JUDGMENT
1. This criminal appeal has been filed by the sole appellant Sanjay against the Judgment and order dated 14.12.1999 passed by learned Additional Sessions Judge, XIII, Ghaziabad in sessions trial No. 70 of 1999 State v. Sanjay, where by the learned Sessions Judge found the appellant guilty of charges against him under section 376 Indian Penal code and sentenced him to undergo imprisonment for life along with fine of Rs. 5000/- and in default of payment of fine, to undergo six months’ rigorous imprisonment. It was further ordered by the learned Sessions Judge that out of the fine deposited by the appellant Rs. 4000/- would be paid to the victim.
2. According to the prosecution story, Smt. Rajbala wife of Khilari Singh, resident of 519 Kirtan Wali Gali, Bazaria, Ghaziabad, on 11.11.1998 at 6.35 P.M., went to the police Station Kotwali, Ghaziabad and lodged an oral report (Ex. Ka-1). As per this report, Smt. Rajbala, as usual, on that date had gone in the Mohalla for doing menial job. Her you iger daughter, the victim, aged about nine years, came back home at about 2.30 P.M. from school. Her elder daughter Km. Seema, aged about twelve years, was also present in her house. Her ‘Devar’ Sanjay, who used to live in the adjacent house, came to the house and with an evil intention, he took the victim inside the room. Sanjay made the victim lie on Nivar cot. He took out underwear of the victim and after lifting her skirt raped her. The victim started crying. At that time Smt. Rajbala reached home and she along with elder daughter Km. Seema ran into the room and saw Sanjay committing rape upon the victim. This occurrence took place at 2.00 P.M. Smt. Rajbala and her daughter tried to catch the appellant but appellant Sanjay pushed them and succeeded in running. The clothes of the victim were soaked in blood. The blood was also found on the bed sheet. It was further stated by Smt. Rajbala in her report that her husband kept Thela of Chhole chawal on railway road. She went in search of him but in vain. She had also taken the victim to the police station.
3. P.W. 5, C.C. 999’Rajpal Tyagi wrote chik FIR (Ex. Ka-1) on the dictation of Smt. Rajbala and entered the details in G.D. as per the Ex. a-8.
4. S.I. Ajai Kumar Gautam (P.W. 4), after registration of the case took up the investigation, recorded the statement of the complainant and on 12.11.1998, arrested the appellant. He also recorded the statement of the victim and other witnesses. He also got the statement of the victim recorded under section 164 Cr.P.C. and after preparing the site plan (Ex. Ka-5), had taken into possession the underwear of the victim and prepared its memo (Ex. Ka-6). After investigation, he submitted the charge sheet (Ex. Ka-7) against the appellant.
5. Third Additional Chief Judicial Magistrate, Ghaziabad, vide order dated 12.1.1999, committed the case to the sessions and the charge against the appellant under section 376 Indian Panel Code was framed by XIII Additional Sessions Judge, Ghaziabad, on 26.3.1999. The appellant pleaded not guilty to the charge and claimed trial.
6. The prosecution, to bring home guilt of the appellant, examined victim Km. Priti as P.W. 1, Smt. Pajbala (P.W. 2), informant of the case and mother of the victim, Doctor Pushp Lata (P.W.3), who medically examii ed the victim on 11.11.1998, P.W. 4 investigating officer of the case / jay Kumar Gautam and constable Rajpal Tyagi, who wrote the chik Fi 3 on dictation of Smt. Rajbala as P.W. 5.
7. Victim P.W. 1 deposed before the court as under:
8. That she came back home after her school in the noon. She along with her elder sister and younger brother were at home. Her parents were not at home. She was taking meal when her uncle Sanjay came to her house. Her uncle Sanjay is present in the court. Sanjay did not permit her to take meals. He made her to lie on the cot. At that time she was wearing school dress and her brother and sister had gone out of house to buy something. Her uncle took out her underwear, then opened his Tahmad and did Badtamizi with her urinary organ. When Badtamizi was done with her, she suffered pain. Her urinary organ started bleeding. The bed sheet was also spoiled. She raised alarm, hearing which, her mother and elder sister came. Her mother tried to catch her uncle but he pushed them and ran away. Thereafter she along with her mother went to the police station to make the report. She was medically examined in the hospital. The clothes, which she was wearing, were soaked in the blood. The clothes were given to the police. The police had enquired from her about the occurrence. She had earlier also made a statement before the court. Her leg was also soaked in the blood. When Badtamizi was done with her urinary organ, her mouth was gagged.
9. P.W. 2 Smt. Rajbala has supported the prosecution story.
10. P.W. 3 Dr. Pushp Lata, medical officer examined the victim at 7.45 P.M. On her external examination, she found no external mark of injury on her body but on internal examination of the victim, she found redness over vulva perineum torn and forchette torn at 6 0′ clock position. Hymen was also torn at 6 O1 clock position. Vaginal mucosa torn margins irregular bleeds on touch. Vaginal admits one finger with difficulty. She prepared the medical examination report (Ex. Ka-3). She referred advised for X-ray for ascertaining age of the victim. She also prepared slides of vaginal smear for confirmation of spermatozoa and gonococcal. After the report of X-ray and pathology, she prepared supplementary report (Ex. Ka-4). As per this report, age of the victim was found approx. 10 to 11 years and possibility of rape could not be ruled out though spermatozoa not seen.
11. P.W. 4, investigating officer has stated that he had conducted the investigation and submitted the charge sheet against the accused-appellant.
12. P.W. 5 Constable Rajpal Tyagi has proved the chik FIR
13. The appellant, in his statement under section 313 Cr.P.C, denied the occurrence and stated that he had dispute with Smt. Rajbala over the house. Her daughter fell down from the roof resulting in vaginal injury and he has been falsely implicated in this case.
14. In his defence, the appellant has examined Natthu Ram as D.W. 1, who is real grand father of the victim and father of the appellant. D.W. 1 deposed before the court that on 11.11.1998 at 12.00 hrs. in the day when he came home to take his meals, he found that the victim was injured. He made an inquiry and the people present there, told him that the victim had fallen from roof. In the evening, when he came back home at 8.30 P.M., he found that the police had arrested Sanjay. He further stated that he had dispute with Smt. Rajbala over the house. Smt. Rajbala wanted to take alone his house due to which she had enmity with Sanjay. It has come in his cross examination that at the time of occurrence, Sanjay was married.
15. The learned Sessions Judge, after perusal of the evidence, found that there was no reason to disbelieve the statement of the prosecutrix which was supported by the medical evidence on record. The appellant is real uncle of the prosecutrix and there is no reason to falsely implicate him in this case and relying upon the statement of the victim, her mother and doctor and the formal witnesses convicted the appellant as aforesaid.
16. We have heard learned Counsel for the appellant Sri R.P. Singh and learned A.G.A.
17. Learned Counsel for the appellant has submitted that the appellant has been falsely implicated in this case due to family dispute between the mother of the victim Smt. Rajbala and grand father of the appellant over the house. He has further submitted that the victim had fallen down from roof and suffered injuries and the appellant had been falsely implicated in this case due to enmity. It has also been submitted be the learned Counsel for the appellant that the victim, in her cross examination, has specifically stated that her mother and sister arrived at the place of occurrence after the appellant had runaway. Therefore the statement of Smt. Rajbala, mother of the victim is untrustworthy. He has also argued that the sentence of life imprisonment given by the learned Sessions Judge is the maximum sentence prescribed under section 376 of Indian Panel Code. It has also been argued by the learned Counsel for the appellant that the appellant has two daughters who have come of age and are to be married. The accused is in jail right from the time when the learned Sessions Judge passed the impugned Judgment and order dated 14.12.1999 and has already undergone imprisonment of about seven and half years.
18. Learned Counsel for the appellant has drawn our attention to the law laid down by Hon’ble the Supreme Court in T.K. Gopal alias Gopi v. State of Karnataka 2000 CAR 366, where Hon’ble the Supreme Court had issued a notice to the accused-appellant to show cause why his ten years’ sentence should not be enhanced to life imprisonment where the appellant had committed rape on a girl of one and a half year. Hon’ble the Supreme Court having regard to the fact that the appellant had two daughters of marriageable age, discharged the notice.
19. Learned A.G.A. has submitted that the appellant, who is real uncle of the victim, has committed rape upon the victim, who is of a tender age of about eleven years and the fact that rape committed on the victim by the appellant is fully proved from the evidence and statement on record and in view of this, no lenient view in the matter can betaken.
20. We have given thoughtful consideration to the submissions made by the learned Counsel for the parties.
21. We do not find any force in first submission of the learned Counsel for the appellant that the victim suffered injury due to fall from roof. There is no such evidence on the record that the victim had fallen from roof. It is also improbable that if the victim had fallen from roof she suffered injury only in her vagina and on no other part of her body. The statement of D.W. 1 Natthu Ram cannot be believed for the reason that he is father of the appellant and he himself did not see that the victim suffered injury due to fall from roof. He only stated that he was informed by the people that victim had fallen from the roof.
22. We also do not find any force in the argument of the learned Counsel for the appellant that he has been falsely implicated by the mother of the victim over the dispute of the house. It is improbable for mother to make false allegation of sexual assault on her minor daughter against her own Dewar. Normally a girl or woman, in tradition bound non-permissive society, would be extremely reluctant to admit any such incident. No mother would take risk to make false allegation against the appellant, who is the real uncle of the victim, for sexual assault on her daughter for fear of social stigma.
23. From the perusal of the evidence on record and statement of the prosecutrix in particular, in our view, the statement of the prosecutrix inspires confidence. No girl -would depose falsely against her own uncle. The mother of the victim, P.W.2 Smt. Rajbala, would also not do so for the future prospects of the victim getting married. From the statement of the victim it is revealed that the appellant, while the victim was all alone in her house and was taking meals, made her lie on a cot and committed rape upon her. The statement of the victim and her mother Smt. Rajbala is fully corroborated by the medical evidence on the record.
24. The doctor also opined that there was possibility that rape was committed on her. Even if mother and sister of victim arrived after the occurrence, as stated by the victim, still there is no ground to disbelieve the statement of the victim, which is corroborated by medical evidence on record.
25. Thus, we are of the opinion that the judgement, holding the appellant guilty, recorded by the Sessions Court, is based on evidence and sound reasoning. The conviction of the appellant is therefore, maintained.
26. However, keeping in view the law laid down by Hon’ble the Supreme Court in the case of T.K. Gopal alias Gopi (Supra) and the fact that the appellant has two daughters of marriageable age, we are inclined to consider the submission of the learned Counsel for the appellant regarding reduction in the sentence. The appeal is hereby dismissed. The sentence of life imprisonment is reduced to a sentence often years rigorous imprisonment.
27. The copy of this Judgment be immediately sent to the court concerned for necessary compliance.