Izhar vs State

Raghvendra Kumar, J.—Heard learned counsel for the accused-appellants, learned A.G.A. for the State of U.P. and perused the record.

This jail appeal is directed against judgment and order dated 1.11.2004 passed by Additional Sessions Judge, Fast Track Court, Court No. 5, Kanpur Nagar in Sessions Trial No. 1153 of 2003 (State v. Izhar) arising out of Case Crime No. 274 of 2002, registered u/s. 376 IPC P.S. Fasalganj, District-Kanpur Nagar whereby the accused-appellant namely, Izhar has been convicted for the offence u/s. 376(2)(f) IPC and sentenced to undergo imprisonment for life along with fine of Rs. 10,000/- with default stipulation of three months simple imprisonment.

The brief facts giving rise to this case are as follows:--

"The FIR of this case has been lodged by informant-complainant Pappu @ Rajkumar s/o Ramraj at P.S. Fasalganj, District-Kanpur Nagar on 20.11.2002 at about 12.30 hours with respect to the incident, which took place on 20.11.2002 at about 10.15 am. The accused Izhar used to visit the house of informant. On 20.11.2002 in the morning, he took the daughter of informant (i.e. prosecutrix) aged about 8 years, on the pretext of purchasing water-chestnut (singhada) for her. He took away the prosecutrix behind the factory in the herbs where he committed rape with the prosecutrix-girl child. When the prosecutrix raised alarm the passersby reached to the spot and they apprehended the accused and assaulted him. When sufficient time elapsed and the daughter did not come back, by searching the girl the informant along with his wife reached to the spot on hearing her noise. On the spot he found the prosecutrix lying in blood. The accused along with prosecutrix was taken to the police station by the informant. The FIR was lodged. The prosecutrix was medically examined."

The prosecutrix was medically examined by a doctor on 20.11.2002 at 3.50 pm at A.H.M. & Dufferin Hospital, Kanpur and following injuries have been noted on her person:--

"(i) Abrasion 1 cm x 1 cm size present on left side of neck, 4 cm below left ear

(ii) Abraded contusion present on left cheek 3 cm x 4 cm.

Duration of both injuries has been mentioned as fresh. As per vaginal examination following observations have been made in the injury report:--

There is perineal tear of about 1 cm internally and extending into vaginal mucosa of about 1.5 cm length, 0.5 cm depth, 0.5 cm width seen at 5 O''clock position of vagina. Margins are fresh, irregular, duration within 8 hours. 2 slides of vaginal smear prepared for histopathological examination. The perineal tear was stitched in Operation Theatre (O.T.) under Ketamine (G. A.). In supplementary medical examination report it has been observed that possibility of rape cannot be ruled out. As per radiological examination the age of girl (prosecutrix) was assessed as 9 years. The clothes of prosecutrix were sent for chemical examination to the Forensic Science Laboratory, Mahanagar, Lucknow. The examination report is being reproduced herein below:--

The I. O. recorded the statement of witnesses and the investigation of the case culminated into filing of charge sheet against the accused-appellant.

After complying with the procedure the learned trial Court framed charge against the accused for the offence u/s. 376 IPC. The accused denied the charge and claimed trial on merits.

To substantiate the charges levelled against the accused person, the prosecution has examined PW-1, Raj Kumar @ Pappu, informant-complainant, PW-2, prosecutrix Aarti (name changed) aged about 10 years, PW-3, Dipak Kumar Tiwari, PW-4, Dr. Ritu Katial, PW-5, Giresh Upadhyay. He has proved the execution of chik FIR and relevant G. D. entry. PW-6, S.I. Fateh Singh has executed the site plan.

After conclusion of trial, the incriminating circumstances which came up during trial were put to the accused-appellant for rendering his explanation. Accused-appellant has denied the prosecution story and stated that he has been falsely implicated.

The learned trial Court recorded the findings of conviction against accused Izhar, hence this appeal.

It has been submitted by the learned counsel for the accused-appellant that he does not want to assail the findings of conviction on merits instead, he prayed for mercy of the Court and submitted that accused is in jail for more than 13 years. Considering the period of incarceration he may be released on the basis of period already undergone. Lenient view on point of sentence may be taken.

Learned A.G.A. has opposed the prayer and contended that in the instant case rape has been committed with a minor girl.

Being the Court of first appeal and by way of abundant precaution, we are scrutinizing the findings of conviction recorded by learned trial Court on the basis of materials available on record.

PW-2 has categorically stated that on 20.11.2002 at about 10.15 am she was taken behind the factory in the herbs where the accused Izhar committed the rape. She has identified the accused-appellant in the Court. The accused-appellant was known to the family of the prosecutrix. The prosecutrix further stated that accused-appellant pressed her neck and forcibly knocked her down on earth and thereafter, asked her to put off clothes and started doing obscene activity. The accused-appellant undressed her underwear and thereafter, committed act of sexual assault by his male organ with her private parts. She raised alarm. On hearing alarm several persons reached to the spot and apprehended the accused-appellant.

It is the settled proposition of law that a child witness is a competent witness. The testimony of a child witness can be relied upon if it is found to be credible, natural, reliable and inspiring confidence. But, the Court is required to ensure whether the child witness is capable of appreciating the truth and lie. Reliance can be placed upon the solitary statement of a child witness if, the statement is true and correct and is of quality and his deposition is found to be reliable and is away from the shadow of tutoring. From time to time the Hon''ble Apex Court has considered the aspect of appreciation of evidence of child witness and has issued guidelines for the appreciation of testimony of such witness. [ Shivasharanappa and Others Vs. State of Karnataka, , Alagupandi @ Alagupandian Vs. State of Tamil Nadu, & State of Rajasthan v. Chandagiram & Ors. reference to Criminal Appeal No. 937 of 2008]. In the instant case, whether the girl child has sufficient understanding to appreciate the question in right perspective and is competent to reply the questions appropriately, the Court has taken sufficient precaution by putting certain quarries prior to her examination and after being satisfied, it has made observation that the girl child is in a position to depose before the Court.

PW-2, the prosecutrix has been put to a lengthy cross-examination and she has made consistent statement about the act of sexual assault committed by the accused-appellant. On her re-cross examination on 17.5.2004, she has categorically stated that she did not give a wrong statement that the accused Izhar had raped her. She further clarified that she had not deposed at the instance of Government Advocate. She has been put to a lengthy cross-examination, but nothing could be elicited by way of her cross-examination, which may raise question mark on the authenticity and veracity of testimony of this witness or which may create doubt any about the incident. There is complete consistency and coherence in the examination-in-chief and cross-examination of this witness. The Court has already observed that the prosecutrix-girl child was in a position to depose before the Court. There is no legal impediment in placing reliance upon the testimony of girl child (prosecutrix), aged about 10 years, at the time of recording of the statement before the Court.

PW-1, Pappu @ Rajkumar is informant-complainant, who has lodged the FIR. PW-3, Dipak Kumar Tiwary is a public witness of fact. He has fully supported the factum of sexual assault by the accused-appellant with the prosecutrix-girl child. This witness has maintained his stand in his cross-examination as stated in his examination-in-chief. Nothing could be extracted by way of cross-examination from the witness, which may be termed as material contradiction and his testimony may be discarded. There is complete consistency and coherence in the examination-in-chief and cross-examination of this witness. The testimony of PW-2 finds full support from the testimony of PW-3. He is an independent public witness of fact.

PW-4 Dr. Ritu Katial has medically examined the prosecutrix. During her examination she has noted the following observations on internal examination of prosecutrix-girl child:--

"Hymen-torn, bleeding, perineal tear of the size referred above, duration fresh within six hours of time. Vaginal tear or wound was stitched.

She has proved the execution of medico examination reports and further she has opined that the prosecutrix was subjected to sexual assault."

The nature of injuries or the observations made as per the vaginal examination and the opinion of the doctor further fortifies the commission of rape with the prosecutrix.

Rest witnesses are formal witnesses who have proved the execution of Chik FIR, G. D. and the documents prepared during the course of investigation.

Having gone through the findings of conviction recorded by the learned trial Court we are of the opinion that the learned trial Court has rightly recorded the findings of conviction on the basis of material available on record. The learned Court below has rightly appreciated the evidence available on record and has not erred in appreciation of the evidence. The learned Court below has, thus, rightly held the accused-appellant guilty for the offence u/s. 376(2)(f) IPC. As such, we do not find justification to interfere with the findings of conviction recorded by the learned trial Court.

It has been submitted on behalf of the accused-appellant that the accused is a poor man. He is involved in business of tatter (kabadi). Whatever he earns on daily basis he manages to maintain his family. He owes responsibility to maintain his family. He is an illiterate person with poor financial background. He is incarcerating in jail for more than 13 years.

It is the settled philosophy of law that punishment imposed should neither be harsh nor lenient one. The sentencing philosophy have leaning towards deterrence and reformation. The sentence imposed should be appropriate and should meet the ends of justice after balancing the aggravating, mitigating or extenuating circumstances. Accused-appellant does not have any criminal history. Considering the facts and circumstances we are of the considered opinion that the quantum of sentence awarded to the accused-appellant by the learned trial Court warrants interference.

In view of discussions made above, we are of the opinion that the appeal deserves to be partly allowed on the point of quantum of sentence only. In our considered view imprisonment for twelve years would be adequate sentence for the offence.

The appeal is partly allowed. The conviction of accused-appellant for the offence u/s. 376(2)(f) IPC is hereby affirmed. The sentence of imprisonment for life awarded to the accused-appellant for the offence u/s. 376(2)(f) IPC is modified and reduced to rigorous imprisonment for a period of 12 years. The sentence of fine is not interfered with and is confirmed as imposed by the learned trial Court. The accused-appellant shall be entitled for commutation of sentence as per Section 428 of Code of Criminal Procedure.

Let the lower Court''s record be sent back to the Court concerned forthwith along with a copy of this judgment and order for immediate compliance.