JUDGEMENT Sanjay Karol, J. Appeal under Section 374 of the Code of Criminal Procedure against the judgment of learned Sessions Judge, Mandi, H.P. dated 27.11.2008 passed in Sessions Trial No.9 of 2008 whereby the appellant has been convicted under Section 366-A IPC and 376 IPC and has been sentenced to undergo Simple imprisonment for 10 years and to pay a fine of Rs.10000/- under Section 366-A of the Indian Penal Code and also under Section 376 of the Indian Penal Code to under go simple imprisonment for 10 years and to pay a fine of Rs.10000/- and in default of payment of fine to further undergo simple imprisonment for one year and both the Sections; with a prayer to allow the appeal and set aside the conviction and sentence passed in the aforesaid Sessions trial. In terms of judgment dated 27.11.2008, passed by the Ld. Sessions Judge, Mandi, H.P. in Sessions Trial No.9 of 2008, titled as State Vs. Sonu Kumar, i.e. the accused (the present appellant) stands convicted for having committed offences punishable under Sections 366-A and 376 of The Indian Penal Code, 1860 (referred to as I.P.C.). He is sentenced to undergo imprisonment for a period of ten years in relation to each of the offences and also to pay fine of !.10,000/- each, and in the event of default to further undergo simple imprisonment for a period of one year each. 2It is the case of prosecution that on 5.10.2007, prosecutrix (PW-11) aged about 13-14 years, student of 8th standard, was subjected to forcible sexual intercourse by the accused who lives in her neighbourhood, under promise and inducement of marriage. Out of fear she did not disclose the incident to anyone, and also left her house on 6.10.2007 to an undisclosed place. Eventually, her parents found her at Sundernagar and brought her home on 7.10.2007. She narrated the incident to them. They took her to the Police Station, Balh and got FIR No.290 (Ex.PW13/A) recorded on 7.10.2007 at 7:00 P.M. Copy of the FIR was immediately sent to the concerned Magistrate for information. S.I. Beant Singh (PW-14) was asked to investigate the matter. Prosecutrix was immediately sent for medical examination which was conducted by Dr. Anita Thakur (PW-8), Medical Officer posted at the Zonal Hospital, Mandi. Doctor opined that prosecutrix was subjected to sexual intercourse without her consent. S.I. Beant Singh (PW-14) was asked to investigate the matter. Prosecutrix was immediately sent for medical examination which was conducted by Dr. Anita Thakur (PW-8), Medical Officer posted at the Zonal Hospital, Mandi. Doctor opined that prosecutrix was subjected to sexual intercourse without her consent. In order to determine her radiological age, prosecutrix was medically examined by Dr. Rakesh Kumar (PW-9) who opined it to be between 14-16 years. Police visited the spot where accused had subjected the prosecutrix to rape and in the presence of witnesses, prepared site plans Ex.PR and PS and got the spot photographed (Mark A-1 to A-D) and colleted four pieces of condoms(Ex.P2) allegedly used by the accused while having sexual intercourse with the prosecutrix on 5.10.2007. Clothes of the prosecutrix and the accused were also collected by the police. Sample of vaginal swab taken by the Doctor, handed over to the police, alongwith incriminating evidence i.e. clothes and condoms were sent for chemical analysis to the FSL Laboratory and report Ex.PK obtained by the police. Police also took on record certificate of birth of the prosecutrix (Ex.PD & PG) issued by the concerned school and the Panchayat. With the completion of investigation, challan was presented in the Court for trial. 3. During trial, following charges were framed against the accused to which he did not plead guilty:-“ That on 5.10.2007 at about 2 p.m. at place Grancha tower near village Ner, you induced Harsh Lata, a girl under 18 years, with intent that said Harsh Lata will be forced to illicit intercourse and thereby committed an offence punishable under Section 366-A of the Indian Penal Code and within the cognizance of this Court. Secondly, on the aforesaid date, time and place, you committed rape on Harsh Lata and thereby committed the offence u/S 376 I.P.C., within the cognizance of this Court. And, I hereby direct that you be tried for the said charge.” 4 In order to establish the same, prosecution examined as many as 14 witnesses and statement of the accused under Section 313 Cr.P.C. was also recorded in which, significantly, accused took the following defence:- “Qus.24. Why the witnesses have deposed against you? Ans.I have land dispute with the prosecution witnesses and due to that they have deposed against me.” Que.25. Do you want to say anything else? Why the witnesses have deposed against you? Ans.I have land dispute with the prosecution witnesses and due to that they have deposed against me.” Que.25. Do you want to say anything else? Ans.:I have been falsely implicated in the present case due to land dispute with the complainant.” 5 The accused also examined 11 witnesses in support of his defence. 6 The Court below convicted the accused of both the charges, hence, the present appeal. 7 Mr. M.S. Guleria, learned counsel for the accused has vehemently argued that the accused (appellant) has been falsely implicated in the present case; parties have been harbouring animosity over a land dispute, factum of which is admitted by the mother of the prosecutrix; in any event, prosecutrix being more than 16 years of age, was in a position to exercise discretion, could differentiate between right and wrong and sexual intercourse, if any, is consensual in nature; also there is no substantive proof of sexual intercourse by the accused, whether voluntary or involuntary in nature; there are major flaws in the investigation and testimonies of prosecution witnesses are replete with exaggerations, improvements, embellishments and contradictions rendering them to be untrustworthy and unreliable. In support, he has invited our attention to the decision rendered by the Apex Court in Krishan Kumar Malik v. State of Haryana, (2011) 7 SCC 130; Radhu Versus State of Madhya Pradesh (2007) 12 Supreme Court Cases 57 and Bibhishan Versus State of Maharashtra (2007) 12 SCC 390 and also by this Court in Ashok Kumar Versus State of H.P. Rajesh Kumar Versus State of H.P., 2011 (2) Him L.R. (DB) 793. 8.To rebut the same, Mr. R.K. Sharma, learned Sr. Additional Advocate General has invited our attention to the testimonies of the relevant prosecution witnesses. It is urged that no interference is called for as the judgment is based on sound principles of law. He has referred to and relied upon the decision of the Apex Court rendered in Krishan Kumar (supra) to contend that submission on the part of prosecutrix does not amount to consent. (Satpal Singh v. State of Haryana, (2010) 8 SCC 714). 9.The first question which needs to be examined is the age of the prosecutrix. In Court, prosecutrix (PW-1 1) states that she was born on 30.3.1994 and her mother Smt. Daya Devi (PW­12) corroborates this version. (Satpal Singh v. State of Haryana, (2010) 8 SCC 714). 9.The first question which needs to be examined is the age of the prosecutrix. In Court, prosecutrix (PW-1 1) states that she was born on 30.3.1994 and her mother Smt. Daya Devi (PW­12) corroborates this version. Significantly, on this aspect there is no cross-examination by the accused at all. In fact to establish that she was born in the year 1990 and not 1994, accused examined mid-wife Smt. Finji Devi (DW-5), who states that prosecutrix was born to Smt. Daya Devi in March 1990 and she acted as a mid­wife. But strangely in the very next breath, this witness contradicts herself by stating that the child was born in the year 1991. Not only that, in cross-examination, she fully supports the prosecution case by uncontrovertidly stating that prosecutrix was actually born on 30.3.1994, and at that time Sohan Singh was the Ward Panch. 10. To complete the sequence of events, Sh. Hans Raj (PW-3), Secretary, Gram Panchayat, Ner has proved the birth certificate (Ex.PD) issued by him under Sections 12/17 of the Registration of Births and Deaths Act, 1969 and Rule 8 of the H.P. Registration of Births and Deaths Rules, 2003. This certificate clearly records date of birth of the prosecutrix to be 30.3.1994. This witness categorically states that entry in the register, extract of which is Ex.PE, was made on the basis of information given by Ward Panch Sh. Sohan Singh. Surprisingly accused himself made a suggestion to this witness that Bhoop Singh, Secretary who prepared the record in the year 1994 is dead. The endorsement made in the register has been testified to be that of said Secretary. Ward Panch, Sohan Singh (PW-4) has also testified that he got the entry recorded on the basis of information furnished by the parents of the prosecutrix. He clarifies that he had himself signed the register maintained by the Secretary. 11. Additionally Dr. Anita Thakur (PW-8) and Dr. Rakesh Kumar (PW-9) have proved medical evidence (Ex. PJ, Ex.PL and Ex.PM) to establish that age of the prosecutrix is between 14 to 16 years. Significantly, Doctors have not been cross-examined on this aspect at all. Hence benefit of doubt, of difference in the radiological age of the prosecutrix to be that of 2- 3 years, as is urged by Mr. Guleria can not be given to the accused. Significantly, Doctors have not been cross-examined on this aspect at all. Hence benefit of doubt, of difference in the radiological age of the prosecutrix to be that of 2- 3 years, as is urged by Mr. Guleria can not be given to the accused. It is not a thumb rule that in every case benefit of difference of two years on the higher side has to be given to the accused. Each case has to be determined on given facts. 12. The Apex Court in Mohd. Imran Khan versus State Government (NCT of Delhi), (2011) 10 SCC 192 had an occasion to deal with a case where the medical report of the radiologist who examined the prosecutrix revealed that the age of the prosecutrix was between 16 to 17 years. On the basis of the proven material i.e. birth certificate, Court found her age to be less than the radiological age. In this background the Apex Court, while reiterating its earlier view taken in Jaya Mala versus Govt. of J & K, (1982) 2 SCC 538, held the age of the prosecutrix to be below 16 years of age. 13. Thus the fact that the prosecutrix was born on 30.3.1994 stands conclusively proved, in accordance with law, by the prosecution by adducing legally admissible evidence, which fact is also corroborated by medical evidence. As on the date of alleged offence, i.e. 5.10.2007 age of the prosecutrix was 13 years 3 months. 14. Before we deal with the prosecution case, we shall first deal with the alternative and multiple defences taken by accused during trial. Here we may add a note of caution, that this endeavour, at the threshold, is undertaken only to judge the possibility and/ or probability of such defences. 15. We find that accused has taken multiple defences, some of which we find are absolutely false. He did, unsuccessfully, try to prove the age of prosecutrix to be more than 18 years. 16. The only defence taken by the accused while recording his statement under Section 313 Cr.P.C. is that there is a land dispute with the complainant and as such, prosecution witnesses have falsely deposed against him. 17. Now undisputedly, there is no land dispute with the prosecutrix as such. 16. The only defence taken by the accused while recording his statement under Section 313 Cr.P.C. is that there is a land dispute with the complainant and as such, prosecution witnesses have falsely deposed against him. 17. Now undisputedly, there is no land dispute with the prosecutrix as such. But to show that there was a land dispute between the father of accused and father of the prosecutrix, accused examined Balak Ram (DW-2) who simply states that in the year 2004, while he was posted as a Kanungo, Circle Piari he had conducted demarcation of the land belonging to Gokal and Sh. Dhanna. Significantly his testimony does not show that there was any dispute pending as on the date of commission of alleged crime. To the contrary he uncontrovertedly states that the matter pertaining to the land was in fact settled during demarcation. Father of the accused, Gokal Chand (DW-6) also admits that land dispute was settled during demarcation, but however qualifies by stating that possession of land was not handed over to him by the father of the prosecutrix, i.e. Sh. Jitender (DW-9). But then he also admits that no civil or criminal case is pending in any Court. No doubt, mother of prosecutrix in her cross-examination admits about some land dispute but then her statement can not be read in isolation and except for ocular evidence there is nothing on record to show pendency of any land dispute inter se between the parties. Thus, land dispute pertaining to the year 2004 continued even thereafter either till the date of commission of alleged crime in the year 2007 or recording of testimonies of witnesses in the year 2008 has not been established by the accused. 18. Through the testimonies of Sh. Tej Singh (DW-3), Sh. Gokal Chand (DW-6) and Sh. Chet Ram (DW-7), accused has tried to prove that on 4.10.2007, quarrel took place between Jitender (DW-9) and Gokal Chand (DW-6). Matter was reported to police in which a compromise took place. Inspite of the same, DW­9 demanded !.1,50,000/-, which illegal demand was not exceeded to by DW-6, hence, a false case was registered against the present accused on 7.10.2007. 19. Significantly accused did not take this as a defence at the time of recording of his statement under Section 313 Cr.P.C. nor was the same suggested to the prosecutrix or her mother or other prosecution witnesses. 19. Significantly accused did not take this as a defence at the time of recording of his statement under Section 313 Cr.P.C. nor was the same suggested to the prosecutrix or her mother or other prosecution witnesses. Also this fact was not brought to the notice of the police, Court, local authorities or Panchayat at any point of time. 20. Be that as it may be, Tej Singh (DW-3) simply states that he saw Gokal Chand (DW-6) and Dhanna (not examined) quarreling with each other. Significantly, he did not see Jitender (DW-9) quarrel with Gokal Chand. Dhanna is father of Jitender (DW-9). Plea thus taken is false. That apart this witness does not know the date, time and place where such quarrel took place. Thus factum of quarrel cannot be said to be established by this witness. On this point, Gokal Chand (DW-6) in his examination-in­chief states that on 4.10.2007, he and Jitender (DW-9) had quarrelled. On 6.10.2007, he was called by the police to the Police Station and told that a complaint has been lodged against him to the effect that he had committed “Chherkhani”. On this point, trial Court recorded the following demeanor of this witness:” local word used as the witness is not clarifying the same as enquired by the Sessions Judge.” He further states that in the Police Station matter was compromised in writing, in the presence of Chet Ram and Pawan Kumar and original copy of the same was handed over to Jitender (DW-9). He further states since he did not meet the alleged illegal financial demands, a false case stands registered against his son. Now except for this bald statement, there is nothing else on record to show lodging of any complaint by Jitender (DW-9) in relation to the said quarrel or entering into any compromise in the Police Station on 6.10.2007. Their testimony does not inspire confidence. More so for the reason that Chet Ram (DW-7) who allegedly witnessed the compromise, has deposed that though he is not aware of the contents of compromise, yet a photocopy of the same was also given to Gokal Chand (DW-6). We do not find his testimony to inspire confidence. Had he been present he ought to have known the terms and nature of such compromise. We find that during investigation this material and substantial piece of evidence was not brought to the notice of police. We do not find his testimony to inspire confidence. Had he been present he ought to have known the terms and nature of such compromise. We find that during investigation this material and substantial piece of evidence was not brought to the notice of police. We find that on this aspect both DW-3, DW-6 and DW-7 are not stating the truth. I.O. (PW-14) admits that the accused or his parents did not produce any compromise deed dated 6.10.2007 during the investigation. 21. Through Criminal Ahlmad, Jitender Kumar (DW-11), accused has tried to prove compromise dated 6.10.2007 (Ex.DA-1) allegedly entered into between DW-6 and DW-9. Now this document is only a photocopy placed on the record of Sessions Judge, Mandi alongwith the application for grant of bail by the accused. This document is not a legal piece of evidence. It is a photocopy.It has not been put to the relevant witnesses. Execution of the same, has not been proved in accordance with law. Even DW-6 did not prove contents thereof. Accused has not placed on record the order passed by the Court on the said bail application. Also response of the police or the complainant/ prosecutrix to the same, if any, is not placed on record. 22. Admissibility and probity of document are two different things. A document may be admissible but its probative value is still required to be examined in the facts and circumstances of each case. The documents made ante litem motam can be relied upon safely, when such documents are admissible under Section 35 of the Indian Evidence Act, 1872. But the court has a right to examine the probative value of the contents of the document. Authenticity of entries may also depend on whose information such entry stood recorded and what was his source of information. Such document may also require corroboration in some cases. [Satpal Singh (supra) and Murugan alias Settu versus State of Tamil Nadu, (2011) 6 SCC 111]. (Vide: Umesh Chandra v. State of Rajasthan, AIR 1982 SC 1057; and State of Bihar & Ors. v. Sri Radha Krishna Singh & Ors., AIR 1983 SC 684). 23. That apart, this document further exposes the falsehood of testimony of DW-6. Ex.DA pertains to the complaint made against the accused who allegedly teased the prosecutrix and does not pertain to the alleged quarrel as deposed by DW-6. 24. v. Sri Radha Krishna Singh & Ors., AIR 1983 SC 684). 23. That apart, this document further exposes the falsehood of testimony of DW-6. Ex.DA pertains to the complaint made against the accused who allegedly teased the prosecutrix and does not pertain to the alleged quarrel as deposed by DW-6. 24. Further defence taken by the accused is that prosecutrix was having an intimate relationship with him and in fact had desired to get married to him. On this aspect, he examined his cousin Pawan Kumar (DW-8) who states that on 19.6.2008 he had accompanied the accused to the Court where prosecutrix gave a piece of paper (Mark-DA) to the accused, which he read and it was written that she loved the accused. 25. Significantly, even this material piece of evidence was not brought to the notice of the Court or the prosecution till the time of examination of the prosecutrix on 25.6.2008. Why this fact was not immediately brought to the notice of the authorities, has not been explained. Also prosecutrix has denied execution of this document. Except for his bald statement, there is nothing else to establish that the letter, allegedly written by the prosecutrix was handed over in Court. It appears that on 19.6.2008, statements of prosecution witnesses were not recorded. It has also come in the uncontroverted testimony of Jitender Kumar (DW-9) “that relatives of accused threatened me and my family members when the case was listed for prosecution evidence, to settle the matter”. 26. Thus, we find that totally divergent and contradictory defences taken by the accused during course of trial are proving to be false one after another. 27. In Santosh Kumar Singh versus State through CBI, (2010) 9 SCC 747 the Apex Court has held that false plea taken by the accused in a case of circumstantial evidence is another link in the chain. Significantly the Court reiterated its earlier principles laid down in Trimukh Maroti Kirkan versus State of Maharashtra, (2006) 10 SCC 681 wherein it is held that:- “... A judge does not preside over a criminal trial merely to see that no innocent man is punished. A judge also presides to see that a guilty man does not escape. Both are public duties. A judge does not preside over a criminal trial merely to see that no innocent man is punished. A judge also presides to see that a guilty man does not escape. Both are public duties. The law does not enjoin a duty on the prosecution to lead evidence of such character which is almost impossible to be led or at any rate extremely difficult to be led. The duty on the prosecution is to lead such evidence which it is capable of leading, having regard to the facts and circumstances of the case. Here it is necessary to keep in mind Section 106 of the Evidence Act which says that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him.” 28. We are conscious that the aforesaid ratio is laid down in a case of circumstantial evidence and that Courts have otherwise held that falsehood of defence, by itself, would not prove the prosecution case or establish the guilt of the accused. Therefore unmindful of the falsehood of the defence taken by the accused we are independently proceeding to examine the credibility of the prosecution case. 29. Coming to the prosecution witnesses, it is urged that their testimonies are full of improvements, exaggerations, embellishments and contradictions. As such, they are not worthy of credence and thus needs to be discarded. Hence prosecution cannot be said to have proved its case, beyond reasonable doubt, by leading clear, cogent, convincing and reliable piece of evidence. 30. Before we proceed to appreciate the testimonies of such witnesses we shall first reiterate the settled principles of law. 31. Prosecutrix of a sex offence cannot be put on par with an accomplice. She is in fact a victim of the crime. If for some reason Court is hesitant to place implicit reliance on the testimony of the prosecutrix it may look for evidence which may lend assurance to her testimony short of corroboration required in the case of an accomplice. The nature of evidence required to lend assurance to the testimony of the prosecutrix must necessarily depend on the facts and circumstances of each case. The nature of evidence required to lend assurance to the testimony of the prosecutrix must necessarily depend on the facts and circumstances of each case. If the totality of the circumstances appearing on the record of the case disclose that prosecutrix does not have a strong motive to falsely involve the person charged, Court should ordinarily have no hesitation in accepting her evidence.[Stateof Maharashtra versus Chandraprakash Kewalchand Jain, (1990) 1 SCC 550] 32. The Apex Court in State of Punjab versus Gurmit Singh and others, (1996) 2 SCC 384 has held that:- “... ...The Courts must, while evaluating evidence, remain alive to the fact that in a case of rape, no self- respecting woman would come forward in a Court just to make a humiliating statement against her honour such as is involved in the commission of rape on her. In cases involving sexual molestation, supposed considerations which have no material effect on the veracity of the prosecution case or even discrepancies in the statement of the prosecutrix should not, unless the discrepancies are such which are of fatal nature, be allowed to throw out an otherwise reliable prosecution case. The inherent bashfulness of the females and the tendency to conceal outrage of sexual aggression are factors which the Courts should not overlook. The testimony of the victim in such cases is vital and unless there are compelling reasons which necessitate looking for corroboration of her statement, the Courts should find no difficulty to act on the testimony of a victim of sexual assault alone to convict an accused where her testimony inspires confidence and is found to be reliable. Seeking corroboration of her statement before relying upon the same, as a rule, in such cases amounts to adding insult to injury. Why should the evidence of a girl or a woman who complains of rape or sexual molestation, be viewed with doubt, disbelief or suspicion ?—— — — “21. Of late, crime against women in general and rape in particular is on the increase. It is an irony that while we are celebrating women’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. It is an irony that while we are celebrating women’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. The Court, 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.” ... ... (Emphasis supplied) 33.Discrepancy has to be distinguished from contradiction. Whereas contradiction in the statement of the witness is fatal for the case, minor discrepancy or variance in evidence will not make the prosecution’s case doubtful. In order to ascertain as to whether discrepancy pointed out is minor or not or the same amounted to contradiction, regard is required to be had to the circumstances of the case by keeping in view the social status of the witnesses and environment in which such witness is making the statement. [State of H.P. versus Lekh Raj and another (2000) 1 SCC 247] 34.In the aforesaid decision itself the Court reiterated its earlier view taken in State of Punjab ve rsus Jagir Singh (1974) 3 SCC 277 wherein it was held that:-“A criminal trial is not like a fairy tale wherein one is free to give fight to one’s imagination and fantasy. It concerns itself with the question as to whether the accused arraigned at the trial is guilty of the crime with which he is charged. Crime is an event in real life and is the product of interplay of different human emotions. It concerns itself with the question as to whether the accused arraigned at the trial is guilty of the crime with which he is charged. Crime is an event in real life and is the product of interplay of different human emotions. In arriving at the conclusion about the guilt of the accused charged with the commission of a crime, the Court has to judge the evidence by the yardstick of probabilities, its intrinsic worth and the animus of witnesses. Every case in the final analysis would have to depend upon its own facts. Although the benefit of every reasonable doubt should be given to the accused, the Courts should not at the same time reject evidence which is ex facie trustworthy on grounds which are fanciful or in the nature of conjectures.” (Emphasis supplied) 35. The Apex Court in State of Rajasthan versus N. K. THE ACCUSED (2000) 5 SCC 30 has held that:- “... ...It is true that the golden thread which runs throughout the cobweb of criminal jurisprudence as administered in India is that nine guilty may escape but one innocent should not suffer. But at the same time no guilty should escape unpunished once the guilt has been proved to hilt. An unmerited acquittal does no good to the society. If the prosecution has succeeded in making out a convincing case for recording a finding as to the accused being guilty, the Court should not lean in favour of acquittal by giving weight to irrelevant or insignificant circumstances or by resorting to technicalities or by assuming doubts and giving benefit thereof where none exists. A doubt, as understood in criminal jurisprudence, has to be a reasonable doubt and not an excuse for finding in favour of acquittal. An unmerited acquittal encourages wolves in the society being on prowl for easy prey, more so when the victims of crime are helpless females. It is the spurt in the number of unmerited acquittals recorded by criminal Courts which gives rise to the demand for death sentence to the rapists. The Courts have to display a greater sense of responsibility and to be more sensitive while dealing with charges of sexual assault on women.” (Emphasis supplied) 36. In State of M.P. v. Dharkole alias Govind Singh and others, (2004) 13 SCC 308 the Apex Court has held that:- “9.... The Courts have to display a greater sense of responsibility and to be more sensitive while dealing with charges of sexual assault on women.” (Emphasis supplied) 36. In State of M.P. v. Dharkole alias Govind Singh and others, (2004) 13 SCC 308 the Apex Court has held that:- “9.... Eye witnesses’ account would require a careful independent assessment and evaluation for their credibility which should not be adversely prejudged making any other evidence, including medical evidence, as the sole touchstone for the test of such credibility. The evidence must be tested for its inherent consistency and the inherent probability of the story; consistency with the account of other witnesses held to be credit-worthy; consistency with the undisputed facts; the ‘credit’ of the witnesses; their performance in the witness-box; their power of observation etc. Then the probative value of such evidence becomes eligible to be put into the scales for a cumulative evaluation.” “10.A person has, no doubt, a profound right not to be convicted of an offence which is not established by the evidential standard of proof beyond reasonable doubt. Though this standard is a higher standard, there is, however, no absolute standard. What degree of probability amounts to ‘proof’ is an exercise particular to each case? “The simple multiplication rule does not apply if the separate pieces of evidence are dependent. Two events are dependent when they tend to occur together, and the evidence of such events may also be said to be dependent. In a criminal case, different pieces of evidence directed to establishing that the defendant did the prohibited act with the specified state of mind are generally dependent. A junior may feel doubt whether to credit an alleged confession, and doubt whether to infer guilt from the fact that the defendant fled from justice. But since it is generally guilty rather than innocent people who make confessions and guilty rather than innocent people who run away, the two doubts are not to be multiplied together. The one piece of evidence may confirm the other.” “11. Doubts would be called reasonable if they are free from a zest for abstract speculation. Law cannot afford any favourite other than truth. To constitute reasonable doubt, it must be free from an over emotional response. The one piece of evidence may confirm the other.” “11. Doubts would be called reasonable if they are free from a zest for abstract speculation. Law cannot afford any favourite other than truth. To constitute reasonable doubt, it must be free from an over emotional response. Doubts must be actual and substantial doubts as to the guilt of the accused persons arising from the evidence, or from the lack of it, as opposed to mere vague apprehensions. A reasonable doubt is not an imaginary, trivial or a merely possible doubt; but a fair doubt based upon reason and commonsense. It must grow out of the evidence in the case.” [Emphasis supplied] 37. In Radhu (supra) the Apex Court has held that “ ... Even if there is consent, the act will still be a ‘rape’, if the girl is under 16 years of age” and “There have also been rare instances where a parent has persuaded a gullible or obedient daughter to make a false charge of a rape either to take revenge or extort money or to get rid of financial liability. Whether there was rape or not would depend ultimately on the facts and circumstances of each case.” 38. To determine the guilt of the accused to the charged offences, we find testimonies of the prosecutrix (PW-1 1), her mother Smt. Smt. Daya Devi (PW-12) and her father Sh. Jitender (DW-9) are most material. 39. In FIR (Ex.PN), prosecutrix got recorded that she resides with her parents in village Dharwahan, P.O. Ner Chowk, Police Station, Balh and studies in 8th Class in Abhilashi High School, Ner Chowk, District Mandi. Her brother also studies in the same school. Her neighbour Sonu Kumar (accused) has been troubling her for the last one year. Accused approached her for friendship and when she inquired the meaning of the same, he told her that soon she would get to know. He also gave his mobile number and quite often called her on the telephone at her house. He asked her to get married to him. On his asking, twice she went to meet him. Thereafter also she kept on meeting him at a secluded place nearby her house where he committed a wrong act with her by opening her Salwar. He assured her that soon he would marry her. He asked her to get married to him. On his asking, twice she went to meet him. Thereafter also she kept on meeting him at a secluded place nearby her house where he committed a wrong act with her by opening her Salwar. He assured her that soon he would marry her. He told her to keep on meeting but not inform her parents about the same. From 2.10.2007 up to 5.10.2007, tournaments had been arranged in the school at Ratti and on 5.10.2007, she went there. At 2.00 p.m. while she was returning from Ratti to her house, near village Ner she met the accused. He told her that he wanted to have an urgent talk with her and took her at Grancha tower. There he told her that he would marry when she would turn 18. He also told her that within a day or two he would travel to Chandigarh and learn driving. After some time, Sonu started misbehaving with her, to which she replied that she treated him as her Rakhi brother. Despite that, Sonu forcibly opened her Salwar and against her wishes committed a wrong act. Thereafter, she came home where her mother inquired the reason of her coming late but she kept quite. Out of fear, she left towards Ratti, but was brought back by her parents. Next day at about 3:30 P.M. she left her house towards Bilaspur in a bus. But, came back to Sundernagar where she met one lady and requested her to give her meals as she was feeling hungry. The lady took her to her home. Next day, her parents came searching for her at Sundernagar and took her back home. She narrated the entire incident to them and they brought her to the Police Station to get the FIR registered. 40. For proper appreciation, deposition of prosecutrix (PW-1 1) in toto, is extracted herein under:- “stated that in the year 2007 I was studying in Abhilashi, Senior Sec. School, Ner Chowk. My date of birth is 30.3.94. My brother Umesh was also studying in the same school in 10th Class last year. I know accused present in the Court, who is from my village. The accused has been teasing me one year prior to the registration of the present case whenever I used to go to school. He was asking me to marry me. My brother Umesh was also studying in the same school in 10th Class last year. I know accused present in the Court, who is from my village. The accused has been teasing me one year prior to the registration of the present case whenever I used to go to school. He was asking me to marry me. I told him that I consider him like a brother, as such, could not marry him. The accused had also given no. of his mobile phone 98161-42330 so as to make call to him on the above no. There is a telephone facility in my house and he was already knowing the telephone no. of my house, being from the same village. The accused oftenly used to make call from the cell in my house and was impressing upon to marry me. Accused also told that he would marry me when I would be completing my 18 years of age. During vacation in the month of July/August, I had gone to the house of my cousin (daughter of my mausi) who is a private doctor at Kullu. I stayed there for 3 days. When I was coming back in bus, to home accused met me at Bhuntar. We came together in a bus from Bhuntar and got down from the bus at Bhangrotu. When I was proceeding to home, on foot, the accused followed me and took me towards a tower at Grancha and thereafter subjected me to sexual intercourse. It was about noon. The accused threatened me not to disclose about this to any person in the family. The accused offered me Rs.100/- prior to the rape, which I did not accept. Thereafter I went home. I did not disclose this to any person at home out of fear. There was tournament in our school in October, 2007. The games were over on 5.10.2007. On that day I had also gone to the school. When I was coming back home and reached Ner Chowk at 2/3 p.m. accused met me there and told me that he has some important work with me. I insisted not to accompany him and accused forcibly took me at Grancha tower. Accused assured me that he would marry me when I would complete 18 years. Accused made me lie on the ground forcibly and removed my Salwar and subjected me to sexual intercourse thrice. I insisted not to accompany him and accused forcibly took me at Grancha tower. Accused assured me that he would marry me when I would complete 18 years. Accused made me lie on the ground forcibly and removed my Salwar and subjected me to sexual intercourse thrice. The accused was using condoms during the sexual intercourse every time. The accused offered me money which I did not accept. My mother enquired from me as to where I was but I kept silent out of fear. Next day I went to Bilaspur and I came back to Sundernagar from Bilaspur as bus developed some defect. A lady met me at Sundernagar who took me to her home and offered me meal as I was feeling hungry. I told about my antecedents to the said lady. I also gave telephone no. of my house and accordingly informed my parents. I was brought by me parents in a vehicle and next day on 7.10.2007 I lodged FIR in the police station which bears my signatures in red circle A. Thereafter I was got medically examined by the police initially at CHC Ratti from where I was referred to Z.H. Mandi. My X-ray examination was also conducted. Next day, during investigation I identified the spot to the police where I was subjected to rape by the accused. The photographer also took the photographs of the spot. The police also took into possession condoms (4 in No.) which were used by the accused during sexual intercourse and the same were taken into possession vide memo Ext.PA which bears my signatures. The parcel is Ext. P1, parcel of condoms is Ext. P2 (4 in no.) which is the same. The doctor had also taken into possession the clothes which I was wearing at the time of incident. At this stage learned P.P. produced sealed parcel which bears the seals of NSCB. Seals are intact, parcel is the same. Shirt Ext. P6, Salwar Ext. P7 and bra Ext.P8 are the same. I had gone to Bilaspur out of fear. XX XX on behalf of the accused. The name of my grand father is Dhanna. It is incorrect that there are 20-25 house on the way to my house from Grancha. It takes about 5- 10 minutes on foot to reach my house from Grancha. The accused met me at 2/3 p.m. on 5.10.07. XX XX on behalf of the accused. The name of my grand father is Dhanna. It is incorrect that there are 20-25 house on the way to my house from Grancha. It takes about 5- 10 minutes on foot to reach my house from Grancha. The accused met me at 2/3 p.m. on 5.10.07. I cannot tell the brand of company of which condoms Ext.P2 were. I remained sitting with the accused or about one hour near the tower, before commission of rape by the accused. I did not sit after the commission of rape with the accused at the spot. I reached home at 5/6 p.m. I did not take anything at home nor disclosed about the incident. It is correct that on the evening of 5.10.07 I came towards Ratti from home out of fear and then was brought back to my parents. It takes 10-15 minutes on foot to reach Ratti from my house. I boarded the bus from Bhangrotu to Bilaspur. The conductor had issued the ticket to me, but I had not handed over the same to the police. I had no definite plan to go to Bilaspur. I do not know the name of the lady who took me to her home at Sundernagar. I had disclosed this fact to the police. I can identify the house of the said lady. My parents do not have any land dispute with the family of the accused. When I was subjected to rape by the accused, raised cries, but there are no houses nearby. It is incorrect that my house is nearby the place of incident and a simple call-shout is audible from the said place. It is incorrect that I was admittedly late in the school. I had not come to the court on 19.6.08 alongwith my parents. I had received summons for 19.6.08. I have seen writing mark DA which is not in my hand. I had not given writing mark DA to the accused on 19.6.2008. I had fallen ill on 19.6.08 so I had not come to the court. I had not any sexual intercourse with the any person except the above two dates.”(Emphasis supplied) 41. Significantly, accused has not cross-examined the prosecutrix with regard to the incident of 5.10.2007 for which he stands charged. On this aspect, it is not even suggested to her that she has falsely deposed in Court. I had not any sexual intercourse with the any person except the above two dates.”(Emphasis supplied) 41. Significantly, accused has not cross-examined the prosecutrix with regard to the incident of 5.10.2007 for which he stands charged. On this aspect, it is not even suggested to her that she has falsely deposed in Court. 42. It is settled position of law that failure to cross examine a witness on some material part of his evidence may be treated as an acceptance of truth of that part of the evidence. If a witness is not cross examined on a particular material fact, the court, unless there are inherent improbabilities affecting the credibility of the witness, would presume and accept the account given by witnesses to be true. If the accused fails to cross examine the prosecutrix on the material aspect for which he stands charged, consequence would follow that he believed that her testimony is not disputed. It is not a mere technical rule of evidence but a rule of essential justice. [Sarwan Singh v. State of Punjab, 2003 (1) SCC 240; A. N. Venkatesh and another v. State of Karnataka, (2005) 7 SCC 714; Mishrilal and others v. State of M.P. and others, (2005) 10 SCC 701; and Utpal Das and another v. State of West Bengal, (2010) 6 SCC 493] 43. Also the Constitution Bench of the Apex Court in Kartar Singh v. State of Punjab, (1994) 3 SCC 569 has held that “278. ... It is the jurisprudence of law that cross-examination is an acid- test of the truthfulness of the statement made by a witness on oath in examination-in-chief, the objects of which are :(1) to destroy or weaken the evidentiary value of the witness of his adversary; (2) to elicit facts in favour of the cross-examining lawyer’s client from the mouth of the witness of the adversary party; (3) to show that the witness is unworthy of belief by impeaching the credit of the said witness;and the questions to be addressed in the course of cross- examination are to test his veracity; to discover who he is and what is his position in life; and to shake his credit by injuring his character.” 44. Subsequently in State of Uttar Pradesh v. Nahar Singh (dead) and others, (1998) 3 SCC 561 the Apex Court reiterated that “14. Subsequently in State of Uttar Pradesh v. Nahar Singh (dead) and others, (1998) 3 SCC 561 the Apex Court reiterated that “14. The oft quoted observation of Lord Herschell, L.C. in Browne v. Dunn, (1893) 6 The Reports 67, clearly elucidates the principle underlying those provisions. It reads thus : “I cannot help saying, that it seems to me to be absolutely essential to the proper conduct of a cause, where it is intended to suggest that a witness is not speaking the truth on a particular point, to direct his attention to the fact by some questions put in cross-examination showing that that imputation is intended to be made, and not to take his evidence and pass it by as a matter altogether unchallenged, and then, when it is impossible for him to explain, as perhaps he might have been able to do if such questions had been put to him, the circumstances which, it is suggested, indicate that the story he tells ought not to be believed, to argue that he is a witness unworthy of credit. My Lords, I have always understood that if you intend to impeach a witness, you are bound, whilst he is in the box, to give an opportunity of making any explanation which is open to him; and, as it seems to me, that is not only a rule of professional practice in the conduct of a case, but it is essential to fair play and fair dealing with witnesses.”[Emphasis supplied] 45. Yes, there are improvements, unexplained circumstances and exaggerations from her previous statement recorded by the police. But she has not been confronted with the same, nor has she been cross examined on any one of them. Still we are proceeding to examine the same. She did not narrate the previous instance of travel to Kullu when also she was subjected to rape. But then in the FIR it is categorically recorded that prior to occurrence of the incident in question, accused had promised her of marrying her and subjected her to rape. She does not mention the fact that she spent a night in the house of a lady at Sundernagar. Police also could not bring on record the identity of this lady. She does not mention the fact that she spent a night in the house of a lady at Sundernagar. Police also could not bring on record the identity of this lady. No doubt, prosecution has not been able to establish the identity of the lady with whom prosecutrix spent time at Sundernagar but then even this fact, by itself, would not render the prosecution case to be fatal or make her version to be unbelievable for the reason that the child and the parents, in their uncontroverted testimonies, have categorically deposed that prosecutrix was found at Sundernagar and brought back from there on 7.10.2007. Significantly FIR was also got immediately recorded. It is also nobody’s case that prosecutrix had disclosed the incident to this lady. Also Daya Devi (PW-12) in Court states that she received a telephone call from a lady at Sundernagar and she went there with her husband to get her daughter. 46. Infirmities, lapses and omissions,in the investigation, by itself would not make prosecution case to be fatal. The lapses have to be considered from the point of prejudice caused to the accused. If on perusal of the evidence in its entirety, it appears to be otherwise trustworthy, question of the evidence being non-trustworthy would not arise. The court can sift the chaff from the grain and find out the truth from the evidence itself. [Sukhdev Yadav and others v. State of Bihar, (2001) 8 SCC 86] 47. Whether there are contradictions, inconsistencies, exaggerations or embellishments in the statement of the prosecution witnesses, the Court has to adopt reasonable and practicable approach and only material or serious contradictions/variations of great consequence to create a dent in the case of the prosecution are to be considered. The testimony is to be read in entirety to judge the truthfulness and veracity thereof. [Ashok Kumar v. State of Haryana, (2010) 12 SCC 350] 48. It is urged by the accused that testimony of the prosecutrix is uninspiring for the reason that there is no corroborative evidence to establish that she travelled to Bilaspur. But then as already discussed how is this a relevant fact. In this regard, we find that there is a contradiction in the statement of the prosecutrix and the Investigating Officer. But contradiction is only with regard to issuance of tickets and not travelling in the bus to Bilaspur. But then as already discussed how is this a relevant fact. In this regard, we find that there is a contradiction in the statement of the prosecutrix and the Investigating Officer. But contradiction is only with regard to issuance of tickets and not travelling in the bus to Bilaspur. Prosecutrix states that she did purchase the tickets but the Investigating Officer i.e. S.I. Beant Singh (PW14) states that he was told by the prosecutrix that no such tickets were purchased. 49. Other contradiction is with regard to the date and the place from where the incriminating material i.e. condoms were recovered by the police. According to the prosecutrix, her mother, Investigating Officer (PW-14) and Dile Ram (PW-1), recovery was effected from Grancha tower whereas Nag Raj (DW-4) states that such recovery was effected at Kohlu-Ka-Thara. Now the distance between these two places has not come on record. But the fact of the matter is that even DW-4 admits that the incriminating material was recovered after the prosecutrix identified the spot of crime. Faulty investigation by the police in any manner would render the testimony of the prosecutrix to be untrustworthy or unbelievable. Also not much significance can be attached to this fact. Recovery of incriminating material and proving it through FSL report, which does not link the accused, is only a corroborative piece of evidence. The Apex Court in Mohd. Imran Khan versus State Government (NCT of Delhi), (2011) 10 SCC 192 has held that “... The court must have predominance and pre-eminence in criminal trials over the action taken by investigating officers. Criminal justice should not be made a casualty for the wrongs committed by the investigating officers in the case. In other words, if the court is convinced that the testimony of a witness to the occurrence is true the court is free to act on it albeit the investigating officer’s suspicious role in the case.” Prosecutrix also states that investigation took place “next day” which could be 8.10.2007, whereas others state it took place on 9.10.2007. 50. In other words, if the court is convinced that the testimony of a witness to the occurrence is true the court is free to act on it albeit the investigating officer’s suspicious role in the case.” Prosecutrix also states that investigation took place “next day” which could be 8.10.2007, whereas others state it took place on 9.10.2007. 50. Whether these contradictions render the statementof prosecutrix to be doubtful or false or not, is the question which we have been repeatedly asking ourselves and only after minutely scrutinizing and examining her statement and uncorroborated version of her parents and applying the principles laid down by the Apex Court in the decisions which we have mentioned herein earlier, we have come to the conclusion that her testimony can not be said to be false, uninspiring in confidence or not worthy of credence. She has not stated half truth or concealed any material fact. There is no doubt in our mind that prosecutrix has deposed the truth and nothing but the whole truth with regard to the specific instance for which the accused has been charged for. As already observed, accused has also not cross-examined the prosecutrix on this particular aspect. She categorically states that she was assured by the accused that he would marry her when she would be 18 years of age. She categorically states that she could get the house of the lady whom she had met at Sundernagar, identified. She also states that when she was subjected to rape she raised cries but then it stands established through the testimony of material prosecution witnesses that there are no houses in the immediate vicinity. Hence, possibility of her cries not being heard, can not be ruled out. 51. After all, we are dealing with a girl who is just about 13 years and 3 months of age and studies in 8th Class. It is not the suggested case of accused that she has been tutored by her parents to make a parrot like statement. In fact, her cross- examination is suggestive of consensual sex. She underwent acute trauma both mental and physical. She hails from a rural background. Her father is just a Peon and her mother is uneducated. Out of fear, she could not disclose the incident to any one. Her agony was such that she left her house and took shelter away from her home. She underwent acute trauma both mental and physical. She hails from a rural background. Her father is just a Peon and her mother is uneducated. Out of fear, she could not disclose the incident to any one. Her agony was such that she left her house and took shelter away from her home. By inducement and with a promise of marrying the prosecutrix, accused subjected her to sexual intercourse. She was not even aware of such consequences. With regard to the charged offence, her statement stands materially corroborated by her mother PW-1 2. On this aspect we find that there is no contradiction in their testimonies. It is not even suggested to the mother that accused has been falsely implicated due to land dispute. Significantly even to her there is no suggestion with regard to the alleged compromise which took place on 6.10.2007, a day prior to lodging of FIR. Testimony of the prosecutrix also stand corroborated by her father Jitender Kumar (DW-9), who surprisingly, was examined by the accused as his witnesses. In his uncontroverted testimony, he specifically deposes that the incident was narrated to him by the prosecutrix on 3rd day of occurrence of the incident which is totally inconsonance with the statement made by the prosecutrix. 52. Significantly in Wahid Khan v. State of Madhya Pradesh, (2010) 2 SCC 9 the Apex Court had occasion to deal with the case where the prosecutrix who initially did not support the prosecution and was declared hostile, but when confronted with her previous statement narrated true and correct version of the manner in which rape was committed on her, which version inspired confidence, convicted the accused inspite of the fact that medical record did not corroborate her testimony. 53. In the instant case, Dr. Anita Thakur (PW-8) and Dr. Rakesh Kumar (PW-9), who examined the prosecutrix have proved medical record (Ex.PJ, Ex.PK/1 and Ex.PM) to the effect that the prosecutrix had been subjected to sexual intercourse and that was not a virgin. The defence of consensual sex taken by the accused in the given facts is of no consequence in law. Prosecutrix has been proved to be 13 years 3 months of age, on the day of alleged crime. Also concept of ‘consent’ as has been held by the Apex Court in Satpal Singh (supra) has to be understood differently. The Court has created a distinction between consent and submission. Prosecutrix has been proved to be 13 years 3 months of age, on the day of alleged crime. Also concept of ‘consent’ as has been held by the Apex Court in Satpal Singh (supra) has to be understood differently. The Court has created a distinction between consent and submission. Even subsequently, the Apex Court in State of Uttar Pradesh v. Chhotey Lal, (2011) 2 SCC 550 has reiterated the said principle. 54 In Uday v. State of Karnataka, (2003) 4 SCC 46 the Apex Court has elaborated the meaning of expression “consent”, after taking into account its various judicial pronouncements as also provision of Section 90 IPC the Court held that:- “12. The Courts in India have by and large adopted these tests to discover whether the consent was voluntary or whether it was vitiated so as not to be legal consent. In Rao Harnarain Singh vs. State : AIR 1958 Punjab 123 it was observed :- “7. A mere act of helpless resignation in the face of inevitable compulsion, acquiescence, non-resistance, or passive giving in, when volitional faculty is either clouded by fear or vitiated by duress, cannot be deemed to be ‘consent’ as understood in law. Consent, on the part of a woman as a defence to an allegation of a rape, requires voluntary participation, not only after the exercise of intelligence, based on the knowledge, of the significance and moral quality of the act. but after having freely exercised a choice between resistance and assent. Submission of her body under the influence of fear or terror is not consent. There is a difference between consent and submission. Every consent involves a submission but the converse does now follow and a mere act of submission does not involve consent. Consent of the girl in order to relieve an act, of a criminal character like rape, must be an act of reason, accompanied with deliberation, after the mind has weighed as in a balance, the good and evil on each side, with the existing capacity and power to withdraw the assent according to one’s will or pleasure.” Which view has been reiterated in Deelip Singh alias Dilip Kumar v. State of Bihar, (2005) 1 SCC 88 wherein it is observed as under:- “30. Is it a case of passive submission in the face of psychological pressure exerted or allurements made by the accused or was it a conscious decision on the part of the prosecutrix knowing fully the nature and consequences of the act she was asked to indulge in? Whether the tacit consent given by the prosecutrix was the result of a misconception created in her mind as to the intention of the accused to marry her? These are the questions which have to be answered on an analysis of the evidence. The last question raises the allied question, whether the promise to marry, if made by the accused, was false to his knowledge and belief from the very inception and it was never intended to be acted upon by him. As pointed out by this Court in Uday case [(2003) 4 SCC 46] the burden is on the prosecution to prove that there was absence of consent. Of course, the position is different if the case is covered by Section 114-A of the Evidence Act. Consent or absence of it could be gathered from the attendant circumstances. The previous or contemporaneous acts or the subsequent conduct can be legitimate guides. 31. Whether on the basis of the evidence adduced by the prosecution, it is reasonably possible to infer the lack of consent on the part of the prosecutrix is the ultimate point to be decided.” 55. Doctor has opined that two fingers could easily be inserted into the vagina of the prosecutrix. Taking clue from the same it is suggested that prosecutrix was habitual to sex and therefore not deposing truthfully. Suggestion, to say the least is shocking. Despite the defence that prosecutrix was in love with him, accused has faintly suggested to her that perhaps she was involved with somebody else. Prosecutrix has clarified that she was subjected to intercourse number of times, may be restricted to few occasions. Doctor (PW-8) found that hymen was torn at 2’ Clock, 4’ Clock, 7’ Clock and 11’ Clock position and fleshy margins of old healed torn hymen were found. 56. The decisions referred to and relied upon by Mr. Guleria, learned counsel for the appellant are on the given facts and circumstances. In all those cases, the Courts found that prosecution had not been able to prove the age of the prosecutrix, to be below 16/18 years. 56. The decisions referred to and relied upon by Mr. Guleria, learned counsel for the appellant are on the given facts and circumstances. In all those cases, the Courts found that prosecution had not been able to prove the age of the prosecutrix, to be below 16/18 years. Also the testimony of the prosecutrix were found not inspiring confidence and conclusively establish the guilt of the accused. 57. The charge of rape against the accused stands conclusively established by the prosecution, beyond reasonable doubt, by leading clear, cogent, convincing, material piece of evidence.We find statement of the prosecutrix not to be trustworthy with regard to the incident for which the accused stands charged. 58. Mr. Guleria, also argued that in any event keeping in view the age of the accused, sentence should be reduced. We however feel that this factor, in the given facts and circumstances, would not matter at all and the contention is rejected. The Apex Court in State of Madhya Pradesh versus Bablu Natt, (2009) 2 SCC 272 has held that:- “One of the principles that the judiciary had all along kept in its mind that rape being a violation with violence of the private person of a woman causes mental scar, thus, not only a physical injury but a deep sense of some deathless shame is also inflicted.”It further held as under:- “Principle governing imposition of punishment would depend upon the facts and circumstances of each case. An offence which affects the morale of the society should be severely dealt with. Socio­economic status, religion, race, caste or creed of the accused and the victim although may not be wholly irrelevant, should be eschewed in a case of this nature (abduction and rape of minor), particularly when Parliament itself had laid down minimum sentence.” 59. Coming to the first charge of Section 366-A IPC we find that there is no evidence on record to this effect. It is not the case of prosecution that accused had induced the prosecutrix to accompany him with an intent that she would be forced or seduced to have illicit intercourse with another person. It is not a case of triangle but a tango. In fact provisions of Section 366-A IPC are not attracted at all. 60. It is not the case of prosecution that accused had induced the prosecutrix to accompany him with an intent that she would be forced or seduced to have illicit intercourse with another person. It is not a case of triangle but a tango. In fact provisions of Section 366-A IPC are not attracted at all. 60. The Apex Court in Ramesh versus State of Maharashtra, AIR 1962 Supreme Court 1908 has held that following three principal ingredients are must to constitute an offence under Section 366-A IPC (a) that a minor girl below the age of 18 years is induced by the accused; (b)that she is induced to go from any place or to do any act, and (c) that she is so induced with intent that she may be or knowing that it is likely that she will be forced to seduce to illicit intercourse with another person. It also held that seduction implies surrender of body by a woman who is otherwise reluctant or unwilling to submit herself to illicit intercourse in consequence of persuasion, flattery, blandishment or importunity. Also in Manik Molla and another versus Emperor, AIR (32) 1945 Calcutta 432 the Court has held that “If a person induces a girl to go from one place to another for the purpose of seducing her himself, the offence is not one which comes within the purview of S. 366 A. The section is aimed at procurers. Before a person can be found guilty of the offence punishable under S. 366A, the jury must be satisfied that the accused either intended that the girl should be seduced or forced to illicit intercourse with others or that he knew that she was likely to be so forced or seduced when he took her away and kept her in different houses.” 61. Hence the accused is acquitted of the charge under Section 366-A IPC and sentence in this regard is set aside. The appeal is thus partly allowed to the aforesaid extent.