Allahabad High Court
Munna Alias Teerathraj vs State Of U.P. on 20 May, 2021
Equivalent citations: AIRONLINE 2021 ALL 911
Bench: Bachchoo Lal, Subhash Chandra Sharma
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Reserved Case :- CRIMINAL APPEAL No. - 4080 of 2007 Appellant :- Munna Alias Teerathraj Respondent :- State of U.P. Counsel for Appellant :- Vinay Saran,Balwant Singh Counsel for Respondent :- Govt. Advocate Hon'ble Bachchoo Lal,J.
Hon'ble Subhash Chandra Sharma,J.
(Delivered by Hon'ble Subhash Chandra Sharma,J.)
1. This criminal appeal emanates from the judgment and order dated 23.05.2007 passed by learned Additional Sessions Judge/F.T.C.-2, Kushi Nagar at Padrauna in Session Trial No. 111 of 1999 (State Vs. Munna Alias Teerathraj) arising out of Crime No. 142 of 1996, under Section 376 of Indian Penal Code, Police Station Kotwali Hata, District Kushinagar by which appellant has been convicted and sentenced under Section 376(1) IPC with life imprisonment and fine of Rs.50,000/-. out of which 80 percent amount was to be given to the victim and the amount was to be realized as arrears of land revenue. No additional sentence for imprisonment was provided in case of default in making payment of fine.
2. The prosecution case in brief is that on 19.06.1996, victim aged about 8 years was alone at her house at about 2 p.m. Appellant Munna Alias Teerathraj went there and on the pretext of sprinkling insecticide, took her in the field of sugarcane and there he committed rape with the victim. Consequently, she became unconscious and younger brother of appellant, Raj Kumar brought her to his home where his mother gave some treatment to her. At that time parents of victim were not at home. Father of victim returned on 20.06.1996 and then they went to police station and lodged an F.I.R. on 21.06.1996 at 11.15 o'clock at Police Station Kotwali Hata against accused-appellant as Case Crime No. 142 of 1996 under Sections 376 & 506 IPC.
3. Victim was taken to Women Hospital, Padrauna where she was medically examined. The detail of medical examination is as under:-
General Examination: Height 129 c.m. Weight 20 Kg. Number of teeth upper jaw 13 and lower jaw 11. The incident as narrated by uncle (maternal) Bhikhu of the patient has occurred at about 2 p.m. on 19.6.1996.
Injuries: No marks of external injury present over any part of body. A linear tear, margin of tear is whitish in colour. Vascularisation, seen, about 2 c.m. present at posterior wall at the midline of fornix. Vagina admits little finger. Hymen not present. Uterus very small in size. Bleeding on finger examination. Vaginal smear taken and handed-over to constable Prem Shankar Singh C.P. for vaginal smear test to District Hospital Deoria for pathological examination for presence of spermatozoa and gonococci. Girl was also sent to District Hospital, Deoria for x-ray examination of right knee, right ankle, right elbow and right shoulder joint for verification of age. Duration about 3-4 days old.
Opinion: Vaginal injury is caused by some hard and blunt object by forceful penetration. Opinion about rape is to be given after the pathological report.
Supplementary report of the victim: All the epiphysis around ankle, knee, elbow and wrist joint are not fused. Carpal bones 7 in number present.
Pathological report: No spermatozoa and gonococci are seen in vaginal smear as reported by Dr. L.P. Gupta, Pathologist, District Hospital, Deoria. Opinion: Evidence of rape is found.
4. One piece of trouser worn by victim was taken into possession by the police which was already washed but some blood stains were seen to be present on its miyani. Memo was prepared.
5. The investigation of the case was handed-over to Sub-Inspector R.N. Tandon, who after recording the statements of informant and other witnesses including victim, visited the place of occurrence and prepared site plan. Prima-facie commission of offence under Section 376 IPC was found to be established against the accused appellant Munna Alias Teerathraj and charge-sheet was submitted.
6. The court concerned, took cognizance of the offence and having provided essential papers to the appellant in compliance of Section 207 Cr.P.C, committed the case to the court of Sessions for trial.
7. The learned Sessions Judge framed charge under Section 376 IPC against the appellant on the basis of material on record which was read-over and explained to the appellant. He did not plead guilty but claimed for trial.
8. In support of its case prosecution examined P.W.1 Ramakant who is informant and father of victim, P.W.2 Dr. Rita Barnwal who examined victim, P.W.3 Victim herself, P.W.4 Smt. Phoolmati mother of victim, P.W.5 Shambhu Kushwaha-head-master Primary School, Singhpur and P.W.6 Sub-inspector Virendra Pratap Singh who lodged F.I.R. on the basis of written Tahreer given by informant at police station and also proved the handwriting of Sub-inspector R.N. Tandon who submitted charge-sheet.
9. After conclusion of prosecution evidence statement of appellant under Section 313 Cr.P.C. was recorded in which he stated that wrongful statements had been given by the witnesses against him. He did not adduce any evidence in defence.
10. After hearing the arguments for accused/appellant as well as the State, learned trial court passed the impugned judgment dated 23.5.2007 in which he found appellant guilty under Section 376(1) IPC and punished him as aforesaid.
11. Being aggrieved with the conviction and sentence this criminal appeal has been preferred by the appellant.
12. Heard Shri Balwant Singh, learned counsel for appellant as well as Shri R.P. Pandey, learned A.G.A. for State and perused the record.
13. Learned counsel for the appellant submits that he is innocent and has falsely been implicated in this case. The conviction and sentence passed against him is against weight of evidence on record which is bad in law. He further submitted that in this case, F.I.R. had been lodged after two days' delay without sufficient cause. There is no any independent witness of the occurrence. P.W.1-informant is father of victim and P.W. 4 is mother of victim. Both of them are not eye-witnesses. The sole witness of the incident is victim herself. None saw the victim to be taken by the appellant to the field of sugarcane. Even during pathological examination, no spermatozoa and gonococci were found in the vaginal smear. This fact has not been taken into consideration by the learned trial court. The injury found on the private part of the victim would have been caused by falling on some hard and blunt object like cut root of sugarcane. No any external injury was found on any part of body of victim. The absence of spermatozoa in vaginal smear also verify that injury was not caused by penetration but by falling on the cut root of sugarcane. The trouser of the victim was also not sent for chemical examination to assure as to whether it was blood stained or not. In this way, it cannot be concluded that the injury to the private part of the victim was caused by appellant while committing rape. He further argued that the incident was narrated by the victim to her mother and father. Her father lodged the F.I.R. but in written Tahreer Ext. Ka-1 informant has not disclosed that incident was narrated to him by the victim. Even during his examination before the court, he has disclosed that he came to know about the incident from the villagers not from the victim. The statement made by the informant and victim are contradictory, yet learned trial court has relied on such statements. The statement of victim is also not reliable and does not get corroboration with the medical report. He has further argued that in this case investigation was conducted by the Sub-Inspector R.N. Tandon but he has not been examined before the court by the prosecution. In such a way, learned trial court has held guilty to the appellant against established principle of law and conviction and sentence based on such evidence is not sustainable, therefore, impugned judgment is liable to be set aside and appeal to be allowed.
14. Learned A.G.A. vehemently opposed the contentions made by learned counsel for the appellant and submitted that in this case delay in lodging the F.I.R. has been explained properly by the informant even in his written Tahreer as Ext. Ka-1 and also during his examination before the court. Appellant took the victim with him into the field of sugarcane on the pretext of sprinkling insecticide when she was alone at her house and parents were out. As soon as they returned, she narrated the incident to them, thereafter they lodged an F.I.R. She was medically examined and injury was found at her private part. Though, spermatozoa and gonococci were not found in vaginal smear but there was bleeding present from the tear of hymen of the victim. On the basis of which doctor conducting the medical examination has opined that rape was committed with the victim. It is not necessary that spermatozoa and gonococci would be present on the private part of the victim or in the vaginal smear. For the offence of rape only penetration is sufficient as defined under Section 375 IPC. There was no cut root in the field of sugarcane at that time as is clear from the statement of victim herself. Even the doctor-P.W.2 has also not expressed possibility about the injury to be caused otherwise. Victim has stated categorically about the incident as taken place with her and she also complained of it to her mother and also stated about it before the court. During cross-examination also she has supported the version of rape with her. There is no any material contradiction which is likely to affect her testimony adversely. The medical report and testimony deposed by doctor-P.W.2 also corroborates the version of rape as stated by the victim and supported by her mother as P.W.4. It cannot be said that lack of independent witnesses falsify the prosecution case. In such cases of rape accused always chooses some secret place where ingress and egress of people would not be possible. It is settled principle of law that in case of rape the testimony of victim is sufficient to hold conviction of accused, corroboration is not necessary at all, if the account given by the victim inspire confidence. In the present case, victim was aged about 8 years, she was alone at her house and on the pretext of sprinkling insecticide in the field appellant took her with him to the field of sugarcane where he committed rape with her. She became unconscious on the place and was brought to the home of appellant by his younger brother and after giving some primary treatment by his mother, she was left to her home. As soon as the parents of victim came back from outside to their house, victim narrated the incident as happened with her to her mother on which F.I.R. was lodged. The testimony of victim as well as her mother inspire confidence and it is corroborated with the testimony of medical expert, therefore, no suspicion arises in the case about the complicity of appellant in committing rape with victim. Learned trial court has considered all facts along with evidence and concluded that rape was committed with victim by the appellant and convicted him which is based on sound principle of law. The impugned judgment is not bad in the eye of law but the appeal lacks merit which is liable to be dismissed.
15. Learned counsel for the appellant has lastly submitted that appellant has been languishing in jail since long and at the time of commission of offence he was too young i.e. about 25 years old. It was his first offence. He comes from a poor family. The award of life imprisonment and fine of Rs. 50,000/- is excessive. This fact was also mentioned before the trial court but not considered at the time of awarding punishment and without assigning any reason maximum punishment for said offence was awarded which should be mitigated in the present case. The learned A.G.A. appearing for the State vehemently opposed the submission.
16. From the submissions and perusal of record, the following questions emerge for consideration of this court as to whether there was delay in lodging the F.I.R, witnesses are relative and no independent witness have been examined. No spermatozoa and gonococci found in the vaginal smear, nature of injury is not likely to be caused with penetration but it suggests to be caused by falling on cut root of sugarcane or some other hard and blunt object. Contradictions in the statements of witnesses, none examination of Investigating Officer and at last the excess of punishment.
17. Before we deal with the contentions raised by learned counsel for the appellant, it will be convenient to take note of the evidence which has been adduced by the prosecution.
18. P.W.1 Ramakant is father of victim who has deposed that age of his daughter (victim) was about 8 years. She was playing at the door at about 2 p.m. His wife was at home. The house of appellant Munna Alias Teerathraj was located in south of his house. He works in the field of Munna Alias Teerathraj. On the pretext of sprinkling insecticide in the field of sugarcane, he took his daughter. There being loneliness, he committed rape with his daughter. She became unconscious from where, she was brought by her mother. He was not at home but came back on the next day evening. Her mother narrated the story to him. He was going to lodge the F.I.R. but prevented by the people belonging to the caste of Munna Alias Teerathraj, thereafter on the next day, he went to police station with written Tahreer in company of other persons where F.I.R. was lodged. He identified his signature on the written Tahreer which was marked as Ext. Ka-1. Her daughter was examined medically by lady doctor. The statement of his daughter was recorded by the policemen. Her trouser was also taken and memo was prepared by the police. Site plan was also prepared by Sub-Inspector R.N. Tandon after visiting the site. This witness was subjected to gruel cross-examination by the learned counsel for the appellant in which he has disclosed that on the day of incident, he was out and when he came back the villagers narrated him about the incident. His wife did not tell him, thereafter he went to police station for lodging the F.I.R. He got the Tahreer written by Vairister. Victim was also brought to police station.
19. P.W.2 Dr. Rita Barnwal has deposed that on 22.6.1996, she was posted as in-charge Medical Officer, Women Hospital, Padrauna. On that day, victim aged about 11 years was brought to her by constable Prem Shankar Singh. She examined her. General examination:- Her height 129 c.m. Weight 20 Kg. Teeth 13/11. The maternal uncle was with her. According to him incident took place at about 2 p.m. on 19.6.1996. There was no any mark of external injury on the body of victim. Linear tear 2 c.m. on posterior wall of vagina was found. A linear tear margin of tear in whitish in colour. Vascularisation seen in the wound. Hymen not present. Vagina admits little finger. During examination, blood was oozing from the tear. Vaginal smear was taken and handed-over to constable Prem Shankar Singh C.P. for pathological examination about spermatozoa and gonococci. Victim was sent to District Hospital Deoria for verification of age and x-ray of right knee, right ankle, right elbow and right shoulder joint. Vaginal injury was found to be caused with some hard and blunt object by forceful penetration. Injury was simple in nature and 3-4 days old. Medical report was prepared in her writing and signature and on which identification mark and thumb impression of victim was affixed, which has been proved as Ext. Ka-2. X-ray and pathological reports were received on 26.6.1996 and then supplementary report was prepared. As per x-ray report elbow, ankle, knee, wrist epiphysis joint were not fused. Number of carpal bone in wrist was seven. In pathological report, there was no spermatozoa and gonococci in vaginal smear. On the basis of radio-logical and pathological report, the evidence of rape was found. The age of victim was about 9 years old. She prepared supplementary report and proved it as Ext. Ka-3.
This witness was also subjected to cross-examination by the learned counsel for the appellant, during her cross-examination she has cleared that there were no mark of teeth bite on the cheek or breast of the victim. The injury sustained on the vagina could be possible with penis which could be hard and blunt object. She has further cleared that if victim fell in the field of sugarcane or on stone, such type of injury could not be sustained because by falling in such a way injury on other near by parts might also be sustained. Since, there was no any such injury, therefore, injury could not be sustained by falling. She has also opined that for the offence of rape presence of spermatozoa is not necessary. She found the evidence of rape on the basis of nature of injury which disclosed that rape was committed. Further she has categorically denied that such injury could be sustained by falling on any pointed thing.
20. P.W.3 victim has deposed that at about 2 p.m. she was at her door where appellant Munna Alias Teerathraj came and took her on the pretext of sprinkling insecticide in the field of sugarcane. There was, Raj Kumar younger brother of appellant, present whom he sent for purchasing biscuit from chauraha. When there was loneliness he opened her trouser by force and committed rape with her. Blood began to ooze from her private part. She became unconscious. Younger brother of appellant, Raj Kumar brought to her to his home. She was feeling pain and was weeping. Mother of appellant said to her that she would treat her. After treatment she left her at her home. At evening about 4 o'clock her parents came back, at the time of incident her parents were not present at home. She narrated the incident to her parents. Her father took her to the police station from where she was brought to Government Hospital for medical examination. She was examined medically and treatment was given in Government Hospital, Deoria. Her statement was also recorded in the court before the Magistrate and also she was examined by Investigating Officer.
This witness was also subjected to gruel cross-examination by the learned counsel for the appellant in which she stated that the house of appellant Munna Alias Teerathraj was near to her house. When the appellant came to call, she was alone. Her parents were not present. She went to the field. Appellant was having machine used for sprinkling pesticide. He told to sprinkle pesticide. She also stated that appellant made her fall down, opened her trouser and made her naked. He put off her sameej and committed rape with her in the mid of sugarcane field. He put off his pant. She became unconscious on account of rape. When she cried, Raj Kumar came there who lifted her then she became conscious and took her to his house. Blood was oozing from her vagina. There was no other injury. He made her wear her trouser. Her parents were out and came back about 4 o'clock then she narrated the incident to them. In the meantime, mother of Raj Kumar provided treatment to her. Appellant did not bite on her cheek. F.I.R. was lodged on the next date of incident. She has denied the suggestion that while cutting sugarcane, she fell down and sustained injury with the sugarcane. She has also denied the suggestion for implicating him falsely.
21. P.W.4 Phoolmati, mother of victim has deposed that she was out in relation to Jajmani. Victim was alone at her house. When she came back about 4 o'clock her daughter was at home and was weeping. She was lying disorderly. She told her that appellant took her on the pretext of sprinkling insecticide in the field of sugarcane and he sent his younger brother Raj Kumar, to bring biscuit from Chauraha and he committed rape in the field of sugarcane forcefully. Blood was oozing from the vagina of the girl and blood stains were present on her trouser. She also narrated that brother of appellant, Raj Kumar brought her to his home and his mother provided treatment to her and dropped her at home. On the next day her husband went to police station with the victim and lodged an F.I.R.
This witness was also subjected to exhaustive cross-examination by the learned counsel for the appellant in which she has answered clearly the questions put to her. She stated that she was out in relation to Jajmani and came back at 4 o'clock. She examined the body of her daughter. The clothes worn by the victim were blood stained. There was no other injury on the body of victim except oozing blood from her vagina. Her husband came back on the next day, she narrated the story to her husband then he took the victim to police station. She has also stated that she went to the place of occurrence with the victim. The incident took place in the mid of the field of sugarcane. No person of the village told her to have seen the incident. There was tear in the vagina of the girl from where blood was oozing. She has denied the suggestion put to her on behalf of appellant that there was quarrel with the family of the appellant from before and also there was party-bandi in the village with her.
22. P.W.5 Shambhu Kushwaha, head-master of primary school has deposed about date of birth of victim as 04.07.1991 on the basis of school record.
23. P.W.6 Sub-Inspector Virendra Pratap Singh has deposed that on 21.06.1996 he was posted as head-constable in the police station and on the basis of written Tahreer, he lodged an F.I.R. as Crime No. 142 of 1996 under Sections 376 & 506 IPC in his writing & signature and proved as Ext. Ka-4. Detail of which was entered into G.D. in his writing & signature which he proved as Ext. Ka-5. He has also stated that investigation of the case was handed-over to Sub-Inspector R.N. Tandon. He has further stated that Sub-Inspector R.N. Tandon was also posted at police station and he saw him while reading and writing and was well acquainted with his handwriting. He proved site plan as Ext. Ka-6 and charge sheet as Ext. Ka-7 being in writing and signature of Sub-Inspector R.N. Tandon. He further stated that Sub-Inspector R.N. Tandon has died.
24. So far as the argument relating to delay in lodging the F.I.R. in a rape case is concerned, it is not of much "significance" as the victim has to muster courage to come out in open and expose herself in a "conservative social milieu".
In rape cases the delay in filing the FIR by the prosecutrix or by the parents in all circumstance is not of significance. Sometimes the fear of social stigma and on occasions the availability of medical treatment to gain normalcy and above all psychological inner strength to undertake such a legal battle.
25. In the case of H.P. vs. Shree Kant Shekari, (2004) 8 SCC 153 the Hon'ble Supreme Court has held that:-
"18. The unusual circumstances satisfactorily explained the delay in lodging of the first information report. In any event, delay per se is not a mitigating circumstance for the accused when accusations of rape are involved. Delay in lodging first information report cannot be used as a ritualistic formula for discarding prosecution case and doubting its authenticity. It only puts the court on guard to search for and consider if any explanation has been offered for the delay. Once it is offered, the Court is to only see whether it is satisfactory or not. In a case if the prosecution fails to satisfactory explain the delay and there is possibility of embellishment or exaggeration in the prosecution version on account of such delay, it is a relevant factor. On the other hand satisfactory explanation of the delay is weighty enough to reject the plea of false implication or vulnerability of prosecution case. As the factual scenario shows, the victim was totally unaware of the catastrophe which had befallen her. That being so, the mere delay in lodging of first information report does not in any way render the prosecution version brittle. These aspects were highlighted in Tulshidas Kanolkar v. State of Goa."
26. In the case of Sohan Singh and another vs. state of Bihar (2010) 1 SCC 68 the Hon'ble Supreme Court has held as under:-
"12. As far as delay in lodging the FIR is concerned, we are also satisfied that it cannot be termed to be inordinately delayed. Even otherwise, in our considered opinion too, it cannot be said that there has been inordinate or unexplained delay in lodging the FIR.
13. When FIR by a Hindu lady is to be lodged with regard to commission of offence like rape, many questions would obviously crop up for consideration before one finally decides to lodge the FIR. It is difficult to appreciate the plight of the victim who has been criminally assaulted in such a manner. Obviously, the prosecutrix must have also gone through great turmoil and only after giving it a serious thought, must have decided to lodge the FIR. Precisely this appears to be the reason for little delayed FIR. As mentioned hereinabove, the delay has already been found to be properly explained by both the courts below. Thus, we are not required to deal with this issue any more."
27. In the instant case, incident took place on 19.6.1996 and F.I.R. was lodged on 21.6.1996 at 11.15 o'clock after two days. In the written Tahreer as Ext. Ka-1 the cause of delay has been explained by informant as he was not present at his home on the day, incident took place. When he came back on 20.6.1996 to his house, he went to police station for lodging the F.I.R. but was prevented by some people related to the appellant. He has also expressed the cause of delay in similar words in his statement during the examination before the court. This fact was also supported by P.W.4 Smt. Phoolmati wife of informant in the words that on the day of incident, she was not present at her home, she went to Ram Nagar in Jajmani with her husband, she came back on the same day but her husband went in Barat who came back on the next day of incident, thereafter, he went to police station with the victim. The victim P.W.3 has also stated that at the time of incident her parents were not present at home. In this way delay in lodging the F.I.R. has been explained by the informant while in the Tahreer and also in his statement made before the court. There was sufficient cause in lodging the F.I.R. after two days, therefore, the cause of delay seems to be sufficient and natural. It is not likely to affect the prosecution case.
28. Coming to the first submission relating to the delay in lodging the FIR for the commission of the offence, in our considered opinion, there was no delay in the lodging of the FIR either and if at all there was some delay, the same has not only been properly explained by the prosecution but also considering the facts and circumstances of the case, it was natural."
29. Regarding non-availability of independent witnesses, it is noteworthy that in such type of cases of rape accused always chooses separate or solitary place for committing the offence where approach of independent witnesses cannot become possible. In this case, the girl was taken by the appellant to the field of sugarcane and where no other persons was present except younger brother of appellant who was sent by him for bringing biscuit from the Chauraha. Meanwhile offence was committed with the victim in the field of sugarcane. It cannot be expected from younger brother of appellant that he would come in evidence against his real brother. So lack of independent witness does not affect the credibility of the testimony of victim. Victim herself is injured witness and her testimony cannot be said to be unreliable on the basis of lack of independent witness because she herself is injured and she would not like to conceal the real culprit and to implicate false one.
30. Evidence of the prosecutrix or woman, who has been raped, is very crucial piece of testimony to prove the case against the accused. It is now well settled that conviction for an offence of rape can be based on the sole testimony of the prosecutrix if it is found to be natural, trustworthy and reliable. In the case of rape, the onus rests on prosecution to prove firmly with evidence each ingredient it seeks to establish and such onus never shifts. The victim, who reports a rape case, suffers at each stage i.e. after reporting to the police, during investigation and trial. Witness of victim also suffers harassment, humiliation, financial loss, loss of time resulting mental pain and suffering to the victim and her witnesses.
31. The most important question in a prosecution for the offence of rape is how exactly to appreciate the testimony of the rape victim. One important aspect is whether the testimony invariably requires corroboration or not and in case corroboration is required or desired, what is the nature and extent of such corroboration and the source of such corroboration.
32. In the case of State of Punjab vs. Gurmit Singh and others AIR 1996 SC 1393, the Hon'ble Supreme Court held that "the Court can rely upon the evidence of the prosecutrix even without seeking corroboration. If evidence of the prosecutrix inspires confidence, it must be relied upon without seeking corroboration of her statement in material particulars. If for some reason the Court finds it difficult to place implicit reliance on her testimony, it may look for evidence which may lend assurance to her testimony. The Hon'ble Supreme Court further observed that the evidence of a girl or of a woman who complains of rape or sexual molestation should not be viewed with doubt, disbelief or suspicion. The Hon'ble Supreme Court further held that the evidence of a victim of a sexual offence is entitled to great weight even without corroboration."
33. In the case of State of Punjab vs. Ram Dev (AIR) 2009 SC 1290, the Hon'ble Supreme Court held that there is no rule of law that testimony of the prosecutrix cannot be acted without corroboration in material particulars.
34. In the case of State of M.P. vs. Dayal Sahu 2005 Criminal Law Journal 4374 (SC) the Hon'ble Supreme Court observed as follows:-
"once the statement of prosecutrix inspires confidence and accepted by the courts as such, conviction can be based only on the solitary evidence of the prosecutrix and no corroboration would be required .........Corroboration of testimony of the prosecutrix as a condition for judicial reliance is not a requirement of law but a guidance of prudence."
35. In the case of Wahid Khan vs. State of U.P. (2010) 2 SCC 9 the Hon'ble Supreme Court held that :-
" 16.The law on the point is now too well settled. No doubt, it is true that Dr. B. Biswas, who had initially conducted the medical examination of the prosecutrix, has not appeared on behalf of the prosecution to depose. But, that alone is not sufficient to discard the prosecution story. Corroboration is not the sine qua non for conviction in a rape case."
36. In this regard, the most celebrated observations of Justice Vivian Bose in the case of Rameshwar v. State of Rajasthan AIR 1952 SC 54 may be quoted :
"The rule, which according to the cases has hardened into one of law, is not that corroboration is essential before there can be a conviction but that the necessity of corroboration, as a matter of prudence, except where the circumstances make it safe to dispense with it, must be present to the mind of the judge...."
It is also a matter of common law that in Indian society any girl or woman would not make such allegations against a person as she is fully aware of the repercussions flowing therefrom. If she is found to be false, she would be looked by the society with contempt throughout her life. For an unmarried girl, it will be difficult to find a suitable groom. Therefore, unless an offence has really been committed, a girl or a woman would be extremely reluctant even to admit that any such incident had taken place which is likely to reflect on her chastity. She would also be conscious of the danger of being ostracized by the society. It would indeed be difficult for her to survive in Indian society which is, of course, not as forward looking as the western countries are.
Thus, in a case of rape, testimony of a prosecutrix stands at par with that of an injured witness. It is really not necessary to insist for corroboration if the evidence of the prosecutrix inspires confidence and appears to be credible............"
37. The witnesses are father and mother of victim, those are near relative. Their testimony cannot be discarded. Being mother, it is natural that victim would narrate the incident as happened with her because such incident cannot be disclosed before other person who is not related to her on account of social insult. Therefore, the argument that there is no independent witness of the incident has no force in regard to such type of offence like rape.
38. The contention made by learned counsel for the appellant regarding non-availability of spermatozoa and gonococci in the pathological report does not keep too much importance because in sexual offence as rape, it is not necessary that spermatozoa or gonococci be present in the pathological examination. Section 375 IPC, which contains definition of rape, does not require the presence of spermatozoa or gonococci. For the commission of rape penetration is sufficient.
39. Explanation to Section 375 IPC provides:- "Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape."
40. In the case of Narainamma Vs. State of Karnataka, 1994 SCC(5)728 Hon'ble the Supreme Court has held as under:-
"(vi) With regard to the vaginal smear examination conducted at a different hospital, Dr Reeta, PW 3 has reported that no spermatozoa was seen on it, and the absence of sperms has been viewed against the version of the prosecutrix. It was never elicited from the prosecutrix as to whether the two persons who committed rape on her had reached orgasm emitting semen in her private parts. No presumption can be made that penetration of penis in the private parts of a rape victim must necessarily lead to the discovery of spermatozoa. It is a question of detail and has to be put to test by cross-examination. Otherwise also there may be various other factors which may negative the presence of spermatozoa such as faulty taking of the smear, its preservation, quality of semen etc. The absence of spermatozoa prima facie could not be allowed to tell against the version of the prosecutrix."
41. In this particular case, hymen was found not present. At the time of medical examination, there was linear tear in the vagina oozing blood as shown in Ext. Ka-2 and stated by doctor conducting medical examination on the person of victim. She has also opined that the injury was caused by some hard and blunt object like forcefully penetration. She has affirmed the injury to have been caused by penetration on the basis of nature of injury. During her examination before the court, she has categorically explained the injury found on the vagina of victim to have been caused by penetration. She has expressly denied the suggestion that such kind of injury was possible by falling on some pointed stone or object or in the field of sugarcane. Thus, the testimony of P.W.2 Dr. Rita Barnwal rules out the possibility of injury to have been caused by falling on some pointed object or cut root of sugarcane in the field. It also ruled out any other kind of possibility of injury to the victim. From the version of victim P.W.3, P.W.4 mother of victim and P.W.2 Dr. Rita Barnwal conducting the medical examination of the victim, it can be concluded without any hesitation that the injury sustained in the vagina of the victim was caused by penetration and not by falling on any object. The argument in this regard by learned counsel for the appellant have no weight at all.
42. The argument relating to contradictions in the statement of prosecution witnesses, it is noteworthy that they are rustic and illiterate villagers and not acquainted with typical process of the court. They are also not in a position to understand the latent meanings of the questions put to them by the learned counsel, therefore, some contradictions are natural to occur in their statements. The contradictions, visible in the statements of P.W.1-informant and P.W.4-mother of victim are not related to material facts of the case but they are minor in nature. Which only show the naturality of the statements of the witnesses about the incident. Thus, these contradictions are cosmetic in nature having no affect on the merit of the case. There is no contradiction in the testimony of all the witnesses regarding the fact of rape with the victim. P.W.3-victim who sustained injury is intact even during her cross-examination about the facts of incident, there is no any contradictory statement which negates the commission of rape with her by the appellant or which shows some kind of exaggeration about incident but she has squarely narrated the incident how it happened.
43. In the case of State of Punjab Vs. Gurmit Singh, 1996 SCC (2) 384, Hon'ble Supreme Court held as under:
"...........The Courts should examine the broader probabilities of a case and not get swayed by minor contradictions or insignificant discrepancies in the statement of the prosecutrix, which are not of a fatal nature, to throw out an otherwise reliable prosecution case. If evidence of the prosecutrix inspirers confidence, it must be relied upon without seeking corroboration of her statement in material particulars. If for some reason the Court finds it difficult to place implicit reliance on her testimony, it may look for evidence which may lend assurance to her testimony, short of corroboration required in the case of an accomplice. The testimony of the prosecutrix must be appreciated in the background of the entire case and the trial court must be alive to its responsibility and be sensitive while dealing with cases involving sexual molestations." In this way, the argument made by learned counsel for the appellant in this regard has no force.
44. It is noteworthy that there is no enmity or any other reason present between family of victim and the appellant on account of which it cannot be said that there is reason to implicate the appellant falsely. In this case, even the appellant has not stated in his statement under Section 313 Cr.P.C. recorded by the court that there was enmity between two families owing to which he was implicated falsely.
45. Now, on considering arguments placed by learned counsel for the appellant in context with the material on record, it is established that there is no inordinate and unsatisfactory delay in lodging the F.I.R. There is no occasion for suspicion in commission of incident. Oral account about the incident as narrated by the victim, her mother and her father inspire confidence and gets support with the medical report as well as testimony of doctor. It inspires confidence about the commission of offence with the victim by the appellant without any lapse.
46. Thus, we are of the considered opinion that in this case prosecution was successful in establishing its case beyond reasonable doubt against the appellant. There is clinching evidence against the appellant for conviction under Section 376(1) IPC and learned trial judge has held him guilty for commission of crime, which cannot be said to be against the established principle of law but he was right in convicting and sentencing the appellant under Section 376(1) IPC. As a result, the appeal regarding conviction under Section 376(1) IPC is devoid of merit.
47. So far as the argument of learned counsel for the appellant regarding excessive punishment is concerned, he has placed reliance on the judgment of Hon'ble Supreme Court in the case of Bavo @ Manubhai Ambalal Thakore v. State of Gujarat, (2012) 2 SCC 684. It appears that learned trial judge has awarded sentence for life imprisonment to the appellant which is maximum provided for the offence. The only question to be considered is whether the sentence for life imprisonment and a fine of Rs. 50,000/- is reasonable or excessive.
48. Section 376 IPC speaks about the punishment for rape. Sub-section (1) provides for punishment of rape. Sub-section (2) is not applicable in present matter. Sub-section (1) reads as under :
"(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."
49. It is clear from the above statutory provision that for the offence of rape on a woman, punishment shall not be less than 7 years but which may extend to life and also to fine shows that the legislature intended to adopt strictness in awarding sentence. No doubt, the proviso to Section 376(1) 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 7 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.
50. The Section 235 of the Criminal Procedure Code, 1973 reads:
"(1) After hearing arguments and points of law (if any), the Judge shall give a judgment in the case.
(2) If the accused is convicted, the Judge shall, unless he proceeds in accordance with the provisions of Section 360, hear the accused on the question of sentence, and then pass sentence on him according to law".
51. In Dagdu and Ors. v. State of Maharashtra, (1977) 3 SCC 68 Hon'ble Apex Court has held that :
"The imperative language of Sub-section (2) leaves no room for doubt that after recording the finding of guilt and the order of conviction, the Court is under an obligation to hear the accused on the question of sentence unless it releases him on probation of good conduct or after admonition under Section 360. The right to be heard on the question of sentence has a beneficial purpose, for a variety of facts and considerations bearing on the sentence can, in the exercise of that right, be placed before the Court which the accused, prior to the enactment of the Code of 1973, had no opportunity to do. The social compulsions, the pressure of poverty, the retributive instinct to seek an extra-legal remedy to a sense of being wronged, the lack of means to be educated in the difficult art of an honest living, the parentage, the heredity- all these and similar other considerations can, hopefully and legitimately, tilt the scales on the propriety of sentence. The mandate of Section 235(2) must, therefore, be obeyed in its letter and spirit."
52. In Muniappan v. State of Tamil Nadu, AIR 1981 SC 1220 Hon'ble Supreme Court has held :
"The obligation to hear the accused on the question of sentence which is imposed by Section 235(2) of the Criminal Procedure Code is not discharged by putting a formal question to the accused as to what he has to say on the question of sentence. The Judge must make a genuine effort to elicit from the accused all information which will eventually bear on the question of sentence. All admissible evidence is before the Judge but that evidence itself often furnishes a clue to the genesis of the crime and the motivation of the criminal. It is the bounden duty of the Judge to cast aside the formalities of the Court-scene and approach the question of sentence from a broad sociological point of view. The occasion to apply the provisions of Section 235(2) arises only after the conviction is recorded. What then remains is the question of sentence in which not merely the accused but the whole society has a stake. Questions which the Judge can put to the accused under Section 235(2) and the answers which the accused makes to those questions are beyond the narrow constraints of the Evidence Act. The Court, while on the question of sentence, is in an altogether different domain in which facts and factors which operate are of an entirely different order than those which come into play on the question of conviction."
53. In "Hazara Singh v. Raj Kumar, (2013) 9 SCC 516" Hon'b'e Apex Court has held that :
"it is clear that the maximum punishment provided therein is imprisonment for life or a term which may extend to 10 years. Although Section 307 does not expressly state the minimum sentence to be imposed, it is the duty of the courts to consider all the relevant factors to impose an appropriate sentence. The legislature has bestowed upon the judiciary this enormous discretion in the sentencing policy, which must be exercised with utmost care and caution. The punishment awarded should be directly proportionate to the nature and the magnitude of the offence. The benchmark of proportionate sentencing can assist the Judges in arriving at a fair and impartial verdict."
"17. We reiterate that in operating the sentencing system, law should adopt the corrective machinery or deterrence based on factual matrix. 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. We also reiterate that undue sympathy to impose inadequate sentence would do more harm to the justice system to undermine the public confidence in the efficacy of law. 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 court must not only keep in view the rights of the victim of the crime but also the society at large while considering the imposition of appropriate punishment."
54. In the present case after the verdict of conviction the accused appellant had, at the time of hearing on the point of quantum of sentence, placed all relevant factors which should have been well thought out for determining the appropriate amount of sentence. But the trial Court, after mentioning them in the order, has not considered them, and without assigning any special reason the learned Sessions Judge had awarded maximum possible punishment. Thus the learned Sessions Judge, in the instant case, complied with the form and letter of the obligation which Section 235(2) imposes, forgetting the spirit and substance of that obligation.
55. There is no justification for the trial court while convicting accused-appellant for offence under Section 376 IPC to sentence him for life imprisonment. Only because Section 376 IPC provides life imprisonment as the maximum sentence, does not mean that the court should mechanically proceed to impose the maximum sentence, more particularly when there is no proof that any injury was caused during the incident. There is no justification for awarding the maximum sentence for life imprisonment in the present case.
56. In Devidas Ramachandra Tuljapurkar v. State of Maharashtra, (2015) 6 SCC 1 Hon'ble Apex Court has held :
"While we see no reason to differ with the concurrent findings recorded by the trial court and the High Court, we do see some substance in the argument raised on behalf of the appellants that keeping in view the prosecution evidence, the attendant circumstances, the age of the accused and the fact that they have already been in jail for a considerable period, the Court may take lenient view as far as the quantum of sentence is concerned. The offences having been proved against the accused and keeping in view the attendant circumstances, we are of the considered view that ends of justice would be met, if the punishment awarded to the appellants is reduced."
57. In Bavo @ Manubhai Ambalal Thakore v. State of Gujarat, (2012) 2 SCC 684 Hon'ble Apex Court has held as :
"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. The learned counsel appearing for the appellant informed this Court that the appellant had already served nearly 10 years.
12. Coming to the quantum of fine, in the case on hand, the learned trial Judge has imposed Rs 20,000, in default, to undergo RI for three years. The learned counsel for the appellant submitted that the accused hails from a poor family and was working as an agricultural labourer and is not in a position to pay such a huge amount as fine which is not disputed by the State. Taking note of all these aspects, we reduce the fine of Rs 20,000 to Rs 1000, in default, to further undergo RI for one month.
13. In view of the above discussion, the conviction imposed on the appellant herein is confirmed. However, the sentence of life imprisonment is modified to RI for 10 years with a fine of Rs 1000, in default, to further undergo RI for one month.
14. With the above modification of sentence, the appeal stands disposed of."
58. It lies in the discretion of the trial court to choose a particular sentence within the available range from minimum to maximum; and in the present case the discretion has not been judiciously applied. In the present case the trial Court had chosen to award maximum punishment to appellant without considering the points which should have been taken into account at the time of pre-punishment hearing. This had infringed legal rights of appellant available to him under section 235(2) CrPC. Therefore the impugned judgment warrants interference in the exercise of appellate jurisdiction.
59. Now the matter is limited to the sentence for the offence u/s 376 IPC, and we have to consider about the appropriate sentence for the appellant in this case. For it aggravating circumstances relating to the crime while mitigating circumstances relating to the criminal has to be considered. From the facts and circumstances of the case before us, as regards aggravating circumstance is concerned it is clear that appellant had found a girl of about 8 years of age in a lonely place, considered himself stronger than her and then given in to his sexual desire, used criminal force to satisfy his lust, without considering the effect of his act on the poor helpless girl and her life. So far as mitigating circumstances are concerned, taking note of various factors including the age of the young appellant-accused being about 25 years at the time of the incident which cannot be treated as very mature, his old mother being dependent on him, he is the only bread winner of his house, it is his first guilt and hailing from a poor family, award of life imprisonment and a fine of Rs. 50000/- is excessive. These points were mentioned in judgment by the trial Court at the time of hearing on point of quantum of sentence, but were not considered at the time of awarding the punishment; and without assigning any reason maximum possible punishment for the said offence were awarded,which should be mitigated on the facts of the present case. This contention of the learned counsel for the appellant cannot be ignored that during trial and then after conviction appellant has suffered sufficient time in incarceration (about 13 years) which would have taught him an appropriate lesson to refrain from such overt acts.
60. In the aforesaid case the Supreme Court had, for the reasons presented by defence side, had mitigated the punishment for rape of a girl below 7 years to 10 years' imprisonment. But in said case appellant was in incarceration for long time. In present case the circumstances presented before the Sessions Judge, at the time of hearing under section 235(2) CrPC on point of quantum of sentence, was more dismaying. Appellant was aged about 25 years and was not too young.
61. While we see no reason to differ with the findings recorded by the trial court regarding the charged offence, we do see some substance in the argument raised on behalf of the appellants that keeping in view the prosecution evidence, the above mentioned aggravating and mitigating attendant circumstances, the age of the accused and the fact that he has already been in jail for a considerable period, the Court should take a balanced view as far as the quantum of sentence is concerned. The offences having been proved against the accused and keeping in view the attending circumstances, we are of the considered view that ends of justice would be met, if the punishment awarded to the appellant is reduced. So, it appears appropriate that, in present case the sentence should not exceed more than 14 years' imprisonment and lesser fine.
62. In view of above facts and discussion, the order of conviction u/s 376 IPC imposed on the appellant is hereby confirmed. But the sentence of imprisonment for life is modified to imprisonment of 14 years and fine of Rs. 50,000/- to Rs. 30,000/- out of which 80 percent amount is to be given to the victim. With this modification of sentence, the appeal stands disposed off.
63. Copy of this judgment alongwith original record of Court below be transmitted to the Court concerned for necessary compliance. A compliance report be sent to this Court within one month. Office is directed to keep the compliance report on record.
Order Date :- 20th May 2021 A. Singh (Subhash Chandra Sharma,J.) (Bachchoo Lal,J.)