Jamuna Prasad Sharma vs State of U.P.

Naheed Ara Moonis, J.—The instant appeal has been preferred before this Court on behalf of Appellant Jamuna against the judgment and order dated 10.8.2000 passed by District & Sessions Judge Jaunpur in S.T. No. 273 of 1999 whereby the Appellant has been convicted and sentenced for life imprisonment and fine to the tune of Rs. 5000/- in default, the Appellant has to further undergo one year''s imprisonment. Out of Rs. 5,000/- rupees 3000/-was directed to be paid to the victim for the loss and injury caused to the victim.

Prior to analysing the genesis of this case following the decision passed by the Hon''ble Apex Court in the case of Premiya @ Prem Prakash v. State of Rajasthan LXIII 2008 ACC 94 S.C. this Court does not propose to evince the name of the victim . The Apex Court has observed as follows:

Section 228A of I.P.C. makes disclosure of identity of victim of certain offences punishable. Printing or publishing name of any matter which may make known the identity of any person against whom an offence under Sections 376/376A/376B/376C or 376D is alleged or found to have been committed can be punished. True it is , the restriction does not relate to printing or publication of judgment by High Court or Supreme Court . But keeping in view the social object of preventing social victimization or ostracism of the victim of a sexual offence for which Section 228A has been enacted, it would be appropriate that in the judgments, be it of this Court ,High Court or lower court ,the name of the victim should not be indicated.

We have chosen to describe the prosecutrix as victim in the judgment without divulging her name.

In a nut shell the facts of the present case is that the prosecutrix who was a minor girl aged about 7 years had fallen victim to the lust of Appellant. The prosecution case as unfolded in the first information report lodged by Ishwar Dayal the father of the victim was that on 4.6.99 at about 1.30 p.m. minor daughter of the complainant had gone to the pumping set of Bechu Sharma to bathe . The accused Appellant Jamuna Prasad who was the adopted son of Bechu Sharma was present there . The Appellant allured the victim and the victim was taken inside the room where the pumping set machine was installed . The Appellant undressed the victim and committed sexual intercourse with her. The victim was threatened and intimated that in case she would disclose anything ,she would be done to death . On disclosure of the incident by the victim, the victim was taken to the police station by Ishwar Dayal,the father of the victim on 9.6.99 at 2.15 p.m. and the father of the victim lodged the first information report which was registered as Case Crime No. 76 of 1999 u/s 376/506 IPC Police Station Barasathi District Jaunpur which is marked as Ex. Ka.2 . The police came into action and started investigation on the same day and the victim was taken to Women''s Hospital Jaunpur where she was medically examined by the Medical Officer at 4.30 p.m. The following incriminating signs were found during medical examination.

Ulceration is seen on perineum with 2� perineal tear. A laceration is seen on right side of labia majora. Hymen is torn . Vagina admit not a tip of finger as yet . Vaginal smear taken and sent for pathological examination for spermatozoa .A dirty blood discharge is present".

The investigating officer prepared the site plan and recorded the statement of the complainant and the mother of the victim and the statement of the victim u/s 161 Code of Criminal Procedure On15.6.2001 the statement of the victim u/s 164 Code of Criminal Procedure was recorded by the Additional Chief Judicial Magistrate Jaunpur which is exhibited as Ka.9. The Magistrate had posed some questions so as to satisfy himself as to whether the victim was able to understand the nature of the offence. The victim had narrated the entire incident in detail without any hitch and hesitation . She had specifically stated that the Appellant who was her uncle had allured her on false pretext and had subjected her to sexual intercourse. The matter was also investigated by the investigating officer. The investigating officer collected credible and clinching evidence on the basis of which the Appellant was charge sheeted and the charges were framed. The Appellant pleaded his innocence and claimed to be tried. The prosecution also examined the father of the victim as P.W.1. The victim was examined as P.W. 2. The constable Moharrir who scribed the Chik FIR was examined as P.W.3. Sub-inspector Triveni Rai, who had investigated the crime was examined as P.W. 4. Dr. Shakuntala Yadav who had medically examined the victim was examined as P.W. 5. Sri Ghanshyam Pathak Civil judge (Junior Division) District Ambedkar Nagar in whose presence the statement of the victim u/s 164 Code of Criminal Procedure was recorded has been examined as P.W. 6 .

The statement of the accused Appellant Jamuna Prasad was recorded u/s 313 Code of Criminal Procedure In his statement, the Appellant had set up a different story and disowned the entire prosecution version. The Appellant had stated that Luxmi Narain Sharma, Bechu Sharma and Ram Lakhan are three real brothers . The Appellant is the adopted son of Bechu Sharma . Bechu Sharma had executed a registered will deed of his moveable and Immovable properties during his life time in favour of the Appellant and his real son Sarvajeet alias Babloo to the extent of half share each. The said will deed was witnessed by one Indra Bahadur Singh. From the date of execution of the registered will deed in favour of the Appellant by Bechu Sharma, the Appellant was time and again given threats of implicating him in a false case and ruining his life since the Appellant had usurped the property of Bechu Sharma the brother of the complainant. It was also stated by the accused Appellant that he had been subjected to false implication on account of animus and ill will nurtured by the complainant .

In defence the putative father of the Appellant was produced and examined as D.W.1. The learned Sessions Judge after evaluating the entire material evidence adduced before him held the Appellant Jamuna Prasad Sharma guilty for the offence chargeable u/s 376 IPC and imposed find of Rs. 5000/-.

Heard learned Counsel for the Appellant and the learned AGA and have taken through the entire materials on record.

It is contended by learned Counsel for the Appellant that the court below has not appreciated the evidence on record. The first information report was lodged after great delay . There was no convincing & plausible explanation about the delay in lodging the first information report. The first information report was lodged after great deliberations and consultation with personal vendetta. The testimony of the prosecutrix does not inspire confidence . The medical evidence does not corroborate the prosecution version . The Appellant was not released on bail during trial and is languishing in jail since long . The Appellant is a poor young person and his entire life has been spoiled on account of the conspiracy hatched by the complainant. The conviction and the sentence awarded by the trial court is too severe. The Appellant has been charged for the offence u/s 376 IPC and has been awarded sentence for life imprisonment and a fine of Rs. 5,000/-has also been imposed. The sentence awarded by the trial court is not commensurate with the offence for which the Appellant has been charged. In support of his contention, learned Counsel for the Appellant has placed reliance on a decision of the Apex Court in State of Karnataka v. Rajoo 2008 5 J.I.C 406 S.C. wherein the Apex Court has reduced the sentence of life imprisonment to ten years in a case where rape was committed on a minor girl. In furtherance of his contention, learned Counsel for the Appellant has relied upon the decisions on the cases of Dinesh alias Buddha v. State of Rajasthan 2006 (2) JIC 896 and also the Division Bench of this Court in Criminal Appeal No. 282 of 2000 decided on 16.1.2007 ( Nizam Uddin v. State of U.P.) wherein sentence of life imprisonment was reduced to 10 years rigorous imprisonment.

Per contra learned AGA has supported the findings of the court below and submitted that the Appellant has committed a serious offence of outraging the virginity and modesty of a minor girl aged about 7 years. The statement of the victim is corroborated by the medical evidence. There was no occasion for a minor girl to implicate the Appellant falsely in such a heinous offence . The statement of the victim was recorded under Sections 161 Code of Criminal Procedure and under Sections 164 Code of Criminal Procedure The statements of the victim are supporting the prosecution version. The learned Sessions Judge has rightly awarded the sentence and fine to the Appellant . The testimony of the victim cannot be ruled out . The father of the victim will not invite indelible accusation by implicating the Appellant falsely in such a heinous offence so as to wreak personal vengeance. The minor daughter of the Appellant was put in a very horrendous position and was subjected to rape by the Appellant. The investigating officer had also collected clinching and credible evidence ,therefore, the judgment and order passed by the court below is just and proper and in accordance with law and does not warrant any interference by this Court.

Having analysed the facts and circumstances of the case, it is proved that the Appellant had committed sexual assault with a minor girl which was corroborated by the statement of the prosecutrix and the medical evidence is also in consonance with the prosecution version. The prosecution has sufficiently proved the case beyond all reasonable doubts and the learned Sessions Judge has committed no error in recording a finding to this effect. The nature of the offence in the present case is covered under Sections 376(2)(f) when rape is committed with a minor girl below 12 years. In the instant appeal, the victim was aged about 8 years at the time of commission of the offence . The sentence for the offence of rape with a minor girl as provided under the Code is for a term which shall not be less than 10 years but it can be extended to life imprisonment. This itself reflects the intent of the legislature to be very stringent in awarding sentence in such heinous offence. Undoubtedly,there is a proviso to Section 376(2) IPC that the Court may record special and adequate reasons in the judgment in case the sentence is for a term of less than 10 years. Thus the normal sentence in a case where rape was committed on a minor girl is not less than 10 years. Learned Counsel for the Appellant could not point out any illegality or perversity in the judgment passed by the trial court and also could not give any special and adequate reasons for reducing the sentence to less than 10 years. In this case the statement of the victim is more reliable as she had narrated the atrocity and sexual assault committed with her by the Appellant who had become a prey for the lust of the Appellant. The parents would not set up any story subjugating their own daughter to become prey of lust of any person. It has been the consistent view of the Apex Court that the measure of punishment in a case of rape cannot depend on the social status of the victim and the accused. It must depend upon the conduct of the accused and the age of the sexually assaulted victim . The gravity of the criminal act and the violence with a female needs to be dealt with severally. The social status, religion, race ,caste or creed of the accused or victim are irrelevant for determining the gravity of the offence and awarding sentence. In the present case there is no extenuating and mitigating materials available on record on the basis of which the quantum of punishment can be reduced. It has been held by the Apex Court that indication of any leniency in a case of such a heinous nature would amount to travesty of justice and the plea of leniency would be wholly unjustified. Learned Counsel for the Appellant has further urged that the Appellant is absolutely innocent and has no criminal history. The Appellant was aged about 22 years at the time of incident and during the trial he was confined in jail.

Looking to the entire facts and circumstances of the case and also submission advanced by learned Counsel for the Appellant , this Court is of the view that the sentence of life imprisonment is reduced to a term of ten years and the fine of Rs. 5,000/- awarded by the court below is upheld. Resultantly, this appeal is partly allowed.