Hon'ble Ajai Tyagi,J.
(Per Hon'ble Dr. Kaushal Jayendra Thaker, J.)
1. By way of this appeal, the appellant has challenged the Judgment and order dated 28.5.2005 passed by court of Sessions Judge, Bulandshahar in Sessions Trial No.106 of 2004, State Vs. Ved Prakash @ Danny @ Raju arising out of Case Crime No.74 of 2003, under Section 376 IPC, Police Station Narora, District Bulandshahar by which learned Trial Court was pleased to find appellant guilty of offence u/s 376(2)(f) IPC whereby the accused-appellant was convicted under Section 376 IPC and sentenced to imprisonment for life with fine of Rs.10,000/-, and in case of default of payment of fine, to undergo further simple imprisonment for two years.
2. The brief facts as per prosecution case is that on 8.11.2003 at 8:15 am one Indresh Kumar resident of L.G.C. Colony, Narora, lodged a written report at Police Station Narora to the effect that on that day at about 5:00 am, he and his wife Smt. Babli were sleeping in their house and when they woke up, they found their daughter aged about 8 years not present on her cot. When they came out of the house then they heard the shrieks of their daughter from the side of the Lavatory, when they reached there, they saw that accused Danny, resident of village Sheikhpura, Police Station Chhatari, who used to loiter near Hamid crossing, had committed rape on their daughter and on seeing them, accused took to heels and ran away. The facts reveal that the daughter of the complainant was in precarious condition. She was brought to PHC Narora wherefrom she was referred to Bulandshahar. He came with his daughter to get her treated. On the basis of this Tehrir report of case crime no.74 of 2003 under Section 376 IPC was registered against the accused and its substance was entered in G.D. No.17 at 18:15 am. On 8.11.2003 the prosecutrix was examined by Dr. Sudha Sharma, Medical officer, K.M.C. Bulandshahar. She was brought by constable 1016-Bharat Singh. At the time of medical examination she was found to be fully conscious. Her height is 3 feet 10 inches, teeth 14 x 12, weight 20 Kg.
3. The prosecution so as to bring home the charges examined nine witnesses are as under:-
Deposition of Indresh Kumar Sharma P.W.1
2. Deposition of Prosecutrix P.W.2
3. Deposition of Dr. Sudha Sharma P.W.3
4. Deposition of Dr. B.K. Gaur P.W. 4
5. Deposition of Jawahar Lal P.W. 5
6. Deposition of Dr. M.P. Singh P.W. 6
7. Deposition of Kiran Pal Singh P.W. 7
8. Deposition of Ramendra Singh P.W. 8
9. Deposition of Babu Ram P.W. 9
4. In support of the ocular version of the witnesses, following documents were produced and contents were proved by leading evidence:
F.I.R.
Ext. Ka-6
2. Written report Ext. Ka-1
3. Recovery memo blood stained frock Ex. Ka.10
4. Injury Report Ext. Ka-8
5. Supplementary report Ext. Ka-3
6. X-ray Report Ext. Kh-4
7. Pathologist Report Ext. Ka-5
8. Charge Sheet Mool Ex.Ka.12
5. Heard Sri Yogesh Srivastava, assisted by Sri Noor Mohammad, learned counsel for the appellant, Smt. Alpana Singh, learned AGA for the State and also perused the record.
6. Sri Noor Mohammad, learned counsel for appellant has submitted that he presses for clean acquittal of his client.
7. Deposition of the father of prosecutrix was recorded as PW-1 and in his oral testimony, he has identified to the accused. He has stated that the incident occurred on 8.11.2003 at 5:00 am in the morning. The prosecutrix at the time of incident was 8 years of age. In the morning, when he did not see his daughter, they went to search for his daughter. The accused was seen committing the offence and he ran away. His daughter was taken for medical treatment. He had called one Pankaj Sharma and gave the report at the concerned Police Station between 8:15 a.m. in the morning. The prosecutrix was taken to Women Hospital at Bulandshahar and from where PHS Narora she was referred to Bulandshahar where she was examined and she was admitted in the hospital as her condition was serious. He has withstood the cross examination. He has denied the fact that he was knowledge the accused belongs to Aligarh. The incident occurred on 8.11.2003 and he saw the accused in the light of bulb.
8. Indresh Kumar Sharma-PW-1, in his cross examination accepted that the blood stained clothes were given to the police personal and he had already conveyed that there was blood stained on the cloths of the prosecutrix, if the police officer has not mentioned the same, he is not aware why he has not mentioned. He had even seen blood on the frock and cot of the prosecutrix.
9. The prosecutrix examined as PW-2 and she stated that the accused took her and tied her both legs and thereafter brought a cot and made her to sit on the cot. She has conveyed how the accused had behaved, he had shown her a big knife and had threatened to tear stomach, he shouted and she became unconscious after he did the bad work which means rape. There was blood which oozed from her vagina. He has beaten on her check and she was rubbed. There were brusen on her back. Even in her cross examination, she withstood the fact that the accused had done some bad work with her. When the accused took her, she was with her sister.
10. PW-3 is Dr. Sudha Sharma,, the medical examination showed that she in her oral testimony has conveyed that whether it was on her, she should not be tell certainly but the injuries were possible, if a girl of 8 years was rapped and even if there is an attempt of rape such injuries are possible. She has conveyed that seeing position of the vagina, it was not possible that any penetration could take place.
11. Dr V.K. Garg was a senior radioligist was also examined on oath nothing much turn his evidence except the fact he could not even convey what was the age of the prosecutrix. The testimony of PW-6 Dr. M.P. Singh is very important. He has opinied that there were about three injuries and injury no.1 could not be possible, if somebody bit teeth. Nothing has been stated by the accused in his statement under Section 313 Cr.P.C.
12. In respect of the victim, the doctor in medical report has opined as under :-
"1) Contused swelling 3 c.m. X 5 c.m. on both side of right eye.
2) Contused swelling on both sides of left eye.
3) Oval shape abraded contused traumatic swelling 5 c.m. x 4 c.m. with teeth marks on right side face. One c.m. below and outer to right eye.
In his report, doctor opined that injuries are simple in nature. Injury No.3 caused by teeth bite and injuries no. 1 and 2 caused by hard blunt object."
13. Learned Judge in paragraph no.12 has recorded the finding which is necessary for us to reproduced as under : -
"The accused absconded for a long period after the commission of the offence and he was arrested by I.O. on 13.1.2004. This conduct of the accused is also very relevant u/s 8 of the Evidence Act. After arrest, he did not claim to be put to Test Identification Perade. He has different names and has given different places of abode; he was known to PW-1 and duly named in the FIR. He was seen committing rape upon the victim. Both PW-1 and PW-2 have identified him in the court as well and therefore identify of the accused is proved beyond all doubts."
14. Learned Judge had relied on the judgment in the case of Prem Lal alias Prem Narayan Versus State of M.P., 2005Cr.L.J.1145 in which it is mentioned that if the report of F.S.L. On vaginal smear has not been found, it will not create any dent on the prosecution case.
15. We concur with the reasoning given by learned Judge in Paragraph no. 19 that the vaginal midline perinal was torn by one inch and hymen was also found torn and its margin bleeds on touch. The suggestions were made that some other person might have committed rape. PW-1 and 2 withstood the cross examination also .
16. This case pertains to the offence of 'rape', defined under Section 375 IPC, which is quoted as under:
[375. Rape.- A man is said to commit "rape" if he-
(a) penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a woman or makes her to do so with him or any other person; or
(b) inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of a woman or makes her to do so with him or any other person; or
(c) manipulates any part of the body of a woman so as to cause penetration into the vagina, urethra, anus or any part of body of such woman or makes her to do so with him or any other person; or
(d) applies his mouth to the vagina, anus, urethra of a woman or makes her to do so with him or any other person, under the circumstances falling under any of the following seven descriptions :-
First.- Against her will.
Secondly.- Without her consent.
Thirdly.- With her consent, when her consent has been obtained by putting her or any person in whom she is interested, in fear of death or of hurt.
Fourthly.- With her consent, when the man knows that he is not her husband and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.
Fifthly.- With her consent when, at the time of giving such consent, by reason of unsoundness of mind of intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent.
Sixthly.- With or without her consent, when she is under eighteen years of age.
Seventhly.- When she is unable to communicate consent.
Explanation 1.- For the purposes of this section, "vagina" shall also include labia majora.
Explnation 2.- Consent means an unequivocal voluntary agreement when the woman by words, gestures or any form of verbal or non-verbal communication, communicates willingness to participate in the specific sexual act.
Provided that a woman who does not physically resist to the act of penetration shall not by the reason only of that fact, be regarded as consenting to the sexual activity.
Exception 1.- A medical procedure or intervention shall not constitute rape.
Excpetion 2.- Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape.]
17. Having concurred with the learned Sessions Judge on the finding of fact we now propose to examine whether the sentence awarded is just or requires consideration.
18. In Mohd. Giasuddin Vs. State of AP, [AIR 1977 SC 1926], explaining rehabilitary & reformative aspects in sentencing it has been observed by the Supreme Court:
"Crime is a pathological aberration. The criminal can ordinarily be redeemed and the state has to rehabilitate rather than avenge. The sub-culture that leads to ante-social behaviour has to be countered not by undue cruelty but by reculturization. Therefore, the focus of interest in penology in the individual and the goal is salvaging him for the society. The infliction of harsh and savage punishment is thus a relic of past and regressive times. The human today vies sentencing as a process of reshaping a person who has deteriorated into criminality and the modern community has a primary stake in the rehabilitation of the offender as a means of a social defence. Hence a therapeutic, rather than an 'in terrorem' outlook should prevail in our criminal courts, since brutal incarceration of the person merely produces laceration of his mind. If you are to punish a man retributively, you must injure him. If you are to reform him, you must improve him and, men are not improved by injuries."
19. 'Proper Sentence' was explained in Deo Narain Mandal Vs. State of UP [(2004) 7 SCC 257] by observing that Sentence should not be either excessively harsh or ridiculously low. While determining the quantum of sentence, the court should bear in mind the 'principle of proportionality'. Sentence should be based on facts of a given case. Gravity of offence, manner of commission of crime, age and sex of accused should be taken into account. Discretion of Court in awarding sentence cannot be exercised arbitrarily or whimsically.
20. In Ravada Sasikala vs. State of A.P. AIR 2017 SC 1166, the Supreme Court referred the judgments in Jameel vs State of UP [(2010) 12 SCC 532], Guru Basavraj vs State of Karnatak, [(2012) 8 SCC 734], Sumer Singh vs Surajbhan Singh, [(2014) 7 SCC 323], State of Punjab vs Bawa Singh, [(2015) 3 SCC 441], and Raj Bala vs State of Haryana, [(2016) 1 SCC 463] and has reiterated that, in operating the sentencing system, law should adopt corrective machinery or deterrence based on factual matrix. Facts and given circumstances in each case, nature of crime, manner in which it was planned and committed, motive for commission of crime, conduct of accused, nature of weapons used and all other attending circumstances are relevant facts which would enter into area of consideration. Further, undue sympathy in sentencing would do more harm to justice dispensations and would undermine the public confidence in the efficacy of law. It is the duty of every court to award proper sentence having regard to nature of offence and manner of its commission. The supreme court further said that courts must not only keep in view the right of victim of crime but also society at large. While considering imposition of appropriate punishment, the impact of crime on the society as a whole and rule of law needs to be balanced. The judicial trend in the country has been towards striking a balance between reform and punishment. The protection of society and stamping out criminal proclivity must be the object of law which can be achieved by imposing appropriate sentence on criminals and wrongdoers. Law, as a tool to maintain order and peace, should effectively meet challenges confronting the society, as society could not long endure and develop under serious threats of crime and disharmony. It is therefore, necessary to avoid undue leniency in imposition of sentence. Thus, the criminal justice jurisprudence adopted in the country is not retributive but reformative and corrective. At the same time, undue harshness should also be avoided keeping in view the reformative approach underlying in our criminal justice system.
21. Keeping in view the facts and circumstances of the case and also keeping in view criminal jurisprudence in our country which is reformative and corrective and not retributive, this Court considers that no accused person is incapable of being reformed and therefore, all measures should be applied to give them an opportunity of reformation in order to bring them in the social stream.
22. Since the learned counsel for the appellant has also pressed the appeal on its merit, however, after perusal of entire evidence on record and judgment of the trial court, we consider that the appeal is requires to be considered only for sentence. The conviction of the appellant is upheld but sentence requires to be altered.
23. As discussed above, 'reformative theory of punishment' is to be adopted and for that reason, it is necessary to impose punishment keeping in view the 'doctrine of proportionality'. It appears from perusal of impugned judgment that sentence awarded by learned trial court for life term is very harsh keeping in view the entirety of facts and circumstances of the case and gravity of offence. Hon'ble Apex Court, as discussed above, has held that undue harshness should be avoided taking into account the reformative approach underlying in criminal justice system.
24. Learned AGA also admitted the facts that appellant is languishing in jail for the last more than 9 years. Keeping in view of theory of 'doctrine of proportionality' as discussed above, the sentence awarded to the appellant seems harsh. Since, the appellant has already served 9 years of sentence and ends of justice would be met if sentence of imprisonment of life is reduced from life imprisonment to the period of ten years with all remission would meet the ends of justice.
25. Looking to the age of the girl, we do not think that the judgment of the Court below requires to be upturn. However, the sentence awarded to the appellant by the learned trial-court is modified and is reduced to 15 years rigorous imprisonment. Imposition of fine and additional imprisonment in case of default of fine shall remain intact. The fine of Rs.10,000/- imposed by the learned Trial Court be modified to Rs.20,000/- which shall be paid as compensation to the victim if amount of fine is not deposited within 12 weeks of release he shall be subjected to six months imprisonment if fine is already deposited be paid to prosecutrix.
26. Appeal is partly allowed. Record be sent back to the Trial Court forthwith.
Order Date :- 26.10.2021 Mukesh