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Aftab Khan vs State Of M.P. on 28 March, 2018

1 CRA-653-2006

HIGH COURT OF MADHYA PRADESH
BENCH GWALIOR

DB : Justice Vivek Agarwal

Justice G.S. Ahluwalia

Criminal Appeal No. 653/2006
Aftab Khan
Vs.
State of Madhya Pradesh

————————————————————————————
Shri A.K. Jain, counsel for the appellant from Legal Aid.
Shri B.K. Sharma, Public Prosecutor for the respondent/State.
————————————————————————————

Date of hearing : 24.03.2018
Date of order : 28.03.2018
Whether approved for reporting : Yes

JUDGMENT

(Passed on 28/03/2018)

Per Justice G.S. Ahluwalia
This criminal appeal under Section 374(2) of Cr.P.C. has
been filed against the judgment dated 26.08.2006 passed by 4 th
Additional Sessions Judge (Fast Track), Shivpuri in Sessions
Trial No. 127/2006, by which the appellant has been convicted
for an offence under Section 376 of IPC and has been
sentenced to undergo the life imprisonment.
(2) The necessary facts for the disposal of the present
appeal, in short, are that on 11.03.2006 at about 05:30 PM, a
report was lodged by the complainant Kamal Singh (PW-1) to
the effect that his cousin brother Rajesh had called him at
about 05:30 PM and informed that the prosecutrix is lying in a
pool of blood near Luharpura culvert. The complainant went to
the place of incident along with his cousin brother Rajesh and
found that the prosecutrix was lying in a pool of blood and had
2 CRA-653-2006

multiple injuries on her body and bleeding was going on from
her private part. Some unknown persons had committed rape
on her. The police on the basis of statement of the witnesses
as well as the Test Identification Parade of the appellant filed
the charge-sheet for an offence under Section 376 of IPC.
(3) The Trial Court by order dated 10.06.2006 framed charge
under Section 376 of IPC. The appellant abjured his guilt and
pleaded not guilty.

(4) The prosecution, in order to prove its case, examined
Kamal Singh (PW-1), Ayodhya Prasad (PW-2), Geeta (PW-3),
Prosecutrix (PW-4), Rishabh Vijay (PW-5), H.M. Karnwal (PW-

6), Dr. B.C. Goyal (PW-7), Kaushal Chand Jain (PW-8), K.D.
Sharma (PW-9), Nirmal Kumar Dubey (PW-10), Dr. Sunita Jain
(PW-11), M.L. Sharma (PW-12) and M.M. Malviya (PW-13).
The appellant examined Naushad Khan in his defence as
DW-1.

(5) The Trial Court, after hearing both the parties, convicted
the appellant for an offence under Section 376 of IPC and
sentenced him to undergo the life imprisonment by judgment
dated 26.08.2006 passed in Sessions Trial No. 127/2006.
(6) Challenging the judgment and sentence passed by the
Trial Court, it is submitted by counsel for the appellant that the
prosecution has failed to prove that the witnesses have duly
identified the appellant. The identification conducted by the
police during investigation is not reliable. The dock
identification of the appellant cannot be relied upon. The
appellant is innocent person and has been falsely implicated.
(7) Per contra, it is submitted by the counsel for the State
that not only the witnesses had duly identified the appellant in
the Test Identification Parade conducted by the police but they
and the prosecutrix have identified the appellant in the Court
also. Under these circumstances, it is clear that it is the
3 CRA-653-2006

appellant, who had committed rape on the prosecutrix who is a
minor girl aged about 6 years. The ocular evidence is fully
corroborated by the medical evidence.
(8) Heard the learned counsel for the parties.
(9) First of all, it would be necessary to find out that whether
the prosecution has succeeded in establishing that the
prosecutrix was subjected to rape or not ? Dr. Sunita Jain (PW-

11) had medically examined the prosecutrix and on medical
examination, she had found blood stains over her private part.
Hymen was found ruptured at 6 O’ Clock position. Posterior
vaginal wall was found teared, however, no active bleeding was
found. Two vaginal slides were prepared and discharge was
taken from vagina. Blood stains were also found on the frock of
the prosecutrix and specific opinion was given that “there is a
possibility of sexual assault done within the duration of 24
hours”. The MLC report of the prosecutrix is Ex. P-12. This
witness was cross-examined and only two questions were put
to her and it was replied by this witness that it is incorrect to
say that as the prosecutrix was minor, therefore, the vaginal
slides could not have been prepared and this witness further
denied that no rape was committed on the prosecutrix. Thus,
from the MLC report of the prosecutrix, it is proved that she
was subjected to rape as hymen was found ruptured and the
vaginal wall was found teared.

(10) The next moot question for determination is that whether
it is the appellant, who has committed the offence or not ?
(11) Ayodhya Prasad (PW-2) has stated that at about 03:00-
03:30 PM, one person had come along with a minor girl and
had taken a toffee from a shop and, thereafter, he went away
along with the girl. About 5-10 minutes thereafter, he came to
know that the girl has been raped. However, he did not go to
see the prosecutrix but he can identify the person, who had
4 CRA-653-2006

come along with the girl for purchasing the toffee. This witness
was asked that whether the person, who is present in the
Court, is the same person, who had come to the shop or not ?
This witness immediately identified the appellant, who is
present in the Dock. It was further stated by this witness that he
had also gone to Shivpuri jail to identify the person, where he
had identified the person, who had come to his shop and the
identification parade memo is Ex. P-3. This witness was cross-
examined in short. It is stated by this witness that the
accused/appellant is not wearing the same clothes, which he
was wearing on the date of incident. At the time of the incident,
the appellant had beard but today he is clean saven. The
person, who had come to purchase toffee, had not misbehaved
with the baby child in his presence. This witness has further
stated that the appellant was not previously known to him. 5-6
persons were mixed, when he had gone to jail for identifying
the appellant. The entire body of the appellant and other
persons were covered by blanket and only their faces were
visible. He has further stated that at the time of identification,
no police personnel was inside the jail. He further denied the
suggestion that the appellant was already shown by the police
before identification. He further denied that the person, who is
present in the dock, was not the same person, who was
identified by him in the jail.

(12) The prosecutrix (PW-4) is aged about 6 years. She had
stated that about few days ago, one person had given her a
chocolate and money and thereafter he took her towards public
toilet. A note has been appended by the Trial Court that the
prosecutrix was initially hesitating to look at the appellant but
with great difficulty, he looked at the appellant and immediately
identified him. The prosecutrix, by pointing towards the
appellant specifically said that the appellant, who is standing in
5 CRA-653-2006

the dock, had given her chocolate and money. It is further
stated by this witness that thereafter the appellant took the
prosecutrix towards the public toilet, where he took off her
clothes and after taking out her underwear, the appellant had
caused her to bleed. Her mouth was gagged by the appellant.
Her maternal uncle had picked her from a place situated near
public toilet and, thereafter, he took her to the hospital. When a
question was put by the Court with regard to the Test
Identification Parade conducted by the police, then she could
not understand the question and could not give reply. This
witness was cross-examined and it was admitted that one pig
had given a bite, however, it was specifically stated that the
blood had come out not because of any pig bite but because of
the appellant, who is standing in the dock. Again in the cross-
examination, she pointed out towards the appellant and stated
that it is the same person, who had given her toffee and
money. A suggestion was denied by her that the offence was
not committed by the appellant but somebody else had
committed the offence. This witness once again specifically
stated that it is the same person, who had committed the
offence. In reply to a specific question, it was stated by the
prosecutrix that in fact, she had seen the appellant at the time
of incident and it is incorrect to say that she is narrating the
incident as she has been tutored by her mother.
(13) Rishabh Vijay (PW-5) has stated that he was playing in
playground along with the friends, which is situated in front of
Thakur Baba. At that time, one person came out the public
toilet and he was wearing underwear and had pant in his hand.
It was around 04:00-05:00 PM. There was a blood stain on the
side of the shirt of the said person and he had seen that person
running away from the spot and he can identify him. This
witness identified the appellant in the dock and stated that he is
6 CRA-653-2006

the same person, who had come out of the public toilet and had
run away. It is further stated that thereafter some relatives of
the prosecutrix went to the public toilet and shop. This witness
was told that one girl is lying in the toilet and is bleeding. The
girl who was lying in the toilet was the niece of Kamal Singh. In
cross-examination, this witness has admitted that he had not
seen the actual offence but clarified that the incident had taken
place inside the toilet. (Although this witness had identified the
appellant in the Test Identification Parade conducted by police
but this witness has not said anything with regard to the holding
of Test Identification Parade by the prosecution nor any
question was put to him with regard to the Test Identification
Parade. It appears that the Public Prosecutor was not vigilant
at the time of recording of evidence.)
(14) H.N. Karnwal (PW-6) is the Nayab Tahsildar, who had
conducted the Test Identification Parade. This witness has
stated that on 25.05.2006 at about 11:45 AM, he had
conducted the Test Identification Parade and Rishabh S/o Vijay
Shankar had identified the appellant and the Test Identification
Parade memo is Ex. P-4. At the time of identification parade, no
police personnel was present.

(15) K.D. Sharma (PW-9) was working as Tahsildar and he
has stated that on 24.04.2006, he had conducted the Test
Identification Parade of the appellant and Ayodhya Prasad had
identify the appellant and the Test Identification Parade is Ex.
P-3. Both the witnesses were cross-examined. They have
specifically stated that the police was not present at the time of
Test Identification Parade. Nothing could be elucidated from the
evidence of these two witnesses, which may make their
evidence doubtful. Thus, it is clear that Ayodhya Prasad (PW-2)
and Rishabh Vijay (PW-5) had identifed the appellant. Although
Rishabh Vijay (PW-5) has not stated in his evidence with
7 CRA-653-2006

regard to the identification of the appellant in the Test
identification Parade conducted by the police but it is well
established principle of law that the Test Identification Parade
conducted by the police, at the best, can be treated as
corroborative piece of evidence but the substantive piece of
evidence is identification of the appellant in the dock.
(16) The Supreme Court in the case of Mukesh and another
Vs. State (NCT of Delhi) and others reported in (2017) 6 SCC
1, has held as under:-

“143. In Santokh Singh v. Izhar Hussain, it
has been observed that the identification can only
be used as corroborative of the statement in
court.

144. In Malkhansingh v. State of M.P., it has
been held thus:

“7. … The identification parades belong
to the stage of investigation, and there is no
provision in the Code of Criminal Procedure
which obliges the investigating agency to
hold, or confers a right upon the accused to
claim a test identification parade. They do not
constitute substantive evidence and these
parades are essentially governed by Section
162 of the Code of Criminal Procedure.
Failure to hold a test identification parade
would not make inadmissible the evidence of
identification in court. The weight to be
attached to such identification should be a
matter for the courts of fact. …”
And again:

“16. It is well settled that the substantive
evidence is the evidence of identification in
court and the test identification parade
provides corroboration to the identification of
the witness in court, if required. However,
what weight must be attached to the evidence
of identification in court, which is not preceded
by a test identification parade, is a matter for
the courts of fact to examine. …”

145. In this context, reference to a passage
from Visveswaran v. State represented by S.D.M.

8 CRA-653-2006

would be apt. It is as follows:

“11. …The identification of the accused
either in test identification parade or in Court is
not a sine qua non in every case if from the
circumstances the guilt is otherwise
established. Many a time, crimes are
committed under the cover of darkness when
none is able to identify the accused. The
commission of a crime can be proved also by
circumstantial evidence. …”

146. In Manu Sharma v. State (NCT of
Delhi), the Court, after referring to Munshi Singh
Gautam v. State of M.P., Harbhajan Singh v.
State of JK and Malkhansingh (supra), came to
hold that the proposition of law is quite clear that
even if there is no previous TIP, the court may
appreciate the dock identification as being above
board and more than conclusive.

147. In the case at hand, the informant,
apart from identifying the accused who had made
themselves available in the TIP, has also
identified all of them in Court. On a careful
scrutiny of the evidence on record, we are of the
convinced opinion that it deserves acceptance.
Therefore, we hold that TIP is not dented.”

(17) It is further submitted by counsel for the appellant that the
prosecutrix could not identify the appellant in the Test
Identification Parade conducted by the police, therefore, it is
clear that the appellant was not the person, who had committed
rape. So far as the inability of the prosecutrix to identify the
appellant in the Test Identification Parade conducted by the
police is concerned, it is clear from the Test Identification
Parade Ex. P-3, that a note was appended by the Tahsildar to
the effect that the prosecutrix is minor and she is frightened
and, therefore, she could not identify. When the evidence of the
prosecutrix was being recorded by the Trial Court, it was
noticed by the Trial Court that the prosecutrix looked at the
appellant after great persuasion.

(18) The Supreme Court in the case of Prakash Vs. State of
9 CRA-653-2006

Karnataka reported in (2014) 12 SCC 133, has held as under:-

“13.2. Secondly, why is it that no Test
Identification Parade was held to determine
whether Prakash was actually the person who
was seen by PW-6 Gangamma and by
Ammajamma?

14. Two types of pre-trial identification
evidence are possible and they have been
succinctly expressed in Marcoulx v. R. [1976] 1
SCR 763, by the Supreme Court of Canada in the
following words:

“An important pre-trial step in many
criminal prosecutions is the identification of
the accused by the alleged victim. Apart from
identification with the aid of a photograph or
photographs, the identification procedure
adopted by the police officers will normally be
one of two types: (i) the showup-of a single
suspect; (ii) the line-up-presentation of the
suspect as part of a group.”

14.1. With reference to the first type of
identification evidence, the Court quotes
Professor Glanville Williams from an eminently
readable and instructive article in which he says:

“… if the suspect objects [to an
identification parade] the police will merely
have him “identified” by showing him to the
witness and asking the witness whether he is
the man. Since this is obviously far more
dangerous to the accused than taking part in
a parade, the choice of a parade is almost
always accepted.”

14.2 With reference to the second type of
identification evidence, Professor Glanville
Williams says:

“Since identification in the dock is
patently unsatisfactory, the police have
developed the practice of holding
identification parades before the trial as a
means of fortifying a positive
identification…… The main purpose of such a
parade from the point of view of the police is
to provide them with fairly strong evidence of
identity on which to proceed with their
investigations and to base an eventual
10 CRA-653-2006

prosecution. The advantage of identification
parades from the point of view of the trial is
that, by giving the witness a number of
persons from among whom to choose, the
prosecution seems to dispose once and for
all the question whether the defendant in the
dock is in fact the man seen and referred to
by the witness.”

14.3. A similar view was expressed by the
Canadian Supreme Court in Mezzo v. R. [1986] 1
SCR 802.

15. An identification parade is not
mandatory, [Ravi Kapur V/s. State of Rajasthan,
(2012) 9 SCC 284], nor can it be claimed by the
suspect as a matter of right. [R. Shaji v. State of
Kerala, (2013) 14 SCC 266]. The purpose of pre-
trial identification evidence is to assure the
investigating agency that the investigation is
going on in the right direction and to provide
corroboration of the evidence to be given by the
witness or victim later in court at the trial.
[Rameshwar Singh v. State of JK, (1971) 2 SCC
715]. If the suspect is a complete stranger to the
witness or victim, then an identification parade is
desirable, [Mulla v. State of U.P., (2010) 3 SCC
508], [Kishore Chand v. State of H.P., (1991) 1
SCC 286], unless the suspect has been seen by
the witness or victim for some length of time.
[State of U.P. v. Boota Singh, (1979) 1 SCC 31].
In Malkhan Singh v. State of M.P., (2003) 5 SCC
746, it was held:-

“7……..The identification parades
belong to the stage of investigation, and
there is no provision in the Code of Criminal
Procedure which obliges the investigating
agency to hold, or confers a right upon the
accused to claim a test identification parade.
They do not constitute substantive evidence
and these parades are essentially governed
by Section 162 of the Code of Criminal
Procedure. Failure to hold a test identification
parade would not make inadmissible the
evidence of identification in court. The weight
to be attached to such identification should
be a matter for the courts of fact.”

16. However, if the suspect is known to
11 CRA-653-2006

the witness or victim, [Jadunath Singh v. State of
U.P., (1970) 3 SCC 518], or they have been
shown a photograph of the suspect or the
suspect has been exposed to the public by the
media, R. Shaji (supra), no identification evidence
is necessary. Even so, the failure of a victim or a
witness to identify a suspect is not always fatal to
the case of the prosecution. In Visveswaran v.
State, (2003) 6 SCC 73, it was held:

“11……The identification of the accused
either in a test identification parade or in
Court is not a sine qua non in every case if
from the circumstances the guilt is otherwise
established. Many a time, crimes are
committed under the cover of darkness when
none is able to identify the accused. The
commission of a crime can be proved also by
circumstantial evidence.”

17. What happened in the present case?

Both PW-6 Gangamma and by Ammajamma saw
Prakash for the first time on the afternoon of 5th
November, 1990 and they had seen him, if at all,
briefly if not fleetingly. It is true that these
witnesses had identified Prakash when he was
produced before them on his apprehension about
five or six days after the incident and also while
he was in the dock in court, but the
circumstances under which the dock identification
took place are not quite satisfactory inasmuch as
both the witnesses entered the witness box
almost 4 ½ years after they are said to have first
seen Prakash only briefly and without any
identification parade having been conducted.

18. Given the law laid down by this Court,
it would have been more appropriate for the
Investigating Officer to have conducted an
identification parade so that it becomes an
effective “circumstance corroborative of the
identification of the accused in court” R. Shaji
(supra). However, that was not done. The Trial
Court was of the view that the evidence on record
did not inspire confidence as far as fixing the
identity of the suspect as Prakash is concerned.
The Trial Court took into account the long lapse
of time between the incident and the identification
of Prakash in court, the absence of any
distinguishing features of Prakash, the brief time
12 CRA-653-2006

for which the witnesses saw him and the fact that
he was a total stranger to the witnesses. The
High Court was satisfied that Prakash was
suitably identified but completely overlooked the
fact that even if the Trial Court had come to an
erroneous conclusion, at best, it placed Prakash
at the place of occurrence at 1.00 p.m. and not
later. We are of the opinion that given the facts of
the case, it would have been more appropriate for
an identification parade to have been conducted,
but its absence in this case is not necessarily
fatal, there being other reasons also for not
accepting the case set up by the prosecution.
However, the absence of an identification parade
certainly casts a doubt about Prakash’s presence
at Gangamma’s house on 5th November, 1990.”
(19) The Supreme Court in the case of Sheo Shankar Singh
Vs. State of Jharkhand and another reported in (2011) 3 SCC
654, has held as under:-

“46. It is fairly well-settled that identification
of the accused in the Court by the witness
constitutes the substantive evidence in a case
although any such identification for the first time
at the trial may more often than not appear to be
evidence of a weak character. That being so a
test identification parade is conducted with a view
to strengthening the trustworthiness of the
evidence. Such a TIP then provides corroboration
to the witness in the Court who claims to identify
the accused persons otherwise unknown to him.
Test Identification parades, therefore, remain in
the realm of investigation.

47. The Code of Criminal Procedure does
not oblige the investigating agency to necessarily
hold a test identification parade nor is there any
provision under which the accused may claim a
right to the holding of a test identification parade.

The failure of the investigating agency to hold a
test identification parade does not, in that view,
have the effect of weakening the evidence of
identification in the Court. As to what should be
the weight attached to such an identification is a
matter which the Court will determine in the
peculiar facts and circumstances of each case. In
appropriate cases the Court may accept the
13 CRA-653-2006

evidence of identification in the Court even
without insisting on corroboration.

48. The decisions of this Court on the
subject are legion. It is, therefore, unnecessary to
refer to all such decisions. We remain content
with a reference to the following observations
made by this Court in Malkhansingh and Ors. v.
State of M.P. (2003) 5 SCC 746 :

“7. It is trite to say that the substantive
evidence is the evidence of identification in
court. Apart from the clear provisions
of Section 9 of the Evidence Act, the position in
law is well settled by a catena of decisions of
this Court. The facts, which establish the
identity of the accused persons, are relevant
under Section 9 of the Evidence Act. As a
general rule, the substantive evidence of a
witness is the statement made in court. The
evidence of mere identification of the accused
person at the trial for the first time is from its
very nature inherently of a weak character. The
purpose of a prior test identification, therefore,
is to test and strengthen the trustworthiness of
that evidence. It is accordingly considered a
safe rule of prudence to generally look for
corroboration of the sworn testimony of
witnesses in court as to the identity of the
accused who are strangers to them, in the form
of earlier identification proceedings. This rule of
prudence, however, is subject to exceptions,
when, for example, the court is impressed by a
particular witness on whose testimony it can
safely rely, without such or other corroboration.
The identification parades belong to the stage
of investigation, and there is no provision in the
Code of Criminal Procedure which obliges the
investigating agency to hold, or confers a right
upon the accused to claim a test identification
parade. They do not constitute substantive
evidence and these parades are essentially
governed by Section 162 of the Code of
Criminal Procedure. Failure to hold a test
identification parade would not make
inadmissible the evidence of identification in
court. The weight to be attached to such
identification should be a matter for the courts
of fact. In appropriate cases it may accept the
14 CRA-653-2006

evidence of identification even without insisting
on corroboration. (See Kanta Prashad v. Delhi
Admn. AIR 1958 SC 350, Vaikuntam
Chandrappa v. State of A.P. AIR 1960 SC
1340, Budhsen v. State of U.P. (1970) 2 SCC
128 and Rameshwar Singh v. State of JK.
(1971) 2 SCC 715)”

49. We may also refer to the decision of
this Court in Pramod Mandal v. State of
Bihar (2004) 13 SCC 150 where this Court
observed:

“20. It is neither possible nor prudent to
lay down any invariable rule as to the period
within which a test identification parade must
be held, or the number of witnesses who must
correctly identify the accused, to sustain his
conviction. These matters must be left to the
courts of fact to decide in the facts and
circumstances of each case. If a rule is laid
down prescribing a period within which the test
identification parade must be held, it would only
benefit the professional criminals in whose
cases the arrests are delayed as the police
have no clear clue about their identity, they
being persons unknown to the victims. They,
therefore, have only to avoid their arrest for the
prescribed period to avoid conviction. Similarly,
there may be offences which by their very
nature may be witnessed by a single witness,
such as rape. The offender may be unknown to
the victim and the case depends solely on the
identification by the victim, who is otherwise
found to be truthful and reliable. What
justification can be pleaded to contend that
such cases must necessarily result in acquittal
because of there being only one identifying
witness? Prudence therefore demands that
these matters must be left to the wisdom of the
courts of fact which must consider all aspects
of the matter in the light of the evidence on
record before pronouncing upon the
acceptability or rejection of such identification.”
(20) The Supreme Court in the case of Mulla and another Vs.
State of U.P. reported in (2010) 3 SCC 508 has held as under:-

“55. The identification parades are not
primarily meant for the Court. They are meant for
15 CRA-653-2006

investigation purposes. The object of conducting
a test identification parade is two-fold. First is to
enable the witnesses to satisfy themselves that
the accused whom they suspect is really the one
who was seen by them in connection with the
commission of the crime. Second is to satisfy the
investigating authorities that the suspect is the
real person whom the witnesses had seen in
connection with the said occurrence. Therefore,
the following principles regarding identification
parade emerge:

(1) an identification parade ideally
must be conducted as soon as possible to
avoid any mistake on the part of witnesses;

(2) this condition can be revoked if
proper explanation justifying the delay is
provided; and,
(3) the authorities must make sure
that the delay does not result in exposure of
the accused which may lead to mistakes on
the part of the witnesses.”

(21) Thus, from the facts and circumstances of the case, it is
clear that the prosecutrix is a minor girl aged about 6 years.

She was raped by the appellant and, therefore, her conduct in
not looking at the appellant is natural. Her mental condition can
be imagined, where a girl was forced to face the harsh realities
of the life at the very early stage of her life. If the girl, who is
aged about 6 years, is not expected to know anything except to
enjoy her childhood and when she is physically and sexually
violated by a fully grown man, then under these circumstances,
because of a fear, if she was not looking at the appellant, then
the conduct of the prosecutrix cannot be treated to be
unnatural or doubtful. On the contrary, when after great
persuasion by the Court, the prosecutrix looked at the
appellant, then she immediately identified him as the person,
who has committed rape on her. The identification of the
appellant by the prosecutrix and the other witness is proved
beyond reasonable doubt.

(22) Kamal Singh (PW-1) is the father of the prosecutrix, who
16 CRA-653-2006

has stated that his cousin brother Rajesh came to his shop and
informed that the prosecutrix is lying in a public toilet in a pool
of blood and he immediately along with his cousin brother, went
to the public toilet, where he found that the prosecutrix was
lying in a pool of blood and the bleeding was going on from her
private part. He brought the prosecutrix back to his house,
thereafter, went to the Police Station Kotwali, where the FIR
was lodged, which is Ex. P-1. The prosecutrix was sent for
medical examination. The spot map Ex. P-2 was prepared. The
prosecutrix had told that the person, who had committed rape
on her, had given a toffee and he had removed her clothes and
had done indecent act with her. This witness was cross-
examined in short and has stated that in the FIR, he had not
named the assailant and the allegation and the statement
made in the examination-in-chief is based on the information
given by the prosecutrix. Geeta (PW-3) is the mother of the
prosecutrix, whose evidence is also to the same effect. Dr. B.C.
Goyal (PW-7) had medically examined the appellant and he
had found the appellant to be potent. Kaushal Chand Jain (PW-

8) has stated that he had seen that one boy had de-boarded
from a auto along with a minor girl and took her to the culvert.
However, this witness could not identify the appellant in the
dock and he was declared hostile. M.L. Sharma (PW-12) is the
Investigating Officer, who had recorded the statements of the
witnesses and had arrested the appellant. M.M. Malviya (PW-

13) is the ASI, who had recorded the FIR Ex. P-1. He had also
recorded the statements of some of the witnesses namely
Kamal Singh, Ayodhya Prasad and Rishabh Vijay.
(23) Naushad Khan has been examined by the appellant as
DW-1 to prove his alibi, who has stated that he is running a
shop and the appellant was working as his employee. In cross-
examination, this witness has admitted that he does not keep
17 CRA-653-2006

any documentary evidence / register in his shop. Thus, it is
clear that this witness cannot be relied upon to hold that the
appellant was in the shop of this witness on the date of
incident.

(24) Considering the evidence, which has come on record, this
Court is of the considered view that the evidence of Ayodhya
Prasad (PW-2), Prosecutrix (PW-4) and Rishabh Vijay (PW-5)
is trustworthy. The ocular evidence is supported by the medical
evidence of Dr. Sunita Jain (PW-11) as well as the MLC report
Ex. P-12 of the prosecutrix, which clearly shows that the
prosecutrix was raped and her hymen was found ruptured and
the vaginal wall was found teared and the appellant was duly
identified by Ayodhya Prasad (PW-2), Prosecutrix (PW-4) and
Rishabh Vijay (PW-5) in the Dock, whereas Ayodhya Prasad
(PW-2) and Rishabh Vijay (PW-5) had identified the appellant
in the Test Identification Parade conducted by the police also.
(25) Thus, this Court is of the considered opinion that the
prosecution has succeeded in establishing the guilt of the
appellant beyond reasonable doubt and, accordingly, it is held
that the appellant is guilty of committing the offence under
Section 376 of IPC by committing rape on the prosecutrix, who
is aged about 6 years.

(26) Heard on the question of sentence.
(27) It is submitted by the counsel for the appellant that
although the appellant is alleged to have committed rape on the
prosecutrix aged about 6 years but he is in jail for the last more
than eleven and half years. The minimum sentence provided
under Section 376 of IPC for committing rape of a woman
below the age of 16 years is 10 years. The appellant has
already undergone the actual sentence for more than eleven
and half years and life imprisonment awarded by the Trial Court
is on higher side.

18 CRA-653-2006

(28) If the facts of the present case, along with the impact of
the incident on the mind of the prosecutrix as well as on the
Society, are considered, then it leaves no iota of doubt in the
mind of the Court, that the act committed by the appellant was
the most gruesome one. When the Test Identification Parade of
the appellant was conducted by the police, the prosecutrix, who
is aged about 6 years, could not dare to look at the appellant,
therefore, it was mentioned by the Executive Magistrate, that
the prosecutrix is minor and too young and because of fear, is
moving from one place to another and is not able to identify the
accused. Similarly, when the prosecutrix appeared before the
Trial Court, to get her evidence recorded, it was mentioned by
the Trial Court, that only after great persuasion, the prosecutrix
looked at the appellant, who is standing in the dock, and
immediately identified him. Thus, this conduct of the
prosecutrix, after the incident, at the time of Test Identification
Parade and at the time of recording of evidence, clearly shows
the impact of the incident in her mind. Unfortunately, the
prosecutrix at the age of 6 years, has learnt the harsh realities
of gender discrimination and gender insecurity. The parents of
the small children, are not expected to keep them inside the
house, so that they are not sexually violated. Every child, be a
boy or girl, has a fundamental and human right to live his/her
childhood with all freedoms. The incident has left so much of
adverse impact on the mind of the prosecutrix, that she was
even afraid of looking at the appellant. This Court can only
imagine the horrifying experience of the prosecutrix and its
impact on her young, innocent mind. We cannot allow the
humanity to die. The effect and aftermath of rape may include
both physical and psychological trauma. The possibility of
development of post-traumatic stress disorder in the rape victim
cannot be ruled out. The subsequent conduct of the prosecutrix
19 CRA-653-2006

clearly indicates that she was afraid of the appellant with
horrible memories of the incident. The effects of trauma may be
short term or long term after the sexual assault or rape. The
common emotional effects of sexual assault may be loss of
trust in others, shock, fear, sense of insecurity, hopelessness
etc. and if a minor girl aged about 6 years is compelled to
undergo such mental trauma apart from the physical trauma,
then even the time may not heal the injury sustained by the
prosecutrix. Under these circumstances, one can imagine that
the prosecutrix was not only shattered physically but also
mentally with no healing ointment. Under these circumstances,
any leniency shown to the appellant would be nothing but
adding insult to the injury sustained by the prosecutrix.
Deterrence is one of the essential ingredient of sentencing
policy. The principle of proportionality between an offence
committed and the penalty imposed are to be kept in mind,
therefore, the Court must try to visualize the impact of the
offence on the society as a whole as well as on the victim.
(29) The Supreme Court in the case of Shyam Narain Vs.
State (NCT of Delhi) reported in (2013) 7 SCC 77, has held as
under :

“14. Primarily, it is to be borne in mind
that sentencing for any offence has a social
goal. Sentence is to be imposed regard
being had to the nature of the offence and
the manner in which the offence has been
committed. The fundamental purpose of
imposition of sentence is based on the
principle that the accused must realise that
the crime committed by him has not only
created a dent in his life but also a concavity
in the social fabric. The purpose of just
punishment is designed so that the
individuals in the society which ultimately
constitute the collective do not suffer time
and again for such crimes. It serves as a
deterrent. True it is, on certain occasions,
20 CRA-653-2006

opportunities may be granted to the convict
for reforming himself but it is equally true that
the principle of proportionality between an
offence committed and the penalty imposed
are to be kept in view. While carrying out this
complex exercise, it is obligatory on the part
of the court to see the impact of the offence
on the society as a whole and its
ramifications on the immediate collective as
well as its repercussions on the victim.

15. In this context, we may refer with
profit to the pronouncement in Jameel v.
State of U.P., wherein this Court, speaking
about the concept of sentence, has laid
down that it is the duty 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.

16. In Shailesh Jasvantbhai v. State of
Gujarat the Court has observed thus: (SCC
p. 362, para 7)
“7. … 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.”

21 CRA-653-2006

17. In State of M.P. v. Babulal, two
learned Judges, while delineating about the
adequacy of sentence, have expressed thus:
(SCC pp. 241-42, paras 23-24)
“23. 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.

24. The object of punishment has been
succinctly stated in Halsbury’s Laws of
England (4th Edn., Vol. 11, Para 482),
thus:

‘482. Object of punishment.–The
aims of punishment are now considered to
be retribution, justice, deterrence,
reformation and protection and modern
sentencing policy reflects a combination of
several or all of these aims. The retributive
element is intended to show public
revulsion to the offence and to punish the
offender for his wrong conduct. The
concept of justice as an aim of punishment
means both that the punishment should fit
the offence and also that like offences
should receive similar punishments. An
increasingly important aspect of
punishment is deterrence and sentences
are aimed at deterring not only the actual
offender from further offences but also
potential offenders from breaking the law.
The importance of reformation of the
offender is shown by the growing
emphasis laid upon it by much modern
legislation, but judicial opinion towards this
particular aim is varied and rehabilitation
will not usually be accorded precedence
over deterrence. The main aim of
punishment in judicial thought, however, is
still the protection of society and the other
objects frequently receive only secondary
22 CRA-653-2006

consideration when sentences are being
decided.'”

(emphasis in original)

18. In Gopal Singh v. State of
Uttarakhand, while dealing with the
philosophy of just punishment which is the
collective cry of the society, a two-Judge
Bench has stated that just punishment would
be dependent on the facts of the case and
rationalised judicial discretion. Neither the
personal perception of a Judge nor self-
adhered moralistic vision nor hypothetical
apprehensions should be allowed to have
any play. For every offence, a drastic
measure cannot be thought of. Similarly, an
offender cannot be allowed to be treated with
leniency solely on the ground of discretion
vested in a court. The real requisite is to
weigh the circumstances in which the crime
has been committed and other concomitant
factors.

19. The aforesaid authorities deal with
sentencing in general. As is seen, various
concepts, namely, gravity of the offence,
manner of its execution, impact on the
society, repercussions on the victim and
proportionality of punishment have been
emphasised upon. In the case at hand, we
are concerned with the justification of life
imprisonment in a case of rape committed on
an eight year old girl, helpless and vulnerable
and, in a way, hapless. The victim was both
physically and psychologically vulnerable. It
is worthy to note that any kind of sexual
assault has always been viewed with
seriousness and sensitivity by this Court.

(30) The Supreme Court in the case of Raj Bala Vs. State of
Haryana reported in (2016) 1 SCC 463 has held as under :

“4. We have commenced the
judgment with the aforesaid
pronouncements, and our anguished
observations, for the present case, in
essentiality, depicts an exercise of judicial
discretion to be completely moving away
from the objective parameters of law which
23 CRA-653-2006

clearly postulate that the prime objective of
criminal law is the imposition of adequate,
just and proportionate punishment which is
commensurate with the gravity, nature of the
crime and manner in which the offence is
committed keeping in mind the social
interest and the conscience of the society, as
has been laid down in State of M.P. v. Bablu,
State of M.P. v. Surendra Singh and State of
Punjab v. Bawa Singh.

16. A court, while imposing sentence,
has a duty to respond to the collective cry of
the society. The legislature in its wisdom has
conferred discretion on the court but the duty
of the court in such a situation becomes
more difficult and complex. It has to exercise
the discretion on reasonable and rational
parameters. The discretion cannot be
allowed to yield to fancy or notion. A Judge
has to keep in mind the paramount concept
of rule of law and the conscience of the
collective and balance it with the principle of
proportionality but when the discretion is
exercised in a capricious manner, it
tantamounts to relinquishment of duty and
reckless abandonment of responsibility. One
cannot remain a total alien to the demand of
the socio-cultural milieu regard being had to
the command of law and also brush aside
the agony of the victim or the survivors of the
victim. Society waits with patience to see that
justice is done. There is a hope on the part of
the society and when the criminal culpability
is established and the discretion is irrationally
exercised by the court, the said hope is
shattered and the patience is wrecked. It is
the duty of the court not to exercise the
discretion in such a manner as a
consequence of which the expectation
inherent in patience, which is the “finest part
of fortitude” is destroyed. A Judge should
never feel that the individuals who constitute
the society as a whole is imperceptible to the
exercise of discretion. He should always bear
in mind that erroneous and fallacious
exercise of discretion is perceived by a
visible collective.”

24 CRA-653-2006

(31) Considering the totality of the facts and circumstances of
the case, this Court is of the considered opinion, that the Life
Sentence awarded by the Trial Court is just and proper, and
does not call for any interference. Accordingly, the judgment
and sentence 26.08.2006 passed by 4th Additional Sessions
Judge (Fast Track), Shivpuri in Sessions Trial No. 127/2006 is
affirmed.

The appeal fails and is hereby dismissed.

(Vivek Agrawal) (G.S. Ahluwalia)
Judge Judge

Abhi
Digitally signed by
ABHISHEK CHATURVEDI
Date: 2018.03.28
18:10:15 +05’30’

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