HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH AFR RESERVED Court No. - 28 Case :- CRIMINAL APPEAL No. - 595 of 2008 Appellant :- Brijesh Singh @ Brijesh Bahadur Respondent :- State Of U.P. Counsel for Appellant :- In Person,(Amicus Curaie),Anurag Singh Chauhan Counsel for Respondent :- Govt. Advocate Corum:- Hon'ble Arvind Kumar Tripathi,J.
Hon'ble Mrs. Ranjana Pandya,J.
PER HON'BLE MRS. RANJANA PANDYA, J.
1. The present appeal has been preferred against the judgement and order dated 21/22.8.2006 passed by Additional Sessions Judge, Court No. 2 in S.T. No. 244 of 2004, Case Crime No. 125 of 2004, under Sections 376, 352 I.P.C. and Section 3(2)(v) of S.C./S.T. Act, Police Station- Lalganj, District-Raebareli, by which the trial court found the accused guilty for the aforesaid sections and sentenced him to life imprisonment and Rs. 5000/- fine with default stipulation under Section 376/2/F. He was further sentenced to two months rigorous imprisonment and Rs. 300/- fine with default stipulation under Section 352 and was also sentenced to life imprisonment and Rs. 5000/- fine with default stipulation under Section 3(2)(v) of the S.C./S.T. Act. All the sentences were to run concurrently.
2. The prosecution story unfolded as per F.I.R. and the prosecution case is that on 29.3.2004 at about 12 O'clock in the day time the grand daughter of the informant, whose name was Moni aged about 6 years old went to bring sugar cake (Batasha) from the neighbouring shop of Bachcha Singh. When she did not return after quite sometime then the informant and his family members started tracing the girl. When they reached Arhar Fields near the Hospital they heard shrieks, at this Shailesh and Ganesh ran towards the filed and saw that the accused Brijesh Singh was disrobed (Naked), Moni was also disrobed. Her mouth was gaged with cloth and the accused was raping the victim. As soon as the accused saw Shailesh and Ganesh, he chased them with Danda and finding an opportunity he fled away from the spot.
3. A written report was lodged by the Grand Father of the victim, which was registered at Crime No. 125 of 2004, under Sections 376, 352 I.P.C. and Section 3(2)(v) of S.C./S.T. Act, Police Station- Lalganj, District-Raebareli by Head Constable Arjun Singh, who has proved the Chick Report as Exhibit Ka-5. This witness also entered the details of the crime in the G.D. And proved as Exhibit Ka-6.
4. Investigation of the matter was entrusted to C.O. Arjun Kumar, who recorded the statements of the informant Ram Gulam on 29.3.2004. He further recorded the statement of mother of the victim. He visited the spot and prepared the site plan and proved it as Exhibit Ka-6. The blood stained panty of the victim was taken into custody and its memo was prepared.
5. The statement of other witnesses were recorded on 31.3.2004. The accused was arrested by S.S.I. Bhaskar Mishra on 8.4.2004. Medical reports of the victim were evaluated. The victim was interrogated on29.4.2004 and her panty was sent to the Pathological Lab for examination. Thereafter the charge-sheet was submitted against the accused, which was proved by this witness. The victim was examined by P.W. 3 Dr. Vinita Singh on 30.3.2004 at 1:45 hrs in the day time, who found the following injuries on the body of the victim :
(i) Abrasion 4 c.m. X 2 c.m. on back.
(ii) Abrasion .5 c.m. x .1 c.m. on left cheek.
6. On internal examination the the Doctor found Hymen torn at 6 O'clock position and the injury was extending to posterior vaginal wall .5 c.m. in length, which was bleeding on touch. The vaginal smear was taken for Pathological examination and the case was referred to the Radiologist for x-ray examination. The examination indicated penetration by some blunt object. This witness proved the medical report as Exhibit Ka-3.
7. Supplementary report was also on record. According to which the Radiological age was found to be about 7 years and the Doctor had opined that possibility of rape cannot be ruled out. The supplementary report was proved as Exhibit Ka-5 by the Doctor.
8. The prosecution also examined P.W. 1 Moni-victim, P.W. 2 Ram Gulam-informant, who prove the written report as Exhibit Ka-1 and memo of recovery of the panty as Exhibit Ka2. P.W. 5 is Ganesh, who is said to be the eye-witness of the occurrence. P.W. 7 Radiologist Sayyad Altaf Hussain, who has proved the x-ray report as Exhibit Ka-7 and x-ray plate as Exhibit 1. After examining the aforesaid witnesses the prosecution evidence was closed.
9. The statement of the accused was recorded under Section 313 Cr.P.C., who completely denied the prosecution case and stated that he had been falsely implicated due to old enmity. The statement of the Doctor is incorrect. The Serological report is also incorrect. Witness Ganesh Singh being friendly to the complainant has given false statement against him, and the case has been filed to obtain Government aid. No defence was adduced by the accused.
10. After hearing the argument of the learned counsel for the parties and perusal of the record, the Additional Sessions Judge, Court No. 2 Raebareli passed the aforesaid sentence.
11. Feeling aggrieved, the accused has come up in the appeal.
12. We have heard Shri Anurag Singh Chauhan, Amicus Curaie on behalf of the appellant and learned A.G.A. for the State and perused the record. The following points were submitted by the learned counsel for the appellant for disposal of the appeal :-
(i) The witnesses, are interested witnesses, thus they can not be relied upon.
(ii) The ocular evidence is not supported by the medical evidence and the Serological report.
(iii) Charges under Section 3(2)(v) of S.C./S.T. Act have not been proved by the prosecution.
(iv) The alleged recovery of panty of the victim is false, the accused was not arrested by the I.O. as alleged by him, thus the investigation is defective.
(v) The accused is in jail since more than 10 years, hence he should be released on the sentence already undergone.
(i) The witnesses are interested witnesses, thus cannot be relied upon The witnesses have submitted that the informant Ram Gulam is not an eye witness to the occurrence. Moni the victim is a child witness whose statement under Section 164 Cr.P.C. was not recorded, hence, her statement is futile and as far as statement of eye-witness Ganesh is concerned, his statement cannot be relied upon since he is inimical to the accused and friendly to the informant.
As far as P.W. 2 Ram Gulam is concerned, admittedly he is not the eye witness but he has stated that when he was trying to search his grand daughter, Shailesh and Ganesh were also busy in trying to locate her. At that time he saw Shailesh and Ganesh bringing the child in their lap. The child was unconscious. In cross-examination this witness has fairly admitted that he was having good terms with Ganesh at the time of occurrence and at the time of evidence also. The shop of Ganesh is about 50-60 meters away from his house. He also admitted that nobody asked Ganesh and Shailesh to search the child but they themselves volunteered to do so. Ganesh P.W. 5 has stated that the victim had gone to bring sugar cake and when she did not return, she was being searched. When he reached near the arhar fields, he heard sounds and shrieks and saw the accused raping the girl. He has further stated that the accused chased them with a danda. Thereafter the accused fled away. In cross-examination, this witness said that the shop is about 500-600 meters from the house of the informant. He has also stated that he and Shailesh picked up the girl, they met informant Ram Gulam on the way and after that all the people proceeded to the police station. This statement is being corroborated by the copy of G.D. Ext. Ka-6 according to which informant Ram Gulam was accompanied by Shailesh, Rameshwar, Rama Rani, victim etc. An extensive cross-examination has been done and the witness P.W. 5 Ganesh underwent the cross-examination unblemishedely. This witness had no axe to grind. We have critically gone through the evidence of all witnesses but not even a suggestion has been given to this witness that he is inimical to the accused. Why this witness would depose against the accused could not be explained by the counsel for the appellant. This witness had admitted that Moni is his cousin's daughter thereby is related to the victim and the informant. There are catena of decisions in which the Hon'ble Apex Court has laid down that mere relationship of a witness could not be a ground to discard his evidence. But a word of caution has been said that such evidence of a related witness has to be examined cautiously and carefully and rule of prudence may require corroboration. Thus, the prosecution evidence is consistent and trustworthy.
(ii) The ocular evidence is not supported by the medical evidence and the Serological report It has been submitted by the learned counsel for the appellant that the ocular & medical evidence are contradictory. The statement of victim P.W. 1 Moni has also been criticized on the point that she is a tutored child witness in as much as the occurrence took place on 29.3.2004 whereas the victim was examined before the trial court on 5.2.2005 about a year after the occurrence without the victim being examined before a Magistrate under Section 164 Cr.P.C.
Child Witness The Hon'ble Apex Court has laid down the law as regards the evidence of "child witness" is concerned. In Criminal Appeal No. 1289 of 2005, State of M.P. Vs. Ramesh and another decided on 18.5.2011, the Hon'ble Apex Court as under :-
In Rameshwar S/o Kalyan Singh Vs. The State of Rajasthan, AIR 1952 SC 54, this Court examined the provisions of Section 5 of Indian Oaths Act, 1873 and Section 118 of Evidence Act, 1872 and held that every witness is competent to depose unless the court considers that he is prevented from understanding the question put to him, or from giving rational answers by reason of tender age, extreme old age, disease whether of body or mind or any other cause of the same kind. There is always competency in fact unless the Court considers otherwise.
The Court further held as under:
".....It is desirable that Judges and magistrates should always record their opinion that the child understands the duty of speaking the truth and state why they think that, otherwise the credibility of the witness may be seriously affected, so much so, that in some cases it may be necessary to reject the evidence altogether. But whether the Magistrate or Judge really was of that opinion can, I think, be gathered from the circumstances when there is no formal certificate...."
In Mangoo & Another Vs. State of Madhya Pradesh, AIR 1995 SC 959, this Court while dealing with the evidence of a child witness observed that there was always scope to tutor the child, however, it cannot alone be a ground to come to the conclusion that the child witness must have been tutored. The Court must determine as to whether the child has been tutored or not. It can be ascertained by examining the evidence and from the contents thereof as to whether there are any traces of tutoring.
In Panchhi & Others Vs. State of U.P., AIR 1998 SC 2726, this Court while placing reliance upon a large number of its earlier judgments observed that the testimony of a child witness must find adequate corroboration before it is relied on. However, it is more a rule of practical wisdom than of law. It cannot be held that "the evidence of a child witness would always stand irretrievably stigmatized. It is not the law that if a witness is a child, his evidence shall be rejected, even if it is found reliable. The law is that evidence of a child witness must be evaluated more carefully and with greater circumspection because a child is susceptible to be swayed by what others tell him and thus a child witness is an easy prey to tutoring."
In Nivrutti Pandurang Kokate & Others Vs. State of Maharashtra, AIR 2008 SC 1460, this Court dealing with the child witness has observed as under:
"The decision on the question whether the child witness has sufficient intelligence primarily rests with the trial Judge who notices his manners, his apparent possession or lack of intelligence, and the said Judge may resort to any examination which will tend to disclose his capacity and intelligence as well as his understanding of the obligation of an oath. The decision of the trial court may, however, be disturbed by the higher court if from what is preserved in the records, it is clear that his conclusion was erroneous. This precaution is necessary because child witnesses are amenable to tutoring and often live in a world of make-believe. Though it is an established principle that child witnesses are dangerous witnesses as they are pliable and liable to be influenced easily, shaped and moulded, but it is also an accepted norm that if after careful scrutiny of their evidence the court comes to the conclusion that there is an impress of truth in it, there is no obstacle in the way of accepting the evidence of a child witness."
The evidence of a child must reveal that he was able to discern between right and wrong and the court may find out from the cross-examination whether the defence lawyer could bring anything to indicate that the child could not differentiate between right and wrong. The court may ascertain his suitability as a witness by putting questions to him and even if no such questions had been put, it may be gathered from his evidence as to whether he fully understood the implications of what he was saying and whether he stood discredited in facing a stiff cross-examination. A child witness must be able to understand the sanctity of giving evidence on a oath and the import of the questions that were being put to him. (Vide: Himmat Sukhadeo Wahurwagh & Others Vs. State of Maharashtra, AIR 2009 SC 2292).
In State of U.P. Vs. Krishna Master & Others, AIR 2010 SC 3071, this Court held that there is no principle of law that it is inconceivable that a child of tender age would not be able to ecapitulate the facts in his memory. A child is always receptive to abnormal events which take place in his life and would never forget those events for the rest of his life. The child may be able to recapitulate carefully and exactly when asked about the same in the future. In case the child explains the relevant events of the crime without improvements or embellishments, and the same inspire confidence of the Court, his deposition does not require any corroboration whatsoever. The child at a tender age is incapable of having any malice or ill will against any person. Therefore, there must be something on record to satisfy the Court that something had gone wrong between the date of incident and recording evidence of the child witness due to which the witness wanted to implicate the accused falsely in a case of a serious nature.
Part of the statement of a child witness, even if tutored, can be relied upon, if the tutored part can be separated from untutored part, in case such remaining untutored part inspires confidence. In such an eventuality the untutored part can be believed or at least taken into consideration for the purpose of corroboration as in the case of a hostile witness. (Vide Gagan Kanojia & Another Vs. State of Punjab, (2006) 13 SCC 516).
In view of the above, the law on the subject can be summarized to the effect that the deposition of a child witness may require corroboration, but in case his deposition inspires confidence of the court and there is no embellishment or improvement therein, the court may rely upon his evidence. The evidence of a child witness must be evaluated more carefully with greater circumspection because he is susceptible to tutoring. Only in case there is evidence on record to show that a child has been tutored, the Court can reject his statement partly or fully. However, an inference as to whether child has been tutored or not, can be drawn from the contents of his deposition.
In Alagupandi alias Alagupandian Vs. State of Tamil Nadu, 2012 CrLJ 3363 the Hon'ble Apex Court has held that there is no law that the evidence of child witness shall be rejected and the corroboration of the evidence of a child witness is not an absolute requirement but it is only the rule of prudence. Perusal of the record also shows that trial court in its wisdom has put some general questions to this child witness before recording his statement. The witness replied to the queries by the court and the trial court has specifically certified, that, on the child being questioned, having regard to the answers given by the child it was clear that this child witness was competent to depose before the Court.
Thus, before the evidence of child was recorded the trial court had satisfied itself about the competency of the child witness to depose before the Court.
Coming to the credibility of the victim P.W. 1 Moni she has specifically stated that when she went to the shop to bring sugar cake, before she reached the shop, she met the accused who took her to Arhar Field, put off her panty, disrobed her and committed rape. She has further stated that when accused was raping her she bleeded. This witness was cross-examined by the defence counsel. This child witness was put through a grueling cross-examination but nothing could be elicited to discard her testimony. Since perfection in this imperfect world is seldom found, it is well settled law that it is a quality and not quantity of witnesses which matters for determining the guilt or innocence of the accused.
In the present case, this victim Moni was shattered by the conduct of the accused. Inasmuch as she was student of K.G.-II The accused was belonging to the same village. He had come very close to her for committing rape. Hence, there was no occasion for incorrect identification or for false implication of the present accused after sparing the real culprit. In cross-examination this witness has stated that she was not told as to what she had to state before the court and she herself also did not ask anybody as to what she has to state before the Court. It is also being submitted that as per version of the victim, she was raising alarm when the accused was carrying her towards the field. At that point of time, Bachcha singh and his mother were at their shop but Bachcha Singh has not been produced as a witness. Perusal of the evidence of this witness shows that the shop of Bachcha Singh is situated in his own house. Since the accused belonged to the same village, there are chances that Bachcha Singh had not paid any heed and he would be attending his customers. Suggestion was put to this witness that occurrence did not take place to which she denied. Coming to the medical evidence, the radiological age of the girl is 7 years. She sustained one abrasion on the back and one abrasion on the left cheek. Besides her hymen was torn till the posterior vaginal wall and was bleeding on being touched. The counsel for the appellant has submitted that the medical report does not support the oral evidence. In her cross-examination, the doctor has stated that hymen can tear accidentally or due to fingering. We could not understand what could be the purpose of such cross-examination because virtually the vagina of the victim was torn and no suggestion of fingering was put to the victim Moni P.W.1 The doctor has specifically stated that according to the medical report the injuries sustained by the minor girl could be due to insertion of the penis in the vagina. In 1983 S.C.C. (Criminal) 379 Solanki Chimanbhai Ukabhai Vs. State of Gujarat, the Hon'le Apex Court has held that :
"Ordinarily, the value of medical evidence is only corroborative. It proves that the injuries could have been caused in the manner alleged and nothing more. the use which the defence can make of the medical evidence is to prove that the injuries could not possibly have been caused in the manner alleged and thereby discredit the eye-witnesses. Unless, however the medical evidence in its turn goes so far that it completely rules out all possibilities whatsoever of injuries taking place in the manner alleged by eye-witnesses, the testimony of the eye-witnesses cannot be thrown out on the ground of alleged inconsistency between it and the medical evidence.
In the present case medical evidence did not belie the prosecution case, rather it was in support of the prosecution case. The absence of any specific cross-examination of the medical witness with a view to establish that the first injury could never have been caused by the a spear, one would be entering into the realm of conjecture in holding that the first injury was not possible by a spear."
In (2011) 9 S.C.C. 698 Rakesh Vs. State of M.P. the Hon'ble Supreme Court has held that:
"It is a settled legal proposition that the ocular evidence would have primacy unless it is established that oral evidence is totally irreconcilable with the medical evidence. More so, the ocular testimony of a witness has a greater evidentiary value vis-a-vis medical evidence; when medical evidence makes the ocular testimony improbable, that becomes a relevant factor in the process of the evaluation of evidence. However, where the medical evidence goes so far that it completely rules out all possibility of the ocular evidence if proved, the ocular evidence may be disbelieved.
When the medical evidence is in consonance with the principal part no question of ruling out the ocular evidence merely on the ground there are some inconsistencies or contradictions in the oral evidence. We are not inclined to agree with Shri Dholakia on this count.
The medical and the ocular evidence are not inconsistent, but infact the medical and the ocular evidence are inconsonance and in corroboration of each other. As far as the absence of semen is concerned the prosecution failed to accept the Pathological Report. The report of Serologist is also on record, which though not accepted by the Trial Court. But a question was put to the accused in the statement under Section 313 Cr.P.C., which reveals that semen and human blood was found on the panty of the victim. There is every possibility that the accused might have wiped his penis, stained with semen and blood, with the panty of the victim, which was readily available to the accused on the spot.
Thus, we conclude that the ocular evidence, medical evidence and serological report are supporting each other.
(iii) Charges under Section 3(2)(v) of S.C./S.T. Act has not been proved by the prosecution.
Shri Anurag Singh Chauhan, learned Amicus Curaie has submitted before the Court that the prosecution has miserably failed to prove the case for Charges under Section 3(2)(v) of S.C./S.T. Act and the learned lower court has convicted and sentenced the accused under Section 3(2)(v) of S.C./S.T. without any evidence against the evidence on record. Section 3(2)(v) of S.C./S.T. Act reads as follows :-
(2) Whoever, not being a member of Scheduled Caste or Scheduled Tribe.
(v) commits any offence under the Indian Penal Code (45 of 1860) punishable with imprisonment for a term of ten years or more against a person or property on the ground that such person is a member of a Scheduled Caste or a Scheduled Tribe or such property belongs to such member, shall be punishable with imprisonment for life and with fine;
According to the provision of the aforesaid section the accused can be punished under this Act only when it is proved on record that he committed the offence of rape on the ground that the victim was a member of Scheduled Caste or Scheduled Tribe. No doubt it has come in the evidence of the informant P.W. 2 Ram Gulam that he belongs to the Pasi Caste, whereas the accused is Thakur by Caste, but in the complete prosecution evidence, there is not even a whisper to the effect that the accused committed rape of the victim on the ground that she was a Pasi. In the absence of any such evidence on record, we think that the learned trial court misconstrued the provision of Section 3(2)(v) of S.C./S.T. Act and convicted and sentenced him without any evidence, as such we find that the conviction and sentence under Section 3(2)(v) of S.C./S.T. is not based on any evidence and is liable to be set aside.
(iv) The alleged recovery of panty of the victim is false, the accused was not arrested by the I.O. as alleged by him, thus the investigation is defective The counsel for the informant has laid much stress on the statement of Ganesh P.W. 5 and Ram Gulam P.W. 2 on the ground that some evidence is forthcoming from the side of the prosecution that after occurrence the accused was caught by the villagers and taken to the house of the victim and tied to a neem tree. Some exaggeration or improvements in the statements of two witnesses cannot be denied but these minor contradictions will not come to the rescue of the accused.
P.W. 1 victim Moni was not cross-examined on the point whether the accused was brought to her house or not. P.W. 2 Ram Gulam was also not questioned on this point. P.W. 5 Ganesh was cross-examined on this point who initially said that they apprehended the accused on the spot, but later has said that the accused could not be apprehended on the spot, but later the villagers brought him to the house of the victim and the accused was tied to the neem tree. P.W. 6 Atul Kumar Srivastava, C.O. has said that only S.S.I. Bhaskar Mishra who could tell from where the accused was arrested. No other question was put to the I.O. regarding the place of arrest of the accused.
Another objection has been raised by the counsel for the appellant regarding the manner of recovery of the panty of the victim. It has been submitted that there is no one's case from the prosecution side that the victim was wearing panty or she was made to wear the panty after the occurrence. But her panty was taken off from her body. Hence there are no chances of the panty being stained by blood or semen. It would be proper to point out that according to Ext. Ka-2 recovery memo, the Investigating Officer has said to have recovered panty but from where this panty was recovered is wanting in the recovery memo. The prosecution witness have stated that the panty of the victim was brought by a boy. Keeping in view of the evidence, surrounding circumstances and the fact that prosecution witness have stated that the accused was naked when he was seen. The possibility of the accused wiping semen and blood stains on his penis by the panty of the girl, cannot be ruled out.
It has been submitted on behalf of the applicant that the alleged recovery of panty of the victim and that accused was not arrested on the basis of information received from the informer by the I.O. as alleged by him. Thus, the whole investigation is tainted and defective, which strikes at the root of the prosecution, due to which the prosecution case falls like heap of cards.
P.W. 1 victim Moni was not cross-examined on the point that where the panty was left and whether it was left or not. P.W. 2 Ram Gulam the informant has said that the panty of the victim was blood stained. P.W. 2 was not cross-examined on this point. P.W. 5 Ganesh-eye witness has stated that the panty of the victim was blood stained. In cross-examination he has stated that the panty of the victim was left on the spot, which was brought afterwards by one boy. Exhibit Ka-2 is memo of seizure of the panty. In this memo, the place from where the panty was recovered is wanting, but it is well settled law that the short-comings of the I.O. will not affect the prosecution case. It may be possible that the I.O. just to show his good work could have committed this error. Attacking on the investigation of the case, learned counsel for the appellant has also submitted that the prosecution story as regard the sugar cake (Batasha) and mustar seeds has no legs to stand inasmuch as in the F.I.R. nothing has been mentioned about the mustar seeds and whereabouts of the sugar cake. P.W. 1, victim Moni has stated that her mother had given her mustar seeds to exchange them and bring sugar cake. She was carrying the mustar seeds in a cloth. The mustered seeds fell in the fields and the cloth was also left there. P.W. 5 Ganesh has stated in his cross-examination that sugar cake rapped in cloth were found on the spot, but later he said that no sugar cake were found on the spot, but the mustar was about 375 gms. (one and half paav), which was given to the family members of the victim. This witness has also stated that C.O. visited the spot on the next day. I.O. Atul Kumar Srivastava, P.W. 6 has stated that he visited the spot on the other day on the next day of the occurrence, but he did not find any sugar cake, mustard seeds or cloth from the place of the occurrence. I do not think the I.O. could have found anything on the next day because the overall evidence adduced on behalf of the prosecution goes to show that the family members of the victim were poor inasmuch as for purchase of sugar cake for Ashtami they have to give mustered seeds for exchange. Hence, I do not think that the villagers could have left mustar seeds or any cloth on the spot. Even otherwise, these are the minor variations which could vary on the observations of the witness as these minor things would go unnoticed in such heinous case of rape with the minor girl.
As far as defective investigation is concerned with regard to the recovery of the panty of the victim and the arrest of the accused, there are some minor contradictions. But can the short comings of the I.O. travel above the other oral evidence. In this case if the other evidence on scrutiny is found credible and acceptable, should the Court be influenced by the machinations demonstrated by the Investigating Officer in conducting the investigation or in preparing the records so unscrupulously. It can be a guiding principle during that as investigation is not the solitary area in judicial scrutiny in a criminal trial, the conclusion of the Court in the case cannot be allowed to depend solely on the probity of investigation.
It is well settled that even if the investigation is illegal or suspicious the rest of the evidence must be scrutinized independently of the impact of it, otherwise, criminal trial will plummet to the level of the Investigating Officer ruling the roost. The Court must have predominance and preeminence in criminal trials over the action taken by the Investigating Officers. Criminal Justice should not be made the casualty for wrongs committed by the Investigating Officer in the case. In other words, if the court is convinced with the testimony of a witness to the occurrence is true, the court is free to act on it albeit Investigating Officer's suspicious roll in the case. Thus, the shortcomings of the I.O. are not such which would shelter the prosecution case.
(v) The accused is in jail since more than 10 years, hence he should be released on the sentence already undergone It has further been argued on behalf of the appellant that he is in jail since more than 10 years, hence while taking lenient view in the matter the Court should release him on the sentence already undergone. Awarding and deciding, just not appropriate sentence for an offence has been laid down by the Hon'ble Apex Court in AIR 2005 S.C. 1250 Page 1280 State of U.P. Vs. Kishan in which it has been laid down :-
The logic behind the sentence in a criminal trial has been highlighted by this Court in State of M.P. vs. Ghanashyam Singh (2003(8) SCC 13) Undue sympathy to impose inadequate sentence would do more harm to the justice system to undermine the public confidence in the efficacy of law and society could not long endure under such serious threats. It is, therefore, the duty of every Court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed etc. This position was illuminatingly stated by this Court in Sevaka Perumal etc vs. State of Tamil Nadu (AIR 1991 SC 1463).
After giving due consideration to the facts and circumstances of each case, for deciding just and appropriate sentence to be awarded for an offence, the aggravating and mitigating factors and circumstances in which a crime has been committed are to be delicately balanced on the basis of really relevant circumstances in a dispassionate manner by the Court. Such act of balancing is indeed a difficult task. It has been very aptly indicated in Dennis Councle MCG Dautha vs. State of California, 402 US 183 : 28 LD 2d 711, that no formula of a foolproof nature is possible that would provide a reasonable criterion in determining a just and appropriate punishment in the infinite variety of circumstances that may affect the gravity of the crime. In the absence of any foolproof formula which may provide any basis for reasonable criteria to correctly assess various circumstances germane to the consideration of gravity of crime, the discretionary judgement in the facts of each case, is the only way in which such judgement may be equitably distinguished.
The object should be to protect the society and to deter the criminal in achieving the avowed object of law by imposing appropriate sentence. It is expected that the Courts would operate the sentencing system so as to impose such sentence which reflects the conscience of the society and the sentencing process has to be stern where it should be.
Imposition of sentence without considering its effect on the social order in many cases may be in reality a futile exercise. The social impact of the crime , e.g. where it relates to offences against women, dacoity, kidnapping, misappropriation of public money, treason and other offences involving moral turpitude or moral delinquency which have great impact on social order, and public interest, cannot be lost sight of an per se require exemplary treatment. Any liberal attitude by imposing meager sentences of taking too sympathetic view merely on account of lapse of time in respect of such offence will be result-wise counter productive in the long run and against societal interest which needs to be cared for and strengthened by string of deterrence inbuilt in the sentencing system.
The Court will be failing in its duty if appropriate punishment is not awarded for a crime which has been committed not only against the individual victim but also against the society to which the criminal and victim belong. The punishment to be awarded for a crime must not be irrelevant but it should confirm to and be consistent with the atrocity and brutality with which the crime has been perpetrated, the enormity of the crime warranting public abhorrence and it should "respond to the society's cry for justice against the criminal."
13. Imposition of proper sentence is a cry of the society. The Court have not to rule justice with the accused persons, but have to be just even to victim and the family members of the deceased persons. An offence like rape is an offence which ruin the life of a female and leaves an imprint on her mind about the troma, she has suffered during the commission of offence of rape. A very bruelsome justification have been put.
14. The accused has also stated in his statement under Section 313 Cr.P.C. that the whole case has been fabricated to get Government Aid. No doubt moral values have considerably gone down now-a-days, but it does not prick the conscious of the Court that a six years old female child will be used just to procure Rs. 25,000/- and for this purpose either false injuries will be made or the real culprits will be spared and an innocent person will be falsely implicated. Although the statement of the accused recorded under Section 313 Cr.P.C. does not bear his age, but for this purpose we are not hesitant to go through a document on record, which is copy of arrest general diary of the accused relating to 30.3.2004 at 1725 hrs. Perusal of this paper shows that the accused had sustained some injuries and his age was about 45 years. If, this paper is taken on its face value even then the present age of the accused will come to about 56 years. The learned lower court in all its wisdom has sentenced the accused to undergo imprisonment for life.
15. The appeal is partly allowed. The accused appellant is acquitted for the charges under Section 3(2)(v) of S.C./S.T. Act and the sentence thereby is set aside. The conviction and sentence of the accused in all other sections is upheld.
16. The accused is in jail.
17. He shall get the benefit of Section 428 Cr.P.C.
18. We appreciate assistance given by Sri Anurag Singh Chauhan, Advocate appointed as Amicus Curiae in this appeal, who shall be paid a sum of Rs.15000/- by the Registry of this Court from appropriate Legal Aid Head. The Senior Registrar of this Court shall ensure the payment to the Amicus Curiae as per Rules at the earliest.
19. Let certified copy of the Judgment be sent to the trial court for ensuring compliance which should be reported to the court within four weeks. Court should take all steps for execution of the sentence.
Order date:-15.9.2015 Anurag/Ram Murti