Syam vs State Of Kerala
2022 Latest Caselaw 2093 Ker

          IN THE HIGH COURT OF KERALA AT ERNAKULAM
                          PRESENT
        THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH
THURSDAY, THE 24TH DAY OF FEBRUARY 2022 / 5TH PHALGUNA, 1943
                   CRL.A NO. 129 OF 2018
      CRIME NO.516/2009 OF Sreekaryam Police Station,
                     Thiruvananthapuram
AGAINST THE JUDGMENT IN SC 1231/2010 OF ADDITIONAL SESSIONS
  COURT FOR THE TRIAL OF CASES RELATING TO ATROCITIES AND
        SEXUAL VIOLENCE AGAINST WOMEN AND CHILDREN,
                     THIRUVANANTHAPURAM
      CP 13/2010 OF JUDICIAL MAGISTRATE OF FIRST CLASS
                   -I,THIRUVANANTHAPURAM
APPELLANT/2ND ACCUSED:

         SYAM
         S/O.KAMALASANAN, SYAM NIVAS,NEAR KATTELA AMBEDKAL
         SCHOOL,CHERUVAIKKAL VILLAGE

         BY ADV SRI.M.SREEKUMAR


RESPONDENT/COMPLAINANT:

         STATE OF KERALA
         REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF
         KERALA, ERNAKULAM 682031

         BY ADVS.
         SMT.SHEEBA THOMAS, PP

     THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON
18.02.2022,   ALONG  WITH   CRL.A.169/2018, THE COURT  ON
24.02.2022 DELIVERED THE FOLLOWING:
 Crl.Appeal Nos.129 & 169/2018

                                -:2:-

           IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                PRESENT
         THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH
THURSDAY, THE 24TH DAY OF FEBRUARY 2022 / 5TH PHALGUNA, 1943
                      CRL.A NO. 169 OF 2018
       CRIME NO.516/2009 OF Sreekaryam Police Station,
                       Thiruvananthapuram
AGAINST THE JUDGMENT IN SC 1231/2010 OF ADDITIONAL SESSIONS COURT
FOR THE TRIAL OF CASES RELATING TO ATROCITIES AND SEXUAL VIOLENCE
         AGAINST WOMEN AND CHILDREN, THIRUVANANTHAPURAM
         CP 13/2010 OF JUDICIAL MAGISTRATE OF FIRST CLASS
                       -I,THIRUVANANTHAPURAM
APPELLANT/1ST ACCUSED:

           BABUMON
           AGED 45 YEARS
           S/O. RAJAPPAN,ANANDU BHAVAN, NEAR
           THALIVILA,EDATHARA TEMPLE, MARANALLOOR,KULATHUMMAL
           VILLAGE, NOW RESIDING AT B.S.BHAVAN,NEAR KATTALA
           UPPACHI CSI CHURCH, CHERUVAIKAL VILLAGE.

          BY ADVS.SRI.R.SUNIL KUMAR
          SMT.A.SALINI LAL


RESPONDENT/ACCUSED:

           STATE OF KERALA
           REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF
           KERALA, ERANKULAM.

           SMT.SHEEBA THOMAS, PP

     THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON
18.02.2022, ALONG WITH CRL.A.129/2018, THE COURT ON
24.02.2022 DELIVERED THE FOLLOWING:
 Crl.Appeal Nos.129 & 169/2018

                                -:3:-




                        J U D G M E N T

Dated this the 24th day of February, 2022

These appeals have been preferred by the accused in SC

No.1231/2010 on the file of the Additional Sessions Court For The

Trial of Cases Relating to Atrocities and Sexual Violence against

Women and Children, Thiruvananthapuram (for short, 'the Court

below') challenging the judgment of conviction and sentence

dated 10/1/2018.

2. The accused (two in numbers) faced trial for the

offences punishable under Ss. 376(f) and 377 r/w S.34 of IPC.

3. The victim was a minor girl aged 8 years, studying in

3rd standard, at the time of the occurrence. The accused are her

neighbours. The prosecution case in short is that the accused

Nos.1 and 2 in furtherance of their common intention to satisfy

their lust, enticed the victim and the accused No.1 took her to his

house and committed rape as well as carnal intercourse against

the order of nature on her many days during the month of

September, 2009 and the accused No.2 took her to his house Crl.Appeal Nos.129 & 169/2018

and had carnal intercourse against the order of nature on her

many days during the month of September, 2009.

4. The crime was registered on the basis of Ext.P1 FI

statement given by PW2, the mother of the victim on 23/11/2009

to PW5, the SI of Police, Sreekaryam Police Station. According to

her, one month prior to the said date, the victim complained her

of stomach pain and on further questioning she disclosed that the

accused Nos.1 and 2 committed rape and carnal intercourse on

her many times during September, 2009. PW5 conducted initial

part of the investigation. PW7, the Circle Inspector of Police,

Thiruvananthapuram city, took up the investigation from PW5 on

28/11/2009, questioned the witnesses, completed the

investigation and filed charge sheet before the learned

Magistrate. After completing the statutory formalities, the

learned Magistrate committed the case to stand trial before the

Court of Sessions.

5. Both the accused appeared at the Court below. After

hearing both sides, the Court below framed charge against the

accused u/ss. 376(f) and 377 r/w 34 of IPC. The charge was read

over and explained to the accused who pleaded not guilty. Crl.Appeal Nos.129 & 169/2018

6. The prosecution examined PWs 1 to 9 and marked

Exts.P1 to P12. On the side of the defence DW1 was examined

and Ext.D1 was marked.

7. Considering the evidence on record, the Court below

found the accused No.1 guilty for the offence punishable u/ss.

376(1) and 377 of IPC and the accused No.2 guilty for the offence

punishable u/s 354 of IPC. The accused No.1 was sentenced to

undergo rigorous imprisonment for ten years and to pay a fine of

`1,00,000/-, in default to suffer rigorous imprisonment for two

years for the offence punishable u/s 376(1) of IPC and further

sentenced to undergo rigorous imprisonment for 7 years and to

pay a fine of `50,000/-, in default to suffer rigorous imprisonment

for one year for the offence u/s 377 of IPC. The accused No.2 was

sentenced to undergo simple imprisonment for three years and to

pay a fine of `25,000/- for the offence punishable u/s 354 of IPC,

in default to suffer simple imprisonment for six months.

Aggrieved by the said conviction and sentence, the accused No.1

preferred Crl.Appeal No. 169/2018 and the accused No.2

preferred Crl.Appeal No.129/2018. Since both the appeals are

connected, I am disposing of them together.

Crl.Appeal Nos.129 & 169/2018

8. I have heard Sri.R.Sunil Kumar, the learned counsel

appearing for the accused No.1, Sri.M.Sreekumar, the learned

counsel appearing for the accused No.2 and Smt.Sheeba Thomas,

the learned Public Prosecutor.

9. The learned counsel for the appellants impeached the

findings of the Court below on appreciation of evidence and

resultant finding as to the guilt. The learned counsel for the

accused No.1, Sri.R.Sunil Kumar, submitted that even if the

prosecution case is believed in its entirety, still on the basis of the

materials brought on record by the prosecution, offence u/s 376

of IPC is not made out against the accused No.1. The counsel

further submitted that the conviction is based on the

uncorroborated testimony of the child witness which suffers from

contradictions and omissions. The counsel also submitted that

there is unexplained delay of about two months in lodging the

FIR, the benefit of which should go to the accused. The accused

No.1 had also taken the plea of alibi. The learned counsel for the

accused No.2, Sri.M.Sreekumar, submitted that there is no

satisfactory legal evidence against accused No.2 to attract the

offence u/s 354 of IPC. He also submitted that the accused No.2 Crl.Appeal Nos.129 & 169/2018

was put to much prejudice due to misjoinder of charges. Per

contra, the learned Public Prosecutor, Smt.Sheeba Thomas,

supported the findings and verdict handed down by the courts

below and argued that necessary ingredients of Ss.376 of IPC and

377 of IPC had been established against the accused No.1 and

necessary ingredients of S.354 of IPC had been established

against the accused No.2 and the prosecution has succeeded in

proving the case beyond reasonable doubt.

10. The prosecution mainly relied on the evidence of

PWs1, 2, 4, 6, 8 and 9 to prove the incident and to fix the

culpability on the accused. PW1 is the victim. PW2 is the mother

of the victim who gave Ext.P1 FI statement. PW4 is the Doctor

who examined the victim and gave Ext.P3 wound certificate. PW6

is the Doctor who examined the accused No.1 and issued Ext.P7

potency certificate. PW8 is the Doctor who examined the accused

No.2 and issued Ext.P11 potency certificate. PW9 is the

Headmistress of Sreekaryam Government High School where the

victim studied. Ext.P12 certified copy of the relevant page of the

school admission register showing the age of the victim was

marked through her.

Crl.Appeal Nos.129 & 169/2018

11. PW1, the victim, deposed that in the month of

September, 2009 while she was studying in 3 rd standard, at

G.H.S.S., Sreekaryam, the accused No.1 took her to his house,

gave sweets, disrobed her and thereafter inserted his fingers into

her vagina. She further deposed that the accused No.1 then

penetrated his penis into her vagina. She added that blood came

out of her vagina. She also deposed that he inserted his penis

into her mouth and then she vomited. According to her, the

accused No.1 did the act on many days during the month of

September at this house. As against the accused No.2, she

deposed that on a day in the month of September, 2009, she

went to the house of the accused No.2 for watching TV and then

he showed obscene videos to her and asked her to do the act

what she had seen in the video. She further deposed that he

pressed on her vagina with hands and bit there. She also

deposed that when she developed stomach pain, she disclosed

these matters to her mother and she was taken to the Medical

College Hospital, Thiruvananthapuram where she revealed these

matters to the Doctor. She further deposed that she has stated

these to the police as well. PW1 also stated in her evidence that Crl.Appeal Nos.129 & 169/2018

the accused No.1 had threatened her that she would kill her and

her mother if she disclosed these matters to anybody and due to

fear, she did not reveal the same to anyone immediately after the

incident.

12. PW2 gave evidence that in the month of September,

2009, her daughter complained of stomach pain and on

questioning her, she disclosed that both the accused had sexually

assaulted her. She further deposed that thereafter she took PW1

to SAT Medical College Hospital where she was examined by the

Doctor, PW4. She also stated that PW1 revealed everything to

the Doctor as well. The statement given by her to the police was

marked through her as Ext.P1.

13. PW4 is the Senior Lecturer in Gynecology, Medical

College Hospital, Thiruvananthapuram. She deposed that on

23/11/2009, at 5 p.m, she examined the victim girl and issued

Ext.P3 certificate. According to her, she came with the alleged

history that two neighbours namely Babu and Syam abused her

sexually continuously since few months. The victim gave history

of fingering the vagina and putting penis into her mouth. She also

deposed that on examination no external injuries could be noted, Crl.Appeal Nos.129 & 169/2018

but hymen showed old tear. According to her, the same could be

caused as alleged by the victim.

14. I have perused the evidence of PW1 meticulously.

Even though she was cross-examined at length by the learned

counsel for the accused, nothing tangible could be extracted from

her cross-examination to create any shadow of doubt that she is

not a truthful witness. She clearly deposed the manner in which

both the accused assaulted her sexually. She gave reliable,

consistent and credible version of the crime and her evidence

inspires confidence. In the chief examination PW1 clearly

deposed that the accused No.1 penetrated his penis into her

vagina (അയ ളട മത ഒഴ കന സ ധന എട മത ഒഴ കന സ ധനത ൽ

കയറ ). She has also specifically deposed that accused No.2

pressed his hand on her vagina and bit on the vagina ( ശ ഞൻ

മത ഒഴ കന ഭ ഗത കക വച# അമർത . ശ എട മത ഒഴ കന ഭ ഗത ക ച).

It is pertinent to note that these specific evidence given by PW1

was not touched in cross-examination by the learned counsel for

the defence. Thus, her evidence on this aspect remains

unchallenged.

Crl.Appeal Nos.129 & 169/2018

15. It is settled that the evidence of a victim of a sexual

offence is entitled to great weight, absence of corroboration

notwithstanding. It is equally settled that the statement of a

child witness should be scrutinized with great care and caution.

At the same time, it must be taken note of that the children by

their inherent nature are honest. Corroboration of the testimony

of the child witness is not a rule but a measure of caution and

prudence is a well accepted principle (See Hari Om v. State of

Uttar Pradesh (2021) 4 SCC 345). There is absolutely no ground

for doubting the veracity of the child witness, PW1.

16. The learned Counsel for the accused No.1 submitted

that the conviction was based on the solitary evidence of the

victim and no independent witness was examined. It was argued

that, as per the prosecution version, the victim was enticed by

the accused and she was taken to her house many a time during

September 2009, but not a single witness was cited to prove the

said fact. The Apex Court in Krishan Lal v. State of Haryana

(AIR 1980 SC 1252) held that to seek substantial corroboration of

the victim's evidence in a rape case is to sacrifice common sense.

In Rafiq v. State of U.P. (AIR 1981 SC 559), the Apex Court Crl.Appeal Nos.129 & 169/2018

observed that "hardly a sensitized Judge who sees the

conspectus of circumstances in its totality rejects the testimony

of a rape victim unless there are very strong circumstances

militating against its veracity". In State of Himachal Pradesh

v. Asha Ram (AIR 2006 SC 381), it was held that it is well within

the limits to rest a conviction based on the solitary testimony of

the victim, whose evidence is more reliable than that of the

injured witness. In State of Punjab v. Gurmit Singh [(1996) 2

SCC 384], the Apex Court took the view that in cases involving

sexual molestation, even discrepancies in the statement of the

prosecutrix should not, unless the discrepancies are of fatal

nature, be allowed to throw out an otherwise reliable prosecution

case. It was further held that the courts cannot cling to a fossil

formula and insist upon corroboration even if, taken as a whole,

the case spoken by the victim of sex crime strikes the judicial

mind as probable. As per the evidence of PW1, the rape and

sexual assault was taken place at the house of the accused

Nos.1 and 2 when no body was at their home. Thus, there cannot

be any independent witness. The evidence of the victim is found

to be genuine, credible and reliable. It can safely be relied on to Crl.Appeal Nos.129 & 169/2018

prove the incident and to fix culpability on the accused.

17. The evidence of PW1 gets corroboration from the

evidence of PW2 and PW4. PW2's evidence would show that after

a month of the incident, PW1 complained her of stomach pain

and when questioned, she disclosed the sexual assault made on

her by the accused one month ago, and one month thereafter,

she took PW1 to PW4 and also lodged Ext.P1 FIS to the police.

This evidence of PW2 gets corroboration from the evidence of

PW4 and the evidence of PW5, the Sub Inspector of Police, who

recorded Ext.P1 FI statement. PW4 deposed that PW1 was

brought to her by PW2 on 23/11/2009, she examined her and

issued Ext.P3 wound certificate. She specifically deposed that

the victim came with history that two neighbours viz. Babu and

Syam abused her sexually continuously since few months. She

further deposed that the victim told her that the accused put

fingers into her vagina and also put penis into her mouth. It has

been stated in Ext.P3 as well. PW4 on examination of PW1

noticed old tear on her hymen. The learned counsel for the

accused vehemently argued that the victim did not disclose to

the Doctor about penetrative sex. It is true that the victim Crl.Appeal Nos.129 & 169/2018

disclosed about only fingering and oral sex by the accused. But,

the failure on the part of the victim, who was only aged 8 years,

to mention about the penetrative sex committed by the accused

No.1 is not a ground to disbelieve her testimony if it is otherwise

convincing and reliable.

18. The learned counsel for the appellants vehemently

argued that there is undue delay in reporting the matter to the

police and lodging the FIR. The FIR was registered on 23/11/2009

on the basis of Ext.P1 FI statement given by PW2. True, she gave

evidence that PW1 told her about the incident one month prior to

the registration of the FIR. As per the version of the victim, the

alleged incident was one month prior to her disclosure of the

matter to PW2. According to the counsel, the prosecution failed to

explain this delay. The learned counsel further submitted that

there was long standing family feud between the family of the

victim and the family of the accused No.1 and the delay has to be

viewed in this background.

19. It is settled that the delay becomes fatal only in a case

where there is absence of explanation and there is doubt as to

the genesis or genuineness of the prosecution case. The delay in Crl.Appeal Nos.129 & 169/2018

sexual offence has to be viewed differently. The delay in a case

of sexual assault cannot be equated with delay in a case

involving other offences since several factors weigh in the mind

of the victim and members of her family. In a tradition bound

society like ours, particularly in rural areas, it would be quite

unsafe to throw out the prosecution case merely on the ground

that there was delay in lodging the FIR. (State of Himachal

Pradesh v. Prem Singh AIR 2009 SC 1010). It is true that the

victim did not state about the alleged sexual assault committed

by the accused to her mother immediately after the incident.

PW1 deposed that the accused No.1 had threatened her that she

and her mother would be killed if she disclosed about the sexual

assault to anybody. According to her, she was frightened due to

the threat of the accused No.1. It has come out in evidence that

after the alleged incident, the victim had complaints of stomach

pain and only when her mother enquired with her about the

reason for stomach pain, she was compelled to disclose about the

sexual assault committed by the accused No.1. Hence, there is

satisfactory explanation for the delay in disclosing the incident by

the victim to her mother. The delay, if any, on the part of PW2 in Crl.Appeal Nos.129 & 169/2018

making complaint to the police is insignificant inasmuch as there

was no deliberate delay on the part of the victim in making

complaint to her mother. The Court below on analysis of the

evidence of PW2 has come to the conclusion that the delay on

the part of her in lodging the FIR is not at all fatal to the

prosecution case. I don't find any reason to take a different view.

That apart, there is nothing to doubt about the genesis or

genuineness of the prosecution case on account of the alleged

delay.

20. According to the accused No.1, there was property

dispute between the family of his wife and the family of the

victim and due to that enmity, he was falsely implicated. He has

also taken a plea of alibi contending that from August 2009 till

October 2009, he was at Ernakulam and Alappuzha in connection

with the meeting of Motor Vehicle Inspectors' Association of which

he was the Secretary. To substantiate the said defence plea, the

wife of the accused No.1 was examined as DW1. She deposed

that mother of the victim is her relative and there was some civil

dispute between her family and the family of the victim and due

to the said dispute, they were in inimical terms for the last ten to Crl.Appeal Nos.129 & 169/2018

fifteen years. She deposed that several complaints were given in

this regard to the police. But no such documents had been

produced. In order to substantiate the plea of alibi, nobody was

examined to prove that the accused No.1 was at Ernakulam and

Alappuzha during the relevant period in connection with the

meeting of Motor Vehicle Inspectors' Association. DW1, being the

wife of accused No.1, is no doubt an interested witness. The

accused No.2 has absolutely no case that there was any

animosity towards him by the victim or her family members to

falsely implicate him in the case along with accused No.1. That

apart, it is quite improbable to believe that on account of some

civil dispute between two families, a mother would make a false

allegation of rape on her daughter. The Apex Court in Gurmit

Singh (supra) has held that the courts must, while evaluating

evidence, remain alive to the fact that in a case of rape, no self-

respecting woman would come forward in a Court just to make a

humiliating statement against her honour such as she is involved

in the commission of rape on her. In Rajinder v. State of

Himachal Pradesh [(2009) 16 SCC 69], the Apex Court held that

in the context of Indian culture, a woman, a victim of sexual Crl.Appeal Nos.129 & 169/2018

aggression, would rather suffer silently than to falsely implicate

somebody. Any statement of rape is extremely humiliating

experience for a woman and until she is a victim of sex crime,

she would not blame anyone, but the real culprit. Thus, the

argument of the learned counsel for the appellants that they

were falsely implicated due to family feud must fail.

21. Lastly, the learned counsel for the accused No.2

vehemently argued that great prejudice has been caused to the

accused No.2 on account of the misjoinder of charges. The charge

was u/ss. 376 and 377 r/w 34 of IPC. The Court below found that

the common intention was not proved. According to the learned

counsel for the accused No.2, the allegation against both the

accused is distinct and different and, thus, there is misjoinder of

charge. The learned counsel submitted that neither S.376 nor

S.377 was proved against accused No.2 and if he had been tried

separately, the finding u/s 354 also would have been in his

favour.

22. S.464 of Cr.P.C deals with omission to frame, or

absence of, or error in, charge. It provides that no finding

sentence or order by a Court of competent jurisdiction shall be Crl.Appeal Nos.129 & 169/2018

deemed invalid merely on the ground that no charge was framed

or on the ground of any error, omission or irregularity in the

charge including any misjoinder of charges, unless, in the opinion

of the Court of appeal, confirmation or revision, a failure of justice

has in fact been occasioned thereby. The charge framed by the

Court below contained specific allegations against both the

accused separately and evidence was also let in on the basis of

materials relied on by them at the Court. However, the Court

below on appreciation of evidence found that prosecution failed

to prove common intention. No complaint was made by the

accused either at the time of framing charge or during trial

regarding misjoinder of charge. Considering the entire facts and

circumstances, I am of the view that no failure of justice has been

occasioned due to the misjoinder of charges.

23. As stated already, PW1 clearly testified that the

accused No.1 disrobed her and inserted his penis into her vagina.

In fact, there was no cross-examination on that point. The

evidence of PW6 Doctor coupled with Ext.P7 potency certificate

would show that accused No.1 was capable to perform sexual act.

On examination of the victim, PW4 noted that her hymen showed Crl.Appeal Nos.129 & 169/2018

old tear. She opined that this injury could be caused due to the

alleged history of sexual assault. The evidence of PWs1, 2 & 9

and Ext.P12, the certified copy of the relevant page of school

admission register, would prove that the victim was aged only 8

years at the time of the alleged offence. According to S.375 of IPC

(prior to amendment in 2013), the offence of rape is the

commission of a penetrative sexual intercourse upon a woman by

a man under circumstances falling under any of the six

descriptions specified therein. Clause (vi) of S.376 provides that

when the victim was under the age of sixteen, sexual intercourse

with her is rape whether it was with or without her consent. In

other words, the consent has no application if the victim is under

the age of 16 years. The Apex Court by referring to offence of

'rape' in Sakshi v. Union of India and Others (AIR 2004 SC

3566) held that 'sexual intercourse' is heterosexual intercourse

involving penetration of the vagina by the penis. Needless to say,

even the slightest penile vaginal entry will amount to sexual

intercourse. The Apex Court in various decisions have made it

clear that the 'penile accessing' would be sufficient to constitute

'penetration ' in the sexual intercourse which is necessary for the Crl.Appeal Nos.129 & 169/2018

offence of 'rape', which occurs, even in the absence of actual

entry of the male organ through vagina or rupture of hymen

[Ranjith v. State of Kerala 2022 (1) KLT 19]. The evidence of

PW1 would clearly show that the accused No.1 had inserted his

penis into her vagina. Hence offence u/s 376 of IPC is clearly

attracted. As in the case of rape, in an unnatural offence also,

even the slightest degree of penetration is enough. PW1 also

deposed that the accused No.1 had inserted his penis into her

mouth on many days. Thus, the offence u/s 377 of IPC also is

clearly attracted. As stated already, PW1 clearly deposed that on

a day in the month of September, 2009, the accused No.2 had

pressed on her vagina and bit there. The said evidence is

sufficient to attract S.354 of IPC. Hence, I am of the view that the

Court below was absolutely justified in convicting the accused

No.1 u/ss. 376 and 377 of IPC and the accused No.2 u/s 354 of

IPC.

24. What remains is the sentence. The Court below

sentenced the accused No.1 to undergo rigorous imprisonment

for ten years and to pay a fine of `1,00,000/-, in default to suffer

rigorous imprisonment for two years for the offence punishable Crl.Appeal Nos.129 & 169/2018

u/s 376(1) of IPC and to undergo rigorous imprisonment for seven

years and to pay a fine of `50,000/-, in default to suffer rigorous

imprisonment for one year for the offence punishable u/s 377 of

IPC and sentenced the accused No.2 to undergo simple

imprisonment for three years and to pay a fine of `25,000/-, in

default to suffer simple imprisonment for six moths for the

offence u/s 354 of IPC. Both counsel submitted that the sentence

is excessive.

25. In State of M.P. v. Babulal [(2008) 1 SCC 234], the

Apex Court held that once a person is convicted for the offence of

rape, he should be treated with heavy hands and an undeserved

indulgence or liberal attitude in not awarding adequate sentence

would encourage potential criminals. In Dhananjoy Chatterjee

v. State of West Bengal [(1994) 2 SCC 220], the Apex Court

held that the Court must not only keep in view the rights of the

criminal, but also the rights of the victim of crime and the society

at large while considering imposition of appropriate punishment.

In the instant case, an 8 year old girl was brutally raped, ravished

and sexually assaulted by the accused. I find no mitigating

circumstances to interfere with the punishment imposed by the Crl.Appeal Nos.129 & 169/2018

Court below on the accused No.1. In so far as accused No.2 is

concerned, the maximum punishment prescribed as per the law

prevailing at the time of commission of the offence for the

offence punishable u/s 354 of IPC was two years. Hence, the

substantive sentence imposed on the accused No.2 has to be

reduced to two years.

In the result,

(i) Crl.Appeal No.169/2018 stands dismissed confirming

the conviction and sentence of the Court below.

(ii) Crl.Appeal No.129/2018 stands allowed in part. The

conviction passed by the Court below is confirmed. The

substantive sentence is reduced to simple imprisonment for two

years with no change in fine and default sentence.

Sd/-

DR. KAUSER EDAPPAGATH JUDGE Rp