JUDGMENT N. ANANDA, J.—The appellant (hereinafter referred to as accused) was tried and convicted for offences punishable under Sections 376 and 341 I.P.C. Therefore, he has filed this appeal. 2. I have heard Sri S.K. Venkata Reddy-learned Counsel for appellant-accused and Sri Vijaykumar Majage-learned Government Pleader for the State. 3. The inter se relationship of some of the prosecution witnesses and the case of prosecution may be stated thus: P.W. 1-Anitha Bai is the daughter of P.W. 7-Sevya Nayaka and P.W. 8-Shalibai. P.Ws. 3 to 6 are related to P.W. 1 and accused. The accused is the cousin brother of P.W. 1. The father of P.W. 1 and the father of accused are direct brothers. At the relevant time, they were residents of Jajurayanahalli, Pavagada Taluk, Tumkur District. 4. It is the case of prosecution that during the year 1995, P.W. 1 was aged about 12 years and she was grazing the sheep. On 29.12.1995, P.W. 1 and accused, P.W. 4-Lalu Naik and one Gopi were grazing their sheep in a land near Jajurayanahalli. At about 2.30-3.00 p.m., Gopi s/o Gyananaika, P.W. 4-Lalu Naik s/o Kunte Ramanna returned to village to take food. At that time, P.W. 1 and accused were grazing their sheep near a place called Govinakatte. The accused took P.W. 1 on the pretext of plucking and getting her tamarind fruits. The accused climbed tamarind tree and plucked tamarind fruits and gave them to P.W. 1. The accused suddenly felled P.W. 1 and committed rape on P.W. 1 despite protests by P.W. 1. P.W. 1 somehow managed to escape from the clutches of accused and proceeded towards her village. On the way, she met one Pujari Naik and Lalu Naik and informed them about the incident. They questioned the accused, the accused did not express regrets for what he had done, on the other hand he told that he would not leave any woman except his own sister. P.W. 1 reached the house, her father P.W. 7-Sevya Nayaka and mother P.W. 8-Shalibai were not in the house and she informed the matter to some of the elders of village. 5. On the following day, i.e., on 30.12.1995 at about 4.30 p.m., first information was got written by some person and the same was lodged with the jurisdictional police station (Pavagada Police Station), on the basis of which crime was registered against the accused. 5. On the following day, i.e., on 30.12.1995 at about 4.30 p.m., first information was got written by some person and the same was lodged with the jurisdictional police station (Pavagada Police Station), on the basis of which crime was registered against the accused. P.W. 1 was sent for medical examination and she was examined by P.W. 10-Lakshmi Rajyam who noticed the following: The general condition of the patient was normal. Pulse is also normal. No external injuries over the face, breast and thighs and external geniteria. On P.V. examination (for vaginal examination admit one finger). Lower part of the hymen is torn and reddish. Service normal and pubic hair, vaginal swabs and smears collected and sent for chemical examiner’s report. Clothes are also preserved and sent for chemical examiner’s report. 6. The Investigating Officer visited the place of occurrence and recorded statements of witnesses and submitted charge sheet against accused for offences punishable under Sections 341 and 376 I.P.C. 7. During trial, P.Ws. 1 to 12 were examined and documents as per Exs. P1 to P10 were marked and Material Object, viz., tamarind fruits and dried flowers were collectively marked as M.O. 1. 8. The defence of accused was one of total denial. 9. The learned Trial Judge on appreciation of evidence and on hearing learned counsel for parties, held the accused guilty of offences punishable under Sections 376 and 341 I.P.C. Therefore, accused is before this Court. 10. In this appeal following points would arise for determination: (1) Whether the prosecution has proved that on 29.12.1995 at about 4.00 p.m., when P.W. 1 was grazing sheep near a place called Govinakatte of Jajurayanahalli village, accused induced P.W. 1 to pluck tamarind fruits and thereby accused took her near Halla and fell on her on the ground and committed rape on her against her will, thereby committed an offence punishable under section 376 I.P.C.? (2) Whether the learned Trial Judge has properly appreciated evidence on record? (3) Whether the impugned judgment calls for interference? (4) What order? 11. Out of 12 witnesses examined by the prosecution, material witnesses are P.W. 1 (victim) her father P.W. 7-Sevya Nayaka and mother P.W. 8-Shalibai. The other witnesses are either post occurrence witnesses or witnesses for spot inspection conducted by the Investigating Officer, they have not supported the case of prosecution. The medical evidence is given by P.W. 10-Dr. Lakshmi Rajyam. 12. Out of 12 witnesses examined by the prosecution, material witnesses are P.W. 1 (victim) her father P.W. 7-Sevya Nayaka and mother P.W. 8-Shalibai. The other witnesses are either post occurrence witnesses or witnesses for spot inspection conducted by the Investigating Officer, they have not supported the case of prosecution. The medical evidence is given by P.W. 10-Dr. Lakshmi Rajyam. 12. As per evidence of P.W. 1 and her parents, P.W. 1 was aged about 11-12 years at the time of occurrence. P.W. 1 had not gone to school and there were no school records in proof of her date of birth. The parents of P.W. 1 are shepherds by occupation. They are illiterate persons. The mother of victim has given the age of victim as 11-12 years at the time of occurrence. The report given by the Radiologist in Victoria Hospital, Bangalore, indicates that P.W. 1 (victim) was aged about 15-16 years at the time of occurrence. These facts are not disputed and, therefore, it can be held that the victim was less than 16 years of age at the time of occurrence. The defence has not disputed that P.W. 1 is the cousin sister of the accused. In other words, the father of victim P.W. 7-Sevya Naika and the father of accused, namely, Saviya Naik are direct brothers. 13. P.W. 1 has deposed that, on the date of occurrence she had gone for grazing sheep alongwith co-villagers, namely, Lalu Naik, Gopi, s/o Gyananaika, Lalu Naik s/o Kunte Ramanna and Pujari Hanumanaika and the accused. Around 2.30 p.m., the above two persons namely Lalu Naik and another returned to the village to take food. At that time, accused and P.W. 1 were grazing sheep in a land near Govinakatte. There were tamarind trees nearby. The accused took P.W. 1 to pluck tamarind fruits. The accused climbed tamarind tree and plucked tamarind fruits, P.W. 1 picked up the same. In the meanwhile, one of the sheep ran towards the Halla and P.W. 1 ran towards Halla to get back the sheep, at that time, accused ran towards P.W. 1 and forcibly fell on her and committed rape on her. P.W. 1 has deposed about the acts committed by accused including the act of forcible penetration. 14. During cross-examination, P.W. 1 has admitted that she suffered injuries when she tried to escape from the clutches of accused. P.W. 1 has deposed about the acts committed by accused including the act of forcible penetration. 14. During cross-examination, P.W. 1 has admitted that she suffered injuries when she tried to escape from the clutches of accused. She has admitted that her clothes were stained with blood and there was bleeding from vagina. P.W. 1 has deposed; when she returned home, her father was not in the house, therefore, P.W. 1 and her mother informed the matter to the elders of the village who advised them to lodge a complaint against accused. On the following day, P.W. 1 and her parents went to Pavagada P.S. and got the complaint written by some person and P.W. 1 affixed her LTM and lodged the complaint. P.W. 1 was sent for medical examination and she was examined by P.W. 10-Dr. Lakshmi Rajyam, LMO. 15. The post occurrence witnesses have not supported the case of prosecution, so also the witnesses, who had witnessed spot inspection by the Police Sub-inspector (P.W. 2). 16. The mother of P.W. 1, namely, P.W. 8-Shalibai has deposed; during the evening of day of incident, P.W. 1 was weeping and she told P.W. 8 that accused committed rape on her; P.W. 8 contacted some of the elders in the village as her husband was not in the village; on the following day, they came to Pavagada Police Station and lodged the first information. Similar is the version of the father of victim girl. 17. During cross-examination, P.W. 7 and P.W. 8 admitted that there was enemity between accused on one side and P.W. 7 and P.W. 8 on the other side. They were facing sessions trial for an offence punishable under Section 302 I.P.C., on the allegation that they had committed the murder of junior aunt of P.W. 1, however, P.W. 1 has clarified that alleged incident of murder occurred after the incident of rape. P.W. 1 has further clarified that alleged incident of murder for which the parents of P.W. 1 were arrayed as accused took place several days after the date of incident. P.W. 1 has denied suggestion that she had falsely implicated the accused due to pre-existing enmity between the parents of P.W. 1 and the parents of accused. 18. P.W. 1 has further clarified that alleged incident of murder for which the parents of P.W. 1 were arrayed as accused took place several days after the date of incident. P.W. 1 has denied suggestion that she had falsely implicated the accused due to pre-existing enmity between the parents of P.W. 1 and the parents of accused. 18. P.W. 10-Lakshmi Rajyam-LMO who had examined the P.W. 1 (victim) on 30.12.1995 (on the following day of occurrence) at about 4.00 p.m., noticed the following: There were no external injuries on the face, breast and thighs and external beneteria. On P.V. examination (for vaginal examination admit one finger) Lower part of the hymen is torn and reddish. Services normal and public hair vaginal swabs and smears collected and sent for chemical examiner’s report. Her clothes were collected and sent for chemical examination. 19. Ex. P8 is the Forensic Science Laboratory report wherein the test of seminal stains on pubic hairs, vaginal swab was found to be negative. So also, presence of seminal stains was not detected on the petty coat of the victim. After receipt of FSL report, P.W. 10 has opined that the case does not appears to be a rape. 20. The evidence given by P.W. 11 Dr. V.K. Chowdari relates to examination of accused and his capability to perform sexual intercourse. P.W. 11 had examined accused on 22.2.1996 at about 7.30 p.m., and found that accused was capable of performing sexual intercourse. There are no documents in proof of age of accused. As could be seen from the charge sheet and other documents, accused was aged about 21 years at the time of occurrence. 21. Sri S.K. Venkata Reddy-learned counsel for accused referring to the evidence of P.Ws. 1, 7, 8 and 9 has made following submissions: I. The evidence of victim that accused committed rape on her does not find corroboration from medical evidence. The victim had not suffered external injuries nor there were injuries on her private parts to indicate that she had been subjected to rape. II. There was pre-existing enmity between the family members of victim and family members of accused. In fact, the parents of P.W. 1, namely, P.Ws. 7 and 8 were facing sessions trial for an offence punishable under Section 302 I.P.C., on the allegation that they had committed the murder of junior aunt of P.W. 1. III. II. There was pre-existing enmity between the family members of victim and family members of accused. In fact, the parents of P.W. 1, namely, P.Ws. 7 and 8 were facing sessions trial for an offence punishable under Section 302 I.P.C., on the allegation that they had committed the murder of junior aunt of P.W. 1. III. There was unexplained delay of 24 hours in lodging the first information. The immediate post occurrence witnesses have not supported the case of prosecution. IV. In view of positive opinion furnished by P.W. 10 that it is not a case of rape, the trial Court should not have held the accused guilty of an offence punishable under Section 376 I.P.C. V. The learned Trial Judge without noticing the material discrepancies and lack of medical evidence in support of evidence of prosecution has convicted the accused for an offence punishable under Section 376 I.P.C. Therefore, the impugned judgment cannot be sustained. 22. The learned HCGP would submit that medical evidence given by P.W. 10 indicates that hymen of P.W. 1 was torn and the lower part of vagina was reddish in colour, which clearly indicates that P.W. 1 had been subjected to rape. 23. The learned counsel for accused has relied on a decision of Bombay High Court reported in 1998 Cri.L.J. 3168 in the case of Shivraj Chandrappa Yadav vs. State of Maharashtra and another and a decision of Orissa High Court, reported in 1991 Cri.L.J. 1594, Basudev Naik vs. State. The learned HCGP has relied on the judgment of Supreme Court reported in AIR 1981 SC 559 in the case of Rafiq vs. State of Uttar Pradesh to submit that effect of absence of corroborative evidence depends on the facts and circumstances of the case and credibility and trustworthiness of the victim. 24. The evidence of P.W. 1 is consistent about sexual assault committed by accused. P.W. 1 is the paternal cousin sister of the accused. This relationship between accused and P.W. 1 has not been disputed. In fact, it has been reinforced during cross-examination. At the relevant time, P.W. 1 was less than 16 years of age. The victim was a rustic villager and she was a shepherd by occupation. The father of P.W. 1 and father of accused are direct brothers. It appears there used to be frequent quarrels between them. In fact, it has been reinforced during cross-examination. At the relevant time, P.W. 1 was less than 16 years of age. The victim was a rustic villager and she was a shepherd by occupation. The father of P.W. 1 and father of accused are direct brothers. It appears there used to be frequent quarrels between them. During cross-examination of P.W. 1 it is not established that there was strong enmity between them. The evidence relating to presence of accused near place of occurrence is given by one of the post occurrence witnesses. P.W. 1 had no motives to falsely implicate accused in a case of rape that too when accused is none other than her paternal cousin brother. P.W. 1 was an unmarried girl and she had no reasons to concoct a case of rape against accused would not only led down her honour but also effect her marital prospects. 25. During cross-examination, P.W. 1 has admitted that her father and mother were facing sessions trial for an offence punishable under Section 302 I.P.C. on the allegation that they had committed murder of her junior aunt. P.W. 1 has clarified that alleged incident, occurred several months after the date of incident of rape. Therefore, as on the date of incident of instant case and lodging of first information, P.W. 1 had no reasons to falsely implicate the accused. P.W. 1 is a humble rustic villager and shepherd by occupation and she had not even attended the school. From the evidence of P.W. 8-mother of victim and P.W. 7-father of victim, I find that they did not have any motive to falsely implicate accused. Their evidence does not suggest that they had any enmity against accused to concoct a case of rape against accused that too, by staking modesty of their daughter. The evidence of P.W. 1 cannot be discarded on the ground that there was enemity between the parents of P.W. 1 and the parents of accused. Immediately after the occurrence, P.W. 1 had narrated to her mother as to what had happened. They had also informed the matter to the elders of the village. It appears, accused was not available after the incident. The accused surrendered before the Trial Court on 22.2.1996. The abscondance of accused is also a strong circumstance against him. Immediately after the occurrence, P.W. 1 had narrated to her mother as to what had happened. They had also informed the matter to the elders of the village. It appears, accused was not available after the incident. The accused surrendered before the Trial Court on 22.2.1996. The abscondance of accused is also a strong circumstance against him. Though the medical evidence is not completely positive about sexual assault on P.W. 1, evidence of P.W. 10 that on examination of P.W. 1, P.W. 10 found that lower part of hymen of P.W. 1 was torn and it was reddish in colour would support the version of P.W. 1 that she was sexually assaulted by the accused. 26. During cross-examination, P.W. 10 was suggested that partial tearing of hymen and reddish colour of hymen could be due to self-inflicted injuries. It was suggested to P.W. 10 that such an injury could be caused if one were to insert knails into the vagina. These suggestions do not fall within the realm of investigation. The defence of accused that P.W. 1 had inflicted injuries on her vagina by inserting knails to concoct a story of rape against accused is far from truth and it cannot be accepted, particularly in the background of parties and their admitted relationship. 27. I find from the report of Forensic Science Laboratory that test for presence of seminal stains on vaginal swab and presence of spermatozoa on the petty coat of victim was found negative. At this juncture, it is relevant to state that vaginal swab which was collected on the following day, i.e., on 30.12.1995 had been retained by the Investigating Officer till 25.1.1996 and thereafter they were sent to Forensic Science Laboratory. The report of Forensic Science Laboratory is dated 23.9.1996. The test was conducted about few days prior to preparing the report. If the test was conducted after such a long time, it would not be impossible to find the presence of seminal stains and presence of spermatozoa on vaginal swab and petty coat of P.W. 1. Therefore, these lapses on the part of Investigating Officer would not ensure to the benefit of accused or there cannot be grounds to discard evidence of P.W. 1. 28. The cross-examination of P.W. 1 does not indicate that she had other reasons for suffering injuries noticed by the Medical Officer. Therefore, these lapses on the part of Investigating Officer would not ensure to the benefit of accused or there cannot be grounds to discard evidence of P.W. 1. 28. The cross-examination of P.W. 1 does not indicate that she had other reasons for suffering injuries noticed by the Medical Officer. From cross-examination of P.W. 1, it is not established that P.W. 1 had reasons to falsely implicate the accused who is none other than her paternal cousin brother that too, at the risk of exposing her chastity and modesty. Therefore, I do not find any reasons to suspect the evidence of P.W. 1. Though the medical evidence does not completely support the version of P.W. 1, the evidence of P.W. 10 and contents of wound certificate indicating that lower part of hymen of P.W. 1 was torn and it was reddish in colour, would support evidence of P.W. 1 that accused committed rape on her. Therefore, the submission of learned counsel for accused that there is lack of medical evidence and the prosecution has failed to prove the essential ingredients of rape to attract an offence punishable under Section 376 IPC cannot be accepted. 29. In a decision of the Bombay High Court, reported supra in the case of Shivraj Chandrappa Yadav vs. State of Maharashtra and another the accused was tried for offences punishable under sections 354 and 342 I.P.C. 30. In a decision of Orissa High Court, reported supra, Basudev Naik vs. State, the Court having regard to the age of accused and time of occurrence has held the accused guilty of an offence punishable under Sections 354 and 324 I.P.C. Therefore, what has been held in afore stated decisions is not applicable to the instant case. 31. In the instant case, P.W. 1 has given the details of sexual assault committed on her, which would constitute essential ingredients of offence of rape. In the circumstances, I do not find any reasons to suspect the evidence of P.W. 1. The learned Trial Judge on proper appreciation of evidence held the accused guilty of an offence punishable under Section 376 I.P.C. 32. The learned Trial Judge has sentenced the accused to undergo R.I. for a period of 10 years and to pay a fine of Rs. The learned Trial Judge on proper appreciation of evidence held the accused guilty of an offence punishable under Section 376 I.P.C. 32. The learned Trial Judge has sentenced the accused to undergo R.I. for a period of 10 years and to pay a fine of Rs. 10,000/-, in default to undergo simple imprisonment for a period of 8 months for an offence punishable under Section 376 I.P.C., and further sentenced to undergo simple imprisonment for a period of one month for an offence punishable under Section 341 I.P.C. 33. Under section 376 I.P.C., an offence of rape is punishable with imprisonment of either description for a term which shall not be less than seven years but which may be for life or for a term which may extend to 10 years or and shall also be liable to fine. Under proviso to Section 376, the Court may, for adequate and special reasons to be mentioned impose imprisonment for a term of less than 7 years. 34. In the case on hand, the Trial Court has sentenced the accused to undergo imprisonment for a period of 10 years. The learned Trial Judge has not assigned any reasons for imposing sentence of imprisonment for a period of ten years. In view of the sentence passed for an offence under Section 376 I.P.C., there is no need to pass a separate sentence for an offence under Section 342 I.P.C., as wrongful restraint is essentially involved in an offence punishable under Section 376 I.P.C. The accused does not bear any criminal antecedents. He has chances to reform. 35. Therefore, while confirming the judgment of conviction, I modify the sentence and pass the following: ORDER The appeal is accepted in part. The conviction of accused for offences under Sections 376 and 341 I.P.C., is confirmed. The accused is sentenced to undergo simple imprisonment for a period of 7 years for an offence punishable under Section 376 I.P.C. The fine by the Trial Court for an offence under Section 376 I.P.C. is confirmed. The sentence imposed for an offence under Section 341 I.P.C. is set aside. The benefit extended under Section 428 Cr.P.C. is confirmed.