# Badri Narayan v. State of U.P

- **Citation:** (2022) 9 ILRA 1650
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-08-06
- **Case number:** Criminal Appeal No. 4673 of 2019
- **Bench:** Suresh Kumar Gupta
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/badri-narayan-v-state-of-u-p-49060
- **Pages:** 12

## Headnote

A. Criminal Law - Criminal Procedure
Code,1973-Section 374(2)-Indian Penal
Code,1860- Sections 376, 506 IPC - 3/4
POCSO Act-Challenge to-Conviction-From
the statement of P.W.-1 and P.W.-2 it
appears that prosecution story is cogent,
credible and reliable-The prosecution is
able to prove its case beyond shadow of
doubt, therefore, prosecution has proved
the charges against the appellant under
Section 376 I.P.C. and Section 3/4 of the
POCSO Act-In the present case, it is clear
that the victim is below 10 than years and
the appellant is 58 years adult committed
rape upon a girl of tender age, so
deterrent punishment is called for- Since
the appellant has already undergone 8
years in jail thus, the awarded sentence is
reduced to the period already undergone
by the appellant-Therefore, the conviction
(Para 1 to 34)

B. Corroboration is not the sine qua non
for a conviction in a rape case. 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. "The rule, which according to the
cases has hardened into one of law, is not
that corroboration is essential before
there can be a conviction but that the
necessity of corroboration, as a matter of
prudence,
except
where
the
9 All. Badri Narayan Vs. State of U.P.
1651
circumstances make it safe to dispense
with it, must be present to the mind of the
judge, .... The only rule of law is that this
rule of prudence must be present to the
mind of the judge or the jury as the case
may
be
and
be
understood
and
appreciated by him or them. There is no
rule of practise that there must, in every
case, be corroboration before a conviction
can be allowed to stand." Further, it is
also a well settled principle of law that the
testimony of child witness can be relied
upon along with other circumstances and
corroborative evidence to convict the
accused.
Undoubtedly,
the
settled
proposition of law that the evidence of
child witness is required to be scrutinised
and appreciated with great caution. (Para
16,17)

C. The object of awarding appropriate
sentence should be to protect the society
and to deter the criminal from achieving
the avowed object to law by imposing
appropriate sentence. It is expected that
the courts would operate the sentencing
system so as to impose such sentence,
which reflects the conscience of the
society and the sentencing process has to
be stern where it should be. Any liberal
attitude by imposing meagre sentences or
taking too sympathetic view merely on
account of lapse of time in respect of such
offences will be result-wise counter-
productive in the long run and against the
interest of society which needs to be
cared for and strengthened by string of
deterrence
inbuilt
in
the
sentencing
system. (Para 28)

The appeal is partly allowed. (E-6)

List of cases cited:

## Text

_Characters 0–39,437 of 40,335. This is a partial read: ask again with offset=39437 for what follows._

1650 INDIAN LAW REPORTS ALLAHABAD SERIES
no chance for his survival any longer and
he would have met the instantaneous death.
The accused/appellants had intention to kill
the deceased.

51. Considering the facts, we are of the
considered opinion that the trial court has
discussed the entire evidence in detail and we
have
already
recorded
our
reasons
hereinabove for not accepting the stand taken
on behalf of the appellants. We hardly find
that there is any scope of doubt about the
date, time, and place of occurrence which
also established by the ocular testimony of
PW-1. The recovery of the weapons on their
pointing out, the utilization thereof and the
manner of assault by the appellants all stood
corroborated with the medical evidence and
further fortified by the post-mortem report.
We are also of the opinion that the inquest
proceedings also do not create any doubt. The
trial court is also fully justified in coming to
the conclusion that there was meeting of
mind established from the evidence on
record. The evidence on record also indicates
that all the accused had joined together on
spot
with
the
common
intention
of
committing murder of the deceased.

52. On close scrutiny of the evidence,
we do not find any error in appreciation of
evidences by learned trial court and arrive at
the conclusion of convicting the appellants.

53. Consequently, both the appeals,
being devoid of merit, are liable to be
dismissed and are hereby dismissed.
----------
(2022) 9 ILRA 1650
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 06.08.2022

BEFORE

THE HON'BLE SURESH KUMAR GUPTA , J.
Criminal Appeal No. 4673 of 2019

Badri Narayan ...Appellant
Versus
State of U.P. ...Opposite Party

Counsel for the Appellant:
Sri Amar Jeet Upadhyay

Counsel for the Opposite Party:
G.A.

A. Criminal Law - Criminal Procedure
Code,1973-Section 374(2)-Indian Penal
Code,1860- Sections 376, 506 IPC - 3/4
POCSO Act-Challenge to-Conviction-From
the statement of P.W.-1 and P.W.-2 it
appears that prosecution story is cogent,
credible and reliable-The prosecution is
able to prove its case beyond shadow of
doubt, therefore, prosecution has proved
the charges against the appellant under
Section 376 I.P.C. and Section 3/4 of the
POCSO Act-In the present case, it is clear
that the victim is below 10 than years and
the appellant is 58 years adult committed
rape upon a girl of tender age, so
deterrent punishment is called for- Since
the appellant has already undergone 8
years in jail thus, the awarded sentence is
reduced to the period already undergone
by the appellant-Therefore, the conviction
(Para 1 to 34)

B. Corroboration is not the sine qua non
for a conviction in a rape case. 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. "The rule, which according to the
cases has hardened into one of law, is not
that corroboration is essential before
there can be a conviction but that the
necessity of corroboration, as a matter of
prudence,
except
where
the
9 All. Badri Narayan Vs. State of U.P.
1651
circumstances make it safe to dispense
with it, must be present to the mind of the
judge, .... The only rule of law is that this
rule of prudence must be present to the
mind of the judge or the jury as the case
may
be
and
be
understood
and
appreciated by him or them. There is no
rule of practise that there must, in every
case, be corroboration before a conviction
can be allowed to stand." Further, it is
also a well settled principle of law that the
testimony of child witness can be relied
upon along with other circumstances and
corroborative evidence to convict the
accused.
Undoubtedly,
the
settled
proposition of law that the evidence of
child witness is required to be scrutinised
and appreciated with great caution. (Para
16,17)

C. The object of awarding appropriate
sentence should be to protect the society
and to deter the criminal from achieving
the avowed object to law by imposing
appropriate sentence. It is expected that
the courts would operate the sentencing
system so as to impose such sentence,
which reflects the conscience of the
society and the sentencing process has to
be stern where it should be. Any liberal
attitude by imposing meagre sentences or
taking too sympathetic view merely on
account of lapse of time in respect of such
offences will be result-wise counter-
productive in the long run and against the
interest of society which needs to be
cared for and strengthened by string of
deterrence
inbuilt
in
the
sentencing
system. (Para 28)

The appeal is partly allowed. (E-6)

List of cases cited:

1. Gopal Singh Vs St. of U.K. (2013) JT 3 SC 444

2. Guru Basavaraj @ Benne Settapa Vs St. of
Karn. (2012) 8 SCC 734

3. Jameel Vs St. of U.P. (2010) 12 SCC 532

4. Ahmed Hussein Vali Mohammed Saiyed &
anr. Vs St. of Guj. (2009) 7 SCC 254
5. Ravji Vs St. of Raj. (1992) 2 SCC 175

6. Dhananjoy Chatterjee Vs St. of W. B. (1994)
2 SCC 220

7. Sevaka Perumal etc. Vs St. of T.N. (1991) AIR
SC 1463

8. St. of Punj. Vs Ramdev Singh (2004) 48 ACC
300

9. St. of H.P. Vs Dharmapal (2004) 9 SCC Page
681

10. Rameshwar Vs St. of Raj. (1952) SCR 377,
386 : AIR 1952 SC 54 : 1952 Cri LJ 547

11. Gagan Bihari Samal Vs St. of Ori.(1991) 3
SCC 562

12. Yogesh Singh Vs Mahabeer Singh & ors.
(2016) AIR SC 5160

13. St. of H.P. Vs Dharmapal (2004) 9 SCC Page
681

14. St. of Punj. Vs Ramdev Singh (2004) 48 ACC
300

15. Shri Bodhisattwa Gautam Vs Miss Subhra
Chakraborty (1996) AIR SC 922

16. Sevaka Perumal etc. Vs St. of T.N. (1991)
AIR SC 1463

(Delivered by Hon'ble Suresh Kumar
Gupta, J.)

1. This criminal appeal has been filed
against the judgment and order dated
27.6.2019
passed
by
Special
Judge,
POCSO Act/Additional Sessions Judge,
Court No. 8 Meerut, in Special Criminal
Case No. 30 of 2015 arising out of Case
Crime No. 831 of 2014, under Sections
376, 506 IPC and 3/4 POCSO Act, P.S.
Inchauli, District Meerut in which the
appellant has been convicted and sentenced
for the offence under section 376 IPC for
10 years R.I. with fine of 10,000/- in
1652 INDIAN LAW REPORTS ALLAHABAD SERIES
default of payment of fine additional
imprisonment of 2 months, under section
506 IPC for 1 year R.I. with fine of Rs.
500/- in default of payment of fine
additional imprisonment of 15 days and for
under section 3/4 POCSO Act for 10 years
simple imprisonment and fine of Rs.
10,000/- and in default of payment of fine
additional imprisonment of 2 months.

2. Brief facts of the case is that F.I.R.
was lodged by the mother of the victim, who
is the complainant and the residence of Police
Station- Kuvad, District- Girideeh, District-
Jharkhand, presently residing in House No.
704, I Block, Ganganagar Meerut has lodged
a written report at Police Station- Inchauli
District- Mathura against the appellant with
the allegation that that one month prior her
maternal-father-in-law came for stay at her
home. One month prior of lodging the F.I.R.
the appellant committed rape upon her minor
daughter, who is aged about 8 years. When
on 10.11.2014 the condition of daughter
became deteriorated then her daughter was
checked up by the doctor and the doctor
opined that sexual assault has been done
against her daughter. Complainant enquired
with the victim then victim told that one
month earlier the appellant committed rape
upon her by extending threat to her daughter.
When the appellant was asked about the
alleged incident, then the appellant on the
behest of relationship requested for not
saying about this incident to anyone and told
that all the expenses on the treatment of her
daughter shall be borne by him. She also
stated that to create fear upon complainant,
the appellant himself inflicted injuries on his
neck and on account of injury on neck he was
admitted in medical college.

3. On the basis of written report, (Exbt.
Ka-1), F.I.R. was lodged against the appellant
as Case Crime No. 831 of 2014, under
Sections 376, 506 IPC and 3/4 POCSO Act,
P.S. Inchauli, District Meerut. After lodging
of the F.I.R. the investigation of the present
case was entrusted to the Investigating
Officer- S.I. Om Veer Gupta. During the
course of the investigation the site plan was
prepared. The statements of the complainant
and victim were also recorded. In the
statement of under Section 161 Cr.P.C. the
victim has stated that her age is about 8 years.
During the course of the investigation the
victim was also medically examined on
15.11.2014 in which she herself stated that
her maternal-grandfather committed rape
upon her 2-3 times. A medical examination
report was prepared by P.W.-5, Dr. Sangeeta
and as per medical examination report, no
external or internal injury was seen on the
body of the victim and her hymen was also
found intact. Vaginal smear was taken for
further examination and as per report dated
18.11.2014, no spermatozoa was seen on the
vaginal smear. During the course of the
investigation, the statement of the victim was
also recorded under Section 164 Cr.P.C. in
which she clearly stated that the appellant
committed penetrative sexually assaulted on
her private part by inserting the finger. Thus,
the victim has supported entire version of the
prosecution.

4. After completing the entire
formalities of investigation the charge sheet
was filed against the appellant before the
Additional
District
and
Sessions
Judge/Special Judge POCSO Act, Court
No. 12 on 26.2.2015. The charges were
framed on 25.1.2017 against the appellant
under Sections 376, 506 I.P.C. and 3/4
POCSO Act. Charges were read over to the
appellant. The appellant denied the charges
against him and claimed to be tried.

5. Prosecution in order to prove its
case examined
9 All. Badri Narayan Vs. State of U.P.
1653

(i)
P.W.-1,-Sangeeta,
who
is
complainant of this case, has clearly
supported the entire version of prosecution
and she proved the written report as Exbt-Ka1. She clearly stated in her statement that her
daughter/victim told her that the appellant
committed rape in the absence of the
complainant and her husband. She further
submitted that when the condition of the
victim became deteriorated then the victim
was examined by the doctor. In pursuance of
examination of the victim, the doctor opined
that the victim was sexually assaulted. When
she asked her daughter then her daughter
stated entire version to her mother. On the
basis of statement of her daughter the F.I.R.
was lodged by P.W.-1 by presenting the
written report as Exbt- Ka-1.

(ii) P.W.-2 is the victim and in her
statement recorded in October, 2015 she
stated that the appellant committed rape upon
her by extending threat. She clearly stated
that the appellant inserted his finger in her
private part and he had also shown the victim
indecent film/picture on his mobile phone. He
also extended threat to kill her for disclosing
this incident to anyone. The victim is minor
and the age of the victim was below than 10
years. The victim has also supported her
previous version recorded under Section 161
Cr.P.C. in the statement recorded under
Section 164 Cr.P.C. as Exbt. Ka-2.

(iii ) P.W.-3, constable, namely,
Gudia has clearly stated on the basis of
written report that she registered the F.I.R.
on 15.11.2014 against the appellant as Case
crime No. 831 of 2014 under Section 376,
506 I.P.C. and 3/4 of the POCSO Act and
thus she proved the chik F.I.R. as Exbt- Ka3 and the general diary as Exbt- Ka-4.

(iv)
P.W.-4-
Investigating
Officer/S.I. Om Veer Gupta proved the
scatch map of the place of occurrence as
Exbt- Ka-5 and charge sheet as Exbt- Ka-6.

(v)
P.W.-5-
Dr.
Sangeeta
examined the victim on 15.11.2014 and she
stated that at the time of examination of the
victim she opined that the victim was
unmarried and was aged about 8 years. The
menses of the girl was not started. At the
time of examination of the girl, no external
or internal injury was found on the body of
the victim. She proved the medical report
as Exbt- Ka-7. She clearly stated that
hymen of the victim was intact. As per
medical
examination, no
external
or
internal injuries was seen on the body of
the victim and it is also stated in her
statement that in vaginal smear no
spermatozoa dead or alive seen.

Thus, the prosecution relied upon
as oral evidence of P.W.1 to P.W.-5 and so
far as documentary evidence is concerned
the prosecution relied upon Exbt. Ka-1 to
Exbt- Ka-7.

6. After conclusion of the trial the
statement of the accused-appellant was
recorded under Section 313 Cr.P.C. in
which the entire prosecution evidence were
read over to the appellant and the appellant
submitted that all the witnesses stated false
statement against him before the court.
Although he stated that that he wants to
lead evidence in his defence but no defence
witness or document was produced by the
appellant.

7. Lastly, in statement under Section
313 Criminal Procedure Code the appellant
stated that the complainant- Sangeeta
inflicted cut injury on the neck of the
appellant by sharp edged weapon and when
she came to know that the appellant had not
got any serious injury then she lodged false
1654 INDIAN LAW REPORTS ALLAHABAD SERIES
and frivolous F.I.R. on the basis of
concocted
story
relating
to
sexual
exploitation of her daughter.

8. After appreciating and considering
the rival contentions of the parties and
scrutinizing the evidence, the learned trial
court held the accused guilty and convicted
him for the charged offences as aforesaid.

9. Learned counsel for the appellant
argued that the appellant is innocent and
has been falsely implicated in this case. It is
also submitted that the F.I.R. lodged
against the applicant is too much delay so
no reliance can be placed, as the delay in
lodging in the F.I.R. itself belied the
prosecution case. He also submitted that the
appellant is aged about 60 years and closed
relative of complainant. In fact, the
complainant has taken money from the
accused/appellant and when the appellant
asked
about
him
money
from
the
complainant, then the complainant inflicted
injury to the appellant and cut his neck by
knife in which the appellant received
serious injury on neck and was admitted at
LLRM Medical College, Meerut. When the
complainant was in apprehension that the
appellant may die then to save her skin and
save herself from any criminal proceedings
the complainant registered false and
frivolous case of rape against the appellant.
It was further stated that as per medical
examination no mark of internal or external
injury was seen on the body of the victim
and hymen was intact. Therefore, no
question of rape arises. Thus, the learned
trial court has committed material illegality
and irregularity in convicting the appellant
in the present case. Thus, the conviction of
the appellant was only on the basis of
conjectures and surmises. Thus, the order
and judgment of the trial court is liable to
set aside.

10. Learned counsel for the appellant
submits that if this Court has come to
conclusion that allegation against the
appellant is well proved then he wants to
advance his submission on the quantum of
sentence imposed upon accused-appellant,
therefore, he submits that the appellant is
senior
citizen
and
is
in
jail
since
29.11.2014. Thus, he remained in jail
during investigation during entire period of
trial and during pendency of appeal, thus,
appellant is languishing in jail about 7
years and 8 months, so he prays for
leniency.

11. Learned A.G.A. opposed the
argument raised by the learned counsel for
the appellant and submitted that the
arguments of the appellant has no force and
the present appeal is liable to be dismissed.
Learned A.G.A. also submitted that as per
medical report redness and swelling was
found on the private part of the girl.
Penetrative
sexual
assault
has
been
committed by the appellant. One of the
arguments of the learned counsel for the
appellant is that no mark of injury was seen
on the body of the victim. It was also reported
that hymen was intact and no spermatozoa
was found on the private part of the victim in
the vaginal smear of the victim and therefore,
offence under Section 376 I.P.C. and 3/4 of
the POCSO Act is not made out against the
appellant. In reply to this contention of the
learned counsel for the appellant, learned
A.G.A. relied upon the provisions of Section
375 I.P.C. and Section 3 of the POCSO Act
be read.

12. I have heard Sri Amar Jeet
Upadhyay, learned counsel for the appellant,
learned A.G.A. and perused the record.

13. The provisions of Section 375-b
I.P.C. is given below:-
9 All. Badri Narayan Vs. State of U.P.
1655

375. Rape.-- A man is said to
commit "rape" if he--

(a) ------------

(b) inserts, to any extent, any
object or a part of the body, not being the
penis, into the vagina, the urethra or anus
of a woman or makes her to do so with him
or any other person; or

The provisions of Section 3-b of
the POCSO Act is given below:-

Section
3-Penetrative
sexual
assault

A person is said to commit
"penetrative sexual assault" if--

(a) -------

(b) he inserts, to any extent, any
object or a part of the body, not being the
penis, into the vagina, the urethra or anus
of the child or makes the child to do so
with him or any other person; or

Thus, on the perusal of the the
definition of Section 375-b and Section 3 of
the POCSO Act it appears that offence
under Section 376 I.P.C. and 3/4 of the
POCSO Act is made out against the
appellant, so it cannot be said that the
appellant has wrongly been convicted by
the trial court. Thus, if the appellant
inserted his finger in private part of the
child/victim then it cannot be said that the
appellant is not guilty of offence of rape.

14. One of the contentions of the
learned counsel for the appellant is that
F.I.R. was lodged with inordinate delay
thus no reliance can be placed and delay in
lodging the F.I.R. itself belies the whole
prosecution story. Hon'ble Supreme Court
in a catena of judgement has held that mere
delay in lodging the FIR is no ground to
doubt the prosecution case when it is
properly explained. 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 scope for an adverse inference leading
to rejection of the prosecution case
outright. 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.
On perusal of the statement of P.W.-1, it
appears that delay is clearly explained by
the complainant thus delay in lodging the
F.I.R. does not affect the credibility of
prosecution version.

15. It is a settled principle of law that
in cases involving sexual assault/rape, it is
generally difficult to find any corroborative
witnesses, except the victim herself and
therefore, the evidence of the victim is
sufficient for conviction unless there exist
compelling
reasons
for
seeking
corroboration. Thus, a conviction can be
sustained on the sole testimony of the
prosecutrix, if it inspires confidence. The
Apex Court has time and again held that
the sole testimony of the prosecutrix is
sufficient to hold the accused guilty if it
inspires confidence and the same principles
have been reiterated in Vijay v. State of
Madhya Pradesh reported in (2010) 8
SCC 191. Relevant paragraph of the

"14. Thus, the law that emerges
on the issue is to the effect that the
statement of the prosecutrix, if found to be
worthy of credence and reliable, requires
no corroboration. The court may convict
1656 INDIAN LAW REPORTS ALLAHABAD SERIES
the accused on the sole testimony of the
prosecutrix."

16. In Gagan Bihari Samal v. State
of Orissa reported as (1991) 3 SCC 562,
The Hon'ble Supreme Court of India whilst
observing that corroboration is not the sine
qua non for conviction in a rape case, held
as follows :

"6. In cases of rape, generally it
is difficult to find any corroborative
witnesses except the victim of the rape. It
has been observed by this Court in
Bharwada Bhoginbhai Hirjibhai v. State of
Gujarat [(1983) 3 SCC 217 : 1983 SCC
(Cri) 728 : AIR 1983 SC 753] as follows:

"Corroboration is not the sine
qua non for a conviction in a rape case. 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.

A girl or a woman in the tradition
bound non-permissive society of India
would be extremely reluctant even to admit
that any incident which is likely to reflect
on her chastity had ever occurred. She
would be conscious of the danger of being
ostracized by the society or being looked
down by the society including by her own
family members, relatives, friends, and
neighbours. She would face the risk of
losing the love and respect of her own
husband and near relatives, and of her
matrimonial home and happiness being
shattered. If she is unmarried, she would
apprehend that it would be difficult to
secure an alliance with a suitable match
from a respectable or an acceptable family.
In view of these and similar factors, the
victims and their relatives are not too keen
to bring the culprit to book. And when in
the face of these factors the crime is
brought to light there is a built-in
assurance that the charge is genuine rather
than fabricated."

The above observation has been
made by Apex Court relying on the earlier
observations made by Apex Court in
Rameshwar v. State of Rajasthan [1952
SCR 377, 386 : AIR 1952 SC 54 : 1952 Cri
LJ 547] with regard to corroboration of
girl's testimony and version. Vivian Bose,
J., who spoke for the Court observed as
follows: (SCR p. 386)

"The rule, which according to the
cases has hardened into one of law, is not
that corroboration is essential before there
can be a conviction but that the necessity of
corroboration, as a matter of prudence,
except where the circumstances make it
safe to dispense with it, must be present to
the mind of the judge, .... The only rule of
law is that this rule of prudence must be
present to the mind of the judge or the jury
as the case may be and be understood and
appreciated by him or them. There is no
rule of practise that there must, in every
case, be corroboration before a conviction
can be allowed to stand."

17. Further, it is also a well settled
principle of law that the testimony of child
witness can be relied upon along with other
circumstances and corroborative evidence
to convict the accused. Undoubtedly, the
settled proposition of law that the evidence
of child witness is required to be
9 All. Badri Narayan Vs. State of U.P.
1657
scrutinised and appreciated with great
caution. In this regard, reference can be
made to the dicta of the Apex Court in the
case of Yogesh Singh v. Mahabeer Singh
and others reported in AIR 2016 SC 5160,
wherein the Apex Court has held that:

"22. It is well settled that the
evidence of a child witness must find
adequate corroboration, before it is relied
upon as the rule of corroboration is of
practical wisdom than of law. (See Prakash
v. State of M.P. [Prakash v. State of M.P.,
(1992) 4 SCC 225 : 1992 SCC (Cri) 853] ,
Baby Kandayanathil v. State of Kerala
[Baby Kandayanathil v. State of Kerala,
1993 Supp (3) SCC 667 : 1993 SCC (Cri)
1084] , Raja Ram Yadav v. State of Bihar
[Raja Ram Yadav v. State of Bihar, (1996)
9 SCC 287 : 1996 SCC (Cri) 1004] , Dattu
Ramrao Sakhare v. State of Maharashtra
[Dattu Ramrao Sakhare v. State of
Maharashtra, (1997) 5 SCC 341 : 1997
SCC (Cri) 685] , State of U.P. v. Ashok
Dixit [State of U.P. v. Ashok Dixit, (2000) 3
SCC 70 : 2000 SCC (Cri) 579] and
Suryanarayana v. State of Karnataka
[Suryanarayana v. State of Karnataka,
(2001) 9 SCC 129 : 2002 SCC (Cri) 413] .)

23. However, it is not the law that
if a witness is a child, his evidence shall be
rejected, even if it is found reliable. The
law is that evidence of a child witness must
be evaluated more carefully and with
greater circumspection because a child is
susceptible to be swayed by what others tell
him and thus a child witness is an easy prey
to tutoring. (Vide Panchhi v. State of U.P.
[Panchhi v. State of U.P., (1998) 7 SCC
177 : 1998 SCC (Cri) 1561] )"Appreciation
of testimony of the Victim 'T

18. In view of settled law, I shall
examine whether the evidence adduced by
the prosecution, particularly the testimony
of the victim, is trustworthy, credible and
can be relied upon. From the perusal of the
record, it transpires that the prosecutrix has
deposed on same lines and there are no
material contradictions in her testimony.
The statement of the victim, P.W.-2 is duly
supported with the statement of P.W.-1-
Sangeeta, mother of the victim. The
statement of the victim is also supported
with medical evidence.

19. One of the arguments of the
learned counsel for the appellant is that no
mark of injury is present on the body of the
victim but there is no force in the
contention that there is forcible intercourse
and it would have resulted into some injury
on the prosecutrix. Presence of injury are
not always sine qua non to prove the charge
of rape. It would be kept in mine in the case
of rape on a girl- child, who is aged about 8
years and not upon a grownup woman. In
case of rape upon a child, sensitive
approach of court is always needed. In the
present case, the appellant has been charges
for inserting finger in the private part of the
victim, so question of rapture of hymen is
not inevitable.

20. Further there are catena of
decisions of Hon'ble Apex Court that it is
necessary for the court to have a sensitive
approach when dealing with the cases of
rape. It is also trite that in the case of State
of Himachal Pradesh Vs. Dharmapal,
(2004) 9 SCC Page 681, Hon'ble Apex
Court held that "rape is a serious offence,
as it leads to an assault on the most
valuable possession of a woman i.e.
character, reputation, dignity and honour."

21. In State of Punjab Vs. Ramdev
Singh 2004 (48) ACC 300 Hon'ble Apex
Court held as under:-
1658 INDIAN LAW REPORTS ALLAHABAD SERIES

"Sexual
violence
apart
from
being a dehumanizing act is an unlawful
intrusion on the right of privacy and
sanctity of a female. It is a serious blow to
her supreme honour and offends her selfesteem and dignity. It degrades and
humiliates the victim and where the victim
is a helpless innocent child or a minor. It
leaves behind a traumatic experience. A
rapist not only causes physical injuries but
more indelibly leaves a scar on the most
cherished possession of a woman i.e. her
dignity, honour, reputation and not the
least her chastity. Rape is not only a crime
against the person of a woman, it is a crime
against the entire society. It destroys, as
noted by Apex Court in Shri Bodhisattwa
Gautam Vs. Miss Subhra Chakraborty, AIR
1996 SC 922 the entire psychology of a
woman and pushes her into deep emotional
crisis. It is a crime against basic human
rights, and is also violative of the victim's
most cherished of the Fundamental Rights,
namely, the Right to Life contained in
Article 21of the Constitution of India, 1950
(in short the 'Constitution'). The Courts
are, therefore, expected to deal with cases
of sexual crime against women with utmost
sensitivity. Such cases need to be dealt with
sternly and severely. A socially sensitized
judge, in our opinion, is a better statutory
armour in cases of crime against women
than long clauses of penal provisions,
containing
complex
exceptions
and
provisos."

22. Considering the entire facts and
circumstances of the present case, the Court
is of the view that the prosecution is able to
prove the charges levelled against the
appellant.

23. However, learned counsel for the
appellant stated that if this Court finds that
prosecution is able to prove his case, then
he only wants to advance his submission on
the quantum of sentence imposed upon the
accused and prays for leniency.

24. Not pressing the criminal appeal
after the conviction of the accused by the
court below is like the confession of the
offence by the accused. The Courts
generally take lenient view in the matter of
awarding sentence to an accused in
criminal
trial,
where
he
voluntarily
confesses his guilt, unless the facts of the
case warrants severe sentence.

25. In the case of Sevaka Perumal
etc. Vs. State of Tamil Nadu AIR 1991 SC
1463, the Apex Court in the matter of
awarding proper sentence to the accused in
a criminal trial has cautioned the Courts as
under:

"Undue sympathy to impose
inadequate sentence would do more harm
to the justice system to undermine the
public confidence in the efficacy of law and
society could not long endure under such
serious threats. It is, therefore, the duty of
every court to award proper sentence
having regard to the nature of the offence
and the manner in which it was executed or
committed etc."

26. In the case of Dhananjoy
Chatterjee Vs. State of W. B. [1994] 2 SCC
220,
this
Court
has
observed
that
shockingly large number of criminals go
unpunished
thereby
increasingly,
encouraging the criminals and in the
ultimate
making
justice
suffer
by
weakening the system's credibility. The
imposition of appropriate punishment is the
manner in which the Court responds to the
society's cry for justice against the criminal.
Justice demands that Courts should impose
punishment befitting the crime so that the
Courts reflect public abhorrence of the
9 All. Badri Narayan Vs. State of U.P.
1659
crime. The Court must not only keep in view
the rights of the criminal but also the rights of
the victim of the crime and the society at
large while considering the imposition of
appropriate punishment. Similar view has
also been expressed in Ravji v. State of
Rajasthan, [1996] 2 SCC 175. It has been
held in the said case that it is the nature and
gravity of the crime but not the criminal,
which are germane for consideration of
appropriate punishment in a criminal trial.
The Court will be failing in its duty if
appropriate punishment is not awarded for a
crime which has been committed not only
against the individual victim but also against
the society to which the criminal and victim
belong. The punishment to be awarded for a
crime must not be irrelevant but it should
conform to and be consistent with the atrocity
and brutality with which the crime has been
perpetrated, the enormity of the crime
warranting public abhorrence and it should
"respond to the society's cry for justice
against the criminal". If for extremely
heinous crime of murder perpetrated in a very
brutal manner without any provocation, most
deterrent punishment is not given, the case of
deterrent punishment will lose its relevance.

27. Appropriate sentence is the cry of
the society. It is, therefore, the duty of
every court to award proper sentence
having regard to the nature of the offence
and the manner in which it was executed or
committed.

28. This position was reiterated by a
three-Judge Bench of the Apex Court in
Ahmed Hussein Vali Mohammed Saiyed
and Anr. vs. State of Gujarat, (2009) 7
SCC 254, wherein it was observed as
follows:-

"99.....The object of awarding
appropriate sentence should be to protect
the society and to deter the criminal from
achieving the avowed object to law by
imposing
appropriate
sentence.
It
is
expected that the courts would operate the
sentencing system so as to impose such
sentence, which reflects the conscience of
the society and the sentencing process has
to be stern where it should be. Any liberal
attitude by imposing meager sentences or
taking too sympathetic view merely on
account of lapse of time in respect of such
offences
will
be
result-wise
counter
productive in the long run and against the
interest of society which needs to be cared
for and strengthened by string of deterrence
inbuilt in the sentencing system.

100. Justice demands that courts
should impose punishment befitting the
crime so that the courts reflect public
abhorrence of the crime.

The court must not only keep in
view the rights of the victim of the crime
but the society at large also while
considering the imposition of appropriate
punishment. The court will be failing in its
duty if appropriate punishment is not
awarded for a crime which has been
committed not only against the individual
victim but also against the society to which
both the criminal and the victim belong."

29. In Jameel vs. State of Uttar
Pradesh (2010) 12 SCC 532, this Court
reiterated the principle by stating that the
punishment must be appropriate and
proportional to the gravity of the offence
committed. Speaking about the concept of
sentencing, this Court observed thus:

"15. In operating the sentencing
system, law should adopt the corrective
machinery or deterrence based on factual
matrix. By deft modulation, sentencing
1660 INDIAN LAW REPORTS ALLAHABAD SERIES
process be stern where it should be, and
tempered with mercy where it warrants to
be. The facts and given circumstances in
each case, the nature of the crime, the
manner in which it was planned and
committed, the motive for commission of
the crime, the conduct of the accused, the
nature of weapons used and all other
attending circumstances are relevant facts
which would enter into the area of
consideration.

It is the duty of every court to
award proper sentence having regard to the
nature of the offence and the manner in
which it was executed or committed. The
sentencing courts are expected to consider
all relevant facts and circumstances bearing
on the question of sentence and proceed to
impose a sentence commensurate with the
gravity of the offence."

30. In Guru Basavaraj @ Benne
Settapa vs. State of Karnataka, (2012) 8
SCC 734, while discussing the concept of
appropriate sentence, this Court expressed
that:

"It is the duty of the court to see
that appropriate sentence is imposed regard
being had to the commission of the crime
and its impact on the social order. The cry
of the collective for justice, which includes
adequate punishment cannot be lightly
ignored."

31. In Gopal Singh vs. State of
Uttarakhand JT 2013 (3) SC 444 held as
under:-

"18. Just punishment is the
collective cry of the society. While the
collective cry has to be kept uppermost in
the mind, simultaneously the principle of
proportionality between the crime and
punishment cannot be totally brushed aside.
The principle of just punishment is the
bedrock of sentencing in respect of a
criminal offence....."

32. On perusal of the entire record,
considering the facts and circumstances of
the present case and keeping in view of the
statement of P.W.-1 and P.W.-2 it appears
that prosecution story is cogent, credible
and reliable. The prosecution is able to
prove its case beyond shadow of doubt,
therefore, prosecution has proved the
charges against the appellant under Section
376 I.P.C. and Section 3/4 of the POCSO
Act. In the present case, it is clear that the
victim is below 10 than years and the
appellant is 58 years adult committed rape
upon a girl of tender age, so deterrent
punishment is called for. Taking lenient
view is out of question. Once a person is
convicted for offence of rape, he should be
treated with heavy hands and he is not
deserving
any
indulgence
or
liberal
attitude. Awarding of adequate sentence to
him is not important.

33. On the present scenario the
appellant is in jail since 29.11.2014 and
during investigation and trial the appellant
remained in jail. After conviction he was
also in jail. Thus, presently he in
incarceration for about 8 years. It is also
admitted that the appellant is poor. During
trial he was not represented by counsel of
his choice, so the contention of learned
counsel for the appellant to adopt a lenient
view in awarding the sentence to the
appellant is fully acceptable.

34. Therefore, the conviction of the
appellant is confirmed under Section 376
I.P.C. and Section 4 of the POCSO Act.
Thus, on the point of conviction the appeal
is dismissed. So far as regards the quantum
9 All. Ishrar Ahmad @ Mintu Vs. State of U.P.
1661
of sentence is concerned, I considered that
the minimum sentence of seven years is
prescribed for offence under Section 376
I.P.C.
and
Section
4
POCSO
Act.
Therefore, keeping in view the facts and
circumstances of the present case, I am of
the view that end of justice would be
served, if the appellant is sentenced to
imprisonment for the period, which he has
already undergone, consequently awarded
sentence is reduced to the period already
undergone
by
the
appellant-Badri
Narayan. It is hereby also directed that the
fine clause shall be unaltered. Appellant is
directed to deposit the fine of Rs. 10,000/-
before the trial court. The deposited amount
i.e. Rs. 10,000/- shall be awarded in favour
of the victim under Section 357 (2) Cr.P.C..
Thus, this appeal is partly allowed on the
point of sentence only.

35. With the above observations/
directions, this appeal is disposed of.

36. Let a copy of this order along with
lower court record be transmitted back to
the trial court concerned for necessary
compliance. A copy of this order be also
given to the Superintendent of Jail of the
concerned District for compliance of order
of this Court
----------
(2022) 9 ILRA 1661
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 18.08.2022

BEFORE

THE HON'BLE SUNEET KUMAR, J.
THE HON'BLE UMESH CHANDRA SHARMA, J.

Criminal Appeal No. 4875 of 2014
With
Criminal Appeal No. 4713 of 2014
And
Criminal Appeal No. 1844 of 2015
Ishrar Ahmad @ Mintu ...Appellant
Versus
State of U.P. ...Opposite Party

Counsel for the Appellant:
Sri Anubhav Chandra, Sri Devendra Mohan
Singh, Sri Lallan Verma, Sri Mangala Prasad
Rai, Sri Manoj Kumar Singh, Sri Ram Jatan
Yadav, Sri Shivajee Srivastava

Counsel for the Opposite Party:
Govt. Advocate

A. Criminal Law - Criminal Procedure
Code,1973-Section 374(2) - Indian Penal
Code,1860-Sections 376 (2) (g), 307 302
-
Challenge
to-Conviction-Dying
declaration-
The
accused
persons
committed rape with the victim-deceased
very cleverly, cunningly and to avoid
public
shame
the
victim-deceased
committed suicide-The dying declaration
of the deceased regarding gang rape by
the accused persons has been reiterated
in her statement to her parents, I.O. or
Magistrate
and
this
fact
is
duly
corroborated by the medical evidence and
the report of Forensic Science LaboratoryP.W 5 - Dr.