JUDGMENT 1. The appellant, who stands convicted for having committed an offence under section 376 of Indian Penal Code and sentenced to seven years' rigorous imprisonment and imposition of line of an amount of Rs. 2,000/- providing that in the default in payment thereof, he will have to undergo three months' rigorous imprisonment vide the judgment and order dated 19.10.1995 passed by the learned VIth Additional Sessions Judge, Gwalior, Camp Court, Dabra, has come up in appeal seeking reversal of the impugned judgment and order. 2. Heard the learned counsel for the appellant as well as the learned Govt. Advocate representing the State-respondent. 3. Perused the record. 4. The prosecution case emerging from the evidence and the materials on record is to the effect that the appellant at about 4.30 p.m. on 4.12.1988 had seduced the prosecutrix aged about 11 years and had raped her in the sugarcane field. The incident had occurred in village Simariya Tal, which was at a distance of 7 km. from the Police Station Dabra. The first information report was lodged by the prosecutrix Sunita herself, which bears her signature, who had gone to the police station alongwith her father to lodge the report. On the requisition of the police dated 5.12.1988, she was medically examined on the same date at 1.45 p.m. at Primary Health Centre, Dabra. Apart from three simple injuries (abrasions) on her hack, the medical examination showed the hymen having a lacerated injury at the level of 5 O'clock position with a size of about 1 cm. with red margins, swelling and inflamed with bleeding present. The duration of the injury to the hymen was reported to be within 24 hours. The doctor opined that the injury caused on the hymen and the other injury showed that an intercourse had been attempted. 5. It may be noticed that the first Information Report gives a vivid description of the whole incident and the report of the doctor corroborated the same. 6. The order-sheet maintained by the trial Court shows that the case had been fixed for hearing on the framing of charges on 19.12.1989. The accused took several adjournments and delayed the hearing of the mailer relating to the framing of charges which could be framed on 19.2.1990. On that date, 1.3.1990 was fixed for the evidence. 6. The order-sheet maintained by the trial Court shows that the case had been fixed for hearing on the framing of charges on 19.12.1989. The accused took several adjournments and delayed the hearing of the mailer relating to the framing of charges which could be framed on 19.2.1990. On that date, 1.3.1990 was fixed for the evidence. The accused again attempted to delay the hearing and the case was taken up on 16.4.1990. Neither the accused nor his counsel were present on 16.4.1990. The trial Court came to the conclusion that the accused was making mala fide attempts to get the hearing of the case delayed and the case was fixed for evidence on 17.4.1990. On 17.4.1990, the case was adjourned. On 11.5.1990, an adjournment was sought by the accused again. On the next date also, the accused got the hearing adjourned. Ultimately, the trial Court could start the recording of the evidence on 24.3.1994. On that date, Sunita, the prosecutrix, who by then had become about 15 years of age, was examined. Her examination-in-chief was completed hut her cross-examination was sought to be deferred at the instance of the accused. An application was tiled by the counsel representing the accused praying for an adjournment on the ground that the wife of the accused was ill. The age of the accused, as noted in his examination by the Court recorded on 13.10.1995, was disclosed to be 28 years. While granting the request for adjournment on 24.3.1994, the trial Court had fixed 19.5.1994 for recording of the evidence noticing in the order-sheet that the prosecutrix had brought to his notice that the accused had been threatening her and she was feeling difficulty in coming to give evidence. The counsel for the accused had raised an objection. However, the trial Court directed that in case it was found necessary, the prosecutrix could get a letter issued in this connection from the Court addressed to the Additional Public Prosecutor, P.S. Dabra for providing police protection to the prosecutrix while coming to the Court to give evidence. The fact, however, remains that the prosecutrix had dearly brought to the notice or the trial Court the behaviour or the accused, who was on bail, intimating that she was being coerced and threatened by him. 7. The fact, however, remains that the prosecutrix had dearly brought to the notice or the trial Court the behaviour or the accused, who was on bail, intimating that she was being coerced and threatened by him. 7. In her examination-in-chief, the prosecutrix had clearly reiterated her version or the incident as reported by her and recorded in the First Information Report. She had also stated that she recognised the accused. She admitted her signatures on the aforesaid First Information Report and proved the First Information Report. 8. As has already been indicated hereinabove, various attempts had been made at the instance of the accused to get the hearing of the case postponed. The cross-examination of the prosecutrix, which had been deferred on 24.3.1994, could be started only after about a year on 14.3.1995. In her cross-examination, the prosecutrix totally denied the happening of the incident reported by her. She also stated that she had never seen the accused. She had further stated that the accused had not done anything as reported in the First Information Report. At that stage, the Additional Government Pleader for the prosecution, pointing out that there was ambiguity in her statement, prayed for her re-examination which request was accepted. 9. In her re-examination, she admitted that she had admitted in her examination-in-chief that she recognised Raju. She, however, further staled that the fact that she did not recognise Raju was correct. Thereupon, she was declared hostile and AGP sought permission to ask the leading questions, which was granted. In her statement recorded thereafter, Sunita admitted that she knew Pandit Hiralal of her village and that Raju was the son of Hiralal. She further stated that it was true that in the sugarcane field, she had been raped by Raju but the accused Raju who was present in the Court was not the same person. She also stated that in her village, there is no person other than the accused who was known as Raju. She further stated that the person who had raped her did not reside in her village. A suggestion was made to her that the accused had got a Rajinama done with her and that is why she is giving a false statement, which suggestion was denied. She further stated that the person who had raped her did not reside in her village. A suggestion was made to her that the accused had got a Rajinama done with her and that is why she is giving a false statement, which suggestion was denied. She however admitted that in her report she had named Raju as the accused but the suggestion that she was making a false statement being under a fear of the accused was not correct. She further admitted that she had been medically examined and she had disclosed the name of Raju in her first information report. She was also cross-examined by a counsel for the accused and she had stated in paragraph 7 of her statement that it was true that she had not been raped by the accused person in the Court. 10. The prosecution in support of its case had examined Dr. Urmila Mathur on 14.3.1995 as PW 2. She had proved her report, to which a reference has already been made, hereinabove. 11. Lata, whose name occurs in the First Information Report, was also examined as PW 3. By that date, she had also reached the age of about 15 years. She had stated that she did not know Sunita nor had accompanied her. She did not know Maharaj Singh, the father of Sunita. She had not accompanied her as stated in the First Information Report and had not gone to the sugarcane field. She could not recognise Raju, the accused, who had not done anything to Sunita in her presence. She was declared hostile. She even denied her having given the statement before the police. She was confronted with her statement made before the police, but she denied having given such a statement. A suggestion was made that she was making a false statement to save Raju, the accused, and that she was making this statement under his fear but that suggestion was denied. 12. The trial Judge came to the conclusion that on the relevant date, Sunita was a minor, below 16 years of age and the question in regard to her consent had no relevance. Even otherwise, it was observed that from the sequence of events and the actions, as disclosed in the First Information Report and in the examination-in-chief of Sunita as well as the medical report, it was apparent that she had not given any consent. Even otherwise, it was observed that from the sequence of events and the actions, as disclosed in the First Information Report and in the examination-in-chief of Sunita as well as the medical report, it was apparent that she had not given any consent. Taking notice of the injuries, the trial Judge had come to a definite conclusion that an offence of rape had in fact been committed. 13. The trial Judge further was of the opinion that the statement of the prosecutrix in her examination-in-chief was truthful and worth relying upon and believable. It was also indicated that her version as disclosed in the examination-in-chief was amply supported by the medical evidence. On the question relating to the identity of the accused, the trial Judge noticed that the prosecutrix had been produced as PW 1 on 24.3.1994 and on that date had, brought to the notice of the Court that the accused Raju had been threatening her. Her cross-examination was done after a long lapse of about one year. The somersault taken by the prosecutrix in her cross-examination, taking into consideration her age and the conduct of the accused, was found by the trial Judge to he most untrust worthy and liable to be discarded in the peculiar facts and circumstances of the present case. The trial Judge had found that the prosecutrix had stuck to her version of the incident as recorded in the First Information Report and even in her examination-in-chief and had reiterated that a person by the name of Raju had raped her. 14. The trial Judge further came to the conclusion that while giving the statement in the cross-examination, the prosecutrix was under pressure and it was a forced statement. The theory of her being told the name of Raju by other person had been brought in as an afterthought. It was found that in fact, the prosecutrix, Sunita and the accused, Raju were the residents of the same village Simariya. The father's name of Raju was Hiralal. This fact was admitted by Sunita. Prom the evidence on record, the trial Judge observed it was unmistakably established that Sunita was fully acquainted with accused Raju and her version as appearing in the First Information Report and the examination-in-chief was the correct and true version of the incident. 15. The father's name of Raju was Hiralal. This fact was admitted by Sunita. Prom the evidence on record, the trial Judge observed it was unmistakably established that Sunita was fully acquainted with accused Raju and her version as appearing in the First Information Report and the examination-in-chief was the correct and true version of the incident. 15. The trial Judge has further come to the conclusion that the accused had succeeded by his threats and coercion to impel an innocent girl to suppress the truth. The trial Judge has also come to the conclusion that the conduct of the accused committing rape on an innocent girl aged about 10 years and in subsequently forcing her under coercion and threat to obtain the statement suppressing the truth, deserved the awarding of a deterrent punishment. 15-A. Taking into consideration the increase in the incidents where innocent girls became victims of rape, the trial Court proposed to award a deterrent punishment recording a finding to the effect that it was the accused Raju who had committed the rape on Sunita. The trial Judge, convicting him of having committed an offence under section 376 IPC, sentenced him to seven years' rigorous imprisonment, in addition whereto a fine of Rs. 2,000/- was imposed providing that in default in payment whereof he was to undergo three months' further rigorous imprisonment. 16. The learned counsel for the appellant has strenuously urged that the conviction based on the solitary evidence of the prosecutrix, taking into account her admissions occurring in her cross-examination was not liable to be sustained. It has further been urged that there was no corroborative evidence on the record which could be utilised for coming to the conclusion that the prosecution story was truthful and in any case the prosecutrix being a minor, her statement in face of the contradictions was liable to be discarded altogether. It has been urged that the trial Judge had erred in discarding the admissions of the prosecutrix, Sunita on flimsy and untenable grounds. 17. The learned Government Advocate representing the State-respondent has tried to support the impugned judgment on the reasonings contained therein. 18. It cannot be lost sight of that an admission is the hest evidence that an opposite party could rely upon and though not conclusive it is decisive of the matter unless it is successfully withdrawn or proved erroneous. 17. The learned Government Advocate representing the State-respondent has tried to support the impugned judgment on the reasonings contained therein. 18. It cannot be lost sight of that an admission is the hest evidence that an opposite party could rely upon and though not conclusive it is decisive of the matter unless it is successfully withdrawn or proved erroneous. However, admissions contradicting each other do not cancel each other. The Court has to assess the evidentiary value of the admissions and accept one in preference to the other. Further, as a matter of abstract law, the state of a man's mind can be proved by evidence other than that of the man himself and an admission extracted by threat and fear is no admission at all. 19. In the present case, what I find is that the First Information Report had been signed by Sunita. Her statement in the cross-examination could not be taken to be voluntary and free. At this stage, it may he noticed that Sunita herself at the close of her examination-in-chief had brought to the notice of the trial Judge that the accused had been threatening her had and sought for protection. Further the proper time for cross-examination is immediately after the examination-in-chief. The procedure according to law does not warrant reservation of cross-examination. The witness must be cross-examined as soon as the examination-in-chief is over. 20. In the case in hand, the examination-in-chief of Sunita was over on 24.3.1994. On one pretext or the other, the accused got her cross-examination adjourned and she could be cross-examined only on 14.3.1995. In such a situation, the entire testimony of Sunita was not liable to be discarded as wholly discredited and the earlier statement supporting the prosecution was rightly treated to be true and believable. 21. The Apex Court in its decision in the case of Syad Akbar v. State of Karnataka, reported in AIR 1979 SC 1848 at page 1851 had indicated that it would be quite wrong to hold that a Court is entirely debarred from bringing its judicial discretion to bear on materials which cross-examination elicits and of deciding whether the truth lies there. 22. It may further be noticed that an adverse witness is one who does not give the evidence which the party calling him wished to give. In the present case, Sunita was not an adverse witness. 22. It may further be noticed that an adverse witness is one who does not give the evidence which the party calling him wished to give. In the present case, Sunita was not an adverse witness. A hostile witness is one who, from the manner in which he gives his evidence, shows that he is not desirous of telling the truth to the Court. Sunita had been declared hostile. 23. Normally, a witness's primary allegiance is to the truth and not to the party calling him as a witness. Even in a case where a damaging admission is extracted in cross-examination, it is primarily for the Court not to discard the deposition in toto but so much of the evidence which is corroborated by other evidence could be accepted. 24. Taking into consideration the peculiar facts and circumstances of the present case, the behaviour and conduct of the accused, the fear and threat under which the witness claimed to have been placed, the inordinate delay in the cross-examination and the age factor of the victim, the manner in which the prosecutrix had taken a somersault in her cross-examination and the social circumstances of the village folk. I am clearly of the opinion that no exception can be taken to the findings returned against the accused by the learned trial Judge. 25. I am further of the opinion that the so called admission of Sunita occurring in her cross-examination raising a doubt about the identity of the accused and her admission heavily relied upon by the accused/appellant was liable to be discarded. 26. The trial Judge has rightly accepted as worthy of credit the testimony of Sunita in regard to the facts mentioned in her examination-in-chief which fact find ample corroboration from the other evidence and the materials brought on record which have already been noticed hereinabove. 27. The learned counsel for the appellant has also urged that the present was not a case where a deterrent punishment was warranted. In this connection, suffice it to say that the measure of punishment in a given case must depend upon the atrocity of the crime, the conduct of the criminal, and the defenceless and unprotected state of the victim. The imposition of the appropriate punishment is the manner in which the Courts respond to the society's cry for justice against the criminals. The imposition of the appropriate punishment is the manner in which the Courts respond to the society's cry for justice against the criminals. Justice demands that the Courts should impose punishment fitting to the crime so that the Courts reflect public abhorrence of the crime. The Courts must not only keep in view the rights of the criminals but also the rights of the victim of the crime and the society at large while considering the imposition of proper punishment. Having regard to the sentencing policy that the punishment should be commensurate with the gravity of the offence. I am clearly of the opinion that the appellant has failed to point out any such extenuating or mitigating circumstance whatsoever in this case which may call for a lesser punishment. The discretion exercised by the trial Judge does not warrant any interference. 28. In the result, this appeal, fails and is dismissed. 29. At present, the accused-appellant is on bail. His bail bonds are cancelled. He shall surrender before the trial Court within a period of one month from today to serve out the remaining part of the sentence, otherwise the trial Court shall issue a warrant of arrest, and on his arrest the trial Court shall send him to the jail custody to serve out the remaining part of the sentence.