# Om Prakash v. State of U.P. Opp. Party

- **Citation:** (2022) 11 ILRA 1183
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-11-15
- **Case number:** Crl. Appeal No. 2097 of 1982
- **Bench:** Samit Gopal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/om-prakash-v-state-of-u-p-opp-party-47981
- **Pages:** 17

## Headnote

Criminal Law- Indian Penal Code, 1860-
Section 376- Indian Evidence Act, 1872-
Section 3- The factum of rape thus does
not
remain
uncorroborative,
it
finds
support from the medical evidence alsoThe Chik FIR, the recovery memo of blood
stained clothes of victim 'X', her medical
examination report, the supplementary
medical examination report, the site plan
of the place of occurrence and the charge
sheet of the present matter which are on
record go to show that the genuineness of
all
the
said
documents
have
been
admitted by the defence and as such now
stating
that
the
doctor
and
the
Investigating Officer were not being
examined
by
the
prosecution,
would
render the prosecution story and the
entire trial doubtful does not hold good.

Where the defence has not questioned the
withholding of the Doctor and the investigating
officer and has admitted the documentary
1184 INDIAN LAW REPORTS ALLAHABAD SERIES
evidence authored by the said persons during
the trial then the said question cannot be raised
during appeal.

Indian Evidence Act, 1872- Section 3- It is
trite law that a related witness may not be
lebelled as interested witness. Interested
witnesses are those who want to derive
some benefit from the result of litigation
or implicating the accused. Once it is
established that witnesses were present
at the scene, to witness the occurrence,
they cannot be discarded merely on the
ground of being closely related to the
victim- Relationship is not sufficient to
discredit a witness unless there is motive
to give false evidence to spare the real
culprit and falsely implicate an innocent
person.

Merely because the witness is related to the
victim but his presence his wholly natural at the
spot, he cannot be labelled as an interested
witness.

Indian Evidence Act, 1872- Section 3 -The
testimony of a victim of rape is similar to
the evidence of an injured complainant or
witness. If it is found to be reliable, by
itself, it may be sufficient to convict the
accused and no corroboration of her
testimony is required.

Settled law that conviction can be secured by
the trial court solely upon the testimony of the
rape
victim
without
seeking
further
corroboration where the testimony of the victim
is credible and trustworthy.

Proportionality of Sentence-The accusedappellant as of now is aged about 68 years
as per observation of the trial court in his
statement recorded under Section 313
Cr.P.C.- The age of the appellant will have
no effect on the question of sentence and
also on the conviction of the appellant- It
is trite law that inadequacy of sentence is
not in the interest of justice and if a
person has been convicted and there is
evidence beyond reasonable doubt about
the same adequate sentence has to be
awarded to him- With regards to the
sentencing of the appellant, it is clear that
lacks of sufficient time and the age of the
accused cannot be a ground to extend any
benefit to him in the crime committed by
him.

Where the offence has been proved beyond
reasonable doubt against the accused then
merely the factum of the age of the appellant or
the duration of the pendency of the appeal
cannot be construed as a supervening or
mitigating factor for reducing the sentence.
(Para 21, 22, 23, 24, 25, 26,27, 32)

Criminal Appeal rejected. (E-3)

CaseLaw/ Judgements relied upon:-

## Text

_Characters 0–39,886 of 58,999. This is a partial read: ask again with offset=39886 for what follows._

11 All. Om Prakash Vs. State of U.P.
1183
It follows that unless Section 357 is read to
confer an obligation on the courts to apply
their mind to the question of compensation,
it would defeat the very object behind the
introduction of the provision."

28) Considering the facts and
circumstances of the present case as well as
keeping in view the position of law as
mentioned above and considering that the
incident was happened about 33 years
back; the incident was occurred in spur of
the moment; and considering the judgment
passed by Supreme Court in Roop Chand
vs. State (NCT) of Delhi, 2020 (3) ALT
(Crl.) 331 (A.P.) and Omanakkuttan and
others vs. State of Kerala, 2021 (115) ACC
747, this Court is of the view that if the
sentence awarded is reduced to the period
already
undergone
and
a
reasonable
compensation is awarded to the victim, the
ends of justice would be served.

29) In view of above, the appeal is
partly allowed. Judgment and order dated
21.10.1994 passed by IVth Additional
District and Sessions Judge, Kanpur Dehat,
in Sessions Trial No. 101 of 1992, is
hereby modified to the extent that accusedappellants, Ram Babu and Ram Prakash,
are convicted u/s 325 I.P.C. instead of
Section 308 r/w 34 I.P.C. as done by the
trial court.

30) Accused-appellants, Ram Babu
and Ram Prakash, are sentenced to the
period already undergone, provided they
deposit Rs. 4,000/- each as fine out of
which Rs. 4,000/- shall be paid to the
victim, PW1 Jagdish, within a period of
two months from today. In case fine is not
deposited, as directed above, appellants,
Ram Babu and Ram Prakash, shall undergo
the imprisonment for the period sentenced
by the trial court.

31) Lower court record along with a
copy of this judgment be sent back
immediately to District Court concerned for
compliance and further necessary action.
----------
(2022) 11 ILRA 1183
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 15.11.2022

BEFORE

THE HON'BLE SAMIT GOPAL, J.

Crl. Appeal No. 2097 of 1982

Om Prakash ...Appellant
Versus
State of U.P. ...Opp. Party

Counsel for the Appellant:
Sri Puran Chandra Joshi, Sri D.N. Wali, Sri K.K.
Misra, Pt. Pwan Chandra, Sri R.K. Dhama, Sri
Sudhir Dixit

Counsel for the Respondents:
A.G.A.

Criminal Law- Indian Penal Code, 1860-
Section 376- Indian Evidence Act, 1872-
Section 3- The factum of rape thus does
not
remain
uncorroborative,
it
finds
support from the medical evidence alsoThe Chik FIR, the recovery memo of blood
stained clothes of victim 'X', her medical
examination report, the supplementary
medical examination report, the site plan
of the place of occurrence and the charge
sheet of the present matter which are on
record go to show that the genuineness of
all
the
said
documents
have
been
admitted by the defence and as such now
stating
that
the
doctor
and
the
Investigating Officer were not being
examined
by
the
prosecution,
would
render the prosecution story and the
entire trial doubtful does not hold good.

Where the defence has not questioned the
withholding of the Doctor and the investigating
officer and has admitted the documentary
1184 INDIAN LAW REPORTS ALLAHABAD SERIES
evidence authored by the said persons during
the trial then the said question cannot be raised
during appeal.

Indian Evidence Act, 1872- Section 3- It is
trite law that a related witness may not be
lebelled as interested witness. Interested
witnesses are those who want to derive
some benefit from the result of litigation
or implicating the accused. Once it is
established that witnesses were present
at the scene, to witness the occurrence,
they cannot be discarded merely on the
ground of being closely related to the
victim- Relationship is not sufficient to
discredit a witness unless there is motive
to give false evidence to spare the real
culprit and falsely implicate an innocent
person.

Merely because the witness is related to the
victim but his presence his wholly natural at the
spot, he cannot be labelled as an interested
witness.

Indian Evidence Act, 1872- Section 3 -The
testimony of a victim of rape is similar to
the evidence of an injured complainant or
witness. If it is found to be reliable, by
itself, it may be sufficient to convict the
accused and no corroboration of her
testimony is required.

Settled law that conviction can be secured by
the trial court solely upon the testimony of the
rape
victim
without
seeking
further
corroboration where the testimony of the victim
is credible and trustworthy.

Proportionality of Sentence-The accusedappellant as of now is aged about 68 years
as per observation of the trial court in his
statement recorded under Section 313
Cr.P.C.- The age of the appellant will have
no effect on the question of sentence and
also on the conviction of the appellant- It
is trite law that inadequacy of sentence is
not in the interest of justice and if a
person has been convicted and there is
evidence beyond reasonable doubt about
the same adequate sentence has to be
awarded to him- With regards to the
sentencing of the appellant, it is clear that
lacks of sufficient time and the age of the
accused cannot be a ground to extend any
benefit to him in the crime committed by
him.

Where the offence has been proved beyond
reasonable doubt against the accused then
merely the factum of the age of the appellant or
the duration of the pendency of the appeal
cannot be construed as a supervening or
mitigating factor for reducing the sentence.
(Para 21, 22, 23, 24, 25, 26,27, 32)

Criminal Appeal rejected. (E-3)

CaseLaw/ Judgements relied upon:-

1. St. of U.P. Vs Kishanpal & ors : (2008) 16 SCC
73

2. St. of Maha. Vs Chandraprakash Kewalchand
Jain : (1990) 1 SCC 550

3. St. of U.P. Vs Chhotey Lal : (2011) 2 SCC 550

4. Hazara Singh Vs Raj Kumar & ors. : (2013) 9
SCC 516

5. Sahebrao Arjun Hon Vs Raosaheb s/o
Kashinath Hon & ors : Crla No. 1499 of 2022
(dec. on 06.09.2022)

6. Karan Singh Vs St. of U.P. & ors : Crla No.
327 of 2022 (dec. on 02.03.2022)

7. St. of Raj. Vs Banwari Lal & anr. : Diary No.
21596 of 2020 (dec. on 08.04.2022)
(Delivered by Hon'ble Samit Gopal, J.)

1. The present appeal under Section
374 Cr.P.C. has been filed by the appellant
Om Prakash against the judgement and
order dated 02.07.1982 passed by III
Additional District and Sessions Judge,
Meerut in Session Trial No. 4 of 1981
(State of U.P. Vs. Om Prakash) by which
he has been convicted and sentenced under
Section 376 IPC to undergo six years
rigorous imprisonment.
11 All. Om Prakash Vs. State of U.P.
1185

2. The name of the prosecutrix is not
being disclosed and mentioned in the
present judgment in the light of directions
of the Apex Court in various judgments and
as per Section 228-A of the Indian Penal
Code. She is thus referred to as ''X' in the
judgment.

3. The prosecution case as per an
application dated 04.10.1979 given by
Bakreeda to the police of which Dharmapal
is the scribe is that on that day at about
12:00 noon his daughter victim 'X' aged
about 10 years was mowing grass in the
field of Kaliram in the jungle of village
Jivana. Om Prakash son of Sukhvirey
Kumhar forcibly caught hold of his
daughter and took her to the jwar field and
committed rape on her on which she started
shouting, hearing which Dharmapal Singh
son of Ram Swarup Jaat, his son Ayyub
and Hashim son of Kutubuddin Darji of his
village who were working in the field went
to the place of occurrence and saw the
accused doing the act. They reached near
on which Om Prakash ran away. He was
chased but could not be apprehended. He
has brought his daughter victim 'X' for
lodging of the report. She is bleeding from
her private part. His report be lodged and
legal action be taken. The said application
is Exb: Ka-1 to the records.

4. On the basis of the said application,
a First Information Report was lodged on
04.10.1979 at 17:10 hrs as Case Crime No.
215 of 1979, under Section 376 IPC, Police
Station Binoli, District Meerut against the
accused-appellant Om Prakash son of
Sukhvirey. The Chik FIR is Exb: Ka-5 to
the records.

5. The Investigating Officer took into
possession the clothes of victim 'X' which
were blood stained and sealed it. A
recovery memo for the same was prepared
on 04.10.1979. Yoqoob Ali and Bakreeda
are the witnesses of the same. The same is
Exb: Ka-7 to the records.

6. Victim 'X' was medically examined
on 04.10.1979 at 08:00 pm at Womens
Hospital, Meerut by Dr. Rajni Gupta,
Medical Officer. She was brought by the
police constable. The doctor on physical
examination noted as follows:-

"Height 129, weight 52 LBS, teeth
14/14, hairs - pubic, auxiliary - absent,
breast - not developed."

On internal examination, the doctor
noted as follows:-

"Hymen freshly torn, erosion present,
admitting two fingers with great difficulty,
vagina is full of bleeding and clots, vagina
also heavily eroded."

Vaginal
smear
was
sent
for
pathological examination and x-ray of wrist
elbow and knee was advised. The doctor
opined that no report can be given about
the age at present. The patient was noted to
be admitted in general ward. The said
medical examination report is Exb: Ka-2 to
the records.

A supplementary medical report was
prepared on 29.10.1979 by Dr. Rajni
Gupta, the Medical Officer, Womens
Hospital, Meerut in which it was stated that
there was no sperm seen in the vaginal
smear. Further, the supplementary report
was as follows:-

"age of the girl is round about 10
years. Probably a case of rape according
to
the
examination."
The
said
supplementary report is Exb: Ka-3 to the
records.

7. The Investigating Officer prepared
site plan of the occurrence on 04.10.1979.
The same is Exb: Ka-6 to the records.
1186 INDIAN LAW REPORTS ALLAHABAD SERIES

8. The investigation concluded and a
Charge Sheet No. 112 of 1979 dated
04.12.1979 under Section 376 IPC against
the accused-appellant was submitted. The
same is Exb: Ka-4 to the records.

9. Vide order dated 16.09.1981 passed
by III Additional Sessions Judge, Meerut
charge under Section 376 IPC was framed
against the accused-appellant. He pleaded
not guilty and claimed to be tried.

10. The prosecution in order to prove
its case produced victim 'X' as PW-1,
Bakreeda the first informant and the father
of the victim 'X' as PW-2 and Ayyub the
brother of the victim 'X' and son of
Bakreeda as PW-3. The accused did not
lead any defence evidence.

11. The genuineness of certain
documents were admitted by the defence
and hence formal proof of the same was
dispensed with. The documents are as
follows:-

(i) Chik FIR Exb: Ka-5

(ii) Recovery memo of blood stained
clothes Exb: Ka-7

(iii) Medical examination of victim 'X'
Exb: Ka-2

(iv)
supplementary
medical
examination report Exb: Ka-3

(v) Site plan Exb: Ka-6 and

(vi) Charge sheet Exb: Ka-4.

12. Heard Sri Sudhir Dixit, learned
counsel for the appellant, Sri Sanjay Kumar
Singh, learned Additional Government
Advocate for the State and perused the
records.

13. Learned counsel for the appellant
argued that the doctor conducting the
medical examination of victim 'X' and also
preparing
the
supplementary
medical
examination report and the Investigating
Officer of the case have not been
examined. The same is a big dent to the
prosecution by not examining them. It is
next argued that the injuries as received by
victim 'X' noted by the doctor in the
medical examination report was due to an
accident.
It
is
further
argued
that
Dharampal and Hashim the alleged eye
witnesses of the incident as per the First
Information
Report,
have
not
been
produced in the trial and as such there is no
independent
witness
to
support
the
prosecution case.

14. It is further argued that the
accused was opined to be looking about 28
years old at that time as observed and
mentioned by the trial court in his
statement under Section 313 Cr.P.C. which
was recorded on 25.06.1982 and even
looking to the same he is now about 68
years of age as the said statement was
recorded about 40 years back. It is argued
that the incident in the present case is of the
year 1979 and 43 years have passed since
then and as such sending the appellant to
jail now, would be too harsh as he is about
68 years as of now.

15. Per contra, learned counsel for the
State opposed the arguments of learned
counsel for the appellant and argued that
the prosecution has proved its case beyond
reasonable doubt. The First Information
Report was lodged on the same day. The
medical examination report of the victim
'X' shows fresh bleeding injury present in
her vagina and supplementary medical
examination report opines that it is a case
of rape. Victim 'X' was aged about 10 years
and was a child. The appellant is named in
the First Information Report, statement of
victim 'X' and the other witnesses and the
11 All. Om Prakash Vs. State of U.P.
1187
role
is
consistent
throughout.
The
prosecution has been successful in proving
that rape has been committed upon victim
'X' and the evidence as produced without
any doubt shows the involvement of the
appellant. The present appeal deserves to
be dismissed.

16. Victim 'X' PW-1 when she was
produced before the trial court, was about
12 years of age. The trial court had put
certain questions to her to ascertain
whether she understands the sanctity of
oath and then being satisfied that she
understands it oath was administered to her.
She identifies the accused person who is
present in court and states that he is a
resident of her village. She states that the
incident is of about 21⁄2 years ago at about
12:00 in the afternoon. She was scrapping
grass in the field of Kaliram, the accused
Om Prakash came there and took her to the
field of brinjal. He forcibly took her to the
jwar field and then committed rape on her.
She shouted, on her shout, Hashim,
Dharampal and Ayyub came there. When
the witnesses came, the accused got up and
ran away. They chased him but could not
catch him. She was bleeding and her
clothes got blood stained. After the arrival
of the witnesses, her father also came to the
place of occurrence. She told him about the
incident. Her medical examination was
conducted.

In her cross examination, she states
that Ayyub is her real brother. Hashim is
the son of her tau. Accused Om Prakash is
son of Sukhvirey. She denies that her father
had purchased some land from Dharampal.
She denies the fact that her father had taken
Rs. 1,000/- from father of the accused to
purchase land and as he did not return it
there was some fight between them. She
states that there is no field near the place of
occurrence. There is a nali running parallel
to the jwar field of Kaliram which is about
one yard in breadth and is only one side of
field after the nali there is field of Kaliram.
Kaliram is the father of Ompal. The field of
Jai Chand is besides the field of Kaliram.
The field of Halku is besides the field of
Kaliram. She has seen the tubewell of Jai
Chand which is in his field. It is at some
distance from the jwar field of Kaliram, it
is about two lathi away from the jwar field.
Lathi is about the height of the waist of a
person. At that time there was no one at the
tubewell. She did not see anyone in the
nearby fields. There were some persons in
the orchard but she did not see them.
Orchard is about 4-5 yards away from the
jwar field. Her brother Ayyub and Hashim
had come from the same orchard. When
accused came and caught her hand she had
scrapped one bundle grass with a khurpi.
She had not seen accused Om Prakash
previously. In the field of Kaliram, half of
the jwar was cut and was lying, half of jwar
was standing. The accused caught hold of
her hand after going there on which she
shouted and continue to shout. The accused
took her from the said field to the field of
jwar which was about two lathi inside
where jwar was standing where she was
scrapping the grass. The jwar crop was near
it. It was upto half of the field and half of it
was vacant. The place of occurrence where
the accused threw her on the ground was
not having any jwar plants. The place was
empty as the jwar plants were cut. The
blood which had come out had also stained
the ground and her clothes. Hashim, Ayyub
and Dharampal came there and asked her as
to
who
committed
rape.
When
the
witnesses came there, the accused ran
away. Her brother Ayyub left her at the
field and went to the village and called her
father Bakreeda. Then Bakreeda took her to
the police station. She was first taken to the
1188 INDIAN LAW REPORTS ALLAHABAD SERIES
house and a report was written and then
went to the police from where she was
taken to Meerut Hospital by a constable.
She
denies
the
suggestion
that
the
Investigating Officer came to the village
and then the First Information Report was
written. She further denies that the accused
did not commit rape on her but her father
has lodged a false report.

17. Bakreeda PW-2 who is the first
informant and father of victim 'X' states
that victim 'X' is aged about 12 years as of
now. The incident is of about 21⁄2 years ago.
She had gone to the field of Kaliram in
village Jivana where she was raped in the
afternoon. His son Ayyub came to the
house and told him about the incident then
he reached there. He found his daughter
crying at the place of occurrence and blood
was coming out from her vagina. Her
clothes were blood stained. He brought her
to the house where he got a report
transcribed from Dharampal. The report
was written on his dictation which was read
to him and then he affixed his thumb
impression on it. He proves the same which
was marked as Exb: Ka-1 to the records.
He then brought his daughter with blood
stained clothes to the police station and
lodged his report. The clothes were taken
by the Investigating Officer and a recovery
memo was prepared. He identifies the
clothes which were marked as material
Exb: 1 and 2. He states that his daughter
told him about the incident at the place of
occurrence.

In his cross examination, he states that
he had purchased land of Dharampal. He
denies the suggestion that he had taken Rs.
1,000/- from Sukhhvirey and father of
accused for purchasing land. He further
denies that on not returning the money he
falsely implicated him in the present case.
He states that the place of occurrence is
about 500 yards away from his house.
When he reached the place of occurrence
his daughter was wearing of her clothes.
The crops were standing. He states that he
had got written in the application that
victim 'X' told him about the incident at the
place of occurrence. He states that he does
not know as to why the same is not
mentioned in it. He further states that
Dharampal had gone with victim 'X' to the
police station. From the police station he,
Dharampal, his son Ayyub and the
Investigating Officer went to the place of
occurrence. When they reached the place of
occurrence, there was one darati, some cut
grass
and
one
chadar
therein.
The
Investigating Officer had taken the items in
his possession. He denies the suggestion
that due to enmity on the saying of police
he has lodged a false report.

18. Kayyum PW-3 is the brother of
victim 'X' and the son of the first informant.
He states that his father had one brother
named Ibrahim who is dead. Ibrahim has
two sons namely Yusuf and Rais. Hashim
is not son of his tau. Election of village
pradhan is going on in his village. Witness
Dharmapal is a candidate in the same.
Dharamapal has colluded with accused Om
Prakash. Witness Hashim has also colluded
with Om Prakash. About 21⁄2 years back at
about 12:00 noon he was mowing grass in
the orchard, he heard a cry coming from the
jwar field of Kaliram. On hearing it, he and
Hashim ran towards the place. He saw
accused Om Prakash committing rape on
his sister victim 'X'. When they reached
near him, he got up and ran away. He was
chased but could not be caught.

In his cross examination he states that
the orchard in which he was working was
of Dhoom Singh. He was working since the
11 All. Om Prakash Vs. State of U.P.
1189
last four hours prior to the occurrence.
There is no one who guards the orchard.
There is no other orchard except for the
same nearby. He denies the suggestion that
he was digging grass at some other field in
the village. He states that the Investigating
Officer interrogated him on the same day
and he told him that he and Hashim were
digging grass at some distance from the
place of occurrence in a field of the village.
He denies the suggestion that he has said of
being in the orchard after knowing the
statement of victim 'X'. He showed the
orchard to the Investigating Officer. His
sister was shouting loudly. She was shouted
that Om Prakash has taken her and she may
be saved. He did not shout but ran to the
place silently. When he was about 10-12
yards away from the place of occurrence
then accused Om Prakash got up and ran
away. He reached the place through the
field of Halku Pandit. They did not raise
any shout prior to the accused getting up
and running away. The accused ran towards
the tubewell.

The Investigating Officer was shown
the way from where he ran. There is nali at
the south and east of the jwar field of
Kaliram. His sister was about two lathis
inside from east side of the field. The jwar
field is about 91⁄2 bighas. Half of the field
had jwar on it but half had no crop. The
place where his sister was lying was not
having any jwar plants. There was no
khurpi or darati at the place of occurrence
but there was a chadar near the nali which
was taken by the Investigating Officer. The
Investigating Officer came to the village at
about 05:00 pm. From police station, he
along with Investigating Officer, his father
and Yakoob came back to the village.
Munsi was the grandfather of Hashim. He
does not know how many brothers Munsi
has. Kubool is the father of Ibrahim. He
denies that Munsi is the brother of Kubool.
He further denies that he was not present at
the place of occurrence and did not see the
incident.

19. The accused in his statement
recorded under Section 313 Cr.P.C. denies
the prosecution case. He states that there
was a loan of Rs. 1,000/- on the first
informant of his father which was being
asked to him due to which he has been
falsely implicated. He was opined to be
about 28 years of age by the trial court on
the day of recording of his statement under
Section 313 Cr.P.C.

20. The trial court then convicted and
sentenced the accused appellant as stated
above.

21. After having heard learned
counsel for the parties and perusing the
records, it is evident that the appellant is
named in the First Information Report. The
victim 'X' is stated to be about 10 years of
age in the First Information Report and also
stated to be of the same age in the
supplementary medical examination report
by the doctor. The medical examination of
the victim 'X' shows injuries on her vagina.
The doctor did not give any opinion about
rape when she had medically examined the
victim ''X' but in the supplementary
medical
examination
report
gave
an
opinion that it is a probable case of rape
according to the examination. The factum
of
rape
thus
does
not
remain
uncorroborative, it finds support from the
medical evidence also. The age of the
victim 'X' as stated by her father in the FIR
also, in his statement and further from the
opinion
as
arrived
upon
through
radiological examination, she was aged
about 10 years and was a child. The
argument of learned counsel for the
appellant that the doctor conducting the
1190 INDIAN LAW REPORTS ALLAHABAD SERIES
medical examination of the victim 'X',
preparing
the
supplementary
medical
examination
report
and
also
the
Investigating Officer of the case have not
been examined which would dent the
prosecution case is fallacious. The Chik
FIR, the recovery memo of blood stained
clothes
of
victim
'X',
her
medical
examination report, the supplementary
medical examination report, the site plan of
the place of occurrence and the charge
sheet of the present matter which are on
record go to show that the genuineness of
all the said documents have been admitted
by the defence and as such now stating that
the doctor and the Investigating Officer
were
not
being
examined
by
the
prosecution, would render the prosecution
story and the entire trial doubtful does not
hold good.

22. On one hand, the defence has
admitted the genuineness of the said
documents during trial and on the other
hand in the appeal, the argument of maker
of the documents, not being examined and
thus calling upon to draw an adverse
inference is not at all impressive to the
Court. In so far as Dharampal and Hashim
are concerned, the reason for there non
production before the trial court has been
stated in the examination-in-chief by
Kayyum PW-3 that they have colluded
with the accused Om Prakash as there was
election of village Pradhan. On the said
point there has been no cross examination
from the side of the accused-appellant. The
same thus remains unrebutted.

23. Further, the argument of learned
counsel for the appellant that the accusedappellant as of now is aged about 68 years
as per observation of the trial court in his
statement recorded under Section 313
Cr.P.C., it is stated that the age of the
appellant will have no effect on the
question of sentence and also on the
conviction of the appellant. If the case has
been proved beyond reasonable doubt,
adequate sentence has to be awarded to
him. It is trite law that inadequacy of
sentence is not in the interest of justice and
if a person has been convicted and there is
evidence beyond reasonable doubt about
the same adequate sentence has to be
awarded to him.

24. In so far as the argument relating
to the PW-3 Kayyum is concerned, it is true
that he is the brother of the victim 'X' and
son of the first informant but it is trite law
that a related witness may not be lebelled
as interested witness. Interested witnesses
are those who want to derive some benefit
from the result of litigation or implicating
the accused. Once it is established that
witnesses were present at the scene, to
witness the occurrence, they cannot be
discarded merely on the ground of being
closely related to the victim. The Apex
Court in State of Uttar Pradesh Vs.
Kishanpal and others : (2008) 16 SCC 73
held as under:-

"18. The plea of defence that it would
not be safe to accept the evidence of the eye
witnesses who are the close relatives of the
deceased, has not been accepted by this
Court. There is no such universal rule as to
warrant rejection of the evidence of a
witness merely because he/she was related
to or interested in the parties to either side.
In such cases, if the presence of such a
witness at the time of occurrence is proved
or considered to be natural and the
evidence tendered by such witness is found
in
the
light
of
the
surrounding
circumstances and probabilities of the case
to be true, it can provide a good and sound
basis for conviction of the accused. Where
11 All. Om Prakash Vs. State of U.P.
1191
it is shown that there is enmity and the
witnesses are near relatives too, the Court
has a duty to scrutinize their evidence with
great care, caution and circumspection and
be very careful too in weighing such
evidence.
The
testimony
of
related
witnesses, if after deep scrutiny, found to be
credible cannot be discarded.

19. It is now well settled that the
evidence of witness cannot be discarded
merely on the ground that he is a related
witness, if otherwise the same is found
credible. The witness could be a relative
but that does not mean his statement should
be rejected. In such a case, it is the duty of
the Court to be more careful in the matter
of scrutiny of evidence of the interested
witness, and if, on such scrutiny it is found
that the evidence on record of such
interested witness is worth credence, the
same would not be discarded merely on the
ground that the witness is an interested
witness. Caution is to be applied by the
court while scrutinizing the evidence of the
interested witness.

20. It is well settled that it is the
quality of the evidence and not the quantity
of the evidence which is required to be
judged by the court to place credence on
the statement. The ground that the witness
being a close relative and consequently
being a partisan witness, should not be
relied upon, has no substance. Relationship
is not a factor to affect credibility of a
witness. It is more often than not that a
relation would not conceal actual culprit
and make allegations against an innocent
person. Foundation has to be laid if plea of
false implication is made. In such cases, the
Court has to adopt a careful approach and
analyse the evidence to find out whether it
is cogent and credible."

25. Relationship is not sufficient to
discredit a witness unless there is motive to
give false evidence to spare the real culprit
and falsely implicate an innocent person.

26. The testimony of a victim of rape
is similar to the evidence of an injured
complainant or witness. If it is found to be
reliable, by itself, it may be sufficient to
convict the accused and no corroboration of
her testimony is required. The same has
been held by the Apex Court in the case of
State
of
Maharashtra
Vs.
Chandraprakash Kewalchand Jain :
(1990) 1 SCC 550 in para 16 which is
extracted herein:

"16. A prosecutrix of a sex offence
cannot be put on par with an accomplice.
She is in fact a victim of the crime. The
Evidence Act nowhere says that her
evidence cannot be accepted unless it is
corroborated in material particulars. She is
undoubtedly a competent witness under
Section 118 and her evidence must receive
the same weight as is attached to an
injured in cases of physical violence. The
same degree of care and caution must
attach in the evaluation of her evidence as
in the case of an injured complainant or
witness and no more. What is necessary is
that the court must be alive to and
conscious of the fact that it is dealing with
the evidence of a person who is interested
in the outcome of the charge levelled by
her. If the court keeps this in mind and feels
satisfied that it can act on the evidence of
the prosecutrix, there is no rule of law or
practice incorporated in the Evidence Act
similar to illustration (b) to Section 114
which requires it to look for corroboration.
If for some reason the court is hesitant to
place implicit reliance on the testimony of
the prosecutrix it may look for evidence
which may lend assurance to her testimony
short of corroboration required in the case
of an accomplice. The nature of evidence
1192 INDIAN LAW REPORTS ALLAHABAD SERIES
required to lend assurance to the testimony
of the prosecutrix must necessarily depend
on the facts and circumstances of each
case. But if a prosecutrix is an adult and of
full understanding the court is entitled to
base a conviction on her evidence unless
the same is shown to be infirm and not
trustworthy.
If
the
totality
of
the
circumstances appearing on the record of
the case disclose that the prosecutrix does
not have a strong motive to falsely involve
the person charged, the court should
ordinarily have no hesitation in accepting
her evidence. We have, therefore, no doubt
in our minds that ordinarily the evidence of
a
prosecutrix
who
does
not
lack
understanding must be accepted. The
degree of proof required must not be higher
than is expected of an injured witness. For
the above reasons we think that exception
has rightly been taken to the approach of
the High Court as is reflected in the
following passage:

"It is only in the rarest of rare cases if
the court finds that the testimony of the
prosecutrix is so trustworthy, truthful and
reliable that other corroboration may not
be necessary."

With respect, the law is not correctly
stated. If we may say so, it is just the
reverse. Ordinarily the evidence of a
prosecutrix must carry the same weight as
is attached to an injured person who is a
victim of violence, unless there are special
circumstances which call for greater
caution, in which case it would be safe to
act on her testimony if there is independent
evidence
lending
assurance
to
her
accusation."

 (emphasis supplied)

27. The evidence of prosecutrix alone
may sustain a conviction, the same has
been held by the Apex Court in the case of
State of Uttar Pradesh Vs. Chhotey Lal :
(2011) 2 SCC 550 in para 26. The same is
extracted hereinbelow:-

"26. The important thing that the court
has to bear in mind is that what is lost by a
rape victim is face. The victim loses value
as a person. Ours is a conservative society
and, therefore, a woman and more so a
young unmarried woman will not put her
reputation in peril by alleging falsely about
forcible sexual assault. In examining the
evidence of the prosecutrix the courts must
be alive to the conditions prevalent in the
Indian society and must not be swayed by
beliefs in other countries. The courts must
be sensitive and responsive to the plight of
the female victim of sexual assault.
Society's belief and value systems need to
be kept uppermost in mind as rape is the
worst form of woman's oppression. A
forcible
sexual
assault
brings
in
humiliation, feeling of disgust, tremendous
embarrassment, sense of shame, trauma and
lifelong emotional scar to a victim and it is,
therefore, most unlikely of a woman, and
more so by a young woman, roping in
somebody falsely in the crime of rape. The
stigma that attaches to the victim of rape in
Indian society ordinarily rules out the
levelling of false accusations. An Indian
woman traditionally will not concoct an
untruthful story and bring charges of rape
for the purpose of blackmail, hatred, spite
or revenge."

28. Learned counsel for the appellant
had placed an argument that the appellant is
now aged about 68 years, the incident is of
the year 1979 and 43 years have passed
since then and as such sending the
appellant to jail would be too harsh. The
policy of sentencing of an accused has been
dealt with by the Apex Court in the case of
Hazara Singh Vs. Raj Kumar and others
: (2013) 9 SCC 516, in para 11 to 17 and
11 All. Om Prakash Vs. State of U.P.
1193
then in para 27 also. The same are extracted
hereinbelow:-

"11.
The
cardinal
principle
of
sentencing policy is that the sentence
imposed on an offender should reflect the
crime he has committed and it should be
proportionate to the gravity of the offence.
This Court has repeatedly stressed the
central role of proportionality in sentencing
of offenders in numerous cases.

12. The factual matrix of this case is
similar to the facts and circumstances of the
case in Shailesh Jasvantbhai and Another
vs. State of Gujarat wherein the accused
was convicted under Section 307/114 IPC
and for the same the trial Court sentenced
the accused for 10 years. However, the
High Court, in its appellate jurisdiction,
reduced the sentence to the period already
undergone. In that case, this Court held that
the sentence imposed is not proportionate
to the offence committed, hence not
sustainable in the eye of the law. This
Court, observed thus:

"7. The law regulates social interests,
arbitrates conflicting claims and demands.
Security of persons and property of the
people is an essential function of the State.
It could be 8 Page 9 achieved through
instrumentality
of
criminal
law.
Undoubtedly, there is a cross-cultural
conflict where living law must find answer
to the new challenges and the courts are
required to mould the sentencing system to
meet the challenges. The contagion of
lawlessness would undermine social order
and lay it in ruins. Protection of society
and stamping out criminal proclivity must
be the object of law, which must be
achieved
by
imposing
appropriate
sentence. Therefore, law as a cornerstone
of the edifice of "order" should meet the
challenges
confronting
the
society.
Friedman in his Law in Changing Society
stated
that:
"State
of
criminal
law
continues to be - as it should be -a decisive
reflection of social consciousness of
society." Therefore, in operating the
sentencing system, law should adopt the
corrective machinery or deterrence based
on factual matrix. By deft modulation,
sentencing 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.

8. Therefore, 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."

13. This position was reiterated by a
three-Judge Bench of this Court in Ahmed
Hussein Vali Mohammed Saiyed and Anr.
vs. State of Gujarat 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 9 Page
10operate 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
1194 INDIAN LAW REPORTS ALLAHABAD SERIES
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 and the society at large
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."

In that case, the court further goes to
state that meager sentence imposed solely
on account of lapse of time without
considering the degree of the offence will
be counter productive in the long run and
against the interest of the society.

14. In Jameel vs. State of Uttar
Pradesh, 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
process be stern where it should be, and
tempered with mercy where it 1 Page 11
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.

16.