Semiyar alias Pappu (In Jail) vs State of U.P.

G.S.N. Tripathi, J.—This is a revision arising out of the judgment and order dated 9.10.95 passed by the Xth Additional Sessions Judge, Aligarh in Criminal Appeal No. 78 of 93. The learned Addl. Sessions Judge has confirmed the conviction and sentence awarded u/s 376, I.P.C. by the learned Vth Asstt. Sessions Judge, Aligarh on 24.9.93.

In S.T. No. 43 of 1990, State v. Semiyer alias Pappu, u/s 376, I.P.C., P.S. Vijaigarh, Distt. Aligarh, the Appellant Semiyer alias Pappu was the sole accused. The prosecution story was that on 12.2.88, Km. Laxmi, a 9 years'' old daughter of Yad Ram was raped by the accused at 3.30 p.m. in the Gram field. The accused had taken away the girl to a place situated at a very short distance, on the pretext to lift the Barseem crops. But instead of doing so, the accused removed her Salwar and Kachcha and raped her. The girl cried. Ghan Shyam hearing the cry, reached the spot and saw the accused committing rape upon the girl on the ground. Despite efforts, the accused escaped. Yad Ram, the father of the girl reached the village in the night when the entire story was narrated to him. On the following day at about 8.30 a.m., the report was lodged. The girl was medically examined by Dr. (Smt.) Parveen Ashraf, P.W. 3. She found that there were lacerations in the vagina of the girl, which could be caused only by insertion of penis inside the vagina. She was bleeding at the time of examination also.

After usual investigation, the I.O. submitted a charge-sheet against the accused.

Before the learned Asstt. Sessions Judge (trial court), the prosecution examined Km. Laxmi, who narrated the entire story. Her father Yad Ram, who moved the machinery of law was also examined. Ghan Shyam was examined as an eye-witness. But he turned hostile. Dr. Praveen Ashraf has proved her injury report. She has also opined that Km. Laxmi was 9 or 10 years'' old girl at the time of examination and she was a victim of rape.

The accused denied the allegations u/s 313, Code of Criminal Procedure and has alleged that on account of enmity, he has been falsely implicated. He also examined two oral witnesses on the point of age of the accused.

After a thread-bare analysis, the eye-witnesses examined by the accused have been disbelieved.

After analysing the entire evidence and circumstance on the record, the learned trial court held that a heinous offence had been committed by the accused upon a minor girl of 9-10 years. Therefore, he awarded 7 years'' R.I. on a charge u/s 376, I.P.C.

The accused felt aggrieved and filed the criminal appeal No. 78/93, which was dismissed after a thread-bare discussions of evidence and circumstances on the record. The learned Xth Addl. Sessions Judge, Aligarh did not feel inclined to reduce the sentence on account of barbarous and diabolic act committed by the accused. He therefore, confirmed the sentence and conviction.

Feeling aggrieved, the accused has filed this revision, which was admitted only on the question of sentence on 5.12.95.

After hearing learned Counsel for the parties, I find very little force in this revision.

The learned Counsel appearing for the revisionist did not dispute that Km. Laxmi, the victim of the crime, was a minor girl of 9 or 10 years. The statement of Dr. Praveen Ashraf was not challenged before me, in which the lady Doctor had found tears in the vagina and bleeding from the injury at the time of her examination. She has turned down the suggestion that any thing other than penis might have been responsible for causing the injuries. She has also spurned the suggestion that the injuries of Km. Laxmi, the victim of the crime, had been manufactured. Thus from the statement of Km. Laxmi, the victim of the crime and Dr. Praveen Ashraf, it is established that the accused had committed rape upon Km. Laxmi.

It was submitted in the trial court that on account of enmity, the accused has been falsely implicated. Both the courts below have rightly rejected the submission. In India, victim of the crime and also the parents try to conceal the offence of this nature, so that publicity may not ruin the future prospects of the girl. The marriage prospects of the girl, who has been ravished by somebody also before marriage, are very dim. The society has no sympathy even for such girls, who for no fault of theirs, have been victimised. Under these circumstances, simply because there could be some enmity, Yad Ram, the father of the victim would not have launched a false case. Not only this, to be fair enough to the learned Counsel for the revisionist, he has not challenged the factum of rape upon Km. Laxmi.

It is a broad-day-light incident. The victim came in a very close contact with the victimiser. She easily identified him, as the accused belongs to her neighbourhood. When the factum of rape, as a matter of fact, has not been challenged, and cannot be challenged and the victim had ample opportunity to identify the assailant, it is against human nature that the real culprit may be allowed to let off and substituted by an innocent person. It is impossible to believe that somebody else might have raped this girl but she, along with her father, has falsely implicated the accused. Therefore, this approach of the learned defence counsel cannot be appreciated and it has been rightly rejected by both the courts below.

An attempt to prove that the accused was a minor at the time of incident has failed. The learned lower court has examined this case thread-bare and has come to the conclusion that the defence version that the accused was a minor could not be proved. Therefore, this leg of the defence case is without any basis and it cannot be raised before this Court.

It was urged that this is the first crime committed by the accused, therefore, benefit of First Offender''s Act should be extended to him.

Believing that this is the first crime of this nature, I do not think that the accused can be allowed to the benefit of First Offender''s Act. It is a very heinous crime committed by the accused in a broad-day-light upon a minor girl of about 9-10 years. It is very diabolical in nature. The sentence should not be so lenient that the society may lose all faith in the administration of justice. Moreover, Justice includes justice to both the criminal as well as the victim, apart from the justice to the society. It is a crime of this nature, where the society has great stakes when the person and property of the victim become subject-matter of loot at the hands of the victimiser. Therefore, every sentence should have some aspect of deterrence so that people, like the accused, may not think of committing crime and the rules of the society should not be allowed to be violated in such an easy manner.

Taking the totality of the circumstances into consideration. I find that 5 years'' R.I. and a fine of Rs. 3,000 shall meet the ends of justice.

The revision is substantially dismissed and partly allowed. The order of conviction recorded by both the courts below, is maintained. The sentence is reduced. The accused shall now undergo 5 years'' R.I. and pay a fine of Rs. 3,000 on a charge u/s 376, I.P.C. In default of payment of fine, the accused shall further undergo simple imprisonment for a period of 3 months.

Out of the fine so recovered, a sum of Rs. 2,000 shall be paid to the victim Km. Laxmi, u/s 357, Code of Criminal Procedure. The accused is already in jail.