JUDGMENT: 01. The Appellant is convicted by learned Additional Sessions Judge, Wardha, on 10th May, 2013, in Special Case No. 7 of 2012, by which he has convicted him of offence punishable under Section 376 (2) (f) of Indian Penal Code, and is sentenced to suffer Rigorous Imprisonment for ten years and to pay a fine of Rs. 5,000/-, and in default, to undergo Rigorous Imprisonment for three months. He is also convicted of the offence punishable under Section 452, Indian Penal Code, and on that count, he is sentenced to suffer Rigorous Imprisonment for one year and a fine of Rs. 1,000/-, and in lieu thereof, Simple Imprisonment for three months. The learned Judge ordered that the sentences shall run concurrently. The facts, which are necessary for the decision of this appeal, are enumerated herein below:- 02. Sau. Sunanda [PW 4] is the mother of the prosecutrix. On the day of the incident, namely 15th October, 2011, her husband left the house for a labour work of harvesting Soyabean on a thresher. Sunanda was also required to leave her house for a job of plucking cotton in the field of one Narendra Patil. Sunanda is having two daughters, one of which is the prosecutrix. On 15th October, 2011, her age was eleven years. The younger one at that time was nine years’ old. The prosecutrix was taking education in Vth Standard at Yashwant Vidyalaya, Andori. The day of the incident was Saturday and, therefore, after attending the school in the morning, prosecutrix was at her home. 03. On the day of the incident, after finishing her labour work, when Sunanda [PW 4] returned to her house, she noticed the prosecutrix weeping. Naturally, she made an enquiry with the prosecutrix, upon which it was revealed to her by the prosecutrix that prior to half an hour of Sunanda reaching the house, while the prosecutrix was combing her hair, the appellant entered the house. It was disclosed by the prosecutrix that her mouth was gagged by the appellant, he removed his and her clothes and thereafter he inserted his private part in her private part, due to which she suffered pain. On getting this information, Sunanda called her husband and thereafter approached the Police Station. 04. The First Information Report is at Exh.34. It was disclosed by the prosecutrix that her mouth was gagged by the appellant, he removed his and her clothes and thereafter he inserted his private part in her private part, due to which she suffered pain. On getting this information, Sunanda called her husband and thereafter approached the Police Station. 04. The First Information Report is at Exh.34. Since the same was disclosing commission of a cognizable offence, Crime No. 117/11 for offences punishable under Sections 452 and 376 of Indian Penal Code was registered. The printed FIR is at Exh.35. 05. Mr. Purushottam Thakre was the Police Sub-Inspector. On 15th October, 2011, he received the Case Diary of Crime No. 117/11 for investigation purpose. He started investigations. Statement of prosecutrix was recorded by him. Her clothes were seized under a Seizure Panchanama [Exh.36]. He then sent the prosecutrix to Civil Hospital, Wardha, by issuing a Requisition [Exh.23]. The prosecutrix was medically examined. Her Medical Certificate is at Exh.25. The Investigating Officer also visited the spot of occurrence and a Panchanama of the spot was drawn in presence of Panchas. It is at Exh.26. The spot of occurrence is the house of Sunanda. He also seized a plastic gunny bag from the spot, which was spread over on the cot. Its Seizure Panchanama is at Exh.27. He then recorded the statements of the parents of the victim. He sent a letter to the school authorities for issuing a School Leaving Certificate of the prosecutrix [Exh.44]. The School Leaving Certificate was obtained. He also seized a sealed bottle of blood sample of prosecutrix. The appellant was arrested on 16th October, 2011. His clothes were seized under a Seizure Panchanama [Exh.63]. The appellant was referred to the Primary Health Centre, Deoli, for his medical examination and for collection of blood sample under a requisition [Exh.64]. He seized blood sample, pubic hair of the appellant vide Exh.65]. All the Muddemal was sent to Forensic Laboratory, Nagpur, with a forwarding letter [Exh.66]. The Caste Certificate of the prosecutrix was submitted to the police by her father, which showed that the prosecutrix was belonging to “Gond”, while the appellant was a “Kunbi” by caste. Therefore, the Investigating Officer handed over the investigations to the Deputy Superintendent of Police – Vinayak Susatkar [PW 11]. The Deputy Superintendent of Police [PW 11] carried out further investigations. Therefore, the Investigating Officer handed over the investigations to the Deputy Superintendent of Police – Vinayak Susatkar [PW 11]. The Deputy Superintendent of Police [PW 11] carried out further investigations. After registration of the offence under the Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act, he completed the remaining investigation and filed a charge-sheet before the Court of Law. 06. The case was registered as Special Case No. 7 of 2012. Under Exh.6, a Charge was framed against the appellant for the offences punishable under Sections 376 (2) (f) and 452, Indian Penal Code, and Section 3 (1) (xii) and 3 (2) (v) of the Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act. The appellant denied the Charge and claimed for his trial. In order to substantiate the Charge and to bring home the guilt of the appellant, the prosecution examined eleven witnesses and also relied upon various documents, which were duly proved during the course of the trial. After a full dress trial, the learned Judge of the Trial Court acquitted the appellant of the offence punishable under Section 3 (1) (xii) and 3 (2) (v) of the Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act, 1989. However, he was convicted of the offences punishable under Sections 376 (2) (f) and 452, Indian Penal Code, and was sentenced accordingly, as observed in the opening paragraph of this Judgment. 07. I have heard Mr. R.M. Daga, the learned counsel for the appellant and Ms. T.H. Udeshi, the learned Addl. Public Prosecutor for the State. With their able assistance, I have gone through the record and proceedings. Learned Adv. Mr. R.M. Daga raised a serious doubt about the age of the prosecutrix. According to him, the prosecutrix was more than eleven years and, therefore, the appellant could not have been convicted of the offence punishable under Section 376 (2) (f) of Indian Penal Code. This particular submission for and on behalf of the appellant was the only submission that was canvassed before this Court. This Court being a final Court in so far as recording of a finding of fact is concerned, thought it fit that though the submission of the learned counsel was for a limited purpose, being the last court for recording a finding of fact, has re-appreciated the entire evidence. 08. This Court being a final Court in so far as recording of a finding of fact is concerned, thought it fit that though the submission of the learned counsel was for a limited purpose, being the last court for recording a finding of fact, has re-appreciated the entire evidence. 08. Since the age of the prosecutrix was seriously disputed before this Court, first, it would be useful to evaluate the prosecution evidence in that behalf. 09. Sunanda [PW 4], the mother of the prosecutrix, has stated her date of birth to be 26th September, 2000. At the time of her evidence, she brought the Original Birth Certificate of the prosecutrix. It shows 26th September, 2000 as her date of birth. A photo copy of the said original is placed on record and it is at Exh.32. Through cross-examination of Sunanda, it is brought on record that her parents are residents of village Potgavan. A practice followed in her community to which Sunanda belongs is brought on record in her cross-examination, namely that after marriage, the first delivery used to take place in the house of the parents. Exh.32, the Birth Certificate, is issued by the Secretary of Gat Gram Panchayat, Potgavan. Undisputedly, the prosecutrix is the first child of Sunanda. In that view of the matter, her delivery at village Potgavan was according to the tradition of the caste to which she belongs. Since she delivered a female child at Potgavan, issuance of Birth Certificate by the Secretary of Gat Gram Panchayat of village Potgavan is most natural. 10. Another piece of evidence in respect of the date of birth is in the nature of extract of Admission Register of Primary Girls School at village Andori. The said extract showing the name of the prosecutrix against Entry No. 1287 is at Exh. 42. Sudhakar Choudhari [PW 6] was the Headmaster in Zilla Parishad Primary Girls' School, Andori, since 2001. The said school had classes from Ist Standard to IVth Standard only. On the day of the evidence, he brought the original Admission Register of the year 2007. It shows 28th June, 2007 as the date of admission of the prosecutrix in the school for First Standard and her name is entered in the register at Sr. No. 1287 on page no. 115. The name of the mother of the prosecutrix was also written. It shows 28th June, 2007 as the date of admission of the prosecutrix in the school for First Standard and her name is entered in the register at Sr. No. 1287 on page no. 115. The name of the mother of the prosecutrix was also written. The said register depicts 26th September, 2000 as the date of birth of the prosecutrix. As per the evidence of Sudhakar Chaudhari [PW 6], prosecutrix appeared for and passed her Fourth Standard Examination in the year 2011 and she left the school for obtaining admission to Fifth Standard. He, therefore, issued a Transfer Certificate [Exh.45], which also shows 26th September, 2000 as her date of birth. What is important to note here is that at the time of admission of the prosecutrix, it has been stated by Sunanda [PW 4] that the date of birth of the prosecutrix is 26th September, 2000 and the same is reflected in the extract of “Pratidnya Lekh” Register [Exh.43]. Thus, it is crystal clear that at the time of admission of the prosecutrix in the year 2007, Sunanda [PW 4] gave 26th September, 2000 as the date of birth of the prosecutrix. The signature of the said witness is also appearing in Exh.43. In view of this consistent evidence, in my view, the submission of the learned counsel for the appellant based on the suggestion made to the mother of the prosecutrix during her cross-examination that on the basis of Birth Certificate, her husband disclosed the date of birth to the school authorities and since the husband is not examined, the evidence in respect of the date of birth of the prosecutrix is unreliable cannot be accepted. The learned counsel also submitted on the basis of cross-examination of Sunanda that the police did not seize the Birth Certificate of the prosecutrix during the course of investigation. Sunanda, as it appears, is a rustic lady, and it could be seen that she laboured in the agricultural field for plucking cotton. Therefore, any lapse on the part of investigating machinery cannot be used as a disadvantage to the prosecution case. Failure to investigate properly cannot always be fatal to the prosecution case. The court has to take an overall view of the evidence available on record. Such evidence cannot be read in pieces to render the prosecution case untrustworthy. 11. Therefore, any lapse on the part of investigating machinery cannot be used as a disadvantage to the prosecution case. Failure to investigate properly cannot always be fatal to the prosecution case. The court has to take an overall view of the evidence available on record. Such evidence cannot be read in pieces to render the prosecution case untrustworthy. 11. In view of the aforesaid documentary evidence and especially when there is nothing on record to raise even a suspicion in respect of its authenticity, it is crystal clear that the prosecution has proved 26th September, 2000 as the date of birth of the prosecutrix. 12. The date of incident is 15th October, 2011. Thus, on the day of the incident, it is crystal clear that the prosecutrix was of eleven years only. Sub-clause (f) of Sub-section (2) of Section 376 of Indian Penal Code on the day of the incident was as under:- “376. Punishment for rape.- (1) Whoever ….. (2) Whoever,- (a) to (e) ….. (f) commits rape on a woman when she is under twelve years of age; or (g) ….. shall be punished with rigorous imprisonment for a term which shall not be less than ten years but which may be for life and shall also be liable to fine : ….” 13. Thus, it is crystal clear that if an accused commits rape on a girl below the age of twelve years, then the minimum punishment is ten years. 14. Once the date of birth of the prosecutrix is proved and it is proved that on the day of the incident, she was below the age of twelve, the next question, that falls for consideration, is whether the prosecutrix was subjected to the rape? 15. Relevant evidence in that behalf would be of Sunanda [PW 4], prosecutrix herself [PW 5] and Dr. Vandana Pawade [PW 3]. 16. The parents of the prosecutrix, as is seen from the unchallenged evidence of Sunanda [PW 4], are labours. They are required to leave their home right in the morning to come back in the evening only, to meet two ends of their life. Vandana Pawade [PW 3]. 16. The parents of the prosecutrix, as is seen from the unchallenged evidence of Sunanda [PW 4], are labours. They are required to leave their home right in the morning to come back in the evening only, to meet two ends of their life. On the day of the incident, as per the evidence of prosecutrix [PW 5] herself, she went to the school at 7.30 a.m. Usually, the school hours are from 11.00 a.m., to 4.30 p.m. However, according to her evidence, the day of the incident was Saturday and, therefore, there was a morning school. This aspect is not challenged during her cross-examination. Her evidence further discloses that she came back to her house at 9.00 a.m., after finishing her paper. That time, her father had already left the home for a labour work. Her mother was cooking food at that time. Her younger sister returned to house at 10.30 a.m. Both of them were served food by Sunanda. Thereafter, the mother left the house to go to the agricultural field. This version of the younger sister of prosecutrix coming back to house at 10.30 a.m., after attending the school is also corroborated by Sunanda [PW 4]. Evidence of the prosecutrix would further discloses that she and her sister went to play and came back at about 4.00 p.m. Nothing unusual or unnatural was stated about the said part of prosecutrix and her sister looking to their age. At 4.00 O'clock, when the prosecutrix was combing her hair, the accused made his entry in the house of prosecutrix. It is established on record through the cross-examination of the prosecutrix about the location of the house of appellant. The house of the appellant is situated on the Eastern side of the residence of prosecutrix. Thus, he is the neighbour of the prosecutrix. During her evidence, from the witness box, the prosecutrix has identified the appellant as a perpetrator of the physical atrocity committed on her. The prosecutrix has minced no word to state what happened to her at the time of incident. She is very specific in her evidence that the appellant inserted his private part in her private part, due to which she sustained pain in her private part. The prosecutrix has minced no word to state what happened to her at the time of incident. She is very specific in her evidence that the appellant inserted his private part in her private part, due to which she sustained pain in her private part. From the evidence of Sunanda [PW 4], it is clear that she returned to house at 5.00 p.m. The evidence of prosecutrix shows that at 4.00 p.m., she returned to the house after playing. Thus, it is crystal clear that the incident must have occurred between 4.00 p.m., and 5.00 p.m. The said aspect gets corroboration from the contemporaneous document, namely the Oral Report [Exh.13], which shows that the first informant narrated that the incident has occurred about half an hour prior to Sunanda coming back to her house. 17. The testimony of Sunanda shows that when she reached the house, she noticed that prosecutrix was weeping. A ghastly incident to her life had happened just prior to reaching of Sunanda to her house. Prosecutrix must be in pain. At that time, she must not be able to cope up with the physical pain. Therefore, weeping was most natural. The incident was immediately narrated by the prosecutrix to her mother. After getting such narration from the prosecutrix, immediately the matter was reported to the Police by lodging a report [Exh.34]. Lodging of First Information Report immediately rules out the possibility of false implication. After the First Information Report was lodged, the prosecutrix was referred to the Civil Hospital, Wardha, by the Investigating Officer Purushottam Thakre [PW 10] under a requisition [Exh.23]. On 15th October, 2011, Dr. Vandana Pawade [PW 3] received the requisition regarding medical examination of the prosecutrix. She obtained the consent from the mother of the prosecutrix, since the prosecutrix was minor. The consent letter given by Sunanda for the medical examination of her daughter is at Exh.24. Accordingly. Dr. Vandana Pawade examined the prosecutrix. From her external examination, she noticed that secondary sexual character was not developed. Genitals were also not developed. She issued the Medical Certificate which is at Exh.25. It would be useful to refer to the relevant portion of the evidence of Dr. Vandana Pawade and it is reproduced hereunder:- “1. .............................................................................. ............From genital examination labia minora tenderness present and inflammation present. Hymen rupture at 1 O'clock position. Edges inflames. Forchette induration present in posterior forchette. She issued the Medical Certificate which is at Exh.25. It would be useful to refer to the relevant portion of the evidence of Dr. Vandana Pawade and it is reproduced hereunder:- “1. .............................................................................. ............From genital examination labia minora tenderness present and inflammation present. Hymen rupture at 1 O'clock position. Edges inflames. Forchette induration present in posterior forchette. Vaginal – slightly eroded. Scratch mark over middle of chest ½ x ½ cm. In my opinion, as per my examination is indicative of sexual intercourse. …..” There is nothing to disbelieve the aforesaid evidence of the doctor and the contents of Exh.25. The only suggestion that was given to the doctor was that the hymen can be ruptured at 1 O'clock if the victim inserts a finger in her vagina, which was also stoutly denied by Dr. Vandana. 18. If the evidence of the prosecutrix inspires confidence and when the same is corroborated by the medical evidence, there cannot be and there should not be any doubt in the mind of the Court that the prosecutrix was victimized by the person who faced the charge of commission of rape. 19. In the present case, there is also corroborative piece of evidence in the nature of a scientific evidence in view of the Chemical Analyzer's Report [Exh.68]. During the course of the investigation, the clothes of the prosecutrix were seized under a Seizure Memo [Exh.36]. A gunny bag spread on the spot was also seized under a Seizure Panchanama [Exh.27]. The clothes of the appellant were also seized under a Seizure Memo [Exh.63]. Evidence of Purushottam Thakre [PW 10] shows that he sent the Muddemal properties to the Forensic Laboratory, Nagpur, under a requisition [Exh.66]. 20. Clothes of the prosecutrix, which were sent to the Chemical Analyzer, are her [1] frock, [2] slack, and [3] nicker. Chemical Analyzer's report shows that the slack is having blood stains. Her nicker is stained with semen. Also the plastic gunny bag was stained with blood. The full pant of the appellant was also having few blood stains. The panty of the appellant was also having semen stains. The blood and semen stains are of human. Merely because the group thereof is not determined, the Chemical Analyzer's report need not be thrown in the dustbin. Noticing the semen stains on the clothes of the prosecutrix who is aged about eleven years is most unnatural. The panty of the appellant was also having semen stains. The blood and semen stains are of human. Merely because the group thereof is not determined, the Chemical Analyzer's report need not be thrown in the dustbin. Noticing the semen stains on the clothes of the prosecutrix who is aged about eleven years is most unnatural. In my view, presence of semen stains on her clothes fully corroborates the version of the prosecutrix and the medical evidence of Dr. Vandana Pawade. I would like to mention here that in her evidence, the prosecutrix has stated that the appellant had bitten her lips. However, no injury was noticed on her lips. It is quite possible that a little girl might have misunderstood the kiss taken by the appellant to her lips as a bite. Therefore, merely because the bite injury was not noticed, that would not render the evidence of that bold girl as waste one and it would be rather too technical on the part of the Court if on such a feeble ground, the appellant is given any benefit. 21. The aforesaid re-evaluation of the prosecution case while exercising my powers under Section 386, Criminal Procedure Code, leaves no doubt in my mind that the appellant is guilty of committing rape on a girl below the age of twelve years and, therefore, the minimum punishment that is imposed upon the appellant by the court below is just. That leads me to pass the following order:- ORDER Criminal Appeal No. 544 of 2013 is dismissed.