JUDGMENT C.K. Thakker, CJ.—This appeal is filed against an order of conviction and sentence recorded by Sessions Judge, Una on 1st April, 1997 in Sessions Case No. 24 of 1995 (Sessions Trial No. 1 of 1996). By the said judgment, the learned Sessions Judge convicted the accused for an offence punishable under Section 376 of the Indian Penal Code (hereinafter referred to as the Code). After hearing the accused and his counsel on quantum of sentence, the learned Judge ordered him to undergo imprisonment for two years and to pay fine of Rs. 2,000. In default, he was directed to undergo further imprisonment for three months. Final order in paragraph 28 of the judgment read as under: "As a sequal of the above I accordingly sentence the accused to undergo imprisonment for a period of two years and to pay a fine of Rs. 2,000. In default of payment of fine he shall further undergo imprisonment for three months. In case the fine is realised from the accused then the same be given to the prosecutrix. Parna Ex. P-l be destroyed after the expiry of the period of two months. The file after completion be consigned to record room." 2. The case of the prosecution was that the accused was resident of village Dharamshala Mohanta, Tehsil Amb. One Tilak Raj was also residing in that village. He was resident of village Bhadarkali, but was staying with his father-in-law at Dharamshala Mohanta along with his wife Smt. Kamla Devi and his children. Tilak Raj had a daughter named Mamta. She was stated to be aged about 15 years in March, 1994. Age of the accused was about 21 years. According to the prosecution, on March 30, 1994 at about 12.00 noon, the prosecutrix (Mamta) was grazing cattle in the pasture land situated nearby village Dharamshala Mohanta. The accused too happened to graze his cattle there. Sonia and Nitu were also grazing their respective livestock in the jungle. The accused was collateral of the father of Smt. Kamla Devi, mother of the prosecutrix. The allegation of the prosecution was that finding her all alone, the accused went there, dragged her into the bushes. She was also threatened not to raise any alarm. She was caught hold by the accused, took her to the bushes and committed rape on her. The allegation of the prosecution was that finding her all alone, the accused went there, dragged her into the bushes. She was also threatened not to raise any alarm. She was caught hold by the accused, took her to the bushes and committed rape on her. It was the case of the prosecution that one Vijay Kumar was present and reached the place from where cries were emanating. Vijay Kumar was said to be the maternal uncles son of the prosecutrix. As Vijay Kumar reached the place of offence, the accused ran away. The prosecutrix after coming to her home narrated the incident to her mother. The father of the prosecutrix was not in the village, as he had gone out. He returned on March 31, 1994 and came to know about the incident in question. He then took the prosecutrix to the Police Station, Amb. A complaint was lodged on 1st April, 1994, on the basis of which First Information Report No. 45 of 1994 was registered. After usual investigation, a case was filed, the accused was asked as to whether he had committed an offence. A charge was framed for an offence punishable under Section 376 of the Code by the learned Sessions Judge on January 3,1996. The accused pleaded not guilty to the charge. His defence was of denial. In defence, he examined one Gurbachani Sharma, Centre Head Teacher of Dharamshala Mohanta Government Primary School as a defence witness. 3. In order to prove the case against the accused, the prosecution examined seventeen witnesses. The Court also considered arguments of the learned Public Prosecutor as well as the defence counsel. Appreciating the evidence on record, the learned Judge came to the conclusion that it was proved beyond reasonable doubt by the prosecution that on March 30, 1994, the incident took place. The prosecutrix was below 16 years of age on that day It was also proved by the prosecution to the hilt that the accused committed rape on the prosecutrix and he was liable to be punished under Section 376 of the Code. The learned Sessions Judge accordingly convicted the accused and ordered him to undergo sentence as observed hereinabove. It is that order of conviction and sentence which has been challenged by the appellant-accused in this Court. 4. On July 21, 1997, the appeal was admitted. The learned Sessions Judge accordingly convicted the accused and ordered him to undergo sentence as observed hereinabove. It is that order of conviction and sentence which has been challenged by the appellant-accused in this Court. 4. On July 21, 1997, the appeal was admitted. In Cr.M.P. No. 183 of 1997, an order was passed suspending the sentence of the appellant-accused on condition that he should furnish personal bond in the sum of Rs. 10,000 with one surety of the like amount to the satisfaction of the trial Court within two weeks from the date of the order. 5. The matter has been placed for final hearing before this Court. 6. I have heard Mr. Bawa, learned Senior Advocate instructed by Mr. R.S. Thakur for the appellant-accused and Mr. Vivek Thakur, learned Assistant Advocate General for the respondent-State. 7. Mr. Bawa submitted that the order of conviction and sentence recorded by the trial Court is illegal, unlawful and against the evidence on record. He submitted- that some of the witnesses who were present at the time of incident were not examined. He urged that the presence of Mr. Vijay Kumar was not established. He was not present at the scene of offence, but had been posed as an eye-witness with a view to support the case of the prosecution. Moreover, he was relative of the prosecutrix being cousin and wanted to support her case. According to the counsel, evidence of the prosecutrix Mamta did not inspire confidence and on the basis of her testimony, no conviction could be recorded when there were omissions, modifications and contradictions in her evidence, material in nature. It was contended that medical evidence did not establish that rape was committed on the prosecutrix and no conclusions should have been arrived at by the trial Court. It was also argued that the accused was incapable of performing sexual inter-course and the evidence has come on record to that effect and no conviction could have been recorded. It was because of enmity and disputes between the family members of the prosecutrix on the one hand and the accused on the other, that the accused was falsely implicated. It was also not proved, submitted the learned Counsel, that the prosecutrix was below 16 years of age. Looking to the certificates produced on record, one by Gram Panchayat (Ext. P-K) and the other by School Authorities (Ext. It was also not proved, submitted the learned Counsel, that the prosecutrix was below 16 years of age. Looking to the certificates produced on record, one by Gram Panchayat (Ext. P-K) and the other by School Authorities (Ext. P-G), the day, month and year were different in both the certificates. It was, therefore, incumbent on the prosecution to have conducted appropriate test, such as, ossification test. In absence of such examination and material on record, the conclusion reached by the trial Court that the prosecutrix was minor had no basis and such finding cannot be said to be legal and valid. On that ground also, submitted the learned Counsel, the order of conviction and sentence deserves to be quashed and set-aside by allowing the appeal. 8. Mr. Thakur, on the other hand, supported the judgment and order of the trial Court. According to him, itwas clearly established from the evidence on record that it was the accused and accused alone who had committed rape on the prosecutrix Mamta. It was proved from the two certificates issued by Gram Panchayat and the School that the prosecutrix was below 16 years. According to him, taking any date of birth as correct, the date on which the offence was committed, i.e. March 30, 1994, she had not completed 16 years and was a minor. She was unmarried and not habituated to sexual inter-course. From her evidence, it was clear that rape was committed by the accused. Her testimony was believed by the trial Court. It was corroborated by Vijay Kumar who was present and was an eye-witness to the incident. It was further corroborated from medical evidence. According to the learned Assistant Advocate General, from the medical evidence, it was proved that sexual inter-course was committed on prosecutrix and thus the version of the prosecutrix got corroboration. She could not raise any cries as Parna was put on her mouth by the accused. On being asked by Vijay Kumar, the accused left the place and ran away. Presence of Vijay Kumar was duly explained. He had stated that after going to the School, he left the School at about 10.00 a.m. Regarding omissions, contradictions and improvements, it was submitted that the witnesses were examined after more than two years and the evidence have to be appreciated keeping in mind that fact. Presence of Vijay Kumar was duly explained. He had stated that after going to the School, he left the School at about 10.00 a.m. Regarding omissions, contradictions and improvements, it was submitted that the witnesses were examined after more than two years and the evidence have to be appreciated keeping in mind that fact. Moreover, so called omission, improvements and contradictions were not material or vital which would doubt the genesis of the prosecution. Regarding non-examination of certain witnesses, it was clarified that they were not eye witnesses to the scene of incident. Vijay Kumar was present at the scene of offence, he had challenged the accused. He was, therefore, a material witness and was examined by the prosecution. On enmity, it was submitted that from the cross-examination of prosecution witnesses on behalf of the accused, the only thing which had come on record was that there were land disputes between the parties and they were not on talking and visiting terms. This, in the submission of the learned Assistant Advocate General, cannot be described as "enmity" so as to falsely implicate the accused for a serious charge of rape. Regarding potency, it was submitted that from the medical evidence, it was clearly established that there was nothing on record to show that the day on which the accused was stated to have committed sexual intercourse with the prosecutrix, he was impotent. Learned Assistant Advocate General submitted that presumption is in favour of potency of a person and it was for the accused to prove that he was not potent or incapable to perform sexual inter-course. The trial Court has not committed an error in not upholding the contention of the accused that he was not potent. It was, therefore, submitted that the trial Court by recording conviction against the accused has neither committed any error of fact or of law and the appeal deserves to be dismissed. 9. Now, let us consider the evidence on record. The prosecution has examined PW-1 Dr. Usha Daroch, Medical Officer, Primary Health Centre, Amb. She stated that she was working as Medical Officer at PHC, Amb since December, 1992. On 1st of April, 1994 (after two days of the incident which took place on March 30, 1994), at the request of police (Ext. PA), she medically examined Mamta, daughter of Tilak Raj, aged 15 years. Usha Daroch, Medical Officer, Primary Health Centre, Amb. She stated that she was working as Medical Officer at PHC, Amb since December, 1992. On 1st of April, 1994 (after two days of the incident which took place on March 30, 1994), at the request of police (Ext. PA), she medically examined Mamta, daughter of Tilak Raj, aged 15 years. The case was brought to her by the police with the alleged history of commission of rape on the prosecutrix on March 30, 1994 at about 12.00 noon. 10. Regarding physical condition and examination, she stated as under:— "On examination of P/Vagina, inspection : Pubic hair distribution normal, pubic hair not matted. No injury lake laceration tear on vulva. Laceration present on the perineum at 6 Oclock position size 1x05 cm. marginal irregular, no active bleeding present. Per spaculum examination : Vaginal swab taken out for vaginal smear. White discharge present, vagina and cervix was pink. Bimenual examination : Vaginal introtus admit one finger (right index finger without resistance. Hegar dialated No.14. Secreation taken out from the Posterior Fornix and slides were prepared. Slides and pubic hair were handed over to lady police for examination. At the time of examination there was a obvious sign of vaginal penetration.” 11. She issued medical certificate which was signed by her. She identified the victim as the same girl who was examined by her. She stated; "In my opinion, penetration was there in the vagina and as such possibility of rape cannot be ruled out, however, sexual inter-course had taken place.” 12. In cross-examination by the defence counsel, she stated that laceration was there which had not healed and the sexual inter-course might have been committed within seven days of the examination. She also denied the suggestion that the girl was habitual of sexual inter-course. She stated that vagina admitted only one finger. She admitted that she had not mentioned that there was fresh tearing of hymen since she had not noticed. She stated that the hymen must have been raptured within seven days at the time of commission of sexual inter-course. She admitted that in case of forcible sexual inter-course on the girl lying on the hard surface, some abrasions would be present on the buttock and back. She admitted that in case of sexual inter-course with consent, no injury would be present on the person of the girl. 13. PW-13 Dr. She admitted that in case of forcible sexual inter-course on the girl lying on the hard surface, some abrasions would be present on the buttock and back. She admitted that in case of sexual inter-course with consent, no injury would be present on the person of the girl. 13. PW-13 Dr. Satinder Chauhan was also examined, who was serving as Medical Officer, District Hospital, Una. He deposed that he examined Kapil Dev jointly with Dr. Charanjit Singh, C.M.O., Una. According to him, There was nothing to suggest that he (accused) was incapable of doing sexual inter-course". He issued medical certificate to that effect (Ext. PW-13/A) which was signed by both of them i.e. the witness as well as Dr. Charanjit Singh, C.M.O. 14. In cross-examination by the learned Counsel for the accused, he stated; "In this case there was erection of the person examined and therefore we were able to give definite opinion" (emphasis supplied). He admitted that there can be a temporary impotency which can be possible in neurasthenic conditions. He also stated that the pressure of erection could be measured in millimeter of water level. It was not carried out in the centre as there was no facility and no need of such test. 15. PW-14 Dr. S.K. Nanda, Medical Officer, District Hospital, Una had stated that he was asked by the police for the opinion as to whether on the basis of record furnished by the police, the appellant-accused was impotent during the end of March, 1994 or was physically incapable of doing sexual inter-course. After examination, the witness opined that "there was nothing to suggest that patient Kapil Dev was impotent during the month of March, 1994." 16. In cross-examination, he admitted that he did not personally examine the accused and gave opinion on the basis of the record produced before him. 17. PW-16 Dr. S.K. Dwidevi, Medical Officer, P.H.C. Ladbadhol stated in his evidence that on May 19, 1994, on application being moved by the incharge, Police Post, Chintpurani for medical examination of accused Kapil Dev, he was asked to opine if the accused was potent to commit sexual inter-course or not. He examined the accused and observed as under:— "The patient was ill and was under treatment by registered Medical Practitioner, Chintpurani, for pneumonitis and depression since 25.3.1994 onward. He has also shown the records. He examined the accused and observed as under:— "The patient was ill and was under treatment by registered Medical Practitioner, Chintpurani, for pneumonitis and depression since 25.3.1994 onward. He has also shown the records. He was complaining of weakness and unable to perform sexual act since last two months. He was not habitual for masterbation or any kind of sexual act. On examination, he had no injury on body at the time of examination. Examination of sexual organs: Testis, epiditinus, cord, normal in size and shape. Penis : Shape is normal size 9 cm. x 9 cm. (in circumference) when not erected. Cremestic reflex was negative. On manual trial he was not able to erect his penis within 10 minutes. Hence he was again directed to erect his penis by his own try By three times on his own try he was unable to erect his penis. Then constable was directed to bring the case in morning of next day, again for next trial of erection of penis. Dated : 21.5.1994: He was unable to erect his penis by manual trial, again. Report : The sexual organs were well developed in size and shape but he was unable to erect his penis, hence it could be due to illness. He was under treatment for depression and anxiety. Temporary impotency (it can be due to fear, or depression or due to previous illness) the sexual organs were well developed at the time of examination. He was also unable to produce the seminal discharge because of temporary impotency”. 18. PW-15 Dr. D.P. Swami, Medical Officer, Dharamshala, stated in his evidence that he was working at Zonal Hospital as Forensic Expert. He had carried out many tests of forensic medicines as an expert. In March, 1995, his opinion was sought in the present case by the Superintendent of Police, Una in connection with a case of committing rape on prosecutrix Mamta. He has also produced the certificate given by PW-16 Dr. Dwivedi. His opinion reads as under: "1. In reference to Dr. Ushas report there were evidences in favour of rape as perineal laceration and vaginal penetration. 2. In reference to Dr. S.K. Dwivedis report the accused was shown normal sextial organs. He declared him "temporary impotent" (again mentioned/", can be due to fear or depression"). Dwivedi. His opinion reads as under: "1. In reference to Dr. Ushas report there were evidences in favour of rape as perineal laceration and vaginal penetration. 2. In reference to Dr. S.K. Dwivedis report the accused was shown normal sextial organs. He declared him "temporary impotent" (again mentioned/", can be due to fear or depression"). The meaning of the temporary impotence means person can be potent at any time before or after his examination. 3. In reference to Dr. S.M. Joshis OPD slip and history part of impotency can be true only at the time of examination only and not before or after examination in this case. According to his report the accused was not suffering from any serious illness. His treatment given for this minor ailment would have been rendered him more normal for his all general behaviour and activities. I have further specifically stated that the report given by Dr. Usha, Dr. Dwivedi of Una District Hospital Medical Board and circumstantial evidences are consistent with the history of rape charges. Lastly the most important legal aspect in this case that the rape can be done even by an impotent person (reference : Forensic Medicine, KSN Reddi, Ed. 1987, page 317). Even a fraction of millimeter of penetration of male genitalia to that of female genitalia is sufficient for the purpose of rape (Reference : Indian Penal Code, Rattan Lai Dhiraj Lal Ed. 1987 pages 358 and 360)." 19. The prosecution has heavily relied upon testimony of PW-2, prosecutrix Mamta Pappy, daughter of Tilak Raj. She had stated in her evidence that she was also known as Pappy since her childhood. They were residents of Bhadarkali, but were residing at Dharamsala Mohanta at the house of her mothers parents. She had studied upto 3rd standard. On the fateful day i.e. March 30, 1994, she was about 15 years of age. She has gone to graze cattle in the nearby forest. It was about noon time. Besides her, her maternal uncles daughters Sonia and Nitu aged about 13 and 15 years were also grazing cattle in the jungle. According to the witness, however, they were at a quite distance from her. Accused Kapil Dev, who was present in the Court, was also grazing cattle with the witness. He was maternal uncle of the prosecutrix. Besides her, her maternal uncles daughters Sonia and Nitu aged about 13 and 15 years were also grazing cattle in the jungle. According to the witness, however, they were at a quite distance from her. Accused Kapil Dev, who was present in the Court, was also grazing cattle with the witness. He was maternal uncle of the prosecutrix. The prosecutrix had stated that the accused came to her, caught hold of her from her arm and took her to the bushes. He threatened her that if she would raise alarm, he would see her. Accused then opened the string of her Salwar, removed his Pyzama and underwear and committed rape on her. When the accused was removing his Pyzama, she raised an alarm and accused gave her two slap blows and put his Parna on her mouth. She stated that she resisted the sexual inter-course by the accused and asked to get aside but the accused succeeded in committing sexual inter-course with her against her consent. The accused then got up on seeing Vijay Kumar, maternal uncles son of the witness. Vijay Kumar came near the place where the rape was committed by the accused. The accused took his Pyzama, underwear and Parna and ran away from the scene of offence. When Vijay Kumar reached at the place, Salwar of the witness was lying there and she worn the same thereafter. She returned her home at about 5.00 p.m. The witness then narrated the occurrence to her mother at about 7.00-8.00 p.m. Her father had gone to Bhadrakali on that day and came back on the next day. Initially, she stated that her father came at about 4.00 a.m. but then stated that he came at about 4.00 p.m. Mother of the prosecutrix told the whole story to her husband. On the next day, father of the prosecutrix went to the Police Station, Amb and lodged a report. The police took the prosecutrix for medical examination to Primary Health Centre, Amb where she was examined. Her statement was recorded by Police thrice. She identified Parna (Ex. P-l) as the same with which her mouth was gagged by the accused. She also stated that she had washed her clothes which she was wearing on the date of occurrence after coming back to the house. Her statement was recorded by Police thrice. She identified Parna (Ex. P-l) as the same with which her mouth was gagged by the accused. She also stated that she had washed her clothes which she was wearing on the date of occurrence after coming back to the house. She was confronted with her police statement wherein she had not stated that she washed her clothes though in the evidence she had stated that the said fact was stated by her in her Police statement. 20. The prosecutrix was cross-examined at length. She had admitted that it was correct that her family had land dispute with the accused family and they were not on talking and visiting terms. Certain omissions were also brought on record during her cross-examination. She stated that she had mentioned in her police report (Ext, PC) that she was also known as Pappy. Said fact, however, was not there in her police statement. She also admitted that she has not mentioned that Sonia and Nitu had also gone to the field alongwith her. She had stated that the distance where Sonia and Nitu was about 40 yards from where the prosecutrix was grazing cattle. She, however, denied the suggestion that Sonia and Nitu were visible from the spot where she was grazing the cattle. She also asserted that the accused was grazing cattle just near her. Another omission was brought on record that she had mentioned in her police report that when she raised alarm, the accused said that he would see her. Similarly, it was not stated in her police statement that two slap blows were given by the accused to her though according to the witness, it was so stated in the police statement. But in cross-examination, she reiterated that she raised alarm when the accused opened the string of her Salwar. According to her when the sexual intercourse was committed, she was forced to lie down on the ground by the accused and she did not herself lie down on the ground. The land was uneven, but she did not suffer any injury on her body. According to her when the sexual intercourse was committed, she was forced to lie down on the ground by the accused and she did not herself lie down on the ground. The land was uneven, but she did not suffer any injury on her body. Then on being asked as to whether she could assign any reason why she did not go back to the house after the sexual inter-course was committed by the accused, she replied that she was weeping and because of fear and shame, she did not go back to her house. She also stated that she did not call Sonia and Nitu near her and did not state anything about the occurrence. She then stated that Vijay Kumar had gone towards his house before she (the witness) went back at 5.00 p.m. She denied the suggestion that Vijay Kumar had not come to the place of occurrence or was present in the school on that day. She stated that she did not know about menstruation. She admitted that blood used to come after one month from her private part. 21. PW-3 Vijay Singh, in his evidence, stated that he was knowing accused Kapil Dev who was identified by him in the Court as his brother from brotherhood (Biradari). The prosecutrix Mamta was her cousin sister. On March 30, 1994, he had gone to call her sisters Sonia and Nitu to bring their cattle to home at the instance of his father. At that time, he was studying in 5th standard. In the jungle, he heard noise near a Nallah and he recognized Mamta. The witness went there and found that Salwar of prosecutrix Mamta was lying near her and the accused Kapil Dev was over Mamta. Pyzama and underwear of the accused Kapil Dev were also lying nearby. On seeing the witness, accused threatened him, took his Pyzama and underwear and ran away from the place. PW-3 identified Pyzama as the same which the accused had worn at the time of incident. 22. In cross-examination by the learned defence counsel, the witness stated that his sisters Sonia and Nitu were at sufficiently long distance from the place of occurrence. After seeing PW-3, the accused ran away and the witness went to call his sisters. When he returned alongwith Sonia and Nitu, Mamta had already left for the house alongwith the cattle. 22. In cross-examination by the learned defence counsel, the witness stated that his sisters Sonia and Nitu were at sufficiently long distance from the place of occurrence. After seeing PW-3, the accused ran away and the witness went to call his sisters. When he returned alongwith Sonia and Nitu, Mamta had already left for the house alongwith the cattle. The witness did not talk about the occurrence with the family members of Mamta or his parents or family members. The police then came to record his statement. In those days, the witness was studying in Government Primary School, Dharamsala Mohanta. The school was located at a distance of one Km. from the spot. According to him, the school used to open at 8.00 a.m. and was closed at 3.00 p.m. According to PW-3, he had gone to the school on that day but had come back at about 10.00 a.m. since there was a ceremony of washing clothes as his brother had died ten days prior to the occurrence. PW-3 has stated that he had not taken leave for the remaining day. He denied the suggestion that he was present in the school from 8.00 a.m. to 3.00 p.m. on that day. He denied that he had not seen the occurrence and was deposing falsely. 23. PW-4 Smt. Kamla Devi, mother of PW-2 prosecutrix, stated that she had three daughters i.e. Mamta Pappy, aged 17 years (at the time of her deposition), Rekha about 8 years and Shallu about 4 years. On March 30, 1994,. at about 12.00 noon, Mamta had gone to jungle to graze cattle. Her husband, on that day, had gone to his native place and was not in Dharamsala Mohanta, At about 6.00 p.m., Mamta came back to house. She was weeping and was quite sensitive. On inquiry, Mamta narrated the whole story when she was in jungle how the accused caught hold her from her arm, took her to the lonely place and committed rape on her. The witness also stated that Mamta told her that when she tried to raise alarm, accused gagged her mouth with his Parna. Mamta also told her that PW-3 Vijay Singh came to the spot. The accused threatened him and ran away from the place of occurrence alongwith his Parna. Since her husband was not present at that time, the witness kept waiting for his return. Mamta also told her that PW-3 Vijay Singh came to the spot. The accused threatened him and ran away from the place of occurrence alongwith his Parna. Since her husband was not present at that time, the witness kept waiting for his return. On the next day, at about 5.00 p.m. to 6.00 p.m., her husband returned and at about 8.00 p.m. she narrated the whole story to him. On the next morning, her husband alongwith Mamta went to lodge a report at Police Station, Amb. She identified the accused the same person in the Court as her cousin brother. 24. In cross-examination, she admitted that she Jlad not stated in her police statement that she was waiting for her husband to come back. She was confronted that she stated before the police that Mamta was also known as Pappy which omission had already been brought on record. Similar omission brought on record was about her version that Mamta came weeping and was Gumsum. She denied the suggestion that they were having dispute over land with the family of the accused for the last 10 to 11 years. She stated that their Khata had been finally separated from the accused. She denied that she was deposing falsely and the accused did nothing with her daughter. 25. PW-5 Tilak Raj, father of the prosecutrix stated that on March 30, 1994, he had gone to his native place Bhadarkali to meet his brothers. His wife and daughters were at Dharamsala Mohanta. He returned at about 5.00 at 6.00 p.m. on the next day. After about 2-3 hours, his wife told him that Mamta had been raped by accused Kapil Dev in the jungle. He also inquired from Mamta and on the next day, went to Police Station, Amb and lodged a report. 26. In cross-examination by the learned defence counsel, he admitted that he had not personally gone to enter the name of his daughter Mamta at the time of her birth. An omission was proved that he had not stated before police that Mamta was also known as Pappy Similar omission was found regarding an inquiry from Mamta and Vijay Singh about the incident. He denied the suggestion that he had having any land dispute with the accused or his family. He, however, stated that some land had gone to accused in consolidation proceedings, but there was no dispute between them. He denied the suggestion that he had having any land dispute with the accused or his family. He, however, stated that some land had gone to accused in consolidation proceedings, but there was no dispute between them. He denied the suggestion that for such dispute, a false case was filed against the accused. He had stated, "I do not want to spoil the image of my family or minor daughter by implicating the accused". 27. PW-8 Hari Krishan, Assistant Teacher of Government Girls Primary School, Dharamsala Mohanta stated that he was working as Assistant Teacher in the school. He produced the admission record of the school according to which Mamta was admitted to the school on December 7, 1991 and her date of birth was recorded as March 15, 1980. 28. In cross-examination, he stated that the register was not in his hand and the entries did not bear any signature. He could not say on what basis the entry was made in the register. He has no personal knowledge in the matter. 29. PW-10 Dr. J.R. Gaur, Deputy Director, State Forensic Science Laboratory, Junga stated in his evidence that on March 4, 1995, medico-legal opinion was sought in the present case by the Superintendent of Police, Una vide a letter dated January 31, 1995 in connection with a rape case. He had mentioned his opinion as under:— "1. Offence of rape is made out in this case as explained by Modi at Page 369 "to constitute the offence of rape, it is not necessary there should be complete penetration of the penis with emission of seman and rupture of the hyman. Partial penetration of penis within the labia majora or the vulva or pudenda or withoute mission of semen, or even an attempt at penetration is quite sufficient for the purpose of the law." 2. Chapter XVI as per inference by Casper says "The possession of virality and procreative power neither requires to be, nor can be proved to exist by any physician, but is rather, like every other normal function, to be supposed to exist within the usual limits of age." 3. As regards impotency as per causes described by Modi there can be temporary impotency to anybody due to disease and psycho-genie reasons. Regarding opinion of the same for urology test, I have advised the police to consult expert in medical college." 30. As regards impotency as per causes described by Modi there can be temporary impotency to anybody due to disease and psycho-genie reasons. Regarding opinion of the same for urology test, I have advised the police to consult expert in medical college." 30. He also stated that general causes of impotency were age, malformation, local diseases or injuries, general diseases and psychogenic reasons. He further stated that temporary impotency could be due to the diseases mentioned by him and might continue till such time the diseases were not cured. 31. In cross-examination, he admitted that excessive use of alcohol, tobacco, drugs and psychotropic substances might cause temporary impotency. 32. PW-11 Bal Kishan, Secretary of Gram Panchayat Suri, Tehsil Amb produced births and deaths register. He stated that certificate Ext. PK had been correctly given by him as per record and was correct. 33. In cross-examination, he admitted that the original entry was not in his hand in the birth register. He also admitted that in the column of fathers name in the register, the name was shown as Litak Ram and above it, the word Tilak had been mentioned in the separate ball-pen. 34. Finally there is a deposition of Chander Singh, Sub-Inspector, Police Lines, Hamirpur, Investigating Officer. According to him, he was Incharge of Police Post, Chintpurani on 1st of April, 1994. On that day, FIR No. 45 of 1994 (Ext. PC) was registered by Station House Officer, Mr. Ronki Ram in Police Station, Amb and the case file was sent to him for investigation. He conducted the investigation. He visited the spot and prepared a site plan. He got medical examination of the prosecutrix performed by Doctors. He also took into possession birth certificates of the prosecutrix from the school as well as from the Panchayat. He also got medically examined the accused on May 19, 1994. He recorded statements of witnesses. 35. In cross-examination, he stated that it had not come during his investigation that the parties were having civil litigation in respect of land and they were not on talking terms. He admitted that the place of occurrence was hill track and was uneven. There was grass and stony surface. He also admitted that there was no specific identification mark on the Parna. He stated; "I arrested the accused on 19.5.1994 and prior to that he was not tracable". He admitted that the place of occurrence was hill track and was uneven. There was grass and stony surface. He also admitted that there was no specific identification mark on the Parna. He stated; "I arrested the accused on 19.5.1994 and prior to that he was not tracable". He denied that the case had been falsely made against the accused in connivance with PW-5 Tilak Raj. 36. On the basis of the above evidence, the trial Court was called upon to consider the charge levelled against the accused and to decide whether it was proved by the prosecution that the accused had committed an offence with which he was charged. The learned Sessions Judge observed that looking to the evidence of PW-2 Mamta (Prosecutrix) and PW-3 Vijay Singh, it was proved beyond doubt that rape was committed by the accused. It was corroborated by medical evidence. It was also established from depositions of PW-4 Kamla Devi, mother of the prosecutrix as also PW-5 Tilak Raj, father of the prosecutrix. According to the learned Sessions Judge, it was clear from documentary evidence on record particularly two certificates Ext. PG and Ext. PK issued by the Gram Panchayat and school authorities that on the day of incident on March 30,1994, prosecutrix Mamta had not completed 16 years. Regarding potency of the accused, the learned Sessions Judge relied upon the evidence of PW-1 Dr. Usha who had categorically stated that white discharge was present, vagina and cervix was pink and there was obvious sign of vaginal penetration and in her opinion "penetration was there in the vagina" and sexual inter-course had taken place. Evidence of PW-13 Dr. Satinder Chauhan and PW-14 Dr. Nanda also showed that there was nothing to show that the accused tvas incapable of doing sexual inter-course or he was impotent during the month of March, 1994. The trial Court noted that the statement of prosecutrix inspired confidence. She had been "undoubtedly subject to sexual inter-course on March 30, 1994." The court stated: "There was no reason for the prosecutrix to arraign her strupration at the hands of the accused if he had not subjected her to sexual inter-course". According to the Court, after she had been outraged by the accused, she went to her mother in the evening and was perturbed and weeping. According to the Court, after she had been outraged by the accused, she went to her mother in the evening and was perturbed and weeping. When her mother asked about the reason of her mental stage, she revealed the act of the accused to her. But the mother was helpless as father of the prosecutrix was not present in the village. The prosecutrix, hence, could approach police authorities only after arrival of her father. In the opinion of the learned Sessions Judge, thus there was no deliberate delay on the part of the prosecution in filing a complaint. Regarding the land dispute, the Court noted that the plea was too hollow to demolish or doubt the statement of the prosecutrix regarding her stupration at the hands of the accused. The omission, variations and discrepancies in the statements of the prosecution witnesses were not such as to destroy the case of the prosecution and demolish the evidence on record. It was observed that the parents of the prosecutrix were unlettered persons. The prosecutrix had studied only upto 3rd standard. In these circumstances, whether or not her nick name Pappy was mentioned in the police statement was hardly material to destroy or adversely affect the prosecution case. Finally, the learned Sessions Judge stated: "There is no reason to disbelieve the testimony of the prosecutrix regarding her rape by the accused." Regarding the argument of the learned defence counsel about the so called impotency of the accused and incapacity of performing sexual inter-course, relying on the evidence of PW-13 Dr. Satinder Chauhan and PW-14 Dr. Nanda, the learned Sessions Judge observed that there was nothing to show that on March 30,1994, the appellant-accused was incapable of committing sexual inter-course. 37. The learned Counsel for the appellant-accused contended that the case cannot be said to be proved beyond reasonable doubt and the trial Court committed serious error of fact and of law in relying upon the evidence of Vijay Kumar and other witnesses. It was submitted that Vijay Kumar was not an eye-witness. He concocted the story only with a view to support the prosecution as he was related to the prosecutrix and due to enmity between the two families, he had been set up as an eye-witness. 38. I am unable to uphold the contention of the learned Counsel. It was submitted that Vijay Kumar was not an eye-witness. He concocted the story only with a view to support the prosecution as he was related to the prosecutrix and due to enmity between the two families, he had been set up as an eye-witness. 38. I am unable to uphold the contention of the learned Counsel. Looking to the evidence of the prosecutrix, the trial Court was of the view that her testimony inspired confidence and on her evidence, the learned Sessions Judge held that it was the accused who had committed the offence. There is no reason for this Court to come to a contrary conclusion. In my view, the learned Sessions Judge was right in observing that the family of the prosecutrix was illiterate, residing in rural area. The way in which the prosecutrix had deposed in a straight forward manner and narrated the incident, it was quite natural and trustworthy. She had studied upto 3rd standard. She had stated that Sonia and Nitu were with her, but they were away from the scene of occurrence. The distance was shown to be 40 yards. She also stated that she wanted to raise cry and when she tried to do so, the accused put his Parna on her mouth and prevented her from raising cries. Meanwhile, however, PW-3 Vijay Singh came there. It was, no doubt, contended by the learned Counsel for the accused that PW-3 Vijay was not eye-witness, as he was supposed to be in the school. I am unable to uphold the said argument as well. In my judgment, even in absence of evidence of PW-3 Vijay Kumar, the accused can be convicted on the sole testimony of prosecutrix Mamta, PW-2. This is much more so in the instant case where, after seeing the demeanour of witness, the learned Sessions Judge held that evidence of PW-2 Mamta inspired confidence. It was, therefore, not necessary for the prosecution to concoct evidence of PW-3 Vijay Singh by posing him as an eye-witness. 39. It was also argued that Vijay Singh was studying in 5th standard and school timings were from 10.00 a.m. to 3.30 p.m. DW-1 Gurbachani Sharma, Centre Head Teacher, Dharamsala Mohanta had been examined, who stated that the timings of school in the month of March, 1994 were from 10.00 a.m.. 39. It was also argued that Vijay Singh was studying in 5th standard and school timings were from 10.00 a.m. to 3.30 p.m. DW-1 Gurbachani Sharma, Centre Head Teacher, Dharamsala Mohanta had been examined, who stated that the timings of school in the month of March, 1994 were from 10.00 a.m.. to 3.30 p.m. She had also brought attendance register of the school wherein attendance of students were marked twice a day Vijay Singhs presence was marked twice according to that register. 40. In cross-examination, however, she had admitted that the entry shown in the register was not in her hand nor the said register was maintained by her. She admitted that she could not say whether Vijay Singh was actually present on the date mentioned in the school register. She also could not say about the time when the presence was marked twice1 a day 41. Since DW-1 Gurbachni was posted from June 1, 1996, obviously she had no personal knowledge or information about the presence of Vijay Singh in the school. Vijay Singh, in his deposition, specifically stated that he had gone to the school on that day but returned at about 10.00 a.m. The witness had also given reason that since there was ceremony of washing clothes as his brother died ten days prior to the incident, he had come back. There was no reason to disbelieve the said witness, and to contend that with a view to falsely implicating the accused, a witness has been got up. The learned Sessions Judge, in my view, therefore, did not commit error in relying upon the evidence of PW-3 Vijay Singh. 42. Moreover, there is evidence of PW-1 Dr. Usha. She had examined the prosecutrix and issued certificate Ext. PA. The certificate showed presence of white discharge and vagina and cervix being pink. Mr. Bawa submitted that no injury was found on vulva. He also submitted that no injuries were found on the person of the prosecutrix. The counsel submitted that if forcible sexual inter-course was committed at a stony place, it is not possible that no injury was caused on the back side or buttock of the prosecutrix. In my opinion, however, from the medical evidence, it was clear that there was white discharge present, vagina and cervix pink and sexual inter-course had been committed. The counsel submitted that if forcible sexual inter-course was committed at a stony place, it is not possible that no injury was caused on the back side or buttock of the prosecutrix. In my opinion, however, from the medical evidence, it was clear that there was white discharge present, vagina and cervix pink and sexual inter-course had been committed. Ultimately, the question is believing the evidence of prosecutrix alongwith evidence of PW-3 Vijay Singh, PW-4 Kamla Devi and the surrounding circumstances. It, therefore, cannot be held that since there was no injury either on the person of the prosecutrix or on her private part, the medical evidence was not true and could not have been relied upon. The submission, therefore, has no force and deserves to be rejected. 43. In my opinion, the evidence of Kamla Devi is also reliable and the substratum of prosecution case has been clearly established from her testimony. After the sexual assault on the prosecutrix by the accused, the latter came back at about 4.00 to 5.00 p.m. She was disturbed and was weeping. Obviously, the mother was upset and worried about her daughter. She asked the reason why Mamta was weeping and was disturbed. On inquiry, the prosecutrix narrated the incident to her mother, which has been stated by the witness in a simple and straight-forward manner before the Court. She has also stated that she had no personal knowledge about the incident and she had deposed what was stated by the prosecutrix. 44. Though an argument was advanced before the trial Court was well as before this Court that the accused was involved because of enmity and land dispute between the two families, but it neither impressed the trial Court nor this Court. It appears that consolidation proceedings were initiated in accordance with law and a part of land of the complainant family had gone to the share of the family of the accused. This cannot be termed as enmity’ and the complainant side would not go to the extent of making allegation of such a serious nature. Again, it cannot be ignored that the prosecutrix was aged about 15 years. When rape was committed by the accused, neither the father nor the mother of the prosecutrix was present. It was in the jungle that the accused committed sexual assault at 12.00 noon. Again, it cannot be ignored that the prosecutrix was aged about 15 years. When rape was committed by the accused, neither the father nor the mother of the prosecutrix was present. It was in the jungle that the accused committed sexual assault at 12.00 noon. The prosecutrix came back to her house at about 5.00 p.m. and told about the occurrence to her mother. In my opinion, it is too much to say that a girl of 15 years who had studied upto 3rd standard would falsely implicate a person only on the ground that there was some land dispute between two families in connection with consolidation proceedings. The learned Sessions Judge was in my view, fully justified in rejecting the argument of defence that because of so called enmity, the accused had been falsely implicated by the prosecution. 45. Regarding the impotency of the accused, the learned Counsel vehemently contended that there was no positive evidence to prove that the accused was potent and capable of performing sexual inter-course. He submitted that what was stated by the Doctors was in negative that there was no evidence to show that the accused was impotent. Relying on the evidence of PW-16 Dr. Dwivedi, the counsel submitted that in the light of the evidence of PW-16 Dr. Dwivedi, it was imperative for the prosecution to prove by reliable evidence that the accused was potent to perform sexual inter-course. 46. I must frankly state that I am unable to uphold the contention of the learned Counsel. In Medical Jurisprudence and Texicology (22nd Edition), quoting Casper (Forensic Medicine, English Translation; 3rd Edn. 241) Modi observes: "The possession of virility and procreative power neither requires to be, nor can be proved to exist by any physician, but is rather, like every other normal function, to be supposed to exist within the usual limits of age. It is, therefore, necessary for the medical jurist, to ascertain by an examination of the individual in a case of disputed potency, if there is any abnormal condition which is likely to interfere with the normal function of copulation. It should be noted that the physical causes of impotence afford the proper basis on which to found an opinion but psychogenic or functional impotence are more common basis for declaration of "nullity of marriage". 47. PW-13 Dr. It should be noted that the physical causes of impotence afford the proper basis on which to found an opinion but psychogenic or functional impotence are more common basis for declaration of "nullity of marriage". 47. PW-13 Dr. Satinder Chauhan stated that there was nothing to suggest that the accused was incapable of performing sexual inter-course. Similarly, PW-14 Dr. Nanda deposed that there was nothing to show that the accused was impotent during the month of March, 1994. It is true that PW-16 Dr. Dwivedi stated that the accused was not potent and was not able to perform sexual inter-course. It, however, cannot be ignored that the witness examined the accused on May 19, 1994, i.e. after more than 1-1/2 month from the date of the incident. It was stated by him that the patient was ill and was under treatment by a registered medical practitioner for pneumonities and depression since March, 1994. The witness also stated that the accused complained to the witness that he was unable to perform sexual act since last two months. Thus, it was on the basis of the say of the accused that the certificate Ext. PW-16B was issued by Dr. Dwivedi. He, however, admitted that he had no reason to assign for mentioning that the accused was not able to perform sexual inter-course for the last two months. He further admitted that it was correct to suggest that if a person is having normal penis, normally he could be said to be potent. He agreed to the suggestion that if a contrary finding is to be given, then an expert opinion would be necessary and thorough examination of the patient would be required. His attention was invited to observations of Casper and he agreed with the observations cited hereinabove. Subsequently, however, he stated that he did not agree with those observations. When asked about the reason of disagreement, he said that he could not assign any reason for disagreeing with the opinion of the learned author and it was his personal view as a medical practitioner. He denied that he had given wrong opinion and the accused was potent. 48. In my view, the trial Court was right in observing that there was F nothing to show that the accused was not potent or was not capable of performing sexual inter-course. He denied that he had given wrong opinion and the accused was potent. 48. In my view, the trial Court was right in observing that there was F nothing to show that the accused was not potent or was not capable of performing sexual inter-course. Medical jurisprudence states that the pre-sumption would be in favour of potency of a person. That is what observed by Casper in his well-known work "Forensic Medicine" quoted by Modi in "Medical Jurisprudence and Toxicology". Without assigning any reason whatsoever, PW-16 Dr. Dwivedi deposed that the accused was not potent fin May, 1994. Apart from the fact that an examination was conducted by the Doctor after about 1-1/2 month from the incident in question, the said evidence of Dr. Dwivedi was half hearted inasmuch as initially he agreed with the observations of Casper and Modi, but in the next breath, he stated that he did not agree. When he was asked as to the reason of his disagreement, he had to admit that he was unable to assign any reason for disagreement as he had not studied Casper or Modi. In my opinion, thus his evidence was, more or less, in the nature of bald assertion without there being material in support of such assertion. Even if one may not go to lithe extent that with a view to help the accused, Dr. Dwivedi was deposing falsely and he was giving incorrect opinion without professional experience, his evidence cannot be relied upon in view of the evidence of two Doctors to the contrary based on expert opinion I, therefore, hold that there is nothing to show that the accused was impotent and he could not be held liable for committing rape on the prosecutrix. 49. It was also argued that there were two birth certificates on record Ext. PG and PK; one issued by Gram Panchayat and the other by school authorities. In both the certificates, the date of birth of the prosecutrix was different. In the certificate issued by the Gram Panchayat, it was 9th September, 1979 whereas as per the certificate of school authorities, it was 15th March, 1980. It was, therefore, submitted by Mr. Bawa that ossification test ought to have been conducted for ascertaining age of the prosecutrix. 50. I am afraid, I cannot uphold the said contention. Admittedly, the offence took place on March 30, 1994. It was, therefore, submitted by Mr. Bawa that ossification test ought to have been conducted for ascertaining age of the prosecutrix. 50. I am afraid, I cannot uphold the said contention. Admittedly, the offence took place on March 30, 1994. It was, therefore, material date for the purpose of the present case. Any of the two above dates is taken to be correct, i.e. 9th September, 1979 or 15th March, 1980, the prosecutrix had not completed 16 years. Though the case of the accused was a total denial and even in cross-examination of prosecution witnesses, no suggestion of consent was put forward by the accused, considering the age of the prosecutrix, consent was immaterial. The sumission that ossification test was obligatory cannot be said to be well founded and deserves to be rejected. 51. Thus, in my judgment the prosecution has proved the case against the accused from the evidence of PW-2 Mamta prosecutrix supported by eye-witness PW-3 Vijay Singh who was very much present at the time of incident, who had heard the cries of the prosecutrix, who had seen the accused committing rape on prosecutrix and on seeing him, the accused ran away from the scene of offence. The said evidence was corroborated by evidence of PW-1 Dr. Usha Daroch who examined the prosecutrix on 1st April, 1994 and that sexual inter-course was committed. There was evidence of PW-13 Dr. Satinder Chauhan and PW-14 Dr. Nanda. Both have stated . that there was nothing to show that the accused was not potent or was not able to perform sexual inter-course. There was also evidence of PW-4 Kamla Devi, mother of the prosecutrix to whom the prosecutrix reported the incident and of PW-5 Tilak Raj who had accompanied Mamta for lodging First Information Report. 52. The learned Sessions Judge after considering the demeanour of witnesses found the same true and reliable, and held the accused guilty. By taking such view, neither an error of fact nor an error of law was committed by him. Ordinarily, in rape cases, on the basis of evidence of the prosecutrix alone, conviction can be recorded provided the Court is satisfied about the trustworthiness of such evidence. In the present case, the learned Sessions Judge was justified in relying on the evidence of PW 2 Mamta. So called omissions, variations, modifications, and contradictions, in my opinion, were not such to destroy the prosecution case. In the present case, the learned Sessions Judge was justified in relying on the evidence of PW 2 Mamta. So called omissions, variations, modifications, and contradictions, in my opinion, were not such to destroy the prosecution case. The trial Court was right in observing that they were not substantial in nature and did not adversely affect the genesis of the prosecution. It has to be recalled that the incident took place on March 30, 1994 when PW-5 Tilak Raj, father of the prosecutrix was not in the village. The fact was, therefore, narrated by the prosecutrix to her mother and a complaint was filed on 1st of April, 1994 after return of father of the prosecutrix on March 31,1994. It, therefore, cannot be said that there was delay in lodging First Information Report or with a view to settle accounts in consolidation proceedings, a false case has been cococted against the accused. 53. As observed by the Supreme Court in Bharwada Bhoginbhai Hirjibhai v. State of Gujarat, AIR 1983 SC 753, ordinarily in Indian society neither the prosecutrix nor her family members would make false allegations of a serious offence of rape if no such act has been committed by the accused, as such action would adversely affect the reputation of the prosecutrix and her family members. 54. My attention was invited by the learned Counsel on both the sides to several decisions. It may not be necessary to burden this judgment by referring to all of them. In Bhardwads Bhognibhai Hirjibhai, the accused was convicted for an offence punishable under Section 376 read with Section 511 of the Code. Two girls of tender age went to the house of the accused to meet daughter of the accused. The accused induced them to enter his ; house by creating an impression that his daughter was inside the house. One of them was successful in escaping herself but the other could not and the accused sexually assaulted her. The evidence was only of the prosecutrix which was corroborated by medical evidence. It was argued on behalf of the accused that except bare assertion of the prosecutrix, there was no evidence worth the name and, hence, he could not be convicted for such a serious offence. It was also urged that there were several discrepancies, omissions, and contradictions in prosecution evidence and no conviction could be recorded on such evidence. It was argued on behalf of the accused that except bare assertion of the prosecutrix, there was no evidence worth the name and, hence, he could not be convicted for such a serious offence. It was also urged that there were several discrepancies, omissions, and contradictions in prosecution evidence and no conviction could be recorded on such evidence. It was submitted that a false case was filed against the accused with a view to extract money. 55. Repelling all the contentions and upholding the conviction of the accused, the Apex Court observed that minor contradictions, variations and omissions would not adversely affect the case. The Court recorded reasons for taking such a view by observing thus: "(1) By and large a witness cannot be expected to possess a photographic memory and to recall the details of an incident. It is not as if a video tape is replayed on the mental screen. (2) Ordinarily it so happens that a witness is overtaken by events. The witness could not have anticipated the occurrence which so often has an element of surprise. The mental facilities therefore cannot be expected to be attuned to absorb the details. (3) The powers of observation differ from person to person. What one may notice, another may not. An object or movement might emboss its image on one persons mind, whereas it might go unnoticed on the part of another. (4) By an large people cannot accurately recall a conversation and reproduce the very words used by them or heard by them. They can only recall the main purport of the conversation. It is unrealistic to expect a witness to be a human tape recorder. (5) In regard to exact time of an incident, or the time duration of an occurrence, usually, people make their estimates by guesswork on the spur of the moment at the time of interrogation. And one cannot expect people to make very precise or reliable estimates in such matters. Again, it depends on the time-sense of individuals which varies from person to person. (6) Ordinarily a witness cannot be expected to recall accurately the sequence of events which take place in rapid succession or in a short time span. And one cannot expect people to make very precise or reliable estimates in such matters. Again, it depends on the time-sense of individuals which varies from person to person. (6) Ordinarily a witness cannot be expected to recall accurately the sequence of events which take place in rapid succession or in a short time span. A witness is liable to get confused or mixed up when interrogated later on, (7) A witness, though wholly truthful, is liable to be overawed by the Court atmosphere and the piercing cross-examination made by counsel and out of nervousness mix up facts, get confused regarding sequence of events, or fill up details from imagination on the spur of the movement. The subconscious mind of the witness sometimes so operates on account of the fear of looking foolish or being disbelieved though the witness is giving a truthful and honest account of the occurrence witnessed by him perhaps it is a sort of a psychological defence mechanism activated on the spur of the moment." 56. Rejecting the arguments that a false case was filed against the accused and dealing with Indian society in juxtaposition of western countries, the Court proceeded to state: "By and large these factors are not relevant to India, and the Indian conditions. Without the fear of making too wide a statement, or of overstating the case, it can be said that rarely will a girl or a woman in India make false allegations of sexual assault on account of any such factor as has been just enlisted. The statement is generally true in the context of the urban as also rural society. It is also by and large true in the context of the sophisticated, not so sophisticated and unsophisticated society. Only very rarely can one conceivably come across an exception or two and that too possibly from amongst the urban elites. Because:— (1) A girl or a woman in the tradition bound non-permissive society of India would be extremely reluctant even to admit that any incident ( which is likely to reflect on her chastity had ever occurred. (2) She would be conscious or the danger of being ostracized by the society or being looked down by the society including by her own family members, relatives, friends, and neighbours. (3) She would have to brave the whole world. (2) She would be conscious or the danger of being ostracized by the society or being looked down by the society including by her own family members, relatives, friends, and neighbours. (3) She would have to brave the whole world. (4) She would face the risk of losing the love and respect of her own husband and near relatives, and of her matrimonial home and happiness being shattered. (5) If she is unmarried, she would apprehend that it would be difficult to secure an alliance with a suitable match from a respectable or an acceptable family. (6) It would almost inevitably and almost invariably result in mental torture and suffering to herself. (7) The fear of being taunted by others will always haunt her. (8) She would feel extremely embarrassed in relating the incident to others being overpowered by a feeling or shame on account of the upbringing in a tradition bound society whereby and large sex is taboo. (9) The natural inclination would be to avoid giving publicity to the incident lest the family name and family honour is brought into controversy. (10) The parents of an unmarried girl as also the husband and members of the husbands family of a married woman, would also more often than not, want to avoid publicity on account of the fear of social stigma on the family name and family honour. (11) The fear of the victim herself being considered to be promiscuous or in some way responsible for the incident regardless of her innocence. (12) The reluctance to face interrogation by the investigating agency, to face the Court, to face the cross-examination by counsel for the culprit, and the risk of being disbelieved, act as a deterrent." 57. The Court also indicated that ordinarily victims or their relatives would not come forward to file a false case. In support of such inference and presumption, the Court stated: "In view of these factors the victims and their relatives are not too keen to bring the culprit to books. And when in the face of these factors the crime is brought to light there is a built in assurance that the charge is genuine rather than fabricated. On principle the evidence of a victim of sexual assault stands on par with evidence of an injured witness. And when in the face of these factors the crime is brought to light there is a built in assurance that the charge is genuine rather than fabricated. On principle the evidence of a victim of sexual assault stands on par with evidence of an injured witness. Just as a witness who has sustained in injury (which is not shown or believed to be self-inflicted) is the best witness in the sense that he is least likely to exculpate the real offender; the evidence of a victim of a sex offence is entitled to great weight, absence of corroboration notwithstanding and while corroboration in the form of eye-witness account of an independent witness may often be forthcoming in physical assault cases, such evidence cannot be expected in sex offences, being regard to the very nature of the offence. It would therefore be adding insult to injury to insist on corroboration drawing inspiration from the rules devised by the courts in the western world (obeisance to which has perhaps become a habit presumably on account of the colonial hangover). We are therefore of the opinion that if the evidence of the victim does not suffer from any basic infirmity, and the probabilities-factors does not render it unworthy of credence, as a general rule, there is no reason to insist on corroboration except from the medical evidence, where, having regard to the circumstances of the case, medical evidence can be expected to be forthcoming, subject to the following qualifications: Corroboration may be insisted upon when a woman having attained majority is found in a comprising position and there is a likelihood of having levelled such an accusation on account of the instinct of sale + preservation. Or when the Probabilities-factor is found to be out of tune." 58. Or when the Probabilities-factor is found to be out of tune." 58. The above locus classicus in Bharwada Bhoginbhai Hirjibhai has been reiterated by the Supreme Court in various subsequent decisions, See: (1) T,K. Gopal alias Gopi v. State of Karnataka, 2002 (6) SCC 168, State of Karnataka v. Manjanna, 2000 (6) SCC 188, Kami Kishore v. State of H.P., 2000 (4) SCC 502, State of Punjab v. Gurmit Singh and others, 1996 (2) SCC 384, State of Maharashtra v. Chandra Prakash Keiual Chand Jain, 1990 (1) SCC 550, State of Rajasthan v. N.K. The Accused, 2000 (5) SCC 30, State of Himachal Pradesh v. Mango Ram, 2000 (7) SCC 224, State of A.P. v. Gangula Satya Murthy, AIR 1997 SC 1588, and other cases. 59. In Gangula Satya Murthy, the Court observed: "Before parting with the case we would like to point out that the Courts are expected to show great responsibility while trying an accused on charges of rape. They must deal with such cases with utmost sensitivity. The Courts should examine the broader probabilities of a case and not get swayed by minor contradictions or insignificant discrepancies in the statement of the witnesses, which are not of a fatal nature to throw out allegations of rape. This is all the more important because of late crime against women in general and rape in particular is on the increase. It is an irony that while we are celebrating womans right in all spheres, we show little or no concern for her honour. It is a sad reflection and we must emphasise that the Courts must deal with rape cases in particular with utmost sensitivity and appreciate the evidence in the totality of the background of the entire case and not in isolation." 60. Learned defence Counsel referred to a decision in Rahim Beg and Mahadeo v. State of U.P, AIR 1973 SC 343, wherein the accused was convicted for offences under Sections 376 and 302 of the Code and sentenced to death. The Supreme Court set-aside conviction and acquitted the accused. It was observed that when rape was alleged to have been committed on a girl of 10 to 12 years, who was virgin and whose hymen was intact, absence of injury on male organ of the accused would point his innocence. The Supreme Court set-aside conviction and acquitted the accused. It was observed that when rape was alleged to have been committed on a girl of 10 to 12 years, who was virgin and whose hymen was intact, absence of injury on male organ of the accused would point his innocence. It is not necessary to deal with Rahim Beg in view of the fact that the case was decided in altogether different set of facts. Similarly the decisions in Bashir v. State of jammu and Kashmir, 1991 (1) Crimes 675, Sadhu v. State, 1996 (1) Crimes 210 Allahabad High Court, Chander Bahadur v. The State, 1997 (2) Crimes 178, Delhi High Court, also decided on facts. 61. For the aforesaid reasons, in my opinion, the learned Sessions Judge has not committed any error which deserves to be corrected by this Court. On the basis of totality of facts and circumstances of the case and appreciating the evidence in its entirety, in my view, the learned Sessions Judge was wholly right and fully justified in believing the prosecution case and in holding the accused guilty for an offence punishable under Section 376 of the Code. 62. The question then remains about the sentence imposed on the accused. The learned Sessions Judge in paragraph 27 of the judgment recorded "adequate and special reasons" for awarding less than the minimum by observing thus: "I have heard the accused on the quantum of sentence. The offence under Section 376(1) of Indian Penal Code is punishable with imprisonment of either description for a term which shall not be less than seven years but which may be for life or for a term which may extend to 10 years and shall also be liable to fine. The proviso to Section 376 (1) IPC provides that the Court may for adequate and special reason to be mentioned in the judgment impose a sentence of imprisonment for a term of less than seven years. In the present case the question to be determined is that, do the age, walk of life, illiteracy and other circumstances warrant the benefit of proviso to be given to the accused? The accused happened to be a relative of the prosecutrix. The prosecutrix was about 15 years old. The age of the accused at that time was 21 years. In the present case the question to be determined is that, do the age, walk of life, illiteracy and other circumstances warrant the benefit of proviso to be given to the accused? The accused happened to be a relative of the prosecutrix. The prosecutrix was about 15 years old. The age of the accused at that time was 21 years. The accused belongs to poor walk of life to a remote village of the District. The facts and circumstances as discussed above revealed that it not a very bad case of rape. Though the accused had performed sexual intercourse with the prosecutrix when she was below 16 years of age, but he did not act with high-handedness and nor was armed with weapon and nor did act by a show of brute force. He did not even overawe the prosecutrix. In these circumstances, I am of the view that the accused deserves the benefits of the proviso attached to Section, 376 IPC.” 63. In my view, the learned Sessions Judge ought not to have awarded imprisonment of two years keeping in mind legislature mandate which provides minimum sentence of seven years unless there are "adequate and special reasons", for not awarding such minimum sentence. In the present case, the reasons put forward by the appellant-accused were neither adequate nor special. Hence, normal rule reflected in the legislative intent under Section 376 should have been followed. But certain facts cannot be overlooked by this Court. The incident was of March, 1994. The accused was convicted in July, 1997. About four years have elapsed. Moreover, no appeal was filed for enhancement of sentence by the State against award of imprisonment of two years on the accused. Further, when the appeal was admitted, no notice of enhancement was issued by this Court. In Criminal Miscellaneous Petition, the accused was ordered to be enlarged on bail. No doubt, it is open to this Court even now to consider the adequacy of sentence in the light of statutory provisions and several decisions to which my attention was invited, but I do not think it proper to exercise that power at this stage. Hence, though in my view, the sentence imposed on the accused was not sufficient and adequate, it would not be appropriate to interfere with the quantum of punishment after such a long period. Hence, though in my view, the sentence imposed on the accused was not sufficient and adequate, it would not be appropriate to interfere with the quantum of punishment after such a long period. I, therefore, do not interfere with that part of the order and confirm conviction and sentence recorded by the learned Sessions Judge. But I am constrained to observe that in the absence of adequate and special reasons, it was not open to the learned Sessions Judge to ignore the legislative mandate and impose sentence less than the minimum prescribed by the Code. I have dealt with this aspect recently in Jaspal Singh v. State of Himachal Pradesh (Criminal Appeal No. 259 of 1997, decided on 3/4th May, 2001). 64. In that case, I have referred to Madan Gopal Kakkad v. Naval Dubey and another, (1992) 3 SCC 204, wherein enhancing the sentence, the Supreme Court stated: "Before parting with the judgment, with deep concern, we may point out that though all sexual assaults on female children are not reported and do not come to light yet there is an alarming and shocking increase of sexual offences committed on children. This is due to the reasons that children are ignorant of the act of rape and are not able to offer resistance and become easy prey for lusty brutes who display the unscrupulous, deceitful and insidious art of luring female children and young girls. Therefore, such offenders who are menace to the civilised society should be mercilessly and inexorably punished in the severest terms.” 65. Reminding the duty on the part of Medical Officers, the Court observed: "We feel that Judges who bear the Sword of Justice should not hesitate to use that sword with the utmost severity, to the full and to the end if the gravity of the offences so demand.” 66. The learned Sessions Judge, I hope, will be careful in future and will pass appropriate orders in accordance with law. 67. For the foregoing reasons, the appeal deserves to be dismissed and is accordingly dismissed. As the appellant-accused is on bail, he will surrender to custody for undergoing the remaining part of the sentence. Order accordingly. Appeal dismissed.