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Dashrath vs State Of U.P. on 9 February, 2018

HIGH COURT OF JUDICATURE AT ALLAHABAD

Court No. 62 AFR

Reserved

Case :- JAIL APPEAL No. – 3982 of 2017

Appellant :- Dashrath

Respondent :- State Of U.P.

Counsel for Appellant :- From Jail,Abida Sayeed A.C.

Counsel for Respondent :- A.G.A.

Connected with

Case :- CRIMINAL APPEAL No. – 2192 of 2016

Appellant :- Sandeep Pateriya

Respondent :- State Of U.P.

Counsel for Appellant :- Seema Shukla,Nand Kishor Mishra

Counsel for Respondent :- G.A.

Hon’ble Krishna Pratap Singh,J.

After being convicted and sentenced in ST No. 83 of 2013 arising out of Case Crime No. 975 of 2012 under section 376 (2)(g) of IPC, Police Station Kulpahad, district Mahoba by the learned Additional Sessions Judge (FTC) Mahoba, accused Sandeep Pateriya filed Criminal Appeal No. 2192 of 2016, whereas accused Dashrath preferred a Jail Appeal No. 3982 of 2017.

By the impugned judgement and order dated 14.3.2016 the learned Trial Court has convicted and sentenced the appellants Dashrath and Sandeep Pateriya to ten years rigorous imprisonment under section 376(2)(g) IPC and a fine of Rs. 5,000/- (rupees five thousand) each and in default of payment of fine, the appellants were further directed to undergo one month’s simple imprisonment. Out of the total fine, half of the fine shall be paid to the victim.

Since both the afore-captioned appeals have been filed against the same judgement and in same case crime convicting the accused, the same were heard together and are being disposed of by means of this common order.

The facts, as unfolded by the prosecution, in brief, are that a written report was lodged by the first informant of the case, Manoj, son of Hari Kishan Dhimar, resident of Khandiya Belatal, police station Kulpahad, district Mahoba on 27.9.2012 to the effect that on 26.9.2012 his sister, the victim (name withheld), aged about 18 years had gone to market to fetch vegetable where Dashrath, son of Murlidhar Brahman and Sandeep Pateriya, son of Ram Swaroop met her, who enticed her away to the fort (Qila) and committed rape on her forcibly and did not allow her to come back by threatening. When his sister did not return back, he started searching her. At about 10.00 PM in the night near Dak Bangla Qila, he met his sister, who was accompanied with Sandeep and Dashrath. His sister was very much fearful. It is further mentioned in the FIR that when the complainant and others tried to caught hold of the accused, they ran away. Thereafter, the complainant along with his sister came back home and in spite of his best efforts to go to the police station, he could not get any conveyance.

On the basis of the aforesaid report, a case was registered at case crime No. 975 of 2012, under section 376(2)(g) IPC, police station Kulpahad, district Mahoba. After the registration of the first information report, the law set into motion and investigation of the case was entrusted to PW-4 SI Chanchal Yadav, who recorded the statements of the first informant and the victim and other witnesses and prepared the site plan Ext. Ka 7. The investigating officer also collected one pair of sleeper, part of Samosa, sheera of Rasgulla (sweet) and Gutka and prepared their recovery memos. Salwar and panty, which the victim was wearing at the time of incident, were also taken in possession and memo was prepared, Ext. Ka-8. This witness also got the statement of the victim under section 164 Cr.P.C. recorded. Thereafter the investigation of the case was taken up by SO Narain Tripathi and after completion of remaining investigation, charge sheet Ext. Ka-12 was submitted against the appellants.

As the case was exclusively triable by the Court of Sessions, learned Magistrate committed the case to the Court of Sessions and learned Additional Sessions Judge, Court No. 3 Mahoba vide order dated 25.10.2013 framed the charges against the appellants under sections 376 IPC. Thereafter, learned Additional Sessions Judge, FTC, Mahoba vide order dated 20.2.2016 modified the charge to one under Section 376(2)(g) IPC.

To prove the prosecution case against the appellants beyond reasonable doubt, the prosecution has examined as many as five witnesses.

PW 1, Manoj is the complainant of the case. He deposed that at the time of incident, the age of the victim was 16 years. On the date of incident his sister had gone to the Belatal market to fetch the vegetable along with her mother Usha Devi in the evening at 4.00 PM. After purchasing vegetables his mother had returned, but his sister stayed in the market to purchase certain other articles. When she did not return till 7.00 P.M., he started searching her. During search, his sister met him on the fort (Qila). Along with his sister, both the accused were also there. It is further stated by this witness that on enquiry as to how she reached here, the victim told him that while she was returning from the market, both the accused met her and enticed her to this place. He further deposed that the victim told him that both the accused Sandeep Pateriya and Dashrath have forcibly committed rape on her. On resistance by the victim, accused threatened her and did not allow her to go home. He also deposed that he along with others caught hold of both the accused, but they fled away. As it was night, he did not go to the police station on 26.9.2012 and lodged the report only on 27.9.2012.

PW-2 is the victim and complainant of the case. She deposed that on the date of incident she had gone to the vegetable market along with her mother. Her mother had returned home, but she was left back. As soon as she reached near Qila, both the accused persons have forcibly took her to Qila and after threatening her committed rape with her. She further deposed that when she raised alarm, being lonely place, no body has heard his shriek. Both the accused kept her in confinement for about 3-4 hours and did not allow her to go home. When her maternal uncle Charan and brother Manoj and Vinod reached there searching her, then accused Sandeep was lying on her and was committing rape on her. Two police personnel also followed her maternal uncle and brother. Her maternal uncle and brother caught hold of both the accused, but they fled away. On being told by the police personnel that it was night, she along with her parents, maternal uncle and brother went to the police station on the next date to lodge the report. After the FIR was lodged, her medical examination was conducted.

PW-3, Dr. Rashmi Sharma, who has conducted the medical examination of the victim, has deposed that on 27.092012 she was posted as Medical Officer in the District Women Hospital, Mahoba. On that date at about 1.30 PM she has medically examined the victim, who was brought by lady Constable Neelam Yadav, of police station Kulpahad, district Mahoba. Her height was 5’1″ and weight was 42 Kgs. Her teeth were 14/14. Axillary and pubic hair were developing. Breast was developing. No injury was found on any part of the body.

Doctor further deposed that no dead or alive spermatozoa was found. Hymen was found intact. Doctor further opined that no definite opinion about rape can be given.

The evidence of PW-4 SI Chanchal Yadav, the first investigating officer and SO Narain Tripathi, the second investigating officer has already discussed above.

PW-5 Hira Lal Niranjan has been examined to prove the documents and the charge sheet submitted by SO Narain Tripathi.

After the closure of the prosecution evidence, the statements of the accused-appellants under section 313 Cr.P.C. were recorded, in which they denied the charges and stated that they have falsely been implicated in this case and they are innocent.

Heard Mrs. Abida Sayeed, learned Amicus Curiae for the appellant in Jail Appeal No. 3982 of 2017 and Shri Nand Kishor Mishra, learned counsel for the accused-appellant in connected Criminal Appeal No. 2192 of 2015 and learned Additional Government Advocate and perused the record of the case.

Learned counsel for the appellants submitted that the victim was major and consenting party. Learned counsel for the appellants further submits that there was delay in lodging the FIR for which no plausible explanation has been given by the prosecution. It is also argued that the medical evidence is inconsistent with the prosecution case. It is also submitted that the Trial Court did not consider the evidence on record in right perspective and convicted and sentenced the appellants on the basis of conjectures and surmises.

On the other hand, learned Additional Government Advocate has supported the findings of the Trial Court and submitted that the prosecution has discharged its onus by proving the case against the appellants to the hilt.

Coming to the first contention of the learned counsel for the appellants that the victim was major and consenting party. Doctor Rashmi Sharma, who has medically examined the victim has not given any opinion about the age of the victim. Further on cross-examination, the investigating officer has stated that he has not collected any evidence about the age of the victim.

However, Dr. Rashmi Sharma, in her report has mentioned the teeth of the victim as 14/14. Axillary and pubic hair were developing. Breast was developing, which goes to suggest that the victim was minor on the date of incident.

While dealing with the age of the girl on the basis of teeth, Hon’ble Supreme Court in Dilip Vs. State of Madhya Pradesh (2013) 14 SCC 331 found the teeth of the victim 14/14 or the victim having 13 teeth in upper jaw and 14 in lower jaw and also considering other physical factors, the Court held the age of the victim as 14 years.

Relying upon several other factors for determining the age, Hon’ble Supreme Court in Kailash alias Tanti Banjara Vs. State of Madhya Pradesh (2013)14 SCC 340, has taken a view that as the prosecutrix therein had only 28 teeth considering the other sexual character, she was only 14 years of age.

So far as consent of the victim is concerned, as per Section 375 IPC sixthly consent is immaterial if the victim is less than eighteen years of age. In the present case, the victim was minor and her consent, even if, she has given, is immaterial and is of no help to the accused-appellants.

Further Hon’ble Supreme Court in the Case of State of Rajasthan Vs. Roshan Khan and others, (2014) 2 SCC 476 has held that where sexual intercourse by the accused is proved and the question is whether it was without consent of woman alleged to have been raped, and she states that she did not consent, the Court shall presume that she did not consent

In State of Himachal Pradesh Vs. Mange Ram, AIR 2000 SC 2798, this Court, while dealing with the issue held:

“Submission of the body under the fear or terror cannot be construed as a consented sexual act. Consent for the purpose of Section 375 requires voluntary participation not only after the exercise of intelligence based on the knowledge of the significance and moral quality of the act but after having fully exercised the choice between resistance and assent. Whether there was consent or not, is to be ascertained only on a careful study of all relevant circumstances.”

In Uday Vs. State of Karnataka, AIR 2003 SC 1639, a similar view has been reiterated by this Court observing :

“……We are inclined to agree with this view that there is no strait jacket formula for determining whether consent given by the prosecutrix to sexual intercourse is voluntary, or whether it is given under a misconception of fact. In the ultimate analysis, the tests laid down by the Courts provide at best guidance to the judicial mind while considering a question of consent, but the Court must, in each case, consider the evidence before it and the surrounding circumstances, before reaching a conclusion, because each case has its own peculiar facts which may have a bearing on the question whether the consent was voluntary, or was given under a misconception of fact. It must also weigh the evidence keeping in view the fact that the burden is on the prosecution to prove each and every ingredient of the offence, absence of consent being one of them.”

So, I am of the opinion that victim was minor on the date of incident and that he has not given her consent to the act and she was forcibly taken away by the accused-appellants and thereafter both the accused committed rape on her against her wishes.

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 molestations.

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.”

The next submission of the learned counsel for the appellants that there was delay in lodging the FIR for which no plausible explanation has been given by the prosecution is concerned, I find no force in the submission.

The delay has been explained by the first informant in the FIR itself that after the recovery of the victim at 10.00 PM, in spite of his best efforts, he could not get any conveyance to come to the police station to lodge the first information report. The victim in her evidence on oath has also stated that at the time of her recovery two police personnel were also there, who asked her that it is night, she should come to the police station the next day for lodging the FIR.

So, in my opinion, the delay in lodging the FIR has very well explained by the prosecution. Further in a case under section 376 IPC, the delay, if explained properly, is not fatal to the prosecution case.

Hon’ble Supreme Court in the case of Ram Naresh and others Vs. State of Chhatisgarh, AIR 2012, SC 1357, has held that the delay, if any, in lodging the FIR, if explained properly, is in no way fatal to the case of the prosecution.

In Tara Singh and others Vs. State of Punjab, AIR 1991 SC 63, Hon’ble Supreme Court held that mere delay in lodging the FIR by itself cannot give scope for an adverse inference leading to rejection of the prosecution case outright.

The Court further held thus:

” It is well-settled that the delay in giving the FIR by itself cannot be a ground to doubt the prosecution case. Knowing the Indian conditions as they are we cannot expect these villagers to rush to the police station immediately after the occurrence. Human nature as it is, the kith and kin who have witnessed the occurrence cannot be expected to act mechanically with all the promptitude in giving the report to the police. At times being grief-stricken because of the calamity it may not immediately occur to them that they should give a report. After all it is but natural in these circumstances for them to take some time to go to the police station for giving the report.”

In Zahoor and others Vs. State of U.P., AIR 1991 SC 40, Hon’ble Supreme Court held that mere delay by itself is not enough to reject the prosecution case unless there are clear indications of fabrication.

Hon’ble Supreme Court in State of Punjab Vs. Gurmit Singh and others, 1996 SCC (2) 384 Hon’ble Supreme Court held as under:

In our opinion, there was no delay in the lodging of the FIR either and if at all there was some delay, the same has not only been properly explained by the prosecution but in the facts and circumstances of the case was also natural. The courts cannot over-look the fact that in sexual offences delay in the lodging of the FIR can be due to variety of reasons particularly the reluctance of the prosecutrix or her family members to go to the police and complain about the incident which concerns the reputation of the prosecutrix and the honour of her family. It is only after giving it a cool thought that a complaint of sexual offence is generally lodged.

Therefore, I am of the opinion that the delay in lodging the first information report has properly been explained by the prosecution.

The other contention of the learned counsel for the appellant that as hymen was found intact and no spermatozoa was found on the vaginal smear.

The medical evidence is only an advisory in character given on the basis of the symptoms found on examination of the victim. The expert witness is expected to put before the Court all materials inclusive of the data which induced him to come to the conclusion and enlighten the Court on the technical aspect of the case by explaining the terms of science so that the Court although, not an expert may form its own opinion on those materials after giving due regard to the expert’s opinion because once the expert’s opinion is accepted, it is not the opinion of the medical officer, but of the Court.

In R Vs. Ahmed Ali 11 WR Cr. 25, Hon’ble Nariman, J while expressing his view on medical evidence has observed as under:

” The evidence of a medical man or other skilled witnesses, however, eminent, as to what he thinks may or may not have taken place under particular combination of circumstances, however, confidently, he may speak is ordinarily a matter of mere opinion.”

In Pratap Misra Vs. State of Orissa, AIR 1977 SC 1307, Hon’ble Supreme Court has observed thus:

“………………. it is well settled that medical jurisprudence is not an exact science and it is indeed difficult for any Doctor so say with precision and exactitude as to when a particular injury was caused ……. as to the exact time when the appellants may have had sexual intercourse with the prosecutrix.”

In this context I feel that it would be quite appropriate to reproduce the opinion expressed by Modi in his book Modi Textbook of Medical Jurisprudence and Toxicology, 24th Edition, at page 639, which reads as under:

“To constitute the offence of rape, it is not necessary that there should be complete penetration of the penis with the emission of semen and the rupture of hymen. Partial penetration of the penis within the labia majora or the vulva or pudenda with or without the emission of semen, or even an attempt at penetration is quite sufficient for the purpose of 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 given his opinion that no rape had been committed. ”

State Of Himachal Pradesh vs Asha Ram, 2006 Cri.L.J. 139 was a case in which High Court of Himachal Prdesh has acquitted the accused Asha Ram on the ground that no spermatozoa were found on the Salwar and underwear of the prosecutrix though according to the prosecution, complete act of sexual intercourse was committed. Further no evidence has come on record to show that hymen was ruptured. The medical evidence coming on record, as discussed above, is highly unreliable and even otherwise it does not establish that the victim was subjected to sexual intercourse. Hon’ble Supreme while setting aside the judgement of the High Court, has held as under:

“We record our displeasure and dismay, the way the High Court dealt casually with the offence so grave, as in the case at hand, overlooking the alarming and shocking increase of sexual assault on the minor girls. The High Court was swayed by sheer insensitivity totally oblivious of growing menace of sex violence against the minors much less by the father. The High Court also totally overlooked the prosecution evidence, which inspired confidence and merited acceptance. It is now well settled principle of law that conviction can be founded on the testimony of the prosecutrix alone unless there are compelling reasons for seeking corroboration. The evidence of a prosecutrix is more reliable than that of an injured witness. The testimony of the victim of sexual assault is vital unless there are compelling reasons which necessitate looking for corroboration of her statement, the courts should find no difficulty in acting 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. It is also well settled principle of law that 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. The evidence of the prosecutrix is more reliable than that of an injured witness. Even minor contradictions or insignificant discrepancies in the statement of the prosecutrix should not be a ground for throwing out an otherwise reliable prosecution case.”

In this case, the testimony of the prosecutrix is very much consistent. She has stated in clear terms that while she was returning home and as soon as she reached near Qila, she was abducted by the accused-appellants and both of them committed rape on her. She even went on to state that when her maternal uncle Charan and brother Manoj and Vinod reached there searching her, then accused Sandeep was lying on her and was committing rape on her.

Further the victim was put to lengthy cross-examination, but nothing adverse could be elicited from her mouth to make the prosecution story doubtful.

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 opiniated, 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 mileu, 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 transplate 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 AIR 658, 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.”

Hon’ble Supreme Court in State of A.P. Vs. Bodem Sundara Rao, 1995 (6) SCC 230. has cautioned the Courts while dealing with the cases of sexual crime against women in the following words:

“Sexual violence apart from being a dehumanizing 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 and 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 this context it will be useful to quote the following passage from the 84th Report of the Law Commission of India:

” It is often stated that a woman who is raped undergoes two crises- the rape and the subsequent trial. While the first seriously wounds her dignity, curbs her individual, destroys her sense of security and may often ruin her physically, the second is no less potent of mischief inasmuch as it not only force her to re-live through the traumatic experience, but also does so in the glare of publicity in a totally alien atmosphere, with the whole apparatus and paraphernalia of the criminal justice system focused upon her.

In particular, it is not well established that sexual activities with your girls of immature age have a traumatic effect which often persists through life, leading subsequently to disorder, unless there are counter-balancing factors in family life and in social attitudes which could act as a cushion against such traumatic effects.

Rape is the ultimate violation of the self. It is a humiliating event in a woman’s life which leads to fear for existence and a sense of powerlessness. The victim needs empathy and safety and a sense of re-assurance. In the absence of public sensitivity to these needs, the experience of figuring in a report of the offence may itself become another assault. Forcible rape is unique among crimes, in the manner in which its victims are dealt with by the criminal justice system. Raped women have to undergo certain tribulations. These begin with their treatment by the police and continue through a male dominated criminal justice system. Acquittal of many of facto guilty rapists adds to the sense of injustice.

In effect, the focus of the law upon corroboration, consent and character of the prosecutrix and a standard of proof of guilt going beyond reasonable doubt have resulted in an increasing alienation of the general public from the legal system, who find the law and legal language difficult to understand and who think that the courts are not run so well as one would expect.”

In Madan Gopal Kakkad vs Naval Dubey And another, 1992 SCR (2) 921, Hon’ble Supreme Court held:

“JUSTICE DEMANDS, THE COURT AWARDS”

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. ”

In this case a heinous crime has been committed and the accused must suffer for its consequences. It is well established that sexual activities with the girl of immature age have a traumatic effect, which persists throughout her life. A rapist not only violates the victim personal integrity, but leaves indelible marks on the very soul of the helpless female. In this case a minor girl had been raped by the two accused.

In view of the above discussion, 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 14.3.2016 passed by the learned Additional Sessions Judge, Fast Track Court, Mahoba in ST No. 83 of 2013, which has been sought to be assailed, calls for no interference.

Accordingly, both the appeals are hereby dismissed.

The appellants are in jail. They shall remain in jail to serve out the remaining sentence awarded to them by the learned Trial Court.

Office is directed to send a copy of this judgement along with record of this case to the court concerned/learned Sessions Judge, Mahoba forthwith for immediate compliance and compliance report be submitted to this Court.

Order Date :- 09.2.2018

Ishrat

Mrs Abida Sayeed, who has been appointed amicus curiae by this Court vide order dated 19.7.2017 to represent the appellant, has argued the appeal at length on 8.12.2017. Mrs. Abida Sayeed, Advocate would be paid Rs. 6000/- (rupees six thousand) only as honorarium for her services rendered as amicus curiae pursuant to the order of the Court dated 19.7.2017.

 

 

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