SOHAN AND SONU Vs. STATE

JUDGEMENT

(1.) THIS appeal, preferred tinder section 374 of the Code of Criminal Procedure, 1973 (hereinafter re ferred as Cr.P.C.) is directed against the judgment and order dated 5.7.2003, passed by learned Sessions Judge, Dehradun, in Sessions Trial No. 60 of 2001, whereby ac cused/appellant Sohan @ Sonu has been convicted under section 376(2) of the Indian Penal Code, 1860 (hereinafter referred as I.P.C.). The convict (appellant) is sen tenced to undergo imprisonment for life and a] so directed to pay fine of Rs. 5, 000/-, in default of payment of which he is further directed to undergo rigorous imprisonment for a period of six months. 2 Heard learned Counsel for the parties and perused the Lower Court record. 3. Prosecution story, in brief, is that on 2.1.2001, Alkama Bano (P.W. 2), a ten year old minor daughter of complainant. Gulam Haidar (P.W. 1) had gone to jungle to collect the woods along with her younger brother Raja and younger sister Kahkashan (P.W. 3). Manija (P.W. 4), aunt of the victim Alkama Bano (a minor girl) had also gone there. After sometime, ac cused/appellant Sohan @ Sonu came there and told Alkama Bano, Kahkashan and Raja that he too would like., to play with them. Meanwhile, Manija (P.W. 4) left the jungle. Thereafter, accused/appellant So han @ Sonu asked Kahkashan to go to take the firewood and taking benefit of Alkama Bano being all alone he made her to lie down on the ground, removed her gar ments and started raping her. As soon as Alkama Bano's younger brother and sister came back, he left the victim. Alkama Bano (P.W. 2) told about the incident to her mother. Gulam Haidar (P.W. 1), father of Alkama Bano, reached home at 03:00-03:30 P.M., and came to know that accused So han @ Sonu has committed rape on her daughter. He went to police station Raipur and lodged first information report on the very day i.e. 02.01.2001, at about 4:00 P.M. Immediately, the police started investiga tion, took the victim Alkama Bano to Medi cal Officer Dr. Asha Gupta (P.W. 5), who medically examined the victim at 4:30 P.M. on the very day (2.1.2001). At the time of examination, the Medical Officer found that the victim was bleeding from her vagina. Hymen of the victim was found rup tured. Tear about 3/4 cm in the midline of vaginal fourchette was found. The afore said Medical Officer got the surgery done with the help of Dr. Jain and the tear was repaired. After the X-ray reports were received, of knee, ankle, wrist and elbow joint, in her supplementary report P.W. 5 Dr. Asha Gupta opined that the age of the girl was 10 years. After interrogating the witnesses and arrest of the accused, and on completion of the investigation, the Inves tigating Officer P.W. 7 Sub-Inspector R.B. Singh submitted charge-sheet (Ext. A-11) against the accused Sohan @ Sonu, for his trial in respect of offence punishable under section 376 read with section 411 of I.P.C. 4. The Magistrate, on receipt of charge-sheet, after giving necessary copies to the accused, as required under section 207 of Cr.P.C., appears to have committed the case to the Court of Sessions, for trial. Learned Sessions Judge, after hearing on 19.5.2001, framed charge of offence pun ishable under section 376(2) of I.P.C. against the accused Sohan @ Sonu, to which he pleaded not guilty and claimed to be tried. On this, the prosecution got exam ined P.W. 1 Gulam Haidar (complainant and father of the victim); P.W. 2 Alkama Bano (a minor girl, who is the victim in this case); P.W. 3 Kahkashan (younger sister of the victim); P.W. 4 Manija (aunt of the vic tim); P.W. 5 Dr. Asha Gupta (who medi cally examined the girl); P.W. 6 Head Con stable Ram Kumar (who prepared the check report of the F.I.R. lodged by the complainant) and P.W. 7 Sub-Inspector R.B. Singh (who investigated the case). The oral and documentary evidence was put to the accused under section 313 of Cr.P.C., in reply to which he alleged the same to be false. However, no evidence in defence was adduced. After hearing the parties, learned Sessions Judge, Dehradun, vide impugned judgment and order dated 5.7.2003, found the accused/appellant Sohan @ Sonu guilty of charge of offence punishable under sec tion 376(2) of I.P.C. After hearing the par ties on sentence, the convict was sentenced to undergo imprisonment for life and also directed to pay fine of Rs. 5, 000/-, in de fault of payment of which he was further directed to undergo rigorous imprisonment for a period of six months. Aggrieved by said judgment and order, this appeal is preferred by the convict from the District Jail, Dehradun. 5. P.W. 1 Gulam Haidar, father of the victim, has stated that on the day of inci dent when he came back to his house he was told that his daughter Alkama Bano was raped in the jungle. The witness has stated that he immediately got report (Ext. A-1) written and gave it at the police sta tion on the very day i.e. 2.1.2001. THIS wit ness is not cross-examined on behalf of the accused, even after opportunity been given. 6. P.W. 2 Alkama Bano, victim and a minor girl, has stated that on the day of incident she along with her younger sister Kahkashan and younger brother Raja had gone to collect the woods in the jungle. THIS witness has further stated that they were playing in the jungle, at about noon, when accused/appellant came there and ex pressed his willingness to play with them. While playing the boy (accused/appellant) introduced himself. After sometime, ac cording to this witness he got sent her younger brother and sister to collect fire wood and took her (the victim) towards the bush. He gagged her mouth and got her lie down on the ground. Thereafter, he re moved her garments and raped her. P.W. 2 Alkama Bano has further stated that the accused threatened her of dire conse quences if the incident is disclosed to any one. The victim has further stated that she started bleeding from the vagina. Lastly, she has stated that she was medically ex amined by the Medical Officer. 7. P.W. 3 Kahkashan, a girl aged 8 years, has corroborated the testimony of her sister Alkama Bano, as stated above. We do not think it necessary to repeat the entire story again. 8. P.W. 4 Manija, aunt of the victim, has also corroborated the fact that the three children namely Alkama Bano, Kahkashan and Raja had gone to jungle and she left them all alone. THIS witness has further told that accused/appellant came in the jungle and when she wanted to take the children with her he told her that he would bring back the children to their home and they may be permitted to play. 9. The commission of rape on Al kama Bano gets corroboration not only from the testimony of Kahkashan (P.W. 3), but also from the statement of P.W. 5 Dr. Asha Gupta, who has stated that on 2.1.2001, while she was posted as a Medical Officer in the Doon Hospital, at 4:30 P.M., she medically examined the victim Alkama Bano daughter of Gulam Haidar. She has stated that the vagina of the victim was bleeding. Her hymen was ruptured. There was tear of 3/4 cm. on the midline of va gina. P.W. 5 Dr. Asha Gupta has further stated that she got the surgery done with the help of Dr. Jain to repair the tear found on the vagina of the victim on the very day. The Medical Officer has also stated that she found following injuries on the person of the victim: - (i) Scratch mark on left side, 1 inch away from the lip about 1-1/2 cm. in size, (ii) Scratch on right side cheek about 2 on in size, (iii) 2 marks about 3-4 cm in right side of middle of neck. (iv) 1 scratch mark on the medio flexor aspect of knee about 4 fingers be low the right knee joint, (v) Scratch mark about 3-1/2 cm on medio flexor aspect of left knee. The duration of injury was about 4-5 hours. She advised X-ray of knee ankle, wrist and elbow joint of the victim, for de termination of her age. P.W. 5 Dr. Asha Gupta has proved her report (Ext. A-2) prepared on 2.1.2001, at about 4:30 P.M. On receipt of the X-ray report, she submitted supplementary report dated 14.2.2001, which is Ext. A-3 on the record. In said re port she had opined that the age of the girl was 10 years. Though, she has mentioned that no definite opinion about rape can be given, but the injuries mentioned in Ext. A-2 by her on 2.1.2001, read with the state ment of P.W. 2 Alkama Bano, clearly prove the prosecution story beyond doubt that accused/appellant Sohan @ Sonu commit ted rape on her in the jungle on 2.1.2001. The age of the accused/appellant appears to be of 20 years (as mentioned in his statement recorded under section 313 of Cr.P.C.) The age of the girl is 10 years, as stated by her and gets corroboration from the supplementary medical report (Ext. A-3). That being so, the offence committed by the accused/appellant is covered under Clause (f) of sub-section (2) of section 376 of LP.C. 10. On behalf of the appellant it is ar gued that the accused was not known to the victim, and as such, the Investigating Officer should have got conducted the test identification parade, and without getting identified in the parade, it cannot be said that the accused/appellant Sohan @ Sonu is the same person, who committed rape on the victim. We are unable to accept the ar gument advanced on behalf of the accused/appellant for the reason that it is clearly stated by the victim (P.W. 2) in her statement that while playing in the jungle, the accused/appellant disclosed his name. Once he has disclosed his name and iden tity is clear, it is not necessary to get conducted the test identification parade, after the arrest of the accused. Apart from this, in Ramanbhai Naranbhai Patel and others v. State of Gujarat, 2001 (Suppl.) ACC 676 (SC) the Apex Court has held that where a test identification parade is required and not done, the prosecution evidence of eye-witnesses cannot be thrown out. What is required in such case is that the testimony of the eye-witnesses should be read with caution. In the present case, the minor girl has no reason to falsely implicate the accused/appellant Sohan @ Sonu. There appears no enmity of the victim against the accused. 11. The next point which is argued by learned Amicus "Curiae appearing on be half of the accused/appellant is that in the first information report the accused Sohan @ Sonu is shown to be resident of Shivpuri Colony, while in the memorandum of ar rest (Ext. A-10), accused/appellant Sohan @ Sonu has been shown to be resident of Puran Basti. No doubt, there is some in consistency as to the residence of the ac cused, but the victim as well as her sister have identified the accused/appellant in the Court and as to his identity there re mains no confusion. 12. Lastly, Mr. L.K. Tiwari, learned Amicus Curiae appearing on behalf of the accused/appellant submitted that the Trial Court has given the extreme/maximum penalty provided under the law. We have reassessed the evidence on record. Keeping in view the fact that the accused/appellant has no criminal history and he is young, we think it just and proper that a sentence of ten years rigorous imprisonment would meet the ends of the justice in this case. 13. For the reasons as discussed above, this appeal is liable to be dismissed as far as the conviction of the ac cused/appellant under section 376 (2) of I.P.C., is concerned. However, on the point of sentence, we think it just and proper to partly allow the appeal and to reduce the sentence to rigorous imprisonment for a period of ten years. Accordingly, the ap peal is partly allowed. The conviction re corded by the Trial Court against ac cused/appellant Sohan @ Sonu in respect of offence punishable under section 376(2) of I.P.C., is upheld. However, the sentence awarded by the Trial Court is, set aside. Instead, the accused/appellant Sohan @ Sonu is sentenced to rigorous imprison ment for a period of ten years, out of which the period already undergone during the trial and during the pendency of this ap peal shall be set off. The Registry is di rected to send back the Lower Court Rec ord. The Registry is directed also to send a copy of this judgment to the Superinten dent of Jail concerned where the appellant is serving out the sentence. Appeal Partly Allowed.