LAKHMI Vs. STATE OF U P

JUDGEMENT

(1.) THIS appeal is directed against the judgement and order 22-2-2005 passed by Addl. Sessions Judge (Fast Track Court No.16) Bulandshahr in S.T. No. 716 of 2004 State vs. Lakhmi under section 376, 452, 506 I.P.C. relating to P.S. Salempur District Bulandshahr whereby convicting the accused under section 376(2)(f), 452 and 506 I.P.C. and sentencing him to undergo 10 years R.I. with fine of Rs.20,100/- under section 376(2)(f), 2 years R.I. with a fine of Rs. 500/- under section 452 I.P.C. and one year R.I. with fine of Rs.500/- under section 506 I.P.C. In default of payment of fine the accused is to further undergo R.I. for 2 years, 6 month and 2 month on each count respectively with direction that all substantive sentences shall run concurrently. The court do not propose to mention name of the victim keeping in view section 228A I.P.C. and chosen to describe her as prosecutrix / victim (State of Karnataka vs. Puttarga 2003 (8) Supreme 364 and Dinesh @ Buddha Vs. State of Rajasthan (2006 (3) SCC 771). Shorn of unnecessary details, the prosecution case is that on 16-4-2002 at about 12.00 in the noon when the prosecutrix aged about 11 years was inside her house with her younger sister aged about 6 years the accused came inside the house after scaling the wall and send younger sister of the victim out by giving some money and after bolting from inside committed rape on the prosecutrix. Mother of the prosecutrix who had been to the fields came and knocked at the door then accused opened the door and after pushing mother Veerwati run away. The prosecutrix narrated entire incident. Her father was informed telephonically then he came and lodged the F.I.R. The complainant Khanchand (PW-2) went to the police station with the prosecutrix moved application (Ext. Ka-1) and the F.I.R. (Ext. Ka-4) was registered by constable Sri Banke Lal (PW-5) and also made entry in the G.D. (Ex. Ka-5). The victim was sent for medical examination. Dr. Sudha Sharma (PW-4) examined her and prepared medical examination report (Ext. Ka-2) Prosecutrix was referred for x-ray and pathological examination. Dr. H.P. Agarwal Sr. Pathologist examined her and prepared pathological report (Ex. ka-7). Dr. B.K. Gaur Sr. Radiologist (PW-6) has done x-ray and prepared x-ray report (Ext. Ka-6). Supplementary report (Ext. Ka-3) was prepared by Dr. Sudha Sharma. The investigation was taken up by Rakesh Chandra Sharma (PW-7) and lateron by S.I. Satya Prakash (PW-8). Investigating officer recorded statement of the prosecutrix and other witnesses visited the spot and prepared site plan (Ex.ka-9) and submitted charge sheet (Ext. Ka-8). Accused was charged under section 376, 452, 506 I.P.C. He pleaded not guilty and claimed trial. Prosecution in order to bring home the charges examined 8 witnesses in all. Prosecutrix (PW-1) has narrated the entire story about rape, Khanchand (PW-2) is father of the prosecutrix and is complainant of the case, Smt. Veerawati (PW-3) is mother of the prosecutrix. Rest witnesses are formal in nature. Accused in his statement under section 313 Cr.P.C. has stated that he has been falsely implicated in the case due to enmity. He did not adduce oral or documentary evidence in defence. The trial court after scrutinizing entire evidence on record held the accused guilty and recorded finding of conviction and sentence. Gone through the evidence on record, heard Sri P.N. Mishra, learned counsel for the appellant and learned AGA. Learned counsel for the appellant has submitted that the accused is in jail from about 6 years and this is border line case with no evidence. He also submitted that medical report did not support testimony of the prosecutrix and sentenced may be reduced to the period already undergone in jail. Learned AGA has submitted that the trial court has rightly convicted the accused and needs no interference. Prosecutrix (PW-1) has narrated her woe in her testimony on oath. Before recording her deposition the trial judge has noted her 'viore dire'. After ascertaining that she understands sanctity of the oath her statement has been recorded on oath. She has supported the F.I.R. version. From defence side plea was taken that the accused has been falsely implicated in the case but it is not proved. Beside this none will take risk to falsely implicate the accused in rape case at the cost of prestige and reputation of daughter. Although in medical opinion there is no definite opinion about rape yet prosecutrix has testified factum of rape and there is no reason to disbelieve it. In judgment the trial judge has cited catena of decisions of the Apex Court before placing reliance on testimony of the prosecutrix and he has rightly believed her. It is well settled that a prosecutrix complaining of having been victim of the offence of rape is not an accomplice of the crime. There is no rule of law that her testimony cannot be acted upon without corroboration in material particulars. She stated on higher pedestal than an injured witness. (State of U.P. vs. Pappu @ Yusuf and others 2005 SC (Crl.) 1311). The rupture of hymen is not necessary to constitute an offence of rape. Even a slight penetration in the vulva is violence in as much as rape as vaginal penetration. The activeness is complete with penetration (Aman Kumar vs. State of Haryana 2005 SC (Crl.) 326. Delay in lodging the F.I.R. has been properly explained by father of the prosecutrix. The victim herself has stated that she was afraid of the accused due to threat given by his family members. Stand of the accused that he has been falsely implicated is too swallow to be accepted. Smt. Veerwati (PW-3) mother of the victim has supported the prosecution case. When she knocked at he door after returning from the field then accused opened the door and ran away after pushing her aside. After entering into house she found the prosecutrix lying on the charpayee in ill-fated plight. Her salwar, kachha were present on the cot and the prosecutrix told her woe. During her cross examination nothing comes out supporting the accused. Khanchand (PW-2) is father of the prosecutrix. After receiving telephonic call given by his wife he came from Delhi and then he was informed about entire happening and misdeed of the accused. There is ample evidence adduced by the prosecutrix to prove charge against the accused and the trial judge has rightly recorded finding of conviction. Proviso has been given under section 376 (2) I.P.C. that the court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment of either description for a term less than 10 years. In State of Chhatisgarh vs. Derha 2004 (49) ACC the Apex Court has reduced sentence of 7 years after considering age of the accused and his family liability. Learned counsel for the appellant has submitted that the prosecutrix has received no injury and the accused is in jail from about 6 years and it is border line case hence sentence may be reduced to 7 years. Considering submission and background of the case, the court thinks that sentence of 7 years R.I. under section 376 I.P.C. would be appropriate. Appeal partly allowed. Finding of conviction recorded by the trial court is affirmed but sentence under section 376 I.P.C. is reduced to 7 years R.I. and fine amount is reduced to Rs.15000/- with default stipulation. No interference is required regarding sentence imposed on other count. The appellant accused is in jail and shall be detained to serve out sentence. Office is directed to certify the judgment to the court concerned for necessary compliance.