Judgment Rajesh H. Shukla, J.—The present Appeals are directed against the judgment and order dated 1.12.2007 passed by the learned Additional Sessions Judge and Fast Track Court, Bhavnagar at Mahuva in Sessions Case No. 218 of 1994 recording conviction of the Accused No. 1 - Vallabhbhai Naranbhai Kharak (“A-1”) for offences under Sections 376, 366, 506(2) and 114 of the Indian Penal Code (“IPC”) and imposing sentence as stated in the judgment. The conviction of Accused No. 2 - Jitubhai Nathabhai Kharak (“A-2”) is recorded for the offences under Sections 366 and 114 of IPC and imposing the sentence as stated in the judgment and also recording conviction of Accused No. 3-Rameshbhai Bhayabhai Koli (“A-3”) for the offences under Sections 366 and 114 of IPC and awarding sentence as stated in the judgment. The sentences were ordered to run concurrently. 2.0 The facts of the case briefly stated are as follows: 2.1 It is the case of the prosecution that the victim was at her residence with her mother-in-law and sister-in-law. The A-2 had come stating that her father is at the dispensary of Dr. Bhoot and she is called there and therefore he has come to take her in rickshaw. Thereupon she accompanied by her minor son and proceeded with A-2. However, when the rickshaw had proceeded towards Bandar Road, she inquired as to why it is going towards Bandar Road instead of dispensary. She also stated that when the rickshaw had proceeded, it was stopped on a road, where A-1 was standing there and he also boarded the rickshaw. Thereafter, the rickshaw proceeded further and when she tried to resist, she was stopped by A-1. Thereafter the rickshaw was stopped near bushes and she was dragged by A-1 in the bushes and the minor son and rickshaw driver were in the rickshaw. The A-1, who had dragged her to bushes, committed rape on her as narrated in detail in the FIR lodged by her. It is also stated that thereafter she returned to her house and informed to the family members and when the male members decided, the complaint came to be lodged (Exh.41) for the said offences. The FIR being I-CR No. 112 of 1994 at Mahuva Police Station came to be registered for the offences under Sections 376, 366, 506(2) and 114 of IPC. 3. The FIR being I-CR No. 112 of 1994 at Mahuva Police Station came to be registered for the offences under Sections 376, 366, 506(2) and 114 of IPC. 3. On the basis of the complaint given by the complainant - victim, the investigation was made and after the investigation was over, the charge sheet was filed. As the offences under Sections 376, 366, 506(2) and 114 of IPC were exclusively Triable by the Court of Sessions, the learned Magistrate committed the case to the Court of Sessions. Thereafter the learned Additional Sessions Judge and Fast Track Court at Mahuva framed the charge against the accused persons for the alleged offence under Sections 376, 366, 506(2) and 114 of IPC and proceeded with the trial. 4. In order to bring home the charges levelled against the accused persons, the prosecution has examined the witnesses as stated in detail in the judgment. The prosecution has also produced documentary evidence which shall be referred to in the judgment. 5. After recording the evidence of the prosecution witnesses was over, the learned Additional Sessions Judge recorded further statement of the accused persons under Section 313 of Criminal Procedure Code. 6. After hearing the learned Public Prosecutor as well as the learned Advocates, the learned Additional Sessions Judge and Fast Track Court, Mahuva, convicted the accused persons as stated hereinabove. 7. It is this judgment and order which has been assailed in the present Criminal Appeals on the ground inter alia that the conviction of the accused persons for the alleged offences has been recorded erroneously and the learned Judge has failed to appreciate the material evidence on record. It is also submitted that the prosecution has failed to establish beyond reasonable doubt the charges levelled against the accused persons, including the alleged incident. The contention is also raised with regard to the appreciation of evidence that the evidence of the victim does not inspire confidence and cannot be believed. Referring to the deposition of witnesses, the contentions have also been raised regarding contradictions / discrepancies and it has been submitted that the learned Judge has committed an error in appreciating the material evidence on record. 8.0 Learned Senior Counsel Mr. Y.S. Lakhani appearing with Mr. Ashish M. Dagli for A-1 and A-2 has summarized the contentions as follows: 8.1 Learned Senior Counsel Mr. 8.0 Learned Senior Counsel Mr. Y.S. Lakhani appearing with Mr. Ashish M. Dagli for A-1 and A-2 has summarized the contentions as follows: 8.1 Learned Senior Counsel Mr. Lakhani submitted that the entire case of the prosecution is suffering from discrepancies and the learned Judge has not considered the very basis about the prosecution case. He emphasized and submitted that the very basis of the prosecution case is not proved. Learned Senior Counsel Mr. Lakhani submitted that if the case of the prosecution is examined, the following aspects, which are not considered or appreciated, may be appreciated: (i) Referring to the testimony of the complainant - victim at Exhibit 23 wherein it is stated that she has filed a complaint, whereas, it is stated by the witness - Jamnaben that the complaint was filed by the husband of the victim as per her testimony at Exhibit 25. (ii) The narration of the incident and subsequent events create serious doubts about the allegation or the theory of rape. 9. Learned Senior Counsel Mr. Lakhani referred to the testimony of the witnesses and also the documentary evidence and submitted that the version of the victim cannot be believed. He further emphasized the testimony of the victim about the manner in which the incident had occurred, is not corroborated by the medical evidence. For that purpose he referred to the medical evidence in the form of testimony of Dr. Vallabhbhai Devsibhai at Exhibit 20 and the injury certificate of the victim at Exhibit 22 and also the injury certificate of the A-1 at Exhibit 15. Learned Counsel Mr. Lakhani submitted that the scrutiny of the medical certificate is not supporting the case of the prosecution and the version of the victim. For that purpose, he pointedly referred to the medical certificate / injury certificate at Exhibit 22 and submitted that in the said certificate, though the Doctor has recorded the history, the victim has not stated about rape or forceable intercourse. There are no marks of external injuries shown in vulva or thigh. Referring to the medical certificate / injury certificate of A-1, he further submitted that there are no external marks of injuries. He also referred to the testimony of Dr. Vallabhbhai Devsibhai at Exhibit 20 and emphasized that while giving the history, the victim had not stated about the rape having been committed. Referring to the medical certificate / injury certificate of A-1, he further submitted that there are no external marks of injuries. He also referred to the testimony of Dr. Vallabhbhai Devsibhai at Exhibit 20 and emphasized that while giving the history, the victim had not stated about the rape having been committed. She has not stated the name of the person who had committed the intercourse. Learned Senior Counsel Mr. Lakhani also submitted that the time of the incident is stated to be 10:00 AM. He further submitted that infact she had left to visit the father at Hospital at 10:30 AM. Therefore, learned Senior Counsel Mr. Lakhani strenuously submitted that in light of the medical evidence and the injury certificate of the victim as well as A-1, the version of the victim about the incident cannot be believed. 10. Learned Senior Counsel Mr. Lakhani also referred to the other corroborative evidence in the form of the clothes of the victim and has again referred to the testimony of the victim, wherein she has stated that she had washed off the clothes after the incident. Therefore, learned Senior Counsel Mr. Lakhani strenuously submitted that, when, according to her own say, the clothes were washed off, then the stains could not have been found on the clothes. He therefore submitted that it is a matter which requires serious consideration though the FSL report suggests about the presence of semens on her petticoat. He also referred to the FSL report at Exhibit 67. For that purpose, learned Counsel Mr. Lakhani referred to the testimony of the victim as well as the testimony of her sister-in-law - Jamnaben at Exhibit 25 and also the testimony of the neighbour - Prabhaben at Exhibit 24 and tried to emphasize about the fact that both the witnesses have stated inconsistently. Referring to the testimony of Prabhaben at Exhibit 24, he emphasized that she has stated that the victim had washed off her clothes whereas in the testimony of sister-in-law at Exhibit 25 - she has stated that when the victim returned after the incident, she was at home and thereafter mother-in-law was called. When the victim returned to the house after the incident, she washed off her clothes and both of them were alone. Further, learned Senior Counsel Mr. When the victim returned to the house after the incident, she washed off her clothes and both of them were alone. Further, learned Senior Counsel Mr. Lakhani referred to these aspect about the clothes and submitted that while narrating about the incident she has referred to the fact that she was dragged in the bushes and at that time, the clothes would have torn, but as can be seen from the panchnama at Exhibit 11, the clothes were not torn. Further, it was emphasized that she had produced three clothes, whereas, as stated by the victim that at the time of incident she was having her periods and was having pieces, for which there is no explanation, and therefore, she has not stated about the removal of these clothes. He strenuously submitted that therefore, the say about the rape is not believable and it does not inspire confidence. Learned Counsel Mr. Lakhani further emphasized and submitted that, in her version, she has stated that she had produced the clothes before the police when she lodged the complaint at the police station, whereas in the panchnama, which is at Exhibit 11, it is stated that it was recovered at her house by making the panchnama at Exhibit 11. Therefore, learned Counsel Mr. Lakhani submitted that this discrepancy and the manner in which the incident is said to have occurred, raises serious doubts and particularly when the testimony of the victim is not corroborated by medical evidence with regard to the injuries like - bruises on her back or other injuries. Whether such accusation can be believed. He further emphasized and submitted that the victim was fully grown woman and mother of child and therefore she would have offered the resistance and in that process there may be some kind of injuries on her person as well as on the accused. But, as can be seen, she had no injuries except some abrasions on her elbow and knees. Therefore, learned Counsel Mr. Lakhani submitted that the incident narrated in the complaint as well as in her testimony, would not inspire confidence as it has not been corroborated sufficiently by medical evidence. He therefore submitted that the judgment and order recording conviction is liable to be set aside. 11. Learned Counsel Mr. Therefore, learned Counsel Mr. Lakhani submitted that the incident narrated in the complaint as well as in her testimony, would not inspire confidence as it has not been corroborated sufficiently by medical evidence. He therefore submitted that the judgment and order recording conviction is liable to be set aside. 11. Learned Counsel Mr. Lakhani for the A-2 submitted that as can be seen from the charge sheet and the papers, at the relevant time the A-2 was aged about 17 years and therefore he was juvenile, which is not appreciated. He further submitted that the details were called for and it is confirmed that he was juvenile at the time of incident and yet the conviction has been recorded, which is required to be set aside. For that purpose, he referred to the Juvenile Justice Act with Amendment, including the Amendment Act of 2000 and 2006 as well as the judgments of the Hon’ble Apex Court in case of in the case of Bakthavatchalu vs. State of Tamil Nadu, 2008 AIR SCW 1456, Pratap Singh vs. State of Jharkhand & Anr., 2005 (3) SCC 551 and also the judgment of this Court in case of Yusufbhai @ Isubbhai Umarbhai Mallek vs. State of Gujarat & Anr., 2009 (3) GLR 2727 and submitted that considering the manner and the benefit to be granted under Section 20 after the Amendment Act in 2006, the relevant date for determining the juvenility of the offender is the date of incident. He therefore submitted that as the A-2 was below the age of 18 years, he should have been granted the benefit of Section 20 read with Section 2(1) of the Juvenile Justice Act and therefore this aspect may be considered for A-2 and he may be acquitted. Alternatively, it was submitted that the sentence may be modified. 12. Learned Advocate Mr. J.M. Buddhbhatti appearing for A-3 submitted that he has not been admittedly involved in the alleged offence under Section 376 and even as per the case of the prosecution he was driving the rickshaw and he was with rickshaw and the minor child, and therefore, no role has been attributed for the offence under Section 376. He further emphasized that even for offence under Sections 366 and 114 of IPC, the learned Judge has failed to appreciate and consider the material and evidence on record. He further emphasized that even for offence under Sections 366 and 114 of IPC, the learned Judge has failed to appreciate and consider the material and evidence on record. He submitted that the identity of A-3 also raises doubts, as no TI parade has been made and even at the time of trial, he may have been identified subsequently. The role or the involvement has not been appreciated by the trial Court. For that purpose, he referred to the testimony of witnesses and submitted that the judgment and order recording conviction of A-3 is not well-founded and deserves to be set aside. 13. Learned APP Mr. K.P. Raval referred to the charge sheet at Exhibit 4 and also the testimony of witnesses including the victim at Exhibit 23 and submitted that she has narrated about the incident in natural manner and it is also corroborated by the medical evidence. For that purpose, he referred to the injury certificate of the victim at Exhibit 22 and the injury certificate of the accused persons at Exhibit 15. Learned APP Mr. Raval pointedly referred to the injury certificate of the victim at Exhibit 22 and submitted that she had narrated about the incident and the history is given, though it may not have been mentioned as “rape” but she has mentioned about “intercourse”. He further referred to the injuries on her elbow and knees. Learned APP Mr. Raval also referred to the testimony of the victim at Exhibit 23 and submitted that she has narrated in detail as to what had transpired and also she had explained about resistance offered and also explained that her leg was pushed and sprained. Further, she has also stated that as her hands were pushed behind, she could not offer any further resistance. Learned APP Mr. Raval therefore submitted that the submission that there are no marks of injury found on the person of the accused persons, or there are no further injuries on the victim, cannot be accepted. He further submitted that there are marks of injuries and as a female when she has been overpowered, it cannot be said that no resistance was offered. He therefore submitted that if the testimony of the victim is truthful and natural and it inspires confidence, the Court may not look in much corroboration. He further submitted that there are marks of injuries and as a female when she has been overpowered, it cannot be said that no resistance was offered. He therefore submitted that if the testimony of the victim is truthful and natural and it inspires confidence, the Court may not look in much corroboration. He further emphasized and submitted that she has narrated the incident as to how the incident had occurred, which cannot be disputed in light of the other evidence like the medical evidence as well as FSL report at Exhibit 62. He also referred to the FSL report and submitted that in the vaginal swab of the victim, the semen is found. Similarly, on the clothes of the victim (petticoat), the semen has been found, which is sufficient to corroborate about the incident and as this is a corroborative evidence supporting the version of the victim about the incident, it cannot be said that the testimony of the victim is unreliable or not trustworthy. He further submitted that the impugned judgment and order recording conviction is just and proper. However, he fairly stated about A-2 that the aspect of juvenility has not been considered by the trial Court and the Court may consider that aspect. 15. In view of the rival submissions, it is required to be considered whether the impugned judgment and order calls for any interference. 16. Before referring to the submissions canvassed by learned Senior Counsel Mr. Y.S. Lakhani, much emphasizing about the testimony of the victim narrating about the incident in her version, a few facts are required to be mentioned. 17. It is admitted that there is no animosity and there is no reason for the victim to implicate A-1 falsely and infact he is related. Further, the say of the victim that A-2 had called her and she had accompanied A-2 for the purpose of visiting her father in the hospital, is also corroborated by other witnesses like testimony of sister-in-law. Further, the testimony of the victim, where, she has narrated about the incident in detail as to what had transpired and also explained about how she was overpowered, is required to be considered. This aspect is also further required to be considered in light of her testimony where she has specifically explained as to how she was overpowered that her leg was pushed and sprained and her hands were pushed behind. This aspect is also further required to be considered in light of her testimony where she has specifically explained as to how she was overpowered that her leg was pushed and sprained and her hands were pushed behind. At the same time, she has explained as to how she was overpowered and she could not offer any further resistance. She has also explained as to how she was prevented from raising shouts by gagging her mouth. Therefore, her testimony is natural and it also cannot be said that it is not corroborated by medical evidence. The injury certificate of the victim at Exhibit 22 suggests about the marks of injury on her elbow as well as on her knees and she has further explained about the fact that she could not offer any further resistance. The say of the applicants - accused persons about having causing the injury on the back which are not found in the injury certificate by itself would not make her version unreliable and her entire testimony cannot be discarded inspite of the corroboration by the medical evidence and also by FSL report. It is required to be mentioned that the stains of semen were found on her clothes. Though the contention has been raised by learned Senior Counsel Mr. Lakhani that if it was washed, it could not have been there, but again it has been a matter of appreciation of evidence inasmuch as it could have been partially washed off. It is required to be mentioned that in the panchnama at Exhibit 11, it is specifically mentioned that it was half-wet and therefore it cannot be said that all the stains could be washed off and it could not be removed, particularly when the FSL report has reiterated about such stains of semens having been found on the mudamal clothe (petticoat) of the victim. 18. The another aspect that though she was dragged, the clothes were not torn off, also, is not very much material or the relevant incident. What she has stated is that she was dragged, meaning thereby that she was taken to the bushes and thereafter she was thrown off and A-1 had overpowered her and therefore it is not necessary that the clothes would have torn off. What she has stated is that she was dragged, meaning thereby that she was taken to the bushes and thereafter she was thrown off and A-1 had overpowered her and therefore it is not necessary that the clothes would have torn off. It is required to be mentioned that in her testimony at Exhibit 23, the victim has again stated while replying the pointed question as to the incident and the particular act and in response to that specific question put to her, she has clarified and stated that the clothes were not removed but her petticoat was lifted and therefore such a submission that her clothes are not torn off, is misconceived and cannot be accepted. 19. It is required to be appreciated in light of the panchnama of the scene of offence at Exhibit 39 that it was a seashore, where after the bushes, there was sand on the floor and therefore, on the floor when there is a sand, she may not have sustained the injuries. Therefore, this submission which have been made, cannot be accepted brushing aside the direct evidence of the victim in the form of her testimony supported by medical evidence and the FSL report. It is required to be mentioned that while appreciating the evidence of the victim in such a case, the Court is required to be sensitive and the observations made by the Hon’ble Apex Court in case of State vs. Gurmit Singh, (1996) 2 SCC 384 , are required to be considered. The Hon’ble Apex Court has observed: “Of late, crime against women in general and rape in particular is on the increase. It is an irony that while we are celebrating woman’s rights in all spheres, we show little or no concern for her honour. It is a sad reflection on the attitude of indifference of the society towards the violation of human dignity of the victims of sex crimes. We must remember that a rapist not only violates the victim’s privacy and personal integrity, but inevitably causes serious psychological as well as physical harm in the process. Rape is not merely a physical assault - it is often destructive of the whole personality of the victim. A murderer destroys the physical body of his victim, a rapist degrades the very soul of the helpless female. Rape is not merely a physical assault - it is often destructive of the whole personality of the victim. A murderer destroys the physical body of his victim, a rapist degrades the very soul of the helpless female. The courts, therefore, shoulder a great responsibility while trying an accused on charges of rape. They must deal with such cases with utmost sensitivity. The courts should examine the broader probabilities of a case and not get swayed by minor contradictions or insignificant discrepancies in the statement of the prosecutrix, which are not of a fatal nature, to throw out an otherwise reliable prosecution case. If evidence of the prosecutrix inspires confidence, it must be relied upon without seeking corroboration of her statement in material particulars. If for some reason the court finds it difficult to place implicit reliance on her testimony, it may look for evidence which may lend assurance to her testimony, short of corroboration require in the case of an accomplice. The testimony of the prosecutrix must be appreciated in the background of the entire case and the trial court must be alive to its responsibility and be sensitive while dealing with cases involving sexual molestations.” 20. Moreover, the observations made by the Hon’ble Apex Court in case of Wahid Khan vs. State of Madhya Pradesh, (2010) 2 SCC 9 reiterating the settled legal position and the real conditions existing in the society is required to be noted. The Hon’ble Apex Court has observed: “17. It is also a matter of common law that in Indian society any girl or woman would not make such allegations against a person as she is fully aware of the repercussions flowing therefrom. If she is found to be false, she would be looked at by the society with contempt throughout her life. For an unmarried girl, it will be difficult to find a suitable groom. Therefore, unless an offence has really been committed, a girl or a woman would be extremely reluctant even to admit that any such incident had taken place which is likely to reflect on her chastity. She would also be conscious of the danger of being ostracised by the society. It would indeed be difficult for her to survive in Indian Society which is, of course, not as forward-looking as the western countries are.” 21. She would also be conscious of the danger of being ostracised by the society. It would indeed be difficult for her to survive in Indian Society which is, of course, not as forward-looking as the western countries are.” 21. Therefore, once the testimony of the victim is found to be sufficiently trustworthy and natural, no corroboration is required though in the present case, her testimony is corroborated by the medical evidence as discussed above in the form of the injury certificate and FSL report. It is also required to be mentioned that A-1 is in relation as elder brother-in-law where she was respecting, and therefore, the severity of the offence is also required to be considered in background of the relations coupled with the fact that as to how she was carried in the name of visiting her father in the hospital. 22. The alternate submission made by learned Senior Counsel Mr. Lakhani about quantum of punishment qua A-1 that he may be awarded minimum sentence, also cannot be accepted. 23. However, the submissions made by learned Senior Counsel Mr. Lakhani for A-2 that he was a juvenile, which has not been considered and appreciated, is required to be appreciated in light of the amendment in the law. The Juvenile Justice Act has been amended and it has also been interpreted by the Hon’ble Apex Court. However, for the purpose of considering the Juvenile, only he should be juvenile at the time of incident or at the time of the trial, was again a matter of debate, and therefore, the parliament has again amended the Juvenile Justice Act in 2006 with specific proviso to Section 21 inserting the explanation. 24. It has been evident from the language of the Juvenile Justice Act (Amendment Act, 2006), which has also been considered by the Hon’ble Apex Court in a judgment in case of Bakthavatchalu vs. State of Tamil Nadu (Supra) and also by the very Bench of this Court in a judgment in case of Yusufbhai @ Isubbhai Umarbhai Mallek vs. State of Gujarat & Anr. (Supra) and referring to Section 20 and the explanation in Paragraph 10 to 12, it has been specifically discussed that if the accused is juvenile, i.e. less than 18 years of age on the date of incident, it will relate back to the date of incident in view of the amended provision of the Juvenile Justice Act. Therefore, admittedly, as per the record called for by this Court in Criminal Misc. Application No. 15498 of 2007 in Criminal Appeal No. 1462 of 2007 for the purpose of bail, this Court (Coram : Hon’ble Justice Akil Kureshi) while releasing the Applicant accused on bail vide order dated 21.2.2008 has confirmed about the date of birth which is recorded as 1.6.1977 and therefore A-2 would have been below the age of 18 years and would have been entitled to the benefit under Juvenile Justice Act. However, be that as it may, since the judgment has been passed, we do not deem it proper to remand it back as it would again entail a further proceedings before the Juvenile Court at this belated stage, and therefore, we deem it proper that the ultimate object has to be sustained, and therefore, as the A-2 was juvenile, the judgment and order recording conviction cannot be sustained. At the same time, no useful purpose would be served by remanding the matter back, and therefore, A-2 is ordered to be acquitted and released forthwith. 25. The submissions made by learned Advocate Mr. J.M. Buddhbhatti qua A-3 is required to be considered. The role attributed to the A-3 is admittedly that he was a rickshaw driver and he was with rickshaw with the minor son of the victim and the alleged offence under Section 376 is attributed to A-1 only. It is also the case of the prosecution that A-2 had hired the rickshaw and gone to the place of victim stating that she is called at the hospital. Therefore A-3 was merely a rickshaw driver which had been hired, and therefore man not be aware about anything and mere his accompanying the other two accused and his presence by the side of rickshaw by itself would not be sufficient to establish the charges for offence under Section 366 as he cannot be said to have been involved in abducting the victim. It is required to be mentioned that the victim was dragged by A-1 in the bushes and he was with rickshaw. Therefore, according to the prosecution the role attributed is that he has aided A-2. However, as discussed above, it cannot be attributed, i.e. the ingredients for the offence under Section 366 qua A-3 cannot be said to have been established from the material and evidence coupled with the fact that when A-2 being a juvenile, is acquitted and released, it would be in the interest of justice to acquit A-3 also from the charges levelled against him. 26. Therefore, in light of the submissions made by learned Advocate Mr. J.M.Buddhbhatti for A-3 and considering the submission about the identification and the role, we are of the opinion that the judgment and order recording conviction qua A-3 also requires to be quashed and set aside and accordingly, quashed and set aside. A-3-Rameshbhai Bhayabhai Koli is ordered to be released forthwith. 27. However, the judgment and order recording conviction of A-1 - Vallabhbhai Naranbhai Kharak is confirmed and does not call for interference. Therefore, the present Criminal Appeal No. 1683 of 2008 filed by A-1 is hereby stands dismissed whereas Criminal Appeal No. 1462 of 2007 as well as Criminal Appeal No. 1469 of 2007 filed by A-2 and A-3 respectively stands allowed. 28. Since A-1, who is on bail, his bail bond shall stands cancelled and as stated by learned Advocate Mr. Ashish M. Dagli for A-1, the time is granted to surrender upto 12.4.2010. P P P P P