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Yogendra @ Teetu vs State Of U.P. on 27 September, 2019

HIGH COURT OF JUDICATURE AT ALLAHABAD

A.F.R.

Reserved on : 11.9.2019

Delivered on : 27.9.2019

Court No. – 79

Case :- JAIL APPEAL No. – 4228 of 2013

Appellant :- Yogendra @ Teetu

Respondent :- State Of U.P.

Counsel for Appellant :- From Jail,Anand Kumar Mishra,Jitendra Kumar,Maqsood Ahmd.Beg A.C.,Rajiv Kumar Mishra,Yogendra Kumar Sonkar

Counsel for Respondent :- A.G.A.

Hon’ble Ram Krishna Gautam,J.

1. This appeal under Section 374(2) read with Section 383 of Code of Criminal Procedure (hereinafter referred to as ‘SectionCr.P.C.’) has been filed against the judgment of conviction and sentence made therein by Court of Additional Sessions judge, Ex-cadre, Court No. 1, Ghaziabad, in Sessions Trial No. 1338 of 2012, arising out of Case Crime No. 148 of 2012, under Sections 363, 366 and 376 of I.P.C., Police Station Murad Nagar, District Ghaziabad, wherein convict-appellant Yogendra @ Tittu has been convicted for offence punishable under Section 363, 366 and 376 I.P.C. and thereby he has been sentenced with three years rigorous imprisonment and fine of Rs. 3,000/- and in default of making payment of fine, rigorous imprisonment of six months under Section 363 of I.P.C., five years rigorous imprisonment with fine of Rs. 5,000/-, and in default one years additional rigorous imprisonment for offence punishable under Section 366 of I.P.C., ten years rigorous imprisonment and fine of Rs. 10,000/-, and in default two years additional rigorous imprisonment under Section 376 I.P.C., with a direction for concurrent running of sentences and adjustment of previous imprisonment, if any, in this very case crime number as per Section 428 of Cr.P.C.

2. Memo of appeal contends that trial Court failed to appreciate facts and law placed upon record. There was no proof of rape with victim nor it was medically corroborated. First Information Report was delayed and no reason for this delay, was given. Prosecutrix was major, thereby, capable to understand her wellness. It was a consensual fleeing. She was pregnant for four months. Offence of rape was not proved. Rather, prosecutrix, upon her own volition, had gone to convict-appellant while being in company of her own friend. Convict-appellant had no fault nor it was rape by him. The sentence was not commensurate to offence. It was highly excessive, hence, this appeal for setting aside impugned judgment of conviction, sentence made therein, for awarding acquittal of charges, leveled against convict-appellant.

3. From the very perusal of record of lower Court, it is apparent that First Information Report Ex.Ka-8, was got lodged at Police Station Murad Nagar, Ghaziabad, on 3.3.2012 at 11:30 A.M. for an occurrence of 17.12.2011 at 9:00 A.M. upon the report of Roop Singh son of Genda Lal against Teetu, resident of Village Rajapur, Police Station Kavi Nagar, District Ghaziabad, for offence punishable under Section 363 and Section366 I.P.C., with this contention that Roop Singh’s daughter, prosecutrix, having date of birth 7.5.1995, student of Class XI, at Sir Chhotu Ram Girls High School, Duhai, went for her school at 9:00 A.M. On 17.12.2011. But she did not turn up. When enquired from school, it came to notice that she had not gone to school on that day. Rather Teetu and Mukesh had taken her in a white van from Murad Nagar Bus Stand, which was witnessed by Ashok son of Sri Ram. Son of ‘Bua’ of ‘Teetu’ was also in company of them. Teetu was residing as tenant in the house of Udesh Pal and was involved in the work as T.V. Mechanic at a shop situated beside school at Murad Nagar. Prosecutrix may be murdered by them. This information was sent to S.S.P., Ghaziabad, but of no avail. Hence, an application under Section 156(3) of Cr.P.C. was filed before the Court of VIth Additional Chief Judicial Magistrate, Ghaziabad, with a prayer for direction to Station Office of Police Station, Murad Nagar, for registering a case of kidnapping of a minor girl against Teetu and Mukesh. This application was allowed by Magistrate and this report was got lodged. Investigation resulted recording of statement of prosecturix under Section 164 of Cr.P.C. Ex.Ka-11, her medical examination and report being Ex. Ka-5, pathological report being Ex. Ka-6, spot map Ex. Ka-9 and final submission of charge-sheet Ex. Ka-10, against accused Yogendra @ Teetu for offence punishable under Section 363, Section366 and Section376 of I.P.C. Ex. Ka-11 was Certificate-cum-Mark-sheet of High School Examination- 2011, wherein, date of birth of prosecutrix was written to be 7.5.1995. As offence, punishable under Sections 363, Section366 and Section376 I.P.C. was exclusively triable by Court of Session, hence, learned Magistrate, vide order dated 18.8.2012, committed file to Court of Session. Session Judge made over case to Court No. 14 of Additional Session Judge, Ghaziabad wherein learned counsel for the State and for defence, were heard and vide order dated 25.9.2012, charges for offence punishable under Section 363, Section366 and Section376 I.P.C. were framed against convict-appellant Yogendra @ Teetu. The same is being written in its English translation by Court itself, the vernacular part is not being reproduced.

I, Gajendra Kumar, Additional District and Session Judge, Court No. 14, do hereby, charge you, Yogendra:

“(1) That on 17.12.2011 while informant’s daughter prosecutrix, who was student of Class XIth at Chhoturam Girls College, Duhai, under Police Station Murad Nagar, Ghaziabad, was on her way to school made enticing her thereby took out of the guardianship of her legal guardian. Thereby you committed offence of kidnapping punishable under Section 363 of I.P.C. within the cognizance of above Court.

(2) That on above date, time and place, you did kidnapping of minor Km. Lalita; daughter of informant Kamal Singh, from his legal guardianship with intent that she will be compelled to marry or likely to marry or likely that she will be forced or seduced to illicit intercourse, thereby committed offence punishable under Section 366 of I.P.C. within the cognizance of above Court.

(3) That on above date, time and place, you enticed and thereby kidnapped minor prosecutrix daughter of informant and took her somewhere else where you committed rape against her wishes. Thereby, committed offence punishable under Section 376 of I.P.C. within the cognizance of this Court.”

——Sd——-

4. Charges were read over to accused, who pleaded not guilty and claimed for trial. Prosecution examined PW-1 prosecutrix daughter of Roop Singh, PW-2 Roop Singh son of Genda Lal-informant, PW-3 Dr. Surbhi Sinha Senior consultant, PW-4 Constable-2282 Mukesh Dabas, PW-5 Sub-Inspector Vijay Kumar Verma.

5. With a view to obtain explanation, if any, and version of accused person, his statement was got recorded under Section 313 of Cr.P.C. wherein accused Yogendra @ Teetu answered in a general way in answer of every question till question No. 17 that it is incorrect and in answer to question No. 18, this was said to be a false implication and in answer to question No. 19, he replied that father of prosecutrix was under debt of Rs. 10,000/-, taken from accused and when it was called back, this false case was got registered. He is innocent. He has been falsely implicated.

6. No evidence in defence was there.

7. After hearing learned Additional District Government Counsel and learned counsel for the defence, the impugned judgment of conviction and sentence made therein, written as above, was passed.

8. Heard Sri Rajiv Kumar Mishra, learned counsel for the appellant and Sri Ravi Prakash, learned AGA for the State. Perused the record.

9. Learned counsel for the appellant argued that charge was made for offence of kidnapping of minor girl of informant with name of prosecutrix, who had been examined as PW-1 whereas charge No. 2 has been leveled for offence punishable under Section 366 of I.P.C. with offence of abduction of Kumri Lalita, daughter of Kamal Singh, with a view to marry and have sexual intercourse with her. Again, charge No. 3 has been leveled for offence of rape with prosecutrix, minor daughter of informant of this case. But nowhere name of Kumari Lalita or informant Kamal Singh is there on record. This application under Section 156(3) Cr.P.C. was filed by Roop Singh, son of Genda Lal, R/o Care of Udesh Pal, Mohalla Purani Mandi, Police Station Murad Nagar, District Ghaziabad and no person as informant Kamal Singh is there nor any prosecutrix or victim Kumari Lalita is there. Hence, this charge itself was defective and convict-appellant has been convicted for offence punishable under Section 366 I.P.C. for which there was no evidence at all, even then, he has been sentenced for it. Prosecutrix, for whom offence under Section 363 of I.P.C. was leveled, was a major and for offence punishable under Section 363 of I.P.C., whoever kidnaps any person from India or from lawful guardianship, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine, that is the offence of kidnapping from lawful guardianship, penalized by this section, is the offence, which is defined by Section 361 I.P.C. which provides: “whoever takes or entices any minor under sixteen years of age if a male, or under eighteen years of age if a female, or any person of unsound mind, out of the keeping of the lawful guardian of such minor or person of unsound mind, without the consent of such guardian, is said to kidnap such minor or person from lawful guardianship. The person against whom the offence is committed must be under the age of 16, if male, and under the age of 18, if female.” The quintessence of offence under Section 363 of I.P.C. is criminal intention. In the present case, prosecutrix was major, hence, this offence was not made. The offence punishable under Section 376 I.P.c. was also not made out because prosecutrix being major went to accused upon her own volition. She lived with him and was pregnant with four months. It was a consensual relationship. Even then Court has punished with such a deterrent punishment. There was no proof beyond doubt. PW-2 was not eye-witness account and the witness, who was said to have seen prosecutrix in company of accused, has not been examined. Hence, there remained single testimony of prosecutrix that too, with major contradiction. Convict-appellant is in jail since 17.5.2012. He suffered more than 7 years as against maximum ten years sentence awarded to him. Hence, he be punished with sentence undergone.

10. Learned AGA has vehemently opposed the argument by saying that as per High School Certificate-cum-Mark-sheet Ex. Ka-11, prosecutrix was minor on the date of incident. She has said about offence committed by appellant. There was no exaggeration, embellishment or contradiction, in her testimony. This was corroborated by medical testimony. Formal witnesses have supported prosecution case. Hence, trial Court has rightly convicted and sentenced under impugned judgment. Appeal be rejected.

11. Section 363 I.P.C. provides:- “whoever kidnaps any person from India or from lawful guardianship, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.” Kidnapping from lawful guardianship has been defined under Section 361 I.P.C. that “whoever takes or entices any minor under sixteen years of age, if a male, or under eighteen years of age if a female, or any person of unsound mind, out of the keeping of the lawful guardian of such minor or person of unsound mind, without the consent of such guardian, is said to kidnap such minor or person from lawful guardianship, i.e. for punishment of offence under Section 363 I.P.C.” Section 361 I.P.C. and its ingredients are to be proved, which requires taking or enticing of a minor under 16 if male and under 18 if female, from lawful guardianship or a person of unsound mind of any age, without consent of that guardian. Apex Court in SectionThakorlal D. Vadgama vs The State Of Gujarat AIR 1973 SC 2313, has propounded the words “whoever takes or entices any minor” under Section 361 I.P.C. and observed as to what actually means. According to the Supreme Court, the word “takes”, does not necessarily connote taking by force and does not confined to use of force, actual or constructive. These words merely mean “to cause to woke”, “to support” or “to get into possession”. The gravamen of this offence under Section 361 I.P.C. lies in the taking or enticing of a minor, specified in this section out of the keeping of the lawful guardianship without the consent of such guardian.

12. On a plain reading of this Section, the consent of the minor, who is taken or enticed, is wholly immaterial, it is only the guardian’s consent which takes the case within its purview. Nor is it necessary that the taking or enticing must be shown to have been by means of force or fraud. Persuasion by the accused person, which creates willingness on the part of minor to be taken out of the keeping of the lawful guardianship would be sufficient to attract this Section 361 I.P.C., as has been held by Apex Court in State of Haryana Vs. Raja Ram AIR 1973 SC 819. Prosecutrix, in her statement, recorded under Section 164 Cr.P.C. Ex. Ka-1, has said that while she was on her way to her school, where she was student of Class XI, on 17.12.2011, Teetu and Mukesh both persuaded her that they will get her employed in a job and upon their enticing, she was taken by them in an unknown village, where she was being beaten and threatened. Teetu committed rape on each day against her wishes, thereby, she became pregnant. She, in her testimony, as PW-1 has said that Teetu @ Yogendra was residing in the same mohalla of prosecutrix, in house of Udesh Pal and on 17.12.2011 while she was on her way to her school Sir Chhoturam Girls College, Duhai, he came to her and took her under his persuasion of getting job for her. She, under his persuasion, went with him in a white colour car. She was taken in a village of Ghaziabad and thenafter was threatened. She was being beaten and subjected to repeated rape by him, resulting her pregnancy. She was with date of birth 7.5.1995. There was one other who was driving that car and while she was being taken to Delhi by train on 17.5.2011, she was apprehended at Railway Station, Murad Nagar by police. Her statement Ex. Ka-1, was recorded before Magistrate and she was medically examined by Medical Officer. In cross-examination, she has said about her school but no question about her date of birth has been asked. Hence, this date of birth recorded in High School as of 7.5.1995 is unrebutted fact.

13. This Court in a Division Bench Judgment in Kunwar Singh Vs. State of U.P. 1993 (3) AWC 1305 has propounded the effect of non cross-examination of witness on a fact appearing in Examination-in-Chief under Section 137 of Evidence Act and held that if some fact has been averred in Examination-in-Chief of testimony of a witness and same is not being cross examined in examination-in-cross, truthfulness of that uncontroverted part of a fact shall be accepted. In the present case, it was specifically said by this witness, in her Examination-in-Chief that she was minor, having date of birth 7.5.1995 and this fact was not cross-examined by learned counsel for the defence. Hence, this portion of fact is full truth and is to be accepted. Moreso, this is with corroboration of Certificate-cum-Mark-sheet of High School Ex. Ka-11, filed and proved on record, having date of birth of prosecutrix recorded as 7.5.1995 and this occurrence was of 17.12.2011 i.e. prosecutrix was below 18 years on above date and as per her testimony, she was enticed and taken by convict-appellant by way of persuasion for getting her engaged in a job. This was with no consent of lawful guardian, informant i.e. Roop Singh. Hence, ingredients of offence under Section 361 I.P.C. punishable under Section 363 of I.P.C. was fully proved by testimony of prosecutrix PW-1. This has further been corroborated by testimony of PW-2 Roop Singh-informant that her daughter was at her school but she did not turn up and ultimately she was apprehended by police and her date of birth was 7.5.1995, who was minor. Convict-appellant took her out of his legal guardianship without his consent and he got this case registered by presenting an application Ex. Ka-4 supported with affidavit Ex. Ka-2, 3, before the Court of Additional Chief Judicial Magistrate, Ghaziabad, under Section 156(3) Cr.P.C., which was allowed and then after this case crime number was got registered at above police station, Murad Nagar for offence of kidnapping and rape against accused persons. This witness has formally proved Ex.Ka-2, Ex. Ka-3 and Ex. Ka-4. In cross-examination, question about the siblings of this witness and difference of age amongst them have been asked but no cross-examination about date of birth of prosecutrix, said by this witness in his Examination-in-Chief, has been made by learned counsel for the defence. Thereby, this fact is unrebutted in cross-examination and a suggestive question has been put to this witness that there had been a love affair amongst prosecutrix and accused, as a result of which, she had gone with accused and this question has been answered in negative. Meaning thereby, by this suggestive question itself, learned counsel for the defence has said that prosecutrix was taken by convict-appellant because of love affairs between them. This taking from lawful possession has been proved by this witness. Though this witness is not eye-witness account of taking, but prosecutrix, while being in company of this convict-appellant, was recovered and she had proved this taking. Hence, by factual evidence of these two witnesses, offence punishable under Section 363 I.P.C. was fully proved.

14. In medical age determination, Chief Medical Officer, Ghaziabad has held on 19.5.2012, the age of prosecutrix about 18 years. But this report was not proved before Court and as per law of Apex Court in State of Karnataka Vs. Batra Sudhakar @ Suttham and others (2008) 11 SCC 8, as has been quoted in the judgment of trial Court that two years on upper side for determining age of minor was not held to be proper, rather as per law of Apex Court in Shahnawaz Vs. State of U.P. 2011 (2) DNR 626, the age determination on the basis of High School Certificate was held to be proper, provided the same was duly proved and admissible. In the present case, the condition of proof was fulfilled by prosecution. Beside it, the testimony, of prosecutrix PW-1 as well as PW-2 informant is of this fact that date of birth of prosecutrix was 7.5.1995 and no cross-examination on this point is there. Hence, it was unrebutted testimony to be accepted as such, hence, argument of learned counsel for the appellant regarding offence punishable under Section 363 I.P.C. is not sustainable.

15. Offence punishable under Section 366 I.P.C. requires three principal ingredients (I) kidnapping or abduction to any women (II) such kidnapping or abduction must be (i) with intent that she may be compelled or knowing it to be likely that she will be compelled to marry any person against her will; or (ii) in order that she may be forced or seduced to illicit intercourse or knowing it to be likely that she will be forced or seduced to illegal intercourse, or (iii) by means of criminal intimidation or otherwise by enticing any women to any place with intent that she may be or knowing that she will be forced or seduced to illicit intercourse. It is immaterial whether the women kidnapped is married women or not. To bring him an offence punishable under Section 366 I.P.C., the prosecution is to prove (a) that the accused kidnapped has understood Section 360 or 361 SectionI.P.C. or abducted the victim has understood Section 362 I.P.C.; (b) that the victim of the aforesaid kidnapping or abduction was a female; (c) that the accused during the kidnapping or abduction had intention or knew it likely that (1) such women might or would be forced to marry a person against her will, or (2) that she might or would be forced or seduced to illicit intercourse, or (3) by means of criminal intimidation or otherwise by enticing a women to go from any place with intent that she may be or knowing that she will be forced or seduced to illicit intercourse. As in the present case, prosecutrix was said to be minor, hence, regarding minor for such offence punishable under Section 366A I.P.C. As per the Apex Court in Ramesh Vs. State of Maharashtra AIR 1962 SC 1908, three principal ingredients are to be proved by prosecution for charge under Section 366A I.P.C. (a) that a minor girl below the age of 18 years is induced by the accused, (b) that she is induced to go from any place or to do any act, and (c) that she is so induced with intent that she may be or knowing that it is likely that she will be forced or seduced to illicit intercourse with another person. In the present case, charge was framed for enticing and seducing minor Kumari Lalita daughter of informant Kamal Singh. Whereas neither prosecutrix is Kumari Lalita nor the informant of this case is Kamal Singh. Where from these two names came in the charge, framed? And how it is proved? is not there on record. Case crime number was lodged with regard to kidnapping of prosecutrix, a minor girl of informant Roop Singh-PW-2 and offfence of rape was committed by accused Yogendra @ Teetu with prosecutrix minor daughter of informant Roop Singh. But the charge of offence punishable under Section 366 of I.P.C. was leveled for kidnapping of minor girl Lalita daughter of Kamal Singh informant of the case, for which there is no evidence on record. Hence, finding of trial Court was apparently erroneous and regarding conviction and sentence for offence punishable under Section 366 I.P.C. for which this appeal in part is to be allowed.

16. Regarding charge No. 3 i.e. offence of rape, punishable under Section 376 I.P.C., Section 375 of I.P.C. provides “A man is said to commit “rape” who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following de­scriptions:–

(Firstly) — Against her will.

(Secondly) –Without her consent.

(Thirdly) — With her consent, when her consent has been obtained by putting her or any person in whom she is interested in fear of death or of hurt.

(Fourthly) –With her consent, when the man knows that he is not her husband, and that her consent is given because she believes that he is another man to whom she is or believes herself to be law­fully married.

(Fifthly)– With her consent, when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupe­fying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent.

(Sixthly) — With or without her consent, when she is under sixteen years of age. Explanation.–Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape.

(Exception) –Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape.

17. Section 376 I.P.C. provides for punishment of rape that – (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: Provided 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.”

18. In the present case, prosecutrix as PW-1, in her testimony in Examination-in-Chief has, specifically said that she was subjected to repeated rape by accused against her wishes by use of force and threat resulting her conception of two months. She was prohibited to communicate with any other and regarding this statement, given in fact, there is no contradiction or exaggeration in Examination-in-Cross. Rather, a suggestive question has been given to PW-2 and has been argued by learned counsel for the appellant that prosecutrix was under love affair with convict-appellant and it was a consensual living and she used to have visit to convict-appellant. This defence shows that having physical relation is not being disputed rather the same is being said to be under consensual affairs. Whereas prosecutrix, by her unimpeachable testimony, has proved about forceful rape with her and this was having medical corroboration of testimony of PW-3 Dr. Surbhi Sinha, who had medically examined prosecutrix and has held her height 141 cm, her weight 41 kg. and teeth 14/14 with fetus of 16 to 18 months. Though, she was having no injury over her private part but she was subjected to physical relationship. Ex. Ka-5 and Ka-6, has been formally proved by this witness.

19. PW-4 Constable Mukesh Dabas is the formal witness, who has proved registration of this case crime number and this G.D. Entry and chick F.I.R. as Ex. Ka-7 and Ka-8, for which there is no contradiction or embellishment.

20. PW-5, is the Investigating Officer, Vijay Kumar Verma, who has proved his formal investigation of this case crime number and preparation of site map upon the pointing of witness, proved and exhibited as Ex. Ka-9, on record. Date of birth of prosecutrix to be of 7.5.1995 and she being recovered while being in possession of convict-appellant and thereby on the basis of statement recorded under Section 164 Cr.P.C. offence of rape punishable under Section 376 I.P.C. was added by G.D. Entry No. 46 on 19.5.2012. Thenafter, prosecutrix was given in possession of her mother, in accordance with order of Magistrate and investigation resulted submission of charge-sheet Ex. Ka-10, under handwriting and signature of this witness. In cross-examination dispute regarding date of birth, has not been put except that original certificate of High School was not taken on record. Convict-appellant was apprehended from Railway Station Murad Nagar on 17.5.2012 on 17:00 P.M. while he was with possession of prosecutrix. There is no embellishment, contradiction or exaggeration in testimony of this witness. He has formally proved the case of prosecution.

21. Apex Court in SectionNarbada Prasad vs Chhagan Lal And Ors AIR 1969 SC 393, has held that in an appeal the burden is on the appellant to prove how the judgment under appeal is wrong? He must show where the assessment has gone wrong? In criminal trial Apex Court in SectionKali Ram vs State Of Himachal Pradesh AIR 1973 SC 2773, has propounded that the onus is upon the prosecution to prove the different ingredients of the offence and unless it discharges that onus, the prosecution cannot succeed. SectionIn Partap vs The State of U.P. AIR 1976 SC 966, Apex Court has held that prosecution has to prove case beyond all reasonable doubt whereas accused is to prove only establishing preponderance of probabilities. Though Apex Court in SectionShankarlal Gyarasilal Dixit vs State Of Maharashtra AIR 1981 SC 765 has propounded that feasibility of defence does not shape prosecution case and suspicion how so strong cannot take place of proof.

22. In present case, prosecution has proved its case. The argument of learned counsel for the appellant that it was single testimony of prosecutrix on the basis of which this judgment of conviction has been passed, is not of any weight because repeatedly this Court as well as Apex Court has propounded that even a singly testimony, which is unimpeachable, proves case beyond doubt, case of prosecution is not to be thrown out. Apex Court Veer Singh and another Vs. State of U.P., 2014 (84) ACC 681 at para 17 has propounded – “Legal system has laid emphasis on value, weight and quality of evidence rather than on quantity, multiplicity or plurality of witnesses. It is not the number of witnesses, but, quality of their evidence which is important, as there is no requirement under the law of evidence, that any particular number of witness is to be examined to prove/disapprove a fact. Evidence must be weighed and not counted. It is quality and not quantity which determines the adequacy of evidence, as has been provided, under Section 134 of Evidence Act. As a general rule, Court can and may act on the testimony of a single witness provided he is wholly reliable”. In this case, itself Court has propounded “testimony of a witness cogent, credible and trustworthy, having ring of truth, deserve its acceptance.” In the present case, testimony of prosecutrix corroborated with unimpeachable testimony of PW-2 informant is cogent, credible and trustworthy, having ring of acceptance. Accordingly, judgment of conviction is fully based on evidence placed on record. There was no illegality or irregularity in passing of judgment of conviction regarding charge leveled for offence punishable under Sections 363 and Section376 of I.P.C. Regarding Section 366 SectionI.P.C., charge was not proved.

23. Learned counsel for convict-appellant vehemently argued about sentence, being highly excessive and not in commensurate with degree of offence. Regarding, Section 363 I.P.C., the punishment provided is up to seven years whereas trial Court has awarded sentence of three years, which is well commensurate to offence. It is neither excessive nor unwarranted.

24. Regarding Section 376 I.P.C., the minimum sentence provided for offence of rape is seven years and in case of punishment, less than seven years, Court is required to write reasons being adequate and special reasons to be mentioned in the judgment for imposing a sentence of imprisonment for a term less than seven years.

25. Apex Court in SectionGopal Singh vs State Of Uttarakhand (2013) 3 SCC (Cri) 608 has propounded:-

“Just punishment is the collective cry of the society. While the collective cry has to be kept uppermost in the mind, simultaneously the principle of proportionality between the crime and punishment cannot be totally brushed aside. The principle of just punishment is the bedrock of sentencing in respect of a criminal offence. A punishment should not be disproportionately excessive. The concept of proportionality allows a significant discretion to the Judge but the same has to be guided by certain principles. In certain cases, the nature of culpability, the antecedents of the accused, the factum of age, the potentiality of the convict to become a criminal in future, capability of his reformation and to lead an acceptable life in the prevalent milieu, the effect – propensity to become a social threat or nuisance, and sometimes lapse of time in the commission of the crime and his conduct in the interregnum bearing in mind the nature of the offence, etc. etc.”

26. Though in a case of rape, when an adult commits rape on a girl of tender age, deterrent punishment is called for, taking a lenient view is out of question. Once a person is convicted for offence of rape, he should be treated with heavy hands and undeserved indulgence or liberal attitude in not awarding adequate sentence is improper. As per law laid down by Apex Court in SectionState of U.P. vs. Babu Lal, AIR 2008 SC 582, the adequate and proper sentencing is to be made. In the present case, convict-appellant has been sentenced with ten years rigorous imprisonment whereas award of eight years and fine of Rs. 10,000/-, and in default two years rigorous imprisonment will proved to be adequate sentence under Section 376 of I.P.C.

27. Accordingly, this appeal is to be partly allowed regarding conviction for setting aside conviction and sentence for offence punishable under Section 366 I.P.C., hence, the conviction and sentence awarded by trial Court is being amended as follows:-

Order

(1) Convict-appellant Yogendra @ Teetu is being convicted for offence punishable under Section 363 and 376 I.P.C. He is being sentenced with three years rigorous imprisonment and fine of Rs. 3,000/-, and in default six months additional rigorous imprisonment for offence punishable under Section 363 I.P.C. He is further being sentenced with rigorous imprisonment of eight years and fine of Rs. 10,000/-, and in default two years rigorous imprisonment for offence punishable under Section 376 I.P.C.

(2) Both of above sentences shall run concurrently and convict-appellant will be benefited with adjustment of previous imprisonment in this case crime number under Section 428 of I.P.C. He is being acquitted of the charge leveled for offence punishable under Section 366 of I.P.C.

(3) Copy of the judgment along with lower Court record be transmitted to trial Court for amendment of warrant of conviction and sentence as per above conviction and sentence and for follow up action.

Order Date :- 27.9.2019

Kamarjahan

 

 

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