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Ranjanben Maheshbhai Vasava vs State Of Gujarat on 18 March, 2019

R/CR.A/934/2018 CAV JUDGMENT

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

R/CRIMINAL APPEAL NO. 934 of 2018
With
R/CRIMINAL APPEAL NO. 1342 of 2018

FOR APPROVAL AND SIGNATURE:

HONOURABLE MR.JUSTICE J.B.PARDIWALA
and
HONOURABLE MR.JUSTICE A.C. RAO

1 Whether Reporters of Local Papers may be allowed to Yes
see the judgment ?

2 To be referred to the Reporter or not ? Yes

3 Whether their Lordships wish to see the fair copy of the No
judgment ?

4 Whether this case involves a substantial question of law No

as to the interpretation of the Constitution of India or any
order made thereunder ?

Circulate this judgement in the subordinate judiciary.

RANJANBEN MAHESHBHAI VASAVA
Versus
STATE OF GUJARAT 1 other(s)

Appearance:

MS SHILPA R SHAH(796) for the Appellant(s) No. 1
HCLS COMMITTEE(4998) for the Opponent(s)/Respondent(s) No. 2
MADANSINGH O BAROD(3128) for the Opponent(s)/Respondent(s) No. 2
MR. H. K. PATEL, ADDL. PUBLIC PROSECUTOR(2) for the
Opponent(s)/Respondent(s) No. 1

CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
and
HONOURABLE MR.JUSTICE A.C. RAO

Date : 12.03.2019

18/03/2019

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CAV JUDGMENT

(PER : HONOURABLE MR.JUSTICE J.B.PARDIWALA)

1. As both the captioned appeals are against the selfsame
judgment and order of acquittal passed by the Trial Court,
those were heard analogously and are being disposed of by
this common judgment and order.

2. The Criminal Appeal No.1342 of 2018 is at the instance of
the State of Gujarat, whereas the Criminal Appeal No.934 of
2018 has been filed by the original complainant (victim’s
mother) under section 372 of the Code of Criminal Procedure,
1973.

3. Both the appeals, referred to above, are directed against
an order of acquittal dated 3rd May, 2018 passed by the
Special Addl. Sessions Judge, Bharuch in the Special POCSO
Case No.45 of 2016. By the impugned judgment passed by the
Special Addl. Sessions Judge, Bharuch, the original accused
came to be acquitted of having committed the offences
punishable under sections 376 and 506 (1) of the IPC and
sections 4 and 6 of the Protection of Children from Sexual
Offences Act, 2012 (for short “POCSO”).

4. Case of the prosecution

4.1 The prosecution case, which unfolded during the course
of the trial is that on 14th June, 2016, the victim, a six year old
girl, after returning home from her school, was playing outside
her house along with her friends. The accused is also residing
nearby the house of the victim. It is the case of the prosecution

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that while the victim was playing with her friends, the accused
took her to his house and locked the door from inside.
Thereafter, the accused removed the clothes of the victim, and
he too, took off his clothes. The accused applied some oil on
the private part of the victim and, thereafter, raped the victim.
The accused is also alleged to have threatened the victim by
saying that if she would disclose to anyone, she would be
thrown in the river. The victim, thereafter, somehow,
managed to escape from the clutches of the accused and
straightway went running to her house and disclosed about the
incident to her mother, namely, Ranjanben Maheshbhai
Vasava. The mother, on learning about the incident from her
minor daughter, examined the private part of the victim and
noticed that there was swelling and redness. Thereafter, the
mother of the victim immediately confronted the accused as
regards the incident. The accused denied before the mother of
the victim having indulged in any such act as complained by
the victim. The father of the victim, on his return to home
from his job, went straight in search of the accused. However,
the accused was not found. As the victim was unable to pass
urine, the parents, along with the victim, went straight to the
police station, and at the police station, the mother lodged the
first information report for the offences enumerated above.

4.2 On the first information report being lodged by the P.W.
12, i.e, the mother of the victim, the investigation had
commenced. The victim was taken to the General Hospital,
Bharuch with a police Yadi for the medical examination.

4.3 The medical certificate of the victim issued by the Doctor
is at Exh.37. The accused was arrested on the next day, i.e,

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on 15th June, 2016 and he too was taken to the Civil Hospital,
Bharuch with a police Yadi for medical examination. The
accused, while narrating the history before the Doctor, stated
that on 14th June, 2016, he was playing with the victim in the
evening between 3:00 and 4:00 O’ clock and, thereafter, he
brought the victim at his house and started playing with her
after closing the door. The medical certificate of the medical
examination of the accused is at Exh.40. The victim,
thereafter, was taken to the Court of the Judicial Magistrate,
First Class, Bharuch for the recording of her statement under
section 164 of the Cr.P.C. The victim was put forward before
the 5th Addl. JMFC, Bharuch, who, in turn, recorded the
statement of the victim under section 164 of the Cr.P.C. The
Panchnama of the place of occurrence, Exh.25, was drawn in
the presence of the two Panch witnesses. The clothes of the
victim were collected by drawing the Panchnama, Exh.21 in
the presence of the two Panch witnesses. The Muddamal
articles collected by the Investigating Officer in the course of
the investigation were sent to the FSL for chemical analysis.
The statements of various witnesses were recorded under
section 161 of the Cr.P.C.

4.4 On conclusion of the investigation, a charge-sheet was
filed against the accused in the court of the learned JMFC,
Bharuch. As the case was exclusively triable by the Special
Court, Bharuch, the JMFC, Bharuch committed the case to the
Sessions Court under section 209 of the Cr.P.C. The Sessions
Court framed the charge against the accused Exh.7 and the
statement of the accused was recorded. The accused did not
admit the charge and claimed to be tried.

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4.5 The prosecution adduced the following oral evidence in
support of its case;

Sr. Name of the witness Exhibit
No.
1 Deposition of the complainant Ranjanben 12
Maheshbhai Vasava
2 Deposition of the victim 14
3 Deposition of the witness- Maheshbhai 16
Kishanbhai Vasava
4 Deposition of Bhupatbhai Gunvantbhai 17
Patanvadiya
5 Deposition of the witness-Himmatbhai 22
Madhavbhai Parmar
6 Deposition of the Panch Shivkumar Sudaipal 23
7 Deposition of the Panch Bhupendrabhai 26
Jagdishbhai Vasava
8 Deposition of the Panch Kiranbhai Rayjibhai 27
Parmar
9 Deposition of the Panch Maheshbhai 30
Sukhabhai Rathod
10 Deposition of the witness-Sanjaybhai 31
Natwarbhai Vasava
11 Deposition of the witness Laxmiben 32
Natwarbhai Vasava
12 Deposition of the witness- Thakorbhai 33
Ganpatbhai Patel
13 Deposition of the witness Rupesh 35
Jayramprasad Divakar
14 Dr. Vinodkumar Brijnandan Upadhyay 38
15 Dr. Bijal Dilipkumar Rami 42
16 Head Constable Mukeshbhai Shankarlal 45
Mistri
17 Deposition of the witness Bharatsinh 49

Ranjitsinh Gohil (Investigating Officer)
18 Deposition of the witness Kirankumar 59
Dahyabhai Rathod (Investigating Officer)

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4.6 The following pieces of the documentary evidences were
adduced by the prosecution;

Sr. Details of the Documentary evidence Exhibit
No.

1 The original complaint of the complainant- 13
Ranjanben Maheshbhai Vasava
2 The Panchnama of the clothes of the victim 18
wore at the time of the incident.

3 Signed copy of the Panch 19
4 Signed copy of the Panch 20
5 The Panchnama of the clothes of the victim 21
6 The Panchnama of the scene of offence 25
7 The Panchnama of the video DVD collected 29

of the questions put to the victim, which was
videographed.

8 The Yadi for the medical examination of the 36

victim
9 The medical certificate of the victim issued 37
by the Civil Hospital
10 The Yadi for the medical examination of the 39
accused.

11 The medical certificate of the accused. 40
12 Yadi written to register the offence. 46
13 Extract note of the station diary 47

14 Order of handing over of the investigation. 48
15 The certificate of the victim issued by the 50
S.S.G
16 The report regarding visit of place of offence. 51
17 Forwarding note. 52
18 The receipt of receiving of Muddamal. 53
19 Report of the chemical analysis 53
20 Report of the biology analysis 55
21 Report of the serological analysis 56

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4.7 After completion of the oral as well as the documentary
evidence of the prosecution, the statement of the accused
under section 313 of the Cr.P.C was recorded, in which, the
accused stated that the complaint was a false one and he was
innocent.

4.8 At the conclusion of the trial, the learned Trial judge
acquitted the accused of the offences he was charged with.

4.9 Being dissatisfied, the State of Gujarat as well as the
mother of the victim have come up with their respective
acquittal appeals.

5. Submissions on behalf of the State:

5.1 Mr. H.K. Patel, the learned APP appearing for the State
vehemently submitted that the Trial Court committed a
serious error in acquitting the accused by holding that the
prosecution has failed to prove its case against the accused
beyond reasonable doubt. The learned APP would submit that
the Trial Court committed a serious error in disbelieving the
case put up by the prosecution on the ground that no injuries
were noticed on the private part of the accused as well as on
the private part of the victim. The learned APP pointed out
that there is an incriminating admission by the accused before
the Doctor while narrating the history and such an
incriminating admission goes to show that the accused had
taken the victim to his house and, thereafter, had closed the
door. The learned APP would submit that immediately,
thereafter, the victim ran to her house and disclosed about the

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sexual assault before her mother. The learned APP would
submit that the immediate disclosure of the event by the
victim to her mother is a relevant fact under section 6 of the
Evidence Act. He submitted that the medical opinion on record
is to the effect that although no signs of force were noticed,
yet the vaginal penetration could not be ruled out. The
learned APP also pointed out that the hymen of the victim was
found to be torn. Mr. Patel submitted that the statement of
the victim recorded under section 164 of the Cr.P.C
corroborates her oral evidence before the Court. He
submitted that the victim of rape is not an accomplice. Her
testimony can be acted upon without corroboration in material
particulars. He submitted that just because no injuries or
swelling or redness was noticed on the private part of the
victim at the time of her medical examination, by itself, would
not be sufficient to disbelieve the entire case of the
prosecution. Mr. Patel severely criticized the judgment of the
Trial Court by submitting that the Trial Court committed a
serious error in disbelieving the case on the erroneous
impression that normally an injury would be caused to the
male organ when sexual act is committed by a fully developed
male with a girl of tender age who is virgin and as there was
no injury of any nature noticed on the genitals of the accused,
the case put up by the prosecution becomes doubtful. He
submitted that it is not necessary that the male organ must
suffer injury when sexual act is committed by a fully developed
male with a girl of tender age. Mr. Patel submitted that this
normally may be so, but is not a universal proposition of law.

5.2 In such circumstances, referred to above, Mr. Patel
submitted that there being merit in this acquittal appeal, the

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same may be allowed, the judgment and order of acquittal
passed by the Trial Court be quashed and set aside and the
accused may be held guilty of the offence of rape punishable
under section 376 of the IPC and be appropriately punished.

6. Submissions on behalf of the original complainant;

6.1 Ms. Shilpa Shah, the learned counsel appearing for the
original complainant vehemently submitted that the Trial Court
completely misdirected itself while appreciating the evidence
of the child witness, who herself is the victim. By and large,
Ms. Shah has adopted all the submissions canvassed by the
learned APP appearing on behalf of the State. Ms. Shah
vehemently submitted that the Trial Court committed a serious
error in arriving at the conclusion that the victim was tutored
by her mother before she entered the witness box. Ms. Shah
submitted that the Trial Court completely misread a part of the
cross-examination of the victim wherein the victim has
deposed that she was told by her mother to depose before the
court exactly what the accused had done with her and also as
told as told to her by her mother. Ms. Shah submitted that
assuming for the moment that the mother of the victim might
have said so, by any stretch of imagination, it cannot be said
that the mother tried to tutor the victim with a view to give
false evidence against the accused on account of the alleged
enmity between the two families. Ms. Shah submitted that the
Trial Court committed a serious error in disbelieving the entire
case on the assumption that as the mother of the victim was at
an inimical terms with the accused and his family, just with a
view to teach a lesson to the accused and seek revenge, a
false case came to be instituted against the accused. Ms. Shah

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would submit that the parents of a minor girl, who is a victim
of sexual assault, would be extremely reluctant even to admit
that any incident which is likely to reflect on her chastity had
ever occurred. If the victim is a minor, the parents would
apprehend that it would be difficult to secure an alliance with a
suitable match from a respectable or an acceptable family.
Ms. Shah also submitted that the Trial Court committed a
serious error in appreciating the medical evidence on record.
The doctor, in clear terms, has noted in the medical certificate
that the hymen was torn, and although there were no signs of
force, yet the vaginal penetration could not be ruled out. Ms.
Shah,in the last, submitted that the impugned judgment of the
Trial Court is absolutely silent so far as the incriminating
admission of the accused before the doctor in the form of
history is concerned. Ms. Shah submitted that the Trial Court
should have kept in mind while appreciating the oral evidence
on record, more particularly of the victim and the mother of
the victim, that it would be difficult to find out a case which is
bereft of embellishments, exaggeration, contradictions and
inconsistencies. According to Ms. Shah, all the said things are
natural. Minor contradiction or some exaggeration is bound to
appear when ignorant and illiterate women are giving
evidence. A prosecutrix, and that too, a minor girl, aged six
years, is not an accomplice and her statement does not
require a corroboration within the meaning of section 114-B
(114-A) of the Evidence Act. The prosecutrix is a victim like
any other victim of any other offence. In such circumstances,
referred to above, Ms. Shah prays that there being merit in
the acquittal appeal filed by the mother of the victim, the
same may be allowed, the judgment and order of acquittal
passed by the Trial Court be quashed and set aside and the

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accused deserves to be held guilty of the offence of rape
punishable under section 376 of the IPC and should be
appropriately punished.

7. Submissions on behalf of the accused:

7.1 Mr. Madansinh Barod, the learned counsel appearing for
the accused vehemently submitted that since the accused has
been acquitted, we, in exercise of our appellate jurisdiction,
should not interfere in the order of the Trial Court. He would
submit that the view taken by the Trial Court is a reasonably
possible view and, in such circumstances, the appellate court
should not substitute it by its own view merely because that
view is also possible on the facts of the case. Mr. Barod
submitted that the presumption of innocence of an accused is
strengthened by his acquittal. He would submit that there are
no strong and compelling circumstances on record which
rebut that presumption and conclusively establish the guilt of
the accused. He submitted that the order of acquittal passed
by the Trial Court cannot be termed as perverse or totally
against the weight of the evidence.

7.2 Mr. Barod submitted that the Trial Court has acquitted
the accused mainly on three grounds. First, the
inconsistencies in the oral evidence of the victim and the
mother of the victim; Secondly, the medical evidence on
record is nil; and thirdly, on the ground that the prosecution is
frivolous and instituted with an oblique motive on account of
the enmity between the accused and the mother of the victim.
Mr. Barod submitted that on all the above three counts, the
Trial Court has assigned cogent reasons and, therefore, this

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Court may not disturb the well reasoned judgment of the Trial
Court.

7.3 Mr. Barod submitted that even if the entire case of the
prosecution is accepted as it is or is believed to be true, it is
not one of rape, but at the most, it could be said to be a case
of an indecent assault punishable under section 354 of the IPC.
Mr. Barod went to the extent of submitting that it is not even a
case of an attempt to commit rape punishable under section
376 read with section 511 of the IPC.

7.4 According to Mr. Barod, the submission canvassed by the
State as well as by the complainant as regards the
incriminating admission alleged to have been made by the
accused before the doctor at the time of his medical
examination in the form of a history is inadmissible in
evidence. Mr. Barod submitted that at the time of the medical
examination of the accused, the accused was in the police
custody as he was already arrested. He submitted that any
statement made by an accused while in police custody in the
nature of an extra-judicial confession before a third person
including the doctor would be hit by sections 25 and 26 of the
Evidence Act.

7.5 Mr. Barod further submitted that a suggestion put by a
defence counsel to a witness in his cross-examination has no
evidentiary value, and even if the same is incriminating in any
manner, would not bind the accused as the defence counsel
could not be said to have any implied authority to admit the
guilt or the facts incriminating the accused. Mr. Barod
submitted that if the suggestions are taken as a whole, they

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definitely would go to show that the victim was in company of
the accused and she came home running and narrated about
the act alleged to have been committed by the accused inside
his house at the earliest. However, according to Mr. Barod,
such suggestions should be ignored and on the basis of such
suggestions, no inference can be drawn against the accused
that he admitted the facts referred to in the suggestions. Mr.
Barod submitted that such suggestions could be a part of the
defence strategy to impeach the credibility of the witness. He
submitted that the proof of guilt required of the prosecution
does not depend on the suggestion made to a witness. Mr.
Barod submitted that the judgment and order passed by the
Trial Court, acquitting the accused, may not be disturbed and
both the acquittal appeals deserve to be dismissed.

8. Evidence on record:

8.1 We may start with the first information report, Exh.13,
lodged by the mother of the victim, i.e, the P.W. 1. The first
information report lodged by the mother of the victim dated
14th June, 2016 at 21:30 hours in the late evening reads thus:

“My name is Ranjanben, wife of Maheshbhai Kishanbhai
Vasava, Hindu, age – 30 years, occupation – Asha worker,
residing at Kothi Faliya, Zadeshwar, Taluka and District –
Bharuch, Mobile No. 95868 27359

On being asked personally, I state the facts of my
complaint that I have been residing with my family at the
aforesaid address. I have been working as Asha Worker at
Shukaltirth Primary Health Centre past two months. If
there are any cases of delivery in the village, I have to
take the patients to Bharuch Civil or Shukaltirth. When I
submit the bill of the case, I get remuneration of Rs. 30/-

per case from the Shukaltirth P.H.C. My husband has

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been working in Niti Vishwakarma company at
Tulsidham. I have two daughters. The elder daughter is
Reshma and younger daughter is XXXXX, aged 6 years
and 11 months. Her date of birth is 07/07/2009.
Presently, she is studying in standard 2 at Kanya Shala in
Zadeshwar. In this manner, I earn my livelihood.

Today in the morning at about ten o’clock, weight and
height of malnutritioned children had to be measured at
Kubai Tekri Anganwadi. The programme concluded at
about half past one. Meantime, my both daughters
returned to the house from the school at about half past
twelve. I had breakfast with my daughters. My younger
daughter XXXXX went with Ankush, son of Alpesh, who
resides five to six houses far, for playing at two o’clock in
the afternoon. My elder daughter went to the house of
Hiral Pravinbhai for playing.

Thereafter, I went to fetch water from the hand pump
near my house at about quarter to four o’clock. When I
returned home after fetching water, my daughter XXXXX
came running to house at about four o’clock. She was
extremely scared and her clothes were smeared with soil.
Therefore, I inquired with her that, “XXXXX, what has
happened?” XXXXX told me that, “When I and Ankush
were playing near his house, Jinka uncle took me to his
house and closed the door. Thereafter, he removed my
clothes. Jinka uncle also removed his clothes. He made
me lie down on the ground. He applied oil on my vaginal
part. Thereafter, he told me that, “If you scream, I will
throw you in the river.” By saying so, when Jinka uncle
tried to insert something in my vagina, I felt pain.”
Hearing this, I got disturbed. So, I examined private part
of my daughter XXXXX. It was swollen and had become
reddish. XXXXX has not passed urine till now. She stated
that she feels pain in her private part. Thereafter, I went
to inquire with Jinka @ Sunilbhai Rameshbhai Vasava,
residing in my locality, and asked him as to what act you
have committed with my daughter XXXXX. Upon that, he
replied to me that, “I have not done anything.” and
saying so he went away.

Thereafter, my husband returned home from the job at
six o’clock in the evening. As he was informed about this
incident, he went to the village to inquire about Sunil
Rameshbhai Vasava @ Jinka, but he was not found.

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Thereafter, as XXXXX was not able to urinate, we, both,
decided to lodge the complaint with the police in this
regard. At present, I have come to the police station with
my husband for lodging the complaint.

Sunil @ Jinka Rameshbhai Vasava, residing at the Kothi
Faliya, Zadeshwar, Taluka District – Bharuch, took my
daughter XXXXX, aged 6 years, 11 months, to his house
between half past three and four o’clock in the evening,
while she was playing near his house, and closed the
door and threatened her that, “If you scream, I will throw
you in the river.” and forcefully committed sexual
intercourse with her and thereafter, he went away
somewhere. Therefore, it is my lawful complaint against
him. My witnesses are those persons, whose names have
been mentioned in the complaint and whose names are
revealed during the investigation.

8.2 We shall now look into the statement of the victim
recorded by the 5th Addl. J.M.F.C., Bharuch under section 164 of
the Cr.P.C. The statement reads thus:

“My name is XXXXX Maheshbhai. I do not know as to
how old I am. I am studying in the second standard. I am
residing in Kothi Faliya. My father is working and mother
is a housewife.

On that day, I returned from school and went to play at
Ankush’s house. Ankush, Kaliyo, Ganesh and I were
playing there. Thereafter, suddenly, all began to run.
Thereafter, Jino Kako arrived in the backyard of Ankush.
He picked me up and took me to his house. Thereafter,
he closed the door. He applied oil into my vagina and
removed my clothes. He removed his clothes also.
Thereafter, he committed sexual intercourse. Thereafter,
he opened the door. I ran away to my house from there.
Thereafter, I told my mother that, Jina Kaka had closed
the door and committed sexual intercourse (Gaand Mari).
Thereafter, my mother, father and I went to the police
station. Thereafter, I was taken to the hospital.

Date:22/06/2016 Before me,
Time: 05:15 hours Sd/-(Illegible)

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XXXXX 5th JMFC, Bharuch
Signature of Victim

8.3 We shall now go straight to the oral evidence of the
mother of the victim, i.e, the P.W. 1-Ranjanben Maheshbhai
Vasava, Exh.12. The P.W. 1, in her evidence, has deposed that
the victim happens to be her daughter. The victim was born
on 7th July, 2009. At the time of the incident, the victim was a
second standard student studying in the Kanya Shala. The
incident had occurred on 14th June, 2016. On the day of the
incident, at about 4:00 O’clock in the evening, the P.W. 1 had
gone to fetch water at the hand pump installed in the locality.

At that point of time, the victim came home with lot of fright in
her. The P.W. 1 noticed that there was lot of dust on the
clothes and head of her daughter. She inquired with her
daughter as to what had happened. The daughter replied that
while she was playing with Ankush near his house, the
accused took her to his house. The accused closed his house
and took off her clothes. The accused also took off his clothes
and tried to insert something in the private part of the victim.
Some oil was also applied by the accused on the private part of
the victim and the victim was threatened that if she would
shout or scream, then she would be thrown in the river. The
P.W. 1 has deposed that on hearing all this from her daughter,
she immediately examined the private part of her daughter.
She has deposed that the private part of her daughter was
found to be red and swollen. The P.W. 1 immediately,
thereafter, went to the accused and confronted him about the
incident. On the P..W 1 inquiring with the accused as to why
he had done such a thing with his daughter, the accused
denied having done anything to her daughter and that the

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daughter was speaking lies. The P.W. 1 has further deposed
that on her husband arriving home from the job, the entire
incident was narrated before him. The husband also went out
in search of the accused. However, the accused was not to be
found. The victim was unable to pass urine. Thereafter, they
all went to the police station and lodged the first information
report. The P.W. 1 has deposed that her first information report
was taken down by the police and she also handed over the
clothes of her daughter. Thereafter, they all went to the
Bharuch Civil Hospital for the medical examination of the
victim and, thereafter, to the S.S.G. Hospital, Vadodara for
further medical examination. She has deposed that, thereafter,
her daughter, i.e, the victim was produced before the
Magistrate and the Magistrate recorded the statement of her
daughter. In the cross-examination by the defence counsel,
she has deposed that there are many people residing in the
vicinity of her house and the locality is quite populated. A
suggestion was put to the P.W. 1 by the defence counsel, and
in reply to such suggestion, the P.W. 1 deposed that when her
daughter came home crying and very much frightened, the
people residing in the neighbourhood were also present. The
P..W.1 denied the suggestion put to her by the defence
counsel that she used to pick up quarrel quite often with the
mother of the accused. She admitted that there is only one
hand pump in the locality and the mother of the accused also
comes to fetch water from the hand pump. To a suggestion
put to her, she deposed that it was true that at the time of the
incident, the victim was playing near the house of Ankush.
She has deposed in her cross-examination that when she
examined the private part of the victim, she noticed something
greasy on her private part. She has deposed that after

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examining the private part of the victim, she did not deem fit
to go to a doctor. She has deposed that the mother of the
accused was not present at her house at the time of the
incident. Few other suggestions put by the defence have been
denied.

8.4 The prosecution, thereafter, examined P.W. 2, i.e, the
victim. Her evidence is at Exh.14. Since the oral evidence of
the victim is very short, we propose to reproduce the entire
evidence:

“Spl. POCSO Case No.53/2016
Exhibit – 14

Deposition of P.W.No. 36
I do hereby on solemn affirmation state that,
My name :- Victim
Father’s name :- Maheshbhai Vasava
Religion :- Hindu
Age about :- 08 Years,
Occupation :- Study
Res. at :- Kothi Faliya
District :- Bharuch.

Examination-In-Chief
by the Ld. A.P.P. Mr. G.R.Parmar

As the victim is eight years old and considering her age,
her deposition is not found proper to be recorded in the
court room but it is found proper to be recorded in the
chamber at 02:45 hours in the noon. Therefore, the
victim, her mother, Ld. Government Pleader Mr.
G.R.Parmar and his Junior Pinalben Parmar and Ld.
advocate of the accused Ms. Artiben Mistry are present in
the chamber today. The accused has been made to
stand outside the door of the chamber in such a way that
the victim cannot see him and he cannot hear the
questions put to the victim.

Question: What is your name ?

Answer: Victim

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Question: What is your mother’s name ?

Answer:     Vasava Ranjanben.
Question: What is your father's name ?
Answer: Maheshbhai Vasava
Question: Where do you live ?
Answer: Kothi Faliya, Bharuch.
Question: How many sisters do you have ?
Answer: I have one sister.
Question: What is your sister's name ?
Answer: Reshma.

Question: In which standard and in which school are you
studying ?

Answer: I am studying in third standard in Girls school.
Question: Did you go to school on the day of incident ?

Answer: Yes, I went to school.

Question: At what time did you return from school ?

Answer: I returned at five o'clock.

Question: When does the five o'clock occur ?

Answer: In the evening.

Question: Where did you go after returning from
school ?

Answer: I went to Jinka's house to play with the other
boys.

Question: Who other persons were there ?

Answer: No other person except Jinka was there. Now,
I state that, I was playing with the other boys.
Question: Where did you go while playing ?

Answer:     Jinko took me to his house.
Question: Did other boys come with you ?
Answer: No.
Question: Who was there at Jinka's house ?
Answer: No other person was there.
Question: What did Jinka do in the house ?
Answer: Jinka closed the door and removed my
clothes.

Thereafter, he applied coconut oil into my vagina and
committed sexual intercourse (Gaand Mari). Thereafter,
he told me that, if you tell this to anyone, I will throw you
in the river.

Question: What happened to you thereafter ?
Answer: I felt burning sensation in my private part.
Question: Where did you go thereafter ?

Answer: Thereafter, I went to my house and told it to
my mother.

Question: Did you feel anything else in your private
part?

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Answer: I was feeling nothing else.

The accused person, alongwith other three accused
persons produced today from the custody, is brought
inside the chamber from the door of the chamber. As the
accused person is instructed to identify the victim, he has
identified the victim.

Ld. advocate for the accused person has produced
the written questions to be asked to the victim. It
is produced and given Exhibit No.15. These
questions are asked to the victim through court.

On the day of incident, my school time was from ten
o'clock to five o'clock in the evening. I returned from
school at five o'clock. When I returned home from the
school, my mother was present at home. I do not know
as to at what time, I went to play at Ankush's home.
Ankush and Kaliyo were playing with me. We all were
playing outside the house of Ankush. At that time,
Ankush's parents were not at home. I know Jinka past
many days. The house of Jinka is little far from the
house of Ankush. Jinko was not playing with me or other
children. Jinko took me to his house without saying
anything to me. When Jinko took me, Ankush was
standing next to me. When Jinko took me to his house, no
one was present in his house.

My mother and Jinka's mother had quarreled. I do not
know the reason for the quarrel. Jinka's mother had
quarrel with my mother before this incident. I do not
know as to why the quarrel took place. It is not true that,
Jinka had not committed any evil act with me.

Police came to me and asked me as to what Jinka had
committed with me. My mother took me to the hospital.
I do not know as to which hospital she took me. Doctors
did not inquire with me. I did not state anything to the
doctors. Police did not take me to any other place except
the hospital.

My mother told me to state the fact about the act
committed by Jinka Kaka as stated by her. "

8.5 We shall now look into the evidence of the P.W. 13, Dr.

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Rupesh Jayramprakash Divakar, Exh.35. Dr. Divakar, in his
evidence, has deposed that on 14th June, 2016, he was
discharging his duties as a medical officer at the Civil Hospital,
Bharuch. At that time, the victim was brought at the Civil
Hospital with a Yadi issued by the "C" Division Police Station,
Bharuch. The Yadi was issued for the purpose of medical
examination. The victim was accompanied by her mother and
a woman police constable. The doctor has deposed that the
victim was of a very tender age and her menstruation had not
started. There was no pregnancy. On inquiring with the victim
as to what had happened, the victim was unable to give any
answer as she was crying a lot. In such circumstances, the
doctor inquired with the mother of the victim as to what had
happened and the mother narrated before the doctor about
the incident. The P.W. 13, Dr. Divakar inquired with the victim
as to whether the penis had gone inside her private part and
whether there was any ejaculation of semen or not. The victim
replied that she had no idea about the same. The doctor has
deposed that the clothes were changed. The undergarments
were also changed. The victim had taken bath. Her pulse and
temperature were found to be normal. No injuries were noticed
on the body of the victim. As there was no gynecologist at the
Bharuch Civil Hospital, the victim was referred to the S.S.G
Hospital, Vadodara. The samples of nails, saliva, blood and
vaginal swab were collected and those were forwarded to the
FSL at Surat for chemical analysis. In the cross-examination,
the doctor has deposed that the mother of the victim had
informed him that there was lot of burning sensation felt by
the victim. He has deposed that no swelling was found or
noticed on the private part of the victim. At the end of his
cross-examination, he has deposed that he had not examined

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the private part of the victim.

8.6 The prosecution examined P.W. 14, Dr. Vinod Upadhyay,
Exh.38. This doctor has deposed as regards the medical
examination of the accused. Dr. Upadhyay, in his evidence,
has deposed that on 15th June, 2016, he was on duty as a
medical officer at the Civil Hospital, Bharuch. At that point of
time, the accused was brought with a police Yadi issued by the
"C" Division Police Station for medical examination. Dr.
Upadhyay has deposed that on inquiring with the accused as
to what had happened, the accused replied "yesterday, in the
evening, i.e, on 14th June, 2016 between 3:00 and 4:00
O'clock, I was playing with the victim and, thereafter, I took the
victim to my house to play and closed the door" He has
deposed that on examination of his private part, it was found
that the same was normal. The erection and ejaculation
reflections were found to be normal. The samples of nails,
saliva, blood and swab were collected and those were sent to
the FSL, Surat for chemical analysis. The medical examination
of the accused revealed that he had no medical or any surgical
sickness. No fresh or old infection on the skin was found or
noticed. Mentally, the accused was stable and was found to be
absolutely normal. He was found to be fit to perform sexual
intercourse. The doctor issued the medical certificate in this
regard at Exh.40. In the cross-examination of Dr. Upadhyay,
only one question was put by the defence counsel. The
question is in the nature of a suggestion. The reply of Dr.
Upadhyay to such suggestion was that it was true that except
what had been stated in the case papers in the form of
history, no further history was given by the accused. He has
deposed that no traces of oil were noticed on the private part

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of the accused.

8.7 The prosecution, thereafter, examined P.W. 15, Dr. Bijal
Dilipkumar Rami, Exh.42. Dr. Rami, in her evidence, has
deposed that on 14th June, 2016, she was on duty as a medical
officer at the S.S.G. Hospital, Vadodara. The victim was
brought at the hospital with a police Yadi issued by the "C"
Division Police Station, Bharuch for medical examination. Dr.
Rami has deposed that the victim was accompanied by her
mother and a lady police constable. Dr. Rami has deposed
that she inquired with the victim as to what had happened and
the victim narrated before her that on 14th June, 2016, while
she was at her house, the accused picked her up and took her
to his house. The accused, thereafter, took off her clothes. Dr.
Rami has deposed that it was also conveyed to her by the
victim that such a thing had happened on two to three
occasions in the past and, thereafter, as some noise was
heard outside the house, the accused released the victim and
the victim, thereafter, ran away to her house. She has
deposed that on inquiring with the victim whether the penis
had gone inside her private part and whether there was any
ejaculation of semen, the victim replied that she had no idea
about the same. Dr. Rami has deposed that the hymen of the
victim was found torn. According to her, there were no signs of
any force and, in such circumstances, it was difficult for her to
give any opinion whether the victim was subjected to sexual
intercourse or not. Dr. Rami issued the medical certificate in
this regard which has been admitted at Exh.44. In her cross-
examination, she has deposed that it was true that she did
not noticed anything greasy on the private part of the victim.

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8.8 The prosecution, in the last, examined P.W. 17-
Bharatsinh Ranjitsinh Gohil, Exh.49, i.e, the Investigating
Officer. The Investigating Officer, in his evidence, has given
more than a fair idea about the entire investigation carried out
by him. In his cross-examination, the Investigating Officer has
deposed that while the statement of the victim was being
recorded in the question answer form, the mother of the victim
was present. He denied the suggestion put to him that he had
not recorded the statements of the people residing in the
neighborhood of the victim. All other suggestions put by the
defence have been denied by the Investigating Officer.

8.9 In the medical certificate, Exh.44, issued by the S.S.G
Hospital, Vadodara, the following has been noted:

 Urethral meatus and vestibule                                 Normal
Labia Majora Normal
Labia Minora Normal
Fourchette introitus Normal
Hymen perineum Hymen torn
External urethral meatus Normal
Penis -
Scrotum -
Testes -
Clitoro penis -
Labio scrotum -
Any other -

No signs of force

Vaginal penetration cannot be ruled out."

ANALYSIS

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9. Having heard the learned counsel appearing for the
parties and having gone through the materials on record, the
only question that falls for our consideration is whether the
Trial Court committed any error in acquitting the accused of
the offence of rape.

10. We are conscious of the fact that we are deciding an
acquittal appeal. The principles relating to the powers of the
Appellate Court while dealing with an appeal against the
acquittal have been enumerated by the Apex Court in
Chandrappa and others v. State of Karnataka (2007) 4
SCC 415 : (2007 Cri LJ 2136). The Apex Court held as follows :-

"15. Bare reading of Section 378 of the present Code
(Appeal in case of acquittal) quoted above, makes it clear
that no restrictions have been imposed by the Legislature
on the powers of the appellate Court in dealing with
appeals against acquittal. When such an appeal is filed,
the High Court has full power to reappreciate, review and
reconsider the evidence at large, the material on which
the order of acquittal is founded and to reach its own
conclusions on such evidence. Both questions of fact and
of law are open to determination by the High Court in an
appeal against an order of acquittal.

16. It cannot, however, be forgotten that in case of
acquittal, there is a double presumption in favour of the
accused. Firstly, the presumption of innocence available
to him under the fundamental principle of criminal
jurisprudence that every person should be presumed to
be innocent unless he is proved to be guilty by a
competent Court of law. Secondly, the accused having
secured an acquittal, the presumption of his innocence is
certainly not weakened but reinforced, reaffirmed and
strengthened by the trial Court."

11. Thereafter the Apex Court culled out the following
principles :-

"42. From the above decisions, in our considered view,

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the following general principles regarding powers of
appellate Court while dealing with an appeal against an
order of acquittal emerge;

(1) An appellate Court has full power to review,
reappreciate and reconsider the evidence upon which the
order of acquittal is founded;

(2) The Code of Criminal procedure, 1973 puts no
limitation, restriction or condition on exercise of such
power and an appellate Court on the evidence before it
may reach its own conclusion, both on questions of fact
and of law;

(3) Various expressions, such as, 'substantial and
compelling reasons', 'good and sufficient grounds', 'very
strong circumstances', distorted conclusions' 'glaring
mistakes', etc. are not intended to curtail extensive
powers of an appellate Court in an appeal against
acquittal. Such phraseologies are more in the nature of
'flourishes of language' to emphasize the reluctance of
an appellate Court to interfere with acquittal than to
curtail the power of the Court to review the evidence and
to come to its own conclusion.

(4) An appellate Court, however, must bear in mind that
in case of acquittal, there is double presumption in favour
of the accused. Firstly, the presumption of innocence
available to him under the fundamental principle of
criminal jurisprudence that every person shall be
presumed to be innocent unless he is proved guilty by a
competent Court of law. Secondly, the accused having
secured his acquittal, the presumption of his innocence is
further reinforced, reaffirmed and strengthened by the
trial Court.

(5) If two reasonable conclusions are possible on the
basis of the evidence on record, the appellate Court
should not disturb the finding of acquittal recorded by the
trial Court."

12. The Supreme Court in the case of K. Venkateshwarlu
vs. State of A.P., reported in 2012 Cri.L.J., 4388. has
succinctly explained the scope of an acquittal appeal. We may

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quote the relevant observations:

"5. The High Court has set aside order of acquittal. This
court has repeatedly stated what should be the approach
of the High Court while dealing with an appeal against
acquittal. If the view taken by the trial court is a
reasonably possible view, the High Court cannot set it
aside and substitute it by its own view merely because
that view is also possible on the facts of the case. The
High Court has to bear in mind that presumption of
innocence of an accused is strengthened by his acquittal
and unless there are strong and compelling
circumstances which rebut that presumption and
conclusively establish the guilt of the accused, the order
of acquittal cannot be set aside. Unless the order of
acquittal is perverse, totally against the weight of
evidence and rendered in complete breach of settled
principles underlying criminal jurisprudence, no
interference is called for with it. Crime may be heinous,
morally repulsive and extremely shocking, but moral
considerations cannot be a substitute for legal evidence
and the accused cannot be convicted on moral
considerations. The present appeal needs to be
examined in light of above principles. "

13. Keeping in mind the aforesaid principles, we have
considered the case in hand. At the cost of repetition, we state
that we are aware that we are dealing with an appeal against
the acquittal. We have, therefore, dealt with the evidence,
both oral and documentary, in detail.

14. Before we deal with the rival contentions of the parties, it
would be appropriate to refer to the relevant findings recorded
by the learned Sessions Judge while acquitting the accused.

"(16) Gynecologist Bijalben Dilipkumar states in her
deposition vide Exhibit-42 that the victim was asked as to
whether the penis was inserted into her private part or
not and whether ejaculation took place or not? I do not

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know about it. She has also stated that on examining the
victim, her hymen was found ruptured. As per my
opinion, there did not appear to be any marks of use of
force, therefore, it cannot be stated clearly as to whether
physical intercourse took place or not. When any adult
person commits physical intercourse with a young girl
aged six years, marks of injuries would certainly be found
on the private part of the victim. In this case, no marks of
any injury were noticed. Moreover, there can also be
many other reasons for the rupture of hymen apart from
physical intercourse. Thus, as there did not appear any
such signs of injury in the vagina of the victim, it cannot
be believed that the victim was subjected to sexual
intercourse and the doctor has also opined that it cannot
be stated clearly regarding the same. Thus, the case of
the Prosecution is not corroborated by the medical
evidence.

(18) Moreover, the victim also states in her cross-
examination that my mother had told me to state what
she had stated about what Jinakaka had done with her.
Thus, it appears that the mother of the victim had taught
her as to what type of deposition the victim should give.
As per various Judgments of the Hon'ble High Court, the
deposition of the child witness should be taken into
consideration minutely and cautiously and with utmost
care and it should be analyzed. Looking to the fact as
stated above by the victim as to how the evil act was
committed with her and as to how her mother had told
what should be stated in the deposition, the deposition of
the victim does not appear to be trustworthy and such
fact is also corroborated by the deposition of the doctor.
Thus, the deposition of this victim is not believable and
cannot be relied upon.

(19) The accused has taken defense that there is only
one hand-pump in his area and quarrels used to ensue
over the issue of water quite often between the mother of
the accused and the mother of the victim and therefore,
the accused has been falsely implicated in this case. The
complainant has admitted in her cross examination that
there is only one hand-pump in her area and the mother
of the accused also came there to fetch water. However,
she has denied the fact that quarrel used to ensue quite
often in the past with the mother of the accused, but the
victim has stated in her cross examination that quarrel

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took place between my mother and mother of Jinka, I
don't know as to why the quarrel took place, but the
quarrel took place between my mother and mother of
Jinka before the present incident. Thus, the defense side
has tried to bring on record as to why he has been
implicated in this case, which is corroborated by the cross
examination of the victim and the complainant.

(23) Serological report is received at Ex:56 about the
clothes and the medical samples of the accused and the
victim which were sent to F.S.L., Surat. But, it does not
mention presence of semen of the accused on the clothes
of the victim or vaginal swab. Thus, scientific evidence
also has not corroborated the fact of Prosecution case.

(24) Moreover, it is an important fact that when an adult
male commits intercourse with a six year old minor girl,
some injuries would be caused on private parts of the
male, or scratches occur or it turns reddish. The
investigating officer has also carried out medical
examination of the accused and the said medical
examiner namely Dr. Vinodbhai Upadhyay has been
examined at Ex:38. He has not stated any fact as to
whether there were signs of injuries on private parts of
the accused. Therefore, as there are no signs of injuries
on private parts of the accused, it may be possible that
he did not state any such fact. Thus, the said fact also
raises suspicion about the case of Prosecution. "

15. Having regard to the evidence on record, it is established
beyond any doubt that on the date of the incident, something
happened inside the house of the accused. If the accused
claims to be absolutely innocent or claims to have been falsely
implicated in the alleged offence, then we are afraid such a
claim gets falsified by the incriminating admission of the
accused himself before the doctor in the form of history given
by him in the course of his medical examination.
Unfortunately, this part of the evidence does not appear to
have been even looked into or touched by the Trial Court. We
do not find any merit in the contention of Mr. Barod, the

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learned counsel appearing for the accused that the history
given before the doctor by the accused should be ignored or
should not be looked into as the same is inadmissible in
evidence. Mr. Barod has confused himself with the confession
and admission. It is true that if the history given by the
accused before the doctor is strictly in the nature of a
confession, then such confession would be inadmissible in
evidence being hit by sections 25 and 26 of the Evidence Act.
However, if the history is in the nature of an incriminating
admission, then the same would be admissible and relevant
under section 21 of the Evidence Act. In the case on hand, the
accused cannot escape from the fact that he made an
incriminating admission before the doctor admitting his
presence on the date of the incident at the relevant point of
time and also admitting the fact that the victim was in his
company and that he took the victim to his house and closed
the door. What happened thereafter inside the house is the
only thing which needs to be looked into closely. The matter
does not rest at the stage of incriminating admission alone
before the doctor in the form of history. In the cross-
examination of the P.W. 1, the mother of the victim, a very
damaging suggestion has been put to her by the defence
counsel and the reply to such suggestion establishes the fact
that the victim being frightened came home crying. We also
take notice of the suggestion put by the defence to the P.W.
14, Dr. Vinodkumar Upadhyay. In the cross-examination of Dr.
Upadhyay, a suggestion was put by the defence that except
the history recorded in the medical papers, no further history
was given by the accused. The suggestion was accepted by
Dr. Upadhyay and Dr. Upadhyay has deposed that it was true
that except the history noted in the case papers, no other

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history was given by the accused which is suggestive of the
fact that the accused has accepted that he stated before the
doctor while narrating the history that on the date of the
incident, he was playing with the victim and, thereafter, he
took the victim to his house and closed the house. At this
stage, we shall deal with the contention canvassed by Mr.
Barod as regards the evidentiary value of such suggestions by
the defence counsel.

16. A Division Bench of this Court, to which, one of us J.B.
Pardiwala, J., was a party in the case of Tarjubhai
Narsingbhai Rathwa vs. State of Gujarat, 2014 (I) GLH
781 had the occasion to consider the evidentiary value of any
concession or admission of a fact by a defence counsel. We
quote the relevant observations made in the said judgment:

"25. At this stage, we deem it necessary to deal with an
important submission canvassed by Mr.Darji appearing
for the accused-appellant. Mr.Darji strenuously submitted
that a suggestion put by a defence counsel to a witness
in his cross-examination has no evidentiary value and
even if the same is incriminating in any manner would
not bind the accused as the defence counsel has no
implied authority to admit the guilt or the facts
incriminating the accused. Mr.Darji submitted that if the
suggestions are taken as a whole they definitely points
towards the guilt of the accused establishing his
presence at the time of the incident with a knife but that,
by itself, would not be sufficient to hold the accused
guilty of the offence of murder. In short, the sum and
substance of the submission of Mr.Darji is that such
suggestions should be ignored and on the basis of such
suggestions no inference can be drawn against the
accused that he admitted the facts referred to in the
suggestions. Mr.Darji further submitted that such
suggestions could be a part of the defence strategy to
impeach the credibility of the witness. According to
Mr.Darji the proof of guilt required of the prosecution

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does not depend on the suggestion made to a witness.

26. Although Mr.Darji placed no reliance on any
precedent to fortify his submission yet a little research on
our own revealed that a Division Bench of this High Court
in the case of Koli Trikam Jivraj and Another v. The
State of Gujarat reported in 1969 Criminal Law
Journal 409 has taken such a view that the suggestions
put in cross-examination are no evidence at all against
the accused and on the basis of such suggestions no
inference can be drawn against the accused that he
admitted the facts referred to in the suggestions.

27. We are afraid we are unable to persuade ourselves
to subscribe to the views expressed by their Lordships in
the case of Koli Trikam Jivraj (supra) but as the decision is
of a Division Bench and binding to a coordinate Bench we
must discuss the same and ascertain whether the view
taken in it still holds good in light of the Supreme Court
decisions later in point of time.

28. In Koli Trikam Jivraj (supra) during the course of
cross-examination questions were put to witnesses,
namely, Dharamsinh and Premji by the lawyer of the
accused which unmistakably indicated that the accused
nos.1 and 2 admitted that a fight had taken place
between them on one side and Dharamsinh and Talsinh
on the other during the night of the occurrence. In the
cross-examination of Dharamsinh, it was suggested by
the lawyer of the accused that Talsinh and he had
severely beaten the accused nos.1 and 2 and he was
falsely implicating the accused in order to save
themselves from a case that might be filed against them.
A similar suggestion was also made in the cross-
examination of Premji Prag and the suggestion was as
follows:

"Q: Is it true that your two sons beat accused Nos. 1
and 2 very severely outside your vadi land?

28.1 The answer was as under:

A.: It is not true that my two sons Dharamshi and
Talshi severely belaboured accused No. 1, No. 2
outside my vadi. I did not come to know either from

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Dharamshi or from Chhagan that they had beaten
the opponents. It is not true that I wanted to
concoct the evidence in this case,"

28.2 The trial Court took into consideration such
suggestions and held the accused persons guilty by
making the following observations:

This line of cross-examination as pointed out earlier
would unmistakably show that accused Nos. 1 and 2
admit that a fight did take place between them on one
side and Dharamshi and Talshi on the other side during
the night of occurrence. If that is proper inference to be
drawn, then field of inquiry becomes very narrow. Only
question then remains is whether that fight took place
inside vadi land of Premji Prag or outside it If it took place
inside vadi land of Premji Prag, why accused Nos. 1 and 2
came inside vadi land on the night of occurrence and that
too at unearthly hour of midnight . . . .Evidence against
accused Nos. 1 and 2 is that they admit that a fight had
taken place between them and Dharamshi and Talshi on
the other hand. The question asked in the cross-
examination of Dharamshi and Premji Prag is to the
effect that Dharamshi and Talshi, sons of Premji, beat
accused Nos. 1 and 2 during the night of the occurrence
just outside their vadi land. This question leaves no room
for doubt that accused Nos. 1 and 2 admit that fight did
take place between accused Nos. 1 and 2 on the one
hand and Dharamshi and Talshi on the other hand. Mr.
Shah had urged that statement of accused has to be
accepted as a whole or has to be rejected as a whole.
That principle does not arise in this case at all because I
am not accepting inculpatory part of the statement and
rejecting exculpatory part as inherently improbable."

28.3 During the course of arguments, the learned Public
Prosecutor appearing for the State highlighted before
their Lordships the observations, referred to above, made
by the trial Court and submitted that the view taken by
the trial Court relying on such suggestions was correct
and the conviction deserved to be confirmed.

28.4 The Division Bench did not agree with the
submission canvassed by the learned Public Prosecutor
and negatived the same by observing as under:

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15. To put it shortly Mr. Nanavati in advancing this
argument merely repeated the main ground on
which the conviction of the appellants was based by
the learned Sessions Judge viz., that the accused
No. 1 and accused No. 2 admitted their presence at
the scene of the offence and that they were beaten
by Dharamshi and Talshi. If the lawyer of the
accused puts a suggestion to a prosecution witness
that a particular event happened, or happened in a
particular manner, then it cannot be implied that
the lawyer commits himself to such an assertion.
Suggestions put in cross-examination are no
evidence at all and on the basis of such suggestions
no inference can be drawn against the accused that
he admitted the facts referred to in the suggestions.
It is possible that in putting suggestions the lawyer
of the accused, if he thinks fit and proper, may not
put the entire case of the accused in the cross
examination of a prosecution witness.

16. Moreover the lawyer who appears for the accused
keeping in mind the facts of the case that he defends,
has the right to take up a defence that he thinks just and
proper. In Nga Ba Sein v. Emperor, 37 Cri LJ 293 (AIR
1936 Rang 1), the facts were that the accused was
charged for committing murder of his brother-in-law. The
defence taken by the accused was that he had not
caused the injury. In the Sessions Court the lawyer
appearing for the accused openly advised his client to
admit the assault and plead the right of private defence
but the accused was stubborn and persisted in denying
altogether his liability In the crime. The learned Sessions
Judge did not allow the lawyer to take up the plea of right
of self-defence and the High Court hearing the appeal
observed:--

"Moreover, in this particular case it is not correct to
say that the right of self-defence was not pleaded. It
was pleaded by the pleader who was appearing for
the appellant and if the pleader of the accused
cannot set up a defence on his behalf, then I would
ask what is the use of his appearing at the trial at
all. The accused himself may on his own behalf take
up a line of defence but it is equally open to his
pleader on his behalf to take up another and

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alternative line of defence."

Therefore, the accused is entitled to the benefit of the
plea set up by the lawyer but it cannot be said that the
plea or defence which his lawyer puts forward must bind
the accused. The reason is that in a criminal case a
lawyer appears to defend the accused and has no implied
authority to make admissions against his client during
the progress of the litigation either for the purpose of
dispensing with proof at the trial or incidentally as to any
facts of the case. See Phipson's Manual of Evidence,
Eighth Edition Page 134. It is, therefore, evident that the
role that a defence lawyer plays in a criminal trial is that
of assisting the accused in defending his case. The
lawyer has no implied authority to admit the guilt or facts
incriminating the accused. The argument of Mr. Nanavati
that suggestion put by the lawyer of the accused in the
cross-examinations of the prosecution witnesses amounts
to an admission under Section 18 of the Indian Evidence
Act cannot be accepted.

17. Now in the present case it is in evidence that the
question that Dharamshi and Talshi had caused injuries
to the appellants was even put to Premji Prag who was
not an eye-witness to the incident. It seems question in
form of suggestion had been put in the cross-
examination of the prosecution witness for question's
sake. In their statements under Section 342 accused No.
1 and accused No. 2 stated that on the night of
occurrence the bullock of accused No. 1 had gone away
from his yadi land and, therefore, they had gone in the
search of the bullock, in the field situated within the
revenue limits of village Khakhoi. When they were
passing through one field two persons came there, beat
them and they fell down. The accused did not know who
these persons were or to which village they belonged.
Thus it was not the case of the accused in their
statements that they were beaten near the field of Premji
Prag and at the time at which Dharamshi and Talshi were
beaten. It was not their case that there was a fight
between them and their assailants. The suggestions put
by their lawyer in cross examination of Dharamshi and
Talshi were thus not adopted by the accused in their
statements under Section 342 of the Criminal Procedure

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Code. It is also to be noted that the attention of the
appellants was not drawn while recording their
statements under Section 342 of the Criminal Procedure
Code to these denials of the suggestions put in the cross-
examination of Dharamshi and Premji and no
circumstance can be used against the accused unless he
has been given an opportunity to explain the same. Thus
from mere fact that suggestions were made in the cross
examination of the prosecution witnesses to the effect
that Dharamshi and Talshi had beaten the appellants
outside the vadi land, no inference can be drawn that the
accused had admitted the same.

18. There is another principle which is equally to be
borne in mind that suggestions made in the cross-
examination of prosecution witnesses cannot be used to
fill in the gaps in the evidence of prosecution. Burden lies
on the prosecution to prove the guilt of the accused.
Such suggestions cannot stand higher than the
statement of the accused under Section 342 of the
Criminal Procedure Code. The statement of the accused
under Section 342 of the Criminal Procedure Code cannot
be used against the accused unless the prosecution
proves its case against him by satisfactory evidence. At
times it is used only to lend an assurance to the case of
the prosecution case but it can never be used to fill in the
gap in the evidence of prosecution. The learned Sessions
Judge was obviously, in our opinion, in error in relying on
the suggestions put in the cross-examination of
prosecution witnesses Dharamshi and Premji by the
lawyer of the accused, accepting them as statements of
the accused and binding on them, and treating the case
put forward therein as a circumstance against the
accused. In the present case the evidence led by the
prosecution is totally insufficient to prove that the
accused had committed the crime and no question of
lending assurance to prosecution arises. The
circumstance that suggestions were put to the
prosecution witnesses in their cross-examinations that
Dharamshi and Talshi beat the accused Nos. 1 and 2
outside their vadi cannot be used against the accused to
fill in the gap in the evidence of prosecution.

29. To our mind, with great respect, the views expressed
by Their Lordships in Koli Trikam Jivraj (supra) does not

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lay down the correct proposition of law in view of the
subsequent decisions of the Supreme Court on the issue
in question.

30. In Tarun Bora alias Alok Hazarika v. State of
Assam reported in 2000 Cri.LJ 4076, a three Judge
Bench of the Supreme Court was dealing with an appeal
against the order passed by the Designated Court,
Guwahati, in TADA Sessions case wherein the appellant
was convicted under Section 365 of the Indian Penal
Code read with Section 3 (1) and 3 (5) of the Terrorists
and Disruptive Activities (Prevention) Act.

30.1 The Supreme Court while considering the evidence
on record took note of a suggestion which was put to one
of the witnesses and considering the reply given by the
witness to the suggestion put by the accused, arrived at
the conclusion that the presence of the accused was
admitted. We quote with profit the following observations
made by the Supreme Court in paragraph 15, 16 and 17:

15. The witness further stated that during the assault,
the assailant accused him of giving information to the
army about the United Liberation Front of Assam (ULFA).
He further stated that on the third night he was carried
away blind-folded on a bicycle to a different place and
when his eyes were unfolded, he could see his younger
brother-Kumud Kakati (P.W.-2) and his wife Smt. Prema
Kakati (P.W.-3). The place was Duliapather, which is
about 6-7 kms. away from his village Sakrahi. The
witness identified the appellant-Tarun Bora and stated
that it is he who took him in an ambassador car from the
residence of Nandeswar Bora on the date of the incident.

16. In cross-examination the witness stated as under :
"Accused-Tarun Bora did not blind my eyes nor he
assaulted me."

17. This part of cross-examination is suggestive of the
presence of accused-Tarun Bora in the whole episode.
This will clearly suggest the presence of the accused-
Tarun Bora as admitted. The only denial is the accused
did not participate in blind-folding the eyes of the witness
nor assaulted him.

31. In Rakeshkumar alias Babli v. State of Haryana

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reported in AIR 1987 SC 690, the Supreme Court was
dealing with an appeal against the judgment of the High
Court affirming the order of the Sessions Judge whereby
the appellant and three other persons were convicted
under Section 302 read with Section 34 of the Indian
Penal Code. While re-appreciating the evidence on
record, the Supreme Court noticed that in the cross-
examination of the PW 4, Subesing, a suggestion was
made with regard to the colour of the shirt worn by one
of the accused persons at the time of the incident. The
Supreme Court taking into consideration the nature of
the suggestion put by the defence and the reply arrived
at the conclusion that the presence of the accused
namely Dharam Vir was established on the spot at the
time of occurrence. We quote with profit the following
observations made by the Supreme Court in paragraph 8
and 9 as under:

8. P.W. 3, Bhagat Singh, stated in his examination-in-
chief that he had identified the accused at the time of
occurrence. But curiously enough, he was not cross-
examined as to how and in what manner he Could
identify the accused, as pointed out by the learned
Sessions Judge. No suggestion was also given to him that
the place was dark and it was not possible to identify the
assailants of the deceased.

9. In his cross-examination, P.W. 4, Sube Singh, stated
that the accused Dharam Vir. was wearing a shirt of
white colour. It was suggested to him on behalf of the
accused that Dharam Vir was wearing a shirt of cream
colour. In answer to that suggestion, P.W. 4 said "It is not
correct that Dharam Vir accused was wearing a shirt of
cream colour and not a white colour at that time." The
learned Sessions Judge has rightly observed that the
above suggestion at least proves the presence of
accused Dharam Vir, on the spot at the time of
occurrence.

32. Thus, from the above it is evident that the suggestion
made by the defence counsel to a witness in the cross-
examination if found to be incriminating in nature in any
manner would definitely bind the accused and the
accused cannot get away on the plea that his counsel
had no implied authority to make suggestions in the
nature of admissions against his client.

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33. Any concession or admission of a fact by a defence
counsel would definitely be binding on his client, except
the concession on the point of law. As a legal proposition
we cannot agree with the views expressed by Their
Lordships of this Court in Koli Trikam Jivraj (supra) that an
answer by a witness to a suggestion made by the
defence counsel in the cross-examination does not
deserve any value or utility if it incriminates the accused
in any manner. At the same time, we are also unable to
agree with the views expressed by Their Lordships of this
Court that a statement of an accused recorded under
Section 313 of the Criminal Procedure Code does not
deserve any value of utility if it contains inculpatory
admissions. "

17. Thus, having regard to the position of law as discussed
above as regards the evidentiary value of the suggestions
which may be put by the defence to a witness in his cross-
examination, it is established that the accused was in
company of the victim and he had taken the victim to his
house and locked the same. This is suggestive of the fact that
for sometime, the accused and the victim were together all
alone inside the house of the accused. The defence itself has
brought on record that at the relevant point of time, the
mother of the accused was not at her house.

18. We also take notice of one another incriminating
circumstance emerging from the evidence on record. The
mother of the victim, in her evidence, has deposed that the
victim came home running very much frightened and disclosed
before her about the act alleged to have been committed by
the accused. As noted above, this, in fact, has been brought on
record by the defence itself that the victim came home crying
and was very much frightened. Thus, something happened

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inside the house of the accused and as soon as the victim was
able to get herself released from the clutches of the accused,
she ran straight to her home and disclosed about the incident
before her mother. The statement of the victim shortly after
the incident is admissible under section 6 of the Evidence Act
as "res gestae".

19. The subject treated in English and American books under
the head of 'Res Gestae' is found spread over Sections 6, 7, 8
and 9 and partially over Section 14 of the Indian Evidence Act.
Sir James Stephen defined 'res gestae' as a group of facts so
connected together as to be referred to by a single name, as a
crime, a contract, a wrong or any other subject of enquiry
which may be in issue. The rule of the evidence is admit res
gestae and exclude res inter alios. Illustrations deducible from
the decided cases reveal that a statement of wife: immediately
upon a hurt received and before she had time to devise
anything to her own advantage, was held admissible. The
statement of a victim shortly after he sustained injuries that
the accused inflicted them was held admissible under Section

6. State of excitement may well continue to exist after the
exciting fact has ended and it is this human factor that renders
declaration made under excitement admissible in proof of the
exciting fact. The declaration, though subsequent to the
occurrence, is yet held admissible because the Judge of fact is
persuaded to accept the assumption that the influence of the
exciting fact continued till the declaration was made, there
being proximity of time between the exciting fact and the
declaration. The test is to exclude the possibility of fabrication
or the possibility of anything having been devised to one's own
advantage, meaning thereby that there was a substantial

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contemporaneity between the declaration and the fact though
the declaration may be made during or immediately before or
after its occurrence. If a Judge of fact is convinced that the
interval, howsoever slight, between a declaration and the fact,
is one that probabilised fabrication, the declaration ceases to
be part of res gestae. On the contrary, the interval, not short,
but is such as permits deduction of an inference that declarant
was stilt under excitement of the fact, the declaration would be
part of res gestae.

20. The requirement of section 6 of the Evidence Act is that
the statement must have been made contemporaneously with
the act or immediately after it and not at such an interval of
time as to make it a narrative of the past events or to allow
time for fabrication. It, therefore, follows that the statements
by the victim to her mother were spontaneous. They were
made when she was still under excitement of the incident that
had taken place with her. She was very much frightened and
was crying. The statements would certainly be admissible
under sections 6 and 8, Illus. (J) of the Evidence Act. Situations
may rise where a statement though not admissible under
section 6, may yet be admissible under section 8 as evidence
of the conduct or as a former statement corroborating the
testimony of a witness under section 157 of the Evidence Act.
It can be said that the statement of the victim made to her
mother is admissible under sections 6 and 8 of the Evidence
Act. Yet, we hasten to add that even if the statement would
have been excluded from consideration under section 6 of the
Evidence Act, it would certainly be admissible under section
157 of the Evidence Act.

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21. We now proceed to consider whether we should accept
the testimony of the victim being a child witness as a whole
and hold the accused guilty of the offence of rape.

22. Before we proceed to evaluate the evidence on record,
both oral as well as the documentary, we may give a fair idea
as regards the position of law.

23. In the cases of rape, the law does not require
corroboration and, therefore, if the evidence of the prosecutrix
is believed, there is no bar to convict the accused on her
testimony alone. To put it in other words, there is no such law
which requires corroboration before the statement of the
prosecutrix is acted upon. Indisputably, a prosecutrix is a
competent witness (vide section 118 of the Evidence Act). She
is not an accomplice within the domain of section 133 of the
Evidence Act. Thus, her statement, as such, does not require a
corroboration within the meaning of section 114-B (114-A) of
the Evidence Act which provides that an accomplice is
unworthy of credit unless she is corroborated in material
particulars. The prosecutrix is a victim like any other victim of
any other offence. Hence, the same weight is to be attached
to her statement which requires to be attached to the
statement of an injured person. Therefore, if the statement of
the prosecutrix is quite clear and unequivocal on the point as
to who has ravished her, there is no reason, whatsoever, as to
why the said statement, without any corroboration from any
quarter, whatsoever, cannot form the basis of conviction.
Thus, her statement is to be scrutinized like the statement of
any other witness and if there is a ring of truth about it and if it
inspires confidence, the Courts would be under an obligation

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to rely thereupon. In that eventuality, they need not look for
corroboration. There is another aspect of the matter. Such
type of offences like molestation and rape are committed on
the sly. The accused like the case on hand are always on the
look out for secluded places which are not frequent by the
public for the commission of such type of offences. Thus, more
often, than not, no other ocular witness, to corroborate the
testimony of a prosecutrix would be available in such
circumstances.

24. We are fortified in our above view by the observations of
their Lordships of the Supreme Court as reported in State of
Maharashtra v. Chanderprakash Kewalchand Jain, (1990)
1 SCC 550: (1990) Cri. LJ 889), wherein Hon'ble Mr. Justice
Ahmadi, speaking for the Court observed as under:

"We think it proper, Having regard to the increase in the
number of sex-violation cases in the recent past,
particularly cases of molestation and rape in custody, it is
proper to remove the notion, if it persists, that the
testimony of a woman who is a victim of sexual violence
must ordinarily be corroborated in material particulars
except in the rarest of rare cases. To insist on
corroboration except in the rarest of rare cases is to
equate a woman who is a victim of the lust of another
with an accomplice to a crime and thereby insult
womanhood. It would be adding insult to injury to tell a
woman that her story of woe will not be believed unless it
is corroborated in material particulars as in the case of an
accomplice to a crime. Ours is a conservative society
where it concerns sexual behaviour. Ours is not a
permissive society as in some of the Western and
European countries. Our standard of decency and
morality in public life is not the same as in those
countries. It is, however, unfortunate that respect for
womanhood in our country is on the decline and cases of
molestation and rape are steadily growing...... Courts
must also realize that ordinarily a woman, more so a

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young girl, will not stake her reputation by levelling a
false charge concerning her chastity.".

25. The above view was reiterated in Karnel Singh vs.
State of M.P., (1995) 6 JT (SC) 437: (AIR 1995, SC2472) vide
para 8.

26. In Bharvada Bhoginbhai Hirjibhai v. State of
Gujarat, AIR 1983 SC 753 : 1983 Cri LJ 1096, the Supreme
Court observed thus (at page 756) of AIR :

"Corroboration is not the sine qua non for a conviction in
a rape case. In the Indian setting, refusal to act on the
testimony of a victim of sexual assault in the absence of
corroboration as a rule is adding insult to injury. Why
should the evidence of the girl or the woman who
complains of rape or sexual molestation be viewed with
the aid of spectacles fitted with fences tinged with doubt,
disbelieve or suspicion? To do so is to justify the charge
of male chauvinism in a male dominated society. (at
page 757) of AIR

A girl or a woman in the tradition bound non-permissive
society of India would be extremely reluctant even to
admit that any incident which is likely to reflect on her
chastity had ever occurred. She would be conscious of
the danger of being ostracized by the society or being
looked down by the society including by her own family
members, relatives, friends and neighbours. She would
face the risk of losing the love and respect of her own
husband and near relatives, and of her matrimonial home
and happiness being shattered. If she is unmarried, she
would apprehend that it would be difficult to secure an
alliance with a suitable match from a respectable or an
acceptable family. In view of these and similar factors the
victims and their relatives are not too keen to bring the
culprit to book. And when in the face of these factors the
crime is brought to light there is a built-in assurance that
the charge is genuine rather than fabricated."

27. From the above quoted observations of the Supreme
Court it is clear that the law does not require corroboration

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and, therefore, if the evidence of the prosecutrix is believed,
there is no bar to convict the accused on her testimony alone.

28. Rameshwar Kalyan Singh v. State of Rajasthan, AIR
1952 SC 54 : 1952 Cri LJ 547, is a case where the accused
Rameshwar was charged with committing rape on a young girl
of eight years of age. In that case while dealing with the issue
whether the conviction of an accused in a rape case become
illegal merely because it is based on the uncorroborated
testimony of the prosecutrix, the Supreme Court held thus (at
page 57) of AIR :

" The rule, which according to the cases has hardened
into one of law, is not that corroboration is essential
before there can be a conviction but that the necessity of
corroboration, as a matter of prudence, except where the
circumstances make it safe to dispense with it must be
present to the mind of the judge, and in jury cases must
find place in the charge, before a conviction without
corroboration can be sustained. The tender years of the
child, coupled with other circumstances appearing in the
case, such, for example, as its demeanour, unlikelihood
of tutoring and so forth, may render corroboration
necessary but that is a question of fact in every case. The
only rule of law is that this rule of prudence must be
present to the mind of the judge or the jury as the case
may be and be understood and appreciated by him or
them. There is no rule of practice that there must, in
every case, be corroboration before a conviction can be
allowed to stand."

29. In Shaikh Zakir v. State of Bihar, AIR 1983 SC 911 :
1983 Cri LJ 1285, the Supreme Court held that if a conviction is
based on the evidence of a prosecutrix without any
corroboration it will not be illegal on that sole ground.

30. Section 157 of the Evidence Act provides :

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"In order to corroborate the testimony of a witness, any
former statement made by such witness relating to the
same fact at or about the time when the fact took place,
or before any authority legally competent to investigate
the fact may be proved."

31. In Rameshwar Singh's case (supra) the statement of the
victim girl aged about eight years before her mother about the
rape committed on her about four hours after the incident was
received as corroborative evidence. The reason for the delay
was that the victim girl's mother was not at home when she
went there. In that context the "at or about" condition was
considered by the Supreme Court and on such consideration
the Supreme Court observed that the main test is whether the
statement was made as early as can reasonably be expected
in the circumstances of the case and before there was
opportunity for tutoring or concoction.

32. What should be the approach of a court while assessing
the medical evidence is indicated by the following observations
of the Supreme Court in Chimanbhai Ukabhai v. State of
Gujarat, AIR 1983 SC 484 : 1983 Cri LJ 822 at page 487 of AIR :

"Ordinarily, the value of medical evidence is only
corroborative. It proves that the injuries could have been
caused in the manner alleged and nothing more. The use
which the defence can make of the medical evidence is
to prove that the injuries could not possibly have been
caused in the manner alleged and thereby discredit the
eye-witnesses. Unless, however, the medical evidence in
its turn goes so far that it completely rules out all
possibilities whatsoever of injuries taking place in the
manner alleged by eye-witnesses, the testimony of the
eye-witnesses cannot be thrown out on the ground of
alleged inconsistency between it and the medical
evidence."

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33. The Apex Court in Suryanarayana v. State of
Karnataka, 2001 Cri LJ 705, has held as under (paras 5 to 7)
:--

"Admittedly, Bhavya (P.W. 2), who at the time of
occurrence was about four years of age, is the only
solitary eye-witness who was rightly not given the oath.
The time and place of the occurrence and the attending
circumstances of the case suggest no possibility of there
being any other person as an eye-witness. The evidence
of the child witness cannot be rejected per se, but the
Court, as a rule of prudence, is required to consider such
evidence with close scrutiny and only on being convinced
about the quality of the statements and its reliability,
base conviction by accepting the statement of the child
witness. The witness of P.W. 2 cannot be discarded only
on the ground of her being of teen age. The fact of being
P.W. 2 a child witness would require the Court to
scrutinize her evidence with care and caution. If she is
shown to have stood the test of cross-examination and
there is no infirmity in her evidence, the prosecution can
rightly claim a conviction based upon her testimony
alone, corroboration of the testimony of a child witness is
not a rule but a measure of caution and prudence. Some
discrepancies in the statement of a child witness cannot
be made the basis of discarding the testimony.
Discrepancies in the deposition, if not in material
particulars, would lend credence to the testimony of a
child witness who, under the normal circumstances,
would like to mix up what the witness saw with What he
or she is likely to imagine to have seen. While
appreciating the evidence of the child witness the Courts
are required to rule out the possibility of the child being
tutored. In the absence of any allegation regarding
tutoring or using the child witness for ulterior purposes of
the prosecution, the Court has no option but to rely upon
the confidence inspiring testimony of such witness for the
purposes of holding the accused guilty or not.
This Court in Panchhi v. State of U. P., (1998) 7 SCC 177 :
1998 AIR SCW 2777 : AIR 1998 SC 2726 : 1998 Cri LJ
4044 : 1998 All LJ 2018 held that the evidence of the
child witness must be evaluated more carefully and with

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greater circumspection because a child is susceptible to
be swayed by what others tell him and thus an easy prey
to tutoring. The evidence of the child witness must find
adequate corroboration before it is relied upon as the
rule of corroboration before it is relied upon as the rule of
corroboration is of practical wisdom than of law (vide
Prakash v. State of M. P. (1992) 4 SCC 225 : 1992 AIR
SCW 2582 : AIR 1993 SC 65 : 1992 Cri LJ 3703. Baby
Kandayanathi v. State of Kerala, 1993 Supp (3) SCC 667:
1993 AIR SCW 2192 : AIR 1992 SC 2275 : 1993 Cri LJ
2605 Raja Ram Yadav v. State of Bihar, (1991) 9 SCC 287
: 1996 AIR SCW 1882 : AIR 1996 SC 1613 : 1996 Cri LJ
2307; Dattu Ramrao Sakhare v. State of Maharashtra,
(1987) 5 SCC 341.

To the same effect is the judgment in State of U. P. v.
Ashok Dixit, (2000) 3 SCC 70 : 2,000 AIR SCW 548 : AIR
2000 SC 1066 : 2000 Cri LJ 1436 : 2000 All LJ 700."

34. In view of the aforesaid decision of the Apex Court, the
evidence of the prosecutrix cannot be rejected on the sole
ground that she is a child. The only legal requirement is that
the evidence of the child witness must be evaluated with
utmost care which is being done in the instant case.

35. The Supreme Court in the case of Aman Kumar Anr.
vs. State of Haryana, (2004) 4 SCC 379 had observed in
paras-5 to 11 as under:

"5. It is well settled that a prosecutrix complaining of
having been a victim of the offence of rape is not an
accomplice after the crime. There is no rule of law that
her testimony cannot be acted without corroboration in
material particulars. She stands at a higher pedestal than
an injured witness. In the latter case, there is injury on
the physical form, while in the former it is both physical
as well as psychological and emotional. However, if the
court of facts finds it difficult to accept the version of the
prosecutrix on its face value, it may search for evidence,
direct or circumstantial, which would lend assurance to

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her testimony. Assurance, short of corroboration as
understood in the context of an accomplice would suffice.

6. The offence of rape occurs in Chapter XVI of IPC. It
is an offence affecting the human body. In that Chapter,
there is a separate heading for "Sexual offences", which
encompass Sections 375, 376, 376A, 376B, 376C and
376D. "Rape" is defined in Section 375. Sections 375 and
376 have been substantially changed by Criminal Law
(Amendment) Act, 1983, and several new sections were
introduced by the new Act, i.e. 376A, 376B, 376C and
376D. The fast sweeping changes introduced reflect the
legislative intent to curb with iron hand, the offence of
rape which affects the dignity of a woman. The offence of
rape in its simplest term is 'the ravishment of a woman,
without her consent, by force, fear or fraud', or as 'the
carnal knowledge of a woman by force against her will'.
'Rape or Raptus' is when a man hath carnal knowledge of
a woman by force and against her will (Co.Litt. 123 b); or,
as expressed more fully, 'rape is the carnal knowledge of
any woman, above the age of particular years, against
her will; or of a woman child, under that age, with or
against her will'. (Hale P.C. 628) The essential words in
an indictment for rape are rapuit and carnaliter cognovit;
but carnaliter cognovit, nor any other circumlocution
without the word rapuit, are not sufficient in a legal sense
to express rape: (1 Hen. 6, 1a, 9 Edw. 4, 26 a (Hale
P.C.628). In the crime of rape, 'carnal knowledge' means
the penetration to any the slightest degree of the organ
alleged to have been carnally known by the male organ
of generation (Stephens Criminal Law, 9th Ed.,p.262). In
"Encyclopedia of Crime and Justice" (Volume 4, page
1356), it is stated "......even slight penetration is
sufficient and emission is unnecessary". In Halsburys'
Statutes of England and Wales (Fourth Edition) Volume
12, it is stated that even the slightest degree of
penetration is sufficient to prove sexual intercourse. It is
violation, with violence, of the private person of a
woman, an outrage by all means. By the very nature of
the offence it is an obnoxious act of the high order.

7. Penetration is the sine qua non for an offence of
rape. In order to constitute penetration, there must be
evidence clear and cogent to prove that some part of the
virile member of the accused was within the labia of the
pudendum of the woman, no matter how little (See

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Joseph Lines IC K 893). It is well-known in the medical
world that the examination of smegma loses all
importance after twenty four hours of the performance of
the sexual intercourse. (See Dr. S.P. Kohli, Civil Surgeon,
Ferozepur v. High Court of Punjab and Haryana thr.
Registrar (1979) 1 SCC 212). In rape cases, if the gland of
the male organ is covered by smegma, it negatives the
possibility of recent complete penetration. If the accused
is not circumcised, the existence of smegma round the
corona gland is proof against penetration, since it is
rubbed off during the act. The smegma accumulates if no
bath is taken within twenty four hours. The rupture of
hymen is by no means necessary to constitute the
offence of rape. Even a slight penetration in the vulva is
sufficient to constitute the offence of rape and rupture of
the hymen is not necessary. Vulva penetration with or
without violence is as much rape as vaginal penetration.
The statute merely requires evidence of penetration, and
this may occur with the hymen remaining intact. The
actus reus is complete with penetration. It is well settled
that the prosecutrix cannot be considered as accomplice
and, therefore, her testimony cannot be equated with
that of an accomplice in an offence of rape. In
examination of genital organs, state of hymen offers the
most reliable clue. While examining the hymen, certain
anatomical characteristics should be remembered before
assigning any significance to the findings. The shape and
the texture of the hymen is variable. This variation,
sometimes permits penetration without injury. This is
possible because of the peculiar shape of the orifice or
increased elasticity. On the other hand, sometimes the
hymen may be more firm, less elastic and gets stretched
and lacerated earlier. Thus a relatively less forceful
penetration may not give rise to injuries ordinarily
possible with a forceful attempt. The anatomical feature
with regard to hymen which merits consideration is its
anatomical situation. Next to hymen in positive
importance, but more than that in frequency, are the
injuries on labia majora. These, viz. labia majora are the
first to be encountered by the male organ. They are
subjected to blunt forceful blows, depending on the
vigour and force used by the accused and counteracted
by the victim. Further, examination of the females for
marks of injuries elsewhere on the body forms a very
important piece of evidence. To constitute the offence of
rape, it is not necessary that there should be complete

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penetration of the penis with emission of semen and
rupture of hymen. Partial penetration within the labia
majora of the vulva or pudendum with or without
emission of semen is sufficient to constitute the offence
of rape as defined in the law. The depth of penetration is
immaterial in an offence punishable under Section 376
IPC.

8. The plea relating to applicability of Section 376
read with Section 511, IPC needs careful consideration. In
every crime, there is first, intention to commit, secondly
preparation to commit it, thirdly, attempt to commit it. If
the third stage, that is, attempt is successful, then the
crime is complete. If the attempt fails the crime is not
complete, but law punishes the person attempting the
act. Section 511 is a general provision dealing with
attempts to commit offences not made punishable by
other specific sections. It makes punishable all attempts
to commit offences punishable with imprisonment and
not only those punishable with death. An attempt is
made punishable, because every attempt, although it
falls short of success, must create alarm, which by itself
is an injury, and the moral guilt of the offender is the
same as if he had succeeded. Moral guilt must be united
to injury in order to justify punishment. As the injury is
not as great as if the act had been committed, only half
the punishment is awarded.

9. A culprit first intends to commit the offence, then
makes preparation for committing it and thereafter
attempts to commit the offence. If the attempt succeeds,
he has committed the offence; if it fails due to reasons
beyond his control, he is said to have attempted to
commit the offence. Attempt to commit an offence can
be said to begin when the preparations are complete and
the culprit commences to do something with the
intention of committing the offence and which is a step
towards the commission of the offence. The moment he
commences to do an act with the necessary intention, he
commences his attempt to commit the offence. The word
'attempt' is not itself defined, and must, therefore, be
taken in its ordinary meaning. This is exactly what the
provisions of Section 511 require. An attempt to commit
a crime is to be distinguished from an intention to
commit it; and from preparation made for its commission.
Mere intention to commit an offence, not followed by any
act, cannot constitute an offence. The will is not be taken

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for the deed unless there be some external act which
shows that progress has been made in the direction of it,
or towards maturing and effecting it. Intention is the
direction of conduct towards the object chosen upon
considering the motives which suggest the choice.
Preparation consists in devising or arranging the means
or measures necessary for the commission of the
offence. It differs widely from attempt which is the direct
movement towards the commission after preparations
are made. Preparation to commit an offence is
punishable only when the preparation is to commit
offences under Section 122 (waging war against the
Government of India) and Section 399 (preparation to
commit dacoity). The dividing line between a mere
preparation and an attempt is sometimes thin and has to
be decided on the facts of each case. There is a greater
degree of determination in attempt as compared with
preparation.

10. An attempt to commit an offence is an act, or a
series of acts, which leads inevitably to the commission
of the offence, unless something, which the doer of the
act neither foresaw nor intended, happens to prevent
this. An attempt may be described to be an act done in
part execution of a criminal design, amounting to more
than mere preparation, but falling short of actual
consummation, and, possessing, except for failure to
consummate, all the elements of the substantive crime.
In other words, an attempt consists in it the intent to
commit a crime, falling short of, its actual commission. It
may consequently be defined as that which if not
prevented would have resulted in the full consummation
of the act attempted. The illustrations given in Section
511 clearly show the legislative intention to make a
difference between the cases of a mere preparation and
an attempt.

11. In order to find an accused guilty of an attempt with
intent to commit a rape, Court has to be satisfied that the
accused, when he laid hold of the prosecutrix, not only
desired to gratify his passions upon her person, but that
he intended to do so at all events, and notwithstanding
any resistance on her part. Indecent assaults are often
magnified into attempts at rape. In order to come to a
conclusion that the conduct of the accused was indicative
of a determination to gratify his passion at all events, and
in spite of all resistance, materials must exist.

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Surrounding circumstances many times throw beacon
light on that aspect. "

36. The Supreme Court in the case of Rajkumar vs. State
of M.P., 2014 Cri.L.J. 1943 has explained regarding the
admissibility of the evidence of a child witness observing as
under:

"8. It is a settled legal proposition of law that every
witness is competent to depose unless the court
considers that he is prevented from understanding the
question put to him, or from giving rational answers by
reason of tender age or extreme old age or disease or
because of his mental or physical condition. Therefore, a
court has to form an opinion from the circumstances as
to whether the witness is able to understand the duty of
speaking the truth, and further in case of a child witness,
the court has to ascertain that the witness might have
not been tutored. Thus, the evidence of a child witness
must be evaluated more carefully and with greater
circumspection because a child is susceptible to be
swayed by what others tell him. The trial court must
ascertain as to whether a child is able to discern between
right or wrong and it may be ascertained only by putting
the questions to him.

In State of Madhya Pradesh v. Ramesh Anr., (2011) 4
SCC 786, after considering a large number of its
judgments came to the conclusion as under:
"In view of the above, the law on the issue can be
summarized to the effect that the deposition of a child
witness may require corroboration, but in case his
deposition inspires the confidence of the court and there
is no embellishment or improvement therein, the court
may rely upon his evidence. The evidence of a child
witness must be evaluated more carefully with greater
circumspection because he is susceptible to tutoring.
Only in case there is evidence on record to show that a
child has been tutored, the Court can reject his
statement partly or fully. However, an inference as to
whether child has been tutored or not, can be drawn from
the contents of his deposition."

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(See also: Suryanarayana v. State of Karnataka, AIR 2001
SC 482): (2011 AIR SCW 81)."

37. The Supreme Court in State of Punjab v. Gurmit
Singh, (1996) 2 SCC 384, while dealing with this aspect,
observed as under:

"The courts must, while evaluating evidence, remain alive
to the fact that in a case of rape, no self-respecting
woman would come forward in a court just to make a
humiliating statement against her honour such as is
involved in the commission of rape on her. In cases
involving sexual molestation, supposed considerations
which have no material effect on the veracity of the
prosecution case or even discrepancies in the statement
of the prosecutrix should not, unless the discrepancies
are such which are of fatal nature, be allowed to throw
out an otherwise reliable prosecution case. The inherent
bashfulness of the females and the tendency to conceal
outrage of sexual aggression are factors which the courts
should not overlook. The testimony of the victim in such
cases is vital and unless there are compelling reasons
which necessitate looking for corroboration of her
statement, the courts should find no difficulty to act on
the testimony of a victim of sexual assault alone to
convict an accused where her testimony inspires
confidence and is found to be reliable. Seeking
corroboration of her statement before relying upon the
same, as a rule, in such cases amounts to adding insult to
injury. Why should the evidence of a girl or a woman who
complains of rape or sexual molestation be viewed with
doubt, disbelief or suspicion? The court while
appreciating the evidence of a prosecutrix may look for
some assurance of her statement to satisfy its judicial
conscience, since she is a witness who is interested in the
outcome of the charge leveled by her, but there is no
requirement of law to insist upon corroboration of her
statement to base conviction of an accused. The
evidence of a victim of sexual assault stands almost on a
par with the evidence of an injured witness and to an
extent is even more reliable. Just as a witness who has
sustained some injury in the occurrence, which is not
found to be self-inflicted, is considered to be a good

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witness in the sense that he is least likely to shield the
real culprit, the evidence of a victim of a sexual offence is
entitled to great weight, absence of corroboration
notwithstanding. Corroborative evidence is not an
imperative component of judicial credence in every case
of rape. Corroboration as a condition for judicial reliance
on the testimony of the prosecutrix is not a requirement
of law but a guidance of prudence under given
circumstances. It must not be overlooked that a woman
or a girl subjected to sexual assault is not an accomplice
to the crime but is a victim of another person's lust and it
is improper and undesirable to test her evidence with a
certain amount of suspicion, treating her as if she were
an accomplice. Inferences have to be drawn from a given
set of facts and circumstances with realistic diversity and
not dead uniformity lest that type of rigidity in the shape
of rule of law is introduced through a new form of
testimonial tyranny making justice a casualty. Courts
cannot cling to a fossil formula and insist upon
corroboration even if, taken as a whole, the case spoken
of by the victim of sex crime strikes the judicial mind as
probable."

38. In Madan Lal v. State of J. K.:(1997) 4 SCC 677 :
(1998) Cri. L.J. 667), the apex Court held that we do not think
that the prosecutrix's evidence can be examined by picking
one sentence in the cross-examination to find out whether she
is a truthful witness or not?' In the above case also, the victim
girl was aged 13 years and she stated that there had been
penetration into vagina whereas the doctor who examined the
prosecutrix stated that there was no mark of violence on her
private parts and the hymen was intact and on examination of
the vaginal smear no living or dead sperm was found on the
slide and therefore she opined that no definite opinion could be
given regarding the attempt to sexual intercourse. It was also
a case where an order of acquittal passed by the Sessions
Judge was set aside by the High Court. When the accused was
convicted for the offence under Section 376, I.P.C. read with

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511, I.P.C., the Apex Court on reappraisal of the evidence of
prosecutrix held as follows:

"It is thus apparent from the entire reading of the
prosecutrix's evidence that the accused had rubbed his
penis with the vagina of the prosecutrix and tried to
penetrate but could not succeed in penetrating and
ultimately got himself discharged and the hot semen fell
on the thighs of the prosecutrix. The statement made by
the prosecutrix on which Mr. Jain relied might have been
made on account of the inexperience of the young girl
who was being subjected to sexual harassment for the
first time and the same cannot be read in isolation bereft
of what she stated just previous to the aforesaid
statement. Having given our anxious consideration and
having scrutinized the evidence of the prosecutrix we are
in agreement with the High Court that her evidence is
that of a truthful witness, which gives an account of the
incident that happened to a rustic girl who was
traumatized on account of sexual harassment meted out
to her by none other than her own school Headmaster.
Her evidence can be inhesitatingly accepted by the Court
and has rightly been accepted by the High Court for
sustaining a conviction for the charge under attempt to
commit rape."

39. In the above case, it was found on evidence that there
was no penetration as such and semen was not found inside
the vagina but was only on the thighs of the girl and therefore,
the accused was convicted only for the offence under Section
376 read with 511, I.P.C.

40. In Koppula Venkat Rao v. State of A.P., (2004) 3 SCC
602 : 2004 Cri. LJ 1804, the apex Court while explaining the
distinction between committing the offence and attempt to
commit the offence of rape held as follows:

"The sine qua non of the offence of rape is penetration,

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and not ejaculation. Ejaculation without penetration
constitutes an attempt to commit rape and not actual
rape. In the above case, even according to the
prosecution, the accused ejaculated before actual
intercourse. However, the trial Court and the High Court
convicted the accused for the offence under Section 376,
I.P.C. and the apex Court altered the same to Section
376, I.P.C. read with 511, I.P.C. on the ground that the
commission of actual rape has not been established. It
was held that 'a culprit first intends to commit the
offence, then makes preparation for committing it and
thereafter attempts to commit the offence. If the attempt
succeeds, he has committed the offence; if it fails due to
reasons beyond his control, he is said to have attempted
to commit the offence."

41. In the case of Munna Vs. State of Madhya Pradesh,
2014 (10) SCC 254, the Hon'ble Apex Court held as under:-

"11. Thus, while absence of injuries or absence of raising
alarm or delay in FIR may not by itself be enough to
disbelieve the version of prosecution in view of the
statutory presumption under Section 114-A of the
Evidence Act but if such statement has inherent
infirmities, creating doubt about its veracity, the same
may not be acted upon. We are conscious of the
sensitivity with which heinous offence under Section 376
IPC has to be treated but in the present case the
circumstances taken as a whole create doubt about the
correctness of the prosecution version. We are, thus, of
the opinion that a case is made out for giving benefit of
doubt to the accused."

42.. The Supreme Court in Raju and others Vs. State of
Madhya Pradesh, (2008) 15 SCC 133 has held that the
accused must be protected against the possibility of false
implication. It has been further held that in so far as the
allegations of rape are concerned, the evidence of prosecutrix
must be examined as that of an injured witness whose
presence at the spot is probable but it can never be presumed
that her statement should without exception be taken as the

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gospel truth. It was held:

"10. The aforesaid judgments lay down the basic principle
that ordinarily the evidence of a prosecutrix should not be
suspect and should be believed, the more so as her
statement has to be evaluated at par with that of an
injured witness and if the evidence is reliable, no
corroboration is necessary. Undoubtedly, the aforesaid
observations must carry the greatest weight and we
respectfully agree with them, but at the same time they
cannot be universally and mechanically applied to the
facts of every case of sexual assault which comes before
the Court.

11. It cannot be lost sight of that rape causes the
greatest distress and humiliation to the victim but at the
same time a false allegation of rape can cause equal
distress, humiliation and damage to the accused as well.
The accused must also be protected against the
possibility of false implication, particularly where a large
number of accused are involved. It must, further, be
borne in mind that the broad principle is that an injured
witness was present at the time when the incident
happened and that ordinarily such a witness would not
tell a lie as to the actual assailants, but there is no
presumption or any basis for assuming that the
statement of such a witness is always correct or without
any embellishment or exaggeration."

43. In Tameezuddin alias Tammu Vs. State (NCT of
Delhi), (2009) 15 SCC 566, it has been held that though
evidence of the prosecutrix must be given predominant
consideration, but to hold that this evidence has to be
accepted even if the story is improbable and belies logic,
would be doing violence to the very principles which govern
the appreciation of evidence in a criminal matter. It had been
held as follows:

"9. It is true that in a case of rape the evidence of the
prosecutrix must be given predominant consideration, but
to hold that this evidence has to be accepted even if the

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story is improbable and belies logic, would be doing
violence to the very principles which govern the
appreciation of evidence in a criminal matter. We are of
the opinion that story is indeed improbable."

44. In Narender Kumar Vs. State (NCT of Delhi), (2012)
7 SCC 171, the Apex Court had held that minor or insignificant
inconsistencies, discrepancies or contradictions in the
statement of prosecutrix are inconsequential. However, if the
statement of the prosecutrix suffers from serious infirmities,
inconsistencies and deliberate improvements on material
points, no reliance can be placed thereon. It has further been
held that the onus of proof is on the prosecution to establish
each ingredient of the offence beyond reasonable doubt on the
basis of cogent evidence and materials on record. The sole
testimony of the prosecutrix can be relied upon for the purpose
of conviction without any corroboration if the same inspires
confidence, but if the court finds it difficult to accept the
version of the prosecutrix on its face value, it may look for
corroboration by other evidence, direct or circumstantial. The
Court must appreciate the evidence in its totality with utmost
sensitivity. It was held:

"20. It is a settled legal proposition that once the
statement of prosecutrix inspires confidence and is
accepted by the court as such, conviction can be based
only on the solitary evidence of the prosecutrix and no
corroboration would be required unless there are
compelling reasons which necessitate the court for
corroboration of her statement. Corroboration of testimony
of the prosecutrix as a condition for judicial reliance is not
a requirement of law but a guidance of prudence under the
given facts and circumstances. Minor contradictions or
insignificant discrepancies should not be a ground for
throwing out an otherwise reliable prosecution case.

21. A prosecutrix complaining of having been a victim of
the offence of rape is not an accomplice after the crime.

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Her testimony has to be appreciated on the principle of
probabilities just as the testimony of any other witness; a
high degree of probability having been shown to exist in
view of the subject matter being a criminal charge.
However, if the court finds it difficult to accept the version
of the prosecutrix on its face value, it may search for
evidence, direct or substantial, which may lend assurance
to her testimony. (Vide: Vimal Suresh Kamble v.
Chaluverapinake Apal S.P. Anr.,AIR 2003 SC 818;and
Vishnu v. State of Maharashtra, AIR 2006 SC 508)

The basic principle is when allegations of rape are made
ordinarily, the evidence of prosecutrix should be believed
and should be evaluated at par with that of an injured
person but when the statement appears to be not
convincing and creates doubts about its veracity the
Courts should have to look for corroboration from some
source. "

45. Normally, no girl or her parents would come forward to
make humiliating statement against the honour of the girl,
therefore, the evidence of the prosecutrix and her parents
should not be discarded lightly. The testimony of the victim in
case of sexual offence is vital and unless there are compelling
reasons which necessitated looking for corroboration of her
statement, the Court should find no difficulty to act on the
testimony of the victim of sexual assault.

46. It is true that in the case on hand, on medical
examination, no injury or swelling or blood or semen was found
on the penis of the appellant, but on this ground alone, the
entire case of the prosecution cannot be disbelieved. It is not
necessary that there should always be marks of injuries on the
penis of the accused.

47. By relying on the decision of the Supreme Court in the
case of Rahim Beg Mahadeo vs. The State of U.P., AIR
1973 SC 343, the learned counsel appearing for the appellant

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submitted that if a fully developed male is accused of having
committed rape of a minor girl of tender age and if no injuries
are noticed on the penis, then it points towards the innocence
of the accused.

48. We are afraid, it would be too much to say so. In Rahim
Beg (Supra), it appears from para-20 of the judgment that the
Court came to such conclusion on the basis of the opinion of
the doctor. Normally, an injury is caused to the male organ
when sexual act is committed by a fully developed male with a
girl of tender age who is virgin. However, this is not a
universal phenomenon.

49. It is relevant to quote para-9 at page 380 of the Modi's
Medical Jurisprudence and Toxicology, Twenty-first Edition :--

"9. Injuries to the genital parts may result from force
exerted by the accused or from forces applied by the
victim. In addition to scratches of lacerations on the penis
caused by the finger nails of the victim during a struggle,
an abrasion or laceration may be discovered on the
prepupe or glans penis, but more often on the fraenum,
due to the forcible introduction of the organ into the
narrow vagina of a virgin especially of a child, but it is not
necessary that there should always be marks of injuries
on the penis in such cases. "

50. To put it simply, it all depends on the quality of the
evidence of the prosecutrix. If the Court is satisfied that the
evidence of the prosecutrix is free from blemish and is
implicitly reliable., then on the sole testimony of the
prosecutrix, the conviction can be recorded. In appropriate
cases, the Court may look for corroboration from the
independent course or from the circumstances of the case
before recording an order of conviction.

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51. Considering the fact that we are looking into the evidence
of a six year old victim, we are of the view that we should
examine the evidence of the victim closely keeping in mind the
medical evidence on record.

52. The medical evidence practically is nil in this matter. It is
true that in the medical certificate, Exh.44, the hymen is shown
to be torn. At the same time, the labia majora and labia minora
were found to be normal. All other parts were found to be
normal. Indisputably, there was no bleeding. No semen was
found in the vaginal swab or on the clothes of the victim
including the clothes of the accused. It appears that there was
no ejaculation. Even, for the time being, if we believe that the
accused tried to insert his penis in the private part of the
victim, at the same time, the doctor has not ruled out the
vaginal penetration. Unfortunately, neither the Trial Court nor
the public prosecutor nor the defence counsel put any
question to the doctor regarding the hymen which was found
to be torn.

53. The learned APP appearing for the State and Ms. Shah,
the learned counsel appearing for the complainant submitted
that the hymen was found torn. According to both, this could
be only on account of the forceful penetration by the accused
in the private part of the victim.

54. Its difficult for us to straightway accept such submission.
The Medical Jurisprudence by Dr. R.M. Jhala and justice V.B.
Raju, Fourth Edition, gives a fair idea about the hymen and
Labia Majora. We quote as under:

'Hymen:- In examination of the genital organs, the state

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of hymen offers the most reliable clue. While examining
the hymen certain anatomical characteristics should be
remembered before assigning any significance to the
findings. The shape and the texture of the hymen is
variable. This variation, sometimes, permits penetration
without injury. This is possible because of the peculiar
shape of the orifice or increased elasticity. On the other
hand, sometimes the hymen may be more firm, less
elastic and gets stretched, and lacerated earlier. Thus a
relatively less forceful penetration may give rise to
injuries ordinarily possible with a forceful attempt. The
anatomical feature with regard to hymen which merits
consideration, is its anatomical situation, specially in girls
under the age of 12 years. In young girls under the age
of 12 years the hymen is situated relatively more
posteriorly (in backward position) and higher up in a
narrow vaginal canal. This prevents the hymen from
coming in contact with the male organ in forceful
penetration of the organ. This also saves the hymen from
bearing the brunt of the blow and thus it escapes injury.
Thus absence of injury to hymen in a girl under 12 years
does not rule out the act of rape.

Labia Majora:-Next to hymen in positive importance but
more than that in frequency are the injuries on labia
majora. These, viz., labia majora are the first to be
encountered by the male organ. They get blunt forceful
blow, depending on the vigour and force used by the
accused and counteracted by the victim. In case of girls
under 12 years where examination of hymen may not
prove useful, examination of labia majora gives
conclusive evidence. The narrowness of the canal makes
it inevitable for the male organ to inflict blunt, forceful
blow on the labia. Such blow invariably leads to
contusion, because of looseness and vascularity. The
interesting feature of such contusion is its vividness
specially on the side it forms inner wall of vagina.
Against the pink background of the mucous membrane
dark and contusion is visible even on initial inspection.
This is also an important point to be remembered in post
mortem examination with history of rape. Apart from
this, the contusion gives rise to pain and is tender on
palpation. Sometimes specially in the case of young girls,
such contusion is accompanied by laceration of vulva.
Such tear, because of uneven and excessive force
invariably used in acts of rape, is eccentric and more

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often in lower half. This is because of relatively increased
stretching power of the upper half of vagina or increased
rigidity of the lower part."

55. We find a bit difficult to take the view that the hymen was
found torn only on account of the alleged forceful sexual
assault. We say so because all other parts were found to be
absolutely normal. No redness or swelling or any other
abnormal features were noted by the doctor at the time of the
medical examination of the victim. The victim, in the case on
hand, was just six years old at the time of the incident. In
young girls under the age of 12 years, the hymen is situated
relatively more posteriorly (in backward position) and higher up
in a narrow vaginal canal. This prevents the hymen from
coming in contact with the male organ in forceful penetration
of the organ.

56. As noted above, the doctor could have clarified or
opined whether the tear was old or fresh. The hymen may get
ruptured on account of many reasons. Even while playing, if
the girl would have a heavy fall or gets herself hit with any
hard object, the same may lead to rupture of hymen.

57. In fact, the condition of the hymen should not be
considered as the conclusive determination whether rape is
committed or not. Even, in the cases where the hymen of the
victim is found to be intact, the charge for rape under section
376 IPC as defined in section 375 IPC could be said to be made
out if there are other circumstances or materials on record to
indicate that there was penetration.

58. An identical question was considered by the Supreme
Court in Santosh Kumar vs. State of M.P. 2006 (8) JT SC

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171, and para 10 of the report is reproduced below:

"10. The question, which arises for consideration, is
whether the proved facts establish the offence of rape. It
is not necessary for us to refer to various authorities as
the said question has been examined in considerable
detail in Madan Gopal Kakkad v. Naval Dubey JT 1992 (3)
SC 270 and paras 37 to 39 of the said judgment are being
reproduced below:

37. We feel that it would be quite appropriate, in this
context, to reproduce the opinion expressed by Modi in
Medical Jurisprudence and Toxicology (Twenty First
Edition) at page 369 which reads thus:

"Thus to constitute the offence of rape it is not necessary
that there should be complete penetration of penis with
emission of semen and rupture of hymen. Partial
penetration of the penis within the labia majora or the
vulva or pudenda with or without emission of semen or
even an attempt at penetration is quite sufficient for the
purpose of the law. It is therefore quite possible to
commit legally the offence of rape without producing any
injury to the genitals or leaving any seminal stains. In
such a case the medical officer should mention the
negative facts in his report, but should not give his
opinion that no rape had been committed. Rape is crime
and not a medical condition. Rape is a legal term and not
a diagnosis to be made by the medical officer treating
the victim. The only statement that can be made by the
medical officer is that there is evidence of recent sexual
activity. Whether the rape has occurred or not is a legal
conclusion, not a medical one."

59. In Parikhs Textbook of Medical Jurisprudence and
Toxicology, the following passage is found:

"Sexual intercourse. In law, this term is held to mean the
slightest degree of penetration of the vulva by the penis
with or without emission of semen. It is therefore quite
possible to commit legally the offence of rape without
producing any injury to the genitals or leaving any
seminal stains. "

In Encyclopedia of Crime and Justice (Vol.4) at page

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1356, it is stated:

"... even slight penetration is sufficient and emission is
unnecessary."

60. Therefore, the absence of injuries on the private parts of
a victim specially a married lady cannot, ipso facto, lead to an
inference that no rape has been committed.

61. We may also refer to the Medical Jurisprudence and
Toxicology by Glaister, Eleventh Edition on the subject. In
Chapter-XIV, titled rape and other sexual crimes, the learned
Author has stated as under:

'Local evidence of rape:-We turn now to consider the
signs in the sexual parts of a virgin female which when
found would support the examiner in concluding that
rape had been committed.

These are:-

Recent rupture of the hymen

Presence of blood, fresh or dried, about the vulva.

Marks of bruising, abrasions, or inflammation of the parts.

Presence of semen in the vagina.

Additional signs such as discomfort in walking or
frequency of micturition may be present in certain cases,
especially in young girls.

When there has been forcible attempted penetration or
complete penetration of the vagina, evidence of rupture
of the hymen will be present, as a rule, but both the
character and extent of the injury will vary in different
cases depending upon the nature of the hymen, the
disproportion between the male and female parts, the
extent of the penetration, and the amount of force used.

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The site of rupture presents a teat, or a series of stellate
tears, in the membrane marked in recent cases by a
blood-stained or inflamed line or lines.

Rupture of the hymen is almost invariably
accompanied by some degree of bleeding. The
severed edges do not unite, but become rounded off in
the process of healing which, in the case of slight tears,
occurs in from two to three days; more extensive tears
take a longer period to heal, usually about seven to ten
days or even slightly longer, depending upon
circumstances. It is not possible to date an injury of the
hymen after it has completely healed. In women who are
habituated to intercourse, and in those who have borne
children, the remains of the hymen constitute what are
known as carunculae myrtiformes which are situated
round and close to the vaginal orifice and present the
appearance of different-sized small, round, fleshy
projections or tags.

Attention should be paid to the presence of blood above
the vulva, thighs, and pubic area of the body, and on the
clothing. Whether blood is present or not, and if, present,
the amount will depend upon the extent of the injury and
the vascularity of the hymen. It sometimes happens that,
from the unusual quantity of effused blood, the examiner
may be led to suspect that the assailant has also
received injury to his genitals. In three cases which we
examined, the quantity of blood found on the girls'
underclothing, and at the place where the crime was
committed, was greater than would reasonably have
been expected from an inquiry to the hymen. On
examination of the suspected males who had been
apprehended, a recent rupture of the fraenum of the
penis is found in each case. Apart from such injury to the
male, coitus may cause considerable bleeding where, in
the hymen, a small vessel has been incompletely torn.
We have not seen this in rape, but we have seen it in the
case of the first coitus of marriage. The examiner should
be on the alert, however, that he is not deceived by a
false charge of rape, and that the presence of blood is not
merely menstrual. There will be corroborative evidence of
rape should bruising or abrasions of the genitals be
found, since either of these conditions is indicative of
violence."

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62. Keeping in mind the aforesaid medical evidence on
record, we now proceed to consider the evidence of the victim.
The victim is very clear in her statement recorded by the
learned JMFC, Bharuch under section 164 of the Cr.P.C.
However, we have noticed one very unusual word used by the
victim. The word, in Gujarati, used by the victim is "Gaand".
The plain meaning of this word would be "ass (anus)". We
wonder why the victim has used this particular word. It is not
even the case of the prosecution that the accused indulged
into carnal intercourse with the victim. It could be the
understanding of a small innocent girl. But she is very clear
that oil was applied on her private part. Her clothes were
removed. The accused also took of his clothes and, thereafter,
the accused committed the act. In her oral evidence on oath
before the Trial Court, she has stuck to what she stated in her
section 164 Cr.P.C. statement except one improvement and,
i.e, with regard to the threats administered by the accused. We
have also noticed that practically, there is no cross-
examination of the victim. Practically the entire examination-
in-chief of the victim has gone unchallenged. All that the
defence counsel tried to put to the victim in her cross-
examination is with regard to the enmity of the accused with
her mother. On the contrary, we take notice of one suggestion
put to the victim in her cross-examination, and the reply to
such suggestion goes against the accused. The reply to the
suggestion put by the defence establishes that the accused
had taken the victim at his house. Even before Dr. Rupesh
Jayramprakash Divakar (PW 13), the history given by the
mother is consistent with the version of the victim in her
section 164 Cr.P.C. statement as well as the oral evidence of
the victim before the Court. Dr. Bijal Rami (PW 15), however,

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has deposed about the history narrated by the victim, which is
somewhat incomplete or inconsistent with the original version
of the victim. Before Dr. Rami, the victim stated that the
accused had taken her to his house. The accused took off her
clothes, and in the past also, two to three times, he had done
so. Thereafter, as some noise was heard outside the house, the
accused left the victim and the victim ran away to her house.
Dr. Rami (PW 15) is also of the view that it is difficult to opine
whether there was actual sexual intercourse or not.

63. The victim has clearly stated in her examination-in-chief
that the accused took off her clothes, and he too, took off his
clothes. The victim has also clearly stated in her examination-
in-chief as regards the threats administered by the accused to
her at the time of the commission of the act.

64. There is no suggestion in the cross-examination on the
part of the accused to the aforesaid statement of the victim
that the accused did not remove her clothes. She had
categorically stated in her examination-in-chief that the
accused had removed her clothes. If the respondent-accused
had removed her clothes and he had not rebutted this
statement of the victim in her examination-in-chief, it is
something which goes against the accused.

65. In the aforesaid context, we may quote the observations
made by the Supreme Court, very much apt to the facts of the
present case, in the case of Pandharinath vs. State of
Maharashtra, (2009) 14 SCC 537. We quote paras-15 and 16
as under;

"15. The prosecutrix has clearly stated in her

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examination in chief that on waking up she found the
accused-appellant sitting near her legs and the accused-
appellant removed her under garments and gagged her
mouth. Subsequently, the accused-appellant felt sorry for
the incident and also apologized for the same.

16. There is no suggestion in the cross-examination on
the part of the accused to the aforesaid statement of the
prosecutrix that the accused did not remove her cloth.
She had categorically stated in her examination-in-chief
that the accused had removed her clothes. The accused-
appellant had also stated that the prosecutrix should
forgive him for his acts against which no suggestion was
put to the effect that he did not seek such an apology. If
the accused- appellant had removed her clothes and he
had not rebutted this statement of the prosecutrix in his
examination-in-chief, it is definitely a case of attempt to
rape. "

66. Now, here once again, we reiterate the well settled
position of law that there need not be full penetration of the
penis in the vagina of the victim. Even the partial penetration
within the Labia Majora of the vulva or pudendum with or
without emission of semen is sufficient to constitute the
offence of rape as defined in law. The depth of penetration is
immaterial in an offence punishable under Section 376 IPC. We
are clear, at least, on one aspect that the accused did made an
attempt to penetrate. However, from the medical evidence on
record, it appears that it just remained at the stage of an
attempt. Penetration does not seem to have taken place. There
was definitely an attempt to commit rape. The distinction
between an attempt of rape and rape is very subtle. When an
attempt to penetrate is made, but no penetration takes place,
it can be said to be an attempt to rape; but when an attempt to
penetrate is made and a slight penetration takes place, the
same would constitute rape. Although, the doctor, in the
medical certificate, Exh.44, has opined that vaginal penetration

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cannot be ruled out, but there is no further elaboration in this
regard in the oral evidence of the doctor. On what basis, such
an opinion has been expressed in the certificate is not
forthcoming.

67. As stated above, if we go by the case of the prosecution
that the hymen was found torn on account of the forceful
penetration, then there is no explanation why no laceration,
redness, swelling or abrasion was found on the Labia Majora,
Labia Minora and other private parts.

68. As to how the evidence of a witness has to be
appreciated, the Supreme Court observes as follows in State
of U.P. v. M.K. Anthony, AIR 1985 SC 48: (1985 Cri. LJ 493).

"While appreciating oral evidence of a witness, the
approach must be whether the evidence of the witness
read as whole appears to have a ring of truth. Once that
impression is formed, it is undoubtedly necessary for the
Court to scrutinise the evidence more particularly
keeping in view the deficiencies, drawbacks and
infirmities pointed out in evidence as a whole, and
evaluate them to find out whether it is agains the general
tenor of the evidence given by the witness and whether
the earlier evaluation of the evidence is shaken as to
render it unworthy of belief,"

69. In Sardul Singh vs. State of Haryana, AIR 2002 SC 3462,
it is observed as under:

"There cannot be a prosecution case with a cast iron
perfection in all respects and it is obligatory for the
Courts to analyse, sift and assess the evidence on record,
with particular reference to its trustworthiness and
truthfulness, by a process of dispassionate judicial
scrutiny adopting an objective and reasonable
appreciation of the same, without being obsessed by an
air of total suspicion of the case of the prosecution. What

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is to be insisted upon is not implicit proof. It has often
been said that evidence of interested witnesses should
be scrutinized more carefully to find out whether it has a
ring of truth and if found acceptable and seems to inspire
confidence, too, in the mind of the Court, the same
cannot be discarded totally merely on account of certain
variations or infirmities pointed or even additions and
embellishments noticed, unless they are of such nature
as to undermine the substratum of the evidence and
found to be tainted to the core. Courts have a duty to
undertake a complete and comprehensive appreciation of
all vital features of the case and the entire evidence with
reference to the broad and reasonable probabilities of
the case also in their attempt to find our proof beyond
reasonable doubt".

70. At page 439 of the book, Medical Jurisprudence and
Toxicology by Dr. K.S. Narayana Reddy, with regard to rape on
children, the following information is given:

"In young children there are few or no signs of general
violence, for the child usually has no idea of what is
happening, and also incapable of resisting. The hymen is
deeply situated, and as the vagina is very small, it is
impossible for the penetration of the adult organ to take
place. Usually, the penis is placed either within the vulva
or between the thighs. As such, the hymen is usually
intact and there may be little redness and tenderness of
the vulva.

As the penis enters the genitals, it tends to compress the
labia both anteriorly and laterally, producing bruising of
both the labia minora and the labia majora. The amount
of bruising will depend upon the force used".

71. The doubts entertained by the Trial Judge were based on
the fact that the medical evidence is nil and the victim
appeared to be tutored by her mother on account of the
enmity with the mother of the accused.

72. With regard to doubts entertained by the Courts, the
observations of the Supreme Court in the case of State of

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U.P. vs. Krishna Gopal, AIR 1988 SC 2154: (1989 Cri. LJ 288)
are as under:

"A person has, no doubt, a profound right not to he
convicted of an offence which is not established by the
evidential standard of proof beyond reasonable doubt.
Though this standard is a higher standard, there is,
however, no absolute standard. What degree of
probability amounts to "proof is an exercise particular to
each case. Doubts would be called reasonable if they are
free from a zest for abstract speculation. Law cannot
afford any favourite other than truth. To constitute
reasonable doubt, it must be free from an over emotional
response. Doubts must be actual and substntial doubts as
to the guilt of the accused person arising from the
evidence, or from the lack of it, as opposed to mere
vague apprehensions. A reasonable doubt is not an
imaginary, trivial or a merely possible doubt; but a fair
doubt based upon reason and common sense.

The concepts of probability, and the degrees of it, cannot
obviously be expressed in terms of units to be
mathematically enumerated as to how many of such
units constite proof beyond reasonable doubt. There is an
unmistakable subjective element in the evalution of the
degrees of probability and the quantum of proof. Forensic
probability must, in the last analysis, rest on a robust
commonsense and, ultimately, on the trained intutions of
the judge. While the protection given by the criminal
process to the accused persons is not be eroded, at the
same time, uniformed legitimisation of trivalities would
make a mockery of administration of criminal justice".

73. The following observations of the Supreme Court in the
case of Shivaji Sahebrao Bobade Anr. v. State of
Maharashtra, AIR 1973 SC 2622: (1973 Cri. LJ 1783) need to be
kept in mind by all the Trial Courts while appreciating evidence
in criminal trials.

"Even at this stage we may remind ourselves of a
necessary social perspective in criminal cases which
suffers from insufficient forensic appreciation. The

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dangers of exaggerated devotion to the rule of benefit of
doubt at the expense of social defence and to the
soothing sentiment that all acquittals are always good
regardless of justice to the victim and the community,
demand especial emphasis in the contemporary context
of escalating crime and escape. The judicial instrument
has a public accountability. The cherished principles or
golden thread of proof beyond reasonable doubt which
runs tro: the web of our law should not be stretched
morbidly to embrace every hunch, hesitancy and degree
of doubt. The excessive solicitude reflected in the
attitude that a thousand guilty men may go but one
innocent martyr shall not suffer is a false dilemma. Only
reasonable doubts belong to the accused. Otherwise any
practical system of justice will then break down and lost
credibility with the community. The evil of acquitting a
guilty person light-heartedly as a learned author has
sapiently observed, goes much beyond the simple fact
that just one guilty person has gone unpunished. If
unmerited acquittals become general, they tend to lead
to a cynical disregard of the law, and this in turn leads to
a public deamdn for harsher legal presumptions against
indicted 'persons' and more severe punishment of those
who are found guilty. Thus too frequent acquittals of the
guilty may lead to a ferocious penal law, eventually
eroding the judicial protection of the guiltless. For all
these reasons it is true to say, with Viscount Simon, that
"a miscarriage of justice may arise from the acquittal of
the guilty no less than from the conviction of the
innocent..." In short our jurisprudential enthusiasm for
presumed innocence must be moderated by the
pragmatic need to make criminal justice potent and
realistic. A balance has to be struck between chasing
chance possibilities as good enough to set the delinquent
free and chopping the logic of preponderant probability to
punish marginal innocents."

74. Mr. Barod sought to contend that there is contradiction in
the form of omission between the statement of the victim as
recorded under section 164 Cr.P.C and her evidence in the
court. Apart from the fact that it is difficult to say that there is
material contradiction between the evidence of the victim and
her statement, recorded under section 164, Cr.P.C., we must

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point out that the contradiction, if any, cannot be used in
favour of the defence, when the defence, while cross-
examining the victim, did not draw the attention of the victim
to the contents of her previous statement and, hence, without
giving any opportunity to the victim to have her say in the
matter, in the manner as is suggested by section 145 of the
Evidence Act, it would not only be unwise but highly prejudicial
to the prosecution if we attribute, now, any importance to the
contradiction, if any, between the evidence of the victim and
her statement, recorded under section 164 Cr.P.C, when no
opportunity has been given to the victim to have her say in the
matter.

75. The evidence of PW 2, Exh.14, who is a child witness,
though indicates that the appellant committed a dastardly act
of making an attempt to violate minor girl, but the evidence is
not conclusive to establish beyond all reasonable doubt that an
offence of rape within the meaning of section 375 IPC was
committed in this case. Penetration is sufficient to constitute
the sexual intercourse necessary to commit the offence of
rape, but the same must be established by the prosecution by
leading appropriate evidence. We do not rule out that no act
was committed by the appellant herein to violate the person of
the victim girl. The victim girl has herself stated that she was
made naked by the appellant and the appellant also removed
his undergarments with a positive intention to commit rape
which, however, could not be established conclusively in view
of the medical evidence as recorded by the PW Nos.13 and 15
respectively. From the evidence of the victim girl, coupled with
the other circumstances on record, we are of the view that the
appellant herein made an attempt to commit rape upon the

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victim girl, but the evidence as to commission of the offence of
rape is not conclusive. This is not a case of just an indecent
assault upon the victim punishable under section 354 of the
IPC.

76. Every criminal act of rape or an attempt thereof does
involve an indecent assault. In order to amount to an attempt
to commit an offence, the act of the accused must have
proceeded beyond the stage of preparation. If the act of the
accused does not constitute anything beyond preparation and
falls short of an attempt, he may escape the liability under
Sections 376 and 511 of the IPC, and may be liable to be
convicted only for an offence amounting to an indecent
assault. Their Lordships of the Supreme Court observed in
Abhayanand Mishra vs. State of Bihar, AIR 1961 SC 1698 :
(1961 (2) Cri. LJ 822);

"There is a thin line between the preparation for and an
attempt to commit an offence. Undoubtedly, a culprit first
intends to commit the offence, then makes preparation
for committing it and thereafter attempts to commit the
offence. If the attempt succeeds, he has committed the
offence; if it fails due to reasons beyond his control, he is
said to have attempted to commit the offence. Attempt to
commit an offence, therefore, can be said to begin when
the preparations are complete and the culprit
commences to do something with the intention of
committing the offence and which is a step towards the
commission of the offence. The moment he commences
to do an act with the necessary intention, he commences
his attempt to commit the offence. A person commits the
offence of 'attempt to commit a particular offence' when

(i) he intends to commit that particular offence; and (ii)
he, having made preparations and with the intention to
commit the offence, does an act towards its commission;
such an act need not be the penultimate act towards the
commission of that offence but must be an act during the
course of committing that offence."

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77. In every crime, there is first, intention to commit,
secondly preparation to commit it, thirdly, attempt to commit
it. If the third stage, that is, attempt is successful, then the
crime is complete. If the attempt fails the crime is not
complete, but law punishes the person attempting the Act,
Section 511 is a general provision dealing with attempts to
commit offences not made punishable by other specific
sections. It makes punishable all attempts to commit offences
punishable with imprisonment and not only those punishable
with death. An attempt is made punishable, because every
attempt, although it falls short of success, must create alarm,
which by itself is an injury, and the moral guilt of the offender
is the same as if he had succeeded. Moral guilt must be united
to injury in order to justify punishment. As the injury is not as
great as if the act had been committed, only half the
punishment is awarded.

78. Attempt to commit an offence can be said to begin when
the preparations are complete and the culprit commences to
do something with the intention of committing the offence and
which is a step towards the commission of the offence. The
moment he commences to do an act with the necessary
intention, he commences his attempt to commit the offence.
The word "attempt" is not itself defined, and must, therefore,
be taken in its ordinary meaning. This is exactly what the
provisions of Section 511 require. An attempt to commit a crime
is to be distinguished from an intention to commit it, and from
preparation made for its commission. Mere intention to commit
an offence, not followed by any act, cannot constitute an
offence. The will is not to be taken for the deed unless there be

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some external act which shows that progress has been made in
the direction of it, or towards maturing and effecting it.
Intention is the direction of conduct towards the object chosen
upon considering the motives which suggest the choice.
Preparation consists in devising or arranging the means or
measures necessary for the commission of the offence. It
differs widely from attempt which is the direct movement
towards the commission after preparations are made.

79. An attempt to commit an offence is an act, or a series of
acts, which leads inevitably to the commission of the offence,
unless something, which the doer of the act neither foresaw
nor intended, happens to prevent this. An attempt may be
described to be an act done in part execution of a criminal
design, amounting to more than more preparation, but falling
short of actual consummation, and, possessing, except for
failure to consummate, all the elements of the substantive
crime. In other words, an attempt consists in it the intent to
commit a crime, falling short of, its actual commission or
consummation/completion. It may consequently be defined as
that which if not prevented would have resulted in the full
consummation of the act attempted. The illustrations given in
Section 511 clearly show the legislative intention to make a
difference between the cases of a mere preparation and an
attempt

80. In order to find an accused guilty of an attempt with
intent to commit a rape. Court has to be satisfied that the
accused, when he laid hold of the prosecutrix, not only desired
to gratify his passions upon her person, but that he intended to
do so at all events, and notwithstanding any resistance on her

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part. Indecent assaults are often magnified into attempts at
rape. In order to come to a conclusion that the conduct of the
accused was indicative of a determination to gratify his passion
at all events, and in spite of all resistance, materials must
exist. Surrounding circumstances many times throw beacon
light on that aspect. (See Koppula Venkat Rao vs. State of
Andhra Pradesh, 2004 (3) SCC 602).

81. The defence put forward by the accused that he has been
falsely implicated in a serious offence like rape on a minor girl
on account of the enmity between the mother of the victim and
the mother of the accused is also very hard to digest. Having
regard to the materials on record, we find the defence quite
unpalatable.

82. In cases, where the accused claims that a false case has
been foisted against him, often suggestions are made to some
of the prosecution witnesses alleging malice on their part of ill-
will against the accused. Suggestion may be also with regard
to the ill-will between the accused and the victim or the
complainant in whom the witness may be interested. When
there are materials to support such allegation, eviedence of
such witness has to be either considered with caution or may
be rejected as tainted depending on the acceptability of such
material. But, where there are no materials to support such
suggestion, evidence of a witness cannot be rejected only on
suspicion. It is only if the malice or ill-will suggested is so
strong as to probabalise the possibility of the victim or the
complainant hoisting a false case, that, suggestion assumes
importance and the deposition of the witness has to be

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carefully scrutinised to decide about the acceptability or
otherwise of the evidence of such witness.

83. At the cost of repetition, we state that normally, no girl
or her parents would come forward to make humiliating
statement against the honour of the girl, therefore, the
evidence of the prosecutrix and her parents should not be
discarded lightly.

84. In Radhakrishna Nagesh vs. State of A.P., (2013) 11
SCC 688, the Supreme Court has held thus:

"Penetration itself proves the offence of rape, but the
contrary is not true i.e. even if there is no penetration, it
does not necessarily mean that there is no rape. The
Explanation to Section 375 IPC has been worded by the
legislature so as to presume that if there was
penetration, it would be sufficient to constitute sexual
intercourse necessary for the offence of rape. Penetration
may not always result in tearing of the hymen and the
same will always depend upon the facts and
circumstances of a given case. The Court must examine
the evidence of the prosecution in its entirety and then
see its cumulative effect to determine whether the
offence of rape has been committed or it is a case of
criminal sexual assault or criminal assault outraging the
modesty of a girl. "

85. On consideration of the evidence as discussed above, we
find the appellant guilty for commission of the offence under
section 376 read with section 511 IPC.

86. It is well settled legal position that if an accused is
charged of a major offence but is not found guilty thereunder,
he can be convicted of minor offence, if the facts established

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indicate that such minor offence has been committed.
Reference in this regard may be made to the decision of this
Court in State of Maharashtra v. Rajendra Jawanmal
Gandhi, (1997) 8 SCC 386; and Tarkeshwar Sahu v. State
of Bihar, (2006) 8 SCC 560.

87. It is true that there was no charge under Section 376
read with Section 511 IPC. However, under Section 222 of the
CrPC when a person is charged for an offence he may be
convicted of an attempt to commit such offence although the
attempt is not separately charged.

88. The Supreme Court in Shamnsaheb M. Multtani v. State of
Karnataka, (2001) 2 SCC 577 had an occasion to deal with
Section 222 of the CrPC. The Court came to the conclusion that
when an accused is charged with a major offence and if the
ingredients of major offence are not proved, the accused can
be convicted for minor offence, if ingredients of minor offence
are available. The Supreme Court observed as follows in
relevant para:

"16. What is meant by `a minor offence' for the purpose
of Section 222 of the Code? Although the said expression
is not defined in the Code it can be discerned from the
context that the test of minor offence is not merely that
the prescribed punishment is less than the major offence.
The two illustrations provided in the section would bring
the above point home well. Only if the two offences are
cognate offences, wherein the main ingredients are
common, the one punishable among them with a lesser
sentence can be regarded as minor offence vis-`-vis the
other offence."

89. So, if it appears to the Court that Section 376 IPC is not
applicable but a lesser offence under 376 read with 511 IPC is
made out, the court is not prevented from taking recourse to

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and punishing the accused for the commission of such lesser
offence. The attempt to commit rape is lesser offence than that
of rape, and there is no bar of converting the act of the
accused from Section 376 to Section 511.

90. Therefore, both the appeals are partly allowed. The
judgment and order of acquittal passed by the Special Addl.
Sessions Judge, Bharuch is hereby quashed and set aside. The
accused appellant is held guilty for attempt to commit rape
punishable under section 376 read with section 511 of the IPC.
As we are holding the respondent-accused guilty of an attempt
to commit rape, the respondent-accused cannot be held guilty
of the offences punishable under sections 4 and 6 of the
POCSO Act, 2012. The order of acquittal passed by the Trial
Court so far as the offences under the POCSO Act are
concerned, is hereby affirmed.

91. The next step in the process is to pass an appropriate
order of sentence. Before we proceed to pass an appropriate
order of sentence, it will be in the fitness of things, and in tune
with the provision of section 235 of the Cr.P.C. to hear the
accused before we appropriately punish him for the offence.

92. At this stage, the learned APP appearing for the State as
well as Ms. Shah, the learned counsel appearing for the
complainant submitted that there is no need to hear the
accused on the point of sentence. Both the learned counsel
submitted that section 235(2) of the Cr.P.C. are attracted only
at the stage of trial and not when the matter is before the
Appeal Court. Both the learned counsel placed reliance on a
decision of the Supreme Court in the case of Shankar Kerba

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Jadhav Ors. vs. The State of Maharashtra, AIR 1971 SC

840.

93. On the other hand, Mr. Barod, the learned counsel
appearing for the respondent-accused submitted that the
provisions of section 235(2) of the Code are mandatory and
the breach thereof would not be a mere irregularity curable
under section 465 of the Code. Besides the same, Mr. Barod
submitted that the respondent-accused, at the time of the
commission of the offence, was below 21 years of age and as
he has been convicted for attempt to commit rape punishable
under section 376 read with section 511 of the IPC, section 6 of
the Probation of Offenders Act, 1958 will apply with all force. In
such circumstances, according to Mr. Barod, this Court should
call for the report of the Probation Officer and, thereafter, hear
the accused on the point of sentence and take an appropriate
decision.

94. The question that falls for decision is whether the Appeal
Court, converting the judgment of acquittal into conviction,
must hear the accused on the question of sentence. In other
words, whether the provisions of section 248(2) of the Code
also apply to the Appeal Court.

95. The Law Commission in its 48th Report said : -

"45. It is now being increasingly recognised that a
rational and consistent sentencing policy requires the
removal of several deficiencies in the present system.
One such deficiency is the lack of comprehensive
information as to the characteristics and background of
the offender. The aims of sentencing themselves obscure

- become all the more so in the absence of information

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on which the correctional process is to operate. The
public as well as the Courts themselves are in dark about
judicial approach in this regard.

We are of the view that the taking of evidence as to the
circumstances relevant to the sentencing should be
encouraged and both the prosecution and the accused be
allowed to co-operate in the process....."

96. The recommendations of Law Commission were
incorporated in Sub-section (2) of Section 235 for trial before
Court of Session and in Sub-section (2) of Section 248 for trials
of warrant cases, of the Code of 1973.

97. Section 248(2) runs as under : -

"Where, in any case under this Chapter, the Magistrate
finds the accused guilty, but does not proceed in
accordance with the provisions of Section 325 or Section
360 he shall, after hearing the accused on the question
of sentence, pass sentence upon him according to law."

98. Section 235(2) of the Code runs as under : -

"If the accused is convicted, the Judge shall, unless he
proceeds in accordance with the provisions of Section
360, hear the accused on the question of sentence, and
then pass sentence on him according to law."

99. In Tarlok Singh v. State of Punjab, AIR 1977 SC 1747, it
was observed that Section 235(2) makes a departure from the
previous Code on account of humanist consideration to
personalise the' sentence to be awarded. The object of the
provision is to give a fresh opportunity to the convicted person
to bring to the notice of the Court such circumstances as may
help the Court in awarding an appropriate sentence having
regard to the personal, social and other circumstances of the

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case.

100. The scope of Section 235(2) was examined in Santa
Singh v. The State of Punjab, AIR 1976 SC 2386, and it was
observed as under : -

"The Court must in the first instance deliver a judgment
convicting or acquitting the accused. If the accused is
acquitted, no further question arises. But, if he is
convicted, then the Court has to hear the accused on the
question of sentence and then pass a sentence on him
according to law. When a judgment is rendered
convicting the accused, he is, at that stage, to be given
an opportunity to be heard in regard to the sentence and
it is only after hearing him that the Court can proceed to
pass the sentence."

101. The Supreme Court held that the provisions of Section
235(2) are mandatory and the breach thereof cannot be
ignored as inconsequential, nor can it be described as mere
irregularity curable Under Section 465.

102. The scope and importance of Section 248(2) was
examined in Mohammad Giasuddin v. State of Andhra Pradesh,
AIR 1977 SC 1926, wherein it was observed as under : -

"There is need on the part of judges to see that
sentencing ceases to be downgraded to Cindrella status.
The new Criminal Procedure Code gives an opportunity to
both parties to bring to the notice of the Court facts and
circumstances, which will help personalise the sentence
from a reformative angle. It is fundamental to put such a
provision to dynamic judicial use."

103. The aforesaid cases and catena of other cases, with
which I do not propose to burden this judgment, leave no
manner of doubt that hearing on the nature and quantum of

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punishment is a condition precedent for passing sentence on
the accused found guilty of the offence charged. The
provisions are mandatory and their breach vitiates the
sentence.

104. It was next argued that the provisions of Section 235(2)
are attracted only at the stage of trial and not when the matter
is before the appeal Court. It is, therefore, essential to examine
the powers of the appeal Court. Sub-section (a) of Section 386
of the Code runs as under : -

"(a) in an appeal from an order of acquittal, reverse such
order and direct that further enquiry be made, or that the
accused be retried or committed for trial, as the case
may be, or find him guilty and pass sentence on him
according to law"

105. The words "pass sentence according to law" were
interpreted in Shankar Kerba Jadhav and Ors. v. The State of
Maharashtra, AIR 1971 SC 840, wherein the Court observed :-

"An appeal is a creature of a Statute and the powers and
jurisdiction of the appellate Court must be circumscribed
by the words of the statute. At the same time a Court of
appeal is a "Court of error" and its normal function is to
correct the decision appealed from and its jurisdiction
should be co-extensive with that of the trial Court. The
words 'sentence according to law' mean any sentence
that could be given for the offence, but in imposing
sentence, the appeal court should not impose sentence
more severer than the accused should have got if he
were convicted by the Magistrate. In other words the
appeal Court should not exceed the maximum limit of
sentence which the trial Magistrate is empowered to
impose."

106. In Dagdu and Ors. v. State of Maharashtra, AIR 1977 SC
1579, the Supreme Court held :

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"The imperative language of Sub-section (2) of Section
235, Criminal Procedure Code leaves no room for doubt
that after recording the finding of guilt and the order of
conviction, the Court is under an obligation to hear the
accused on the question of sentence unless it releases
him on probation of good conduct or after admonition
Under Section 360. The mandate of Section 235(2) must
be obeyed in its letter and spirit. But if, for any reason, it
omits to do so and the accused makes a grievance of it in
the higher Court, it would be open to that Court to
remedy the breach by giving a hearing to the accused on
the question of sentence."

The Court may, in appropriate cases, have to adjourn the
matter in order to give to the accused sufficient time to
produce the necessary data and to make his contentions
on the question of sentence. That, perhaps, must
inevitably happen where the conviction is recorded for
the first time by a higher Court. For a proper and
effective implementation of the provision contained in
Section 235(2), it is not always necessary to remand the
matter to the Court which recorded the conviction.
Remand is an exception, not the rule, and ought to be
avoided as far as possible in the interests of expeditious,
though fair, disposal of cases."

107. The decision of the Supreme Court in Shankar Kerba
Jadhav (supra), relied upon by the learned APP as well as by
the learned counsel appearing for the complainant would not
save the situation. That was a case in which the accused was
convicted by the trial Court but was acquitted in appeal by the
Sessions Judge. The State filed appeal against his acquittal.
The High Court allowed the appeal and after setting aside the
acquittal convicted him. The High Court awarded sentence
higher than passed by the trial Court. In appeal before the
Supreme Court, it was argued that it was not open to the High
Court exercising the appellate jurisdiction Under Section
423(1)(a) of the Code of Criminal Procedure to enhance the

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sentence passed by the trial Magistrate and that even if the
High Court was competent to do so, the appellants should have
been asked to show cause why the sentence imposed on them
by the Magistrate should not be enhanced and in the absence
of such opportunity no enhancement of sentence was
competent. Repelling this argument, the Supreme Court
observed : -

"Where in an appeal from an order of acquittal preceded
by an order of sentence, the accused is given notice of
appeal and actually takes part in the hearing before the
High Court, it would be superfluous to give him notice to
show cause why a sentence within the competence of
the trial Magistrate should not be passed. The accused
knows or ought to know that the High Court was bound to
form its own conclusions on the material before it and
award a sentence which the merits of the case
demanded within the limit of the trial Court's
jurisdiction."

The absence of a show cause notice does not violate any
known principle of natural justice."

108. This was a case under the repealed Code of Criminal
Procedure, 1898. The observations applied to a case wherein
the appeal against acquittal was preceded by a conviction and
sentence by the trial Court and in such a case, show cause
notice was not essential. By implication, the learned counsel
for the accused argued that, in an appeal against acquittal
which was not preceded by a conviction and sentence, rules of
natural justice by issue of show cause notice ought to be
observed. Some force does appear in the submission of the
learned counsel for the accused. However, when the law has
already been laid down, in Dagdu's case (supra), with
reference to Code of 1973, we need not engage ourselves with

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regard to the provisions of repealed Code.

109. In view of the foregoing discussions, we are of the
opinion, that the appeal Court, on finding the accused guilty of
the charge for the first time, must hear the accused on the
nature and quantum of sentence as required by Section 235(2)
of the Code.

110. Sections 4 and 6 of the Probation of Offenders Act, 1958
reads thus;

"Sec.4:- Power of court to release certain offenders on
probation of good conduct.--

(1) When any person is found guilty of having
committed an offence not punishable with death or
imprisonment for life and the court by which the person
is found guilty is of opinion that, having regard to the
circumstances of the case including the nature of the
offence and the character of the offender, it is expedient
to release him on probation of good conduct, then,
notwithstanding anything contained in any other law for
the time being in force, the court may, instead of
sentencing him at once to any punishment direct that he
be released on his entering into a bond, with or without
sureties, to appear and receive sentence when called
upon during such period, not exceeding three years, as
the court may direct, and in the meantime to keep the
peace and be of good behaviour: Provided that the court
shall not direct such release of an offender unless it is
satisfied that the offender or his surety, if any, has a
fixed place of abode or regular occupation in the place
over which the court exercises jurisdiction or in which the
offender is likely to live during the period for which he
enters into the bond.

(2) Before making any order under sub-section (1), the
court shall take into consideration the report, if any, of
the probation officer concerned in relation to the case.

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(3) When an order under sub-section (1) is made, the
court may, if it is of opinion that in the interests of the
offender and of the public it is expedient so to do, in
addition pass a supervision order directing that the
offender shall remain under the supervision of a
probation officer named in the order during such period,
not being less than one year, as may be specified
therein, and may in such supervision order, impose such
conditions as it deems necessary for the due supervision
of the offender.

(4) The court making a supervision order under sub-
section (3) shall require the offender, before he is
released, to enter into a bond, with or without sureties, to
observe the conditions specified in such order and such
additional conditions with respect to residence,
abstention from intoxicants or any other matter as the
court may, having regard to the particular circumstances,
consider fit to impose for preventing a repetition of the
same offence or a commission of other offences by the
offender.

(5) The court making a supervision order under sub-
section (3) shall explain to the offender the terms and
conditions of the order and shall forthwith furnish one
copy of the supervision order to each of the offenders,
the sureties, if any, and the probation officer concerned."

Sec.6:-Restrictions on imprisonment of offenders under
twenty-one years of age.--

(1) When any person under twenty-one years of age is
found guilty of having committed an offence punishable
with imprisonment (but not with imprisonment for life),
the court by which the person is found guilty shall not
sentence him to imprisonment unless it is satisfied that,
having regard to the circumstances of the case including
the nature of the offence and the character of the
offender, it would not be desirable to deal with him under
section 3 or section 4, and if the court passes any
sentence of imprisonment on the offender, it shall record
its reasons for doing so.

(2) For the purpose of satisfying itself whether it would

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not be desirable to deal under section 3 or section 4 with
an offender referred to in sub-section (1) the court shall
call for a report from the probation officer and consider
the report, if any, and any other information available to
it relating to the character and physical and mental
condition of the offender."

111. In the aforesaid context, we may refer to and rely upon
the decision of the Supreme Court in the case of Satyabhan
Kishore Anr. vs. The State of Bihar, AIR 1972 SC 1554,
wherein the Supreme Court has observed as under;

" In Rattan Lal v. State of Punjab Court, after examining
Section 11 of the Act, held that the language of that
section was comprehensive enough to enable this Court
either to apply Section 6 on its own whenever it was
applicable, or direct the High Court to do so. Section 3 of
the Act confers on the Court discretion in the case of a
person found guilty of having committed an offence
punishable under Section 379 or Section 380 or Section
381 or Section 404 or Section 420 of the Penal Code or
any offence punishable with imprisonment of not more
than two years or with fine or both under the Code or any
other law provided there is no previous conviction proved
against such an offender, if the court by which he is
found guilty is of opinion that having regard to the
circumstances of the case, including the nature of the
offence and the character of the offender it is expedient
to do so, to release him after due admonition. Section 4
likewise gives discretion to the court in cases where a
person is found guilty of an offence provided it is one
which is not punishable with death or imprisonment of
life and the court by which such offender is found guilty
is of opinion, having regard to the circumstances of the
case and the nature of the offence, that it is expedient to
release him on probation on good conduct, to direct that
instead of sentencing him to any punishment he should
be released on entering into a bond with or without
sureties to appear and receive sentence when called
upon during such period not exceeding three years as
the court may direct and in the meantime to keep peace
and be of good behavior Sub-section (2) of Section 4

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requires the court to take into consideration the report, if
any, of the probation officer in relation to the case before
passing an order under Sub-section (1).

9. Whereas Sections 3 and 4 leave it to the discretion
of the court to make an order as provided therein,
Section 6 provides that where a person under 21 years of
age is found guilty of an offence punishable with
imprisonment (but not with imprisonment for life), the
court by which he is found guilty shall not sentence him
to imprisonment, unless it is satisfied, having regard to
the circumstances of the case, including the nature of the
offence, that it would not be desirable to deal with him
under Section 3 or Section 4, and if the court passes any
sentence of imprisonment on such offender it shall
record its reasons for doing so. Under Sub-section (2),
the court, for the purpose of satisfying itself whether it
would not be desirable to deal with such an offender
under Section 3 or Section 4, shall call for a report from
the probation officer and consider such report, if any, and
any other information available to it relating to the
character and physical and mental condition of the
offender. Section 6 thus lays down an injunction, as
distinguished from the discretion under Sections 3 and 4
not to impose a sentence of imprisonment upon an
offender of the class covered by the section unless for
reasons to be recorded by it, the court finds it
undesirable to proceed with him under Section 3 or
Section 4. "

112. Thus, in view of the above, we will have to call for the
report of the Probation Officer as mandated under section 6(2)
of the Act, 1958.

113. The Registry is directed to immediately call for the report
of the Probation Officer, District: Bharuch as regards the
respondent-accused and shall ensure that the same reaches
this Court on or before 18th March, 2019.

114. Mr. Barod, the learned counsel appearing for the

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respondent-accused shall inform the respondent-accused to
personally remain present before this Court on 18 th March,
2019. We, therefore, adjourn the case to 18 th March, 2019 for
hearing the accused-Sunilbhai Rameshbhai Vasava on the
question of sentence. If on that day, he fails to appear before
this Court, we shall hear his counsel on the question of
sentence.

115. The Registry shall notify this matter on 18th March, 2019
for the purpose of hearing the accused on the point of
sentence.

FURTHER ORDER ON SENTENCE

Dated:18.03.2019

1. Pursuant to our judgment and order dated 12th March,
2019, convicting the respondent-accused for the offence of
attempt to commit rape punishable under section 376 read
with section 511 of the IPC, the respondent-accused has
personally remain present today before us so that we can hear
him on the point of sentence. The respondent-accused
submitted that he hails from a very poor strata of the Society.
He is unmarried and earns his livelihood by doing the labour
work. He further submitted that he has to maintain his parents.
He further submitted that this is his first conviction. He has no
past antecedents.

2. Mr. Barod, the learned counsel appearing for the
respondent-accused submitted that having regard to what has
been pointed out by the respondent-accused before this Court,

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the accused may be given the benefit of the provisions of the
Probation of Offenders Act, 1958.

3. While convicting the accused vide order dated 12th
March, 2019 and for the purpose of hearing the accused on the
point of sentence, we called for the report of the probation
officer as mandated under section 6(2) of the Act, 1958
labouring under an impression that the respondent-accused,
as on date, is under 21 years of age. The accused has
produced his birth certificate, and in the said birth certificate,
his date of birth is shown to be 1 st June,1997. Thus, as on date,
the accused is above 21 years of age. In such circumstances,
section 6 of the Act, 1958 will have no application.

4. Mr. Barod, the learned counsel submitted that the
relevant date for the purpose of the applicability of section 6
of the Act, 1958 would be the date of commission of the
offence. According to Mr. Barod, at the time of the commission
of the offence, the accused was 18 years of age. He came to
be acquitted by the Trial Court, and it is the Appellate Court,
who is now holding the accused guilty of the offence of
attempt to commit rape. In such circumstances, according to
Mr. Barod, the benefit of section 6 of the Act, 1958 should be
given to the accused.

5. We are afraid, it is not possible to accept the contention
of Mr. Barod. The law as regards section 6 of the Act, 1958 has
been well explained by the Supreme Court in the case of
Sudesh Kumar vs. State of Uttarakhand, (2008) 3 SCC

111. We quote the relevant observations of the Supreme Court
in this regard.

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"6. The question involved in this case is of
interpretation of Section 6 of the Act. It would, therefore,
be appropriate to reproduce Section 6 which reads as
under:

6. Restriction on imprisonment of offenders under
twenty-one years of age. (1) When any person under
twenty-one years of age is found guilty of having
committed an offence punishable with imprisonment (but
not with imprisonment for life), the court by which the
person is found guilty shall not sentence him to
imprisonment unless it is satisfied, that having regard to
the circumstances of the case including the nature of the
offence and the character of the offender, it would not be
desirable to deal with him under section 3 or section 4,
and if the court passes any sentence of imprisonment on
the offender, it shall record its reasons for doing so.

(2) For the purpose of satisfying itself whether it would
not be desirable to deal under section 3 or section 4 with
an offender referred to in sub-section (1), the court shall
call for a report from the Probation Officer and consider
the report, if any; and any other information available to
it relating to the character and physical and mental
condition of the offender.

7. While interpreting Section 6 of the Act, a 3-Judge
Bench of this Court in the case of Daulat Ram v. The
State of Haryaya, (1972) 2 SCC 626, has said that the
object of Section 6 of the Act, broadly speaking, is to see
that young offenders are not sent to jail for the
commission of less serious offences mentioned therein
because of grave risk to their attitude to life to which
they are likely to be exposed as a result of their close
association with the hardened and habitual criminals who
may happen to be the inmates of the jail. The Court laid
down that Section 6 places restrictions on the courts
power to sentence a person under 21 years of age for the
commission of crimes mentioned therein unless the court
is satisfied that it is not desirable to deal with the
offender under Sections 3 and 4 of the Act. The court is
also required to record reasons for passing sentence of
imprisonment on such offender.

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8. In another case in the matter of Satyabhan Kishore
and Another v. The State of Bihar, (1972) 3 SCC 350, this
Court (a 3-Judge Bench) reiterated the principle laid down
by the Court in Daulat Ram case (supra) and Shelat, J.
speaking for the Court held that Section 6 lays down an
injunction as distinguished from discretion under
Sections 3 and 4 not to impose a sentence of
imprisonment on an offender, unless reasons are
recorded.

9. From the aforesaid judgments, it is apparent that
while imposing a sentence on an accused who is below
21 years of age and who is found guilty of having
committed an offence punishable with imprisonment
which is not the imprisonment for life, the court shall not
sentence him to imprisonment unless it is satisfied that
having regard to the circumstances of the case including
the nature of the offence and the character of the
offender it is not desirable to deal with him under Section
3 or Section 4 of the Act. It further mandates that if the
court wants to impose a sentence of imprisonment on the
offender who is below 21 years of age it shall record its
reasons for doing so. Thus, the court imposing a
sentence of imprisonment on an accused who is below 21
years of age would record reasons as to why it does not
find it desirable to deal with him under Section 3 or
Section 4 of the Act.

10. It can be noticed that the question of the offender
being of 21 years or below on the date of the commission
of offence or on the date of imposition of sentence of
imprisonment was not dealt with in the above-mentioned
cases.

11. The learned counsel for the appellant has relied
upon a 2-Judge Bench judgment of this Court in the case
of Masarullah v. State of Tamil Nadu, (1982) 3 SCC 458,
wherein this Court held as under:

"6. In case of an offender under the age of 21 years on
the date of commission of the offence, the court is
expected ordinarily to give benefit of the provisions of
the Act and there is an embargo on the power of the
court to award sentence unless the court considers
otherwise, `having regard to the circumstances of the
case including nature of the offence and the character of
the offender, and reasons for awarding sentence have to

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be recorded. Considerations relevant to the adjudication
of this aspect are, circumstances of the case, nature of
the offence and character of the offender. It is, therefore,
necessary to keep in view the aforementioned three
aspects while deciding whether the appellant should be
granted the benefit of the provisions of the Act."

12. It appears that in Masarullah case (supra), the Court
did not notice a 4-Judge Bench judgment delivered by
Ayyangar, J. in Ramji Missar and Another v. State of
Bihar, AIR 1963 SC 1088 ( (1963) Supp. 2 SCR 745),
wherein this Court has noticed argument before the High
Court that the Sessions Judge erred in not applying the
provisions of Section 6 of the Act to the accused. The
High Court repelled the contention holding that although
the accused might have been under 21 years of age on
the date of the offence, he was not a person under 21
years of age on the date when the Sessions Judge found
him guilty and sentenced him to a term of imprisonment,
and held that the crucial date on which the age had to be
determined being not the date of offence but the date on
which as a result of a finding of guilty sentence had to be
passed against the accused. In the factual matrix of that
case, this Court held as under:

"6. Taking first the case of Ramji, the elder brother, we
entirely agree with the High Court in their construction of
S.6. The question of the age of the person is relevant not
for the purpose of determining his guilt but only for the
purpose of the punishment which he should suffer for the
offence of which he has been found, on the evidence,
guilty. The object of the Act is to prevent the turning of
youthful offenders into criminals by their association with
hardened criminals of mature age within the walls of a
prison. The method adopted is to attempt their possible
reformation instead of inflicting on them the normal
punishment for their crime. If this were borne in mind it
would be clear that the age referred to by the opening
words of S.6(1) should be that when the court is dealing
with the offender, that being the point of time when the
court has to choose between the two alternatives which
the Act in supersession of the normal penal law vests in
it, viz., sentence the offender to imprisonment or to apply
to him the provisions of S.6(1) of the Act."
The Court further said:

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"19. We shall now proceed to consider one question
which was mooted before us in regard to the crucial date
for reckoning the age where an appellate court modifies
the judgment of the trial Judge, when S.6 becomes
applicable to a person only on the decision of an
appellate or a revisional court. Is the age of the offender
to be reckoned as at the date of the judgment of the trial
Judge or is it the date when the accused is, for the first
time, in a position to claim the benefit of S.6. We
consider that on the terms of the section, on grounds of
logic as well as on the theory that the order passed by an
appellate court is the correct order which the trial court
should have passed, the crucial date must be that upon
which the trial court had to deal with the offender. From
the judgment of the Court, it is apparent that the date of
the judgment of the trial court would be the crucial date
for consideration of the age of the accused while
applying Section 6 of the Act.

13. Faced with the 4-Judge judgment of this Court in
Ramji Missar (supra), the learned senior counsel for the
appellant contended that while considering the pari
materia provisions under the Juvenile Justice Act, 1986, a
Constitution Bench of this Court in Pratap Singh v. State
of Jharkhand and Another, (2005) 3 SCC 551, has held
that reckoning date for determining the age of a juvenile
is the date of the commission of the offence and not the
date when he is produced before the competent
authority or in the court and, therefore, the provisions of
Section 6 of the Act should be construed in the same
light, and the age of the accused for applying Section 6
of the Act has to be the date on which the offence was
committed.

14. While interpreting the provisions of the Juvenile
Justice Act, 1986 (for short the 1986 Act) and the Juvenile
Justice (Care and Protection of Children) Act, 2000 (for
short the 2000 Act), this Court has observed that these
Acts provide for the care, protection, treatment,
development and rehabilitation of juveniles. The Acts
being benevolent legislations, such interpretation must
be given which would advance the cause of the
legislations, i.e. to give benefit to juveniles.

15. Section 2(l) of the 2000 Act defines `juvenile in

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conflict with law as meaning a juvenile who is alleged to
have committed an offence. The definition of `delinquent
juvenile in the 1986 Act is referable to an offence said to
have been committed by him. It is the date of offence
that he was conflict with law. When a juvenile is
produced before the competent authority and/or court,
he has not committed an offence on that date, but he
was brought before the authority for the alleged offence
which he has been found guilty to have committed.
Therefore, what was implicit in the 1986 Act has been
made explicit in the 2000 Act. Sinha, J. in his concurring
judgment said that having regard to the constitutional
and statutory scheme it was not necessary for Parliament
to specifically state that the age of juvenile must be
determined as on the date of commission of the offence
and the same is inbuilt in the statutory scheme.

16. From the aforesaid, it is apparent that while
determining the age of a juvenile the Court has
interpreted the provision for giving benefit to a juvenile
who has committed an offence and was in conflict with
law. The offence having been committed, he came in
conflict with law on the date of commission of the offence
which is relevant for determining the age for giving
protection under the 1986 Act and the 2000 Act.

17. It can be noticed from Ramji Missar case (supra)
and Pratap Singh case (supra) that the object and
purpose of the Probation of Offenders Act, 1958 for
applying the relevant provisions to the accused are
different and cannot be said in pari materia with the
Juvenile Justice Act, 1986 and the Juvenile Justice (Care
and Protection of Children) Act, 2000. The Court would
not construe a Section of a statute with reference to that
of another statute unless the latter is in pari materia with
the former. Therefore, a decision made on a provision of
a different statute will be of no relevance unless
underlying objects of the two statutes are in pari materia.
The decision interpreting various provisions of one
statute will not have the binding force while interpreting
the provisions of another statute.

18. Section 6 of the Act has been construed by a 4-
Judge Bench of this Court in Ramji Missar case (supra)
and that will have the binding force while interpreting the
same Section in same statute and the decision of the

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Constitution Bench interpreting provisions of the 1986
Act and the 2000 Act would not be held to be a decision
on interpretation of Section 6 of the Act. Section 6 of the
Act would apply to the accused who is under 21 years of
age on the date of imposition of punishment by the trial
court and not on the date of commission of the offence. If
on the date of the order of conviction and sentence by
the trial court the accused is below 21 years of age the
provisions of Section 6 of the Act applies in full force.

19. That being the case, even if the date of birth of the
accused is held to be 28.6.1962 as alleged by him in the
petition, on the date of delivery of judgment of conviction
and sentence on 26.7.1985 by the Additional District
Sessions Judge he was more than 21 years of age and
thus was not entitled to the benefit under Section 6 of
the Act. "

6. Thus, section 6 of the Act would apply to the accused
who is under 21 years of age on the date of imposition of
punishment by the Trial Court and not on the date of
commission of the offence. If, on the date of the order of
conviction and sentence by the Trial Court or the Appellate
Court, the accused is below 21 years of age, the provisions of
section 6 of the Act, 1958 would apply.

7. Thus, we are clear in our mind that there is no question
of extending any benefit to the accused in terms of section 6 of
the Act, 1958.

8. Mr. Barod, thereafter, submitted that the accused may
be given the benefit of probation in terms of section 4 of the
Act, 1958. Section 4 of the Act, 1958 does not prescribe any
particular age. Section 4 merely lays down that if any person is
found guilty of having committed an offence not punishable
with death or imprisonment for life and the Court is of the

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opinion that, having regard to the circumstances of the case
including the nature of the offence and the character of the
offender, it is expedient to release him on probation of good
conduct, then, the Court may pass an appropriate order in
that regard. It is true that section 4 of the Act, 1958 will
definitely apply so far as the case on hand is concerned, but at
the same time, whether we should grant the benefit of the Act,
1958 or not is a question which requires consideration.

9. In Azhar Ali Vs. State of West Bengal, (2013) 10 SCC
31, the Supreme Court, while dealing with the question of
applicability of 1958 Act to an offence under Section 354 of
IPC, found as follows:

"12. In the instant case, as the appellant has committed
a heinous crime and with the social conditions prevailing
in the society, the modesty of a women has to be
strongly guarded and as the appellant behaved like a
roadside Romeo, we do not think it is a fit case where the
benefit of the 1958 Act should be given to the Appellant."

10. In State of Himachal Pradesh Vs. Dharam Pal,
(2004) 9 SCC 681, the Supreme Court was dealing with the
probation of offenders in case of offence of attempt to commit
rape. The finding of the Supreme Court in the said judgment is
relevant for all the offences against the women, which is as
follows:

"6. According to us, the offence of an attempt to commit
rape is a serious offence, as ultimately if translated into
the act leads to an assault on the most valuable
possession of a woman i.e. character, reputation, dignity
and honour. In a traditional and conservative country like
India, any attempt to misbehave or sexually assault a
woman is one of the most depraved acts. The Act
(Probation of Offenders Act, 1958) is intended to reform

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the persons who can be reformed and would cease to be
a nuisance in the society. But the discretion to exercise
the jurisdiction under Section 4 (of the Probation of
Offenders Act, 1958) is hedged with a condition about
the nature of the offence and the character of the
offender."

11. In the aforesaid case, although the Supreme Court did
not interfere with the benefit of probation granted by the High
Court due to peculiar facts of the case, yet it did not approve
the reasoning given by the High Court.

12. In the present case, the accused is not a minor rather he
has committed an offence against a helpless minor girl. The
offence is heinous in nature and there is no reason for granting
benefit of probation in this case.

13. Having regard to the social conditions prevailing in the
Society, the modesty of a woman has to be strongly guarded.
Any liberal attitude by imposing meager sentences or taking
too sympathetic view merely on account of lapse of time in
respect of such offences or the age of the accused at the time
of the commission of the offence as well as the age of the
accused at the time when the court passes an order of
sentence will be result wise counterproductive in the long run
and against the societal interest which needs to be cared for
and strengthened by string of deterrence inbuilt in the
sentencing system. We will be failing in our duty if appropriate
punishment is not awarded for a crime which has been
committed not only against the individual victim but also
against the society to which the criminal and victim belong.
The punishment to be awarded for a crime must not be

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irrelevant but it should conform to and be consistent with the
atrocity and brutality with which a crime has been perpetrated,
the enormity of the crime warranting public abhorrence and it
should "respond to the society's cry for justice against the
criminal".

14. Section 511 of the Indian penal code provides that
whoever attempts to commit an offence punishable under
Indian Penal Code with imprisonment for life or imprisonment
shall, where no express provision is made by Indian Penal Code
for the punishment of such attempt, be punished with
imprisonment of any description provided for the offence, for a
term which may extend to one-half of the imprisonment for life
or as the case may be, on half of the longest term of
imprisonment provided for that offence or with such fine as is
provided for the offence or with both.

15 As noted above, the minimum sentence of imprisonment
for the offence of rape under section 376 is rigorous
imprisonment for 10 years. Therefore, the minimum sentence
which may be awarded for attempt to commit rape would be
rigorous imprisonment for five years.

16. However, the maximum sentence for the offence of rape
under section 376 of the Indian penal code is life
imprisonment. Therefore, the maximum sentence for attempt
to commit rape could be half of life imprisonment.

17. Section 57 of the Indian Penal Code provides that in
calculating the fractions of terms of punishment, the
imprisonment for life shall be reckoned as equivalent to

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imprisonment for twenty years. In view of this, for the offence
of attempt to commit rape punishable under section 376 read
with section 511, the maximum sentence would be rigorous
imprisonment for 10 years.

18. In view of the aforesaid, we are of the view that the ends
of justice would be met if the accused is sentenced to undergo
three years of rigorous imprisonment.

19. We, accordingly, direct that the accused shall undergo
three years of rigorous imprisonment for the offence of
attempt to commit rape punishable under section 376 read
with section 511 of the IPC. The respondent-accused is
directed to surrender before the Trial Court within a period of
one week from today to serve out the sentence, failing which,
the court concerned is directed to take him into custody to
serve out the sentence. A copy of the order be sent to the
Special Addl. Sessions Judge, Bharuch for information and
action.

20. Before we close this matter, we would like to state that
we have missed something important. We candidly accept the
mistake on the part of this Court. Although, we have affirmed
the judgment and order of acquittal passed by the POCSO
Court so far as the offences punishable under sections 3 and 4
of the Act, 2012 is concerned, yet, we should have held the
accused guilty also of the offence of sexual assault as
explained in section 7 of the Act, 2012 and made punishable
under section 8 of the Act. Sections 7 and 8 are reproduced
herein below:

"Sec. 7
Sexual Assault:-Whoever, with sexual intent touches the
vagina, penis, anus or breast of the child or makes the

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child to touch the vagina, penis, anus or breast of such
person or any other person, or does any other act with
sexual intent which involves physical contact without
penetration is said to commit sexual assault.
Sec. 8
Punishment for sexual assault:- Whoever, commits sexual
assault, shall be punished with imprisonment of either
description for a term which shall not be less than three
years but which may extend to five years, and shall also
be liable to fine."

21. At the same time, it should also be kept in mind that
even after holding the accused guilty of the offence punishable
under section 8 of the Act, we could not have passed a
separate order of sentence having regard to the maximum
punishment provided under section 8 of the Act. We deem fit
to remind the Trial Judges to keep in mind a Division Bench
decision of this Court in the case of State of Gujarat vs.
Ashokbhai S/o. Mavjibhai Keshavbhai Parmar, Criminal
Appeal No.1153 of 2017 allied matter, decided on
13.06.2018, wherein M.R. Shah, J. (as his lordship then was),
speaking for the Bench, observed thus:

"Whether in the facts and circumstances of the case, the
learned trial Court is justified in not awarding any
separate sentence / punishment for the offence
punishable under Section 376 of the IPC ? and whether
learned trial Court is justified in awarding sentence of 7
years RI only while convicting the original accused for the
offences under Section 3 and 4 of the POCSO Act ? The
relevant provisions of the Indian Penal Code as well as
POCSO Act are required to be referred to, which are as
under:

"Section 2(d): child" means any person below the age of
eighteen years; Section 3 : Preventive sexual assault: A
person is said to commit "penetrative sexual assault" if

(a) he penetrates his penis, to any extent, into the
vagina, mouth, urethra or anus of a child or makes the
child to do so with him or any other person; or (b) he

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inserts, to any extent, any object or a part of the body,
not being the penis, into the vagina, the urethra or anus
of the child or makes the child to do so with him or any
other person; or (c) he manipulates any part of the body
of the child so as to cause penetration into the vagina,
urethra, anus or any part of body of the child or makes
the child to do so with him or any other person; or (d) he
applies his mourn to the penis, vagina, anus, urethra of
the child or makes the child to do so to such person or
any other person.

Section 4:Punishment For Penetrative Sexual
Assault:Whoever commits penetrative sexual assault
shall be punished with imprisonment of either description
for a term which shall not be less than seven years but
which may extend to imprisonment for life, and shall also
be liable to fine.

Section: 42: Alternative Punishment:Where an act or
omission constitutes an offence punishable under this
Act and also under sections 166A, 354A, 354B, 354C,
354D, 370, 370A, 375, 376, 376A, 376C, 376D, 376E or
section 509 of the Indian Penal Code (45 of 1860), then,
notwithstanding anything contained in any law for the
time being in force, the offender found guilty of such
offence shall be liable to punishment under this Act or
under the Indian Penal Code as provides for punishment
which is greater in degree.

Section 42(A): Act Not In Derogation Of Any Other
Law:The provisions of this Act shall be in addition to and
not in derogation of the provisions of any other law for
the time being in force and, in case of any inconsistency,
the provisions of this Act shall have overriding effect on
the provisions of any such law to the extent of the
inconsistency.

Section 43: Public Awareness About Act: The Central
Government and every State Government, shall take all
measures to ensure that:(a) the provisions of this Act are
given wide publicity through media including the
television, radio and the print media at regular intervals
to make the general public, children as well as their
parents and guardians aware of the provisions of this Act;

(b) the officers of the Central Government and the State
Governments and other concerned persons (including the

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police officers) are imparted periodic training on the
matters relating to the implementation of the provisions
of the Act."

11.1. Recently, in the case of Independent Thought
(supra), the Hon'ble Supreme Court had occasioned to
consider Section 42 of the POCSO Act. In the said
decision, the Hon'ble Supreme Court has observed that
Section 42 of the POCSO Act makes it clear that where an
offence is punishable, both under POCSO and also under
IPC, then the offender, if found guilty of such offence, is
liable to be punished under that Act, which provides for
more severe punishment. The Hon'ble Supreme Court
has further observed that same is against the traditional
concept of criminal jurisprudence that if two punishments
are provided, then the benefit of the lower punishment
should be given to the offender. The Hon'ble Supreme
Court has observed that the legislature knowingly
introduced Section 42 of POCSO to protect the interests
of the child. As the objects and reasons of the POCSO
show, this Act was enacted as a special provision for
protection of children, with a view to ensure that children
of tender age are not abused during their childhood and
youth. Therefore, considering Section 42 of the POCSO
Act where an act or omission constitutes an offence
punishable under POCSO Act as well as under the Indian
Penal Code, then, notwithstanding anything contained in
any law for the time being in force, the offender found
guilty of such offence shall be liable to punishment under
this Act or under the Indian Penal Code as provides for
punishment which is greater in degree. Therefore, on fair
reading of Section 42 of the Act while imposing
punishment for the Act or omission which constitutes an
offence under the POCSO Act as well as under the Indian
Penal Code, it is the duty caste upon the trial Court /
Court to award suitable punishment either under the
POCSO Act or under the IPC, however which is greater in
degree. Take an example of the present case. In the
present case, the accused has been guilty for the offence
punishable under Section 375 of the IPC punishable
under Section 376(2) of the IPC as well as under Section
3 of the POCSO Act punishable under Section 4 of the
POCSO Act.

11.2. As per subsection( 2) of Section 376 as amended by
the Act of 13 of 2013 the minimum punishment for

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having committed the rape under Section 375 of the IPC
is with RI for term which shall not be less than 10 years,
but which may extend to imprisonment for life and shall
also be liable to fine, which shall mean imprisonment for
the remainder of that person's natural life and shall also
be liable to fine. The punishment provided under Section
4 of the POCSO Act for the offence punishable under
Section 3 of the POCSO Act is imprisonment of either
description for a term which shall not be less than seven
years but which may extend to imprisonment for life and
shall also be liable to fine. As per Section 42 of the
POCSO Act, where an act or omission constitutes an
offence punishable under the POCSO Act and / or under
Sections 375 and 376 of the IPC, then, notwithstanding
anything contained in any law for the time being in force,
the offender found guilty of such offence shall be liable to
punishment under this Act or under the Indian Penal
Code as provides for punishment which is greater in
degree. Therefore, while imposing the sentence /
punishment, while holding the accused guilty for the
offence under the IPC as well as POCSO Act and for the
act or the omission of the accused which constitute an
offence punishable under the POCSO Act as well as IPC,
the learned trial Court is first required to determine the
punishment / sentence looking to the nature and gravity
of the offence and thereafter is required to impose the
appropriate sentence/punishment taking into
consideration Section 42 of the POCSO Act and is
required to impose the punishment / sentence either
under the POCSO Act or under the IPC, however which is
greater in degree. If such a procedure is adopted, in that
case, the same can be said to be awarding suitable
punishment / sentence as per Section 42 of the POCSO
Act."

(J. B. PARDIWALA, J)

(A. C. RAO, J)

Vahid

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