Bobby vs The State

Surendra Vikram Singh Rathore, J.—1. Sri Sanjai Kumar Singh, learned counsel for the appellant, Sri Chandra Shekhar Pandey, learned A.G.A. for the State were heard.

The instant criminal appeal has been preferred by the appellant-Bobby @ Guddu challenging the judgment and order dated 18.10.2005 passed by learned Additional Sessions Judge/F.T.C. IV, Lucknow, in Sessions Trial No. 46 of 2004, arising out of Case Crime No. 3 of 2003, under Section 376 IPC, Police Station Hasanganj, District Lucknow, whereby the appellant Bobby @ Guddu was convicted for the offence under Section 376 IPC and was sentenced with imprisonment for life and also with fine of Rs. 10,000/- with default stipulation of six months'' additional rigorous imprisonment. However, he was acquitted of the charge under Section 506 IPC.

In brief, the case of the prosecution as disclosed in the FIR dated 07.01.2003, by complainant Mohd. Mukeem was that on 06.01.2003 his sister-in-law aged about 12 years (hereinafter referred as victim) who was living with the complainant for the last about one month, at about 8:00 p.m. while playing, went inside the house of Aiyaaz which is situated in front of the house of the complainant. At that time, the appellant who happens to be friend of Aiyaaz was also present at the house of Aiyaaz and the wife of Aiyaaz was not present in the house. Getting the opportunity the appellant Bobby @ Guddu committed rape with the victim on which she raised alarm. Hearing the noise of the alarm the wife of the complainant namely Azijulnisha went inside the house of Aiyaaz and found that the appellant was committing rape with the victim and she was lying and crying. The wife of the complainant made an effort to apprehend the appellant but he was successful in making good his escape from there. The salwar of the victim was blood stained. The FIR of this case was registered on 07.01.2003 at 13:30 hours. The distance of the police station was about 2 kilometers. After registration of the case the victim was referred for her medical examination which took place at Women Hospital, Lucknow. As per medical examination report her height was 54.2 inch and weight was 55 pounds and her teeths were 6 +7/7 + 7. Pubic and axillary hairs were scanty. No mark of any injury was found on any external part of the body. On internal examination hymen was found to be torn. Margins were red and vagina admitted two fingers. A laceration of 1/2 cm size was present at 6 O''clock position in vagina and it was bleeding on touch. She was referred for X-ray for determination of her age. Vaginal smear slides were also prepared and sent for pathological test. On the basis of aforesaid tests no spermatozoa was found in the vaginal smear slide and age of the victim was reported to be around 12 years and the injury was reported to be suggestive of rape or any act of like nature.

After completing the investigation, the charge-sheet was filed against the accused appellant.

The case of the defence was of his false implication.

In order to prove its case, the prosecution has examined PW-1, Azijulnisha, wife of the complainant, PW-2 Ashraf Ali the scribe of the FIR, PW-3 Mohammad Mukeem, the complainant of this case, PW-4 Dr. Madhumita Yadav, who had medically examined the victim, PW-5 Constable Sita Ram Mishra, who had prepared the chik report and G.D. of this case, PW-6 the victim, PW-7 S.I. Mohammad Iqbal, the Investigating Officer of this case.

In defence on behalf of the appellant DW-1 Smt. Haseen, the wife of Aiyaaz has been examined and DW-2 Mohammad Farooq has been examined.

After appreciating the evidence on record, the trial court convicted the appellant as above. Hence the instant appeal.

Learned counsel for the appellant has fairly conceded that the conviction of the appellant recorded by the trial court was in accordance with law and he does not intend to challenge the conviction of the appellant and he has restricted his arguments only on the point of sentence. It is submitted that the learned trial court has awarded the extreme penalty of imprisonment for life while the minimum sentence provided for such offence was 10 years. It is further submitted that it was not a case of extreme brutality where the extreme penalty of life imprisonment could have been inflicted. It is further submitted that the appellant''s family is at the verge of starvation. So prayer has been made to take a lenient view on the point of sentence. It has also been submitted that for the offence under Section 376 IPC minimum sentence provided under law, at the relevant point of time was 10 years and the court, for reasons to be recorded, was given discretion to inflict even a lesser sentence. Thus he has restricted his arguments only with regard to the quantum of sentence.

Learned Additional Government Advocate has submitted that in the instant case, the prosecution case stands fully proved by the ocular testimony of the witnesses and also by the evidence of the victim which also stands fully corroborated by the medical evidence, therefore, the learned trial court has not committed any illegality in convicting the appellant. On the point of sentence he has submitted that the question of sentence has to be considered by the court itself.

Though the conviction of the appellant has not been challenged, inspite of that being the Court of first appeal, we have gone through the entire evidence and the impugned judgment. PW-1 Azijulnisha is an eye witness and she has supported the case of the prosecution and has stated that when she reached the place of occurrence, hearing the cries of the victim, then she saw that appellant was committing rape on her and on her arrival he ran away from there. At that time, the victim was blood stained. PW-2 is a formal witness. PW-3 Mohammad Mukeem is the complainant of this case and he is not an eye witness. PW-4 is Dr. Madhumita Yadav who has proved the medical examination report of the victim and has stated that injury could have been result of rape or any other act like this. This witness has not been cross examined on behalf of the appellant inspite of the sufficient opportunity having been given to him. Victim has also supported the prosecution case. The other witnesses are formal witnesses. DW-1 is the wife of Aiyaaz and as per the case of the prosecution this witness was not present in the house at the time of incident and she has stated that she was not present in the house. However, she has stated that when she came back then she opened the lock of the house but according to the case of the prosecution and according to her own admission the appellant was at close terms with Aiyaaz so the possibility that she is giving the evidence to save the appellant, cannot be ruled out. The evidence of DW-2 is also of no help to the appellant. Learned trial court has given its cogent reasons in the impugned judgment for convicting the appellant. So we are of the considered view that the conviction of the appellant recorded by the trial court was perfectly valid and it needs no interference.

Now the point of sentence is to be considered. Under Section 376(2)(f) IPC the minimum sentence provided is 10 years which may extend to imprisonment for life. However, the court has been given discretion to impose lesser than minimum sentence for reasons to be recorded in writing. In the instant case admittedly, the victim was aged about 12 years and there is nothing on record to infer that she was above 12 years of age. We are conscious of the position that not even a single injury was found on any external part of the body of the victim so it was not a case of extreme brutality with the victim. It is true that the offence of rape is very serious crime against the person of the victim. It has also come in evidence that the victim was a girl of weak mind. The age of the appellant at the time of incident was about 30 years as disclosed by him in his statement under Section 313 Cr.P.C. So at present he is above 40 years of age and it has also come in evidence that he has his own family. The submission of the learned counsel for the appellant on the point of sentence has force that the future of his family and his children is being adversely affected because of his continuous detention in jail. On these grounds a prayer for leniency in the sentence is pressed.

In our considered opinion and keeping in view the age of the victim and the fact that no injury on any external part of the body of the victim was found, we are of the considered view that the sentence of 13 years would be adequate to meet the ends of justice and the extreme penalty of imprisonment for life, in our considered opinion, is excessive keeping in view the sentence provided under law for the offence at the time of incident.

Accordingly, this appeal deserves to be partly allowed on the point of sentence only.

The appeal is hereby partly allowed. Conviction of the appellant is hereby confirmed but the sentence of imprisonment for life is hereby reduced to a period of twelve years and also with fine of Rs. 10,000/-, with default stipulation of six months'' additional imprisonment. Appellant Bobby @ Guddu is in custody. He shall serve out his sentence as modified by this Court. Period already undergone by him in this case shall be set off in his sentence in accordance with the provision of Section 428 Cr.P.C. Amount of fine after realization shall be paid to the victim as compensation.

Office is directed to communicate this order forthwith to the court concerned and to send back the lower court record to ensure compliance.