JUDGMENT C.K. Thakker, CJ.—This appeal is filed by the appellant-accused against an order of conviction and sentence recorded by learned Sessions Judge, Sirmaur District at Nahan, on June 27, 1997, in Sessions Trial No. 61-N/7 of 1995. 2. The appellant original accused was charged for offences punishable under Section 376 and Section 306 of the Indian Penal Code (Code for short). The case of the prosecution was that on September 4, 1994, at about 8.00 or 9.00 a.m., one Nasreen, aged about 19 years, had gone to her field for taking grass. She was accompanied by her younger brother Intzar Ali. In the field, Nasreen went to nearby Khala (vacant land surrounded by bushes) to answer a call of nature. Accused Jaspal was stated to have employed as a Conductor in a private bus coming to Gulabgarh. When Nasreen was easing herself in the Khala after opening her Shalwar, the accused reached there, caught hold of her forcibly, made her to lie down and after removing his clothes, the accused committed forcible sexual inter-course. The victim tried to get herself released, but could not succeed. Accused also shut the mouth of Nasreen by his hand and hence she could not shout. Intzar Ali kept on calling Nasreen from the field. After freed from Jaspal, Nasreen came back. She met Nasir on the way, who had heard some noise. Nasreen stated nothing to Nasir because of shame. Nasreen went back to her home at Gulabgarh at about 12.00 or 12.30 hours in the noon along with Intzar Ali. At her house also, she did not tell anything to anyone. She lied down on the bed. At about 2.00 or 2.30 p.m., Sharif Ali, father of Nasir Ali and Sadiq Ali, ex-pradhan of the village came at the house of Nasreen. They had come to know about some incident and wanted to enquire the matter from Nasreen. Nasreen overheard the conversation between those persons. She, therefore, consumed some poisonous substance (an insecticide used for wheat preservation). After about half an hour, froth came out of her mouth and she started vomiting. At about 5.30 p.m., Nasreen was taken to Civil Hospital, Paonta Sahib, by Shakur Begum, wife of Nissar Ahmed and sister-in-law (Bhabhi) of Nasreen. Nasreen overheard the conversation between those persons. She, therefore, consumed some poisonous substance (an insecticide used for wheat preservation). After about half an hour, froth came out of her mouth and she started vomiting. At about 5.30 p.m., Nasreen was taken to Civil Hospital, Paonta Sahib, by Shakur Begum, wife of Nissar Ahmed and sister-in-law (Bhabhi) of Nasreen. On the way to the Hospital, Nasreen disclosed to Shakur Begum that she had been raped by accused Jaspal and, as she could not show her face to anyone, she had consumed poison. At Civil Hospital, Paonta Sahib, Nasreen was treated by Dr. Vijay Pabbi, who sent information to Police Station, Paonta Sahib, that Nasreen was admitted to Civil Hospital, with the history of poisoning. The Medico Legal Examination was conducted on the same day at about 7.00 p.m. by Dr. Sangita Pabbi, who had prepared Medico Legal Certificate. On receiving the information from the Hospital, Mahant Ram, Additional Station House Officer, Police Station, Paonta Sahib, obtained the opinion of Dr. Vijay Pabbi regarding physical and mental condition of Nasreen, as to whether she was fit to make statement. On Dr. Pabbis opinion to the effect that Nasreen was in a fit state of mind, Mahant Ram, recorded the statement of Nasreen, wherein she stated that she had been subjected to forcible sexual inter-course by the accused and out of shame, she had consumed poisonous substance. The statement was reduced in writing by Mahant Ram in presence of Dr. Vijay Pabbi. A thumb impression of Nasreen was also taken on the statement. Both, Mahant Ram and Dr. Pabbi also signed the statement. Nasreen died at about 2.30 a.m. on 5th September, 1994. Mahant Ram forwarded the statement of Nasreen recorded by him to police station, Paonta Sahib, where formal FIR was registered for an offence punishable under Section 376 read with Section 306 of the Code. It was alleged that the accused had committed an offence punishable under Section 376. Since the victim committed suicide because of forcible sexual inter-course by the accused, he was also charged for an offence, punishable under Section 306 of the Code. 3. The post mortem examination on the body of Nasreen was conducted by Dr. R.K. Dhiman, who had sent viscera of the deceased for chemical examination. After receiving the report, Dr. Dhiman opined that Nasreen died due to consumption of Alphosphide. 4. 3. The post mortem examination on the body of Nasreen was conducted by Dr. R.K. Dhiman, who had sent viscera of the deceased for chemical examination. After receiving the report, Dr. Dhiman opined that Nasreen died due to consumption of Alphosphide. 4. The accused was arrested on September 9, 1994 and he was also examined by Dr. Vijay Pabbi. As per medico legal certificate of Dr. Vijay Pabbi, the accused was capable of performing sexual inter-course. Clothes of the victim as well as of accused were sent for examination to Forensic Science Laboratory, Bharari in a sealed packet. A report was also produced on the record, which shows that the Salwar of Nasreen was having semen stains. Semen was also found on the vest and underwear of accused Jaspal. The accused was accordingly charged as stated above. 5. The case of the accused was of total denial. In his further statement recorded under Section 313 of the Code of Criminal Procedure, 1973, he asserted that he was totally ignorant regarding the occurrence and had not committed rape on Nasreen. According to him, he was falsely implicated by the witnesses, who had deposed against him due to political rivalry. The accused also tendered in evidence a document, which was a copy of an order passed by the Additional Chief Judicial Magistrate, Paonta Sahib, in some other case, wherein conduct of Dr. Sangita Pabbi with regard to her opinion in a rape case had been criticized by the Court. The accused also examined Dr. (Mrs.) Narang as a defence witness as DW1. 6. At the trial, the prosecution examined 10 witnesses in support of the allegations levelled against the accused. The learned Sessions Judge, on the basis of evidence of witnesses, and relying upon dying declaration of deceased Nasreen, in the light of medical evidence, came to the conclusion that it was proved beyond reasonable doubt by the prosecution that the accused Jaspal Singh had committed forcible sexual inter-course on the victim and thereby he had committed an offence punishable under Section 376 of the Code. He, therefore, convicted the accused for the said offence. 7. He, therefore, convicted the accused for the said offence. 7. On the charge under Section 306 of the Code, however, the learned Sessions Judge was of the view that from the entire evidence on record, it could not be successfully established by the prosecution that the accused Jaspal abetted the deceased to commit suicide and, hence, it could not be said that he had committed an offence. Accordingly, for the offence, punishable under Section 306 of the Code, the learned Sessions Judge acquitted the accused. 8. The learned Sessions Judge then heard the accused as well as his counsel on the quantum of sentence. The learned Judge noted that the accused was of 27-28 years of age and he had prayed for leniency. The learned Judge, however, in the order stated that minimum imprisonment of seven years has been provided under Section 376 and there were no adequate or special reasons for awarding less than the minimum sentence prescribed by the Code. He, accordingly, directed the accused to undergo rigorous imprisonment for seven years. He also ordered the accused to pay a sum of Rs. 1,000 as fine. In default thereof, the convict was asked to undergo further rigorous imprisonment for two months. 9. Being aggrieved by the above order of conviction and sentence, the appellant-accused has approached this Court. 10. The appeal was admitted on July 7, 1997 and on July 30, 1997, by an order in Cr.M.P. No. 169 of 1997, the accused was ordered to be enlarged on bail on his furnishing personal bond in the sum of Rs. 5,000 with one surety in the like amount to the satisfaction of learned Sessions Judge, Nahan. 11. For completion of record, it may be stated that when the matter came up for final hearing on July 6, 12000, a prayer for adjournment was made, which was granted by me. The matter, thereafter, appeared on Board on July 27, 2000 and a statement was made by Ms. Rama Mehta, learned Counsel appearing at that time that the accused had taken away papers and she was not appearing in the matter. In view of the fact that the appellant was enlarged on bail after conviction for an offence punishable under Section 376 of the Code, bailable warrant was ordered to be issued against the appellant in the sum of Rs. 2,000, returnable on August 18, 2000. In view of the fact that the appellant was enlarged on bail after conviction for an offence punishable under Section 376 of the Code, bailable warrant was ordered to be issued against the appellant in the sum of Rs. 2,000, returnable on August 18, 2000. On the returnable date, the accused appeared. Mr. Ramakant Sharma, learned Advocate stated that he had instructions to appear on behalf of the accused and he would be filing his power of attorney. He prayed for time, which was granted. 12. It may further be stated that an application (Cr.M.P. No. 442 of 2000) was filed under Section 311 of the Code of Criminal Procedure, 1973, for production of additional evidence and examination of witnesses, which was strongly opposed by the learned Deputy Advocate General. After hearing the learned Counsel for the parties, the said application was rejected by me on March 2, 2001 by recording reasons. The main matter was thereafter ordered to be placed for hearing. 13. I have heard Mr. Ramakant Sharma, learned Counsel for the appellant-accused and Mr. M.L. Chauhan, learned Deputy Advocate General, for the respondent-State. 14. Mr. Sharma contended that the trial Court has committed an error of fact as well as of law in convicting the appellant-accused under Section 376 of the Code. He submitted that from the prosecution evidence, it was not established and proved beyond reasonable doubt that the accused had committed the offence in question. He also contended that many persons were present at the scene of offence and though they were eye witnesses, they were not examined for the reasons best known to the prosecution. This, according to the learned Counsel, goes to the root of the matter and genesis of the prosecution becomes doubtful. In the absence of convincing reasons/grounds, for non-examination of eye witnesses, no conviction could have been recorded by the learned Sessions Judge. The Counsel also submitted that Nasir Ali was an eye-witness but he did not support the case of the prosecution. Though he was treated "hostile", nothing could be extracted by the learned Public Prosecutor by putting questions, which could be asked in cross-examination of a witness. There was thus no evidence worth the name to connect the accused with the crime. Mr. Though he was treated "hostile", nothing could be extracted by the learned Public Prosecutor by putting questions, which could be asked in cross-examination of a witness. There was thus no evidence worth the name to connect the accused with the crime. Mr. Sharma also submitted that reading the evidence of Smt. Shakur Begum, PW 6, it is clear that one Kausar was present at the time of incident. According to the Counsel, there was intimacy between Kausar and deceased Nasreen and a possibility could not be ruled out that said Kausar had committed rape on the victim and with a view to save him, Nasreen falsely implicated the accused. It was also urged that though it was the case of the prosecution that deceased Nasreen was in a position to make dying declaration and even though PW9, Mahant Ram, Investigating Officer was called by PW 1, Dr. Vijay Pabbi, for recording dying declaration, Executive Magistrate was not called and dying declaration was not recorded in his presence. Non-recording of dying declaration in presence of Executive Magistrate, in the submission of learned Counsel for the accused, created grave doubts and ought not to have been relied upon by the trial Court. If that evidence is ignored, there is nothing more to hold the accused guilty. The accused, therefore, is entitled to benefit of doubt and the order of conviction deserves to be quashed and set aside. Finally, it was urged that even if the Court is satisfied on the basis of evidence on record that the accused had committed the offence, punishment imposed upon the appellant is disproportionate, grossly excessive, uncalled for and deserves to be reduced. 15. Mr. Chauhan, on the other hand, supported the order of conviction and sentence passed by the trial Court. He submitted that from the evidence on record, it is clearly established that no person had witnessed the incident. It is, no doubt, true that Nasreen had gone to field along with her younger brother Intzar Ali, but the latter was not at the place of offence, where rape was committed. According to the prosecution, to answer a call of nature, Nasreen had gone at the nearby place where there were bushes. At that time, accused, who was a conductor in a private bus passed on the road. According to the prosecution, to answer a call of nature, Nasreen had gone at the nearby place where there were bushes. At that time, accused, who was a conductor in a private bus passed on the road. On seeing Nasreen all alone in a field, he got himself alighted from the bus, Went to Nasreen, caught hold of her and committed ghastly act. It was only thereafter that the victim came near her brother Intzar Ali and returned home. Mr. Chauhan also stated that when Nasreen was taken to the Hospital, in the way, she narrated the incident to Smt. Shakur Begum, PW-6, sister-in-law (Bhabhi) and the said fact had been deposed by PW 6 in her substantive evidence. Moreover, the victim had also made dying declaration in the Hospital. PW 1 Dr. Vijay Pabbi, who treated deceased Nasreen, stated in his deposition that the victim was in a fit state of mind to make dying declaration and, accordingly, PW 9 Mahant Ram was called and dying declaration was recorded. In that dying declaration, she had clearly and unequivocally accused the appellant as the person who had committed rape on her. Medical evidence supported the fact that sexual inter-course was committed on the person of deceased Nasreen. It was also established from the report of Forensic Science Laboratory (FSL). On the basis of evidence in its entirety, the trial Court held that the prosecution had proved the case against the accused beyond reasonable doubt and convicted the accused. The reasons recorded and conclusions arrived at by the trial Court cannot be said to be faulty and the appeal deserves to be dismissed. Regarding sentence Mr. Chauhan submitted that when minimum sentence as required by law had been imposed on the accused, it cannot be contended that by making such order, illegality has been committed by the trial Court, which requires interference by this Court. 16. I have been taken by the learned Counsel for the parties to the evidence on record. PW 1 Dr. Vijay Pabbi had stated in his deposition that on September 4, 1994 at about 7.00 p.m., Nasreen aged about 19 years was admitted in the hospital as a "poisoning case". The witness immediately informed S.H.O., Police Station vide a letter Ex. PA. He identified his signature and proceeded to state that in pursuance of the said letter, police had come to the Hospital. The witness immediately informed S.H.O., Police Station vide a letter Ex. PA. He identified his signature and proceeded to state that in pursuance of the said letter, police had come to the Hospital. At that time, according to PW 1, Nasreen was "well oriented to time and space, but she was feeling irritable". The witness further stated that the statement of Nasreen was recorded in his presence by PW 9 Mahant Ram and whatever she had stated was taken down in writing by Mahant Ram. It was also read over to her and she had marked her thumb impression on it. The witness, in token and in correctness, put his signature. He had stated that on September 5, 1994, at about 2.00 a.m., the victim died. 17. Though the witness was cross-examined on behalf of the accused, nothing could be taken out, which would destroy or damage his evidence in examination-in-chief. 18. The witness had also examined the accused on September 9, 1994, who had come with the history that he had allegedly raped a female before about five days i.e., on September 4, 1994. Observations of PW 1 were as under: "There was history of taking bath and changing of clothes after the incidence. Person given history of bathing and changing of clothes even on 8.9.1994 morning. General Physical Examination was within normal limits. General Examination of Body— Following injuries were noticed over the back of the patient: 1. Superficial abrasions present over back. Abrasions have been shown in the figure in the medical certificate. Examination of the External Genitals— No injury was detected around/on the external genital organs. External genitals were well developed. Smigma was absent. In my opinion, the person was well capable of performing a sexual inter-course. The nature of the injuries was simple and probable duration \yas within 7 days." 19. In cross-examination, PW 1 stated that the injuries found by him on the person of the accused could also be sustained by fall or coming into contact with stony surface or even boarding or alighting a bus. 20. There is evidence of PW 4 Dr. Sangita Pabbi. She stated that she had medically examined Nasreen on September 4, 1994 at about 8.15 p.m. She found the following injuries on external and genital examination: External Examination No evidence of fresh external injury on the body. Breasts, axillary hair, pubic hair developed. 20. There is evidence of PW 4 Dr. Sangita Pabbi. She stated that she had medically examined Nasreen on September 4, 1994 at about 8.15 p.m. She found the following injuries on external and genital examination: External Examination No evidence of fresh external injury on the body. Breasts, axillary hair, pubic hair developed. Genital Examination No evidence of recent injury. Patient having periods. Hymen—Tear present at 7 Oclock position. It was fresh as fresh blood was oozing from the margins of the tear. P/V Examination—On finger P/V examination, Uterus anteverted, normal size, fornix clear. Tenderness on examination present. Samples : 1 Public (sic) hair combing. 2. Vagina discharge sealed underwear (bluish grey) cloth vulval pad. Purpal salwar and Kamij. 3. Specimen seal. were taken in sealed packet and given to the police." 21. On receipt of Chemical Report, from the clinical examination and chemical analysis, the witness opined that there was evidence of vaginal penetration (recent). She had stated that sexual inter-course could not be ruled out. 22. In cross-examination, a question was put to her that her evidence was criticized by Additional Chief Judicial Magistrate, Paonta Sahib and strictures were passed against an opinion given by her in a rape case, which she denied. She also denied having been warned by the Court of Judicial Magistrate, (Court No. 2), Paonta Sahib. She refuted the allegation that she recorded wrong findings under political pressure.- 23. There is also evidence of PW 5 Dr. Rakesh Kumar Dhiman, who had conducted Post Mortem on the dead body of Nasreen. He had stated that deceased died due to Aluminium Phosphide poisoning. There was no cross-examination so far as the said witness is concerned. 24. In respect of incident, the prosecution relied upon the evidence of PW 2 Smt. Subrattan, mother of the deceased Nasreen. She had stated that on September 4, 1994, at about 8.00 or 9.00 a.m., the deceased had gone to cut grass in their field. Her son Intzar had also gone with Nasreen. Both of them came back at about 12.00, 12.30 noon. At 2.30 p.m., Sharif Ali, father of Nasir AH and Sadiq Ali, ex-pradhan of the village came to her house. At that time, Nasreen was lying on the bed in the adjoining room. Both Sharif Ali and Sadiq. Her son Intzar had also gone with Nasreen. Both of them came back at about 12.00, 12.30 noon. At 2.30 p.m., Sharif Ali, father of Nasir AH and Sadiq Ali, ex-pradhan of the village came to her house. At that time, Nasreen was lying on the bed in the adjoining room. Both Sharif Ali and Sadiq. Ali wanted to enquire about the matter from Nasreen, which she (Nasreen) overheard lying in the adjoining room and consumed poison. The witness had frankly stated that she was not aware of any incident, which had taken place. When froth came from the mouth of Nasreen, she suspected that Nasreen might have taken poison and, hence, she was taken to the Hospital. 25. In cross-examination, Subrattan stated that Sharif Ali and Sadiq Ali were not her relatives but they belonged to the same village community. She also admitted that she was not aware whether accused had in any way misbehaved with Nasreen and then stated that only God would know. She emphatically denied a suggestion that false case had been planted against the accused due to enmity. 26. Then there is evidence of PW 6 Smt. Shakur Begum, sister-in-law (Bhabhi) of deceased Nasreen. She deposed that she was residing separately but near the house of parents of Nasreen. At about 2.00 p.m., when she had gone to the house of her in-laws, she found Nasreen lying on the bed. After some time, she came to know that Nasreen had taken poison and was vomiting. The witness then took her to the Hospital. On the way Nasreen told her that Jaspal committed rape on her, whereas other person Kausar was also with him. 27. Strong reliance was placed by Mr. Sharma on the evidence of this witness and particularly that part of her examination-in-chief where she had stated that Kausar was present at the place of incident. It was submitted that Kausar was present at the time when the incident took place in the field and yet he was not examined by the prosecution. 28. Several questions were put in cross-examination of PW 6 regarding presence of Kausar and relation of Nasreen with that person (Kausar). The witness admitted that Kausar was from Gulabgarh, who was about 17-18 years of age and was a tailor-master. However, he was not related to the family of the witness. 28. Several questions were put in cross-examination of PW 6 regarding presence of Kausar and relation of Nasreen with that person (Kausar). The witness admitted that Kausar was from Gulabgarh, who was about 17-18 years of age and was a tailor-master. However, he was not related to the family of the witness. She admitted that some time Kausar used to visit the house of Nasreen as well as the house of the witness, but he was not usual visitor. She emphatically denied the suggestion that Nasreen had illicit relations with Kausar. She also stated that it was incorrect to suggest that Nasreen had told her that Kausar had raped her (Nasreen) and not Jaspal. According to PW 6, she had stated before the Police that Kausar was also standing when the accused committed rape on the victim. When confronted with the above statement, it was found that no such fact had been stated by her to the police. Finally, a suggestion was put to her that she was deposing falsely against the accused, which she denied. 29. PW 7 Nasir Ali, stated that on the day in question, he was in his field. A private bus came in which the accused was the conductor. The bus came on the-road and one passenger alighted from it. The witness heard some noise. He came on the road and found that Intzar Ali was standing there. In the meantime, Nasreen also came there. Both Nasreen and her brother went towards her house. 30. In view of the above version of the witness, which was not in conformity with the police statement, the public prosecutor was permitted to put questions, which can be put in the nature of cross-examination, thereby treating the witness as "hostile". The witness denied that the accused alighted from the bus and went towards Khala. Then he stated; "I cannot say, who was alighted from the bus. He may or may not be accused. (Emphasis supplied). He also stated that he did not see the accused committing rape with Nasreen nor running towards the Jungle. He also denied that he was deposing falsely with a view to save the accused. 31. In cross-examination by the learned Counsel for the accused, he stated that he knew Kausar, tailor-master, who was the resident of Gulabgarh. He stated that many persons assembled near Police Station, Paonta Sahib. He also denied that he was deposing falsely with a view to save the accused. 31. In cross-examination by the learned Counsel for the accused, he stated that he knew Kausar, tailor-master, who was the resident of Gulabgarh. He stated that many persons assembled near Police Station, Paonta Sahib. Rattan Singh, MLA, was also present there. He has not delivered any speech or lecture, but others belonging to Congress delivered lectures against administration and police. He also stated that he did not know whether one Devinder Singh, the then Dy. S.P. was transferred from Paonta Sahib because of the incident. 32. Finally, there is evidence of PW 9 Mahant Ram, who was Additional Station House Officer, Police Station, Paonta Sahib, at the relevant time, i.e. in September, 1994. He stated that on receipt of Rukka Ex. PA, from the Hospital, he went there. After getting the opinion of the Doctor (Ex. PJ) that Kumari Nasreen was fit to make a statement, he went to the hospital and recorded the statement Ex. PB in presence of PW 1 Dr. Vijay Pabbi and sent it for recording FIR. FIR Ex. PB/1 was recorded by ASI Bhagat Ram at Police Station, Paonta Sahib. He then conducted usual investigation by recording statements. 33. In cross-examination, PW 9 stated that he reached the hospital at Paonta Sahib at 8.00 p.m. on September 4,1994. The statement of deceased Nasreen Ex. P8 was recorded in the ward of the hospital. There were other patients in the ward. He then stated; "Kumari Nasreen had no difficulty for recording her statement". At the time of recording statement of Nasreen, Basir Mohd., maternal uncle of the deceased was present. He admitted that in the statement Ex. PB, it was not specifically mentioned that the thumb impression was of Nasreen, since the statement recorded was of Nasreen and the witness got her thumb impression on the said statement. In further cross-examination, he admitted that it was correct that on September 5, 1995, there was huge crowd at the police station. It was also correct that lectures were delivered against the police administration. The witness, however, said that he did not know whether Rattan Singh, the then MLA delivered lecture. One Khurana delivered lecture. He was said to be a Congress man. The witness had no knowledge if Deputy S.P. was transferred from Paonta Sahib because of the incident. It was also correct that lectures were delivered against the police administration. The witness, however, said that he did not know whether Rattan Singh, the then MLA delivered lecture. One Khurana delivered lecture. He was said to be a Congress man. The witness had no knowledge if Deputy S.P. was transferred from Paonta Sahib because of the incident. He admitted that death of Nasreen had raised hue and cry and enquiry was also made in the matter. The witness stated that during the investigation, it had come to his notice that there was litigation between the accused and Mohammedans of Gulabgarh. The accused had alliance with BJP, but he refused the suggestion that because of political rivalry, the accused was falsely implicated. 34. From the above evidence, certain facts are established beyond reasonable doubt. From sworn testimony of PW 1 Dr. Vijay Pabbi and PW 4 Dr. Sangita Pabbi, it was clear that on September 4, 1994, deceased Nasreen was admitted to the hospital. 35. Sexual inter-course was committed with her. The said fact was conclusively established from ocular evidence of the witnesses as also from two dying declarations of deceased Nasreen, one before PW 6 Smt. Shakur Begum (Bhabhi) and the other in the Hospital in presence of two witnesses, PW 1 Dr. Vijay Pabbi and PW 9 Mahant Ram. It is further corroborated from evidence of PW 4 Dr. Sangita Pabbi. She had specifically stated in her examination that from clinical examination and chemical analysis there was evidence of vaginal penetration (recent). It is also established from the Reports Ex. PN and PO of State Forensic Science Laboratory. 36. In my opinion, submission of Mr. Chauhan, deserves acceptance that there is nothing in the cross-examination of PW 1 Dr. Vijay Pabbi that deceased was not in a position to make dying declaration or her mental condition was such that she could not have made such statement. On the contrary, the medical evidence is clear that when Nasreen was brought to Hospital, she was "well oriented to time and space, but was feeling irritable". If she was physically capable and mentally fit to make a statement, which she had made and which was proved through deposition of PW 1 Dr. On the contrary, the medical evidence is clear that when Nasreen was brought to Hospital, she was "well oriented to time and space, but was feeling irritable". If she was physically capable and mentally fit to make a statement, which she had made and which was proved through deposition of PW 1 Dr. Vijay Pabbi as well as PW 9 Mahant Ram and if the learned Sessions Judge has placed reliance on the said dying declaration, in my considered opinion, it cannot be said that by doing so, the learned Sessions Judge committed an error either of fact or of law. If the dying declaration can be relied upon, and in my judgment, there is no reason why it cannot be relied upon, there is sufficient evidence that it was the accused, who had committed the crime in question and was liable to be convicted for an offence punishable under Section 376 of the Code. 37. From the evidence of PW 6 Smt. Shakur Begum also, the above fact is established. It is true that she had referred to presence of Kausar and according to her, the victim had told the witness about the presence of Kausar. But it cannot be overlooked that the incident took place in September, 1994 and the substantive evidence of witness was recorded in June, 1996, i.e. after one year and nine months. Human memory has its own limitations and in the light of hard reality of life, evidence of prosecution witnesses has to be considered. It is also pertinent to note that she had deposed that she had stated in her police statement about the presence of Kausar, but from the record, the omission is proved. Obviously, therefore, the witness had committed an error in referring and giving the name of Kausar. 38. In any case, dying declaration of Nasreen in the hospital in presence of PW 1 Dr. Vijay Pabbi and PW 9 Mahant Ram inspires confidence. Nothing could be extracted from the cross-examination of these two witnesses. It was the direct version of the victim herself taken down in writing by PW 9 Mahant Ram in presence of PW 1 Dr. Vijay Pabbi and having thumb impression of the deceased Nasreen. Vijay Pabbi and PW 9 Mahant Ram inspires confidence. Nothing could be extracted from the cross-examination of these two witnesses. It was the direct version of the victim herself taken down in writing by PW 9 Mahant Ram in presence of PW 1 Dr. Vijay Pabbi and having thumb impression of the deceased Nasreen. In my opinion, therefore, the learned Sessions Judge was wholly right and fully justified in relying on the said dying declaration and holding the appellant culprit for the offence with which he was charged. 39. Mr. Chauhan is also right in submitting that even from the evidence of PW 7 Nasir AH, "hostile" witness that somebody alighted from the bus near the field where victim was easing herself. Though he did not fully support the case of the prosecution, but he had stated that the person who alighted from the bus "may or may not be the accused". Thus, from the evidence of PW 7 also, it is proved that the accused was conductor in a bus. One person alighted from the bus and went towards Khala. 40. It was contended by Mr. Sharma that due to political rivalry, the accused was falsely implicated. For that he relied upon admission in cross-examination of prosecution witnesses that the accused was a worker of one political party (BJP) and the workers of the opposite party (Congress) including MLA made demonstrations and demanded enquiry into the matter. He also submitted that after the incident, some police officers were transferred. All these facts would go to show that the accused, was made a scapegoat. In my opinion, however, the learned Sessions Judge was right in observing that ordinarily a person will not be charged for such a serious offence because of political differences. He was right in commenting that the accused was not a leader of any consequence. In my judgment, there was no earthly reason on the part of victim Nasreen, who was a girl of about 19 years, who had nothing to do with politics or political parties, to falsely implicate the accused as a person who had committed rape on her and to commit suicide. Similarly, there was no reason on the part of the parents of Nasreen to allow sacrifice of their daughter to provide a ground to the political party. Similarly, there was no reason on the part of the parents of Nasreen to allow sacrifice of their daughter to provide a ground to the political party. As observed by the Supreme Court in Bharwada Bhoginbhai Hirjibhai v. State of Gujarat, AIR 1983 SC 753, in Indian society, no such allegations will be made by the victim or her family members by falsely involving an innocent person. 41. In Bharwada Bhoginbhai Hirjibhai, the Apex Court stated : "In the Indian setting, refusal to act on the testimony of a victim of sexual assault in the absence of corroboration as a rule, is adding insult to injury. Why should the evidence of the girl or the woman who complains of rape or sexual molestation be viewed with the aid of spectacles fitted with lenses tinged with doubt, disbelief or suspicion? To do so is to justify the charge of male chauvinism in a male dominated society. We must analyze the argument in support of the need for corroboration and subject it to relentless and remorseless cross-examination. And we must do so with a logical, and not an opinionated, eye in the light of probabilities with our feet firmly planted on the soil of India and with our eyes focussed on the Indian horizon. We must not be swept off the feet by the approach made in the western world which has its own social milieu, its own social mores, its own permissive values, and its own code of life. Corroboration may be considered essential to establish a sexual offence in the backdrop of the social ecology of the western world. It is wholly unnecessary to import the said concept on a turn-key basis and to transplant it on the Indian soil regardless of the altogether different atmosphere, attitudes, mores; responses of the Indian society, and its profile. The identifies of the two worlds are different. The solution of problems cannot therefore be identical. It is conceivable in the western society that a female may level false accusation as regards sexual molestation against male for several reasons such as:— (1) The female may be a gold digger and may well have an economic motive to extract money by holding out the gun of prosecution or public exposure. It is conceivable in the western society that a female may level false accusation as regards sexual molestation against male for several reasons such as:— (1) The female may be a gold digger and may well have an economic motive to extract money by holding out the gun of prosecution or public exposure. (2) She may be suffering from psychological neurosis and may seek an escape from the neurotic person by phantasizing or imagining a situation where she is desired, wanted, and chased by males. (3) She may want to wreak vengeance on the male for real or imaginary wrongs. She may have a grudge against a particular male, or males in general, and may have the design to square the account. (4) She may have been induced to do so in consideration of economic rewards, by a person interested in placing the accused in a compromising or embarrassing position, on account of personal or political vendetta. (5) She may do so to gain notoriety or publicity or to appease her own ego or to satisfy her feeling of self-importance in the context of her inferriority complex. (6) She may do so on account of jealousy. (7) She may do so to win sympathy of others. (8) She may do so upon being repulsed/ 42. Considering Indian conditions, 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. 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 of 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 of shame on account of the upbringing in a tradition bound society where by 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." 43. Mr. Sharma, learned Counsel for the accused contended that the prosecution, without assigning any reason whatsoever failed to examine three important witnesses, (i) Intzar AH, brother of victim Nasreen, (ii) Sharif Ali, and (iii) Sadiq Ali. Mr. Sharma, learned Counsel for the accused contended that the prosecution, without assigning any reason whatsoever failed to examine three important witnesses, (i) Intzar AH, brother of victim Nasreen, (ii) Sharif Ali, and (iii) Sadiq Ali. Now, so far as Intzar Ali is concerned, though witnesses have not stated as to what was his age, it has come on record in the dying declaration of Nasreen that she had gone to her field along with her younger brother (Chotta Bhai). It is thus clear that he was less than 19 years of age. Moreover, it is proved from the prosecution evidence that he was not an eye witness. Nasreen had left Intzar AH to ease herself and when Intzar Ali could not find her for some time, he raised shouts. Thus, Intzar Ali neither witnessed the incident nor was aware about the offence alleged to have been committed by the accused. In my opinion, therefore, non-examination of Intzar Ali does not affect the genesis of the prosecution. 44. Similarly, non-examination of Sharif Ali and Sadiq Ali was equally irrelevant and immaterial, the reason being that they were not present in the field at the time of commission of crime. As they came to know about some incident, with a view to inquire into the matter, they went to the residence of Nasreen and met her parents. Non-examination of those witnesses, therefore, was of no consequence and does not adversely affect the prosecution case. 45. Mr. Sharma then contended that dying declaration of Nasreen had not been recorded in presence of Executive Magistrate. It was, therefore, not admissible in evidence and no reliance can be placed on it. Referring to a decision of the Supreme Court in Paparambaka Rosamma and others v. State of A.P., (1999) 7 SCC 695, it was urged that when conviction is solely based on the dying declaration, the Court has to consider carefully such declaration and the evidence of the witnesses supporting it, such as the Magistrate, who recorded the statement and the Doctor, who examined the deceased in the hospital. If there is any doubt, the benefit should be given to the accused. 46. It is true that dying declaration was not recorded in presence of Executive Magistrate, but it is equally true that after the incident and consumption of poisonous substance by Nasreen, she was admitted to hospital. PW 1 Dr. If there is any doubt, the benefit should be given to the accused. 46. It is true that dying declaration was not recorded in presence of Executive Magistrate, but it is equally true that after the incident and consumption of poisonous substance by Nasreen, she was admitted to hospital. PW 1 Dr. Vijay Pabbi examined her. According to him, Nasreen was in a position to make statement. He, therefore, informed PW 9 Mahant Ram and dying declaration of Nasreen was recorded by Mahant Ram in presence of Dr. Vijay Pabbi. The statement was read over to her. Thumb impression of Nasreen was also obtained on it. In these circumstances, it cannot be said that dying declaration was not admissible in evidence. 47. In Bhagirath v. State of Haryana, AIR 1997 SC 234, a dying declaration of the victim was recorded by the Head Constable in absence of the Magistrate. It was held to be admissible in evidence and it was observed that such dying declaration could be relied upon. 48. Recently, in Kans Raj v. State of Punjab and others, (2000) 5 SCC 207, it was ruled by the Court interpreting the provisions of Section 32 of the Evidence Act, 1872 that statement of a person "as to any of the circumstances which resulted in his death" would be admissible in evidence after his death. Only thing is that the statement must have close and proximate relation with the actual occurrence. Proximity would depend on the circumstances of each case. 49. In Ramawati Devi v. State of Bihar, AIR 1983 SC 164, it was contended that the lower Courts were wrong in placing reliance on the statement of the deceased, which had been made before the Police Officer and recorded by him and not by a Magistrate. Reliance was placed on earlier decisions of the Court in Keshav Ganga Ram Navge v. State of Maharashtra, AIR 1971 SC 953 and K. Ramachandra Reddy v. Public Prosecutor, AIR 1976 SC 1994. 50. Negativing the contention and upholding the order of conviction and sentence, the Supreme Court observed : "In our opinion neither of these two decisions relied on by the appellant is of any assistance in the facts and circumstances of this case. These decisions do not lay down, as they cannot possibly lay down, that a dying declaration which is not made before a Magistrate, cannot be used in evidence. These decisions do not lay down, as they cannot possibly lay down, that a dying declaration which is not made before a Magistrate, cannot be used in evidence. A statement, written or oral, made by a person who is dead as to the cause of his death or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that persons death comes into question, becomes admissible under Section 32 of the Evidence Act. Such statement made by the deceased is commonly termed as dying declaration. There is no requirement of law that such a statement must necessarily be made to a Magistrate. What evidentiary value or weight has to be attached to such statement, must necessarily depend on the facts and circumstances of each particular case. In a proper case, it may be permissible to convict a person only on the basis of a dying declaration in the light of the facts and circumstances of the case. In the instant case, the dying declaration has been properly proved.” (Emphasis supplied) 51. In my view, the principle laid down in the above case applies to the case on hand. In the instant case, there were two dying declarations. First declaration was made by deceased Nasreen to PW 6 Smt. Shakur Begum (Bhabhi) when she was taken to the hospital by PW 6. In the said statement, deceased Nasreen had specifically stated to PW 6 that as rape was committed on her by the accused, she could not show her face to others and hence, she had consumed poison. 52. When she was admitted to hospital, her physical as well as mental condition was such that she could make a statement. This was proved by substantive evidence of PW 1 Dr. Vijay Pabbi, whose testimony had not been shaken in cross-examination. He called PW 9 Mahant Ram, who had recorded dying declaration of deceased Nasreen in his presence. It was then read over to Nasreen and her thumb impression was obtained. It was also igned by both the witnesses. As there is no requirement of law that only in presence of Executive Magistrate, dying declaration can be recorded, it is for the Court to consider the circumstances whether such a declaration can be relied upon. 53. It was then read over to Nasreen and her thumb impression was obtained. It was also igned by both the witnesses. As there is no requirement of law that only in presence of Executive Magistrate, dying declaration can be recorded, it is for the Court to consider the circumstances whether such a declaration can be relied upon. 53. In the instant case, in my view, the learned Sessions Judge was right in holding that the dying declaration was of Nasreen, it was recorded by PW 9 Mahant Ram in presence of PW 1 Dr. Vijay Pabbi and she was in a fit state of mind when the dying declaration came to be recorded. If it is so, the conclusion is inescapable that such dying declaration is admissible in evidence. The contention of the learned Counsel that dying declaration of Nasreen was not admissible in evidence and could not have been relied upon, therefore, must be rejected. 54. In my opinion, therefore, none of the contentions raised by Mr. Sharma is well founded. The learned Sessions Judge has not committed an error in convicting the accused under Section 376 of the Code. I see no ground to interfere with the judgment and order passed by the trial Court. 55. The question then is regarding sentence imposed on the accused. Mr. Sharma submitted that this is a fit case to show leniency by the Court. According to him, the accused at the time of commission of offence was below thirty years of age. He is poor and as such is compelled to serve as conductor with a private bus owner. Even if the Court is satisfied that he has committed an offence, taking into account the facts and circumstances that the incident took place in 1994 and though he was convicted by the trial Court, he was released on bail by this Court in July, 1997, mercy may be shown on him by reducing the sentence. 56. I must frankly admit that I am unable to accede even that prayer made by the accused. The learned Sessions Judge, in my opinion, was fully justified in observing that the Legislature has provided minimum sentence of rigorous imprisonment of seven years for commission of an offence of rape. It is undoubtedly true that the Court has been empowered to award punishment less than the minimum for "adequate and special reasons". The learned Sessions Judge, in my opinion, was fully justified in observing that the Legislature has provided minimum sentence of rigorous imprisonment of seven years for commission of an offence of rape. It is undoubtedly true that the Court has been empowered to award punishment less than the minimum for "adequate and special reasons". In the opinion of the learned Sessions Judge, however, there were no such "adequate and special reasons" for not adhering to the Rule and to exercise power of reduction of sentence and accordingly, he imposed minimum sentence on the accused. To me, it appears that the learned Sessions Judge was right in doing so. Reasons advanced by the learned Counsel for the appellant before me cannot be termed "adequate and special reasons." 57. My attention was rightly invited by Mr. Chauhan, learned Deputy Advocate General, to the decisions of the Supreme Court wherein the Apex Court indicated that the Court should be sensitive in such matters, particularly when, crime on women and rape in particular is on the increase. 58. In State of Andhra Pradesh v. Bodem Sundara Rao, (1995) 6 SCC 230, the Apex Court stated "In recent years, we have noticed that crime against women are on the rise. These crimes are an affront to the human dignity of the society. Imposition of grossly inadequate sentence and particularly against the mandate of the legislature not only is an injustice to the victim of the crime in particular and the society as a whole in general but also at times encourages a criminal. The courts have an obligation while awarding punishment to impose appropriate punishment so as to respond to the societys cry for justice against such criminals. Public abhorrence of the crime needs a reflection through the courts verdict in the measure of punishment. The courts must not only keep in view the right of the criminal but also the rights of the victim of crime and the society at large while considering imposition of the appropriate punishment. The heinous crime of committing rape on a helpless 13/14 year old girl shakes our judicial conscience. The offence was inhumane." (Emphasis supplied) 59. The courts must not only keep in view the right of the criminal but also the rights of the victim of crime and the society at large while considering imposition of the appropriate punishment. The heinous crime of committing rape on a helpless 13/14 year old girl shakes our judicial conscience. The offence was inhumane." (Emphasis supplied) 59. Again, dealing with the case of rape and its traumatic effect on a rape victim in State of Punjab v. Gurmit Singh, (1996) 2 SCC 384, the Court observed : Of late, crime against women in general and rape in particular is on the increase. It is an irony that while we are celebrating womens rights in all spheres, we show little or no concern for her honour. It is a sad reflection on the attitude of indifference of the society towards the violation of human dignity of the victims of sex crimes. We must remember that a rapist not only violates the victims privacy and personal integrity, but inevitably causes serious psychological as well as physical harm in the process. Rape is not merely a physical assault it is often destructive of the whole personality of the victim. A murderer destroys the physical body of his victim, a rapist degrades the very soul of the helpless female. The courts, therefore, shoulder a great responsibility while trying an accused on charges of rape. They must deal with such cases with utmost sensitivity.” (Emphasis supplied) 60. Similar observations are found in a recent decision of the Supreme Court in State of Karnataka v. Krishnappa, (2000) 4 SCC 75. 61. In Madan Gopal Kakkad v. Naval Dubey and another, (1992) 3 SCC 204, sexual assault was committed by a medical graduate on a minor girl of eight years, who had to suffer mental torture. The accused was convicted by the trial Court for an offence of rape, but the High Court converted conviction under Section 376 into Section 354 and reduced the sentence already undergone by showing sympathy. The matter was taken to the Supreme Court by the complainant, father of the victim* girl praying for convicting the accused under Section 376 of the Code. It was also contended that misplaced sympathy was shown towards the accused by the High Court and the sentence imposed on him was wholly inadequate and insufficient. The matter was taken to the Supreme Court by the complainant, father of the victim* girl praying for convicting the accused under Section 376 of the Code. It was also contended that misplaced sympathy was shown towards the accused by the High Court and the sentence imposed on him was wholly inadequate and insufficient. Upholding the contention and enhancing the sentence to seven years, the Court observed : "57. 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." Finally; the Court stated : "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." 62. In the instant case, once it is held that the prosecution has proved beyond reasonable doubt that it was the accused and accused alone, who had committed the crime and, hence, he was liable to be convicted for an offence under Section 376 of the Code and there are no "adequate and special reasons" not to award minimum sentence, it is the duty of the Court to impose punishment as prescribed under Section 376 of the Code. It is true that the appellant has not been convicted for an offence under Section 306 of the Code. The fact, however, remains that, from the prosecution evidence as well as from the dying declaration of victim Nasreen, which has been believed by the Sessions Court as well as by this Court that, it was because she was raped by the accused and was not in a position to show her face to this world that she was compelled to take poison. An unmarried girl of less than twenty years of age thus lost her life. An unmarried girl of less than twenty years of age thus lost her life. Considering totality of facts and circumstances, the sentence imposed on the accused cannot be said to be harsh, excessive or disproportionate. The submission for reduction of sentence, therefore, has no force and is hereby rejected. 63. For the foregoing reasons, the appeal deserves to be dismissed and is, accordingly, dismissed. 64. The learned Counsel for the appellant-accused prays that since the appellant is on bail, some time may be granted to him to surrender. In my opinion, the prayer is reasonable. The appellant-accused will surrender latest by July 16, 2001. Appeal dismissed.-