@JUDGMENTTAG-ORDER
Raghvendra Kumar, J.@mdashHeard learned counsel for the appellant and learned A.G.A. for the State of U.P. and perused the record.
2. Under assail in this appeal is the judgement and order dated 29.6.2009 passed by the Additional Sessions Judge, Court No. 11, Aligarh, in S.T. No. 1085 of 2008, arising out of case crime No. 337 of 2008, under section 376(2)(f) I.P.C. P.S. Banna Devi, District Aligrh whereby the accused appellant, Yash Pal alias Kali has been convicted and sentenced to imprisonment for life with fine of Rs. 20,000/- with default stipulation of six months additional rigorous imprisonment.
3. The brief facts of the case are that on 28.5.2008, there was a programme of Devi Jagaran in the village. The daughter of the informant Gajraj Singh aged about 11 years went to see Jagaran at about 9.30 p.m. alongwith her two neighbouring friends. The accused appellant called the prosecutrix and enticed her and took away behind the temple. Thereafter he lifted her in the lap and took her at the Rly track. Her friends, Sunita and Anita immediately rushed to the house and informed to the family of the prosecutrix. Thereafter the informant alongwith his wife and elder sister-in-law and two others went towards the Rly. track with torch. They saw in the torch light that the accused appellant was committing rape with the prosecutrix. Seeing the family members of the prosecutrix, the accused appellant escaped from the spot alongwith clothes in his hand. The F.I.R of the case was lodged with the police by the informant/complainant Gajraj on 28.5.2008 at 2230 hrs with respect to the incident that took place on the same day at 9.30 p.m. After registration of the case, the investigation proceeded in accordance with law. The clothes of the prosecutrix were taken by the police and the recovery memo was accordingly prepared. The prosecutrix was medically examined and the Dr. has noted the following injuries.:
"1. One contusion in area of 7 X 2 cms on front of right side of chest joint.
2. One reddish contusion 2 X 2 cms on outer margin of left upper arm middle area
3. Injury reddish contusion 2 X 1.5 cms on outer surface of left upper arm 2cm above left elbow joint.
4. One (Traumatic Swelling) 4 X 3 cms on left face
5. One abrasion 8 X 0.2 cm on back of right side of chest horizontally placed below scabula
All the injuries have been noted as simple.
The prosecutrix was medically examined with respect to the alleged offence. The Doctor has made the following observations:
No marks of injury on private parts of body. But labea are reddish. Bleeding coming from vagina. Hymen torn and bleeding."
4. The charge was framed against the accused appellant for the offence of rape under section 376(2)(f) I.P.C. The appellant denied the charge and claimed the the trial on merits.
5. To substantiate the charge against the accused appellant, P.W.1. Gajraj who has proved the execution of written report. P.W.2, Mala Singh Devi, P.W.3, Kr. Khusbu-prosecutrix, P.W.4, Harendra Kumar, P.W.5, Ram Autar, Head constable, P.W.6, Dr. V.K. Singh who has proved the injury report, P.W.7, Rakesh Babu, Constable who has proved the execution of chik F.I.R. and relevant entry in G.D., P.W.9, Bhagwat Swaroop, Investigating Officer, P.W.10, Dr. Tariq Ahmad who has proved the examination report.
6. After conclusion of trial, the trial court has recorded the finding of conviction against the accused appellant, Yash Pal alias Kali for the offence under section 376(2)(f) I.P.C.. Hence this appeal.
7. Being the court of first appeal we are obliged to scrutinise the finding recorded by the learned trial court against the accused appellant and to ensure whether the finding of conviction recorded by the trial court are substantiated from the material available on record.
8. Learned counsel for the accused appellant has submitted that the appellant is in jail for more than 12 years. He has responsibility of maintaining family members. He is a daily wager, illiterate and having village back ground.
9. Learned counsel for the accused appellant has submitted that he does not want to assail the finding of conviction recorded against the accused appellant on merits but prayed for leniency towards the accused appellant by reducing the sentence of imprisonment.
10. Learned A.G.A. has opposed the prayer for mercy and submitted that the offence of sexual assault has been committed by the accused appellant with a girl of 11 years of age.
11. P.W.3, prosecutrix has categorically stated that she was accompanied by her neighbouring friends, namely, Sunita and Anita visited Devi Jagaran where the accused appellant met her and he told the prosecutrix that she was called by her mother. Then he lifted her in his lap and took her to the Rly track behind the the temple and got her undressed and committed rape with the victim girl by inserting the male organ in her private part. When her parents reached by flashing their torch, the accused appellant fled away from the spot with clothes in his hand. She is a child witness.
12. In the case of Alagupandi @ Alagupandian v. State of Tamil Nadu in reference to Criminal Appeal No. 1315 of 2009 decided on 8.5.2012, the Hon''ble Apex Court in paragraph 23 has pleased to observe as follows:
"It is a settled principle of law that a child witness can be a competent witness provided statement of such witness is reliable, truthful and is corroborated by other prosecution evidence."
13. In the case of State of Rajasthan v. Chandgi Ram & Ors reference to Criminal Appeal No. 937 of 2008 decided on 9.9.2014 the Hon''ble Apex Court has highlighted the safeguards, which the Courts should undertake for appreciating the evidence of a child witness. The safeguards have been disclosed in paragraph 11, which are being reproduced below :
"The evidence of a child must reveal that he was able to discern between right and wrong and the court may find out from the cross-examination whether the defence lawyer could bring anything to indicate that the child could not differentiate between right and wrong. The court may ascertain his suitability as a witness by putting questions to him [pic] and even if no such questions had been put, it may be gathered from his evidence as to whether he fully understood the implications of what he was saying and whether he stood discredited in facing a stiff cross-examination. A child witness must be able to understand the sanctity of giving evidence on oath and the import of the questions that were being put to him. The law on the issue can be summarised to the effect that the deposition of a child witness may require corroboration, but in case his deposition inspires the confidence of the court and there is no embellishment or improvement therein, the court may rely upon his evidence. The evidence of a child witness must be evaluated more carefully with greater circumspection because he is susceptible to tutoring. Only in case there is evidence on record to show that a child has been tutored, the court can reject his statement partly or fully. However, an inference as to whether child has been tutored or not, can be drawn from the contents of his deposition. It is well settled in law that the court can rely upon the testimony of a child witness and it can form the basis of conviction if the same is credible, truthful and is corroborated by other evidence brought on record. Needless to say, the corroboration is not a must to record a conviction, but as a rule of prudence, the court thinks it desirable to see the corroboration from other reliable evidence placed on record. The principles that apply for placing reliance on the solitary statement of the witness, namely, that the statement is true and correct and is of quality and cannot be discarded solely on the ground of lack of corroboration, apply to a child witness who is competent and whose version is reliable."
14. It is settled proposition of law that the testimony of a child witness if found credible, reliable and inspiring confidence then there is no legal impediment in placing reliance upon the testimony of the such witness/prosecutrix for drawing the inference of guilt against the accused appellant. The court has taken precaution and has put question to her. After satisfying about the understanding of the prosecutrix, she has been examined by the court. The court is required to ensure that the prosecutrix is capable of understanding the question put to her and giving reply of the same. The prosecutrix has put to lengthy cross examination. She has reiterated her version of examination in chief by way of cross examination. She has fully corroborated the F.I.R. story. Her testimony is fully corroborated by medical evidence and finds support from the testimony of P.W.1 and P.W.2. She has made categorical statement about factum of sexual assault committed by the accused appellant.
15. Learned counsel for the appellant has not assailed the finding of conviction. Being the court of first appeal, by way of abundant precaution, we have gone through the finding of conviction recorded by the learned trial court. The finding of conviction are well substantiated from the evidence available on record. No interference is required with respect to the finding of conviction recorded by the learned trial court.
16. It has always been philosophy of sentencing that the punishment or sentence awarded should neither be harsh one nor it should not be lenient. The punishment should always be appropriate to the gravity of the offence and should meet the ends of justice.
17. Considering the facts and circumstances of the case, we are of the considered opinion that quantum of sentence awarded against the accused appellant warrants interference.
18. In view of aforesaid discussions, the appeal deserves to be partly allowed.
19. The appeal is partly allowed.
20. The conviction of the accused appellant, Yash Pal alias Kali for the offence under section 376(2)(f) I.P.C is maintained. The sentence for imprisonment for life is modified and reduced to ten years rigorous imprisonment without disturbing the sentence of fine.
21. The accused appellant is reported to be in jail. He shall be entitled to the benefit of section 428 Cr.P.C as per law.
22. Let a copy of this judgement and order alongwith record of lower court be transmitted forthwith to the learned trial court for compliance.
