JUDGMENT 1. Heard. 2. The appellant is convicted for the offences punishable under Sections 363, 366 and 376 of the Indian Penal Code by learned Adhoc Additional Sessions Judge, Buldana by his judgment dated 23rd February, 2012 in Sessions Case No. 106 of 2009. 3. Complainant Ganesh Bhangale's wife Mrs. Versha had been admitted in Ward No.9 of Government Hospital, Buldana for delivery. The complainant was staying with his wife in the hospital ward itself. The incident in question had occurred on 17th May, 2009. Shraddha the daughter of the complainant had come to stay with the complainant at hospital two days prior to the date of incident. She had come along with her uncle Ramdas. Ramdas returned to his village and Shraddha had stayed back with her father. 4. On 17th May, 2009 at about 9.00 a.m. when the complainant, his wife and his daughter were taking meals below a tree outside the Government Hospital the appellant had approached the complainant and had demanded a bidi. The complainant gave him one bidi. On the same day at about 11.30 a.m. the complainant was going to market along with his daughter Shraddha. The appellant also wanted to accompany them to the market. It appears that somebody from the family of the appellant was also admitted in the hospital. As such the appellant, complainant and daughter of the complainant went to market. Shraddha went to the ward and the complainant was sitting in the courtyard of the hospital after returning from market. Shraddha came down in the courtyard at about 4.30 p.m. The complainant, however, asked her to go back to her mother. The complainant himself visited the ward at about 5.00 p.m. His daughter Shraddha was not seen in the ward. The complainant inquired from his wife. She told the complainant that Shraddha had gone downstairs. The complainant, therefore, went down and was searching his daughter. Since his daughter could not be traced for a long time, the complainant, went to Police Station and lodged a missing report. He, however, suspected that his daughter might have been kidnapped by the appellant, because the appellant was also missing from the premises. In the report lodged at Police Station the complainant has given description of his daughter and the appellant. His oral report was recorded which is at Exh.27. He, however, suspected that his daughter might have been kidnapped by the appellant, because the appellant was also missing from the premises. In the report lodged at Police Station the complainant has given description of his daughter and the appellant. His oral report was recorded which is at Exh.27. It is the case of prosecution that the appellant had taken the daughter of the complainant to his sister's house on the pretext that he would perform marriage with her. The daughter of the complainant viz. Ms Shraddha accompanied him to the village of sister of the appellant which was near village Dhad. The victim girl Shraddha was detained overnight in the said house and the appellant had sexual intercourse with her without her consent. After that she was let off and allowed to go to village Dhad. Ms Shraddha came to Buldana by a public taxi. She inquired about the address of Civil Hospital, Buldana where her mother was admitted. However, the person to whom she was inquiring brought her to Police Station. The police made further inquiries from Shraddha and she had disclosed everything to the police. She was sent for medical examination by the police. Her clothes were also seized by the police. 5. During the course of investigation, the appellant was arrested. Panchnama of the spot was drawn. The appellant was also sent for medical examination and for collecting semen and pubic hair. After completion of investigation charge-sheet was filed by the police. 6. The learned trial Court framed charge for the offences punishable under Sections 363, 366 and 376 of the Indian Penal Code against the appellant. The appellant pleaded not guilty and claimed to be tried. The prosecution had examined in all eight witnesses. P.W. 1 is panch witness who was present when the spot panchnama was drawn at Civil Hospital. P.W. 2 is complainant, P.W. 3 is the victim of the offence Ms Shraddha, P.W.4 is mother of the victim Mrs. Versha, P.W. 5 is Dr. Bramhanand who had examined the victim to determine whether she was subjected to sexual intercourse, P.W. 6 is Executive Magistrate who held identification parade. P.W. 7 was Headmaster of Zilla Parishad, Marathi School who produced School Leaving Certificate of the victim girl and P.W. 8 is Investigating Officer. 7. P.W. 8, in his evidence, has stated that he was attached to Police Station, Buldana City. P.W. 7 was Headmaster of Zilla Parishad, Marathi School who produced School Leaving Certificate of the victim girl and P.W. 8 is Investigating Officer. 7. P.W. 8, in his evidence, has stated that he was attached to Police Station, Buldana City. On 18th November, 2009 one person Ganesh (complainant) had visited Police Station and lodged report Exh.26. An offence punishable under Section 363 of the Indian Penal Code was registered on the basis of the said report. It is further stated by this witness that next day the victim girl by name Shraddha was found at State Transport Bus Stop at Buldana and she was brought to Police Station. She was sent for medical examination. The spot panchnama was drawn by this witness, which is at Exh.50. He had sized clothes of the victim girl. Seizure panchnama was produced before the trial Court at Exh.51. He had recorded statements of the witnesses and had also arranged identification parade to get the appellant identified by the victim girl. The seized clothes were sent to Forensic Science Laboratory, Aurangabad. After completion of investigation, chargeshseet was filed in the Court. 8. P.W. 1 has more or less repeated what he had stated in the first information report. I do not think that his evidence is necessary to be reproduced in the present judgment. The evidence of P.W. 3 is determining factor in the present case. P.W. 3, in her evidence, has stated that her mother was admitted at Buldana Government Hospital for delivery. She had also been to Buldana Hospital. Her father was also there. It is stated by her that the appellant had accompanied her and her father to the market. Thereafter in the evening he had asked her to accompany her to the house of his sister on the pretext that he would perform marriage with her. Accordingly, the victim went with the appellant towards village Dhad. The house of the sister of the appellant was situated at a garden land. It is stated by this witness that the appellant removed her clothes during night hours. He outraged her modesty and also committed rape on her. She was left in village Dhad on next day. She had come back to Buldana by a public taxi. It is stated by this witness that she was taken to Police Station and was referred to Hospital for medical examination. He outraged her modesty and also committed rape on her. She was left in village Dhad on next day. She had come back to Buldana by a public taxi. It is stated by this witness that she was taken to Police Station and was referred to Hospital for medical examination. She has stated her age as 14 years on the date of recording of her evidence. She has also stated that she had identified the appellant in the identification parade. Evidence of P.W. 4 Versha, mother of the victim, is also not necessary to be reproduced as it does not throw any light on the facts of the case. 9. P.W. 5 is Medical Officer who had examined the victim girl. After examination of P.W. 3 he had given his opinion, which is part of his evidence. The same is reproduced as under : “(i) Her breasts were well developed. There were no external injury marks on both the breasts. (ii) Libia majora and libia minora they are not well developed. (iii) Her pubic hair were scanty. (iv) Pubic hair were present on the pubic. They are not present on libia majora and libia minora. (v) Blood stains were present on left thigh inner aspect near the left libia majora. There are no external injury marks on libia majora and libia minora. (vi) The lacerations are present on the inner wall of vagina on both sides. (vii) Hymen was in torn condition. The hymen is torn at 3 O'clock position. The age of injury is within 24 hours. The hymen and the injuries site bleeds on touch. There is no white discharge. The vagina admits one little finger. Swelling is present on both walls of vagina.” He had opined that the victim was capable of sexual intercourse and she was subjected to sexual intercourse forcibly. Though there were no injury marks on her body, vaginal walls were having swelling and the hymen was found torn. It is also stated by this witness that the age of the injury (tear) was 24 hours. Hymen and injury sites bleeded on touch. The vagina admitted only one little finger. Swelling was present on both the vaginal walls. Medical Certificate was issued at Exh.39. 10. P.W. 6 Chandrashekhar Mankar who was working as Naib Tahsildar has stated that he had conducted identification parade on 26th May, 2009 at District Prison, Buldana. Hymen and injury sites bleeded on touch. The vagina admitted only one little finger. Swelling was present on both the vaginal walls. Medical Certificate was issued at Exh.39. 10. P.W. 6 Chandrashekhar Mankar who was working as Naib Tahsildar has stated that he had conducted identification parade on 26th May, 2009 at District Prison, Buldana. Two panchas were present at the time of identification parade. The identifying witness Shraddha was kept away from the parade room. Six dummies and the appellant were subjected to identification parade. It is stated by this witness that the appellant was given opportunity to stand at the place of his own choice. He was also given opportunity of changing his clothes. But he denied either to change his clothes or to change the place. The appellant was standing in between dummy Nos. 2 and 3. The identifying witness Shraddha was called in the parade room. She had identified the appellant who was standing in between dummy Nos. 2 and 3. Accordingly, panchnama was drawn at Exh.42. 11. P.W. 7 has stated in his evidence that victim Shraddha was student of Zilla Parishad Higher Primary School, Malegaon. As per admission register of the school her date of birth was 27th February, 1995. The attested copy of the school leaving certificate was shown to the witness and exhibited as Exh.48. 12. As such, from the evidence of witnesses discussed herein above it is abundantly clear that Shraddha was less than 14 years old at the time of the incident. She was about 13 years 3 months at the time of incident. 13. Learned Advocate Dr. Kalsi is heard on behalf of the appellant and learned Additional Public Prosecutor Ms Deshpande is heard on behalf of the respondent/ State. 14. As far as reports of Chemical Analyzer are concerned, they do not assist in any manner to determine whether the sexual intercourse has taken place or not. Most of the reports are inconclusive. The whole case, as already stated, is based on the evidence of P.W. 3. The prime question before the trial Court was, as to whether the evidence of P.W.3 should be believed or not. The trial Court has believed the evidence of P.W.3. Learned counsel Dr. Kalsi, during the course of arguments, has brought to my notice that there are glaring omissions in the earlier statement of P.W.3. The prime question before the trial Court was, as to whether the evidence of P.W.3 should be believed or not. The trial Court has believed the evidence of P.W.3. Learned counsel Dr. Kalsi, during the course of arguments, has brought to my notice that there are glaring omissions in the earlier statement of P.W.3. She has invited my attention to the cross-examination of P.W. 3 Shraddha. The said witness in her cross-examination has stated that she had stated before the police that the appellant had outraged her modesty and had committed rape on her. She was, however, unable to give any explanation as to why these facts are not recorded in her police statement. Few more similar omissions are taken on record for which P.W. 3 was unable to give any explanation. 15. The Investigating Officer has also stated in his evidence that the above stated facts were not mentioned by P.W. 3 in her police statement. It is seen from the Record and Proceedings that the omissions were recorded and proved without referring the police statement of P.W. 3. Had the police statement of P.W. 3 been seen by the Judge himself or had it been brought to the notice of P.W. 3 herself the omissions would not have come on record. In fact, it was mandatory on the part of the crossexaminer to call attention of P.W. 3 to her previous statement before any contradiction (omissions) was intended to be brought on record. It is noted by me that Section 145 of the Evidence Act was not followed while recording omissions in the earlier statement of P.W. 3. Section 145 of the Evidence Act runs as under : “145. It is noted by me that Section 145 of the Evidence Act was not followed while recording omissions in the earlier statement of P.W. 3. Section 145 of the Evidence Act runs as under : “145. Cross-examination as to previous statements in writing – A witness may be cross-examined as to previous statements made by him in writing or reduced into writing, and relevant to matters in question, without such writing being shown to him, or being proved; but, if it is intended to contradict him by the writing, his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him.” It is thus, clear from reading of Section 145 of the Evidence Act that if P.W. 3 was intended to be contradicted with her previous statement, it was necessary for the learned counsel for the appellant to call her attention to the previous writing and put relevant questions to bring the contradictions (omissions) on record. The omissions have been casually recorded without reference to the previous statement of P.W. 3. I have gone through her cross-examination. I have come to the conclusion that had the proper procedure been followed for recording omissions, the omissions would not have come on record. As already stated, a very casual approach was adopted by the prosecutor, defence lawyer and the Judge while recoding the cross-examination of P.W. 3. In fact, it was the duty of the Judge to regulate the cross-examination. He was under obligation to see the writing himself to ascertain whether the question was properly framed and he was further under obligation to see that earlier statement was brought to the notice of the witness before she was contradicted. As such, the omissions which have been brought on record could not be treated as omissions and evidence of P.W. 3 has to be read without omissions which are stated to be proved omissions. 16. As such, the evidence of P.W. 3, who was aged about only 13 years 3 months at the time of the incident, appears to be trustworthy and there is nothing in her cross-examination which may create doubt about the correctness of her evidence. She was a child witness. The learned trial Court has ascertained whether she understood meaning of oath. As such, the evidence of P.W. 3, who was aged about only 13 years 3 months at the time of the incident, appears to be trustworthy and there is nothing in her cross-examination which may create doubt about the correctness of her evidence. She was a child witness. The learned trial Court has ascertained whether she understood meaning of oath. After ascertaining that she understood meaning of oath, oath was administered to her. What is pertinent to note here is that the appellant was neither known to the complainant/ P.W. 1 nor he was known to victim girl P.W. 3. Since the appellant was neither known to father nor was he known to the victim girl there was no reason for these two witnesses to give any false statement. As already stated by me, there is nothing in the cross-examination of either of the witnesses to doubt the prosecution case. 17. It is noted by the Court that P.W. 3 has not narrated the incident in detail. She has only stated that the appellant had committed rape on her. Though she has not narrated the incident in detail, it does not in any manner create a doubt about the correctness of the prosecution case. The Medical Officer's evidence establishes that P.W. 3 was subjected to forcible sexual intercourse. Hymen was found torn and injury was only 24 hours old. Blood stains were present on left thigh and inner aspect near left libia majora. Evidence of P.W. 3, read with evidence of P.W. 5, clearly establishes that P.W. 3 was subjected to forcible sexual intercourse. 18. P.W. No.3 was in custody of her father P.W.1. She was enticed away by the appellant. P.W. 3 was less than 14 years old at the time of the incident. Therefore, apparently the appellant has committed offence punishable under Section 363 of the Indian Penal Code. As far as offence punishable under Section 366 of the Indian Penal Code is concerned, part of the ingredients of the said offence have been proved by proof of the offence punishable under Section 363 of the Indian Penal Code. It is very apparent from the evidence of P.W. 3 that she was taken by the appellant to his sister's house with intend that she might be forced to illicit intercourse. It is very apparent from the evidence of P.W. 3 that she was taken by the appellant to his sister's house with intend that she might be forced to illicit intercourse. As such, second part of the offence punishable under Section 366 of the Indian Penal Code is also proved. The evidence of P.W.Nos. 3 and 5 established beyond all reasonable doubts that the victim was subjected to sexual intercourse without her consent by force. It may be mentioned here that even if it is assumed, for the sake of arguments, that the consent was given by P.W. 3, the appellant would be guilty of the offence punishable under Section 376 of the Indian Penal Code inasmuch as P.W. 3 was not of consenting age. Clause 'Sixthly' of Section 375 of the Indian Penal Code (before amendment) states that sexual intercourse with a woman with or without her consent when she is under sixteen years of age amounts to rape. 19. As such, the learned trial Court has rightly convicted the appellant for the offences punishable under Sections 363, 366 and 376 of the Indian Penal Code. The learned trial Court has not imposed any separate sentence for the offence punishable under Section 363 of the Indian Penal Code. As far as offence punishable under Section 366 of the Indian Penal Code is concerned, the appellant has been ordered to undergo rigorous imprisonment for a period of five years. The appellant has been ordered to undergo rigorous imprisonment for a period of seven years for the offence punishable under Section 376 of the Indian Penal Code. 20. Learned counsel Dr. Kalsi has submitted that this Court may take into consideration the circumstances in which the appellant at present is placed and may impose lesser punishment under proviso to Section 376(1) of the Indian Penal Code. She has submitted that the appellant is HIV positive and he has got two children to be looked after by him. One of the children is a girl aged about 13 years. I have anxiously considered the submissions made on behalf of the appellant and I find it impossible to accept the contention of the learned counsel Dr. Kalsi that the leniency can be shown. 21. In my view, the illness of the appellant and two growing children cannot be a special and adequate reason for imposing lesser sentence. I have anxiously considered the submissions made on behalf of the appellant and I find it impossible to accept the contention of the learned counsel Dr. Kalsi that the leniency can be shown. 21. In my view, the illness of the appellant and two growing children cannot be a special and adequate reason for imposing lesser sentence. In the present case the children are already being looked after by some other family members as the appellant is in custody from the date of arrest. Therefore, there is no occasion for the children to suffer. As far as the disease of the appellant is concerned, it is most probably invited by himself for which no leniency can be shown. Moreover, HIV can be treated by regular visits to the hospital or consultation with the Medical Officer of the prison. Such facilities are provided in the prison and prison authorities are always mindful of the problems of the prisoners particularly those who are suffering from severe diseases. As such, I am not inclined to exercise discretion under proviso to Section 376(1) of the Indian Penal Code. The appeal deserves to be dismissed and is accordingly dismissed.