S.K. Agarwal, J.
1. Present appeal has been preferred by the appellant against judgment and order dated 14-12-1995, passed by Sri S.C. Agarwal, I Additional Sessions Judge, Banda, and convicting and sentencing him to eight years' R.I. under Section 376, I.P.C. in S.T. No. 200 of 1994.
2. The brief facts of the case are that the minor daughter of the informant Girja Devi, viz. Km. Kalli, had gone to the house of the appellant to play with his younger niece, aged about 3/4 years. It is alleged that the appellant had sent his niece out of the house and detained Kalli inside. He, thereafter, attempted to commit rape on her (Kalli). When the appellant was in the midst of the process the poor child started crying due to extreme pain, which attracted her mother to the spot. Seeing her mother approaching his house, the appellant ran away leaving the injured, hapless victim, inside his house. On enquiry by her mother, Kalli communicated to her that the appellant had committed sexual intercourse with her and due to pain she had cried out and wept. Several neighbouring persons, as alleged in the F.I.R. also witnessed the incident. Girja Devi wife of Jabra Yadav, resident of Village Harauli, lodged a report of the incident at P.S. Kotwali Baberu, District Banda, at about 8.30 p.m. on 31-5-1994. The distance of the police station from the spot of incident is only 2 Kms.
3. The prosecution, in support of its case, has examined PW 1 Girja Devi and Km. Kalli, Out of them Km. Kalli is the solitary eyewitness, being the victim. So far as PW 1 Girja Devi is concerned, she had seen the appellant coming out and running away. PW 3 Dr. Shiva Bharadwaj initially examined the victim. PW 4 Arvind Kumar Dubey is the Head Moharir. He had registered the F.I.R. and prepared relevant papers pertaining to it. PW 5 Dr. M.C. Mittal is Radiologist. He had x-rayed the elbow and knee joints of the victim for ascertainment of her age. PW 6 Raj Bali Singh is the Investigating Officer in the case. This is the entire evidence.
4. I have heard Sri Manish Tewari, learned counsel, amicus curiae, on behalf of the appellant and Sri Ratan Singh, learned A.G.A.
5. Learned counsel for the appellant has come up with the submission that this is wholly a false case foisted by the informant, Girja Devi upon the appellant on account of pre-existing enmity. He has taken recourse to prove this fact to the statement of the victim, Km. Kalli, wherein she has admitted the presence of some bad blood between the families. She had further stated that their houses adjoin. The next contention raised by the learned counsel for the appellant is that taking into consideration the normal process, there may be a difference of 2 years in her age either way. The victim cannot be treated to be less than 12 years of age. He also urged that initially the case was that an attempt was only made upon the victim, but no rape, as such, was committed.
6. In order to deal with the submissions made by the learned counsel for the appellant, I have to examine the evidences of PW 1 and PW 2 closely because in this case the prosecution, to support its case, examined no other independent witness. So far as PW 1 is concerned, admittedly, she was not a witness to the incident. She had only seen the appellant emerging out and running away from the house as soon as she reached there on hearing the alarm raised by her daughter, and therefore, at best, she is a witness under Section 6 of the Evidence Act of the circumstance that her daughter had gone inside the house of the appellant to play with his niece, and that she had heard an alarm, which attracted her to the spot. On arriving at the spot she had noticed the appellant's emergence and thereafter his running away and found her daughter crying with pain. Apart from this she had also noticed the clothes of her daughter heavily stained with blood. These circumstances, when taken cumulatively into consideration, prove that her daughter was ravished inside the house by the appellant. What is to be examined by the Court is whether the appellant was alone inside the house or , as admitted by PW 2 there were other family members, including male members. On this point, so far as the evidence of the mother, PW 1, is concerned, she is unequivocal in her statement that the appellant was all alone inside the house and none else was there. But when the testimony of PW 2 is looked into, it is found that she had stated that normally the sister-in-law (elder brother's wife), her children and the mother of the appellant used to live in that house. The defence has not further probed this witness whether his brother also resides in the house and he or others was/were present there or not. In these circumstances, I do not find any merit in the contention of the learned counsel that other family members were also present inside the house . At least presence of any male member other than the appellant is not borne out. I also do not find any valid reason to discard the testimony of the mother and the daughter that there was none in the house except the appellant.
7. It has also come in evidence of the two witnesses (PWs 1 and 2) that the blood stained clothes were not handed over to the police. The Head Constable (PW 4) has admitted this fact that the underwear and other blood stained garments, belonging to the victim, were not given to him at the time of registration of the F.I.R. The I.O. (PW 6) admits that they were not given to him also and he was informed that the under garment was thrown. It could not be found out in search. Therefore, it is true that in the present case an important piece of evidence is not available on record. The under garment would have provided us clinching evidence against the appellant, but, however, absence of the same cannot be taken as sufficient to discard the testimony of these two witnesses. It is common knowledge that in the villages clothes used during menstruation by the village ladies are generally being thrown of when it became stained with blood and the animals loitering on the road, including dogs, remove them away beyond their recovery. Similarly her undergarment too must have been lost once thrown away.
8. The victim, PW 2, had clearly stated that the appellant penetrated his male organ into her vagina and blood oozed out and she suffered severe pain, which made her cry out. She, no doubt, had admitted that immediately after the arrival of her mother, Girja Devi, Ram Ashrey and a neighbour, had also reached there. But she had very clearly stated that these persons had reached the spot after arrival of her mother, which means that by that time the appellant must have taken to his heels beyond their vision. It has been brought out in the evidence of PW 2 that during the day she had fallen on her flour mill, which was fixed in her own house, but she had not been probed further whether she had sustained any injury in that fall. In the result, no credence can be granted to this admission against the prosecution case.
9. It is beyond my comprehension that a mother, like the informant, will play with the honour of her own daughter just to fasten the guilt upon the head of a person falsely, like the appellant, due to enmity. Village polity has not degenerated to this extent in our country. Any such presumption will not only be preposterous but also come as a slur to simpleton looking village life.
10. The last submission of the learned counsel for the appellant deserves some consideration that it is a case of attempt and not commission of rape. A perusal of the injury report and the evidence of the Doctor (PW 3) indicates clearly that the hymen of the victim was affected partially by the so called attempt of the appellant. There was tenderness in the outer surface of the vagina. Hymen was torn at 6 O'clock and 9 O'clock position. There was also a small tear of 1 cm. on the parineal region at 6 O'clock position . On touch blood came out. The vagina smear examination report is not available on record. However, in the present case, in the facts and circumstances available on record, it does not affect the outcome of this appeal . The X-Ray examination report and the statement of PW 5 indicate that Epiphyuses around right elbow joint had not fused to their respective metaphyses. Epiphyses around right wrist joint had also not fused to their respective metaphyses. The X-Ray technician had found that all carpal bones had appeared. This does not help the appellant because carpal bones generally appear amongst the girls or females at the age of 3/ 4 at the most. In order to determine the age, the Court can take recourse to the normal means, which include the presence of number of teeth, height and weight, apart from ossification of bones. A perusal of two medical reports of this girl shows that she had 13/14 teeth. Her height was 1.25 me- ter and was 30 Kgs. in weight. But no secondary sex character had appeared as yet. Her vagina had admitted little finger with difficulty, which indicates that penetration i had not taken place in deep. Tear of hymen i cannot take place unless the limb had gone inside. Sometimes in young girls, specially ; belonging to villages, hymen is found torn because of hard work and labour. There is no confirmed medical opinion with regard to this tear in the hymen. No doubt, the Medical Officer (PW 5) was not subjected to any cross-examination on this point, but nonetheless the Court is not precluded from taking into consideration the circumstances,: which are available to it from the evidence as well as from the circumstances. PW 3 Dr. Shiva Bharadwaj had given the opinion that this injury could have been the result of penetration of the male organ at about 12.00 noon on 31-5-1994. Unfortunately, she had been left wholly untouched on the point. She had given out in her examination-in-chief itself to the question put to her by the prosecutor with regard to her opinion about age that she is not authorised to give any such opinion, but she had further stated that according to her report her age could be less than 12 years PW 5 Dr. M.C. Mittal was a little bit more assertive in his approach on this issue. He stated in the examination-in-chief than on the date of examination she was 10 years of age. This opinion was formed from the result of the X-Ray examination. The X-Ray examination does not show any fusion process of the' epiphyses having commenced as yet. This report, clearly negatives the setting in of this process in her. In the circumstances. I find it very difficult to form an opinion that this girl was more than 12 years of age. The learned counsel has argued on the basis of i Apex Court judgment, which says 'medical opinion can very by two years either way in estimation'. But when the opinion of the Radiologist (PW 5) is taken into consideration, it is found that at the most the age of this victim could be below 12 years but in no case above 12 years even if I accept this argument. However having given my anxious consideration to this issue. I am of the opinion that the age of this girl, at the time of commission of offence, was not beyond 10 or 11 years, a opined by PW 5.
11. Learned Additional Sessions Judge had awarded the appellant a sentence of 8 years' R.I. only. While doing, so he had completely ignored the amendment introduced in Section 376, I.P.C. Section 376(1), I.P.C. reads as under :
376. Punishment for rape. - (1) Whoever, except in the cases provided for by Sub-section (2), commits rape shall be punished with imprisonment of either description for a term which shall not be less than seven years but which may be for life or for a term which may extend to ten years and shall also be liable to fine unless the woman raped is his own wife and is not under twelve years of age, in which case, he shall be punished with imprisonment of either description for a term which may extend to two years or with fine or with both :
Provided that the court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than seven years.
Thus, so far as Sub-section (1) of Section 376, I.P.C. is concerned, no doubt, a minimum sentence of seven years or, in cases of heinous nature, life imprisonment or a sentence up to 10 years is permissible. Lesser sentence is also permissible for adequate and special reasons to be mentioned in the judgment.
12. Coming up to Sub-section (2) of Section 376, I.P.C. Clause (f) provides that whoever , 'commits rape on a woman when she is under twelve years of age, shall be punished with rigorous imprisonment for a term which shall not be less than ten years but which may be for life and shall also be liable to fine'. Thus, according to this amendment, whoever commits rape on a woman when she is under twelve years of age, must be visited in the least with R.I. for a term not less than 10 years. The sentence must also be visited with fine. The learned Additional Sessions Judge has completely ignored this part of Section 376, I.P.C. from his consideration. Such a lapse on the part of Sessions Judges or Additional Sessions Judges is beyond imagination. They are supposed to be conversant with the provisions of law, specially the special provisions and they must go through the sections first before imposing any sentence after conviction of an accused, I refrained myself from taking a serious view against the then learned Additional Sessions Judge, Sri S.C. Agarwal, in the present case, for the lapse on his part at this juncture. However, as an act of rectification, a copy of this judgment must be sent to him, if he is still in service.
13. There is, thus, no scope for any reduction of the sentence. There exist no extenuating circumstances to do so in this case. The ravished girl was only 10 or 11 years old at the time of incident and the appellant himself was a fully grown up young man. Enmity between the families was an admitted fact and may have impelled him to undermine and damage the honour of the poor girl and the family. The lust for sex had made him a maniac. His lust coupled with enmity makes this assault a will thought out design. This girl was visiting his house to play with his adolescent niece unmindful of that enmity and its consequences that ultimately visited her. Her innocent mind could not even notice the threads of lust present in the eyes of this appellant. It was beyond her age. In the light of the above no leniency on sentence can be extended to the appellant. The trial Court had already erred on the side of leniency. Since the appellant is in jail all along from the very inception, I do not find it reasonable to issue him any notice for enhancement.
14. In the result this appeal fails and is accordingly dismissed. His conviction and sentence are confirmed. The appellant is in jail. He shall serve out his sentence. Whatever remissions are available too him under the law that shall be taken into consideration by the jail authorities in constituting and computing his sentence.