Crl.A. 366/2003 BEFORE HON’BLE MR JUSTICE B D AGARWAL This appeal is directed against the Judgment and Order dated 10.09.2003, passed by the learned Sessions Judge, Barpeta, in Sessions Case No. 13 of 2003. By this Judgment, the learned Sessions Judge has convicted the appellant under Section 376 of the Indian Penal Code and he has been sentenced to undergo Rigorous Impri sonment for 7 (seven) years and also to pay a fine of Rs. 5,000/- and in default , further Rigorous Imprisonment for 1 (one) year has been awarded. Being aggriev ed with the conviction and sentence, the accused has preferred this appeal. 2. Heard Sri M H Ahmed, learned counsel for the appellant and Sri B S Sinha, learned Additional Public Prosecutor, appearing on behalf of the State of Assam. I have also perused the impugned Judgment and evidence on record. 3. The prosecution case, in brief, is that some time in the month o f April 2000, the appellant subjected the victim girl to forcible sexual interco urse and as a result, the informant’s daughter became pregnant. It is the furthe r case of the prosecution that when the offence was committed a village mel was called, but the accused did not attend the mel and, as such, the FIR was lodged. 4. To establish the offence of rape the prosecution examined altoge ther 8 (eight) witnesses and having found corroborative evidence the accused has been convicted for the offence of rape. 5. It is the settled position of law that for an offence of sexual assault a person can be convicted on the sole testimony of the victim girl, prov ided her testimony is found to be fully trustworthy and does not suffer from ser ious discrepancies and lacuna. 6. Sri Ahmed, learned counsel for the appellant, submitted that in the FIR, it was alleged that the girl was subjected to sexual intercourse by gag ging her mouth, whereas, while giving testimony in the Court, the victim has dep osed that co-habitation had taken place on mutual consent. 7. Apparently, the FIR was lodged by the father and not by the vict im girl herself. Normally, it is the tendency of the victim’s family to exaggera te the story with a view to obtain conviction of the culprit. However, in the ca se before me, instead of sticking to the allegation of forcible sexual intercour se the victim girl stated the truth in the Court that she had agreed for co-habi tation due to their old affair. Hence, I hold that it is not a case, wherein, a view can be taken that a different story has been made out in the Court. 8. The above apart, the allegation made in the FIR that the victim girl became pregnant through the accused has also been corroborated by many witn esses. PWs- 4 and 5 have also deposed that to decide the complaint a village mee ting was held, wherein, the victim girl had disclosed that she had become pregna nt through the accused Santosh. It is true that PWs-4 and 5 are cousins of the v ictim girl, but no significant suggestion has been given in the cross-examinatio n to discard their testimony. Besides this, PW-6 is an independent witness. This witness has also deposed that a village meeting was held, wherein the victim gi rl appeared and implicated the accused for impregnating her. 9. In view of this corroborative evidence also, it is difficult to take a view that the accused has been falsely implicated in the offence of rape. 10. Even though, it is apparent on record that the victim was a cons enting party to the sexual intercourse due to their intimacy and affairs, it is not possible to acquit the appellant from the offence of rape, since the victim girl was less than 16 years old at the relevant time. In the FIR, the victim’s f ather has stated that his daughter was 12-13 years old. The alleged offence was committed in the month of April 2000 and depositions were recorded in the latter part of 2003. While giving deposition, the witnesses disclosed her age being 17 years, but no suggestion was given to the victim girl that she was above 16 yea rs of age at the relevant time. On the other hand, the father of the victim girl (PW-3) has reiterated in the cross-examination that his daughter was 12-13 year s old and she was prosecuting her studies in ME School. 11. The above apart, the medical Officer (PW-1) has opined that the victim was below 16 years of age and this opinion has been given on the basis of physical features of the girl and on the basis of ossification test. It is true that the ossification test was done at a different hospital, but the same was n ot challenged by the accused in the trial Court nor the accused summoned the Rad iologist who had done the ossification test to prove that the victim was above 1 6 years of age. Hence, I find no difficulty to affirm the findings of the Sessio ns Court that the victim girl was less than 16 years of age and that the offence of rape was committed by the accused. In other words, the conviction of the app ellant under Section 376 of the Indian Penal Code, is hereby affirmed. 12. Coming to the question of sentence, I find that the accused hims elf was a young boy. Besides this, the FIR was lodged belatedly and at the time when the victim girl was carrying 32 (thirty- two) weeks of pregnancy. Besides t his, the sexual intercourse had taken place with due consent from the victim gir l. In my considered opinion, these are sufficient factors to reduce the statutor y sentence. I am also of the view that substantive sentence of 2 ‰ years impriso nment would meet the ends of justice. Since the appellant is also coming from a poor strata of the society, being a labour by profession, the fine amount is als o reduced to Rs. 500/-. In default of payment of fine, the appellant shall under go further Rigorous Imprisonment for 2 (two) months. Needless to say that the pe riod of sentence already undergone during investigation and trial, shall be set off under Section 428 of the Code of Criminal Procedure, 1973. 13. In the result, the appeal stands dismissed. However, sentence ha s been modified as indicated in the previous paragraph. The appellant is directe d to surrender before the learned Sessions Judge, Barpeta, to serve out the rema ining period of sentence. On such surrender, the learned Sessions Judge shall is sue modified custodial warrants. 14. The Registry is directed to return the LCRs, along with a copy o f this Judgment forthwith.