Gangaram vs State of U.P

Surendra Vikram Singh Rathore, J.—Heard Sri Anurag Singh Chauhan, learned Amicus Curiae for the appellant, learned A.G.A. for the State and perused the material available on record.

The instant criminal appeal has been preferred by the appellant-Ganga Ram challenging the judgment and order dated 04.08.2007 passed by learned Additional Sessions Judge/F.T.C. Court No. 1, Unnao, in Sessions Trial No. 491 of 2006, relating to Case Crime No. 210 of 2006, under Section 376(2) (f) IPC, Police Station Barasagwar, District Unnao, whereby the appellant Ganga Ram was convicted for the offence under Section 376(2) (f) IPC and was sentenced with imprisonment for life and also with fine of Rs. 20,000/- with default of six months'' additional imprisonment.

In brief, the case of the prosecution was that on 21.06.2006 at about 14:30 hours the complainant Chandrakali lodged an FIR alleging therein that at about 11:00 a.m. her minor daughter aged about 8 years (hereinafter referred as victim) was playing on the door of her house. Meanwhile, appellant Ganga Ram who resides in the neighbourhood, on the pretext of giving mangoes to her had taken the victim to his house where appellant committed rape with her. Hearing the cries of the victim the complainant and her Devar Uma Shanker reached there and found that there was bleeding from the private part of the victim and appellant was committing rape with her. Seeing these persons the appellant ran away from there. Hearing the noise, other persons of the village also reached there. Thereafter the complainant alongwith the victim came to the police station and lodged the FIR. During investigation blood stained underwear of the victim was taken into custody and its memo was prepared. Salwar and Kurta of the victim was also taken into custody and its memo was prepared on the same day. The victim was referred for her medical examination which was conducted on the same day at 7:05 p.m. in Unnao District Hospital and as per her medical examination report her breasts were not developed, axillary and pubic hairs were not present. Her weight was 19 kgs. Height was 120 cms. and teeths were 12/12. On the external examination of the body no injury was found on any part of the body. In her internal examination blood was oozing out from her private part. Vaginal tear 2 cm. In size was present with swelling. Two vaginal smear slides were prepared and the victim was referred for her X-ray for determination of her age. The Investigating Officer inspected the place of occurrence and prepared the site plan. In the vaginal smear slide no spermatozoa was found.

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

The case of the defence was of denial and that because of the dispute of a neem tree he has been falsely implicated in this case.

In order to prove its case, the prosecution has examined PW-1, the complainant, Smt. Chandrakali, PW-2 the victim of this case, PW-3 Constable Moharrir, Ram Surat Yadav, PW-4 S.I. Shiv Lal Arya, who has investigated the case, PW-5 Dr. Pramila Niranjan, who has medically examined the victim.

No evidence in defence was adduced on behalf of the appellant.

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

Sri Anurag Singh Chauhan, learned Amicus Curiae, has submitted that 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 appellant was aged about 65 years at the time of the occurrence and now he is aged about 74 years and is very weak. His family is at the verge of starvation. A prayer has been made to take a lenient view on the point of sentence. It has also submitted that for the offence under Section 376(2)(f) 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 by the evidence of the victim and by the medical evidence the case of the prosecution stands fully proved. The evidence of PW-1 complainant also corroborates the evidence of the victim. The appellant has absolutely failed to prove his defence that he has been falsely implicated in this case. No such statement was given by him in his statement under Section 313 Cr.P.C. nor any evidence has been produced on behalf of the appellant in support thereof.

Though learned Amicus Curiae has not challenged the conviction of the appellant but being the court of first appeal we have gone through the entire evidence and the impugned judgment. The evidence of PW-1 the complainant supports the case of the prosecution. She has proved her FIR and has stated that hearing the cries of her daughter when she reached the house of the appellant then she found that thighs of the victim were blood stained and Ganga Ram ran away from there. The victim told her that she was called by the appellant on the pretext of providing her mangoes. This witness has admitted that the age of the appellant would be about 65 years. A suggestion to this witness was given that the victim had gone to attend the call of nature where she fell on a dried mustard plant due to which she sustained injuries. PW-2 is the victim herself. She has also fully supported the case of the prosecution which finds full corroboration with medical evidence. Appellant has utterly failed to bring to our notice any ground of his false implication. Law is settled on the point that the sole evidence of the victim in such nature of cases is sufficient to record conviction of the accused.

Reliance may be placed on the pronouncement of Hon''ble Apex Court in the case of State of Rajasthan Vs. Babu Meena, has considered this aspect and has observed in para 9 as under:--

"We do not have the slightest hesitation in accepting the broad submission of Mr. Jain that the conviction can be based on the sole testimony of the prosecutrix, if found to be worthy of credence and reliable and for that no corroboration is required. It has often been said that oral testimony can be classified into three categories, namely (i) wholly reliable, (ii) wholly unreliable and, (iii) neither wholly reliable nor wholly unreliable. In case of wholly reliable testimony of a single witness, the conviction can be founded without corroboration. This principle applies with greater vigour in case the nature of offence is such that it is committed in seclusion. In case prosecution is based on wholly unreliable testimony of a single witness, the court has no option than to acquit the accused."

Even in the cross examination of the victim nothing could be elicited to support the case of the defence. No suggestion to the Investigating Officer PW-4 was given on behalf of the appellant that he has been falsely implicated nor any question was put to him regarding any earlier enmity of the appellant with the victim or her family members. PW-5 Dr. Pramila Niranjan, has proved the medical examination report and has stated that the attempt of rape was committed. However, the rape was not confirmed. She has specifically denied the suggestion of the defence that such injury could have been caused by fall on a dried mustard plant. It appears that the doctor has opined that it is a case of attempt to rape only on the ground of absence of spermatozoa in the vaginal smear slides.

Law is settled on the point that mere penetration is sufficient to constitute the offence of rape. In the instant case the injury in the vagina fully establishes that legally offence of rape stands proved against the appellant. It was the penetration by the appellant that caused injury in the private part of the victim. So the finding of conviction of appellant under Section 376(2)(f) IPC cannot be said to be against evidence on record. Conviction is based on the eye witness account and also on the basis of the evidence of the victim.

Now the only point to be considered is the appropriate sentence. It is the duty of the court to inflict the appropriate sentence. What may be mitigating circumstances in awarding sentence has been considered by Hon''ble the Apex Court in several cases.

In the case of Gurmukh Singh Vs. State of Haryana, , Hon''ble Apex Court had discussed points to be taken into account before passing appropriate sentence. Paragraph Nos. 23 and 24 of the said judgment reads as under :

"23. These are some factors which are required to be taken into consideration before awarding appropriate sentence to the accused. These factors are only illustrative in character and not exhaustive. Each case has to be seen from its special perspective. The relevant factors are as under:

(a) Motive or previous enmity;

(b) Whether the incident had taken place on the spur of the moment;

(c) The intention/knowledge of the accused while inflicting the blow or injury;

(d) Whether the death ensued instantaneously or the victim died after several days;

(e) The gravity, dimension and nature of injury;

(f) The age and general health condition of the accused;

(g) Whether the injury was caused without premeditation in a sudden fight;

(h) The nature and size of weapon used for inflicting the injury and the force with which the blow was inflicted;

(i) The criminal background and adverse history of the accused;

(j) Whether the injury inflicted was not sufficient in the ordinary course of nature to cause death but the death was because of shock;

(k) Number of other criminal cases pending against the accused;

(l) Incident occurred within the family members or close relations;

(m) The conduct and behaviour of the accused after the incident. Whether the accused had taken the injured/the deceased to the hospital immediately to ensure that he/she gets proper medical treatment?

These are some of the factors which can be taken into consideration while granting an appropriate sentence to the accused.

The list of circumstances enumerated above is only illustrative and not exhaustive. In our considered view, proper and appropriate sentence to the accused is the bounded obligation and duty of the court. The endeavour of the court must be to ensure that the accused receives appropriate sentence, in other words, sentence should be according to the gravity of the offence. These are some of the relevant factors which are required to be kept in view while convicting and sentencing the accused."

(underlined by us)

It is settled law that the courts are obliged to respect the legislative mandate in the matter of awarding of sentences in all such cases. In Hazara Singh Vs. Raj Kumar and Others, Hon''ble Apex Curt had held that :

"It is clear that the maximum punishment provided therein is imprisonment for life or a term which may extend to 10 years. Although Section 307 does not expressly state the minimum sentence to be imposed, it is the duty of the courts to consider al the relevant factors to impose an appropriate sentence. The legislature has bestowed upon the judiciary this enormous discretion in the sentencing policy, which must be exercised with utmost care and caution. The punishment awarded should be directly proportionate to the nature and the magnitude of the offence. The benchmark of proportionate sentencing can assist the Judges in arriving at a fair and impartial verdict."

"17. We reiterate that in operating the sentencing system, law should adopt the corrective machinery or deterrence based on factual matrix. 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. We also reiterate that undue sympathy to impose inadequate sentence would do more harm to the justice system to undermine the public confidence in the efficacy of law. 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 court must not only keep in view the rights of the victim of the crime but also the society at large while considering the imposition of appropriate punishment."

In the instant case it is admitted fact that the appellant was arrested on 21.06.2006 i.e. the date of incident and since then he is continuously in custody.

The complainant PW-1 has admitted in her evidence that the age of the appellant was 65 years thus at present the appellant would be about 74 years old. Keeping in view the age of the victim, the seriousness of the offence and also the advance age of the appellant, we are of the considered view that the age of the appellant is a mitigating circumstance for awarding sentence. However, we do not find any good ground to inflict sentence less than minimum provided under law in view of the age of the victim. So, in our considered opinion, the ends of justice would meet by reducing the sentence of life imprisonment to a period of ten years.

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 reduced to a period of ten years. Fine is also reduced to Rs. 10,000/-, with default stipulation of one month additional imprisonment. He shall serve out remaining part of 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.

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