Hon'ble RAFIQ, J.—These two appeals are directed against the common judgment dated 25.1.2007 passed by learned Special Judge Atrocities on Women and Dowry Cases Kota in Sessions Case No. 18/2006 whereby, both the accused-appellants-Ghanshyam @ Ghansu and Vishal @ Babu were convicted for offence u/S. 376(2)(G) IPC and sentenced to life imprisonment with fine of Rs. 5000/- and in default of payment of fine, they were required to further undergo simple imprisonment of two months, convicted for offence u/S. 366 IPC and sentenced to rigorious imprisonment of five years with fine of Rs. 2000/- and in default of payment of fine, they were required to further undergo simple imprisonment of one month and convicted for offence u/S. 342 IPC and sentenced to rigorous imprisonment of one year with fine of Rs. 1000/- and in default of payment of fine, they were required to further undergo simple imprisonment of fifteen days. Accused-appellant Ghanshyam @ Ghansu was additionally convicted for offence u/S. 4/25 of the Arms Act and sentenced to rigorous imprisonment of two years with fine of Rs. 2000/- and in default of payment of fine, he was required to further undergo simple imprisonment of one month. All the sentences were directed to run concurrently. 2 The first information report bearing No. 84/2006 was registered with Police Station Mahaveer Nagar, Kota for offence u/Ss. 365,(6), 342 and 34 IPC on 8.3.2006 on the basis of parcha bayan of Kumari Chandrakala, aged 20 years recorded at 1.40 PM in M.B.S. Hospital, Kota about the incident which allegedly took place at 6.00 PM on 7.3.2006. In the parcha bayan, it was alleged that in the evening of 7.3.2006 at 6.00 p.m., when she was returning from House No. 1-G-21, Mahavir Nagar-III of her grand-mother, two persons met her in front of the street adjacent to the house of her grand-mother's house of her grand-mother's house on the motorcycle. One person asked her to sit on the motorcycle, but she refused. However, they forcibly took her on their motorcycle to a room situated in the park of Vigyan Nagar. One person in the room took off her clothes and committed rape upon her Thereafter, second accused person also committed rape upon her. These person threatened her not to tell anybody about the incident; otherwise they would kill her. Thereafter, one person accompanied her towards Talwandi.
One person in the room took off her clothes and committed rape upon her Thereafter, second accused person also committed rape upon her. These person threatened her not to tell anybody about the incident; otherwise they would kill her. Thereafter, one person accompanied her towards Talwandi. It was alleged that they were also seen by a Chowkidar present there. At Talwandi Circle, she was paid Rs. 15/- to go to her house in an auto rickshaw. When she sat in the auto rickshaw then, driver demanded Rs. 50/-. Since she had no money, she got down from his auto rickshaw. Then, another auto rickshaw driver left her in front of MBS Hospital in his auto rickshaw. There, she narrated the entire incident to the doctors, who got her admitted in the hospital. It was alleged that two persons committed rape upon her. It was also mentioned in the parcha bayan that she did not receive any injury. The police after investigation arrested the accused-appellants Ghanshyam @ Ghansu and Vishal @ Babu. On completion of investigation, challan was filed against them for offence u/S. 365, 376(2) (g) and 342/34 of IPC. Charges against them were framed for the aforesaid offence as also for the offence u/S. 4/25 of the Arms Act. The accused denied the charges and claimed to be tried. The prosecution produced as many as 18 witnesses and exhibited 36 documents. Defence produced 6 witnesses and also exhibited 5 documents. On conclusion of the trial, the trial court convicted and sentenced the accused-appellants in the manner as indicated above. 3. We have heard Smt. Kamla Jain, learned counsel for accused-appellant Ghanshyam @ Ghansu in appeal No. 423/07 and Shri Surendra Sharma, learned counsel for accused-appellant Vishal @ Babu in appeal No. 464/07 and Shri Javed Choudhary, learned Public Prosecutor for the State. 4. Smt. Kamla Jain and Shri Surendra Sharma, learned counsel for the accused-appellants argued that it was a case of consent and the accused-appellants have been falsely implicated on allegation of rape. The prosecutrix is a major girl of 20 years of age. Dr. Ashok Mundra (PW 3), who subjected the prosecutrix to medical examination has proved the medical examination report Ex. P8, according to which hymen was turn with old tear and admitting one finger easily.
The prosecutrix is a major girl of 20 years of age. Dr. Ashok Mundra (PW 3), who subjected the prosecutrix to medical examination has proved the medical examination report Ex. P8, according to which hymen was turn with old tear and admitting one finger easily. Though the FIR was registered on the basis of parcha bayan, but in fact, information received by the police earlier point of time was entered in rojnamcha rapat No. 541 at 12.35 AM on 8.5.2006. The information was given by one Rajendra, Constable to the police alleging that prosecutrix was abducted by 5-6 persons and they committed rape upon her at Vigyan Nagar and that she was admitted to the hospital due to excessive bleeding and presently was on bed No. 19. Learned counsel submitted that if the prosecutrix knew the appellants, there was no reason why she could not disclose their names to the Constable Rajendra, whose information was entered in the rojnamcha. The fact that reference to 5-6 persons was made in the entry made in the rojnamcha clearly show that in fact rape was committed by some other accused and accused-appellants have been falsely implicated only because those accused have not been apprehended by the police. 5. Learned counsel submitted that in parcha bayan (Ex.P1), prosecutrix has not named the accused-appellants. However, when her statement was recorded by the police under Section 161 Cr.P.C. on 8.3.2006, she has stated that both the accused were talking to each other in Sindhi language and that she heard them calling each other by their names and therefore she knew that their names were Ghanshyam @ Ghansu and Vishal @ Babu. Initially, she did not name them because the accused-appellants threatened her with dire consequences, if she disclosed their names. The same story has been maintained by the prosecutrix while appearing as PW2 in the Court. There are however significant developments made by the prosecutrix in the statement before the Court. In parcha bayan it has been stated by her that after committing rape, one of the accused came with her on foot towards Talwandi and there one Chowkidar also saw them both. Then this accused hired an auto rickshaw for her and paid a sum of Rs. 15 as fare of auto rickshow and then left. The auto rickshaw driver demanded a sum of Rs. 50.
Then this accused hired an auto rickshaw for her and paid a sum of Rs. 15 as fare of auto rickshow and then left. The auto rickshaw driver demanded a sum of Rs. 50. She did not have that much of money, therefore, she hired another auto rickshaw, who dropped her in the hospital. In the Court statement, the prosecutrix has rather stated that she insisted on going to her house, but the auto rickshaw driver stated that since she was not in a good condition, she should first go to the hospital and then she went to the hospital. This clearly indicates that it was a case of consent as the prosecutrix was not willing to approach the police. Learned counsel argued that neither the police has produced the Chowkidar, who saw one of the accused with the prosecutrix while they were going towards Talwandi Circle, nor any effort was made to locate the auto rickshaw driver. Prosecutrix in cross examination stated that an old lady was staying in the room adjacent to the room in which rape was committed upon her. The Investigating Officer Sanjay Sharma (PW. 18) in cross examination has stated that on enquiry from the old lady, she did not confirm the allegation of rape. Even then that old lady has not been produced in evidence. Adverse inference should be therefore taken that had she been produced, she would have deposed in favour of the defence. 6. Learned counsel argued that in the parcha bayan, statement u/S. 161 Cr.P.C. as well in the Court statement, prosecutrix has alleged that both accused forcibly abducted her on the motor cycle at the point of a knife. While one accused was riding the motorcycle and the prosecutrix was forcibly made to sit in between them, the accused sitting in the rear had a knife in his hand pointed at her back. They took round of the city on motorcycle. It is unnatural to believe that in this manner, the accused would forcibly abduct the prosecutrix and she would not raise any hue and cry.
They took round of the city on motorcycle. It is unnatural to believe that in this manner, the accused would forcibly abduct the prosecutrix and she would not raise any hue and cry. What is surprising is that in cross examination, the prosecutrix has stated that they all kept roaming around the city for as long as 4 hours in Vigyan Nagar on different crossings and lanes and at that time, there was no police Constable on the crossing, nor were any other vehicles there, nor any male or female citizens were available. In cross examination, she has also admitted that accused did not close her mouth by hands, but the accused, who was sitting behind her had put the knife at her back and threatened her with dire consequences. If she made any voice. She did not raise hue and cry for the fear of her life. It is argued that in the cross examination, the prosecutrix has also admitted that in the parcha bayan, she did not disclose the names of the accused. The prosecutrix in the examination in chief stated that accused abducted her while she was going from the lane behind the house of her grandmother, but in cross examination, she stated that she was abducted from a book shop and that she did not remember the name of the shop owner. The police has not made any effort to enquire from the book shop owner. In parcha bayan, the prosecutrix has stated that one of the accused had accompanied her to Talwandi Chowraha and the Chowkidar of the area saw them, but she has not made any such statement before the Court. All these facts clearly go to show that the prosecutrix was willing and consenting party and the accused-appellants have been falsely implicated. 7. Learned counsel argued that in the test identification parade Ex.P/9 conducted by Shri Rajesh Sharma, Judicial Magistrate (PW.11), there is specific entry in column 10 where accused stated that they had already been shown to the prosecutrix by the Investigating Officer in the Police Station.
7. Learned counsel argued that in the test identification parade Ex.P/9 conducted by Shri Rajesh Sharma, Judicial Magistrate (PW.11), there is specific entry in column 10 where accused stated that they had already been shown to the prosecutrix by the Investigating Officer in the Police Station. Learned counsel referred to the statement of Investigating Officer Sanjay Sharma (PW.18) and stated that in cross examination he admitted that the time of rape has not been mentioned in parcha bayan (Ex.P/1) and statement of prosecutrix under Section 161 Cr.P.C. (Ex.D/2), but according to her court statement Ex.D/3, it was stated that rape was committed upon her at 11.30 p.m. The Investigating Officer admitted that Mahaveer Nagar, Vigyan Nagar, Talwandi etc. are busiest places of Kota city and that Dwari Bai @ Mausi, the old lady, used to stay in the room adjacent to the room in which rape was committed. Both the rooms were interconnected. The Investigating Officer also admitted that the old lady was present in the room at the time when the rape was committed with the prosecutrix. He also admitted that Dwari Bai @ Mausi has not verified the incident of rape. Investigating Officer admitted that the accused were riding on the motorcycle with the prosecutrix, sitting in the middle from 6 O' clock evening till 11.30 p.m. In the facts of the case, therefore, it is a case of consent and the accused-appellants have wrongly been convicted. 8. Learned counsel argued that the FIR was lodged at 2.15 AM, but it has reached the Magistrate at 4.50 PM on 8.3.2006. The Investigating Officer has admitted in cross examination that normally all those FIRs, which were registered prior to 10.00 PM are dispatched to the Magistrate, why this course was not followed in this case, has not been explained. Learned counsel argued that the prosecution has proved the FSL report (Ex.P.35) saying that human seman was detected in Ex.2 packet B, i.e. the salwar, which is highly unnatural because the prosecutrix has stated in parcha bayan, in statement u/S. 161 Cr.P.C. and also in Court statement that her salwar was removed by accused before committing the rape. Strangely, her panty was not found to contain any semen.
Strangely, her panty was not found to contain any semen. Learned counsel argued that presence of semen on the clothes of Ghanshyam @ Ghansu, a young boy of 22 years was naturally possible at that age and does not conclusively connect him with the incident of crime. Learned counsel in support of his arguments has relied on the judgement of Supreme Court in Vimal Suresh Kamble vs. Chaluverapinake Apal S.P. & Anr. (2003) 3 SCC 175 . 9. Learned counsel for the accused-appellants argued that the appellants had in their defence taken the plea of alibi. In this connection, reference is made to their examination under Sec. 313 Cr.P.C. and also to the statement of defence witnesses. It is argued that Ashwani Gaira (DW-1) has stated that he runs a shop of footwear by the name of `Comforts Shoes' and Vishal @ Babu was salesman in his shop. He had come to his shop at 10.30-10.45 PM on 7.3.2006 and stayed there till late night at 9 O'clock. Sonu Kumar (DW2) has also proved that accused Ghanshyam @ Ghansu who is engaged in the business of supplying packaging material accompanied him in his auto rick-shaw to village Dabi on 7.3.2006. They started from 10 O' clock in the morning and reached the Dabi Chowraha of Narendra Boot House around 12.30 in the noon and purchased empty cartoons and then went to the shop of Chandiram and purchased 11 empty tins of vegetable oil. Then they went to Rajpur wherefrom they purchased cartoons from one shop and then went to Budhpura. They this way remained together till 6 O'clock in the evening. Learned counsel also referred to the statement of Chandi Ram (PW.8) and argued that this witness has proved that Ghanshyam has come to his shop along with Sonu Kumar in the auto rickshaw of Sonu Kumar. Shailendra Kumar (PW.4), the journalist has proved that on the date of incident, he received a telephonic information from an unknown person, according to which rape had been committed in the bathroom of a park and the allegation was that 6-7 persons have committed the rape, which is corroborated from Ex. D.5. Babulal Dhayal (DW-5) another journalist has also proved that on that date, journalist of E.Tv. had covered the news of rape. On that day, he did not receive any information of the alleged rape in the night intervening on 7-8.3.2006.
D.5. Babulal Dhayal (DW-5) another journalist has also proved that on that date, journalist of E.Tv. had covered the news of rape. On that day, he did not receive any information of the alleged rape in the night intervening on 7-8.3.2006. He came to know of this news when it was published in newspaper. 10. Alternatively, Smt. Kamla Jain and Shri Surendra Sharma, learned counsel for the accused-appellants argued that if this Court is not inclined to interfere with the conviction of the accused-appellants, in the facts of the present case, particularly when 10 years have gone by since then and that the accused appellants were then 22 and 22 years old and prosecutrix was also aged 20 years, this Court, considering that the accused-appellants are in jail since 8.3.2006, may consider sentencing them to the period already undergone by invoking proviso to Section 376 (2) whereunder the Court is empowered to award sentence, even lesser than 10 years, which is the minimum sentence. There was no extraordinary reason in the present case to award the maximum sentence of life imprisonment. 11. Per contra, Shri Javed Choudhary, learned Public Prosecutor opposed the appeal and submitted that the prosecutrix has categorically made allegation of rape against the accused. Prosecutrix has stated that accused had forcibly taken her on the motorcycle and threatened her with dire consequences, if she raised voice. If a girl aged 20 years is abducted on the point of knife, it is a serious offence. The accused made the prosecutrix to sit on the motor cycle. They took her in a room of a park and committed rape upon her. Learned Public Prosecutor has argued that there is no evidence to prove that the prosecutrix was a girl of easy virtues and even if it is alleged that she voluntarily accompanied them on motor cycle, that would not mitigate the gravity of the offence of the accused which is fully corroborated by the medical evidence. Learned Public Prosecutor in this connection referred to the medical report of the prosecutrix Ex. P.8 proved by Dr. Ashok Mundra (PW.3) and argued that prosecutrix was undergoing the menstrual period and no woman would consent to having sex with someone in that condition.
Learned Public Prosecutor in this connection referred to the medical report of the prosecutrix Ex. P.8 proved by Dr. Ashok Mundra (PW.3) and argued that prosecutrix was undergoing the menstrual period and no woman would consent to having sex with someone in that condition. Learned Public Prosecutor has relied on the judgement of Supreme Court in Vijay @ Chinee vs. State of Madhya Pradesh (2010) 8 SCC 191 and argued that conviction can be recorded on the sole testimony of the prosecutrix. The Supreme Court in the aforesaid case has held that the courts must, while evaluating evidence remain alive to the fact that in a case of rape, no self-respecting woman would come forward in a court just to make a humiliating statement against her honour such as is involved in the commission of rape on her. Learned Public Prosecutor also relied on the judgement of Supreme Court in Mohd. Iqbal & Anr. vs. State of Jharkhand (2013) 40 SCD 588 to the same footing. 12. We have given our anxious consideration to the rival submissions and perused the material on record. 13. Dr.Ashok Mundar (PW.3) has proved the medical report of prosecutrix Chandrakala (Ex. P.8) wherein it is clearly mentioned that labia majora and minora of the prosecutrix were congested and hymen was torn and admitting only one finger easily. There was tenderness at four chette of vagina. The prosecutrix was during menstrual and bleeding was present. On the basis of this, it was opined that possible of sexual intercourse cannot be ruled out. 14. Even if the prosecutrix travelled with the accused on motor cycle, that might itself cannot be a reason to presume that she consented to the rape. Presumption is that a woman during menstrual would never permit anyone to have sexual intercourse with her. Besides, prosecutrix sustained two injuries; one being abrasion in the size of 5x 3 cm on left thigh 4-1/3 medially and another being abrasion 1/4 x 1/4 cm on right thigh 4-1/3 medially, which was found to be fresh though simple by blunt weapon. It would be possible only when the prosecutrix posed resistance when accused committed rape upon her. As per the medical examination report of accused-appellant Ghanshyam @ Ghansu, Ex.P.10, proved by Dr. Deepak Sharma (PW.4), there was nothing to suggest that accused-appellant Ghanshyam @ Ghansu was unable to perform the sexual intercourse.
It would be possible only when the prosecutrix posed resistance when accused committed rape upon her. As per the medical examination report of accused-appellant Ghanshyam @ Ghansu, Ex.P.10, proved by Dr. Deepak Sharma (PW.4), there was nothing to suggest that accused-appellant Ghanshyam @ Ghansu was unable to perform the sexual intercourse. He had injury on tip of the penis in the size of 1x1 cm, being abrasion. The accused-appellant Vishal @ Babu was also opined to be aged 22 years and was able to perform sexual intercourse vide medical examination report Ex.P.11. 15. Non-production of prosecutrix Chowkindar named in the parcha bayan and the old woman Dwara Bai @ Mausi and even Rajendra, the Constable on whose information, the entry in the rojnamcha was made, cannot be fatal for the prosecution case, which otherwise stands proved. When the prosecutrix has categorically alleged against these two accused, there is no reason to presume that there were 6-7 accused. This fact mentioned in the entry of the rojnamcha (Ex.D.1), cannot be taken as conclusive because there is no basis to presume that this information emanated from the prosecutrix. If someone has given wrong information about number of the accused, that in no way disprove the allegations against the present appellants. 16. Bhuli Bai (PW.5), the grandmother of the prosecutrix has stated that prosecutrix had come to her house around 5.30 PM on that day and stayed for about 10 minutes and then left. This proves that she had indeed visited the house of her grandmother. Jawahar Lal, Contable (PW6) has also proved seizure of the 'salver', 'kurta', 'chunni' of the prosecutrix vide recovery memo Ex.P/4, site plan of the place of recovery Ex.P/5 and the site plan of the place of incident Ex.P/6 in the presence of Hariom and Chandrakala. Hari Om (PW.8) has supported all this. Chandrakala (PW.2) supported the recovery memos. She has categorically proved that accused appellant Ghanshyam @ Ghansu and Vishal @ Babu met her behind the house of her grandmother, wherefrom she was returning. They intercepted her and at the point of knife abducted her on the motorcycle. It was around 6.30 p.m. The accused then kept roaming on motorcycle in Vigyan Nagar for quite sometime. They then took her to a building in a park consisting of two rooms, in one of which an old lady was there.
They intercepted her and at the point of knife abducted her on the motorcycle. It was around 6.30 p.m. The accused then kept roaming on motorcycle in Vigyan Nagar for quite sometime. They then took her to a building in a park consisting of two rooms, in one of which an old lady was there. They took her to the room situated behind the first room which was empty. The accused then committed rape upon her. They threate-ned her that if she raised any voice, they would kill her. Then they left her on Talwandi Chowraha and made her to sit in auto rickshaw and also gave her 15 rupees, who demanded 50 rupees. She then hired another auto rickshaw. The auto rickshaw driver however stated that she was not in good condition, therefore, took her to hospital. She narrated the entire story to the Doctors and then police was called, who recorded parcha bayan. Her medical examination also took place, which provided corroboration to what she stated. 17. Although it is true that there are some discrepancies/contradictions in the statement of prosecutrix especially in part relating to cross examination, but this is but natural for a woman of young age, who has been raped. Some such contradictions may occur considering the mental trauma that she has endured. 18. Rajesh Sharma (PW.11), the Judicial Magistrate has proved the test identification parade, memo of which is Ex. P.9. Therein, he has stated that each of the accused was mixed up with seven other persons resembling to him and then the test identification parade was conducted. The prosecutrix identified both the accused correctly. Mere fact that accused stated before the Magistrate that they were already shown to the prosecutrix by the police before, would not make the test identification parade unreliable. This is a standard objection taken during test identification parade and there is no reason to disbelieve the statement given by Rajesh Sharma, a Judicial Magistrate (PW.11) that the prosecutrix identified both the accused. 19. Balveer Singh (PW.16) has stated that he deposited 12 packets in sealed condition with the Forensic Science Laboratory and the receipt thereof is Ex. P.21. Shambhu Dayal, ASI (PW.17) of the Police Station Mahaveer Nagar has proved that he recorded the parcha bayan of prosecutrix.
19. Balveer Singh (PW.16) has stated that he deposited 12 packets in sealed condition with the Forensic Science Laboratory and the receipt thereof is Ex. P.21. Shambhu Dayal, ASI (PW.17) of the Police Station Mahaveer Nagar has proved that he recorded the parcha bayan of prosecutrix. He has explained the entry of the rojnamcha Ex.D.1 saying that this information was received on phone, but there were no names mentioned therein. He mentioned the number of accused as per the information received vide Ex. P.34. Sanjay Sharma (PW.18), SHO, Police Station Mahaveer Nagar has proved all the exhibits and also the recovery. He has proved the recovery of the knife that was used in committing the offence at the instance of accused-appellant Ghanshyam @ Ghansu vide Ex.P.17. He has proved that when accused were arrested, they were kept with covered faces. He has also proved that according to FSL report Ex. P.35, the human semen was detected on the salwar of the prosecutrix. He has also proved that statement of prosecutrix under Section 164 Cr.P.C. was recorded requisition whereof was given to the C.J.M. vide Ex.P/23. 20. In State of Maharashtra vs. Chandraprakash Kewalchand Jain- AIR 1990 SC 658 , the Supreme Court observed that a woman, who is the victim of sexual assault, is not an accomplice to the crime but is a victim of another person's lust and therefore her evidence need not be tested with the same amount of suspicion as that of an accomplice. It was held that 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 his evidence. 21. In State U.P. vs. Pappu @ Yunus & Anr.- AIR 2005 SC 1248 it was held by the Supreme Court that even in a case where it is shown that the girl is girl of easy virtue or a girl habituated to sexual intercourse, it may not be a ground to absolve the accused from the charge of rape. It has to be established that there was consent by her for that particular occasion. Absence of injury on the prosecutrix may not be a factor that leads the court to absolve the accused.
It has to be established that there was consent by her for that particular occasion. Absence of injury on the prosecutrix may not be a factor that leads the court to absolve the accused. The Court further held that there can be conviction on the sole testimony of the prosecutrix and in case, the court is not satisfied with the version of the prosecutrix, it can seek other evidence, direct or circumstantial, by which it may get assurance of her testimony. 22. In State of Punjab vs. Gurmit Singh & Ors. - AIR 1996 SC 1393 = RLW 1996(2) SC 97, the Supreme Court has held that in cases involving sexual harassment, molestation etc. the court is duty bound to deal with such cases with utmost sensitivity. Minor contradictions or insignificant discrepancies in the statement of a prosecutrix should not be a ground for throwing out an otherwise reliable prosecution case. Evidence of the victim of sexual assault is enough for conviction and it does not require any corroboration unless there are compelling reasons for seeking corroboration. The court may look for some assurances of her statement to satisfy judicial conscience. The statement of the prosecutrix is more reliable than that of an injured witness as she is not an accomplice. The Court further held that the delay in filing FIR for sexual offence may not be even properly explained, but if found natural, the accused cannot be given any benefit thereof. The Court overlooked the situation in which a poor helpless minor girl had found herself in the company of three desperate young men who were threatening her and preventing her from raising any alarm. 23. In State of Orissa vs. Thakara Besra& Anr. - AIR 2002 SC 1963 , the Supreme Court held that rape is not mere a physical assault, rather it often distracts the whole personality of the victim. The rapist degrades the very soul of the helpless female and, therefore, the testimony of the prosecutrix must be appreciated in the background of the entire case and in such cases, non-examination even of other witnesses may not be a serious infirmity in the prosecution case, particularly where the witnesses had not seen the commission of the offence. 24.
The rapist degrades the very soul of the helpless female and, therefore, the testimony of the prosecutrix must be appreciated in the background of the entire case and in such cases, non-examination even of other witnesses may not be a serious infirmity in the prosecution case, particularly where the witnesses had not seen the commission of the offence. 24. In State of Himachal Pradesh vs. Raghubir Singh- (1993) 2 SCC 622 , the Supreme Court held that there is no legal compulsion to look for any other evidence to corroborate the evidence of the prosecutrix before recording an order of conviction. Evidence has to be weighed and not counted. Conviction can be recorded on the sole testimony of the prosecutrix, if her evidence inspires confidence and there is absence of circumstances which militate against her veracity. Similar view has been reiterated by Supreme Court in Wahid Khan vs. State of Madhya Pradesh (2010) 2 SCC 9 = 2010(1) RLW 999 (SC), placing reliance on the earlier judgement in Rameshwar vs. State of Rajasthan- AIR 1952 SC 54 . 25. The aforesaid judgements were relied on by the Supreme Court in Vijay @ Chinee vs. State of Madhya Pradesh (2010) 8 SCC 191 and it was held that conviction can be recorded on the sole testimony of the prosecutrix. The same view was reiterated by the Supreme Court in recent judgement of Mohd. Iqgal & Anr. vs. State of Jharkhand- (2013) 40 SCD 588. 26. In view of above, the testimony of the prosecutrix which finds substantial corroboration from her medical examination report Ex. P.8, the medical examination report of the accused-appellant Ghanshyam @ Ghansu Ex. P.10, accused appellant Vishal @ Babu Ex. P.11 and the other statement of witnesses as referred to above and the FSL report Ex. P.35, has to be accepted. The judgement of the learned trial court in convicting the accused-appellants for the offences u/S. 342, 366, 376(2)(g) of IPC and u/S. 4/25 of the Arms Act, therefore cannot be faulted. 27. Coming now to the alternate submission on the question of sentence, we find that the accused-appellants Ghanshyam and Vishal @ Babu were aged 22 years and prosecutrix was aged 20 years when accused were arrested as per their arrest memos Ex. P.12 & P.13 on 8.3.2006. They are in jail for more than seven and half years.
27. Coming now to the alternate submission on the question of sentence, we find that the accused-appellants Ghanshyam and Vishal @ Babu were aged 22 years and prosecutrix was aged 20 years when accused were arrested as per their arrest memos Ex. P.12 & P.13 on 8.3.2006. They are in jail for more than seven and half years. According to Section 376(2)(g) though the sentence awardable to an accused may extend to life imprisonment, but minimum sentence is prescribed as ten years. True it is that every case of rape should be viewed seriously and convicts should be awarded the befitting sentence. But the learned trial court in making the choice of sentence of life imprisonment in the present case has not made any discussion whatsoever. It has not given any reason why it has chosen to award the maximum sentence and for what reason, the minimum sentence of ten years would not be sufficient. At the same time, however, we are not inclined to accept the argument that lessor sentence than ten years by invoking proviso to Section 376(2)(g) should be awarded only because the appellants have not completed the sentence of ten years in prison. Proviso to Section 376(2) though does give such power to the Court, which can be invoked only for adequate and special reasons to be mentioned in the judgment, which may justify the award of sentence of imprisonment of less than ten years. Emphasis on the adequate special reasons has been made because the legislature has otherwise intended "imprisonment for a term which shall not be less than ten years" as the minimum sentence. 28. The Supreme Court in Bavo @ Manubhai Ambalal Thakore vs. State of Gujarat (2012) 2 SCC 684 = 2012(2) RLW 1873 (SC) was dealing with a case where the victim was aged 7 years on the date of incident and the accused was in the age of 18/19 years and also the fact that the incident occurred nearly 10 years ago. It was observed therein by the Supreme Court that the award of life imprisonment, which was a maximum prescribed, is not award. That was a case in which the conviction was recorded under Section 376(2)(f). The Supreme Court held that ends of justice would be met if sentence of rigorous imprisonment of 10 years is awarded.
It was observed therein by the Supreme Court that the award of life imprisonment, which was a maximum prescribed, is not award. That was a case in which the conviction was recorded under Section 376(2)(f). The Supreme Court held that ends of justice would be met if sentence of rigorous imprisonment of 10 years is awarded. In doing so, the Supreme Court relied on its earlier judgement in Rajendra Datta Zarekar vs. State of Goa (2007) 14 SCC 560 , which case also relates to an offence under Section 376 where the victim was aged 6 years and the accused was aged 20 years and the Supreme Court ultimately confirmed the sentence of 10 years as awarded by the High Court. 29. In the facts of the case, therefore, while we reject the argument of learned counsel for the appellants to reduce the sentence to the period already undergone by the accused-appellants, we are persuaded to accept the alternative prayer of awarding the minimum prescribed sentence of 10 years to the accused-appellants for their conviction under Section 376(2)(g) instead of life imprisonment and accordingly we modify the sentence. 30. Accordingly the appeals preferred by accused-appellant Ghanshyam @ Ghansu in so far as his conviction under Section 342, 366, 376(2)(g) of IPC and Section 4/25 of Arms Act and accused-appellant Vishal @ Babu for his conviction under Section 342, 366, 376(2)(g) of IPC are concerned, are dismissed. Their appeals are however partly allowed on the question of sentence as indicated above.