(1) HIGH COURT OF MADHYA PRADESH BENCH AT INDORE CRIMINAL APPEAL NO.707 of 1996 Ambaram Vs. State of M.P. For appellant : Shri S.K.Vyas, Sr.Advocate assisted by Shri Harshvardhan Pathak Advocate. For respondent : Shri Dipak Rawal, Dy. GA JUDGMENT (ORAL) (Passed on 28.112011.) U.C. MAHESHWARI J. This appeal is preferred by the appellant/accused under Section 374 of the Cr.P.C being aggrieved by the judgment dated 16.8.96 passed by Addl. Sessions Judge and Special Judge (constituted under the Schedule Caste and Schedule Tribe Prevention of Atrocities Act 1989 “in short `the Act'), Mandleshwar in S.T.No.5/96 convicting and sentencing the appellant for the offence under section 376 read with section 511 of the IPC with a direction to undergo for RI 5 years. 2. The facts giving rise to this appeal in short are that on dated 1.10.95 at about 10 O' Clock the prosecutrix Ku Rekha lodged the FIR at Police Station Karhi district Khargone contending that on 30.9.95 , she went to Bavari Forest of village Wani to get her cattle graze. Nani daughter of Bhagirathi and Chhitar s/o Nani also went there along with their cattle for the same purpose. At about 6 O' clock in the evening, the appellant Ambaram met her in such forest. He caught hold and threw her on the ground, on which, she tried to shout but the accused closed her mouth by his palm saying that if she will shout, he will kill her. Thereafter, he removed her Ghagra ( lower garment) and after removing his own (2) trouser entered his penis into her vagina contrary to her wish. After committing such act, he asked not to tell this incident to anyone otherwise he will kill her. She cried and also narrated the incident to the aforesaid Nani and Chhitar. On returning to home, she narrated the incident to Sarni Bai, her mother and Chhagan, her father. Due to fear, the report was not lodged on the date of the incident and the same was lodged on the next morning. On the basis of aforesaid fact, the offence of section 376,323 of the IPC and section 3(i)(xi) of the Act was registered against the appellant. The prosecutrix was sent to hospital where her MLC report was prepared in which, her age 11 years was mentioned by the concerning doctor, as was mentioned in the FIR. In subsequent investigation, the clothes of the prosecutrix were seized. The slides prepared by the doctor was seized. The appellant was also medically examined by the doctor. His clothes and concerning slides prepared by the doctor were sent to FSL. The interrogatory statements of the witnesses were recorded. In the ossification test of the prosecutrix, her age was found to be below 16 years. On completion of the investigation, the appellant was charge sheeted for the above mentioned offence. 3. After committing the case to the Sessions Court, on evaluation of the charge sheet, the charge of section 376 of the IPC and section 3(1)(xi) of the Act was framed against the appellant. He abjured the guilt, on which, the trial was held. On appreciation, after holding guilty to the appellant under section 376 read with section 511 of the IPC, he was punished with the sentence as mentioned above while he was acquitted from the charge of section 3(1)(xi) of the Act. The age of the prosecutrix was held in between 11 to 12 years. Being aggrieved by the aforesaid conviction and sentence, the appellant has come to this court with this appeal. 4. Learned counsel of the appellant, after taking me through the evidence led by the prosecution along with the exhibited papers of the charge sheet and also the (3) impugned judgment, assailed the conviction on various grounds. Firstly, he said that the story putforth by the prosecution was not reliable in the lack of the supporting evidence of any independent witness so also in the lack of the FSL report. It was also argued that the FIR being belated, in the lack of any proper explanation, the prosecution case was not reliable as the same was registered at later stage as an after thought just to implicate the appellant in the matter on false pretext. So, in such premises, he firstly prayed to acquit the appellant but in continuation he said that in any case if the Court comes to the conclusion that the alleged offence was committed by the appellant then in that circumstance, taking into consideration the ossification test report in which the age of the prosecutrix was stated to be below 16 years, by adopting the settled view to consider the variance of two years on either side, by holding the prosecutrix to be the age of more than 12 years, the alleged sentence of the appellant be reduced from five years to the period for which he has already undergone between 30.9.1995 the date of the impugned judgment of the appellate court till passing the order for suspension of the remaining jail sentence by this Court on dated 14.10.96 i.e near about one years and 15 days. Besides this, he also suffered three days of judicial custody in pendency of the trial and prayed to allow this appeal accordingly. 5. On the other hand, responding the aforesaid arguments, Shri Rawal, GA by justifying the impugned judgment of conviction and sentence of the appellant said that the same being based on proper appreciation of the evidence, does not require any interference at this stage. In continuation, he said that proper explanation for recording the FIR on the next morning has been stated by the prosecutrix in the FIR itself. He also argued that in view of the deposition of the prosecutrix in which she categorically stated regarding penetration in her vagina by the appellant, this case was of section 376 of the IPC but in the lack of FSL report and also by taking into consideration some lacuna in the prosecution case including the MLC (4) report of the prosecutrix (Ex.P/6) and the deposition of Dr.Niti Nema (P.W.9) in which hymen was found to be intact, the appellant has been conviction and sentence under section 376 read with section 511 IPC. So there is no further scope in the matter either for extending the acquittal or reducing the jail sentence upto the period, as argued by the appellant counsel and prayed for dismissal of this appeal. 6. Having heard the counsel at length, keeping in view their arguments, I have carefully examined the record of the trial court. True it is that the FIR was lodged on the next morning from the time of the incident as the incident took place a day before in the evening from lodging the report. But it is apparent from the FIR that sufficient and reliable cause was stated by the prosecutrix in her report that because of fear, she accompanied with her parents, could not come in the police station in the night and such explanation was found to be reliable. On going through the available record also, I am of the view that the trial court has not committed any error in holding that mere lodging the report at belated stage in the aforesaid circumstances, is not fatal to the case of the prosecution. 7. On going through the deposition of the prosecutrix Ku Rekha, it is apparent that she stated her age to be 11 years and in further averments she stated that after she was caught-hold by the appellant, under some threat, he committed rape on her by entering his penis into her vagina. It is settled proposition of the law that mere on the testimony of the prosecutrix, if the same appears to be reliable, then in the lack of any support from the expert evidence like doctor, the accused like appellant could be convicted for the offence of section 376 of the IPC. But considering the lacunas left by the prosecution in its evidence including the circumstances of non-production of the FSL report, regarding seized clothes and alleged slides and the MLC report of the prosecutrix in which the hymen of the prosecutrix was found intact, the trial court has held the case of attempt to rape (5) and convicted the appellant under section 376 read with section 511 of the IPC. After perusing the aforesaid depositions of the prosecutrix as well as the concerning doctor who examined the prosecutrix and also in the lack of the FSL report, the aforesaid approach of the trial court being in consonance with the evidence, does not give any circumstance to adopt some different view only to extend the acquittal to the appellant and, therefore, in that respect also this appeal is not involving any material question which could be interfered at this stage. 8. As per report of ossification test of the prosecutrix carried-out by Dr.Pramod Kumar Gupta (PW 8) the radiologist, the head radius bone of the prosecutrix was not united and lower end radius and ulna not united and, in such premises, he opined the age of the prosecutrix to be below 16 years and on recording the deposition same thing was stated by him. In such premises, it is apparent that anywhere, either in the aforesaid X-ray report (Ex.P/4) or in deposition of the doctor, he has not stated that there was any specific circumstance to consider the age of the appellant below 12 years. Although, after taking into consideration such evidence and the report along with other recorded evidence, the trial court has held the age of the prosecutrix to be between 11 to 12 years and, in such premises, five years jail sentence, the half of the minimum punishment of ten years provided under section 376 (2) of the IPC has been imposed against the appellant. But in the aforesaid factual matrix, on taking into consideration the principle of variance regarding age two years of either side as stated by the doctor in his deposition then in the available set of evidence and aforesaid principle, the age of the prosecutrix comes between 13 to 15 years and not below 12 years. So, in such premises, the approach of the trial court holding the age of the prosecutrix below 12 years being not correct, requires some interference, hence by setting aside such finding of the trial court, the age of the prosecutrix is held to be between 13 to 15 years. (6) 9. After going through the deposition of the prosecutrix Ku Rekha (PW 1) and also the depositions of her parents to whom the incident was narrated by the prosecutrix immediately after happening the same, I am of the considered view that their testimonies have been appreciated by the trial court with proper approach for holding guilty to the appellant under the aforesaid offence. Hence, such findings of the trial court are hereby affirmed. 10. In view of the aforesaid age of the prosecutrix between 13 to 15 years, I have found some substance in the argument of the appellant's counsel for reducing the jail sentence because if the prosecutrix is not found to be below 12 years and the offence is found to be proved against the accused for attempting to commit rape on her u/s 376(1) of the IPC then he may be punished for half of the sentence provided for committing the rape. So, in such circumstance, the appellant could not have been punished for five years under section 376(1) read with section 511 of the IPC but considering the age of the prosecutrix more than 12 years and less then 16 years as held by this court and holding the case of the appellant is falling under section 376(1) of the IPC in which minimum jail sentence seven years has been prescribed by the legislature, the trial court ought to have imposed the jail sentence of three and a half years for the offence of attempting to commit rape under section 376(1) read with section 511 of the IPC. Thus, the imposed punishment of five years imposed on the appellant is held to be higher side. Therefore, till this extent, the impugned judgment requires some modification. My aforesaid view is fully fortified by the principle laid down by the Apex Court in the matter of Guddu Singh Soharab Vs. State of M.P.-2006(4) MPHT 218 (SC). In such case, taking into consideration section 376 and 511 of the IPC, after holding the age of the prosecutrix below 12 years, the case of concerning accused being falling under section 376(2)(f) of the IPC was sentenced for five years out of the minimum punishment of 10 years provided in such section. But the case of (7) the present appellant, on account of age of the prosecutrix more than 12 years, being falling under section 376(1) of the IPC in which minimum 7 years punishment has been provided, on the aforesaid principle the jail sentence of the appellant requires modification. 11. Therefore, by affirming the conviction of the appellant under section 376 read with section 511 of the IPC this appeal is allowed in part and, in view of the aforesaid discussion, the awarded jail sentence of the appellant under such section is hereby reduced from five years upto the period of 3 ½ years ( three years and six months). Till this extent, the impugned judgment is modified while the other findings of the same are hereby affirmed. The bail bonds of the appellant are hereby canceled and the appellant is hereby directed to surrender himself before the trial court on or before 20th of December,2011 for facing the remaining jail sentence, failing which, the trial court is directed to take endeavor to arrest the appellant and send him for facing the remaining jail sentence. 12. The appeal is allowed in part as indicated above. (U.C.MAHESHWARI) JUDGE MKL