Hon'ble Samit Gopal,J.
(Per Ramesh Sinha, J. for the Bench)
1. The present Criminal Appeal has been preferred against the judgment and order dated 08.03.2013 passed by Additional Session Judge, Court No.6, Etawah in S.T. No.55 of 2010 convicting and sentencing the appellant to undergo for life imprisonment under Section 376(1) IPC and to pay a fine of Rs.20,000/- in default of payment of fine, further imprisonment for one year additional rigorous imprisonment.
2. The brief facts of the case are that the informant Indrapal Singh Katheriya submitted a written report at Police Station Chaubiya, district Etawah on 23.12.2009 stating that his daughter who was aged about 10 years and studying in class IVth had gone to the gram field of Birendra Singh Jatav, resident of Simariya who was known to him for taking gram greens (Chane Ka Saag) and while she was taking the gram greens, the nephew of Birendra Singh namely Jitendra @ Gabbar S/o Rajendra Jatav committed rape on her. His daughter came to her house crying and informed about the entire incident to her mother who in turn informed the informant then the informant inquired from his daughter who told him that Jitendra had dragged her from gram field to mustered field where he committed rape on her. The incident has taken at 1 p.m. in the afternoon. On the basis of written report submitted at police station Chaubiya Case Crime No.231 of 2009 under Section 376 IPC was registered on 23.12.2009 at 17.45 hours against the appellant Jitendra @ Gabbar Jatav which was also endorsed in the G.D. No.19 time 17.45 hours on 23.12.2009 at the said police station.
3. In view of the legislative mandate as contained in Section 228-A of the Indian Penal Code and the observation made by the Apex Court in it's catena of judgments, the identity of the prosecutrix/victim is not being disclosed and she is referred to as 'A' hereinafter.
4. The investigation of the case was entrusted to the Investigating Officer who prepared a site plan of the place of occurrence and took the clothes of the prosecutrix/victim "A" (hereinafter referred as the prosecutrix/victim "A") and prepared the recovery memo of the same. The emergency doctor Jyotsana Bhatiya conducted the medical examination of the victim girl and Dr. Dinesh Singh, Radiologist conducted the ossification test of the victim girl. After completing the investigation of the case the Investigating Officer submitted a charge sheet against the appellant Jitendra @ Gabbar Jatav under Section 376 IPC before the competent court.
5. The learned Magistrate took the cognizance of the offence and committed the case to the court of Sessions. The learned trial court framed charges against the appellant Jitendra @ Gabbar Jatav under Section 376 IPC who denied the same and claimed trial.
6. The prosecution in support of it's case produced P.W.1 prosecutrix/victim "A", P.W.2 Indrapal, P.W.3 Smt. Shiv Kumari, P.W.4 Dr. Jyotsana Bhatiya, P.W.5 Sub-Inspector Dharampal Singh (Investigating Officer), P.W.6 Constable Clerk Tilak Singh, P.W.7 Alok Prabhakar Awasthi 2nd Investigating Officer, P.W.8 Constable Clerk Roshan Lal and P.W.9 Dr. Dinesh Singh Radiologist.
7. The statement of the accused was recorded u/s 313 Cr.P.C who denied the prosecution case and has stated that the police has falsely implicated him in the present case and the witnesses have falsely deposed against him and on the date of the incident he had gone to the house of his maternal uncle at Mainpuri. It was further stated by him that Sunil, Rambabu, Pappu, Ashok, Durgpal, Raj Bahadur, Bhanwarpal had grabbed his land due to said enmity in collusion with the Village Pradhan the appellant has been falsely implicated in the present case.
8. The accused in his defence has produced D.W.1 Nand Ram, D.W.2 Rajeshwar Dayal and D.W.3 Dr. Ravindra Kumar Gupta.
9. The prosecutrix/victim "A" in her deposition before the trial court has stated that she had gone from her house to a field where she was all alone while taking gram greens (chane ka saag), the accused Jitendra @ Gabbar Jatav suddenly came there and squeezed her mouth and further put a country-made pistol on her and slapped her and threatened her that if she raise any alarm she would be killed by country-made pistol. Thereafter he carried her forcibly to a mustered field and put off her clothes and sat on her and committed rape on her. Blood started oozing from her vagina and it also pained. While committing rape on her, the accused had pressed her mouth. The incident has taken place at 1 p.m. in the afternoon and while he was committing rape, ''Shit' (faecal matter) of the victim also came out.
10. The accused told her to go and attend call of nature. The prosecutrix/victim "A" came to her house and narrated the entire incident to her mother. At the time of the incident her father had gone on work. Her father had took her to the police station where he lodged the FIR and on the same day she was sent to the district hospital by the police where she was medically examined. She was admitted in the District Hospital Etawah. The Investigating Officer had recorded her statement and inquired about the incident.
11. The P.W.2 Indrapal who is the informant and father of the victim had stated before the trial court that at the time of the incident the age of the victim was ten years and she was studying in class 4th. She had gone to village Simariya in the field of Birendra Singh Jatav for taking chaney ka saag where the nephew of Birendra Singh Jatav had committed rape on prosecutrix/victim "A". After the incident his daughter came to her house crying and narrated the entire incident to her mother. His wife had informed about the incident and thereafter the witness inquired about the same from his daughter who reiterated the version which has been given by her in the FIR as well as before the trial court. Thereafter this witness took his daughter to the police station Chaubia and got the report written from one Anoj Kumar of his village and gave the same at the said police station. Anoj Kumar had written the report on the dictation given by P.W.2 Indrapal which was read over to him and he put his signature on the same on the basis of which the FIR was registered against the accused appellant. The witness has proved paper no.5 Ka to be the written report which he he got written by Anoj Kumar and identified his signature on the same and he proved the said report as Ext. Ka-1. He deposed that the incident had taken place at 1 p.m. in the afternoon. The incident was narrated by the prosecutrix/victim "A" to him which he got written in the report.
12. P.W.3 Smt. Shiv Kumari who is the mother of the prosecutrix/victim "A" (P.W.1) has deposed before the trial court that her daughter was studying in class 4th. At about 10 a.m. in the morning her daughter had gone to the field of Birendra Singh Jatav for taking gram greens (chane ka saag) and when she did not return then she sent her husband to search her out and when her husband had gone to search her daughter, then her daughter was coming from the field. When her daughter came to her house, her clothes were blood-stained and she was crying and told her that when she had gone to take gram greens (chane ka saag) then accused Jitendra @ Gabbar Jatav came there and pressed her mouth in the mustard field and committed rape on her. Blood was oozing out from her private parts and she tried to console her and put the clothes etc. for stopping blood. She informed her husband as has been told by her daughter the prosecutrix/victim "A". Her husband had gone to trace out accused Jitendra @ Gabbar in the field but he was not there. Thereafter her husband had gone to the concerned police station for lodging the FIR. She also had accompanied her husband along with her daughter prosecutrix/victim "A". Besides them her father-in-law Subedar and Sister-in-law had also gone to the police station. After the registration of the FIR the police had sent all of them including her daughter to the District Hospital, Etawah for medical examination where the same was conducted and for medical treatment prosecutrix/victim "A" was admitted. Her X-Ray was also conducted on the next day. There was no enmity between the accused-appellant Jitendra @ Gabbar Jatav with his family prior to the incident.
13. The Investigating Officer has recorded her statement under Section 161 Cr.P.C. Her daughter remained in the hospital for about 10 to 11 days.
14. P.W.4 Dr. Jyotsana Bhatiya was examined by the trial court and she deposed that on 23.12.2009 she was posted at women hospital as a medical officer. She examined the prosecutrix/victim "A" at 10.30 p.m. and she was brought by constable Anar Singh and C.P.M Constable Shiv Kumari. She has proved the medical examination report of the prosecutrix/victim "A" as Ext. Ka-2 which was in his handwriting and signature. On medical examination she found following injuries on the person of the prosecutrix/victim "A".
"Height 127 cm, weight 20 kg, teeth 12/12. No mark of injury on external surface of body. Breasts not developed. Pubic axillary hair not developed."
The witness on the internal examination of the prosecutrix/victim "A" found that her hymen was torn and it was bleeding. There was blood clot and vagina admits one finger and after removing the blood clot, vaginal smear was taken and sent to pathological report. There was perennial tear at 6 ''O' clock position which was stitched laceration on lateral vaginal wall."
15. She also prepared a supplementary medico legal report of the prosecutrix/victim "A" on the same day and has proved the same as Ext.Ka-3, which is reproduced as under:-
"A black mole on left side of abdomen 7 cm. away from umbilicus.
Pathology report- Given by pathologist District Hospital Etawah No.89, dated 24.12.2009 No alive or dead Spermatozoa seen.
Radiology report- Given by radiologist District Hospital Etawah No.1004/09 dated 24.12.2009.
X-Ray Elbow A.P- Epiphyses of elbow joint are not fused.
X-Ray Wrist Joint A.P- Epiphyses of lower and of radius, ulna and 1st metacarpal not fused Plsiform not appeared.
X-Ray Knee joint- Epiphyses of knee joint are not fused.
Opinion- Injury is simple and caused by insertion of some hard and blunt object. Duration of injury about 24 hours. The age of the girl is below 11 years."
16. As per pathological report no.89 dated 24.12.2009, there was no live or dead Spermatozoa was found. As per X-Ray report bones of elbow, wrist and knee were not found to be fused. As per opinion of the doctor, the injuries sustained on the internal examination injury was found to be simple and caused by insertion of hard and blunt object and duration of the injury was 24 hours. The age of the prosecutrix/victim "A" was below 11 years and she further stated that the said injuries could be caused on 23.12.2009 in the afternoon at 1 p.m. She further deposed that if a male person aged about 22 to 25 years commits rape on a girl then the injury which has been caused to the prosecutrix/victim is possible. She has proved the supplementary report which is paper no.9 Ka/3 as Ext.Ka-3. The prosecutrix/victim "A" was admitted in the district hospital for medical examination as her wounds were stitched.
17. P.W.5 S.I. Dharmpal Singh in his deposition before the trial court has stated that he was posted on 23.12.2009 at P.S. Chaubia on the post of Sub-Inspector. On the said day the FIR was registered on the written report submitted by the informant Indrapal Singh against Jitendra @ Gabbar Jatav which was registered as Case Crime No.231 of 2009 under Section 376 IPC. The investigation of the said case was entrusted to him. He recorded the statement of the informant Indrapal Singh at village Beena who met him at his house and at the pointing out of the informant, he visited the place of occurrence and prepared the site-plan in his handwriting and signature and proved the same as Ext.Ka-4. He also recorded the statement of the persons of the nearby field. The said Investigating Officer was transferred, hence the investigation was entrusted to P.W.7 S.I. Alok Prabhakar Awasthi thereafter.
18. P.W.6 Constable Clerk Tilak Singh has stated that on 24.12.2009 he was posted at police station on the said post. On the said date Constable Anar Singh and woman constable Shiv Kumari has handed over underwear of blue colour, one white salvar (terricot), one kurta green and one piece of old saari and one piece of white clothe which was torned and blood stained were found on the same were submitted at the police station which was sealed in a bundle as the same was police property which he prepared in his handwriting and signature and also prepared recovery memo of the same and proved the same as material Ext.-1 which was opened in the court and was again proved as material Ext. 2 to 6 and the same was thereafter sent to Vidhi Vigyan Prayogshala, Agra for Chemical analysis report.
19. P.W.7 Alok Prabhakar Awasthi who was produced before the trial court has stated that on 27.12.2009 he was posted at police station Chaubia on the post of Sub-Inspector and on the said date, he had taken over the investigation of the case from the earlier Investigating Officer S.I. Dharmpal Singh who was transferred. He recorded the statement of the accused Jitendra @ Gabbar Jatav on 27.12.2009 and further recorded the statement under Section 161 Cr.P.C. of Smt. Shiv Kumari. He also recorded the statement of other witnesses under Section 161 Cr.P.C. including Dr. Jyotsana Bhatiya and thereafter submitted the charge sheet against the accused-appellant under Section 376 IPC and proved the same as Ext.Ka-6. He also received the report of the Vidhi Vigyan Prayogshala on 26.3.2010 which is on record as paper no.33 Ka/1. According to the chemical analysis report on material Ext.1 underwear Spermatozoa was found and on the underwear, salvar, kurta and piece of cloth which was material Ext.1 to 4 human blood was found and in material Ext.1 human semen was found and he has proved the chemical analysis report as Ext. Ka-7.
20. P.W.8 Constable Clerk Roshan Lal has stated that while he was posted at police station Chaubia on the said post on 23.12.2009, the informant Indrapal Singh on the said day had submitted a written report against the accused-appellant Jitendra @ Gabbar Jatav on the basis of which the present case was registered under Section 376 IPC and he has prepared the Chik FIR in his handwriting and signature and proved the same as Ext.Ka-8. He further endorsed the said FIR in the G.D No.19 at 17.45 hours on 23.12.2009 in his hand and signatures. A carbon copy of the same which is on record and proved the same as Ext.Ka-9.
21. P.W.9 Dr. Dinesh Singh, has stated before the trial court that on 24.12.2009 he was posted on the post of Radiologist in the District Hospital Etawah and on the said date, he conducted the X-Ray of the prosecutrix/victim "A" who was brought by woman constable Shiv Kumari and constable Amar Singh of police station Chaubia and on X-Ray report following features were noticed which are reproduced here under "(ossification test): X-Ray Elbow A.P- Epiphyses of elbow joint are not fused.
X-Ray Wrist joint A.P- Epiphyses of lower end of radius, ulna and Ist Metacarpal not fused. Dissiform not appeared.
X-Ray right knee joint A.P- Epiphyses and knee joint are not fused."
22. He has proved the same as Ext.Ka-10 in his handwriting and signatures. The X-Ray plates have been marked as material Ext.1.
23. The accused-appellant in his defence has produced three witnesses in support of his case i.e. D.W.1 Nand Ram, D.W.2 Rajeshwar Dayal and D.W.3 Dr. Ravindra Kumar Gupta.
24. D.W.1 Nand Ram has stated before the trial court that adjacent to his field there is a field of Dayaram, Birendra, Rajesh and Visheshwar in which there is crop of Potato, Onion and Garlic. On 23.12.2009 when he was working on his Garlic field, there were five other labours working with him. The water engine in the field of Birendra was running because of which the water was coming in the field of Garlic and nearby persons Gangaram, Visheshwar, Rajeshwar and Shyam Babu were also there and there was agricultural work going on in their field and in the said field also there were 25 labours working. From 6 a.m. to 6 p.m. he was working in his field and others were also present till the evening in the field. They had taken their lunch in the field and in the nearby area, there was no field of Mustard. From 6 a.m. till 6 p.m. in the evening the daughter of Indrapal had not come to the field of Birendra Singh. In the field of Birendra Singh, there was crop of Garlic. Jitendra @ Gabbar Jatav had gone to his maternal uncle four days prior to the incident and was not present at village Simariya. The plot of the father of Jitendra which was in village Beena was grabbed by Dragpal Singh and others with the help of the informant Indrapal Singh and the said persons have falsely implicated the accused Jitendra @ Gabbar Jatav after bribing the police. The Village Pradhan has also given a plot to the informant Indrapal as an allurement and thereafter the said plot was also allotted in the name of informant Indrapal. In the evening he heard that daughter of Indrapal had gone to the field of Arhar where she received injuries on her private part. The accused Jitendra @ Gabbar is innocent and he has been falsely implicated in the present case due to deep rooted conspiracy.
25. D.W.2 Rajeshwar Dayal has stated before the trial court that his agricultural field is near the field of Dayaram and he too reiterated the version given by D.W.1.
26. D.W.3 Dr. Ravindra Kumar Gupta in his deposition before the trial court has stated that on 27.12.2009, he was posted on emergency duty in District Hospital Etawah and at 3.30 p.m. Constable Mohar Singh and Constable Shiv Prakash of police station Chaubia had brought the accused-appellant Jitendra @ Gabbar Jatav aged about 18 years for medical examination. In the medical examination he did not find any injuries on his private part and there was no Spermatozoa or blood found on his person who had not weared any underwear which could also be examined. He was referred to the pathologist for smear examination on the basis of chitthi majroobi his medical examination report was prepared which was brought by constable Shiv Prakash which is on record. He had stated about the age of accused-appellant Jitendra @ Gabbar to be 18 years of his appearance and that can be a margin of 1-1/2 years plus and minus. He stated that the opinion about the age is given by the CMO on the basis of an X-Ray report. He has identified the appellant before the court. He has produced the original register of the medical examination before the trial court as paper no.16-Kha/1 and proved the same as Ext.Kha-1.
27. The trial court after scanning the prosecution as well as defence evidence came to a conclusion that it was the appellant who had committed rape on the prosecutrix/victim "A" and has convicted and sentenced him under Section 376(1) IPC for life imprisonment. Aggrieved by the impugned judgement and order, the appellant has preferred the instant appeal.
28. Heard Sri Rajesh Kumar Mishra, learned counsel for the appellant and Mrs. Archana Singh, learned AGA for the State and perused the record.
29. The learned counsel for the appellant has confined his argument and addressed the Court only on the question of sentence. He argued that the appellant has served out minimum sentence of ten years for the offence under Section 376(1) IPC as he is in jail for last eleven years since 27.12.2009 and be released on this count. He submitted that the maximum sentence which has been provided by the trial court for the offence under Section 376(1) IPC for life imprisonment is too severe and should be set-aside and the appellant be released to the period already undergone. In support of his argument he has placed reliance on the judgement of the Apex Court in the case reported in 2012 (1) All JIC 319 Bavo @ Manubhai Ambalal Thakore Vs. State of Gujarat wherein The Apex Court has considered the question of sentence where the said accused was sentenced to life imprisonment by the trial court which was maintained by the High Court and the accused was released as he had served out minimum sentence of 10 years where the victim was 7 years old minor girl.
30. The learned AGA on the other hand has vehemently opposed the argument of learned counsel for the appellant on the question of sentence and has argued that the present case is a case where a minor girl aged about 10 years was subjected to rape by the appellant and the prosecution has further proved it's case beyond reasonable doubt against the appellant for his conviction under Section 376(1) IPC and the trial court has rightly convicted him and sentenced for life imprisonment for the said offence and it has also categorically given cogent reason for awarding sentence of life imprisonment to the appellant which does not call for any interference by this Court and the appeal may be dismissed by this Court. She in support of her argument has placed reliance of a judgement of the Apex Court reported in AIR 2013 Supreme Court 2209 Shyam Narain Vs. State of NCT of Delhi has stated that the proposition of law for imposition of sentence in offence of rape has been dealt by the Apex Court considering the impact of such offences on the society as a whole and its ramifications on immediate collection as well as reparations on the victim. She pointed out that in the said case the victim girl was eight years who narrated the incident and the threat given to her by the accused. The deposition of the prosecutrix corroborated by testimony of treating physician and medical evidence conviction of the accused was upheld by the Apex Court and further the sentence awarded to him for life imprisonment by the trial court, upheld by the High Court and confirmed by the Apex Court.
31. The learned counsel for the appellant fairly states that he is not challenging the conviction but questioning the question of sentence only and State has opposed the argument of learned counsel for the appellant on the quantum of sentence in view of the limited submissions we deem it that there is no need to go into the finding regarding the conviction under Section 376(1) IPC and the only question to be considered is whether the sentence of life imprisonment and fine of Rs.20,000/- is reasonable or excessive. Section 376 speaks about the punishment for rape. Sub-Section 2(F) makes it clear that who ever commits rape on a women under ten years, shall be punished 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. Proviso appended to Sub-Section (2) makes it clear that the Court may, for adequate and special reasons to be mentioned in the judgement impose a sentence of imprisonment of either descriptions for a term of less than ten years. It is clear from the above statutory provision that for the offence of rape on a girl under twelve years of age, punishment shall not be less than ten years but which may extend to life and also to fine shows that the legislature intended to adopt strictness in awarding sentence if the victim is below twelve years of age. No doubt, the provision of Section 376(2) IPC lays down that the Court may, for adequate and special reason to be mentioned in the judgement, impose a sentence of imprisonment of either description for a term of less than ten years, it is settled law that Courts are obliged to respect legislative mandate in the matter of awarding of sentence in all such cases. In the absence of any special and adequate reasons, recourse to proviso mentioned above cannot be applied in casual manner.
32. Thus in the light of the above mandate of law we proceed to consider the argument of learned counsel for the appellant regarding the quantum of sentence awarded to the appellant for the offence for which he has been convicted i.e. under Section 376(1) IPC. It is evident from the prosecution case that the prosecutrix/victim "A" was aged about ten years at the time of incident and she was studying in class 4th. While she had gone in the field of one Birendra Singh Jatav for taking gram greens (chane ka saag) then the appellant Jitendra @ Gabbar Jatav suddenly came and dragged the deceased towards the mustard field by pressing her mouth and committed rape on her. The medical evidence of the prosecutrix/victim "A" shows that her hymen was torn which was also bleeding, vagina admits one finger, smear was taken perennial tear at 6 ''O' clock position which was stitched, lacerations present on the lateral vaginal wall. As per the supplementary medical report of the prosecutrix/victim "A", she was also found to be below 11 years of age. On her underwear spermatozoa was found where on her clothes i.e. underwear, salvar, kurta and piece of clothe blood stains were found. The prosecutrix/victim "A" in her deposition before the trial court has categorically stated that it was the appellant who had committed rape on her and she after the incident went crying and informed her mother P.W.3 Smt. Shiv Kumari about the entire incident who further informed her husband i.e. P.W.2 Indrapal on which the P.W.2 immediately lodged an FIR of the incident on the same day at 7.45 hours. As per prosecution case the incident has taken place on 23.12.2009 at 1 p.m. in the afternoon which is 16 km. away from the place of occurrence. It is further noteworthy to mention here that the prosecutrix/victim "A" in her deposition before the trial court has stated that because of the rape being committed by the appellant, she felt pain in her private part and her faecal matter also came out and the accused told her to go and attend the call of nature. The appellant had led evidence in defence showing his false implication in the present case on account of the fact that 10 to 14 years back, he had left the village because some people of the village namely Drag Pal, Sunil, Rambabu, Pappu and Raj Bahadur had grabbed the plot of his father on account of which in collusion with the village Pradhan the appellant has been falsely implicated in the present case. The appellant has further taken a defence that he was not present at the time time and place of the occurrence as he was at Mainpuri and gone to the house of his maternal uncle. In this regard he has produced the defence witness D.W.1 and D.W.2 and further D.W.3 Doctor Ravindra Kumar Gupta who had examined the appellant. When the appellant was brought on 27.12.2009 by the police constable in the present case and he did not find any injuries on the private part of the appellant and no Spermatozoa or blood was found on his person. He was not wearing any underwear which could be taken for examination. The appellant was examined on the basis of Chitthi Majroobi brought by the two constables. The appellant was aged about 18 years as per the said Doctor. The defence taken by the appellant was rightly rejected by the trial court giving sound reasons.
33. The suggestion was also given by the defence to the victim that she received some injury on her private part due to fall on a pointed substance in the Arhar field which she has categorically denied and has stated that it was the appellant who has committed rape on her. It has come in the evidence of P.W.2 Indrapal and P.W.3 Smt. Shiv Kumari who are the father and mother prosecutrix/victim "A" that they had no enmity prior to the incident with the appellant. The defence witnesses i.e. P.W.1 Nand Ram and D.W.2 Rajeshwar Dayal were disbelieved by the trial court on the ground that the two defence witnesses were the uncle of the appellant and they had just given evidence to save the appellant from the present case. The evidence of P.W.4 Dr. Jyotsana Bhatiya who has examined the prosecutrix/victim "A" has categorically stated before the trial court that the nature of injury sustained by the prosecutrix/victim "A" on her private part could be caused by hard and blunt object i.e. of erect of penis and if a person of 20 to 25 years commits such an offence against a victim till such injury as has been received by the prosecutrix/victim "A" is quite possible. She has further stated that the victim was admitted in the hospital as her wounds were stitched and she remained in the hospital for about 10 to 11 days. The injuries found on the prosecutrix/victim "A" was fresh one. She further denied the suggestion given by the defence that the victim could have received injuries on account of fall on a pointed wood. She identified the victim of whose medical examination she conducted after the incident. Thus the trial court arrived at a conclusion convicting the appellant for the offence under Section 376(1) IPC for life imprisonment. From the impugned judgement and order passed by the trial court, it reveals that while considering the quantum of sentence for the offence in question it had gone through the plight of the victim who was a minor helpless girl against whom such a heinous crime was committed by the appellant who brutally subjected her to rape and further ramifications of the offence and it impact on the society has been considered in great details. The judgement cited by the learned counsel for the appellant in the case of Bavo @ Manubhai Ambalal Thakore Vs. State of Gujarat (Supra) wherein the Apex Court considered the quantum of sentence has considered that the award of life imprisonment which is maximum prescribed is not warranted taking into account that the accused was aged about 18/19 years and the incident has occurred nearly ten years ago and awarded him sentence of ten years R.I and further considered the imposition of fine of Rs.20,000/- by the trial court which was reduced to Rs.1,000/- as the accused belong to poor family and working as agricultural labour was not in a position to pay such huge amount and, therefore, the present appellant is also entitled to be sentenced for ten years R.I as he had already undergone eleven years in jail as stated to be in jail since 27.12.2009.
34. We have very humbly considered the judgement of the Apex Court as has been cited by the learned counsel for the appellant but we cannot lose sight of another judgement of the Apex Court as has been relied upon by the learned AGA in the case of Shyam Narayan Vs. State of NCT Delhi (Supra) where the victim girl was aged about eight years and the Apex Court confirmed the conviction of the said accused for the offence under Section 376(2) (F) IPC by the trial court which sentenced him for life imprisonment and High Court also upheld the said sentence imposed by the trial court and further the Apex Court confirmed the said sentence of life imprisonment on the said accused observing that sentencing has a social goal awarding just sentence is complex exercise. Court has to take balance between reformatory theory and principle of proportionality. While considering the quantum of sentence in the said case, the Court has very widely considered various aspects of the matter such as the plight of the victim, social ramifications of the offence on the society. In this regard it would be not out of place to mention to quote paragraphs 11, 12, 13, 14, 15, 17, 18, 19, 20, 21 of the said judgement which are reproduced here as under:-
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[1], 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[2], 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[3], 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".
15. In Gopal Singh v. State of Uttarakhand[4], 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.
17. In Madan Gopal Kakkad v. Naval Dubey and another[5], 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[6], 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[7], 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[8], 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[9], 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."
35. Thus in view of the foregoing discussions and the law as has been enunciated by the Apex Court in the case Shyam Narayan Vs. State of NCT Delhi (Supra) applying to the instant case we have no hesitation to hold that the conviction of the appellant for the offence u/s 376(1) IPC and sentence for life imprisonment with fine of Rs.20,000/- and in default of the same 1 year R.I as has been awarded by the trial court is fully justified in the facts and circumstances of the present case which has in a very detailed manner has discussed the issue of imprisonment of sentence and given cogent reason for awarding a sentence for imprisonment of life to the appellant which is a sound one. Therefore, we upheld the conviction and sentence awarded by the trial court to the appellant for the offence for which he has been charged with, and the same does not call for any interference by this Court, hence the appeal of the appellant lacks merit and is accordingly dismissed.
36. The accused-appellant is stated to be in jail. He shall remain in jail to serve out the sentence awarded by the trial court.
37. Let a copy of this judgment be transmitted to the trial court concerned forthwith along with lower court record for necessary information and follow up action.
38. The party shall file computer generated copy of order downloaded from the official website of High Court Allahabad, self attested by it alongwith a self attested identity proof of the said person (s) (preferably Aadhar Card) mentioning the mobile number (s) to which the said Aadhar Card is linked before the concerned Court/Authority/Official.
39. The concerned Court/Authority/Official shall verify the authenticity of the computerized copy of the order from the official website of High Court Allahabad and shall make a declaration of such verification in writing.