Judgment Sudhanshu Dhulia, J. 1. Present Criminal Appeal arises out of a judgment and order dated 10.11.2008 passed by the learned Sessions Judge, District Pithoragarh in Sessions Trial No. 26 of 2006 convicting the present appellant under Section 376(1) IPC and thereby sentencing him for 7 years of rigorous imprisonment and a fine of Rs. 5000/-. 2. At the outset, it needs to be mentioned here that the present matter pertains to Section 376 of the I.P.C. By an amendment in the IPC, Section 228A has been inserted vide Act No.43 of 1983, in order that the identity of the victim of the offence under Section 376 I.P.C. may not be disclosed. Although, printing and publication in law general is not included in the definition of printing and publication in the above provision for which there are several pronouncements by the Hon’ble Supreme Court, yet, purely for reasons of abundant precaution, the name of the victim has not been mentioned in the present judgment and the victim is only addressed as “prosecutrix”. 3. In short, the case of the prosecution (as per the First Information Report) is that on 13.7.2006 at about 7.40 PM in Pithoragarh, the complainant/informant heard a girl crying. The voice was coming from a truck no. URYC-8210 which was a canter make. The complainant on hearing this voice stopped and peeped inside the truck where he saw a girl. Thereafter another persons such as Kedar Joshi @ Kavi Raj (PW1) also came to the spot. They informed the police at Police Station Kotwali, Pithoragarh and thereafter immediately police personnels were arrived from the said police station, which included a lady constable. The complainant further states that he along with the lady constable picked the girl from the truck and took her outside the truck. The girl was smelling of liquor. She said that the name of her father is Dev @ Moti, who is a resident of Nepal. The report further states that the girl seemed to be very scared and said that she has been raped by the conductor of the truck. This FIR concludes by stating that the girl has now been taken to the hospital for further examination. 4. The report further states that the girl seemed to be very scared and said that she has been raped by the conductor of the truck. This FIR concludes by stating that the girl has now been taken to the hospital for further examination. 4. As per the prosecution and other entries in the general diary, the accused was arrested at 10.30 PM the same day from the residence of one Akhtar Ali (PW3), who is the owner of the truck. The clothes which the accused was wearing were taken away by the police. A recovery memo was prepared and the clothes were sent for further forensic examination at the forensic laboratory at Agra, Uttar Pradesh. Similarly, the clothes of the girl were also sent for the forensic examination. 5. The girl was medically examined on the same day at about 8.15 PM on 13.7.2006 at Mahila (female) Hospital, Pithoragarh. The report states that the girl is of thin built, her breasts/nipples are not well developed, axillary hair and even pubic hair are scanty, the hymen is torn and there is redness around the vaginal orifice and two fingers can be inserted easily but no bleeding was found. It was further observed that there are no marks of injury on the body of the prosecutrix. It also states that there is a bad smell like that of alcohol coming from the prosecutrix. The report further states that since signs of virginity are not present it appears that sexual intercourse was done with the prosecutrix. For detection of age, the prosecutrix was referred for radiological examination and her vaginal smear was also sent for further pathological examination. The two report suggest that although the fusion of the bones, which are relevant for examination of the present purposes, had started but the fusion had not completed and, therefore, on an approximation, the age has to be determined to be between 16 to 17 years. Of the vaginal smear which was taken, two slides were prepared and the report states as under: “There are number of epithelial cell visible in the smears. There are spermatozoas visible in each smear.” 6. The accused himself was arrested on the same day and he was also medically examined on 13.6.2007 at 11.10 PM i.e. the same day. According to the medical report there was no injury on the body of the accused. There are spermatozoas visible in each smear.” 6. The accused himself was arrested on the same day and he was also medically examined on 13.6.2007 at 11.10 PM i.e. the same day. According to the medical report there was no injury on the body of the accused. The clothes of both the prosecutrix as well as accused were also sent, as already referred above, in which it was found that in the “Salwar” of the girl as well as on the trousers of the accused spermatozoa was found. 7. Consequently, thereafter the statements of the girl under Section 164 Cr.P.C. were recorded on 17.7.2006. She states that she is about 12 years of age and is a resident of “Darchula”, Nepal. On 13.7.2006 she boarded a jeep from “Darchula”, Nepal to Pithoragarh. She was then alone. She thereafter reached “Thekna” in Pithoragarh at about 9.00 PM. Then, she met the accused at a place near “Idgah”. She had seen the accused before. He asked her to sit with him in a small truck which was parked nearby, along with other trucks. Thereafter he brought a bottle of Pepsi (cold drink) which he asked her to drink. After having Pepsi, she felt intoxicated and almost became unconscious and at that point of time the accused raped her. Thereafter she cried and raised noise, as a result of which the police came and she was rescued. She was asked questions that whether she was conscious when she was being raped to which she says that she was somewhat conscious initially but later she felt unconscious. She was asked that when she regained consciousness did she find any clothes on her body, to which she replied that when she regained consciousness she found that her “Salwar” and “Pajama” have been taken off. She was then asked whether she knew accused from before, to which she stated that she had seen accused earlier talking to his father and only to that extent she knew him. 8. After the investigation, the police filed the chargesheet and the matter was committed to the Sessions for trial and the learned Sessions Judge framed charges against the accused under Section 376(1) IPC. 9. The prosecution in order to support its case produced as many as 13 witnesses, out of which PW12 is the prosecutrix herself. The defence had examined Tehsildar Bhagirath Suradi as DW1. 10. 9. The prosecution in order to support its case produced as many as 13 witnesses, out of which PW12 is the prosecutrix herself. The defence had examined Tehsildar Bhagirath Suradi as DW1. 10. The principal witness in the present case is the prosecutrix herself, who was examined as PW12 on 15.3.2007. She states in her examination in chief that the incident is about one year and two months back. She then states that her mother and father worked at Dharchula and she started her journey from Dharchula to Pithoragarh in order to meet her friend “Pooja”. She reached Pithoragarh at about 4.00 PM in the evening. She left the bus at Pithoragarh and met the accused. She recognized the accused in the court and states that she knew the accused from before as her father used to work for Akhtar Ali (PW3), who had a truck in which the accused was a conductor. The accused told her that he will take her to her friend Pooja and then gave her a bottle of Pepsi to drink. The moment she drank Pepsi she felt intoxicated and thereafter she was taken inside a truck where the accused stripped her of her “Salwar” and forcibly raped her. At some point she regained consciousness and shouted. On her raising a noise, the accused ran away. However, at the same time some had people gathered outside the truck and she was then taken to the hospital for medical examination. Thereafter, her statement was recorded by the police and subsequently her statement was also recorded by the Magistrate. She further states that the clothes which she was wearing were also handed over to the police (which were recognized by the prosecutrix in the court) and the police gave her a new set of clothes. She was put to a detail cross-examination by the defence, but nothing material has come out in her cross examination which may help the case of the defence. This testimony of the prosecutrix was enough for a conviction, as in a case of rape, conviction can be based purely on the testimony of the prosecutrix. However, in the present case, after four months an application was moved by the defence under Section 311 Cr.P.C. for recalling of this witness PW12 i.e. the prosecutrix. This testimony of the prosecutrix was enough for a conviction, as in a case of rape, conviction can be based purely on the testimony of the prosecutrix. However, in the present case, after four months an application was moved by the defence under Section 311 Cr.P.C. for recalling of this witness PW12 i.e. the prosecutrix. No order seems to have been passed on the said application and, thereafter, another application for recalling the PW12 was moved by the defence on 15.2.2008. This witness i.e. the prosecutrix was recalled and was examined now as court witness no. 1 on 13.3.2008. We will come to this aspect in a while. 11. Meanwhile there were other witnesses produced by the prosecution such as PW2 and PW1 i.e. the complainant and eye-witness to the recovery of the girl, respectively. There has been consistency in their testimony and they have totally supported the case of the prosecution, to the fact that the girl was recovered from the truck on 13.7.2006, in the evening. 12. PW3 is Akhtar Ali, who is admittedly the owner of the truck and from whose house at 10.30 PM on the same day the accused was arrested. He admits the fact that he is the owner of the truck and the accused is his conductor or helper in that truck. 13. PW4 is “Sakshi”, who is a lady constable at P.S. Kotwali, Pithoragarh who again corroborates the prosecution story and states that on receiving the information on 13.7.2006 she went to the place of incident and picked up the girl from the truck and took her to the hospital where she was medically examined. She further corroborates to the fact that on that night she too stayed in the hospital with the victim. The defence has tried to draw a lot of mileage from the two evidence which were there before the court. One is the so called “dying declaration” of the prosecutrix recorded by the Tehsildar on 13.7.2006. This document is titled as “dying declaration”, where the prosecutrix states that she had started her journey from Darchula to Dharchula in order to look for her parents and while she was in a truck she was raped in a “Jungle” by the driver as well as the conductor of the truck and thereafter she was dropped at Pithoragarh. 14. We now revert to the recalling of the main witness the prosecutrix. 14. We now revert to the recalling of the main witness the prosecutrix. On her reexamination on 13.3.2008 she takes a complete summersault and states that the correct statement was the one given by her to the Tehsildar in the night of 13.7.2006 (her so called dying declaration), and that she does not know the accused, and that he never her and she was raped by some unknown persons. Interestingly she also states that she is now married and 21 years of age, and at the time of her rape she was 20 years of age. 15. The document titled “dying declaration”, cannot be read in evidence for the simple reason that it is said to be a dying declaration but it does not satisfy the parameters of law for it to have become a dying declaration. Even otherwise, this Court is totally at pains to understand as to under what circumstances such a statement was recorded by the Tehsildar or how and under what circumstances was he authorized to record such a statement. Moreover, the prosecutrix in her examination in chief has clearly denied giving any such statement to the Tehsildar on 13.7.2006. This Court also cannot loose sight of the fact that the prosecutrix is after all a minor girl and she belongs to a very low stratum of the society. She is either semi-literate or even illiterate. Moreover the fact that she is extremely poor is evident from the circumstances which have been narrated in the prosecution story itself. She has clearly been won over by the defence, which explains her change of stance. 16. The application dated 15.2.2008 moved by the defence under Section 311 Cr.P.C. for recalling the prosecutrix (i.e. PW12) has been perused. The said application has been moved by the defence stating that certain important questions could not be asked from the prosecutrix such as whether she actually met her friend “Pooja” at Pithoragarh and there are other questions stated in the application and these questions need to be asked. Amazingly, no such question was put to the prosecutrix when she was recalled as a court witness and examined. In fact she was straightway cross-examined by the defence. In the end since the prosecution after taking permission of the Court had put questions to this particular witness, it will be deemed that she has now been declared as hostile. Amazingly, no such question was put to the prosecutrix when she was recalled as a court witness and examined. In fact she was straightway cross-examined by the defence. In the end since the prosecution after taking permission of the Court had put questions to this particular witness, it will be deemed that she has now been declared as hostile. In fact she was declared hostile at that stage. However, the law on this subject is well settled that the entire statement given by the hostile witness cannot be discarded and the court in its wisdom can accept part of the statement given by the hostile witness. This Court is clearly of the view that it would be a total mockery of justice if the subsequent testimony of this particular witness is not discarded which was made after she was recalled under Section 311 Cr.P.C. This evidence has rightly been discarded by the trial court and is being done by this Court as well. Similarly the document which has been relied upon by the defence i.e. statement given before the Tehsildar is absolutely of no relevance and has rightly been discarded by the court below. 17. In view of this Court, it is a clear case of rape abundantly established by the evidence placed by the prosecution. The medical evidence which was promptly conducted point out that the victim was subjected to a sexual intercourse which was only hours before the medical examination. The recovery of the victim from the truck and the clear establishment of the fact that the appellant was the cleaner of the truck and the arrest of the accused the same day, from the residence of the owner of the truck and most importantly the statement of the prosecutrix under Section 164 Cr.P.C. and later her testimony in the court leave no doubt that the prosecutrix was raped by the accused. 18. Learned Senior Counsel for the appellant Ms. 18. Learned Senior Counsel for the appellant Ms. Pushpa Joshi though has vehemently argued that the appellant is innocent and he has been wrongly convicted, and in support of this statement has pointed out to the discrepancies in the statement of the prosecutrix, firstly in her statement to the Tehsildar where she says that she came from “Darchula”, Nepal to “Dharchula”, Pithoragarh to meet her friend “Pooja” and thereafter different statement by her given under Section 164 CrPC and then again a change in her statement in her testimony in the court as PW12, and thereafter another statement when she was examined as a court witness after being recalled under Section 311 Cr.P.C. 19. Undoubtedly there are some differences in the statement of this particular witness, but one thing which has to be kept in mind is the age of this girl, which even as per the medical report is between 16 to 17 years and the social and economic milieu from where she comes and also the fact that she is almost illiterate or semi literate. Therefore, these discrepancies have to be presently ignored, and no benefit is liable to be given of the same to the defence, particularly on the face of overwhelming evidence against the accused. 20. Moreover, in cases of rape the approach of the Court also has to be different. Hon’ble Apex Court in Visveswaran Vs. State REP. BY S.D.M. reported in (2003) 6 SCC 73 while dismissing the appeal of the accused in a case of Section 376 IPC stated as under:- “…The cases are required to be dealt with utmost sensitivity, courts have to show greater responsibility when trying an accused on charge of rape. In such cases, the broader probabilities are required to be examined and the courts are not to get swayed by minor contradictions or insignificant discrepancies which are not of substantial character. The evidence is required to be appreciated having regard to the background of the entire case and not in isolation. The ground realities are to be kept in view.” 21. As already referred above, the so called dying declaration given by the prosecutrix to the Tehsildar and her turning hostile after she was recalled as a court witness are liable to be ignored for the reasons already stated above. 22. Heard learned senior counsel for the appellant on the quantum of sentence as well. As already referred above, the so called dying declaration given by the prosecutrix to the Tehsildar and her turning hostile after she was recalled as a court witness are liable to be ignored for the reasons already stated above. 22. Heard learned senior counsel for the appellant on the quantum of sentence as well. Since 7 years of rigorous imprisonment is minimum sentence which can be imposed under Section 376 IPC which has been done in the present case, it does not call for any interference by this Court on the quantum of the sentence as well. 23. The appeal therefore fails and is hereby dismissed. Accordingly, the judgment and order dated 10.11.2008 passed by the court below in Sessions Trial No. 26 of 2006 is upheld. 24. The accused/appellant is on bail. His bail is cancelled. He shall be immediately taken into custody by the police and shall carry out the remaining period of sentence awarded to him. The period already undergone by the appellant during the trial and appeal shall be deducted from the above sentence. Let a copy of this judgment be sent to the trial court to make appellant serve out the sentence as awarded by the court below. Lower Court record be sent back.