JUDGMENT Hon’ble V.K. Bist.J. This appeal, preferred under Section 374 of the Code of Criminal Procedure, 1973 (for short Cr.P.C.), is directed against the judgment and order dated 24.10.2001 passed by Addl. Sessions Judge/Special Judge, CBI (Anti corruption), Uttarakhand, Dehradun in Sessions Trial No. 81 of 2000 ‘State vs. Rakesh Chopra’, whereby accused/ appellant Rakesh Chopra has been convicted under Section 323, 506, 376 (2) (f) read with Section 511 of the Indian Penal Code, 1860 (for short I.P.C.) and has been sentenced to undergo rigorous imprisonment for six months each under Sections 323 and 506 I.P.C. and rigorous imprisonment for ten years with fine of Rs. 20,000/- under Section 376 (2) (f) read with Section 511 I.P.C. and in default of payment of fine, further rigorous imprisonment for a term of six months. It was directed that all sentences shall run concurrently. 2. Heard learned counsel for the parties and perused the Lower Court’s Record. 3. The facts, leading to the appeal, are that on 10.07.1998 at 9:15 p.m. PW-2 Smt. Santosh Sharma (mother of the victim) submitted a written report (Ext. A-2) before the Inspector of Police, Kotwali, Rishikesh with the assertion that on the very day at 7:00 p.m. her neighbour Rakesh Chopra took her daughter Km. Meenakshi-aged 10 years with him pretending her to eat maize, however enticing her daughter, the accused took her at Dhanwantari complex (Kalikamli) situate at Laxman Jhula Road and threatening her he started molester her. Shedding tears, her daughter returned back and disclosed that the accused took her at Dhanwantary complex, where he ordered her to keep mum and catching hold Meenakshi with her heirs, the accused dashed her head on the staircase and strangulated her throat. Thereafter, the accused removed all her clothes and when the accused tried to commit rape on her, Meenakshi pushed the accused and fled from there. Upon reaching at Bhairo Temple, when she made screams by shouting ‘save-save’, many people gathered there, who brought her back to home but the accused Rakesh chasing her, came to her house and by strangulating her threatened her not to disclose the incident, otherwise she will be killed. The people gathered there caught hold of the accused and kept him confined in a room. On the basis of written report, a case crime no. The people gathered there caught hold of the accused and kept him confined in a room. On the basis of written report, a case crime no. 245 of 1998 was registered against the accused Rakesh Chopra under Section 452, 323, 506, 376 and Chik Report (Ext. A-5) was prepared and an entry was made in the General Diary (Ext. A-6). Investigation of the case was entrusted to Sub Inspector M.L. Sant (PW-6) who during investigation, arrested the accused, prepared the arrest memo (Ext. A-9), recorded statements of the witnesses and after making spot inspection prepared site plan (Ext. A-8). Thereafter, on 10.07.1998 at 11:00 p.m., Dr. Neelam Kandari, Medical Officer (PW-3) conducted medical examination of Km. Meenakshi at Govt. Women Hospital, Rishikesh. In the medical examination report (Ext. A-3), Dr. Neelam Kandari found that there is reddish brown contuded abrasion present on back. 20 cm. from cervical spine. Besides it, one abraded contusion in midline 2 x 2 cm. in size and second 3 x 2 cm. in size on left side, and third 1 x 1cm. on left side of midline. Hymen and vulva found intact. Smear was taken from the discharge and sent to pathology examination. The doctor reported that no definite opinion could be given. There was only one positive medical sign regarding rape. For determination of age, the victim was referred to radiologist for confirmation of age. In the supplementary report (Ext. A-4) the doctor opined that the girl was aged about ten years old. No spermatozoa found on vaginal smear. No definite opinion can be given. Only one positive medical sign (injury) was present regarding rape. Completion of investigation culminated into filing of charge sheet (Ext. A-10) against the accused/appellant under Section 323/506/376 and 511 I.P.C. 4. Statements of the Km. Meenakshi-the victim, under Section 164 Cr.P.C. were recorded by Judicial Magistrate, Dehradun on 16.07.1998. In her statement, she stated that she was studying in Class VI in Govt. Inter College. On being asked, she stated that she is tendering statement on her own volition, without any fear or pressure. She stated that on 10.07.1998 at 4:30 p.m. she had gone at Bhairo Temple in order to bring maize. Maize seller was not there. She had money with her, given by her father, as her mother had gone to purchase vegetables. On being asked, she stated that she is tendering statement on her own volition, without any fear or pressure. She stated that on 10.07.1998 at 4:30 p.m. she had gone at Bhairo Temple in order to bring maize. Maize seller was not there. She had money with her, given by her father, as her mother had gone to purchase vegetables. The accused Rakesh met her at temple, who told her that maize seller is standing near Dhanwantari temple and he is known to the accused. But she flatly denied. Then the accused, by pressing and catching hold of her hand, took her to Dhanwantary temple/premises but looking the temple at isolated, she flatly denied and told that she was proceeding towards reverse side. Then the accused threatened her that if she intends to return home, he will strangulate her. Then the accused, dragging her, took at the staircase of the rickety house and started strangulating her. Due to fear, she proceeded with the accused, who took her at the dilapidated house where the accused directed her to put off her frock and when she refused to remove her frock, the accused Rakesh by strangulating her throat, removed her frock and then her panty. Then the accused also removed her other clothes and laid over her. The accused crammed cotton into her mouth and tried to commit rape. She stated that Rakesh used to smoke and consume alcohol and when he stood for smoking, at the very moment, she fled with her panty and frock. Sign of dragging on staircase were present in her back portion. (The Magistrate while recording her statement under Section 164 Cr.P.C., in order to ascertain the injuries, checked back portion of the victim, where 6-7 sign of abrasions were found which were healed). The victim has further stated that there was a room in Dhanwantari building. The accused Rakesh forcefully took her inside the said room and tried to commit rape. When in running state she reached upto Bhairav temple, her brother Vishal met her. She told him if he does not take her home hurriedly, the accused would also kill him. Her uncle-Kishan met her at Bhairav temple, who took her to her house. Thereafter, her parents took her hospital, where she was medically examined. Even after arrival of police, Rakesh threatened her that if he is acquitted, he would kill her. 5. She told him if he does not take her home hurriedly, the accused would also kill him. Her uncle-Kishan met her at Bhairav temple, who took her to her house. Thereafter, her parents took her hospital, where she was medically examined. Even after arrival of police, Rakesh threatened her that if he is acquitted, he would kill her. 5. Learned Civil Judge (Jr. Div.)/ Judicial Magistrate, Rishikaeh on receipt of the charge sheet, after giving necessary copies to the accused, as required u/s 207 Cr.P.C., committed the case to the Court of Sessions for trial on 04.05.2000 under Section 209 Cr.P.C. 6. Learned 2nd Addl. Sessions Judge, Dehradun after hearing the parties on 17.03.2001 framed the charge of offence punishable under Section 323, 506 (1) and 376 (2) read with Section 511 I.P.C. against the appellant/accused Rakesh Chopra. The charge was read over and explained to the accused, who pleaded not guilty and claimed to be tried. 7. The prosecution, in order to prove its case, got examined PW-1 Meenakshi-the victim, PW-2 Smt. Santosh-mother of the victim, PW-3 Dr. Neelam Kandari-Medical Officer, PW-4 Constable-140 Vishal Mani-who prepared Chik F.I.R. and made entry in G.D. and PW-5 Sub Inspector M.L. Sant-Investigating Officer. 8. PW-1 is Km. Meenakshi-the victim. At the time of tendering evidence she was 13 years of age. In order to know her acumen, the learned Addl. Sessions Judge put her questions, to which she answered correctly and the trial Court satisfied that she is able to speak truth and her statements were recorded in camera. This witness has stated on oath that the incident happened on 10th July, 1988. Her father was present at home. On that day at 7:00 p.m. she went to Bhairav Temple in order to bring maize. In the way, Rakesh-the accused met her, who is her brother in her relations. She identified the accused in the Court below (while identifying the accused, the witness broke down). Accused told her that he would bring her back fetching maize, but while saying this, Rakesh took her in Dhanwantary building. When she candidly declined to enter into the building just reaching at the staircase, Rakesh strangulated her and took her inside a room. The accused removed her frock and panty and laid her upon a cot. Accused told her that he would bring her back fetching maize, but while saying this, Rakesh took her in Dhanwantary building. When she candidly declined to enter into the building just reaching at the staircase, Rakesh strangulated her and took her inside a room. The accused removed her frock and panty and laid her upon a cot. (While speaking in Court the Presiding Officer observed that “witness is feeling quite shy and feeling herself unable to tell the whole facts”). The Presiding Officer herself repeatedly inquired the victim on which the victim narrated that molestation means-cohabitation in between husband and wife after marriage. The victim stated that she tried to defend herself and succeeded herself from the clutches of the accused. Thereafter, the victim narrated the entire incident to her uncle-Kishan. Her uncle-Kishan has a shop of automobile besides Bhairav temple. She stated that Rakesh threatened her not to disclose the incident otherwise she will be killed. Her medical was conducted at Govt. Hospital, Rishikesh. She also narrated the incident to her mother. She was about 11 years of age, at the time of incident. When accused was trying to commit rape, she got injuries on her back. This witness proved her statement recorded under Section 164 Cr.P.C. This witness has been cross-examined by the defence counsel at length; but nothing has come out in her cross-examination, which may create doubt in her statements. The evidence of this witness on each and every aspect is natural, reliable and trustworthy. 9. PW-2 is Smt. Santosh- mother of the victim, who lodged the First Information Report (Ext.A-2). In her statement this witness has stated that Meenakshi is her daughter, who at the time of incident was aged 10 years and was studying in Class V. This witness has stated that she is acquainted with the accused, who was residing in her neighbouring. On 10th July, 1998 at about 6:45 p.m., she, after returning from her duty, had gone for fetching vegetables and when she returned, her daughter Meenakshi told her that she had gone to bring maize but she did not succeed and when she was returning, the accused Rakesh Chopra met her, who pretending her to have maize, ahe enticing her forcefully took her in a dilapidated house i.e. Dhanwantry building, situated in front of the road, where by holding her with her neck, the accused laid her in a cot. Thereafter, the accused removed her clothes and attempted to commit rape. There were signs of abrasions on the neck of her daughter. Anyhow, getting rid of the accused, her daughter fled from there and in the way, she found her younger brother, who was on her search. Her daughter hugged her brother saying him to save her life. Kishan’s shop was at some distance, who was standing outside. Her daughter also narrated him the entire incident. Lot of people gathered in their house. This witness proved the written report (Ext. A-2). 10. PW-3 is Dr. Neelam Kandari, Medical Officer, who conducted medical examination on the person of the victim on 10.07.1998 at Female Hospital, Rishikesh. Description of the medical report, submitted by the doctor, has been mentioned in the preceding paragraph. This witness proved medical report Ext. A-3. This witness opined that the girl was aged about ten years old. No spermatozoa found in vaginal smear. No definite opinion can be given. Only one medical sign (injury) present regarding rape. This witness proved supplementary medical report (Ext.A-4). PW-4 is Constable Vishal Mani, who, on receiving first information report, prepared Chik Report Ext.-5 and made an entry in the G.D. (Ext. A-6). PW-6 is Sub-Inspector M. L. Sant, Investigation Officer, who during investigation, recorded statement of witnesses, prepared cite plan, arrested accused, took the prosecutrix for medical examination and also for recording her statement under Section 164 Cr.P.C. and after completion of investigation, submitted charge-sheet against the accused, which is Ext. A-10 on record. 11. Oral and documentary evidence was put to the accused in the form of questions u/s 313 Cr.P.C. who, in reply, denied the allegations made against him and stated that he has falsely been implicated in the case. He stated that due to illicit relation in between Santosh and Kishan as he saw them in amiss condition, therefore he may not disclose it to anyone, he has been falsely implicated. He plies Vikram. On the day of incident i.e. on 10.07.1998, Santosh called her, and when he reached her house he found that Kishan, son of Santosh and one barber were present there and he was beaten up by them. Shakuntala saw the incident of beating. A report was lodged by his Bhabhi in this regard. His medical was not conducted by police concerned. Shakuntala saw the incident of beating. A report was lodged by his Bhabhi in this regard. His medical was not conducted by police concerned. In support of his version, he examined DW-1 Head Constable Jagdish in his defence, who proved the lodging of F.I.R. (Ext. Kha-1). 12. Learned Addl. Sessions Judge/Special Judge, CBI (Anti corruption), Uttarakhand, Dehradun, after considering the statement recorded under Section 164 Cr.P.C., statement of prosecution witnesses, the statements of the accused/ appellant under Section 313 Cr.P.C., the medical report of the victim as well as the statement of the doctor, convicted the accused/appellant and awarded punishment as mentioned above. 13. Now this Court has to examine as to whether on the date, time and place the accused voluntarily caused hurt to Meenakshi, whether the accused tried to strangulate Meenakshi with criminal intimidation and whether the accused committed offence under Section 376 (2) (f) read with Section 511 IPC. 14. Learned counsel as well as the Amicus-curiae for the accused/appellant argued that the guilt of the accused is not proved and the trial Court has wrongly convicted the accused/appellant. It is submitted that there are major contradiction in the averments made in F.I.R. and that of the statement recorded under Section 164 Cr.P.C. They contended that at different stages, different statements have been given by the prosecutrix, which is apparent from the assertions made in the F.I.R., in the statement of the victim recorded under Section 164 Cr.P.C. that of recorded before the trial Court. Contention of the learned counsel for the appellant is that in order to prove the guilt of the accused, the prosecution has to produce its best and just evidence, which was not produced by the prosecution in this case in hand. He submitted that Kishan i.e. uncle of the victim, whose name is shown as one of witness in the charge sheet and was the own witness of the prosecution, but the best evidence has been held up by the prosecution. Similarly, Vishal i.e. brother of the victim, would have been the best witness for the prosecution, but he was also not examined by the prosecution. Similarly, Vishal i.e. brother of the victim, would have been the best witness for the prosecution, but he was also not examined by the prosecution. Taking recourse the failure, on the part of prosecution, counsel for the appellant submitted that inference under Section 114 of Evidence Act would be drawn against the prosecution that the prosecution has concealed its own, best and just evidence, which utterly shakes and falsifies the entire prosecution story. Learned counsel for the appellant then contended that in the medical examination report (Ext. A-3), Dr. Neelam Kandari found that hymen and vulva were intact and the doctor reported that no definite opinion could be given. Besides it one reddish brown contuded abrasion found present on back. 20 cm. from cervical spine, one abraded contusion in midline 2 x 2 cm. in size, second 3 x 2 cm. in size on left side and third on 1 x 1cm. on left side of midline. In the background of the medical report, it is submitted that signs of strangulation on the neck or signs of dragging on back portion as well as dashing victim’s head on staircase, as alleged by the prosecution, were not found in medical examination. It is submitted that in case of rape, medical examination report plays vital role, but the medical examination report of the victim does not support the prosecution version and the statement of the doctor does not corroborate the prosecution story. 15. Learned counsel for the appellant further contended that place of occurrence, as narrated by the prosecution witnesses, belies the cite plan (Ext. A-8) prepared by the I.O. because, as per the version of the prosecutrix, incident of rape was occurred at Dhanwantary complex, while the accused was caught by the people at the resident of the victim, where the accused was beaten up, and thereafter, was confined in a room. He further submitted that it is the admitted case of the prosecution that the appellant was beaten up by the people after he was apprehended at the house of the victim, but the police did not conduct any medical examination of the appellant. Further in the statement recorded under Section 313 Cr.P.C., the accused has specifically stated that there was illicit relation in between Santosh and Kishan, as he saw them in amiss condition, therefore, he has been falsely implicated so that he may not disclose it to anyone. Further in the statement recorded under Section 313 Cr.P.C., the accused has specifically stated that there was illicit relation in between Santosh and Kishan, as he saw them in amiss condition, therefore, he has been falsely implicated so that he may not disclose it to anyone. On the day of incident i.e. on 10.07.1998, Santosh called her, and when he reached her house he found that Kishan, son of Santosh and one barber were present there and he was beaten up by them. Shakuntala saw the incident of beating. A report was lodged by his Bhabhi in this regard. It is then submitted that in defence, DW-1 Head Constable Jagdish has been examined, who has proved lodging of F.I.R., which is Ext. Kha-1 on the record. He submitted that the accused has been implicated in this case, in order to conceal the illicit relation in between Santosh and Kishan. Reliance was placed in the case law cited in 2012 (8) SCC 73 ‘K. Venkatdshwarlu vs. State of A.P.’, A 2012 SC 2298 ‘Narendra Kumar v. State of Delhi’, 2013 (4) SCC 206 ‘State of Rajasthan vs. Babu Meena’ and 2008 (2) SCC (crl.) 207 ‘Radhu vs. State of Madhya Pradesh’ and on the point of quantum of sentence, he relied on the case law cited in ACC 2008 Supreme Court 878 ‘Parasram vs. State of Himachal Pradesh’. 16. On the other hand, Mr. K.S. Rangarh, learned Brief Holder for the State rescinded the submission advanced by learned counsel for the accused and submitted that testimony of the victim and other witnesses is sufficient to prove the case of the prosecution. He submitted that statement given by the victim under Section 164 Cr.P.C. fully corroborates the prosecution story. He further submitted that the accused was arrested on the spot. He submits that solitary and unshaken evidence of the victim is sufficient to prove the guilt beyond reasonable doubt. Relying upon the judgment of Hon’ble Apex Court in the case of Mahendra Singh v. State of M.P. reported in (2007) 3 Supreme Court Cases (Cri.) 583, learned Addl. Govt. Advocate for the State submitted that it is now a well-settled principle of law that in the case of rape conviction can be based on solitary evidence of the victim. Relying upon the judgment of Hon’ble Apex Court in the case of Mahendra Singh v. State of M.P. reported in (2007) 3 Supreme Court Cases (Cri.) 583, learned Addl. Govt. Advocate for the State submitted that it is now a well-settled principle of law that in the case of rape conviction can be based on solitary evidence of the victim. Further the medical evidence corroborates the version of prosecutrix and while conducting medical examination, the doctor found abrasions on the back portion of the victim and it is also mentioned in the medical report prepared by the doctor. He contended that the oral testimony of the victim couldn’t be disbelieved. According to learned Brief Holder there are minor contradiction in the statement of the victim therefore the entire prosecution story couldn’t be disbelieved. 17. Considered the submission of learned counsel for the parties and perused the Lower Court’s Record. The victim, at the time of tendering statement, was about 13 years old. She categorically stated that on 10.07.1998 at about 4:30 p.m., when she was going towards Guru Nanak Inter College, Khurbura Mohalla to bring maize, the accused met her and told her that he will get maize for her, asked her to accompany him. Instead he took her Dhanwantry Building. On her refusal to enter into the building, he pressed her throat and forcefully took her inside the building, undressed her and laid her down on a cot. She hesitatingly told that the accused did bad thing with her, which husband and wife do after marriage. Thereafter, anyhow, he freed herself from the clutches of the accused/appellant. In the case of rape, the onus lies on the accused to prove himself innocent. From the statement of the victim, it is clear that on the date of incident, the accused made the victim helpless in order to commit rape upon her in isolation. In her statement recorded before the Court below, the victim has categorically stated that the accused, by pressing and catching hold of her hand, took her to Dhanwantry temple/premises but looking the temple in isolation, she flatly denied and told that she was proceeding towards reverse side. Then the accused threatened her that if she intends to return home, he will strangulate her. Then the accused, dragging her, took at the staircase of the rickety house and started pressing her throat. Then the accused threatened her that if she intends to return home, he will strangulate her. Then the accused, dragging her, took at the staircase of the rickety house and started pressing her throat. Due to fear, she proceeded with the accused, who took her at the dilapidated house where the accused directed her to put off her frock and when she refused to remove her frock, the accused Rakesh by strangulating, removed her frock and then her panty. Then the accused also removed her other clothes and laid over her. The accused crammed cotton into her mouth and tried to commit rape. There is no contradiction in the statement of the girl given under Section 164 Cr.P.C., and that, given before the trial Court. This is a settled principle of law that the conviction can be made on the basis of solitary evidence if the evidence tendered by such witness is cogent, reliable and in tune with probabilities and inspires implicit confidence. In the present case in hand, the evidence of prosecutrix PW-1 Km. Meenakshi, as discussed above is fully reliable, trustworthy and inspires confidence with the corresponding evidence tendered by the Medical Officer and other prosecution witnesses. The accused could not show as to what was the reason to implicate him falsely, leaving the real culprit. Medical report, as well as, statement of the doctor suggests the commission of offence alleged against the accused/appellant. There is no sufficient evidence on record on which basis inference can be drawn that the appellant was implicated falsely due to enmity. 18. For the preceding reasons, I am of the view that the judgment and order dated 24.10.2001 passed by Addl. Sessions Judge/Special Judge, CBI (Anti corruption), Uttarakhand, Dehradun in Sessions Trial No. 81 of 2000 ‘State vs. Rakesh Chopra’, under Section 323, 506, 376 (2) (f) read with Section 511 of the I.P.C. does not warrant interference. The appeal preferred by the appellant is liable to be dismissed. 19. Accordingly, the appeal preferred by the accused/appellant Rakesh Chopra is hereby dismissed. The conviction and sentence awarded by the learned Addl. Sessions Judge/Special Judge, CBI (anti-corruption), Uttarakhand vide judgment and order dated 24.10.2001 passed in Sessions Trial No. 81 of 2000 ‘State vs. Rakesh Chopra’, under Section 323, 506, 376 (2) (f) read with Section 511 of the I.P.C. is affirmed. The accused is in jail. The conviction and sentence awarded by the learned Addl. Sessions Judge/Special Judge, CBI (anti-corruption), Uttarakhand vide judgment and order dated 24.10.2001 passed in Sessions Trial No. 81 of 2000 ‘State vs. Rakesh Chopra’, under Section 323, 506, 376 (2) (f) read with Section 511 of the I.P.C. is affirmed. The accused is in jail. Let a copy of this judgment be sent to the concerned Superintendent of Jail in order to make the accused to serve out the sentence awarded to him and a copy, alongwith the record of the Court below, be sent to the Trial Court.