JUDGMENT : Appellant stands convicted under Section 376(2)(f) of the Indian Penal Code and sentenced to undergo Rigorous Imprisonment for life with hard labour and fine of Rs. 2,000/-, in default whereof, to further undergo 6 months additional Rigorous Imprisonment by the impugned judgment dated 3rd July, 2013 passed in Sessions Trial Case No. 191 of 2012 by the learned Court of District & Additional Sessions Judge at Ghatsila. 2. Informant is the mother, who inter alia alleged that on 11th December, 2011 at 5 p.m in the evening, she had gone to purchase clothes of her daughter at Musaboni market. She returned to her home at around 7:00 p.m after purchase of the clothes and saw that her daughter aged 6 years was crying and blood was oozing out of her vagina. On being asked, she stated that around 6:00 p.m she was playing with other children of the village, when Babun Chacha came and took her towards the house and opened her pant and did wrong acts, as a result of which, blood started oozing out of her vagina and she went to her home crying. Informant with her daughter went to the house of Babun and asked him about the occurrence. Babun abused her and ousted her from his house. She took her daughter to Primary Health Centre, Musaboni and informed her husband. Her husband does work of labourer at Musaboni Potato shop. The doctor referred her for better treatment to MGM Hospital at Jamshedpur. She has alleged that Debashish Chakarborty @ Babun Chakarborty aged 20 years, son of Madan Mohan Chakraborty, village- Badiya, P.S.- Musaboni, District- East Singhbhum induced her daughter and committed rape upon her, as a result of which, blood started coming out of her vagina and her condition is serious. 3. After submission of the charge-sheet, charges were framed against the sole accused under Section 376(2)(f) of the Indian Penal Code and read over and explained to him in Hindi to which he denied and claimed to be tried. 4. During the course of trial, prosecution adduced the following witnesses. P.W.-1 Shishir Das, P.W.-2 Thakur Prasad, P.W.-3 Sanjeev Das, P.W.-4 Salmuni Patar, P.W.-5 Sujit Kumar Patar, P.W.-6 victim (name withheld), P.W.-7 Arun Kumar Dubey and P.W.-8 Dr. Rita Kumari. On closure of the evidence of the prosecution, statement of the accused was recorded under Section 313 of the Cr. 4. During the course of trial, prosecution adduced the following witnesses. P.W.-1 Shishir Das, P.W.-2 Thakur Prasad, P.W.-3 Sanjeev Das, P.W.-4 Salmuni Patar, P.W.-5 Sujit Kumar Patar, P.W.-6 victim (name withheld), P.W.-7 Arun Kumar Dubey and P.W.-8 Dr. Rita Kumari. On closure of the evidence of the prosecution, statement of the accused was recorded under Section 313 of the Cr. P. C. Defence adduced two witnesses D.W. -1 Anjali Singh and D.W.-2 Anupma Dhal. 5. Learned trial court upon appreciation of the material evidence on record, came to the conclusion that the prosecution had been able to prove their case beyond all reasonable doubts. It held that the manner of occurrence is clear and true and place of occurrence has been proved. The statement of the victim (P.W.6), her mother, (P.W.4), doctor (P.W.8), statement of the Investigating Officer (P.W.7) together with the medical report established the charge against the appellant. As such, he was guilty of the offence under Section 376(2)(f) of the Indian Penal Code. 6. Learned Senior Counsel for the appellant has questioned the findings of the learned trial court on the basis of the following submissions: The victim girl was 6 years of age on the alleged date of occurrence 11th December, 2011, which allegedly took place on Peeraha (Chabutra) i.e., Veranda between 5:00-6:00 p.m. The F.I.R was lodged at about 9:00-10:00 p.m. The Fardbeyan was recorded at about 9:00-10:00 p.m. at Primary Health Center at Musaboni on the same date by P.W. 7 Officer-in-charge of Musaboni Police Station. On the same date, requisition was sent for medical examination of the injured girl to MGM Medical College, Jamshedpur. The accused-appellant was arrested on the same night. The Medical Officer (P.W.8) examined the injured girl at 12:00 p.m on 12th December, 2012. No explanation has been offered as to what happened between late night on 11th December, 2011 and 12th December, 2011. Medical report speaks of cut mark on left knee, cut mark on left ankle of the injured girl, rupture of hymen. No spermatozoa was seen from vaginal swab. There was bleeding from vagina. Age of the girl, as per X-ray report, was 6 years plus and minus. The Medical Officer (P.W.8) opined that rupture of hymen and bleeding could be either due to attempt of sexual intercourse or injury into the vagina (Ext.-3). No mark of violence was found on her body. There was bleeding from vagina. Age of the girl, as per X-ray report, was 6 years plus and minus. The Medical Officer (P.W.8) opined that rupture of hymen and bleeding could be either due to attempt of sexual intercourse or injury into the vagina (Ext.-3). No mark of violence was found on her body. Vaginal rupture may be caused upper to down, on fall, accident just like a cycle, due to the assault on vagina. Rupture may be caused by either wood or in any manner. P.W.4, has, in her cross examination, clearly stated that she had not seen the incidence as she had gone to market. It was narrated to her by her daughter. She further stated at Para-9 that Mohalla where she lives is quite big and children of the Mohalla (Colony) were playing together at the place. Her daughter was also playing along with other children on the date of occurrence. Anjali and Annu were playing with her daughter during that time. Anjali and Annu however on being asked denied to speak. She further stated at Para-11 that when she had gone to the market then her daughter was playing alone, rest of the members were not there; in the vicinity are the houses of her elder brother-in-law, elder brother and all of them have children. She had not gone to the market after telling them to look after the child. When she returned from market at 7:00 p.m. she saw blood oozing out of her vagina. Her daughter narrated that she had been taken by Babun to the house. She further states that when she came back from her house, then she found her at the same place where her daughter was playing. When the accused had caught hold of her, the other two girls fled away. When the accused had caught hold of her, nobody was there. At para 16 of her cross-examination, she had stated that there is a Peeraha (Chabutra) i.e., Veranda outside the house where her daughter was raped. This is by the side of the road. At para-18 she stated that in front of the place of occurrence, is the house of Dasrath and also of Thakur, Master and Vikash. All of them lived with their family. At para 19 she stated that blood was lying on the Peeraha (Chabutra) i.e., Veranda. She had shown it to the police. At para-18 she stated that in front of the place of occurrence, is the house of Dasrath and also of Thakur, Master and Vikash. All of them lived with their family. At para 19 she stated that blood was lying on the Peeraha (Chabutra) i.e., Veranda. She had shown it to the police. Apart from that, nothing was fallen there. There was no injury on the body of the girl. Blood was oozing from her private part and there was sign of injury. White like substance was also there. On being asked, children of the vicinity including Thakur Das and his children started hiding and did not give any answer. There were 10-12 houses where the incidence occurred. Her daughter was playing along with Anjali and Annu. At para 22 she stated that her nephew Santnu had seen the occurrence and had chased the accused, who thereafter ran away. She had told the name of Santnu to the police. At para 26 she stated that she knew the mother of the accused, who runs a society named Jivan Jyoti where women folk of locality pay Rs. 20/-. She had also given Rs. 20/-. Loans are advanced out of money deposited. She denied having asked for loan of Rs. 1 lac from it. 7. Learned Senior Counsel for the appellant submits that P.W.5, father of the girl was not at the place of occurrence. He had only heard what was told to him on his return. His statements at Paras- 9, 12 and 14 have been referred to. He denied that his wife had asked for Rs. 1 lac as a loan. Learned counsel submits that the statement of P.W.-6 (name of minor withheld), at para-1 does not make specific mention of any object being allegedly inserted by the accused. It does not show that an attempt of rape was made. She had stated that the incidence occurred outside on the Peeraha (Chabutra) i.e., Veranda, Anjali and Annu were playing along with her. They were slightly elder to her. She had fallen unconscious due to pain. Anjali and Annu had seen the occurrence. There was no injury on her body. She was wearing a pant and jama on that date. She further stated at Para-11 that the accused committed illegal act on the Peeraha (Chabutra) i.e., Veranda, which is adjacent to the road. They were slightly elder to her. She had fallen unconscious due to pain. Anjali and Annu had seen the occurrence. There was no injury on her body. She was wearing a pant and jama on that date. She further stated at Para-11 that the accused committed illegal act on the Peeraha (Chabutra) i.e., Veranda, which is adjacent to the road. Nobody was going across on the road at that time. She further stated at Para-15 that her mother and mother of the accused are at inimical terms. She denied the suggestion that no illegal act was committed upon her and that she incurred injury on her private part due to fall. Reference is made to the statement of P.W. 7, the Investigating Officer, who adduced Fardbeyan as Ext.-1 and F.I.R as Ext. -2 prepared and instituted by him. P.W.7, Investigating Officer at para 5 mentioned about the houses of Thakur Prasad in front of which the victim along with other girls were playing. He had also described the place of occurrence. He had recorded the statement of independent witnesses, P.W. 1, Shishir Das, P.W.2, Thakur Prasad and P.W. -3, Sanjeev Das on the place of occurrence. At Para-12 of his cross examination, he referred to the statement of the victim recorded in the case diary, where she alleged that the accused had opened her pant and indulged in illegal act which had caused blood to ooze out. She had also stated that the accused had washed her private part. He had not examined her private part. At Para-16, he stated that he had not seized bloodstained clothes. Further at Para-17, he had stated that he had not found any blood at the place of occurrence. He had not seized bloodstained soil from the place of occurrence or any broken articles like bangles. He had not searched for the children with whom she was playing. She had not disclosed the name of any children to him. He denied having told that the nephew of the informant had seen the occurrence. He had not inquired as to whether there was enmity between the parties. 8. Learned Senior Counsel has also placed the report of the Medical Officer as taken note of in the above paragraphs. She had not disclosed the name of any children to him. He denied having told that the nephew of the informant had seen the occurrence. He had not inquired as to whether there was enmity between the parties. 8. Learned Senior Counsel has also placed the report of the Medical Officer as taken note of in the above paragraphs. It is further submitted on behalf of the appellant that though there was a duty upon the prosecution to adduce the two girls, Anjali and Annu in support of the prosecution case, but they failed to do so, whereas these two girls were adduced as defence witnesses. D.W. 1 Anjali and D.W. 2 Anupma Dhal, both aged 7 years. D.W. 1 had recognized the place of occurrence shown through photographs i.e., Peeraha (Chabutra) i.e., Veranda was outside the house of Anupma Dhal. They were playing around 5:00 p.m. There is a pucca road on which people were going and coming. At Para-2, she had clearly stated that the victim fell while playing on the Peeraha (Chabutra) i.e., Veranda upon a log of wood, which caused injury to the parts from where toilet is done. She further stated at Para-3 that lot of people were there when they were playing. There is a pucca road on which there was no one. She stated at para 4 that the victim got injuries from 6 inch log of wood. D.W. 2 also stated that the victim fell down upon the wood and got injured, thereafter they went back to their houses. In her cross-examination, she stated that it was 5:00 pm and dark. Two photographs were identified as X and X/1 by D.W.1. 9. Learned counsel for the appellant submits that P.Ws. 1, 2 and 3, who were independent witnesses have turned hostile and not supported the case of the prosecution. The evidence on record has been minutely dissected by learned senior counsel for the appellant in support of his submission. He states that failure to produce the two girls Anjali and Annu and also the nephew of the informant, who had seen the occurrence as per statement of P.W.4 herself, was inexplicable. On failure to produce vital prosecution witnesses by the prosecution, who had allegedly seen the occurrence adverse inference under Section 114(g) of the Evidence Act should be drawn. He states that failure to produce the two girls Anjali and Annu and also the nephew of the informant, who had seen the occurrence as per statement of P.W.4 herself, was inexplicable. On failure to produce vital prosecution witnesses by the prosecution, who had allegedly seen the occurrence adverse inference under Section 114(g) of the Evidence Act should be drawn. Further, the informant had referred to her son aged 10 years also in the F.I.R apart from the victim girl, but the testimony of the informant is completely silent on that. The son of the informant who was aged 10 years and elder to the victim could have been a vital evidence to lend support to the prosecution case, who for unexplained reasons, had not been examined. Learned trial court had failed to test the competency of child witness P.W 6, the victim girl. No question to test her competency were asked by the learned trial court. The incidence has been allegedly committed on Peeraha (Chabutra) i.e., Veranda on the outside the house adjacent to a public road and that too at around 6:00 p.m. As per the statement of the P.Ws, persons usually were moving from either side. Therefore, the probability of such an incidence at that point of time in the open road is highly suspicious. Though P.W. 4, informant, has clearly stated in her deposition that the house of her elder brother in law and elder brother was there and there were children in their house, but none of them have been examined. It is not a case where place of occurrence is a lonely place and the time of occurrence also is not such. It is by the side of the public road, anyone moving could have noticed the incidence. 10. P.W. 6, the victim, had, in her deposition at para 15, clearly stated that there was inimical terms between her mother and the mother of the accused. This has to be considered in the background of the statement made by the informant that the mother of the accused was running a society in which women folk of the village used to pay Rs. 20/- out of which, loans were disbursed to needy persons. This went to show the motive to falsely implicate the appellant of such a serious charge. 20/- out of which, loans were disbursed to needy persons. This went to show the motive to falsely implicate the appellant of such a serious charge. Learned counsel has further questioned the conduct of the Investigating Officer in not subjecting the accused to medical examination, who was arrested on the very night of the occurrence. The Investigating Officer-P.W. 7 had deliberately not seized any undergarment which could have been examined in the Forensic Lab to corroborate the prosecution story. The medical examination of the accused immediately after arrest could have shown whether he was at all responsible for the alleged act of rape. He has referred to the statement of the victim girl (P.W. 6), who at para 9, has categorically stated that there was no injury on any other part of the body, whereas P.W. 8, Medical Officer has, in his deposition, stated about marks of wound in the ankle. However, she had also stated that there was no mark of violence. Learned counsel for the appellant submits that the entire accusation against the appellant is manufactured with an intention to implicate him due to existence of previous enmity between the informant and the mother of the accused. The injuries sustained on the victim girl may have been caused by fall on wood log as is also deposed by the DW-1 and DW-2, the children, who were playing with her. No spermatozoa was found from the swab on medical examination. P.W. 8, Medical Officer in her opinion also stated that vaginal rupture may be caused up or down, on fall, accident just like a cycle due to the assault on vagina. The prosecution story therefore does not have any legs to stand. 11. On the contrary, the defence had a very probable story of the incidence. The appellant has been erroneously convicted by the learned trial court and is suffering incarceration since 12th December, 2011 till date. The sentence of rigorous imprisonment for life is also wholly disproportionate. As such, the impugned judgment deserves to be set aside. 12. Learned A.P.P. submits that it is a settled principle of law that if the testimony of the victim of rape is sound, conviction can be recorded only on the basis of the testimony of the prosecutrix. The Apex Court has also laid down that it is a rule of prudence to test the credibility of a child witness. 12. Learned A.P.P. submits that it is a settled principle of law that if the testimony of the victim of rape is sound, conviction can be recorded only on the basis of the testimony of the prosecutrix. The Apex Court has also laid down that it is a rule of prudence to test the credibility of a child witness. However, even in its absence, if the testimony stands the test of credibility and the child witness is not shaken during examination, there is no reason to discard the testimony of the child witness. She has relied upon a case in the case of State of Rajasthan vs. Viajiram reported in 1968 Cri.L.J. 270 on the principles governing the application of Section 118 of the Evidence Act. Learned counsel submits that the statement of the victim girl is firm and unshaken during cross-examination. It clearly nails the culpability of the accused of the serious charge of rape. The child witness of 6 years would have no reason to falsely implicate the accused. She had truthfully narrated the incidence before the learned court as was also told by her to her mother just after the incidence. Her testimony can also be judged from the point that she has not spoken any inconsistent or motivated statement. She has accepted that two girls Anjali and Annu were playing along with her and had seen the occurrence. She had also stated that there were no other marks of violence on her body. No log of wood was found at the place of occurrence, due to which the defence attributes injuries on her private part. The evidence of DWs, who are also child witnesses, cannot be taken to have demolished the case of the prosecutrix who had suffered the act of rape. P.W. 8, Medical Officer had referred to the wound on ankle as identification mark and rightly opined that there were no other marks of violence on the body. The victim is a girl of 6 years could have hardly made any resistance in the face of a sudden assault by a person much elder in age. P.W. 8, Medical Officer had referred to the wound on ankle as identification mark and rightly opined that there were no other marks of violence on the body. The victim is a girl of 6 years could have hardly made any resistance in the face of a sudden assault by a person much elder in age. The absence of the other children or that of the neighbours would only be taken in the manner that they did not come forward to support the accusation as the mother of the accused was an influential lady running a society to which all the women folk of the village used to contribute money. None examination of the suspect under section 53-A of the Cr. P. C would not dent the prosecution case in the light of the consistent and truthful statement of P.W. 6, victim and the statement of the Medical Officer P.W. 8. No further corroboration was needed. It should be kept in mind that the incidence occurred on 11th December, 2012 in the evening which is a winter evening when it is quite likely that no passerby was present at the time of occurrence. As such, there is no reason to disbelieve the prosecution story and discard the findings of the learned trial court. The conviction recorded is proper in the eye of law on correct appreciation of the entire evidence on record. As such, there is no merit in this appeal. It deserves to be dismissed. 13. We have considered the submission of learned counsel for the parties, gone through the material evidence on record. In a case of such nature where the statement of the prosecutrix, if made in a truthful manner remains unshaken even in cross testimony, it is to be treated as sufficient to hold the accused guilty of the charge of rape. We have examined the statement of P.W. 6 victim with great caution and do not find any reason to hold it as unreliable. The testimony of P.W. 6 as has been discussed in the forgoing paragraphs is unimpeachable. There is no denial of fact that the victim did suffer injury of such nature on her private part which could be caused by rape. The victim girl in her deposition has clearly stated in sufficient detail the manner in which the accused took her away and pounced himself upon her. There is no denial of fact that the victim did suffer injury of such nature on her private part which could be caused by rape. The victim girl in her deposition has clearly stated in sufficient detail the manner in which the accused took her away and pounced himself upon her. She has also truthfully narrated that the two girls D.Ws 1 & 2 immediately ran away. She also had described the place of occurrence as Peeraha (Chabutra) i.e., Veranda i.e., just outside the house adjacent to the main road. There is no inconsistency or discrepancy which could make her testimony suspect. A girl aged 6 years having undergone such a serious injury on her private part, could not be expected to concoct the story of rape for motivated reasons. If her testimony was sound and unshaken and duly supported by the medical evidence of P.W. 8, there is no reason to doubt the complicity of the accused for having caused rape on her. Though the learned trial court failed to put question to P.W. 6, victim girl in order to test her competency as per requirement of section 118 of the Evidence Act, but the manner in which she had deposed and remained unshaken in her cross-examination, rule out any doubt about her competency. Reliance is placed upon the opinion of the Apex Court in the case of Himmat Sukhadeo Wahurwagh and others vs. State of Maharashtra reported in (2009) 6 SCC 712 Para-35, which is quoted hereunder: “35. We endorse the finding of the High Court that Section 118 of the Evidence Act does not preclude a child from being a witness and the only test that is applicable is as to whether the witness understood the sanctity of an oath and the import of the questions that were being put to him. In Nivrutti Pandurang Kokate v. State of Maharashtra it has been observed that Section 118 of the Evidence Act envisages that all persons shall be competent to testify unless the court thinks otherwise.” Reliance is also placed upon the opinion of the Apex Court in the case of Mohd.Kalam vs. State of Bihar reported in (2008) 7 SCC 257 Para 7 and 8. The absence of corroboration by oral testimony or other witnesses like the children who were playing there or the neighbours including the elder brother in law and his children, should not be considered to reject the prosecution story outright. 14. It is common knowledge that on account of societal pressure including that of influence of the accused and his family, independent witnesses do seldom come forward willingly to truthfully state such an incidence. We also do not find that inimical terms, if any, between the informant and the mother of the accused could be the sole motive to hurl such serous charge of rape on the accused in the circumstances when such an injury on the private part of the accused is proved and not manufactured one. The Investigating Officer however has not exercised due diligence in undertaking the Forensic part of the investigation by seizing the bloodstained clothes of the victim and subjecting the accused to medical examination under Section 53-A of the Code of Criminal Procedure. Such a lapse on the part of the Investigating Officer however should not discredit the entire prosecution story if otherwise found trustworthy. The testimony of the mother also has supported the prosecution story originally set up in the F.I.R. which we find no reason to disbelieve. We are satisfied with the findings of conviction recorded by learned trial court. However, at the same time, we are also of the opinion that the sentence of rigorous imprisonment for life on the appellant was rather excessive. The accused had no previous record of such errant and licentious behaviour. The evidence on record also does not show that there was any brutalization on the part of the appellant while committing such act. As such, we are inclined to modify the sentence to rigorous imprisonment for 10 years along with fine, as awarded by the learned trial court. In default of fine, he would have to serve further six months of additional rigorous imprisonment as sentenced by learned trial court. 15. Appeal is accordingly partly allowed by modifying the sentence imposed upon the appellant. Appeal partly allowed.