The prosecution case, in short, is that the prosecutrix (PW-1) was a student, who was working in the house of one Rekwar Sahab resident of Housing Board Colony, Damoh in the evening hours.On 31.10.2008 when the prosecutrix was coming back from the house of Rekwar and she reached near the culvert by the Housing Board Irrigation Colony, the appellant and his companions 2 Cr.A. No.2959/2011 detained her.The appellant held here hands and dragged her in a gutter near the culvert.The appellant administered some liquor to the prosecutrix and thereafter he did rape with the prosecutrix.At the time of incident the companions of the appellant were teasing the prosecutrix by moving their hands on her body.Thereafter the prosecutrix was left to the spot and she became unconscious.When she gained consciousness, she went to her house and informed about the incident to her mother Tulsa Bai (PW-3), one Bhagwati (PW-4) and others.She was taken to the Kotwali Police Station, Damoh where she had lodged an FIR Ex.P-1 on the same day at about 12:05 AM in the night.She was sent for her medico legal examination in the night itself.Dr. Shraddha Gangele (PW-8) examined her and gave a report Ex.She found that blood was oozing from the vagina of the prosecutrix and after cleaning one small abrasion was found on the exterior part of the vagina.Dr. Shraddha Gangele took yellow salwar of the prosecutrix and also prepared two slides of vaginal swab and such articles were handed over to the concerned lady constable.After due investigation, a charge sheet was filed before the CJM Damoh, who committed the case to the Special Court under SC/ST (Prevention of Atrocities) Act (hereinafter referred to as "Special Act").2 Cr.A. No.2959/20113 Cr.A. No.2959/2011The appellant abjured his guilt.He did not take any specific plea.He has stated that he was falsely implicated in the matter.However, no defence evidence was adduced.appellant from the charge of Section 3(2)(v) of the Special Act, but convicted the appellant for the offence under Sections 376(2)(g) and 506 (Part-II) of IPC and sentenced him as mentioned above.The co-accused Neeraj Singh was also acquitted by the trial Court, because his identification could not be established by the prosecution.I have heard the learned counsel for the parties.The learned counsel for the appellant has submitted that the testimony of the prosecutrix was not trustworthy and therefore no offence was made out against the appellant.4 Cr.A. No.2959/2011In the present case, the prosecutrix (PW-1), Kanchan (PW-2) sister of the prosecutrix and Tulsa Bai (PW-3) mother of the prosecutrix were examined about the age of the prosecutrix and they had shown that the prosecutrix was 13-14 years old at the time of incident.5 Cr.A. No.2959/2011The prosecutrix has deposed that her age was 13 years at the time of incident and she was not cross examined for the assessment of her age.Similarly, no cross examination was done to the witnesses Kanchan, sister of the prosecutrix and Tulsa Bai, mother of the prosecutrix about the age of the prosecutrix.Under such circumstances, it was established that the prosecutrix was below 16 years of age at the time of incident.6 Cr.A. No.2959/20116 Cr.A. No.2959/2011The prosecutrix (PW-1), Kanchan (PW-2) and Tulsa Bai (PW-3) have stated that the prosecutrix went to work in the house of Rekwar Sahab and she was expected to come back upto 6:30 PM in the evening.When she did not come back, Kanchan and Tulsa Bai etc. started searching the prosecutrix and when they came back to the house, they found that the prosecutrix had already reached the house and she told the entire story as to how the appellant committed rape upon her.Bhagwati (PW-4) was also examined to say that the prosecutrix informed her about the incident, however she turned partly hostile and did not corroborate the story of the prosecutrix.The learned counsel for the appellant has pointed out the various contradictions in the statements of witnesses Kanchan, Tulsa Bai and the prosecutrix and also their evidence with the FIR.However, such are the minor contradictions and by such minor contradictions, the testimony of the prosecutrix cannot be thrown away.For example, time of leaving the house of Rekwar and time when the victim reached her house.If the prosecutrix left the house of Rekwar at about 6:30 PM and she was administered some liquor or intoxicant, then certainly the family members of the prosecutrix could not search her.She was unconscious near the culvert.It is true that Dr. Shraddha Gangele (PW-8) did not find any smell of liquor 7 Cr.A. No.2959/2011 from the mouth of the prosecutrix, but it would be apparent that the liquor was given to the prosecutrix at about 7:00 PM in the evening and she was examined by Dr. Shraddha Gangele at 2:30 AM in the night.Smell of liquor could be in the mouth of the prosecutrix according to the quantity of liquor and the time before which the liquor was administered.Hence, it cannot be said that the testimony of the prosecutrix was incorrect.7 Cr.A. No.2959/2011However, if it is supposed that the prosecutrix was not administered with any liquor, then it was for the appellant to prove that she was a consenting party and looking to her age if she was a consenting party, then still crime under Section 376 of IPC would constitute against the appellant because she had not given any consent for such an intercourse.Similarly, the prosecutrix has accepted that she sustained some injuries due to thorns lying on the earth, but she did not say about other injuries.When Dr. Shraddha Gangele (PW-8) examined the prosecutrix, she could not find any injury caused by thorn unless the prosecutrix would have invited her attention to those injuries.The prosecutrix appears not to be a literate girl and it was not expected from her to invite attention to the doctor to such minor injuries, and simply because Dr. Shraddha Gangele did not find any injury of thorn, the testimony of the prosecutrix cannot be thrown away.8 Cr.A. No.2959/20118 Cr.A. No.2959/2011The most important fact is that the appellant was known to the prosecutrix and the prosecutrix has stated that the appellant and his companions were chasing her from time to time.No enmity was shown by the appellant with the prosecutrix so that she would have lodged a false FIR against the appellant.So far as gang rape is concerned, in this connection the testimony of the prosecutrix cannot be believed because she named three persons to be companions of the appellant Shankar.Out of them she 9 Cr.A. No.2959/2011 mentioned the name of c-accused Neeraj Singh in the FIR but thereafter she sent a letter to the SP concerned that Neeraj Singh was not companion of the appellant Shankar, and therefore the trial Court acquitted the Neeraj Singh co- accused of the appellant.The police could not search the remaining two companions of the appellant.The allegations made by the prosecutrix against the companions of the appellant appear to be unnatural.If the appellant was with other three companions at the time of incident and the other companions were moving their hands on the body of the prosecutrix when the appellant was committing rape, then looking to the mental and physical position of the prosecutrix, the remaining alleged accused could not be prevented to commit rape upon the prosecutrix.If they were interested to move their hands on the body of the prosecutrix, then it was not possible for them to leave the prosecutrix when the appellant Shankar left the prosecutrix.10 Cr.A. No.2959/201111 Cr.A. No.2959/201113 Cr.A. No.2959/2011 The sentence of the appellant may be reduced to the jail sentence of seven years' RI and for reducing the sentence from the minimum limit there should be a strong reason.The appellant is in jail continuously since he was arrested.13 Cr.A. No.2959/2011On the basis of the aforesaid discussion, the present appeal filed by the appellant can be partly accepted.(N.K.Gupta) Judge 25/3/2014 Ansari

Cited provisions: Section 506 in The Indian Penal Code; Section 376 in The Indian Penal Code