Judgment : Hon'ble Mrs. Ranjana Pandya, J. 1. Challenge in this appeal is to the judgement and order dated 8.1.2015 passed by Special Judge, Protection of Children from Sexual Offences (POCSO), Act / Additional Sessions Judge, Court No. 1 Kannauj in S.T. No. 2/14 (State Vs. Kamlesh) arising out of Crime No. 565 of 2013, under Sections 376, 511 I.P.C. and Section 8 Protection of Children from Sexual Offences, Act, Police Station Tirwa, District-Kannauj, whereby the accused appellant was found guilty under Section 376 and 511 I.P.C. and Section 8 Protection of Children from Sexual Offences Act and was sentenced to 3 years imprisonment with Rs. 1,000/- rupees fine with default stipulation. 2. Filtering out the unnecessary details the prosecution case is that on 24.12.2013, the daughter of the informant Radha Krishna aged about 11 to 12 years was collecting Neem leaves at 3 p.m. from the field of Mohan Lal, suddenly Kamlesh accused aged about 25 to 26 years came there and took the victim in the fields of Ganga Charan on the pretext that he would give her guava to eat, but as soon as the victim and the accused reached the mustered field of Virendra, the accused derobed the victim and tried to rape her. The victim raised alarm, on which one Deepu reached the spot. When Deepu raised alarm the accused fled away. Deepu brought the girl home, who narrated the whole incident to her father and other family members, hence F.I.R. has been lodged. 3. The victim was medically examined by Dr. Archana Singh, P.W. 4, who did not find any mark of injury on the body of the victim. She proved the medical report as Exhibit Ka-2 and the supplementary report as Exhibit Ka-3. 4. P.W. 5 is Constable Sarika Gupta, who scribed the chick report, which was proved as Exhibit Ka-4 and the copy of the G.D. was proved as Exhibit Ka-6. 5. Investigation was entrusted to Sub Inspector Harnath Singh in whose absence the case was registered. He recorded the statement of chick writer, perused the medical report and found the victim to be 11 to 12 years of age. The clothes of the victim were taken in possession and the recovery memo was prepared, which was proved as Exhibit Ka-6. The recovery memo was copied in the case diary. 6. The statement of mother of the victim was recorded on 26.12.2013. The clothes of the victim were taken in possession and the recovery memo was prepared, which was proved as Exhibit Ka-6. The recovery memo was copied in the case diary. 6. The statement of mother of the victim was recorded on 26.12.2013. On the same day, the statements of Vidya Devi, Deepu, Prema Devi, Jagmohan and Rinku were recorded. The place of incident was inspected at the pointing out of the informant. Site plan was prepared and proved as Exhibit Ka-7. After that various other statements were recorded. The statement of the victim was got recorded under Section 164 Cr.P.C. The investigation ended into charge-sheet submitted by the witness, which was proved as Exhibit Ka-8. 7. The prosecution examined as many as six witnesses. P.W. 1 is Radha Krishna, the informant who has proved the F.I.R. as Exhibit Ka-1. P.W. 2 is the victim. P.W. 3 is Deepu. The evidence of P.W. 4 Dr. Archana Singh, P.W. 5 Constable Sarika Gupta and P.W. 6 Sub Inspector Harnath Singh has been discussed by me earlier. 8. After close of prosecution evidence, the statement of the accused was recorded under Section 313 Cr.P.C., in which he denied the occurrence. D.W. 1 Ram Krishna was produced as defence witness, who has tried to proved the factum of enmity between the informant and the accused. 9. The learned lower court after hearing the learned counsels for the parties and perusing the record, found the accused guilty and convicted him as specified in para 1 of the judgement. 10. Feeling aggrieved, the accused-appellant has come in appeal. 11. I have heard the learned counsel for the parties and perused the record of the trial court. 12. Learned counsel for the appellant has submitted that that the medical opinion does not support the ocular evidence, hence the learned lower court has committed an error in convicting the accused on the basis of inadmissible evidence. 13. On the other hand learned A.G.A. has submitted that the findings of the fact recorded by the trial court is based on evidence of the prosecutrix and that no corroboration was required when the testimony of the prosecutrix was clear, cogent and convincing. He has further contended that there was nothing to show that the prosecutrix has falsely implicated the accused and the appeal is liable to be dismissed. 14. He has further contended that there was nothing to show that the prosecutrix has falsely implicated the accused and the appeal is liable to be dismissed. 14. As far as F.I.R. is concerned the occurrence is said to have been taken place lodged on 24.12.2013 at 15:00 hrs. The report of incident was lodged on the same day at 18:20 hrs i.e. three hours and twenty minutes after the occurrence. Place of incident being 3 kms. away from the police station. The F.I.R. is prompt. 15. As far as the age of the victim is concerned, when she was produced before the court, she has stated her age to be about 9 years. The age of the victim has to be determined as per provisions of Rule 12 of Juvenile Justice (Care and Protection of Children) Act, 2007. In the absence of any other evidence, the medical report has to be taken recourse to. Dr. Archana Singh, P.W. 4 has proved the supplementary report as Exhibit Ka-3. As per x-ray report the Epiphysis of lateral epicandyle and trochlea had not appeared. Medial epicandyle and radial head had appeared. Epiphysis of pisiform had appeared alongwith other carpels. Lower end of radius and ulna were not fused. Lower end of femur and upper end of tibia and tibula were not fused. Thus, definitely the victim was a girl below 13 years. 16. Generally, in cases of rape, the court does not ponder to find corroboration if the statement of the prosecutrix inspires confidence and is accepted by the court as such, conviction can be based only on the solitary evidence of the prosecutrix and no corroboration would be required unless there are compelling reasons which necessitate the court for corroboration of her statement. Corroboration of testimony of the prosecutrix as a condition for judicial reliance is no a requirement of law but a guidance of prudence under the given facts and circumstances. Minor contradictions or insignificant discrepancies should not be a ground for throwing out an otherwise reliable prosecution case. A prosecutrix complaining of having been a victim of the offence of rape is not an accomplice after the crime. Her testimony has to be appreciated on the principle of probabilities just as the testimony of any other witness; a high degree of probability having been shown to exist in view of the subject matter being a criminal charge. A prosecutrix complaining of having been a victim of the offence of rape is not an accomplice after the crime. Her testimony has to be appreciated on the principle of probabilities just as the testimony of any other witness; a high degree of probability having been shown to exist in view of the subject matter being a criminal charge. However, if the court finds it difficult to accept the version of the prosecutrix on its face vaule, it may search for evidence, direct or substantial, which may lend assurance to her testimony as has been held in Vishnu vs. State of Maharashtra, AIR 2006 SC 508 . The evidence of the prosecutrix is found suffering from serious infirmities and inconsistencies with other material, prosecutrix making deliberate improvements on material point with a view to rule out consent on her part and there being no injury on her person even though her version may be otherwise, no reliance can be placed upon her evidence as has been held in Suresh N. Bhusare & Ors. vs. State of Maharashtra, (1999) 1 SCC 220 . 17. Radha Krishna is P.W. 1, the father of the victim, he has admitted that the witness Deepu belongs to his family. Deepu brought the child and her clothes. A suggestion has been given to this witness regarding some enmity, but it does not stand substantiated by any evidence. Inasmuch as in the traditional non permissible bonds of society of India, no girl or woman of self respect and dignity would depose falsely implicating somebody of ravishing her chastity by sacrificing and jeopardizing her future prospect of getting married with a suitable match, not only she would be sacrificing her future prospect of getting married and having a family life, but also would invite the wrath of being ostracized and outcast from the society, she belongs to and also from her family circle. 18. 18. Before discussing the statement of this witness I would like to discuss the law as regard child witness :- "In Rameshwar S/o Kalyan Singh v. The State of Rajasthan, AIR 1952 SC 54 , this Court examined the provisions of Section 5 of Indian Oaths Act, 1873 and Section 118 of Evidence Act, 1872 and held that every witness is competent to depose unless the court considers that he is prevented from understanding the question put to him, or from giving rational answers by reason of tender age, extreme old age, disease whether of body or mind or any other cause of the same kind. There is always competency in fact unless the Court considers otherwise. The Court further held as under: ".....It is desirable that Judges and magistrates should always record their opinion that the child understands the duty of speaking the truth and state why they think that, otherwise the credibility of the witness may be seriously affected, so much so, that in some cases it may be necessary to reject the evidence altogether. But whether the Magistrate or Judge really was of that opinion can, I think, be gathered from the circumstances when there is no formal certificate...." In Mangoo & Anr. v. State of Madhya Pradesh, AIR 1995 SC 959 , this Court while dealing with the evidence of a child witness observed that there was always scope to tutor the child, however, it cannot alone be a ground to come to the conclusion that the child witness must have been tutored. The Court must determine as to whether the child has been tutored or not. It can be ascertained by examining the evidence and from the contents thereof as to whether there are any traces of tutoring. In Panchhi & Ors. v. State of U.P., AIR 1998 SC 2726 , this Court while placing reliance upon a large number of its earlier judgments observed that the testimony of a child witness must find adequate corroboration before it is relied on. However, it is more a rule of practical wisdom than of law. It cannot be held that "the evidence of a child witness would always stand irretrievably stigmatized. It is not the law that if a witness is a child, his evidence shall be rejected, even if it is found reliable. However, it is more a rule of practical wisdom than of law. It cannot be held that "the evidence of a child witness would always stand irretrievably stigmatized. It is not the law that if a witness is a child, his evidence shall be rejected, even if it is found reliable. The law is that evidence of a child witness must be evaluated more carefully and with greater circumspection because a child is susceptible to be swayed by what others tell him and thus a child witness is an easy prey to tutoring." In Nivrutti Pandurang Kokate & Ors. v. State of Maharashtra, AIR 2008 SC 1460 , this Court dealing with the child witness has observed as under: "The decision on the question whether the child witness has sufficient intelligence primarily rests with the trial Judge who notices his manners, his apparent possession or lack of intelligence, and the said Judge may resort to any examination which will tend to disclose his capacity and intelligence as well as his understanding of the obligation of an oath. The decision of the trial court may, however, be disturbed by the higher court if from what is preserved in the records, it is clear that his conclusion was erroneous. This precaution is necessary because child witnesses are amenable to tutoring and often live in a world of make-believe. Though it is an established principle that child witnesses are dangerous witnesses as they are pliable and liable to be influenced easily, shaped and moulded, but it is also an accepted norm that if after careful scrutiny of their evidence the court comes to the conclusion that there is an impress of truth in it, there is no obstacle in the way of accepting the evidence of a child witness." The evidence of a child must reveal that he was able to discern between right and wrong and the court may find out from the cross- examination whether the defence lawyer could bring anything to indicate that the child could not differentiate between right and wrong. The court may ascertain his suitability as a witness by putting questions to him and even if no such questions had been put, it may be gathered from his evidence as to whether he fully understood the implications of what he was saying and whether he stood discredited in facing a stiff cross-examination. The court may ascertain his suitability as a witness by putting questions to him and even if no such questions had been put, it may be gathered from his evidence as to whether he fully understood the implications of what he was saying and whether he stood discredited in facing a stiff cross-examination. A child witness must be able to understand the sanctity of giving evidence on a oath and the import of the questions that were being put to him. (Vide: Himmat Sukhadeo Wahurwagh & Ors. v. State of Maharashtra, AIR 2009 SC 2292 ). In State of U.P. v. Krishna Master & Ors., AIR 2010 SC 3071 , this Court held that there is no principle of law that it is inconceivable that a child of tender age would not be able to recapitulate the facts in his memory. A child is always receptive to abnormal events which take place in his life and would never forget those events for the rest of his life. The child may be able to recapitulate carefully and exactly when asked about the same in the future. In case the child explains the relevant events of the crime without improvements or embellishments, and the same inspire confidence of the Court, his deposition does not require any corroboration whatsoever. The child at a tender age is incapable of having any malice or ill will against any person. Therefore, there must be something on record to satisfy the Court that something had gone wrong between the date of incident and recording evidence of the child witness due to which the witness wanted to implicate the accused falsely in a case of a serious nature. Part of the statement of a child witness, even if tutored, can be relied upon, if the tutored part can be separated from untutored part, in case such remaining untutored part inspires confidence. In such an eventuality the untutored part can be believed or at least taken into consideration for the purpose of corroboration as in the case of a hostile witness. (Vide: Gagan Kanojia & Anr. v. State of Punjab, (2006) 13 SCC 516). In such an eventuality the untutored part can be believed or at least taken into consideration for the purpose of corroboration as in the case of a hostile witness. (Vide: Gagan Kanojia & Anr. v. State of Punjab, (2006) 13 SCC 516). In view of the above, the law on the issue can be summarized to the effect that the deposition of a child witness may require corroboration, but in case his deposition inspires the confidence of the court and there is no embellishment or improvement therein, the court may rely upon his evidence. The evidence of a child witness must be evaluated more carefully with greater circumspection because he is susceptible to tutoring. Only in case there is evidence on record to show that a child has been tutored, the Court can reject his statement partly or fully. However, an inference as to whether child has been tutored or not, can be drawn from the contents of his deposition." 19. Although, as per the medical report, there was no mark of injury present on the private parts of the victim. But absence of injuries on the person of the victim will not make the prosecution case of rape unreliable. Even if the Doctor opines that the victim was habitual to sexual intercourse, but I am afraid that it does not make the testimony of the prosecutrix unreliable and the absence of injuries on the person of the prosecturix is not sufficient to discredit her evidence as has been held by the Apex Court in Criminal Appeal No. 769 of 2006 (State of U.P. Vs. Chhote Lal) decided on 14th January, 2011. 20. Radha Krishna P.W. 1 informant has stated that when his daughter returned home, after the incident, she narrated the whole incident to her mother, at which F.I.R. was lodged. As far as the evidence of the child witness P.W. 2 is concerned the learned lower court in its wisdom was cautious enough to test the veracity and understanding of the witness inasmuch as certain questions were put to the witness by the court and after they were answered the court found the witness to be competent enough to be examined during the trial. 21. After this the witness was examined, who has stated that her age is 9 years. This fact find support from the medical evidence. 21. After this the witness was examined, who has stated that her age is 9 years. This fact find support from the medical evidence. She has stated that the accused gave her five rupees and asked to her to purchase "Supari", when she refused, he picked her in his arms and took her to the fields. He derobed the victim and derobed himself, he gagged her mouth. This child of the village could not explain the brutal act of the victim better than this as she has specifically stated :- mlus vius diM+s mrkj fn;s vkSj esjs diM+s mrkj fn;sA fQj esjs lkFk xkM+&xkM+ [ksyus yxk esjk eqg nok fy;k FkkA eq>s uhps fyVkdj esjs mij yndj xkM+&xkM+ [ksyus yxk FkkA esjs fpYykus o jksus ij xkao nhiw vk;s mUgksus NqM+k;k FkkA 22. Thus, from the above statement it is very clear that the accused made every attempt to rape the child, but he could not succeed because Deepu arrived. This small child was put to the test of cross-examination by a professional Advocate, well educated, but this witness successfully underwent the test of cross-examination. There is not an iota of evidence in the cross-examination, on the basis of which her testimony could be discredited. This witness can neither be termed to be tutored witness not unreliable witness. She is a very reliable witness, who has narrated the correct facts before the court in a natural way. Deepu P.W. 3 has stated that when he reached the site on hue and cry of the victim, he saw that the accused was attempting to rape her. Both were naked. This again is a child witness aged 14 years, he is also a natural witness and a child witness, who also underwent the tough test of cross-examination successfully. 23. Thus, the evidence of the victim coupled with the evidence of Deepu, both being child witnesses and the evidence of the informant P.W. 1 Radha Krishna is trustworthy, reliable and unshaken. According to the medical report there were no marks of injury and nothing abnormal was found in the vaginal's slide of the victim. There is no significant in the statement of the I.O. 24. The accused while denying the occurrence has produced D.W. 1 Ram Krishna, who has given negative evidence of the occurrence and stated that no such occurrence took place. There is no significant in the statement of the I.O. 24. The accused while denying the occurrence has produced D.W. 1 Ram Krishna, who has given negative evidence of the occurrence and stated that no such occurrence took place. I think positive evidence carries more weight as compared to the negative evidence. 25. In cross-examination D.W. 1 Ram Krishna has admitted that on the day of occurrence the accused was not accompanying him. He was not present with this witness even in the night. He had seen the accused 8 to 10 days prior to the occurrence. 26. The defence has also produced the photocopy of an application addressed to the District Magistrate, written by Pati Ram and a copy of an affidavit of Pati Ram. But since both these documents are photocopies, hence they it cannot be read in evidence. Even otherwise these documents could be of no avail to the defence inasmuch as the prosecution has proved the case above reasonable doubt against the accused-appellant and the conviction is based on evidence. 27. Thus, the statement of the victim, her cousin Deepu and her father Radha Krishna are quite natural and inspire confidence. 28. Learned counsel for the appellant has also submitted that the sentence imposed on the accused is very harsh. This aspect has been discussed by the Hon'ble Apex Court in 2005 SCC (Criminal) Page 1947 State of M.P. Vs. Bala @ Balaram in which the Hon'ble Apex Court has observed the following :- "The crime here is rape. It is a particularly heinous crime, a crime against society, a crime against human dignity, one that reduces a man to an animal. The penal stature has prescribed a maximum and a minimum punishment for an offence under Section 376 IPC. To view such an offence once it is proved, lightly, is itself an affront to society. Though the award of maximum punishment may depend on the circumstances of the case, the award of the minimum punishment, generally, is imperative. The provisos to Section 376(1) and 376(2) IPC given the power to the court to award a sentence lesser than the minimum for adequate and special reasons. The power under the proviso is not to be used indiscriminately or routinely. It is to be used sparingly and only in cases where special facts and circumstances justify a reduction. The provisos to Section 376(1) and 376(2) IPC given the power to the court to award a sentence lesser than the minimum for adequate and special reasons. The power under the proviso is not to be used indiscriminately or routinely. It is to be used sparingly and only in cases where special facts and circumstances justify a reduction. The reasons must be relevant to the exercise of such discretion vested in the court. The reasons must be set out clearly and cogently. The mere existence of a discretion by itself does not justify its exercise. The long pendency of the criminal trial or the offer of the rapist to marry the victim are not relevant reasons. Nor is the age of the offender by itself an adequate reason. The punishment prescribed by the Penal Code reflect the legislative recognition of the social needs, the gravity of the offence concerned, its impact on the society and what the legislature considers as a punishment suitable for the particular offence. It is necessary for the courts to imbibe that legislative wisdom and to respect it. The rationale for advocating the award of a punishment commensurate with the gravity of the offence and its impact on society, is to ensure that a civilized society does not revert to the days of "an eye for an eye and a tooth for a tooth". Not awarding a just punishment might provoke the victim or its relatives to retaqliate in kind and that is what exactly is sought to be prevented by the criminal justice system we have adopted. Even in the time of Kautilya, the need for awarding just punishment was recognized. According to Kautilya, "Whoever imposes severe punishment becomes repulsive to people, while he who awards mild punishment becomes contemptible. The ruler just with the rod is honoured. When deserved punishment is given, it endows the subjects with spiritual good, material well-being and pleasures of the senses". This philosophy is woven into our statute and our jurisprudence and it is the duty of those who administer the law to bear this in mind. This Court has on a number of occasions indicates that the punishment must fit the crime and that it is the duty of the court to impose a proper punishment depending on the degree of criminality and desirability for imposing such punishment. This Court has on a number of occasions indicates that the punishment must fit the crime and that it is the duty of the court to impose a proper punishment depending on the degree of criminality and desirability for imposing such punishment. In Earabhadrappa vs. State of Karnataka this Court observed (SCC Page 341, Para14) A sentence or pattern of sentence which fails to take due account of the gravity of the offence can seriously undermine respect for law. It is the duty of the court to impose a proper punishment depending upon the degree of criminality and desirability to impose such punishment as a measure of social necessity as a means of deterring other potential offenders. In Rajendra Prasad vs. State of U.P. Justice Sen stated : (SCC Page 708, Para 195) Judges are entitled to hold their own views, but it is the bounden duty of the Court to impose a proper punishment, depending upon the degree of criminality and the desirability to impose such punishment as a measure of social necessity, as a means of deterring other potential offenders. It is not necessary to multiply authorities. In a recent decision in State of M.P. v. Munna Choubey this question again been dealt with. This Court observed :(SCC P.716, Para 15) Imposition of sentence without considering its effect on the social order in many cases may be in reality a futile exercise. The social impact of the crime e.g. where it relates to offences against women, dacoity, kidnapping, misappropriate of public money, treason and other offences involving moral turpitude or moral delinquency which have great impact on social order and public interest, cannot be lost sight of and per se require exemplary treatment. Any liberal attitude by imposing meager sentences or taking too sympathetic view merely on account of lapse of time in respect of such offences will be result wise counterproductive in the long run and against societal interest which needs to be cared for and strengthened by string of deterrence inbuilt in the sentencing system. It is true that reformation as a therory of punishment is in fashion but under the guise of applying such theory, the courts cannot forget their duty to society and to the victim. It is true that reformation as a therory of punishment is in fashion but under the guise of applying such theory, the courts cannot forget their duty to society and to the victim. The court has to consider the plight of the victim in a case involving rape and the social stigma that may follow the victim to the grave and which in most cases, practically ruins all prospects of a normal life for the victim. Could a court afford to forget these aspects while imposing a punishment on the aggressor? I think not. The court has to do justice to society and to the victim on the one hand and to the offender on the other. The proper balance must be taken to have been struck by the legislature. Hence, the legislative wisdom reflected by the statute has to be respected by the court and the permitted departure there from made only for compelling and convincing reasons." 29. Thus, for the reasons mentioned above, I find that the prosecution has fully proved the charges levelled against the accused and conviction of the accused is based on sufficient evidence on record. The sentence imposed on the accused-appellant is just and proper. The appeal has no force and is liable to be dismissed. 30. Accordingly, the appeal is dismissed. 31. The judgement and order of conviction and sentence dated 8.1.2015 passed by Special Judge, Protection of Children from Sexual Offences (POCSO), Act / Additional Sessions Judge, Court No. 1 Kannauj in S.T. No. 2/14 (State Vs. Kamlesh) arising out of Crime No. 565 of 2013, under Sections 376, 511 I.P.C. and Section 8 Protection of Children from Sexual Offences, Act, Police Station Tirwa, District-Kannauj is confirmed. 32. The accused is in jail, he shall serve out the remaining sentence. 33. Let certified copy of this order be transmitted to the trial court for compliance. ———————