Allahabad High Court
Shyam Lal vs State Of U.P. on 10 December, 2020
Equivalent citations: AIRONLINE 2020 ALL 2468
Bench: Ramesh Sinha, Samit Gopal
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Reserved On: 02.11.2020 Delivered on: 10.12.2020 Court No. - 1 Case :- CRIMINAL APPEAL No. - 2919 of 2009 Appellant :- Shyam Lal Respondent :- State of U.P. Counsel for Appellant :- Neeraj Mishra,A.N. Mishra,Noor Mohammad Counsel for Respondent :- Govt. Advocate Hon'ble Ramesh Sinha,J.
Hon'ble Samit Gopal,J.
(Per Samit Gopal, J. for the Bench)
1. The present appeal arises out of judgment and order dated 28.03.2009 passed by the Sessions Judge, Lalitpur in Session Trial No. 1 of 2008 (State of U.P. Vs. Shyam Lal) whereby the appellant has been convicted under Section 376(2)(f) IPC for life imprisonment and a fine of Rs. 2,000/-. In default of payment of fine, he has been directed to further undergo one year imprisonment.
2. In view of the legislative mandate as contained in Section 228-A of the Indian Penal Code, 1860 and the observations made by the Hon'ble Supreme Court in various judgments the identity of the prosecutrix/victim is not being disclosed and she will be referred to as ''R' hereinafter.
3. The prosecution case as per the First Information Report lodged by Deepak Dheemar/PW-1 is that his daughter ''R' aged about 12 years is mentally deranged, deaf and dumb since birth. On 01.09.2007 at about 12:00 PM ''R' went to the fields but did not return till 02:00 PM, on which, the mother of the first informant namely Smt. Nanhi Bai wife of Nandlal went towards the field to search her and during search when his mother reached at a talab near a drain to his field, she did not find ''R' there, to which, she started search near about wherein at the adjacent field of Harbhajan Dheemar, in which, maize was sown some sound was coming from there, to which, she went inside and saw ''R' lying naked and Shyam Lal the appellant who is the caretaker of the fields of Harbhajan Dheemar was lying over her and was committing rape on her, wherein the mother of the first informant raised hue and cry, consequently, Shyam Lal after wearing his pant ran away and ''R' was lying there in an injured condition and blood was oozing out from her private parts. The incident is said to be of around 02:30 PM. On the shrieks of the mother of the first informant, Kripa Ram PW-4 reached the place of occurrence who also the saw the incident. It is further stated in the FIR that then the mother of the first informant brought ''R' back to the house and gave information about the incident to the villagers as a result of which, the entire village went into silence. The first informant then states that he reached the house at about 07:00 PM, on which, his mother informed him about the whole incident and then he along with his mother and ''R' has reached the police station for lodging of the First Information Report.
4. The application for lodging of the First Information Report was given by the Deepak Dheemar, the father of ''R' which is marked as Exb: Ka-1 to the records. On the basis of the said application, a First Information Report was registered on 01.09.2007 at about 20:30 hrs. (08:30 PM) at Police Station Bar, District Lalitpur as Case Crime No. 596 of 2007 under Section 376 IPC against Shyam Lal. The said First Information Report is marked as Exb: Ka-6 to the records. The prosecutrix/victim ''R' was medically examined on 02.09.2007 at 01:00 PM by Doctor Alka Jain/PW-3 at District Women Hospital, Lalitpur. The medical examination report is marked as Exb: Ka-4 to the records. The doctor conducting the medical examination report found injuries on the body of the deceased and also on her private parts. The external injuries found on the person of the victim ''R' are extracted hereinbelow:-
"1. Multiple soft scabbed abrasion in an area of 5.0 cms x 4.0 cms on right side face, 3.0 cms below right ear and 3.0 cms away from right angle of mouth.
2. Multiple soft scabbed abrasion in an area of 4.0 cms x 3.0 cms on left side face, 2.0 cms away from left angle of mouth.
3. Soft multiple scabbed abrasion in an area of 3.0 cms x 2.0 cms on right side of neck just below cheek."
The injuries found on the private parts of the victim are as follows:
"1. A lacerated wound at 6 O'Clock position at post-commissure above 1.0 cm x ½ cm ½ cm extending up in vagina.
2. A lacerated wound of floor of vagina extending from 5 to 8 O'Clock position above 2.5 cms x 2.5 cms x 1.0 cm deep.
3. Annuler tear hymen involving right ¼ to lower ½."
The doctor conducting the medical examination of the victim had put her on sedation and then had examined her. The same is specifically mentioned in the said medical examination report. The clothes worn by ''R' were found blood stained by the doctor and as such she took the underwear, shirt and a wrapped towel on the waist and sealed them.
5. For the conclusion after medical examination, the doctor has stated that the supplementary report will be given after the reports of vaginal smear and radiology are seen. Further, she states that the external injuries are simple in nature caused by hard and blunt object and the duration of the injuries is above one day. For the injuries on her private parts, it is concluded that the same are simple in nature caused by friction against hard and blunt object and the duration is above one day.
A supplementary report dated 06.09.2007 was given by doctor Alka Jain with the following opinion:
" Opinion- Her injury on private parts are simple in nature caused by friction against hard blunt object, probability of sexual on may be there. Her age by appearance, physical examination and radiological examination appeared to be about twelve years."
6. The clothes of the victim which sealed by the doctor were sent to the chemical examiner for analysis. The chemical examiner gave report dated 05.10.2007 which is Exb: Ka-13 to the records, in which, in Article No. 1 being the underwear of the victim spermatozoa was found. In the Article Nos. 2 and 3 being the t-shirt and an angocha, no spermatozoa was found. On Article No. 1 human semen was found and on Article Nos. 1 and 3 human blood was found. On Article No. 4 being blood stained mud and blood stained grass along with plain mud, plain grass disintegrated blood was found as such it was not possible to opine about its origin.
7. The investigation concluded and a Charge Sheet No. 91 of 2007 dated 08.09.2007 was filed under Section 376 IPC against the appellant, the same is Exb: Ka-10 to the records.
8. The trial court vide its order dated 22.01.2008 framed charges under Section 376(2)(f) IPC against the accused Shyam Lal. The accused pleaded not guilty and claimed to be tried. He has led no defence evidence.
9. The prosecution in order to prove its case produced Deepak Dheemar as PW-1 who is the father of the prosecutrix/victim and the first informant. PW-2 Smt. Nanni Bai is the grand mother of ''R' and an eye witness of the incident. Dr. Smt. Alka Jain/PW-3 is the doctor who conducted the medical examination of ''R' on 02.09.2007 at about 01:00 PM and also gave the supplementary medical examination report dated 06.09.2007. PW-4/Kripa Ram is a co-villager and also claims to have reached the place of occurrence on hearing the shrieks and shouts of Smt. Nanni Bai PW-2 as he was working in the same field. Sant Ram, Head Constable/PW-5 took the victim/prosecutrix for medical examination report. Shiv Shankar Tiwari, Sub Inspector/PW-6 is the Investigating Officer of the case who arrested the accused on 02.09.2007 and concluded the investigation and filed charged sheet. Toran Singh, Constable PW- 7 took articles in a sealed condition to the chemical analyst for analysis.
10. The trial court after considering the entire evidence on record came to the conclusion that there is sufficient evidence against the accused-appellant Shyam Lal for committing rape on ''R' and thus convicted the accused as stated above.
11. We have heard Sri Noor Mohammad, learned counsel for the appellant and Mrs. Archana Singh, learned Additional Government Advocate for the State and perused the record.
12. Learned counsel for the appellant at the very outset argued that he is not challenging the conviction as recorded by the trial court vide the impugned judgment and order dated 28.03.2009. He argues that only the quantum of sentence as awarded to the accused appellant Shyam Lal being life imprisonment is being challenged by him as the same is excessive and since the appellant accused is in jail since 02.09.2007 and has served out about 13 years in jail, the sentence be reduced from life imprisonment. Learned counsel for the appellant has in support of his argument relating to the quantum of punishment has relied upon the judgment of Rajendra Datta Zarekar Vs. State of Goa: 2008 (1) All JIC 123 and Bavo @ Manubhai Ambalal Thakore Vs. State of Gujarat: 2012 (1) All JIC 319.
13. Per contra, learned Additional Government Advocate for the State of U.P. opposed the sole submission of the learned counsel for the appellant on the ground that the present case is a case which in all prospects is a barbaric action by the accused. It is further argued that ''R' was a mentally deranged, deaf and dumb girl and also a minor being about 12 years of age and looking to the injuries received by her both on her body and private parts along with the report of the chemical analyst corroborating the incident. The appellant does not deserve any sympathy whatsoever. In support of his submission, she has placed reliance upon the judmgent of the Apex Court in the case of Shyam Narain Vs. State of NCT of Delhi: AIR 2013 SC 2209. It is further argued that the appeal be dismissed and no sympathy be extended to the accused-appellant.
14. PW-1 Deepak Dheemar is the first informant and the father of ''R'. He states that his daughter is aged about 12 years. She is deaf, dumb and mentally deranged and does not understand anything since birth. He further states about the said incident as narrated by him in the First Information Report which was got registered by him by moving an application which is marked as Exb: No. Ka-1 to the records. He further states that he had given an application to the Constable Clerk at the Police Station and had received the chik and copy of the same. He further states that his daughter along with his mother were taken to P.H.C., Bar for treatment, who were accompanied by Constable from where they were taken to District Hospital, Lalitpur and from there they were sent to Jhansi and even there the medical examination was not done and they were sent back to Lalitpur and then on the next day, the medical examination was done. He further states that on the next day of the incident, the Investigating Officer inspected the place of occurrence and took blood stained mud and grass and also plain mud and grass and kept them in different boxes and sealed it. A memo about the said recovery was prepared which was read out to them and then his mother affixed her thumb impression and put her signature. The recovery memo is marked as Exb: Ka-2 to the records. The clothes of ''R' which was taken into custody were got identified by him in court which were marked as material Exb: Ka-1, 2 and 3 being the underwear, t-shirt and an angocha respectively. The blood stained mud and grass and plain mud and grass were also identified by him in court which were marked as material Exb: Ka-4 and 5 respectively.
15. In his cross examination, he stated that he is not an eye witness to the occurrence on the day of the incident. He had gone Teekamgarh and he had returned about 07:00 PM. When he returned, it was dark and the lights were on. He further states that the police station is at a distance of about one furlong from his house. His father is working in the Health Department and goes on his duty at about 08-09 AM and returns at about 07-08 PM. He works in the Health Center, Bar. He states that he is working as a labour and has failed in class 10th . He further states that his mother informed him about the incident and then he went to the police station. He states that when he went from his house to the police station uptil that time, his father had not come back. His mother had told him that there was a lot of resentment about the incident amongst his neighbours. He states that he did not state in the FIR lodged by him that his girl was bleeding from her private parts. He states that when he went to the hospital then his father had come. The field of Harbhajan Dheemar is situated at a distance of about two furlongs from his house. He states that there is a talab between the field of Harbhajan and his field. To go to the field of Harbhajan, talab will not come in between. He further states that he has done his sowing on his own. His daughter used to go to the field daily. To a suggestion that Shyam Lal did not commit rape on his daughter, he denies. Further to the suggestion that Shyam Lal did not go to his field to work as a labour, as a result of which, he was annoyed, he states that the same to be incorrect. He states that Kripa Ram is of his caste but is not his relative. He states that the field of Kripa Ram is in village Dhamna and his field is in village Bar. The distance between the field of Kripa Ram and his field about 1.5 furlong. To a suggestion that Kripa Ram who is his relative and due to said reason, he has been made as a witness, he denies the same. He further denies the suggestion that due to village party bandi, false case has been got registered.
16. Smt. Nanni Bai PW-2 is the grand mother of ''R' and is an eye witness to the incident. She states that ''R' was aged about 13 years, she was mentally deranged, deaf and dumb since birth. She is the daughter of Deepak Dheemar. She further states that ''R' went to the fields at around 12 PM but did not return upto 02:00 PM, to which, she went to search her and did not find her in her field. She then proceeded towards the drain and from the field of Harbhajan near the medh/divider in which maize was sown and from there, some sound was coming, to which, she proceeded to that place and saw ''R' was lying on the field and Shyam Lal was above her and committing rape on her. ''R' was naked. Her underwear was pulled down. On seeing, this she raised hue and cry, on which, Kripa Ram reached there. On seeing of her and Kripa Ram, Shyam Lal pulled up his pant and ran towards the field of Dhruva Maharaj. She went to ''R' and saw blood was oozing out from her private parts. She then went near ''R' dressed her, wrapped an angocha around her. The incident is of about 02:30 PM. Then she, Kripa Ram and ''R' came back to the house. She then informed the persons of Mohalla about the incident. Deepak her son was not at home. Her husband had gone to the village on his duty. Her son had gone Teekamgarh, Madhya Pradesh and he returned back at 07:00PM, on which, she narrated him the entire story. Then, her son took her and ''R' to Bar, where he got a report registered. She states that after lodging of the First Information Report ''R' was sent along with the Police Constable to Primary Health Centre, Bar where the doctor was not present and hence her medical examination could not be done. Then, she was taken to District Women Hospital where also her medical examination was not done and she was taken to Jhansi. As the condition of the victim was not good, she was taken to Jhansi where her treatment was done. In Jhansi, they were asked as to where the incident had taken place, to which, they informed that it was in Lalitpur, on which, they were instructed to go back to Lalitpur and get the medical examination certificate. Then they came back to Lalitpur along with the police personnel and on the next day, ''R' was medically examined at Lalitpur, District Women Hospital.
17. The Investigating Officer inspected the place of occurrence on the next day and took in possession blood stained mud and blood stained grass and plain mud and plain grass and sealed it. She further states to have affixed her thumb impression on the recovery memo and also states that her son had signed on the same. She was read over the recovery memo, to which, she states that it is the same which was marked as Exb: Ka-2 to the records. She identifies the accused present in court as the same person.
18. In her cross examination, she states that ''R' is age aged about 13 years. She went at about 02:00 PM to search her. She states that she reached near ''R' at about 02:30 PM. She then states that the distance between her house and the field is about 250 steps. The field is not visible from her house. There are 2-3 houses in between her house and the field. He further states that the crop of maize was standing in the field at the time of occurrence. She went alone. She found her grand daughter in the field of Harbhajan. Her field is at a distance of about 50-60 steps from the field of Harbhajan. She further states that when one goes from her house then her field will come first and then field of Harbhajan will come. After conducting search in her field, she went to the field of Harbhajan. She states that she did not stay in her field. She further states that she did not ask anyone en-route about her grand daughter and neither did she meet anyone while going for the search. She had searched her grand daughter in the temple and in her field but she could not found her. When she reached the field of Harbhajan, there also she did not see anyone. When she proceeded further 10 steps inside, then she saw that Shyam Lal was over her grand daughter and was committing rape on her. She further states to have seen the incident from a distance of 3-4 steps. She states that as the field was sown with maize as such she could not see it from before but could see after reaching near to the place. She saw the incident alone, after which, she raised a hue and cry and tried to catch Shyam Lal but he ran away. Kripa Ram also had reached there who was also tried to catch Shyam Lal. Kripa Ram had reached there on the hearing shouts raised by the her. Kripa Ram was cutting grass on the other side of the field. She states that when Kripa Ram reached the place of occurrence, then Shyam Lal had started running Kripa Ram ran for about 15 steps to catch Shyam Lal. She further states that then she took ''R' and saw blood was oozing from her private parts and blood was present on the grass also. She states that prior to the present incident, there was no enmity with Shyam Lal. She states to have narrated the incident to the persons of her Mohalla. No medical examination was conducted of ''R' prior to the lodging for the report. She and her son had gone for lodging of the report at about 08:00 pm. Her son had got the report lodged and she had dictated report, which her son had transcribed, the same was written outside the Police Station. When they had gone to lodge the report, a Constable was there and Sub-Inspector was inside the room. The incident was not told to the Inspector but report was given. The victim was also taken to the Police Station. She and ''R' were sitting outside the Police Station. Then, she states that they had started for getting the medical examination done, on the same day for which, they reached P.H.C Bar where they did not meet the doctor and then at about 09:00 PM they went to Lalitpur. In Lalitpur on seeing the condition being critical, she was referred to Jhansi where her treatment was done and medicines were given. Then, they were sent back for Lalitpur and then at Lalitpur District Women Hospital the medical examination was done. The medical examination was done on the next day. The Investigating Officer interrogated her on the day of medical examination. She did not give any statement to any one. She gave her statement to Inspector at the place of occurrence. To a suggestion that no such incident took place with the girl, she denies. To a further suggestion that due to village party bandi, she has given a false statement, she denies.
19. PW-3 Smt. Alka Jain was a Medical Officer at District Women Hospital, Lalitpur. She states that she had conducted the medical examination of ''R' on 02.09.2007 at 01:00 PM. She had examined ''R' both externally and internally and had drawn the medical examination report which is marked as Exb: Ka-4 to the records. The injuries received both on the body and private parts of ''R' were noted by her in report. The said injuries have already been quoted above and as such are not being mentioned herein as being repetitive. She further states to have given a supplementary medical examination report dated 06.09.2007 which is marked as Exb: Ka-5 to the records. The opinion as drawn there has also been reproduced above and is not being mentioned herein again. She states to have taken the clothes of ''R' which were sealed by her and handed over to the police Constable.
20. In her cross examination, she states in categorical terms that the injuries received by ''R' cannot be as a result of her bumping with a bush with thorns while running. She further states that even the said injuries cannot be received as a result of fall from a tree. She states that there can be a difference six hours either ways regarding time during of injuries. To a suggestion that ''R' was habitual to sexual intercourse as her vaginal permitted two fingers, she denies the same and states that the condition of the organ was such because the patient was to be under sedation. She states that no definite opinion about the intercourse can be given. She further states that as per the Expert Report and Radiology Report and general appearance of ''R', she was aged about 12 years. She states that from her opinion, she cannot be said 16 years old. To a suggestion that the injury report is a false report, she denies.
21. Kripa Ram PW-4 is a co-villager who is stated to have reached the place of occurrence on the shouts raised by Smt. Nanni Bai. He states that at about 02:30 PM on the day of occurrence, he was cutting grass in the field of Harbhajan. He heard the shouts of Nanni Bai and immediately went to her and saw Shyam Lal wearing his pant, on which, he chased him and tried to catch him but could not do so. He further states that to have seen ''R' in a naked condition and blood was oozing out from her private parts, on which, he asked Nanni Bai as to what Shyam Lal was doing, to which, Nanni Bai told him that Shyam Lal had climbed over ''R' and was committing rape on her. He states that ''R' was aged about 13 years. He further states that ''R' was mentally deranged, deaf and dumb girl. He states that then Nanni Bai got ''R' wrapped with towel and took her to the house. He also came with them to the house. He states that there was no male member in the house of Nanni Bai at that time. He identifies the accused who is present in court.
22. In his cross examination, he states that he had left his house on the day of occurrence at about 01:30 PM, and on his way, met certain people and spent around 15 minutes with them and then had gone at around 01:45 PM from that place and reached the field of Harbhajan in 5-7 minutes. He further states that he had cut grass for about 30 minutes, when he heard the shrieks of Nanni Bai. He states that when he started from his house, he did not meet Nanni Bai, ''R' and Shyam Lal the accused on the way. When he heard the shrieks of Nanni Bai, he was cutting grass at a distance of about 100 steps from the place from where Nanni Bai had raised the shouts. He could not see Nanni Bai from where he was, neither could have Nanni Bai seen him where he was. He states that there was no other person near about, he had seen Shyam Lal from a distance of about 15-20 steps. When he had reached the place of occurrence, he saw Shyam Lal pulling his pant which was upto the knee and he was semi naked. Shyam Lal started running after seeing him, he ran to catch Shyam Lal for some distance. He ran about 20-25 steps. Shyam Lal ran towards field of Dhruva Maharaj. He further states to have known Shyam Lal since his birth as he was also a resident of the same village. He states that when he reached there, it was about 02:35 PM. He states that Nanni Bai belongs to his same caste as his. He states that he has no relationship with Nanni Bai. He states that his acquittance is with Nanni Bai as because of caste reasons. He states to have not gone to the police station. He states that his statement was recorded by the Investigating Officer after about a week of the incident near the shop of Hari Kishan in Qasba Bar. Apart from him other persons were also interrogated. He then went to his house. He was then never called and never taken any where. At the place where his statement was taken, the same was transcribed therein only. His signature was not taken, he is illiterate and cannot read what is written. To a suggestion that he did not see any such incident and was not present at the place of occurrence, he states to be false. To a further suggestion that he is only stating what he has heard, he states to be incorrect. To a further suggestion that he is giving a false statement at the behest of Nanni Bai, he states to be false.
23. Constable Sant Ram PW-5 states that at the time of occurrence, he was posted as a Constable at Police Station, Bar. On 01.09.2007 at about 08:30 PM, he took ''R' for medical examination and at first went to Primary Health Centre, Bar where the doctor was not available and from there they went to District Women Hospital, Lalitpur where they were referred. On reaching District Women Hospital, Lalitpur since there was excessive bleeding from the private parts of ''R' she was referred to Jhansi and then she was taken to Jhansi. In Jhansi, Medical College, the treatment was done and the doctor said that since it is a case of Lalitpur, the medical examination report may be got prepared from Lalitpur. They gave treatment to ''R' but did not prepare any medical report about which he informed the S.H.O concerned who instructed him to take her Lalitpur. In consequence of which they reached Lalitpur at about 01:00 PM and her medical examination was done on 02.09.2007.
24. In his cross examination, he states that the grand-mother of the girl accompanied them upto P.H.C, Bar and at PHC Bar, the grandfather of the girl met them and he was accompanying them upto Lalitpur and taken to Jhansi and then back to Lalitpur. He states that there was no other female Constable accompanying them.
25. Shiv Shankar, Sub-Inspector/PW-6 was posted as the Sub-Inspector at Police Station, Bar at the date and time time of the occurrence. He is the Investigating Officer of the case. He initially identifies the handwriting of Constable Bhagwat Narain Nayak who was working with him but had died who had transcribed the chik First Information Report, the same was marked as Exb: Ka-6 to the records. He further identifies the handwriting of the said Constable who had transcribed the GD No. 36 at 20:30 hrs on 01.09.2007 at the said Police Station as the kayami GD. He identifies the handwriting of the said person from the original and produces its copy, thus the same is numbered as a true copy to the original and is marked as Exb: Ka-7 to the records. He further identifies the handwriting and signature of the S.H.O Baljeet Singh and proved GD No. 12 transcribed at 09:45 PM at the said Police Station, the same is marked as Exb: Ka-8 to the records. He further states that he took up the investigation of the matter on 01.09.2007 and after recording the chik FIR recorded the statement of the first informant and proceeded towards the place of occurrence in the night. He states that as it was night the spot inspection could not done and then he got involved in tracing the accused on 02.09.2007. He recorded the statement Smt. Nanni Bai, the eye witness to the occurrence and in her presence and on her pointing out inspected the place of occurrence and prepared the site plan which is Exb: Ka- 9 to the records.
26. He further states to have recovered the blood stained mud and grass and plain mud and grass in presence of Smt. Nanni Bai and Deepak Dheemar and sealed the same. The recovery memo was marked as Exb: Ka-12 to the records. On 02.09.2007 at about 05:00 PM, he arrested the accused Shyam Lal from Pulwara Tirahey on the information of police informer and then he was lodged at lock up at the Police Station and his statement was recorded. He asked about the clothes which were worn by the accused at the time of the incident, to which, he stated that the underwear had sustained blood stains, he had burnt it. He further states that 04.09.2007 he transcribed the medical examination report of ''R' in the case diary and then records the statement of Head Constable Bhagwat Narain and Constable Sant Ram on 08.09.2007. The supplementary medical examination report and pathological report was received by him and he transcribed them in the case diary. On the same day, he tried to interrogate ''R' and gives his opinion that as she is mentally deranged and unable to give any statement. She was tried to ask by gesture but she could not give any reply to do. He then records the statement of Kripa Ram and then submitted charge sheet no. 91 of 2007 which is marked as Exb: Ka- 10 to the records. He further states that the material exhibits of the case were sent to the chemical analyst through Constable on 27.09.2007.
27. In his cross examination, he states that he tried to interrogate ''R' at her house but since she was mentally deranged she could not give any statement. He states that he has mentioned in the case diary about his efforts regarding interrogation of ''R'. He states that she was unable to talk, unable to understand gestures but still she gave some gestures and was not able to speak a word. He states that he had examined Kripa Ram and Smt. Nanni Bai at her house. He further states that the statement of Deepak was recorded at the Police Station. He states that at the time of preparation of site plan, Inspector Parashu Ram Pandey, Nanni Bai and Deepak were present there, the same was prepared on 02.09.2007. In the last, to a suggestion that he had done the entire paper work while being at the Police Station, he denies the same. To a further suggestion that as the prosecutrix/victim not being able to give any statement, a false charge sheet has been filed by him, he denies the same.
28. Toran Singh PW-7 was working as a Constable Police at Police Station Bar. He states that on 27.09.2007, he was given two bundles from the maalkhana of Police Station which he received for chemical analyst, Agra from which one bundle related to the present case. The other was of Case Crime No. 631 of 2007. He states that his ravangi was recorded in the GD No. 8 at 06:10 AM by Constable Bhagwat Narain, he identifies the handwriting and signature. The photocopy of the same was produced by him which was marked as Exb: Ka-11. He further states that the said material in a sealed condition was taken by him and delivered by him at the Forensic Science Laboratory, Agra. He states that during the intervening period, the said material was in his supurtagi and he did not let any one see and touch the same. He then identifies proves the return GD dated 29.09.2007 being GD No. 21 transcribed at 10:30 PM by Constable Moharrir, Mathura Prasad, on which, his signature was also there and identifies it, the photocopy of the same was filed by him which was marked as Exb: Ka-12 to the records. He further states that the docket dated 10.09.2007 for the said material was prepared in the name of Constable Umesh Chandra Sharma which was taken by him to Agra but as there were three bundles, to which, an objection was raised there and the material was sent back, then Constable Umesh Chandra Sharma was sent on some other duty by the orders of the DIG and as such a new docket dated 29.06.2007 was prepared in his name. In his cross examination, to a suggestion that the material was not sealed, he denies the same.
29. The accused in his statement recorded under Section 313 Cr.P.C. states that the present case has been instituted due to an old enmity. He states that he had a fight with Deepak Dheeman and due to the said enmity, he has been falsely implicated. He further states that to give no defence evidence.
30. The trial court from the material on record came to the conclusion that the prosecutrix/victim was aged about 12 years on the date of the occurrence. The accused did not challenge the age of the prosecutrix and even no suggestion has been put on behalf of the accused regarding the age of the prosecutrix/victim nor he has been able to prove by any oral or documentary evidence that the prosecutrix/victim was above 12 years of age on the day of the occurrence and as such the age of the prosecutrix/victim was about 12 years and the accused who was charged under the tried sections is found guilty and the prosecution has succeeded in proving the charge against the accused beyond any reasonable doubt and convicted and sentenced him.
31. Learned counsel for the appellant at the very outset argued that he is not challenging the conviction but his argument is only on the quantum of sentence as provided to the appellant which he argues is excessive. Section 376 IPC is as follows:
"Section 376 IPC. Punishment for rape.--
(1) Whoever, except in the cases provided for by sub-section (2), commits rape shall be punished with imprisonment of either description for a term which shall not be less than seven years but which may be for life or for a term which may extend to ten years and shall also be liable to fine unless the women raped is his own wife and is not under twelve years of age, in which cases, he shall be punished with imprisonment of either description for a term which may extend to two years or with fine or with both: Provided that the court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than seven years.
(2) Whoever,--
(a) being a police officer commits rape--
(i) within the limits of the police station to which he is appointed; or
(ii) in the premises of any station house whether or not situated in the police station to which he is appointed; or
(iii) on a woman in his custody or in the custody of a police officer subordinate to him; or
(b) being a public servant, takes advantage of his official position and commits rape on a woman in his custody as such public servant or in the custody of a public servant subordinate to him; or
(c) being on the management or on the staff of a jail, remand home or other place of custody established by or under any law for the time being in force or of a woman's or children's institution takes advantage of his official position and commits rape on any inmate of such jail, remand home, place or institution; or
(d) being on the management or on the staff of a hospital, takes advantage of his official position and commits rape on a woman in that hospital; or
(e) commits rape on a woman knowing her to be pregnant; or
(f) commits rape on a woman when she is under twelve years of age; or
(g) commits gang rape, shall be punished with rigorous imprisonment for a term which shall not be less than ten years but which may be for life and shall also be liable to fine: Provided that the Court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment of either description for a term of less than ten years. Explanation
1.--Where a woman is raped by one or more in a group of persons acting in furtherance of their common intention, each of the persons shall be deemed to have committed gang rape within the meaning of this sub-section. Explanation
2.--"Women's or children's institution" means an institution, whether called an orphanage or a home for neglected woman or children or a widows' home or by any other name, which is established and maintained for the reception and care of woman or children. Explanation 3.--"Hospital" means the precincts of the hospital and includes the precincts of any institution for the reception and treatment of persons during convalescence or of persons requiring medical attention or rehabilitation"
32. The act as it stood gave a punishment of rigorous imprisonment not less than 10 years which may be for life and also liable for fine with a proviso that the Court may for adequate and special reasons to be mentioned in the judgment impose and sentence an imprisonment of either description for a term of less than 10 years. The simple reading of the Section shows to say that the act provides for a minimum sentence of 10 years which may be upto life imprisonment along with fine, with a proviso that for adequate and special reasons to be recorded in the judgment a sentence of imprisonment of either description for a term less than 10 years can also be provided.
33. In the present matter, the learned counsel for the appellant while relying upon the said two judgments which have been referred to above has stated that on the basis of the said two decisions the sentence of life imprisonment as imposed be reduced.
34. In the case of Rajendra Dutt (supra), the accused therein was charged for offence under Section 376(2)(f) and 342 IPC and was acquitted vide judgment and order dated 28.07.2004 passed by the First Adhoc Assistant Sessions Judge, Panaji. In an appeal against the said acquittal, the High Court convicted the appellant under Section 376(2)(f) and 342 IPC and sentenced him to 10 years rigorous and a fine of Rs. 10,000/- under first count and one months rigorous imprisonment and a fine of Rs. 1,000/- under the second count. An appeal was preferred to the Apex Court which was decided by the said judgment. The said appeal was dismissed with the modification in fine of Rs. 10,000/- imposed under Section 376(2)(f) IPC which was reduced to Rs. 1,000/- and a fine of Rs. 1,000/- imposed under Section 342 IPC was set aside. The substantive sentence of ten years rigorous imprisonment awarded under Section 376(2)(f) IPC and one month rigorous imprisonment under Section 342 IPC were maintained.
35. In the other judgment relied by the learned counsel for the appellant Babu @ Mannu (supra), the accused was convicted under Section 376 IPC and 506(2) IPC and sentenced to undergo imprisonment for life with a fine of Rs. 20,000/- in default, to further undergo rigorous imprisonment for three years. The accused therein preferred an appeal before the High Court and the High Court dismissed the appeal and confirmed the sentenced and conviction as awarded by the Additional Sessions Judge against the judgment of the High Court. The accused approached the Apex Court with a limited stand that he is not challenging the conviction but questioning the quantum of sentence only. The Apex Court while deciding the appeal confirmed the conviction as imposed upon the appellant therein, however, the sentence of life imprisonment was modified to rigorous imprisonment for ten years with a fine of Rs. 1,000/- and in default to further undergo rigorous imprisonment one year. The ground which found consideration before the Apex Court is as follows:-
"11) Considering the fact that the victim, in the case on hand, was aged about 7 years on the date of the incident and the accused was in the age of 18/19 years and also of the fact that the incident occurred nearly 10 years ago, the award of life imprisonment which is maximum prescribed is not warranted and also in view of the mandate of Section 376(2)(f) IPC, we feel that the ends of justice would be met by imposing RI for 10 years. Learned counsel appearing for the appellant informed this Court that the appellant had already served nearly 10 years. "
36. The judgment of Rajendra Dutt (supra) is distinguishable from the facts of the present matter itself, inasmuch as, the accused therein was acquitted by the trial court against which an appeal was preferred to the High Court which was allowed and then he was convicted against which an appeal was preferred before the Apex Court under Section 2(A) of the Supreme Court (Enlargement of Criminal Appellate Jurisdiction) Act, 1970. Even, therein the Apex Court dismissed the appeal but maintained the conviction and sentence of 10 years as imposed upon the appellant by the High Court.
In so far as the judgment of Babu @ Munna (supra) is concerned, one of the facts which weighed with the Apex Court was the age of the accused therein being 18/19 years. Even on this count, the present case stands distinguished with the said case.
37. The law regarding the sentencing in a matter of rape with a minor girl has been sculled out in the case of Shyam Narain (supra). The Apex Court has held as follows:
"11. Primarily it is to be borne in mind that sentencing for any offence has a social goal. Sentence is to be imposed regard being had to the nature of the offence and the manner in which the offence has been committed. The fundamental purpose of imposition of sentence is based on the principle that the accused must realise that the crime committed by him has not only created a dent in his life but also a concavity in the social fabric. The purpose of just punishment is designed so that the individuals in the society which ultimately constitute the collective do not suffer time and again for such crimes. It serves as a deterrent. True it is, on certain occasions, opportunities may be granted to the convict for reforming himself but it is equally true that the principle of proportionality between an offence committed and the penalty imposed are to be kept in view. While carrying out this complex exercise, it is obligatory on the part of the Court to see the impact of the offence on the society as a whole and its ramifications on the immediate collective as well as its repercussions on the victim.
12. In this context, we may refer with profit to the pronouncement in Jameel v. State of Uttar Pradesh: (2010) 12 SCC 532, wherein this Court, speaking about the concept of sentence, has laid down that it is the duty of every court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed. 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."
13. In Shailesh Jasvantbhai and another v. State of Gujarat and others: (2006) 2 SCC 359, the Court has observed thus:
"Friedman in his Law in Changing Society stated that: "State of criminal law continues to be - as it should be -a decisive reflection of social consciousness of society." Therefore, in operating the sentencing system, law should adopt the corrective machinery or deterrence based on factual matrix. By deft modulation, sentencing process be stern where it should be, and tempered with mercy where it warrants to be. The facts and given circumstances in each case, the nature of the crime, the manner in which it was planned and committed, the motive for commission of the crime, the conduct of the accused, the nature of weapons used and all other attending circumstances are relevant facts which would enter into the area of consideration".
14. In State of M.P. v. Babulal: AIR 2008 SC 582, two learned Judges, while delineating about the adequacy of sentence, have expressed thus : -
"19. Punishment is the sanction imposed on the offender for the infringement of law committed by him. Once a person is tried for commission of an offence and found guilty by a competent court, it is the duty of the court to impose on him such sentence as is prescribed by law. The award of sentence is consequential on and incidental to conviction. The law does not envisage a person being convicted for an offence without a sentence being imposed therefore.
20. The object of punishment has been succinctly stated in Halsbury's Laws of England, (4th Edition: Vol.II: para 482) thus:
"The aims of punishment are now considered to be retribution, justice, deterrence, reformation and protection and modern sentencing policy reflects a combination of several or all of these aims. The retributive element is intended to show public revulsion to the offence and to punish the offender for his wrong conduct. The concept of justice as an aim of punishment means both that the punishment should fit the offence and also that like offences should receive similar punishments. An increasingly important aspect of punishment is deterrence and sentences are aimed at deterring not only the actual offender from further offences but also potential offenders from breaking the law. The importance of reformation of the offender is shown by the growing emphasis laid upon it by much modern legislation, but judicial opinion towards this particular aim is varied and rehabilitation will not usually be accorded precedence over deterrence. The main aim of punishment in judicial thought, however, is still the protection of society and the other objects frequently receive only secondary consideration when sentences are being decided".
(emphasis supplied)"
15. In Gopal Singh v. State of Uttarakhand: 2013 (2) SCALE 533, while dealing with the philosophy of just punishment which is the collective cry of the society, a two-Judge Bench has stated that just punishment would be dependent on the facts of the case and rationalised judicial discretion. Neither the personal perception of a Judge nor self- adhered moralistic vision nor hypothetical apprehensions should be allowed to have any play. For every offence, a drastic measure cannot be thought of. Similarly, an offender cannot be allowed to be treated with leniency solely on the ground of discretion vested in a Court. The real requisite is to weigh the circumstances in which the crime has been committed and other concomitant factors.
16. The aforesaid authorities deal with sentencing in general. As is seen, various concepts, namely, gravity of the offence, manner of its execution, impact on the society, repercussions on the victim and proportionality of punishment have been emphasized upon. In the case at hand, we are concerned with the justification of life imprisonment in a case of rape committed on an eight year old girl, helpless and vulnerable and, in a way, hapless. The victim was both physically and psychologically vulnerable. It is worthy to note that any kind of sexual assault has always been viewed with seriousness and sensitivity by this Court.
17. In Madan Gopal Kakkad v. Naval Dubey and another: (1992) 3 SCC 204, it has been observed as follows:-
"... though all sexual assaults on female children are not reported and do not come to light yet there is an alarming and shocking increase of sexual offences committed on children. This is due to the reasons that children are ignorant of the act of rape and are not able to offer resistance and become easy prey for lusty brutes who display the unscrupulous, deceitful and insidious art of luring female children and young girls. Therefore, such offenders who are menace to the civilized society should be mercilessly and inexorably punished in the severest terms."
18. In State of Andhra Pradesh v. Bodem Sundra Rao: AIR 1996 SC 530, this Court noticed that crimes against women are on the rise and such crimes are affront to the human dignity of the society and, therefore, imposition of inadequate sentence is injustice to the victim of the crime in particular and the society in general. After so observing, the learned Judges had to say this: -
"The Courts have an obligation while awarding punishment to impose appropriate punishment so as to respond to the society's crime for justice against such criminals. Public abhorrence of the crime needs a reflection through the Court's verdict in the measure of punishment. The Courts must not only keep in view the rights of the criminal but also the rights of the victim of crime and the society at large while considering imposition of the appropriate punishment."
19. In State of Punjab v. Gurmit Singh and others: AIR 1996 SC 1393, this Court stated with anguish that crime against women in general and rape in particular is on the increase. The learned Judges proceeded further to state that it is an irony that while we are celebrating women's rights in all spheres, we show little or no concern for her honour. It is a sad reflection of the attitude of indifference of the society towards the violation of human dignity of the victims of sex crimes. Thereafter, the Court observed the effect of rape on a victim with anguish: -
"We must remember that a rapist not only violates the victim's privacy and personal integrity, but inevitably causes serious psychological as well as physical harm in the process. Rape is not merely a physical assault - it is often destructive of the whole personality of the victim. A murderer destroys the physical body of his victim, a rapist degrades the very soul of the helpless female."
20. In State of Karnataka v. Krishnappa: (2000) 4 SCC 75, a three-Judge Bench opined that the 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 and respond by imposition of proper sentence. Public abhorrence of the crime needs reflection through imposition of appropriate sentence by the court. It was further observed that to show mercy in the case of such a heinous crime would be travesty of justice and the plea for leniency is wholly misplaced.
21. In Jugendra Singh v. State of Uttar Pradesh: (2012) 6 SCC 297, while dwelling upon the gravity of the crime of rape, this Court had expressed thus: -
"Rape or an attempt to rape is a crime not against an individual but a crime which destroys the basic equilibrium of the social atmosphere. The consequential death is more horrendous. It is to be kept in mind that an offence against the body of a woman lowers her dignity and mars her reputation. It is said that one's physical frame is his or her temple. No one has any right of encroachment. An attempt for the momentary pleasure of the accused has caused the death of a child and had a devastating effect on her family and, in the ultimate eventuate, on the collective at large. When a family suffers in such a manner, the society as a whole is compelled to suffer as it creates an incurable dent in the fabric of the social milieu."
22. Keeping in view the aforesaid enunciation of law, the obtaining factual matrix, the brutality reflected in the commission of crime, the response expected from the courts by the society and the rampant uninhibited exposure of the bestial nature of pervert minds, we are required to address whether the rigorous punishment for life imposed on the appellant is excessive or deserves to be modified. The learned counsel for the appellant would submit that the appellant has four children and if the sentence is maintained, not only his life but also the life of his children would be ruined. The other ground that is urged is the background of impecuniousity. In essence, leniency is sought on the base of aforesaid mitigating factors. It is seemly to note that the legislature, while prescribing a minimum sentence for a term which shall not be less than ten years, has also provided that the sentence may be extended upto life. The legislature, in its wisdom, has left it to the discretion of the Court. 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 civilized society. The age old wise saying "child is a gift of the providence" enters into the realm of absurdity. The young girl, with efflux of time, would grow with 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. Respect for reputation of women in the society shows the basic civility of a civilised society. No member of society can afford to conceive the idea that he can create a hollow in the honour of a woman. Such thinking is not only lamentable but also deplorable. It would not be an exaggeration to say that the thought of sullying the physical frame of a woman is the demolition of the accepted civilized norm, i.e., "physical morality". In such a sphere, impetuosity has no room. The youthful excitement has no place. It should be paramount in everyone's mind that, on one hand, the society as a whole cannot preach from the pulpit about social, economic and political equality of the sexes and, on the other, some pervert members of the same society dehumanize the woman by attacking her body and ruining her chastity. It is an assault on the individuality and inherent dignity of a woman with the mindset that she should be elegantly servile to men. Rape is a monstrous burial of her dignity in the darkness. It is a crime against the holy body of a woman and the soul of the society and such a crime is aggravated by the manner in which it has been committed. We have emphasised on the manner because, in the present case, the victim is an eight year old girl who possibly would be deprived of the dreams of "Spring of Life" and might be psychologically compelled to remain in the "Torment of Winter". When she suffers, the collective at large also suffers. Such a singular crime creates an atmosphere of fear which is historically abhorred by the society. It demands just punishment from the court and to such a demand, the courts of law are bound to respond within legal parameters. It is a demand for justice and the award of punishment has to be in consonance with the legislative command and the discretion vested in the court. The mitigating factors put forth by the learned counsel for the appellant are meant to invite mercy but we are disposed to think that the factual matrix cannot allow the rainbow of mercy to magistrate. Our judicial discretion impels us to maintain the sentence of rigorous imprisonment for life and, hence, we sustain the judgment of conviction and the order of sentence passed by the High Court.
23. Ex consequenti, the appeal, being sans merit, stands dismissed."
38. It has further been held in various other judgments that an accused of rape has to be dealt with strong hands. In the present case, the accused was aged about 35 years as is evident from the charge sheet Ext. Ka-10 which is dated 08.09.2007. Even in the statement recorded under Section 313 Cr.P.C. which was recorded on 02.09.2009 the accused has given his age as 36 years.
39. Looking to both the documents i.e. the charge sheet and the statement recorded under Section 313 Cr.P.C. of the accused, it is not in doubt that the accused was a grown up man aged somewhere between 35-36 years. ''R' was mentally deranged, deaf and dumb girl since birth.
40. PW-2 Smt. Nanni Bai her grandmother is an eye witness to the incident and her statement in spite of her cross examination could not be shifted by the accused. Her presence as stated by her in her statement is very natural and the reason given by her for being present at the place of occurrence is very probable and prudent.
41. Kripa Ram PW-4 also gives a very natural version of his presence near the place of occurrence. His reaching the place of occurrence is also consequent to the shouts of PW-2 Nanni Bai.
42. The medical examination examination report in no uncertain terms shows injuries on the external body and even injuries were present on the internal parts/private parts of the victim.
43. The age of ''R' has conclusively been established by medical evidence, oral evidence of the father of ''R' being PW-1 Deepak Dheemar and the grand-mother of ''R' being PW-2 Smt. Nanni Bai as about 12 years. The supplementary medical examination report also gives her age to be about 12 years.
44. The doctor giving the supplementary medical examination report has specifically opined that the injuries on the private part of ''R' was as a result of friction against hard blunt object and the probability of sexual intercourse may be there.
45. The accused in his defence could not bring any document on record on evidence to show his enmity with the first informant in spite of the fact that he had stated so in his statement recorded under Section 313 Cr.P.C.
46. Deterrence is needed more than the theory of reformation in cases like this. Although by saying so the need for re-affirmative approach in sentencing is not being ignored but looking to the brutal nature of offence committed by the accused on a minor, mentally deranged, deaf and dumb girl aged about 12 years leaving her all bleeding from her private parts also inflicting injuries in the course of the same on her body which stands duly proved, leaves us with no other hypothesis but that the applicant-appellant has committed rape upon the girl which was witnessed by an eye witness. In the result, the sentence as awarded by the trial court is found to be proper and would be the appropriate sentence awarded.
47. In the result, this Court comes to the conclusion that the prosecution has succeeded in proving its case beyond all reasonable doubts against the appellant. The conviction and sentenced as awarded by the trial court is hereby upheld. The present appeal lacks merit and is accordingly dismissed.
48. The appellant is stated to be in jail since 02.09.2007 being the date of arrest as effected by Shiv Shanker PW-6. He is directed to serve out the sentence as awarded to him by the trial court.
49. Let the lower court record and copy of this judgment be sent to the trial court forthwith for necessary information and its compliance.
50. The party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad.
51. The computer generated copy of such order shall be self attested by the counsel of the party concerned.
52. The concerned Court/Authority/Official shall verify the authenticity of such computerized copy of the order from the official website of High Court Allahabad and shall make a declaration of such verification in writing.
Order Date :- 10.12.2020
M. ARIF
(Samit Gopal, J.) (Ramesh Sinha, J)