( 1 ) BEING aggrieved by the judgment dated 22-9-1990 passed by the second Additional Sessions Judge, tikamgarh in Sessions Trial No. 90/89 convicting and sentencing the appellant under section 376 of IPC for four years R I. , the appellant has preferred this appeal under section 374 (2) of Cr. P. C. ( 2 ) THE brief facts of the prosecution case are that Harsewak Khagar was in possession of a Government land called in the name of Gutewanwali Bhumi situated at village vanpura. The land of Ramdas Guru Chamar is also situated towards the eastern side of this land, a pedestrian way of the locality was in existence towards the western side of such land. Such way goes towards the village Saiyahar. The agriculture field of ramua Kachhi is situated towards the western side of said way. ( 3 ) ON dated 9-7-1989 in the morning ramua Kachhi went to his agriculture field for its cultivation. In the afternoon his wife bhuwani has sent his lunch through her daughter namely Vinai, aged 11 years. After giving lunch, at about 3 o'clock when she was returning to her village Banpura Sapan from the field (sic ). On the way she was caught by the appellant. After putting off the basket from her head, she was taken into shrubs of said Gutwanwali Bhumi by the appellant with an intention to commit rape with her whereby overturning her clothes he committed rape with her. Consequently, bleeding from her private part was started. Thereafter the appellant went away from such place saying she should not say this to her mother. She was lying there for an hour on account of the pain. She put waste cloth on the private part to stop bleeding, same became wet with the blood. Thereafter she went to the field of Manna where she informed to her aunt Laddu Bai and uncle Bhaggu and mother Bhumani Bai as they met there. She was brought to home by her mother. Her father was called. On his coming the aforesaid incident was mentioned. Shri Pratap Singh, Sarpanch of the village was informed. Thereafter by putting on cot, she was taken to Police chouki, khargapur where the report was lodged and the prosecutrix was sent to the hospital. On medical examination the MLC was prepared. Her father was called. On his coming the aforesaid incident was mentioned. Shri Pratap Singh, Sarpanch of the village was informed. Thereafter by putting on cot, she was taken to Police chouki, khargapur where the report was lodged and the prosecutrix was sent to the hospital. On medical examination the MLC was prepared. After holding investigation the appellant was charge sheeted under Section 376 (2) (f) ( 4 ) THE case was committed to the Sessions court, where the charge under Section 376 of IPC was framed against the appellant. On denying the same, the trial was held in which the prosecution has examined as many as nine witnesses to prove its case while five witnesses were examined on behalf of the appellant in his defence. On appreciation of evidence by holding the prosecutrix below 16 years of age, the appellant was held guilty under the aforesaid Section and sentenced, as said above, hence this appeal is preferred by the appellant against. such conviction. ( 5 ) LEARNED counsel for the appellant Mr. Prabhakar Rusia, Sr. Adv. assisted-by Mr. Dhananjay Chaturvedi, has assailed the aforesaid conviction on the following grounds : (a) On the date of incident, the appellant was below 16 years of the age and covered by the provision of Juvenile Justice Act 1987 (hereinafter it is to be referred as "the Act")and the impugned case should have been initiated in the Juvenile Court but without holding any enquiry in respect of the age of the appellant the case was initiated in the court of Judicial Magistrate. The same was committed to Sessions Court. Accordingly, the trial was held contrary to the provision of Juvenile Justice Act. Hence the entire trial is liable to be vitiated as it was held without aforesaid enquiry (b) The incident took place at about 3 o'clock in the noon while the FIR was lodged at about 9. 30 in the night. The same was belated and after-thought so possibility of false implication of the appellant could not be ruled out. The medical examination of the prosecutrix was carried out on dated 20-7-1989 at about 11 o'clock on the next day of the incident. The same is belated for which no proper explanation has been put forth by the prosecution. The age of the prosecutrix below 12 years was wrongly held by the trial Court. The medical examination of the prosecutrix was carried out on dated 20-7-1989 at about 11 o'clock on the next day of the incident. The same is belated for which no proper explanation has been put forth by the prosecution. The age of the prosecutrix below 12 years was wrongly held by the trial Court. The principles of medical jurisprudence in this regard were not considered. As per his submission, she was above 16 years. (c) The allegation of the rape alleged by the prosecutrix has not been proved by cogent and reliable evidence but on wrong appreciation of the evidence the appellant was held guilty. (d) After registering the offence the provision of Section 157 of the Cr. P. C. has not been complied with as no evidence was led in this regard by the prosecution. (e) The concerning Rojnamacha entries in respect of the material, visit of the Police officer for investigation and also for sending the seized clothes of the prosecutrix and appellant to forensic laboratory have neither been produced nor proved which create doubt against the prosecution. The investigation of the case was not held by competent officer, hence the trial was also polluted and the impugned judgment is liable to be vitiated. (f) The material inconsistency in the depositions of prosecution and the depositions of defence witnesses have not been properly appreciated by the trial Court, hence, the approach of the trial Court in holding the appellant guilty is not sustainable under the law. In support of the aforesaid contentions he cited some reported decisions of the Apex Court and High Courts. In addition to it he also placed a synopsis of some case laws on record. ( 6 ) WHILE (on the) other hand counsel for the State has supported the impugned judgment as well as conviction and sentence of the appellant saying that the same is based on sound appreciation of the evidence. By referring the deposition of Dr. R. K. Pateriya, (PW-2) he submitted that the age of the prosecutrix was rightly held by the trial Court in between 9 to 11 years. The same is also supported by mother and father of the prosecutrix, namely Bhuwani Bai (PW-4) and ramua (PW-5 ). The prosecutrix has also deposed her age 9 years on her examination (PW-9 ). R. K. Pateriya, (PW-2) he submitted that the age of the prosecutrix was rightly held by the trial Court in between 9 to 11 years. The same is also supported by mother and father of the prosecutrix, namely Bhuwani Bai (PW-4) and ramua (PW-5 ). The prosecutrix has also deposed her age 9 years on her examination (PW-9 ). The testimony of the prosecutrix is not only supported by her mother and father but by medical evidence also. The deposition of prosecutrix could not be disbelieved as it is reliable beyond doubt. He also stated that the age of the appellant was only 17 years on the date of the incident which was found to be proved by the trial Court on account of the depositions of the Dr. V. V. Khare (PW-9) and by some other evidence. According to his submission the defence witnesses were rightly disbelieved by the trial court. The impugned judgment does not require any interference at this stage and prayed for dismissal of this appeal. ( 7 ) HAVING heard learned counsel for the respective parties, on perusing the record of the trial Court, it appears from the FIR ex. P/3 lodged by the prosecutrix herself at about 9. 30 in the night on the same day while the incident took place at about 3 o'clock in the noon. The story put forth in it has been proved by the deposition of Vinai (PW-3 ). Although she was minor even on the date of recording her statement in the Court. Therefore, some minor discrepancies have come in it but on going through her entire deposition I have found that she has stated all the material ingredients of the alleged offence as stated by her in the FIR. She categorically stated that while she was returning after giving lunch to her father, on the way near the well of the alleged agriculture field of Gutwanwali she was caught hold by the appellant. Subsequent to it her clothes were overturned by him and laid over the appellant and committed the sexual intercourse. The bleeding from the private part of her started. She put cloth on her private, part to stop such bleeding and went to some other well where she mentioned this incident to her mother and aunt Laddu Bai. Thereafter they came to home. She was taken to Police and hospital on a cot. The bleeding from the private part of her started. She put cloth on her private, part to stop such bleeding and went to some other well where she mentioned this incident to her mother and aunt Laddu Bai. Thereafter they came to home. She was taken to Police and hospital on a cot. She lodged the report at Police Station kharagapur. According to her she was medically examined by doctor at Kharagapur where her clothes were also seized. Such clothes were also marked by this witnesses as articles A, B, and C. Her deposition is duly supported by her mother Bhuwani Bai (PW-4 ). She stated that her daughter, Vinai aged eight to ten years was sent to agricultural field for giving lunch to her father. Thereafter this witness went to other well of his family. While her daughter was returning after giving the lunch to her father, she was subject to rape by the appellant. The material ingredients in this regard as told by her daughter have also been stated by her. She further stated that when her daughter came to her, her sister in law (Deorani)was also there before whom the entire incident was mentioned by the prosecutrix. The bleeding from her private part was also present. She called her husband Ramua through her brother in law Hajju. On his coming the prosecutrix was taken to Police chouki by putting on a cot. At that time the concerning in charge was not present. Hence, the report was registered in the night at 8-9 o'clock. She was examined by the doctor in the hospital. They stayed at the police Chouki for the entire night because of heavy rain. ( 8 ) THE aforesaid depositions of prosecutrix is also supported by the father of the prosecutrix Ramua (PW-5 ). He categorically stated that early in the morning he went to agricultural field for ploughing. At about 12 o'clock his daughter came there for giving his lunch. I told her to go back after one hour. While she was going back, on the way she was caught hold by the appellant. On receiving information I went and saw the prosecutrix. The bleeding from her private part was present. Then she was taken to police Chouki. On registration of the offence his daughter was sent to hospital for medical examination. While she was going back, on the way she was caught hold by the appellant. On receiving information I went and saw the prosecutrix. The bleeding from her private part was present. Then she was taken to police Chouki. On registration of the offence his daughter was sent to hospital for medical examination. Although some minor discrepancies in respect of time regarding medical examination of the prosecutrix and also in relating to time of the FIR have come in his deposition but the material circumstances about committing offence by the appellant have been proved by the aforesaid witnesses. Therefore, appellant cannot be benefited on account of some minor discrepancies. ( 9 ) BESIDES the aforesaid evidence one independent witness Jagdish Prasad (PW-6)has also stated that the appellant has confessed his aforesaid offending act before him. On going through the cross examination of the aforesaid witnesses, I have not found any material circumstance on which it can be said that his testimony has been destroyed in any manner regarding material ingredients of the alleged offence. ( 10 ) THE story put forth by the prosecutrix and the aforesaid witnesses have also been proved by the deposition of Dr. Usha kiran Saxena (PW-1 ). She examined the prosecutrix and prepared her MLC report ex. P/l-A. According to her, she found swelling over the Labia Majora of the prosecutrix. The pain in between thigh on separation of legs was complained. Second degree perianal tear at about 1x1 cm. was found in 'continuous with the tear of hymen. Bleeding was present. Hymen was lacerated bearing one tear at 2 o'clock position and one at six o'clock position. Its edges were red with swelling and painful. On touching the same blood was coming. According to her opinion all signs of vaginal penetration were present. So far her age is concerned, she said that she was appeared about 9 to 11 years. For its confirmation, she referred for X-ray of her wrist and elbow and also dental examination. ( 11 ) IN view of the aforesaid it is evident that the testimony of the prosecutrix was not only supported by the other witnesses whom she mentioned the incident immediately after the same. In addition, it has been proved that the appellant has committed such sexual intercourse with the prosecutrix without her consent so the trial Court has not committed any error in holding the same. In addition, it has been proved that the appellant has committed such sexual intercourse with the prosecutrix without her consent so the trial Court has not committed any error in holding the same. Hence the findings of the impugned judgment do not require any interference in this regard. Thus, the arguments advanced on behalf of the appellant that the available evidence was not properly appreciated by the trial Court, is not sustainable, hence the same fails. ( 12 ) SO far the age of the prosecutrix is concerned, it is settled principles of law that whenever the direct evidence is available the same cannot be superseded on account of the evidence of the expert witnesses like doctors while in the case at hand Dr. Usha kiran Saxena (PW-1) who prepared the MLC of the prosecutrix has found and stated her age in between 9 to 11 years. On referring by her to Dentist Dr. R. K. Pateriya (PW-2 ). He also found her age in between 11 to 12 years as evident by his deposition and his report Ex. P/2. Besides this Bhuwani Bai (PW-4) the mother of the prosecutrix has, stated her age 8 to 10 years. Ramua (PW-5), the father of the prosecutrix stated the age of the prosecutrix 8 to 9 years. The prosecutrix vinai (PW-3) stated her age in her deposition 9 years. In view of aforesaid, direct evidence of her father and mother which is also supported by the said doctors, the trial Court has not committed any error in holding the age of prosecutrix in between 9 to 11 years, in any case below 16 years. Such finding does not require any interference at this stage. The same is hereby affirmed. ( 13 ) THE sexual intercourse with a girl of below 16 years even by her consent is punishable under Section 376 because her consent cannot be treated as valid consent. Although in the case at hand the sexual act of the appellant with the prosecutrix was found against her will by the early part of this judgment. ( 14 ) COMING to the question of jurisdiction over the trial as raised by the counsel for the appellant that the case was triable by Juvenile Court as the appellant was juvenile and below 16 years of age on the date of incident as per Juvenile Justice Act 1987. ( 14 ) COMING to the question of jurisdiction over the trial as raised by the counsel for the appellant that the case was triable by Juvenile Court as the appellant was juvenile and below 16 years of age on the date of incident as per Juvenile Justice Act 1987. According to him the case was wrongly tried by the Sessions Court, contrary to provision of such Act. In this regard minor question was raised by the counsel that no inquiry was held by the trial Court regarding age of the appellant. Such independent inquiry was not necessary in the case. The age of the appellant was mentioned in his MLC report and also in other papers filed along with charge-sheet. In the memo of his arrest, Ex. P/5 his age was mentioned as 19 years. The same is also mentioned in the arrest memo of his clothes, Ex. P/6, in Majarul form Ex. P/9 by which he was sent to hospital for medical examination. Even on his medical examination Dr. B. B. Khare (PW-9) has mentioned his age as 17 years in his report ex. P/9-A and the same is supported by his depositions also. It was not challenged in his cross examination and whatsoever evidence was laid on behalf of the appellant in his defence in this regard that is not reliable. DW-3 Pamma has stated that the appellant being his brother in law (brother of his wife)was only 15 years of age on the date of deposition of this witness but the same is not supported by any material document or circumstance. The other witness rajdhar (DW-4) an Astrologer has deposed his age on account of some Janma Kundli (horoscope) that same was prepared in 1976, neither such Janma Kundli,was produced nor proved. Even the mother of the appellant or other elder person of his family has not been examined in this regard. So in the absence of any cogent circumstance such defence evidence cannot be relied on. In such circumstance on account of non-examination of the mother or father of the appellant on the question of his age, the version of Dr. B. B. Khare (PW-9) is binding against the appellant. So the trial Court has not committed any error to proceed with the trial on the basis of MLC report, Ex. P/9-A and the memo of arrest, Ex. B. B. Khare (PW-9) is binding against the appellant. So the trial Court has not committed any error to proceed with the trial on the basis of MLC report, Ex. P/9-A and the memo of arrest, Ex. P/5, seizure memo, P/6 and Mazarul form, Ex. P/9. Even at the stage of appreciation of evidence in view of deposition of said doctor, the trial court has not found the age of the appellant below 17 years and as per, the then juvenile Justice Act 1987, the age of juvenile was 16 years, hence the trial Court has not committed any error either in holding trial or concluding the same. Besides above, in the circumstances it appears that the trial court has examined and decided the aforesaid question regarding age of the appellant even on appreciation of the evidence. Thus, the arguments in this regard advanced by the appellant that no inquiry was held, is not sustainable and the same fails. ( 15 ) IN view of the aforesaid discussion, the case laws cited by the appellant's counsel are not giving any support to his case as concerning cases as mentioned in the synopsis are based on different circumstances in which the age was disputed on behalf of the concerning accused on the basis of some positive circumstances or some conflicting evidence was available on record and the same was not considered by the trial Court but in the case at hand in view of availability of reliable and admissible evidence the appellant was found 17 years of the age. Thus, this Court has no dispute regarding principles laid down in such cited cases but in the facts and circumstances those are distinguishable and not applicable to this case. ( 16 ) SO far objections of the appellant regarding belated FIR is concerned, the same is not sustainable as the incident took place at about 3 o'clock in the noon and the pros-ecutrix was taken to Police Chouki immediately by putting on the cot and as per deposition of Bhuwanibai, the mother of the prosecutrix, pw-4 the Station House Officer was not available, hence the report was registered at 8-9 o'clock in the night on the date of the incident. Accordingly sufficient explanation regarding aforesaid small delay has been proved by the prosecution. Accordingly sufficient explanation regarding aforesaid small delay has been proved by the prosecution. Even apart from this, it is settled position of law that in the matter of rape which is not only offence against the concerning woman but also against humanity as per tradition of the Indian culture when women or girls are subjected to rape then her family members or parents think about her future also because such type of the incident destroy and damage the entire life of the prosecutrix. Even some times the community does not accept and recognize such victim with all status like other women with whom such incident had not taken place. Thus, in such circumstances some times or some days delay may be caused in lodging the report. Thus, it is held that looking to the nature of the case and available evidence and the manner in which it was committed by the appellant the FIR cannot be doubted by treating it as belated. On the contrary, it is held that the fir was within time and prompt and beyond any suspicion or doubt. ( 17 ) SO far Section 157 of the Cr. P. C. is concerned that soon after registering the offence the intimation of the same was not sent to the concerning Magistrate having the territorial jurisdiction over such Police Station. In view of the evidence available on record in the cross-examination of the Investigating officer Manni Lal Mishra ASI (PW-7) no question was put to him on behalf of the appellant in this regard. It shows that such objection was not raised during trial. As per provision of Section 114 (e) of the Evidence Act. There is a presumption that all the judicial and official act have been regularly performed unless it is not rebutted. So firstly in the absence of the cross examination to I. O. on behalf of the appellant in this regard it is held that such official act was performed by the concerning police in accordance with law. Hence, the appellant cannot be benefited on this count, in view of the aforesaid circumstances the case cited on behalf of the appellant are not helping to him, although this Court has no dispute regarding principles laid down in such cases. Such cases were decided on account of the evidence in which such question was raised and asked to the witnesses during trial. Such cases were decided on account of the evidence in which such question was raised and asked to the witnesses during trial. It is not the circumstance here in the case at hand, hence the cited cases are distinguishable in the facts and circumstances. Hence, the same is not helping to the appellant. ( 18 ) BESIDES above, the question regarding section 157 of Cr. P. C. was considered by the Apex Court on various occasions out of which In the matter of Sarwan Singh v. State of Punjab, reported in AIR 1976 SC 2304 : (1976 Cri LJ 1757, Para 9), their Lordship held as under :"apart from this, it is well settled that mere delay in dispatch of the FIR is not a circumstance which can throw out the prosecution case in its entirety. The matter was considered by this Court in Pala Singh v. State of Punjab, AIR 1972 SC 2679 : (1973 cri LJ 59, Para 7) where this Court observed as follows : "but when we find in this case that the fir was actually recorded without delay and the investigation started on the basis of that fir and there is no other infirmity brought to our notice, then, however improper or objectionable the delayed receipt of the report by the Magistrate concerned it cannot by itself justify the conclusion that the investigation was tainted and the prosecution insupportable. "the observation of this Court aptly apply to the facts of the present case as discussed above. In these circumstances, therefore, we agree with the learned Judges of the High court that the Additional Sessions Judge was not at all justified in rejecting the prosecution case on the ground of the delay in despatch of the FIR in the peculiar circumstances of this case. " ( 19 ) THIS question was also considered and answered by the Division Bench of this court in the matter of Naniya @ Nanuram and others v. State of Madhya Pradesh, reported in 1995 M P L J, Page 439 : (1995 Cri LJ 1870 at p. 1873) which it was held as under:"learned defence counsel, thereafter, submitted that, it has nqt been proved as to whether the information of FIR was sent to the Magistrate under Section 157, Criminal procedure Code and, therefore, the FIR (Ex. P/9)would not be admissible in evidence. P/9)would not be admissible in evidence. Though, it is the requirement of law that the report of the offence, if any, be immediately sent to the Magistrate having jurisdiction but any irregularity in that will not be sufficient to throw the case of the prosecution overboard. What is required is that the evidence should be closely scrutinized and the possibility as to whether FIR has been ante-dated should also be examined. In this case, there is eye-witness account of six witnesses. It is not the case of the defence that they are in any way on inimical terms with the accused persons and, therefore, the entire testimony of all the six eyewitnesses cannot be rejected merely because the fact of information being sent to Magistrate under Section 157, Criminal Procedure code, has not been proved. Even otherwise, it appears that the same was not challenged at the earlier stage and now this point has been raised at appellate stage. " ( 20 ) IN view of the above dictum the approach of this Court as held in the earlier paragraphs of this judgment are fortified. Thus, on account of Section 157 of Cr. P. C. or its non-compliance cannot give any benefit to the appellant. ( 21 ) SO far non-production of concerning rojnamcha entries are concerned in the record Ex. P/11 the letter issued from the s. P. Tikamgarh, showing that the seized clothes of prosecutrix and the appellant were sent to FSL, Sagar and the report of the same, Ex. P/14 was received by the Police. The same is proved on record also. The same is binding against the appellant, hence the objection regarding non-production of the report of FSL is not sustainable. So far rojnamcha entries are concerned, in view of the availability of direct evidence with supporting circumstances against the appellant, mere non-production of such Rojnamcha do not affect the merits of this matter, although the relevancy of the same was not established by the appellant. Hence, objection on behalf of the appellant in this regard are also not sustainable. Therefore, this objection also fails. ( 22 ) IN view of the aforesaid discussion no perversity or inconsistency is found in appreciation of the evidence in the judgment of the trial Court for holding guilty to the appellant under the aforesaid offence, hence there is sufficient circumstance for affirming the judgment of the trial Court. Therefore, this objection also fails. ( 22 ) IN view of the aforesaid discussion no perversity or inconsistency is found in appreciation of the evidence in the judgment of the trial Court for holding guilty to the appellant under the aforesaid offence, hence there is sufficient circumstance for affirming the judgment of the trial Court. ( 23 ) BEFORE parting with the case I would like to say that after holding guilty to the appellant under Section 376 of IPC for committing rape with a girl below 12 years of the age why only four years' R. I. was awarded while under the aforesaid Section, i. e. 376 (2) (f) the maximum jail sentence ten years is prescribed. This question requires serious consideration. Although, the State has not filed any appeal for enhancement of jail sentence in accordance with the provision of Section 376 (2) (f ). It has been decided by the Apex Court in various decisions that the accused cannot be awarded lesser punishment for which minimum punishment is provided under the law. Hence by invoking the power under Section 386 of the cr. P. C. this case is remitted back to the trial Court for deciding a limited question of appropriate punishment with a direction that the trial Court after giving an opportunity to both the parties on the question of sentence in view of the aforesaid provision shall pass an appropriate punishment/ sentence to the appellant within one month in accordance with the aforesaid provision without influencing from any observation made in the Judgment in this regard. ( 24 ) IN view of the aforesaid discussion, the appeal is hereby dismissed. The judgment of the trial Court is hereby affirmed but the case is remitted back for limited purpose as said in foregoing paragraph for consideration to impose appropriate punishment as per provision of Section 376 (2) (f)of the IPC after giving opportunity of hearing to the parties within aforesaid duration. In view of the aforesaid the bail bond and surety bond of the appellant are hereby cancelled and he is directed to surrender himself before the trial Court within 15 days from today for facing the imposed remaining jail sentence failing which the trial Court shall take an endeavour to serve the sentence to the appellant. Appeal dismissed. .