Hon'ble Vikas Kunvar Srivastav,J.
(Delivered By Hon'ble Ved Prakash Vaish,J.)
1. This is an appeal against the judgment and order on sentence dated 20th January, 2012 passed by learned Additional Sessions Judge, Barabanki in Sessions Trial No.571/11 whereby the appellant has been convicted for the offence under Section 376 Indian Penal Code ('I.P.C.') and sentenced to undergo life imprisonment and fine of Rs.2,000/-, in default of payment of fine to further undergo imprisonment for one year. However, the appellant was acquitted for the offence under Section 506(2) of the I.P.C.
2. The case of the prosecution as unfolded during trial is that Sri Shameem Ahmad, father of the prosecutrix lodged a complaint that on 02nd November, 2010, he had gone to field to cut dhaan and at about 10:00 A.M, his daughter (prosecutrix) had gone for easement by the roadside, the prosecutrix did not return to the house for a long time; when it came to his knowledge, he started tracing out his daughter; on inquiry, his son Kalim Ahmad aged 13 years informed that Prem Chamar, resident of village-Inamipur who used to do cobbler work in his village forcibly took the prosecutrix on bicycle towards village Inamipur, P.S. Zaidpur. When he along with one other person reached outside village Inamipur tracing out his daughter, he saw that his daughter (prosecutrix) weeping who disclosed the entire incident; he found bloodstains on her undergarments and he concluded that Prem Chamar had committed rape on his daughter. On the said complaint, F.I.R. No.743 of 2010 for the offence under Section 376 I.P.C. was registered on 02.11.2010 at P.S. Satrikh, District-Barabanki. The prosecutrix was medically examined on 02.11.2010 at District Mahila Hospital and statement of prosecutrix under Section 164 Code of Criminal Procedure (Cr.P.C.) was recorded on 08.11.2010. During investigation, the bloodstained clothes of the prosecutrix as well as the accused were seized. On completion of investigation, charge-sheet for the offence under Section 376/ 506 I.P.C. was filed. After complying with the provisions of Section 207 Cr.P.C., the case was committed to learned Sessions Judge, Barabanki.
3. After hearing arguments on charge and considering record of the case, on 25.04.2011, learned trial court found sufficient ground to proceed against the appellant Sh. Prem Chamar for the offence punishable under Section 376/506 (2) I.P.C. and accordingly, charge was framed. The appellant abjured his guilt and claimed trial.
4. In order to prove the case of prosecution, the prosecution examined as many as eight witnesses. Mohd. Shameem, P.W.-1, the complainant and father of the prosecutrix has deposed in terms of his compliant where he has proved his compliant as Ex. Ka-1. He has also deposed clothes of his daughter (prosecutrix) and bloodstained clothes were seized vide seizure memo Ex.Ka-2. The prosecutrix was examined as P.W.2. She deposed that nine months ago at about 10:00 A.M. she had gone for defecation. The accused-appellant forcibly took her on his bicycle. She knew him before the incident as the accused used to come in the market for performing cobbler work and she deposed that he committed rape thereafter; when she starting crying, the accused-appellant threatened her and said that he has already killed two girls; when blood started oozing out from her private part, the accused fled towards the forest. While coming back to her village, she met her father and one other person and disclosed the facts to them. She stated that statement under Section 164 Cr.P.C. was recorded in the court which is Exhibit Ka-5. Her statement was recorded by the Investigating Officer and her bloodstained undergarment and shirt were seized by the police. P.W.-3, Md. Kalim is brother of the prosecutrix. He has deposed that on 02.11.2010 at about 10:00 A.M., he along with his sister (prosecutrix) had gone for easement. He was sitting on one side of the road and the prosecutrix was sitting on the other side of the road; the accused-Prem Chamar, resident of village-Inamipur who used to work as cobbler in the village and was known to him, forcibly took his sister on his bicycle towards village Inamipur. He also deposed that he is handicapped; he tried to apprehend the accused but he fled; his father had gone for cutting dhaan in the field and when his father came back, he disclosed the incident to his father; his father went to trace out his daughter and the prosecutrix was found weeping outside the village Inamipur. He has also stated that when the accused was forcibly taking his sister (prosecutrix), he raised noise but no person was present at that time. Investigating officer interrogated him and he disclosed the entire facts. P.W.-4, Dr. S.K. Singh is Senior Consultant, District Hospital, Barabanki deposed that X-ray was conducted under his supervision/ presence and he has proved X-ray report as Ex. Ka-4 and X-ray plate as Ex. Ka-1. P.W.-5, Dr. Vinod H. Gupta, District Hospital, Barabanki has deposed that slide of vaginal smear was received and examined by him, he has proved his report as Ex. Ka-5. P.W.-6, Dr. Shipra Singh, Consultant, District Mahila Hospital has deposed that on 02.11.2010 at about 05:30 P.M., prosecutrix was examined by her; she prepared M.L.C which is Ex. Ka-6. She sent a letter for pathology which is Ex. Ka-8. P.W.7, H.M. Gulab Singh, Head Mauharir, P.S. Satrikh, District-Barabanki has deposed that he registered the F.I.R. bearing F.I.R. No.743 of 2010 at about 15:45 P.M.for the offence under Section 376 I.P.C. on the complaint of Md. Shameem Ahmed (father of the prosecutrix). He has proved copy of F.I.R. as Ex. Ka.9. P.W.8, Devi Sharan Maurya is Investigating Officer of the case. He has deposed that he received the investigation on 02.11.2010 and on 03.11.2010, he moved an application for recording statement under Section 164 Cr.P.C. He stated that thereafter various steps were taken by him. He has proved the site plan where the accused forcibly took the prosecutirx as Ex. Ka.10 and the site plan where the rape was committed as Ex. Ka.11. He prepared chargesheet which is Ex. Ka.12, site plan of shirt as Ex. Ka.13 and the seizure memo of the shirt of the accused as Ex. Ka.14.
5. After completion of prosecution evidence, statement of the appellant was recorded under Section 313 Cr.P.C. The appellant denied the same and pleaded false implication. The appellant also stated that he owns land admeasuring 02 bighas towards western side of Barabanki Zaidpur road, Village Inamipur Katra. One Mr. Vishram, resident of village Katra, P.S. Zaidpur wanted to grab the said land and therefore by the instance of Vishram, complainant lodged a false report against him. The appellant chose to lead defence evidence. However, the appellant did not adduce any defence evidence as mentioned in the impunged judgment.
6. After completion of evidence and considering the rival contentions of the parties, learned trial court found the appellant to be guilty for having committed the offence under Section 376 I.P.C. and sentenced the appellant.
7. Being aggrieved by the impugned judgment and order on sentence dated 20th January, 2012, the appellant preferred the present appeal.
8. Learned Amicus Curiae for the appellant submitted that the conviction cannot be based on the sole testimony of the prosecutrix; there is no other evidence to corroborate her version; he also submitted that the alleged incident took place at about 10:00 A.M. but no independent witnesses were joined by the prosecution. He also submitted that there was no resistance on the part of the prosecutrix and even brother of the prosecutrix did not apprehend the appellant at the time of alleged incident.
9. Learned Amicus Curiae for the appellant further submitted that the appellant was alone at the time of alleged incident and it is not possible for a single person to forcibly take the prosecutrix.
10. Learned Amicus Curiae for the appellant urged that shirt of the appellant was seized on 07.11.2010 i.e. after delay of five days which has not been explained by the prosecution.
11. Learned Addl. G.A. for the State contended that prosecutrix in her statement under Section 164 Cr.P.C. has stated that appellant committed rape on her.
12. Learned Addl. G.A. for the State submitted that prosecutrix has been examined as P.W.2 and she has supported the case of prosecution, she categorically stated that appellant committed rape on her; she was cross-examined at length but nothing incriminating could be elicited. The same is corroboration by father (P.W.1) and brother of the prosecutrix (P.W.3). He further submitted that prosecutrix was medically examined by Dr. Shipra Singh, (P.W.6) Consultant, District Mahila Hospital, Barabanki and she has categorically stated that hymen of the prosecutrix was raptured and blood was oozing out from her private parts. According to learned Addl. G.A. for the State, learned trial court after considering entire evidence on record and submissions on behalf of the appellant, rightly convicted the appellant and sentenced to undergo imprisonment for life.
13. We have carefully considered the rival submissions made by Sri Manish Kumar Singh Yadav, learned Amicus Curiae for the appellant and Sri Umesh Chandra Verma, learned Addl. G.A. for the State and we have also perused the material available on record.
14. So far as, the main contention of independent witnesses is concerned, nowadays it is being observed that independent witnesses are not coming forward to depose in the dispute of other persons. Nowadays, independent witnesses are more or less interested in staying away from the legal proceedings.
15. It is settled law that refusal to act on the testimony of the victim of sexual assault in absence of corroboration as a rule, is adding to insult to injury. A girl or a woman in the tradition bound non-permissive society of India would be extremely reluctant even to admit that any incident which is likely to reflect on her chastity had ever occurred. She would be conscious of the danger of being ostracized by the society and when in the face of these factors the crime is brought to light, there is inbuilt assurance that the charge is genuine rather than fabricated. A woman or a girl who is raped is not an accomplice. Corroboration is not the sine qua non for conviction in a rape case. The conviction can be based on the solitary statement of the prosecutrix and no corroboration is required unless there are compelling reasons which necesitate the courts to insist for corroboration of her statement.
16. The Hon'ble Supreme Court in 'State of Punjab v. Gurmit Singh', 1996 SCC (2) 384 held as under:-
"8...The courts must, while evaluating evidence, remain alive to the fact that in a case of rape, no self-respecting woman would come forward in a court just to make a humiliating statement against her honour such as is involved in the commission of rape on her. In cases involving sexual molestation, supposed considerations which have no material effect on the veracity of the prosecution case or even discrepancies in the statement of the prosecutrix should not, unless the discrepancies are such which are of fatal nature, be allowed to throw out an otherwise reliable prosecution case. The inherent bashfulness of the females and the tendency to conceal outrage of sexual aggression are factors which the Courts should not over-look. The testimony of the victim in such cases is vital and unless there are compelling reasons which necessitate looking for corroboration of her statement, the courts should find no difficulty to act on the testimony of a victim of sexual assault alone to convict an accused where her testimony inspires confidence and is found to be reliable. Seeking corroboration of her statement before relying upon the same, as a rule, in such cases amounts to adding insult to injury. Why should the evidence of a girl of a woman who complains of rape or sexual molestation, be viewed with doubt, disbelief or suspicion?
17. The Hon'ble Apex Court in the case of 'Takhatji Hiraji v. Thakore Kubersing Chamansingh', reported in (2001) 6 SCC 145 has held as under:-
"19. So is the case with the criticism levelled by the High Court on the prosecution case finding fault therewith for non-examination of independent witnesses. It is true that if a material witness, which would unfold the genesis of the incident or an essential part of the prosecution case, not convincingly brought to fore otherwise, or where there is a gap or infirmity in the prosecution case which could have been supplied or made good by examining a witness which though available is not examined, the prosecution case can be termed as suffering from a deficiency and withholding of such a material witness would oblige the Court to draw an adverse inference against the prosecution by holding that if the witness would have been examined it would not have supported the prosecution case. On the other hand if already overwhelming evidence is available and examination of other witnesses would only be a repetition or duplication of the evidence already adduced, non-examination of such other witnesses may not be material. In such a case the Court ought to scrutinise the worth of the evidence adduced. The court of facts must ask itself --whether in the facts and circumstances of the case, it was necessary to examine such other witness, and if so, whether such witness was available to be examined and yet was being withheld from the court. If the answer be positive then only a question of drawing an adverse inference may arise. If the witnesses already examined are reliable and the testimony coming from their mouth is unimpeachable the Court can safely act upon it uninfluenced by the factum of non-examination of other witnesses..."
18. In another case, 'Vijendra Singh v. State of U.P.', (2017) 11 SCC 129, the Hon'ble Supreme Court has observed:
"37. In Dahari Vs. State of U.P. (2012) 10 SCC 18 Criminal Appeal Nos.1112/2014 and 1136/2014 , while discussing about the non-examination of material witness, the Court expressed the view that when he was not the only competent witness who would have been fully capable of explaining the factual situation correctly and the prosecution case stood fully corroborated by the medical evidence and the testimony of other reliable witnesses, no adverse inference could be drawn against the prosecution. Similar view has been express in Manjit Singh [(2013) 12 SCC 746], and Joginder Singh Vs. State of Haryana [(2014) 11 SCC 335]."
19. The Hon'ble Supreme Court in 'State of H.P. v. Gian Chand', 2001 6 SCC 71 has held as under:
"14........Non-examination of a material witness is again not a mathematical formula for discarding the weight of the testimony available on record howsoever natural, trustworthy and convincing it may be. The charge of withholding a material witness from the Court levelled against the prosecution should be examined in the background of facts and circumstances of each case so as to find whether the witnesses were available for being examined in the Court and were yet withheld by the prosecution. The Court has first to assess the trustworthiness of the evidence adduced and available on record. If the Court finds the evidence adduced worthy of being relied on then the testimony has to be accepted and acted on though there may be other witnesses available who could also have been examined but were not examined. However, if the available evidence suffers from some infirmity or cannot be accepted in the absence of other evidence which tough available has been withheld from the Court then the question of drawing an adverse inference against the prosecution for non-examination of such witnesses may arise. It is now well-settled that conviction for an offence of rape can be based on the sole testimony of prosecutrix corroborated by medical evidence and other circumstances such as the report of chemical examination etc. if the same is found to be natural, trustworthy and worth being relied on....."
20. The Hon'ble Apex Court in 'Aslam case vs. State of U.P.' (2014) 13 SCC 350 observed as under:
"9. ... If, upon consideration of the prosecution case in its entirety, the testimony of the prosecutrix inspires confidence in the mind of the Court, the necessity of corroboration of her evidence may be excluded. This Court in Rajinder v. State of Himachal Pradesh, (2009) 16 SCC 69 has observed as under:
"18. This Court, in State of Punjab v. Gurmit Singh, (1996) 2 SCC 384 made the following weighty observations in respect of evidence of a victim of sexual assault: (SCC pp. 395-96, para 8) "8. ... The courts must, while evaluating evidence, remain alive to the fact that in a case of rape, no self-respecting woman would come forward in a court just to make a humiliating statement against her honour such as is involved in the commission of rape on her. In cases involving sexual molestation, supposed considerations which have no material effect on the veracity of the prosecution case or even discrepancies in the statement of the prosecutrix should not, unless the discrepancies are such which are of fatal nature, be allowed to throw out an otherwise reliable prosecution case. The inherent bashfulness of the females and the tendency to conceal outrage of sexual aggression are factors which the courts should not overlook. The testimony of the victim in such cases is vital and unless there are compelling reasons which necessitate looking for corroboration of her statement, the courts should find no difficulty to act on the testimony of a victim of sexual assault alone to convict an accused where her testimony inspires confidence and is found to be reliable. Seeking corroboration of her statement before relying upon the same, as a rule, in such cases amounts to adding insult to injury. Why should the evidence of a girl or a woman who complains of rape or sexual molestation, be viewed with doubt, disbelief or suspicion? The court while appreciating the evidence of a prosecutrix may look for some assurance of her statement to satisfy its judicial conscience, since she is a witness who is interested in the outcome of the charge levelled by her, but there is no requirement of law to insist upon corroboration of her statement to base conviction of an accused. The evidence of a victim of sexual assault stands almost on a par with the evidence of an injured witness and to an extent is even more reliable. Just as a witness who has sustained some injury in the occurrence, which is not found to be self-inflicted, is considered to be a good witness in the sense that he is least likely to shield the real culprit, the evidence of a victim of a sexual offence is entitled to great weight, absence of corroboration notwithstanding. Corroborative evidence is not an imperative component of judicial credence in every case of rape. Corroboration as a condition for judicial reliance on the testimony of the prosecutrix is not a requirement of law but a guidance of prudence under given circumstances. It must not be overlooked that a woman or a girl subjected to sexual assault is not an accomplice to the crime but is a victim of another person's lust and it is improper and undesirable to test her evidence with a certain amount of suspicion, treating her as if she were an accomplice. Inferences have to be drawn from a given set of facts and circumstances with realistic diversity and not dead uniformity lest that type of rigidity in the shape of rule of law is introduced through a new form of testimonial tyranny making justice a casualty. Courts cannot cling to a fossil formula and insist upon corroboration even if, taken as a whole, the case spoken of by the victim of sex crime strikes the judicial mind as probable."
19. In the context of Indian culture, a woman--victim of sexual aggression--would rather suffer silently than to falsely implicate somebody. Any statement of rape is an extremely humiliating experience for a woman and until she is a victim of sex crime, she would not blame anyone but the real culprit. While appreciating the evidence of the prosecutrix, the courts must always keep in mind that no self- respecting woman would put her honour at stake by falsely alleging commission of rape on her and therefore, ordinarily a look for corroboration of her testimony is unnecessary and uncalled for. But for high improbability in the prosecution case, the conviction in the case of sex crime may be based on the sole testimony of the prosecutrix. It has been rightly said that corroborative evidence is not an imperative component of judicial credence in every case of rape nor the absence of injuries on the private parts of the victim can be construed as evidence of consent."
21. In another case, 'State of Haryana v. Basti Ram', (2013) 4 SCC 200 the Hon'ble Apex Court has observed:
"25. The law on the issue whether a conviction can be based entirely on the statement of a rape victim has been settled by this Court in several decisions. A detailed discussion on this subject is to be found in Vijay v. State of M.P. After discussing the entire case law, this Court concluded in para 14 of the Report as follows:
"14. Thus, the law that emerges on the issue is to the effect that the statement of the prosecutrix, if found to be worthy of credence and reliable requires no corroboration. The court may convict the accused on the sole testimony of the prosecutrix."
This decision was recently adverted to and followed in State of Rajasthan vs Babu Meena."
22. The Hon'ble Supreme Court in 'Raju v. State of M.P.', (2008) 15 SCC 133 has held that "10....ordinarily the evidence of a prosecutrix should not be suspect and should be believed, the more so as her statement has to be evaluated at par with that of an injured witness and if the evidence is reliable, no corroboration is necessary. Undoubtedly, the aforesaid observations must carry the greatest weight and we respectfully agree with them, but at the same time they cannot be universally and mechanically applied to the facts of every case of sexual assault which comes before the Court.
11. It cannot be lost sight of that rape causes the greatest distress and humiliation to the victim but at the same time a false allegation of rape can cause equal distress, humiliation and damage to the accused as well. The accused must also be protected against the possibility of false implication, particularly where a large number of accused are involved. It must, further, be borne in mind that the broad principle is that an injured witness was present at the time when the incident happened and that ordinarily such a witness would not tell a lie as to the actual assailants, but there is no presumption or any basis for assuming that the statement of such a witness is always correct or without any embellishment or exaggeration.
23. The Hon'ble Apex Court further observed in Raju's case (supra) that it cannot be lost sight of that rape causes the greatest distress and humiliation to the victim but at the same time a false allegation of rape can cause equal distress, humiliation and damage to the accused as well. The accused must also be protected against the possibility of false implication. There is no presumption or any basis for assuming that the statement of such a witness is always correct or without any embellishment or exaggeration.
24. The courts while trying an accused on the charge of rape, must deal with the case with utmost sensitivity, examining the broader probabilities of a case and not get swayed by minor contradictions or insignificant discrepancies in the evidence of the witnesses which are not of a substantial character.
25. However, even in a case of rape, the onus is always on the prosecution to prove, affirmatively each ingredient of the offence it seeks to establish and such onus never shifts. It is no part of the duty of the defence to explain as to how and why in a rape case the victim and other witnesses have falsely implicated the accused. The prosecution case has to stand on its own legs and cannot take support from the weakness of the case of defence. However great the suspicion against the accused and however strong the moral belief and conviction of the court, unless the offence of the accused is established beyond reasonable doubt on the basis of legal evidence and material on the record, he cannot be convicted for an offence. There is an initial presumption of innocence of the accused and the prosecution has to bring home the offence against the accused by reliable evidence. The accused is entitled to the benefit of every reasonable doubt.
26. In the instant case, it has come in the testimony of brother of the prosecutrix namely, Md. Kaleem (P.W.3) that he is handicapped by both legs, therefore, it was difficult for him to apprehend the appellant.
27. The other submission made by learned Amicus Curiae for the appellant that shirt of the appellant was seized after delay of five days is immaterial. Even if, shirt of the appellant was not seized, the same is of no help to the appellant.
28. So far as the submission made by learned Amicus Curaie for the appellant that prosecution did not resist, it may be mentioned that prosecutrix was aged about nine years at the time of occurrence and it cannot be expected from a girl of a tender age to understand and comprehend the intention/ motive of a person.
29. Considering the statement of the prosecutrix (P.W.2), a girl of nine years, corroboration from an independent source of the evidence of prosecutrix is not require. The evidence of the prosecutrix establishes that the appellant committed rape on her.
30. The prosecutrix was medically examined by Dr. Shipra Singh, (P.W.6) Consultant, District Mahila Hospital, Barabanki and she has deposed that hymen of the prosecutrix was raptured and blood was oozing out from her private parts. In the M.L.C. (Ex. Ka.6), the doctor has opined that:
"1- One black mole at left upper arm, middle of deltoid trhopm Ht- 121 cm Wt- 16 Kg Teeth- 11/11 External Examination- No mark of injury on private part Breast not developed Axillary and public hair not present Internal Examination- Hymen freshly torn Multiple tears Bleeding + Bleeds on touch of admit little finger and its painful"
31. Considering the facts and circumstances of the case and the law laid down by Hon'ble Supreme Court, this Court is of the view that the trial court did not commit any mistake in convicting the appellant for the offence under Section 376 I.P.C. Accordingly, conviction of the appellant is upheld.
32. So far as question of sentence is concerned, it may be mentioned that the protection of society by stamping out criminal activity is essential function of State. It can be achieved by imposing appropriate sentence. The facts and given circumstances of 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 convict and all other attending circumstances are relevant facts for imposing appropriate sentence. Any definite formula relating to imposition of sentence cannot be laid down. The object of sentencing is that the offenders does not go unpunished and the justice be done to the victim of crime and the society. 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. The measure of punishment in a given case must depend upon the gravity of the crime; the conduct of the offender and the defenceless and unprotected state of the victim. Imposition of appropriate punishment is the way adopted by the courts for responding the society's desire for justice against the criminals. Justice demands that courts should impose punishment fitting to the crime. The courts must not only keep in view the rights of the criminal but also the rights of the victim of crime and the society at large while considering imposition of appropriate punishment.
33. Keeping in view the facts and circumstances of the case, the interest of justice would be met if the sentence imposed by learned trial court is modified to that of rigorous imprisonment for ten years and to pay fine of Rs.2,000/-, in default of payment of fine to further undergo imprisonment for one year.
34. In view of the above discussion, the appeal deserves to be dismissed and the same is hereby dismissed. However, the sentence imposed by learned trial court is modified to rigorous imprisonment for ten years and to pay fine of Rs.2,000/-(Rupees Two Thousand Only), in default of payment of fine to further undergo imprisonment for one year
35. Sri Manish Kumar Singh Yadav, Advocate was appointed as Amicus Curiae for the appellant on 22.05.2017. The fees of Sri Manish Kumar Singh Yadav, learned Amicus Curiae is fixed at Rs.11,000/- (Rupees Eleven Thousand Only).
36. A copy of this Order be sent to the appellant through concerned Superintendent of Jail for information. Lower court record be sent back immediately.