JUDGMENT : ANIL KUMAR SRIVASTAVA-II, J. 1. Heard Sri Akhtar Abbas, learned counsel for accused, Sri Chandra Shekhar Pandey, learned AGA and perused the record. 2. This appeal has arisen against the judgment and order dated 12.05.2006 passed by Additional Session Judge/FTC No. 4, Lucknow in S.T. No. 60/2005 (State v. Prakash @ Om Prakash and Smt. Munni Devi) Case Crime No. 136 of 2003 under Sections 376, 452, 506, 201 IPC P.S.-Itaunja, District-Lucknow whereby learned trial court has convicted the accused Prakash @ Om Prakash under Section 452 IPC for rigorous imprisonment for 5 years and a fine of Rs. 2000/- in default of payment of fine, 4 months imprisonment, under Section 506 IPC three years rigorous imprisonment, under Section 376 IPC imprisonment for life and a fine of Rs. 10,000/- in default of payment of fine 6 months imprisonment. 3. Accused Munni Devi was convicted under Section 201 IPC and was sentenced to 3 years rigorous imprisonment and a fine of Rs. 1000/- in default of fine three months rigorous imprisonment was imposed. All the sentences were directed to run concurrently. 4. According to the prosecution version, complainant-Kallu who is father of the victim has lodged a FIR at the Police Station-Itaunja on 14.08.2003 stating that on 12.08.2003 he along with his wife had gone to his in-laws house on the occasion of Raksha Bandhan. His three daughters, namely 'A'-victim whose name is not being mentioned aged about 10 years, Sheela aged about 7 years and Baua aged about 4 years all alone at his house. In the night of 13.08.2003 at about 12.00 p.m., accused Prakash @ Om Prakash forcibly entered into the house and committed rape to the victim and threatened her to kill the family if she will inform the incident to anyone. When complainant came back on 14.08.2003 and he knew the incident, lodged a FIR. On the basis of first information report, a case under section 376/452 IPC was registered and investigation was handed over to Investigating Officer who recovered the Salwar of the victim. Victim was medically examined. Site plan was prepared. During investigation, statement of the victim under Section 164 Cr. P.C., 1973 was recorded by the Additional Chief Judicial Magistrate, Lucknow wherein victim has stated that the accused committed rape upon her. Victim was medically examined. Site plan was prepared. During investigation, statement of the victim under Section 164 Cr. P.C., 1973 was recorded by the Additional Chief Judicial Magistrate, Lucknow wherein victim has stated that the accused committed rape upon her. When accused ran away from the house of the victim, the mother of the accused, namely, Munni Devi came and forcefully took Salwar of the victim. 5. After investigation, charge-sheet was submitted by the Investigating Officer. 6. Accused were charged under Sections 376, 506, 201, 452 IPC. They denied the charges and claim trial. 7. In order to prove its case, prosecution has produced P.W.-1/victim-'A', P.W.-2/Kallu-complainant, P.W.-3/Smt. Maya Devi-mother of the victim, P.W.-4-Dr. Ratna Pandey who has conducted the pathological test, P.W.-5/Constable Ishwar Prasad Tiwari, P.W.-6/Dr. Renuka Mishra-who has conducted medical examination of the victim, P.W.-7/S.I. Ram Kumar Verma, Investigating Officer. 8. Accused in their statement under Section 313 Cr.P.C., 1973 have denied allegations levelled against them and stated that they have been falsely implicated due to enmity. 9. No evidence was adduced in defence. 10. Learned trial court after appreciating the evidence on record recorded the finding of guilt against the accused. Learned trial court further held that the accused Prakash has committed rape upon the victim while his mother Munni Devi was found guilty of the offence punishable under Section 201 IPC. Learned trial court accordingly convicted and sentenced accused-appellants. 11. Feeling aggrieved, appellants have preferred the appeal. Learned counsel for appellants Sri Akhkar Abbas has fairly stated that he is not pressing the appeal on merit but he is pressing the appeal on the point of sentence only. 12. He further stated that the accused-appellant Prakash is in jail for the last about 13 years while Smt. Munni Devi had also remained in jail for acquit a long time. Although learned counsel for appellants has pressed the appeal only on the point of sentence but being a court of appeal we are conscious of our duties that as an appellate court we should appreciate findings on record. 13. In order appreciate the evidence on record, we find that the FIR was lodged by the complaint on 14.08.2003 when he came back from his in-laws house after the festival of Raksha Bandhan, occurrence of 13.08.2003 at about 12.00 p.m., so there is no undue delay. P.W.-2/Kallu has proved the first information report. 14. 13. In order appreciate the evidence on record, we find that the FIR was lodged by the complaint on 14.08.2003 when he came back from his in-laws house after the festival of Raksha Bandhan, occurrence of 13.08.2003 at about 12.00 p.m., so there is no undue delay. P.W.-2/Kallu has proved the first information report. 14. Victim 'A' P.W.-1 has categorically stated that on the date of incident she was sleeping with her minor sisters when accused entered into the house and committed rape upon her. Her Salwar got blood stains when resisted accused ran away after committed the rape and threatened her for dire consequences. Thereafter, Munni Devi-mother of the accused forcefully took her salwar. 15. The statement of the victim was also recorded by the Judicial Magistrate on 26.08.2006 wherein she has categorically stated that rape was committed upon her by the accused and co-accused Munni Devi has forcefully taken away her Salwar. When her parents came next day then she narrated the story, thereafter report was lodged. This statement finds fully support from the statement of P.W.-2/Kallu-complainant who is father of the victim. 16. P.W.-6/Dr. Renuka Mishra has medically examined the victim. She has prepared the medical legal report and given an opinion that sexual intercourse was committed upon the victim. 17. Salwar of the victim was also sent for examination to the Forensic Science Laboratory wherein blood was found but no spermatozoo was found. 18. It was held that in the case of Narendra Kumar v. State (NCT of Delhi), 2012 CRI. L.J. 3033, by Hon'ble the Apex Court that:- "16. It is a settled legal proposition that once the statement of prosecutrix inspires confidence and is accepted by the court as such, conviction can be based only on the solitary evidence of the prosecutrix and no corroboration would be required unless there are compelling reasons which necessitate the court for corroboration of her statement. Corroboration of testimony of the prosecutrix as a condition for judicial reliance is not a requirement of law but a guidance of prudence under the given facts and circumstances. Minor contradictions or insignificant discrepancies should not be a ground for throwing out an otherwise reliable prosecution case. A prosecutrix complaining of having been a victim of the offence of rape is not an accomplice after the crime. Minor contradictions or insignificant discrepancies should not be a ground for throwing out an otherwise reliable prosecution case. A prosecutrix complaining of having been a victim of the offence of rape is not an accomplice after the crime. Her testimony has to be appreciated on the principle of probabilities just as the testimony of any other witness; a high degree of probability having been shown to exist in view of the subject matter being a criminal charge. However, if the court finds it difficult to accept the version of the prosecutrix on its face value, it may search for evidence, direct or substantial, which may lend assurance to her testimony. (Vide: Vimal Suresh Kamble v. Chaluverapinake Apal and Anr., AIR 2003 SC 818 ; and Vishnu v. State of Maharashtra, AIR 2006 SC 508 ). 17. Where evidence of the prosecutrix is found suffering from serious infirmities and inconsistencies with other material, prosecutrix making deliberate improvements on material point with a view to rule out consent on her part and there being no injury on her person even though her version may be otherwise, no reliance can be placed upon her evidence. (Vide : Suresh N. Bhusare and Ors. v. State of Maharashtra, (1999) 1 SCC 220 ). 18. In Jai Krishna Mandal and Anr. v. State of Jharkhand, (2010) 14 SCC 534 , this Court while dealing with the issue held: "The only evidence of rape was the statement of the prosecutrix herself and when this evidence was read in its totality, the story projected by the prosecutrix was so improbable that it could not be believed." 19. In Rajoo and Ors. v. State of Madhya Pradesh, AIR 2009 SC 858 , this Court held that ordinarily the evidence of a prosecutrix should not be suspected and should be believed, more so as her statement has to be evaluated on par with that of an injured witness and if the evidence is reliable, no corroboration is necessary. The court however, further observed: ".......It cannot be lost sight of that rape causes the greatest distress and humiliation to the victim but at the same time a false allegation of rape can cause equal distress, humiliation and damage to the accused as well. The accused must also be protected against the possibility of false implication..... The court however, further observed: ".......It cannot be lost sight of that rape causes the greatest distress and humiliation to the victim but at the same time a false allegation of rape can cause equal distress, humiliation and damage to the accused as well. The accused must also be protected against the possibility of false implication..... there is no presumption or any basis for assuming that the statement of such a witness is always correct or without any embellishment or exaggeration." 20. In Tameezuddin @ Tammu v. State of NCT of Delhi, (2009) 15 SCC 566 , this Court held has under: "It is true that in a case of rape the evidence of the prosecutrix must be given predominant consideration, but to hold that this evidence has to be accepted even if the story is improbable and belies logic, would be doing violence to the very principles which govern the appreciation of evidence in a criminal matter." 21. Even in cases where there is some material to show that the victim was habituated to sexual intercourse, no inference of the victim being a woman of "easy virtues" or a women of "loose moral character" can be drawn. Such a woman has a right to protect her dignity and cannot be subjected to rape only for that reason. She has a right to refuse to submit herself to sexual intercourse to anyone and everyone because she is not a vulnerable object or prey for being sexually assaulted by anyone and everyone. Merely because a woman is of easy virtue, her evidence cannot be discarded on that ground alone rather it is to be cautiously appreciated. (Vide: State of Maharashtra and Anr. v. Madhukar Narayan Mardikar, AIR 1991 SC 207 ; State of Punjab v. Gurmit Singh and Ors., AIR 1996 SC 1393 ; and State of U.P. v. Pappu @ Yunus and Anr., AIR 2005 SC 1248 ). 19. We are of the considered view that the prosecution has successfully proved that accused-appellant/Prakash @ Om Prakash has committed rape upon victim and her mother has forcefully taken the salwar from her in order to destroy the evidence, hence learned trial court has rightly convicted the accused-appellant under Sections 376, 452, 506 IPC and accused-Munni Devi under Section 201 IPC. 20. Now, we will consider the second limb of argument about the sentence to be imposed on the appellants. 21. 20. Now, we will consider the second limb of argument about the sentence to be imposed on the appellants. 21. Learned counsel for appellants submitted that appellant-Prakash is an young man whose age at the time of incident was 25 years while the age of Munni Devi was 45 years. Prakash is already in jail for the last about 13 years while Munni Devi was already passed sufficient time in jail. 22. In view of the above-said facts while considering the matter in respect to award of sentence to the accused, it would be appropriate to consider the law on the point as laid down by Hon'ble the Apex Court in the case of State of Rajasthan v. Vinod Kumar, 2012 CRI. L.J. 2999, held as under:- "18. In Ravji @ Ram Chandra v. State of Rajasthan, AIR 1996 SC 787 , this Court held 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. 19. Awarding punishment lesser than the minimum prescribed under Section 376 IPC, is an exception to the general rule. Exception clause is to be invoked only in exceptional circumstances where the conditions incorporated in the exception clause itself exist. It is a settled legal proposition that exception clause is always required to be strictly interpreted even if there is a hardship to any individual. Exception is provided with the object of taking it out of the scope of the basic law and what is included in it and what legislature desired to be excluded. It is a settled legal proposition that exception clause is always required to be strictly interpreted even if there is a hardship to any individual. Exception is provided with the object of taking it out of the scope of the basic law and what is included in it and what legislature desired to be excluded. The natural presumption in law is that but for the proviso, the enacting part of the Section would have included the subject matter of the proviso, the enacting part should be generally given such a construction which would make the exceptions carved out by the proviso necessary and a construction which would make the exceptions unnecessary and redundant should be avoided. Proviso is used to remove special cases from the general enactment and provide for them separately. Proviso may change the very concept of the intendment of the enactment by insisting on certain mandatory conditions to be fulfilled in order to make the enactment workable. (Vide: S. Sundaram Pillai, etc. v. V.R. Pattabiraman, AIR 1985 SC 582 ; Union of India and Ors. v. M/s Wood Papers Ltd. and Anr., AIR 1991 SC 2049 ; Grasim Industries Ltd. and Anr. v. State of Madhya Pradesh and Anr., AIR 2000 SC 66 ; Laxminarayan R. Bhattad and Ors. v. State of Maharashtra and Anr., AIR 2003 SC 3502 ; Project Officer, ITDP and Ors. v. P.D. Chacko, AIR 2010 SC 2626 ; and Commissioner of Central Excise, New Delhi v. Hari Chand Shri Gopal and Ors., (2011) 1 SCC 236 ). 20. Thus, the law on the issue can be summarised to the effect that punishment should always be proportionate/commensurate to the gravity of offence. Religion, race, caste, economic or social status of the accused or victim are not the relevant factors for determining the quantum of punishment. The court has to decide the punishment after considering all aggravating and mitigating factors and the circumstances in which the crime has been committed. Conduct and state of mind of the accused and age of the sexually assaulted victim and the gravity of the criminal act are the factors of paramount importance. The court must exercise its discretion in imposing the punishment objectively considering the facts and circumstances of the case. Conduct and state of mind of the accused and age of the sexually assaulted victim and the gravity of the criminal act are the factors of paramount importance. The court must exercise its discretion in imposing the punishment objectively considering the facts and circumstances of the case. The power under the proviso is not to be used indiscriminately in a routine, casual and cavalier manner for the reason that an exception clause requires strict interpretation. The legislature introduced the imposition of minimum sentence by amendment in the IPC w.e.f. 25.12.1983, therefore, the courts are bound to bear in mind the effect thereof. The court while exercising the discretion in the exception clause has to record "exceptional reasons" for resorting to the proviso. Recording of such reasons is sine qua non for granting the extraordinary relief. What is adequate and special would depend upon several factors and no straight jacket formula can be laid down." 23. In the present case, offence of rape was committed upon a minor girl of 10 years thereafter accused ran away and his mother in order to disappear the evidence snatched the Salwar from the possession of the victim. These are the circumstances which are to be considered at the time of assessing the punishment. Extreme punishment of imprisonment for life can be awarded where extreme circumstances exists. 24. In the present case, circumstances are such which shows that although not on merit but on the point of sentence if we consider the statement of P.W. 1/victim, we find that one Kamlu was also allegedly sleeping in the house when accused came and asked Kamlu to leave the house, thereafter he committed the rape upon the victim. Circumstances are such in which in our considered view a sentence of 14 years should be imposed upon the accused-appellant Prakash @ Om Prakash to meet the ends of justice. 25. Further, sentence of one and half years imprisonment upon co-accused Smt. Munni Devi should be awarded. 26. Accordingly, the appeal is partly allowed. 27. Conviction as awarded by learned trial court is confirmed but the sentence of Prakash @ Om Prakash under Section 376 IPC is modified to rigorous imprisonment for 14 years while other sentences under Section 452 and 506 IPC are confirmed. All the sentences shall run concurrently. Period already undergone by the appellant in jail shall be adjusted accordingly. 27. Conviction as awarded by learned trial court is confirmed but the sentence of Prakash @ Om Prakash under Section 376 IPC is modified to rigorous imprisonment for 14 years while other sentences under Section 452 and 506 IPC are confirmed. All the sentences shall run concurrently. Period already undergone by the appellant in jail shall be adjusted accordingly. Conviction of Munni Devi under Section 201 IPC is confirmed. Her sentence is modified to the one and half years rigorous imprisonment. Period already spent in jail should be adjusted against it. 28. Office is hereby directed to certify this order to the court concerned immediately for compliance. 29. Record of the trial court should also be returned back immediately.