DALVEER BHANDARI ( 1 ) THIS appeal is directed against the judgment of the learned Additional Sessions Judge dated 13th December, 1990, whereby he had convicted the appellant under Section 376/366 and sentenced him to seven years rigorous imprisonment and directed him to pay a fine of Rs. 500/- and in default of payment of fine to undergo further imprisonment of two months under section 376 Indian Penal Code. The appellant was further convicted. and sentenced-under section 366 to. rigorous imprisonment of four years and a fine of Rs. 500/- or in default of payment of fine further rigorous imprisonment for two months. ( 2 ) BRIEF facts necessary to dispose of this appeal are recapitulated as under: ( 3 ) MUFRAJA Public Witness 2, the mother of the prosecutrix lodged a First Information Report in which it is stated that on 22nd July, 1989 when she returned home after cleaning utensiles in nearby bungalows, her daughter Prosecutrix told her that some neighbours have brought VCR and TV on rent and she would also like to see a picture on VCR. First the mother declined the request of her daughter thereafter, the appellant who was staying in a nearby jhuggi came to the jhuggi of the prosecutrix around 9:30 p. m. and asked prosecutrix to accompany him to see a movie on the VCR, thereafter prosecutrix had gone to watch a movie on the VCR alongwith the appellant. ( 4 ) THE appellant was a rickshaw puller and prosecutrix s two brothers are also rickshaw pullers. It is mentioned in the F. I. R. that around 1 1:00 p. m. when her son Abdul Salam Public Witness 5 came and enquired about the prosecutrix, then Public Witness 2 Mufraja informed that she had gone to see a movie on VCR in the neighbours jhuggi. Public Witness 5 Abdul Salam told her that he has seen the prosecutrix with the appellant and they were going in a three wheeler scooter. At that time Mufraja got an apprehension that the appellant had not taken away. Thereafter, a search was made but the prosecutrix could not be traced and Public Witness 2 lodged the report to the police. ( 5 ) MUFRAJA, Public Witness 2 had gone to Banaras in search of her daughter with the police but the accused/appellant could not be traced so they returned to Delhi. Thereafter, a search was made but the prosecutrix could not be traced and Public Witness 2 lodged the report to the police. ( 5 ) MUFRAJA, Public Witness 2 had gone to Banaras in search of her daughter with the police but the accused/appellant could not be traced so they returned to Delhi. In her statement Public Witness 2 had further stated that on 31st July, 1989, they had gone to Mugal Sarai and there they learnt that the prosecutrix was living with the appellant as husband and wife and only yesterday they had gone to Delhi. Thereafter they returned to Delhi and at New Delhi Railway Station they saw the prosecutrix with the appellant in the waiting room. ( 6 ) THE police recovered the prosecutrix The clothes of the prosecutrix, i. e. , one petticoat was taken into possession vide memo exhibit Public Witnessa 2/ D. The same was sealed in a packet. Underwear of the accused/ appellant was seized alongwith a Baniyan and Lungi vide exhibit Public Witness. 2/e. ( 7 ) THE age of prosecutrix was about 12 years which she stated in her - statement recorded on 21st February, 1990. In the First Information Report she had mentioned that her age was 14 years. ( 8 ) ON 9th March, 1990 statement of Ruqsana Public Witness 4 was recorded. Some questions were asked to ascertain the ability of the witness, the learned Judge observed that from the answers given to some of the questions he was satisfied that the witness was giving rational answers. ( 9 ) THE prosecutrix, Public Witness 4 in her statement had stated that she lives with her mother and two brothers. The Father lives separately. She mentioned that her brothers are rickshaw pullers and her mother is a maid servant. She had mentioned that she knows the accused/ appellant present in Court. He was living in a jhuggi nearby. She stated that 6 or 7 months back she was watching a movie on the VCR in ajhuggi nearby. She watched the VCR until 1:00 a. m. , thereafter accused/ appellant look her to Mugal Sarai forcibly in a three wheeler scooter up to the Railway Station and then by train. He was living in a jhuggi nearby. She stated that 6 or 7 months back she was watching a movie on the VCR in ajhuggi nearby. She watched the VCR until 1:00 a. m. , thereafter accused/ appellant look her to Mugal Sarai forcibly in a three wheeler scooter up to the Railway Station and then by train. There the accused took one house on rent and she remained there with the appellant for about one month and a week at Mugal Sarai the appellant lived as a husband with her and had sexual inter-course with her. She mentioned that the appellant had sexual inter-course with her daily against her wishes. Since the prosecutrix was keen to meet her parents, the appellant brought her to Delhi. While they were silling in the wailing hall of the New Delhi Railway Station, the police arrested them. ( 10 ) IN the cross examination she had stated that she had known the accused/appellant for a few days earlier and he visited her in absence of her mother and brothers. She had further stated that though the accused had not married her but she was having a relation as a wife with him. ( 11 ) DR. N. Acharya, Public Witness 1 examined the accused/appellant on 2nd September, 1989 and found that the accused/appellant was capable of having inter-course. ( 12 ) DR. C. P. Sharma, Public Witness 7, Radiologist on examining the Skia-grams exhibit P 2 to P 6, opined the age of Ruqsana to be between 12 to 14 years. She had completed 12 years but was less than 14 years of age and briefed his report exhibit Public Witness 7/a. D. K. Sharma Public Witness 8 recorded the M. L. C. of Ruqsana as exhibit Public Witness8/ato be in the hand writing of Dr. Y. C. Gautam and also the report Public Witness8/c to be in the main hand writing of Y. C, Gautam and the medical examination of Musama Ruqsana convicted by Dr. Poonam Sadana exhibit Public Witness8/c. ( 13 ) DR. Poonam Sadana Public Witness 10 on the basis other report exhibit Public Witness8/b stated that the hymen of the prosecutrix was old-torn and there was no fresh injury. Vagina admitted two fingers easily and there was no mark of external injury on the genitals. Poonam Sadana exhibit Public Witness8/c. ( 13 ) DR. Poonam Sadana Public Witness 10 on the basis other report exhibit Public Witness8/b stated that the hymen of the prosecutrix was old-torn and there was no fresh injury. Vagina admitted two fingers easily and there was no mark of external injury on the genitals. ( 14 ) BALWAN Singh, A. S. I. Public Witness 11 is the investigating officer in this case. He has stated that on 23rd July, 1989, the F. I. R. exhibit Public Witness 2/ A was given to him for investigation. He searched for the prosecutrix and went to Banaras also in search of the appellant Manan Sheikh but could not find him there. On 31st July, 1. 989, he went to Mugal Sarai and didnot find the accused/appellant there also. On pointing out of the complainant, he arrested the appellant on 2nd August, 1989 at the New Delhi Railway Station and recovered the prosecutrix and took personal search of the accused and seized clothes of the prosecutrix and the accused/appellant. ( 15 ) THE statement of the prosecutrix is clear and categoric that the accused/appellant forcibly took her in a three wheeler scooter to the Railway Station and then by train he took her to Mugal Sarai and the appellant used to have sexual inter-course with her almost daily against her wishes. This statement of the prosecutrix suffers from no infirmity, ( 16 ) THE trial court has taken note of this fact that there was no injury on her person but since the prosecutrix is minor,. therefore, her consent is meaningless. The trial court held that act of kidnapping Ruqsana from the lawful custody of her mother Mufraja Public Witness 2 and taking her to Mugal Sarai in order to commit rape on her establishes offence under Section 36b as well as 3761. P. C. The accused/appellant was held guilty of the offence and was convicted for the aforesaid offence. The appellant filed this appeal through jail. The appeal was admitted and the Court appointed Ms Meena Chaudhary Sharma as amicus curiae in this case. ( 17 ) I have carefully perused the record and heard the learned counsel for the parties. The Learned counsel for the appellant submitted that the incident had taken place at 9:30 p. m. on. The appellant filed this appeal through jail. The appeal was admitted and the Court appointed Ms Meena Chaudhary Sharma as amicus curiae in this case. ( 17 ) I have carefully perused the record and heard the learned counsel for the parties. The Learned counsel for the appellant submitted that the incident had taken place at 9:30 p. m. on. 22nd July, 1989 but the F. I. R. was lodged at 10:45 p. m. on 23rd July, 1989. There is unexplained delay of about 1 day in filing the F. I. R. The prosecutrix had known the appellant for quite some time. He even used to visit her in the absence of the prosecutrix s mother and brothers and she had gone to Mugal Sarai and stayed there for 37 days. The entire theory of kidnapping and forcibly taking the prosecutrix is not made out from the facts and circumstances of this case. She further submitted that there are material contradiction in the testimony of the prosecution evidence regarding the timing of the incident and the time when she returned after watching the VCR. ( 18 ) LEARNED counsel for the petitioner also submitted that the prosecutrix was used to having sexual inter-course, therefore, no injury was found. ( 19 ) LEARNED counsel for the petitioner also submitted that the circumstance that the prosecutrix did not make hue and cry in 37 days at Mugal Sarai, suggests that she was a consenting party and no offence has been committed against her wishes. ( 20 ) MR. Bahri, learned counsel appearing for the respondent submitted that delay of some time in a case of this nature is not unusual. The incident had taken place in the night of 22th July, 1989 and the First Information Report was lodged on 23rd July, 1989 at 10:45 p. m. In a case of this nature, one takes some time in deciding whether to take the matter to the Court or not. It is indeed a very difficult for the family to take any decision in the matter. On the one hand there is a sense of revenge and a strong feeling that the accused of such a serious crime must be punished and on the other hand honour of the family is at stake in aconversative society like ours. Mr. It is indeed a very difficult for the family to take any decision in the matter. On the one hand there is a sense of revenge and a strong feeling that the accused of such a serious crime must be punished and on the other hand honour of the family is at stake in aconversative society like ours. Mr. Bahri strengthened his submission by placing reliance on AIR 1981 SUPREME COURT 361 Harpal Singh and another Vs State of Himachal Pradesh. Their Lordships of the Supreme Court observed as under : "the complainant had given reasonable explanation for lodging it after ten days of the occurrence. She stated that as honour of the family was involved, its members had to decide whether to take the matter to the court or not. It is not uncommon that such considerations delay action on the part of the near relations of a young girl who is raped. The prosecutrix has narrated her story before the committing Magistrate as well as Sessions Judge. Leaving aside minor contradictions here and there her testimony is consistent. Both the High Court and the Sessions Judge have believed it and it is corroborated by the evidence of her own brother and father to whom she had related the details of the occurance without delay after she was rescued. " ( 21 ) MR. Bahri, learned counsel appearing for the State submitted that no injury was found on the private parts of the girl and she was found to have had sexual intercourse is not of much avail to the appellant because once it is proved that the girl was below 1. 6 years of age, the question of consent becomes wholly irrelevant. In the instant case, the statement of the prosecution is unquestionable. The Trial Court was fully justified in placing reliance on her testimony while convicting the appellant. ( 22 ) LEARNED counsel appearing for the State also placed reliance on AIR 1990 SUPREME COURT 658 State of Maharashtra Vs Chandraprakash Kewalchand Jain. The Court observed as under : To insist on corroboration except in the rarest of rare cases is to equate a woman who is a victim of the lust of another with an accomplice to a crime and thereby insult womanhood. The Court observed as under : To insist on corroboration except in the rarest of rare cases is to equate a woman who is a victim of the lust of another with an accomplice to a crime and thereby insult womanhood. It would be adding insult to injury to tell a woman that her story of woe will not be believed unless it is corroborated in material particulars as in the case of an society where it concerns sexual behavior. Ours is not a permissive society as in some of the Western and European countries. Our standard of decency and morality in public life is not the same asin those countries. It is, however, unfortunate that respect for woman hood in our country is on the decline and cases of molestation and rape are steadily growing. An Indian woman, is now required to suffer indignities in different forms, from lewd remarks to eveteasing, from molestation to rape. Decency and morality in public life can be promoted and protected only if the Courts deal strictly with those who violate the societal norms. The standard of proof to be expected by the Court in such cases must take into account the fact that such crimes are generally committed on the sly and very rarely direct evidence of a person other than the prosecutrix is available. Courts must also realise that ordinarily a woman, more so a young girl, will not stake her reputation by levelling a false charge concerning her chastity. " ( 23 ) MR. Bahri also submitted that arrest memo was prepared on 23rd July, 1989 itself. The prosecution has been able to establish the offence against the appellant and the trial court was justified in convicting the appellant. ( 24 ) THE learned counsel for the appellant submitted that looking to the very special features and extra-ordinary circumstances of this case, a sympathetic view be taken and accused be released on the sentence already undergone. ( 25 ) IT has been submitted by the learned counsel for the accused that the accused/appellant was arrested on 2nd September, 1989 and for about 4-5 years he has been in custody. The accused/appellant was 19 years of age at the time when the statement was recorded under Section 313. He was admittedly living in a jhuggi nearby the the prosecutrix s jhuggi. The accused/appellant was 19 years of age at the time when the statement was recorded under Section 313. He was admittedly living in a jhuggi nearby the the prosecutrix s jhuggi. The appellant had visited the prosecutrix in absence other-mother and brothers on several occasions. ( 26 ) IT was also submitted that the prosecutrix had known that the appellant was a married man and even then she used to permit him to come to her jhuggi clearly demonstrate that she was a consenting party. ( 27 ) IT was also argued that after watching the movie on the VCR the prosecutrix had gone to Railway Station with the accused/appellant. Thereafter, they purchased tickets and had gone to Mugal Sarai and stayed there for 37 days . During that period she did not make any hue and cry and did not make any effort to return to Delhi also, clearly shows that she had voluntarily gone with the appellant. ( 28 ) THE learned counsel for the petitioner also submitted that the doctor on examination found that her hymen was old torn and she was accustomed to sexual inter-course. These are some of the mitigating circumstances. The ends of justice would be met If the sentence awarded to the accused/appellant is reduced from 7 years rigorous imprisonment to 5 years rigorous imprisonment. ( 29 ) LEARNED counsel had placed reliance on the judgment of the Supreme Court in the matter of Prem Chand and another Vs. State of Haryana AIR 1989 SUPREME COURT 937 to submit that sympathetic view be taken looking to the peculiar facts and circumstances of this case. In this case both the Courts below imposed the sentence of 10 years. In appeal the Supreme Court observed as under: "no doubt an offence of this nature has to be viewed very seriously and has to be dealt with condign punishment. But the peculiar facts and circumstances of this coupled with the conduct of the victim girl, in our view, do not call for the minimum sentence as prescribed under Section 376 Sub Section (2 ). On the other hand we hold that the proviso case and a subminimum sentence will meet the ends of justice. But the peculiar facts and circumstances of this coupled with the conduct of the victim girl, in our view, do not call for the minimum sentence as prescribed under Section 376 Sub Section (2 ). On the other hand we hold that the proviso case and a subminimum sentence will meet the ends of justice. Accordingly, while affirming the conviction of both these appellants as confirmed by the High Court, we reduce the sentence of imprisonment in respect of each of the appellants from 10 years to 5 years. " ( 30 ) IN the instant case, the accused/appellant was given seven years rigorous imprisonment under Section 366 and 376 I. P. C. ( 31 ) I have carefully considered the totality of the facts and circumstances of this case and submissions made by the learned amicus curiae and the counsel appearing for the State. I have also examined the leading Judgments of the Supreme Court cited at the bar. In my considered opinion in a case of this nature delay of one day in lodging the F. I. R. is not fatal. On the one hand there is a strong sense of anguish and revenge among the family members of the victim and they are anxious to punish the accused of such a serious crime. On the other hand the honour of the family is at stake. It is not unusual the such considerations delay action on the part of the near relations of the girl consequently leading to some delay in lodging the F. I. R. This fact cannot be denied that whatever may be the ultimate result of the litigation, the prosecutrix and her family have to face great agnominy and humilation in our society. While deciding these cases, the normal human conduct and behaviour have to be taken in to consideration. Therefore, the prosecution version cannot be discarded only on the ground of one day s delay in filing the F. LR ( 32 ) CONSIDERABLE emphasis was laid by the learned amicus curiae and she submitted that the appellant cannot be convicted in this case because the facts and circumstances reveal that the prosecutrix was a consenting party. The law on this point is clear and categoric that the consent of a minor girl is meaningless. The law on this point is clear and categoric that the consent of a minor girl is meaningless. I do not think it necessary to give any finding whether the prosecutrix was a consenting party or not because the conclusion would be of a no consequence because admittedly the prosecutrix was a minor and her consent is totally immaterial. ( 33 ) OFFENCES of this nature have to be viewed seriously but looking to the totality of the facts and circumstances particularly the conduct of the prosecutrix while relying on the judgment of the Supreme Court Prem Chand (supra ). In my opinion the ends of justice would be met if. the conviction of the accused is confirmed and the sentence of Imprisonment is reduced from seven years R. I. to five years R. I. and he is further directed to pay the fine as directed by the trial court. ( 34 ) THE appeal is partly allowed and is disposed of accordingly.