GITESH RANJAN BHATTACHARJEE, J. ( 1 ) THIS criminal appeal is directed against the judgment and order of conviction and sentence under Section 376, I. P. C. passed by the Additional District and Sessions Judge, Hooghly in Sessions Trial No. 144 of 1994. The learned Judge convicted the appellant under Section 376, I. P. C. and sentenced him to imprisonment for life and to a fine of Rs. 1,00,000, in default to R. I. for five years. The appellant/accused Gopal Tamang alias China was charged under section 366 and Section 376, I. P. C. for kidnapping and committing rape on a minor girl Tanuja Mallick on 15th February, 1993. The learned trial Judge however after trial convicted the accused u/s. 376, I. P. C. but acquitted him of the charge under Section 366, I. P. C. ( 2 ) THE prosecution case in short is that on 15-2-1993 while the victim girl Tanuja aged about 9 years was playing near her house she was taken away by the accused on a cycle on the pretext of taking her for a ride and then committed rape on her in a bamboo grove. Exb. 1/1 is the FIR lodged by Smt. Kanan Mallick, the mother of the victim girl Tanuja at Chandannagar P. S. at 7. 35 p. m. on 15-2-1993. In short, it is stated in the FIR that at about 5 p. m. on 15-2-1993 the accused took the victim girl Tanuja on her cycle for a ride and then at about 6. 45 p. m. Sk. Mossair of Sukhnagar Para, village Bilkuli, P. S. Bhadreswar, Sk. Kowsher and others brought the accused China with her daughter and reported that the accused committed rape on Tanuja. Bleeding was seen from the private part of the girl and the girl reported weeping that the accused (China) took her on the pretext of taking on a ride on cycle and committed rape on her in a bamboo grove. It is also stated in the FIR that on seeing that the girl was weeping the boys of that place came and she reported to them that the accused China committed rape on her. It is further stated in the FIR that China confessed her guilt to them there and again he confessed his guilt when he was brought to the mother of the victim girl. It is further stated in the FIR that China confessed her guilt to them there and again he confessed his guilt when he was brought to the mother of the victim girl. Then the mother of the girl and the accused China came to the P. S. and lodged FIR. The victim girl was sent to the hospital from the police station. PW-1 Smt. Kanan Mallick is the mother of the victim girl. From her we get that she has twin daughters Tanuja and Anuja. She says that after finishing her work when she returned home she found her elder daughter Anuja Mallick in the house but Tanuja was absent and Anuja reported to her that Tanuja had gone with the accused China on his bicycle. When Tanuja did not return home at about 7 p. m. she says, she went to the stationary shop of Swapan Biswas and informed him about the matter and sometime thereafter several para people brought Tanuja and the accused China in her house along with the cycle of China. She also found blood stained mark on the pant of Tanuja and Tanuja informed that she was taken to village Bilkuli by the accused and there the accused forcibly committed sexual intercourse with her and for that reason blood was coming out from her private part. Then they went to the police station and there PW-1, lodged complaint. She says that the accused was known to them by face as he used to visit their area and also used to work as mason. In their cross-examination she says that she cannot tell the exact date of birth of her daughter. But she says that the victim girl was born in the nursing home of Dr. Sudarkar Sett of Chandannagar. She also says in her cross-examination that the accused China used to work as paint mistri and as helper of mason and he also worked as painter in her house. She denies the defence suggestion that she did not pay the wage of the accused and when the accused demanded his wage she falsely implicated the accused in this case with the help of villagers. She denies the defence suggestion that she did not pay the wage of the accused and when the accused demanded his wage she falsely implicated the accused in this case with the help of villagers. In her cross-examination she says that she cannot state the names of the local boys who had accompanied her on that date to the P. S. and she also cannot say the names of the persons who brought Tanuja and the accused to their house onthat date. There is nothing improbable in it, because she was deposing in December, 1996 while the incident took place in February, 1993. It may not be possible to remember the names of the persons who brought the accused and the girl to her house about four years back, particularly when such persons belong to a different locality. PW-2, Tanuja is the victim girl. She says that on the date of incident at about 2 p. m. when her mother went away to attend to her job as maid servant, she and her sister Anuja were playing infront of their house along with other children and at about 4 p. m. when they were returning to her house the accused China came to them and played with them for sometime and then he asked her to visit his house. She says that she then informed her mother's mother Bechu Bibi that she was going with China and then the accused China took her to a distant place by the side of railway track and when it was dark he took her to a bamboo grove and forcibly removed her pant and committed rape on her. She says that she began to cry but the accused asked him (her) not to disclose the fact to others and the accused then took her on his bi-cycle when she was weeping and at that time some persons were passing by the side of that place with torch and they asked her as to why she was crying and she disclosed the entire fact to them and then those persons began to assault the accused and they took the accused and the cycle along with her to her house. She further says that at that time blood was coming out from her private part and after returning home she narrated the entire incident to her mother and at that time her Mesho was also present. She says that thereafter para people and her Mesho and her mother took her to the police station and at the police station the police officer had interrogated her and she was offered a glass of milk and thereafter she was taken to the hospital. She says that she was in the hospital for five days and was attended by medical officer there. She also says that her mother had taken out her wearing apparel in her house and at that place she changed her garments. She however failed to identify the Jangia as her Jangia which was shown to her at the time of her examination in Court. This, in our opinion, of no consequence. It is quite possible that after about 4 years a minor girl may fail to identify her Jangia because the Jangia itself might have undergone some change in look by reason of passage of time, having been kept as a seized article obviously not under so much of care as it would have been had it been kept under good care in the house. In her cross-examination PW-2 Tanuja says that the accused China has worked as painter and as day labourer in their house. She denies the defence suggestion in her cross-examination that the accused has been falsely implicated in the case because of any quarrel between him and her mother over any non-payment of wages. She says that her mother, her Mesho, Swapan and the persons who took her to her house from the place of occurrence went to the P. S. while recording her deposition the trial Judge also recorded an observation that the witness was of very tender age and she appeared to be aged about 11 years to the learned Judge having regard to the physical features noted by him. ( 3 ) PW-3, Swapan Biswas says that PW-1, Kanan Mallick is his wife's eldest sister. He is Mesho of the victim girl Tanuja. At the relevant time he was running a betel shop by the side of Chhabighar Cinema. His evidence is that on the date of the occurrence at about 5. ( 3 ) PW-3, Swapan Biswas says that PW-1, Kanan Mallick is his wife's eldest sister. He is Mesho of the victim girl Tanuja. At the relevant time he was running a betel shop by the side of Chhabighar Cinema. His evidence is that on the date of the occurrence at about 5. 30/6 p. m. PW-1, Kanan came to him to ask about the whereabout of her daughter Tanuja and he informed her that Tanuja was playing infront of his shop in a field and the accused China was also searching for her. He further says that subsequently at about 7. 30 p. m. some persons of the village Bilkuli appeared along with the victim girl Tanuja and the accused China and they informed that the accused committed rape on Tanuja and Tanuja has also narrated the incident to him as to how the rape was committed on her. He further says that the accused prayed for mercy. He also says that blood was coming out over the legs of Tanuja and thereafter they called Kanan Mallick from the place where she was working. His evidence is that thereafter PW-1, Kanan Mallick came near his shop and Tanuja narrated the incident to her and they also narrated incident to her and thereafter Kanan took Tanuja to the hospital and took the accused China to the P. S. and subsequently the Police Officer from Chandan Nagar P. S. went to hospital and also went to the P. O. which was in the village Bilkuli and they accompanied police officer and they found that there were blood drops on the bamboo leaves which were lying on the ground and the police officer seized some of the bamboo leaves in their presence. Some comments have been made by the learned Advocatefor the appellant as to the evidence of this PW-3, Swapan Biswas regarding the sequence in which the victim girl was taken to the hospital and the accused to the P. S. In our opinion this is really insignificant. There is no doubt from the evidence on record that the accused was taken to the police station and the victim girl was also taken there and from there the victim girl was taken to the hospital. In his cross-examination PW-3 Swapan says that the P. O. is at a distance that can be covered by bi-cycle in half an hour. In his cross-examination PW-3 Swapan says that the P. O. is at a distance that can be covered by bi-cycle in half an hour. He says that the accused was worked as a paint mistry in her house of the PW-1 prior to the date of incident. He denies the defence suggestion regarding quarrel over wage to be paid to the accused. PW-4 Sk. Samad is a resident of the village Bilkuli. He says that about 3/4 years ago at about 6. 30 p. m. Meshed Sekh of their village detected the victim girl and detained the accused from one bamboo grove of their village and thereafter brought them to his house and he saw that blood was coming out and there was flow of blood on the legs of the victim girl and informed him that the accused had given her one rupee and took her to that bamboo grove and committed rape on her. He says that thereafter they took that victim girl and the accused to the house of the victim girl which was near Chhabighar morh and after reaching that place he was guarding the cycle and other persons were talking with others. He further says that those persons thereafter took the accused and the victim girl to the nearby Bakultala T. O. P. and thereafter he returned to his house. In his cross-examination he says that he has no direct knowledge regarding the incident and whatever he stated in chief was heard from Meser and the victim girl. He says that Swapan was not known to him prior to the date of incident. PW-5, Sk. Sajahan is a resident of the village Bilkuli. He knows Meser and from him we get the Meser was not at the station (at the time of trial ). His evidence thus explains why Meser could not be examined in this case as a prosecution witness although in the FIR it has been stated that at about 6. 45 p. m. on the date of the occurrence Sk. Meser and others brought the victim girl along with the accused. PW-5, Sk. Sajahan says that in the evening when he was taking tiffin in his house he heard hallah hnar his house and thereafter he came out and saw Meser and others were there and one boy and one girl. Meser and others brought the victim girl along with the accused. PW-5, Sk. Sajahan says that in the evening when he was taking tiffin in his house he heard hallah hnar his house and thereafter he came out and saw Meser and others were there and one boy and one girl. His evidence is that on enquiry the girl informed them that the accused took her to the bamboo grove and committed rape on her. He also says that blood was on the legs of the girl as found in the light of the torch light. They took the boy and the girl to their Panchayat Office and there they were asked to hand over the girl to their family members, and then they went to the house of the girl. He further says that the girl informed them that the accused had worked as paint mistry in their house on that date and the mother of the victim girl and the local people took the accused and the girl to the local P. S. He also accompanied the police to the place of occurrence in the police van and after reaching Bilkuli the accused led up to the P. O. He also says that police seized some bamboo leaves from the P. O. under a seizure list. We find no sufficient reason to disbelieve the evidence of this witness. ( 4 ) P. W. 7, Sri Tapas Kumar Mukherjee is the Metropolitan Magistrate who recorded the statement of the victim girl (under Section 164, Cr. P. C. ). P. W. 8, Dr. Pit Beran Chakraborty was the medical officer attached to Chandannagar Sadar Hospital at the relevant time. He examined the victim girl Tanuja Mallick on 15-2-93. His evidence is that on examination he found bleeding. He has also proved his report which is Ext. 6. In his cross-examination he says that such type of injury may be caused from assault or hurt and if there is serious stretching of both the legs then such type of injury may appear. He found bleeding from inside the vulva. P. W. 10, Dr. Bharati Chatterjee (Pramanick) was attached to Chandannagar Hospital on 15-2-93 as Gynaecologist and on that date she examined the victim girl Tanuja Mallick in the hospital at about 8. 30 p. m. She describes the injury found by her on the posterior vaginal wall. He found bleeding from inside the vulva. P. W. 10, Dr. Bharati Chatterjee (Pramanick) was attached to Chandannagar Hospital on 15-2-93 as Gynaecologist and on that date she examined the victim girl Tanuja Mallick in the hospital at about 8. 30 p. m. She describes the injury found by her on the posterior vaginal wall. She found that the hymen was ruptured and also bruise around vaginal opening. Fresh bleeding was also there. The posterior wall of the vagina was ruptured. She opines that the victim girl was raped. It has been suggested to her in cross-examination that the mother of the victim girl was working as maid servant in her house and as such she had submitted false report which however she denies. She says that she does not know the mother of the victim girl. She also says that such type of injury cannot be caused other than by sexual intercourse by rape. The defence suggestion given to this Gynaecologist that the mother of the victim girl was working as the maid servant in the house of the Doctor and as such she was deposing falselyseems to be a desperate but abortive attempt on the part of the defence to discredit a disinterested witness. Even if the mother of the victim girl would have been working in the house of the Gynaecologist, that would not also have been a ground for deposing falsely that the girl was raped if she had not been really raped. We find absolutely no reason to disbelieve the evidence of Dr. Chatterjee. P. W. 11, S. I. , S. R. Chakraborty was posted at the relevant time at the concerned P. S. He took charge of the investigation of the case on 15-2-93 at about 7. 35 p. m. and thereafter he sent the victim girl to Chandannagar Sadar Hospital for medical examination and subsequently he visited the P. O. on the same date at Bilkuli which was a bamboo grove and from that place he seized some blood stained bamboo leaves lying on the ground there. He also seized the blood staibed Jangia. Subsequently on 18-12-93 he made over charge of investigation to Sri. S. C. Acharjee, O. C. of the P. S. P. W. 12, S. I. Subhas Acharya was posted as O. C. of the P. S. at that relevant time. He also seized the blood staibed Jangia. Subsequently on 18-12-93 he made over charge of investigation to Sri. S. C. Acharjee, O. C. of the P. S. P. W. 12, S. I. Subhas Acharya was posted as O. C. of the P. S. at that relevant time. He says that the complaint was made orally and was recorded by him in the formal FIR form. P. W. 13, S. I. Sudhir Kumar Bhattacharya collected the medical report of the accused and birth certificate of the victim girl and F. S. L. report and submitted charge-sheet. ( 5 ) WE have discussed the evidence on record and from such evidence including the medical evidence we have no manner of doubt that the victim girl Tanuja was raped by the appellant-accused on the date of the occurrence in a bamboo grove after she was taken there by the appellant on his bi-cycle. The trial Court on the basis of the visual appearance of the victim girl P. W. 2, Tanuja recorded an observation in the deposition that she appeared to be aged around 11 years on the date of her examination in December, 1996. In the FIR which was lodged in February, 1993 the age of the victim girl was stated to be 9 years. The birth registration certificate issued by the Birth Registrar Exbt. 3 records 9-4-83 as the date of birth of the victim girl. According to the birth certificate therefore, on the date of the occurrence, the victim girl was aged about 10 years. It is therefore crystal clear beyond any iota of doubt that on the date of occurrence the petitioner was a minor girl of tender age of about 9 or 10 years. The learned Advocate for the appellant also commented upon the evidence regarding time stated by the different witnesses. In our opinion their is no major discrepancy in the evidence regarding time also. It can be visualised that the witnesses who are coming to depose about 3 years after the occurrence may not give the exact time of events associated with the incident and it is evident that whatever time was given by the witnesses were only approximate and there is no major discrepancy in the evidence on this score. It can be visualised that the witnesses who are coming to depose about 3 years after the occurrence may not give the exact time of events associated with the incident and it is evident that whatever time was given by the witnesses were only approximate and there is no major discrepancy in the evidence on this score. It is also pointed out by the learned Advocate for the appellant that while P. W. 3 Swapan Biswas says in his evidence that at about 7. 30 p. m. some persons of the village Bilkuli appeared before his shop along with the victim girl Tanuja and accused China, P. W. 1, Kanan Mallick, the mother of the victim girl says that about 7 p. m. she went to the stationery shop of Swapan Biswas and sometime thereafter several para people brought Tanuja and the accused China in her house along with the cycle of China. We do not find any substantial discrepancy between evidence of these two witnesses in the matter. It is quite possible that after the victim girl and the accused were brought there by some people of Bilkuli the local para people also gathered there and that being so reference to para people by P. W. 1 Kanan in this context does not constitute any substantial variance with the evidence of the P. W. 3 Swapan. The learned Advocate for the appellant also attracted our attention to the seizure list Exb. 9 from which it would appear that the cycle was seized at about 11. 15 p. m. on the date of occurrence on the village road at Bilkuli. He submits that the prosecution have led evidence to the effect that the victim girl and the accused along with his cycle were brought to the place of the mother of the victim girl. We do not think that there is any improbability in this regard. It is in evidence that police later went to the place of occurrence at Bilkuli and seized blood stained bamboo leaves from the place of occurrence. It is evident that while the police went there with the accused the cycle was also taken there and it was seized at Bilkuli at about 11. It is in evidence that police later went to the place of occurrence at Bilkuli and seized blood stained bamboo leaves from the place of occurrence. It is evident that while the police went there with the accused the cycle was also taken there and it was seized at Bilkuli at about 11. 15 p. m. It is also submitted by the learned Advocate for the appellant that there is no evidence that the bi-cycle was fitted with light or that the accused had any torch with him and in the circumstance it is not clear how after sunset the accused could carry the victim girl on cycle to a distance of 5 k. m. for committing rape there in the cover of darkness. In our opinion, this is also of no consequence. Riding a cycle after dark isnot an uncommon phenomenon and for committing rape presence of light is not a necessary requisite. ( 6 ) THE learned Advocate for the appellant attracts our attention to Order No. 13 dated 2-12-96 of the trial Court. The said order of the trial Court shows that on the said date (which was obviously the date fixed for trial) the learned Advocate earlier engaged by the accused informed the trial Court that the accused had not given any instrument to him for the last six months and the conduct of the accused was not good. It also appears that the learned Advocate engaged by the accused thereafter disassociated himself and the petitioner was taken into custody. It further appears that on the prayer of the accused Sri Sunil Kr. Samanta a senior Advocate was then appointed as defence Advocate from the defence panel at Government cost and copies were handed over to him and on the prayer of the newly engaged defence Advocate the hearing was adjourned till the second half of the day. It also appears that subsequently two witnesses, the P. Ws. 1 and 2 were examined and discharged on that day and the trial was adjourned till the next day. It is submitted by the learned Advocate for the appellant that the newly engaged Advocate of the accused did not get sufficient time and opportunity to prepare himself for effectively cross-examining the prosecution witnesses. In our opinion it is now too late to say that the newly engaged defence lawyer did not get sufficient time to prepare himself. It is submitted by the learned Advocate for the appellant that the newly engaged Advocate of the accused did not get sufficient time and opportunity to prepare himself for effectively cross-examining the prosecution witnesses. In our opinion it is now too late to say that the newly engaged defence lawyer did not get sufficient time to prepare himself. On the other hand we find that after the new defence lawyer was engaged by the Court for the accused the trial Court on the prayer of the newly engaged defence Advocate adjourned the hearing till the second half. Obviously the newly engaged defence lawyer found the time thus allowed sufficient to prepare himself for conducting defence. He did not make any prayer to the trial Court that a longer time was necessary for him for the purpose of preparing himself for conducting the defence. That being so we are not convinced about the merit of the contention now belatedly raised on behalf of the appellant that no sufficient time was given to the defence lawyer for preparing himself for conducting the defence in the trial Court. Having regard to the facts, circumstances and evidence on record which we have earlier discussed in detail we are convinced that the prosecution have been able to prove the charge of rape under Section 376, I. P. C. against the appellant-accused beyond reasonable doubt and therefore we hold that the learned trial Court was justified in convicting the appellant under Section 376, I. P. C. ( 7 ) COMING to the question of sentence the learned Advocate for the appellant refers to the decision of the Supreme Court in Allauddin Mian v. State of Bihar, AIR 1989 SC 1456 : (1989 Cri LJ 1466) and submits that the appellant was convicted by the judgment delivered on 23-12-96 and on that very date the learned trial Court passed sentence on the accused without adjourning the case to a future date for hearing on the question of sentence which ought not to have been done. From the order-sheet of the learned trial Court it would appear that the judgment was pronounced and delivered on 23-12-96 obviously in the first half of the day and the learned trial Court took the accused in custody and directed him to be produced in the second half for hearing on the question of sentence. From the order-sheet of the learned trial Court it would appear that the judgment was pronounced and delivered on 23-12-96 obviously in the first half of the day and the learned trial Court took the accused in custody and directed him to be produced in the second half for hearing on the question of sentence. It is not that the learned trial Court did not grant any time for hearing on the question of sentence. Time was granted till second half of the day for hearing on the question of sentence. It also appears from the judgment of the trial Court that when later at 3 p. m. the matter was taken up for hearing on the question of sentence the accused informed the trial Court that he had nothing to say regarding his conviction and relating to sentence except that he was innocent. It would thus appear that far from praying for a longer adjournment for hearing on the question of sentence the accused rather categorically submitted before the trial Court at the deferred hearing on that day that he had nothing to say relating to sentence. That being so there was no point in or question of granting a longer adjournment for hearing on the question of sentence. It will also appear from the said decision of the Supreme Court in Allauddin Mian v. State of Bihar (supra) that the superior Court in appeal may, if necessary, as was done by the Apex Court in that decision, alter the sentence awarded by the trial Court to one of reduced severity if there had been any shortcoming on the part of the trial Court in adhering to the procedural requirements of Section 235 (2) Cr. P. C. in the matter of hearing regarding sentence. The learned Advocate for the State referred to the decision of the Supreme Court in Sevaka Perumalv. State of T. N. , (1991) 3 SCC 471 : (1991 Cri. LJ 1845) in support of his submission that there was no irregularity or illegality in the matter of imposing sentence on the appellant. Section 235 (2), Cr. P. C. indeed provides that if the accused is convicted, the Judge shall, unless he proceeds under Section 360, hear the accused on the question of sentence, and then pass sentence on him according to law. Section 235 (2), Cr. P. C. indeed provides that if the accused is convicted, the Judge shall, unless he proceeds under Section 360, hear the accused on the question of sentence, and then pass sentence on him according to law. The learned Advocate for the State in this connection also attracted our attention to Section 309, Cr. P. C. and the 3rd proviso to sub-section (2) thereof. The said 3rd proviso expressly says that no adjournment shall be granted for the purpose only of enabling the accused person to show cause against the sentence proposed to be imposed on him. Moreover it is also to be noted here that nothing has been specifically pointed out to us as a circumstance for imposing any lenient sentence. In paragraph 12 of the said decision in Sevaka Perumal v. State of T. N. (supra) the Apex Court inter alia observed that the hearing (under Section 235 (2), Cr. P. C. on the question of sentence) 'may be on the same day if the parties are ready or be adjourned to a next date but once the Court after giving opportunity proposes to impose appropriate sentence there is no need to adjourn the case any further thereon'. In the said case both the High Court and the Supreme Court rather confirmed the death sentence awarded by the Sessions Judge although the Sessions Judge did not adjourn the case under Section 235 (2), Cr. P. C. to next date, and the Supreme Court took note of the observation recorded by the High Court that the counsel was unable to give any additional ground. Here in our present case, as we have seen, the accused categorically stated at the deferred hearing on the question of sentence, although on the same day, that he had nothing to say relating to the sentence, and therefore there was no need of further adjournment for hearing on the question of sentence. However we modify the sentence imposed by the learned trial Court to the extent recorded hereafter as we are of the opinion that the modified sentence will serve the ends of justice in this case. For his conviction under Section 376, I. P. C. the petitioner shall suffer rigorous imprisonment for 7 years and shall also pay a fine of Rs. 10,000/-, in default, he shall suffer R. I. for 2 years more. For his conviction under Section 376, I. P. C. the petitioner shall suffer rigorous imprisonment for 7 years and shall also pay a fine of Rs. 10,000/-, in default, he shall suffer R. I. for 2 years more. Out of the fine, if realised, Rs. 7,000/- shall be paid to the victim girl. The criminal appeal is thus dismissed subject to the modification of sentence as recorded above. ( 8 ) NURE ALAM CHOWDHURY, J. : -. I agree. Order accordingly.