Brief facts of the prosecution case are that on 27.2.2009 in afternoon at around 3 o'clock, Mangal Giri, Baba of temple of village concerned had raped niece of the first informant Mukesh namely Km.Saroj D/o Shankar Lal r/o Jaanipur Kalan, a minor girl, after calling her in a room of the temple while she was playing alone outside the temple.The Baba, thereafter, fled away.When the informant visited his cousin Smt. Rani's house, he came to know about this occurrence and he further inquired from children and villagers who reported that they had seen the incident.His brother-in-law (father of the victim) had gone to work as labour.He took his niece Saroj-victim smeared in blood to his sister's house from the temple.On the basis of the written report of the Mukesh F.I.R. of the offence u/s 376 IPC was registered against unknown Baba of the temple situated in village Jaanipur Kalan at the police station Shikarpur, Bulandshahar.Initially, this case was investigated by S.S.I. Sri Arjun Singh, thereafter investigation was handed over to Adil Raseed, S.S.I. Shikarpur.During investigation, the victim smeared in blood was sent to the District Hospital Shikarpur by S.S.I. Arjun Singh.Having taken victim's blood stained clothes and Baba's langot into custody, its memo was prepared.Thereafter, the place of occurrence was inspected at the instance of the first informant and site-map was prepared.Thereafter, the investigation was received by S.S.I. Aamil Raseed.Hon'ble Vivek Kumar Singh, J.(Delvered By Hon'ble Vivek Kumar Singh, J.)1. Heard Sri Sarvesh Chandra Mishra, learned Amicus Curiae appearing on behalf of the appellant and Ms. Anjum Haq, Ms. Anita Srivastava, Sri Sagir Ahmad and Sri Gautam Pratap Singh, learned A.G.A. for the State.In order to prove its case following evidences were produced by the prosecution:-Victim Km.Saroj P.W.1 2 Complainant Mukesh P.W.2 3 Con.-512 Ram Shesh Mishra P.W.3 4 S.I. Aamil Raseed P.W.4 5 S.I. Arjun Singh P.W.5 6 Dr. Abhilasha Gupta P.W.6 7 Dr. Vaibhav P.W.7 8 Dr. Madhu Sharma P.W.8 9 Ravindra Singh P.W.9 10 Dr. Pritam Singh P.W.10 Documentary Evidence:-Statement of victim u/s 164 Cr.P.C.Ka-1 2 First Information Report Ex.Ka-2 3 Chik Ex.Ka-3 4 Carbon Copy of G.D.Ka-4 5 Arrest-memo of the accused Ex.Ka-5 6 Charge-sheet Ex.Ka-6 7 Recovery-memo of blood stained clothes Ex.Ka-7 8 Site-map Ex.Ka-8 9 Discharge-slip Ex.Ka-9 10 Medical-Report of the victim Ex.Ka-10 11 Reference-form Ex.Ka-11 12 Reference form of C.M.O.Ka-12 13 Clinical history Ex.After the evidence of the prosecution, statement of the accused was recorded u/s 313 Cr.P.C. in which the accused again denied the charges.To determine this, the following points are considerable, keeping in view the charges levelled by the prosecution on the accused, to dispose off the case:-1- Was the victim minor at the time of incident- if yes, was she an immature girl of under 12 years?In the report/discharge slip Ex.The conclusion of above said analysis is that at the time of the incident the victim was minor girl under 12 years.Point No:-2 As far as this point is concerned, it is a question of fact and for its disposal it would be justifiable to peruse the evidences of prosecution witnesses separately.Prosecution Witness No.1/The victim was examined as PW-1, she was aged about 12 years when she entered in the witness box.The trial court has taken care to ascertain as to whether she was able to understand the questions and able to give rational answer thereof by asking certain questions before recording her statement.After recording that she was a competent witness to depose to the fact, the trial court has proceeded to record her statement.So far as competence and reliability of testimony of a child witness, the law is fairly well settled.In the court, this witness has narrated the incident being of five months ago happened in the afternoon and the place of occurrence being the temple and the accused being the Baba residing in that temple.She has stated on oath that she was taken in the room on the pretext of giving Prasad and there she was raped.I wore my clothes, my clothes got soaked in blood after wearing it.I had received injuries on my vagina.The deposition of this witness U/s 164 Cr.P.C. was recorded before the Magistrate too.When the sealed envelope of statement U/s 164 Cr.P.C. was opened, showed and read over to the witness, she admitted the said statement and has proved it as Ex.Ka-1 stating the thumb impression and signature on it being of her own.This witness/victim has been thoroughly cross-examined.In cross-examination also, she was not shaken rather fully corroborated her statement made in examination-in-chief and stated that she used to go to the temple to play and other children too go for playing.People come there for worship but they used to come in morning, not in afternoon.On the fateful day, she alone had gone to temple for playing.Baba had called her for giving prasad while she was playing outside, but he did not give prasad and took her into the kothari of the temple where nobody was present.On asking, what game she was playing in the temple, she replied that she was playing gintu.The witness was questioned by the learned counsel for the defence that in the statement given under section 164 Cr.P.C., she had stated to the Magistrate about having gone to see barat, whereas now she stated about having gone to play.In reply, the witness clarified her statement that though she had gone to see the barat but by that time the barat had already left.So she went to the temple to play.She has categorically stated that she was striped in the room and her mouth was closed by the Baba on raising alarm.On being questioned by the court whether the door of kothari was open when the Baba put off the clothes, the witness replied that when the Baba took her into the kothari, the door was open and after entering, Baba closed the door.This witness has identified the accused present in court that this was the same Baba and has rebutted the contention that her father visited to Baba.(she) has also proved her statement to the sub-inspector and the fact of being admitted in the hospital after the incident.In her cross-examination, the witness has clearly stated that "Baba Mangal Giri had committed the same bad act with me as told by me.I am not lying rather telling truth".This witness has stated about regaining consciousness in the hospital and has stated that she firstly got consciousness, then she put on the clothes and after wearing clothes, she again went unconscious and then she got consciousness in the hospital.The learned counsel for the defence has contended before the court that this witness has stated that she fell unconscious and thereafter reached home stumbling and on reaching home, she narrated the incident to her mother, whereafter her parents took her to the hospital.But on the contrary in her statement in the Court, she states that she regained consciousness in the hospital, and that if she became conscious in the hospital, how did she reach her home and on this basis, (he) attempted to rebut the credibility of the witness.This question has also been asked by the court to the witness that if she got consciousness in the hospital, how did she go to her home and her reply was that she had gone stumbling in unconscious condition.This witness is very young girl and it clearly appears from her statement that by falling unconscious she means not being fully comprehended and instead not being fully conscious and being in semi-conscious condition.She is an immature girl, even mature witnesses call it fainting when they happen to feel dizzy.Otherwise too, minor contradictions or insignificant discrepancies in the statement of a witness who is otherwise unshaken, are not worth consideration.It is clear that in her examination-in-chief and cross-examination, the witness has not at all deviated on the substantial points i.e. time of the incident and the place, happening of the incident and the accused and therefore, she is totally reliable witness.This witness is complainant and the report regarding the incident has been lodged by him.This witness has also proved the fact of admission of his niece in the hospital and her medical examination.This witness/P.W.-2 was questioned in the cross-examination that when did he reach the village; how come the victim is his niece; when he got the information of the incident.In reply, the witness has clearly stated that he is resident of village- Bhailayee which is at the distance of twenty kilometers from the victim's village and the victim's mother namely Rani is his cousin, and on the fateful day, he along with his cousin (brother) and Rani's real brother namely Dhannu had gone for visiting his sister namely Rani and when reached at village- Jaanipur at about 3.00 o'clock, he got the information in the way.He stated that the incident occurred during the period when winter was on subside and it was month of February.He stated that on reaching at the village, children told him about the incident and hubbub ensued that the Baba committed such offence, then only he came to know about the incident.Hearing this, he alongwith his sister's family members and neighbors went to the temple.(This witness) has stated about writing report by himself; and then narrating the incident to the sub-inspector who had demanded for written report which was given by him.This witness has clearly stated that he did not see the incident through his own eyes and that he reached after the incident.The witness was asked that when the victim's real maternal uncle was present, why did he not lodge the report, thereupon he replied that since all people were going to Bulandshar for medical examination, so he lodged the report.(He) has stated in his report about seeing the incident by children of the village and has stated the victim's house was 100 meter away from the temple.This witness has also stated that the next day, he went back to his village- Bhailayee.This witness has also stated the victim was taken to Bulandshar Medical College from the police station by the police and was then referred to Meerut from Bulandshar.The fact is also corroborated from the documents available on the file.The witness rebutted this contention that the pradhan had taken forty thousand rupees from the Baba for repairing the floor of the temple, and on demand, the false report was lodged against Mangal Giri by misleading the complainant by pradhan.This contention has also been rebutted that he did not see the temple and has stated that (he) has had seen the temple and the kothari inside it where the Baba lived.Thus, so far as this witness is concerned, he has also corroborated the victim's statement and prosecution version.And the defence could not extract such substantial contradiction from this witness, so as to discard this witness or the victim.A contention has also been necessarily made by defence that there are contradictions in the witness's statement.Saroj smeared in blood in the village; Km.Saroj is lying unconscious; blood is oozing; please take immediate action'.He nowhere stated that he went to the temple and took the victim from the temple himself.His averment was the victim was laying in pool of blood at his sister's house and he had come to lodge the report and the same statement he has given before the court.Thus, so far as witnesses of the facts are concerned, the prosecution version has been completely corroborated by the aforesaid both the witnesses.Now, it is to be examined whether the oral evidence is corroborated by the medical evidence or not.Prosecution Witness No.:-06:-Dr. Abhilasha Gupta the doctor at Meerut Medical College who treated the victim after she was referred by Bulandshahar District Hospital.This witness has stated on oath that on 28.2.09 while she was on duty, in the above medical College, the victim namely Saroj r/o Shikarpur, Bulandshahar, village Vaireena aka Janipur Kalan, was brought on being referred by District Hospital Bulandshahar and that she underwent treatment at the Medical College.This witness has categorically stated that the victim had injuries in her vagina which was possible to have been caused by rape."A small laceration is seen on Rt vaginal wall of size 3 x 4 mm between 5 O' clock to 6 O' clock position."The Report Exhibit Ka-10 of Bulandshahar District Hospital contains the same injury in it. "xx Hymen freshly torn, edges congested, bleeds on touch ragged torn edges at 6 O'clock position.Vagina full of clots.xx she is referred to Meerut Medical College for further management."During cross-examination, this witness has stated to have found injury on the private parts of the victim, and has also stated that the victim was treated only by administering medicines without any operation.Under the clinical summary in the Ext. Ka-9, it is clearly mentioned that "It is a medico-legal case referred from Bulandshahar District Hospital with c/o physical assault x 9 hr back bleeding per vaginum x 9 hr back.".No other major injury was found by this witness on the person of the victim.On being asked in cross examination whether such injury could be sustained on falling over some pointed object, the witness absolutely denied it.Dr. Sangeeta Jain and Dr. Vaibhav who treated the victim and whose names are there on the discharge slip, are stated to be her associates who had attended the victim under her supervision and direction.Dr. Abhilasha Gupta was Head of the department and it was under her own supervision and before her own eyes that her Associates Dr. Sangeeta, Dr. Uzma, Dr. Mona had attended the victim.Dr. Sangeeta was the consultant Doctor.This CRS number is entered by the record section at the time of admission.All the details- the name of the patient, her permanent address, date of discharge are same and the name of father is written as Sri Shanker.This witness has admitted in cross examination that the discharge slip does not contain the signature of Dr Sangeeta and that of Dr Urmila but it contains his own signature as an associate Doctor.(He) also proved the discharge slip to be in his own writing as well as that of his junior doctor Dr Uzma's handwriting and it contained the signatures of Dr. Uzma and Dr. Mona as well.During the cross examination this witness was cross-examined with regard to the name of victim's father being recorded Shivkumar instead of Sri Shanker.In reply he stated that he had clarified this during the examination in chief itself that it was a mistake and there is no difference in rest of the details.Learned Amicus Curiae appearing on behalf of the appellant argued that the name of victim's father being recorded as Shivkumar instead of Sri Shanker creates doubt as to the identity of the victim and therefore the statement cannnot be relied to implicate the accused.It is noteworthy that all the details i.e. the name of the victim, age of the victim, her being referred from Bulandshahar District Hospital, and address are same in the discharge slip Ext. Ka-9 of Meerut Medical College but the name of father is written Shivkumar instead of Sri Shanker.The victim was referred to Meerut Medical College on 27.2.09 by the district Hospital for further treatment.Verified photocopy of the above-mentioned Reference Form has been submitted by PW-6 the doctor of the Meerut Medical College.The date and address are the same as all other details.The photocopy of the case sheet Ext.Ka-13 of Medical College by PW-7 bears that very Annual number which is on the discharge slip Ext. Ka-9 and it contains name of the father of the victim as Sri Shanker.Under these circumstances only because the name of father got written as Shivkumar instead of Sri Shanker in the discharge slip due to inadvertent mistake, the identity of the victim cannot be doubted.It is not the contention of the defence that on that day some other girl named Saroj of the same address, police station and of same age was admitted on being referred from Bulandshahar District Hospital.May be due to hustle and bustle, the name of father was not heard correctly.Prosecution Witness No.8:-Dr. Madhu Sharma was examined as this witness.This witness is doctor of the District Women Hospital Bulandshahar.She has stated to have conducted medical examination of victim Saroj on 27.2.09 at 7.30pm in the above capacity and had found no external injury on the person of the victim, found breast undeveloped and pubic hair absent.Internal examination was as follows- hymen was freshly broken.Hymen was bleeding on its sides being touched.The hymen was ruptured in the condition of 6 'O' clock.The vagina had blood clots inside it.she has stated the slide having been prepared from the vaginal discharge for the examination of sperms and the same was sent to the pathology department, and in view of the critical condition of the victim she was referred to the Medical College, Meerut for further treatment, and she has also stated that the medical examination report of the C.M.O. and the photo copies of the reference letters sent to the Medical College to be present in the file and having brought along the original M.L.C. report, has verified them with the original and while stating them to be in his own handwriting and under his own signature, has proved them as Ext. Ka-8. Ka-9 and Ka-10 and has also opined that such injuries are probable to receive, if the victim is raped forcibly.This witness, in the cross-examination, has stated that the victim's parents had come with her at the time of examination and that she was in conscious state.She could not state whether she came on her own or was carried in arms by her family member.This witness has completely denied the statement of defence that the victim might have received such injury on being fallen on any pointed object while playing.She has clearly stated that such injury can not occur on being fallen on any pointed object.She has also stated that the liquid discharge could not come out because of blood clotting inside the vagina.Preetam Singh has been examined as this witness.This witness is a Pathologist.He has proved the pathological report as Ext-Ka14, and has stated that no sperm has been found in the medical examination.Hence, it is evident from the deposition of PW6 to PW8 all the three witness that the statements of the victim PW-1 and 2 are corroborated from the medical evidences also.It will be worthwhile to peruse the deposition of formal witnesses now.Prosecution Witness No.3:-Ram Shesh Misra is the writer of Chik and GD.He has proved the original G.D., Chik FIR and the carbon copy of G.D., as Ext.This witness has also corroborated the statement of PW-2 that the victim did not come alongwith the complainant.He is an informal witness.No other remark is expected on his statement.S.I. Amil Rashid has been examined as this witness.This witness has also deposed to have sent the clothes of the victim and of the accused to the Forensic Science Laboratory.He has also stated to have received the medical reports of the victim from the Medical College, Meerut.This witness has denied it that he in the collusion of the complainant has concocted a false story and that no such incident took place.He has stated that no such fact came to his cognizance, during the investigation, that the accused owed forty thousand rupee to the Pradhan Ravindra.Rather he has stated to have learnt that the accused earned his livelihood by begging and that he puts on just an underwear.Prosecution Witness No.5:-This witness, while being posted as S.S.I at PS-Shikarpur on 27.02.09, has stated the instant case being registered on the report of the complainant lodged about the rape of his niece Saroj, and that he went to the spot along with the complainant Mukesh, the victim Saroj soaked in blood at the spot, then having sent her to the Government Hospital by a private vehicle, taking into custody the clothes of the victim viz. two Kachhis, one blood stained frock and the accused's underwear into custody, and then getting the recovery memos prepared by the witness Devendra Singh, and Ravidnra Singh under their signature, wrapping and sealing and stamping of the clothes, recording statement of the witnesses, inspecting the spot and preparing the memo and site plan on pointing out of the witnesses in his handwriting & signature, and proved them as Ext.Ka-7 and Ext.He admitted the investigation having been transferred from him to S.I., Adil Rashid.One bundle sealed and stamped was opened before this witness, under the permission of the court, which had the stamp of Forensic Science Laboratory.He has also stated about taking three sepoy and one S.I along with in a jeep to go to the victim's village and making its entry in GD.He has also stated about his meeting with the Pradhan of the village Ravindra Singh, Devendra Singh, so many other persons and the victim's family members, about the victims's house being 200 metre away from the temple, about inquiring Bachchu Lal and Rajpal at the place of occurrence.This witness on cross-examination has described the place of occurrence/room that the door of the room opens in west, there was haystacks in the room, there was one mattress also on the haystack.This witness, has denied the suggestion that the frock did not have blood-stains on it.This witness has denied the suggestion that he did not go to the spot and prepared the site plan while sitting at the police station.The bundle containing the accused's underwear was not presented before this witness.In this way, no such contradictions could come out from the version of this witness which would raise a doubt on the investigation conducted by this witness.Ravindra Singh has been examined as this witness.He is witness of the recovery-memo of victim's clothes.This witness has stated the accused Mangal Giri's underwear and the victim's blood-stained clothes were taken into custody on 27.02.09 in his presence, has proved his signature on the memo and has also proved the recovery-memo 8A/7, available on file.One sealed & stamped bundle was opened under the permission of the court before this witness, and this had proved the underwear marked as material Ext.5 and the clothes was marked as material Ext.6 having been recovered in his presence.This witness, in the cross-examination, has denied that the temple was not under-construction that time.That time, the idol of Shiv Ji, and the photographs of Hanuman Ji and Parvati ji were installed.This witness informed that his house is 60 metre away from the temple.He was informed by his wife over the phone, about the incident.He came to know about the entire episode when he reached the village.He deposed that he reached before the dawn fell and the police reached just one minute after his arrival.Other persons had already gathered there.It took around half an hour in completing the whole proceedings.By that time night had completely fell but there was light.He has denied this point that he was not there at the spot and that he did not put his signature on the recovery-memo and that the underwear did not belong to Baba Mangal Giri.This witness has been alleged to have taken Rs. Forty thousand from Baba Mangal Giri as loan and in order to avoid repaying that he has falsely implicated him.The suggestion of enmity has been strongly denied by him with the statement that there was no question of the accused lending him money when he himself earn his livelihood by begging for daily commodities from others.This witness has further stated that he had a good relationship with the accused as he was visiting temple frequently for Darshan.Answers provided by accused of different questions asked in reply to questions put regarding prosecution case are that "it is false" and "I do not know", and that he was implicated due to village fractionalism".In reply to the questions about his loincloth (lungi) he said that "he does not wear any such cloth." In reply to the question "what else you want you say", it was stated by the accused that Pradhan used to visit him and borrowed money but he refused of having any dispute or enmity with the Pradhan.While recording statement of accused under Section 313 Cr.P.C., all the material evidence have been put to him including the statement of Pradhan, he, however, completely denied each circumstance.The object of recording of statement of accused under Section 313 Cr.P.C. is based on the principles of right to fair trial and the presumption of innocence unless proven guilty.We feel that the appeals were heard in a slipshod manner.It was open for the respondents to press the appeals on merits and pray for acquittal.Reasons must contain extenuating circumstances which prompted the High Court to reduce the sentence below the prescribed minimum.Appeal deserves to be dismissed being bereft of merit.Appellant shall serve out the remaining sentence.

Cited provisions: Section 376 in The Indian Penal Code; Section 452 in The Indian Penal Code; Section 511 in The Indian Penal Code; Section 376(2) in The Indian Penal Code; Section 324 in The Indian Penal Code