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Sanjay vs State Of U.P. on 2 August, 2019

HIGH COURT OF JUDICATURE AT ALLAHABAD

AFR

Reserved

Court No. – 82

Case :- CRIMINAL APPEAL No. – 2027 of 2015

Appellant :- Sanjay

Respondent :- State Of U.P.

Counsel for Appellant :- Dhiraj Kumar Pandey,Sarvjeet Kumar,Vikrant Pandey

Counsel for Respondent :- Govt. Advocate,Ch. Dil Nisar

Hon’ble Pradeep Kumar Srivastava,J.

1. This criminal appeal has been preferred against the judgment and order dated 01.5.2015 passed by Additional District and Sessions Judge, Fast Track Court, District Saharanpur in Sessions Trial No. 205 of 2013, arising out of Case Crime No. 272 of 2012 (State of U.P. Vs. Sanjay), whereby learned court below has convicted and sentenced the accused-appellant for the offence under Section 363 IPC, for three years rigorous imprisonment and fine of Rs.10,000/- and in default, three months additional imprisonment, for the offence under Sectionsection 366 IPC, four years rigorous imprisonment and fine of Rs.10,000/- and in default, three months additional imprisonment and for the offence under Sectionsection 376 IPC, seven years rigorous imprisonment and fine of Rs.30,000/- and in default, nine months additional imprisonment. All the sentences have been directed to run concurrently and the undergone period has been directed to be adjusted in the sentence. It has been further directed by the court below to give Rs.50,000/- as compensation to the victim.

2. The brief prosecution story is that on 07.10.2012 in the night, the daughter of informant aged about 14 years was enticed away by the accused-appellant who lived in the neighborhood of victim. While they were going, they were seen by Noor Hasan and Kasim. In the kidnapping of victim, the family members of accused appellant, Mangat, Smt. Reena, Menkumar, Smt. Shakuntala have also assisted the accused-appellant. On the written report filed by informant, a case was registered against accused-appellant for the offence under Sections 363, Section366 IPC. The case was investigated. The victim was recovered and her statement under Sectionsection 164 Cr.P.C. was recorded before the Magistrate on the basis of which, offence under Sectionsection 376 IPC was also added by the Investigating Officer. After completing the investigation, charge sheet was submitted for the offence under Sections 363, Section366 and Section376 IPC against accused-appellant.

3. The prosecution examined PW-1Tahir (informant), PW-2 victim, PW-3 Mohd. Kasim, PW-4 Dr. Renu Sharma, PW-5 SI Amar Singh, PW-6 Ravindra Singh, PW-7 Constable Indrajeet and PW-8 Dr. Surendra Singh, Radiologist to prove the incident and the documents such as written report, Ext. Ka-1, Supurdaginama, Ext. Ka-2, memo of clothes, Ext. Ka-3, statement under Sectionsection 164 Cr.P.C., Ext. Ka-4, medical report of victim, Ext. Ka-5, Pathology and X-ray report, Ext. Ka-6 and 7, site map, Ext. Ka-8, memo of arrest, Ext. Ka-9, copy of G.D. Ext. Ka-10, memo of arrest and information Ext. Ka-11, charge sheet Ext. Ka-12, statement of victim Ext. Ka-13, photostat of admission register Ext. Ka-14, FIR Ext. Ka-15, carban copy of G.D. Ext. Ka-16, arrest of accused Ext. Ka-17 and X-ray report Ext. Ka-18 and X-ray plate Ext. I.

4. The statement of accused-appellant was recorded under Sectionsection 313 Cr.P.C. who denied the incident and has stated that because of enmity with regard to election of Village Pradhan in which he had given vote to one Sukkha Khande, he has been falsely implicated in this case by the informant.

5. After hearing the prosecution and defence and appreciating the evidence on record, the learned court below convicted and sentenced the accused-appellant as above.

6. Aggrieved by the conviction and sentence, this appeal has been filed in which the impugned judgment has been challenged.

7. Heard Sri Sarvjeet Kumar, learned counsel for the appellant and learned A.G.A. for the State.

8. This criminal appeal has been filed against the judgment and order impugned in this appeal on the ground that judgment is illegal, perverse and based on surmises and conjectures. The testimony of witnesses does not support the prosecution story and the prosecution failed to prove the guilt of accused beyond shadow of any doubt. The victim was major as per medical report and she herself left her father’s house with her own free will and consent and lived with accused-appellant on so many places without raising any alarm. The case was based on circumstantial evidence and chain of circumstance was not complete, therefore, impugned judgment is liable to be set aside and the accused-appellant is entitled for acquittal.

9. PW-1 Tahir (informant) has stated that on 07.10.2012 in the night his daughter aged about 14 years was enticed away by the accused-appellant. He searched his daughter but could not get her. She was seen by Noor Hasan and Kasim being taken by accused accompanied by other accused persons who lived in neighborhood of informant. When he got this information in the next morning at 7.00 AM, he went to the police station, but the police advised him to search the daughter. After two days, he got the written report inscribed by a person and gave it to the concerned police station. After a month, his daughter was delivered to him by the police after completing the formalities. This witness has proved the written report, Ext. Ka-1, memo of delivery of daughter, Ext. Ka-2 and memo of clothes, Ext. Ka-3.

10. PW-2 victim has stated that on 07.10.2012, in the night, accused Sanjay, who is of her village, came to her house. She was sleeping with her mother. He got her and her mother to smell some thing and thereafter he picked her to railway station by cycle and thereafter took her to Haridwar by train. From Haridwar, he took her to Sidkul by auto-riksha and kept her in a room near factory. Whenever, she tried to alarm, he threatened her by dire consequences and on coming back in the evening he used to commit rape and sexually abuse her against her wishes. On leaving the room, he used to lock the door from the out side. When the accused took her to Roorki, a boy of her village saw her and informed her family member and the police. Thereafter, the police recovered her. She has further stated that at that time she was 13 years old. She was medically examined in the Women Hospital and her statement was recorded by the Magistrate under Sectionsection 164 Cr.P.C. which is Ext. Ka-4.

11. PW-3 Mohd. Kasim has stated that he knows the informant Tahir, his daughter and accused Sanjay. About a year ago when he had gone to forest to attend the call of nature, he saw the accused Sanjay going with victim catching her hand. He informed about it to the father of the victim in the morning.

12. PW-4 Dr. Renu Sharma has examined the victim on 05.11.2012 as EMO of Women Hospital and has proved the medical report Ext. Ka-5, pathology and x-ray report Ext. Ka-6 and Ext. Ka-7.

13. PW-5 SI Amar Singh stated that he got investigation of this case on 9.10.2012. He investigated the case and recorded statement of witnesses and prepared the site map on the pointing out of informant. The accused was arrested on bus stand and mobile call details were traced and father of the victim was asked to provide birth certificate and photograph of the victim. On 24.10.2012 he got photo-state copy of birth certificate from her school in which her date of birth was recorded to be 03.2.1999. On 03.11.2012 at Kailashpur bus station, accused was seen and effort was made to arrest him but any how he ran away. The victim was recovered with him on 04.11.2012 and accused Sanjay was arrested. The clothes of victim were taken in possession and after recording her statement under Sectionsection 164 Cr.P.C. she was delivered back to her father. Thereafter, along with medical report, charge sheet was filed before the court.

14. PW-6 Ravindra Singh has stated that he is Principal in Primary Pathshala, Beri Jama, Block Baliyakhedi. On 20.10.2012, father of victim had come to the school and he asked to provide birth certificate of victim and seeing the attendance and admission register of victim, he provided birth certificate to him.

15. PW-7 Constable Indrajeet is the FIR writer who has proved chick FIR and GD Report as Ext. Ka-15, Ka-16 and Ka-17.

16. PW-8 Dr. Surendra Singh is the Senior Radiologist who stated that on 5.11.2012 in S.B.D. Hospital, he conducted the x-ray of victim on the basis of which he prepared the medical report.

17. It has been argued by the learned counsel to accused-appellant that the FIR has been lodged after a delay of about one and half day and the reason for this delay has not been explained by the prosecution.

18. The delay in lodging FIR is to be understood in view of social response to such cases which is often least sympathetic and insensitive towards victim. Therefore, in rape cases, delay in lodging FIR is not of much significance. SectionIn Karnel Singh vs State of MP, AIR 1995 SC 2472, reacting to the argument of considerable delay in lodging FIR, the supreme court pointed out that Indian women are slow and hesitant in making complaints regarding such events and mere delay will not render the complaint false. The court said:

“The reluctance to go to the police is because of society’s attitude towards such women; it casts doubt and shame upon her rather than comfort and sympathy with her. Therefore, delay in lodging complaints in such cases does not necessarily indicate that her version is false.”

19. SectionIn State of Punjab vs Gurmit Singh, AIR 1996 SC 1993, the girl was picked and taken to a tub-well and was raped and thereafter was dropped on her college gate and she appeared in examination and on returning back to her home place, she disclosed the event to her mother and then the FIR was lodged. Plea of delay was rejected by the supreme court. The court observed:

“In sexual offences delay in the lodging of the FIR can be due to variety of reasons particularly the reluctance of the prosecutrix or her family members to go to the police and complain about the incident which concerns the reputation of the prosecutrix and the honour of her family. It is only after giving it a cool thought that a complaint of sexual offence is generally lodged. Even if there is some delay in lodging FIR in respect of offence of rape, if it is properly explained and the explanation is natural in the facts and circumstances of the case, such delay would not matter.”

20. SectionIn Dildar Singh vs State of Punjab, AIR 2006 SC 3084, where the victim was below 16 years in age and accused-appellant was her art teacher. She did not complain to anyone but she could not keep it secret when her pregnancy was discovered by her mother and thereafter FIR was lodged. The supreme court again laid down that delay in lodging FIR in rape cases may be for different reasons and only on that basis prosecution case cannot be discarded.

21. The supreme court in subsequent cases also adopted similar view and emphasized on not attaching much importance to delay in lodging FIR in rape cases. For instance, in SectionSohan Singh vs State of Bihar, (2010) 1 SCC 68, SectionRam Naresh vs State of Chhattisgarh, AIR 2012 SC 1357, SectionDeepak vs State of Haryana, (2015) 4 SCC 762, SectionState of HP vs Sanjay Kumar alias Sunny, (2017) 2 SCC 31 and SectionP Rajagopal vs State of Tamilnadu, (2019) 5 SCC 403, the supreme court laid down that delay in lodging FIR in rape cases is not of much significance as victim and family members have to muster courage to come out as there is always a fear of social stigma and lack of inner strength to go for legal battle in such cases.

22. Now coming to the facts of the case in hand. The incident took place in the night of 7.10.2012 and the report has been lodged on 9.10.2012 in the after noon at 2.30 PM. In the FIR and in the statement of informant PW-1 (Father of victim), it has come that in the next morning Noorhasan and Qasim (PW-3) informed him that they saw his daughter going with accused in the morning. PW-3 Qasim has also stated that he saw the victim going with accused in the morning and he communicated the same to informant. PW-1 has stated that he went to police station where he was advised to search the victim first. When after search he could not get his daughter, he lodged the report. In this case, the reason of delay finds mention in the FIR itself and there is no reason to disbelieve as the informant has proved the same. The explanation appears to be appropriate and justified as in such kind of situation, the first effort is always to search the victim and one and half day may be easily consumed in it. The delay appears to be natural in such circumstances. Moreover, if at all there is any delay, the same has been adequately and reasonably explained.

23. Another argument on which attention of the court has been drawn is with regards to the age of victim. It has been submitted that the victim was major at the time of incident and nothing happened without her consent and she was willingly staying with the accused at several places without raising any alarm. Reliance has been placed on the medical report assessing the age of victim around 17 and half and the doctor has stated in cross-examination that there may be difference of minimum one year in either side and her age may be above eighteen years.

24. In the FIR however, the age of the victim has been said to be 14 years. The photo-state of school admission register of Primary School, Berijama has been filed and proved by PW-6 Ravindra Singh (principal) as Ext. Ka-14 in which her date of birth has been written to be 3.2.1999 and she got admission in school on 13.7.2007, about 5 years before from the date of incident. PW-1 is the father of the victim has also stated her age to be about 14 years which supports the FIR version and the age mentioned in the school register. The learned trial court considered the date of birth of the victim recorded in school register to be correct and concluded her age below 16 years.

25. It has been held in SectionVishnu vs. State of Maharashtra, AIR 2006 SC 508 that medical experts opinion u/s. 45 SectionEvidence Act based on the basis of ossification test is only of an advisory character and not binding on witness. Where in a criminal trial u/s 366, 376 SectionIPC, the prosecutrix was below 16 years of age on the date of commission of the offence, her consent was treated as immaterial. The best evidence to prove the date of birth of rape victim is the evidence of the father and mother and their evidence would prevail over expert opinion. Expert opinion is only to assist tfhe court and of an advisory character only and would not be binding on the witness of fact.

26. In the matter of conviction of an accused for offences u/s. 366, 376 SectionIPC, the evidence of parents of the prosecutrix (their daughter) to the effect that she was below 16 years of age, it has been held by the Supreme Court in SectionFateh Chand vs. State of Haryana, 2009 (66) ACC 923 (SC) that the parents of the victim of rape are most natural and reliable witnesses with regard to her age.

27. SectionIn State of U.P v. Chhotey Lal, AIR 2011 SC 697 where the doctor on the basis of X-ray and physical examination of the prosecutrix of offense u/s 376 SectionIPC had opined that prosecutrix was 17 years of age, reversing the order of this Court holding her to be 19 years of age , it has been held by the Supreme Court that there is no such rule much less absolute one that two years have to be added to the age determined by doctor. In the matter of determination of age of the prosecutrix in a criminal trial u/s 376 SectionIPC, 28. it has been held in SectionAlamelu vs State, AIR 2011 SC 715 that transfer certificate duly signed by the school headmaster is admissible in evidence u/s 35 of the SectionEvidence Act. But the certificate would be of not much evidentiary value to prove the age of girl in the absence of materials on the basis of which age was recorded and unless the person who had made the entry or who gave the date of birth is examined. If the headmaster who had made the entry is not examined, the entry in Transfer Certificate cannot be relied upon to definitely fix age of the girl.

28. In this case the extract of school register first attended by the victim has been proved by the principal who came in the court along with school register. The school register entry is seemingly genuine and there appears to be no manipulation or cutting. The learned trial court rightly concluded that the victim got admission about 5 years before the date of incident and it cannot be said that the date of birth which was entered on the information of her father was incorrect as at that time the father could not have any idea that such incident will take place against victim. A reliable evidence was available on record which could not be disbelieved on the basis of medical evidence which is only an opinion. So far as the statement of the victim given to magistrate under Sectionsection 164 is concerned in which she has disclosed her age to be 17 years, the same cannot be given importance when her on oath statement has been recorded in court during trial in which she has stated her age to be 13 years. Thus in view of the above discussion, the age of the victim was below 16 years and the learned trial court rightly concluded her to be minor.

29. The supreme court in SectionState of Rajasthan vs Noore Khan, AIR 2000 SC 1812, SectionGurucharan Singh vs State of Haryana, AIR 1972 SC 2661 and SectionVirendra Singh vs State of Haryana, 2007 Cri. LJ 2459 (PH) has laid down that sexual intercourse by a man with a woman with or without her consent when she is under the age of 16 (now 18 years after Amendment) years amounts to rape in view of the definition provided under Sectionsection 375 IPC. PW-2 victim has stated before the magistrate under Sectionsection 164 and also in her statement during trial that she was raped by the accused daily during the period of one month when she stayed with the accused in Haridwar and at different places.

30. The learned counsel for the accused-appellant has argued that the victim lived with the accused at different places, traveled with him by train, auto and cycle and she did not raise alarm. She was seen by PW-3 going with accused on foot. Where she was kept in Haridwar, other were also living in other rooms of the building as there was common toilet and there was a window in the room opening from inside and she could cause alarm. The argument of the learned counsel is based on the cross-examination and the suggestion given to the victim, although, in the statement under Sectionsection 313, the accused has set up a case of denial only. However, in the arguments, the emphasis was to show that the victim was a consenting party. It has been held in SectionVishnu vs. State of Maharashtra, AIR 2006 SC 508 that where in a criminal trial u/s 366, 376 SectionIPC, the prosecutrix was below 16 years of age on the date of commission of the offence, her consent was treated as immaterial. Therefore, looking to the age of the victim, her consent is not material. Secondly, it will be travesty of justice to expect from a poor helpless girl below 16 years in age that she would go against the wishes of the accused particularly when she is kept at a distant place away from her kins and is being regularly threatened by accused.

31. Another argument is with regards to lack of corroboration by any witness or medical evidence. In this case, there is testimony of PW-3 who only saw the victim going with the accused. Victim has been examined as PW-2 and she has supported the FIR version and there is no reason to disbelieve the trustworthy and unimpeachable testimony of the victim.

32. SectionBharwada Bhoginbhai Hirjibhai vs State of Gujarat, AIR 1983 SC 753, can be characterized to be a turning point after the decision in SectionTukaram vs State of Maharashtra, AIR 1983 SC 185, to lay down the proposition that testimony of the prosecutrix can be relied upon without further corroboration if it inspires confidence and appears to be truthful and natural. The supreme court observed:

“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. ……. To do so is to justify the charge of male chauvinism in a male dominated society….. Corroboration may be considered essential to establish a sexual offence in the back drop of the social ecology of the western world. It is wholly unnecessary to import the said concept on a turnkey basis and to transplant it on the Indian soil regardless of the altogether different atmosphere, attitudes, mores, responses of the Indian society and its profile.”

33. SectionIn State vs Chandraprakash Kewalchand Jain, AIR 1990 SC 658, the supreme court remarked that a rape victim is not an accomplice and observed:

“The standard of proof to be expected by the court in such cases must take into account the fact that such crimes are generally committed on the sly and very rarely direct evidence of a person other than the prosecutrix is available. Courts must also realize that ordinarily a woman, more so a young girl, will not stake her reputation by levelling a false charge concerning her chastity.”

34. In Gurmit Singh (supra), the court reiterated:

“The testimony of the victim in such cases is vital and unless there are compelling reasons which necessitate looking for corroboration of her statement, the courts should find no difficulty to act 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. ….. Corroborative evidence is not an imperative component of judicial credence in every case of rape. 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. It must not be overlooked that a woman or girl subjected to sexual assault is not an accomplice to the crime but is a victim of another person’s lust and it is improper and undesirable to test her evidence with a certain amount of suspicion, treating her as if she were an accomplice. Inferences have to be drawn from a given set of facts and circumstances with realistic diversity and not dead uniformity lest that type of rigidity in the shape of rule of law is introduced through a new form of testimonial tyranny making justice a casualty.”

35. SectionIn Bodhisattwa Gautam vs Subhra Chakraborty, AIR 1996 SC 922, highlighted the sociological and philosophical aspect of the problem and linked it with violation of right to life and dignity guaranteed by SectionArticle 21 of the Constitution and made following observation:

“Women also have the right to life and liberty, they also have the right to be respected and treated as equal citizens. Their honour and dignity cannot be touched or violated. They also have the right to lead an honourable and peaceful life. ….. Rape is thus not only a crime against the person of a woman (victim), it is a crime against the entire society. It destroys the entire psychology of a woman and pushes her into deep emotional crisis. It is only by her sheer will-power that she rehabilitates herself in the society which, on coming to know of the rape, looks down upon her in derision and contempt. Rape is, therefore, the most hated crime. 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 SectionArticle 21.”

36. The jurisprudence infused by the supreme court shows the constitutional concern for women for equal status and protection and this trend continued in the subsequent judgments also. Thus, referring Bodhisattwa Gautam (supra), the supreme court, in SectionState vs Ramdev Singh, AIR 2004 SC 1290, remarked as follows:

“Sexual violence apart from being a dehumanizing act is unlawful intrusion on the right of privacy and chastity of a female. It is 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 or a minor it leaves behind a traumatic experience, a rapist not only causes physical injuries but more indelibly leaves a scar on the most cherished possession of a woman i.e. dignity, honour, reputation and not the least her chastity. ….. The courts are, therefore, expected to deal with cases of sexual crime against woman with utmost sensitivity. Such case need to be dealt with sternly and severally. A socially sensitized judge is a better statutory armour in cases of crime against women than long clauses of penal provisions, containing complex exceptions and provisos.”

37. SectionIn Iqbal vs State of Kerala, 2008 Cri LJ 436 (SC), it was laid down that where the victim is below 16 years in age, sexual intercourse with or without consent amounts to rape. In State of U.P. Vs. Choteylal, AIR 2011 SC 697, the supreme court, while pointing out that the courts should be always alive about the impact of sexual assault over victim, made following observation:

“The important thing that the court has to bear in mind is that what is lost by a rape victim is face. The victim looses value as a person. Ours is a conservative society and, therefore, a woman and more so a young unmarried woman will not put her reputation in peril by alleging falsely about forcible sexual assault. In examining the evidence of the prosecutrix the courts must be alive to the condition prevalent in the Indian society and must not be swayed by beliefs in other countries. The courts must be sensitive and responsive to the plight of the female victim of sexual assault. Society’s belief and value system need to be kept uppermost in mind as rape is the worst form of women’s oppression. A forcible sexual assault brings in humiliation, feeling of disgust, tremendous embarrassment, sense of shame, trauma and lifelong emotional scar to a victim and it is, therefore, most unlikely of a woman, and more so by a young woman, roping in somebody falsely in the crime of rape. The stigma that attaches to the victim of rape in Indian society ordinarily rules out the leveling of false accusations. An Indian woman traditionally will not concoct an untruthful story and bring charges of rape for the purpose of blackmail, hatred, spite or revenge. This Court has repeatedly laid down the guidelines as to how the evidence of the prosecutrix in the crime of rape should be evaluated by the court.”

38. SectionIn Deepak Gulati vs State of Haryana, AIR 2013 SC 2071, in a case of consent based on misconception of fact, the supreme court laid down as follows:

“By no means can a rape victim be called an accomplice. Rape leaves a permanent scars on the life of the victim, and, therefore, a rape victim is placed on a higher pedestal than an injured witness. Rape is a crime against the entire society and violates the human rights of the victim. Being the most hated crime, rape tantamount to a serious blow to the supreme honour of a woman and offends both, her esteem and dignity. It causes psychological and physical harm to the victim, leaving upon her indelible marks.”

39. Similar view has been expressed in SectionMd. Iqbal vs State of Jharkhand, AIR 2013 SC 3077 and it was remarked:

“Rape cannot be treated only as a sexual crime but it should be viewed as a crime involving aggression which leads to the domination of the prosecutrix. In case of rape besides the psychological trauma, there is also social stigma to the victim. Majority of rape are not sudden occurrences but are generally well planned. Social stigma has a devastating effect on rape victim. It is violation of her right of privacy. Such victims need physical, mental, psychological and social rehabilitation. Physically she must feel safe in the society, mentally she needs help to restore her lost self esteem, psychologically she needs help to overcome her depression and socially, she needs to be accepted back in the social fold.”

40. In SCWLA vs Union of India, 2016 Cri LJ 1096 (SC), laying down need for redefining age of child in relation to offence of rape, the supreme court remarked as follows:

“SectionIPC provides for the offence of rape. There can be no doubt that a girl child is a minor but may be a time has come where a distinction can be drawn between the girl children and minor, may be by fixing the the upper limit at 10 for the girl children. There is need to take step for stopping the kind of child abuse and hence, possibly, there is a need for defining the term “child” in the context of rape and thereafter provide for more severe punishment in respect of the culprits who are involved in this type of crime.”

41. SectionIn State of HP vs Sanjay Kumar, 2017 Cri LJ 1443 (SC), the supreme court emphasised for need of survival centric approach and said:

“….whenever such charge of rape is made, where the victim is a child, it has to be treated as a gospel truth and accused person has to be convicted. …… after taking all due precautions which are necessary, when it is found that the prosecution version is worth believing, the case is to be dealt with all sensitivity that is needed in such cases. In such a situation, one has to take stock of the realities of life as well.”

42. From the above discussion it is clear that the testimony of prosecutrix stands at higher footing to that of an injured witness. It is not legally required to insist for corroboration if the evidence of the prosecutrix inspires confidence and appears to be credible. A woman or girl who is victim of rape is not an accomplice and her sole testimony without any further corroboration is enough for conviction of the accused if inspires confidence and appears to be natural and truthful. Corroboration in the form of eye-witness account of an independent witness may often be forthcoming in physical assault cases but such evidence cannot be expected in sexual assault cases having regard to the very nature of the offence. If the evidence of the victim does not suffer from any basic infirmity, there is no need to insist on further corroboration in terms of medical evidence.

43. SectionIn Rasool vs State, 1976 Cri. LJ 363 (All), it has been held that the consent of minor is immaterial for the offence u/s 363 SectionIPC and it is only the consent of the lawful guardian that takes away the case from the purview of Sectionsection 363 IPC. From the statement of the victim and PW-3 and suggestions given to her in the cross-examination, it is very much established that the accused took the victim with him from the lawful guardianship of the informant. The fact is established that the accused-appellant took the victim who was under the age of 16 years out of lawful guardianship of the informant and this he did in order to compel her to marry with him and for illicit intercourse, as such the offence under Sectionsections 363 and Section366 IPC is established. Sexual relation with her by accused is proved by the victim against her wishes and forcibly, looking to the age of the victim which was below 16 years, it is also established that he committed rape with victim.

44. The law of rape as defined in Sectionsection 375 IPC makes it clear that where victim is below 16 years in age, (Now after the amendment in SectionIPC below 18 years in age) sexual intercourse, with or without her consent, amounts to rape. The victim was living under the guardianship of the informant at the time of incident and she was taken or enticed away by accused out of the keeping of the lawful guardian without his consent and it is sufficient for constituting the offence u/s 363 SectionIPC. The victim was so kidnapped in order to seduce or force her to illicit intercourse or to force her to marry with the accused and this is sufficient to make an offence u/s 366 SectionIPC.

45. Therefore, in view of above discussions, I find that the learned trial court very rightly found the accused-appellant guilty of the offence under Sectionsections 363, Section366, Section376 IPC. I do not find any perversity and illegality in the finding of the learned trial court and conviction is liable to be upheld.

46. From the perusal of the Sectionsection 376 IPC, it is clear that prior to the Amendment of 2013 the minimum sentence which was prescribed for the offence of rape was 7 years and the learned trial court has awarded 7 years rigorous imprisonment and fine of Rs. 30000/- to the accused. Accused has been sentenced for 3 years imprisonment and fine of Rs. 10000/- for the offence under Sectionsection 363 IPC and 4 years imprisonment for the offence under Sectionsection 366 IPC and fine of Rs. 10000/- which is reasonable and not excessive. Moreover, all the sentences have been directed to run concurrently.

47. The learned counsel to the accused-appellant has submitted that the learned trial court has awarded default sentence in lieu of fine which is 15 months in total and the accused-appellant is a laborer and financially not so equipped to deposit the fine unless reduced substantially. As held above the substantive sentence and fine awarded is reasonable and is not required to be modified. Considering the submission and taking in view that the accused-appellant is in jail continuously since 1.5.2015 and earlier also he remained in jail for about 7 months, the default sentence in lieu of fine may be reduced.

48. Accordingly, the conviction along with substantive sentence and fine is upheld. The default sentence in lieu of fine for the offence u/s 376 is reduced from 9 months to 6 months, for the offence u/s 366 from 3 months to 1 months and for the offence u/s 363 from 3 months to 1 months. With this modification, the appeal is finally disposed of.

49. Office is directed to transmit the lower court record along with copy of this judgment to the learned court below for information and necessary compliance.

Order dated – 02.08.2019

RCT/-

(Justice Pradeep Kumar Srivastava)

 

 

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