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Ajit & Another vs State Of U.P. on 15 December, 2017

HIGH COURT OF JUDICATURE AT ALLAHABAD

AFR

Reserved

Court No. – 12

Case :- CRIMINAL APPEAL No. – 3444 of 2012

Appellant :- Ajit Another

Respondent :- State Of U.P.

Counsel for Appellant :- Rajesh Pathak,Mohd. Afzal,Rajni Kant Pandey

Counsel for Respondent :- Govt. Advocate

connected with

Case :- CRIMINAL APPEAL No. – 3063 of 2012

Appellant :- Tajveer

Respondent :- State Of U.P.

Counsel for Appellant :- Manoj Tripathi, Yogendra Pal Singh

Counsel for Respondent :- Govt. Advocate

Hon’ble Krishna Pratap Singh, J

After being convicted and sentenced in ST No. 384 of 2010 arising out of case crime No. 282 of 2009, under sections 363, 323, 376 IPC, Police Station Dhaulana, district Ghaziabad by the learned Additional Sessions Judge, Court No. 5, Ghaziabad vide judgement and order dated 21.7.2012, the accused-appellants Ajit and Brajpal filed Criminal Appeal No. 3444 of 2012 and accused-appellant Tajveer filed Criminal Appeal No. 3063 of 2012.

By the impugned order, learned Additional Sessions Judge has convicted and sentenced the appellants to three years RI and a fine of Rs. 3000/- each under section 363 IPC, ten years RI and a fine of Rs. 10,000/ each under section 376 IPC and one years SI and a fine of Rs. 1000/- each under section 323 IPC with default stipulation.

Since both the afore-captioned criminal appeals have been filed against a judgement and order dated 21.7.2012 passed by the learned Additional Sessions Judge, Court No. 5, Ghaziabad in ST No. 384 of 2010 arising out of case crime No. 282 of 2009, under sections 363, 376, 323 IPC, PS Dhaulana, district Ghaziabad, both the appeals have been heard together and are being disposed of by means of this common judgement.

In short compass, the facts of the case are that on 25.10.2009 at 4.00 PM, complainant of the case Khushi Ram has given a written report at the police station Dhaulana, district Ghaziabad to the effect that on 24.10.2009 at 11.30 PM when his daughter came down from the Chabutra of her house to ease herself, she was abducted by Ajit, Brajpal, sons of Ram Kishan and Tejveer, son of Satya Prakash and took her to the Ghair of Ram Kishan. Ram Kishan and Satya Prakash were having enmity with the complainant. After the disappearance of the victim, a hectic search was made. At about 4.00 AM, on hearing the murmuring from the Ghair of Ram Kishan, complainant and others tried to get the door opened, but the door was not opened. Thereafter complainant and others called Ram Kishan, who was the owner of that Ghair. When door of the Ghair was opened, they saw that victim was lying unconscious. Sanjay, son of Kamal Singh, Hukum, son of Harvansh, Radhey, son of Shiv Charan were also present there along with the complainant with whose assistance the victim was taken to the police station. When the victim regained her consciousness, she told the complainant that Ajit, Brajpal and Tejveer after abducting her at 11.30 PM, committed rape with her forcibly.

On the basis of the aforesaid information, a case was registered at case crime No. 282 of 2009, under sections 376, 363, 323 IPC, PS Dhaulana, district Ghaziabad and investigation of the case was started by the Station House Officer Rakam Singh, PW 4, who visited the spot and prepared site plan on 25.10.2009 on the pointing out of the complainant, which he proved as Ext. Ka-5. He also took in possession the clothes of the victim and prepared its memo, Ext. Ka-4. On the same day at 6.15 PM he got the medical examination of the victim conducted. After conclusion of the investigation, he submitted the charge sheets against the accused-appellants Ext. Ka-6.

Dr. P. Kumar, who was posted as Emergency Medical Officer, MMG Hospital Ghaziabad conducted the medical examination of the victim and found the following injury on the person of the victim:

1. Abrasion 2 cm x 0.5 cm on the left of head 11 cm above from left eyebrow.

2. Contusion 6 cm x 3 cm on the left side of face at the left angle of mandible.

3. Abrasion 1 cm x 1 cm on right bruise.

4. Pain on right little finger.”

In the opinion of the doctor, all the injuries were simple and caused by some hard and blunt object. Duration of the injury was about 18 hours.

As the case was exclusively triable by the court of sessions, the learned Judicial Magistrate committed the case to the court of sessions.

To bring home the guilt of the appellants, the prosecution has examined as many as five witnesses. PW 1, Khushi Ram is the complainant of the case, PW 2 is the victim of the case, PW 3, Dr. Deepa Tyagi, who conducted the internal examination of the victim, PW 4, Rakam Singh, the investigating officer of the case and PW 5, Jag Pal Singh is the writer of the FIR on the basis of written report.

PW 1, Khushi Ram is the complainant of the case. He reiterated the versions given in the FIR.

PW 2 is the victim of the case and the prime witness of the case. She deposed that at the time of incident her age was 16 years. On the date of incident at 11.30 PM she was sleeping with her grand-mother. When she got down from her Chabutra to ease herself, all the three accused, who belonged to her Mohalla, whom she knew from before abducted her and took her to the Ghair of Ram Kishan after stuffing her mouth where they locked her in a room and got her laid on the ground and unclothed her. On her resistance, she was hit by an object. Thereafter all the three accused committed rape on her one by one. She was also threatened by accused Ajit that if she raises any hue or cry she will be eliminated before the dawn.

PW 3 is Dr. Deepa Tyagi, Consultant, District Women Hospital MMG Hospital, Ghaziabad. She deposed that on 25.10.2009 she was posted at the District Women Hospital as Consultant. On that date she conducted the medical examination of the victim, who was brought by Home Guard 1507 Amrita Rani. Doctor found that there were marks of injury on face, skull and leg. This witness further deposed that hymen of the victim was old torn and healed, but there is redness on the vaginal introitus. Two fingers examination was painful. Two slides of vaginal smear was prepared and sent for pathological examination. On receipt of pathological report on 4.11.2009, this witness prepared supplementary report, in which it was mentioned that the redness which was on the vaginal introitus could be due to infection or due to some injury by blunt object. It was also mentioned in the report that non-motile spermatozoa was seen in the slide as per the report of the pathology. This witness opined that there was evidence of sexual intercourse within last 72 hours with force. This witness has proved her report as Ext. Ka. 2 and supplementary report as Ext. Ka- 3.

PW 4, Rakam Singh was the investigating officer of the case, who conducted the investigation and submitted the charge sheet. His evidence has already been discussed above.

PW 5, Jagpal Singh has deposed that on 25.10.2009 he was posted at police station Dhaulana, district Ghaziabad. On that date on the basis of written report, he prepared Chik FIR at case crime 282 of 2009, which he proved as Ext. Ka-7. He also made necessary GD entries, which he proved as Ext. Ka-8.

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 due to enmity. They produced four witnesses in defence. DW 1, Tej Pal Singh and DW 2 Surendra have been produced by accused-appellants Ajit and Brajpal whereas DW 3, Jaya Chandra and DW 4 Ved Prakash have been produced by accused-appellant Tejveer.

DW 1, Tej Pal has deposed that no such incident as alleged in the FIR took place and that the accused-appellants have falsely been implicated in this case as the accused-appellants family did not support the father of the complainant in the Pradhani election. This witness further deposed that complainant always used to threaten the appellants to falsely implicate in a criminal case. He deposed that accused-appellants Brajpal and Ajit are students of B.Tech and B.A respectively and their conduct and character are very good in the village. He further deposed that on the date of incident the victim had gone somewhere and came very late due to which complainant beaten him as a result thereof she sustained injury.

DW 2, Surendra has also deposed more or less the same facts as narrated by DW 1 to the effect that the accused-appellants have falsely been implicated in this case due to election animosity.

DW 3, Jaya Chandra has filed an affidavit before the Court stating therein that on 24.10.2009 accused-appellant Tejveer was present at his tailoring shop at Dhaulana and on that night he slept in the house of Ved Prakash. He was arrested by the police on 25.10.2009 in the morning at bus stand Dhaulana.

DW 4, Ved Prakash has also filed his affidavit before the Court stating therein that on 24.10.2009 accused-appellant Tejveer was present at his tailoring shop at Dhaulana and on that night she stayed in his house. He was arrested by the police on 25.10.2009 in the morning at bus stand Dhaulana.

Heard Shri Rajni Kant Pandey, learned counsel for the appellants in Criminal Appeal No. 3444 of 2012 and Shri Yogendra Pal Singh, learned counsel for the appellant in Criminal Appeal No. 3063 of 2012 and learned Additional Government Advocate representing the State in both the appeals and perused the record of the case.

Placing reliance upon an article on the subject “How many days can sperm live in a Woman’s body”, learned counsel for the appellants in both the appeals have hammered the impugned conviction order on the ground that the medical report does not corroborate the prosecution story. Learned counsel has stressed that the typical lifespan of sperm in a woman’s body while fertile cervical fluid is present is three days, but in the right conditions sperm can even live up to five days.

Learned counsel for the appellants argued that the incident in question took place between 11.30 PM on 24.10.2009 and 4.00 AM on 25.10.2009, whereas the medical examination of the victim was conducted on 25.10.2009 at 6.15 PM, i.e. within 18 hours of the incident. In the medical report non-motile spermatozoa was seen. Learned counsel argued that the spermatozoa cannot die within 18 hours and that medical report is inconsistent with the prosecution case.

Learned counsel for the appellants further argued that appellants have falsely been implicated in this case due to Pradhani election. The victim was major and consenting to accused-appellant Brajpal.

On the other hand learned Additional Government Advocate supported the findings recorded by the Trial Court.

The contention of the learned counsel for the appellants that lifespan of sperm in a woman’s body while fertile cervical fluid is present is three days has no force inasmuch as most sperm die within minutes after ejaculation inside the vagina or outside the woman’s genital tract. Once sperm enter the woman’s genital tract, the cervix and uterus, most die within 1-2 days, but some can survive up to 5 days and thus the longest that the sperm can survive in fertile cervical fluid or the uterus is five days. Studies have shown that most pregnancies can be attributed to intercourse that takes place within 1-2 days before ovulation and on the day of ovulation, but some pregnancies can happen after intercourse that happened up to 5 days before ovulation.

Sperm do not typically survive for five days, even in fertile cervical fluid. A life span of 1-2 days is much more typical for sperm, even in fertile cervical fluid-less if there is no fertile cervical fluid. Once the semen dries out, the sperm are usually dead. So the sperm can live from several minutes to several days depending on their environment.

Hon’ble Supreme Court in Narayanamma vs State Of Karnataka, 1994 SCC (5) 728, JT 1994 (5) 436 has held as under:

“With regard to the vaginal smear examination conducted at a different hospital, Dr Reeta, PW 3 has reported that no spermatozoa was seen on it, and the absence of sperms has been viewed against the version of the prosecutrix. It was never elicited from the prosecutrix as to whether the two persons who committed rape on her had reached orgasm emitting semen in her private parts. No presumption can be made that penetration of penis in the private parts of a rape victim must necessarily lead to the discovery of spermatozoa. It is a question of detail and has to be put to test by cross-examination. Otherwise also there may be various other factors which may negative the presence of spermatozoa such as faulty taking of the smear, its preservation, quality of semen etc. The absence of spermatozoa prima facie could not be allowed to tell against the version of the prosecutrix.”

Moreover, 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 case doctor has clearly opined that non-motile spermatozoa was seen and that there was evidence of sexual intercourse within last 72 hours with force. PW 2, who is the victim of the case, has categorically stated in her evidence that on the date of incident at 11.30 PM she was sleeping with her grand-mother. When she got down from her Chabutra to ease herself, all the three accused, who belonged to her Mohalla, whom she knew from before took her to the Ghair of Ram Kishan after stuffing her mouth where they locked her in a room and got her laid on the ground and unclothed her. On her resistance, she was hit by an object. Thereafter all the three accused committed rape on her one by one. She was also threatened by accused Ajit that if she raises any hue or cry she will be eliminated before the dawn.

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. ”

Learned counsel for the appellants further contended that the appellants have falsely been implicated in the case due to enmity and actually they were not present at the place of occurrence.

In support of their case for false implication, learned counsel for the accused-appellants Ajit and Brajpal has produced DW 1, Tejpal and DW 2, Surendra, who have stated before the Trial Court that no such incident happened and the appellants have falsely been implicated due to previous enmity, whereas learned counsel for the accused-appellant Tejveer has produced DW 3, Jaya Chandra and DW 4 Ved Prakash, who have stated that the accused-appellant Tajveer was present at his tailoring shop at Dhaulana and was not present at his house.

However, learned Trial Court after considering the evidence on record, rejected the defence given by the accused. Learned Trial Court has also held that the suggestion given on behalf of the accused-appellant Tejveer that the victim was in love with accused Brajpal and on his asking she came to the Ghair on her own, suggests that accused-appellants were very much present at the Ghair and committed gang rape on her.

Hon’ble Supreme Court in Ramashish Rai Vs. Jagdish Singh, (2005) 10 SCC 498, has held that the requirement of law is that the testimony of inimical witnesses has to be considered with caution. If otherwise the witnesses are true and reliable their testimony cannot be thrown out on the threshold by branding them as inimical witnesses. By now, it is well-settled principle of law that enmity is a double- edged sword. It can be a ground for false implication. It also can be a ground for assault. Therefore, a duty is cast upon the court to examine the testimony of inimical witnesses with due caution and diligence.”

In this case a minor girl of 16 years had been ravished by three accused persons, who must have undergone a traumatic experience.

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 inspirers 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.”

In the case in hand, I find that the evidence of the prosecutrix is consistent. The victim has consistently stated that on the date of incident at 11.30 PM she was sleeping with her grand-mother. When she got down from her Chabutra to ease herself, all the three accused, who belonged to her Mohalla, whom she knows from before took her to the Ghair of Ram Kishan after stuffing her mouth where they locked her in a room and got her laid on the ground and unclothed her. On her resistance, she was hit by an object. Thereafter all the three accused committed rape on her one by one.

Hon’ble Supreme Court in State Of Himachal Pradesh vs Asha Ram, 2006 Cri.L.J. 139 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 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.”

The next contention of the learned counsel for the appellants that the victim was major and consenting to the accused Brajpal and on his asking she went to the Ghair has no leg to stand.

As per FIR version the age of the prosecutrix was 16 years and PW 3, Dr. Deepa Tyagi, Consultant, District Women Hospital MMG Hospital, Ghaziabad, who had medically examined the victim has opined that the age of the victim is 17 years. In the high school marks sheet the age of the victim was recorded as 20.4.1993 and the incident took place on 24.10.2009 meaning thereby that the victim was 16 years and six months old on the date of incident. From the above, it is clear that the victim was minor on the date of incident.

So far as the contention that the victim was consenting to the accused Brajpal is concerned, I find no force in this contention of learned counsel for the appellants inasmuch as the victim in her evidence has categorically levelled serious allegations of gang rape against all the accused including the appellant Brajpal. If the victim was consenting to the appellant Brajpal, she may omitted the name of the Brajpal in her evidence.

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 the case of State of Karnataka Vs. Krishnappa 2000 (2) SCALE 610, Hon’ble Supreme Court 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.”

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 his consequences. 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 aged 16 years had been ravished by the three accused, who must have undergone a traumatic experience. As a matter of fact the crime is not only against the victim, it is against the whole society as well.

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 21.7.2012 passed by the learned Additional Sessions Judge, Court No. 5, Ghaziabad in ST No. 384 of 2010 arising out of case crime No. 282 of 2009, under sections 363, 366, 376 IPC, PS Dhaulana, district Ghaziabad, which has been sought to be assailed, calls for no interference.

Accordingly, both the appeals are hereby dismissed.

However considering the facts and circumstances of the case, that the ends of justice would be met if this Court directs that all the sentences of the appellants shall run concurrently. Accordingly, it is directed that all the sentences of the appellants shall run concurrently. Resultantly, impugned judgement and order stands modified to the above extent.

The appellants Ajit and Brajpal are in jail. They shall remain in jail to serve out the remaining sentence awarded to them by the learned Trial Court as modified by this Court.

Appellant Tajveer is on bail. His bail bonds are cancelled and sureties are discharged. He is directed to surrender before the court concerned to serve out the remaining sentence awarded by the Trial Court and modified by this Court.

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

Order Date: 15.12.2017

Ishrat

 

 

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