JUDGMENT : SADHANA S. JADHAV, J. 1. The appellant herein is convicted under Section 376(2)(f) and 506 of the Indian Penal Code and sentenced to suffer R.I. for 5 years and to pay fine of Rs. 1000/- i.d. to suffer S.I. for 3 months for offence punishable under Section 376(2)(f) of the Indian Penal Code. The appellant is also sentenced to suffer R.I. for 6 months and to pay fine of Rs. 500/ - I.d. to suffer S.I. for one month for offence punishable under Section 506 of the Indian Penal Code, by Adhoc District Judge-2 and Additional Sessions Judge, Kalyan, in Sessions Case No. 37 of 2011 vide Judgment and Order dated 5th April, 2014. Hence, this Appeal. 2. The appeal was listed for admission before this Court (Coram : Smt. Sadhana S. Jadhav, J) on 10.6.2014. This Court had noticed that although the appellant was convicted under Section 376(2)(f) of the Indian Penal Code, he was awarded a sentence less than the minimum prescribed by law. Hence, this Court had issued notice of enhancement on 10.6.2014. The learned Counsel for the appellant had waived service for notice of enhancement. The learned Counsel for the appellant had sought liberty to file private paper book. The prayer was granted. The matter was adjourned from time to time. 3. By an order dated 12.10.2015 this Court (Coram : A.M. Thipsay, J) had adjourned the matter to 23.11.2015. On 23.11.2015 the matter was listed before this Court (Coram : Smt. Sadhana S. Jadhav, J). It was submitted on behalf of the appellant that the appellant had undergone 5 years of substantive sentence. However, on 23.11.2015 this Court had directed the appellant to remain present before this court at the time of final hearing. Today the appellant is present before the Court as he was set at large in July 2015. 4. Even though the operative orders are passed separately, both Criminal Appeal and Criminal Suo Moto Application No. 1 of 2015 are decided by this common Judgment as the facts of the case and observations will be the same in the both the matters. 5. 4. Even though the operative orders are passed separately, both Criminal Appeal and Criminal Suo Moto Application No. 1 of 2015 are decided by this common Judgment as the facts of the case and observations will be the same in the both the matters. 5. Such of the facts necessary for decision of the Criminal Appeal and Criminal Suo Moto Application No. 1 of 2015 are as follows:- (i) On 15.11.2010 one Meena Raju Pawar approached Kalyan Police Station at about 8.30 p.m. and informed the police that her granddaughter namely Pragati Nilesh Sawant resides with her. On 15.11.2010 the accused had abused and threatened her without any reason. That he had abused her and her granddaughter on the basis of caste. The police had registered a non-cognisable Case No. 3317 against the appellant for offence punishable under Section 504, 506 of the Indian Penal Code. She had prayed to the police to take stringent action against the accused. The said N.C. is marked at Exh.13. (ii) It is also a case of the prosecution that pursuant to the report lodged by the complainant, the appellant was taken into custody on 15.11.2010. He was being prosecuted under Section 107 of the Code of Criminal Procedure, 1973. Notice was issued to him under Section 111 of the Code of Criminal Procedure, 1973. In the said non-cognisable proceedings he was released on 18.11.2010. (iii) The granddaughter of the complainant was suffering from pain and therefore, she was taken to Rukminibai hospital after 3 to 4 days. The doctor had scolded her and asked the complainant as to why the victim was not brought earlier. The doctor had informed police station that the granddaughter of the complainant had been raped. The police came to the hospital. The granddaughter of the complainant was subjected to clinical examination. (iv) The medical report was received from the doctor. The statement of complainant was once again recorded. On the basis of the said statement, Crime No. 604 of 2010 was registered against the accused for offence punishable under Section 376, 506 of the Indian Penal Code and under Section 3(1)(xi) of the Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act, 1989. The appellant was taken into custody on 22.11.2010. On the basis of the said statement, Crime No. 604 of 2010 was registered against the accused for offence punishable under Section 376, 506 of the Indian Penal Code and under Section 3(1)(xi) of the Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act, 1989. The appellant was taken into custody on 22.11.2010. (v) After completion of investigation, charge-sheet was filed against the accused for offence punishable under Section 376, 506 of the Indian Penal Code and under Section 3(1)(xi) of the Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act, 1989. The case was committed to the Court of Sessions and registered as Sessions Case No. 37 of 2011. (vi) On 6.7.2012 the learned Adhoc District Judge2 and Additional Sessions Judge, Kalyan had framed charge against the accused for offence punishable under Section 376(2)(f) and 506 of the Indian Penal Code and under Section 3(1)(xi) of the Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act, 1989. The accused pleaded not guilty. The prosecution examined 14 witnesses to bring home the guilt of the accused. 6. PW-1 Meena Raju Pawar happens to be an unfortunate grandmother of the victim. PW-1 has deposed before the court that the victim happens to be her granddaughter. Her daughter Manju and son-in-law have expired. She looks after the victim girl being her custodian. She has deposed before the Court that on 15.11.2012 she had returned home from work at about 4.30 p.m. When she reached home, she saw her granddaughter crying. Upon enquiry she informed that Shahanawaj i.e. the present appellant who was residing in the opposite chawl had committed sexual intercourse with her. He had threatened her of dire consequences and had informed her that in the eventuality she would disclose the same to anybody, she would have to face dire consequences. 7. PW-1 has further deposed that on 15.11.2010 she had seen that undergarment worn by her granddaughter was stained with blood and therefore, she had carried her granddaughter to Mahatma Phule Chowk Police Station. She does not know to read and write. She has only learnt to put her signature. She is working in the class IV cadre in convent school. Her granddaughter was studying in 4th standard in the said convent school. She narrated the incident to the police. She was informed that they would do the needful and that she should go home. 8. She has only learnt to put her signature. She is working in the class IV cadre in convent school. Her granddaughter was studying in 4th standard in the said convent school. She narrated the incident to the police. She was informed that they would do the needful and that she should go home. 8. Her granddaughter was complaining of severe pain in her private parts and therefore, she was taken to the hospital. The doctor informed PW 1 that in all probabilities her granddaughter was a victim of rape. The doctor had informed the police that the granddaughter of PW-1 had been a victim of rape. The police came to the hospital. At the request of the police, the victim was clinically examined. The police had then recorded the statement of PW-1. She had proved the contents of the statement, which was treated as FIR. The statement is at Exh.11. 9. In the cross-examination, PW-1 has admitted before the court that she can identify the accused. She knew his full name. That she was serving in Holy Cross School. She does not know to read and write Marathi and can only put her signature. It is further elicited in the cross-examination that on 15.11.2010 after she returned from the school, she had learnt about the incident. She had inspected the undergarment of her granddaughter. She had applied soframycin and then asked her about the incident. She had then been to Mahatma Phule Police Station. She handed over undergarment to the police on the same day. Subsequently, bleeding had stopped but the victim had complained of bleeding whenever she attended the nature's call. The victim was not attending school. 10. It is further elicited that on 15.11.2010 she went to the police station at about 4 p.m. and was in the police station till 11.00 or 12.00 at night. She had informed the police the name of the accused as Shahanawaj Bhadgaonkar. She did not know the name of his father. She had accompanied the police to the house of the accused. The accused was not found at home and therefore, the police had brought his brother to the police station and subsequently on the same day the accused was arrested. When the accused was brought in the police station, PW-1 was present in the police station. The police had recorded her complaint on 15.11.2010. The accused was not found at home and therefore, the police had brought his brother to the police station and subsequently on the same day the accused was arrested. When the accused was brought in the police station, PW-1 was present in the police station. The police had recorded her complaint on 15.11.2010. The police had registered a non-cognisable case. PW-1 identified her signature on the non-cognisable report and the same was marked at Exh.13. On the next day, the police had recorded statement of the victim. PW-1 had no knowledge as to what was the case registered against the accused. 11. PW-1 has admitted in the cross that her daughter and son-in-law had died due to illness. That her granddaughter is also taking treatment in Sion Hospital as she was suffering from AIDs. That the accused was residing in chawl No. 8 room No. 2, whereas she was residing in chawl No. 7. She has admitted that since 15.11.2010 she had not disclosed about the incident to any of the resident in the chawl. She had disclosed the incident only to the police. 12. It was suggested to PW-1 that the accused was arrested on 15.11.2010 and released on 20.11.2010. She has specifically stated that during the period 15.11.2010 to 22.11.2010 the victim was complaining that she was having burning pain in her vagina. PW-1 used to apply oil as ointment. On 21.11.2010 she has taken her to the hospital. Doctor had called the police after examining the victim. Her statement was recorded on 21.11.2010 in the police station. 13. PW-1 was confronted with her statement, which was recorded by police and marked as Exh.11. She has deposed that she cannot assign any reason as to why it is not mentioned in her statement that when she went home on 15.11.2010 she saw that her granddaughter was crying. She has admitted that she has not stated before the police that accused Shahanawaj had come to her house, but she had informed that accused Shahanawaj had dragged her granddaughter in his house. It is not stated in the FIR that when she came home she saw that undergarment of her granddaughter was stained with blood. She had stated before the police that the doctor had scolded her as to why the victim was not brought to the hospital immediately when the incident took place and therefore, had called police. It is not stated in the FIR that when she came home she saw that undergarment of her granddaughter was stained with blood. She had stated before the police that the doctor had scolded her as to why the victim was not brought to the hospital immediately when the incident took place and therefore, had called police. It is not mentioned in her statement. According to her, she had also disclosed to the police that the doctor had informed her that the victim had been raped. However, the said contention does not find place in her statement. 14. She has admitted that the police had taken the victim before a woman namely, Rekha Sonawane and her statement was recorded by Rekha Sonawane in the office of Assistant Commissioner of Police and thereafter, the police had not recorded her statement. She has also admitted that upon enquiry made by her about the identity of the accused, the victim had showed her room No. 2 of chawl No. 8. The same finds place in her statement and she has admitted it to be correct. 15. She has further admitted that on 15.11.2010 she had complained to the police about the incident and the police had taken the accused in custody on 15.11.2010 and he was released subsequently. 16. It was suggested to PW-1 in the cross-examination that she intended to purchase the room which was occupied by the accused and therefore, she was annoyed and hence, she has falsely implicated him. The witness has refuted the said suggestion. It was also suggested that she was annoyed with the accused as he was released within 2 days after he was arrested by the police on 15.11.2010 and hence, she concocted a false case. Upon the court question, which is as follows:- When you were having knowledge about accused has committed rape upon your granddaughter, why you have not disclosed the said fact to police immediately on that day? PW-1 has answered as follows:- “I have informed to police and narrated all the incident but I do not know why police has not recorded the same on that day.” 17. She has further deposed before the court that on 15.11.2010 the police had read some lines to her and had obtained her signature, but had not provided her a copy of the said report. She has further deposed before the court that on 15.11.2010 the police had read some lines to her and had obtained her signature, but had not provided her a copy of the said report. The police had not even read over the contents of her statement dated 21.11.2010 which is marked at Exh.11. She had not complained against the police to anybody that they have not read contents of the complaint. 18. At this stage PW-1 has categorically stated that she does not know to read and write. She had narrated the incident to the police but was not aware of what was reduced into writing in Exh.19 which is the non-cognisable report. In fact, it is the case of the accused that he was arrested on 15.11.2010 and was released on 18.11.2010. It cannot be believed that the accused had been arrested in a non-cognisable case. The accused has also not brought on record the reason for his arrest and release. 19. PW-2 is the victim. She has deposed before the Court that she resides in room No. 7 Chawl No. 7 alongwith her grandmother. The accused was living in Chawl No. 8 room No. 2. That at the time of incident, she was studying in Holly Cross Convent School in 4th standard. At the time of recording of evidence, she was studying in 6th standard. Her date of birth is 12.7.2001. She has deposed before the court that in Diwali holidays in the year 2010 the incident had occurred at about 9 a.m. Her grandfather was in the house. Her grandfather is a paralytic patient. Her grandmother had gone for her job. She was playing in the chawl. The accused had called her to his house. He made her sit on the bed and shown her obscene images on his cell phone. Thereafter, he had pressed her mouth. Then he removed her undergarment and then ravished her. As a result, she had started bleeding. He had wiped the blood with cotton swab. He had threatened her not to tell the fact to anybody or else he would assault her with his belt. He made her to wear her undergarment and asked her to go. She has candidly admitted that she had not disclosed the incident to her grandfather because he is unable to talk and has lost his memory. He had threatened her not to tell the fact to anybody or else he would assault her with his belt. He made her to wear her undergarment and asked her to go. She has candidly admitted that she had not disclosed the incident to her grandfather because he is unable to talk and has lost his memory. At about 2.45 p.m. one of her maternal aunt had come. She had narrated the incident to her. After sometime, her grandmother had returned home from work. She narrated the incident to her. Her grandmother had narrated the incident to the police and then police had taken her and her grandmother to show the house of the accused. Her grandmother had shown the house of the accused. The accused was not at home and therefore his brother was taken to police station. After some time, the police had brought the accused in the police station. The police had enquired with PW-2 as to whether he is the person who had committed rape upon her. She narrated in the affirmative and then they went home. 20. According to PW-2, on the next date she was suffering from burning pain and her grandmother had taken her to Dr. Rammurty. The doctor had advised that she be taken to gynecologist. At that time, her grandfather was seriously ill and therefore, her grand-mother had not taken her to other doctor for about 3 days. Her grandmother was applying soframycin on her vagina, but the pain had continued and therefore, she was taken to Rukminibai Hospital. The doctor had asked her grandmother to go to the police station after she was examined. They went to the police station and the police had again brought them to the hospital. She was treated in the hospital. On next day one lady had recorded her statement in the police station. 21. In the cross-examination, she has denied suggestion that she had started attending school on the very next day of the alleged incident. She has asserted that she had not gone to school for 3 days, that she was taking treatment at Sion Hospital. Dr. Rammurty was family doctor. 22. It is pertinent to note that it is elicited in the cross-examination that on the day of the incident, she had been to the police station alongwith her grandmother and narrated the incident to the police. Dr. Rammurty was family doctor. 22. It is pertinent to note that it is elicited in the cross-examination that on the day of the incident, she had been to the police station alongwith her grandmother and narrated the incident to the police. The police had not recorded the statement of the grandmother at the relevant time. She had not carried her undergarment with her to the police station on 15.11.2010 but the same was seized after 3 days. All that she could remember was that in the police station she was sitting in a corner and her grandmother was talking to the police. She has also admitted that they had not immediately gone to any lady doctor. At the time of admission in Rukminibai Hospital, her statement was not recorded. The victim was subjected to lengthy cross-examination and she was asked about particular dates and time. She candidly admitted that at the time of recording her statement, she was not knowing the name of the person who had committed rape upon her. A suggestion was given that the accused was shown to her in the police station alongwith some persons and she has denied the said suggestion. She has also admitted that she has not discussed the incident with any other person in the chawl. She was confronted with certain paras in her examination-in-chief and omissions are recorded. 23. The deposition of the PW-2 is candid and does not suffer from any inherent inconsistency. The learned Counsel for the appellant has submitted that there are inherent inconsistencies in her statement, as far as the date of reporting is concerned and as well as the sequence of events that have occurred on 15.11.2010 and 18.11.2010. Much stress is being placed upon inconsistencies. As far as seizure of her undergarment is concerned, learned Counsel submits that according to PW-1, undergarment was taken to the police station. However, according to PW-2 undergarment was seized by the police after 3 days of recording statement. These are superficial inconsistencies with no significance. 24. As far as the actual incident is concerned, her testimony has not been shattered in the cross-examination. A stray admission has been elicited that she was directed to identify the bed-sheet and her undergarment. This has no relevancy in view of the fact that the victim was of a tender age. These are superficial inconsistencies with no significance. 24. As far as the actual incident is concerned, her testimony has not been shattered in the cross-examination. A stray admission has been elicited that she was directed to identify the bed-sheet and her undergarment. This has no relevancy in view of the fact that the victim was of a tender age. Her testimony was being recorded after two years of the alleged incident. She had gone through the trauma of rape. She was hardly 9 years old at the time of the incident. She could not have taken lengthy and stressful cross-examination. The record shows that at one point of time, she was frightened and could not express and therefore, recording of her evidence had to be stopped for while. 25. The learned Counsel for the appellant submits that it is for the first time before the court, she has disclosed that she had narrated the incident to her maternal aunt which does not find place in the FIR. In her statement recorded on 22.11.2010 in answer to question No. 9 she has specifically stated that she had narrated the incident to the wife of her maternal uncle and her grandmother and therefore, it cannot be said that there is an omission. 26. PW-3 Deepak Ramdas Jadhav is the panch for spot panchanama. He was declared hostile by the prosecution. 27. PW-4 Nilesh Chima Durge is another panch for spot panchanama. In the examination-in-chief itself, he has stated that he does not know the purpose for which the panchanama was recorded. He has been declared hostile by the prosecution. 28. PW-5 Pradeep Aanaji Sangale is the photographer who had taken photos of the scene of offence. He has deposed before the court that he had taken photographs on the digital camera. However, the photograph did not bear date and time when they were taken. According to him, on 21.11.2010 police had called him for taking photographs at Pragati Nagar in the chawl. The room was locked. The police had opened the room and then they went inside and photographs were taken. He has admitted that if the photographs are taken on digital camera, date, number and time would be reflected on image itself. 29. PW-6 Dr. Smt. Punam Amarsingh Walwi had examined the victim as she was attached to Rukminibai Hospital, Kalyan. The room was locked. The police had opened the room and then they went inside and photographs were taken. He has admitted that if the photographs are taken on digital camera, date, number and time would be reflected on image itself. 29. PW-6 Dr. Smt. Punam Amarsingh Walwi had examined the victim as she was attached to Rukminibai Hospital, Kalyan. On 21.11.2010 she has examined the victim who had come to hospital alongwith grandmother at about 1.30 p.m. She had complaint about burning sensation in the vagina. That she had examined the victim and found that hymen is torn. That there was an infection. Upon enquiry by PW-6 the victim had disclosed that one boy always used to take her in his room while she was going to school and showing her videography and abusing her sexually. PW-6 had given treatment to her and informed the police that it was a medico legal case. The copy of MLC register is at Exh.31. On the same day i.e. on 21.11.2010 at about 8 p.m. police had brought the victim once again. She was reexamined as offence was registered at the police station. PW-6 had taken samples of her blood grouping, cross-matching, finger nails and vaginal swab. On local examination she has found that her hymen was ruptured. It is easily admitting one index finger. No external injury on other parts of the body. She had produced MLC notes which is at Exh.32. On 24.12.2010 she had informed the police that the victim is minor. She has been raped and had suffered sexual intercourse. 30. It is elicited in the cross-examination that the admission papers do not reveal that history of rape was given by patient. It was a simple case of pain in vaginal region. At the time of examination, the patient had given the history of meeting one boy daily who had exploited her sexually. The doctor had not stated this part in the MLC case papers. At the time of examination of the patient at about 1.30 p.m. her grandmother had shown non-cognisable case recorded in the police station bearing No. 3317. She had noted down the number. There was no reference to any sexual assault in the said complaint. No complaint of rape was filed till 1.30 p.m. 31. At the time of examination of the patient at about 1.30 p.m. her grandmother had shown non-cognisable case recorded in the police station bearing No. 3317. She had noted down the number. There was no reference to any sexual assault in the said complaint. No complaint of rape was filed till 1.30 p.m. 31. The defence has elicited in the cross-examination that the patient was HIV positive and was taking treatment at J.J. Hospital. Her parents had also contracted HIV and had died. PW-6 has admitted the suggestion that if there is contact with HIV patient by non-HIV person, then the person who is not suffering from HIV would also contract HIV. This suggestion is given with the sole purpose that it was a case of the prosecution that the victim was HIV positive. According to the learned counsel for the appellant, the accused-appellant would have also contracted HIV and therefore, according to him, the whole story of rape is falsified. The learned APP in reply submits that it was known in the chawl that the victim is also suffering from HIV. The appellant was grown up boy and in all probabilities he must have taken abundant precaution without the knowledge of the victim and therefore, she could not have narrated the same. In any case, only because the accused had not contracted HIV, it cannot be said that he had not committed an act as alleged by PW-2. 32. Learned Counsel for the appellant has vehemently argued that PW-6 has specifically stated that except rupture of hymen and admission of one finger, there was no signs of sexual intercourse. That rupture of hymen may be due to cycling, heavy exercise etc. PW-6 has also further stated that it cannot be judged whether the hymen was recently ruptured or it was an old tear. 33. PW-6 has deposed before the court that as per the symptoms mentioned in the case papers, it appears that the victim was being sexually abused atleast for a period of one or two months and it further indicates that it was not first sexual intercourse. PW-6 has further submitted that she would not be able to tell the name of the doctor who had recorded entry in the MLC register. She had examined the patient at about 1.30 p.m. of 21.11.2010, but the entries are not in her hand writing. PW-6 has further submitted that she would not be able to tell the name of the doctor who had recorded entry in the MLC register. She had examined the patient at about 1.30 p.m. of 21.11.2010, but the entries are not in her hand writing. That the entries in the black ink are in her hand writing. She has also admitted that she has not signed below the entry or anywhere else on the page of the concern entry. She had not personally sent the blood samples to C.A. 34. The MLC papers are at Exh.30, which shows that the victim was examined at 1.30 p.m. The victim had given the history of physical assault and rape. The MLC register shows that the police complaint was done on 15.11.2010 and the police had registered N.C. case. The case paper further shows that there was a history of injury of Iron khamba on left side occipital region, CLWleft side of occipital region, referred to gynaecologist for management, menarche not attended, FIR registered on Tuesday 15.11.2010. As per grandmother of patient, the accused was released 2 days before only. The case of pain during mensuration, no external fresh injury on body. The case papers further shows that the police had come at night for collection of sample. As per relatives FIR was done on Tuesday 15.11.2010. History given by patient herself and grandmother. As per grandmother of the patient the accused was released within 2 days. 35. The learned Counsel for the appellant vehemently submits that the history narrated before PW-6 does not find place either in the first information report or in the statement of the victim, which was recorded on 21.11.2010. That the story has improved from time to time and therefore, no implicit reliance can be placed. 36. PW-7 Dr. Mrs. Rekha Vijay Saraswat was also working as medical officer at Rukminibai Hospital. She had examined the accused on 22.11.2010 with alleged history of rape on victim, the resident of Pragati Nagar, at 9 a.m. The accused was capable of sexual intercourse. His date of birth was 17.9.1984. She has admitted in the cross-examination that the history recorded in MLC register is based upon the information given by the police. That she had not signed on the MLC register. 37. PW-8 Gajanan Krushna Patil is the panch for seizure of the undergarment. His date of birth was 17.9.1984. She has admitted in the cross-examination that the history recorded in MLC register is based upon the information given by the police. That she had not signed on the MLC register. 37. PW-8 Gajanan Krushna Patil is the panch for seizure of the undergarment. He has been declared hostile by the prosecution. 38. PW-9 is Smt. Rekha Bansilal Sonawane who was officiating as Special Executive Officer for the period 20082013. She has deposed before the court that on 22.11.2010 she was summoned by Mahatma Phule Chowk Police Station. The police had informed her about the incident and she was to record a statement of the victim. The statement of the victim was recorded in her presence. It was written by the police in the ACP office. She has signed the same and it is at Exh.15. In the cross-examination, she has admitted that the police officer Tambe had contacted her on cell phone and called her to the police station. Mr. Tambe was present in the police station. He had given the narration of the incident to her. She reached ACP office at about 4 p.m. The police had not prepared any questionnaire. She had asked questions to the victim and the victim had replied the same. The grandmother of the victim was also present with the victim at the time of recording of the statement. No other police officer was present. When PW-9 went to the police station, the victim and her grandmother were not present in the police station, but they were in ACP office. That while recording her statement, the prosecutrix had not stated the name of the person or his description. The victim had disclosed that her grandmother had taken her to the police station after she narrated the incident to her. The police had taken her and her grandmother for showing the house of the person. The house was shown by PW-1. The accused was not at home. So his brother was taken in the police station. Thereafter, the police has brought the accused in the police station. 39. PW-10 Ganpat Khandu Khanddagale had acted as panch for seizure panchanama. He has been declared hostile by the prosecution. 40. PW-11 Gokul Ganpat Pardeshi was officiating as PSI at Mahatma Phule Chowk Police Station. So his brother was taken in the police station. Thereafter, the police has brought the accused in the police station. 39. PW-10 Ganpat Khandu Khanddagale had acted as panch for seizure panchanama. He has been declared hostile by the prosecution. 40. PW-11 Gokul Ganpat Pardeshi was officiating as PSI at Mahatma Phule Chowk Police Station. He had recorded the complaint of PW-1 on 21.11.2010 and thereafter, he had registered Crime No. 604 of 2010 against the accused for offence punishable under Section 376, 506 of the Indian Penal Code. He has admitted in the cross-examination that the statement dated 21.11.2010 is the first in point of time as far as the incident is concerned. Nobody had given the information of incident before offence was registered. He had referred the victim for medical examination and had deputed one lady constable alongwith victim. On that day, the victim and her grandmother had not returned to the police station with the medical certificate. That he had not seized anything on that day. It is admitted by him that on 21.11.2010 the victim girl had accompanied her grandmother. The statement was not recorded. He had specifically stated that on that day, the victim had not stated anything indicating that the accused had uttered any humiliating words means related to her caste. He has also deposed before the court about certain omissions in the evidence of PW-1. 41. PW-12 Laxman Tambe was attached to Mahatma Phule Chowk Police Station. He has deposed in the examination-in-chief that on 21.11.2010 the investigation of the present case was handed over to him. He had visited the spot i.e. Pragati Chawl Room No. 7 which was shown by the grandmother of the victim. The room was closed. He had called upon the brother of the accused and asked him to open room. He had noticed the bed sheet having blood stains on it. He had seized the incriminating articles. On the next date i.e. on 22.11.2010, the grandmother of the victim had informed the police that the victim belongs to Baudha community. Therefore, her supplementary statement was recorded by P.I. Bankar and the accused was being prosecuted under the provisions of the Prevention of Atrocities Act. 42. He had seized the incriminating articles. On the next date i.e. on 22.11.2010, the grandmother of the victim had informed the police that the victim belongs to Baudha community. Therefore, her supplementary statement was recorded by P.I. Bankar and the accused was being prosecuted under the provisions of the Prevention of Atrocities Act. 42. In the cross-examination PW-12 has categorically admitted that on 15.11.2010 the complainant had been to the police station at about 6 p.m. She had filed complaint against the accused on 15.11.2010, on the basis of which he had registered N.C. No. 3317. The date and time of incident is narrated by her was 15.11.2010 at about 4.30 p.m. According to him, at the time of reporting the incident on 15.11.2010 the complainant had not disclosed the fact of commission of rape by the accused on her granddaughter. The witness has admitted that the N.C. report at Exh.13 bears his signature. He had directed the P.C. Tawade to file chapter case against the accused. Accordingly, on 18.11.2010 the chapter case was sent to ACP. PW-12 had not verified as to whose statements were recorded during the enquiry of chapter case. He had no knowledge as to whether the accused was sent alongwith report of chapter case to ACP. PW-12 has further submitted that he has recorded the first information report in this case. He has admitted before the Court that there is no label of the panchas, countersigned by him on the muddemal property produced before the court. He has feigned ignorance as far as the presence of the brother of the accused at the time of recording scene of offence panchanama. The investigation was with PW-12 only upto 21.11.2010. 43. Upon perusal of Exh.51 it is clear that the brother of the appellant was called to the room at the time of recording scene of offence panchanama and he had opened door of the said house. 44. PW-13 Dinkar Shrikrisanrao Thakur was working as ACP at the relevant time. According to him, the investigation was handed over to him on 22.11.2010. He had asked the complainant to get caste certificate. The complainant had not produced the same. In the cross-examination the witness has admitted that the documents which he had received at the initial stage do not form part of the charge-sheet. According to him, the investigation was handed over to him on 22.11.2010. He had asked the complainant to get caste certificate. The complainant had not produced the same. In the cross-examination the witness has admitted that the documents which he had received at the initial stage do not form part of the charge-sheet. As far as the scene of offence panchanama is concerned, the witness has specifically stated that he has not enquired as to how the key of the room was acquired and from whom. This Court has observed that on the day when the scene of offence panchanama was conducted, brother of the appellant was present in the room. He had opened the room and cooperated with the police. The witness has also admitted that he has not received any caste certificate of the victim from the competent authority in order to show that she belongs to the scheduled caste. The witness has also admitted that in the course of entire investigation, he had not recorded statement of Investigating Officer Laxman Tambe. 45. In the present case, this Court cannot be oblivious of the fact that the complainant has candidly stated before the court that she is not literate. She can only put her own signature. It is the case of the prosecution that some report was filed on 15.11.2010 and that the accused was arrested on 15.11.2010. At the same time, the prosecution has failed to establish the nature of complaint dated 15.11.2010. In this circumstance, it would be incumbent upon the prosecution to prove the reasons for illegal arrest of the accused on 15.11.2010. This aspect would go to the root of the matter as the accused was taken in custody of 15.11.2010 and was released on 18.11.2010. This aspect has to be read in consonance with the fact that the complainant has specifically stated that she does not know to read and write. PW-12 Laxman Tambe has in the examination-in-chief maintained silence about the report, which was lodged on 15.11.2010. There is no evidence that he was produced before the Special Executive Magistrate. Notice was issued to him on the next day under Section 111 of the Code of Criminal Procedure, 1973. In fact, the notice has to precede the order under Section 107, 108 and 109 of the Code of Criminal Procedure, 1973. There is no evidence that he was produced before the Special Executive Magistrate. Notice was issued to him on the next day under Section 111 of the Code of Criminal Procedure, 1973. In fact, the notice has to precede the order under Section 107, 108 and 109 of the Code of Criminal Procedure, 1973. There was no reason for PW-12 to maintain silence about the said arrest on 15.11.2010. The suggestion by the accused has been admitted by PW-12 in the cross-examination. At this stage, the evidence of PW-1 will have to be accepted that she had rather narrated the incident on 15.11.2010 itself. 46. An inference can be drawn that in fact, cognisable offence was made out. The brother of the accused was called to the police station on 15.11.2010. The said contention of PW-1 has not been denied. In fact, it is the case of the defence that the accused was taken into custody on 15.11.2010. The police authorities have not taken cognizance of a cognisable offence, that too, a serious allegation of commission of rape on a minor. The accused had also not challenged the action of the police of taking him into custody on 15.11.2010 and this would go to the root of the matter. 47. The evidence of PW-1 appears to be genuine. The background of the victim and the witness has to be taken into consideration also. It is specifically contended by PW-1 as well as the victim herself that her grandfather was suffering from paralysis. He was serious and therefore, the victim could not be taken to the hospital. The doctor had informed the police that the granddaughter of PW-1 has been ravished. PW-1 has specifically deposed before the court that on 15.11.2010 the police had informed her that they have reduced her statement into writing and that she should go home. In the course of recording her evidence, copy of the N.C. was read over to her. She has admitted her signature on the N.C. report. The learned Counsel for the appellant submits that it has to be necessarily presumed that she has read the contents of the report and has understood the said contents and thereafter signed the report. At the threshold, PW-1 has candidly stated that she does not know to read and write. She has admitted her signature on the N.C. report. The learned Counsel for the appellant submits that it has to be necessarily presumed that she has read the contents of the report and has understood the said contents and thereafter signed the report. At the threshold, PW-1 has candidly stated that she does not know to read and write. Therefore, all that can be said is that she has proved her signature on the N.C. report and not its contents. 48. The learned Counsel submits that PW-1 has not disclosed the incident to anybody till the date of recording her evidence. According to the learned Counsel for the appellant, the incident is dated 15.11.2010. At the time of lodging N.C. report, PW-1 had not disclosed that her granddaughter has been subjected to rape. The report as far as section 376 of the Indian Penal Code is concerned, was lodged on 21.11.2010. That there is no plausible explanation for the inordinate delay in lodging the FIR and therefore, it can be safely inferred that the appellant has been falsely implicated. 49. In the case of State of Himachal Pradesh vs. Gian Chand, (2001) 6 SCC 71 . The Hon'ble Apex Court has held that:- “Delay in lodging the FIR cannot be used as a ritualistic formula for doubting the prosecution case and discarding the same solely on the ground of delay in lodging the first information report. Delay has the effect of putting the Court in its guard to search if any explanation has been offered for the delay, and if offered, whether it is satisfactory or not. If the prosecution fails to satisfactorily explain the delay and there is possibility of embellishment in prosecution version on account of such delay, the delay would be fatal to the prosecution. However, if the delay is explained to the satisfaction of the court, the delay cannot by itself be a ground for disbelieving and discarding the entire prosecution case. It is common knowledge and also judicially noted fact that incidents like rape, more so when the perpetrator of the crime happens to be a member of the family or related therewith, involve the honour of the family and therefore there is a reluctance on the part of the family of the victim to report the matter to the police and carry the same to the court. A cool thought may precede lodging of the FIR.” The delay has been satisfactorily explained in this case and therefore, it does not cause any dent in the prosecution case. In the present case, even assuming for a moment that PW-1 had not disclosed the incident of rape, it cannot be said that the delay is fatal to the prosecution. In fact, the arrest of the accused on 15.11.2010 in a non-cognisable case is shrouded with mystery. In all probabilities, taking into consideration, the sequence of events as put forth by the prosecution, it appears that the police had made efforts to protect the accused or else there was no reason to call upon the brother of the accused to the police station and arrest the appellant in a non-cognisable case. Hence, the submission of the learned Counsel that the non-explanation of delay in lodging the FIR shall be held to be fatal to the prosecution cannot be taken into consideration. 50. Learned Counsel for the appellant submits that it is admitted by PW-1 that the victim PW-2 was being taken to Sion Hospital regularly as she was tested HIV positive. In fact, there is no cogent evidence to this effect, except the admission of PW-2 victim that she was under treatment at Sion hospital and that she was taking treatment even till the date of recording of evidence. 51. The learned Counsel submits that the accused was medically examined. In the eventuality that the appellant had sexual intercourse with the victim, he would have naturally contracted HIV. As observed earlier, this by itself would not be sufficient to arrive at a conclusion that the victim was not subjected to rape. The appellant in all probabilities must have either taken precautionary measures or committed or performed unnatural sex with the victim. There was no such enmity between the complainant and the appellant that PW-1 would falsely implicate the accused by alleging that her minor granddaughter was raped by him. Moreover, the evidence of PW-2 inspires confidence of the court. She has specifically informed her grandmother that the boy residing in room No. 2 in chawl No. 8 has committed rape. He had threatened the victim. 52. The learned Counsel for the appellant submits that the prosecution has not examined the maternal aunt of the victim, to whom, according to the victim, she had disclosed about the incident. She has specifically informed her grandmother that the boy residing in room No. 2 in chawl No. 8 has committed rape. He had threatened the victim. 52. The learned Counsel for the appellant submits that the prosecution has not examined the maternal aunt of the victim, to whom, according to the victim, she had disclosed about the incident. Non-examination of a witness cannot be held fatal to the prosecution case. The facts and circumstances of each case have to be considered independently. The fact that this Court has come to the conclusion that the evidence of PW-2 is trustworthy in nature and the testimony can be accepted and acted upon then non-examination of maternal aunt cannot be held to be fatal to the prosecution. 53. In the case of Ayub Hussain Mandal vs. State of Assam, (2007) 15 SCC 549, the Hon'ble Apex Court has held that non-examination of material witness was not material having regard to the evidence that was brought on record particularly the evidence of victim girl herself. The High Court observed that if a false case was to be foisted against the appellant at the instance of the victim's grandmother, the complaint would have been lodged on the very day of the incident without waiting for the arrival of PW-2. 54. In the present case, one does not know the nature of bonding between the victim and the maternal aunt. All that, this Court can hold is that the victim had made the best of efforts to disclose her trauma to the first nearest person whom she met. The victim has deposed before the court that her grandmother had applied sophramycine to her vaginal track for two to three days. Even when she was suffering from pain and therefore, she was taken to Rukminibai Hospital. The learned Counsel for the appellant has tried to lay emphasis on the admission of the victim as follows - it is true that, after Dr. Rammurty till showing to Rukminibai Hospital, Kalyan, I have not get examine to any other Doctor. The victim has admitted that the police had not come to her house for recording her statement. Her statement was recorded only once. At the time of recording statement she was not knowing the name of person who has committed rape on her. Rammurty till showing to Rukminibai Hospital, Kalyan, I have not get examine to any other Doctor. The victim has admitted that the police had not come to her house for recording her statement. Her statement was recorded only once. At the time of recording statement she was not knowing the name of person who has committed rape on her. It is quite natural that a girl subjected to such a trauma is expected to know the name of the assailant. The victim had shown the room where she was raped. It is not the case of the accused that he was not residing in that room at that relevant time. The victim has identified the accused before the court and the same is substantive evidence. The accused has failed to make a dent in the substantive evidence of the victim as far as the incident of rape is concerned and the identity of the accused is concerned. 55. The learned Counsel for the appellant submits that the medical certificate at Exh.34 would show that the sexual intercourse has occurred on the victim by accused. Hymen was ruptured. Congestion present. There were no fresh injuries anywhere on her body externally. According to the learned Counsel, absence of fresh injuries would falsify that she was raped soon before she was examined. It is pertinent to note that the incident is dated 15.11.2010 and she was examined on 21.11.2010. She had given history of pain in vaginal region. PW-6 has mentioned in MLC as follows:- History of bleeding 10 days back and complaint was registered at Mahatma Phule Chowk Police Station, not examined still, no memo available by police station. This would show that there was negligence on the part of the police in reducing the statement of PW-1 who was misled by the police. The MLC case papers at Exh.30 also show that the police complaint was done on 15.11.2010. N.C. was registered under Section 504, 506 of the Indian Penal Code. MLC case papers at Exh.32 dated 21.11.2010 would also reveal as follow:- “Patient came in the afternoon with history of burning and history given was of rape, physical assault. Hence, police came at night for sample collection. As per relative's FIR was done on Tuesday 15.11.2010. The history given by patient herself and her grandmother. As per grandmother of patient, accused was released within 2 days.” 56. Hence, police came at night for sample collection. As per relative's FIR was done on Tuesday 15.11.2010. The history given by patient herself and her grandmother. As per grandmother of patient, accused was released within 2 days.” 56. The medical case papers are duly proved through PW-6. All this would clearly indicate that the grandmother had complained of rape on 15.11.2010 as the grandmother had disclosed that the accused has been released within 2 days. 57. The learned Counsel for the appellant has also placed implicit reliance on Exh.38 which is a medical case papers issued by the medical officer of Rukminibai Hospital as far as the medical examination of the accused is concerned. The learned Counsel submits that the certificate clearly indicate that he is not habitual to sexual intercourse. He is capable of doing sexual intercourse. There were no injuries anywhere on his body externally. The contents of this certificate would not bring relief to the accused as there is no question of being habituated to sexual intercourse. He was examined after 7 days of the alleged incident. It is not the case of PW-2 that she has caused any injury to him. 58. As far as PW-9 is concerned, she has taken casual approach while recording statement of the victim who is minor and victim of rape. The said evidence and the act of PW-9 is devoid of any sensitivity. Suffice it to say that only because the victim had not given name of the accused, it cannot be said that the accused has been falsely implicated. 59. The prosecution has examined Dr. Smt. Punam Walvi who was attached to Rukminibai Hospital and had examined the victim on 21.11.2010. The history given by the victim at the time of admission needs to be taken into consideration. The history given by the victim was that one boy always used to take her in his room while going to school and showing videography and abusing her sexually. There were no police person along with patient and therefore, the doctor had given treatment and informed to police about the same. This Court would not hesitate to draw an inference that all this was narrated to the police on 15.11.2010 itself. The doctor had been sensitive enough to inform the police about the same. The doctor had informed the police that the victim has been subjected to rape. This Court would not hesitate to draw an inference that all this was narrated to the police on 15.11.2010 itself. The doctor had been sensitive enough to inform the police about the same. The doctor had informed the police that the victim has been subjected to rape. It is admitted even in the cross-examination that the patient had given history of meeting one boy daily and exploited her sexually when the doctor was examining the patient. Sexual abuse may take many forms. The age and the background of the victim has to be taken into consideration. This Court at the time of admission of the appeal was perturbed by the leniency shown by the Court in awarding the lesser sentence and had therefore, issued notice of enhancement. The learned Sessions Judge had not assigned any special reason for showing leniency to the accused. The age of the accused cannot be taken into consideration for showing any leniency, as what has to be considered is also the age of the victim. 60. In the case of State of Uttar Pradesh vs. Chhotey Lal, (2011) 2 SCC 550 , the Hon'ble Court has observed that:- “The important thing that the court has to bear in mind is that what is lost by a rape victim is face. The victim loses value as a person. Ours is a conservative society and, therefore, a woman and more so a young unmarried woman will not put her reputation in peril by alleging falsely about forcible sexual assault. In examining the evidence of the prosecutrix the courts must be alive to the conditions prevalent in the Indian society and must not be swayed by beliefs in other countries. The courts must be sensitive and responsive to the plight of the female victim of sexual assault. Society's belief and value systems need to be kept uppermost in mind as rape is the worst form of woman's oppression. A forcible sexual assault brings in humiliation, feeling of disgust, tremendous embarrassment, sense of shame, trauma and lifelong emotional scar to a victim and it is, therefore, most unlikely of a woman, and more so by a young woman, roping in somebody falsely in the crime of rape.” 61. The minimum sentence prescribed for an offence punishable under Section 376(2)(f) is 10 years. Undue sympathy to the accused is unwarranted. The minimum sentence prescribed for an offence punishable under Section 376(2)(f) is 10 years. Undue sympathy to the accused is unwarranted. In the case of Sumer Singh vs. Surajbhan Singh and Others, (2014) 7 SCC 323 , the Hon'ble Apex Court has held that:- “It is the duty of the court to impose adequate sentence, for one of the purposes of imposition of requisite sentence is protection of the society and a legitimate response to the collective conscience. The paramount principle that should be the guiding laser beam is that the punishment should be proportionate. It is the answer of law to the social conscience. In a way, it is an obligation to the society which has reposed faith in the court of law to curtail the evil. While imposing the sentence it is the Court’s accountability to remind itself about its role and the reverence for rule of law. It must evince the rationalized judicial discretion and not an individual perception or a moral propensity. But, if in the ultimate eventuate the proper sentence is not awarded, the fundamental grammar of sentencing is guillotined. Law cannot tolerate it; society does not withstand it; and sanctity of conscience abhors it. The old saying “the law can hunt one’s past” cannot be allowed to be buried in an indecent manner and the rainbow of mercy, for no fathomable reason, should be allowed to rule. True it is, it has its own room, but, in all circumstances, it cannot be allowed to occupy the whole accommodation.” 62. This Court is conscious of the fact that the loopholes and lacunae in the process of investigation should not in all cases be held against the prosecution in general. The accused cannot take benefit of the lacunaes and the casualties in the investigation. Awarding inadequate sentence, especially in cases of rape would not only shake the conscience of the court, but would shake the conscience of the society at large and punishment would not serve as deterrent factor. No doubt that the cases of rape on minor are on the rise, especially in Maharashtra. The testimony of the prosecutrix would be sufficient to prove the guilt of the accused. No doubt that the cases of rape on minor are on the rise, especially in Maharashtra. The testimony of the prosecutrix would be sufficient to prove the guilt of the accused. In the case of State of Himachal Pradesh vs. Shree Kant Shekari, (2004) 8 SCC 153 , the Hon'ble Apex Court has held that:- “A socially sensitized judge, in our opinion, is a better statutory armour in cases of crime against women than long clauses of penal provisions, containing complex exceptions and provisos.” The Hon'ble Apex Court has further held that:- “There is no rule of law that her testimony cannot be acted without corroboration in material particulars. She stands at a higher pedestal than an injured witness. In the latter case, there is injury on the physical form, while in the former it is physical as well as psychological and emotional. However, if the court on facts finds it difficult to accept the version of the prosecutrix on its face value, it may search for evidence, direct or circumstantial, which would lend assurance to her testimony. Assurance, short of corroboration as understood in the context of an accomplice would suffice. In any event no girl of a tender age and her parents would like to jeopardize her entire future by falsely implicating a person alleging forcible sexual intercourse.” This Court has arrived at a conclusion on the basis of the testimony of PW-1, 2, 6 and 7 that the prosecution has established beyond reasonable doubt that the accused has committed rape upon the victim on 15.11.2010. 63. The learned Counsel for the appellant submits that during the pendency of this appeal, the appellant has undergone 5 years of imprisonment and therefore, he need not be sent to jail for serving the rest of the sentence. The learned Counsel further submits that now the accused has reformed and even if, the guilt of the accused has been proved beyond reasonable doubt, in the present case, it cannot be said that he may repeat the said offence subsequently. That his age and future shall be considered by the Court. 64. The legislature in its wisdom has prescribed a punishment not less than 10 years in case of offence punishable under Section 376(2) (f) of the Indian Penal Code. This Court cannot be oblivious of the fact that a victim of rape suffers an injury which is beyond recovery. That his age and future shall be considered by the Court. 64. The legislature in its wisdom has prescribed a punishment not less than 10 years in case of offence punishable under Section 376(2) (f) of the Indian Penal Code. This Court cannot be oblivious of the fact that a victim of rape suffers an injury which is beyond recovery. It is not a physical injury. It is an injury to the dignity of the woman and her womanhood. The Court would fail in its duty by imposing a sentence less than the minimum prescribed. The accused may suffer incarceration for a limited period. However, the victim suffers the injury till her last breath. 65. Rape is not only an offence against a particular woman, but it shows failure of the society to protect dignity of a woman, especially a girl of tender age. A minor, especially, may wake up to the nightmare everyday. A victim of rape, despite all comforts would never be able to lead a normal life. Article 21 of the Constitution of Indian includes the fundamental right of a female to be treated with decency and proper dignity. Rape is violative of right to life which includes right to live with human dignity. In these circumstances, it becomes incumbent upon the Court of Law to respect and follow the mandate of the legislature. 66. It is well known that in the case of Aruna Shanbaug, the accused who had committed rape upon her was sentenced to 7 years rigorous imprisonment. He had served the sentence and after 7 years was leading a normal life. However, she continued to lead a vegetative life till her last breath. That a stage had come where euthanasia petition was filed before the Hon'ble Apex Court praying for euthanasia for Aruna Shanbaug. In these circumstances, it is necessary to do justice to a victim of rape without showing any leniency for the accused. Hence, the appeal deserves to be dismissed and the Suo Moto application for enhancement of sentence deserves to be allowed. 67. For the reasons stated hereinabove, the appellant is taken into custody forthwith and is being sent to jail for serving rest of the sentence i.e. a sentence of 10 years rigorous imprisonment including 5 years which he has served. Hence, the appeal deserves to be dismissed and the Suo Moto application for enhancement of sentence deserves to be allowed. 67. For the reasons stated hereinabove, the appellant is taken into custody forthwith and is being sent to jail for serving rest of the sentence i.e. a sentence of 10 years rigorous imprisonment including 5 years which he has served. This Court is also of the opinion that the accused.appellant does not deserve any remission taking into consideration the heinous offence committed by the accused. This Court is of the opinion that the appellant shall not be entitled to any remission. The jail authorities shall take note of this order. Copy be sent to the DIG Prisons and the Home Department of the State of Maharashtra. 68. Hence following order is passed:- ORDER (i) Criminal Appeal is dismissed. (ii) Criminal Suo Moto Application is allowed. The substantive sentence imposed by the learned Ad hoc Dist. Judge-2 and Addl. Sessions Judge, Kalyan vide Judgment and Order dated 5.4.2015 is enhanced to 10 years. The sentence of fine is also enhanced to Rs. 25,000/- I.d. to suffer R.I. for one year. (iii) For the reasons mentioned in the Judgment, the appellant shall not be entitled to remission. (iv) The appellant is entitled to set off for the period already undergone under Section 428 of the Code of Criminal Procedure, 1973. (v) The appellant be taken into custody and be produced before the learned Sessions Court, Kalyan. (vi) The learned Sessions Court may direct the accused-appellant to be sent to appropriate jail for serving the enhanced sentence. (vii) The learned Sessions Court shall issue notice to PW-1. Out of the fine amount, Rs. 24,000/- be paid to PW-1. The learned Sessions Court shall take steps in accordance with law. 69. The Criminal Appeal and Criminal Suo Moto Application are disposed of accordingly. 70. In view of dismissal of the appeal, nothing survives in the Criminal Application No. 687 of 2014. The same is disposed of accordingly. 71. Office to issue writ forthwith.