Judgment ( 1. ) BOTHTHE appeals are arising out of one common judgment, therefore,decided by this common judgment. ( 2. ) THE appellants Subhash and Bhuru have challenged their conviction under section 376 of the IPC, sentenced to R. I. for 10 years each passed by the learned first Additional Sessions Judge, Khargone, West Nimar in Sessions Trial No. 308/ 91 judgment dated 2nd September, 1995. ( 3. ) ACCORDING to the prosecution case, on 26. 05. 1999, in the night, at 8. 00p. m. , prosecutrix and her father PW-2 Munshi were returning back to their house after taking night meal in the marriage function of one Kishore Sharma residence of village Thibgaon (Badi ). When they reached near Govt. Nursery two persons attacked on them, out of which one was having sword. Person, who was having sword rushed towards her father to assault because of which father Munshi ran away. Prosecutrix also tried to run away but she was caught and taken in a field wherein maize crop was standing. Both had committed sexual intercourse with prosecutrix against her consent and will and also looted her two golden Bali and nose pin (Nath), at that moment father and other villagers reached heat the field. Prosecutrix raised cry because of which appellants leaving sword in the field fled away. Villagers chased the accused and caught one accused, who disclosed his name Subhash and he had also disclosed the name of his companion i. e. appellant bhuru Pardhi. Prosecutrix disclosed about the incident to the villagers. Appellant subhash with sword was taken to the Police Chowki. Prosecutrix PW-1 lodged the report in the Police Station and was sent for medical examination. Police prepared spot map. Appellant Subhash was also arrested and he was got medically examined by police. On disclosure statement made by the appellant Subhash, from his house nose pin (Nath) was seized. Police collected the clothes of the prosecutrix in a sealed packet from hospital. Clothes of the appellant and prosecutrix as well as slide of vaginal swab were sent to Forensic Science Laboratory and its report is Ex. P/7. On completion of investigation charge-sheet was filed against the appellants for commission of offences under Sections 341 506, 392, 363, 376 of the IPC and under Section 25 of the Arms Act. Appellants denied the charges, therefore, put to trial. They have not examined any witness in defence. P/7. On completion of investigation charge-sheet was filed against the appellants for commission of offences under Sections 341 506, 392, 363, 376 of the IPC and under Section 25 of the Arms Act. Appellants denied the charges, therefore, put to trial. They have not examined any witness in defence. Learned Trial Court finding the appellants guilty, convicted and sentenced them as indicated herein-above. ( 4. ) HAVING heard learned counsel for the parties and on perusal of the entire record carefully, it culled out that conviction of the appellants is based on testimony of PW-1 prosecutrix, PW-2 Munshi, her father and PW-6 Gowardhandas. ( 5. ) THE core question for this Court is to decide whether the statement of these 3 witnesses are sufficient to prove the guilt of the appellant beyond all reasonable doubt. ( 6. ) PW-1 prosecutrix has deposed that she was 14 years of age but prosecution has not filed any documentary or medical evidence to establish age of the prosecutrix. PW-2 Munshi, father of prosecutrix is completely silent about the age of prosecutrix. The medical report of the prosecutrix was not got proved by the prosecution by examining doctor, who medically examined her because doctor was not available. It would be apposite to mention herein that the medical report could have been proved by examine any other employee of the same hospital like ward boy, nurse etc. , who were acquainted with the hand writing and signature of the doctor, as per provision under Section 67 of the Evidence Act and same could have been admissible in evidence as per provision under Section 32 Sub-section 2 of the Evidence Act because the medical report was given by doctor in discharging of his professional duty. It is really a matter of great regret that neither prosecution nor the Trial Court had taken pain to prove medical report of the prosecutrix which could be a very important piece of evidence specially in a case of gang rape and when prosecutrix was 14 years of age. The learned Trial Court could have called as court witness any other doctor or witness from concerned hospital in exercise of its power under Section 311 of the Cr. P. C. for proving the medical report in the interest of justice for just decision of the case and finding out the truth. ( 7. The learned Trial Court could have called as court witness any other doctor or witness from concerned hospital in exercise of its power under Section 311 of the Cr. P. C. for proving the medical report in the interest of justice for just decision of the case and finding out the truth. ( 7. ) PW-1 prosecutrix has deposed that she was returning back in the evening at 7. 00 p. m. along with her father and when they reached near the Gevt. Nursery, she was caught and lifted by the appellants and took in maize crop field. Her salwar was removed and after throwing her on the ground ravished by the appellant bhuru She described the special features of appellant Bhuru saying that he was dudda (what is meaning not known, there is nothing on record ). Learned counsel for the appellant Bhuru has pointed out Photostat copy of certificate of disablement of the appellant filed during the pendency of this appeal wherein it is mentioned that right hand is completely imputed from the wrist joint. Disabled Certificate of appellant Bhuru was not filed during the course of trial. There is no suggestion given to the prosecutrix that his one hand was imputed from wrist joint, same is the position with PW-2 Munshi. Defence has not put any question to any prosecution witness about imputation of right hand of appellant Bhuru from wrist joint and there is no material available to this effect in the record of the Trial court. The incident occurred on 26. 05. 91 in the night. Witnesses were examined in the month of March, 1995, therefore, Photostat copy of the certificate filed by learned counsel for the appellant during the pendency of this appeal in the High Court cannot be taken into consideration and possibility of imputation of hand after incident as well as after pronouncement of judgment by the Trial court cannot be ruled out. ( 8. ) APPELLANT Bhuru was having sword and both appellants threatened prosecutrix and her father. Father successfully ran away but prosecutrix was caught. Prosecutrix identified the appellants in Court and also given special identifying mark. Appellant Bhuru was having some sort of defect in one eye. ( 8. ) APPELLANT Bhuru was having sword and both appellants threatened prosecutrix and her father. Father successfully ran away but prosecutrix was caught. Prosecutrix identified the appellants in Court and also given special identifying mark. Appellant Bhuru was having some sort of defect in one eye. Prosecutrix was ravished by both the appellants because of which she had pain and on cry raised by her, villagers named Abba, Kailash, Chhagan and gowardhandas reached on the spot and appellant Subhash was caught by the villagers. Appellant Bhuru left the sword in the field and ran away. The said sword was seized by. the police. Prosecutrix disclosed about the incident to her father and other villagers. Father and prosecutrix went to the Police Station and lodged the report. Prosecutrix was sent for medical examination and examined by lady doctor. Medical requisition form (Ex. P/12) has been proved by PW-7 Head constable, Shankarlal, over leaf this requisition, medical report is available but according to law, it cannot be read in evidence as discussed herein-above otherwise it could corroborate the statement of the prosecutrix. Learned Trial Court has held that at the time of incident prosecutrix was 10 years of age, which is also clear from medical requisition form (Ex. P/12) and in court statement prosecutrix has disclosed her age 14 years. Court has also mentioned her age 14 years when she was examined on 24. 03. 1995 after about 4 years of incident. ( 9. ) ARTICLE "a" underwear of appellant, article "b" Kurti of prosecutrix and article CI and C2 slides of vaginal swab of prosecutrix were sent for medical examination, to Forensic Science Laboratory and according to Forensic Science laboratory report (Ex. P/7) semen and human spermatozoa was found on these articles. Report has been proved by PW-4 Sub Inspector Shri I. P. Sharma and there is no challenge to the Forensic Science Laboratory report in cross-examination by the appellants. Forensic Science Laboratory report is admissible as per provision under Section 293 of Cr. P. C. ( 10. ) PROSECUTRIX was an unmarried minor girl, therefore, presence of semen and human spermatozoa in slide of vaginal swab as well as on her Kurti is a very incriminating evidence and corroborating to the testimony of prosecutrix, who had no axe to grind against the appellants. P. C. ( 10. ) PROSECUTRIX was an unmarried minor girl, therefore, presence of semen and human spermatozoa in slide of vaginal swab as well as on her Kurti is a very incriminating evidence and corroborating to the testimony of prosecutrix, who had no axe to grind against the appellants. No suggestion was given to the prosecutrix in cross-examination about any kind of previous ill-will with the appellants. Appellant subhash was caught on the spot and he disclosed name of appellant Bhuru as co-accused. Prosecutrix has also given description of Bhuru in First Information Report and in court tallying properly, when prosecutrix was examined in the Court. ( 11. ) STATEMENT of prosecutrix is also fully corroborated by her First Information report (Ex. P/1 ). ( 12. ) PROSECUTRIX remained in the company of the appellants for a pretty long time. Both appellants committed forcible sexual intercourse with her in the field, therefore, she had sufficient time to see, identify and keep their features and personality in her mind. She lodged the report without any delay in the same night at 10. 30 p. m. and distance of Police Station was 11 Km. The description and special features of appellant Bhuru as stated by prosecutrix is fully corroborated by her First Information Report (Ex. P/1 ). In these circumstances, if no Test identification Parade was held by the investigating Agency, no harm would cause to the prosecution case. In case of Malkhan Singh and other V/s. State of M. P. (2003 (5) SCC 446) the dock identification of accused has been relied upon by the supreme Court, because victim was having enough time to see and identify the accused. In the case of rape, accused remains very close to the prosecutrix and because of sexual assault against consent and will memory of incident remained in the mind of the victim for a long period. Supreme Court has observed in paragraph 16 as under :- "in the instant case, the crime was perpetrated in broad daylight. The prosecutrix had sufficient opportunity to observe the featuress of the appellants who raped her one after the other. Before the rape was committed, she was threatened and intimidated by the appellants. After the rape was committed, she was again threatened and intimidated by them. All this must have taken time. The prosecutrix had sufficient opportunity to observe the featuress of the appellants who raped her one after the other. Before the rape was committed, she was threatened and intimidated by the appellants. After the rape was committed, she was again threatened and intimidated by them. All this must have taken time. This is not a case where the identifying witness had only a fleeting glimpse of the appellants on a dark night. She also had a reason to remember their faces as they had committed a heinous offence and put her to shame. She had, therefore, abundant opportunity to notice their featuress. In fact on account of her traumatic and tragic experience the faces of the appellants must have got imprinted in her memory, and there was no chance of her making a mistake about their identity. The prosecutrix appears to be a witness on whom implicit reliance can be placed and there is no reason why she should falsely identify the appellants as the perpetrators of the crime if they had not actually committed the offence. In these circumstances if the courts below have concurrently held that the identification of the appellants by the prosecutrix in court does not require further corroboration, there is no reason to interfere with the finding recorded by the courts below after an appreciation of the evidence on record. " ( 13. ) PW-2 Munshi, father of prosecutrix has also stated that when they reached near Govt. Nursery, both appellants stopped them and asked their names. Appellant bhuru was having sword and about to assault him. At that juncture, they ran away but he escaped successfully and his daughter PW-1 prosecutrix was caught by them. PW-2 Munshi immediately reached in village Kundiya and upon hearing his outcry PW-6 Gowardhandas and other villagers assembled and came on the spot with him. They saw appellants running away from the spot. Appellant Bhuru fled away but appellant Subhash was caught after chasing in the field. Sword was also lying in the field, which was picked up by him and produced in the Police station at the time of lodging of the report. In cross-examination of prosecutrix and witness Munshi some discrepancies have occurred which is bound to come and no witness can give verbatim statement as given in the FIR and statement under Section 161 of Cr. In cross-examination of prosecutrix and witness Munshi some discrepancies have occurred which is bound to come and no witness can give verbatim statement as given in the FIR and statement under Section 161 of Cr. P. C. PW-3 Kailash has deposed that upon hearing cry he and Chhagan reached in the field of one Khushyal where they met PW-2 munshi, who told them that appellant Subhash and one person had caught his daughter. They reached there by running and caught appellant Subhash. Subhash was produced before panch. Though this witness has been declared hostile but his statement regarding hearing of the cry, disclosure by Munshi about catching hold of his daughter by appellant Subhash and co-accused and catching the appellant subhash immediately can be relied upon for corroboration to the testimony of prosecutrix and PW-2 Munshi. It is settled legal position that statement of hostile witness can be used if court finds ring of truth in some material particulars. ( 14. ) PW-6 Gowardhandas has also stated that prosecutrix and her father Munshi disclosed about the incident to them. His statement is also supporting to the statement of the prosecutrix up to some extent about the incident. ( 15. ) PW-7 Head Constable Shankarlal has proved FIR (Ex. P/1 ). Seizure of sword (Ex. P/10), arrest of appellant Subhash through memo (Ex. P/9) on the same day and seizure of his underwear vide seizure memo (Ex. P/11 ). ( 16. ) PW-4 Sub Inspector Shri I. P. Sharma has proved the seizure of sealed packet containing clothes of the prosecutrix and slide brought by Head Constable Shankarlal vide seizure memo Ex. P/6 and sending of seized articles to Forensic Science laboratory. He has also proved Forensic Science Laboratory report Ex. P/7. This report is automatically admissible as per provision under Section 293 of the Cr. P. C. and as discussed herein-above corroborating to the testimony of the prosecutrix about commission of rape with her. ( 17. ) LEARNED counsel for the appellants have submitted that appellants were not charged for commission of offence of gang rape punishable under Section 376 (2) (g)and ingredients of gang rape are also not mentioned in the charge but the learned trial Court convicted the appellants for commission of gang rape and awarded 10 years jail sentence which is illegal. ) LEARNED counsel for the appellants have submitted that appellants were not charged for commission of offence of gang rape punishable under Section 376 (2) (g)and ingredients of gang rape are also not mentioned in the charge but the learned trial Court convicted the appellants for commission of gang rape and awarded 10 years jail sentence which is illegal. According to the learned counsel for the appellants, appellants can be convicted only for offence under Section 376 of the ipc for which minimum 7 years jail sentence is prescribed and looking to the fact that appellants are first offender, they may be awarded minimum jail sentence. ( 18. ) THIS court has perused the contents of the charge and find substance in the argument advanced by learned counsel for the appellants. There is no mention in the charge-sheet about commission of gang rape and ingredients of gang rape are also not mentioned. The appellants have been charged simplicitor for the offence under Section 376 of the IPC. It is true that mentioning of incorrect Section in charge ipso facto is not sufficient to set aside the conviction of the accused and accused has to establish prejudice caused to him as per provision under Section 464 of the Cr. P. C. but in the instant case not only Section but even it is not mentioned that appellants committed sexual intercourse with the prosecutrix one after another in furtherance of the common intention which is the requirement for the punishment of the accused for the offence under Section 376 (2) (g) of the IPC. ( 19. ) LEARNED counsel for the appellants has placed reliance on Supreme Court judgment rendered in case of Lalliram and another V/s. State of M. R (2009)Vol. 1 Supreme Court Cases (Cri.) 1-7) on the point that no injury was found on the person of prosecutrix in her medical examination, therefore, her statement should not be relied upon for commission of rape by two matured male persons. This court has perused this judgment and is of the Opinion that the same is not helpful to the appellant in the facts and circumstances of the instant case. In this case, prosecutrix has stated about pain and other sufferings. This court has perused this judgment and is of the Opinion that the same is not helpful to the appellant in the facts and circumstances of the instant case. In this case, prosecutrix has stated about pain and other sufferings. She was also examined medically without any delay but unfortunately neither the prosecution nor court took pain to brought the medical report on record in accordance with the provisions of Evidence Act as discussed herein-above. In the instant case, even in presence of medical evidence the Forensic Science Laboratory report is sufficient to corroborate the statement of prosecutrix and prosecutrix was a minor girl whereas in case of Lalliram (supra) prosecutrix was a pregnant woman and subjected forcible gang rape. It was alleged that prosecutrix was raped by many persons several times but no injury was found on her person. The Supreme Court has also considered material contradictions, improvements, inconsistency and embellishment in the statement of prosecutrix and other prosecution witnesses such is not a situation in the instant case. Supreme Court has also considered the statement of prosecutrix contrary to the medical evidence, therefore given benefit of doubt to the appellant Lalliram. ( 20. ) CONSEQUENTLY for the reasons stated herein-above both the appeals are allowed in part. Conviction of the appellants is maintained under Section 376 of the IPC but there sentence of R. I. for 10 years is reduced to the sentence of R. I. for 7 years. Appellants are on bail. They are directed to surrender themselves before the Trial Court on 30th November,2009 and Trial Court is directed to send them to jail for serving out the reminder part of jail sentence. ( 21. ) THE original judgment be placed in the record of Cr. A. 804/1995 and a copy thereof be placed in the record of Cr. A. No. 832/1995. Appeal partly allowed.