JUDGMENT Surinder Singh, J (oral) : The learned Additional Sessions Judge (Fast Track Court), Solan convicted the appellant hereinafter to be referred as “the accused”, in Sessions Trial No.25 FTC/7 of 2010, on 1.10.2011, for the offences punishable under Sections 354 and 377 of the Indian Penal Code, whereby he was sentenced to undergo rigorous imprisonment for a period of 2 years under Section 354 and 5 years under Section 377 of the Indian Penal Court with fine quantified at ‘.5,000/- under each of the sections with default clauses. The fine amount, if recovered, was ordered to be paid to the prosecutrix (PW4) and both the sentences to run concurrently. 2. In short, the prosecution story can be stated thus. The father of the prosecutrix (PW4) mostly remained bed-ridden because of the injuries in vehicular accident. PW1 her mother Reena Devi used to earn the livelihood. They were residing in the vicinity and rented premises of the accused. Amongst the three, PW4 prosecutrix is the eldest daughter, who at the time of alleged incident was about six years.(ii) On 26th April, 2010, at about 5.30 p.m., PW1 Reena Devi alongwith her daughters had gone to the Hand-pump to fetch water, where Lata Devi, sister of the accused was washing the clothes. The prosecutrix alongwith her younger sister Sandhya expressed their desire to go to the house of Lata aforesaid and she permitted them to go there. Around 7.30 p.m., Sandhya returned to her house, after sometime the prosecutrix was brought by the accused in his lap with a bleeding injury. She was weeping profusely. Accused kept her outside the room. Her mother Reena asked her as to why she was weeping and gave her 2-3 slaps. Then she disclosed that the accused had removed her pants. On examination her private parts, she noticed blood. Her pants was also stained with blood. Reena disclosed this fact to her husband. Her brother-in-law Ram Nath had also come there. Since it had grown dark, they could not go to the police, but however, in the morning, PW1 Reena Devi accompanied by her brother-in-law aforesaid and the prosecutrix visited the Police Station and lodged the complaint Ext.PW1 /A.(iii)The prosecutrix was got medically examined from PW7 Dr. Anu Mittal. On the physical examination, the prosecutrix was found to be approximately 15 Kilograms in weight. Anu Mittal. On the physical examination, the prosecutrix was found to be approximately 15 Kilograms in weight. Her secondary sexual characters were not found developed and no mark of injury was seen at the time of examination over the body. The prosecutrix was wearing pink and black coloured top and black jean. On the local examination, no marks of injury were seen over the external genitalia, hymen was not ruptured, no perennial injury was seen, however there were multiple abrasions over external and sphinture with dry blood stains around anal region. In the opinion of the doctor, there was nothing to suggest that there was vaginal intercourse, however anal swabs were taken by the Surgeon. Blood stained clothes etc. were handed over to the police. Prosecutrix was referred to Gynecologist and Surgeon for expert opinion. Doctor issued her MLC Ext.PW7/A and did not rule out the possibility of anal intercourse with the prosecutrix. PW12 Dr. Lalit Mahajan Gynecologist opined that there was nothing to suggest that the vaginal intercourse had taken place. His observations/ opinion is Ext.PW1 2/A. (iv)PW10 Dr. Rajan Sood, surgical expert agreed with the opinion Ext.PW7/A given by Dr. Anu Mittal. His opinion in writing is Ext.PW10/A. The radiological age of the prosecutrix was opined to be 5 to 8 years by PW1 1 Dr. Sandeep Jain.(v)Statement of the prosecutrix was recorded by the police under Section 161 of the Code of Criminal Procedure alongwith other witnesses. Accused was arrested. He was also subjected to the medical examination and was found fit to perform sexual intercourse. 3. After completing the investigation, the accused was charge-sheeted and tried for the offences for attempted rape under Section 376 read with Section 511 of the Indian Penal Code and also for the carnal intercourse against the order of nature punishable under Section 377 of the Indian Penal Code. 4. On the strength of the evidence aforesaid, the prosecution could not prove the case of attempted rape, but however, learned trial Court on the appreciation of the evidence found it to be a case falling under Sections 354 and 377 of the Indian Penal Code, as such, the accused was convicted and sentenced as aforesaid, hence the present appeal. 5.Shri Rakesh Chandel, learned counsel for the accused, vehemently argued that from the evidence on record, none of the offences, as alleged are made out. 5.Shri Rakesh Chandel, learned counsel for the accused, vehemently argued that from the evidence on record, none of the offences, as alleged are made out. To impress upon, he led me through the evidence on record and ventilated that there are material contradictions in the statement of prosecution evidence rendering the prosecution case doubtful, but in any case of conviction, the sentence imposed upon the appellant keeping in view the age and antecedents, is quite on the higher side and prayed to reduce it. 6. Contra, Shri P.M. Negi, learned Deputy Advocate General while supporting the impugned judgment of conviction pointed out the statement of the prosecutrix and other corroborative material on record, justifying his conviction, however, on the point of sentence, he did not seriously dispute its reduction but submitted that keeping in view the facts and circumstances of the case, adequate sentence may be passed. 7. On consideration of the rival contentions and reappraisal of the evidence on record, I do not find any fault in the conviction of the accused for the offences aforesaid for the reasons mentioned hereinafter. 8. The material witness is the prosecutrix though of tender age. The learned trial Court after having been satisfied about the intellectual capacity to narrate the alleged incident and also that she knew the sanctity of oath, recorded her statement after administering oath and she corroborated the prosecution case flawlessly. 9.The prosecutrix stated that she alongwith her younger sister Sandhya were present near the Hand- pump where Lata (Bua) the accused’s sister was washing her clothes. Thereafter all of them went to her house, where prosecutrix was taken to the upper storey by the accused. She testified that the accused had removed her pants as well as his own pants and laid on him on the double-bed and interfered with her private part with his own. When it started causing pain to her, she started crying. She also stated that there was also a single bed in the verandah outside in the upper storey. The accused is also stated to have committed carnal intercourse against the order of nature through her anal on the single-bed with the result, blood started oozing from her anus. She started weeping, but the accused warned her not to weep as people would beat them. The accused is also stated to have committed carnal intercourse against the order of nature through her anal on the single-bed with the result, blood started oozing from her anus. She started weeping, but the accused warned her not to weep as people would beat them. Thereafter, the accused put on his pants and also the pants of the prosecutrix and took her into his lap to her residence. She further stated that she was kept outside. At that time, her mother was preparing food and her father was lying on the bed. She enquired the reason for weeping and gave her 2-3 slaps. The prosecutrix narrated the entire incident to her mother. She also stated about her medical examination by the doctors and identified the accused during the course of the trial having committed the aforesaid offences with her. She further identified the wearing apparels to which she was wearing on the day of alleged incident. This fact has been corroborated in clear and unambiguous words by her mother Reena Devi. In their cross-examination, the accused though tried to build up a case of enmity on account of non­payment of rent, which could not be probablised. In the cross-examination of the prosecutrix, she denied that she had sustained injuries on account of fall on the ground. 10.PW2 Satya Kashyap, Pradhan of the Gram Panchayat though did not support the case of the prosecution with respect of the recovery of one double bed sheet Ext.P5, single bed sheet Ext.P7, blanket Ext.P2, plastic mat Ext.P4 and Bichhona Ext.P3, but admitted that these parcels were separately sealed with seal impression “U” and the seal after its use was handed over to her. 11.PW3 Roshan Lal is the father of the prosecutrix. He also lends corroboration to the statement of the prosecutrix and his wife PW1 Smt. Reena Devi. He denied any money transaction with the father of the accused Anokhi Ram except the payment of rent. He also stated that the prosecutrix had a bleeding injury on her anus. PW5 Ram Nath is the witness to the recovery to which he testified it to be correct. 12.Now against the aforesaid statements the medical evidence assumes importance. PW7 Dr. Anu Mittal did not over-rule the possibility of anal intercourse with the prosecutrix. He also stated that the prosecutrix had a bleeding injury on her anus. PW5 Ram Nath is the witness to the recovery to which he testified it to be correct. 12.Now against the aforesaid statements the medical evidence assumes importance. PW7 Dr. Anu Mittal did not over-rule the possibility of anal intercourse with the prosecutrix. She further testified in cross-examination that there was sexual assault on the prosecutrix as was evident from her medical examination, but she did not find any other injury except the injury on her anal part. Even the Gynecologist PW12 Dr. Lalit Mahajan had the same opinion which was not challenged in his cross- examination. PW10 Dr. Rajan Sood found fissure at 12 O’clock at anus part. He also did not rule out the anal intercourse with the prosecutrix. He too agreed with the opinion of PW7 Dr. Anu Mittal. The forensic examination report Ext.PW7/C confirms the fact of human semen over the mattress which was recovered from the house of the accused and human blood as detected on the anal swab of the prosecutrix. 13.Thus, on the critical examination of the evidence aforesaid, I do not find any error in the judgment of conviction passed by the learned trial Court for the offences aforesaid. There is overwhelming evidence against the accused convicting him with the above offences; as such the conviction of the accused is hereby affirmed. 14. Insofar as the sentence is concerned, at the time of alleged incident, the accused was 23 years of age. There is no criminal history to his credit. He is stated to be unmarried and is lodging in jail since 27th April, 2010 serving out the sentence. There is nothing on record to show that the accused had either concealed or destroyed the evidence of the case, rather he had brought the prosecutrix with him in his lap to her house. It is also correct that the accused has committed an unnatural offence upon the minor prosecutrix, which implies sexual perversity. At the same time, his age also cannot be ignored, therefore, a sentence of a long term imprisonment may not have healthy effect or result in this case. It is also correct that the accused has committed an unnatural offence upon the minor prosecutrix, which implies sexual perversity. At the same time, his age also cannot be ignored, therefore, a sentence of a long term imprisonment may not have healthy effect or result in this case. At the same time, the nature of the offence committed by the accused requires that he must be kept in the environment of an institution of confinement for some period to enable him to ponder and brood over his perversity and learn how to live in a well organized society. Therefore, in the facts and circumstances of the case, the sentence of 31/2 years rigorous imprisonment would meet the ends of justice, accordingly, the sentence of 5 years passed under Section 377 of the Indian Penal Code is reduced to 31/2 years without disturbing other sentences. The fine amount, if recovered, shall be paid to the victim through her mother PW1 Reena Devi. 15.The appeal is accordingly disposed of modifying the sentence to the above extent. 16.The learned trial Court shall issue the modified jail-warrants to the concerned jail, in conformity with the judgment of this Court. 17. Send down the records.