Vijendra vs State of U.P.

Raghvendra Kumar, J.—Heard learned counsel for the appellant and learned A.G.A. for the State of U.P.

Under assail in the criminal appeal is the judgment and order dated 20.10.2004 passed by learned Additional Sessions Judge. F.T.C. No. 16, Bulandshahr in S.T. No. 1798 of 1999 under section 376 I.P.C., Police Station Khurja Dehat, District Bulandshahr arising out of the case crime No. 52 of 1999 whereby the accused appellant Vijendra has been sentenced to imprisonment for life with a fine of Rs. 25,000/- with default stipulation of additional imprisonment for 3 years.

The factual matrix of the case is as follows :

"Smt. Vimlesh w/o Raj Kumar, Village Hazratpur, Police Station Khurja Dehat, Bulandshahr lodged an FIR on 10.4.1999 at 11.00 a.m with respect to the incident that took place on 8.4.1999 at 4.00 p.m. According to the FIR, the daughter of the informant Rani- (named changed) aged about 6 years was playing. The informant was standing in front of her house and her daughter, aged about 6 years was playing nearby. One Vijendra, resident of village Hazratpur took away the prosecutrix on the pretext of giving her Kancha. When the prosecutrix did not come back for sufficient time then the informant was worried and she disclosed above fact to Mukesh and Rishipal who were neighbours of the informant. Along with them she made a search, when she went towards the jungle she heard the noise of weeping, when she moved forward she saw Vijendra in embraced condition with the prosecutrix who was weeping and making noise then the informant and two others accompanying her challenged the accused who left the prosecutrix and fled away towards jungle/forest. The girl was found in blood. The prosecutrix was treated by a nearby Private Medical Practitioner and she waited for arrival of her husband. When the husband of the informant came back to home, she lodged an FIR with the police."

After registration of the case, the investigation proceeded in accordance with law. The underwear of the prosecutrix was taken by the police in custody.

The prosecutrix was medically examined. On internal examination Dr. Sudha Rani made following observations with respect to internal examination :

- "Vagina admit 1 finger, hymen freshly torn which bleeds on touch.

- Injury present on labia minora.

- Penial injury about 1 cm, freshness present.

- Vaginal smear taken and sent for histopathological examination to district hospital.

- Patient referred to district Hospital for X-Ray Rt. Wrist and elbow both A P and lateral for age determination."

As per Radiological examination report, the age of the victim prosecutrix assessed 8 years.

The accused has taken the plea of innocence and has denied the prosecution version. He has further stated about his false implication on the ground of enmity.

The investigation culminated into filing of charge sheet against the accused Vijendra.

The accused was charged for the offence under section 376 I.P.C. vide order of the Court dated 26.9.2000 who denied the charge and claimed trial on merits.

To substantiate the guilt against the accused, the prosecution has examined P.W.1 Vimlesh informant-complainant, P.W.2 Rani prosecutrix who has supported the prosecution version. P.W.3- Mukesh, P.W. 4 -Dr. Sudha Rani to prove the medico-legal examination report. P.W.5 Jai Narain Singh who has conducted the investigation and has proved the execution of the documents which were prepared during course of investigation. P.W.6 -Constable Raj Pal Singh who has proved the execution of Chik FIR and relevant entry in G.D.

After conclusion of the prosecution evidence, incriminating material was placed before the accused to render his explanation. The accused has disclaimed knowledge or has stated the facts to be false. He refused to lead any defence. He has further stated that he has been implicated on the basis of enmity. After conclusion of trial the learned Court below has recorded the finding of conviction, hence the appeal.

Learned counsel for the accused-appellant has not assailed the finding of conviction recorded by the learned trial court but has submitted that the accused appellant is in jail since 20.10.2004 i.e. for the last 11 years. He prayed for mercy of the Court and requested for release of the accused-appellant on the basis of the period already undergone by him in the instant case.

Learned A.G.A. has submitted that rape has been committed with a girl of six years of age. The accused has already been convicted, he is not entitled for any leniency.

Being a Court of first appeal, we feel legally oblige to scrutinize the finding of conviction recorded by the trial court against the accused Vijendra.

The Star witness of this case is prosecutrix P.W.2.She has supported the prosecution version and has categorically stated that on the pretext of giving her Kancha, she was taken by the accused Vijendra. He took her in a wheat field and asked to play Bahu Bannna then he put out the underwear and committed sexual assault. She further clarified about the act of sexual assault. When she raised alarm her mother, Mukesh and Ashok reached to the place of incident and rescued her and the accused fled away from the spot.

P.W.1 has also corroborated the prosecution case. She has found the girl in a naked condition. Blood was oozing from her private part. She has further stated of visiting the Government Hospital at Khurja for providing medical assistance to the victim prosecutrix. She has fully corroborated the version of P.W.2 prosecutrix. P.W.1 and P.W.2 were put to cross examination but nothing could be elicited in their cross examination which may be termed as material contradiction and which may form the basis for the discard of their testimony.

P.W.3 Mukesh has also supported the version of P.W. 1 and P.W.2. No material contradiction has been brought to the notice of the Court in the testimony of P.Ws. 1, 2 and 3. The testimony of P.W. 2 finds support from the medical testimony. According to the medical testimony there is penile injury which further fortifies the factum of sexual assault.

So far as the matter of appreciation of evidence of child witness is concerned, the matter has time and again been considered by Hon''ble Apex Court. The position for appreciation of testimony of a child witness has now been crystalised. A child witness is a competent witness and her testimony cannot be discarded solely on the ground of being a child witness.

If the testimony of a child witness is found to be natural, bona fide, reliable, credible and inspires confidence, it can be relied upon and the inference can be drawn about complicity of the accused. Before appreciating the evidence, the Court must assess whether the child was competent of understanding the questions put to him/her and was further competent to reply them satisfactorily and more so by way of abundant precaution it must be appreciated by the Court whether the child witness is competent to differentiate between truth and lie. Such precaution has been taken by learned Trial Court by putting questions to P.W.2 and after being satisfied on this point her statement was recorded in Court.

In this case, the testimony of the prosecutrix which finds complete support with the medical testimony appears to be genuine, reliable and credible as such there is no legal impediment in placing the reliance upon the testimony of a child witness.

Thus, we are of the considered opinion that the trial Court has rightly appreciated the evidence available on record for drawing the inference of guilt against the accused appellant. The findings of conviction recorded by the learned Court below are correct and substantiated from the material available on record and needs no interference in this appeal.

It has been submitted on behalf of the accused appellant that accused is in jail since 20.10.2004, i.e., the date of judgment and at the stage of bail he has also remained in custody for some period, he has prayed to release the accused on the basis of the period already undergone.

It has further been submitted that the accused owns the responsibility of maintaining his family, he is a poor and illiterate person having village background.

The principle of law has always been in favour of awarding the appropriate sentence. It is the established position of law that the punishment should not be too lenient or it should be too harsh. The punishment should always be such which should meet the ends of justice. More so, the legislature has provided a minimum sentence which is 10 years R.I. It simply means that in the estimation of legislature in such offence the ends of justice would even meet by the minimum sentence provided for the offence. Extreme sentence of imprisonment for life should be awarded in rarest matters.

In view of the discussions made above, we are of the considered opinion that the quantum of sentence awarded to the accused-appellant requires reconsideration. Thus, the appeal deserves to be partly allowed.

Accordingly, the appeal is partly allowed without interfering with the findings of conviction recorded by the learned Court below against the accused-appellant for the offence punishable under section 376(2)(f) I.P.C. The quantum of sentence of imprisonment for life is reduced to the period already undergone (more than eleven years) without interfering with the sentence of fine awarded by the learned Court below.

The accused-appellant shall be entitled for commutation as per the provisions of Criminal Procedure Code.

Let a copy of this judgment and order along with lower court record be transmitted to learned Court below forthwith for necessary compliance.