JUDGMENT Hon’ble B.S. Verma, J. This Criminal Jail Appeal, is directed against the judgment and order dated 1-9-2010, passed by Addl. Sessions Judge/ 1st F.T.C. Nainital, in Sessions Trial No. 4 of 2010, State Vs. Chandra Singh Farswan, whereby the accused was convicted U/Ss 376 and 452 I.P.C. and he was sentenced to undergo ten years R.I. and to pay a fine of Rs. 10,000/- U/S 376 I.P.C. and in default of payment of fine to further undergo S.I. for one year and he was further sentenced to undergo R.I. for three years and to pay a fine of Rs. 5,000/- U/S 452 I.P.C. and in default of payment of fine to further undergo six months S.I. Both the sentences were directed to run concurrently. 2. The prosecution case, in short, is that on 22.5.2009 at about 6.00 p.m. accused Chandra Singh, taking benefit of storm entered in the house of Tara Singh and forcibly took away the prosecutrix in the barren house situated in the neighbourhood where wheat-straw was kept and committed forcible rape upon her. The report of the incident was lodged by Km. Mannu Danu, prosecutrix herself at Kotwali Lalkuan on 23-5-2009. In the written report Ext.Ka.1 it is mentioned that the prosecutrix is physically weak and she was all alone at the house, her mother is also handicapped and the atmosphere was stormy thus she could not lodge the report in the evening of the day of incident. 3. On the basis of written report Ext. Ka.1, chick F.I.R. Ext. Ka.5 was prepared by the police and a case crime No. 66 of 2009 U/Ss 452, 376 I.P.C. was registered against the accused. The carbon copy of the G.D. is Ext. Ka.6. The investigating Officer visited the place of occurrence and prepared site plan Ext. Ka.7. He also took into custody the cloths of prosecutrix worn by her at the time of incident and prepared memo Ext. Ka.2. The prosecutrix was medically examined by the doctor, who prepared medical report Ext.Ka.3 and supplementary report Ext. Ka.4. After completing the investigation, the charge sheet Ext. Ka.8 was submitted against the accused U/Ss 452 and 376 I.P.C. 4. The case was committed by the learned Magistrate to the Court of Sessions and charges U/Ss 452 and 376 I.P.C. were framed by the sessions Court against the accused, who pleaded not guilty and claimed to be tried. 5. Ka.4. After completing the investigation, the charge sheet Ext. Ka.8 was submitted against the accused U/Ss 452 and 376 I.P.C. 4. The case was committed by the learned Magistrate to the Court of Sessions and charges U/Ss 452 and 376 I.P.C. were framed by the sessions Court against the accused, who pleaded not guilty and claimed to be tried. 5. The prosecution to prove the guilt of the accused produced six witnesses- P.W.1 prosecutrix, P.W.2, Smt. Jassu, P.W.3, Dr. Usha Jangpangi, P.W.4, Tara Singh, P.W.5, Constable Krishna Dhangharia and P.W.6, I.O. Arun Kumar Verma. 6. The accused, in his statement U/S 313 Cr.P.C. denied the prosecution case and has alleged that he has falsely been implicated in the case. However, the accused did not adduce any evidence in his defence. 7. The learned Sessions Judge after considering the evidence on record and hearing learned counsel for the parties, held the accused guilty of offences U/Ss 452 and 376 I.P.C. and accordingly passed the sentences against him. 8. Feeling aggrieved, the accused has filed this appeal from jail. 9. I have heard learned counsel for the parties and perused the record. 10. Learned Amicus Curiae, appearing on behalf of the appellant has submitted that in the medical examination of the prosecutrix the doctor has not given the opinion of commission of rape upon the prosecutrix. The accused has been falsely implicated in the case, therefore, the accused/appellant is entitled for acquittal. 11. At the outset it is to be mentioned here that the prosecutrix is dwarf and physically weak. She herself gave her age as 25 years at the time of recording of her statement in the trial court. The allegations against the accused are that when he entered the house of prosecutrix there was storm in the area and taking the benefit of the stormy atmosphere he took the prosecutrix out of her house and brought her in a room in the neighbourhood where wheat-straw was kept and there he committed forcible rape upon the prosecutrix. 12. The incident has been narrated by the prosecutrix in her on oath statement before the trial court. She was examined as P.W.1. She deposed that about 10-11 months prior when she was sitting in her house, the atmosphere was stormy, accused Chandra Singh entered her house and took her to the house of Gajendra Singh where wheat-straw was kept. 12. The incident has been narrated by the prosecutrix in her on oath statement before the trial court. She was examined as P.W.1. She deposed that about 10-11 months prior when she was sitting in her house, the atmosphere was stormy, accused Chandra Singh entered her house and took her to the house of Gajendra Singh where wheat-straw was kept. He untied his paijama and under-wear and entered his urine organ into her urine organ. She felt pain and blood had come out from her vagina. Thereafter accused had gone away from the place of occurrence. She came to her house and became unconscious and narrated the incident to her parents. Due to stormy atmosphere she could not lodge the complaint on the same day and on the next day she lodged the report of the incident at P.S. Lalkuan. Thereafter she was medically examined by the doctor. In the cross-examination this witness has stated that when the accused was taking her out from her house she tried to raise alarm but the accused gave threats to her and due to this reason she did not raise alarm. She has further stated that when the accused had entered her house she was all alone there. She further stated that when the accused brought her to the house where he committed rape upon her, she tried to run away but the accused caught hold of her and did not allow her to run away from there. She further stated in her cross-examination that the written report was got prepared from Tara Singh. This witness also stated that Chandra Singh and Tara Singh were in bad terms. But no suggestion has been given from the side of the accused to the prosecutrix as to why she was giving the statement against the accused. While recording the statement of this witness, Court has made observation that the witness is a dwarf of about 3 feet height and apparently fifteen to twenty kilogram in weight. Thus, it is proved from the on oath statement of prosecutrix that the accused Chandra Singh had entered her house and took her away to the house of Gajendra Singh where wheat-straw was kept and there he committed forcible rape upon her. 13. P.W.2, Smt. Jassu Devi is also the witness of fact. Thus, it is proved from the on oath statement of prosecutrix that the accused Chandra Singh had entered her house and took her away to the house of Gajendra Singh where wheat-straw was kept and there he committed forcible rape upon her. 13. P.W.2, Smt. Jassu Devi is also the witness of fact. She has deposed that at the time of incident she had gone to take water from the tape and as there was crowd at the water tape, she had to stay there for sufficient time and when she returned to her house she did not find the prosecutrix at the place where she had left her before leaving for taking water. She searched for her in the vicinity but she was not traced. At about 9 p.m. she found the prosecutrix in the Khalihaan and took her to her house. At that time the prosecutrix was afraid and was weeping and straw was on her body. On asking, the prosecutrix has told her that the accused came to her house and took her to the house of Gajendra Singh where straw was kept and committed forcible rape upon her. The witness also stated that the cloths of the girl were blood-stained. She further deposed that in the night she was alone at the house and there was storm hence the report could not be lodged and on the next day the report of incident was got prepared from brother Tara Singh and was lodged with the police. This witness also stated that the blood-stained cloths of her daughter was taken into custody by the police and she had also made her signature. She has proved recovery memo Ext. Ka.2. In the cross examination of this witness also no suggestion has been given by the defence as to why she was giving evidence against the accused. The statement of this witness seems to be natural and trustworthy. 14. Now coming to medical evidence, the prosecutrix was medically examined by P.W.3, Dr. Usha Jangpangi on 23.5.2009. The Medical Officer has noted in the medical report that the victim was in general condition and mentally she seems to be weak. There was no abrasion or wound on the body of the victim. In examination of private part the doctor found that the private part was fully developed. Pubic hair was not present, breasts were not fully developed. The Medical Officer has noted in the medical report that the victim was in general condition and mentally she seems to be weak. There was no abrasion or wound on the body of the victim. In examination of private part the doctor found that the private part was fully developed. Pubic hair was not present, breasts were not fully developed. In internal examination the doctor found that the hymen was torn from back side. The victim was having small uterus. Advise was given for ultrasound of uterus. Vaginal smear was taken and slides were sent to pathological examination to ascertain the presence of spermatozoa. In the supplementary report no dead or alive spermatozoa was seen present in vaginal smear. In the opinion of medical officer she has observed that the victim was subjected to sexual intercourse but no confirmed opinion can be given about the commission of rape. In the cross examination the medical officer has stated that no dead or alive spermatozoa were found in the vaginal smear therefore she cannot tell that whether rape was committed upon the victim within 3-4 days. However, overall reading of medical evidence produced in the case it is proved that the hymen of the victim was torn and she was subjected for sexual intercourse and the medical evidence fully supports the on oath statement of the prosecutrix that the accused had committed rape upon her. 15. P.W.4, Tara Singh is the scribe of the written report. This witness has stated on oath that prosecutrix is his sister’s daughter. In the morning on 23.5.2009, his sister had come to his house and told him about the incident and asked him to lodge the report. Then he went to P.S. Lalkuan and prepared written report Ext. Ka.1 on the narration of prosecutrix. Thereafter he had read over the report to the victim and handed over to the police station. This witness has also proved the written report Ext. Ka.1. It is important to mention here that the accused has given suggestion to prosecutrix that the terms between this witness Tara Singh and the accused were not cordial, but no such suggestion was given to this witness and the defence theory that Tara Singh and the accused had no good terms and this witness Tara Singh has concocted the false case, has no relevance. 16. 16. P.W.5, C.P. 351 Krishna has made entries of Chick F.I.R. and registered the case in the G.D. against the accused and he has proved the copy of G.D. Ext. Ka.6 and Chick F.I.R. Ext. Ka.5. 17. P.W.6, S.O. Arun Kumar has investigated the case and he has stated about the investigation and proved the prosecution papers prepared during investigation. 18. Thus, from the evidence on record, it is fully established that the accused had entered the house of the prosecutrix and took her to the house of Gajendra Singh situated in the neighbourhood and he committed forcible rape upon her against her will and he has rightly been convicted U/Ss 452 and 376 I.P.C. 19. On the question of sentences passed by the trial court against the accused/appellant, learned Amicus Curiae appearing on behalf of appellant has submitted that the accused-appellant is a grown up man and has responsibility of his family and the sentence of 10 years awarded against him is very harsh and the same needs to be reduced. 20. The above submission has some force. The accused-appellant has given his age in his statement U/S 313 Cr.P.C. as 46 years and looking to his age and responsibility of his family, as well as in the facts and circumstances of the case, in my opinion the sentence of ten years passed against him U/S 376 I.P.C. needs to be reduced to a sentence of seven years R.I., which will meet the ends of justice. 21. In view of discussion made in above paragraphs, the conviction and sentence passed by the trial court against the accused/appellant U/S 452 I.P.C. is affirmed. The conviction of the accused/appellant U/S 376 I.P.C. is also upheld. However, the sentence passed against the accused/appellant by the trial court U/S 376 I.P.C. is reduced to seven years and to pay a fine of Rs. 10,000/- and in default of payment of fine to further undergo S.I. for one year. All the sentences shall run concurrently. 22. With the above modification in sentence passed U/S 376 I.P.C., the appeal is partly allowed. 23. The accused/appellant is already in jail. He shall be detained in prison to serve out the remaining sentences passed by the trial court against him.