HIGH COURT OF JUDICATURE AT ALLAHABAD

AFR

Reserved

Court No. 63

Case :- CRIMINAL APPEAL No. – 1523 of 2014

Appellant :- Rajveer Pal

Respondent :- State Of U.P.

Counsel for Appellant :- Deepak Kumar Srivastava

Counsel for Respondent :- Govt. Advocate

Hon’ble Krishna Pratap Singh,J.

This Criminal Appeal has been filed against a judgement and order dated 20.3.2014 passed by the learned Additional Sessions Judge, Court No. 2, Shahjahanpur in ST No. 188 of 2012 arising out of Case Crime No. 25 of 2012, under sections 376 IPC and 3(2)(v) of Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, (herein after referred to as “SC and ST Act”), police station Khudaganj, district Shahjahanpur. By the impugned judgement and order the learned Additional Sessions Judge has convicted and sentenced the appellant to ten years RI and a fine of Rs. 10,000/- and in default of payment of fine, the appellant was further directed to undergo one years further rigorous imprisonment.

However, by the same judgement and order, the learned Additional Sessions Judge has acquitted the accused-appellant for the offence punishable under Section 3(2)(v) of SC and ST Act.

The brief facts giving rise to the present appeal are that a written report was handed over by the complainant Rajpal, Ext. Ka-1 at the police station Khudaganj, district Shahjahanpur to the effect that he is Jatav by caste, whereas the accused is Gaderiya by caste. He works at the brick kiln of Sarvesh Singh. His wife Sunita was at Home. The house of Lala Ram is situated in front of his house. The Barat of Lala Ram’ son returned. The relative of Lala Ram namely Rajveer Pal also came to the house of Lala Ram. The daughter of the complainant aged about 7 years was playing outside his house. When the complainant returned from the brick kiln and when he did not see his daughter, then on enquiry, his wife told him that she is playing outside. When he was searching his daughter, he was told by the co-villager Nanhey that his daughter was taken away by Rajveer, relative of Lala towards Jungle. Thereafter complainant along with Ram Sagar, Prem Bahar, Shyam Bihari and others went to Jungle in search of the victim. When the complainant and others reached to the field of Ram Karan, they saw that Rajveer after getting the victim laid on the field and stuffing her mouth, he was committing rape with her. When the complainant and other challenged him, he tried to run away, but he was apprehended by the complainant and others. The blood was oozing from the vagina of the victim. The clothes of the accused-appellant was also stains with blood. The accused-appellant was brought to the police station with the assistance of the villager. It is further mentioned in the report that necessary action may be taken against the accused after lodging the report of the complainant.

On the basis of the aforesaid report, a chick FIR was registered against the accused-appellant at case crime No. 25 of 2012, under section 376 IPC and 3(1)12 of SC and ST Act by the Clerk Constable Krishna Chandra, Ext. Ka-7, which was entered into GD, Ext. Ka-8.

After the registration of the case, as the case was registered under the SC and ST Act also, the investigation of the case was entrusted to PW 7, Shri V.K. Tyagi, Circle Officer, Tilhar. He recorded the statements of the witnesses and on 10.2.2012 on the pointing out of the eyewitness Prem Bahar, he inspected the spot and prepared the site plan, Ext. Ka-9. On 10.2.2012, the bloodstained pant of the accused-Rajveer, which was taken into possession by the Station House Officer, was entered into case diary. On 12.2.2012 he directed the Station Officer to sent the clothes of the victim, Ext- Ka-10 to the Forensic Science Laboratory. After completion of the investigation, he submitted the charge sheet against the accused-appellant, which he proved as Ext. Ka-11.

As the case was exclusively triable by the court of sessions, the learned Magistrate committed the case to the court of sessions. Learned Additional Sessions Judge, Court No. 2, Shahjahanpur vide order dated 10.5.2012 framed the charges against the accused-appellant under section 376 IPC and 3(2)5 of the SC and ST Act.

To bring home the guilt of the appellant, the prosecution has examined as many as seven witnesses. PW-1, Rajpal is the complainant of the case. PW -2 is the victim of the case. PW-3 is Prem Bahar, the real brother of the complainant. PW-4 is Dr. Kiran Bala, who has medically examined the victim. PW-5 is Dr. K.G. Gangwar. PW 6 is Clerk Constable Krishna Chandra. PW 7 is Shri V.K. Tyagi, the Circle Officer, the investigating officer of the case. PW-8 is Dr. M.P. Gangwar, the Radiologist, who has conducted x-ray of the victim.

PW-1 is the complainant of the case and father of the victim. He reiterated the versions given in the FIR. He further deposed that he has got the report scribed by Dalveer Singh and after putting his thump impression, handed over the same at the police station Khuda Ganj. He also deposed that blood was oozing from the vagina of the victim. The clothes of the victim was also bloodstained. The victim was not in a position to walk. She was taken to the police station on the lap.

PW 2 is the victim of the case. As the victim was only 7 years of age, the learned Additional Sessions Judge in order to satisfy himself as to whether she is able to depose has put certain questions. On being satisfied that she is in a position to depose, she was examined in Court. She deposed that accused-appellant Rajveer forcibly took her. When she was playing in front of her house, Rajveer took her to the field. Accused-appellant got her undressed and thereafter did misdeed with her. She wept and cried. On the place of occurrence, her mother and father arrived. She also deposed that thereafter she became unconscious. Her father has caught hold of accused-appellant in her presence. She also deposed that she was medically examined by the doctor.

PW 3, Prem Bahar is the real brother of the complainant. He more or less reiterated and supported the statement given by the complainant in his evidence.

PW 4, Dr. Kiran Bala, in her examination-in-chief, has deposed that on 10.2.2012 she was posted as Emergency Medical Officer in the District Women Hospital, Shahjahanpur. On the same day at 2.40 AM, she has medically examined the victim. She deposed that the victim was of an average built. Her height was 103 cm and weight was 14 kgs. Teeth 10/10. There was no mark of injury on breast or abdomen. Hymen was intact. A perennial tear of 1.0 cm x 1.0 cm of 6 O’ clock position present. No bleeding was present at the time of medical examination, but slight plasma secretion and dry blood spot seen. Duration of the injury was 6-8 hours. Her vagina admits tip of little finger. Two slides of vaginal smear were prepared and sent to the pathologist. For determination of her age, she was advised x-ray. She proved her report as Ext. Ka-2. In the report of the pathologist, no spermatozoa was found. The age of the victim was about 8 years.

PW-5 is Dr. K.G. Gangwar, who deposed that on 10.2.2012 he was posted as consultant in the district hospital, Shahjahanpur. He has medically examined the accused-appellant at 2.40 AM on 10.2.2012 in the district hospital, who was brought by CP 815 Raj Kumar. On examination he found blood stains over upper and anterior part of pant and underwear. Public hair was present. There was no sight of abrasion on back and pubic area and whole of body. This witness has further deposed that pant and underwear were put under sealed bundle of cloth and handed over to concern constable for forensic expert opinion and blood group matching to the girl blood. A slide was prepared and sent to the pathologist for sperm examination.

The evidence of PW 6 Krishna Chandra, Clerk Constable, who prepared the chik FIR and PW 7 Shri V.K. Tyagi, the then Circle Officer, who investigated the case, has already been discussed above.

PW-8 is Dr. M.P. Gangwar, the Radiologist, who has conducted x-ray of the victim, who proved his report as Ext. Ka-12.

After the closure of the prosecution evidence, the statement of the accused-appellant under Section 313 Cr.P.C. was recorded, in which he denied the charges and stated that he has been falsely implicated due to enmity and that the charge sheet has wrongly been submitted.

Learned Additional Sessions Judge, Court No. 2, Shahjahanpur, after hearing the learned counsel for the parties and after scrutinizing the evidence on record, convicted and sentenced the appellant as stated in the first paragraph of the judgement.

Heard Shri Noor Mohammad, learned counsel for the appellant and learned Additional Government Advocate representing the State and perused the record of the case.

Learned counsel for the appellant has only argued the appeal on the quantum of sentence, however, he whispered that the appellant has falsely been implicated in this case due to enmity.

On the other hand learned Additional Government Advocate has submitted that the prosecution has discharged its onus in proving the case against the appellant beyond all reasonable doubt and there is no reason to slacken the sentence awarded by the Trial Court.

Being the Appellate Court, I have considered the impugned judgement and order passed by the learned Additional Sessions Judge, Court No. 2 Shahjahanpur to satisfy myself about the correctness of the impugned judgement and order.

The prosecution has come out with a clear cut case in the FIR that when the complainant along with others were searching his daughter, he was told by one Nanhey that his daughter was taken away by one Rajveer, relative of Lala Ram towards Jungle. On the information of Nanhey, when the complainant and others reached the filed of Ram Karan, they saw that Rajveer after getting her laid on the field and after stuffing her mouth, he was committing rape with the victim. The accused-appellant was also apprehended on the spot and was brought to the police station. Thereafter the accused-appellant was medically examined by Dr. K.G. Gangwar at 2.40 AM on 10.2.2012 in the district hospital, who was brought by CP 815 Raj Kumar. On examination, doctor found blood stains over upper and anterior part of pant and underwear of the accused-appellant.

Further, in the report of the Forensic Science Laboratory, Ext. Ka-13, human blood was found on the pant of the accused-appellant as also on the skirt, frock and underwear of the victim, which fortify the prosecution story. The accused-appellant did not explain as to how there was stains on his pant.

Hon’ble Supreme Court in Pradeep Singh Vs State of Rajasthan, AIR 2004 SC 3781, has held that accused had not given any explanation for the presence of blood stains on his pant and shirt, he has simply pleaded false implication. Presence of blood on his clothes was found to be incriminating circumstances against him. It is the duly of the accused to explain the incriminating circumstances proved against him while making statement under section 313 Cr.P.C.. Keeping silent and did not furnish any explanation for such circumstances is an additional link in the chain of circumstances of sustaining the charge against him.

Moreover, the victim in her examination-in-chief has stated that when she was playing in front of her house, Rajveer took her to the field. Accused-appellant Rajveer got her undressed and thereafter did misdeed with her. She wept and cried.

The witnesses were put to lengthy cross-examination, but nothing could be elicited from their mouth to make the prosecution story doubtful. In this case the prosecution story is fully proved by the eye-witness account as well as by the medical evidence. In this case an eight years old girl was sexually ravished by the accused-appellant, who must have gone a traumatic experience.

In the case of Bharwada Bhoginbhai Hirjibhai Vs. State of Gujarat, AIR 1983 SC 753, Hon’ble Supreme Court held thus:

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 lenses tinged with doubt, disbelief or suspicion ? To do so is to justify the charge of male chauvinism in a male dominated society. We must analyze the argument in support of the need for corroboration and subject it to relentless and remorseless cross-examination. And we must do so with a logical, and not an opinionated, eye in the light of probabilities with our feet firmly planted on the soil of India and with our eyes focussed on the Indian horizon. We must not be swept off the feet by the approach made in the Western World which has its own social milieu, its own social mores, its own permissive values, and its own code of life. Corroboration may be considered essential to establish a sexual offence in the backdrop of the social ecology of the Western World. It is wholly unnecessary to import the said concept on a turn-key basis and to transplant it on the Indian soil regardless of the altogether different atmosphere, attitudes, mores, responses of the Indian Society and its profile.”

Hon’ble Supreme Court in State Of Maharashtra vs Chandraprakash Kewal Chand Jain, 1990 SCR (1) 115 held thus:

A prosecutrix of a sex-offence cannot be put on par with an accomplice. She is in fact a victim of the crime. The Evidence Act nowhere says that her evidence cannot be accepted unless it is corroborated in material particulars. She is undoubtedly a competent witness under Section 118 and her evidence must receive the same weight as is attached to an injured in cases of physical violence. The same degree of care and caution must attach in the evaluation of her evidence as in the case of an injured complainant or witness and no more. What is necessary is that the Court must be alive to and conscious of the fact that it is dealing with the evidence of a person who is interested in the outcome of the charge levelled by her. If the Court keeps this in mind and feels satisfied that it can act on the evidence of the prosecutrix, there is no rule of law or practice incorporated in the Evidence Act similar to illustration (b) to Section 114 which requires it to look for corroboration. If for some reason the Court is hesitant to place implicit reliance on the testimony of the prosecutrix it may look for evidence which may lend assurance to her testimony short of corroboration required in the case of an accomplice. The nature of evidence required to lend assurance to the testimony of the prosecutrix must necessarily depend on the facts and circumstances of each case. But if a prosecutrix is an adult and of full understanding the Court is entitled to base a conviction on her evidence unless the same is shown to be infirm and not trustworthy. If the totality of the circumstances appearing on the record of the case disclose that the prosecutrix does not have a strong motive to falsely involve the person charged, the Court should ordinarily have no hesitation in accepting her evidence. We have, therefore, no doubt in our minds that ordinarily the evidence of a prosecutrix who does not lack understanding must be accepted. The degree of proof required must not be higher than is expected of an injured witness. For the above reasons we think that exception has rightly been taken to the approach of the High Court as is reflected in the following passage: “It is only in the rarest of rare cases if the Court finds that the testimony of the prosecutrix is so trustworthy, truthful and reliable that other corroboration may not be necessary.”

In view of the above, the contention raised by the learned counsel for the appellant that the appellant has falsely been implicated in this case has no leg to stand.

Now, coming to the main contention of the learned counsel for the appellant that sentence awarded by the learned Trial Court may be reduced from ten years to seven years. In support of his contention, he has placed reliance upon the judgement of Hon’ble Supreme Court in State of Chhattisgarh Vs. Dehra, 2004 Law Suit (SC) 510.

In the said case Hon’ble Supreme Court has reduced the sentence of the accused from ten years to seven years. It was a case in which the learned Trial Court has convicted the appellant under section 376(2)(f) IPC and sentenced him to rigorous imprisonment for ten years. However, on appeal, the High Court of Chhattisgarh had set aside the conviction order and acquitted the appellant. Thereafter, an appeal was filed by the State of Chhattisgarh before the Hon’ble Supreme Court. Hon’ble Supreme Court set aside the judgement of the High Court court and restored the order of conviction passed by the Trial Court. However, the Apex Court has reduced the sentence from ten years to seven years on the ground that the appellant therein was hardly 18 years of age and the time of incident in question and has married and having a family.

There are other pronouncements of Hon’ble Supreme Court on the points also, which are necessary to be highlighted in the facts and circumstances of the case:

In Rajendra Datta Zarekar Vs. State of Goa, AIR 2008 SC 572, a child of six years had been sexually ravished by the accused-appellant Rajendra Datta Zarekar. The trial court acquitted the accused. However, the High Court set aside the acquittal order passed by the trial court and sentenced the accused to ten years rigorous imprisonment. The matter went to Hon’ble Supreme Court. The Hon’ble Supreme Court while dismissing the appeal, affirmed the order of the High Court awarding ten years rigorous imprisonment. Hon’ble Supreme Court in Rajendra Datta Zarekar (Supra) has also considered the judgement in State of Chhattisgarh (Supra) while maintaining the conviction of ten years of the appellant and held that judgement in State of Chhattisgarh (Supra) was passed in special circumstances of the case.

While dealing with a case of reduction of sentence from ten years RI to four years RI by the High Court in a case of rape of a girl aged between 13 and 14 years, the Hon’ble Supreme Court in State of A.P. Vs. Bodem Sundara Rao, 1995 (6) SCC 230, held thus:

“In recent years, we have noticed that crime against woman are on the rise. These crimes are an affront to the human dignity of the society. Imposition of grossly inadequate sentence and particularly against the mandate of the Legislature not only is an injustice to the victim of the crime in particular and the society as a whole in general, but also at times encourages a criminal. The Courts have an obligation while awarding punishment to impose appropriate punishment so as to respond to the society’s cry for justice against such criminals. Public abhorrence of the crime needs a reflection through the Courts verdict in the measure of punishment. The Courts must not only keep in view the right of the criminal but also the rights of the victim of crime and the society at large while considering imposition of the appropriate punishment. The heinous crime of committing rape on a helpless 13-14 years old girl shakes our judicial conscience. The offece was inhumane.”

Hon’ble Supreme Court in Bodem Sundara Rao (Supra) has cautioned the Courts while dealing with the cases of sexual crime against women in the following words:

“Sexual violence apart from being a dehumanising act is an unlawful intrusion of the right to privacy and sanctity of a female. It is a serious blow to her supreme honour and offends her self esteem kand dignity. It degrades and humiliates the victim and where the victim is a helpless innocent child, it leaves behind a traumatic experience. The Courts are, therefore, expected to deal with the cases of sexual crime against women with utmost sensitivity. Such cases need to be dealt with sternly and severely.”

In the case of State of Karnataka Vs. Krishnappa 2000 (2) SCALE 610, learned Trial Court sentenced the accused-appellant to ten years RI. However, the High Court while maintaining the conviction, has awarded the sentence of only four years under section 376. IPC. The matter came up before the Hon’ble Apex Court. A three Judge Bench of Hon’ble Supreme Court while enhancing the sentence from 4 years to 10 years, pointed out that rape is not merely a physical assault, it is an offence which is destructive of the whole personality of the victim of crime and courts shoulder a great responsibility while trying an accused on charges of rape and must deal with such cases with utmost sensitivity. The Court held thus:

“The measure of punishment in a case of rape cannot depend upon the social status of the victim of the accused. It must depend upon the conduct of the accused, the state and age of the sexually assaulted female and the gravity of the criminal act. Crimes of violence upon women need to be severely dealt with. The socio-economic status. religion race caste or creed of the accused or the victim are irrelevant considerations in sentencing policy. Protection of society and deterring the criminal is the avowed object of law and that is required to be achived by imposing an appropriate sentence. The sentencing courts are expected to consider all relevant facts and circumstances bearing on the question of sentence and proceed to impose a sentence commensurate with the gravity of the offence.”

Dealing with the offence of rape and its traumatic effect on victim of rape, Hon’ble Supreme Court in the case of State of Punjab Vs. Gurmit Singh, AIR 1996 SC 1393, Hon’ble Apex Court observed as under:

“Of late, crime against women in general and rape in particular is on the increase. It is an irony that while we are celebrating women’s rights in all spheres, we show little or no concern for her honour. It is a sad reflection on the attitude of indifference of the society towards the violation of human dignity of the victims of sex crimes. We must remember that a rapist not only violates the victim’s privacy and personal integrity, but inevitably causes serious psychological as well as physical harm in the process. Rape is not merely a physical assault – it is often destructive of the whole personality of the victim. A murderer destroys the physical body of his victim, a rapist degrades the very soul of the helpless female. The Courts, therefore, shoulder a great responsibility while trying an accused on charges of rape. They must deal with such cases with utmost sensitivity. The Courts should examine the broader probabilities of a case and not get swayed by minor contradictions or insignificant discrepancies in the statement of the prosecutrix, which are not of a fatal nature, to throw out an otherwise reliable prosecution case. If evidence of the prosecutrix inspires confidence, it must be relied upon without seeking corroboration of her statement in material particulars. If for some reason the Court finds it difficult to place implicit reliance on her testimony, it may look for evidence which may lend assurance to her testimony, short of corroboration required in the case of an accomplice. The testimony of the prosecutrix must be appreciated in the background of the entire case and the trial court must be alive to its responsibility and be sensitive while dealing with cases involving sexual molestation.

There has been lately, lot of criticism of the treatment of the victims of sexual assault in the court during their cross-examination. The provisions of Evidence Act regarding relevancy of facts notwithstanding, some defence counsel adopt the strategy of continual questioning of the prosecutrix as to the details of the rape. The victim is required to repeat again and again the details of the rape incident not so much as to bring out the facts on record or to test her credibility but to test her story for inconsistencies with a view to attempt to twist the interpretation of events given by her so as to make them appear inconsistent with her allegations. The Court, therefore, should not sit as a silent spectator while the victim of crime i being cross-examined by the defence. It must effectively control the recording of evidence in the Court. While every latitude should be given to the accused to test the veracity of the prosecutrix and the credibility of her version through cross-examination, the court must also ensure that cross-examination is not made a means of harassment or causing humiliation to the victim of crime. A victim of rape, it must be remembered, has already undergone a traumatic experience and if she is made to repeat again and again, in unfamiliar surroundings, what she had been subjected to, she may be too ashamed and even nervous or confused to speak and her silence or a confused stray sentence may be wrongly interpreted as “discrepancies and contradictions” in her evidence.”

Kamal Kishore Vs. State of Himachal Pradesh (2000)4 SCC 504, was a case in which a minor girl below 12 years was ravished by accused-appellant. However, the trial court exonerated the accused for the offence. The matter went to the High Court of Himachal Pradesh. The High Court reversed the order of acquittal passed by the Trial Court and held the appellant guilty of the offence under Section 37692)(f) IPC. However, the High Court on the special fact and circumstances of the case, has only sentenced the appellant to three years rigorous imprisonment. In the Supreme Court, two appeals were preferred, one by the State of Himachal Pradesh against inadequate sentence awarded by the High Court and the other by the accused against his conviction. A three Judge Bench of Hon’ble Supreme Court in Kamal Kishore (Supra) while enhancing the sentence awarded by the High Court has held:

“As Parliament has disfavoured the sentence to plummet below the minimum limit prescribed Parliament used the expression “shall not be less than” which is peremptory in tone. The court has, normally, no discretion even to award a sentence less than the said minimum. Nonetheless Parliament was not oblivious of certain very exceptional situations and hence to meet such extremely rare contingencies it made a departure from the said strict rule by conferring a discretion on the court subject to two conditions. One is that there should be “adequate and special reasons”, and the other is that such reasons should be mentioned in the judgment. The expression “adequate and special reasons” indicates that it is not enough to have special reasons, nor adequate reasons distinctively. There should be a conjunction of both for enabling the court to invoke the discretion. Reasons which are general or common in many cases cannot be regarded as special reasons. What the Division Bench of the High Court mentioned (i.e. occurrence took place 10 years ago and the accused might have settled in life) are not special to the accused in this case or to the situations in this case. Such reasons can be noticed in many other cases and hence they cannot be regarded as special reasons. No catalogue can be prescribed for adequacy of reasons nor instances can be cited regarding special reasons, as they may differ from case to case.”

“The long time lag which elapsed subsequent to the date of offence and the fact that the prosecutrix got married and is well settled in life and that she is now mother of children, all these things which happened during the intervening period, may be factor for consideration by the executive or constitutional authorities if they have to decide whether remission of the sentence can be allowed to the accused. We make it clear that we have imposed the enhanced sentence on him without prejudice to any motion he may make for such remission of the sentence before the authorities concerned.”

In State of Maharashtra Vs. Prakash and another, AIR 1992 SC 1275 Hon’ble Supreme Court aside the acquittal by the High Court of the respondents for offence under Section 376 IPC read with Section 34 IPC as well as under Section 342 read with Section 34 IPC. The Additional Sessions Judge, Amravati had, however, convicted the respondents and sentenced them to rigorous imprisonment for three years on the first count and for two months on the second count. After having set aside the acquittal of the respondents, the Hon’ble Supreme Court on the question of sentence said as under:

“We are aware that the offence had taken place in the year 1978 and that they were acquitted by the High Court as far back as August, 1981 and we are reversing the acquittal after a lapse of more than 10 years but having regard to the nature of the offence and the circumstances in which it was perpetrated, we are of the opinion that the respondents deserve no mercy. They should suffer for their deed.”

Hon’ble Supreme Court in Madan Gopal Kakkad Vs. Naval Dubey, 1992 SCR (2) 1992 held :

Before parting with the judgment, with deep concern, we may point out that though all sexual assaults on female children are not reported and do not come to light yet there is an alarming and shocking increase of sexual offences committed on children. This is due to the reasons that children are ignorant of the act of rape and are not able to offer resistance and become easy prey for lusty brutes who display the unscrupulous, deceitful and insidious art of luring female children and young girls. Therefore, such offenders who are menace to the civilized society should be mercilessly and inexorably punished in the severest terms.

We feel that Judges who bear the Sword of Justice should not hesitate to use that sword with the utmost severity, to the full and to the end if the gravity of the offences so demand.

Time and again, Hon’ble Supreme Court has considered the question of awarding appropriate punishment.

In Dhananjoy Chatterjee Vs. State of West Bench 1994 (2) SCC 220, Hon’ble Supreme Court has observed that “shockingly large number of criminals go unpunished thereby increasingly, encouraging the criminal and in the ultimate making justice suffer by weakening the system’s credibility. The imposition of appropriate punishment is the manner in which the Court responds to the society’s cry for justice against the criminal. Justice demands that Courts should impose punishment befitting the crime so that the Courts reflect public abhorrence of the crime. The Court must not only keep in view the rights of the criminal but also the rights of the victim of the crime and the society at large while considering the imposition of appropriate punishment”.

Similar view has also been expressed by Hon’ble Supreme Court in Ravji Vs. State of Rajasthan, 1996 (2) SCC 175). It has been held in the said case that it is the nature and gravity of the crime but not the criminal, which are germane for consideration of appropriate punishment in a criminal trial. The Court will be failing in its 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 irrelevant but it should conform to and be consistent with the atrocity and brutality with which the 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”. If for extremely heinous crime of murder perpetrated in a very brutal manner without any provocation, most deterrent punishment is not given, the case of deterrent punishment will loss its relevance.

In Shailesh Jasvantbhai and another Vs. State of Gujarat and others (2006)2 SCC 359 has observed:

“Friedman in his Law in Changing Society stated that: “State of criminal law continues to be – as it should be -a decisive reflection of social consciousness of society.” Therefore, in operating the sentencing system, law should adopt the corrective machinery or deterrence based on factual matrix. By deft modulation, sentencing process be stern where it should be, and tempered with mercy where it warrants to be. The facts and given circumstances in each case, the nature of the crime, the manner in which it was planned and committed, the motive for commission of the crime, the conduct of the accused, the nature of weapons used and all other attending circumstances are relevant facts which would enter into the area of consideration”.

In Jameel Vs. State of UP, (2010) 12 SCC 532, Hon’ble Supreme Court while speaking about the concept of sentence, has laid down that it is the duly of every court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed. The sentencing courts are expected to consider all relevant facts and circumstances bearing on the question of sentence and proceed to impose a sentence commensurate with the gravity of the offence.”

Hon’ble Supreme Court in State of Madhya Pradesh Vs Babu Lal, AIR 2008, SC 582, while considering the adequacy of sentence in the light of statutory provisions, held as under:

“Punishment is the sanction imposed on the offender for the infringement of law committed by him. Once a person is tried for commission of an offence and found guilty by a competent court, it is the duty of the court to impose on him such sentence as is prescribed by law. The award of sentence is consequential on and incidental to conviction. The law does not envisage a person being convicted for an offence without a sentence being imposed therefor.”

In Jugendra Singh Vs. State of U.P., (2012) 6 SCC 297, while dwelling upon the gravity of the crime of rape, the Hon’ble Supreme Court held thus:

“Rape or an attempt to rape is a crime not against an individual but a crime which destroys the basic equilibrium of the social atmosphere. The consequential death is more horrendous. It is to be kept in mind that an offence against the body of a woman lowers her dignity and mars her reputation. It is said that one’s physical frame is his or her temple. No one has any right of encroachment. An attempt for the momentary pleasure of the accused has caused the death of a child and had a devastating effect on her family and, in the ultimate eventuate, on the collective at large. When a family suffers in such a manner, the society as a whole is compelled to suffer as it creates an incurable dent in the fabric of the social milieu.”

The rape with a minor child creates an atmosphere of fear, which is universally abhorred by the society. It demands just punishment from the Court and to such a demand , the Courts of law are bound to respond within the legal parameters. It is a demand of justice and the award of punishment has to be in consonance with the legislative command and the discretion vested in Court.

Section 376(2)(f) IPC provides that whosoever 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. However, a discretion has been given to the Court to impose lesser sentence after recording the adequate and special reasons.

In view of the above discussions, I am of the view that the prosecution has fully established its case beyond reasonable doubt. The impugned judgement and order of conviction and sentence dated 20.3.2014 passed by the learned Additional Sessions Judge, Court No. 2 Shahjahanpur, which has been sought to be assailed, calls for no interference.

In view of the aforementioned enunciation of Hon’ble Supreme Court, I also do not find any good ground to reduced the sentence of the appellant from ten years to seven years as urged by the learned counsel for the appellant.

Accordingly, the appeal is dismissed.

The appellant is in jail. He shall remain in jail to serve out the remaining sentence awarded by the Trial Court. While deciding the period of sentence the authorities will take into consideration the remission of sentence which the accused-appellant is entitled to in law.

Office is directed to send a certified copy of this order to the learned Sessions Judge concerned for compliance

Compliance report be positively submitted to this court within eight weeks.

Order Date :- 12.1.2018

Ishrat