Allahabad High Court
Salik Ram vs State Of U.P on 24 February, 2018
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Court No. - 4 A.F.R. Case :- CRIMINAL APPEAL No. - 1707 of 2012 Appellant :- Salik Ram Respondent :- State Of U.P Counsel for Appellant :- Jail Appeal (In Person),R.N.S. Chauhan (Amicus Curiae) Hon'ble Attau Rahman Masoodi,J.
Hon'ble Virendra Kumar-II,J.
(Delivered by Hon'ble Virendra Kumar-II, J.)
1. Heard Shri R. N. S. Chuhan, learned Amicus Curiae for the sole appellant and Shri Jyotinjay Verma, learned AGA for the State.
2. This jail appeal has been instituted on behalf of accused/appellant Shri Salik Ram. The appellant has been convicted and sentenced vide impugned judgment and order dated 18.10.2012 delivered by learned Additional Sessions Judge, Court No.2, Lakhimpur Kheri in Session Trial No. 984 of 2009, under Section 376 IPC read with Section 3(2)(v) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. The appellant has been sentenced to undergo imprisonment for life for the offence punishable under Section 376 IPC and fine of an amount of Rs.10,000/- has also been imposed with default stipulation to undergo further rigorous imprisonment for two years.
3. It is mentioned in the grounds of appeal that appellant has falsely been implicated in this crime on the basis of political rivalry of the village. No eye witness is available regarding the incident of this crime. The witnesses produced on behalf of complainant are his associates who help him. The appellant has not committed any offence. He is innocent. He was arrested from his house forcibly. The impugned judgment and order dated 18.10.2012 has been assailed on the above mentioned grounds and prayed that it be set aside.
4. The grounds of appeal has been forwarded by the Jail Superintendent, District Lakhimpur Kheri. Vide order dated 23.01.2013 Shri R. N. S. Chauhan, Advocate has been appointed Amicus Curiae on behalf of appellant to conduct this appeal.
5. Learned Amicus Curiae has put forth his arguments confining to the point of quantum of punishment awarded against the appellant only.
6. The complainant Dinesh on 13.07.2008 submitted a written report (Ex.Ka-1) at Police Station Phool Beharh, District Lakhimpur Kheri. The Check FIR (Ex.Ka-10) was prepared of Crime No. 608 of 2008, under Sections 376 IPC read with Section 3(2)(v) of SC/ST Act on the basis of written report submitted by the complainant. G.D.(Ex.Ka-11) of registration of crime was also prepared.
As per prosecution version, the complainant along with his family members were sleeping on the date of incident at night in their house. There was no door affixed on the main gate. The victim, daughter of complainant, aged about four years, was sleeping on a cot with her grand mother. When the victim was not found on the cot then the complainant, his father Ram Autar, witnesses Rajesh and Jaswant searched her. In the meanwhile they heard noises and screams of the victim from the sugarcane field owned by Om Prakash. This agricultural field was situated near the house of complainant. They saw after reaching near the mango tree that accused/appellant Salik Ram had pressed/shut the mouth of victim and committed rape with her. They saw accused/appellant Salik Ram, while he was committing rape with the victim below the mango tree by pressing/ shutting her mouth. The accused/appellant tried to hide in this sugarcane field from where he was arrested by the complainant and witnesses, P.W.1, P.W.2 and P.W.3.
It is mentioned in the written report (Ex.Ka.-1) that this incident occurred on 13.07.2008 at about 3:00 a.m. at night (wee hours). There was bleeding from the private part of the victim. The underwear of victim and Tehmat of Salik Ram were also taken into possession from the place of occurrence and submitted at police station along with the written report (Ex.Ka.-1).
7. The Investigating Officer recorded the statements of complainant and witnesses, inspected the place of occurrence and prepared site plan (Ex.Ka.-7). The victim was medically examined by the concerned doctor at Chhatrpati Shahuji Maharaj Medical University, Lucknow and gynaecologist. The injury report, Ex.Ka.-2 and Ex.Ka-5 were prepared. Slides of vaginal swab and report (Ex.Ka.-6) were prepared by the gynaecologist. The Investigating Officer took in his possession underwear of victim and Tehmat of Salik Ram and prepared recovery memo dated 13.07.2008 (Ex.Ka.-9). The Investigating Officer also obtained report, Ex.Ka.-3 and Ex.Ka.-4 from the Department of Paediatrics Surgery, Chhahtrapati Shahuji Maharaj Medical University, Lucknow regarding treatment of victim.
8. The Investigating Officer, after collecting evidence and after conclusion of it submitted charge sheet (Ex.Ka.-8) in the Court of Additional Chief Judicial Magistrate-I, Lakhimpur Kheri. The concerned Judicial Magistrate, Lakhimpur Kheri committed the case on 21.10.2009 of appellant/accused before the Court of Sessions.
9. The trial court of Additional Sessions Judge, Court No.2, Kheri framed charges against the appellant/ accused on 27.11.2009 for the offences punishable under Section 376 IPC and Section 3(2)(v) of S.C./S.T. Act, 1989. The accused/appellant pleaded not guilty and claimed to be tried.
10. P.W.1-Dinesh, complainant, P.W.2-Jaswant, P.W.3-Rajesh, P.W.4-Dr. Virendra Singh Tomar, P.W.5-Dr. Rekha Sachan, gynaecologist, P.W.6-Dr. Deepa Sharma, gynaecologist and P.W.7-Investigating Officer, Shri Kayam Singh, Deputy S.P., were produced on behalf of prosecution. These witnesses have proved the above mentioned documents.
11. The statement of accused/appellant was recorded on 21.09.2012 under Section 313 Cr.P.C. by the trial court. He denied the allegations levelled against him and stated that prosecution version and evidence adduced by the witnesses are incorrect. He has falsely been implicated in this crime, because he had given amount of Rs.40,000/- to the complainant to keep with him. This amount was obtained by him by selling his agricultural field. He demanded this money from the complainant, but he did not refund this amount to the appellant.
12. The accused/appellant has not adduced any defence evidence. This fact has been specifically stated by the accused in his statement that he would not adduce any defence evidence.
13. Learned Amicus Curiae has only confined his arguments on the point of quantum of punishment awarded against the appellant and submitted that he is detained in jail from the date of his arrest and he has served out sentence of about 10 years. He is not able to deposit amount of fine of Rs.10,000/- also. There is no criminal history of the accused/ appellant. Therefore, lenient view may be taken for reducing his punishment from imprisonment for life into imprisonment for ten years.
14. Learned Amicus Curiae has relied upon the decision of Bavo alias Manubhai Ambalal Thakore Vs. State of Gujarat : (2012) 1 SCC (Cri) 983 and argued that in this case the victim was aged about 7 years. The incident of this case occurred nearly 10 years ago and accused was aged 18-19 years at the time of incident. Hon'ble Supreme Court reduced the sentence of life imprisonment to 10 years rigorous imprisonment and fine of Rs. 20,000/- was also reduced to Rs.1,000/- with default stipulation to undergo additional sentence for one month.
15. We have perused the facts of this case law. The complainant, in absence of her husband, was at her house on the date of incident. Her daughter aged 7 years was having pain in her finger, therefore, she called her distant relative Bavo alias Manubhai Ambalala Thakore for taking her to doctor. Thereafter the appellant of this case took the victim to a doctor at about 10:00 a.m. and at about 11:00 a.m. she returned home alone limping and crying. The victim apprised the complainant that appellant of this case committed rape with her. The complainant in the evening, when her husband returned home, informed about the incident and FIR was lodged against the appellant of this case.
16. It is relevant to mention here that in the present case, accused was not arrested on the spot and the nature of injuries sustained by the victim has not been mentioned in this case law. On the other hand, Hon'ble Supreme Court in para-10 and 11 of the said judgment has observed as follows:
10. Section 376 speaks about the punishment for rape. Sub-section (2)(f) makes it clear that whoever commits rape on a woman when she is under 12 years of age shall be punished with RI for a term which shall not be less than 10 years but which may be for life and shall also be liable to fine. The proviso appended to sub-section (2) makes it clear "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".
11. It is clear from the above statutory provision that for the offence of rape on a girl under 12 years of age, punishment shall not be less than 10 years, but which may extend to life and also to fine shows that the legislature intended to adopt strictness in awarding sentence, if the victim is below 12 years of age. No doubt, the proviso to Section 376(2) lays down 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 10 years. It is settled law that the courts are obliged to respect the legislative mandate in the matter of awarding of sentence in all such cases. In the absence of any special and adequate reasons, recourse to the proviso mentioned above cannot be applied in a casual manner.
Therefore, facts and circumstances of this case would be considered regarding reducing of sentence awarded against him.
17. Learned Amicus Curiae has also relied upon the case law of Dinesh alias Buddha Vs. State of Rajasthan : 2006 Cri.L.J. 1679 (SC) and argued that the appellant of this case was charged with the offence punishable under Section 376(2) IPC read with Section 3(2)(v) of the SC/ST (Prevention of Atrocities) Act, 1989. The appellant was directed to undergo imprisonment for life and to pay fine of Rs.1,000/-. The victim aged 8 years was sexually ravished by the appellant of this case. The facts of this case was that on 05.02.1998 the victim had gone to witness a marriage procession in the night. When she was coming back to the house at about 12:00 o'clock in the night, the accused sexually assaulted her. She was threatened that if she would disclose about the incident to anybody, she would be killed. Suffering from the acute pain the victim told her sister, mother and grandmother about the incident. The matter was reported to the police and the accused was arrested afterwards. Therefore, nature of injuries are not mentioned in this judgment also. On the other hand, Hon'ble Supreme Court in paras-6, 9, 12 and 13 of the said judgment has observed as follows:
6. Sexual violence apart from being a dehumanizing act is an unlawful intrusion on the right of 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 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. her dignity, honour, reputation and not the least her chastity. Rape is not only a crime against the person of a woman, it is a crime against the entire society. It destroys, as noted by this Court in Shri Bodhisattwa Gautam v. Miss Subhra Chakraborty (AIR 1996 SC 922), 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 of India, 1950 (in short 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. A socially sensitized 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. 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 the deep sense of some deathless shame. An accused cannot cling to a fossil formula and insist on corroborative evidence, even if taken as a whole, the case spoken to by the victim strikes a judicial mind as probable. Judicial response to human rights cannot be blunted by legal jugglery.
12. The measure of punishment in a case of rape cannot depend upon the social status of the victim or the accused. It must depend upon the conduct of the accused, the state and age of the sexually assaulted female and the gravity of the criminal act. Crimes of violence upon women need to be severely dealt with. The socio-economic status, religion, race, caste or creed of the accused or the victim are irrelevant considerations in sentencing policy. Protection of society and deterring the criminal is the avowed object of law and that is required to be 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.
13. The legislative mandate to impose a sentence, for the offence of rape on a girl under 12 years of age, for a term which shall not be less than 10 years, but which may extend to life and also to fine reflects the intent of stringency in sentence. The proviso to Section 376(2) IPC, of course, lays down that the court may, for adequate and special reasons to be mentioned in the judgment, impose sentence of imprisonment of either description for a term of less than 10 years. Thus, the normal sentence in a case where rape is committed on a child below 12 years of age, is not less than 10 years' RI, though in exceptional cases "for special and adequate reasons" sentence of less than 10 years' RI can also be awarded. It is a fundamental rule of construction that a proviso must be considered with relation to the principal matter to which it stands as a proviso particularly in such like penal provisions. The courts are obliged to respect the legislative mandate in the matter of awarding of sentence in all such cases. Recourse to the proviso can be had only for "special and adequate reasons" and not in a casual manner. Whether there exist any "special and adequate reasons" would depend upon a variety of factors and the peculiar facts and circumstances of each case. No hard and fast rule can be laid down in that behalf of universal application.
18. Hon'ble Supreme Court in this case found that only by applying Section 3(2((v) of Atrocities Act, the life sentence was awarded in this case, therefore, the sentence was reduced to 10 years with fine of Rs.2,000/- with default stipulation. Hon'ble Supreme Court specifically observed that even in a case covered under Section 376(2)(f) IPC, imprisonment for life can be awarded, it is to be noted that minimum sentence of 10 years has been statutorily provided and considered the attendant circumstances the imprisonment for life in a given case is permissible.
19. Learned Amicus Curiae has also relied upon the decision of State of Himachal Pradesh Vs. Gian Chand : 2001 Cri.L.J. 2548 (SC) and argued that in this case, victim was aged 5 years, six months on the date of incident. Learned Sessions Judge found the accused guilty and sentenced the accused to undergo rigorous imprisonment for a period of 10 years and to pay a fine of Rs.5,000/- with default stipulation. On medical examination, following injuries were found on her person:
Local Exam - No external injury.
On retracting the labia - erythema seen.
Hymen torn - irregular edges.
Posterior vaginal wall tear about 0.5 cm in length.
No blood clot seen. No evidence of healing, no pus seen - foul smell.
Tenderness. No sperms were seen.
20. The appellant of this case was suffering from schizophrenia, mental disorder. In this case the Division Bench of the High Court acquitted the appellant, but Hon'ble Supreme Court set aside the judgment of High Court and judgment of Session Court holding the accused guilty of an offence punishable under Section 376 IPC alongwith sentence passed was restored. The suggestion made in cross-examination of the doctor that the nature of injury found on the hymen of the prosecutrix could be caused by fall was not accepted in this case in absence of any other material to support the suggestion. The accused was relative of in-laws of the mother of the victim. Considering the nature of injuries sustained by the victim, this case law does not anyway help the appellant for reducing the sentence.
21. Learned Amicus Curiae has also relied upon the decision of State of Madhya Pradesh Vs. Santosh Kumar : 2006 Cri.L.J. 3636 (SC). The Hon'ble Supreme Court, in this case, in para-18 and 19 has observed as follows:
18. In order to exercise the discretion of reducing the sentence the statutory requirement is that the Court has to record "adequate and special reasons" in the judgment and not fanciful reasons which would permit the Court to impose a sentence less than the prescribed minimum. The reason has not only to be adequate but also special. What is adequate and special would depend upon several factors and no strait-jacket formula can be indicated. What is applicable to trial Courts regarding recording reasons for a departure from minimum sentence is equally applicable to the High Court. The only reason indicated by the High Court is the young age of the accused and the fact that he belongs to a Scheduled Tribe. The same can by no stretch of imagination be considered either adequate or special. The requirement in law is cumulative.
19. It is to be noted that the victim in the instant case is a child who was about 6 years of age at the time of commission of offence. Sub section (2) of Section 376 IPC provides for a more stringent punishment when the victim is under 12 years of age.
22. The victim was aged 6 years and accused was charged for the offence punishable under Section 376(2)(f) and Section 342 IPC. He was sentenced to undergo for 10 years rigorous imprisonment with fine of Rs. 500/- with default stipulation. The High Court reduced the sentence for the offences punishable under Section 376(2)(f) IPC to 5 years while maintaining the sentence in respect of other offences. It was observed by the Hon'ble Supreme Court that in the instant case the High Court was clearly in error in reducing the sentence without recording any adequate and special reason in imposing lesser sentence.
23. Learned Amicus Curiae has also relied upon the decision of Delhi High Court in the case of Mohd. Alam Vs. State (NCT of Delhi) : 2007 Cri.L.J. 803. In this case, victim was 10 years old. Her step father, accused, took her to a park near Sanjay Jheel Trilok Puri, where he committed rape upon her. Hon'ble Division Bench of Delhi High Court in paras-41, 42, 46 and 47 has observed as follows:
41. While elaborating on the sensitive approach that the Court must adopt in cases of this nature and the factors required to be considered, the Supreme Court stated as follows (Para19 Cri LJ) :-
"Child rape cases are cases of perverse lust for sex where even innocent children are not spared in pursuit of sexual pleasure. There cannot be anything more obscene than this. It is a crime against humanity. Many such cases are not even brought to light because of the social stigma attached thereto. According to some surveys, there has been a steep rise in child rape cases. Children need special care and protection. In such cases, responsibility on the shoulders of the courts is more onerous so as to provide proper legal protection to these children. Their physical and mental immobility call for such protection. Children are the natural resource of our country. They are the country's future. Hope of tomorrow rests on them. In our country, a girl child is in a very vulnerable position and one of the modes of her exploitation is rape besides other modes of sexual abuse. These factors point towards a different approach required to be adopted."
42. From a perusal of these decisions rendered by the Supreme Court, the following parameters and factors that need to be kept in mind, clearly emerge in cases of a rape of a girl child:
Such cases need to be dealt with sensitively and not like cases involving other penal offences. In other words, the whole approach of the Courts must be quite different.
The traditional non-permissive bounds of Indian society must be kept in mind while examining the evidence in cases involving sexual offences. Social factors play an important role in the nature and quality of available evidence.
The sole testimony of a prosecutrix is enough to convict a person accused of rape, if the testimony is free from blemish and implicitly reliable.
Such testimony does not need corroboration; but if there is some doubt about the implicit reliability of the testimony, then the court may look for assurance to the acceptability of the testimony, short of its corroboration.
If the testimony of the prosecutrix is reliable and trustworthy, then minor contradictions are not enough to throw out the evidence and other issues such as non-examination of an available witness, even the non-examination of a doctor or the non-production of the doctor's report would not be fatal to the case of the prosecution.
46. What is the sentence to be awarded to the Appellant? On the question of sentence, the legislature has given an extremely wide discretion. The sentence for the rape of a girl below the age of 12 years varies from imprisonment of 10 years to life imprisonment. This is indeed a very wide spectrum. We are of the view that it may be appropriate for the High Court to frame some non-mandatory guidelines so that discretion can be exercised on the basis of some relevant factors and parameters. The Supreme Court has said that both the criminal and the crime are important for the purposes of sentencing. (See Bachan Singh v. State of Punjab, (1980 2 SCC 864 : 1980 Cri LJ 636). The rape of a girl below the age of 12 years is, by all standards, a heinous crime and must be adequately punished depending on who the offender is. But, as mentioned above, the punishment can vary enormously from 10 years to life imprisonment and so how does one find out what is the appropriate sentence to be awarded in a given case. Add to this the possibility that the sentence can be reduced from the minimum of 10 years for special and adequate reasons.
47. Learned Counsel contended that the sentence in this appeal be reduced below the minimum because the Appellant is a first time offender. We find this to be a completely inadequate reason for reducing the sentence to below the statutory minimum of 10 years imprisonment. For coming to this conclusion, we have taken guidance from some decisions of the Supreme Court.
The Supreme Court has indicated what is not a special and adequate reason. For example, passage of time or that the criminal belongs to a rural area is not an adequate reason, State of M.P. v. Munna Choubey & Anr, (2005) 2 SCC 710 :2005 Cri LJ 913.
Similarly, if the criminal is a young and illiterate labourer are inadequate reasons, State of M.P. v. Babbu Barkare @ Dalap Singh, (2005) 5 SCC 413 : 2005 Cri LJ 3117 and State of M.P. v. Bane Singh, (2005) 12 SCC 367.
If the criminal is an illiterate labourer from a rural area, that is also an inadequate reason, [State of M.P. v. Bhagwat (2005) 11 SCC 141].
If the offence has been committed quite some time back (7 to 12 years ago) and the prosecutrix is married are both inadequate reasons [Urmila (minor) v. Raju & Anr. (2005) 12 SCC 366]. However, in Ram Kumar v. State of Haryana, (2006) 4 SCC 347, the Supreme Court held that if the prosecutrix is married, then that is an adequate reason for reducing the sentence of the rapist.
24. Therefore, for reducing sentence awarded against the appellant, mitigating circumstances have to be considered by this Court, although, learned Amicus Curiae has relied upon para-48 of this case law, which is as follows:
48. What then is the punishment that is required to be given? As mentioned above, in the absence of any guidelines in this regard, we can only go by some recent precedents set by the Supreme Court. In Dinesh @ Buddha v. State of Rajasthan, (2006) 3 SCC 771 : 2006 Cri LJ 1679 where the victim was 8 years old, the Supreme Court awarded the minimum punishment of 10 years imprisonment. In State of Karnataka v. Krishnappa, (2000) 4 SCC 75 : 2000 Cri LJ 1793, the victim was again 8 years old and the Supreme Court awarded the minimum penalty of 10 years imprisonment. In Bantu @ Naresh Giri v. State of M.P., (2001) 9 SCC 615 : 2002 Cri LJ 21] the victim was only 6 years old and the Supreme Court awarded the minimum sentence of 10 years imprisonment. Similarly, in State of M.P. v. Santosh Kumar, (2006) 6 SCC 1 : 2006 Cri LJ 3636 the victim was 6 years of age and the Supreme Court awarded the minimum sentence of 10 years imprisonment.
25. We have perused the record of Session Trial No. 984 of 2009 (State Vs. Salik Ram) of Police Station Phool Beharh, District Kheri along with the statements of witnesses and other documents.
26. P.W.1, complainant-Dinesh Kumar, who is the father of victim, has corroborated the facts narrated in the written report (Ex.Ka.-1) and stated that he was sleeping with family members in his house on the date of incident. His daughter, victim, aged about 4 years, was sleeping with her grand mother, Smt. Makhana. Her grand mother, when not found her on cot, then she apprised the complainant at about 3:00 a.m. at night (wee hours) that victim was not there. The complainant, his father Ram Autar, witnesses, Rajesh and Jaswant searched the victim. They heard the screams and cries of victim from the sugarcane field owned by Om Prakash. They saw that the accused Salik Ram was committing rape with the victim below the mango tree situated there in the sugarcane field.
27. P.W.1 has also stated in his examination-in-chief that accused/ appellant attempted to hide himself in the sugarcane field, leaving the victim in naked position. They saw that she was crying and blood was oozing from her private parts. Undergarment of victim and Tehmat of accused-appellant was lying near the victim on the place of occurrence. Blood was soaked in the undergarment of victim.
28. P.W.1 has also stated that accused-appellant was arrested in the sugarcane field by them, in which place of occurrence was situated. Condition of victim was poor. They brought the appellant and the victim at police station and he submitted written report (Ex.Ka.1) at the police station. The victim was referred to K.G.M.C., Lucknow for her treatment where she was admitted for 25 days.
29. Learned Amicus Curiae conducted cross-examination of P.W.1, complainant. P.W.1 has disclosed that he was on talking terms with the accused-appellant, but the accused-appellant was not having visiting terms at home with him. He never consumed liquor with him.
30. P.W.1 has in his cross-examination, reiterated this fact that they were sleeping in the house and victim was sleeping with her grand mother. When her grand mother did not find her, then she apprised the complainant. P.W.1 has clarified that sugarcane field, in which victim was found, was situated at a distance of 100 meters from his house. The appellant picked her up, while she was sleeping and took her in this agricultural field.
31. P.W.1 has also stated in his cross-examination that when victim was not found in the house, she was searched outside the house in southern side, by him, his father Ram Autar, Jaswant and Rajesh. They were having torch and in the light of this torch they saw that the accused/appellant Salik Ram was committing rape with the victim below the mango tree in sugarcane field.
32. P.W.1 has refuted the suggestion put forth by the learned Amicus Curiae that he did not see the alleged incident of rape committed by the appellant with the victim. He has also refuted the suggestion that he was having friendship with the appellant and after quarrel he was falsely implicated by him in this crime by arresting him from his house. On the other hand, he has specifically stated in his cross-examination that the appellant tried to hide in sugarcane field, while he saw them near the place of occurrence. He brought Salik Ram at house, then went at Police Station at 8:00-9:00 a.m. in the morning.
33. P.W.2 Jaswant and P.W.3 Rajesh are neighbours of the complainant. In their examination-in-chief, these witnesses have corroborated the statements of P.W.1, complainant. P.W.2 has stated that on the date of occurrence at about 2:30 a.m. at night the complainant and his mother raised alarm, when somebody brought the victim aged 4 years from their house. They along with the complainant-Dinesh and his father Ram Autar searched the victim and reached towards agricultural field owned by Om Prakash. The victim was crying. They heard her screams and reached in the sugarcane field. They saw that Salik Ram was committing rape with the victim below the mango tree in sugarcane field.
34. Both these witnesses have disclosed this fact in their examination-in-chief that the victim was lying naked at the place of occurrence and blood was oozing from her private parts. Undergarment of victim and Tehmat of appellant was lying near the victim. P.W.2 has also stated that undergarment of victim was soaked with blood stains. Both these witnesses, P.W.2 and P.W.3, have specifically stated that appellant was arrested in the sugarcane field. The victim and appellant was brought by them at police station and the complainant lodged the FIR of this incident. P.W.2 has further stated that victim was medically examined at hospital. Her condition was poor, therefore, she was referred to Lucknow Medical College, where she was admitted for 25-26 days.
35. Learned Amicus Curiae has cross examined P.W.2, Jaswant. He has stated in his cross examination that on the date of incident he was present in his house. His brother Dinesh, complainant, P.W.1, apprised him that victim is not available in house. He has clarified that there is a dividing wall in between his house and the house of complainant.
36. P.W.2 in his cross-examination has further stated that he along with the complainant Dinesh searched the victim in the nearby places. They reached in the southern side at crossing and stayed for 10-15 minutes. They heard screams of victim. They reached at the place of occurrence and saw the victim below the mango tree in sugarcane field, where appellant committed rape with her. The victim was lying in the sugarcane field. The appellant tried to hide in this sugarcane field. The victim was crying and afterward became unconscious. He has also stated that appellant was arrested, while he was not wearing Tehmat. He was not having any animosity with the appellant. He has refuted this suggestion that accused/appellant has falsely been implicated in this crime on the basis of dispute with complainant for payment of some money.
37. Learned Amicus Curiae tried to point out some contradictions appeared in the cross-examination of P.W.2 that this witness did not saw the incident of rape committed by the appellant. He has also stated that they for the first time brought the victim from the place of occurrence, then accused was arrested. In his cross-examination, P.W.2 has specifically stated that appellant had tried to hide in the sugarcane field, which is the place of occurrence. No specific question was put up by learned Amicus Curiae to P.W.2 from where Salik Ram was arrested by them. In the examination-in-chief, P.W.2 has specifically stated that they arrested the appellant in the sugarcane field itself. Therefore, no material contradiction was elicited in the cross-examination of P.W.1 and P.W.2 also.
38. Learned Amicus Curiae has also cross examined P.W.3, Rajesh. In his cross examination he has clarified that house of Dinesh, P.W.1, complainant and his house are adjacent. The complainant, Dinesh is his neighbour. In his examination-in-chief, P.W.3 has stated that about 3:00 a.m. Dinesh (P.W.1) apprised that his daughter aged 4 years was picked up by the appellant in the sugarcane field, where he committed rape with her. He has also stated that he, along with Dinesh, Jaswant and Ram Autar, searched and heard the cries of victim from the sugarcane field of Om Prakash. The appellant was committing rape with the victim below the mango tree in the sugarcane field.
39. P.W.3 has further stated in his cross-examination that when he was sleeping in his house, the complainant apprised him about the incident of non availability of victim in his house. They searched the victim at nearby places. They saw the appellant and victim in a agricultural field, which was situated at a distance of 100 meters. They raised alarm then Trimohan and other persons also reached at the place of occurrence. The appellant had tried to hide in the sugarcane field, from where he was arrested by them. He knows appellant prior to the incident, because he is resident of his village. He has refuted this suggestion that he was adducing his evidence on the direction of complainant and he did not see any such incident. P.W.3 in his cross-examination has specifically stated when appellant was arrested he worn undergarment and Banyan. His Tehmat was lying at the place of occurrence. He has also refuted the suggestion that he is relative of complainant, therefore, he was adducing false evidence against him.
40. P.W.3 in his cross-examination answered the question put forth by the Presiding Officer of the Court and stated that sugarcane field, in which, place of occurrence was situated was owned by Om Prakash. This sugarcane filed was situated at a distance of 200 meters. He has also clarified that Jaswant, Ram Autar and Dinesh and he searched the victim. He saw the appellant in the sugarcane filed near the mango tree. Torch was with Dinesh. In the torch light they saw the appellant committing rape with the victim.
41. Therefore, no material contradiction was elicited by the learned Amicus Curiae during cross-examination of P.W.3 also. These witnesses, P.W.1, P.W.2 and P.W.3 have proved this fact that the appellant picked up the victim at about 3:00 a.m. at night from the house of complainant Dinesh, from the place where, she was sleeping with her grand mother on cot on the date of incident. He brought the victim in the sugarcane field owned by Om Prakash. During search these witnesses found the victim in naked position on the place of occurrence and blood was oozing from her private parts. Her undergarment was having blood stains. They saw the appellant below the mango tree in sugarcane field, where appellant was committing rape with the victim. The appellant tried to hide in the sugarcane field leaving the victim in naked position. The appellant was arrested by these witnesses in the sugarcane filed near the place of occurrence.
42. S.I., Badelal prepared recovery memo dated 13.07.2008 (Ex.Ka.-9) after taking into his possession undergarment of victim and Tehmat of appellant submitted by the complainant Dinesh at police station. These cloths were sent by the Investigating Officer, P.W.7 for chemical analysis. Joint Director, Forensic Lab, Mahanagar, Lucknow has sent his report dated 05.11.2008, in which it is mentioned that human blood was found on the undergarment of the victim. Sperms/ seamen or human blood was not found on undergarment and Tehmat of the accused. This forensic lab report was not controverted during the course of trial, therefore, this forensic report is admissible under Section 293 Cr.P.C., being sent by forensic lab of the State of U.P.
43. Learned Amicus Curiae has also cross examined Dr. Virendra Singh Tomar, P.W.4, who has proved the injury report (Ex.Ka.-2) of the victim which was prepared by him at the point of time of medical examination of the victim on 13.07.2008.
44. We have perused the statement of P.W.4, who has proved the injury report (Ex.Ka.-2). P.W.4 was posted as Professor and Head of Department of Paediatrics Surgery, C.S.M. University, Lucknow. P.W.4 found the following injuries on the body of the victim:
(i) Multiple abrasions in the area of 4.0 x 3.0 c.m. left side of neck, 2.5 c.m. above the left collor bone, radish in colour.
(ii) Abrasion in the area of 1.0 x 1.0 c.m. radish on the right side of neck 3.0 c.m. below right ear.
(iii) Multiple abrasions radish in area 3.0 x 1.0 c.m. below the lower lip on chin.
45. These injuries were sustained by the victim according to opinion of P.W.4 on 13.07.2008 at about 3:00 a.m. at night and these injuries may be caused by leaves of sugarcane. During cross-examination, P.W.4 has also stated that these injuries were simple and could be caused to the victim by bushes or by falling down. Therefore, no material contradiction was elicited during cross-examination of P.W.4. The victim was found on the place of occurrence, which was situated below the mango tree in sugarcane field. Therefore, there was more possibility that these injuries could be sustained by the victim, when the appellant brought her in this sugarcane field at the place of occurrence and the leaves of sugarcane might came in contact with the body of the victim, so that she sustained these injuries, as opined by P.W.4.
46. We have also perused the statement of P.W.6-Dr. Deepa Sharma, who medically examined the victim on 13.07.2008 at 7:00 p.m. She was posted at Government Hospital of District Kheri. The victim was brought by Constable Geeta Gupta of police office, Kheri. She found that breasts of victim was not developed, pubic and auxiliary hairs were not present on the body of victim. Multiple injuries were found on the face, neck and body of victim.
47. P.W.6, on internal medical examination of victim found that hymen and vagina was torn at 6:00 o'clock position. Anal spherical was torn at 12:00 o'clock position. The tear of 3.0 c.m. of length extending from hymen to vagina to perineum and anus. Wound was unhealthy, faecal matter was coming out of anus through vagina. No fresh bleeding was present at the point of time of medical examination. When she touched the wound the victim felt pain.
48. P.W.6 also prepared slide of vaginal smear for sperm examination by pathology and also referred her for determining her age. She referred victim for further management of wound by the Surgeon of K.G.M.C., Lucknow. She prepared Ex.Ka.-5, medical examination report. This wound communicated and involved anus of the victim also. She has stated that according to pathology report dated 14.07.2008 of Pathologist, District Hospital, Kheri, no dead or alive sperm were seen in the swab of vagina. This pathology report has been proved by P.W.6 as Ex.Ka.-6.
49. Learned Amicus Curiae has put forth suggestion to P.W.6-Dr. Deepa Sharma that victim could sustain the above mentioned injuries by falling down and these injuries could be two days old. P.W.6 has opined that external or internal injuries sustained by victim, could not be sustained by her by falling down, therefore, no material contradiction was also elicited during the cross examination of P.W.6.
50. P.W.5, Dr. Rekha Sachan was posted in K.G.M. College, Lucknow on 14.07.2008 and 04.08.2008. She has stated that on 14.07.2008 victim, aged 4 years, was referred from Sadar Hospital, Lakhimpur Kheri for treatment. She was admitted in her supervision and the supervision of Professor Dr. Manju Shukla. She sent a report for providing medical examination and supplementary report to the Investigating Officer. She has clarified that victim after rape sustained third degree perennial tear. She has explained this term as that upperture of vagina had raptured/ lacerated in such a position that it was connected with anus. P.W.5 has also referred the victim on the same day to Paediatrics Surgery Department under the treatment of Professor Dr. R. K. Tandon. She has proved Ex.Ka.-3, her report and Ex.Ka.-4, report provided by Professor Dr. R. K. Tandon. She identified her signature and signature of Professor Dr. R. K. Tandon on this report. No cross-examination was conducted by learned Amicus Curiae on behalf of appellant.
51. We have perused the report Ex.Ka.-3 prepared by P.W.5 which was provided to Shri Badelal, S.I. of Police Station Phool Beharh. The facts stated by her in her statement as P.W.5 has been mentioned in this report (Ex.Ka.-3) that victim was admitted on 14.07.2008 in Maternity and Women Department. Professor Dr. Manju Shukla and she, under their supervision, admitted the victim. The victim sustained third degree perennial tear after rape, therefore, on 14.07.2008 at about 5:00 p.m. she was referred to Paediatrics Surgery Department under Professor Dr. R. K. Tandon.
52. We have also perused Ex.Ka.-4 report dated 21.08.2008 prepared by Professor R. K. Tandon. It is mentioned in this report that on 14.07.2008 victim was referred from Maternity and Women Department at about 5:00 p.m. in Paediatrics Surgery Department. Third degree perennial tear was repaired after swelling had subsided.
In the case of The State of Maharashtra vs Bandu @ Daulat reported in 2017 scc online sc1255, the apex court held in para 3 ,5 and 7 as under:-
3. The victim is deaf and dumb and mentally challenged to some extent. Main evidence on record is of PW-1, Asha Ramratan Bangar @ Asha Panchu Dhurve, the mother of the victim. She lodged FIR on the next day i.e. 30th June, 2008 to the effect that the accused was the landlord of the house in which they were living. The victim was lured away by the accused by offering some sweet meat and was taken to the market. She did not return home and it was at 9.30 p.m. in the night that two boys brought her home. The victim explained to her mother by gesture as to what happened. On this version, FIR was registered and investigation was carried out. Medical examination of the victim confirmed the commission of rape. The age of the victim at the time of the commission of the offence was about 14 years.
5. Mr. Nishant R. Katneshwarkar, learned counsel for the State, submitted that even though the victim may be the best witness to establish the charge of rape, having regard to the fact that the victim in the present case was deaf and dumb and mentally retarded, even in absence of her being examined as a witness, there was sufficient evidence warranting conviction of the accused.
7. The evidence of the mother of the victim clearly shows that it was the respondent-accused who took away the victim. The victim and the accused were seen together by PW-2, Gajanan Marutrao Sonule on the date of commission of offence. The victim immediately after the occurrence narrated the same to her mother as to what happened as reflected in the FIR and the version of the PW-1. Rape has been confirmed by medical evidence. Identity of accused is not in dispute. In these circumstances the trial court having convicted the respondent, the High Court was not justified in setting aside the conviction.
53. Therefore, medical evidence adduced by witnesses P.W.4, P.W.5 and P.W.6, corroborates the oral evidence adduced by P.W.1, P.W.2 and P.W.3. Since the victim was aged 4 years on the date of occurrence, it is possible that she was unable to adduce evidence, therefore, her non examination does not affect adversely the prosecution version. The finding of the trial court in this regard has recorded in correct perspective.
54. P.W.7, Investigating Officer, Shri Kayam Singh, Deputy S.P., CBCID, has proved this fact that on 14.07.2008, he recorded the statements of complainant Dinesh, Ram Autar, Rajesh and Jaswant. Hearsay evidence of Shriprakash and Kamta was also recorded by him. He inspected the place of occurrence along with the complainant and prepared site plan (Ex.Ka.-7). He has also recorded on 24.07.2008 the statement of Smt. Makhana, grand mother of victim. He sent clothes of victim and accused for chemical analysis. He submitted charge sheet(Ex.Ka.-8) after concluding investigation. P.W.7 has also proved recovery memo (Ex.Ka.-9) prepared by S.I., Badelal, while he took into his possession Tehmat and undergarment of accused and the undergarment of the victim. He identified the signatures and hand writing of S.I. Badelal. He has also proved Check FIR and G.D. of registration of crime (Ex.Ka.-10 & 11) in hand writing of Constable Sunil Kumar.
55. Learned Amicus Curiae has not elicited any material contradiction on the basis of statements of witnesses P.W.1, P.W.2 and P.W.3 recorded under Section 161 Cr.P.C. During his cross examination P.W.7 has clarified that complete investigation was conducted by him and charge sheet was submitted by him. He has refuted the suggestion that factually he did not record the evidence of witnesses and recorded these statements on his own. He has also stated that he found accused at police station and recorded his statement on 13.07.2008.
56. We have perused the site plan (Ex.Ka.-7) prepared by P.W.7. He has shown the place where victim was sleeping with her grand mother, Smt. Makhana by mark 'A'. He has also shown place of occurrence below mango tree, which was situated in sugarcane filed owned by Om Prakash, where the appellant committed rape with the victim by mark 'X'. By mark 'D' he has mentioned that at this place undergarment of victim and Tehmat of accused was lying. P.W.7 also mentioned in site plan that on the place of occurrence sugarcane was broken and ground was scratched. P.W.7, Investigating Officer has also mentioned in site plan that Chhappar (house) of accused was situated at a distance of 50 paces in western side of the house of complainant. The place of occurrence was situated at a distance of 100 meters from the house of complainant.
57. P.W.7 also mentioned the place by mark 'C' from where appellant was arrested in the sugarcane field of Om Prakash. No cross examination was conducted on behalf of appellant by the learned Amicus Curiae on the facts mentioned by P.W.7 in site plan (Ex.Ka.-7). There was no doubt about the distance of place of occurrence from the house of P.W.1, complainant Dinesh. There is no contradiction in the statements of P.W.1, P.W.2 and P.W.3 regarding the place of occurrence shown by P.W.7 in site plan and the place from where accused was arrested by these witnesses from the sugarcane field owned by Om Prakash and the victim was found in naked position from the place of occurrence.
58. Learned Amicus Curiae has only pointed out before the trial court that no independent witness were examined by the prosecution as stated by P.W.3, i.e., Trimohan and Shriprakash and other villagers, who reached at the place of occurrence. It is relevant to mention here that P.W.7 Investigating Officer has recorded statements of Shriprakash and Kamta, who gave hearsay evidence only. Learned Amicus Curiae has also pointed out that grand mother Smt. Makhana, with whom victim was sleeping on the date of occurrence, was also not examined during the course of trial on behalf of prosecution. Learned Trial Court has recorded finding in this regard that evidence adduced by P.W.1, P.W.2 and P.W.3 was reliable, cogent, trustworthy and corroborated by medical evidence. Number of witnesses was not material, but quality of evidence adduced by witnesses is material for decision of criminal cases. This finding recorded by learned trial court is in consonance with the provisions of Section 134 of Indian Evidence Act, which provides that no particular number of witnesses shall in any case be required for the proof of any fact.
59. Hon'ble the Apex Court in the following case laws has held regarding interested witnesses and non-production of independent witnesses as under:-
Hon'ble Supreme Court in Nirmal Singh and another Vs. State of Bihar reported in (2005) 9 SCC 725 has observed as under:-
.....With these facts in the background, we have to consider whether the ocular testimony of Pws. 1, 3, 4, 5, 6, 8 & 11 should be discarded. It is no doubt true that the eye witnesses are related to each other but that is to be expected since the occurrence took place in the dalan of the house of the deceased. The evidence of the eye witnesses does not suffer from any infirmity, and appears to be convicting. No significant contradiction or infirmity has been brought to our notice.
In these circumstances, we do not feel persuaded to discard the case of the prosecution only on account of some infirmities which we have noticed earlier. There appears to be no reason why so many eye witnesses should falsely implicate the appellants, and there is in fact, nothing on record to suggest that the witnesses had any reason to falsely implicate them.
Hon'ble Supreme Court in the case of Hukum Singh and others Vs. State of Rajasthan reported in 2000 (7) SCC 490 has held as under:-
8. Bhupender Pal (PW. 4) and Ram Pyari (PW. 5) were the two eye witnesses examined by the prosecution. The fact that they were present at the scene of occurrence could not be disputed nor the same has been disputed by the accused. They sustained injuries at the hands of the assailants and the doctor who noted such injuries had testified about them in the Court as PW. 9. The version spoken to by PW. 4 in Court is substantially a reiteration of the version which he supplied to the police as early as 8.40 P.M. on the same night. That became the basis for the FIR. The Sessions Court refused to believe the testimony of those witnesses on the erroneous perception that they are "interested witnesses". The only premise for dubbing them as "interested witnesses" is that they were the kith and kin of the deceased. Why should such witnesses be termed as interested witnesses? If they had seen the occurrence they would certainly have the interest to bring the offenders of the murder of their breadwinner to book Normally the kith and kin of the deceased, if they had seen the occurrence would not absolve the real offenders and involve innocent persons for that murder. [Vide Dalip Singh v. State of Punjab MANU/SC/0031/1953 : [1954]1SCR145 , Guli Chand v. State of Rajasthan MANU/SC/0107/1973 : 1974CriLJ331 and Dalbir Kaur v. State of Punjab MANU/SC/0144/1976 : 1977CriLJ273 ].
15. The situation in a case where the prosecution cited two categories of witnesses to the occurrence, one consisting of persons closely related to the victim and the other consisting of witnesses who have no such relation, the Public Prosecutor's duty to the Court may require him to produce witnesses from the latter category also subject to his discretion to limit to one or two among them. But if the Public Prosecutor got reliable information that any one among that category would not support the prosecution version he is free to state in Court about that fact and skip that witness being examined as a prosecution witness. It is open to the defence to cite him and examine him as defence witness. The decision in this regard has to be taken by the Public Prosecutor in a fair manner. He can interview the witness before hand to enable him to know well in advance the stand which that particular person would be adopting when examined as a witness in Court.
Hon'ble Supreme Court in State of Rajasthan Vs. Hanuman reported in AIR 2001 SC 282 has held as under:-
The position is well settled that evidence of eye-witnesses cannot be discarded merely on the ground that they are relatives of the deceased. Normally close relatives of the deceased are not likely to falsely implicate a person in the incident leading to the death of the relative unless there are very strong and cogent reasons to accept such criticism.
In Surendra Narain alias Munna Pandey vs. State of U.P. reported in AIR 1998 SC 192, Hon'ble Apex Court has held as under:-
...Turning to the facts of this case, it is seen that PW 1 had mentioned the name of the accused in the FIR which was given within 15 minutes of the occurrence. The other two eye witnesses, PW 2 and PW 3 also knew the accused previously. The crucial factor is that the accused was related to the deceased as a son of his "Sala" and PW 1 was also related to the deceased. The accused had never denied the relationship. As the trial Judge has observed, "there is not a scintilla of evidence" that PW 1 had a grudge against the accused. There is also no evidence that the wife of the deceased had any enmity with the accused. She would not have allowed a false case to be foisted on her brother's son. The accused was not traceable from 7.4.77 to 13.5.77. On the facts of the case, his application for the test identification parade on his surrender after such a long time does not appear to be bona fide. In any event, the evidence on record as accepted by the Courts below is sufficient to prove the guilt of the accused. Further the point does not seem to have been argued before the trial court or the High Court. On the facts of this case there is no doubt that the failure to hold a test identification parade in spite of an order passed by the Sessions Court is not fatal to the prosecution.
The second contention is without any merit. The evidence adduced by the prosecution is adequate to prove the charge. The non-examination of another person who was on the scene of occurrence does not make the evidence of PWs 1 to 3 unreliable. It is needless to point out that evidence has to be weighed and not counted.
In the case of Banti @ Guddu vs. State of Madhya Pradesh reported in AIR 2004 SC 261, Hon'ble Apex Court has held as under:-
"...Coming to the plea that the presence of PWs 1 and 2 at the spot of occurrence is doubtful, it is to be noticed that both PWs 1 and 2 were cross-examined at length. Nothing Infirm has been elicited to cast doubt on their veracity. If the lack of motive as pleaded by the accused appellants is a factor, at the same time it cannot be lost sight of that, there is no reason as to why PW-1 would falsely implicate the accused persons. There was no suggestion of any motive for such alleged false implication. Merely because PW-1 is a relation of the deceased, and PW-2 was known to him, that per se cannot be a ground to discard their evidence. Careful scrutiny has been done of their evidence and it has been found acceptable by both the trial Court and the High Court. We find no reason to take a different view.
Hon'ble Supreme Court (Division Bench) in the case of Shiv Ram and anr. vs. State of U.P. reported in (1998) 1 SCC 149, in para16 has observed as under:-
"16. ...... The witnesses further admitted that many persons had gathered at the place of occurrence, if this be so it was very much necessary for the prosecution to examine some independent witnesses to lend assurance to the credibility of the evidence of these two eyewitnesses. These submissions do not impress us at all. nowadays it is a common tendency that no outsider would like to get involved in a criminal case much less in the crime of present magnitude and, therefore, it was quite natural that no independent witness would come forward to assist the prosecution. it is well settled that the evidence of witnesses cannot be discredited only on the ground that they are close relatives of the deceased persons. All that is required in such a situation is that the court must scrutinize the evidence of such witnesses with utmost care and caution. The magnitude of the present crime and nature of prosecution evidence has put us on guard to appreciate the evidence of these two eye witnesses with utmost care and caution. We have done this exercise and we are unable to be persuaded to discard the evidence of these two witnesses on the grounds urged before us. The evidence of both these witnesses in our considered view is absolutely straightforward, unblemished and without any infirmity. The first information report which was lodged within four hours, naming all the accused also lends asurance to our conviction that the evidence of these two witnesses is trustworthy and cannot be discarded. The contentions of the learned counsel for the accused, therefore, stand rejected."
In the case of Yogesh Singh v. Mahabeer Singh : (2017) 11 SCC 195, Hon'ble Apex Court has observed as under:
Testimony of interested/inimical witnesses
24. On the issue of appreciation of evidence of interested witnesses, Dalip Singh v.State of Punjab [Dalip Singh v. State of Punjab, AIR 1953 SC 364 : 1954 SCR 145 : 1953 Cri LJ 1465] is one of the earliest cases on the point. In that case, it was held as follows: (AIR p. 366, para 26) "26. A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely. Ordinarily, a close relative would be the last to screen the real culprit and falsely implicate an innocent person. It is true, when feelings run high and there is personal cause for enmity, that there is a tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but foundation must be laid for such a criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth."
25. Similarly, in Piara Singh v. State of Punjab [Piara Singh v. State of Punjab, (1977) 4 SCC 452 : 1977 SCC (Cri) 614] , this Court held: (SCC p. 455, para 4) "4. ... It is well settled that the evidence of interested or inimical witnesses is to be scrutinised with care but cannot be rejected merely on the ground of being a partisan evidence. If on a perusal of the evidence the Court is satisfied that the evidence is creditworthy there is no bar in the Court relying on the said evidence."
26. In Hari Obula Reddy v. State of A.P. [Hari Obula Reddy v. State of A.P., (1981) 3 SCC 675 : 1981 SCC (Cri) 795] , a three-Judge Bench of this Court observed: (SCC pp. 683-84, para 13) "13. ... it is well settled that interested evidence is not necessarily unreliable evidence. Even partisanship by itself is not a valid ground for discrediting or rejecting sworn testimony. Nor can it be laid down as an invariable rule that interested evidence can never form the basis of conviction unless corroborated to a material extent in material particulars by independent evidence. All that is necessary is that the evidence of interested witnesses should be subjected to careful scrutiny and accepted with caution. If on such scrutiny, the interested testimony is found to be intrinsically reliable or inherently probable, it may, by itself, be sufficient, in the circumstances of the particular case, to base a conviction thereon."
27. Again, in Ramashish Rai v. Jagdish Singh [Ramashish Rai v. Jagdish Singh, (2005) 10 SCC 498 : 2005 SCC (Cri) 1611] , the following observations were made by this Court: (SCC p. 501, para 7) "7. ... The requirement of law is that the testimony of inimical witnesses has to be considered with caution. If otherwise the witnesses are true and reliable their testimony cannot be thrown out on the threshold by branding them as inimical witnesses. By now, it is well-settled principle of law that enmity is a double-edged sword. It can be a ground for false implication. It also can be a ground for assault. Therefore, a duty is cast upon the court to examine the testimony of inimical witnesses with due caution and diligence."
28. A survey of the judicial pronouncements of this Court on this point leads to the inescapable conclusion that the evidence of a closely related witness is required to be carefully scrutinised and appreciated before any conclusion is made to rest upon it, regarding the convict/accused in a given case. Thus, the evidence cannot be disbelieved merely on the ground that the witnesses are related to each other or to the deceased. In case the evidence has a ring of truth to it, is cogent, credible and trustworthy, it can, and certainly should, be relied upon. (See Anil Rai v. State of Bihar[Anil Rai v. State of Bihar, (2001) 7 SCC 318 : 2001 SCC (Cri) 1009] , State of U.P. v.Jagdeo [State of U.P. v. Jagdeo, (2003) 1 SCC 456 : 2003 SCC (Cri) 351] , Bhagaloo Lodh v. State of U.P.[Bhagaloo Lodh v. State of U.P., (2011) 13 SCC 206 : (2012) 1 SCC (Cri) 813] , Dahari v. State of U.P. [Dahari v. State of U.P., (2012) 10 SCC 256 : (2013) 1 SCC (Cri) 22] , Raju v. State of T.N. [Raju v. State of T.N., (2012) 12 SCC 701 : (2012) 4 SCC (Cri) 184] , Gangabhavani v. Rayapati Venkat Reddy[Gangabhavani v. Rayapati Venkat Reddy, (2013) 15 SCC 298 : (2014) 6 SCC (Cri) 182] and Jodhan v. State of M.P. [Jodhan v. State of M.P., (2015) 11 SCC 52 : (2015) 4 SCC (Cri) 275] ) INDEPENDENT WITNESS 50 - The learned counsel for the respondents has also sought to assail the prosecution version on the ground of lack of independent witnesses. We are not impressed by this submission in the light of the observations made by this Court in Darya Singh v. State of Punjab [Darya Singh v. State of Punjab, AIR 1965 SC 328 : (1964) 3 SCR 397 : (1965) 1 Cri LJ 350] , wherein it was observed: (AIR p. 333, para 12) "12. ... It is well known that in villages where murders are committed as a result of factions existing in the village or in consequence of family feuds, independent villagers are generally reluctant to give evidence because they are afraid that giving evidence might invite the wrath of the assailants and might expose them to very serious risks. It is quite true that it is the duty of a citizen to assist the prosecution by giving evidence and helping the administration of criminal law to bring the offender to book, but it would be wholly unrealistic to suggest that if the prosecution is not able to bring independent witnesses to the Court because they are afraid to give evidence, that itself should be treated as an infirmity in the prosecution case so as to justify the defence contention that the evidence actually adduced should be disbelieved on that ground alone without examining its merits."
51. Similarly, in Raghubir Singh v. State of U.P. [Raghubir Singh v. State of U.P., (1972) 3 SCC 79 : 1972 SCC (Cri) 399] , it was held that the prosecution is not bound to produce all the witnesses said to have seen the occurrence. Material witnesses considered necessary by the prosecution for unfolding the prosecution story alone need be produced without unnecessary and redundant multiplication of witnesses. In this connection, general reluctance of an average villager to appear as a witness and get himself involved in cases of rival village factions when tempers on both sides are running high, has to be borne in mind.
The Hon'ble Supreme Court in the case of Vijendra Singh v. State of U.P., :(2017) 11 SCC 129 has observed as follows:
30. It is next contended by Mr Giri, learned counsel for the appellants that all the eyewitnesses are related to the deceased Badan Pal and they being interested witnesses, their version requires scrutiny with care, caution and circumspection and when their evidence is scanned with the said parameters, it does not withstand the said test for which the case set forth by the prosecution gets corroded and the principle of beyond reasonable doubt gets shattered. The aforesaid submission, as we perceive, has no legs to stand upon, for PWs 1 to 3 have deposed in detail about the previous enmity between the parties, their presence at the spot, the weapons the accused persons carried, their proximity to the shed and establishment of the identity of all the four accused. They have also testified as regards the deceased lying in a pool of blood. There is no reason why they would implicate the appellants for the murder of their relation leaving behind the real culprit. That apart, nothing has been elicited in the cross-examination for which their testimony can be discredited.
31. In this regard reference to a passage from Hari Obula Reddy v. State of A.P.[Hari Obula Reddy v. State of A.P., (1981) 3 SCC 675 : 1981 SCC (Cri) 795] would be fruitful. In the said case, a three-Judge Bench has ruled that: (SCC pp. 683-84, para 13) "[it cannot] be laid down as an invariable rule that interested evidence can never form the basis of conviction unless corroborated to a material extent in material particulars by independent evidence. All that is necessary is that the evidence of the interested witnesses should be subjected to careful scrutiny and accepted with caution. If on such scrutiny, the interested testimony is found to be intrinsically reliable or inherently probable, it may, by itself, be sufficient, in the circumstances of the particular case, to base a conviction thereon."
It is worthy to note that there is a distinction between a witness who is related and an interested witness. A relative is a natural witness. The Court in Kartik Malhar v.State of Bihar [Kartik Malhar v. State of Bihar, (1996) 1 SCC 614 : 1996 SCC (Cri) 188] has opined that a close relative who is a natural witness cannot be regarded as an interested witness, for the term "interested" postulates that the witness must have some interest in having the accused, somehow or the other, convicted for some animus or for some other reason.
60. Therefore, non examination of grand mother or victim and other witnesses pointed by learned Amicus Curiae was not found adversely affecting the prosecution version. Finding of the trial court in this regard is also recorded in correct perspective. P.W.1 complainant, witness P.W.2 and witness P.W.3 are the natural witnesses and their presence at the place of occurrence cannot be doubted.
61. The last argument put forth by the learned Amicus Curiae was also considered by the trial court that in the statement recorded under Section 313 Cr.P.C. the appellant has stated that he sold his agricultural field for consideration of amount of Rs.40,000/- and this amount was handed over to the complainant Dinesh by him for keeping it safe. Learned trial court has recorded the finding that no such documentary evidence or other evidence was adduced in defence by the appellant. It is pertinent to mention her that no specific suggestion was put forth by the learned Amicus Curiae before P.W.1, the complainant, P.W.2 and P.W.3, witnesses that amount of Rs.40,000/- consideration of sale of agricultural field owned by appellant was handed over to the complainant Dinesh and which was not refunded by the complainant. Learned trial court took notice of the statement of appellant recorded under Section 313 Cr.P.C. in this regard, and found that the appellant denied to adduce any defence evidence.
62. The appellant has nowhere in his statement recorded under Section 313 Cr.P.C. has stated that, why this amount was handed over to P.W.1 by him. He owned agricultural field which was allegedly sold by him.
63. Therefore, appellant was not able to prove this fact that amount of Rs.40,000/- sale consideration of his agricultural field was ever handed over to the complainant P.W.1 for keeping it in his safe custody. It is relevant to mention here that only suggestion was given to P.W.1 that he was having friendly relationship with the appellant and due to quarrel occurred afterwards, he has falsely implicated the appellant in this crime. Thus, defence version was not put forth by the learned Amicus Curiae before P.W.1.
64. Nobody with the object that amount received from the appellant ought not to be refunded by the complainant, would involve her tender age daughter, i.e., 4 years with incorrect allegation of rape committed by the appellant. This argument put forth by the learned Amicus Curiae was rejected by the trial court that appellant was falsely implicated by P.W.1 complainant, Dinesh, with the object that amount of Rs.40,000/- would not be refunded by him to the appellant.
65. Learned Amicus Curiae before this Court has confined his arguments only on the point of quantum of punishment/ sentence awarded against the appellant and submitted that life imprisonment has only been awarded considering the provisions of Section 3(2)(v) of S.C./S.T. Atrocities Act. It is also argued that no aggravating and mitigating circumstances has been mentioned in the impugned judgment and order dated 18.10.2012 by the trial court.
66. It is relevant to mention here that learned trial court has recorded the finding in this regard that provision of Section 3(2)(v) of SC/ST Atrocities Act is not a substantive offence. It is an enabling provision only. The trial court has concentrated on the evidence adduced by the witnesses and the nature of crime committed by the appellant. The trial court has specifically mentioned that victim was aged 4 years and she was unable to resist the act committed by the appellant. She was unable to understand the nature of the act committed by the appellant. The appellant saw the witnesses and left the victim in naked position and had hidden in the sugarcane field, in which, place of occurrence was situated. He was having criminal intent and mental state, while he committed rape with the victim to satisfy his lust. He chose and picked her up from the house of complainant, while she was sleeping with her grand mother.
67. The trial court has also observed that crime of rape is not committed against individual person, but against the whole society. Learned trial court has recorded the aggravating circumstances that punishment is awarded to the criminals so that it may have impact on the society and accused persons of criminal mentality would deter from the punishment awarded and would be reformed.
68. It is also observed by the learned trial court that appellant/accused committed the offence with animal passion and no mitigating facts and circumstances are available in this case. The trial court has convicted the accused for the offence punishable under Section 376 IPC and sentenced him to rigorous imprisonment for life and also imposed fine of Rs.10,000/- against him with default stipulation for serving additional punishment of rigorous imprisonment for two years.
69. On the point of aggravating and mitigating circumstances, one of the Hon'ble Member of the Hon'ble Three Judges Bench of the Apex Court, while concurring the judgment of other Members in the case of Mukesh Vs. State (NCT of Delhi) : (2017) 6 SCC 1 has held as follows:
495. After referring to a catena of judicial pronouncements post Bachan Singh[Bachan Singh v. State of Punjab, (1980) 2 SCC 684 : 1980 SCC (Cri) 580] and Machhi Singh [Machhi Singh v.State of Punjab, (1983) 3 SCC 470 : 1983 SCC (Cri) 681] , in Ramnaresh v. State of Chhattisgarh [Ramnaresh v. State of Chhattisgarh, (2012) 4 SCC 257 : (2012) 2 SCC (Cri) 382] , this Court tried to lay down a nearly exhaustive list of aggravating and mitigating circumstances. It would be apposite to refer to the same here: (SCC pp. 285-86, para 76) "Aggravating circumstances (1) The offences relating to the commission of heinous crimes like murder, rape, armed dacoity, kidnapping, etc. by the accused with a prior record of conviction for capital felony or offences committed by the person having a substantial history of serious assaults and criminal convictions.
(2) The offence was committed while the offender was engaged in the commission of another serious offence.
(3) The offence was committed with the intention to create a fear psychosis in the public at large and was committed in a public place by a weapon or device which clearly could be hazardous to the life of more than one person.
(4) The offence of murder was committed for ransom or like offences to receive money or monetary benefits.
(5) Hired killings.
(6) The offence was committed outrageously for want only while involving inhumane treatment and torture to the victim.
(7) The offence was committed by a person while in lawful custody.
(8) The murder or the offence was committed to prevent a person lawfully carrying out his duty like arrest or custody in a place of lawful confinement of himself or another. For instance, murder is of a person who had acted in lawful discharge of his duty under Section 43 of the Code of Criminal Procedure. When the crime is enormous in proportion like making an attempt of murder of the entire family or members of a particular community. When the victim is innocent, helpless or a person relies upon the trust of relationship and social norms, like a child, helpless woman, a daughter or a niece staying with a father/uncle and is inflicted with the crime by such a trusted person.
(9) When murder is committed for a motive which evidences total depravity and meanness.
(10) When there is a cold-blooded murder without provocation.
(11) The crime is committed so brutally that it pricks or shocks not only the judicial conscience but even the conscience of the society.
Mitigating circumstances (1) The manner and circumstances in and under which the offence was committed, for example, extreme mental or emotional disturbance or extreme provocation in contradistinction to all these situations in normal course.
(2) The age of the accused is a relevant consideration but not a determinative factor by itself.
(3) The chances of the accused of not indulging in commission of the crime again and the probability of the accused being reformed and rehabilitated.
(4) The condition of the accused shows that he was mentally defective and the defect impaired his capacity to appreciate the circumstances of his criminal conduct.
(5) The circumstances which, in normal course of life, would render such a behaviour possible and could have the effect of giving rise to mental imbalance in that given situation like persistent harassment or, in fact, leading to such a peak of human behaviour that, in the facts and circumstances of the case, the accused believed that he was morally justified in committing the offence.
(6) Where the court upon proper appreciation of evidence is of the view that the crime was not committed in a preordained manner and that the death resulted in the course of commission of another crime and that there was a possibility of it being construed as consequences to the commission of the primary crime.
(7) Where it is absolutely unsafe to rely upon the testimony of a sole eyewitness though the prosecution has brought home the guilt of the accused."
496. Similarly, this Court in Sangeet v. State of Haryana [Sangeet v. State of Haryana, (2013) 2 SCC 452 : (2013) 2 SCC (Cri) 611], extensively analysed the evolution of sentencing policy in India and stressed on the need for further evolution. In para 77, this Court emphasised on making the sentencing process a principled one, rather than Judge-centric one and held that a re-look is needed at some conclusions that have been taken for granted and we need to continue the development of the law on the basis of experience gained over the years and views expressed in various decisions of this Court.
497. As dealing with sentencing, courts have thus applied the "Crime test", "Criminal test" and the "Rarest of the rare test", the tests examine whether the society abhors such crimes and whether such crimes shock the conscience of the society and attract intense and extreme indignation of the community. Courts have further held that where the victims are helpless women, children or old persons and the accused displayed depraved mentality, committing crime in a diabolic manner, the accused should be shown no remorse and death penalty should be awarded. Reference may be made to Holiram Bordoloi v. State of Assam [Holiram Bordoloi v.State of Assam, (2005) 3 SCC 793 : 2005 SCC (Cri) 915] (SCC paras 15-17),Ankush Maruti Shinde v. State of Maharashtra [Ankush Maruti Shinde v. State of Maharashtra, (2009) 6 SCC 667 : (2009) 3 SCC (Cri) 308] (SCC paras 31-34),Kamta Tiwari v. State of M.P. [Kamta Tiwari v. State of M.P., (1996) 6 SCC 250 : 1996 SCC (Cri) 1298] (SCC paras 7-8), State of U.P. v. Satish [State of U.P. v. Satish, (2005) 3 SCC 114 : 2005 SCC (Cri) 642] (SCC paras 24-31), Sunder v.State [Sunder v. State, (2013) 3 SCC 215 : (2013) 3 SCC (Cri) 98] (SCC paras 36-38, 42-42.7, 43), Sevaka Perumal v. State of T.N. [Sevaka Perumal v. State of T.N., (1991) 3 SCC 471 : 1991 SCC (Cri) 724] (SCC paras 8-10, 12) and Mofil Khan v.State of Jharkhand [Mofil Khan v. State of Jharkhand, (2015) 1 SCC 67 : (2015) 1 SCC (Cri) 556] (SCC paras 63-65).
498. Even the young age of the accused is not a mitigating circumstance for commutation to life, as has been held in Bhagwan Swarup v. State of U.P.[Bhagwan Swarup v. State of U.P., (1971) 3 SCC 759 : 1972 SCC (Cri) 71] (SCC para 5), Deepak Rai v. State of Bihar [Deepak Rai v. State of Bihar, (2013) 10 SCC 421 : (2014) 1 SCC (Cri) 52] (SCC paras 91-100) and Shabnam v. State of U.P.[Shabnam v. State of U.P., (2015) 6 SCC 632 : (2015) 3 SCC (Cri) 309] (SCC para 36).
505. In Dhananjoy Chatterjee v. State of W.B. [Dhananjoy Chatterjee v. State of W.B., (1994) 2 SCC 220 : 1994 SCC (Cri) 358], a security guard who was entrusted with the security of a residential apartment had raped and murdered an eighteen-year-old inhabitant of one of the flats in the said apartment, between 5.30 p.m. and 5.45 p.m. The entire case of the prosecution was based on circumstantial evidence. However, the Court found that it was a fit case for imposing death penalty. Following observation of the Court while imposing death penalty is worth quoting: (SCC p. 239, paras 14-15) "14. In recent years, the rising crime rate--particularly violent crime against women has made the criminal sentencing by the courts a subject of concern. Today there are admitted disparities. Some criminals get very harsh sentences while many receive grossly different sentence for an essentially equivalent crime and a shockingly large number even go unpunished, thereby encouraging the criminal and in the ultimate making justice suffer by weakening the system's credibility. Of course, it is not possible to lay down any cut and dry formula relating to imposition of sentence but the object of sentencing should be to see that the crime does not go unpunished and the victim of crime as also the society has the satisfaction that justice has been done to it. In imposing sentences, in the absence of specific legislation, Judges must consider variety of factors and after considering all those factors and taking an overall view of the situation, impose sentence which they consider to be an appropriate one. Aggravating factors cannot be ignored and similarly mitigating circumstances have also to be taken into consideration.
15. In our opinion, the measure of punishment in a given case must depend upon the atrocity of the crime; the conduct of the criminal and the defenceless and unprotected state of the victim. Imposition of appropriate punishment is the manner in which the courts respond to the society's cry for justice against the criminals. Justice demands that courts should impose punishment befitting the crime so that the courts reflect public abhorrence of the crime. 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 appropriate punishment."
(emphasis supplied)
509. Another significant development in the sentencing policy of India is the "victim-centric" approach, clearly recognised in Machhi Singh [Machhi Singh v. State of Punjab, (1983) 3 SCC 470 : 1983 SCC (Cri) 681] and re-emphasized in a plethora of cases. It has been consistently held that the courts have a duty towards society and that the punishment should be corresponding to the crime and should act as a soothing balm to the suffering of the victim and their family. [Ref.: Gurvail Singh v. State of Punjab [Gurvail Singh v. State of Punjab, (2013) 2 SCC 713 : (2013) 2 SCC (Cri) 864] ; Mofil Khan v. State of Jharkhand [Mofil Khan v. State of Jharkhand, (2015) 1 SCC 67 : (2015) 1 SCC (Cri) 556] and Purushottam Dashrath Borate v.State of Maharashtra [Purushottam Dashrath Borate v. State of Maharashtra, (2015) 6 SCC 652 : (2015) 3 SCC (Cri) 326] .] The courts while considering the issue of sentencing are bound to acknowledge the rights of the victims and their family, apart from the rights of the society and the accused. The agony suffered by the family of the victims cannot be ignored in any case. In Mofil Khan [Mofil Khan v. State of Jharkhand, (2015) 1 SCC 67 : (2015) 1 SCC (Cri) 556], this Court specifically observed that "it would be the paramount duty of the Court to provide justice to the incidental victims of the crime -- the family members of the deceased persons.
515. In Purushottam Dashrath Borate v. State of Maharashtra [Purushottam Dashrath Borate v. State of Maharashtra, (2015) 6 SCC 652 : (2015) 3 SCC (Cri) 326], this Court held that age of the accused or family background of the accused or lack of criminal antecedents cannot be said to be the mitigating circumstance. It cannot also be considered as mitigating circumstance, particularly taking into consideration, the nature of heinous offence and cold and calculated manner in which it was committed by the accused persons.
516. Society's reasonable expectation is that deterrent punishment commensurate with the gravity of the offence be awarded. When the crime is brutal, shocking the collective conscience of the community, sympathy in any form would be misplaced and it would shake the confidence of public in the administration of criminal-justice system. As held in Om Prakash v. State of Haryana [Om Prakash v. State of Haryana, (1999) 3 SCC 19 : 1999 SCC (Cri) 334] , the Court must respond to the cry of the society and to settle what would be a deterrent punishment for what was an apparently abominable crime.
70. For appreciating the case law relied upon by the learned counsel for appellant in correct perspective, the following case laws are also relevant regarding the offence of heinous crime of rape with a victim child of tender age. Hon'ble Supreme Court has elaborated the aggravating and mitigating circumstances to be considered in these case laws although out of these case laws, some case laws relate to rape and murder of child victim but the facts and circumstances has been considered by the Hon'ble Supreme Court of these cases, which are as follows:
In the case of Mukesh v. State (NCT of Delhi) (supra), Hon'ble Three Judges Bench of Hon'ble Apex Court held as under-
350. In Laxman Naik v. State of Orissa [Laxman Naik v. State of Orissa, (1994) 3 SCC 381 : 1994 SCC (Cri) 656], the Court commenced the judgment with the following passage: (SCC p. 383, para 1) "1. The present case before us reveals a sordid story which took place sometime in the afternoon of 17-2-1990, in which the alleged sexual assault followed by brutal and merciless murder by the dastardly and monstrous act of abhorrent nature is said to have been committed by the appellant herein who is none else but an agnate and paternal uncle of the deceased victim Nitma, a girl of the tender age of 7 years who fell a prey to his lust which sends shocking waves not only to the judicial conscience but to everyone having slightest sense of human values and particularly to the blood relations and the society at large."
351. ....Elaborating further, the Court held thus: (Laxman Naik case [Laxman Naik v. State of Orissa, (1994) 3 SCC 381 : 1994 SCC (Cri) 656], SCC p. 393, para 27) "27. The hard facts of the present case are that the appellant Laxman is the uncle of the deceased and almost occupied the status and position that of a guardian. Consequently the victim who was aged about 7 years must have reposed complete confidence in the appellant and while reposing such faith and confidence in the appellant must have believed in his bona fides and it was on account of such a faith and belief that she acted upon the command of the appellant in accompanying him under the impression that she was being taken to her village unmindful of the preplanned unholy designs of the appellant. The victim was a totally helpless child there being no one to protect her in the desert where she was taken by the appellant misusing her confidence to fulfil his lust. It appears that the appellant had preplanned to commit the crime by resorting to diabolical methods and it was with that object that he took the girl to a lonely place to execute his dastardly act."
After so stating, the Court, while affirming the death sentence, opined that: (SCC pp. 393-94, para 28) "28. ... The victim of the age of Nitma could not have even ever resisted the act with which she was subjected to. The appellant seems to have acted in a beastly manner as after satisfying his lust he thought that the victim might expose him for the commission of the offence of forcible rape on her to the family members and others, the appellant with a view to screen the evidence of his crime also put an end to the life of an innocent girl who had seen only seven summers. The evidence on record is indicative of the fact as to how diabolically the appellant had conceived of his plan and brutally executed it and such a calculated, cold-blooded and brutal murder of a girl of a very tender age after committing rape on her would undoubtedly fall in the category of the rarest of rare cases attracting no punishment other than the capital punishment and consequently we confirm the sentence of death imposed upon the appellant for the offence under Section 302 of the Penal Code."
354. .....the Court ruled thus: (Rajendra case [Rajendra Pralhadrao Wasnik v. State of Maharashtra, (2012) 4 SCC 37 : (2012) 2 SCC (Cri) 30] , SCC p. 50, paras 37-38) "37. When the Court draws a balance sheet of the aggravating and mitigating circumstances, for the purposes of determining whether the extreme sentence of death should be imposed upon the accused or not, the scale of justice only tilts against the accused as there is nothing but aggravating circumstances evident from the record of the Court. In fact, one has to really struggle to find out if there were any mitigating circumstances favouring the accused.
38. Another aspect of the matter is that the minor child was helpless in the cruel hands of the accused. The accused was holding the child in a relationship of "trust-belief" and "confidence", in which capacity he took the child from the house of PW 2. In other words, the accused, by his conduct, has belied the human relationship of trust and worthiness. The accused left the deceased in a badly injured condition in the open fields without even clothes. This reflects the most unfortunate and abusive facet of human conduct, for which the accused has to blame no one else than his own self."
358. Keeping in view the aforesaid authorities, the Court, in Vasanta Sampat Dupare v. State of Maharashtra [Vasanta Sampat Dupare v. State of Maharashtra, (2015) 1 SCC 253 : (2015) 1 SCC (Cri) 624] , proceeded to adumbrate what is the duty of the Court when the collective conscience is shocked because of the crime committed and observed: (SCC p. 283, para 57) "57. ... When the crime is diabolical in nature and invites abhorrence of the collective, it shocks the judicial conscience and impels it to react keeping in view the collective conscience, cry of the community for justice and the intense indignation the manner in which the brutal crime is committed. We are absolutely conscious that Judges while imposing sentence, should never be swayed away by any kind of individual philosophy and predilections. It should never have the flavour of Judge-centric attitude or perception. It has to satisfy the test laid down in various precedents relating to the rarest of the rare case. We are also required to pose two questions that has been stated in Machhi Singh case[Machhi Singh v. State of Punjab, (1983) 3 SCC 470 : 1983 SCC (Cri) 681] ."
359. In Vasanta Sampat Dupare case [Vasanta Sampat Dupare v. State of Maharashtra, (2015) 1 SCC 253 : (2015) 1 SCC (Cri) 624], the Court dwelt upon the manner in which the crime was committed and how a minor girl had become a prey of the sexual depravity and was injured by the despicable act of the accused to silence the voice so that there would be no evidence. Dealing with the same, the Court referred to earlier judgments and held: (SCC pp. 283-84, paras 58-59) "58. Presently, we shall proceed to dwell upon the manner in which the crime was committed. Materials on record clearly reveal that the appellant was well acquainted with the inhabitants of the locality and as is demonstrable he had access to the house of the father of the deceased and the children used to call him "uncle". He had lured the deceased to go with him to have chocolates. It is an act of taking advantage of absolute innocence. He had taken the deceased from place to place by his bicycle and eventually raped her in a brutal manner, as if he had an insatiable and ravenous appetite. The injuries caused on the minor girl are likely to send a chill in the spine of the society and shiver in the marrows of human conscience. He had battered her to death by assaulting her with two heavy stones. The injured minor girl could not have shown any kind of resistance. It is not a case where the accused had a momentary lapse. It is also not a case where the minor child had died because of profuse bleeding due to rape but because of the deliberate cruel assault by the appellant. After the savage act was over, the coolness of the appellant is evident, for he washed the clothes on the tap and took proper care to hide things. As is manifest, he even did not think for a moment the trauma and torture that was caused to the deceased. The gullibility and vulnerability of the four year girl, who could not have nurtured any idea about the maladroitly designed biological desires of this nature, went with the uncle who extinguished her life-spark. The barbaric act of the appellant does not remotely show any concern for the precious life of a young minor child who had really not seen life. The criminality of the conduct of the appellant is not only depraved and debased, but can have a menacing effect on the society. It is calamitous.
59. In this context, we may fruitfully refer to a passage from Shyam Narain v.State (NCT of Delhi) [Shyam Narain v. State (NCT of Delhi), (2013) 7 SCC 77 : (2013) 3 SCC (Cri) 1] , wherein it has been observed as follows: (SCC p. 81, para 1) ''1. The wanton lust, vicious appetite, depravity of senses, mortgage of mind to the inferior endowments of nature, the servility to the loathsome beast of passion and absolutely unchained carnal desire have driven the appellant to commit a crime which can bring in a "tsunami" of shock in the mind of the collective, send a chill down the spine of the society, destroy the civilised stems of the milieu and comatose the marrows of sensitive polity.' In the said case, while describing the rape on an eight-year-old girl, the Court observed: (Shyam Narain case [Shyam Narain v. State (NCT of Delhi), (2013) 7 SCC 77 : (2013) 3 SCC (Cri) 1] , SCC p. 88, para 26) ''26. ... Almost for the last three decades, this Court has been expressing its agony and distress pertaining to the increased rate of crimes against women. The eight-year-old girl, who was supposed to spend time in cheerfulness, was dealt with animal passion and her dignity and purity of physical frame was shattered. The plight of the child and the shock suffered by her can be well visualised. The torment on the child has the potentiality to corrode the poise and equanimity of any civilised society. The age-old wise saying that "child is a gift of the providence" enters into the realm of absurdity. The young girl, with efflux of time, would grow with a traumatic experience, an unforgettable shame. She shall always be haunted by the memory replete with heavy crush of disaster constantly echoing the chill air of the past forcing her to a state of nightmarish melancholia. She may not be able to assert the honour of a woman for no fault of hers.' "
360. Elucidating further, the Court held: (Vasanta case [Vasanta Sampat Duparev. State of Maharashtra, (2015) 1 SCC 253 : (2015) 1 SCC (Cri) 624] , SCC pp. 284-85, paras 60-62)
"60. In the case at hand, as we find, not only was the rape committed in a brutal manner but murder was also committed in a barbaric manner. The rape of a minor girl child is nothing but a monstrous burial of her dignity in the darkness. It is a crime against the holy body of a girl child and the soul of society and such a crime is aggravated by the manner in which it has been committed. The nature of the crime and the manner in which it has been committed speaks about its uncommonness. The crime speaks of depravity, degradation and uncommonality. It is diabolical and barbaric. The crime was committed in an inhuman manner. Indubitably, these go a long way to establish the aggravating circumstances.
61. We are absolutely conscious that mitigating circumstances are to be taken into consideration. The learned counsel for the appellant pointing out the mitigating circumstances would submit that the appellant is in his mid-fifties and there is possibility of his reformation. Be it noted, the appellant was aged about forty-seven years at the time of commission of the crime. As is noticeable, there has been no remorse on the part of the appellant. There are cases when this Court has commuted the death sentence to life finding that the accused has expressed remorse or the crime was not premeditated. But the obtaining factual matrix when unfolded stage by stage would show the premeditation, the proclivity and the rapacious desire. The learned counsel would submit that the appellant had no criminal antecedents but we find that he was a history-sheeter and had a number of cases pending against him. That alone may not be sufficient. The appalling cruelty shown by him to the minor girl child is extremely shocking and it gets accentuated, when his age is taken into consideration. It was not committed under any mental stress or emotional disturbance and it is difficult to comprehend that he would not commit such acts and would be reformed or rehabilitated. As the circumstances would graphically depict, he would remain a menace to society, for a defenceless child has become his prey. In our considered opinion, there are no mitigating circumstances.
62. As we perceive, this case deserves to fall in the category of the rarest of rare cases. It is inconceivable from the perspective of the society that a married man aged about two scores and seven makes a four-year minor innocent girl child the prey of his lust and deliberately causes her death. A helpless and defenceless child gets raped and murdered because of the acquaintance of the appellant with the people of the society. This is not only betrayal of an individual trust but destruction and devastation of social trust. It is perversity in its enormity. It irrefragably invites the extreme abhorrence and indignation of the collective. It is an anathema to the social balance. In our view, it meets the test of the rarest of the rare case and we unhesitatingly so hold."
361. In Vasanta Sampat Dupare case [Vasanta Sampat Dupare v. State of Maharashtra, (2017) 6 SCC 631] , review petitions bearing Review Petitions (Criminal) Nos. 637-38 of 2015 was filed which has been recently dismissed. U.U. Lalit, J., authoring the judgment, has held:
"20. It is thus well settled, ''the court would consider the cumulative effect of both the aspects (namely, aggravating factors as well as mitigating circumstances) and it may not be very appropriate for the court to decide the most significant aspect of sentencing policy with reference to one of the classes completely ignoring other classes under other heads and it is the primary duty of the court to balance the two.' Further, ''it is always preferred not to fetter the judicial discretion by attempting to make excessive enumeration, in one way or another; and that both aspects, namely, aggravating and mitigating circumstances have to be given their respective weightage and that the court has to strike the balance between the two and see towards which side the scale/balance of justice tilts.' With these principles in mind we now consider the present review petition.
21. The material placed on record shows that after the judgment [Vasanta Sampat Dupare v. State of Maharashtra, (2015) 1 SCC 253 : (2015) 1 SCC (Cri) 624] under review, the petitioner has completed Bachelors Preparatory Programme offered by the Indira Gandhi National Open University enabling him to prepare for Bachelor level study and that he has also completed the Gandhi Vichar Pariksha and had participated in drawing competition organised sometime in January 2016. It is asserted that the jail record of the petitioner is without any blemish. The matter is not contested as regards Conditions (1), (2), (5), (6) and (7) as stated in para 206 of the decision in Bachan Singh [Bachan Singh v. State of Punjab, (1980) 2 SCC 684 : 1980 SCC (Cri) 580] but what is now being projected is that there is a possibility of the accused being reformed and rehabilitated. Though these attempts on part of the petitioner are after the judgment [Vasanta Sampat Dupare v. State of Maharashtra, (2015) 1 SCC 253 : (2015) 1 SCC (Cri) 624] under review, we have considered the material in that behalf to see if those circumstances warrant a different view. We have given anxious consideration to the material on record but find that the aggravating circumstances, namely, the extreme depravity and the barbaric manner in which the crime was committed and the fact that the victim was a helpless girl of four years clearly outweigh the mitigating circumstances now brought on record. Having taken an overall view of the matter, in our considered view, no case is made out to take a different view in the matter. We, therefore, affirm the view taken in the judgment [Vasanta Sampat Dupare v. State of Maharashtra, (2015) 1 SCC 253 : (2015) 1 SCC (Cri) 624] under review and dismiss the present review petition."
71. We have found the following aggravating circumstances on the basis of evidence adduced on behalf of prosecution:
(i) Victim, aged 4 years, was sleeping with her grand mother Smt. Makhana on the date of incident dated 13.07.2008 at about 3:00 a.m. in the house of complainant P.W.1, Dinesh.
(ii) The appellant/ accused picked her up (the victim) in the sleeping state from the house of complainant and brought her in the lonely place situated in sugarcane field of Omprakash and committed rape with her below the mango tree.
(iii) The medical report of the victim indicates the violent sexual act committed by the accused/appellant. The victim sustained injuries on her private parts.
(iv) The injuries sustained by the victim are as follows:
(a) Hymen and vagina torn at 6:00 o'clock position.
(b) Anal spherical was torn at 12:00 o'clock position.
(c)Tear of 3.0 c.m. of length extending from hymen to vagina to perineum and anus, wound was unhealthy, faecal matter was coming out of anus through vagina of the victim. Wound was communicating and connecting vagina with anus.
(d) No fresh bleeding was present at the point of time of medical examination conducted on 13.07.2008 at 7:00 p.m. by P.W.6. It is possible that by that time bleeding from private parts of victim would have stopped.
(e) P.W.1 Dinesh and P.W.2 has clarified this fact that victim was admitted for 25 -26 days in KGMC Lucknow for repair of the above mentioned wound and treatement.
(v) The appellant choses the victim aged 4 years, an innocent child, who was incapable to resist in anyway, to satisfy his lust, which shows his criminal mental state and intent.
(vi) The appellant left the victim on the place of occurrence in sugarcane field in naked position and she was dealt with animal passion. Her dignity and purity of physical frame was shattered. The plight of the child and the shock suffered by her can be well visualized.
(vii) The young girl, with efflux of time, would grow with a traumatic experience, an unforgettable shame. She may not be able to assert the honour of a woman for no fault of hers. It is a crime against the holy body of a girl child and the soul of society and such a crime is aggravated by the manner in which it has been committed.
(viii) The appellant left the victim in sugarcane field and exposed her and put her in danger of her life. The injured minor girl could not show any kind of resistance. As observed by Hon'ble Apex Court in Shyam Narain Vs. State (NCT Delhi) (supra), "The wanton lust, vicious appetite, depravity of senses, mortgage of mind to the inferior endowments of nature, the servility to the loathsome beast of passion and absolutely unchained carnal desire, have driven the appellant to commit a crime, which can bring in a tsunami of shock in the mind of the collective, send a chill down the spine of the society, destroy the civilised stems of the milieu and comatose the marrows of sensitive polity".
(ix) The appellant had preplanned and premeditated for committing this crime by resorting to diabolical methods and it was with the object that he took the girl to a lonely place to execute his dastardly act. The victim of tender age of 4 years who fell a prey to appellant's lust, which sends shocking waves not only to the judicial conscience, but to everyone having slightest sense of human values and particularly to the blood relations and the society at large.
(x) The appellant after seeing P.W.1, P.W.2 and P.W.3 witnesses and other persons, who were approaching the place of occurrence, left the victim in naked injured state and had hidden in this sugarcane field, in which place of occurrence was situated. He was arrested near place of occurrence from sugarcane field immediately after incident, i.e., he was arrested on spot.
72. We have also considered mitigating facts and circumstances pointed out by learned Amicus Curiae for reducing sentence awarded against the appellant. Learned Amicus Curiae has submitted that :-
1. Young age, about 24 years, of the accused on date of occurrence.
2. He is resident of rural area and rustic person.
3. He is neighbour of the complainant and resided on date of occurrence in house made by Chhappar, which indicates the financial position/ status of the appellant.
4. The appellant gave amount of Rs.40,000/- to the complainant to keep it in his safe custody. P.W.1 Dinesh, complainant, did not refund this amount to the appellant.
5. The appellant sustained about 10 injuries on the date of occurrence, which has not been explained by the prosecution.
6. The appellant is not having any criminal antecedents.
7. The appellant has served out sentence for about 10 years.
73. As far as learned Amicus Curiae has argued about young age of appellant on the date of incident, he is resident of rural area or rustic person or there is no criminal antecedents of appellant and status of his family, these all facts and circumstances cannot be considered as mitigating factors as held by Hon'ble Apex Court in State of M.P. Vs. Santosh Kumar (supra) and Mohd. Alam Vs. NCT of Delhi (supra) (Para-47), which are relied upon by learned Amicus Curiae and case laws mentioned by us. Para-48 of case of Mohd. Alam (supra) does not help the appellant in any way.
74. The appellant is unable to prove fact of payment of Rs.40,000/- to P.W.1 by him by adducing any defence evidence. Likewise, he has not adduced defence evidence of the concerned doctor, who prepared his alleged injury report or any other defence witness. He is unable to prove this fact also that in which circumstances he sustained these injuries.
75. We have perused the injury report relied upon by the appellant which is as follows:
The accused-appellant Salik Ram was medically examined on 13.07.2008 at 6:45 p.m. by E.M.O., District Hospital, Kheri. The following injuries were found on his body after his arrest by witnesses P.W.1, P.W.2 and P.W.3 and villagers:
(i) Lacerated wound of size 0.5 cm x 0.2 cm x skin deep on right side chin.
(ii) Contusion of size 3 cm x 2.5 cm on outer aspect of right shoulder joint.
(iii) Abraded contusion of size 2.5 cm x 1 cm on posterior aspect of right forearm 5 cm below from elbow joint.
(iv) Abraded contusion 5 cm x 2.5 cm on posterior aspect of right upper arm 8 cm above the elbow joint.
(v) Contusion of size 5.5. cm x 1.5 cm on posterior aspect of left upper arm 3 cm above from elbow joint.
(vi) Contusion of size 1.5 cm x 1 cm on xiphisternun aspect of chest.
(vii) Contusion of size 6 cm x 3 cm on posterior aspect of right side chest in infra sprinateous area.
(viii) Contusion of size 6 cm x 3 cm on posterior aspect of left side chest 4 cm below and medial to injury No.VII.
(ix) Abraded contusion of size 4.5 cm x 1.5 cm on back 7 cm above from lurbosacrial joint.
(x) Compliant of pain left leg no mark of injury is found.
Concerned doctor has opined that above injuries were simple in nature caused by hard object, duration within a day.
76. These injuries are of simple nature, which may be caused by leaves of sugarcane and during course of his arrest by P.W.1, P.W.2 and P.W.3 witnesses and villagers in sugarcane field. P.W.7, I.O. has shown in site plan that sugarcane was broken and ground of this sugarcane field was scratched. The appellant has not mustered courage to appear in witness box before the trial court to prove both these his defence versions. He could have adduced defence evidence himself by taking permission under Section 315 Cr.P.C. from the trial court and prosecution would have opportunity to cross-examine him to test the veracity of his defence versions.
77. Learned Amicus Curiae before the trial court has suggested to the witness P.W.1, Dinesh, the complainant, that appellant Salik Ram was arrested from his house. Some contradictions were pointed out which appeared in the cross-examination of witnesses P.W.1, P.W.2 and P.W.3 that victim was brought at the house of complainant, prior to arrest of the appellant. It is relevant to mention here that appellant, in his statement recorded under Section 313 Cr.P.C., has no where stated that he was arrested from his house. He has only stated that amount of Rs.40,000/- was not refunded by the complainant, which was handed over to him for keeping it safe. He has also stated in his statement that he would not adduce any defence evidence. The appellant has not produced any witness regarding the fact that he was arrested from his house by the witnesses P.W.1, P.W.2 and P.W.3.
78. It is relevant to mention here that only suggestion was given to P.W.1 during his cross-examination, which was refuted by him by stating that it is wrong to say that Salik Ram was arrested from his house. He has specifically stated in his cross-examination that he had hidden in sugarcane field after seeing them. The place of occurrence was also situated below the mango tree in this sugarcane field. At this place of occurrence appellant committed rape with his daughter, aged 4 years. In his examination-in-chief, the complainant, P.W.1, has specifically stated that Salik Ram was arrested in the sugarcane field.
79. P.W.2, Jaswant and P.W.3-Rajesh has corroborated the statement of complainant P.W.1 and specifically stated in their examination-in-chief that appellant was arrested in the sugarcane field. The fact stated by P.W.3, Rajesh, in his cross-examination that accused/appellant had hidden in the sugarcane field from, where he was arrested, also corroborates the statement of P.W.1. The fact appeared in cross-examination of P.W.2, Jaswant that victim was brought at the house of complainant prior to arrest of Salik Ram is not material, because presence of P.W.2 on the place of occurrence is established by his examination-in-chief and cross-examination. He has specifically stated in his cross-examination that Salik Ram was arrested by them in the sugarcane field where he committed rape with the victim.
80. On conjoint reading of examination-in-chief and cross-examination of P.W.2 witness, Jaswant, it reveals that after seeing the witnesses, P.W.1, P.W.2 and P.W.3, the appellant had hidden in sugarcane field, from where he was arrested. Therefore, there is no material contradiction in the statements of P.W.1, P.W.2 and P.W.3 regarding the facts and circumstances, in which, appellant was arrested from the sugarcane field.
81. The appellant is himself responsible for his detention by committing heinous offence of rape with tender aged minor victim. He availed reasonable opportunity of hearing during course of trial and he has been convicted after due process of law. There is no possibility of his reform or rehabilitation, because his family members had not supported him during the course of trial and abandoned him. It would be proper and in the interest of justice and society, that he be kept away from society in his life time.
82. Learned Amicus Curiae further argued that trial court has imposed imprisonment for life and imposed fine of Rs.10,000/- also with default stipulation to further undergo rigorous imprisonment for two years. Therefore, there was no occasion for trial court to mention default stipulation, because imprisonment for life was awarded against the appellant.
83. We have perused the provisions of Section 376(2)(f) IPC which is being reproduced as under:
376. Punishment for rape.-
(2) Whoever,
(a) .....
(b) ....
(c) .....
(d) ......
(e) ......
(f) commits rape on a woman when she is under twelve years of age; or
(g) ....
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 for 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.
Explanation1.-.......
Explanation 2.-......
Explanation 3.-.......
84. Hon'ble Supreme Court has specifically observed in case law, Dinesh alias Buddha Vs. State of Rajasthan (supra) that, "even in a case covered under Section 376(2)(f) IPC, imprisonment for life can be awarded, it is to be noted that minimum sentence of 10 years has been statutorily provided and considering the attendant circumstances the imprisonment for life in a given case is permissible(Para-16)".
85. On perusal of provisions of Section 376(2)(f) IPC, it reveal that the trial court is duty bound to impose fine also along with imprisonment for life or minimum sentence for imprisonment for ten years. If fine would not be deposited by an accused, then default stipulation for further undergoing imprisonment can be mentioned/ passed by the trial court. There is no substance in the arguments of learned Amicus Curiae in this regard.
86. We have not found any mitigating facts and circumstances in this case for reducing sentence awarded against him.
87. On the basis of above discussions, facts and circumstances and exposition of law propounded by Hon'ble Supreme Court, impugned judgment and order dated 18.10.2012 cannot be termed as perverse, against law and evidence available on record.
88. This appeal lacks merit, hence accordingly dismissed. The appellant is detained in jail. Copy of judgment be sent to the concerned Jail Superintendent for information to the appellant.
89. Record of trial court be transmitted to the court concerned along with the copy of judgment for information and to take further action.
90. Office is directed to reimburse the appearance fee for conducting this case in favour of Shri R. N. S. Chauhan, learned Amicus Curiae of an amount of Rs.15,000/-(Fifteen Thousand).
Order Date :- 24.2.2018 Mustaqeem