the concerned officials in duedischarge of their duty. However, hissubsequent statement dated 24/12/1983 clearly brings out that Prabhais his third child, having been born next to his son Narinder Kumar. This isclearly borne out by documentary evidence, viz. , entries Ex, Cl and C2 fromthe municipal records which were prepared by the concerned officials in duedischarge of their duty. Not only that the entries in the school register toolend ample corroboration to the same. (See Harpal Singh and another v. Stateof Himachal Pradesh, AIR 1981 SC 361 ). Even the medical evidence onrecord points out in the same direction. It is no doubt notorious and one cantake judicial notice of the fact that the margin of error in age ascertained byradiological examination is two years on either side. Hence, too muchreliance cannot be placed upon medical evidence. It merely indi-cates an average and is likely to vary in individual cases even of the sameprovince owing to the eccentricities of development. However, giving allowancefor the possible margin of error the age of the prosecutrix can be between 12to 16 years. In other words, this circumstance to tends to coverge on thesame point that the age of the prosecutrix could be 12 years and, therefore,authenticity of the entries in the municipal records and the school registercannot be doubted. Unfortunately for the appellant, there is no circumstanceto warrant an inference that the age of the prosecutrix would be more than 14years and as such benefit of margin of error may be given to him. Absenceof development of secondary sexual character and public hair is also pointerin the same direction. Hence, taking all the circumstances inso considerationi have no hesitation in endorsing the finding of the trial Court that the age ofthe prosecutrix at the relevant time was just 12 years or even less. ( 13 ) THE learned counsel for the appellant has, however, canvassed withconsiderable fervour that the trial court gravely erred in recalling Balkishanfor further examination and permitting him to tender municipal certificates ofbirth Ex. C1 and C2 in evidence. This, according to him, enabled the prosecution to fill up the lacuna in the prosecution evidence and resulted in gravemiscarriage of justice. However, on a consideration of the entire material onthe record I do not think that the discretion vesting in the trial Court undersection 311 of the Code of Criminal Procedure has been wrongly or injudiciously exercised. This, according to him, enabled the prosecution to fill up the lacuna in the prosecution evidence and resulted in gravemiscarriage of justice. However, on a consideration of the entire material onthe record I do not think that the discretion vesting in the trial Court undersection 311 of the Code of Criminal Procedure has been wrongly or injudiciously exercised. The said section reads as under : "any Court may, at any stage of any inquiry, trial or other proceeding under this Code, summon any person as a witness, or examineany person in attendance, though not summoned as a witness, orrecall and re-examine any person already examined ; and the Courtshall summon and examine or recall and re-examine any such personif his evidence appears to it to be essential to the just decision ofthe case. "on a plain reading this section confers a wide discretion on the Court to act asthe exigencies of justice require. It apparently consists of two parts. Thefirst part confers discretionary power on the court while the second partimposes an obligation on it to summon and examine or recall and re-examineany witness if his evidence appears to be essential to the just decision of thecase. The object of the section is obviously to enable the court to arrive atthe truth and get to the bottom of a case. ft hardly matters whether thesuggestion for recalling a witness emanates from the prosecution or not. Further as observed by the Supreme Court in Jamatraj Kewalji Govanli v. State of Maharashtra, AIR 1968 SC 178 : "as the section stands there is no limitation on the power of thecourt arising from the stage to which the trial may have reached,provided the Court is bona fide of the opinion that for the justdecision of the case, the step must be taken. It. is clear that therequirement of just decision of the case does not limit the action tosomething in the interest of the accused only. The action mayequally benefit the prosecution. "so, all that has to be seen by the court while exercising the discretionarypower under this provision of law is whether the new matter is strictly necessaryfor a just decision and not intended to give an unfair advantage to one of therival sides. The action mayequally benefit the prosecution. "so, all that has to be seen by the court while exercising the discretionarypower under this provision of law is whether the new matter is strictly necessaryfor a just decision and not intended to give an unfair advantage to one of therival sides. In the instant case it can hardly be doubted that the entries fromthe municipal records were absolutely essential to clear any ambiguity whichpersisted regarding the age of prosecutrix because of divergence in oralevidence of Balkishan Gupta and the medical evidence which, as observedearlier, cannot be considered to be absolutely reliable for basing conviction ofthe accused. Hence, the exercise of the discretion by the trial Court in thiscase was perfectly sound and judicious. ( 14 ) THIS brings me to the circumstances attendant upon the kidnappingof the prosecutrix and her eventually being ravished by the appellant. It issignificant to note that the defence version is utterly preposterous and unworthy of credence. It does not stand to reason that the prosecutrix wouldhave gone to the house of the appellant of her own and implored him to keepher with him. It is rather astounding that the suggestion made to the prosecutrix, her father and the Investigating Officer was thatwhen the police arrivedshe was still unwilling to leave the house of the appellant and she even toldher father point blank that she whould not live with his parents because hewanted to sell her/marry her to someone whom she did not like. Indeed, thedefence evidence aims at showing that the prosecutrix was not sexuallyassauled. However, this stand is clearly belied by medical evidence on record. Dr. S. Chaudhary has stated in no uncertain terms that even though she wasexamined on 18/10/1981, the prosecutrix was complaining of pain inthe right side, tenderness was present and swelling too was present over theback right side. Further on vaginal examination of the prosecutrix she noticedthat hymen was ruptured due to sexual inter course and it was a fresh tear. Vagina was red congested. Vaginal orifice admitted one finger tight and itwas very painful on examination. On cross-examination while conceding thatrupture of the human may be possible as a result of fall on a hard surface shehastened to add that it must be in very rare cases. Vagina was red congested. Vaginal orifice admitted one finger tight and itwas very painful on examination. On cross-examination while conceding thatrupture of the human may be possible as a result of fall on a hard surface shehastened to add that it must be in very rare cases. In the fact of unequivocaltestimony of the petitioner that she was ravished by the appellant on the nightof 16/10/1981 at his house it would be highly speculative to evenimagine that she had fallen on a hard surface or that sue had otherwisecontrived to cause a rupture of her hymen. The mere fact that there was novisible injury on the private parts of the appellant would not detract from thefact of sexual assault by the appellant on her. It may at best be indicative ofpassive submission is not on the part of the prosecutrix but submission is notnecessarily consent. In the instant case the condition of the private part ofthe prosecutrix herself amply corroborate her version she was victim of sexualassault on the part of the appellant. At any rate, the question of consentbecomes wholly irrelevant when the age of the girl, who is victim of rape, isbelow 16 years. ( 15 ) THERE is now abundant authority for the proposition that corroboration is not a sine qua non for a conviction in a rape case. The followingobservations of their Lordships of the Supreme Court in Bharwada Bhoginbhaihirjibhai v. State of Gujarat, 1983 SCC (Cri.) 728, are pertinent to notice : "if the evidence of the victim does not suffer from any basic infirmity, and the probabilities factor does not render it unworthy ofcredence, as a general rule, corroboration cannot be insisted upon,except from the medical evidence, where, having regard to thecircumstances of the case medical evidence can be expected to beforthcoming. This rule is subject to the qualification that corroboration may be insisted upon when a woman having attainedmajority is found in a compromising position and there is a likelihood of her having levelled such an accusation on account of theinstinct of self-preservation ; or when the probabilities factor isfound to be out of true. "their Lordships further observed : "in the Indian setting, refusal to act on the testimony of a victim ofsexual assault in the absence of corroboration as a rule, is addinginsult to injury. "their Lordships further observed : "in the Indian setting, refusal to act on the testimony of a victim ofsexual assault in the absence of corroboration as a rule, is addinginsult to injury. Why should the evidence of the girl or the womanwho complains of rape or sexual molestation be viewed with the aidof spectacles fitted with lenses tinged with doubt, disbelief of suspicion ? To do so is to justify the charge of male chauvinism in a maledominated society. . . . . . rarely with a girl or a woman in India makefalse allegations of sexual assault due various psycho-social factors. And when in the face of those factors the crime is brought to lightthere is a built-in-assurance that the charge is genuine rather thanfabricated. "in the instant case nothing has come on the record to suggest that the prosecutrix was prone to invent a false story in order to wreak vengeance uponthe appellant who on his own showing had illicit connections with her eldersister Meena. Such a step is more harmful to her than anyone else. Indeed,having regard to her tender age it would be preposterous to suggest that shewent to the house of the appellant of her own accord just to wreak vengeanceupon him. In the FIR isself the appellant was named as having taken theprosecutrix at about 2 p. m. although her name was wrongly stated as Rekha. The circumstances under which she was rescued by the police are very tellingin this respect. ( 16 ) THE learned counsel for the appellant has also invited my attentionto certain discrepancies which have cropped up in the testimony of theprosecutrix vis-a-vis her statement to the police under section 161 Criminal Procedure Code andher statement to there Magistrate under section 164 of the Code. However,none of the discrepancies goes to the root of the matter and tend to shake thebasic version of the witnesses and, therefore, no undue importance can beattached to the same. Indeed, thelearned Additional Sessions Judge haselaborated dealt with the entire evidence touching on the subject and I see noreason to take a different view of the matter. ( 17 ) TO sum up, therefore, I hold that the conviction of the appellantfor the said offences is well founded. However, the sentence awarded to himis rather severe and harsh. Indeed, thelearned Additional Sessions Judge haselaborated dealt with the entire evidence touching on the subject and I see noreason to take a different view of the matter. ( 17 ) TO sum up, therefore, I hold that the conviction of the appellantfor the said offences is well founded. However, the sentence awarded to himis rather severe and harsh. I think that the ends of justice will be duly met ifit is reduced to rigorous imprisonment for six years and a fine of Rs. 7. 000. 00. Hence, I reduce the sentence of the appellant to rigorous imprisonment forsix years and a fine of Rs. 7,000. 00 (rupees seven thousand only) for offenceunder section 376 Indian Penal Code ; in default of payment of fine, he shall undergo furtherrigorous imprisonment for two years. In case the fine is recovered, the wholeof the amount be paid to the prosecutrix as compensation for the grave wrongdone to her and social ignominy which she has suffered and has yet torehabilitate herself in life. The sentence for the offence under section 366 IPC is also reduced to six years rigorous imprisonment, but both the sentencesshall run concurrently.