HIGH COURT OF UTTARAKHAND, AT NAINITAL Criminal Appeal No. 205 of 2007 Raj Kumar S/o Brij Lal Takur R/o Pakri P.S. Falasi District Araiya, Bihar ……Appellant Versus State of Uttarakhand …… Respondent Mr. L.K. Tiwari, Advocate for the appellant. Mr. Nandan Arya, learned A.G.A. for the State/respondent. JUDGMENT Hon’ble J.C.S. Rawat, J. This appeal has been directed against the judgment and order dated 18.03.2006 passed by the learned Sessions Judge, Dehradun in Sessions Trial No. 142 of 2005, State Vs. Raj Kumar whereby the appellant has been convicted & sentenced to undergo rigorous imprisonment for a period of five years with a fine of Rs. 2,000/- u/s 376(2)-F r/w 511 Indian Panel Code, 1860 (for brevity as I.P.C.). In default of payment of fine, the appellant shall further undergo one- year imprisonment. 2. Brief facts leading to the prosecution case are that the father of the victim and the appellant were residing in the same house in different rooms. They have an opening in a common courtyard. The complainant Shambhu Shah, father of the victim was living with his family consisting of his wife and three children out of which one daughter was aged about 4-5 years. The appellant has been working as a Thela Puller whereas the informant was working as a Mason. On 06.03.2005 the informant was in his room with his other family members and were busy in viewing the television. The daughter aged about 4 or 5 years of the complainant was playing in the courtyard. Meanwhile, he heard the cry of his daughter i.e. victim and he came out alongwith his wife. Landlord, Suresh also joined them outside the room. The cry of the victim was coming from the room of the appellant. The informant and other witnesses found the room of the appellant bolted from inside. The informant, his wife and other persons present at the spot peeped inside the room through some visible holes from outside and found that the appellant was laying down upon the victim and he was committing the sexual intercourse upon her. When the informant and other persons entered into the room, they found the appellant naked. The appellant immediately took his clothes and fled away from the place of the incident. He was arrested in the intervening night of 06/07-03.2005 at 11:00 p.m. The Investigating Officer also got examined the victim as well as the appellant from the Medical Officer in the hospital. After recording the statement of the witnesses and collecting the material against the appellant, the Investigating Officer submitted the chargesheet Ex.Ka.7 before the court concerned. 3. After submission of chargesheet, the accused/appellant was committed to the court of Sessions for trial and the trial court framed charge u/s 376 I.P.C. against the accused/appellant. The accused/appellant denied the charge levelled against him and claimed his trial. 4. The prosecution in support of its case examined Shambhu Shah PW1, father of the victim and eyewitness of the incident. Suresh PW2 is the landlord of the appellant as well as informant. He was also present at the time of the incident. Smt. Rekha PW3 is the mother of the victim and eyewitness of the incident. All these three witnesses claimed to have seen the occurrence. Dr. Mohit Goel PW4 examined the injuries on the person of the accused. S.I. Kripal Singh PW5 is the Investigating Officer of this case who has submitted the chargesheet against the appellant. It is pertinent to mention here that the prosecutrix could not be examined as she was 4 to 5 years girl. The defence counsel has admitted the genuineness of medical report, supplementary report and x-ray report of the victim as Ex.Ka.10 to 13. The defence has not adduced any documentary or oral evidence in support of his defence. 5. The accused-appellant was examined u/s 313 Cr.P.C. and he has pleaded not guilty to the offence. The appellant has denied to have committed rape or attempted to commit rape upon the victim. The accused/appellant had further stated that his cable connection was snatched by the daughter of the informant due to which there was scuffle in between them. The landlord Suresh PW2 has beaten him and asked him to vacate the room. Since the appellant refused to vacate the room, the landlord took him to the police station and falsely implicated him in this case. 6. The learned Sessions Judge, after appreciation of the evidence and hearing the parties convicted the appellant and sentenced him as indicated above. 7. I have heard the learned counsel for the parties and perused the record. 8. Informant Shambhu Shah PW1, father of the victim has categorically stated in his evidence that on the date of the incident, the victim was playing outside the room of the informant in the courtyard. He was watching the television with his other family members. Upon hearing the cry of the victim from the room of the appellant, the informant as well as his wife came outside. The other persons present there including landlord, Suresh PW2 also reached at the spot. They found that the accused/appellant has bolted the door from inside. They peeped inside the room and found that the appellant was laying upon the victim and the victim was found lying on the ground. When they knocked the door, the appellant was naked. Thereafter, the appellant started to put on his clothes and opened the door. Immediately, thereafter, he fled away from the place of the occurrence. The informant and other persons entered into the room of the appellant. They found the victim naked and there was bleeding on her private part. They immediately went to the hospital for medical treatment but they were directed to go to the police station first to lodge the report. Thereafter, he reported the matter to the police station and the victim was taken to the hospital for medical examination and treatment. The Medical Officer Smt. Padma Rawat conducted medical and prepared the injury report. The victim was referred to radiologist where her x-ray was conducted. The Medical Officer prepared the supplementary report. She opined that the age of the victim was in between 4-5 years. Suresh PW2 has also stated that he was also present at the spot and he had seen the entire incident. Smt. Rekha PW3 is the mother of the victim who was also with the informant at the time of the incident. She had also narrated the entire incident before the trial court in her evidence. Both the witnesses has corroborated the evidence of Shambhu Shah PW1 on all material points; they have given vivid details of the incident as narrated by Shambhu Shah PW1; they have also narrated the manner how the commission of offence was committed by the appellant; and how he fled away from the place of the occurrence. The evidence of all the witnesses is corroborated on each and every material points. The learned trial court had gone through the entire evidence and after appreciation of the evidence found it to be trustworthy, credible and cogent. The learned trial court has discussed the entire evidence of the eyewitnesses. The witnesses have been cross examined at length but noting could be elicited from their evidence to discredit their evidence. The trial court has minutely scrutinized all the witnesses and found them consistent and reliable. I do not find any infirmity in the evidence recorded by the learned trial court. With the assistance of the learned counsel for the parties, I have gone through the evidence adduced and on my independent appreciation; I found that the evidence is consistent and reliable in narration of the incident. 9. The victim was aged about 4-5 years. Although it is true that she was medically examined but no injury was found on her private parts. Neither the Medical Officer in the medical report nor in the supplementary report has expressed any opinion about the rape having been committed with the victim. The appellant had been convicted u/s 376 (2)-F r/w 511 I.P.C. As the medical evidence about the rape was not established, the learned trial court has rightly convicted the appellant only for the attempt to commit rape, which is sufficient to convict the appellant. 10. The next circumstance which gives credence to the evidence of Shambhu Shah PW1, Suresh PW2 and Smt. Rekha PW3 is that the accused/appellant was arrested on the date of the incident at about 11:00 p.m. in the night and he was examined in the morning of the next day. The medical report reveals that there was laceration under surface of the male organ of the appellant. Such under surface laceration of the male organ, could not be caused by any other means. The appellant tried to explain by saying that due to the quarrel with complainant and landlord, he was beaten by the landlord. If injuries had inflicted upon the appellant, it would be only on his body and not under the surface of his male organ. Thus the defence as set up by the appellant is not probable and it does not give any support to the appellant to repel the evidence of the prosecution. This fact also corroborates the factum of commission of the offence. Though there is no need to get corroboration from any fact in this matter as the evidence of Shambhu Shah PW1, Suresh PW2 and Smt. Rekha PW3 have categorically stated that they have seen the appellant through the holes of the doors laying upon the victim in a naked condition. As and when the witnesses entered into the room, the appellant fled away from the place of spot. It cannot be said that the offence comes within the purview of molestation. The credible and cogent evidence led by the prosecution has proved the fact that the appellant was laying in a naked position upon the victim and trying to belabour her to commit sexual intercourse without her consent and the victim was crying for help. In these circumstances, the evidence of Shambhu Shah PW1, Suresh PW2 and Smt. Rekha PW3 is alone sufficient to convict the appellant. 11. It was further contended by the learned counsel for the appellant that the sentence imposed upon the appellant did not commensurate with the offence committed by him. He has further placed reliance upon the dictum of the Hon’ble Apex Court in the case of State of Haryana Vs. Prem Chand (1197) 7 SCC p/756 to release the appellant under the Probation of Offenders Act, 1958. It is also pertinent to mention here that the offence was committed upon a girl aged about 4 to 5 years of age and the appellant was 24 years of age a the time of the commission of the offence as it revealed from the statement recorded u/s 313 Cr.P.C. The statement was recorded after 7-8 months of the incident. Thus, at the least the appellant would be 23 years of age at the time of the incident. It is further revealed that the girl was 4-5 years of age and the appellant was in his prime youth at the time of the incident. To provide the benefit of Section 4 of Probation of Offenders Act the age of the accused must be below 21 years. Learned counsel for the appellant further contended that if the appellant could not get the benefit of Section of the Probation of Offenders Act, he can be given benefit of Section 360 Cr.P.C. As indicated above, the case falls u/s 376 (2)-F I.P.C. where a minimum sentence has been awarded. This discretion has been given to the Court when the court records the reasons for mitigating the sentences. The only mitigating circumstance pointed out by the learned counsel for the appellant was that the appellant was alone bread earner in his family and he could not even arrange counsel to contest his case. Learned counsel appearing for the appellant has either been provided by State Legal Authority. The measure of punishment in a case of rape cannot depend upon the social status of the victim or the accused. It must depend upon the conduct of the accused, state and age of the sexually assaulted female and the gravity of the criminal act. The Hon’ble Apex Court in the case of State of Rajasthan Vs. Madan Singh reported in 2008 AIR SCW 1340 wherein the victim was aged about 10 years and the respondent committed rape upon the said girl. The accused/appellant was convicted by the trial court in accordance with the provision of the Code. The High Court recording the reason that the accused was a young person who is the only bread earner of his family awarded the sentence of seven years instead of 10 years which was minimum prescribed under the I.P.C. Reversing the judgment of the High Court, the Hon’ble Apex Court maintained the conviction of 10 years which was minimum for the offence. The Hon’ble Apex Court observed while reversing the judgment, the courts are obliged to respect the legislative mandate in the matter of awarding of sentence in all such cases. The court must hear the loud cry for justice by the society in cases of the heinous crime of rape on innocent helpless girls of tender years, as in the case, and respond by imposition of proper sentences. Public abhorrence of the crime needs reflection through imposition of appropriate sentence by the Court. There were no extenuating or mitigating circumstances available on record which may justify imposition of any sentence less than the prescribed minimum on the respondent. To show mercy in the case of such a heinous crime would be a travesty of justice and the plea for leniency is wholly misplaced. In view of the above, I am of the opinion that no leniency can be taken in this case. I do not find any force in the contention of the learned counsel for the appellant. 12. Now it has to be seen what would be the appropriate sentence in the present case. It is pertinent to mention here that if a rape is committed upon a girl below the age of 12 years, the minimum sentence to be awarded is 10 years. Now, I have to examine what should be the appropriate sentence in this case under Section 376(2)-F r/w 511 I.P.C. Section 511 I.P.C reads as follows: “Whoever attempts to commit an offence where no express provision is made under the Indian Penal Code, the sentence would be of any description provided for the offence, for a term which may extend to one-half of the imprisonment for life or, as the case may be, one-half of the longest term of imprisonment provided for the offence.” 13. In the case of Paras Ram Vs. State of Himachal Pradesh reported in ACC 2000 (SC) Volume 41 Page 878, the Hon’ble Apex Court convicted the accused under Section 376 r/w 511 I.P.C and held in Paras 4 & 5 as follows: “4. The High Court was correct in believing the story of Radha, particularly in the light of the medical evidence and also the testimony of P.W.2 Indira. The conviction made by the High Court in reversal of the order of acquittal, for the offence under section 376/511 of the Indian Penal Code cannot, therefore, be faulted with. 5.Regarding the sentence, the High Court imposed a sentence of rigorous imprisonment for 10 years on the appellant. Had the rape been committed on Radha, the appellant could perhaps have pleaded for imposing the sentence of imprisonment for 10 years. Now since the offence is only one of attempted rape, we are of the view that interest of justice will be served by giving half of the said period proscribed for rape.” 14. In the case in hand, the offence of attempt to rape has been made out against the accused-appellant. Keeping in view the above dictum delivered by the Hon’ble Apex Court, I am of the view that no lenient view can be taken against the accused/appellant. The trial court convicted the accused-appellant under Section 376(2)-F r/w 511 I.P.C, as such, the sentence of five years and a fine of Rs. 2,000/- awarded under Section 376(2)-F r/w 511 I.P.C was appropriate. 15. In view of the aforesaid reasons, I hold that the prosecution has established the guilt beyond reasonable doubt against the accused/appellant. I find that the learned trial court has rightly convicted and sentenced the accused/appellant and there is no infirmity in the impugned judgment and order passed by the learned trial court. The accused-appellant is liable to be convicted and sentenced as awarded by the trial court. Hence, the appeal is liable to be dismissed and is hereby dismissed. 16. Let the lower court record be sent back to the court concerned for compliance. (J.C.S.Rawat, J.) Dated 3rd April, 2008 Shiv