HIGH COURT OF JUDICATURE AT ALLAHABAD

A.F.R.

Reserved On:- 6.8.2018

Delivered On:- 31.08.2018

Court No. – 36

Case :- JAIL APPEAL No. – 5108 of 2010

Appellant :- Mangal Giri

Respondent :- State Of U.P.

Counsel for Appellant :- A.G.A.

Counsel for Respondent :- From Jail

Hon’ble Mrs. Sunita Agarwal, J.

Hon’ble Vivek Kumar Singh, J.

(Delvered By Hon’ble Vivek Kumar Singh, J.)

1.Heard Sri Sarvesh Chandra Mishra, learned Amicus Curiae appearing on behalf of the appellant and Ms. Anjum Haq, Ms. Anita Srivastava, Sri Sagir Ahmad and Sri Gautam Pratap Singh, learned A.G.A. for the State.

2.This appeal is directed against the judgement and order dated 17.12.2009 passed in Sessions Trial No.627 of 2009 (Case Crime No.36 of 2009), under Section 376 (च) I.P.C., Police Station Shikarpur, District Bulandshahar, whereby the accused-appellant has been convicted for life imprisonment with a fine of Rs.20,000/- out of which half of amount shall be paid to the victim as compensation and in case of default in payment of fine the accused-appellant shall further undergo imprisonment of twenty months.

3.Brief facts of the prosecution case are that on 27.2.2009 in afternoon at around 3 o’clock, Mangal Giri, Baba of temple of village concerned had raped niece of the first informant Mukesh namely Km. Saroj D/o Shankar Lal r/o Jaanipur Kalan, a minor girl, after calling her in a room of the temple while she was playing alone outside the temple. The Baba, thereafter, fled away. When the informant visited his cousin Smt. Rani’s house, he came to know about this occurrence and he further inquired from children and villagers who reported that they had seen the incident. His brother-in-law (father of the victim) had gone to work as labour. He took his niece Saroj-victim smeared in blood to his sister’s house from the temple.

4.On the basis of the written report of the Mukesh F.I.R. of the offence u/s 376 IPC was registered against unknown Baba of the temple situated in village Jaanipur Kalan at the police station Shikarpur, Bulandshahar.

5.Initially, this case was investigated by S.S.I. Sri Arjun Singh, thereafter investigation was handed over to Adil Raseed, S.S.I. Shikarpur. During investigation, the victim smeared in blood was sent to the District Hospital Shikarpur by S.S.I. Arjun Singh. Having taken victim’s blood stained clothes and Baba’s langot into custody, its memo was prepared. Thereafter, the place of occurrence was inspected at the instance of the first informant and site-map was prepared. Thereafter, the investigation was received by S.S.I. Aamil Raseed. During investigation, he recorded the statements of the victim and witnesses, prepared arrest-memo having arrested Baba Mangal Giri and after getting the deposition of the victim before the magistrate and on having sufficient evidence against Baba Mangal Giri, the charge-sheet was submitted to the Court of Judicial Magistrate (herein after referred to as the J.M.) first class on 23.3.09 u/s 376 IPC where cognizance of the crime was taken.

6.The accused Baba Mangal Giri appeared in the court of learned J.M., First Class, Bulandshahar. The case file of the accused was transferred to the Additional Chief Judicial Magistrate, Court No.-2, Bulandshahar. The accused appeared in the court of Additional Chief Judicial Magistrate, Court No.-2, Bulandshahar where the case of the accused was committed to the Sessions Court for trial vide order dated 2.7.09 which was registered as 627/2009.

7.In order to prove its case following evidences were produced by the prosecution:-

Oral evidence:-

1

Victim Km. Saroj

P.W.1

2

Complainant Mukesh

P.W.2

3

Con.-512 Ram Shesh Mishra

P.W.3

4

S.I. Aamil Raseed

P.W.4

5

S.I. Arjun Singh

P.W.5

6

Dr. Abhilasha Gupta

P.W.6

7

Dr. Vaibhav

P.W.7

8

Dr. Madhu Sharma

P.W.8

9

Ravindra Singh

P.W.9

10

Dr. Pritam Singh

P.W.10

Documentary Evidence:-

1

Statement of victim u/s 164 Cr.P.C.

Ex.Ka-1

2

First Information Report

Ex.Ka-2

3

Chik

Ex.Ka-3

4

Carbon Copy of G.D.

Ex.Ka-4

5

Arrest-memo of the accused

Ex.Ka-5

6

Charge-sheet

Ex.Ka-6

7

Recovery-memo of blood stained clothes

Ex.Ka-7

8

Site-map

Ex.Ka-8

9

Discharge-slip

Ex.Ka-9

10

Medical-Report of the victim

Ex.Ka-10

11

Reference-form

Ex.Ka-11

12

Reference form of C.M.O.

Ex.Ka-12

13

Clinical history

Ex.Ka-13

14

Pathology report

Ex.Ka-14

15

Forensic report

Ex.Ka-15

8.After the evidence of the prosecution, statement of the accused was recorded u/s 313 Cr.P.C. in which the accused again denied the charges. Having called the evidences of the witness and charge-sheet wrong, he stated the village factionalism as the reason of litigation and denied to adduce defence testimony.

9.Sri Sarvesh Chandra Mishra, learned Amicus Curiae appearing on behalf of the appellant submits that the prosecution has miserably failed to prove its case beyond doubt. It is further submitted that the first information report of the incident was lodged by the relative of the victim and not by the parents. It is further submitted that the statement of the mother of the victim has also not been recorded. It is further submitted that the accused-appellant was arrested by the police of the concerned police station on 7.3.2009. Learned Amicus Curiae has drawn attention of the Court towards Exhibit Ka-7 and has stated that recovery of clothes of the victim and accused had not been made by the police but the same had been produced by the first informant before the police. Learned Amicus Curiae has further drawn attention of the Court towards Exhibit Ka-15, which is report of the Vidhi Vigyan Prayogshala to submit that only the clothes of the victim had been sent for examination and no examination of the clothes of the appellant was done. It is further submitted that there is nothing on record to connect the appellant with the complicity of the offence. Moreover, the only evidence which has come against the appellant is the statement of the victim recorded under Section 164 Cr.P.C. The victim was aged about 6 to 8 years at the time of incident and the said statement of the victim appears to be tutored one and hence the same cannot be relied upon. It is submitted that the incident had taken place in some other manner and not as presented by the prosecution. Learned Amicus Curiae appearing on behalf of the appellant further submits that the name of victim’s father being recorded as Shivkumar instead of Sri Shanker in the discharge-slip of the Medical College, Meerut, further creates doubt on the prosecution story as to whether it was the victim or some one else.

10.Lastly, learned Amicus Curiae appearing on behalf of the appellant has challenged the quantum of punishment i.e. life imprisonment, awarded to the appellant as an alternative plea.

11.According to the learned Amicus Curiae, having regard to all the circumstances which resulted in the conviction of the appellant and further keeping in view the fact that appellant has already undergone more than 9 years imprisonment till date and still in jail, in case, this Court comes to the conclusion that recorded conviction of the appellant under Section 376 (च) I.P.C. is liable to be confirmed, then it may alter the award of life term to a sentence of 10 years.

12.Per contra Ms. Anjum Haq, Ms. Anita Srivastava, Sri Sagir Ahmad and Sri Gautam Pratap Singh, learned brief holders for the State-respondent submitted that the prosecution case stood proved beyond all reasonable doubt. It is further submitted that so far as commission of crime and complicity of accused is concerned there was no cross examination nor there was any suggestion of anyone else having committed the crime in question. It is further submitted that the suggestion of the defence that the injury had been caused to the victim in some other circumstance cannot be relied upon as the nature of injury is a result of sexual assault which has been proved beyond doubt. The medical evidence on record, fully corroborated the ocular version of the prosecution case.

13.Learned A.G.A. next submitted that the appellant does not deserve any leniency from this Court as he has been convicted for having committed a heinous crime of rape with a minor child. Thus, sentence of life imprisonment awarded to him is in consonance with the gravity of the offence committed by him. It is further submitted that the victim who is minor has categorically supported the prosecution case in her statement recorded under Section 164 Cr.P.C. and it is submitted that the evidence of child witness must be evaluated more carefully. In support of his contention, he has placed reliance on a judgement of the Supreme Court reported in [2011 (2) JIC 760 (SC)] State of M.P. Vs. Ramesh Anr, relevant paragraphs thereof read as under:-

CHILD WITNESS :

6.In Rameshwar S/o Kalyan Singh v. The State of Rajasthan, AIR 1952 SC 54, this Court examined the provisions of Section 5 of Indian Oaths Act, 1873 and Section 118 of Evidence Act, 1872 and held that every witness is competent to depose unless the court considers that he is prevented from understanding the question put to him, or from giving rational answers by reason of tender age, extreme old age, disease whether of body or mind or any other cause of the same kind. There is always competency in fact unless the Court considers otherwise.

The Court further held as under:

“…..It is desirable that Judges and magistrates should always record their opinion that the child understands the duty of speaking the truth and state why they think that, otherwise the credibility of the witness may be seriously affected, so much so, that in some cases it may be necessary to reject the evidence altogether. But whether the Magistrate or Judge really was of that opinion can, I think, be gathered from the circumstances when there is no formal certificate….”

7.In Mangoo Anr. v. State of Madhya Pradesh, AIR 1995 SC 959, this Court while dealing with the evidence of a child witness observed that there was always scope to tutor the child, however, it cannot alone be a ground to come to the conclusion that the child witness must have been tutored. The Court must determine as to whether the child has been tutored or not. It can be ascertained by examining the evidence and from the contents thereof as to whether there are any traces of tutoring.

8.In Panchhi Ors. v. State of U.P., AIR 1998 SC 2726, this Court while placing reliance upon a large number of its earlier judgments observed that the testimony of a child witness must find adequate corroboration before it is relied on. However, it is more a rule of practical wisdom than of law. It cannot be held that “the evidence of a child witness would always stand irretrievably stigmatized. It is not the law that if a witness is a child, his evidence shall be rejected, even if it is found reliable. The law is that evidence of a child witness must be evaluated more carefully and with greater circumspection because a child is susceptible to be swayed by what others tell him and thus a child witness is an easy prey to tutoring.”

9.In Nivrutti Pandurang Kokate Ors. v. State of Maharashtra, AIR 2008 SC 1460, this Court dealing with the child witness has observed as under:

“The decision on the question whether the child witness has sufficient intelligence primarily rests with the trial Judge who notices his manners, his apparent possession or lack of intelligence, and the said Judge may resort to any examination which will tend to disclose his capacity and intelligence as well as his understanding of the obligation of an oath. The decision of the trial court may, however, be disturbed by the higher court if from what is preserved in the records, it is clear that his conclusion was erroneous. This precaution is necessary because child witnesses are amenable to tutoring and often live in a world of make-believe. Though it is an established principle that child witnesses are dangerous witnesses as they are pliable and liable to be influenced easily, shaped and moulded, but it is also an accepted norm that if after careful scrutiny of their evidence the court comes to the conclusion that there is an impress of truth in it, there is no obstacle in the way of accepting the evidence of a child witness.”

10.The evidence of a child must reveal that he was able to discern between right and wrong and the court may find out from the cross-examination whether the defence lawyer could bring anything to indicate that the child could not differentiate between right and wrong.

The court may ascertain his suitability as a witness by putting questions to him and even if no such questions had been put, it may be gathered from his evidence as to whether he fully understood the implications of what he was saying and whether he stood discredited in facing a stiff cross-examination. A child witness must be able to understand the sanctity of giving evidence on a oath and the import of the questions that were being put to him. (Vide: Himmat Sukhadeo Wahurwagh Ors. v. State of Maharashtra, AIR 2009 SC 2292).

11.In State of U.P. v. Krishna Master Ors., AIR 2010 SC 3071, this Court held that there is no principle of law that it is inconceivable that a child of tender age would not be able to recapitulate the facts in his memory. A child is always receptive to abnormal events which take place in his life and would never forget those events for the rest of his life. The child may be able to recapitulate carefully and exactly when asked about the same in the future. In case the child explains the relevant events of the crime without improvements or embellishments, and the same inspire confidence of the Court, his deposition does not require any corroboration whatsoever. The child at a tender age is incapable of having any malice or ill will against any person. Therefore, there must be something on record to satisfy the Court that something had gone wrong between the date of incident and recording evidence of the child witness due to which the witness wanted to implicate the accused falsely in a case of a serious nature.

12.Part of the statement of a child witness, even if tutored, can be relied upon, if the tutored part can be separated from untutored part, in case such remaining untutored part inspires confidence. In such an eventuality the untutored part can be believed or at least taken into consideration for the purpose of corroboration as in the case of a hostile witness. (Vide: Gagan Kanojia Anr. v. State of Punjab, (2006) 13 SCC 516).”

14.We have heard Sri Sarvesh Chandra Mishra, learned Amicus Curiae appearing on behalf of the appellant and Ms. Anjum Haq, Ms. Anita Srivastava, Sri Sagir Ahmad and Sri Gautam Pratap Singh, learned brief holders on behalf of the State and perused the entire record of the lower court.

15.According to prosecution’s version, the occurrence had taken place on 27.2.09 at around 3 o’clock in the afternoon in a temple situated in village-Jaanipur Kalan, police station-Shikarpur, District- Bulandshahar and the accused has been charged for committing rape of the victim a 9 years old girl namely Km. Saroj.

16.Before evaluating the veracity of version of the prosecution, it would be proper to look at the basic ingredients constituting the alleged crime punishable as an offence under Section 376(2) I.P.C. Since, the conviction and acquittal of the accused in the aforesaid section depends on success or failure of the prosecution to prove those ingredients against the accused. Relevant provision reads as under :-

[376. Punishment for rape.–

(1)Whoever, except in the cases provided for by sub-section (2), commits rape shall be punished with imprisonment of either description for a term which shall not be less than seven years but which may be for life or for a term which may extend to ten years and shall also be liable to fine unless the women raped is his own wife and is not under twelve years of age, in which cases, he shall be punished with imprisonment of either description for a term which may extend to two years or with fine or with both:

(2) Whoever,–

(a) being a police officer commits rape–

(i) within the limits of the police station to which he is ap­pointed; or

(ii) in the premises of any station house whether or not situated in the police station to which he is appointed; or

(iii) on a woman in his custody or in the custody of a police officer subordinate to him; or

(b) being a public servant, takes advantage of his official position and commits rape on a woman in his custody as such public servant or in the custody of a public servant subordinate to him; or

(c) being on the management or on the staff of a jail, remand home or other place of custody established by or under any law for the time being in force or of a woman’s or children’s insti­tution takes advantage of his official position and commits rape on any inmate of such jail, remand home, place or institution; or

(d) being on the management or on the staff of a hospital, takes advantage of his official position and commits rape on a woman in that hospital; or

(e) commits rape on a woman knowing her to be pregnant; or

(f) commits rape on a woman when she is under twelve years of age; or

(g) commits gang rape, shall be punished with rigorous imprisonment for a term which shall not be less than ten years but which may be for life and shall also be liable to fine: Provided that the Court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment of either description for a term of less than ten years. Explanation 1.–Where a woman is raped by one or more in a group of persons acting in furtherance of their common intention, each of the persons shall be deemed to have committed gang rape within the meaning of this sub-section. Explanation 2.–“Women’s or children’s institution” means an institution, whether called an orphanage or a home for neglected woman or children or a widows’ home or by any other name, which is established and maintained for the reception and care of woman or children. Explanation 3.–“Hospital” means the precincts of the hospital and includes the precincts of any institution for the reception and treatment of persons during convalescence or of persons requiring medical attention or rehabilitation.]

17.Undoubtedly, burden to prove the implication of the accused in the crime beyond doubt is on the prosecution itself. The analysis of evidence put forth by the prosecution would make it visible that upto what extent the prosecution succeed to discharge its burden.

18. To determine this, the following points are considerable, keeping in view the charges levelled by the prosecution on the accused, to dispose off the case:-

1-Was the victim minor at the time of incident- if yes, was she an immature girl of under 12 years?

2-Was the victim raped?

Now it would be reasonable to think over these points thoroughly.

Point No.1:-

As per the prosecution the age of the victim was told to be 8-9 years at the time of incident. No age of the victim has been mentioned in the written report. The victim has disclosed her age as 8 years in her testimony before the court as P.W.-1. The age of victim is mentioned 9 years in medical reports Ex.Ka-7 and Ka-8. In the report/discharge slip Ex.Ka-7 of L.L.R.M. Medical College and Associate S.V.B.P. Hospital, Meerut where the victim was referred by the District Hospital, Bulandshahar and Ex.Ka-8 the medical report of District Hospital Bulandshahar dated 27-2-09, it is clearly mentioned that the victim’s breast were not developed and there were no axillary and pubic hair. It is confirmed by above said reports also that the victim was minor girl under the age of 12 years at the time of incident. It is pertinent to mention that the alleged age of the victim by the prosecution is admissible to the defence too, no objection could be raised by them either at the stage of evidence or at the time of arguments.

The conclusion of above said analysis is that at the time of the incident the victim was minor girl under 12 years.

Point No:-2

As far as this point is concerned, it is a question of fact and for its disposal it would be justifiable to peruse the evidences of prosecution witnesses separately.

Prosecution Witness No.1/Victim:-

19.The victim was examined as PW-1, she was aged about 12 years when she entered in the witness box. The trial court has taken care to ascertain as to whether she was able to understand the questions and able to give rational answer thereof by asking certain questions before recording her statement. After recording that she was a competent witness to depose to the fact, the trial court has proceeded to record her statement.

So far as competence and reliability of testimony of a child witness, the law is fairly well settled. A child witness if found competent to depose to the facts and reliable one, such evidence could be the basis of conviction. The evidence of a child witness and credibility thereof would depend upon the circumstances of each case. The only precaution which the Court should bear in mind while assessing the evidence of a child witness is that the witness must be a reliable one and his/her demeanour must be like any other competent witness and there is no likelihood of being tutored. There is no rule or practice that in every case the evidence of such a witness be corroborated before conviction can be allowed to stand but, as a rule of prudence the Court always finds its desirable to have the corroboration to such evidence from other dependable evidence on record.

Even otherwise, there is no minimum age of the witness to be treated as competent witness under Section 118 of the Evidence Act. Even in absence of oath the evidence of a child witness can be considered provided that such witness is able to understand the questions and to give rational answer thereof. Reference may be made to the judgments of the Apex Court in Dattu Ramrao Sakhare others Vs. State of Maharashtra reported in 1997 (5) SCC 341, Panchhi others Vs. State of U.P. reported in 1998 (7) SCC 177, Ganesh Lal Vs. State of Rajasthan reported in 2002 (1) SCC 731 and Dinesh Prajapati Vs. State of Madhya Pradesh reported in 2011 (14) SCC 268.

19b.Sexual offence is generally committed at lonely places where there is no one except the accused and the prosecutrix. Therefore, in such offences, the testimony of the prosecutrix is the most important evidence because it is only she who is capable to tell as to what offence had been done with her and who committed it. Therefore, on the basis of the testimony of only prosecutrix, the conviction for rape is possible- provided her testimony is reliable. Even its corroboration with any other evidence is not necessary unless there is such circumstances which necessitate for corroboration.

19c.As it has been laid down by the Hon’ble Supreme Court in Om Prakash Vs State of U.P. C.R.L.J. 2006 S.C. 2913. In the value based society of India where the dignity of woman is held in high esteem and with that is associated not only the prestige of that woman but also of the whole society and family- There is very negligible probability that a person will get lodged a false report on the cost of dignity of his own daughter without any reason and in such cases where the prosecutrix is an immature girl of 8-9 years, it can’t be even imagined to lodge a false report about her.

Reference be also made to State of Punjab Vs Gurmit Singh, AIR, 1996 S.C. 1393 and Bhogan Bhai Hirji Bhai Vs State of Gujarat AIR, 1983 S.C. 735.

In State of Punjab Vs Gurmit Singh it has been held:_ “Unless there are compelling reason which necessitate looking for corroboration of her statement, the court should find no difficulty in acting on the testimony of the victim of sexual assault alone to convict an accused where the testimony inspires confidence is found to be reliable, seeking corroboration of her statement before relying upon the same, as a rule amounts to adding insult to injury.”

20.In the light of the said legal position, it would be reasonable to find out whether this witness is reliable or not. Keeping her tender age in mind while evaluating her testimony. In the court, this witness has narrated the incident being of five months ago happened in the afternoon and the place of occurrence being the temple and the accused being the Baba residing in that temple. She has stated on oath that she was taken in the room on the pretext of giving Prasad and there she was raped. The description of the incident has been given in the comprehensible language of the child witness in the following manner:-

“Five months ago, I was playing in the temple of Lord Shiva in my village. It was 3 pm in the afternoon. The Baba residing in the temple who is present in the court today- whose name is Mangalgiri- has taken my in the room of the temple for giving me Prasad. There he took off my clothes, his clothes as well, inserted his penis into my vagina. When I shrieked, he shut my mouth with clothes and then I became unconscious. My vagina bled. When I became conscious, Baba was not there. I wore my clothes, my clothes got soaked in blood after wearing it. I had received injuries on my vagina.

21.The deposition of this witness U/s 164 Cr.P.C. was recorded before the Magistrate too. When the sealed envelope of statement U/s 164 Cr.P.C. was opened, showed and read over to the witness, she admitted the said statement and has proved it as Ex.Ka-1 stating the thumb impression and signature on it being of her own.

22.This witness/victim has been thoroughly cross-examined. In cross-examination also, she was not shaken rather fully corroborated her statement made in examination-in-chief and stated that she used to go to the temple to play and other children too go for playing. People come there for worship but they used to come in morning, not in afternoon. On the fateful day, she alone had gone to temple for playing. Baba had called her for giving prasad while she was playing outside, but he did not give prasad and took her into the kothari of the temple where nobody was present. On asking, what game she was playing in the temple, she replied that she was playing gintu. The witness was questioned by the learned counsel for the defence that in the statement given under section 164 Cr.P.C., she had stated to the Magistrate about having gone to see barat, whereas now she stated about having gone to play. In reply, the witness clarified her statement that though she had gone to see the barat but by that time the barat had already left. So she went to the temple to play. She has categorically stated that she was striped in the room and her mouth was closed by the Baba on raising alarm. On being questioned by the court whether the door of kothari was open when the Baba put off the clothes, the witness replied that when the Baba took her into the kothari, the door was open and after entering, Baba closed the door. On again being questioned in cross-examination, she explained that what does she mean by bad act. This witness has identified the accused present in court that this was the same Baba and has rebutted the contention that her father visited to Baba. (she) has also proved her statement to the sub-inspector and the fact of being admitted in the hospital after the incident. In her cross-examination, the witness has clearly stated that “Baba Mangal Giri had committed the same bad act with me as told by me. I am not lying rather telling truth”. This witness has stated about regaining consciousness in the hospital and has stated that she firstly got consciousness, then she put on the clothes and after wearing clothes, she again went unconscious and then she got consciousness in the hospital.

23.The learned counsel for the defence has contended before the court that this witness has stated that she fell unconscious and thereafter reached home stumbling and on reaching home, she narrated the incident to her mother, whereafter her parents took her to the hospital. But on the contrary in her statement in the Court, she states that she regained consciousness in the hospital, and that if she became conscious in the hospital, how did she reach her home and on this basis, (he) attempted to rebut the credibility of the witness.

This question has also been asked by the court to the witness that if she got consciousness in the hospital, how did she go to her home and her reply was that she had gone stumbling in unconscious condition. This witness is very young girl and it clearly appears from her statement that by falling unconscious she means not being fully comprehended and instead not being fully conscious and being in semi-conscious condition. She is an immature girl, even mature witnesses call it fainting when they happen to feel dizzy. Otherwise too, minor contradictions or insignificant discrepancies in the statement of a witness who is otherwise unshaken, are not worth consideration.

24.It is clear that in her examination-in-chief and cross-examination, the witness has not at all deviated on the substantial points i.e. time of the incident and the place, happening of the incident and the accused and therefore, she is totally reliable witness.

Prosecution Witness No.02:-

25.Mukesh/complainant has been examined as PW-2. This witness is complainant and the report regarding the incident has been lodged by him. This witness has stated the victim to be his niece and proved the averments of the written report narrating the incident available on the file to be in his writing and signature as Ext. ka-2. This witness has also proved the fact of admission of his niece in the hospital and her medical examination.

26.This witness/P.W.-2 was questioned in the cross-examination that when did he reach the village; how come the victim is his niece; when he got the information of the incident. In reply, the witness has clearly stated that he is resident of village- Bhailayee which is at the distance of twenty kilometers from the victim’s village and the victim’s mother namely Rani is his cousin, and on the fateful day, he along with his cousin (brother) and Rani’s real brother namely Dhannu had gone for visiting his sister namely Rani and when reached at village- Jaanipur at about 3.00 o’clock, he got the information in the way. He stated that the incident occurred during the period when winter was on subside and it was month of February. He stated that on reaching at the village, children told him about the incident and hubbub ensued that the Baba committed such offence, then only he came to know about the incident. Hearing this, he alongwith his sister’s family members and neighbors went to the temple. (This witness) has stated about writing report by himself; and then narrating the incident to the sub-inspector who had demanded for written report which was given by him. This witness has clearly stated that he did not see the incident through his own eyes and that he reached after the incident. The witness was asked that when the victim’s real maternal uncle was present, why did he not lodge the report, thereupon he replied that since all people were going to Bulandshar for medical examination, so he lodged the report. (He) has stated in his report about seeing the incident by children of the village and has stated the victim’s house was 100 meter away from the temple. This witness has also stated that the next day, he went back to his village- Bhailayee. This witness has also stated the victim was taken to Bulandshar Medical College from the police station by the police and was then referred to Meerut from Bulandshar. The fact is also corroborated from the documents available on the file. The witness rebutted this contention that the pradhan had taken forty thousand rupees from the Baba for repairing the floor of the temple, and on demand, the false report was lodged against Mangal Giri by misleading the complainant by pradhan. Another suggestion was made to the witness that- the Pradhan got false report lodged by tempting the complainant for compensation from the government- this contention was rebutted by him by stating that the victim does not belong to Scheduled Caste community. This contention has also been rebutted that he did not see the temple and has stated that (he) has had seen the temple and the kothari inside it where the Baba lived.

27.Thus, so far as this witness is concerned, he has also corroborated the victim’s statement and prosecution version. And the defence could not extract such substantial contradiction from this witness, so as to discard this witness or the victim.

28.A contention has also been necessarily made by defence that there are contradictions in the witness’s statement. (He) has stated in the statement given under section 161 Cr.P.C. that he had dropped the victim smeared in blood at his sister’s house from the temple, whereas in the statement recorded before the court he states that when he reached his sister’s home, he found the victim in unconscious condition and her vagina was bleeding and thereafter he went to the police station to lodge the report.

The court does not agree with the contention of learned counsel for the defence. Actually there is no contradiction between the statements given under section 161 Cr.P.C. and before the court. (He) had stated in statement given under section 161 Cr.P.C. that ‘he lodged the report after leaving Km. Saroj smeared in blood in the village; Km. Saroj is lying unconscious; blood is oozing; please take immediate action’. He nowhere stated that he went to the temple and took the victim from the temple himself. His averment was the victim was laying in pool of blood at his sister’s house and he had come to lodge the report and the same statement he has given before the court.

29.Thus, so far as witnesses of the facts are concerned, the prosecution version has been completely corroborated by the aforesaid both the witnesses.

30.Now, it is to be examined whether the oral evidence is corroborated by the medical evidence or not. Medical reports Ext. ka-7 to ka-14 are available on the file which have been proved by PW.-6 to PW.-10.

Prosecution Witness No.:-06:-

Dr. Abhilasha Gupta the doctor at Meerut Medical College who treated the victim after she was referred by Bulandshahar District Hospital. This witness has stated on oath that on 28.2.09 while she was on duty, in the above medical College, the victim namely Saroj r/o Shikarpur, Bulandshahar, village Vaireena aka Janipur Kalan, was brought on being referred by District Hospital Bulandshahar and that she underwent treatment at the Medical College. The Discharge slip was prepared by her juniors Dr. Sangeeta and Dr. Vaibhav and was signed by Dr. Vaibhav, the witness has proved it as Ext. Ka-9. This witness has categorically stated that the victim had injuries in her vagina which was possible to have been caused by rape. This witness has proved the following injuries on the person of the victim as mentioned in Ext. Ka-9.

“A small laceration is seen on Rt vaginal wall of size 3 x 4 mm between 5 O’ clock to 6 O’ clock position.”

The Report Exhibit Ka-10 of Bulandshahar District Hospital contains the same injury in it. “xx Hymen freshly torn, edges congested, bleeds on touch ragged torn edges at 6 O’clock position. Vagina full of clots. xx she is referred to Meerut Medical College for further management.”

During cross-examination, this witness has stated to have found injury on the private parts of the victim, and has also stated that the victim was treated only by administering medicines without any operation. Under the clinical summary in the Ext. Ka-9, it is clearly mentioned that “It is a medico-legal case referred from Bulandshahar District Hospital with c/o physical assault x 9 hr back bleeding per vaginum x 9 hr back.”. No other major injury was found by this witness on the person of the victim. On being asked in cross examination whether such injury could be sustained on falling over some pointed object, the witness absolutely denied it. Dr. Sangeeta Jain and Dr. Vaibhav who treated the victim and whose names are there on the discharge slip, are stated to be her associates who had attended the victim under her supervision and direction.

Prosecution Witness No.7:-

Dr. Vaibhav the doctor who had prepared and signed the discharge slip of the victim was examined as P.W.-7. This witness has also proved that on 28.2.09, the victim Saroj was admitted in the Medical College Meerut on being referred from District Hospital Bulandshahar on 28.2.09. Dr. Abhilasha Gupta was Head of the department and it was under her own supervision and before her own eyes that her Associates Dr. Sangeeta, Dr. Uzma, Dr. Mona had attended the victim. Dr. Sangeeta was the consultant Doctor. Reference Form was sent by the District Hospital Buladshahar, which was received by him in the file after verifying the same with the originals brought along, and proved the same respectively as Ext. Ka-10, Ka-11 and Ka-12. This witness also stated that due to mistake the name of victim’s the father got written as Shiv Kumar instead of Sri Shanker in the discharge slip Ext. Ka-7 which was later amended to Ext. Ka-9 whose CRS number is 3353-09. This CRS number is entered by the record section at the time of admission. The hospital medical college case sheet was brought along and after verifying the photo copy from the original, it was proved as Ext. Ka-13. This also bears the annual number 3353 09. All the details- the name of the patient, her permanent address, date of discharge are same and the name of father is written as Sri Shanker. This witness has admitted in cross examination that the discharge slip does not contain the signature of Dr Sangeeta and that of Dr Urmila but it contains his own signature as an associate Doctor. (He) also proved the discharge slip to be in his own writing as well as that of his junior doctor Dr Uzma’s handwriting and it contained the signatures of Dr. Uzma and Dr. Mona as well. During the cross examination this witness was cross-examined with regard to the name of victim’s father being recorded Shivkumar instead of Sri Shanker. In reply he stated that he had clarified this during the examination in chief itself that it was a mistake and there is no difference in rest of the details.

31.Learned Amicus Curiae appearing on behalf of the appellant argued that the name of victim’s father being recorded as Shivkumar instead of Sri Shanker creates doubt as to the identity of the victim and therefore the statement cannnot be relied to implicate the accused.

It is noteworthy that all the details i.e. the name of the victim, age of the victim, her being referred from Bulandshahar District Hospital, and address are same in the discharge slip Ext. Ka-9 of Meerut Medical College but the name of father is written Shivkumar instead of Sri Shanker. The victim was referred to Meerut Medical College on 27.2.09 by the district Hospital for further treatment. Verified photocopy of the above-mentioned Reference Form has been submitted by PW-6 the doctor of the Meerut Medical College. The date and address are the same as all other details. The photocopy of the case sheet Ext.Ka-13 of Medical College by PW-7 bears that very Annual number which is on the discharge slip Ext. Ka-9 and it contains name of the father of the victim as Sri Shanker. Under these circumstances only because the name of father got written as Shivkumar instead of Sri Shanker in the discharge slip due to inadvertent mistake, the identity of the victim cannot be doubted. It is not the contention of the defence that on that day some other girl named Saroj of the same address, police station and of same age was admitted on being referred from Bulandshahar District Hospital. May be due to hustle and bustle, the name of father was not heard correctly.

Prosecution Witness No.8:-

Dr. Madhu Sharma was examined as this witness. This witness is doctor of the District Women Hospital Bulandshahar. She has stated to have conducted medical examination of victim Saroj on 27.2.09 at 7.30pm in the above capacity and had found no external injury on the person of the victim, found breast undeveloped and pubic hair absent. Internal examination was as follows- hymen was freshly broken. Hymen was bleeding on its sides being touched. The hymen was ruptured in the condition of 6 ‘O’ clock. The vagina had blood clots inside it. she has stated the slide having been prepared from the vaginal discharge for the examination of sperms and the same was sent to the pathology department, and in view of the critical condition of the victim she was referred to the Medical College, Meerut for further treatment, and she has also stated that the medical examination report of the C.M.O. and the photo copies of the reference letters sent to the Medical College to be present in the file and having brought along the original M.L.C. report, has verified them with the original and while stating them to be in his own handwriting and under his own signature, has proved them as Ext. Ka-8. Ka-9 and Ka-10 and has also opined that such injuries are probable to receive, if the victim is raped forcibly.

This witness, in the cross-examination, has stated that the victim’s parents had come with her at the time of examination and that she was in conscious state. She could not state whether she came on her own or was carried in arms by her family member. This witness has completely denied the statement of defence that the victim might have received such injury on being fallen on any pointed object while playing. She has clearly stated that such injury can not occur on being fallen on any pointed object. She has also stated that the liquid discharge could not come out because of blood clotting inside the vagina.

Prosecution Witness No.10:-

Preetam Singh has been examined as this witness. This witness is a Pathologist. He has proved the pathological report as Ext-Ka14, and has stated that no sperm has been found in the medical examination.

34.Hence, it is evident from the deposition of PW6 to PW8 all the three witness that the statements of the victim PW-1 and 2 are corroborated from the medical evidences also.

35.It will be worthwhile to peruse the deposition of formal witnesses now.

Prosecution Witness No.3:-

Const. Ram Shesh Misra is the writer of Chik and GD. He has proved the original G.D., Chik FIR and the carbon copy of G.D., as Ext.Ka3 and Ext-Ka4. This witness has also corroborated the statement of PW-2 that the victim did not come alongwith the complainant. He is an informal witness. No other remark is expected on his statement.

Prosecution Witness No.4:-

S.I. Amil Rashid has been examined as this witness. This witness is subsequent Investigating Officer. This witness has deposed about the statement having been recorded at the spot, informer having been launched in search of the accused, statement of the victim having been recorded, the medical report having been copied, and getting the information about the accused having been caught by the villagers, the arrest memo having been prepared and statement of the public witness having been recorded, and stated the arrest memo being in his handwriting signature and has proved them as ExtKa5. He has also proved the statement of victim having been recorded before the magistrate, after the completion of the investigation submitting the charge-sheet Ext.Ka-5 in the court in his handwriting signature. This witness has also deposed to have sent the clothes of the victim and of the accused to the Forensic Science Laboratory. He has also stated to have received the medical reports of the victim from the Medical College, Meerut. This witness has denied it that he in the collusion of the complainant has concocted a false story and that no such incident took place. He has stated that no such fact came to his cognizance, during the investigation, that the accused owed forty thousand rupee to the Pradhan Ravindra. Rather he has stated to have learnt that the accused earned his livelihood by begging and that he puts on just an underwear.

Prosecution Witness No.5:-

S.I. Arjun Singh has been examined as P.W.-5. This witness, while being posted as S.S.I at PS-Shikarpur on 27.02.09, has stated the instant case being registered on the report of the complainant lodged about the rape of his niece Saroj, and that he went to the spot along with the complainant Mukesh, the victim Saroj soaked in blood at the spot, then having sent her to the Government Hospital by a private vehicle, taking into custody the clothes of the victim viz. two Kachhis, one blood stained frock and the accused’s underwear into custody, and then getting the recovery memos prepared by the witness Devendra Singh, and Ravidnra Singh under their signature, wrapping and sealing and stamping of the clothes, recording statement of the witnesses, inspecting the spot and preparing the memo and site plan on pointing out of the witnesses in his handwriting signature, and proved them as Ext.Ka-7 and Ext.Ka-8. He admitted the investigation having been transferred from him to S.I., Adil Rashid. One bundle sealed and stamped was opened before this witness, under the permission of the court, which had the stamp of Forensic Science Laboratory.

The witness has proved two Kachhas of the victim and one frock being taken into custody, as Material Ext-1 to 3. The clothes have been marked as Ext4. He has also stated about taking three sepoy and one S.I along with in a jeep to go to the victim’s village and making its entry in GD. He has also stated about his meeting with the Pradhan of the village Ravindra Singh, Devendra Singh, so many other persons and the victim’s family members, about the victims’s house being 200 metre away from the temple, about inquiring Bachchu Lal and Rajpal at the place of occurrence. This witness on cross-examination has described the place of occurrence/room that the door of the room opens in west, there was haystacks in the room, there was one mattress also on the haystack.

This witness, has denied the suggestion that the frock did not have blood-stains on it. Having seen the frock, it has that the blood-stained on Astar of the frock is clearly visible. This witness has denied the suggestion that he did not go to the spot and prepared the site plan while sitting at the police station. The bundle containing the accused’s underwear was not presented before this witness.

In this way, no such contradictions could come out from the version of this witness which would raise a doubt on the investigation conducted by this witness.

Prosecution Witness No.9:-

Ravindra Singh has been examined as this witness. He is witness of the recovery-memo of victim’s clothes. This witness has stated the accused Mangal Giri’s underwear and the victim’s blood-stained clothes were taken into custody on 27.02.09 in his presence, has proved his signature on the memo and has also proved the recovery-memo 8A/7, available on file. One sealed stamped bundle was opened under the permission of the court before this witness, and this had proved the underwear marked as material Ext.5 and the clothes was marked as material Ext.6 having been recovered in his presence.

This witness, in the cross-examination, has denied that the temple was not under-construction that time. That time, the idol of Shiv Ji, and the photographs of Hanuman Ji and Parvati ji were installed. This witness informed that his house is 60 metre away from the temple. He was informed by his wife over the phone, about the incident. He came to know about the entire episode when he reached the village. He deposed that he reached before the dawn fell and the police reached just one minute after his arrival. Other persons had already gathered there. It took around half an hour in completing the whole proceedings. By that time night had completely fell but there was light. He has denied this point that he was not there at the spot and that he did not put his signature on the recovery-memo and that the underwear did not belong to Baba Mangal Giri.

This witness has been alleged to have taken Rs. Forty thousand from Baba Mangal Giri as loan and in order to avoid repaying that he has falsely implicated him. The suggestion of enmity has been strongly denied by him with the statement that there was no question of the accused lending him money when he himself earn his livelihood by begging for daily commodities from others. This witness has further stated that he had a good relationship with the accused as he was visiting temple frequently for Darshan. The accused in his statement recorded U/s 313 Cr.P.C., has also denied any suggestion of enmity with this witness.

36.The defence has contended that a frock of the victim had been presented before the court and the same was examined by the Forensic Science Laboratory, whereas the victim PW-1, in her statement, has stated she was wearing Shalwar suit at the time of occurrence of the incident.

37.It is right that the victim, in her statement, has stated to have put on Shalwar suit on the day of occurrence by herself, and the clothes presented before the court were frock and Kachhi (underwear), and the same frock and underwear were examined by the Forensic Science Laboratory, and in the report of Forensic Science Laboratory (Ext.Ka-13), human blood, human sperms and semen have been clearly stated to be found on all three clothes. P.W.-5 S.I. Arjun Singh, in his deposition before this court, the underwear and frock presented before the court in a bundle, is the same clothes which were worn by the victim at the time of occurrence of the incident, and the second underwear is that one which was changed at her home because of the underwear, which she was wearing was soaked in blood. Those clothes were found soaked in blood as observed by the trial court. The defence did not object that the victim was putting on the above mentioned clothes at the time of occurrence. The victim is a minor girl of 9-10 years old. If at the time of cross-examination, she stated to have put on Shalwar suit in place of frock, only because of this reason her statement can not be said to be false. Nor the recovery of the clothes presented before the court becomes doubtful only for this reason due allowance should be given to the age of the victim and the fact that she might be afraid of the Court atmosphere.

38.In this sequence, it shall be appropriate to look to the statement of accused under Sec. 313 Cr.PC in order to see as to what clarification he has provided in his defence. Answers provided by accused of different questions asked in reply to questions put regarding prosecution case are that “it is false” and “I do not know”, and that he was implicated due to village fractionalism”. In reply to the questions about his loincloth (lungi) he said that “he does not wear any such cloth.” In reply to the question “what else you want you say”, it was stated by the accused that Pradhan used to visit him and borrowed money but he refused of having any dispute or enmity with the Pradhan.

39.While recording statement of accused under Section 313 Cr.P.C., all the material evidence have been put to him including the statement of Pradhan, he, however, completely denied each circumstance.

The object of recording of statement of accused under Section 313 Cr.P.C. is based on the principles of right to fair trial and the presumption of innocence unless proven guilty. The purpose is to give an opportunity to the accused to explain the circumstance appearing against him as well as to put forward his defence, if he so desires. It is, therefore, obligatory upon the Court to put all material evidence to the accused under Section 313 Cr.P.C.

In terms of 313 Cr.P.C., the accused has the freedom to maintain silence during the investigation as well as before the Court. He may choose to maintain silence or completely deny when his statement under Section 313 Cr.P.C. is being recorded. But once he does not avail this opportunity, then consequences in law must follow. The Court would be entitled to draw an inference, including adverse inference as is permissible in law.

Reference be made to the judgment of the Apex Court in the case of Ramnaresh and others vs. State of Chhattisgarh reported in 2012 (4) Supreme Court Cases 257 as also in Brajendrasingh vs. State of Madhya Pradesh reported in 2012 (4) Supreme Court Cases 289.

In the present case, the accused choose to completely deny of circumstances put to him and did not utter a single word in his defence. In answer to the last question which was asked with a view to give him opportunity to place his defence, he denied having any enmity with the Pradhan who had deposed against him, though he admits that he knew Pradhan for a long time.

In the said circumstance, the suggestion of defence of false implication of the accused at the instance of the Pradhan is not acceptable. On cumulative reading of the evidence brought by the prosecution before the trial court, implication of the appellant in the crime of rape with the minor girl is proved.

40.Lastly, dealing with the submission of the learned counsel for the appellant for reducing the sentence to the period already undergone on the ground that the accused is of 60 years of age, relevant is to note the pronouncements of the Apex Court in the matter of offence of rape under Section 376 I.P.C. Wherein it has depreciated such practice in the following words in the matter of Pushpanjali Sahu Vs. State of Orisa and another reported in (2012) 9 SCC 705 the Apex Court has held as under:-

9. In the instant case, we have gone through the judgment of the High Court reducing the sentence from 7 years to the period already undergone. We are not convinced with the reasons assigned by the High Court.

10. This Court in State of Madhya Pradesh v. Pappu, (2008) 16 SCC 758, considered the similar question of validity and justifiability of reduction of sentence, awarded by the Trial Court to the accused convicted under Section 376(1) read with Section 511 of the Indian Penal Code, 1860 (in short “IPC”) and Sections 324 and 452 IPC, by the High Court. This Court relying upon its earlier observations in State of M.P. v. Ghanshyam Singh, (2003) 8 SCC 13 and State of M.P. v. Babbu Barkare, (2005) 5 SCC 413 observed that undue sympathy towards the accused by imposition of inadequate sentence would do more harm to the justice system by undermining the confidence of society in the efficacy of law and society could not long endure under such serious threats. The Courts therefore are duty bound to award proper sentence having regard to the nature and manner of execution or commission of the offence. This Court, highlighted the dangers of imposition of sentence without due regard to its effects on the social order and opined as follows:

“9. “…17. The social impact of the crime e.g. where it relates to offences against women, dacoity, kidnapping, misappropriation of public money, treason and other offences involving moral turpitude or moral delinquency which have great impact on social order and public interest, cannot be lost sight of and per se require exemplary treatment. Any liberal attitude by imposing meagre sentences or taking too sympathetic a view merely on account of lapse of time in respect of such offences will be resultwise counterproductive in the long run and against societal interest which needs to be cared for and strengthened by a string of deterrence inbuilt in the sentencing system.

19. … The court will be failing in its duty if appropriate punishment is not awarded for a crime which has been committed not only against the individual victim but also against the society to which the criminal and victim belong. The punishment to be awarded for a crime must not be irrelevant but it should conform to and be consistent with the atrocity and brutality with which the crime has been perpetrated, the enormity of the crime warranting public abhorrence and it should ”respond to the society’s cry for justice against the criminal’. If for the extremely heinous crime of murder perpetrated in a very brutal manner without any provocation, most deterrent punishment is not given, the case of deterrent punishment will lose its relevance.”

11. This Court in State of Madhya Pradesh v. Sheikh Shahid, (2009) 12 SCC 715, relying upon its earlier judgment in State of M.P. v. Munna Choubey, (2005) 2 SCC 710 has recorded its observations on the yardstick of determining sentence as the nature and gravity of the offence and has cautioned against placing reliance upon reasons such as accused being from a rural background or length of time.

8. The physical scar may heal up, but the mental scar will always remain. When a woman is ravished, what is inflicted is not merely physical injury but a deep sense of some deathless shame.

9. The law regulates social interests, arbitrates conflicting claims and demands. Security of persons and property of the people is an essential function of the State. It could be achieved through instrumentality of criminal law. Undoubtedly, there is a cross-cultural conflict where living law must find answer to the new challenges and the courts are required to mould the sentencing system to meet the challenges. The contagion of lawlessness would undermine social order and lay it in ruins. Protection of society and stamping out criminal proclivity must be the object of law which must be achieved by imposing appropriate sentence. Therefore, law as a cornerstone of the edifice of ”order’ should meet the challenges confronting the society. 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 the deterrence based on factual matrix. By deft modulation the sentencing process should 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. For instance a murder committed due to deep-seated mutual and personal rivalry may not call for penalty of death. But an organised crime or mass murders of innocent people would call for imposition of death sentence as deterrence. In Mahesh v. State of M.P. this Court while refusing to reduce the death sentence observed thus: (SCC p. 82, para 6)

“6. … it will be a mockery of justice to permit these appellant-accused to escape the extreme penalty of law when faced with such evidence and such cruel acts. To give the lesser punishment for the appellant-accused would be to render the justicing system of this country suspect. The common man will lose faith in courts. In such cases, he understands and appreciates the language of deterrence more than the reformative jargon.’

10. Therefore, undue sympathy to impose inadequate sentence would do more harm to the justice system to undermine the public confidence in the efficacy of law, and society could not long endure under such serious threats. It is, therefore, 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, etc. This position was illuminatingly stated by this Court in Sevaka Perumal v. State of T.N.

11. The criminal law adheres in general to the principle of proportionality in prescribing liability according to the culpability of each kind of criminal conduct. It ordinarily allows some significant discretion to the Judge in arriving at a sentence in each case, presumably to permit sentences that reflect more subtle considerations of culpability that are raised by the special facts of each case. Judges in essence affirm that punishment ought always to fit the crime; yet in practice sentences are determined largely by other considerations. Sometimes it is the correctional needs of the perpetrator that are offered to justify a sentence. Sometimes the desirability of keeping him out of circulation, and sometimes even the tragic results of his crime. Inevitably these considerations cause a departure from just deserts as the basis of punishment and create cases of apparent injustice that are serious and widespread.

12. Proportion between crime and punishment is a goal respected in principle, and in spite of errant notions, it remains a strong influence in the determination of sentences. … Even now for a single grave infraction drastic sentences are imposed. Anything less than a penalty of greatest severity for any serious crime is thought then to be a measure of toleration that is unwarranted and unwise. But in fact, quite apart from those considerations that make punishment unjustifiable when it is out of proportion to the crime, uniformly disproportionate punishment has some very undesirable practical consequences.

13. After giving due consideration to the facts and circumstances of each case, for deciding just and appropriate sentence to be awarded for an offence, the aggravating and mitigating factors and circumstances in which a crime has been committed are to be delicately balanced on the basis of really relevant circumstances in a dispassionate manner by the court. Such act of balancing is indeed a difficult task. It has been very aptly indicated in Mc Gautha v. California that no formula of a foolproof nature is possible that would provide a reasonable criterion in determining a just and appropriate punishment in the infinite variety of circumstances that may affect the gravity of the crime. In the absence of any foolproof formula which may provide any basis for reasonable criteria to correctly assess various circumstances germane to the consideration of gravity of crime, the discretionary judgment in the facts of each case, is the only way in which such judgment may be equitably distinguished.

14. In Jashubha Bharatsinh Gohil v. State of Gujarat it has been held by this Court that in the matter of death sentence, the courts are required to answer new challenges and mould the sentencing system to meet these challenges. The object should be to protect the society and to deter the criminal from achieving the avowed object of law by imposing appropriate sentence. It is expected that the courts would operate the sentencing system so as to impose such sentence which reflects the conscience of the society and the sentencing process has to be stern where it should be. Even though the principles were indicated in the background of death sentence and life sentence, the logic applies to all cases where appropriate sentence is the issue.

15. Imposition of sentence without considering its effect on the social order in many cases may be in reality a futile exercise. The social impact of the crime e.g. where it relates to offences against women, dacoity, kidnapping, misappropriation of public money, treason and other offences involving moral turpitude or moral delinquency which have great impact on social order and public interest, cannot be lost sight of and per se require exemplary treatment. Any liberal attitude by imposing meagre sentences or taking too sympathetic a view merely on account of lapse of time in respect of such offences will be resultwise counterproductive in the long run and against societal interest which needs to be cared for and strengthened by string of deterrence inbuilt in the sentencing system.

16. In Dhananjoy Chatterjee v. State of W.B. this Court has observed that a shockingly large number of criminals go unpunished thereby increasingly encouraging the criminals and in the ultimate, making justice suffer by weakening the system’s creditability. The imposition of appropriate punishment is the manner in which the court responds to the society’s cry for justice against the criminal. Justice demands that courts should impose punishment befitting the crime so that the courts reflect public abhorrence of the crime. The court must not only keep in view the rights of the criminal but also the rights of the victim of the crime and the society at large while considering the imposition of appropriate punishment.

17. Similar view has also been expressed in Ravji v. State of Rajasthan. It has been held in the said case that it is the nature and gravity of the crime and not the criminal, which are germane for consideration of appropriate punishment in a criminal trial. The court will be failing in its duty if appropriate punishment is not awarded for a crime which has been committed not only against the individual victim but also against the society to which the criminal and victim belong. The punishment to be awarded for a crime must not be irrelevant but it should conform to and be consistent with the atrocity and brutality with which the crime has been perpetrated, the enormity of the crime warranting public abhorrence and it should ”respond to the society’s cry for justice against the criminal’. If for an extremely heinous crime of murder perpetrated in a very brutal manner without any provocation, the most deterrent punishment is not given, the case of deterrent punishment will lose its relevance.”

12. Learned counsel for the accused has taken us through the reasons assigned by the High Court. The case on hand, in our considered opinion, does not fall within the category of exceptional cases and as we have already observed, we are not convinced with the reasons assigned by the High Court for reducing the sentence. In this view of the matter, while allowing this appeal, we set aside that portion of the order passed by the High Court reducing the period of sentence from 7 years to the period already undergone by the accused. We now direct that the accused be convicted and sentenced for a period of 7 years. It is needless to mention that the period already undergone by the accused shall be set off.

13. Before parting, we wish to reflect upon the dehumanizing act of physical violence on women escalating in the society. Sexual violence is not only an unlawful invasion of the right of privacy and sanctity of a woman but also a serious blow to her honour. It leaves a traumatic and humiliating impression on her conscience– offending her self-esteem and dignity. This Court in State of H.P. v. Shree Kant Shekari, (2004) 8 SCC 153 has viewed rape as not only a crime against the person of a woman, but a crime against the entire society. It indelibly leaves a scar on the most cherished possession of a woman i.e. her dignity, honour, reputation and not the least her chastity. It destroys, as noted by this Court in Bodhisattwa Gautam v. Subhra Chakraborty,(1996) 1 SCC 490 the entire psychology of a woman and pushes her into deep emotional crisis. It is a crime against basic human rights, and is also violative of the victim’s most cherished of the fundamental rights, namely, the right to life contained in Article 21 of the Constitution. The courts are, therefore, expected to deal with cases of sexual crime against women with utmost sensitivity. Such cases need to be dealt with sternly and severely.

14. In the light of the above discussion, we allow this appeal. The impugned order is set aside. We restore the order passed by the Trial Court.

Ordered accordingly.”

41.In the matter of State of Haryana Vs. Janak Singh reported in (2013) 9 SCC 431 the Apex Court has held as under:-

“6. Rape is one of the most heinous crimes committed against a woman. It insults womanhood. It violates the dignity of a woman and erodes her honour. It dwarfs her personality and reduces her confidence level. It violates her right to life guaranteed under Article 21 of the Constitution of India. We may remind ourselves of the observations made by this Court in Bodhisattwa Gautam v. Subhra Chakraborty,[1] that rape is violative of the victim’s most cherished of the fundamental rights guaranteed under Article 21 of the Constitution of India. In a series of judgments this Court has reiterated these observations. Rape cases have to be dealt with keeping these observations in mind.

7. Section 376 of the IPC provides for punishment for rape. Offence of rape is punishable with imprisonment of either description for a term which shall not be less than seven years but which may be for life or for a term which may extend to ten years. The convict shall also be liable to fine. Proviso to Section 376(1) states that the court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than seven years. Thus, a minimum of seven years sentence is provided under Section 376(1) of the IPC. Sentence for a term of less than seven years can be imposed by a court only after assigning adequate and special reasons for such reduction. Thus, ordinarily sentence for an offence of rape shall not be less than seven years. When the legislature provides for a minimum sentence and makes it clear that for any reduction from the minimum sentence of seven years, adequate and special reasons have to be assigned in the judgment, the courts must strictly abide by this legislative command. Section 376(1) read with the proviso thereto reflects the anxiety of the legislature to ensure that a rapist is not lightly let off and unless there are some extenuating circumstances stated in writing, sentence below the minimum i.e. less than seven years cannot be imposed. While imposing sentence on persons convicted of rape, the court must be careful and must not overlook requirement of assigning reasons for imposing sentence below the prescribed minimum sentence. The High Court appears to have not noticed this requirement.

8. In this connection we may usefully refer to State of Karnataka v. Krishnappa[2]. In that case the High Court had reduced the sentence of ten years rigorous imprisonment imposed by the trial court on the accused for an offence under Section 376 of the IPC to four years rigorous imprisonment. Severely commenting on this indiscretion, this Court observed as under:-

“Protection of society and deterring the criminal is the avowed object of law and that is required to be achieved 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. Courts must hear the loud cry for justice by the society in cases of the heinous crime of rape on innocent helpless girls of tender years, as in this case, and respond by imposition of proper sentence. Public abhorrence of the crime needs reflection through imposition of appropriate sentence by the court. There are no extenuating or mitigating circumstances available on the record which may justify imposition of any sentence less than the prescribed minimum on the respondent. To show mercy in the case of such a heinous crime would be a travesty of justice and the plea for leniency is wholly misplaced. The courts are expected to properly operate the sentencing system and to impose such sentence for a proved offence, which may serve as a deterrent for the commission of like offences by others. Sexual violence apart from being a dehumanising act is an unlawful intrusion of the right to privacy and sanctity of a female. It is a serious blow to her supreme honour and offends her self-esteem 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 cases of sexual crime against women with utmost sensitivity. Such cases need to be dealt with sternly and severely. A socially sensitised Judge, in our opinion, is a better statutory armour in cases of crime against women than long clauses of penal provisions, containing complex exceptions and provisos.”

9.In State of A.P. v. Bodem Sundara Rao[3], the accused was sentenced by the trial court for an offence under Section 376 of the IPC for ten years. The High Court maintained the conviction, however, reduced the period of sentence to four years. This Court set aside the High Court’s order and enhanced the sentence to seven years which is the minimum prescribed sentence under Section 376 of the IPC. The relevant observations of this Court are as under:-

“In recent years, we have noticed that crime against women are on the rise. These crimes are an affront to the human dignity of the society.

Imposition of grossly inadequate sentence and particularly against the mandate of the Legislature not only is an injustice to the victim of the crime in particular and the society as a whole in general but also at times encourages a criminal. The courts have an obligation while awarding punishment to impose appropriate punishment so as to respond to the society’s cry for justice against such criminals. Public abhorrence of the crime needs a reflection through the court’s verdict in the measure of punishment. The courts must not only keep in view the rights of the criminal but also the rights of the victim of crime and the society at large while considering imposition of the appropriate punishment. The heinous crime of committing rape on a helpless 13/14 year old girl shakes our judicial conscience. The offence was inhumane. There are no extenuating or mitigating circumstances available on the record which may justify imposition of sentence less than the minimum prescribed by the Legislature under Section 376(1) of the Act.” The above observations of this Court made in Krishnappa and in Bodem Sundara Rao state what should be the approach of the courts while sentencing accused convicted of rape. We shall examine the present case in light of the above discussion.

10. We notice that before the High Court learned counsel for the respondents did not challenge the conviction. At the same time, he stated that the circumstances of the case and medical evidence indicated that this could be a case where the prosecutrix had gone with respondent Joginder Singh of her own will. Therefore, it is not clear whether the respondents had really instructed their counsel not to press the appeal on merits or whether the counsel on his own thought that getting the respondents released on sentence already undergone by them was an easy way out and, therefore, he preferred that option. We feel that the appeals were heard in a slipshod manner. It was open for the respondents to press the appeals on merits and pray for acquittal. Had the case been argued on merits, the High Court could have acquitted the respondents if it felt that the prosecution had not proved its case beyond reasonable doubt. Assuming the respondents did not press the appeals, the High Court had to still consider whether the concession made by the counsel was proper because it is the duty of the court to see whether conviction is legal. But, once the respondents stated that they did not want to press the appeals and the High Court was convinced that conviction must follow, then, ordinarily it could not have reduced the sentence to the sentence already undergone by the respondents which is below the minimum prescribed by law. The High Court could have done so only if it felt that there were extenuating circumstances by giving reasons therefor. While reducing the sentence, the High Court has merely stated that it was “just and expedient” to do so. These are not the reasons contemplated by the proviso to Section 376(1) of the IPC. Reasons must contain extenuating circumstances which prompted the High Court to reduce the sentence below the prescribed minimum. Sentence bargaining is impermissible in a serious offence like rape. Besides, at the cost of repetition, it must be stated that such a course would be against the mandate of Section 376(1) of the IPC.”

42.We find that prosecution has successfully proved the charges against the appellant beyond reasonable doubt. Grounds taken in support of the appeal are devoid of substance. Arguments to support them are not substantiated from the record. Appeal deserves to be dismissed being bereft of merit. Resultantly appeal is dismissed. Conviction and sentence of the appellant are affirmed.

43.The appellant is in jail. Appellant shall serve out the remaining sentence. Office is directed to communicate this order to the court concerned for compliance forthwith and to send back the lower court record.

44.Sri Sarvesh Chandra Mishra, Advocate was appointed as Amicus Curiae on behalf of the appellant to assist the Court in hearing the present Jail Appeal. Sri Sarvesh Chandra Mishra, Advocate rendered valuable assistance to the Court. The Court quantifies Rs.11,000/- to be paid to Sri Sarvesh Chandra Mishra, Advocate towards fee for the able assistance provided by him in hearing of this Jail Appeal. The said payment shall be made to Sri Sarvesh Chandra Mishra, Advocate by the Registry of the Court within the shortest possible time.

(Vivek Kumar Singh, J.) (Mrs. Sunita Agarwal,J.)

Order Date :- 31.08.2018

Dev/-