Allahabad High Court
Sonu vs State Of U.P. on 5 February, 2016
Author: Ranjana Pandya
Bench: Ranjana Pandya
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Reserved Judgment Court No. - 27 Case :- CRIMINAL APPEAL No. - 1775 of 2013 Appellant :- Sonu Respondent :- State Of U.P. Counsel for Appellant :- Om Vir Babu,K.S. Tomar Counsel for Respondent :- Govt. Advocate Hon'ble Mrs. Ranjana Pandya,J.
1. Challenge in this appeal is to the Judgment and order dated 23.3.2013 passed by Sri Jai Sri Ahuja, learned Additional Sessions Judge, Court No. 4, Aligarh in S.T. No. 273 of 2010, State Vs. Sonu, arising out of Crime No. 791 of 2009, Police Station Khair, District Aligarh, whereby the accused Sonu was found guilty under Section 376 I.P.C. and sentenced to ten years rigorous imprisonment coupled with the fine of Rs.10,000/- with default stipulation.
2. Filtering out unnecessary details, the prosecution case in brief is that a written report was lodged by the brother of the victim Sonu stating that his sister aged about 17 years was living at Mohalla Bahadurganj with his mother's sister (mausi), namely, Lajja. Since the parents of the informant had died many years back, he himself was doing a job in Madhya Pradesh. His sister was raped by his neighbour Sonu many times after threatening her. When the occurrene was told by the sister of the informant to the parents of the appellant, they assaulted the sister of the appellant and threatened to kill her if she would tell anything. His sister was pregnant due to being raped by the appellant Sonu. She was taken by Sonu, his father Roop Kishor and his mother Sunita to J. N. Medical College, Aligarh where her pregnancy was got aborted due to which condition of his sister deteriorated. When he came home, his sister narrated the whole incident to him, hence, he lodged the report on 12.12.2009.
3. On the basis of this report, chik was scribed by Constable 1229 Rakesh Kumar, who prepared the chik report and proved the copy of G.D. as Ext. Ka-3. Investigation of the matter was entrusted to S.I. J.P. Sharma, who commenced the investigation on 16.12.2009. On 17.12.2009, he recorded the statement of the informant, the victim and inspected the spot at the pointing out of the informant. He prepared the site plan which was proved as Ext. Ka-5. On 31.12.2009 he recorded the statement of Rani and Lajja, and the victim was sent for recording her statement under Section 164 Cr.P.C. which was copied in the case diary and on the basis of evidence he submitted charge sheet against the accused which was proved as Ext. Ka-6.
4. The victim was medically examined by P.W. 4 Dr. Rashmi Sagar, who did not find any mark of injury on the body of the victim. The uterus had come downwards and there was mark of operation on the stomach. There were signs of delivery. There was sign of incisions on her stomach. She has proved her report as Ext.Ka-4.
5. P.W.6 is Dr. Smt. Rajeshwari Sharma, who has proved the discharge slip of the victim. In her statement, she has stated that on 25.11.2009, the victim wife of Sanjai was admitted in J. N. Medical College gynecological department. She submitted the bed head ticket before the court and further stated that the victim was admitted at 8.15 p.m. The victim was attended previously by a 'dai' and it was her first pregnancy. She was seven months pregnant and was bleeding for the last three hours. She was polio affected on both legs, since she was ten months of age, as depicted by the victim. The victim was operated on 9.20 a.m. The baby was upside down, who was born dead. The child specialist was consulted but the child could not be saved. The patient was discharged in satisfactory condition after the operation. When this doctor proceeded on leave, she was attended by Dr. Nisha. Since the patient was handled by a 'dai', she was infected and due to other complications, the child had died. Even the doctor, who had examined the patient, could not get heart beats of the child. The anesthetic was also called in the O.T. This witness has proved the bed head ticket as Ext. Ka-7.
6. The prosecution examined as many as seven witnesses. P.W. 1 is Sonu the brother of the victim, who proved the written report as Ext. Ka-1. P.W. 2 is the victim who proved her statement recorded under Section 164 Cr.P.C. as Ext. Ka-2. The statements of P.W. 3, P.W. 4, P.W. 5 and P.W. 6 have been earlier discussed by me.
7. After close of the prosecution evidence, the statement of the accused was recorded under Section 313 Cr.P.C. in which, while denying the occurrence, he has stated that the uncle of the victim had lodged a false complaint. He has further stated that the widowed aunt (chachi) of the victim was pregnant which was revealed by the accused, hence, he was falsely implicated. However, no evidence was produced in defence by the accused.
8. After hearing counsel for the parties, learned lower court returned the finding of guilt as aforesaid. Feeling aggrieved the appellant has come up in appeal.
9. I have heard learned counsel for the parties at length and perused the trial court record.
10. The counsel for the appellant has submitted that the learned lower court has based its findings on inadmissible evidence, thus, the conviction is bad in the eyes of law.
11. Per contra the learned A.G.A. has submitted that the findings of the fact recorded by the trial court is based on evidence of the victim and no corroboration was required when the testimony of the victim was clear, cogent and convincing. He has further contended that there was nothing to show that the victim has falsely implicated the accused and the appeal is liable to be dismissed.
12. It has been submitted on behalf of the appellant that there is delay in lodging the F.I.R., hence the whole prosecution story is concocted. It has been submitted that the matter was reported to the police as late as 12.12.2009 when the pregnancy was got terminated and the victim was being raped for the last many months. Hence, the delay in lodging the report is fatal for the prosecution case.
13. As far as the delay is concerned, in the report, it has been mentioned that the victim and the informant are orphans. Their parents had died and the aunt(mausi) of the victim namely Lajja was living with the victim. The informant himself was working in Madhya Pradesh and he could know about the occurrence only after termination of the pregnancy of the victim. P.W. 1 Sonu has stated that his sister was physically disabled. The accused threatened the victim and raped her and when she became pregnant he and his parents took her to the J. N. Medical College, Aligarh and got her aborted. In cross-examination, this witness has admitted that although his family is very big but his house is separate. The victim always lies on a cot. No one else sleeps in the house. He was informed about the occurrence by his other aunt (chachi) named Rani. This witness was put to the test of cross-examination but there is no reason for false implication of the accused. A note can be taken of the fact that the victim is physically handicapped girl whose both legs are polio affected. As per evidence of her brother, P.W.1 Sonu , she remained lying on the cot neglected and unattended. May be, at times, even her presence in the house would have gone unnoticed. Victim (P.W.2) has stated that she is physically disabled and unable to walk. She is suffering from polio. Her aunt (mausi) looks after her. She has specified that her aunt (mausi) is a sweeper in the Nagar Palika, Khair and attends her duty in shifts. This makes it all the more clear that Lajja, the aunt (muasi) of the victim, must be busy in her duty and the household affairs in the remaining time. While reiterating the other facts, the victim has stated that after she became pregnant as a result of rape by the accused, she told the fact to the parents of the accused at which the appellant and his parents assaulted the victim and took her to the J. N. Medical College, Aligarh and got her aborted. Then, she narrated the occurrence to her aunt (mausi) Lajja and aunt (chachi) Rani. They called her brother from Madhya Pradesh who came and then the incident was narrated to the informant who lodged the report. She has also stated that the brother-in-law of the victim has threatened her not to disclose anything to anyone. This witness has not cross examined on the point of delay in lodging the F.I.R. Thus, there being a series of acts of rape on a girl, I do not think the delay in lodging the F.I.R. remains unexplained. Thus, the delay in lodging the F.I.R. is explained, which is very reasonable and plausible.
14. As far as the age of the victim is concerned, Rule 12 of the Juvenile Justice Care and Protection Act reads as follows:-
"12. Procedure to be followed in determination of Age.- (1) In every case concerning a child or a juvenile in conflict with law, the court or the Board or as the case may be the Committee referred to in rule 19 of these rules shall determine the age of such juvenile or child or a juvenile in conflict with law within a period of thirty days from the date of making of the application for that purpose.
(2) The Court or the Board or as the case may be the Committee shall decide the juvenility or otherwise of the juvenile or the child or as the case may be the juvenile in conflict with law, prima facie on the basis of physical appearance or documents, if available, and send him to the observation home or in jail.
(3) In every case concerning a child or juvenile in conflict with law, the age determination inquiry shall be conducted by the court or the Board or, as the case may be, the Committee by seeking evidence by obtaining -
(a) (i) the matriculation or equivalent certificates, if available; and in the absence whereof;
(ii) the date of birth certificate from the school (other than a play school) first attended; and in the absence whereof;
(iii) the birth certificate given by a corporation or a municipal authority or a panchayat;
(b) and only in the absence of either (i), (ii) or (iii) of clause (a) above, the medical opinion will be sought from a duly constituted Medical Board, which will declare the age of the juvenile or child. In case exact assessment of the age cannot be done, the Court or the Board or, as the case may be, the Committee, for the reasons to be recorded by them, may, if considered necessary, give benefit to the child or juvenile by considering his/her age on lower side within the margin of one year.
and, while passing orders in such case shall, after taking into consideration such evidence as may be available, or the medical opinion, as the case may be, record a finding in respect of his age and either of the evidence specified in any of the clauses (a)(i), (ii), (iii) or in the absence whereof, clause (b) shall be the conclusive proof of the age as regards such child or the juvenile in conflict with law.
(4) If the age of a juvenile or child or the juvenile in conflict with law is found to be below 18 years on the date of offence, on the basis of any of the conclusive proof specified in sub-rule (3), the Court or the Board or as the case may be the Committee shall in writing pass an order stating the age and declaring the status of juvenility or otherwise, for the purpose of the Act and these rules and a copy of the order shall be given to such juvenile or the person concerned.
(5) Save and except where, further inquiry or otherwise is required, inter alia, in terms of section 7A, section 64 of the Act and these rules, no further inquiry shall be conducted by the court or the Board after examining and obtaining the certificate or any other documentary proof referred to in sub-rule (3) of this rule.
(6) The provisions contained in this rule shall also apply to those disposed off cases, where the status of juvenility has not been determined in accordance with the provisions contained in sub-rule (3) and the Act, requiring dispensation of the sentence under the Act for passing appropriate order in the interest of the juvenile in conflict with law."
15. There is neither any medical report nor any school certificate as regards the age of the victim is concerned. The brother of the victim has stated the age of the victim to be 17 years at the time of incident. The victim herself has stated her age to be 17 years when her statement was recorded on 1.5.2010. She was seven months pregnant before the time of lodging of report on 12.12.2009. Thus, when the victim was stated to have initially been raped many times, she was below 16 years of age. The age of consent being 16, the series of act of rape was committed on her during her minority. The victim (P.W. 2) has stated that she did not tell anything to the hospital authorities. A series of questions were put to this witness about the termination of the pregnancy. Bed head ticket (Ext.Ka-4) has been assailed by the counsel for the appellant. Inasmuch as it has been stated that in the bed head ticket, the age of the victim has been stated to be 22 years. Her husband's name has been mentioned to be Sanjai therein. One Bhudeo, who had admitted her to the hospital is said to be her uncle by his brother P.W. 1 Sonu, has given his consent for the operation and, thus, the factum of rape is falsified. The bed head ticket is only confined to the delivery of the child. It has no bearing on the factum of rape.
16. Generally, in cases of rape, the court does not ponder to find corroboration if the statement of the prosecutrix inspires confidence and is accepted by the court as such, conviction can be based only on the solitary evidence of the prosecutrix and no corroboration would be required unless there are compelling reasons which necessitate the court for corroboration of her statement. Corroboration of testimony of the prosecutrix as a condition for judicial reliance is not a requirement of law but a guidance of prudence under the given facts and circumstances. Minor contradictions are insignificant. Discrepancies should not be a ground for throwing out an otherwise reliable prosecution case. A prosecutrix complaining of having been a victim of the offence of rape is not an accomplice after the crime. Her testimony has to be appreciated on the principle of probabilities just as the testimony of any other witness; a high degree of probability having been shown to exist in view of the subject matter being a criminal charge. However, if the court finds it difficult to accept the version of the prosecutrix on its face value, it may search for evidence, direct or substantial, which may lend assurance to her testimony as has been held in Vishnu Vs. State of Maharashtra, AIR 2006 SC 508.
17. The evidence of the prosecutrix is found suffering from serious infirmities and inconsistencies with other material, prosecutrix making deliberate improvements on material point with a view to rule out consent on her part and there being no injury on her persons even though her version may be otherwise, no reliance can be placed upon her evidence as has been held in Suresh N. Bhusare & others Vs. State of Maharashtra, (1999) 1 SCC 220.
18. It is trite law that while relying solely on the testimony of the prosecutrix, the court is duty bound to examine such testimony minutely, carefully and with care and caution, and if there is any doubt, the court must immediately look for corroboration from witnesses, medical evidence or other evidence.
19. In the case of the State of Punjab Vs. Gurmit Singh and others, 1996 AIR 1393, the Hon'ble Apex Court has held as under:-
"Before, parting with the case, there is one other aspect to which we would like to advert to.
Of late, crime against women in general and rape in particular is on the increase. 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 on the attitude of indifference of the society towards the violation of human dignity of the victims of sex crimes. 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. The Courts, therefore, shoulder a great responsibility while trying an accused on charges of rape. They must deal with such cases with utmost sensitivity. 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 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, 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.
20. Thus, on the basis of what has been stated above and keeping in view the fact that the victim was helpless and was minor and physically disabled at the time of the incident, I conclude that the prosecution has proved the case beyond all reasonable doubt due to which the factum of enmity with the uncle of victim has no bearing on this case nor it has been brought on record. At this stage, it has further been submitted that the sentence as imposed on the accused is too harsh.
21. In the case of Sevaka Perumal etc. Vs. State of Tamil Nadu AIR 1991 SC 1463, the Apex Court in the matter of awarding proper sentence to the accused in a criminal trial has cautioned the Courts as under:
"Undue sympathy to impose inadequate sentence would do more harm to the justice system to undermine the public confidence in the efficacy of law and society could not long endure under such serious threats. It is, therefore, 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 etc."
22. In the case of Dhananjoy Chatterjee Vs. State of W. B. [1994] 2 SCC 220, this Court has observed that shockingly large number of criminals go unpunished thereby increasingly, encouraging the criminals and in the ultimate making justice suffer by weakening the system's creditability. The imposition of appropriate punishment is the manner in which the Court responds to the society's cry for justice against the criminal. Justice demands that Courts should impose punishment befitting the crime so that the Courts reflect public abhorrence of the crime. The Court must not only keep in view the rights of the criminal but also the rights of the victim of the crime and the society at large while considering the imposition of appropriate punishment. Similar view has also been expressed in Ravji v. State of Rajasthan, [1996] 2 SCC 175. It has been held in the said case that it is the nature and gravity of the crime but not the criminal, which are germane for consideration of appropriate punishment in a criminal trial. The Court will be failing in its duty if appropriate punishment is not awarded for a crime which has been committed not only against the individual victim but also against the society to which the criminal and victim belong. The punishment to be awarded for a crime must not be irrelevant but it should conform to and be consistent with the atrocity and brutality with which the crime has been perpetrated, the enormity of the crime warranting public abhorrence and it should "respond to the society's cry for justice against the criminal". If for extremely heinous crime of murder perpetrated in a very brutal manner without any provocation, most deterrent punishment is not given, the case of deterrent punishment will lose its relevance.
23. Appropriate sentence is the cry of the society. Therefore, undue sympathy to impose inadequate sentence would do more harm to the justice system to undermine the public confidence in the efficacy of law and society could not long endure under such serious threats. It is, therefore, 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.
24. This position was reiterated by a three-Judge Bench of the Apex Court in Ahmed Hussein Vali Mohammed Saiyed and Anr. vs. State of Gujarat, (2009) 7 SCC 254, wherein it was observed as follows:-
"99.....The object of awarding appropriate sentence should be to protect the society and to deter the criminal from achieving the avowed object to law by imposing appropriate sentence. It is expected that the courts would operate the sentencing system so as to impose such sentence, which reflects the conscience of the society and the sentencing process has to be stern where it should be. Any liberal attitude by imposing meager sentences or taking too sympathetic view merely on account of lapse of time in respect of such offences will be result-wise counter productive in the long run and against the interest of society which needs to be cared for and strengthened by string of deterrence inbuilt in the sentencing system.
100. Justice demands that courts should impose punishment befitting the crime so that the courts reflect public abhorrence of the crime.
The court must not only keep in view the rights of the victim of the crime but the society at large also while considering the imposition of appropriate punishment. The court will be failing in its duty if appropriate punishment is not awarded for a crime which has been committed not only against the individual victim but also against the society to which both the criminal and the victim belong."
25. In Jameel vs. State of Uttar Pradesh (2010) 12 SCC 532, this Court reiterated the principle by stating that the punishment must be appropriate and proportional to the gravity of the offence committed. Speaking about the concept of sentencing, this Court observed thus: -
"15. 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.
16. 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."
26. In Guru Basavaraj @ Benne Settapa vs. State of Karnataka, (2012) 8 SCC 734, while discussing the concept of appropriate sentence, the Court expressed that:
"It is the duty of the court to see that appropriate sentence is imposed regard being had to the commission of the crime and its impact on the social order. The cry of the collective for justice, which includes adequate punishment cannot be lightly ignored."
27. In Gopal Singh vs. State of Uttarakhand JT 2013 (3) SC 444 held as under:-
"18. Just punishment is the collective cry of the society. While the collective cry has to be kept uppermost in the mind, simultaneously the principle of proportionality between the crime and punishment cannot be totally brushed aside. The principle of just punishment is the bedrock of sentencing in respect of a criminal offence....."
28. Perusal of the record shows that the accused was sentenced to 10 years rigorous imprisonment with a fine of Rs. 10,000/-. A minor helpless orphan girl has been raped by the victim, thus, the punishment of ten years imprisonment and Rs.10,000/- fine cannot be said to be too harsh. The sentence is appropriate.
29. In the circumstances, there is no force in this appeal.
30. Accordingly, the appeal is dismissed and the Judgment and order dated 23.3.2013 passed by Sri Jai Sri Ahuja, learned Additional Sessions Judge, Court No. 4, Aligarh in S.T. No. 273 of 2010, State Vs. Sonu, arising out of Crime No. 791 of 2009, Police Station Khair, District Aligarh is hereby upheld.
31. The accused is in jail. He will serve out the sentence as awarded by the trial court.
32. Let a copy of this judgment be transmitted to the trial court for its intimation.
Order Date :-5.2.2016 Ram Murti