JUDGMENT : This criminal appeal is directed against the judgment of conviction dated 23.06.2009 and order of sentence dated 01.07.2009 passed by learned Judicial Commissioner, Ranchi in S.T. No. 660 of 2006 convicting the appellant under sections 376/511 of the Indian Penal Code and sentencing to undergo Rigorous imprisonment for five years and to pay a fine of Rs. 1000/- and in default to undergo simple imprisonment for one month. 2. The prosecution case, in brief, is that on 01.04.2006 in the evening at about 4.30 P.M., accused Vijay Munda made an attempt to commit rape on a girl, hereinafter referred to as the victim, aged about 6 years. The alarm raised by victim attracted her sister, the victim who rushed to the place of occurrence and saw her sister, the victim and accused were undressed and the accused was committing rape. She raised alarm and called her father. As soon as, the informant Nelson Minz who is the father of victim reached to the place of occurrence, accused Vijay Munda fled away. 3. On 02.04.2006, a written report was lodged on the basis of which Lalpur P.S. Case No. 29 of 2006 under section 376 of the Indian Penal Code against accused Vijay Munda was registered. The police, after due investigation, submitted charge sheet under section 376/511 of the Indian Penal Code and accordingly, cognizance was taken. The case was committed to the court of sessions and registered as Sessions Trial No. 660 of 2006. The charge under section 376/511 of the Indian Penal Code was framed and it was read over to the accused to which he pleaded not guilty and claimed to be tried. After conclusion of the trial the appellant was convicted under sections 376/511 of the Indian Penal Code and sentenced as aforesaid. Hence, this appeal. 4. The Prosecution has examined all together nine witnesses to substantiate the charge including informant, victim, I.O., and the doctor, but no witness on behalf of accused was examined in his defence. Nelson Minz, the father of the victim was examined as P.W. 4. He supported the prosecution case and stated that on 1st April, 2006 in the evening at 4.30 P.M., he was at home. His daughter Nishi Minz had gone to nearby shop, whereas the second daughter or victim was playing in the lane situated near the house. Nelson Minz, the father of the victim was examined as P.W. 4. He supported the prosecution case and stated that on 1st April, 2006 in the evening at 4.30 P.M., he was at home. His daughter Nishi Minz had gone to nearby shop, whereas the second daughter or victim was playing in the lane situated near the house. Nishi Minz returned from the shop and informed that Vijay Munda had pulled the victim down on the floor in a hut and was lying upon her. P.W. 4 then rushed to the place of occurrence and saw Vijay Munda lying upon the victim and they were undressed. The accused had pressed the mouth of the victim with his hand. He caught hold of Vijay and tried to assault him, but he scuffled with him and fled away. He brought his victim daughter home and the matter was informed by him to his wife when she returned home. There was festival of Sarhul on the date of incident. On the next day, a Panchyati was convened in which head of Vijay Munda was shaved and the people directed the informant to take the accused to the police station, but he fled away. The matter was reported to police. The informant proved the written report which was marked as Ext.1. He claimed to identify accused Vijay Munda in dock. In course of cross examination the informant deposed that on the date of occurrence he had not gone to enjoy Sarhul festival. He had taken liquor on occasion of Sarhul, but not with the accused. Vijay Munda was brought by his brother to the Panchyati and in course of taking him to police station, he fled away. 5. P.W. 2 is the reported victim, she deposed her age as 6 years. The victim identified the accused and said that he is the person who opened her panties and also undressed himself and laid upon her. Her mouth was pressed by the accused. Meanwhile, her sister Nishi reached to the place and saw them. Her sister called her father, thereafter, Vijay fled away. In her cross examination she says that she was playing at the place of occurrence and she had disclosed the incident to her parent. 6. Her mouth was pressed by the accused. Meanwhile, her sister Nishi reached to the place and saw them. Her sister called her father, thereafter, Vijay fled away. In her cross examination she says that she was playing at the place of occurrence and she had disclosed the incident to her parent. 6. P.W. 1 is Nishi Minz, sister of the reported victim and she deposed that when she was returning home from the nearby shop, she heard alarm raised by her sister. She rushed to the place and saw her sister, the victim lying naked on the ground and the accused Vijay Munda undressed and lying on top of her. She went home and informed the matter to her father who rushed to the place, caught hold of Vijay and tried to assault him, but the accused scuffled and fled away. She claimed to identify the accused in Court. In course of her examination she deposed that the mother of her friend had asked her to bring Biscuit from the shop. 7. P.W. 3 is Usha Minz, the mother of the victim, she deposed that on the date of incident, it was Sarhul festival, and the people and neighbours had consumed alcohol and they were in festive mood. The next morning, a Panchyati was convened, thereafter, the matter was reported to police. She admits that she returned home at about 8.30 p.m., from her job and learned about the incident. In para 4 of her cross examination she deposed that her husband had not sent her daughter to purchase article rather her neighbour had sent her. 8. Paras Laka (P.W. 5) and Gautam Lakra (P.W. 7) have not supported the prosecution case and have been declared hostile by the prosecution. They were cross examined, during which their statement recorded under section 161 of the Cr.P.C. were referred to them to which they have denied. Krishna Lakra (P.W. 6) is a hearsay witness and he had said nothing about the incident. 9. P.W. 9 is Dr. Manju Prasad, she had deposed that on 02.4.2006 she had examined victim girl at 12.30 P.M. and she proved the medical report as Ext.-3. According to this witness, no evidence of sexual intercourse was found at the time of examination of the victim. The age of the victim was assessed as seven years by the doctor. 10. Manju Prasad, she had deposed that on 02.4.2006 she had examined victim girl at 12.30 P.M. and she proved the medical report as Ext.-3. According to this witness, no evidence of sexual intercourse was found at the time of examination of the victim. The age of the victim was assessed as seven years by the doctor. 10. P.W. 8 is Dhaneshwar Ravidas and he was the Investigation Officer of the case. He deposed that on 02.4.2006, he was posted at Lalpur Police Station. On that day Nelson Minz and his victim daughter reached to the police station at about 10.30 A.M. with a written report. On the basis of the written report, Lalpur P.S. Case No. 29 of 2006 under section 376 of the Indian Penal Code against accused Vijay Munda was registered. He proved the endorsement made on the written report which is marked as Ext.-1/1 and the formal F.I.R. as Ext.-2. He had deposed that he had inspected the place of occurrence, arrested the accused and after completing investigation, found the occurrence true and submitted charge sheet against accused Vijay Munda. In para 5, the attention to the I.O. was drawn towards the statement of hostile witness P.W. 5 and P.W. 7. He confirmed that the aforesaid witnesses in their statement recorded during investigation supported the occurrence. During his cross examination, he admits that the informant was accompanied by many villagers and he had examined some of them during investigation. ARGUMENTS OF COUNSELS 11. The learned counsel for the appellant has read out written report as well as the deposition of the informant and pointed out that the appellant had, as per the written report, run away on seeing him but in his deposition, he says that on going to the place of occurrence, he caught hold of the appellant and he had hit the appellant. Further, he has said that informant in his deposition mentioned that the occurrence had taken place in a Jhopri/Hut, which is not there in the FIR and submitted that these additions and development to the initial allegations vitiates the entire criminal case, which is sought to be made out against the appellant. He has also pointed out from the deposition that this witness himself was drunk at the relevant time and that can be made out from the evidence that has come in his deposition. He has also pointed out from the deposition that this witness himself was drunk at the relevant time and that can be made out from the evidence that has come in his deposition. He has pointed out to the evidence of the doctor P.W. 9 and said that victim was examined immediately on the next date after the occurrence i.e. on 02.04.2006 and it was found that there was no injuries on the private part or no stain were found on the private part. There was no dead or alive spermatozoa found. The opinion of the doctor was that no evidence of sexual intercourse found at the time of examination. Counsel further said that there is no such injury, no spermatozoa or no sign of hurt, struggle found which, therefore, exonerates the appellants. Pointing to the evidence of alleged victim, P.W. 2, aged about 6 years, he has argued that her evidence was taken almost one year after the occurrence and there was sufficient time for her to be tutored and therefore, the evidence to be taken very cautiously by the court. He has further said that any child witness has to be tested first whether she is mature and capable of giving such evidence and he has read out from the victim's evidence, first portion and said that it has come that the court himself has said she was not able to distinguish between dates and months and thus argued that she was not capable or a matured or rational witness. In spite of that her evidence was taken into account. He has asserted that victim was not a competent witness and lacks understanding to have deposed against the appellant and just to falsely implicate the appellant, the child was tutored to give such evidence against the appellant. However, he has said that the allegations under sections 376/511 of the Indian Penal Code are not corroborated by the medical evidence and it is not sufficient to mention that it is a heinous crime. It has to be judged by the material evidence that are available. Counsel has also said that after the occurrence, appellant was very much present in the vicinity and in fact it has come in the evidence of P.W. 4 that he was present in panchyati which would go to show he was not guilty of any crime and had not run away. Counsel has also said that after the occurrence, appellant was very much present in the vicinity and in fact it has come in the evidence of P.W. 4 that he was present in panchyati which would go to show he was not guilty of any crime and had not run away. If he had committed such crime he might have run away or absconded and he has also pointed out, rather argued that it is beyond imagination that at the time as mentioned i.e. approx 4.50 pm, in a crowded place such crime would have been committed and it is simply unbelievable that such an attempt would be made by the appellant. Counsel has argued that P.W. 1, who is elder sister, P.W. 2, victim herself and P.W. 3, her mother, who is in any way a hearsay witness and P.W. 4 who is father and the informant, are all interested witnesses, therefore, the only persons alleging or supporting the prosecution story are the witnesses who are directly related to the alleged victim. He has then argued that rest of the witnesses, P.W. 5, P.W. 6 and P.W. 7 are independent and they have been declared hostile or did not support the prosecution case. He has further argued that if there was any truth in the matter then these witnesses, who have been declared hostile, would have also supported the prosecution case. They also belong to village or neighbourhood. Basing all these arguments, counsel for the appellant has said that the conviction of the appellant is not sustainable. He has further submitted that appellant had remained in custody during trial from 29.4.2006 to 26.2.2007, approx-10 months and thereafter from 27.03.2009 to 13.04.2010 till bail, as per high court order, hence, total approx 2 years and counsel has finally submitted that at the time of occurrence, the appellant was a boy of very tender age and he was in custody for about 2 years, so in any way, he has spent sufficient time in custody. 12. On conclusion of the arguments, appellant's counsel has submitted that in case appellant is held guilty, then his tender and young age, of 18 years at the time of occurrence and that he had already spent time in custody for about two years of the imposed sentence of R.I. for 5 years be taken into account to mitigate his sentence. On conclusion of the arguments, appellant's counsel has submitted that in case appellant is held guilty, then his tender and young age, of 18 years at the time of occurrence and that he had already spent time in custody for about two years of the imposed sentence of R.I. for 5 years be taken into account to mitigate his sentence. He has also cited the judgment in Bharwada Bhoginbhai Hirjibhai Vs. State of Gujarat reported in (1983) 3 SCC 217 in support of reduced sentence. Counsel has also pointed out that the year of occurrence was 1975 and in 1983, the Hon'ble Apex Court, while upholding conviction had reduced the sentence. 13. Learned counsel for the State, learned Additional P.P. Mrs. Niki Sinha, has however, argued that it is a heinous crime against the child victim and there is sufficient evidence given by the witnesses to sustain the conviction of the appellant. She has said that such allegations would not be made by P.W. 4, the informant, who is the father and supported by the other so called “interested witnesses”, who are the victim, sister and the mother, unless the allegations were true. It is not, in normal course of behaviour, to make such heinous allegations against any one, unless there is truth in the allegations. She has further added that there is no reference to any enmity between the parties to sustain that the allegations were made due to any enmity or made with any motivated reason or to put up a false case. She has referred to evidence of P.W. 1, who is the sister of the victim, Nishi Minz and she has pointed out from the depositions in paragraph nos. 2 that the attempt to commit rape has been described by the elder sister and she was also a young girl at the time of examination and her age was 8 years, and in normal course she would not concoct such a thing for the sake of making false case against any one. She has again read out from the evidence of victim girl P.W. 2, paragraph no. 2 where the attempt has been described and said that the victim and her sister are child witnesses and they have supported the prosecution story. She has again read out from the evidence of victim girl P.W. 2, paragraph no. 2 where the attempt has been described and said that the victim and her sister are child witnesses and they have supported the prosecution story. Regarding P.W. 3, she has said that she is mother, though she may be hearsay witness, but it has come, she was immediately informed about the incident after the occurrence and she has deposed in such a manner. Regarding P.W. 5, she has submitted that though he has been declared hostile but it has come out from his deposition that he had tried to catch hold of the appellant but the appellant had run away. She has also submitted that it has repeatedly come in the depositions of P.W. 3, 4, 6 and 7 that the panchyati was held and there is no reason that the panchyati was immediately held after the occurrence. It means that something definitely had taken place and to settle the matter the panchyati had taken place. She has also pointed out from the evidence of doctor and said that though from the evidence of doctor or the report of doctor the case for rape does not seem to be made out but it does not mean that the case for offences under sections 376/511 is not made out that can still be sustained but from the evidence of both the sisters, it is clearly stated that objectionable occurrence had taken place. She has referred to deposition of I.O. in para 7 and she has pointed out that the I.O. had gone in search of the appellant in his house and he was found missing or absconding and therefore, it is a good indication to say he was evading the apprehension of arrest because he was guilty of the offences alleged. FINDINGS 14. Having gone through the records of the case and having gone through the arguments of learned counsels, the following points are concluded;- (a) P.W.4, the father of the reported victim, has said he was at home at the time of the incident, and rushed to the place of occurrence on being informed by her elder daughter Nishi Minz. FINDINGS 14. Having gone through the records of the case and having gone through the arguments of learned counsels, the following points are concluded;- (a) P.W.4, the father of the reported victim, has said he was at home at the time of the incident, and rushed to the place of occurrence on being informed by her elder daughter Nishi Minz. It would be too far fetched to think that a father would concoct such a case against the accused which would also affect his young daughter as well as his family in many uncertain and negative ways, that too as has been pointed out by the learned Additional P.P., when there has been no reference to any prior and existing dispute or enmity between the parties. The father, is thus a natural and reliable witness, some inconsistencies in his evidence does not extract from the main accusation made against the appellant. (b) The two sisters, the reported victim, aged 6 years at the time of her deposition, as well as Nishi Minz, aged 8 years have both had their maturity and competence to depose tested and assessed by the learned trial court who only recorded that the victim had some difficulty with days and month, but was otherwise competent to depose. Both the reported victim as well as the elder daughter have described the manner of the occurrence, and from their deposition it is clear that attempt to have sex was being made. Due to the alarm made by the elder sister and the intervention of the father of the victim, the accused must have failed in his intended purpose. Both girls have already described the occurrence, and have also identified the accused in court and are thoroughly reliable and believable child witnesses. (c) P.W. 5, Paras Lakra and P.W. 7, Gautam Lakra have been declared hostile, however, the I.O. attention was drawn to their evidence, and the I.O., deposed that under section 161 of the Cr.P.C. statements, both had supported the occurrence. So even if declared hostile, their evidence as to the fact of occurrence, during investigation stands supported by the I.O. So appellants counsel argument that these independent witnesses should be believed is not possible. I have also gone through the evidence of the doctor or P.W.9. So even if declared hostile, their evidence as to the fact of occurrence, during investigation stands supported by the I.O. So appellants counsel argument that these independent witnesses should be believed is not possible. I have also gone through the evidence of the doctor or P.W.9. This has been strongly been relied upon by the appellant to state that rape and also offence under section 376 /511 of the IPC did not take place. While from the evidence of the doctor, it can be concluded that rape did not take place, it cannot be concluded on her evidence alone that offence under section 376 / 511 did not take place. I have also noted what the I.O. or P.W. 8, Dhaneshwar Rabidas has deposed and in reiteration it is said that he had examined the aforesaid witnesses, including P.W. 5 and P.W. 7, who had also supported the prosecution case. Hence, the claim by the appellant's counsel that the independent witnesses P.W. 5 and P.W. 7 have turned hostile and not supported the prosecution case may not be of much good to them. The I.O. has also deposed that he had also inspected the place of occurrence and after finding the occurrence true, submitted charge sheet against the accused, or herein appellant Vijay Munda. (d) I have also gone through the judgment in Bharwada Bhoginbhai Hirjibhai(supra) which, though is a case of reduced sentence, for the offence under section 376/511 IPC, does not help the appellant as far as minor discrepancy go. The Hon'ble Apex Court observed therein as follows:- “6. Discrepancies which do not go to the root of the matter and shake the basic version of the witnesses therefore cannot be annexed with undue importance. More so when the all important 'probabilities factor' echoes in favour of the version narrated by the witnesses.” (e) further in the case on hand, appellant's counsel has argued that section 376 and even section 376/511 is not made out, particularly because, there is no corroboration. For the offence under section 376 IPC corroboration by the doctor's report and opinion would have mattered. In the case cited by the appellants, the conviction in the facts and circumstances of the case was under section 376/511 of the Indian Penal Code and in this regard was similar to the case on hand. For the offence under section 376 IPC corroboration by the doctor's report and opinion would have mattered. In the case cited by the appellants, the conviction in the facts and circumstances of the case was under section 376/511 of the Indian Penal Code and in this regard was similar to the case on hand. The Apex Court in Bharwada Bhoginbhai Hirjibhai case (Supra) observed in para-11 as follows:- “1…. On principle the evidence of a victim of sexual assault stands on par with evidence of an injured witness. Just as a witness who has sustained an injury(which is not shown or believed to be self inflicted) is the best witness in the sense that he is least likely to exculpate the real offender, the evidence of a victim of a sex offence is entitled to great weight, absence of corroboration notwithstanding. And while corroboration in the form of eye witness account of an independent witness may often be forthcoming in physical assault cases, such evidence can not be expected in sex offences, having regard to the very nature of the offence. It would therefore be adding insult to injury to insist on corroboration….” 15. Thus, having gone through the records of the case, the arguments of both counsels and for my aforesaid reasonings, I am not inclined to acquit the appellant, but hold the appellant Vijay Munda, guilty and sustain the judgment of conviction in S.T. Case No. 660 of 2006 dated 23.06.2009 passed by the learned court below. Regarding sentencing, I have noted the judgment and sentence cited in Bharwada Bhoginbhai Hirjibhai case (supra). In that case the sentence imposed was of 2 and ½ years and reduced to 15 months. In the case on hand sentence includes 5 years R.I. of which he has spent around 2 years in custody. 16. I note also that it is more than ten years from 01.04.2006, which is the date of occurrence. In the aforesaid facts and circumstances and reasonings and noting that appellant was at the time of occurrence of the tender age of 18 years, and probably immature, I reduce the sentence to two and a half years, the period of custody under gone will be set off against the reduced sentence. Though, the sentence is reduced as indicated herein, the sentence regarding fine and its default remains intact. Though, the sentence is reduced as indicated herein, the sentence regarding fine and its default remains intact. The successor or concerned court is directed to take necessary steps in accordance with law. His bail bond is cancelled. Accordingly, this appeal is dismissed with conviction being upheld, with modification in sentence.