D. K. TRIVEDI, J. ( 1 ) APPELLANT-ORIGINALACCUSEDOF Special (Atro.) case No. 15 of 1996 has challenged the judgment andorder ofconvictionandsentencerecordedbythelearned addl. Sessions Judge, Surat bywhichthelearnedtrial judgehasconvictedthe accused for the offences under sections 363, 366 and 376 of I. P. C. andundersection 3 (1) (II) of Atrocities Act and after hearing on the point ofsentence, the learned trial Judge has passed order of sentence for R. I. for 7 years and fine ofrs. 1000/-in default S. I. for 3 months for the offence under Section 363 of the I. P. C. and sentence for R. I. for10years and fineofrs. 1500/- in default S. I. for 3 months for the offence under Section 366 of the I. P. C. and sentence for R. I. for 10 years and fine of Rs. 2000/-indefault s. I for three months for the offence under Section 376 of the I. P. C. and sentence for R. I. for 6 months and fine of Rs. 500/- in default S. I. for 1 month for theoffence undersection3 (1) (II)of the Atrocity Act and all the sentencesimposedonhimwereorderedtorun concurrently. Appeal filed by appellant accused in which theprayerforbail was considered when the matter was notified for admission. As per order dated 28. 8. 1998 the division Bench has admitted the Appeal and the prayer for bail wasnotpressed. Accordinglythisappealis notified for final hearing. ( 2 ) WEHAVEHEARD Mr. Saurin Shah, learned advocate, whoappearedfortheappellantandmr. Abichandani, learned Addl. P. P. , who appeared for the respondent State. Mr. Shahappearing for the appellant has vehemently urged that the learnedtrialjudgehascommittederrorin appreciatingtheevidencewiththeresultthatthe learned trial Judge hasacceptedtheevidenceofthe prosecutionwitnessesand held that the prosecution has established the casebeyondreasonabledoubtandthe accusedisconvictedfortheaboveoffences,which resulted into miscarriage of justice. He next urged that as found from the evidenceofvictimsunita,beinga minor,sheinturn has stated that she was not knowing theaccusedandthelearnedtrialjudgehaswhile appreciatingherevidencenot properly looked into the aspect that asfoundfromherevidenceshehasnot identifiedtheaccusedevenaftertheaccusedwas arrested and no identificationparadewasarrangedin which Sunitahasidentifiedthe accused. According to mr. Shah that there is every possibility ofmisidentity oftheaccusedandaccordingtomr. Shahthatthe conviction recorded by the learned trialjudgedeserves tobesetasidebygivingbenefitofdoubt to the appellant accused. Mr. He next urged that as found from the evidenceofvictimsunita,beinga minor,sheinturn has stated that she was not knowing theaccusedandthelearnedtrialjudgehaswhile appreciatingherevidencenot properly looked into the aspect that asfoundfromherevidenceshehasnot identifiedtheaccusedevenaftertheaccusedwas arrested and no identificationparadewasarrangedin which Sunitahasidentifiedthe accused. According to mr. Shah that there is every possibility ofmisidentity oftheaccusedandaccordingtomr. Shahthatthe conviction recorded by the learned trialjudgedeserves tobesetasidebygivingbenefitofdoubt to the appellant accused. Mr. Shah next urged that inlightof theevidenceof victim Sunita, who is a minor between 9 to 10 years, and as found from herevidencewhereinat thetimeof committing rape on her on the fateful night according to her she had sustained some injuriesonthe backportion of her body and further that she has also tried to assault the accused person,who had committed rape and admittedly as found from the medical evidence, there is no injury found on victim Sunita nor anyinjury is found on the accused person and this is a case in which at least the accused deserves tobeentitledfor benefit ofdoubt. Henext urged that there is also a delay in lodging the FIR as according to theprosecution case,the incident in question has occurred on the night i. e. on 9. 12. 1995 after 8. 30 P. M. and the incidenthas occurredinthesim of the field of Kudsad village and the complaint was lodged before the police on 12. 12. 1995. Mr. Shah has accordingly urged that there is adelayfor about2daysin not disclosing the offence and that is fatal totheprosecution. Henexturgedthatthe independentevidenceofwitness Chhotubhai examined by the prosecution asp. W. 6alsodoesnotsuggestthat victimsunitahasdisclosedbeforehimthat she was subjected to rape by the accused person at the field when she reached at the field where Chhotubhai was workingin afieldwith other labourers and even victim Sunita has not disclosed any incident of rape on her by theaccused person. Accordingtomr. Shahthatthere is no other evidence corroborating the evidence ofsunitabywhich theevidenceofsunita is created doubt and that doubt must be available to the accusedbygivingbenefitof doubt. Mr. Shahhasalsowhiletaking us through the evidence and even with regard to the medical evidence and the serologists report, submitted that theevidenceis notcompletetoconnecttheaccusedand accordingly prayed that the Appeal filed by theaccusedbeallowed andatleastbyallowingtheappealtheorderof conviction and sentence recordedbythelearnedtrial judge besetasidebygivingbenefitofdoubt. Shahthatthere is no other evidence corroborating the evidence ofsunitabywhich theevidenceofsunita is created doubt and that doubt must be available to the accusedbygivingbenefitof doubt. Mr. Shahhasalsowhiletaking us through the evidence and even with regard to the medical evidence and the serologists report, submitted that theevidenceis notcompletetoconnecttheaccusedand accordingly prayed that the Appeal filed by theaccusedbeallowed andatleastbyallowingtheappealtheorderof conviction and sentence recordedbythelearnedtrial judge besetasidebygivingbenefitofdoubt. He alternatively submitted thatatleastlookingtothe factsofthepresent case, the sentence imposed by the learned trial Judge on allthecountsdeservestobe modifiedbyreducingthe same as according to him that for the offences punishable under Sections 366 and 376 of the I. P. C. , the learned trial Judge has imposedsentence ofrifor10yearsandthe same be modified to some extent and he requested that thesentenceundergonebe passed. ( 3 ) MR. ABICHANDANI, learned Addl. P. P. , has vehemently urgedthatthisis a case in which a minor girl Sunita aged about 9 years was subjected to rape on the nightof 9. 12. 1995. Shewashelpless as her father has gone to purchase rice for which they are required to preparethe food toeatbywayofdinner. Younger brother was playing near the hut of the victim andtheaccusedhad withtheintentionto commit offence took her from her hut by tempting her that he will providebread (Rotla ). By tempting the victim Sunita in absence of her father at thehouse,theaccused has taken her at a field in the village at a far distance from thehutofthevictim. Notonlythataftertakingsunitain the field, the accused has committed heinous crime ofcommittingrape. Mr. Abichandanihas also taken us through the evidence of victim Sunita P. W. 2, who in turn has deposed thatshe wassubjectedtorapebytheaccused on the fateful night. Mr. Abichandani has also takenusthroughthe medical evidence wherein as per the medical evidence when sunita wastakenforexamination before Dr. Bhavnaben rajan P. W. 3, the Doctor has examinedheron12. 12. 1995 and she was also admitted as an indoor patient for 5 days whereeventheprivatepartof Sunita was also badly damaged and the Doctor has also applied about 4stitches on her. Dr. Anjanaben Dighe P. W. 4, who is also working asassistantprofessorinthehospital,hasalso corroborated the evidenceofdr. Bhavnaben P. W. 3. The medical certificateofinjuriesfoundonsunitaare proved which isatexh. 9. Mr. Abichandanihas accordingly urged thatevenasfoundfromthecross examinationof the medical officers, there is hardly any suggestion is made for which one can consideraboutthe defence of the accused. According to Mr. Dr. Anjanaben Dighe P. W. 4, who is also working asassistantprofessorinthehospital,hasalso corroborated the evidenceofdr. Bhavnaben P. W. 3. The medical certificateofinjuriesfoundonsunitaare proved which isatexh. 9. Mr. Abichandanihas accordingly urged thatevenasfoundfromthecross examinationof the medical officers, there is hardly any suggestion is made for which one can consideraboutthe defence of the accused. According to Mr. Abichandani that when the learned trial Judge has accepted the prosecution caseandthefacts as established from the evidence of victimsunita,thelearnedtrialjudgehasrightly believedtheprosecutioncase and once the prosecution has established the case even through the victim andthe medicalevidenceled by the prosecution of Dr. Bhavnaben p. W. 3 and Dr. Anjanaben Dighe P. W. 4, there ishardlyany necessarytoevenconsiderforcontentionraised by mr. Shah to give any benefitofdoubttotheaccused. Mr. Abichandani has also placed reliance upon the evidence ofdoctor attached to the Hospital at Surat by which the accusedwasexaminedmedicallyon12. 12. 1995and serologistsreport and the other report produced on the record of the case, and according to Mr. Abichandanithat inviewofthefindingrecorded by the learned trial judge, this is not a case in which this court is required to interfere even bygivingbenefitofdoubttothe accused. Inrespectofthe contention of Mr. Shah for reducing the sentence,hecontendedthatonceitis establishedbytheprosecutionthattheaccused was responsible for committing rape on a minorgirlsunita, whoiscompletelyinnocentand uneducated and she was staying with her father as she has also lost hermother, noleniencyis required to be shown on the accused even by reducing the sentenceassubmittedbymr. Shahand accordinglyprayedthat the Appeal filed by the accused be dismissed and confirmtheorderofconvictionand sentence recordedbythelearnedtrial Judge. He has also submitted before us by placingthejailstatement whichshowsthatthe accused was released on temporary bail for 28 days and he wastosurrendertothejail within time. However, he has absconded and he was only found and arrested by the police on 8. 3. 2003 andthereby hehas committed another offence which was registered at olpad Police Station undern. C. C. R. No. I-2/2003andthe accusedwas tried before the Magistrate in Criminal Case no. 507 of 2004 and the learned Judicial Magistrate, First classatolpadhasasperjudgmentandorderof convictiondated 30. 1. 2004 convicted the accused for the offence, namely, for Section 51 (A) (B) of theprisonact and ordered to suffer S. I. for 6 months and the sentence imposedinthesaidcaseis ordered to start running after the sentence in the present case is over. ( 4 ) INLIGHTOFTHE submissions made before us, we have to consider that whether the learned trial Judge has committed any error in appreciating the evidenceledby theprosecutionandfurtherthatwhether the accused deserves any benefit of doubt ascontendedbymr. Shah. ( 4 ) INLIGHTOFTHE submissions made before us, we have to consider that whether the learned trial Judge has committed any error in appreciating the evidenceledby theprosecutionandfurtherthatwhether the accused deserves any benefit of doubt ascontendedbymr. Shah. It is an admitted fact that victim Sunita at the relevant time wasminoraged 9 to 10 years. She is the daughter of Bhangadiya Jelhiyapadvip. W. 5andbhangadiyawas doing labourworkatthe field of Jayantibhai. He was having a small hut at the sim of villagekudsadandhe was stayingwithhisdaughtersunita. Sunita was the daughter ofhisfirstwifeandhisfirstwifehad remarried withsomeotherperson. Bhangadiyahad accordingly married with another woman named Sumabenand out of the marriage with Sumaben, a boy named Shravan was born. Sumabenhadaccidentlydied while doing labour work at Bardoli due to falling of the wall. Afterthat incident,inwhichsumabenhaddied,thewitness bhangadiya, his daughter Sunita and his son Shravanwere staying inahutinvillagekudsad. Bhangadiya was originally ofvillageranipur. Asfoundfromhis evidenceabout the incident, which has occurred before 2 years of recording of his evidence, it is foundthaton thatdayinthe evening he returned to his house after completing his work. At that timehisdaughtersunita and hissonshravanwereplaying outside his hut. He returned at the house in thenightatabout8. 0p. M. When he returned his son Shravan was found. However, his daughter wasnotfound. He prepared the bread and went to find out his daughter Sunita. Oninquirytonearby sunitawasnotfoundandaccordinglyhe and his son shravan has taken dinner and went to bed. On that day at midnight Sunita was brought by Chhotubhai and Jemu Devji. At that time his daughter Sunita has informedhimabout theincident of taking away by accused towards the field and informed him about the incident of rape on her by the accused. Sunita has also informed herfatherthatthe person, who has committed rape on her, has also shown the knifeandaskedhernot to tell this story to anyone. Sunita has also informed her fatherwhattranspiredat thehandsofthe accused and Sunita had also told that she is knowing that person. On the next day morning they went to find out the accused in the nearbyareaandhe hastoldhisdaughter Sunita that if she finds accused then show him to him. On the nextdayonepersonwas foundnear the water tank and Sunita has identified that man who is thepersonwhohascommittedrape. The witness Bhangadiyahas asked that man to stop. However, he has left the place. Accordingtothewitnessthat person,whowasshownbyhis daughter near the water tank, was the person named Iqbal Garasiya, whoisknown as "bulu". On the nextdayonepersonwas foundnear the water tank and Sunita has identified that man who is thepersonwhohascommittedrape. The witness Bhangadiyahas asked that man to stop. However, he has left the place. Accordingtothewitnessthat person,whowasshownbyhis daughter near the water tank, was the person named Iqbal Garasiya, whoisknown as "bulu". Thewitnesshas taken his daughter to the police station at Olpad with the cloth of the victim worn at the relevant time of committing offence, namely, frock and knicker, which he has produced before the police. He has also identified the muddamal frock and knicker before the court. After filing complaint Sunitawastakento civilhospitalatsurat for treatment where Sunita was admitted as indoor patient for about 5 to 6days. His daughtersunitahasalso shown the place of offence to the police. 4. 1 in cross examination it is found that at thesim ofthevillagekudsadthere are about 50 to 100 small huts where labourers arestaying. Mostlyinthis village Adivasis are staying. Theportionin front of the hut is found open and these huts are standing onone line. Nearby his hut, there is a hut of Shri Chhotubhai and Jemu, who are related to him. When hehadgoneto villagekudsadat that time there was darkness and when he also returned to hishuttherewasalsodarkness. Afterhereturned at the hut, he made inquiry of Sunita by visiting the nearby huts of hisrelativesandafter takingthebread he had gone to sleep at about 9. 0 P. M. In themorningtwolabourershadbroughtsunitaby liftinghis daughter in his hut and at that time she was unconscious and she had also pain for which she waskept in thehut for about 2 days. He was also cross examined in respect of the room situated near the watertankand the personswho are residing in those rooms. The person who came at the water tank was on thenextdayinthe evening at6. 0p. M. andhehasalso raised cries. However, thatpersonhasrunaway. Beforegiving complainttothepolice,hehasnotdisclosed this incident to anyone. In village Kudsad there are two type of communities, who are residing, one isofkolipatel mohallo andanother is of Mohallo of Musalmans. He went to Olpad for filing complaint in bus by leaving fromhis house atabout1. 30 P. M. and reached at Olpad at about 3. 30 P. M. , alongwith him hisdaughtersunitawaswith him. Hehaddeniedthe suggestion that at the police stationshrijayantibhaianddahyabhaihadalso accompanied them. The frock and knicker of Sunita were handed over to the Police. The Police hascomeinthe evening atabout6. 0p. M. and alongwith the police, sunita had also gone to the field. 30 P. M. and reached at Olpad at about 3. 30 P. M. , alongwith him hisdaughtersunitawaswith him. Hehaddeniedthe suggestion that at the police stationshrijayantibhaianddahyabhaihadalso accompanied them. The frock and knicker of Sunita were handed over to the Police. The Police hascomeinthe evening atabout6. 0p. M. and alongwith the police, sunita had also gone to the field. Hehasdeniedthe suggestionthataroundthe time of incident, there was somedisputebetweenpatelcommunityandgarasiya community invillagekudsad. Hehaddeniedthe suggestion that his daughter Sunitahadnotshownthe accusedwhen the accused came near the water tank and he had denied that he has not gone near theaccused. The witness has in term denied that as his daughter was raped she become unconscious and was lying in the field itself. Hehaddeniedthesuggestionthathehad filed the complaint against the accused at the sayofjayantibhai by giving false complaint. ( 5 ) THEEVIDENCEOFPROSECUTRIX Sunita P. W. 2 is at exh. 10, which was recorded by thelearnedtrialjudge, whohasputsomequestionsto her as she is minor to ascertain that whether she is in a position to understand the question and accordinglyafterputtingpreliminary questionsto her, oath was given to her and her evidence is recorded by the learned trial Judge. At the time when her evidence was recorded she wasaged11years. As foundfrom her deposition that at the time of commission of the offence, she was hardly 9 years of age. Shewas residingwith her father Bhangadiya Padvi and with minor shravan. They came for labour work and werestayingat villagekudsadina hut near the sim of village Kudsad and they were working asalabourerinthefieldof jayantibhai. 5. 1 accordingtoherattherelevanttimeof incident, she was playing with her brothershravannear her hutasher father went to purchase rice. When they were playing one boy came and he hasaskedtocometo takebreadandaccordingly she accompanied him to take the bread. Shewastakeninthefieldwherethe sugarcane weregrowing. She identified the accused in the court premises. She hasnarratedtheincidentof whattranspired to her at the instance of the accused on that night, where she has deposed theactcommittedby accused on her even by removing her frock and knicker and also insertedfingeronherprivatepart. There was bleeding from her private part. She has narrated further about the actual rapebeingcommittedonherbythe accused. By committing rape by the accused on her, there was bleeding. Shewasweeping. After committing the rape, the accused had also shown the knife andtoldher thatshehas not to tell this fact to anyone, otherwise he will kill her. The persons working in thefieldhad takenherandbroughtherat her house where she has narrated the story to her father. Sheandherfather went tofindout the accused. By committing rape by the accused on her, there was bleeding. Shewasweeping. After committing the rape, the accused had also shown the knife andtoldher thatshehas not to tell this fact to anyone, otherwise he will kill her. The persons working in thefieldhad takenherandbroughtherat her house where she has narrated the story to her father. Sheandherfather went tofindout the accused. However, the accused was not found and accordingly on thenextdaymorningher fatherwentinthe village to find out the accused and she accompanied her father. The accusedwasseennear thewatertankandshehasshown the accused to her father that he is the same person who has committed rape. When her father went to inquire the accused has run away. On the next day she was taken to Olpad Police Stationby herfatherwhereshehas narrated the incident to the police. The Police has also takendownhercomplaint. Theknickerandfrockwasalsoproducedbefore the police. She identified the muddamal article 1 frockand article2 knicker, which is the same which were given to the police. The accused at that timewornwhiteshirt and blackpant. Shewastaken to the Civil Hospital where she was examined and the stitches were taken on her private part and she was kept as an indoor patient for6 daysinthecivilhospitalandthereaftershewas discharged from the Hospital. 5. 2 beforethecrossexaminationcouldstart,a noting is made by the learned Presiding Judge thatafter the deposition of the victim was over, the witness Sunita was weeping and accordingly she was send out for cleaning the faceandalso for taking water. This indicate that when her evidence was recorded by thepresidingofficer and when she has narrated about the incident by which how shewas subjected to rape by the accused person, she was weeping. 5. 3 as found from the cross examination that prior to the incidentshewasnotknowing the accused. At the time of incident her brother Shravan was hardly2years of ageandnootherboys were with them. At the time when the accused has asked her for giving breadatthat timetherewasdarkness and at the time of incident of rape there was also darkness and when she reached atthe fieldwherethe labourers were lifting the sugarcane at that time also there was darkness. When shereachedat her house, it was also morning time. She was not knowing thenameofthelabourerswho had brought her at her house. Asfoundfromthecrossexaminationthat initially she has admitted that the police has taught her what sheisrequiredtodepose in the court. However immediately thereafter she had denied the said fact. She was not knowing the name of the accused person before the incident nor she had seen his house. She was not knowing thenameofthelabourerswho had brought her at her house. Asfoundfromthecrossexaminationthat initially she has admitted that the police has taught her what sheisrequiredtodepose in the court. However immediately thereafter she had denied the said fact. She was not knowing the name of the accused person before the incident nor she had seen his house. She has denied that prior to the incidentshewasnotknowingwherethe accused wasstaying. According to her that the accused is residing in village Kudsad. After the rapecommitted onhershewenttowardsthelabourers by taking her knicker and frock and the labourers hadliftedherand brought herather house. As the rape was committed on her she was frightened and she was almost unconscious and she was not in a position to speak. Accordingtoher, shehasnarratedthestoryabouttherapetothe labourers and they have narrated the story to her father. She has not given any description ofapersonwhohas committedrape on her about the size, whether the person was thin, tall or short. There are shops situated in the huts. Kudsad village is at a distance from her hut. Her father had gone to bring rice at village Kudsad. She has seen the accused near the water tank from her hut and she had shown the accused to her father andherfatherhas raisedcriesand alongwith her father other persons had also ran, by rasing shouts "catch catch" and theaccused had run away. On the next day the police has brought the accused at her house. It is further found from the cross examinationthatsheused to go to the field where she was subjected to rape by the accused persons. Sheused to goto the field with her father for labour work. She had denied the suggestion that on that night she wentto thesaidfieldfor taking sugarcane where some unknown person had committed rape on her. Before shewastaken to the Hospital as she had a pain and accordingly she had slept overatherhouse. At the time of commission of offence, she raised cries. Theaccusedhascommitted rapeafteronehourandbecause of the weight of the person who fallen on hertherewassandonherback portion. Shehasalso resisted even by using her hand and the nail and she has also sustained injuriesonher back potion as well as on the chest and on the face. She haddeniedthatsheisdeposingfalsely against the accused. ( 6 ) P. W. 3dr. BHAVNABENRAJANWASWORKINGASA residentdoctorin the New Civil Hospital, Surat in the gynecology department. On 12. 12. Shehasalso resisted even by using her hand and the nail and she has also sustained injuriesonher back potion as well as on the chest and on the face. She haddeniedthatsheisdeposingfalsely against the accused. ( 6 ) P. W. 3dr. BHAVNABENRAJANWASWORKINGASA residentdoctorin the New Civil Hospital, Surat in the gynecology department. On 12. 12. 1995 Sunita wasbrought byherfathercomplaining about the rape on Sunita and accordingly M. L. C. Case No. 7108 was registered and she was admitted and she was examined. On examining her shewas found agedabout8to9 years. She found on her body that the Unipotal was found torn by 4th degree and vagina was also found tornforwhichthedoctorhasissued medicalcertificatewhichis at Exh. 12, which reads as under:-"general examinationwasnormal. Onlocal examination therewasivthdegreeperineal tear . The introitus, vagina and perineum soiled with stool. The patient was admittedon12. 12. 95at12. 00 noonfor examination of the genitalia under anaesthesia. There was IVth degree perineal tearwhichwasrepaired under anaesthesiaonthe same day. There were no other marks of external injury seen over the body. The swabsfromintroitusandvaginaforthe presenceofspermatozoacouldnot be taken because of soiling with stool. The patient wasdischarged on 17/12/95"she has also applied stitches bygivinggeneral anaesthesia toher. Looking to the size of the private part it was not possible for the doctor to take the swab. Sunita was admitted as indoor patient upto 17. 12. 95 while she was treated. Themedicalcertificateunderher signature was given. It was also signed by Dr. Anjana dighe. Thismedicalcertificateisprovedby dr. Bhavnaben, which is at Exh. 12. 6. 1 incross examination the Doctor has deposed that while giving certificate she has notgivenanyopinion andshehasalso not stated the timing on the injuries which is recordedinthecertificate. Shehasnot noticedany injury on Sunitas face nor she has seen any injury mark on her back as well as on herchest. When the patientwasbroughtshe was conscious. Doctor has inquired from the father of victim that who has committed rape. As per Doctor that in the normal course if arape iscommittedonagirlagedabout 8 to 9 years by a personaged25yearsinthefield,thenthereis possibilityofhavinginjuries on the back portion and further that while committing rape and due to movement on the back portion of the body, the injury can be caused or some time no injury can be caused. ( 7 ) P. W. 4 Dr. As per Doctor that in the normal course if arape iscommittedonagirlagedabout 8 to 9 years by a personaged25yearsinthefield,thenthereis possibilityofhavinginjuries on the back portion and further that while committing rape and due to movement on the back portion of the body, the injury can be caused or some time no injury can be caused. ( 7 ) P. W. 4 Dr. Anjanaben Dighe, whoistheassistant professorandgynecologistincivil Hospital has also deposed in the manner in which P. W. 3 has deposed andshe has also deposed in respect of the injury found on Sunita when shewas brought in the Hospital for treatment. The certificate which was issued is in thehandwritingof dr. Bhavnabenand Dr. Anjanaben has also counter signed on the said certificate and the injury whichwasfoundis possible if rape is committed on victim. 7. 1 in cross examination the Doctor hasstatedthat shehasexaminedthepatientfromdayoneshe was admitted till she was discharged and she had deniedthat it is not a case of rape. ( 8 ) ASFOUNDFROMTHEEVIDENCEOFCHHOTUBHAI badiyabhaip. W. 6atexh. 15he has deposed that at the time of incident he had gone to village Kudsadatsayan sugarfactoryforcutting the sugarcane as a labourer. He was also staying in a hutnearthesimofvillage kudsad. Onthedayof incident at about 10. 0 P. M. he had gone to the field for labour while taking truck. At thetimewhen they were lifting the sugarcane, from the other field the victim, named, Sunita of villageranipur came byweeping. She was also staying at the relevant time in the sim of village Kudsad inahut. Whenhe inquiredwhathappened to her, she has replied that one boy had shown her knife. Thereafter, Sunita was taken at her hut, which was shown by her. Bhangadiyapadviwas present and Sunita was handed over to him. His statement was recordedbythe police. As found from the evidence in chief that Sunita has not told him on the way that she is facing some trouble while walking and when he inquired with Sunita, she has told him that one unknown person had taken her in a field on the pretext of giving bread where he has committed rapeonher. However,asperthe evidenceofchhotubhai P. W. 6 on the next day he came to know that one Ismailfromvillagekudsadhasonthe pretextofgiving bread to the girl had taken that girl in a field and she was raped. Thefieldinwhichthe rapewascommittedwas a field of Dahyabhai and he was not present in his field. 8. 1 incrossexaminationhehaddeniedthat bhangadiya Padvi, the father of victim Sunita, is related to him. However,asperthe evidenceofchhotubhai P. W. 6 on the next day he came to know that one Ismailfromvillagekudsadhasonthe pretextofgiving bread to the girl had taken that girl in a field and she was raped. Thefieldinwhichthe rapewascommittedwas a field of Dahyabhai and he was not present in his field. 8. 1 incrossexaminationhehaddeniedthat bhangadiya Padvi, the father of victim Sunita, is related to him. Hishutissituatednearthehutofshri bhangadiya. Priorto 15 days before the incident, they had come for labour at village Kudsad and fromtherehe knows Bhangadiyaandvictimsunita. They were staying with the family consisting of wife and children. Inhis police statement he has stated that one girl has told her that one person had shown the knife. If this fact is not found in the police statement, it is possible that police might nothave taken down in his statement. He had gone to labour work at the field of Dahyabhai. He can not say what is the area of the field ofdahyabhai. Whenthe truckcamenearthe hut in all there were 11 labourers had boarded the truck and all were of Adivasicommunity. No labourerfromranipur village were there. He is not knowing the driver of the truck. No otherpersonsfrom thefactorywerepresentin the truck and at the time when they were lifting the sugarcane in a truckatthat time theownerofthefield was not present. It took about 12 midnight for liftingthesugarcanewhichwas lying inafield. He had denied that they have taken sunita in a truck at her hut. The father ofsunitawas sleeping. However,otherpersons nearby residing were not sleeping. He has stated that Sunitahadtoldthat onepersonhadshowntheknifeto the police at Kim police Chowky. The police took them at Police Chowkyat kim. Thebrotherof Bhangadiya was also residing with his family near the hutofshribhangadiya. Hehad deniedthatsunita has not approached them at night and she has not disposedanyhistoryandfurtherhehas deniedthat as he is related to Bhagadiya he is deposing falsely. ( 9 ) HASMUKHBHAIJADAVP. W. 7exh. 16isthepanch examined by the prosecution, who acted as apanchwhile drawingthesceneofoffencepanchanama on 12. 12. 95. Alongwith himanotherpanchnarendranarsinhbhaiwas there. Sunitawas present alongwith the police persons and Sunita had shown the place of offence. Allofthem went inajeep at the place guided by Sunita. When the jeep reached at the field of Dahyabhai Kuberbhaionthe side therearesugarcane. The said place was shown by sunita and a panchanama was drawn. Thispanchanamawas drawn between7to 8 A. M. After drawing the panchanama he has put his signature on the said document as wellas theotherpanchnarendrahasalso put his signature. Allofthem went inajeep at the place guided by Sunita. When the jeep reached at the field of Dahyabhai Kuberbhaionthe side therearesugarcane. The said place was shown by sunita and a panchanama was drawn. Thispanchanamawas drawn between7to 8 A. M. After drawing the panchanama he has put his signature on the said document as wellas theotherpanchnarendrahasalso put his signature. This panchanama is proved, which is at Exh. 17. 9. 1 in cross examination he had deposed that from the sim of village to the water tank the distance betweenis about 150 ft. They were taking tea at the Larry near the water tank from where they were called to act as a panch. Narendra wasthe owner of the tea larry. This tea larry is at a distance of 50 ft. from the huts. Therewasa movementofpersonsnearthehut as well as near the water tank. Just opposite to the water tank thereisa panchayat office. Thedistance between water tank and the office of the panchayat is at a distanceof50ft. Theyhaveseensunita and her father in a police jeep. No other Adivasis were there. In the villagekudsadin oneportion of the village the community of Garasiya are staying and in the other part there is a locality of Koli patel. He knows the owner of thefieldshridahyabhai kuberbhai. Whenthe panchanama was drawn Dahyabhai was not present in the field. They have not seenanyblood on theearth. Nearthe field in which the offence is committed nearby there are other fields situated. He had denied the suggestion that they have put the signature on the prepared panchanama at Olpad Police Station. Hehad deniedthatattheinstanceof police he is deposing falsely. The panchanama Exh. 17 is provedbywhichthe police has drawn the panchanama of scene of offence shown by victimsunita. This panchanama is recorded between 7 to 8 A. M. ( 10 ) KANTILAL Chhaganlal Patel P. W. 8 has deposedthat hewascalledby the police to act as a panch at Olpad police Station on 14. 12. 95 at 11. 35 A. M. Alongwithhim another panchkaushikkumarwaspresent. The accused ismail Kalu was presentinthepolicestation. The policehasattachedfromtheaccused the knicker and pant. In the saidmuddamalknickerattheplaceof private parttherewas one whole having some stain. He has identified theknickeroftheaccusedwhichwas seized bythepoliceunder panchanama. The police has also arrested the accused and the panchanama was prepared accordingly. The same is at Exh. 19 drawnbetween11. 35 to 12. 00noon. Healso identified the accused in the court. 10. The policehasattachedfromtheaccused the knicker and pant. In the saidmuddamalknickerattheplaceof private parttherewas one whole having some stain. He has identified theknickeroftheaccusedwhichwas seized bythepoliceunder panchanama. The police has also arrested the accused and the panchanama was prepared accordingly. The same is at Exh. 19 drawnbetween11. 35 to 12. 00noon. Healso identified the accused in the court. 10. 1 in cross examination witness has deposed that the olpad Police Station is situated inthecentreofthe village. It was his first instance for which he had gone to thepolicestation. Atthetimeof drawing the panchanama at the policestationpriortheretop. S. I. and hisstaffpersonsi. e. about 2 to 3 persons were present. Exceptthepanchasnootherpersonswere present. Hehaddeniedthatthemuddamalpant and knicker were lying on the table of P. S. I. Exceptthis muddamal cloth, he had not seen any cloth on the table of p. S. I. Whentheaccusedhas removed his cloth, other cloths were provided to the accused. He had deniedthat hehadnottakenthe muddamal pant and knicker in his hand and he had not seen bytakingthesemuddamalson hand. Aslip was also attached with the muddamal cloth signed by both the panchas on the panchanama aswellas on the slip. He had denied that he has put his signature on aprepared panchanama. He had never acted as a Panch in respect of theoffenceregisteredatolpadpolice station. Hehaddenied that he is deposing falsely as per the say of the police. Thispanchanamaexh. 19is provedwhichshowsthatafter providing other pair of cloth to the accused immediatelythepantandknicker were seizedbythepolice. ( 11 ) EXH. 20 is the panchanama in respect of thecloth of the victim Sunita, which was drawn on 11. 12. 95 between 14. 15 and14. 45hours. These cloths of the victim were produced by Bhangadiyabhai father ofvictimbeforethe police. Ontheknickerofsunita there was stain of blood. Even on the muddamalarticlefrocktherewere some stains. Exh. 22isthe complaint filed by Sunita before the police in respect of the incident by which she has suffered at the instance of the accused on 9. 12. 95 at 20. 30 hours and the complaint was lodgedatthepolice station at13. 30hourson 11. 12. 95. The distance from the scene of offence to the police stationisabout27 kms. Wehavealready referred to while discussing the evidence of victim Sunita by which she has explainedfor late filing of the FIR after the incident. As found, she washardly9years of age and as discussed the medical evidence earliershewassufferingfromapainand accordingly shesleptoveratherhut. Sunita is a scheduled Tribe girl and the Mamlatdar, Sagbara hasalso produced the certificate, which is at Exh. 23. Wehavealready referred to while discussing the evidence of victim Sunita by which she has explainedfor late filing of the FIR after the incident. As found, she washardly9years of age and as discussed the medical evidence earliershewassufferingfromapainand accordingly shesleptoveratherhut. Sunita is a scheduled Tribe girl and the Mamlatdar, Sagbara hasalso produced the certificate, which is at Exh. 23. ( 12 ) SHRI Kuberbhai Desai P. W. 9 istheinvestigating officer. Hehaddeposedthathe was posted at Olpad police Station as P. S. I. between 23. 6. 1993 and29. 4. 95. On11. 12. 95at 9. 30 hours he was incharge of the police station. At that time the victim minor girl Sunitacame withherfathershribhangadiyaresidingat village kudsad and a complaint wasgivenbysunitawhichwas takendown by him as per the say of Sunita, which he has taken down in his own hand writing. Aftertakingdown thecomplaint,sunitahasputherrighthand thumb impression on the said document on each paper beforehim andhe has also put his signature on the said complaint. Sunita has disclosed against the accused Ismailkalubhai bysayingthatthesaid accused has on the pretext of giving bread taken in the field situated inthesimof villagekudsad, where accused has committed rape on her. After recording the FIR he has registered the offence and taken over the investigation. He has recordedstatement of Bhangadiyapadvi,fatherof victim. In presence of panch, Bhangadiya has produced the cloths of Sunitaworn atthe time when she was raped, namely, articles knicker and frock under the Panchanama. He hasalsoidentified thethumbmarkofsunitaonthecomplaint and this complaint is at Exh. 22. Sunitawasdeputedwithlady head Constableatcivilhospitalfortreatment. A panchanama was alsodrawnofsceneofoffence. He visited the village Kudsad and on inquiry accused was not found athisresidence. He has recorded the statements of Chhotubhaibadiyabhaiandotherwitnesses. The whereabouts oftheaccused were not found. He has also recorded the statement of Dahyabhaikuberbhai,whowas theowner of the field as well as Ketanbhai Narottambhai who is also having a field nearby the field of Dahyabhai. The accusedwasnotavailabletill13. 12. 1995. On 14. 12. 1995 the accused Ismail of village Kudsad presented himselfatthepolice Station and immediately the pant and knicker were seized in presence oftwopanchasand the accused was arrested at 12. 0 noon. He identified the muddamal article 3 pant and muddamal article 4 knicker of theaccused,whichwereseized at the instance of the accused. The victim Sunita was admitted for treatment in hospital from 12. 12. 95 to 17. 12. 95. Shewasdischarged from hospitalon17. 12. 95. The Certificates issued by the Medical Officer regarding Sunita were received. The age ofvictimwas8years. 0 noon. He identified the muddamal article 3 pant and muddamal article 4 knicker of theaccused,whichwereseized at the instance of the accused. The victim Sunita was admitted for treatment in hospital from 12. 12. 95 to 17. 12. 95. Shewasdischarged from hospitalon17. 12. 95. The Certificates issued by the Medical Officer regarding Sunita were received. The age ofvictimwas8years. To ascertain the age of victim, a Yadi was issued to thetalaticummantriof village Sagbara. However, a reply was received that her birth date is not registered. Sunitawasbelongingto scheduledtribe community and therefore certificate from mamlatdar was obtained and according tothecertificate sunita wasof Hindu Bhill community. Immediately cloths were send for investigation before the F. S. L. The F. S. L. report as well as serologist report wasreceived,which are at Exh. 24 and on completion of the investigation, the chargesheet was submitted before the court and as there was an offence under the Atrocity Act, hehassubmitted report to the Social Welfare Department. 12. 1 incross examination he has admitted that he has taken the statement of labourer Devji,whowasalsoa labourerwhowasalsointhefieldwiththe other labourers, who had lifted the sugarcane in a truck. His nameisalsoshowninthe charge sheet as a witness. Jayantibhais statement wasrecordedandhewasalso cited inthechargesheetaswitness. Dahyabhais statement was recorded, who is the owner of the field and he was also cited as a witness in the charge sheet. He has not recorded the statements of any other persons, who are residingnearthehut of victim Sunita. The water tank is situated in the sim of villageandhehasnot madeanyinquiry how many persons are residing near the water tank. He has not taken the statement of the person from the Grampanchayatoffice. Hehaddeniedthe suggestionthathehasnot recorded the statements of such persons because no such incident has everoccurred. Hehasnotrecordedthestatementofkoli Patel of village Kudsad. He has not made anyinquiryaboutthe ownerof the truck, by which the sugarcane were shifted. He has not made any inquiry about the other 11labourers who had lifted the sugarcane in the truck. He had denied that he has not recorded the statements of such labourers becausethey were not supporting the say of complainant. There is no mention about presence of blood at thescene of offenceinthepanchanama. Hehaddeniedthe suggestion that Chhotubhai and Khapariyabhai arerelated to the complainant and accordingly they were taken in the jeep atkimpolicechowky . Hehasalso denied the suggestion that the panchas werecalledinthepolice stationandtheirsignatureswereobtainedinthe panchanama. He has notobtainedanycertificatethat accused is residing in village Kudsad. There is no mention about presence of blood at thescene of offenceinthepanchanama. Hehaddeniedthe suggestion that Chhotubhai and Khapariyabhai arerelated to the complainant and accordingly they were taken in the jeep atkimpolicechowky . Hehasalso denied the suggestion that the panchas werecalledinthepolice stationandtheirsignatureswereobtainedinthe panchanama. He has notobtainedanycertificatethat accused is residing in village Kudsad. He denied that he hascreatedafalse evidence against the accused and a false charge-sheet is filed against the accused. ( 13 ) ASPERTHE Serologists report, in the cloth of victim Sunita blood found was of "b" Groupandalsoin thesaidarticlefrockthe semen with human blood was also found and the blood group was inconclusive whilein theknickerofsunitablood found was of human of "b" group. In article 3 the pant of accused,therewasno stain. ( 14 ) THE statement under Section 313ofthecr. P. C. of theaccusedis found at Exh. 5. He is aged 28 years, doing labour work and residing at village Kudsad,taluka olpad, Districtsurat. Ongoingthroughthesaid statement, hisstatementisoftotaldenialofthe prosecution case. Hehasnot examined any witness in support of his case and he has not evenstatedanything that hewouldliketo say anything in addition. He is also illiterate and he has also put his thumbimpression below the statement on 23. 12. 97. ( 15 ) THELEARNEDTRIALJUDGEHASCONSIDEREDTHE evidence in light ofthedefenceoftheaccusedand recordedfindingbyholdingthatthe prosecution has establishedandprovedthatthevictimwasminor belonging tohindubhillcommunity. In light of the evidence ofprosecutrixsunitaandinlightofthe evidence led before him, the learned trial Judge has also recordedfindingthatprosecutionhas established and proved that at the relevanttimeon9. 12. 95at20-30 hoursvictimsunitawas residing at the sim of village kudsad and she was playing near her hutfromwhichthe accusedhas in the pretext of giving bread taken custody of Sunita from the legal guardianship of herfatherand thepurpose for which the accused has removed Sunita was to commitrape. Thelearnedtrialjudgehasalso acceptedthe prosecution case that the accused has taken sunita from her house and took her in the field where she was raped by the accused. The learned trial Judge has on considering Certificate Exh. 23 issuedbythemamlatdar held that prosecutrix Sunita was minor belonging to Hindu bhillcommunity, as the Mamlatdar is authorized to issue such certificate and further that infactthereisno challenge bythedefence. The learned trial Judge has considered in respect of the offences under Sections363 and 366ofthe I. P. C. and according to the prosecution that minor Sunita on 9. 12. 95 atabout20. 30hourswas playinginfront of her house (hut) situated in the sim of village Kudsad. The learned trial Judge has considered in respect of the offences under Sections363 and 366ofthe I. P. C. and according to the prosecution that minor Sunita on 9. 12. 95 atabout20. 30hourswas playinginfront of her house (hut) situated in the sim of village Kudsad. According to her on that day shewas hardly9years of age and when she was playing with her brother, the accused had in the pretext ofgivingbread tookherin the field and after taking Sunita from near her house in a field, she was subjected to rape. ( 16 ) IT is the case of the defence thatnostatement ofthepersons,whoareresidingnear the hut, were recorded and nobody has seen when victim Sunita was taken by the accused. It is also the contention of the defence in respect of late filing of F. I. R. as theincidentin question has occurred on 9. 12. 95 at about 20. 30 hours and the complaint was filed after 2 days i. e. on 11. 12. 95 at 13. 30hoursand according to the defence no explanation is rendered by the prosecution and the accused is falsely involved in a serious offence. ( 17 ) THELEARNEDTRIALJUDGEHASDISCUSSEDTHE evidence of Sunita indetailatparagraph7andthe learnedtrialjudgehas also discussed the evidence of bhangadiya Padvi, father of victim Sunita. Inlightof theevidence,thelearnedtrialjudgehas,while acceptingtheevidenceofsunitaandherfather bhangadiyapadvi,heldthattheprosecutionhas established the prosecution case that it istheaccused whohadin the pretext of giving bread to victim Sunita taken her from the hut of the victim and accordingly from the legal guardianship of Bhangadiya Padvi she wastaken and the accused has committed offences under Sections 363 and 366 of the I. P. C. ( 18 ) SO far astheoffenceofcommittingrapeis concerned,thelearnedtrialjudgehas discussed the evidence indetailwhilediscussingtheevidenceof victim Sunita and the evidence of Dr. Bhavnaben Exh. 11 and dr. Anjanabendigheexh. 13andthe medical certificate issued about the minor Sunita and the fact thatshewas admittedas indoor patient from 12. 12. 95 to 17. 12. 95 and looking to the injuries found ontheprivatepartfor whichstitcheswerealsotakenandinlight of the medical evidence and further the reportofthef. S. L. , the learned trial Judge has held that the prosecution has established the case that victim Sunita was minor and she was subjectedto rape. 12. 95 to 17. 12. 95 and looking to the injuries found ontheprivatepartfor whichstitcheswerealsotakenandinlight of the medical evidence and further the reportofthef. S. L. , the learned trial Judge has held that the prosecution has established the case that victim Sunita was minor and she was subjectedto rape. The learned trial Judge has also considered the contention raised by the defencethatas foundfrom the evidence that at the time when Sunita was playing near her hut, it was nighttimeandtherewas darknessandshecould not identify the accused as she has admitted that at the time when the rape was committed on her at that time it was a darknight. Itisalso urgedbymr. Shah while arguing the matter that there is every possibility of misidentity of a person asadmitted by victim that when she was taken from near her hut there was darkness and further that though there are other huts situatednearbythehut of Sunita, no witness has come forward, who had seen the accused taking away Sunita from her residence and further that even thepolicehasnot recordedthestatementofanyof the persons who are residing nearby the hut of the victim. This argumentis veryattractive,but at the same time as found from the evidence of victim Sunita that thoughshehadadmitted thatit was a dark night, but one cannot forget that she had travelled with the accused fromherhutatafar distancewherethefieldissituatedand further as sunita was subjected torapeattheinstanceofthe accused and according to her it lasted for about an hour, whilecommittingsuchact the accused is very close to the victim Sunita and she will not forget through out her life who acted in such a fashion with her. Therefore, it is hardly a ground for which wehavetoconsiderthat sunitahascommittedmistakewhileidentifyingthe accused. It is the contention of Mr. Shah that even after the accused was arrestednoidentificationparadewas arrangedbythepoliceandbynotholdingthe identification parade, Sunita was guided byherfather. Itistruethatno identification parade was arranged after the accused was arrested. But asfoundfromthe crossexaminationofvictim Sunita that it is her case that when she was in her hut she hadseentheaccused, who came near the water tank and the accused was shown to herfatherandbhangadiyapadviher father and other persons ran towards the accused by raising shouts and the accused has run away. However, as found fromthecross examinationthataccordingto her that on the next day the police has brought the accused at her house. Sothe incidenthas occurred on 9. 12. However, as found fromthecross examinationthataccordingto her that on the next day the police has brought the accused at her house. Sothe incidenthas occurred on 9. 12. 95 when the accused has on the pretext of giving bread taken minor Sunitafromher residence,thattooat a far distance in the field and committed rape on her after a long period for whicheven the medical evidence also support the case of Sunita that how shewassubjectedtorape by the accused. In our view, non holding of the identification parade afterthe arrest of the accused is not fatal to the prosecution and thereisnoquestion of misidentity at the instance of minor Sunita. Filing of late F. I. R. is in our view well explained by victim Sunita. She was minor hardly aged9 yearsatthe time of offence and looking to the medical certificate and the condition in which she was foundand asshe was suffering from pain, she had to remain in her hut and ultimately the complaint was filed and the Police station is also far away at a distance of 27 Kms. from the place of incident. So far as sentence awarded by the learnedtrialjudgeisconcerned,anyreductionby modifyingthesentenceishardlyrequiredtobe considered. In our view, a heinous crime is committed by the accused. A minor Sunita was raped who was hardly 9 years of age at the time of incident and accordingly even the sentence imposed by the learned trial Judge doesnot require any modification. ( 19 ) INOUR view the judgment and order of conviction and sentence recorded by the learned trial Judge deserves to be confirmed andtheappealfiledbytheaccused deserves tobedismissed. Consideringthe fact that sunita has suffered a lot, while dismissing thisappeal, itwillbeinthefitnessof things that the entire amount of fine if deposited by the appellantaccusedbe paidtovictimsunita by the learned trail Judge after proper verification. ( 20 ) ACCORDINGLYTHEAPPEALFILEDBY the appellant accused is dismissed andtheorderofconvictionand sentencerecordedbythelearned Addl. Sessions Judge, surat dated 23. 2. 1998 while disposing of Special (Atro.) case No. 15of1996 is hereby confirmed. However, while confirming the judgment and order of sentence imposedby the learned trial Judge and considering the imposition of fineamount under different Sections and considering the fact that the prosecutrix Sunitawasaminor,aged9 yearsatthe time of offence and belonging to Scheduled tribe community, we accordingly order that if theamount offineis paid by the accused, then the said amount of finebepaidtothevictimsunitaafterproper verification by the Court. ( 21 ) IHAVEANADVANTAGEOFGOINGTHROUGHTHE judgement and order of my learned brothermr. Justice d. K. Trivedi. Ifullyconcurwiththeultimate conclusion reachedbymylearnedbrother. ( 21 ) IHAVEANADVANTAGEOFGOINGTHROUGHTHE judgement and order of my learned brothermr. Justice d. K. Trivedi. Ifullyconcurwiththeultimate conclusion reachedbymylearnedbrother. However, lookingto the importance of the matter, I would like to state my own views. Hence I pass separate but concurring orders as follows:it may be noted that in para 2 ofthejudgement of my learnedbrother Mr. Justice D. K. Trivedi, he has referred to various contentions raised by Mr. Shahin assailing theorderofthelearnedtrialjudge. My learned brother Mr. Justice D. K. Trivedi has considered the entire evidence on record including theevidenceof victim,medicalevidence,andotherevidenceled by prosecution. Ultimately, in paragraphs18,19,20my learnedbrotherhasreachedtotheconclusion after considering the evidence on record. I fullyagreewith the viewsexpressedmylearnedbrothermr. Justice trivedi. However,lookingtotheimportanceofthe matterandlookingtothe fact that there are several cases coming on which offence ofrapeiscommitted,i wouldliketogive my opinion setting out few facts as under:ismailkalubhaigharasia,appellant,original accused - convict prisoner, has filed this appeal against thejudgement and order passed by the learned Additional sessions Judge, Surat, for the offences punishableunder section363,366,376 of Indian Penal Code and Section 3 (1) (xi) of the Scheduledcastesandscheduledtribes (Preventionofatrocities) Act, 1989 in connection with atrocity Case No. 15 of 1996. Thelearnedadditional sessionsjudgewhileconvictingthe appellant for the offences punishable under Sections 366and376ofthe i. P. C. ,sentencedtheappellanttoundergorigorous imprisonment for a period of 10 yearsandfineofrs. 1,500/- andrs. 2,000/-respectivelyand in case of defaulttofurtherundergosentenceofsimple imprisonment fora period of 3 months each. The learned additional Sessions Judge, while convicting the appellant for the offence under section 363 of theipc,sentenced theappellanttoundergorigorousimprisonment for 7 years and a fine ofrs. 1,000/-andindefaultto furtherundergosimpleimprisonmentfor a period of 3 months. The learned Judge while convicting the appellant for the offence punishable under Section 3 (1) (xi) ofthe act,sentencedtheappellanttoundergorigorous imprisonment for a period of six months and fineofrs. 500/- and in default to undergo simple imprisonment for a period ofonemonth. The learned Judge ordered all the sentences to run concurrently. ( 22 ) IN this case the learned Judge has relied onthe evidenceofpw2,prosecutrix, (name of victim is not written in view of the judgement of thehonblesupreme court inthecaseof STATE OF KARNATAKA VS. PUTTARAJA reported in 2003 0 AIR (SCW) 6429) at Exh. 10, on page 30 by which the victim who was 11 yearsoldattherelevant time (shewasaged9yearsat the time of incident) initially asked the questions by the Court as towhether sheisable to give proper answers to the questions and thereafter herdepositionwasrecorded. PUTTARAJA reported in 2003 0 AIR (SCW) 6429) at Exh. 10, on page 30 by which the victim who was 11 yearsoldattherelevant time (shewasaged9yearsat the time of incident) initially asked the questions by the Court as towhether sheisable to give proper answers to the questions and thereafter herdepositionwasrecorded. Inher deposition she has specifically stated that the appellant hadcometoherhouse and lured her to take the field where he will give some food articles and in that pretext the accused tookthevictimtofieldandthereafter committed rape on her. The said evidence is corroborated by PW 3 Dr. Bhavnaben Ranjan, Exh. 11 on page 34 who is medicaldoctor and gynaecologist working in the hospital and the doctor has examined the victim. Thedoctorhas stated that she has examined the victim and she had given treatmenttothevictim from 12. 12. 1995 to 17. 12. 1995. She has given certificate (Exh. 12)whichhasbeen produced andprovedbyher. Inthe certificate the doctor has specifically stated that on localexamination there wasivthdegreeperinealtear. The introitus, vagina and perineum soiled with stool. Thepatientwas admittedon12. 12. 1995 at 12. 00 noon for examination of the genitalia under anaesthesia. There wasivthdegree perineal tear which was repaired under anaesthesia on the same day. There were no other marks of external injury seen over the body. ( 23 ) ANOTHER medical doctor Anjana Dighe, PW 4, who is assistant Professor and Gynaecologist in the hospital, at exh. 13 on page 37, also confirmed the same. Shehas also supported theevidenceof Dr. Bhavanaben. Though the prosecution has examined other evidences to prove the offence, as far as offence punishable undersection376 is concerned, the prosecution has successfully proved (1) thattheaccused had sexual intercourse with the victim in question; (2) that the victim was not the wife ofthe accused; (3) there was a penetration and the act done by the accused squarely falls withintheingredientslaid down bysection375 of the I. P. C. namely that the said intercourse was against her will and without her consent. It may be noted that thereisnoquestionofconsent because the victim was under 16 years of age. Therefore, alltheingredients stated in Section 375 of the I. P. C. are satisfied. There is also aninjuryonthefemale organ as proved by the medical evidence. ( 24 ) IN my view in the case of rape the mainevidence in allsuchcasesisthat of the victim herself. The other evidence being merely corroborative. Itisnot necessarythat there should be independent corroboration of every material circumstanceinthesensethatthe independentevidenceinthecase,apartfromthe testimonyofthecomplainant,shouldinitselfbe sufficient tosustainconviction. There is also aninjuryonthefemale organ as proved by the medical evidence. ( 24 ) IN my view in the case of rape the mainevidence in allsuchcasesisthat of the victim herself. The other evidence being merely corroborative. Itisnot necessarythat there should be independent corroboration of every material circumstanceinthesensethatthe independentevidenceinthecase,apartfromthe testimonyofthecomplainant,shouldinitselfbe sufficient tosustainconviction. All that is required is that there must be some additional evidencerendering it probable that the story of the complainant is true and that itis reasonably safe to act upon it. The evidence ledbytheprosecutionprovesthatthecrimewas committedandthesame connects or tend to connect the accused with the crime. (Re:respectedmr. Justice c. K. Thakkar, (Now Judge, Supreme Court of India), Law of Crimes, page 1800 ). ( 25 ) IT may be noted that in the judgement reported in the caseofbharwada BHOGINBHAI HIRJIBHAI VS. STATE OF gujaratreportedinair1983sc753particularly paragraph No. 5on page 755, paragraph Nos. 9, 10 and in paragraph No. 11 on page No. 757 thehonblecourt (Mr. Justice M. P. Thakkar) has observed as under:"just as a witness who hassustainedaninjury (whichisnotshownorbelievedtobe self inflicted) is the best witness in the sensethat heisleastlikelytoexculpatethereal offender, the evidenceofavictimofasex offenceisentitled to great weight, absence of corroboration notwithstanding. And while corroborationin the form of eye witness account ofanindependentwitnessmayoftenbe forthcominginphysicalassaultcases,such evidence cannotbeexpectedinsexoffences, havingregard to the very nature of the offence. It would therefore be adding insult to injuryto insiston corroboration drawing inspiration from the rules devised by the Courtsinthewestern world (obeisancetowhich has perhaps become a habitpresumablyonaccountofthecolonial hangover ). We are therefore of the opinion that if the evidence of thevictimdoesnotsuffer fromany basic infirmity, and the "probabilities-factor"doesnotrenderit unworthy of credence, as a general rule, there is noreason to insist on corroboration except from the medical evidence, where, having regard to the circumstances of the case, medicalevidencecan beexpectedtobeforthcoming, subject to the following qualification. It may be noted that sameprincipleshavebeen followedbythehonblesupremecourt in the case of state OF MAHARASHTRA VS. CHANDRAPRAKASH KEWALCHANDJAIN reportedin AIR 1990 SC 658 , particularly paragraph Nos. 15 and 16 at pages 663-664 which read as under"para 15 - It is necessary at the outset to state what the approach of the Courtshouldbewhile evaluating the prosecution evidence, particularly the evidence of the prosecutrix, in sex-offences. Isitessentialthattheevidenceofthe prosecutrix should becorroboratedinmaterial particularsbeforethe Court bases a conviction on her testimony?doestheruleofprudence demandthat in all cases save the rarest of rare the Court should lookforcorroborationbefore acting ontheevidence of the prosecutrix?let us see if the Evidenceactprovidestheclue. Isitessentialthattheevidenceofthe prosecutrix should becorroboratedinmaterial particularsbeforethe Court bases a conviction on her testimony?doestheruleofprudence demandthat in all cases save the rarest of rare the Court should lookforcorroborationbefore acting ontheevidence of the prosecutrix?let us see if the Evidenceactprovidestheclue. Underthesaidstatute"evidence"meansand includes all statements which thecourtpermits or requires to be made before it by witnesses, in relationtothematters of fact under inquiry. Under s. 59 all facts, exceptthecontentsof documents,maybeprovedbyoralevidence. Section 118 thentellsuswhomaygiveoral evidence. According to that section all persons arecompetenttotestifyunlessthecourt considers thattheyarepreventedfrom understanding the questions put to them, orfrom givingrationalanswersto those questions, by tender years, extreme old age,disease,whether ofbodyor mind, or any other cause of the same kind. Even in the case of an accomplice S. 133 providesthatheshallbe a competent witness against an accused person; andaconvictionis notillegalmerely because it proceeds upon the uncorroboratedtestimonyofanaccomplice. However, illustration (b) to S. 114, which lays down a rule ofpractice,saysthatthecourt "may"presumethat an accomplice is unworthy of credit, unless heiscorroboratedinmaterial particulars. Thus under S. 133, which lays down aruleoflaw,anaccompliceis a competent witness and aconvictionbasedsolelyonhis uncorroboratedevidenceis not illegal although in view of S. 114, illustration (b),courtsdo notasamatter of practice do so and look for corroboration in material particulars. Thisis the conjointeffectofss. 133and114, illustration (b ). PARA 16 - A prosecutrix of asex-offencecannot be put on par with an accomplice. She is in fact a victim of crime. The Evidence Act nowhere says that her evidence cannot be accepted unless it is corroborated inmaterialparticulars. She is undoubtedly a competent witness under S. 118 and her evidence must receive the same weightasis attachedtoaninjuredincasesof physical violence. xxxxxxxxxxx But if a prosecutrix is an adult and offullunderstandingthecourtis entitledtobaseaconviction on her evidence unless the same is shown tobeinfirmandnot trustworthy. "5. 2 thehonblesupreme Court has relied on the the judgement in the case ofbharwadabhoginbhaihirjibhai (supra)inparagraph19onpage665ofthesaid judgement. 5. 3 the same principles have alsobeenfollowedby thehonble Supreme Court in the case of STATE OF PUNJAB vs. GURMIT SINGH reported in AIR 1996 SC 1393 wherethe aforesaidjudgementin the case of State of Maharashtra vs. Chandraprakashkewalchandjain (supra)hasbeen followedandinpara8the Honble Supreme Court has givenapprovaltothesaidjudgementwhichihave referred to. 5. 4 inview of a catena of judgements of the Honble supreme Court which I have referred once the evidenceof thevictimdoes not suffer from any basic infirmity and the "probabilities factor" does not render it unworthy of credence, as a general rule, there is no reason to insist on corroborationexceptfrommedicalevidence,where havingregardto the circumstances of the case, medical evidence can be expected to be forthcoming. 5. 5. 5 similar view has been taken by adivisionbench ofthiscourtinthecaseofdalwadigovindbhai amarshibhai VS. STATE OF GUJARAT reported in 2004 (2) GLH 680 . 5. 5a inviewofthisthecontention raised by the learned counsel for the appellant, my learned brother Mr. Justice D. K. Trivedi has dealt with this aspectofthe matterand the entire facts and evidence of the case and came to the conclusion that thelearnedjudgehasnot committed anyerror. However,inviewof the legal position, all other contentionsraisedbythelearned counsel for the appellant may not be necessary. Then, my brother has dealt with all these aspects. 5. 6 in the present case medical evidence supports the caseof the victim and therefore all the decisions which i have referred above squarelyappliestothepresent case. In view of this, I dismiss the appeal filed by the accused appellant. In view of this, various contentions of the learned counsel be rejected and theviewofthe learned judge be confirmed and the appeal be dismissed. 5. 6a it may be noted that in this case the prosecution has proved its entire case by examining theprosecutrix. Thesaidevidence has been supported by the evidence of two doctors who have been examined. It may be noted that in this casetheprosecutionhasexaminedtheother evidenceinthe nature of corroboration for proving the case ofprosecution. However,ihaveconsidereda passagefromthebooklawof Crimes by respected Mr. Justice C. K. Thakkar (now judge of thehonblesupreme court),judgementofthehonble Supreme Court in the case of BHARWADABHOGINBHAIHIRJIBHAIVS. STATEOF gujarat (supra), STATE OF MAHARASHTRA VS. CHANDRAPRAKASH kewalchand JAIN (supra),stateofpunjabvs. GURMIT singh (supra ). In view of the catena of decisions, it is firmly established that in case ofrapeifprosecution hasexaminedprosecutrixand medical evidence then the prosecution has proved its case. For proving the case of prosecution,evidenceofothercorroborationisnot required. 5. 7 asregardsthesentence, I may also refer to a division Bench judgement of this Courtinthecaseof vallabhbhai AVSARBHAI PATEL VS. STATE OF GUJARAT decided on 1-2/12/2003whereinthe Division Bench (Coram:k. R. Vyas and K. M. Mehta, JJ) has dealt with the same. Mr. Justicevyashasalso dealt with the said question and observed that the accused who playedwiththelifeof child does not deserve leniency in which he has relied on the judgementinthe case of STATE OF RAJASTHAN VS. OM prakash reported in AIR 2002 SC 2235 in paragraph 15. 5. 8 in thesaidjudgement I (K. M. Mehta, J) had an occasiontogiveconcurringjudgementasregards sentence. Mr. Justicevyashasalso dealt with the said question and observed that the accused who playedwiththelifeof child does not deserve leniency in which he has relied on the judgementinthe case of STATE OF RAJASTHAN VS. OM prakash reported in AIR 2002 SC 2235 in paragraph 15. 5. 8 in thesaidjudgement I (K. M. Mehta, J) had an occasiontogiveconcurringjudgementasregards sentence. Ihavealsorelied on the judgement of the honble Supreme Court in the case of STATEOFRAJASTHAN vs. OMPRAKASHreported in AIR 2002 SC 2235 and other judgements of the Honble Supreme Court inthecaseof delhi DOMESTICWORKING WOMENs FORUM VS. UNION OF INDIA and OTHERS reported in (1995) 1 SCC14,bhupindersharma vs. STATEOF HIMACHAL PRADESH reported in 2003 AIR SCW 5493 and also an article of Ramification of Harassment of womenbymeenarao,professor,departmentoflaw, universityofmumbaipublishedin (2003) Gujarat Law herald, page 23 (Journal Section) and also thejudgement in thecaseofsevaka Perumal Vs. State of Tamil Nadu reported in AIR 1991 SC 1463 , particularly paras 8 and9 and in that case I have held that crimes of violence upon womenshouldbe severely dealt with and when an offence of rape is proved, that too on girls of every tender age, the sentenceofimprisonmentshouldbeimposedwith severity andconfirmedthesentenceof 10 years. The said judgement also supports the conclusion which Ihave taken in this behalf. 5. 9 asregardstheargumentregardingsentence, because of the Division Bench judgement of this Courtin the caseofvallabhbhaiavsarbhaipatel Vs. State of gujarat (supra) for which I havereferred,incaseof rapetheaccuseddoes not deserve any sympathy even on the ground of sentence and there is no reasontoreduce thesentenceandtheorder of sentence of the learned trial judge giving 10 years imprisonment is legal and the appeal requires to be dismissed. 5. 9a it may be notedthatinenglandthecriminal justiceact1988hadintroducedtobritishlaw the concept of appeal being made against a sentence. There isalsoalittle change in the attitude and for that I refer to book "sex Crime - Sex Offending and Society"by terry Thomas, First Edition (2000) page 80. The relevant portion is produced as underthe Criminal Justice Act, 1988 had introduced to britishlawthe concept of an appeal being made against a sentence consideredtoolenient,and thefirstuseofthissectionwas against a custodial sentence of three years for amanwho hadpleadedguilty to three counts of incest on one daughter and one count of incest with another daughter. The sentence was duly increased to six years, but at the same time, Lord Lane, thelord chiefjusticenow set out sentencing guidelines for similar crimes. The sentence was duly increased to six years, but at the same time, Lord Lane, thelord chiefjusticenow set out sentencing guidelines for similar crimes. IN summary, the maximum penalties were: incestbyamanwithagirl under 13 - life imprisonment" (Ref:attorneygeneralsreference (No. 1 of 1989) (1989) WLR 1117)REGARDING sentence - In this case the age ofthe minor at the time of incident was 9 year old which I have noted in the earlier part of the judgement. In this case thelearnedtrialjudge has imposed imprisonment of 10 years and the learnedadvocatefortheappellanthas submittedthatinanycasethesentenceshouldbe reduced. I have given reasons astowhythesentence shouldnotbereducedintheearlierpartof this judgement after referring to variousjudgementsofthe honble Supremecourt. Even the book "sex Crime - Sex offendingandsociety"whichihavereferredalso supportsthat when the offence of rape is committed by a man with a girl under the age of 13 years in England, the punishment is life imprisonment that clearlyshowsthat thetrendinenglandis also that when the offence of rape is committed on a minor girl theaccuseddoesnot deserve anysympathy. They have issued guidelines which is binding on thiscourtanditdoesnotleaveany discretion incourt. Ofcourse,thisisa guiding principle which I have referred. Inthiscaseasthe stategovernmenthas not filed any appeal and therefore there is noquestionofincreasingthesentencebut nonethelessirejectthesubmissionofthelearned counsel for the appellant that in any casethesentence should be reduced. In theresult,theappealisdismissed. The order passed by the learnedadditionalsessionsjudge, surat,forthe offences under Sections 363, 366, 376 of i. P. C. and under Section 3 (1) (xi) of the Atrocitiesact dated 23. 2. 1998 is confirmed. .