Judgment : Ranjana Pandya, J. 1. Challenge in this appeal is to the judgement and order dated 15.10.2015 passed by Fast Track Court No. 2/Additional Session Judge, Ghaziabad in S.T. No. 1058 of 2010 arising out of Crime No. 1857 of 2009 (State Vs. Suresh Pal and others), under Sections 363, 366 and 376 I.P.C., Police Station-Loni, whereby the accused Mahendra and Rajendra were acquitted under Section 363 and 366 I.P.C., the accused Suresh Pal was found guilty under Section 366 and 376 I.P.C. and was sentenced to 7 years rigorous imprisonment and Rs. 10,000/- fine under Section 366 I.P.C. and was sentenced to 10 years rigorous imprisonment and Rs. 20,000/- fine under Section 376 I.P.C. with default stipulation. 2. Filtering out unnecessary details, the prosecution case is that the brother of the victim namely Ashu lodged a written report at the police station-Loni stating that on 21.10.2009 his sister aged about 17 years was missing since the night of 21.10.2009. She had gone out of the house to attend the call of nature. The accused Suresh Pal, Toni and Nanak Chand had taken away the victim alongwith connivance of Sajid, Mahendra and Rajendra, she could not be traced, hence the report was lodged. 3. On the basis of this F.I.R. the investigation was entrusted to P.W. 5, S.I. Sayyad Ali Rizvi on 26.10.2009. He copied the chick and the F.I.R. in the case diary. He recorded the statement of the mother of the informant on 29.10.2009. The victim was recovered and she was got medically examined and her statement was recorded on 30.10.2009. The x-ray report was received on 31.10.2009, the statement of the victim was got recorded under Section 164 Cr.P.C. on 1.11.2009. On the information of the informer the accused Mahendra, Suresh and Ravindra were arrested. Their statements were recorded on 16.11.2009. The statement of Sajid was also recorded. He was not found involved in the occurrence. On 26.1.2010 the I.O. inspected the spot, prepared the site plan, which was proved as Exhibit Ka-4. Investigation ended into a charge-sheet, which was proved by this witness and proved as Exhibit Ka-5. The witness provided the arrest memo of the accused Rajendra, Mahendra and Suresh Pal, who was proved as Exhibit Ka-6 and Ka-7. 4. The victim was examined by P.W. 6 Dr. Investigation ended into a charge-sheet, which was proved by this witness and proved as Exhibit Ka-5. The witness provided the arrest memo of the accused Rajendra, Mahendra and Suresh Pal, who was proved as Exhibit Ka-6 and Ka-7. 4. The victim was examined by P.W. 6 Dr. Alok Kishan as regards as her age is concerned, he concudcted the ossification test and proved the ossification report as Exhibit Ka-6 (wrongly numbered). 5. Constable Rajneesh Kumar scribed the chick on the basis of written report in G.D. Dr. Sarju Kumar P.W. 2 examined the victim, she did not find any external injury on the body of the victim. The victim was having her menses, due to which there was blood on the mouth of the vagina. The hymen was torn at 5 and 7 O'clock position, which was bleeding on touch. The vagina admitted two fingers with pain. The witness proved her medical report as Exhibit Ka-2. 6. The prosecution examined as many as six witnesses. P.W. 1 is Ashu, informant/brother of the victim, who proved the written report as Exhibit Ka-1. P.W. 2 is Dr. Sarju Kumar, whose evidence has been discussed by me. P.W. 3 is Constable Rajneesh Kumar. P.W. 4 is the victim. The statement of P.W. 5 S.I. Sayyad Ali Rizvi and P.W. 6 Dr. Alok Kishan has already been discussed by me. 7. The statement of the accused was recorded under Section 313 Cr.P.C. in which they denied the occurrence and stated that they had been falsely implicated. The accused examined D.W. 1 Rajendra Singh Rawat. 8. The learned lower court after hearing learned counsel for the parties acquitted the accused Mahendra and Rajendra and convicted the accused Suresh Pal as mentioned in para 1 of the judgment. 9. Feeling aggrieved, the accused-appellant has come in appeal. 10. I have heard learned counsel for the parties and perused the lower court record. 11. The learned counsel for the appellants has submitted that the prosecution theory is improbable, indigestible, concocted, fabricated and like a fairy tale. The evidence is shaky and unreliable. The learned lower court has failed to appreciate the evidence in its correct perspective, hence the judgement is bad in the eye of law. 12. Per contra learned A.G.A. has submitted that the conviction is based on legal evidence, which has been well discussed by the trial court and the appeal deserves rejection. 13. The evidence is shaky and unreliable. The learned lower court has failed to appreciate the evidence in its correct perspective, hence the judgement is bad in the eye of law. 12. Per contra learned A.G.A. has submitted that the conviction is based on legal evidence, which has been well discussed by the trial court and the appeal deserves rejection. 13. Learned counsel for the appellant has submitted that there is inordinate delay in lodging the F.I.R. inasmuch as, as per the F.I.R. the occurrence took place sometime in the night on 21.10.2009, whereas as per the chick report Exhibit Ka-3 report was lodged on 26.10.2009 at 9:15 a.m. The distance of the police station from the place of the occurrence being 5 kms. Thus, there is inordinate delay in lodging the F.I.R., which is clear indicative of the fact that there are embellishment and exaggerations in the F.I.R. version. 14. As far delay in lodging the F.I.R. it is well settled principle of law that in cases of rape of young unmarried girls generally the family members are hesitant in reporting the matter to the police because on one side the reputation of the family is at stake and on the other side since the girl has to be married, hence there would be problem in marrying the girl. 15. In (2015) 4 SCC Page 762 Deepak Vs. State of Haryana the Hon'ble Apex Court has laid down :- "Lodging of the F.I.R. for the commission of the offence is concerned, in our considered opinion, there was no delay in lodging of the F.I.R. either and if at all there was some delay, the same has not only been properly explained by the prosecution but also considering the facts and circumstances of the case, it was natural. The courts cannot overlook the fact that in sexual offences and, in particular, the offence of rape and that too on a young illiterate girl, the delay in lodging the F.I.R. can occur due to various reasons. One of the reasons is the reluctance of the prosecutrix or her family members to go to the police station and to make a complaint about the incident, which concerns the reputation of the prosecutrix and the honour of the entire family. One of the reasons is the reluctance of the prosecutrix or her family members to go to the police station and to make a complaint about the incident, which concerns the reputation of the prosecutrix and the honour of the entire family. In such cases, after giving very cool thought and considering all pros and cons arising out of an unfortunate incident, a complaint of sexual offence is generally lodged either by the victim or by any member of her family." 16. P.W. 1 Ashu has stated that he knew the accused Suresh Pal, although he did not see the accused accompanying the victim, but on the next day when he informed about the occurrence to the police the parents started tracing the victim, his uncle (Taau) had also gone to trace the victim, the police had also gone to trace the victim, where they had gone was not known to this witness. When the victim returned to the police station, she was handed over to the family members. Thus, the prosecution has explained the delay in lodging the F.I.R. There is no inconsistency in the statement of Ashu, even otherwise he is not an eye-witness. 17. The statement of P.W. 4 victim has also to be taken into consideration, she has stated that Suresh Pal made her unconscious and took her away to Loni. He used to give her intoxicated food. He also raped her many times. None of the other accused raped her. She has been cross-examined by the learned counsel for the appellant, but there is nothing in her cross-examination, which could discredit her testimony. Learned counsel for the appellant has submitted that the evidence of the prosecutrix is not reliable inasmuch as the occurrence is said to have place on 22.10.2009 and the victim was said to have been recovered on 1.11.2009. She had been visiting different places of the State with the accused, but she did not raise any alarm. Hence, she being a consenting party too, the conviction of the accused is bad in the eye of law. 18. I have carefully gone through the cross-examination of the victim P.W. 4, but there is nothing to show that her testimony could be held unworthy of credence. 19. As far as the age of the victim is concerned in the F.I.R. the age has been mentioned to be 17 years. 18. I have carefully gone through the cross-examination of the victim P.W. 4, but there is nothing to show that her testimony could be held unworthy of credence. 19. As far as the age of the victim is concerned in the F.I.R. the age has been mentioned to be 17 years. In the statement of the victim recorded under Section 164 Cr.P.C. also her age is mentioned to be 17 years. It has been submitted that the age of consent at the relevant time was 16 years, hence this is a case of consent. The accused-appellants have not come with the case of consent, neither any such suggestion has been given to any of the witnesses. Infect even in the statement under Section 313 Cr.P.C. the accused has failed to state before the court that the victim was a consenting party. I am aware that the prosecution has to prove its case beyond reasonable doubt and shortcomings of the defence case cannot come to the rescue of the prosecution. She has also undergone the test of cross-examination. 20. In the present case the statement of victim P.W. 4 found support from the medical report Exhibit Ka-2, in which the hymen was torn at 5 and 7 O'clock position, edges of which were bleeding on touch. The vagina was admitting two fingers with pain. The victim was medically examined on 29.10.2009 and, thus, the medical report is incomplete corroboration with the statement of the victim. She has stated that she was raped many times by the accused-appellant even as per the statement of the victim recorded under Section 164 Cr.P.C., she has very specifically and categorically stated that only the accused-appellant Suresh raped her and when she tried to raise alarm, he threatened to kill her. He raped her daily for four or five days. 21. In (2010) 2 SCC Page 9 Wahid Khan Vs. State of Madhya Pradesh the Hon'ble Apex Court has laid down : "It is also a matter of common law that in Indian society any girl or woman would not make such allegations against a person as she is fully aware of the repercussions flowing there from. It she is found to be false, she would be looked at by the society with contempt throughout her life. For an unmarried girl, it will be difficult to find a suitable groom. It she is found to be false, she would be looked at by the society with contempt throughout her life. For an unmarried girl, it will be difficult to find a suitable groom. Therefore, unless an offence has really been committed, a girl or a woman would be extremely reluctant even to admit that any such incident had taken place which is likely to reflect on her chastity. She would also be conscious of the danger of being ostracised by the society. It would indeed be difficult for her to survive in Indian society which is, of course, not as forward-looking as the western countries are. Thus, in a case of rape, the testimony of a prosecutrix stands on a par with that of an injured witness. It is really not necessary to insist for corroboration if the evidence of the prosecturix inspires confidence and appears to be credible." 22. Section 114A of the Indian Evidence Act, which reads as follows :- "114A. Presumption as to absence of consent in certain prosecutions for rape.--In a prosecution for rape under clause : (a) or clause (b) or clause (c) or clause (d) or clause (e) or clause (g) of sub-section (2) of section 376 of the Indian Penal Code, (45 of 1860), where sexual intercourse by the accused is proved and the question is whether it was without the consent of the woman alleged to have been raped and she states in her evidence before the Court that she did not consent, the Court shall presume that she did not consent." 23. After discharging the initial burden of rape, and absence of consent has been proved by the victim, a presumption shall be drawn that the sexual intercourse by the accused was without the consent of the victim and the court shall presume that she did not consent although the presumption will definitely be rebutable. 24. In the present case the accused has tried to rebut this presumption by means of adducing the evidence of D.W. 1 Rajendra Singh Rawat, resident of Delhi, who has stated that on 27.10.2009 he had gone to Augustmuni for some work and he does the work of buying and selling of property (Broker) in Loni, hence he knew the accused since the last 30 years. I have my own doubts about the veracity of this particular statement of this witness, who has stated his age to be 60 years and is saying that he is doing the job of buying and selling the property for the last 30 years and since then he knows the accused-appellant Suresh Pal who has given his age to be 26 years in the statement recorded under Section 313 Cr.P.C. How would this witness know the accused-appellant for the last 30 years, when the total age of the accused was 26 years. 25. Further D.W. 1 Rajendra Singh Rawat has stated that in front of tourist guest house many people were present alongwith the police personnel from Loni Police Station and the victim was also present alongwith 2-3 relatives. The accused-appellant Suresh Pal was also present. The police personnel were forcing the appellant Suresh pal that he had kidnapped the victim whereas she was saying that she had come on her own accord. The police took away Suresh pal and the victim. The appellant Suresh Pal and the victim had stayed in that Hotel since 22.10.2009. Thus, as per the defence version and the statement of this witness itself the accused-appellant and the victim were together on 22.10.2009 giving weight age to the prosecution version that the accused took away the girl and raped her against her wishes. 26. In the present case since the prosecutrix has stated in her evidence that she did not consent to act of sexual intercourse done by the accused on her which, as per her statement, was committed by the accused against her will and the accused failed to give any satisfactory explanation in his defence evidence on this issue, the court will be entitled to draw the presumption under Section 114-A of the Evidence Act against the accused holding that he committed the act of sexual intercourse on the prosecutrix against her will and without her consent. The question as to whether the sexual intercourse was done with or without consent being a question of fact has to be proved by the evidence in every case before invoking the rigour of Section 114-A of the Evidence Act. 27. As per the version of the Doctor P.W. 2 Dr. The question as to whether the sexual intercourse was done with or without consent being a question of fact has to be proved by the evidence in every case before invoking the rigour of Section 114-A of the Evidence Act. 27. As per the version of the Doctor P.W. 2 Dr. Smt. Sarju although she did not find any external injury on the body of the victim, but the accused-appellant chose not to cross-examine the Doctor on any point. As far as the statement of the I.O. is concerned the I.O. has admitted that the victim was not recovered from the custody of the accused. Although, fishing cross-examination was done by the accused-appellant, but there is nothing in the cross-examination of the I.O. S.I. Sayyad Ali Rizvi P.W. 5, which could discredit the prosecution version. 28. As per medical version admittedly the age of the victim as per date of occurrence was about 18 years, she was definitely above 16 years. But since, she has denied consent, burden shifted on the accused to rebut the presumption, which has not been rebutted by him. 29. It is trite law as laid down in Narender Kumar vs. State (NCT of Delhi), (2012) 7 SCC 171 , that the opinion of the Doctor is just advisory the Hon'ble Apex Court has now and again stated that once 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 the testimony of the prosecutrix is a condition for judicial reliance is not a requirement of law. It is also noticed that minor contradictions or insignificant discrepancies should not be a ground for throwing out an otherwise reliable prosecution case. 30. It has also been submitted by learned counsel for the appellant that the learned lower court has imposed harsh sentence, the victim was clearly of understandable age, thus, the sentence is too harsh, which needs reductions. 31. The purpose and guidelines of sentence have laid down by the Hon'ble Apex Court in (2015) 7 SCC 359 Satish Kumar Jayanti Lal Dabgar Vs. 31. The purpose and guidelines of sentence have laid down by the Hon'ble Apex Court in (2015) 7 SCC 359 Satish Kumar Jayanti Lal Dabgar Vs. State of Gujrat, which reproduced as under :- "...Whereas in various countries, sentencing guidelines are provided, statutorily or otherwise, which may guide Judges for awarding specific sentence, in India we do not have any such sentencing policy till date. The prevalence of such guidelines may not only aim at achieving consistencies in awarding sentences in different cases, such guidelines normally prescribe the sentencing policy as well, namely, whether the purpose of awarding punishment in a particular case is more of a deterrence or retribution or rehabilitation, etc. In the absence of such guidelines in India, the courts go by their own perception about the philosophy behind the prescription of certain specified penal consequences for particular nature of crime. For some deterrence and/or vengeance becomes more important whereas another Judge may be more influenced by rehabilitation or restoration as the goal of sentencing. Sometimes, it would be a combination of both which would weigh in the mind of the court in awarding a particular sentence. However, that may be question of quantum. What follows from the discussion behind the purpose of sentencing is that if a particular crime is to be treated as crime against the society and/or heinous crime, then the deterrence theory as a rationale for punishing the offender becomes more relevant, to be applied in such cases. Therefore, in respect of such offences which are treated against the society, it becomes the duty of the State to punish the offender. Thus, even when there is a settlement between the offender and the victim, their will would not prevail as in such cases the matter is in public domain. Society demands that the individual offender should be punished in order to deter other effectively as it amounts to greatest good of the greatest number of persons in a society. We would like to expand this principle in some more detail. We find, in practice and in reality, after recording the conviction and while awarding the sentence/punishment the court is generally governed by any or all or combination of the aforesaid factors. Sometimes, it is the deterrence theory which prevails in the minds of the court, particularly in those cases where the crimes committed are heinous in nature or depict depravity, or lack morality. Sometimes, it is the deterrence theory which prevails in the minds of the court, particularly in those cases where the crimes committed are heinous in nature or depict depravity, or lack morality. At times it is to satisfy the element of "emotion" in law and retribution/vengeance becomes the guiding factor. In any case, it cannot be denied that the purpose of punishment by law is deterrence, constrained by considerations of justice. What, then, is the role of mercy, forgiveness and compassion in law? These are by no means comfortable questions and even the answers may not be comforting. There may be certain cases which are too obvious, namely, cases involving heinous crime with element of criminality against the society and not parties inter se. In such cases, the deterrence as purpose of punishment becomes paramount and even if the victim or his relatives have shown the virtue and gentility, agreeing to forgive the culprit, compassion of that private party would not move the court in accepting the same as larger and more important public policy of showing the iron hand of law to the wrongdoers, to reduce the commission of such offences, is more important. Cases of murder, rape, or other sexual offences, etc. would clearly fall in this category. After all, justice requires long-term vision. On the other hand, there may be offences falling in the category where "correctional" objective of criminal law would have to be given more weight age in contrast with "deterrence" philosophy. Punishment, whatever else may be, must be fair and conducive to good rather than further evil. If in a particular case the court is of the opinion that the settlement between the parties would lead to more good; better relations between them; would prevent further occurrence of such encounters between the parties, it may hold settlement to be on a better pedestal. It is a delicate balance between the two conflicting interests which is to be achieved by the court after examining all these parameters and then deciding as to which course of action it should take in a particular case. It is seemly to state here that though the question of sentence is a matter of discretion, yet the said discretion cannot be used by a court of law in a fanciful and whimsical manner. It is seemly to state here that though the question of sentence is a matter of discretion, yet the said discretion cannot be used by a court of law in a fanciful and whimsical manner. Very strong reasons on consideration of the relevant factors have to form the fulcrum for lenient use of the said discretion." 32. Thus, for the reasons mentioned above, I find that the prosecution has fully proved the charges levelled against the accused-appellant 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. 33. Accordingly, the appeal is dismissed. 34. The judgement and order of conviction and sentence dated 15.10.2015 passed by Fast Track Court No. 2/Additional Session Judge, Ghaziabad in S.T. No. 1058 of 2010 arising out of Crime No. 1857 of 2009 (State Vs. Suresh Pal and others), under Sections 363, 366 and 376 I.P.C., Police Station-Loni is hereby confirmed. 35. The accused is in jail, he shall serve out the remaining sentence. 36. Let certified copy of this order be transmitted to the trial court. ———————