JUDGMENT Sanjay Karol, J. For an offence, which is alleged to have been committed on 4.6.1995, accused was put to trial. In terms of judgment dated 17.11.1999 passed by the learned Sessions Judge, Chamba Division, Chamba, H.P. in Sessions Trial No. 2 of 1996, titled as State versus Prem Lal, accused stands acquitted of the offences punishable under Sections 376 and 506 I.P.C. 2. It is the case of the prosecution that on 4.6.1995 at about 1.30 p.m. prosecutrix (PW-16), resident of village Saintha, had gone to collect grass from the jungle. There at about 2.00 p.m. accused caught her and after gagging her mouth, took her to the nearby Nala where he forcibly committed sexual intercourse with her without her consent. Accused also tore her clothes. After committing the crime accused ran away from the spot. Prosecutrix came home and narrated the incident to her mother Smt. Ratanu (PW-2). Sh. Kishan Chand (PW-1), father of the prosecutrix, took her first to the police at Tissa and then to Chamba where he moved petition (Ext. PA) to the Deputy Commissioner, Chamba on the basis of which F.I.R. No. 55/1995 (Ext. PH) dated 6.6.1995 was registered at Police Station, Tissa under Section 376 I.P.C. Police got the prosecutrix medically examined through Dr. Brij Bala (PW-5) who issued medical certificate (Ext. PE). Since prosecutrix was minor, Doctor opined determination of her radiological age. Consequently prosecutrix was got medically examined through Dr. Lokender Badotra (PW-6) Dental Surgeon and Dr. R. K. Mahajan (PW-7) Radiologist who issued certificates (Ext. PE/2 and Ext. PF/1). As per the doctors prosecutrix was less than thirteen years of age. Certificate (Ext. PK) issued by Sh. Nikka Ram (PW-13), showing the date of birth of the prosecutrix to be 15.6.1982 was also taken by the police on record. Accused was got medically examined through Dr. O.P. Puri (PW-4) who issued certificate (Ext. PD). Clothes of the prosecutrix and the accused were seized by the police and sent for chemical analysis and report of the chemical examiner (Ext.PG) taken on record. 3. With the completion of investigation challan was presented in the Court for trial. Accused was charged for having committed offences punishable under Sections 376 and 506 I.P.C. to which he did not plead guilty and claimed trial. 4. In order to prove its case prosecution examined seventeen witnesses and the statement of the accused under Section 313 Cr. 3. With the completion of investigation challan was presented in the Court for trial. Accused was charged for having committed offences punishable under Sections 376 and 506 I.P.C. to which he did not plead guilty and claimed trial. 4. In order to prove its case prosecution examined seventeen witnesses and the statement of the accused under Section 313 Cr. P.C. was recorded. While answering questions No. 12 and 13 accused stated that:- “Q.12. Why this case has been made against you? Ans. This case has been made on account of enmity because Shri Negi Ram, uncle of the prosecutrix had given beatings to my uncle Sh. Baga Ram prior to the said incident, as a result of which the uncle of the prosecutrix was sent to prison. Q.13. Why the witnesses have deposed against you? Ans. They have deposed falsely due to the said enmity.” 5. As desired accused was afforded opportunity of leading evidence. In spite of opportunity he did not examine three witnesses, cited by him, on the ground that they were unnecessary. 6. The Court below acquitted the accused of the charged offences. Hence the present appeal. 7. The reasons for acquitting the accused, as is evident from the impugned judgment, are: (i) spot witnesses i.e. Sh. Devi Ditta (PW-3) and Smt. Narainu Devi (PW-12) turned hostile; (ii) the parents of the prosecutrix i.e. father Sh. Kishan Chand (PW-1) and mother Smt. Ratanu Devi (PW-2), also did not support the prosecution; (iii) opinion of the Doctor (PW-5) to the effect that the prosecutrix was subjected to sexual intercourse, was based not on clinical examination but report of the chemical examiner (Ext. PG). Doctor could not have given such opinion; (iv) prosecution could not prove the age of the prosecutrix as neither the Doctors (PW-6 and PW-7) knew her personally nor was she shown to them in Court; (v) statement of Dr. O.P. Puri (PW-4) who examined the accused could not conclusively prove that the accused was in a capacity to perform sexual intercourse; (vi) there was contradiction with regard to the exact place of offence. 8. Having minutely examined the material on record, including the statements of the witnesses we are saddened to note that the Court below has adopted a very perfunctory, callous and insensitive approach in appreciating the material on record. 8. Having minutely examined the material on record, including the statements of the witnesses we are saddened to note that the Court below has adopted a very perfunctory, callous and insensitive approach in appreciating the material on record. Court was dealing with a case where a girl, alleged to be a minor, was raped by the accused. It was one of those rare but unfortunate cases, where inspite of the parents not supporting their daughter prosecutrix stood her ground and narrated the truth. The Court ought to have appreciated the material on record with a greater circumspection and care. Reasons for acquittal are perverse and not borne out from the record. In our view this insensitive approach adopted by the Court has resulted into miscarriage and travesty of justice. 9. In all prosecution examined seventeen witnesses which can be divided into four sections. First set of witnesses comprise the complainant, prosecutrix and the independent witnesses i.e. Sh. Kishan Chand (PW-1), Smt. Ratanu (PW-2), Sh. Devi Ditta (PW-3), Smt. Narainu Devi (PW-12) and the prosecutrix (PW-16). Dr. Brij Bala (PW-5), Dr. Lokender Badotra (PW-6), Dr. R. K. Mahajan (PW7) and Sh. Nikka Ram (PW-13) Panchayat Secretary are the second set of witnesses. They prove the age of the prosecutrix. Third set is Dr. O. P. Puri (PW-4) who examined the accused. The fourth set comprise of the police and other official witnesses who carried out the investigation. They are ASI-Krishan Lal (PW-8), ASI-Puran Chand (PW-9), Constable Suresh Kumar (PW-10), ASI- Karam Singh (PW11), ASI- Chatter Singh (PW-14), Inspector Hirdu Ram (PW-15) and SI-Krishan Chand (PW-17). 10. We shall first deal with the age of the prosecutrix. In her statement prosecutrix does not disclose her age. However in a suggestion put to her by the accused, she specifically denies that on 7.4.1999, the date on which her statement was recorded, she was 20 years of age. She admits that she is two years younger to her brother and that her brother is 17 years of age. Her father (PW-1), who was examined on 24.11.1998, unrefutedly states that prosecutrix was 17 years of age. It is true that he does not remember prosecutrix being 12 years age at the time of alleged offence but admits her to be his second child. This implies that in the year 1995 prosecutrix was 14 years of age. 11. Her father (PW-1), who was examined on 24.11.1998, unrefutedly states that prosecutrix was 17 years of age. It is true that he does not remember prosecutrix being 12 years age at the time of alleged offence but admits her to be his second child. This implies that in the year 1995 prosecutrix was 14 years of age. 11. Smt. Ratanu (PW-2) who was examined in the Court on 24.11.1998 was declared hostile. When examined by the Public Prosecutor even she categorically admits that at the time of the alleged offence prosecutrix was 12 years of age. Upon being cross examined by the accused she admits that the age of her eldest son is 21 – 22 years. However she could not state that prosecutrix was 19 – 20 years of age. 12. It is evident that prosecutrix had a brother who was two years elder to her. If according to the mother age of her eldest child was 21 – 22 years then obviously, as on the date when her statement was recorded in Court, prosecutrix was 19 – 20 years. Thus her statement does not support the prosecution. It is rather unfortunate that she being the mother has not supported her daughter was declared hostile. The reason is not far to seek. From the unrebutted statement of Smt. Narainu (PW-12), who was also declared hostile it stands proved that talks of compromise between accused and the parents of the prosecutrix had taken place. However while being cross examined by Public Prosecutor, unwillingly she has spoken some truth. In no uncertain terms she deposed that at the time of the alleged offence her daughter was 12 years of age. On the issue even if we were to discard the statements of the parents even then there is other clinching, convincing and reliable material on record. 13. Prosecution, in our considered view, has been able to prove, by leading clear, cogent and convincing material that as on the date of the alleged offence, prosecutrix was about 13 years of age. Sh. Nikka Ram (PW-13) has proved the relevant abstract (Ext. PK) of the Pariwar Register. As per the said document prosecutrix was born on 15.6.1982. 13. Prosecution, in our considered view, has been able to prove, by leading clear, cogent and convincing material that as on the date of the alleged offence, prosecutrix was about 13 years of age. Sh. Nikka Ram (PW-13) has proved the relevant abstract (Ext. PK) of the Pariwar Register. As per the said document prosecutrix was born on 15.6.1982. Normally we would have not relied upon this piece of evidence but for the fact that in the suggestion put by the accused himself, the witness, in no uncertain and uncontroverted terms, has clarified that entries in the Pariwar Register were made on the basis of the Birth Register. 14. According to Dr. Brij Bala (PW-5), for age verification she referred the prosecutrix to the Dental Surgeon and Radiologist. She herself filled up the X-ray form (Ext. PF). Prosecutrix was accordingly medically examined by Dr. Lokender Badotra (PW-6) and Dr. R. K. Mahajan (PW-7). For proper appreciation their testimonies are reproduced in toto:- “PW-6. Statement of Dr. Lokender Badotra, Dental Surgeon, District Hospital, Chamba. -On S.A. I am working as Dental Surgeon in D.H. Chamba since 1988. On 7.6.95, at 3.40 PM, I examined Chhakko D/o Kishan Chand to determine her dental age who was referred to me by Dr. Brij Bala Sharma and my observations are as follows: I had compared the marks of identification on the MLC. There were in all 28 teeth present in the mouth of the prosecutrix. Lower right first premolar was infra occlusion i.e. below the occlusal level of the adjacent teeth. There was no decayed missing or filled teeth. The wisdom teeth on each side of the jaw were not visible or pubpable with fingers and in my opinion, the dental age of the examinee was about 13 years. I had endorsed my opinion Ext. PE/2 on Ext. PE. It is correct that I did not know the prosecutrix personally, nor she has been shown to me today in the court. It is incorrect that the formation of teeth depends upon climatic conditions or dietary habits, as these are not part of bones.” “PW-7. Statement of Dr. R. K. Mahajan, Radiologist, Zonal Hospital, Dharamshala – On S.A. I was posted in D.H. Chamba in October, 1995. On 8.6.1995, Chhakko Devi was preferred to me for her age verification vide x-ray form Ext. PF by Dr. Brij Bala Sharma. Statement of Dr. R. K. Mahajan, Radiologist, Zonal Hospital, Dharamshala – On S.A. I was posted in D.H. Chamba in October, 1995. On 8.6.1995, Chhakko Devi was preferred to me for her age verification vide x-ray form Ext. PF by Dr. Brij Bala Sharma. I got conducted her x-rays under my supervision and the skiagrams are Ext. P.1 and P.2. On the basis of the fusion of the epiphysis, her age was less than 13 years and my opinion in this respect is Ext. PF/1. From the present skiagrams, I am not in a position to state the lower limit of the skelton age of the prosecution at the time of examination. It is correct that I did not know the prosecutrix personally nor she has been shown to me today in the court. It is correct that ossification of bones depends upon hereditary, climatic and dietary factors.” 15. On the question of age there is no cross examination by the accused. There testimonies are clear, convincing and reliable. From the same it is thus evident that prosecutrix was less than 13 years of age, which fact stands corroborated by the record maintained by the panchayat. Thus to our mind prosecution has been able to prove, beyond reasonable doubt, the fact that as on the date of the alleged offence prosecutrix was a minor. 16. Identity of the prosecutrix was not in dispute. The Doctors categorically deposed that they had compared identification marks indicated on the M.L.C. Thus in our considered view the Court below seriously erred in coming to the conclusion that the statements of the Doctors PW-6 and PW-7 could not be relied upon in support of the prosecution case. 17. It cannot be disputed that the prosecutrix is illiterate. On the M.L.C. she has put her thumb mark for the reason that she cannot sign. She is a resident of an extremely backward area which is also the remotest corner of the State. It is the version of PW-1 that he took the prosecutrix to the Police Station at Tissa where he lodged report and then came to Chamba and moved an application (Ext. PA) before the Deputy Commissioner based at Chamba. Noticeably it is this application which was forwarded to Police Station, Tissa. 18. We may note that application (Ext. PA) is dated 6.6.1995 i.e. two days after the alleged offence took place. PA) before the Deputy Commissioner based at Chamba. Noticeably it is this application which was forwarded to Police Station, Tissa. 18. We may note that application (Ext. PA) is dated 6.6.1995 i.e. two days after the alleged offence took place. Contents of the application are not in dispute. Ext. PA clearly records the fact that on 5.6.1995 PW-1 had gone to Police Station, Tissa. Since he could not find any one there therefore he came to Chamba to report the matter. Thus it is clear that only one report was lodged by the father. It was on this application that F.I.R. (Ext. PH) was registered. 19. Further according to the father prosecutrix had told her mother that she could not identify the accused as her face was covered with a piece of cloth, which fact was also narrated by the prosecutrix to him. The mother (PW-2) has however given a different version. She does not state that prosecutrix had told her that the accused could not be identified for the reason that her face was covered with a cloth. She only states that the prosecutrix could not see the accused with her own eyes. However while being cross examined by the learned Public Prosecutor she admits that prosecutrix had told her that the accused had raped her. Sh. Devi Ditta (PW-3) has not supported the prosecution and was declared hostile. Similarly Smt. Narainu (PW-12) was also declared hostile. On the question of identity of the person who committed the alleged crime they have not supported the prosecution. But we find that the statement of the prosecutrix is evidently clear on this aspect. 20. For proper appreciation of the testimony of the prosecutrix we feel it necessary to reproduce the same in toto. It reads as under:- “PW-16 Statement of –prosecutrix—D/o Sh. Kishan Chand, aged 15 years, R/o Village Saintha, Teh. Churah, Distt. Chamba – On S.A. About four years back, I had gone to collect grass from the jungle. At about 2 PM, accused came there and caught hold of me from my hand, gagged my mouth and took me to a nallah and there he raped me. I then cried and thereafter, the accused ran away from that place. I went to my house crying and disclosed the said incident to my mother. The accused had also torn my clothes. I then cried and thereafter, the accused ran away from that place. I went to my house crying and disclosed the said incident to my mother. The accused had also torn my clothes. Then my father took me to Tissa and then he brought me to Chamba. At Chamba, I was medically examined and was X-rayed also. I had thumb marked the medical certificate, as I do not know how to sign. I am not in a position to give the date, month or year of my birth. None has told me my age, but, it is written. It is incorrect that I had disclosed to my father PW Kishan Chand that I was not able to identify the rapist as he had covered his face. It is incorrect that I had not been able to identify the rapist. Sh. Deep Raj is my elder brother. It is incorrect that he is 22 years of age at present. Volunteered that he is 17 years of age. It is incorrect that I am 20 years of age at present though it is correct that I am two years younger to my brother. The place where I was raped had maize crop growing. It is correct that there are houses in the downward direction of the alleged place of rape. However, it is incorrect that there are houses also on the upward direction or that the place is visible from those houses. There are 12/14 families in our village. There is no house fall on the way in between the alleged place of occurrence and my house. None met me on the path on that day while going to the fields or on return. I had not disclosed about the rape to anybody else except my mother. Though there is a path near the alleged place of occurrence, but, it is quite far away. The maize crop at that time was quite small. It is incorrect that there were big stones at the alleged place of occurrence. Volunteered that small stones were there. The accused had dragged me towards the jungle in the downward direction to a distance of about 40-50 feet. Since I was a small child, I could not resist the accused nor could cause any injury to him. The accused continued raping me for about half an hour. Volunteered that small stones were there. The accused had dragged me towards the jungle in the downward direction to a distance of about 40-50 feet. Since I was a small child, I could not resist the accused nor could cause any injury to him. The accused continued raping me for about half an hour. It is incorrect that I am deposing falsely to the effect that I have been raped by the accused.” (Emphasis supplied) 21. Unambiguously she categorically states that accused raped her. She categorically denies the suggestion that she could not identify the rapist. She explains that maize crop growing at the place where she was raped was quite small. This only explains the absence of injury marks on her body. We find her statement to be convincing. It is a settled position of law that if the statement of the prosecutrix by itself inspires confidence it need not be corroborated by any other piece of evidence. In the instant case we find that her statement is also corroborated by medical evidence on record. 22. According to Dr. Brij Bala (PW-5) when she examined the prosecutrix she observed that labia minora was red, bruised and inflamed. The relevant portion of the statement reads as under:- “Menstrual history: Menarche not yet started. The victim gave the history of slight bleeding after the said assault. General Physical examination: Average built. Weight 31 kgs. Height 145 cms. mentally alert, sound and fully conscious. Systemic examination (heart, lungs, abdomen and CNS) were normal, breasts not developed, axillary and pubic hair absent, no marks of violence or scratches, (abrasions or bruises) were seen on her body. Gait normal. Local Examination: genitals and per vaginal Examination. No seminal or blood stains were found on the thighs and genitals. Pubic hair not developed. Labia mazora thick, firm, elastic and well rounded. Labia minora was red, bruised and inflamed. There was small laceration in the right side which was red and was about 0.75 cms. and bled on touch and was painful. The duration of laceration was within 72 hours. Vestibal normal. Forchette and posterior commuisure intact. Hymen (with a round central opening) was semilunar in shape, margins lacerated, tender, swollen, inflamed and bled on touch. Probable duration of laceration was within 72 hours. and bled on touch and was painful. The duration of laceration was within 72 hours. Vestibal normal. Forchette and posterior commuisure intact. Hymen (with a round central opening) was semilunar in shape, margins lacerated, tender, swollen, inflamed and bled on touch. Probable duration of laceration was within 72 hours. Vagina (the round central round opening in the hymen) was small and narrow and allowed the passage of terminal phalanx of little finger with great difficulty and pain. Vaginal swab taken with great difficulty from posterior fornix, had been duly preserved, packed and sealed alongwith salwar for chemical examination at FSL Shimla. …” (Emphasis supplied) 23. It is quite apparent that prosecutrix had a frail physique and small body structure. Her body had not fully developed. Her private parts were found to be bleeding. Therefore Trial Court erred in coming to the conclusion that only on the basis of the report of the chemical examiner the Doctor had opined about the commission of the alleged crime. The Doctor had physically examined the prosecutrix before arriving to her final conclusion based on the report of the chemical examiner. 24. We may notice that the defence taken by the accused was not even suggested to the prosecutrix during the course of her examination. 25. The police officials have proved the case as per the prosecution version. The initial investigation was carried out by ASI-Krishan Lal (PW-8). ASI-Chatter Singh (PW-14) recorded the statement (Ext. PJ) of Smt. Narainu Devi and Ext. PB of Sh. Devi Ditta. SI-Krishan Chand (PW-17) recorded the statements of parents of the prosecutrix. 26. To our mind there has been no delay in lodging of the F.I.R. Incident took place on 4.6.1995. At the earliest i.e. 6.6.1995 matter was brought to the notice of the Deputy Commissioner, Chamba and F.I.R. registered on the same date. Prosecutrix was also medically examined on the said date. Time gap between 4.6.1995 and 6.6.1995 has been sufficiently explained by the father of the prosecutrix. The statement of the father that the matter was reported after period of five days cannot be said to be correct in these circumstances. The matter was in fact reported within two days. 27. Absence of injuries on the body of the prosecutrix, other than her private parts, would also not render her version to be doubtful. She is just a child. The matter was in fact reported within two days. 27. Absence of injuries on the body of the prosecutrix, other than her private parts, would also not render her version to be doubtful. She is just a child. Accused was a well built boy of 20 years of age. Prosecutrix was in no position to resist his advances. Assuming hypothetically that prosecutrix was a consenting party even then it would not absolve the accused of his guilt. 28. It has been urged by Mr. N. K. Thakur, learned counsel for the accused that identity of the accused is not disclosed by the doctors. This would not make any difference for the reason that the medical examination took place pursuant to registration of the F.I.R. based on complaint (Ext. PA). In the said complaint name of the accused is categorically mentioned. Hence the contention merits rejection. Identity of the prosecutrix is also not in dispute. 29. Contradiction with regard to the place of the rape is minor. It does not go to the root of the matter. According to the prosecutrix, accused dragged her up to the naala where she was raped. On the spot maize crop was sown. Our attention is invited to the site plan which does not mention any naala and the crop is shown as wheat. Nature of the crop is not in issue. In any event faulty investigation cannot be fatal to the prosecution case. 30. The Court below, in our considered view seriously erred in ignoring the statement of the prosecutrix. Even if other independent witnesses did not fully support the prosecutrix, her statement was sufficient enough to hold the accused guilty of an offence punishable under Section 376 I.P.C. Her statement is corroborated by medical record. Statement of Dr. Brij Bala (PW-5) is quite clear. Injury was found on the private parts of the prosecutrix. While appreciating her statement, trial Court has bordered on the side of perversity. 31. It has also been argued that as per the version of Dr. O.P. Puri (PW-4), accused was not capable of having an erection of the penis. Evidence is to the contrary. According to Dr. O.P. Puri accused appeared to be capable of committing rape and could penetrate by half inch. The Doctor simply states that the accused had stated that he was not having any erection in the penis. O.P. Puri (PW-4), accused was not capable of having an erection of the penis. Evidence is to the contrary. According to Dr. O.P. Puri accused appeared to be capable of committing rape and could penetrate by half inch. The Doctor simply states that the accused had stated that he was not having any erection in the penis. It is in this context he could not state as to whether accused could not get any erection. This would not make the prosecution case to be false. Doctor found the length of the organ (penis) to be of three inches and half inch in diameter. 32. Thus to our mind prosecution has been able to prove the complicity of the accused in relation to the offence punishable under Section 376 I.P.C. 33. With regard to offence punishable under Section 506 I.P.C., charge cannot be said to have been proved. 34. For all the aforesaid reasons, appeal is allowed. We have no hesitation in our mind to hold that prosecution has been able to prove its case beyond reasonable doubt and accordingly we hold the accused guilty of having committed offence punishable under Section 376 I.P.C. 35. Now the case be listed on 23rd March 2011 for hearing the accused on the quantum of sentence on which date the accused is directed to be present in the Court.