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Reserved/AFR

Court No. - 46

Case :- CRIMINAL APPEAL No. - 4395 of 2009

Appellant :- Kalua

Respondent :- State of U.P.

Counsel for Appellant :- R.K. Verma, Anwar Mehdi Zaidi,

Braham Singh, Chandra Pal Singh, Irshad Ahmad, Manish

Kr. Pandey, Susheel Kumar Tiwari

Counsel for Respondent :- Govt. Advocate

Connected with

Case :- CRIMINAL APPEAL No. - 5145 of 2009

Appellant :- Mahmooda @ Vakeel

Respondent :- State of U.P.

Counsel for Appellant :- Dinesh Raghav, Amit Kumar

Srivastava, Braham Singh, Manish Kumar Pandey

Counsel for Respondent :- Govt. Advocate

Hon'ble Naheed Ara Moonis,J.

Hon'ble Anil Kumar IX,J

(Delivered by Hon'ble Naheed Ara Moonis, J )

After being convicted and sentenced in Session

Trial No. 782 of 2007, arising out of case crime No.

278 of 2007, under Sections 376, 452,506 of Indian

Penal Code and Section 3(1)(xii) of Scheduled Castes

and Scheduled Tribes (Prevention of Atrocities ) Act,

(hereinafter referred to as the “SC and ST Act”),

Police Station Dilari, district Moradabad by the learned

Additional Sessions Judge, Court No. 2, Moradabad

vide judgement and order dated 14.7.2009, accused-

appellant Kalua filed Criminal Appeal No. 4395 of

2

2009, whereas accused-appellant Mahmooda alias

Vakeel filed Criminal Appeal No. 5145 of 2009

separately.

By the impugned judgement and order, learned

Additional Sessions Judge, Moradabad convicted and

sentenced both the appellants to rigorous

imprisonment for life and a fine of Rs. 20,000/-

(rupees twenty thousand only) each, under Section

376(2)(g) IPC and in default of payment thereof, the

appellants were directed to undergo one year's

further imprisonment; five years rigorous

imprisonment and a fine of Rs. 5,000/- (rupees five

thousand only ) each under Section 452 IPC and in

default of payment of fine, the appellants were

further directed to undergo six months rigorous

imprisonment and rigorous imprisonment for five

years under Section 506 IPC and two years rigorous

imprisonment and a fine of Rs. 5,000/- each under

Section 3(1)(xii) of SC and ST Act and in default of

payment of fine, both the appellants were directed to

further undergo three months' imprisonment.

However, all the sentences were directed to run

concurrently.

Since both the afore-captioned criminal appeals

have been filed against the judgement and order

dated 14.7.2009 passed by the learned Additional

Sessions Judge, Moradabad in ST No. 782 of 2007,

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both the appeals have been heard analogously and

are being disposed of by means of this common

judgement.

In the present judgement, we would like to

withhold the name of the victim lady in view of the

provisions of Section 228A IPC and in pursuance of

the observations of Hon'ble Supreme Court in State of

Himachal Pradesh Vs. Shree Kant Shekari, AIR 2004

SC 4404). The prosecutrix hereinafter referred to as

“the victim'.

The facts, as unfolded by the prosecution, in

short conspectus, are that a written report was

handed over by the victim of the case at the police

station Dilari, district Moradabad on 12.5.2007 at

12.45 PM to the effect that the victim is Jatav by

caste. On 11.5.2007, her family members had gone to

the house of Vijay Yadav to celebrate his victory in

the election. The victim was sleeping in the house

along with small kids and door of the house was

opened. At about 11.00 PM, Kalua, son of Jagan along

with Mahmooda, son of Suleman and one unknown

person to whom she could not recognize, entered into

her house. When she woke up, she saw that Kalua

and Mahmooda were having country made pistol in

their hands. They pointed the pistol at her neck and

threatened her to kill in case she makes any hue or

cry and dragged her inside the room and asked her to

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lit “Dibiya” (an earthen pot) and do whatever they are

asking. Thereafter, Kalua and Mahmooda stuffed cloth

in her mouth and committed gang rape on her,

whereas third person to whom she could not

recognize was watching at the door. They stayed in

the house for about half an hour and while leaving,

they had threatened her that in case she narrates the

incident to any one or she reports the matter to the

police, she alongwith her husband would be

eliminated. After the departure of the accused, on the

shriek and shrill, Gajram Singh, son of Nathu and

Smt. Munesh, wife of Rajendra Singh from

neighbourhood rushed to the spot, but by then the

accused made their escape good. After the arrival of

her husband, the victim narratted him about the

incident and lodged the report accompanied with him.

On the basis of the aforesaid written report, a

case was registered against both the accused as Case

Crime No. 278 of 2007, under Sections 376/453/506

IPC and Section 3(1)(xii) of SC and ST Act, police

station Dilari, district Moradabad (Ext. Ka-7).

After the registration of the case, as the case

was also under the SC and ST Act, the investigation

thereof was entrusted to PW-4, Circle Officer Satya

Prakash Singh, who copied the contents of the report

in the case diary and recorded the statement of Asif

Ali, who prepared Chik FIR. On 13.5.2007, he

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recorded the statement of the victim and witnesses

namely Munsh, Raghuveer and Vikram under Section

161 Cr.P.C., inspected the place of incident and

prepared site plan (Ext. Ka-6). On 15.5.2007, the

investigating officer copied the medical report of the

victim in the case diary and took into possession the

Salwar, which the victim was wearing at the time of

incident, which was got sealed and memo thereof was

prepared (Ext-Ka-5). The Salwar (Ext. Ka-5) was sent

to the Forensic Science Laboratory, Agra for

examination (Paper Nos. 5/6).

PW-4, CO Satya Prakash Singh was transferred

to another circle. After his transfer, the further

investigation of the case was entrusted to Circle

Officer Sushil Kumar, who after completion of

investigation and making necessary formalitites,

submitted charge sheet against both the appellants

under Sections 376, 452, 506 IPC and 3(1)(xii) of SC

and ST Act. The charge sheet proved by him exhibited

as Ka-9.

As the case was exclusively triable by the Court

of Sessions, learned Magistrate committed the case to

the Court of Sessions where the case was registered

as ST No. 782 of 2007 and learned Additional

Sessions Judge, Court No. 2, Moradabad vide order

dated 31.10.2007 framed the charges against both

the accused-appellants under Sections 376, 452, 506

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IPC and 3(1) (xii) of SC and ST Act, which were read

over and explained to the accused in Hindi, who

pleaded not guilty of the charges and claimed to be

tried.

To bring home the guilt of the appellants

beyond the hilt, the prosecution has examined as

many as four witnesses. PW-1 is the victim of the

case, PW-2, Munesh is the eye-witness of the case,

PW-3, Dr. Kadira Sultana, is the medical officer, who

had medically examined the victim and PW-4, CO

Satya Prakash Singh, the investigating officer of the

case.

PW-1 is the first informant and victim of the

case. She reiterated the versions mentioned in the

FIR. She further deposed that she was sleeping in

Verandah with her children of tender age. At about

11.00 PM, three persons entered into her house, out

of whom she recognized Kalua, son of Jagan and

Mahmooda, son of Suleman. She could not recognize

the third person. Kalua and Mahmooda were armed

with country made pistol. They pointed the country

made pistol and dragged her to another room where

they got Dibiya burnt and thereafter committed rape

upon her one by one. At the time of committing rape,

accused stuffed cloth on her mouth. While leaving,

accused threatened that in case she reported the

matter to any one, she will be eliminated. On her

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shriek Gajram and Munish rushed to the spot, but by

that time accused made their escape good. She also

deposed that her husband had gone to attend the

rally. She further stated that she knew both the

accusd as they used to come for convassing.

PW-2, Smt. Munesh, wife of Rajendra, deposed

in her examination-in-chief that her house is adjacent

to the house of the victim. On the date of incident at

about 11.30 PM, on the shrieks of the victim, when

she rushed to the spot, she saw that three persons

were coming out of the house of the victim, two of

them were Kalua and Mahmooda. She did not

recognize the third person. She further deposed that

she knew accused Kalua and Mahmooda from before.

She recognized accused Kalua and Mahmooda in light

of Dibiya. The victim told her that Kalua and

Mahmooda have forcibly committed rape on her.

Accused Kalua and Mahmooda are the resident of

neighbouring village and used to pass through the

road in front of her house. At that time several

persons of the village have gathered at the spot.

Gajraj also reached at the spot. This witness was put

to lengthy cross examination and has denied that

false case has been registered under pressure of Vijay

Yadav.

PW-3, Dr. Kadira Sultana who has conducted

the medical examination of the victim, deposed that

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on 12.5.2007, she was posted at the District Hospital,

Moradabad as Medical Officer. On that day, she had

conducted the medical examination of the victim, who

was brought by Constable Safia Shaheen of police

station Dilari, district Moradabad. There was no visible

injury on the person of the victim. Hymen was not

present and her vagina admits two finger easily. She

prepared two slides of vaginal smear and sent them

for examination. She proved the report as Ext. Ka-1.

She further deposed that on examination of slides, no

dead or alive spermatozoa was found. Doctor opined

that no definite opinion about rape can be given. The

age of the victim was found above 19 years. She

prepared supplementary report and proved it as Ext.

Ka-2, x-ray report dated 14.5.2007 prepared by

Radiologist Dr. Jagmal Singh proved and marked as

Ext. Ka-3 and report prepared by Dr. Ranjana Gupta,

Pathologist of District Hospital, Moradabad proved and

marked as Ext. Ka-4. She was not cross examined

despite opportunity was given to the defence. He had

proved recovery memo, site plan and the charge

sheet submitted against both the appellants Kalua and

Mahmooda.

PW-4, Circle Officer Satya Prakash Singh was

the first investigating officer of the case, who

conducted investigation, whose evidence has already

been discussed above.

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After the closure of prosecution evidence,

statements of the accused-appellants were recorded

under Section 313 Cr.P.C., who denied the charges

levelled against them and stated that they have

falsely been implicated in this case and the witnesses

are deposing falsely against them.

The learned Additional Sessions Judge, Court

No. 2, Moradabad after hearing learned counsel for

the parties and after scrutinizing and assessing the

evidnece on record, convicted and sentenced the

appellants as stated in the first paragraph of the

judgement.

Hence, this appeal.

Heard Shri A.M. Zaidi, learned counsel for the

appellant-Kalua in Criminal Appeal No 4395 of 2009

and Shri Amit Kumar Srivastava, learned counsel for

the appellant-Mahmooda alias Vakeel in Criminal

Appeal No. 5145 and perused the record of the case.

Learned counsel for the appellants submitted

that there is inordinate delay in lodging the FIR as the

FIR of the incident, which took place at 11.00 PM on

11.5.2007, has been lodged on 12.5.2007 at 12.45

PM for which no plausible explanation has been

rendered by the prosecution. Learned counsel for the

appellants further submits the appellants have been

falsely implicated in this case due to election rivalry

and that testimony of the victim (PW-1) is

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inconsistent with the prosecution version. Learned

counsel also submitted that the prosecution story

seems to be improbable that two persons would ask

the victim to lit Dibiya before indulging in alleged

commission of gang rape. The investigating officer

had not taken the care expected of him to collect

Dibiya which is alleged to be the source of light in

which witnesses had identified both the appellants.

Learned counsel contended that absence of any

injury on the person of victim as opined by Dr. Kadira

Sultana, who was examined as PW-3 has falsified the

prosecution story as cooked up against the appellants.

Both the appellants are languishing in jail since last

more than twelve and a half years, the sentence of

life imprisonment awarded by the learned Trial Court

is too harsh, hence they deserve to be released as

they have already under gone sentence of twelve and

a half years.

In addition to the aforesaid submission, Shri

A.M. Zaidi, learned counsel appearing for the

appellant Kalua made a feeble attempt that appellant

belongs to scheduled caste community, as such his

conviction under the SC and ST Act is unsustainable.

On the contrary, Shri Vikas Sahai, learned

Additional Government Advocate has supported the

findings of the learned trial court and submitted that

the judgement is well reasoned and based upon

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appreciation of evidence. He further submits that the

findings recorded by the learned trial court do not call

for any interference by this Court. Learned A.G.A. also

contended that since both the appellants are

accepting that they deserve to be released as they

have already undergone more than twelve and a half

years of sentence, meaning thereby that they have

accepted their guilt, hence they deserve no

indulgence who were involved in outraging chastity

and modesty of the victim, who is a married woman.

The first contention of the learned counsel for

the appellants is in respect of delay in lodging FIR. A

prompt FIR lends credence to the case of the

prosecution. Promptness in filing FIR gives assurance

of veracity of information and reflects first hand

account of occurrence and persons responsible

therefor. Object to insist upon prompt FIR is to obtain

information regarding circumstances in which crime

was committed, names of actual culprits, parts played

by them as well as names of eye witnesses. FIR is

valuable piece of evidence though not substantive

evidence. In cases where there are delay in lodging

the FIR, the informant must give an explanation for

the same. Undoubtedly, delay in lodging the FIR does

not make prosecution case improbable when such

delay is properly explained, but deliberate delay in

lodging the FIR is always fatal. In cases where there

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are delay in lodging the FIR, the Court has to look for

a plausible explanation for such delay.

In the instant case, the delay has been

explained by the first informant/victim in the FIR

itself. The incident took place at 11.30 PM on

11.5.2007. The victim in her report has clearly

mentioned that when the incident took place, her

husband along with other family members had gone

on tractor to celebrate the victory of Vijay Yadav and

she was alone in the house along with two children of

tender age In her cross-examination, she has

mentioned that her husband returned home at 10.00

AM on 12.5.2007. She further deposed that she made

a complaint about the incident to the neighbours, but

she was not in a condition to go to the police station,

hence she did not go to the police station and waited

for her husband to come. She stated that at 10.00

AM, when her husband came back, she narrated the

incident to her husband. Thereafter, she got the FIR

ascribed by one Thakur and thereafter she left for the

police station for lodging the FIR on foot. The house

of the victim is 3 kms. away from the police station, it

must have taken sometimes to reach the police

station to lodge the FIR.

In Tara Singh and others Vs. State of Punjab,

AIR 1991 SC 63, Hon'ble Supreme Court held that

mere delay in lodging the FIR by itself cannot give

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scope for an adverse inference leading to rejection of

the prosecution case outright.

The Court further held thus:

“ It is well-settled that the delay

in giving the FIR by itself cannot be a

ground to doubt the prosecution case.

Knowing the Indian conditions as they

are we cannot expect these villagers to

rush to the police station immediately

after the occurrence. Human nature as

it is, the kith and kin who have

witnessed the occurrence cannot be

expected to act mechanically with all

the promptitude in giving the report to

the police. At times being grief-stricken

because of the calamity it may not

immediately occur to them that they

should give a report. After all it is but

natural in these circumstances for them

to take some time to go to the police

station for giving the report.”

In Zahoor and others Vs. State of U.P., AIR

1991 SC 40, Hon'ble Supreme Court held that mere

delay by itself is not enough to reject the prosecution

case unless there are clear indications of fabrication.

Hon'ble Supreme Court in State of Punjab Vs.

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Gurmit Singh and others, 1996 SCC (2) 384 Hon'ble

Supreme Court held as under:

In our opinion, there was no

delay in the lodging of the FIR either

and if at all there was some delay, the

same has not only been properly

explained by the prosecution but in the

facts and circumstances of the case

was also natural. The courts cannot

over-look the fact that in sexual

offences delay in the lodging of the FIR

can be due to variety of reasons

particularly the reluctance of the

prosecutrix or her family members to

go to the police and complain about the

incident which concerns the reputation

of the prosecutrix and the honour of

her family. It is only after giving it a

cool thought that a complaint of sexual

offence is generally lodged.

Hon'ble Supreme Court in the case of Ram

Naresh and others Vs. State of Chhatisgarh, AIR

2012, SC 1357, has held that the delay, if any, in

lodging the FIR, if explained properly, is in no way

fatal to the case of the prosecution.

In view of the above facts and the

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pronouncements of Hon'ble Supreme Court, in our

opinion, the delay in lodging the FIR has very well

been explained by the prosecution.

The next contention of the learned counsel for

the appellants is that the appellants have falsely been

implicated in this case due to election rivalry at the

behest of Vijay Yadav M.L.A. and evidence of the

prosecutrix is inconsistent. Both the accused in their

statements recorded under Section 313 Cr.P.C. have

not made a whisper that they have falsely been

dragged in this case at the behest of Vijay Yadav,

M.L.A. or any other persons. Moreover, the defence

has not put forth any evidence to show that the

accused have been falsely implicated. Further no

suggestion has been given by the defence in this

regard. The victim in the FIR as well as in her

evidence before the court has given a vivid

description of the incident in respect of committing

rape by both the accused-appellants in turn. She has

also categorically stated in her cross-examination that

both the accused-appellants committed rape on her

one by one and when she tried to raise an alarm, they

stuffed cloth in her mouth and threatened her of dire

consequences. In Indian society no woman will make

such a false allegation ruining her future life, because

such allegation is destructive of the whole personality

of the victim. A murderer destroys the physical body

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of a victim, but a rapist degrades the very soul of the

helpless female. It is often stated that a woman who

is raped undergoes two crisis; the rape and the

subsequent trial. While the first seriously wounds her

dignity, destroys her sense of security and may often

ruin her physically, the second is no less potent of

mischief inasmuch as it not only force her to live

through the traumatic experience, but also does so in

the glare of publicity in a totally alien atmosphere,

with the whole apparatus and paraphernalia of the

criminal justice system focussed upon her. Since, it is

a most humiliating event in a woman's life which

leads to fear for existence and sense of

powerlessness, no body would make such a false

allegation of gang rape at the behest of others,

therefore, the contention of the learned counsel for

the appellants that the accused have falsely been

dragged in this case has no leg to stand.

Moreover, the victim was put to lengthy cross-

examination, but nothing adverse could be elicited

from her so as to make the prosecution story

doubtful.

In Arjun and others Vs. State of Rajasthan,

1994 Suppl (1) SCR 616, it was argued before the

Supreme Court that as parties were on inimical terms

and some criminal proceedings were pending between

them even at that time when the occurrence took

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place. Further PW-1 in that case was the brother of

the deceased and informant in that case was son of

deceased.

The Supreme Court brushed aside the argument

of the learned counsel for the appellants therein and

has held as under:

“We are not convinced by the

aforesaid argument that either on

account of animosity or on account of

relationship, the witnesses did not

divulge the truth but fabricated a false

case against the appellants. It is

needless to emphasis that enmity is a

double edged sword which can cut both

ways. However, the fact remains that

whether the prosecution witnesses are

close relatives of the deceased victim

or on inimical terras with the

deceased involved in the crime of

murder, the witnesses are always

interested to see that the real offenders

of the crime are booked and they are

not, in any case, expected to leave out

the real culprits and rope in the

innocent persons simply because of the

enmity. It is, therefore, not a safe rule

to reject their testimony merely on the

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ground that the complainant and the

accused persons were on inimical

terms. Similarly the evidence could not

be rejected merely on the basis of

relationship of the witnesses with the

deceased.”

In Hari Obula Reddy and others Vs. State of

Andhra Pradesh, (1981) 3 SCC 675, a three Judge

Bench of the Supreme court has observed thus:

“It is well settled that interested

evidence is not necessarily unreliable

evidence. Even partisanship by itself is

not a valid ground for discrediting or

rejecting sworn testimony, nor can it

be laid down as an invariable rule that

interested evidence can never form the

basis of conviction unless corroborated

to a material extent in material

particulars by independent evidence.”

Hon'ble Supreme Court in Ramashish Rai Vs.

Jagdish Singh, (2005) 10 SCC 498, has held that the

requirement of law is that the testimony of inimical

witnesses has to be considered with caution. If

otherwise the witnesses are true and reliable their

testimony cannot be thrown out on the threshold by

branding them as inimical witnesses. By now, it is

well-settled principle of law that enmity is a double-

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edged sword. It can be a ground for false implication.

It also can be a ground for assault. Therefore, a duty

is cast upon the court to examine the testimony of

inimical witnesses with due caution and diligence."

So far as the evidence of the prosecutrix is

concerned, we find that evidence of the prosecutrix is

consistent throughout. The victim, in her FIR as well

as her examination on oath has clearly stated that

both the accused entered her house, pointed pistol on

her neck, dragged her to another room and asked her

to lit Dibiya and thereafter committed rape on her one

by one for about half an hour. After the departure of

the accused when she made noise, witness, PW-2,

Smt. Munesh rushed to the spot and saw the accused

running. Although, the victim was subjected to

lengthy cross examination, but nothing could be

elicited to doubt her testimony.

In the case of State of Punjab Vs. Gurmit

Singh, AIR 1996 SC 1393, Hon'ble Apex Court

observed as under:

“Of late, crime against women in

general and rape in particular is on the

increase. It is an irony that while we

are celebrating women's rights in all

spheres, we show little or no concern

for her honour. It is a sad reflection on

the attitude of indifference of the

society towards the violation of human

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dignity of the victims of sex crimes. We

must remember that a rapist not only

violates the victim's privacy and

personal integrity, but inevitably causes

serious psychological as well as

physical harm in the process. Rape is

not merely a physical assault - it is

often destructive of the whole

personality of the victim. A murderer

destroys the physical body of his

victim, a rapist degrades the very soul

of the helpless female. The Courts,

therefore, shoulder a great

responsibility while trying an accused

on charges of rape. They must deal

with such cases with utmost sensitivity.

The Courts should examine the broader

probabilities of a case and not get

swayed by minor contradictions or

insignificant discrepancies in the

statement of the prosecutrix, which are

not of a fatal nature, to throw out an

otherwise reliable prosecution case. If

evidence of the prosecutrix inspires

confidence, it must be relied upon

without seeking corroboration of her

statement in material particulars. If for

some reason the Court finds it difficult

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to place implicit reliance on her

testimony, it may look for evidence

which may lend assurance to her

testimony, short of corroboration

required in the case of an accomplice.

The testimony of the prosecutrix must

be appreciated in the background of

the entire case and the trial court must

be alive to its responsibility and be

sensitive while dealing with cases

involving sexual molestations.”

In the case of Bharwada Bhoginbhai Hirjibhai

Vs. State of Gujarat, AIR 1983 SC 753, Hon'ble

Supreme Court held thus:

In the Indian setting, refusal to

act on the testimony of a victim of

sexual assault in the absence of

corroboration as a rule, is adding insult

to injury. Why should the evidence of

the girl or the woman who complains of

rape or sexual molestation be viewed

with the aid of spectacles fitted with

lenses tinged with doubt, disbelief or

suspicion ? To do so is to justify the

charge of male chauvinism in a male

dominated society. We must analyze

the argument in support of the need for

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corroboration and subject it to

relentless and remorseless cross-

examination. And we must do so with a

logical, and not an opinionated, eye in

the light of probabilities with our feet

firmly planted on the soil of India and

with our eyes focused on the Indian

horizon. We must not be swept off the

feet by the approach made in the

Western World which has its own social

mileu, its own social mores, its own

permissive values, and its own code of

life. Corroboration may be considered

essential to establish a sexual offence

in the backdrop of the social ecology of

the Western World. It is wholly

unnecessary to import the said concept

on a turn-key basis and to transplate it

on the Indian soil regardless of the

altogether different atmosphere,

attitudes, mores, responses of the

Indian Society and its profile.”

Hon'ble Supreme Court in State Of Maharashtra

vs Chandraprakash Kewal Chand Jain, 1990 SCR (1)

115 held thus:

A prosecutrix of a sex-offence

cannot be put on par with an

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accomplice. She is in fact a victim of

the crime. The Evidence Act nowhere

says that her evidence cannot be

accepted unless it is corroborated in

material particulars. She is undoubtedly

a competent witness under Section 118

and her evidence must receive the

same weight as is attached to an

injured in cases of physical violence.

The same degree of care and caution

must attach in the evaluation of her

evidence as in the case of an injured

complainant or witness and no more.

What is necessary is that the Court

must be alive to and conscious of the

fact that it is dealing with the evidence

of a person who is interested in the

outcome of the charge levelled by her.

If the Court keeps this in mind and

feels satisfied that it can act on the

evidence of the prosecutrix, there is no

rule of law or practice incorporated in

the Evidence Act similar to illustration

(b) to Section 114 which requires it to

look for corroboration. If for some

reason the Court is hesitant to place

implicit reliance on the testimony of the

prosecutrix it may look for evidence

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which may lend assurance to her

testimony short of corroboration

required in the case of an accomplice.

The nature of evidence required to lend

assurance to the testimony of the

prosecutrix must necessarily depend on

the facts and circumstances of each

case. But if a prosecutrix is an adult

and of full understanding the Court is

entitled to base a conviction on her

evidence unless the same is shown to

be infirm and not trustworthy. If the

totality of the circumstances appearing

on the record of the case disclose that

the prosecutrix does not have a strong

motive to falsely involve the person

charged, the Court should ordinarily

have no hesitation in accepting her

evidence. We have, therefore, no doubt

in our minds that ordinarily the

evidence of a prosecutrix who does not

lack understanding must be accepted.

The degree of proof required must not

be higher than is expected of an injured

witness. For the above reasons we

think that exception has rightly been

taken to the approach of the High Court

as is reflected in the following passage:

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"It is only in the rarest of rare cases if

the Court finds that the testimony of

the prosecutrix is so trustworthy,

truthful and reliable that other

corroboration may not be necessary."

Hon'ble Supreme Court in State of A.P. Vs.

Bodem Sundara Rao, 1995 (6) SCC 230, has

cautioned the Courts while dealing with the cases of

sexual crime against women in the following words:

“Sexual violence apart from being

a dehumanizing act is an unlawful

intrusion of the right to privacy and

sanctity of a female. It is a serious blow

to her supreme honour and offends her

self esteem and dignity. It degrades

and humiliates the victim and where the

victim is a helpless innocent child, it

leaves behind a traumatic experience.

The Courts are, therefore, expected to

deal with the cases of sexual crime

against women with utmost sensitivity.

Such cases need to be dealt with

sternly and severely.”

The next contention of learned counsel for the

appellants is in respect of improbability of the

prosecution story as accused would not have asked

26

the victim to lit the light (Dibiya) rather could have

committed the rape concealing their identity.

The victim in her report as well as in her

evidence on oath has stated that on the fateful day at

about 11.00 P.M. when she was sleeping along with

her children and the door of the house was opened,

at that time, all the three accused including both the

appellants entered into her house, she woke up and

saw that accused Kalua and Mahmooda were armed

with country made pistol. They pointed the pistol at

her neck and dragged her to another room and

threatened her of dire consequences in case she

would make a noise. Thereafter both the appellants

had asked her to lit Dibiya and thereafter they

committed rape on her. From the perusal of the

aforesaid deposition of the victim, it appears that

both the accused have been identified by her and,

therefore, there seems to be no improbability in the

prosecution story that the accused would not have

asked the victim to lit Dibiya to conceal their identity.

The victim in her cross-examination has stated that

she knew the appellants as they had come for

canvassing. Even if there is insufficient light, a witness

can identify a person with whom he/she is fairly

acquainted or is in intimate terms from their voice,

features and gait etc.

In our opinion, there was no improbability in the

evidence of the victim that accused asked her to lit

27

Dibiya. In view of the above, the contention of the

learned counsel for the appellants that the

prosecution story is improbable has no leg to stand.

The other contention of learned counsel for the

appellants is that the prosecution case is inconsistent

with the medical report as no spermatozoa dead or

alive was found in the medical examination as opined

by the doctor.

The medical evidence is only an advisory in

character given on the basis of the symptoms found

on examination of the victim. The expert witness is

expected to put before the Court all materials

inclusive of the date which induced him to come to

the conclusion and enlighten the Court on the

technical aspect of the case by explaining the terms

of science so that the Court may form its own opinion

on those materials after giving due regard to the

experts, opinion because once the expert's opinion is

accepted, it is not the opinion of the medical officer,

but of the Court, who is an experty of all experts.

Merely because, no spermatozoa was found on the

vaginal slides cannot make the prosecution story

doubtful.

In Pratap Misra Vs. State of Orissa, AIR 1977 SC

1307, Hon'ble Supreme Court has observed thus:

“................... it is well settled

that medical jurisprudence is not an

exact science and it is indeed difficult

28

for any Doctor so say with precision

and exactitude as to when a particular

injury was caused ….... as to the exact

time when the appellants may have

had sexual intercourse with the

prosecutrix.”

In this context we feel that it would be quite

appropriate to reproduce the opinion expressed by

Modi in his book Modi Textbook of Medical

Jurisprudence and Toxicology, 24

th

Edition, at page

639, which reads as under:

“To constitute the offence of

rape, it is not necessary that there

should be complete penetration of the

penis with the emission of semen and

the rupture of hymen. Partial

penetration of the penis within the

labia majora or the vulva or pudenda

with or without the emission of

semen, or even an attempt at

penetration is quite sufficient for the

purpose of law. It is, therefore, quite

possible to commit legally, the

offence of rape without producing any

injury to the genitals or leaving any

seminal stains. In such a case the

29

Medical Officer should mention the

negative facts in his report, but

should not given his opinion that no

rape had been committed. “

Salwar, which the victim was wearing at the

time of incident and which was exhibited as Ext. Ka-5

was sent to the Forensic Science Laboratory, Agra.

Forensic Science Laboratory, Agra vide its report

dated 30.6.2007 has confirmed the presence of

semen and spermatozoa on Salwar of the victim,

which fortified the case of the prosecution in respect

of rape on the victim on the alleged date and time.

The last contention urged by Shri A.M. Zaidi on

behalf of appellant-Kalua is that since appellant Kalua

also belongs to scheduled caste, as such his

conviction under the SC and ST Act would not be

sustainable.

Before adverting to this submission of learned

counsel, it would be useful to quote Section 3(1)(xii)

of the SC and ST Act:

Section-3- Punishment for

offences of atrocities-

(1) Whosoever, not being a member of

a scheduled caste or scheduled tribe;

(xii) being in a position to dominate

the will of a woman belonging to a

scheduled caste or scheduled tribe and

30

used that position to exploit her

sexually to which she would not have

otherwise agreed.”

Perusal of the evidence shows that the accused-

appellants were in a position to dominate the will of

the victim, a married lady and sexually abused her

without her consent. Such plea was never raised by

the learned counsel for the appellant-Kalua before the

trial court or at the time of filing of this appeal and at

the very fag end, at the time of hearing, this plea has

been taken on the basis of certain document filed on

behalf of the accused-appellant Kalua, which cannot

be taken into account at this stage. Moreover, learned

trial court held that both the accused-appellants do

not belong to scheduled caste community and were in

a position to dominate the will of the victim.

In the instant case a heinous crime has been

committed and the accused must suffer for its

consequences. It is well established that sexual

activities with the girl/woman have a traumatic effect,

which persists throughout her life. A rapist not only

violates personal integrity, but leaves indelible marks

on the very soul of the helpless female. In this case a

married woman aged 19 years has been raped by the

two accused on the point of pistol.

In Madan Gopal Kakkad vs Naval Dubey And

another, 1992 SCR (2) 921, Hon'ble Supreme Court

31

held:

"JUSTICE DEMANDS, THE COURT

AWARDS"

Before parting with the judgment,

with deep concern, we may point out

that though all sexual assaults on

female children are not reported and

do not come to light yet there is an

alarming and shocking increase of

sexual offences committed on

children. This is due to the reasons

that children are ignorant of the act of

rape and are not able to offer

resistance and become easy prey for

lusty brutes who display the

unscrupulous, deceitful and insidious

art of luring female children and

young girls. Therefore, such offenders

who are menace to the civilized

society should be mercilessly and

inexorably punished in the severest

terms.

We feel that Judges who bear the

Sword of Justice should not hesitate

to use that sword with the utmost

severity, to the full and to the end if

the gravity of the offences so

32

demand.

We have carefully scrutinized and examined the

evidence of PW-1, the victim, PW-2, Smt. Munesh,

PW-3, Dr.Kadira Sultana and PW-4, CO Satya Prakash

Singh and we find that they have been correctly

marshalled and assessed by the learned Trial Court.

Since, there is ample evidence including

eyewitness account, medical report and report of the

Forensic Science Laboratory to base conviction,

accordingly the conviction of the appellants for the

aforesaid offence stands affirmed.

So far as the quantum of sentence is

concerned, Section 376 IPC has been amended

by the Criminal Law (Amendment) Act, 2013

(Act No. 13 of 2013) with retrospective effect

from 03.2.2013 by inserting section 376-D IPC

for gang rape in place of Section 376(2)(g) IPC

where rigorous imprisonment shall not be less

than twenty years, but which may extend to

life imprisonment for the remainder of that

person’s natural life. The unamended Section,

for the punishment under Section 376(2)(g)

IPC, it provided for rigorous imprisonment for a

term which shall not be less than ten years,

but which may be for life and shall also be

liable to fine provided that Court may for

adequate and special reasons to be mentioned

33

in the judgement, impose a sentence of

imprisonment of either description for a term

of less than ten years.

Now the question falling for consideration

is whether there are adequate and special

reasons warranting exercise of discretion to

reduce the sentence of imprisonment for life.

Adequate and special reasons would depend

upon facts of each case and no strait jacket

formula can be prescribed.

On the quantum of sentence, the

mitigating circumstances urged by the learned

counsel for the appellant-Kalua are that he is

aged about 53 years; his daughters are of

marriageable age; there is no earning

members in his family; his family is at the

verge of starvation and that he is not a

previous convict.

The mitigating circumstances submitted

on behalf of learned counsel for the appellant-

Mahmooda alias Vakil is that he has three

daughters and two sons; the elder daughter is

aged about 17 years and is of marriageable

age. There is no bread earner in his family; his

wife is fostering the children by doing

household work in others houses and that he is

not a previous convict.

34

Learned counsel for both the appellants

further submitted that both the appellants have

realized the mistake committed by them and

they are remorseful of their conduct to the

society to which they belong and now they

want to transform themselves.

Learned counsel for the appellants also

submitted that the appellants were awarded

maximum imprisonment for life under

Sections 376(2)(g) IPC and a fine of Rs.

20000/- and that they have already undergone

about twelve years and six months of the

awarded sentence and the sentence may be

reduced to the period already undergone.

In support of his contention in respect of

quantum of sentence, learned counsel for the

appellants has relied upon the judgement of Hon'ble

Supreme Court in Dinesh alias Budha, 2006 (2) JIC

896 (SC); G.V. Siddaramesh Vs. State of Karnataka,

2010 (2) JIC 100 (SC) and Bavo alias Manubhai

Ambalal Thakore Vs. State of Gujarat, 2012 (1) JIC

667 (SC).

In Dinesh alias Buddha Vs. State of

Rajasthan (Supra) relied upon by the learned

counsel for the appellants was a case in which

an eight year old scheduled caste girl was

ravished by the appellant therein. The

35

appellant was awarded life imprisonment under

section 376(2)(f) IPC with the aid of section

3(2)(v) of the Scheduled Castes and Scheduled

Tribes (Prevention of Atrocities) Act. Hon’ble

Supreme Court while setting aside the

conviction of the appellant under Section 3(2)

(v) of SC and ST Act, reduced the sentence of

the appellant from life imprisonment to ten

years RI.

The facts of the aforesaid case is not

applicable to the fact of the present case as in

the aforesaid case life imprisonment was

awarded by the court below only by applying

the provision of Section 3(2)(v) of the SC and

ST Act. In the present case life imprisonment

was awarded under Section 376(2)(g) IPC.

G.V. Siddaramesh Vs. State of Karnataka

(Supra) was a case under Sections 304-B and 498-A

IPC, in which Hon’ble Supreme Court while confirming

the conviction of the appellant under Section 304-B

IPC, reduced the sentence from life imprisonment to

ten years RI.

In Bavo alias Manubhai Ambalal

Thakore Vs. State of Gujarat , AIR 2012 SC

979, the accused was convicted for the offence

under Section 376(2)(f) for committing rape on

a seven year old girl and was awarded life

36

imprisonment by the Trial Court, which was

upheld by the High Court. In appeal, Hon’ble

Supreme Court considering the fact that the

victim therein was aged about 7 years and the

accused was aged 18/19 years on the date of

incident and also the fact that incident took

place about ten years ago, reduced the

sentence from life imprisonment to ten years

by holding that award of life imprisonment,

which is maximum prescribed is not warranted.

While dealing with the quantum of

sentence, Hon'ble Supreme Court in B.G.

Goswami Vs. Delhi Administration , 1973

AIR 1457, held as under:

“Now the question of sentence is

always a difficult question,

requiring as it does, proper

adjustment and balancing of

various considerations, which

weigh with a judicial mind in

determining its appropriate

quantum in a given case. The main

purpose of the sentence broadly

stated is that the accused must

realise that he has committed an

act, which is not only harmful to

the society of which he forms an

integral part but is also harmful to

his own future, both as an

individual and as a member of the

society. Punishment is designed to

protect society by deterring

potential offenders as also by

preventing the guilty party from

repeating the offence; it is also

37

designed to reform the offender

and reclaim him as a law abiding

citizen for the good of the society

as a whole. Reformatory, deterrent

and punitive aspects of

punishment thus play their due

part in judicial thinking while

determining this question. In

modern civilized societies,

however, reformatory aspect is

being given somewhat greater

importance. Too lenient as well as

too harsh sentences both lose their

efficaciousness. One does not

deter and the other may frustrate

thereby making the offender a

hardened criminal. In the present

case, after weighing the

considerations already noticed by

us and the fact that to send the

appellant back to jail now after 7

years of the annoy and

harassment of these proceedings

when he is also going to lose his

job and to earn a living for himself

and for his family members and

for those dependent on him, we

feel that it would meet the ends of

justice if we reduce the sentence

of imprisonment to that already

undergone but increase the

sentence of fine from Rs- 200/- to

Rs. 400/-. Period of imprisonment

in case of default will remain the

same.”

In Shyam Narain Vs. State (NCT of

Delhi) (2013) 7, SCC 77, it has been held by

the Hon’ble Apex Court that primarily it is to be

borne in mind that sentencing for any offence

has a social goal. Sentence is to be imposed

38

regard being had to the nature of the offence

and the manner in which it has been

committed. The fundamental purpose of

imposition of sentence is based on the principle

that the accused must realize that the crime

committed by him has not only created a dent

in the life of the victim, but also a concavity in

the social fabric. The purpose of just

punishment is designed so that the individuals

in the society which ultimately constitute the

collective do not suffer time and again for such

crimes. It serves as a deterrent. The Court

further observed as under:

“On certain occasions, opportunities

may be granted to the convict for

reforming himself but it is equally

true that the principle of

proportionality between an offence

committed and the penalty imposed

are to be kept in view. It has to be

borne in mind that while carrying out

this complex exercise, it is obligatory

on the part of the Court to see that

impact of the offence on the society

as a whole and its ramifications on

the immediate collective as well as

its repercussions on the victim.”

39

Elaborating on the duty of the Court while

imposing sentence for an offence, Hon’ble Apex

Court in Sumer Singh Vs. Surajbhan Singh

and others, (2014) 7 SCC 323 has held that it

is the duty of the court to impose adequate

sentence, for one of the purposes of imposition

of requisite sentence is protection of the

society and a legitimate response to the

collective conscience. The paramount principle

that should be the guiding laser beam is that

the punishment should be proportionate. It is

the answer of law to the social conscience. In a

way, it is an obligation to the society which has

reposed faith in the court of law to curtain the

evil. While imposing the sentence it is the

court’s accountability to remind itself about its

role and the reverence for the rule of law. It

must evince the rationalized judicial discretion

and not an individual perception or a moral

propensity.

In Shimbhu and Others Vs. State of

Haryana, AIR 2014 SC 739, the Supreme

Court while dealing with the issue with regard

to imposition of sentence for the offence of

gang rape, observed as under:

“ A perusal of the above

provision shows that the legislative

40

mandate is to impose a sentence, for

the offence of gang rape, for a term,

which shall not be less than 10

years, but it may extend to life and

shall also be liable to fine. The

proviso to Section 376(2) IPC, of

course lays down that the Court

may, for adequate and special

reasons to be mentioned in the

judgement, impose sentence of

imprisonment of either description

for a term of less than 10 years.

Thus, the normal sentence in a case,

where gang rape is committed is not

less than 10 years though in

exceptional cases, the Court by

giving “special and adequate

reasons”, can also award the

sentence of less than 10 years.

It is a fundamental rule of

construction that a proviso may be

considered in relation to the main

provision to which it stands as a

proviso, particularly, ion such penal

provisions. Whether there exist any

“special and adequate reason” would

depend upon a variety of factors and

41

the peculiar facts and circumstances

of each case. This Court, in various

judgements, has reached the

consensus that no hard and fast rule

can be laid down in that behalf for

universal application.”

In Dholya alias Rajendra and others

Vs. State of Rajasthan through Public

Prosecutor, 2014 (4) RLW (Raj) 3031, the

Division Bench of Rajasthan High Court while

affirming the conviction of the appellants

therein under Section 376(2)(g) IPC, reduced

the sentence from life imprisonment to ten

years rigorous imprisonment by holding that

the trial court in making the choice of sentence

of life imprisonment did not make any

discussion whatsoever at all as to why it has

chosen maximum sentence and further why

the minimum sentence of ten years would not

be sufficient.

In Yogendra Singh alias Bablu Vs.

State of Rajasthan, 2015 RLW 960 the facts

of the case was that while the prosecutrix was

going to his teacher’s house for obtaining

important questions, both the accused arrived

by a taxi. One of the accused caught hold of

her hand and dragged her in the taxi while the

42

other accused gagged her mouth. Both the

accused took the victim to a deserted place

and committed gang rape upon her. The

Division Bench of Rajasthan High Court relying

upon the decision of Hon’ble Supreme Court in

Bavo alias Manubhai Ambalal Thakore

(Supra), while affirming the order of the trial

court awarding life imprisonment under Section

376 (2)(g) IPC, reduced the sentence of the

appellant therein to ten years rigorous

imprisonment.

In Jasbir Singh and others Vs. State of

Delhi, (Criminal Appeal No. 420 of 2002)

decided on 18.5.2018, the case of the

prosecution was that when the prosecutrix was

going along with her husband at about 11 PM,

three persons surrounded them. Two of them

pointed a knife at her whilst the third dragged

her to the backside of the market into the park

where all the three accused committed rape

upon her one by one. The fourth accused had

taken away her husband. The Division Bench

of Delhi High Court while affirming the

conviction of the appellants under Section

376(2)(g) IPC, reduced the sentence to ten

years.

In Kulwinder Singh alias Billu Vs.

43

State of Punjab (criminal Appeal No. 242 of

2013) and other connected matters, decided

on 13.3.2019, the facts of the case were that

the victim was pursuing the course of

Chartered Accountant. On the fateful day at

about 8.30 PM, when the victim was coming

back to her house along with his friend Mohit

Joshi. When she was in transit, suddenly the

bike of Mohit Joshi developed some technical

defect. The prosecutrix was riding Activa. She

parked her Activa. At that time four persons on

two motorcycles came there and snatched her

mobile and purse. One of the accused gagged

her mouth and forcibly made her to sit on

motor cycle in between them. They took her to

jungle where accused Kulwinder Singh alias

Billu and Narinder alias Neelu forcibly

committed rape on her. The Division Bench of

Punjab and Haryana High Court while

upholding the conviction of the appellants

therein under section 376(2)(g) IPC, reduced

the sentence to 12 years without remission.

In view of the aforesaid pronouncement

of Hon’ble Supreme Court as well as of other

High Courts on the quantum of sentence and

also considering the mitigating circumstances

urged on behalf of the appellants, this Court

44

while upholding the conviction of the appellants

under Sections 376(2)(g), 452, 506 IPC and

3(1)(xii) of SC and ST Act, reduced the

sentence of the appellants to 14 years under

Section 376(2)(g) IPC. However, the fine

imposed by the trial court shall remain intact.

The amount of fine of Rs. 20,000/- (rupees

twenty thousand ) each be deposited by the

appellants, which shall be paid to the victim

forthwith.

Accordingly, both the appeals are partly

allowed.

Office is directed to send a copy of this

judgement along with the record of this case to

the court concerned/learned Sessions Judge,

Moradabad forthwith for compliance.

Dated: 18.11.2019

Ishrat