JUDGMENT : Anil Kumar Ojha, J. Heard Sri Shyamu Shukla, learned counsel for the appellant, Sri Rupak Chaubey, learned A.G.A. for the State and perused the records. 2. Challenge in this criminal appeal is the judgment and order dated 19.6.2015 passed by Additional Sessions Judge, Court No. 5, Ghazipur in Special Criminal Case No. 32 of 2014 (State v. Sarvjeet @ Shashi Kapoor) arising out of Case Crime No. 213 of 2014 under Sections 376, 323 I.P.C. and 3/4 P.O.C.S.O. Act, P.S.-Bhawarkol, District-Ghazipur, whereby the learned Additional Sessions Judge, Court No. 5, Ghazipur has convicted appellant Sarvjeet @ Shashi Kapoor under Section 376 I.P.C read with Section 4 P.O.C.S.O. Act and sentenced him 10 years imprisonment and Rs. 10,000/- fine; under Section 323 I.P.C., one year imprisonment. In case of default in payment of fine, six months additional imprisonment has been awarded. Above sentences have been ordered to run concurrently. 3. Tersely put the prosecution case is that complainant Shailendra Ram lodged an F.I.R. on 3.5.2014 at 11:15 hours at P.S.- Bhawarkol, District-Ghazipur stating therein that on 2.5.2014 at about 7:00 hours in the evening when complainant had gone out for labour work and his wife had gone to answer the nature's call, appellant Sarvjeet@Shashi Kapoor was committing rape with the complainant's daughter aged about 7/8 years by putting cloth in her mouth. At that time, the mother of victim entered the house and saw that he was committing rape with her daughter. Then victim started crying. Hearing the noise, witnesses Mahendra Ram S/o. Ram Tahal and Shyam Lal Ram S/o. Devanram reached at the spot. Appellant Sarvjeet @ Shashi Kapoor S/o. Bhikhari Ram escaped from the spot by pushing the wife of complainant. Complainant's wife fell down and sustained injury on her head. Complainant Shailendra Ram submitted a written report in the police station Bhawarkol, District-Ghazipur. 4. A case was registered against the appellant Sarvjeet @ Shashi Kapoor in Case Crime No. 213 of 2014 under Sections 376, 323 I.P.C. and 3/4 P.O.C.S.O. Act, P.S.- Bhawarkol, District-Ghazipur. 5. The Investigation Officer took the one peace of lower (Paijama) of the victim, which the victim had worn at the time of incident and prepared recovery memo Ext. Ka-2. The Investigating Officer took one underwear, one pant and one shirt of the appellant and prepared recovery memo Ext. Ka-9. 5. The Investigation Officer took the one peace of lower (Paijama) of the victim, which the victim had worn at the time of incident and prepared recovery memo Ext. Ka-2. The Investigating Officer took one underwear, one pant and one shirt of the appellant and prepared recovery memo Ext. Ka-9. Statement of the victim under Section 164 Cr.P.C. was recorded by Judicial Magistrate, Ghazipur on 8.5.2014. Injured Premsheela was got medically examined and injury report Ext. Ka-7 was prepared. Medical examination of the injured was done. Victim was also medically examined and injury report Ext. Ka-4 was prepared. Investigating Officer recorded the statement of victim and other witnesses under Section 161 Cr.P.C. and after completion of investigation, submitted charge-sheet against appellant Sarvjeet @ Shashi Kapoor in Case Crime No. 213 of 2014 under Section 376, 323 I.P.C. and 3/4 P.O.C.S.O. Act. Learned lower Court took cognizance in the matter on 11.6.2014. The Additional Sessions Judge, Court No. 5, Ghazipur charged the appellant under Section 376, 323 I.P.C. and 3/4 P.O.C.S.O. Act. Appellant denied the charges and claimed trial. 6. Prosecution was directed to adduce evidence in support of the prosecution case. Statements of P.W.-1 Shailendra Ram, P.W.-2 Premsheela victim's mother, P.W.-3 victim, P.W.-4 Dr. Vinita, P.W.-5 Dr. Umesh Kumar, P.W.-6 Sub-Inspector Ram Singh, P.W.-7 Head Constable Anirudh Rai, P.W.-8 Constable Nawasi Abeeda Khatoon, P.W.-9 Mansa Yadav X-ray technician,were recorded. Prosecution concluded the evidence. Thereafter, statement of appellant Sarvjeet @ Shashi Kapoor under Section 313 Cr.P.C. was recorded. Appellant denied the evidence and said that he has been falsely implicated owing to the enmity. He further submitted that police has submitted forged report. After hearing the prosecution and defence, learned Additional Sessions Judge, Court No. 5, Ghazipur convicted and sentence the appellant Sarvjeet @ Shashi Kapoor on 19.6.2015 as stated above in the aforesaid case crime. 7. Learned counsel for the appellant submitted that witnesses named in the First Information Report Mahendra Ram S/o. Ram Tahal and Shyam Lal Ram S/o. Devanram have not been examined. There is no independent witness of the alleged incident. P.W.-1 Shailendra Ram, P.W.-2 Premsheela and P.W.-3 victim, are interested and partisan witnesses. There is contradiction between medical and oral evidence with regard to injury of victim's mother Premsheela. Delay in lodging the F.I.R. has not been explained. Prosecution has not been able to establish its case beyond reasonable doubt. There is no independent witness of the alleged incident. P.W.-1 Shailendra Ram, P.W.-2 Premsheela and P.W.-3 victim, are interested and partisan witnesses. There is contradiction between medical and oral evidence with regard to injury of victim's mother Premsheela. Delay in lodging the F.I.R. has not been explained. Prosecution has not been able to establish its case beyond reasonable doubt. Appellant has been falsely implicated in the present case owing to the village factionalism and political rivalry. Appellant is entitled to benefit of doubt. Appellant be acquitted of charges under Sections 376, 323 I.P.C. and 3/4 P.O.C.S.O. Act. Learned counsel for the appellant further submitted that appellant is in jail since 4.5.2014 his detention is more than 7 years. He lastly submitted that lenient view should be taken while awarding sentence. Appellant should be released from jail considering him undergone. 8. Per contra, learned A.G.A. countered the above arguments and submitted that there is no contradiction between medical and oral evidence. The evidence of victim is reliable and consistent. Evidence of witnesses P.W.-1 Shailendra Ram and P.W.-2 Premsheela are natural and trustworthy. Any fact can be proved by a solitary evidence. There was no need to examine the witnesses named in the F.I.R. The prosecution has fully established its case beyond reasonable doubt. Appeal has no merits and should be dismissed. 9. Incident is said to have taken place on 2.5.2014 at about 7 hours in the evening. The distance of police station from the place of occurrence is 13 kilometres north east. The F.I.R. of the incident was lodged on 3.5.2014 at 11:50 hours. Thus, F.I.R. of the incident was lodged nearly after 16 hours delay of the incident at the police station Bhawarkol which is 13 Kilometres away from the place of occurrence. The complainant belongs to the village background and labour class. In the facts and circumstances, the veracity of the F.I.R. cannot be doubted. Accordingly, it is held that F.I.R. is genuine. 10. P.W.-1 Shailendra Ram, informant of the case, has lodged the F.I.R. of the incident at police station Bhawarkol. P.W.-1 Shailendra Ram has proved Ext. Ka-1. P.W.-1 Shailendra Ram is not the eye-witness. 11. P.W.-2 Premsheela is the eye-witness of alleged incident. She has supported the prosecution case. Accordingly, it is held that F.I.R. is genuine. 10. P.W.-1 Shailendra Ram, informant of the case, has lodged the F.I.R. of the incident at police station Bhawarkol. P.W.-1 Shailendra Ram has proved Ext. Ka-1. P.W.-1 Shailendra Ram is not the eye-witness. 11. P.W.-2 Premsheela is the eye-witness of alleged incident. She has supported the prosecution case. She has categorically stated in her examination-in-chief that while she was coming back to her house after answering the nature's call, she witnessed that the appellant Sarvjeet @ Shashi Kapoor was committing rape with her daughter. She started crying and tried to catch him. But, appellant fled by pushing her. She fell down and sustained injuries on her head. Defence cross-examined this witness extensively but there is no material contradiction in her statement. Coming back to ones own house after answering the nature's call in the evening, is the natural and probable conduct of the witness. On careful consideration, it is held that evidence of P.W.-2 is natural and probable. 12. P.W.-3 is the star witness of this case. P.W.-3 is the victim. She has stated in her evidence/examination-in-chief, at page 6 & 7 of the paper book that the appellant Sarvjeet @ Shashi Kapoor belongs to her village and had committed wrongful act with her. Time was 7:00 in the evening. At that time, her mother and father were not in the house. She was alone in the house, at the time of committing wrongful act, Sarvjeet @ Shashi Kapoor put cloth in her mouth due to which, she could not cry. When her mother arrived in the house, appellant Sarvjeet @ Shashi Kapoor was committing wrongful act with her. When her mother cried and tried to catch him, he pushed her mother and fled from there. Her mother fell down due to push given by Sarvjeet @ Shashi Kapoor. In the incident, her mother sustained injury on her head. Defense cross-examined this witness at length. But could not shake the credibility of the evidence. It is pertinent to note that victim is a child witness. Her age at the time of incident was 7 to 8 years. Evidence of P.W.-3 is probable and credible. 13. Learned counsel for the appellant submitted that P.W.-1 Shailendra Ram, P.W.-2 Premsheela and P.W.-3 victim all the three witnesses are related to each other. It is pertinent to note that victim is a child witness. Her age at the time of incident was 7 to 8 years. Evidence of P.W.-3 is probable and credible. 13. Learned counsel for the appellant submitted that P.W.-1 Shailendra Ram, P.W.-2 Premsheela and P.W.-3 victim all the three witnesses are related to each other. P.W.-1 Shailendra Ram is father of victim whereas P.W.-2 is the mother of victim. Learned counsel for the appellant submitted that all the above three witnesses are interested and partisan witnesses. Relying on their testimony, it would be unsafe to convict the appellant. The above contention of learned counsel for the appellant is not legally sustainable. In Dahari and others v. State of U.P., AIR (2012) 10 SCC 256 , the Hon. Apex Court has held as follows : ''It is settled legal proposition that the evidence of closely related witnesses is required to be carefully scrutinised and appreciated before any conclusion is made to rest upon it, regarding the convict/accused in a given case. In case the evidence has a ring of truth to it, is cogent, credible and trustworthy, it can, and certainly should, be relied upon.'' In Bhagwan Jagannath Markad v. State of Maharashtra, (2016) 10 SCC 537 , the Hon. Apex Court has held as follows : ''We may also refer to the judgment of this Court in Masalti v. State of U.P., to the effect that the evidence of interested partisan witnesses though required to be carefully weighted, the same could not be discredited mechanically. When a crowd of unlawful assembly commits an offence, it is often not possible to accurately describe the part played by each of the assailants. Though the appreciation of evidence in such cases may be a difficult task, the Court has to perform its duty of sifting the evidence carefully.'' So far as facts of the present case are concerned, the evidence of P.W.-2 Premsheela and evidence of P.W.-3 victim is trustworthy and reliable. On careful examination of evidence of P.W.-2 Premsheela and P.W.-3 victim, it is held that their evidence is reliable and trustworthy. Evidence of P.W.-2 Premsheela and P.W.-3 victim cannot be discarded merely on the ground that they are related to each other and interested witnesses. Accordingly, the contention of learned counsel for the appellant is rejected. 14. On careful examination of evidence of P.W.-2 Premsheela and P.W.-3 victim, it is held that their evidence is reliable and trustworthy. Evidence of P.W.-2 Premsheela and P.W.-3 victim cannot be discarded merely on the ground that they are related to each other and interested witnesses. Accordingly, the contention of learned counsel for the appellant is rejected. 14. Learned counsel for the appellant submitted that witnesses Mahendra Ram & Shyam Lal who have been named in the F.I.R., have not been examined by the prosecution. Moreover, there is no independent witness to corroborate the prosecution story. I do not agree with the above contention of learned counsel for the appellant. Non examination of eye-witnesses cannot be ground to reject the testimony of victim and witnesses. The Hon. Apex has held that prosecution case cannot be doubted on the ground of non examination of independent witnesses. In Sadhu Saran Singh v. State ofUttar Pradesh and others, (2016) 4 SCC 357 , the Hon. Apex Court has held as follows : ''As far as the non-examination of any other independent witness is concerned, there is no doubt that the prosecution has not been able to produce any independent witness. But, the prosecution case cannot be doubted on this ground alone. In these days, civilized people are generally insensitive to come forward to give any statement in respect of any criminal offence. Unless it is inevitable, people normally keep away from the Court as they feel it distressing and stressful. Though this kind of human behaviour is indeed unfortunate, but it is a normal phenomena. We cannot ignore this handicap of the investigating agency in discharging their duty. We cannot derail the entire case on the mere ground of absence of independent witness as long as the evidence of the eye-witness, though interested, is trustworthy.'' In Mukesh v. State for NCT of Dehli and others, AIR 2017 SC 2161 , Bhagwan Jagannath Markad v. State of Maharashtra, (2016) 10 SCC 537 , Babu Ram v. State of U.P., 2002 (2) JIC 649 (SC), may also be cited on the above point. 15. Learned counsel for the appellant submitted that there is contradiction between medical and oral evidence. So appellant is entitled to benefit of doubt. I do not agree with the above contention of learned counsel for the appellant. 15. Learned counsel for the appellant submitted that there is contradiction between medical and oral evidence. So appellant is entitled to benefit of doubt. I do not agree with the above contention of learned counsel for the appellant. In Thaman Kumar v. State of Union Territory of Chandigarh, 2003 (3) SCR 1190 , the Hon. Apex Court has held as follows : ''The conflict between oral testimony and medical evidence can be of varied dimensions and shapes. There may be a case where there is total absence of injuries which are normally caused by a particular person. There is another category where though the injuries found on the victim are of the type which are possible by the weapon of assault, but the size and dimension of the injuries do not exactly tally with the size and dimension of the weapon. The third category can be where the injuries found on the victim are such which are normally caused by the weapon of assault but they are not found on that portion of the body where they are deposed to have been caused by the eye-witnesses. The same kind of inference cannot be drawn in the three categories of apparent conflict in oral and medical evidence enumerated above. In the first category it may legitimately be inferred that the oral evidence regarding assault having been made from a particular weapon is not truthful. However, in the second and third category no such inference can straightway be drawn. The manner and method of assault, the position of the victim, the resistance offered by him, the opportunity available to the witnesses to see the occurrence like their distance, presence of light and many other similar factors will have to be taken into consideration in judging the reliability of ocular testimony.'' So far as facts of the present case are concerned, there is no contradiction between oral and medical evidence because Dr. Umesh Kumar P.W.-5 in his statement has stated that injury of injured Premsheela may be caused due to fall on the ground. P.W.-2 Premsheela has deposed before the Court that appellant Sarvjeet @ Shashi Kapoor pushed her and fled from there. Due to which, she fell on the ground. Umesh Kumar P.W.-5 in his statement has stated that injury of injured Premsheela may be caused due to fall on the ground. P.W.-2 Premsheela has deposed before the Court that appellant Sarvjeet @ Shashi Kapoor pushed her and fled from there. Due to which, she fell on the ground. P.W.-5 Umesh Kumar conducted the medico-legal examination of P.W.-2 Premsheela and found following injuries on her person : (i) A Reddish Blue contusion, 3cm X 1cm, own left side of skull, 7 cm above left-ear. P.W.-5 Dr. Umesh Kumar has given opinion that injury was simple in nature, caused by hard & blunt object. This injury maybe caused due to fall on the ground. Thus, there is no contradiction or inconsistency between medical and oral evidence rather medical evidence corroborates the oral evidence of P.W.-2 Premsheela. 16. Learned counsel for the appellant drew attention of the Court towards the medico-legal report of the victim Ext. Ka-6, wherein it is written that there is no sign of recent vaginal intercourse as slide is negative for spermatozoa. Hence, rape with the victim is not proved. I am unable to agree with the above contention of learned counsel for the appellant because at page 12 of the paper book in the examination report of victim, it is written that hymen was torn at 6:00 O'clock, swollen red colour. At page 16 of the paper book, it has been mentioned that, according to physical examination radiological report of the radiologist, the victim is about 7 years. There is sign of vaginal penetration because hymen is torn. P.W.-4 Dr. Vinita Jaiswal has proved the medical examination report of the victim. She has given evidence that there is sign of vaginal penetration because hymen was torn. P.W.-3 victim has tendered evidence that appellant Sarvjeet @ Shashi Kapoor committed rape with her. From the above analysis, it is clear that there is corroboration of oral evidence of P.W.-3 victim with medical evidence. There is no contradiction between oral evidence of P.W.3 victim and P.W.-4 Dr. Vinita Jaiswal. Accordingly, the contention of learned counsel for the appellant with regard to contradiction between oral and medical evidence is rejected. 17. Learned counsel for the appellant lastly submitted that appellant is detained since 4.5.2014 and is languishing in jail since more than 7 years. Keeping in view his detention period, lenient view should be taken. Vinita Jaiswal. Accordingly, the contention of learned counsel for the appellant with regard to contradiction between oral and medical evidence is rejected. 17. Learned counsel for the appellant lastly submitted that appellant is detained since 4.5.2014 and is languishing in jail since more than 7 years. Keeping in view his detention period, lenient view should be taken. Appellant should be released from jail considering him undergone. From the evidence on file, it is established beyond reasonable doubt that appellant Sarvjeet @ Shashi Kapoor committed rape with a girl aged about 7 to 8 years by putting cloth in her mouth. Perpetrator of such a heinous and gruesome crime deserves no leniency. Taking lenient view with such an offender would be mis-carriage of justice. Learned Additional Sessions Judge, Court No. 5, Ghazipur has awarded appellant Sarvjeet @ Shashi Kapoor 10 years rigorous imprisonment and Rs. 10,000/- fine which appears to be appropriate punishment. The upshot of the above discussion is that prosecution has established its case beyond reasonable doubt against appellant Sarvjeet @ Shashi Kapoor by cogent, credible and trustworthy evidence. Appeal lacks merit and is liable to be dismissed. Appeal is, accordingly, dismissed. Judgment be certified to the lower Court for compliance.