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2013 DIGILAW 191 (CHH)

PURUSHOTTAM v. STATE OF M. P.

2013-07-01

Radhe Shyam Sharma

body2013
JUDGMENT 1. These appeals are directed against judgment dated 23-01-1996 passed by 2nd Additional Sessions Judge, Raipur in Sessions Trial No. 410/91. By the impugned judgment, accused/appellants Purushottam, Rajendra Kumar and Lalji have been convicted and sentenced in the following manner with a direction to run the sentences concurrently : Appellant Purushottam Conviction Sentence Under Section 363 IPC Rigorous imprisonment for 3 years Under Section 366 IPC Rigorous imprisonment for 5 years Appellants Rajendra Kumar and Lalji Conviction Sentence Under Section 376 IPC Rigorous imprisonment for 10 years Criminal Appeal No. 2265/1996 filed by accused Tejkumar and Criminal Appeal No. 2266/1996 filed by accused Surendra Kumar were disposed of by order dated 17-06-2010 and Criminal Appeal No. 451/1996 filed by accused Kailash Kumar, arose out of the judgment dated 23-01-1996 impugned herein, was disposed of by order dated 12-06-2013 due to accused persons Tejkumar, Surendra Kumar and Kailash Kumar's having already completed the entire sentence awarded to them and their not being interested in prosecuting their appeals. 2. Case of the prosecution, in brief, is as under : Prosecutrix (PW-1) was residing in Amapara along with her parents and was studying. On 05-06-1991, accused/appellant Purushottam met her and asked for going Durg with him. Accused Purushottam allured prosecutrix (PW-1). On being allured by accused persons Purushottam and Kailash, prosecutrix (PW-1) went to Durg along with them. They took prosecutrix (PW-1) to a hotel and took lunch. Thereafter, they went to watch movie. After watching the movie, they came back to railway station. Accused Kailash returned to Raipur and accused Purushottam and prosecutrix (PW-1) remained in Durg Railway Station. At that time, co-accused Surendra Kumar came near accused Purushottam and prosecutrix (PW-1) and introduced himself as a Police Officer. On being asked by co-accused Surendra Kumar, accused Purushottam left prosecutrix (PW -1) alone at the railway station. Co-accused Surendra Kumar took prosecutrix (PW-1) to his house and forcibly committed sexual intercourse with her against her will. Other co-accused Tejkumar, Lalji and Rajendra Kumar also came to the house of co-accused Surendra Kumar and they also committed sexual intercourse with prosecutrix (PW-1) against her will. Next day, at about 12 noon, co-accused Surendra Kumar left prosecutrix (PW-1) at Durg Railway Station from where prosecutrix (PW-1) went to Dongargarh alone. At Dongargarh, co-accused Girish committed sexual intercourse with her against her will. Next day, at about 12 noon, co-accused Surendra Kumar left prosecutrix (PW-1) at Durg Railway Station from where prosecutrix (PW-1) went to Dongargarh alone. At Dongargarh, co-accused Girish committed sexual intercourse with her against her will. Prosecutrix (PW-1) returned to Raipur where co-accused Rakesh met with prosecutrix (PW-1). Co-accused Rakesh took prosecutrix (PW-1) to his house and committed sexual intercourse with her without her will. Shriram Sen (PW-4, father of prosecutrix (PW-1)) lodged First Information Report (Ex.-P/11) in Police Chowki S/Colony. Thereafter, regular First Information Report (FIR) was recorded in Police Station Amanaka, Raipur. In further investigation, prosecutrix (PW-1) was sent to D.K. Hospital, Raipur for medical examination vide Ex.-P/23. After medical examination, prosecutrix (PW-1) was sent for X-ray examination for determination of her age. Doctor S.C. Bisnoi (PW-6) took out X-ray of prosecutrix (PW-1) and gave his report (Ex.-P/15). The X-ray plates are Ex.-P/16 and P/17. Doctor S.C. Bisnoi (PW-6) opined that the age of prosecutrix (PW-1) was 13 to 14 years. Slide of vaginal swab of prosecutrix (PW-1) was seized vide Ex.-P/3. One lady bicycle and underwear were seized vide Ex.-P/4 from co-accused Kailash. Underwear of co-accused Rakesh @ Sunil was seized vide Ex.-P/5. Shirt and petticoat and. a sum of Rs. 1500/- were seized from accused Purushottam vide Ex.-P/6. Mark sheet and birth certificate of prosecutrix (PW-1) were seized from Shriram Sen (PW-4) vide Ex.-P/7. Underwear of co-accused Girish was seized vide Ex.P-8. Blouse and chappal of prosecutrix (PW-1) were seized vide Ex.P/9. The appellants herein and co-accused persons were also sent for medical examination. On medical examination, it was found that they were capable to perform sexual intercourse. The test identification parade of appellants Rajendra Kumar, Lalji, co-accused Surendra Kumar and Tej Kumar was conducted by Nayab Tahsildar/Executive Magistrate vide Ex.-P/2 and in test identification parade, prosecutrix (PW-1) identified co-accused Surendra Kumar, Tejkumar and appellants Rajendra Kumar and Lalji. The seized articles were sent to Forensic Science Laboratory, Sagar from where report (Ex.-P/35) was received. Article C - underwear, article I - chaddi and article J - chaddi were found stained with blood and spermatozoa. Article B, C, I, J were sent to Calcutta for serological examination. Serologist's Report was received therefrom. Item No. 40, i.e., underwear (article C) was, found stained with human blood. Article C - underwear, article I - chaddi and article J - chaddi were found stained with blood and spermatozoa. Article B, C, I, J were sent to Calcutta for serological examination. Serologist's Report was received therefrom. Item No. 40, i.e., underwear (article C) was, found stained with human blood. After completion of the investigation, charge sheet was filed against the appellants herein and co-accused persons in the Court of Judicial Magistrate First Class, Raipur, who, in turn, committed the case to the Court of Session, Raipur, from where it was received on transfer by 2nd Additional Sessions Judge, Raipur, who conducted the trial and convicted and sentenced the appellants as mentioned above. She also convicted and sentenced co-accused Surendra Kumar and Tejkumar for offence under Section 376 IPC. Co-accused Kailash has been convicted and sentenced for offence under Sections 363 and 366 IPC. Co• accused Girish and Rakesh have been acquitted of the charge framed against them. 3. Shri Sunil Sahu, learned counsel for the appellants argued that the accused persons have been falsely implicated in this case. None of them had participated in the crime. The version of prosecutrix (PW-1) is not reliable. The, lady doctor who examined prosecutrix (PW-1) was not examined by the prosecution, therefore, the conviction cannot be sustained. 4. On the other hand, Shri Vinay Harit, learned Deputy Advocate General for the State/ respondent, supporting the impugned judgment, submitted that the conviction and sentences awarded to the appellants do not call for any interference by this Court. 5. Firstly, I shall examine whether on the date of incident, the age of prosecutrix (PW-1) was below 18 years or not? 6. Evidence of parents of a victim girl is material for proving her age. In the instant case, at the time of deposition of prosecutrix (PW-1), her age was mentioned as 13 years in her deposition sheet. Shriram Sen (PW-4), who is father of prosecutrix (PW-1), deposed that on the date of incident, prosecutrix (PW-1) was studying in Vth standard. He further deposed that he had handed over certificate regarding the date of birth of prosecutrix (PW -1) to the police. 7. Prahlad Singh Sahu (PW-7) deposed that he was posted as a Head Master in Girls School Brahmanpara, Raipur. He further deposed that he had brought original School Admission Register of that school. At S1. He further deposed that he had handed over certificate regarding the date of birth of prosecutrix (PW -1) to the police. 7. Prahlad Singh Sahu (PW-7) deposed that he was posted as a Head Master in Girls School Brahmanpara, Raipur. He further deposed that he had brought original School Admission Register of that school. At S1. No. 2332 of the register, date of birth of prosecutrix (PW-1) is mentioned as 25th April, 1978. Prosecutrix (PW-1) admitted was in class I on 2-07-1984 and she had passed class V on 14th May, 1991. He further deposed that he had also brought Halafnama Register. In Halafnama Register also, the date of birth of prosecutrix (PW-1) is mentioned as 25th April, 1978. The mark sheet of class V was also issued. He further deposed that the Halafnama Register is Ex.-P/18 and its copy is Ex.-P/18A and School Admission Register is Ex.-P/19 and its copy is Ex.-P/19A. He further deposed that the date of birth of prosecutrix (PW-1) was recorded in School Admission Register and Halafnama Register on the basis of Halafnama given by her father Shriram Sen (PW-4). 8. Doctor S.C. Bisnoi (PW-6) deposed that on the basis of X-ray report (Ex.-P/15) and X-ray plates (Ex.-P/16 and P/17) he found that the age of prosecutrix (PW-1) was 13 to 14 years. Looking to Ex.-P/18 and P/19 and mark sheet, the date of birth of prosecutrix (PW -1) is 25-04-1978 and the date of incident was 5-06-1991, therefore, the age of prosecutrix (PW-1) was 13 years, 1 month and 10 days on the date of incident. It is also established from the medical evidence that the age of prosecutrix (PW-1) was below 16 years. The date of birth of prosecutrix (PW-1) is 25-04-1978 and the date of incident was 5-06-1991. It reveals that the age of prosecutrix (PW-1) was below 16 years on the date of incident. 9. In Alamelu and another Vs. State, Represented by Inspector of Police AIR 2011 SC 715 , the Hon'ble Supreme Court observed thus : “38. ...... The transfer certificate has been issued by a Government School and has been duly signed by the Headmaster. Therefore, it would be admissible in evidence under Section 35 of the Indian Evidence Act. 9. In Alamelu and another Vs. State, Represented by Inspector of Police AIR 2011 SC 715 , the Hon'ble Supreme Court observed thus : “38. ...... The transfer certificate has been issued by a Government School and has been duly signed by the Headmaster. Therefore, it would be admissible in evidence under Section 35 of the Indian Evidence Act. However, the admissibility of such a document would be of not much evidentiary value to prove the age of the girl in the absence of the material on the basis of which the age was recorded. The date of birth mentioned in the transfer certificate would have no evidentiary value unless the person, who made the entry or who gave the date of birth is examined.” 10. In State of Chhattisgarh Vs. Lekhram (2006) 5 SCC 736 , the Hon'ble Supreme Court observed thus : “A register maintained in a school is admissible in evidence to prove date of birth of the person concerned in terms of Section 35 of the Evidence Act. Such dates of births are recorded in the school register by the authorities in discharge of their public duty. It may be true that an entry in the school register is not conclusive but it has evidentiary value. Such evidentiary value of a school register is corroborated by oral evidence in this case as the same was recorded on the basis of the statement of the mother of the prosecutrix.” 11. In Shekara Vs. State of Karnataka (2009) 14 SCC 76 , the Hon'ble Supreme Court observed as follows : “6. It is to be noted that PW 1 had produced the transfer certificate (Ext.P-9) and has stated that it pertains to the victim and her name has been entered in the certificate. Nothing has been elicited in her cross-examination to discard her evidence that Ext. P-9 pertains to the victim, that is, the daughter of PW 1. PW 12 had issued the transfer certificate and also stated in his evidenced that he was working as headmaster of the school in question. He remembered to have seen her when she came for applying for the transfer certificate for her children and had issued the transfer certificate to her and that Ext. P-9, the transfer certificate was issued by him. It also bears the signature of the headmaster. He categorically stated that Ext. He remembered to have seen her when she came for applying for the transfer certificate for her children and had issued the transfer certificate to her and that Ext. P-9, the transfer certificate was issued by him. It also bears the signature of the headmaster. He categorically stated that Ext. P-9 was issued on the basis of the entries made in the admission register and Ext. P-10(a) as the relevant entry on the basis of which Ext. P-9 was issued.” 12. In Arjun Singh Vs. State of H.P. 2009 Cri.L.J. 1332 (SC4, the Hon'ble Supreme Court observed as follows : "7. In State of Chhattisgarh v. Lekhram [ 2006(5) SCC 736 ] it was held that the register maintained in a school is admissible evidence to prove the date of birth of the person concerned in terms of Section 35 of the Indian Evidence Act, 1872 (in short "Evidence Act'). It may be true that the entry of the school register is not conclusive but it has evidentiary value." 13. In the instant case, looking to the evidence of Shriram Sen (PW-4, father of prosecutrix (PW-1)), Head Master Prahlad Singh Sahu (PW-7) and Doctor S.C. Bisnoi (PW-6), it is established that the age of prosecutrix (PW-1) was below 16 years on the date of incident. 14. Before arriving at any conclusion, in a case like present one, let us look into the settled legal principles which I shall apply to judge veracity of the evidence of prosecutrix (PW-1). 15. In Vijay alias Chinee Vs. State of Madhya Pradesh (2010)8 SCC 191 , the Hon'ble Supreme Court observed thus : “9. In State of Maharashtra v. Chandraprakash Kewalchand Jain, (1990) 1 SCC 550 , this Court held that a woman, who is the victim of sexual assault, is not an accomplice to the crime but is a victim of another person's lust and, therefore, her evidence need not be tested with the same amount of suspicion as that of an accomplice. The Court observed as under: (SCC p. 559, para 16) “16. A prosecutrix of a sex offence cannot be put on par with an accomplice. She is in fact a victim of the crime. The Evidence Act nowhere says that her evidence cannot be accepted unless it is corroborated in material particulars. The Court observed as under: (SCC p. 559, para 16) “16. A prosecutrix of a sex offence cannot be put on par with an accomplice. She is in fact a victim of the crime. The Evidence Act nowhere says that her evidence cannot be accepted unless it is corroborated in material particulars. She is undoubtedly a competent witness under Section 118 and her evidence must receive the same weight as is attached to an injured in cases of physical violence. The same degree of care and caution must attach in the evaluation of her evidence as in the case of an injured complainant or witness and no more. What is necessary is that the court must be alive to and conscious of the fact that it is dealing with the evidence of a person who is interested in the outcome of the charge levelled by her. If the court keeps this in mind and feels satisfied that it can act on the evidence of the prosecutrix, there is no rule of law or practice incorporated in the Evidence Act similar to Illustration (b) to Section 114 which requires it to look for corroboration. If for some reason the 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. But if a prosecutrix is an adult and of full understanding the court is entitled to base a conviction on her evidence unless the same is shown to be infirm and not trustworthy. If the totality of the circumstances appearing on the record of the case disclose that the prosecutrix does not have a strong motive to falsely involve the person charged, the court should ordinarily have no hesitation in accepting her evidence.” 10. In State of U.P. v. Pappu, (2005) 3 SCC 594 , this Court held that even in a case where it is shown that the girl is a girl of easy virtue or a girl habituated to sexual intercourse, it may not be a ground to absolve the accused from the charge of rape. In State of U.P. v. Pappu, (2005) 3 SCC 594 , this Court held that even in a case where it is shown that the girl is a girl of easy virtue or a girl habituated to sexual intercourse, it may not be a ground to absolve the accused from the charge of rape. It has to be established that there was consent by her for that particular occasion. Absence of injury on the prosecutrix may not be a factor that leads the court to absolve the accused. This Court further held that there can be conviction on the sole testimony of the prosecutrix and in case, the court is not satisfied with the version of the prosecutrix, it can seek other evidence, direct or circumstantial, by which it may get assurance of her testimony. The Court held as under : (SCC. p. 597, para 12) “12. It is well settled that a prosecutrix complaining of having been a victim of the offence of rape is not an accomplice after the crime. There is no rule of law that her testimony cannot be acted upon without corroboration in material particulars. She stands at a higher pedestal than an injured witness. In the latter case, there is injury on the physical form, while in the former it is both physical as well as psychological and emotional. However, if the court of facts finds it difficult to accept the version of the prosecutrix on its face value, it may search for evidence, direct or circumstantial, which would lend assurance to her testimony. Assurance, short of corroboration as understood in the context of an accomplice, would do.” 11. In State of Punjab v. Gurmit Singh, (1996) 2 SCC 384 , this Court held that in cases involving sexual harassment, molestation, etc. the court is duty-bound to deal with such cases with utmost sensitivity. Minor contradictions or insignificant discrepancies in the statement of a prosecutrix should not be a ground for throwing out an otherwise reliable prosecution case. Evidence of the victim of sexual assault is enough for conviction and it does not require any corroboration unless there are compelling reasons for seeking corroboration. The court may look for some assurances of her statement to satisfy judicial conscience. The statement of the prosecutrix is more reliable than that of an injured witness as she is not an accomplice. Evidence of the victim of sexual assault is enough for conviction and it does not require any corroboration unless there are compelling reasons for seeking corroboration. The court may look for some assurances of her statement to satisfy judicial conscience. The statement of the prosecutrix is more reliable than that of an injured witness as she is not an accomplice. The Court further held that the delay in filing FIR or sexual offence may not be even properly explained, but if found natural, the accused cannot be given any benefit thereof. The Court observed as under: (SCC pp. 394-96 & 403, paras 8 & 21) “8. ... The court overlooked the situation in which a poor helpless minor girl had found herself in the company of three desperate young men who were threatening her and preventing her from raising any alarm. Again, if the investigating officer did not conduct the investigation properly or was negligent in not being able to trace out the driver or the car, how can that become a ground to discredit the testimony of the prosecutrix? The prosecutrix had no control over the investigating agency and the negligence of an investigating officer could not affect the credibility of the statement of the prosecutrix. ... 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. ... Seeking corroboration of her statement before relying upon the same, as a rule, in such case amounts to adding insult to injury. ... Corroboration as a condition for judicial reliance on the testimony of the prosecutrix is not a requirement of law but a guidance of prudence under given circumstances. ...... * * * 21. ... ... Seeking corroboration of her statement before relying upon the same, as a rule, in such case amounts to adding insult to injury. ... Corroboration as a condition for judicial reliance on the testimony of the prosecutrix is not a requirement of law but a guidance of prudence under given circumstances. ...... * * * 21. ... The courts should examine the broader probabilities of a case and not get swayed by minor contradictions or insignificant discrepancies in the statement of the prosecutrix, which are not of a fatal nature, to throw out an otherwise reliable prosecution case. If evidence of the prosecutrix inspires confidence, it must be relied upon without seeking corroboration of her statement in material particulars. If for some reason the court finds it difficult to place implicit reliance on her testimony, it may look for evidence which may lend assurance to her testimony, short of corroboration required in the case of an accomplice. The testimony of the prosecutrix must be appreciated in the background of the entire case and the trial court must be alive to its responsibility and be sensitive while dealing with cases involving sexual molestations.” 12. In State of Orissa v. Thakara Besra, (2002) 9 SCC 86 , this Court held that rape is not mere physical assault, rather it often distracts (sic destroys) the whole personality of the victim. The rapist degrades the very soul of the helpless female and, therefore, the testimony of the prosecutrix must be appreciated in the background of the entire case and in such cases, non-examination even of other witnesses may not be a serious infirmity in the prosecution case, particularly where the witnesses had not seen the commission of the offence. In State of H.P. v. Raghubir Singh, (1993) 2 SCC 622 , this Court held that there is no legal compulsion to look or any other evidence to corroborate the evidence of the prosecutrix before recording an order of conviction. Evidence has to be weighed and not counted. Conviction can be recorded on the sole testimony of the prosecutrix, if her evidence inspires confidence and there is absence of circumstances which militate against her veracity. A similar view has been reiterated by, this Court in Wahid Khan v. State of M.P., (2010) 2 SCC 9 , placing reliance on an earlier judgment in Rameshwar v. State of Rajasthan, AIR 1952 SC 54 .” 16. A similar view has been reiterated by, this Court in Wahid Khan v. State of M.P., (2010) 2 SCC 9 , placing reliance on an earlier judgment in Rameshwar v. State of Rajasthan, AIR 1952 SC 54 .” 16. In Mohd. Imran Khan Vs. State (Govt. of NCT of Delhi 2012 Cri.L.J. 693 (SC), the Hon'ble Supreme Court observed as follows : “15. It is a trite law that a woman, who is the victim of sexual assault, is not an accomplice to the crime but is a victim of another person's lust. The prosecutrix stands at a higher pedestal than an injured witness as she suffers from emotional injury. Therefore, her evidence need not be tested with the same amount of suspicion as that of an accomplice. The Indian Evidence Act, 1872 (hereinafter called 'Evidence Act'), nowhere says that her evidence cannot be accepted unless it is corroborated in material particulars. She is undoubtedly a competent witness under Section 118 of Evidence Act and her evidence must receive the same weight as is attached to an injured in cases of physical violence. The same degree of care and caution must attach in the evaluation of her evidence as in the case of an injured complainant or witness and no more. If the court keeps this in mind and feels satisfied that it can act on the evidence of the prosecutrix, there is no rule of law or practice incorporated in the Evidence Act similar to illustration (b) to Section 114 which requires it to look for corroboration. If for some reason the 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. If the totality of the circumstances appearing on the record of the case disclose that the prosecutrix does not have a strong motive to falsely involve the person charged, the court should ordinarily have no hesitation in accepting her evidence. The court must be alive to its responsibility and the sensitive while dealing with cases involving sexual molestations. Rape is not merely a physical assault, rather it often distracts the whole personality of the victim. The court must be alive to its responsibility and the sensitive while dealing with cases involving sexual molestations. Rape is not merely a physical assault, rather it often distracts the whole personality of the victim. The rapist degrades the very soul of the helpless female and, therefore, the testimony of the prosecutrix must be appreciated in the background of the entire case and in such cases, non-examination even of other witnesses may not be a serious infirmity in the prosecution case, particularly where the witnesses had not seen the commission of the offence. (Vide: State of Maharashtra v. Chandraprakash Kewalchand Jain, AIR 1990 SC 658 : (1990 Cri LJ 889); State of U.P. v. Pappu @ Yunus & Anr., AIR 2005 SC 1248 : (2004 AIR SCW 6563); and Vijay @ Chinee v. State of M.P., (2010) 8 SCC 191 ) : (AIR 2011 SC (Cri) 940 : 2010 AIR SCW 5510). Thus, the law that emerges on the issue is to the effect that statement of prosecutrix, if found to be worthy of credence and reliable, requires no corroboration. The court may convict the accused on the sole testimony of the prosecutrix.” 17. In Krishan Kumar Malik Vs. State of Haryana (2011)7 SCC 130 , the Hon'ble Supreme Court held thus : “31. No doubt, it is true that to hold an accused guilty for commission of an offence of rape, the solitary evidence of the prosecutrix is sufficient provided the same inspires confidence and appears to be absolutely trustworthy, unblemished and should be of sterling quality. .........” 18. Therefore, the law is well settled that if the evidence of the prosecutrix inspires confidence of the court and her evidence is absolutely trustworthy, unblemished and is of the sterling quality, her solitary evidence would be sufficient to hold the accused guilty of commission of offence of rape. It is on these principles, now, I shall proceed to examine the evidence of prosecutrix (PW-1) in the present case. 19. Learned counsel for the appellants also argued that the lady doctor, who examined prosecutrix (PW-1), has not been examined by the prosecution. He contended that since there were no injuries on the back and private parts of prosecutrix (PW-1) and the report was not supporting the prosecution, therefore, the prosecution did not examine her. In State of M.P. Vs. 19. Learned counsel for the appellants also argued that the lady doctor, who examined prosecutrix (PW-1), has not been examined by the prosecution. He contended that since there were no injuries on the back and private parts of prosecutrix (PW-1) and the report was not supporting the prosecution, therefore, the prosecution did not examine her. In State of M.P. Vs. Dayal Sahu (2005) 8 SCC 122 , the Hon'ble Supreme Court has held that non-examination of the doctor and non-production of doctor's report, would not be fatal to the prosecution case if the statement of the prosecutrix and other prosecution witnesses inspire confidence. It is also noticed that the Court while acquitting the accused on benefit of doubt should be cautious to see that the doubt should be a reasonable doubt and it should not reverse the findings of the guilt on the basis of irrelevant circumstances or mere technicalities. 20. In the instant case, the defence has admitted MLC report (Ex.P-23A) on 08-07-1993. In order-sheet dated 08-07-1993, it is mentioned thus : 8&7&93 ‘kklu ds fy, Jh ih vkj lkgw th ihA vfHk;qDrx.k lfgr Jh Qjgku] Jh ik.Ms] Jh d’;i] Jh lqjkuk] Jh f}osnh vf/koDrk rFkk dqekjh [kku vf/k miA vfHk;kstulk{kh vuqifLFkrA vfHk;qDrx.k ds vf/koDrk us efgyk fpfdRLkd ds esfMdy fjiksVZ dks Lohdkj fd;k vr% ml ij ih&23 , vafdr fd;k x;kA vfHk;kstu dh ls lk{; lekIr fd;k x;kA izdj.k eqyfte c;ku gsrq fnukad 5&8&93^^ The MLC report (Ex.P-23A) was admitted by accused persons, therefore, non examination of the doctor is not fatal to the case of the prosecution. 21. Prosecutrix (PW-1) deposed that on 5-05-1991, accused Purushottam met with her and asked her for going to Durg and if she would not go to Durg along with him he would consume poison. On being allured by accused Purushottam, she went to Durg along with accused Purushottam and Kailash. They reached Durg near about 1.00 pm. In the bus-stand, accused Purushottam and Kailash went to lavatory, thereafter, they went to a hotel for lunch and after taking lunch, they went to watch a movie. Thereafter, they again came back to Railway Station Durg. 22. Prosecutrix (PW-1) deposed that accused Kailash came back to Raipur and accused Purushottam and she remained in Durg Railway Station. She further deposed that co-accused Surendra Kumar came near them and introduced himself as a Police Officer. Thereafter, they again came back to Railway Station Durg. 22. Prosecutrix (PW-1) deposed that accused Kailash came back to Raipur and accused Purushottam and she remained in Durg Railway Station. She further deposed that co-accused Surendra Kumar came near them and introduced himself as a Police Officer. On being asked by co-accused Surendra Kumar, accused Purushottam left prosecutrix (PW -1) alone at the railway station. She further deposed that co-accused Surendra Kumar took her to his house and forcibly committed sexual intercourse with her against her will. 23. Prosecutrix (PW-1) deposed that in the house of accused Surendra Kumar, co-accused Lalji, Rajendra Kumar and Tejkumar also came and they also committed sexual intercourse with her. She further deposed that the above accused persons committed sexual intercourse with her for the whole night. 24. Prosecutrix (PW-1) deposed that on the next day, at about 12 noon, accused Surendra Kumar took her to a hotel for lunch, thereafter, he left her at the railway station and they boarded her in a train. The ticket was taken by the accused Surendra Kumar. She further deposed that she came back to Raipur. She reached Raipur at about 1.00 am (midnight) where accused Rakesh met her and took her to his house and committed sexual intercourse with her. 25. Ex.-P/35 is the FSL report. In Ex.P-35, article A1 i.e. petticoat of prosecutrix (PW-1), article A2 i.e. saree of prosecutrix (PW-1), article B i.e. slide of vaginal swab of prosecutrix (PW-1), article E i.e. janghiya of accused Surendra Kumar, article F i.e. janghiya of accused Tejkumar, and article G i.e. janghiya of accused Lalji were found stained with human spermatozoa. 26. In Ex.-P/23A, it is mentioned that labia minora and labia majora were not tender. There was no injury. Hymen was absent. Vagina admitted 2 fingers easily. There was no injury over any part of the body. Mere fact that no injury was found on private parts of the prosecutrix (PW-1) or on any other part of her body cannot be based for discarding the evidence of prosecutrix (PW-1) which is duly corroborated by the FSL report (Ex.P-35). 27. In Ranjit Hazarika Vs. State of Assam (1998) 8 SCC 635 , the Hon'ble Supreme Court held thus: "5. The argument of the learned counsel for the appellant that the medical evidence belies that testimony of the prosecutrix and her parents does not impress us. 27. In Ranjit Hazarika Vs. State of Assam (1998) 8 SCC 635 , the Hon'ble Supreme Court held thus: "5. The argument of the learned counsel for the appellant that the medical evidence belies that testimony of the prosecutrix and her parents does not impress us. The mere fact that no injury was found on the private parts of the prosecutrix or her hymen was found to intact does not belie the statement of the prosecutrix as she nowhere stated that she bled per vagina as a result of the penetration of the penis in her vagina. She was subjected to sexual intercourse in a standing posture and that itself indicates the absence of any injury on her private parts. To constitute the offence of rape, penetration, however slight, is sufficient. The prosecutrix deposed about the performance of sexual intercourse by the appellant and her statement has remained unchallenged in the cross-examination. Neither the non-rupture of the hymen nor the absence of injuries on her private parts, therefore, belies the testimony of the prosecutrix particularly when we find that in the cross-examination of the prosecutrix, nothing has been brought out to doubt her veracity or to suggest as to why she would falsely implicate the appellant and put her own reputation at stake. The opinion of the doctor that no rape appeared to have been committed was based only on the absence of rupture of the hymen and injuries on the private parts of the prosecutrix. This opinion cannot throw out an otherwise cogent and trustworthy evidence of the prosecutrix. Besides, the opinion of the doctor appears to be based on 'no reasons'." 28. Prosecutrix (PW-1) was taken by accused Surendra Kumar on the pretext that he was a police person. Accused Surendra Kumar took prosecutrix (PW-1) to his house and committed sexual intercourse with her along with other accused Rajendra, Lalji and Tejkumar. Prosecutrix (PW-1) surrendered herself in fear. Therefore, due to mere absence of any injury on the body of prosecutrix (PW-1) her evidence cannot be thrown out. 29. Looking to the evidence of prosecutrix (PW-1), it appears that after being allured by accused Purushottam, she went along with him and co-accused Kailash and she was living with them and it is established that the age of prosecutrix (PW-1) was below 16 years on the date of incident. 29. Looking to the evidence of prosecutrix (PW-1), it appears that after being allured by accused Purushottam, she went along with him and co-accused Kailash and she was living with them and it is established that the age of prosecutrix (PW-1) was below 16 years on the date of incident. Accused Purushottam and co-accused Kailash took prosecutrix (PW-1) from her lawful guardian and prosecutrix (PW-1) left her parental house being completely allured or influenced by accused Purushottam. 30. For the foregoing reasons, I do not find any infirmity in the finding recorded by the learned Additional Sessions Judge for convicting accused/appellant Purushottam for the offence under Sections 363 and 366 IPC. 31. So far as finding of conviction recorded against accused/appellants Rajendra Kumar and Lalji under Section 376 IPC is concerned, prosecutrix (PW-1) specifically deposed that co-accused Surendra Kumar came where she was sitting along with accused/ appellant Purushottam and he introduced himself as a Police Officer. On being asked by co-accused Surendra Kumar, accused Purushottam left prosecutrix (PW-1) at Railway Station, Durg. Thereafter, co-accused Surendra Kumar took her to his house. Appellants Lalji, Rajendra Kumar and co-accused Tejkumar also came to the house of co-accused Surendra Kumar and committed sexual intercourse with prosecutrix (PW-1). 32. Evidence of prosecutrix (PW-1) is duly corroborated by FSL report (Ex.-P/35). The slide of vaginal swab of prosecutrix (PW-1) i.e. article B, her petticoat and saree and underwears of appellants Rajendra Kumar, Lalji and of co-accused Tejkumar and Surendra Kumar were found stained with human spermatozoa. On the date of incident, prosecutrix (PW-1) was an unmarried girl and her age was about 13 years, 1 month and 10 days. On the slide of her vaginal swab and her petticoat and janghiya, human spermatozoa was found which reveals that she was subjected to sexual intercourse. 33. Co-accused Surendra Kumar and Tej Kumar and appellants Rajendra Kumar and Lalji were previously not known to prosecutrix (PW-1). Prosecutrix (PW-1) specifically deposed that she did not know the above accused persons before the incident. The above accused persons kept prosecutrix (PW-1) for the whole night and they left her on the next day at about 1.00 pm. Therefore, prosecutrix (PW-1) had sufficient opportunity to identify the accused persons. There was no animosity against the above persons, therefore, prosecutrix (PW-1) had no motive to falsely implicate the above accused persons. 34. The above accused persons kept prosecutrix (PW-1) for the whole night and they left her on the next day at about 1.00 pm. Therefore, prosecutrix (PW-1) had sufficient opportunity to identify the accused persons. There was no animosity against the above persons, therefore, prosecutrix (PW-1) had no motive to falsely implicate the above accused persons. 34. For the foregoing reasons, the finding recorded by the learned Additional Sessions Judge that appellants Rajendra Kumar and Lalji committed sexual intercourse with prosecutrix (PW-1) without her consent does not call for any interference as the same does not suffer from any infirmity. 35. Learned counsel for the appellants argued that the incident took place on 05-06-1991 and appellant Purushottam was familiar to prosecutrix (PW-1) and looking to the evidence of prosecutrix (PW-1), it appears that prosecutrix (PW-1) accompanied appellant Purushottam willingly. Appellant Purushottam remained in jail from 10-06-1991 to 10-12-1991 i.e. for about 6 months and thereafter, again, after pronouncement of the trial Court's judgment, from 23-01-1996 to 05-04-1997 i.e. for about 1 year, 2 months and 12 days. Thus, appellant Purushottam suffered near about 1 year 8 months and 12 days of jail sentence. Therefore, the jail sentence awarded to him may be restricted to the period already served by him. 36. Learned counsel for the appellants argued that appellants Rajendra Kumar and Lalji were in jail from 10-06-1991 to 18-06-1992 i.e. for about 1 year 8 days, thereafter they were in jail from 23-01-1996 to 04-12-2001. Thus, they have served jail sentence for about 6 years, 10 months and 22 days. Therefore, the jail sentence awarded to appellants Rajendra Kumar and Lalji may also be restricted to the period already served by them. 37. In State of Rajasthan Vs. Vinod Kumar (2012)6 SCC 770 , the Hon'ble Supreme Court observed thus : “21. Awarding punishment lesser than the minimum prescribed under Section 376 IPC is an exception to the general rule. Exception clause is to be invoked only in exceptional circumstances where the conditions incorporated in the exception clause itself exist. It is a settled legal proposition that exception clause is always required to be strictly interpreted even if there is a hardship to any individual. Exception is provided with the object of taking it out of the scope of the basic law and what is included in it and what legislature desired to be excluded. 22. It is a settled legal proposition that exception clause is always required to be strictly interpreted even if there is a hardship to any individual. Exception is provided with the object of taking it out of the scope of the basic law and what is included in it and what legislature desired to be excluded. 22. The natural presumption in law is that but for the proviso, the enacting part of the section would have included the subject-matter of the proviso; the enacting part should be generally given such a construction which would make the exceptions carved out by the proviso necessary and a construction which would make the exceptions unnecessary and redundant should be avoided. Proviso is used to remove special cases from the general enactment and provide for them separately. Proviso may change the very concept of the intendment of the enactment by insisting on certain mandatory conditions to be fulfilled in order to make the enactment workable. 23. Thus, the law on the issue can be summarised to the effect that punishment should always be proportionate/commensurate to the gravity of offence. Religions, race, caste, economic or social status of the accused or victim are not the relevant factors for determining the quantum of punishment. The court has to decide the punishment after considering all aggravating and mitigating factors and the circumstances in which the crime has been committed. Conduct and state of mind of the accused and age of the sexually assaulted victim and the gravity of the criminal act are the factors of paramount importance. The court must exercise its discretion in imposing the punishment objectively considering the facts and circumstances of the case.” 38. In the instant case, learned Additional Sessions Judge has sentenced appellant Purushottam with rigorous imprisonment for 3 years and rigorous imprisonment for 5 years for the offence under Sections 363 and 366 IPC, respectively. Looking to the facts and circumstances of the case and the evidence of prosecutrix (PW-1), the ends of justice would be met if the jail sentence awarded to appellant Purushottam is restricted to the period already undergone by him. So far as appellants Rajendra Kumar and Lalji are concerned, learned Additional Sessions Judge has sentenced them with rigorous imprisonment for 10 years for the offence under Section 376 IPC. So far as appellants Rajendra Kumar and Lalji are concerned, learned Additional Sessions Judge has sentenced them with rigorous imprisonment for 10 years for the offence under Section 376 IPC. Looking to the evidence of prosecutrix (PW-1), it is evident that appellants Rajendra Kumar and Lalji committed sexual intercourse with prosecutrix (PW-1) repeatedly and she was below 16 years of age. Looking to the facts and circumstances of the case, the jail sentence awarded by the learned Additional Sessions Judge to appellants Rajendra Kumar and Lalji for the offence under Section 376 IPC is just and proper and does not call for any interference. 39. In the result, Criminal Appeal No. 266 of 1996 is partly allowed. The conviction of appellant Purushottam under Sections 363 and 366 IPC is affirmed, however, the jail sentences awarded to him are reduced to the period already undergone by him. Criminal Appeal No. 416 of 1996, being devoid of any merit, deserves to be and is hereby dismissed. Appeal Partly Allowed.