JUDGMENT Hon’ble U.C. Dhyani, J. (Oral) A first information report (Ext. Ka-8) was lodged by the informant Vikram on 01.06.2011, at 8:00 p.m. in patwari circle Toli Bangarh, Kirti Nagar, District Tehri Garhwal against the accused for the offences punishable under Sections 323, 504, 506 and 376 IPC, taking recourse to Section 156(3) Cr.P.C. The application under Section 156 (3) Cr.P.C. was moved by the complainant Vikram in the Court of Chief Judicial Magistrate, Tehri Garhwal on 28.05.2011 and only thereafter the first information report was lodged on 01.06.2011. After the investigation, a charge sheet (Ext. Ka-10) against the accused for the offences punishable under Sections 376/511, 323, 504 and 506 IPC was submitted. 2. The case was committed to the Court of Sessions. When the trial began and prosecution opened it’s case, charge for the offences punishable under Sections 376/511, 323, 504 and 506 IPC were framed against the accused, who pleaded not guilty and claimed trial. PW 1 Kumari Pinki (victim), PW 2 Vaishali Devi (mother of the victim), PW 3 Vikram (informant, father of the victim), PW 4 Ramesh (brother of informant), PW 5 Dr. Satwant Kaur, Medical Officer and PW 6 Jabbar Singh Panwar (investigating officer) were examined on behalf of the prosecution. Incriminating evidence was put to the accused under Section 313 Cr.P.C. in reply to which he said that he was falsely implicated in the case. He said that victim’s grandmother picked up a quarrel with him and his wife which resulted in reconciliation but still he was falsely implicated in this case. No evidence was given in defence. After considering the evidence on record, learned Additional Sessions Judge, Tehri Garhwal found the accused guilty of the offences for which he was charged. He was sentenced to undergo five years’ rigorous imprisonment along with a fine of Rs. 5000/- under Section 376/511 IPC. He was directed to undergo rigorous imprisonment for one month each under Sections 323 and 506 IPC. Both the sentences were directed to run concurrently. Aggrieved against the impugned order dated 26.03.2011, present criminal appeal was preferred. 3. Prosecution led the evidence through PW 1 Kumari Pinki /victim. She was 11 years of age when she came to depose. After conducting her voir dire and being satisfied with the fact that PW 1 was capable of understanding the things, the trial court permitted her examination. Aggrieved against the impugned order dated 26.03.2011, present criminal appeal was preferred. 3. Prosecution led the evidence through PW 1 Kumari Pinki /victim. She was 11 years of age when she came to depose. After conducting her voir dire and being satisfied with the fact that PW 1 was capable of understanding the things, the trial court permitted her examination. PW 1 said that on 28.05.2011, at 9:00 a.m., she went to wash her utensils on the bank of river. His father and his uncle were sitting in the village. Her mother went to jungle to fetch grass. Her sister was at home. When she was washing utensils on the bank of river, accused- appellant Buddhi alias Surendra came there. He inflicted blow of lathi (stick) on her shoulder. He also threw stone on the wrist of her arm. PW 1 also said that accused pressed her mouth and dragged her in the jungle, near temple. He disrobed her and also took off his wearing apparels. The accused took off the trousers of the victim. He also took out his lower wearing apparels. PW 1 was wearing pyjama (trousers). Accused laid on her (PW 1). Her mother had been to jungle to fetch the grass. The accused told PW 1 not to disclose the incident to anyone, otherwise, he will kill PW 1. When she cried, her mother came. Her mother pulled accused. He ran away thereafter. Had PW 1’s mother not come to the place of occurrence, the accused would have committed rape with her. PW 1 along with her mother PW 2 went to their home. Many a people assembled at their home. PW 1 and PW 2 told PW 3 about the incident. PW 1 also explained the injuries caused to her. Her statement was recorded by the Magistrate. PW 1 also proved her statement under Section 164 Cr.P.C., in which she said as below: “On 28.05.2011, at 9:00 a.m., my mother went to fields to fetch grass. My father had gone to the house of my uncle in another mohalla. I went to wash the utensils and for fetching water at the bank of a river. I was washing utensils. Co-villager Buddhi came there surreptitiously. He was drunk. He gave a blow of lathi on my elbow. He also threw stones and also pressed my mouth with his hands. I went to wash the utensils and for fetching water at the bank of a river. I was washing utensils. Co-villager Buddhi came there surreptitiously. He was drunk. He gave a blow of lathi on my elbow. He also threw stones and also pressed my mouth with his hands. He dragged me near a temple in jungle. He laid on me and disrobed me. As soon as I was laid and disrobed by Buddhi Singh, I screamed. My mother Vaishali Devi came there. She caught hold of Buddhi. I was not wholly conscious at that time. Buddhi released me when my mother came. Accused ran away. I along with my mother narrated the entire incident to my father, who took me Tehri for my statement. I was also examined by a lady doctor. The lady doctor took my pyjama (trousers) in her possession and gave another pyjama to wear.” 4. In the cross-examination, PW 1 said that the river was nearby her village. It was a river, not a well, where people come to fetch water and wash utensils. There was a shop of Sati Dada. A few people were working in the tank. She also gave the details of the place where she was washing her utensils. The incident took place on 28th day of 5th month, at 9:00 a.m. Buddhi was standing at the place of occurrence. PW 1 wore black coloured suit on the date of incident. Her pyjama (trousers) were taken and kept by the medical officer. The Doctor had returned kurta (shirt). She made it clear that she gave the statement in the court on her own volition. She was sexually assaulted by the accused. She denied the suggestion that she gave said statement at the instance of someone else. She admitted that a quarrel took place between her grandmother and accused five day’s before this incident. She was forthright in her statement when she said that her grandmother told that Buddhi was to be sent to jail. Her father and uncle returned to the village on the same night. She went to get her statement recorded before the Magistrate along with her father. The jungle was far away from the place where she was washing her utensils. Her mother went to fetch the grass all alone. The place of incident was surrounded by a field, common pathway and temple. She went to get her statement recorded before the Magistrate along with her father. The jungle was far away from the place where she was washing her utensils. Her mother went to fetch the grass all alone. The place of incident was surrounded by a field, common pathway and temple. Her mother came on the place of occurrence only when PW 1 cried. The accused dragged PW 1 to the place of incident. The accused gave her the blows of stick and stone. When her mother came, she pulled accused, who fled away after putting on his pyjama (trousers). PW 1’s mother came to the place of occurrence holding grass on her head. When she came, accused picked up his pant and fled away. Her statement was taken by patwari. She narrated the incident to him in detail. Many a questions were repeated to PW 1 in the cross-examination, and she replied to those questions appropriately. She cried when the accused disrobed her and took out her lower (trousers). 5. It cannot be said by any stretch of imagination that PW 1 was telling a lie. She narrated the incident in her examination-in-chief after her voir dire was conducted. She was cross-examined by defence at length. Not a single sentence has come in the cross-examination of PW 1 to indicate that she was telling a lie. The evidence tendered by PW 1 inspired confidence. There was no reason to disbelieve PW 1 (prosecutrix). 6. PW 2 Smt. Vaishali Devi, in her examination-in-chief, supported PW 1. It will be mere repetition of facts if the contents of her examination-in-chief are reproduced. It will, however, be worthwhile to mention the contents of her cross-examination, in which she said that the incident took place near river. She was also forthright in her statement that accused had quarrel with her mother-in-law. When the quarrel took place, PW 1 was not present there. Patwari took her statements. She went to fetch the grass in the jungle on the fateful day. She went to cut the grass in the morning at 09:00 a.m. The accused was present near river. Her daughter went to the river to wash the utensils. When she was coming back from the jungle and came near the fields, she heard the cries of her daughter (PW 1). She rushed to the place of occurrence. She went to cut the grass in the morning at 09:00 a.m. The accused was present near river. Her daughter went to the river to wash the utensils. When she was coming back from the jungle and came near the fields, she heard the cries of her daughter (PW 1). She rushed to the place of occurrence. She pulled the accused, who took his pant and fled away. No rape was committed in her presence. She gave the description saying that both the victim and the accused were naked. The victim was laid. Her mouth was pressed by the accused. She gave the wearing apparels of her daughter to the police. PW 1 sustained minor injuries on her person. The evidence of PW 1 was thus corroborated by PW 2. 7. PW 3 Vikram Singh was the informant, who proved his complaint (Ext. Ka-1) and affidavit (Ext. Ka-3). PW 3 lodged the complaint only on the basis of what was told to him by PW 1 and PW 2. PW 4 Ramesh, uncle of the victim said that when he heard the noise of screams in the house of Vikram, PW 4 told Vikram to rush to his house. When Vikram reached there, many a people assembled there. 8. PW 1 and PW 2 narrated the incident to PW 3 and the villagers. PW 6 Jabbar Singh Panwar, patwari was the investigating officer, who conducted the investigation and after being satisfied that the accused committed offence, submitted charge sheet against him. 9. PW 5 Dr. Satwant Kaur, examined the victim on 28.05.2011, at 7:45 p.m. On general examination, the victim was found conscious, well oriented to time, place and person. The medical officer found an abrasion, dark red in colour, horizontal 5 c.m. long 03 inches from the left ulterior arm; a laceration horizontal, 2 cm length, in flammed edges on the dorsum side of left hand; a blush black discolouration in the left lumber region just above the left buttock, 3.5 c.m. from mid line; an abrasion intermedialy on left leg, dark brown in colour, .5 c.m. x .5 c.m. 10 c.m. from the left ankle. 10. Thus, the ocular testimony of PW 1 and PW 2 was duly corroborated by PW 5, when she examined the victim and found the above noted injuries on her person. 11. 10. Thus, the ocular testimony of PW 1 and PW 2 was duly corroborated by PW 5, when she examined the victim and found the above noted injuries on her person. 11. It is not the case of the prosecution that the accused committed rape. The prosecution came out with a case that accused attempted to commit rape, so it was not surprising that PW 5 said, on the basis of the report of pathologist, that the smear did not contain any spermatozoa, live or dead. 12. PW 5 also opined that injury no. 1 sustained by the victim was a simple injury caused by a blunt object or friction, the duration of which was between 12 to 24 hours. Injury no. 2 was simple injury caused by a sharp object, duration of which was between 12-24 hours. Injuries no. 3 & 4 were simple injuries caused by a blunt object or friction. Whereas the duration of injury no. 3 was between 1 to 4 days, the duration of injury no. 4 was between 3 to 5 days. Even if it be conceded for the sake of arguments that the injuries no. 3 and 4 were not sustained by the victim during the course of incident, the fact remains that the duration of injuries no. 1 & 2 coincided with the time of the occurrence in question. The prosecution case was proved against the accused beyond a shadow of reasonable doubt. Learned trial court discussed the evidence of prosecution witnesses in great detail and rightly came to the conclusion, on the strength of the evidence on record, that the prosecution was able to prove the offences complained of against the accused. Learned Court below has also discussed the rulings at internal page no. 12 of the Judgment. Learned trial court convicted accused-appellant under Section 376 (2) (f) IPC on the pretext that the victim was below 12 years of age. No interference is called for in the impugned judgment, as also the conviction and sentence awarded to the accused-appellant. 13. Criminal appeal is devoid of merits and is dismissed. The conviction and sentence awarded to the accused-appellant by the Court below are affirmed. The accused-appellant is on bail. His bail is cancelled. He is directed to surrender forthwith before the Court below to serve out the sentence, as was awarded by the trial court, which is affirmed by this Court. Criminal appeal is devoid of merits and is dismissed. The conviction and sentence awarded to the accused-appellant by the Court below are affirmed. The accused-appellant is on bail. His bail is cancelled. He is directed to surrender forthwith before the Court below to serve out the sentence, as was awarded by the trial court, which is affirmed by this Court. Period already undergone by the accused-appellant during the investigation and during the trial shall be set off. 14. Let a copy of this judgment along with the Lower Court Record be sent to the Court below, for causing surrender of the accused-appellant and sending him to prison for serving out the term of imprisonment.