Judgment : Hon'ble Mrs. Ranjana Pandya, J. 1. Challenge in this appeal is to judgment and order passed by learned Additional Sessions Judge, Fast Track, Court No. 1, Bulandshahr dated 24.03.2015 in ST No. 456 of 2013 (State Vs. Kullu @ Deepak) arising out of Crime No. 186 of 2013 under Section 376 IPC, PS Khurja Nagar, Bulandshahr; whereby the accused appellant was found guilty under Section 376 IPC and was sentenced to 10 years' rigorous imprisonment and a fine of Rs.50,000/- with default stipulation. 2. Filtering out unnecessary details, the prosecution case as per the first information report is that Kapil, brother of the victim lodged a written report at the concerned police station on 14.03.2013 at 22:45 hours stating that on 14.03.2013, his sister aged about eight years was missing from the house since 6:00 PM. Then, the informant Kapil accompanied with Pravesh, Yogesh and Satish tried to trace the victim. When they reached near the bush of Dhakar Gate, they found the victim who was blood stained and saw accused appellant Kullu @ Deepak fleeing from the place. The appellant had raped the victim. The informant took his sister to police station and got lodged first information report. The occurrence took place at 8:30 PM. On the basis of this written report, Head Constable Sunil Kumar Sharma PW-7 scribed the chick report, which was proved as Ex. Ka 1. The details of the case was written in the GD, a copy of which was proved as Ex. Ka-3. Investigation was entrusted to PW-6 SI Brij Mohan on 15.03.2013. On the same date, he copied the chik report in the case diary. He recorded statements of the informant, witnesses Pravesh, Yogesh and Satish and inspected the spot. Further, he proved the site plan as Ex. Ka-10. On the same date, he recorded statement of Basdev and Chandra Singh. He prepared the memo of blood stained earth and ordinary earth which was proved as Ex. Ka-9. On 18.03.2013, he got pathological report of the victim and the case diary. Thereafter, investigation ended into a charge sheet which was proved as Ex. K-11. Ex. Ka-12 is the report of the Forensic Lab. 3. The victim was medically examined by Dr. Sayara Bano - PW 5 who found blood stains on the thighs, legs and private parts of the victim. Thereafter, investigation ended into a charge sheet which was proved as Ex. K-11. Ex. Ka-12 is the report of the Forensic Lab. 3. The victim was medically examined by Dr. Sayara Bano - PW 5 who found blood stains on the thighs, legs and private parts of the victim. There was swelling on the labia majora and was tender to touch. He hymen was torn and was bleeding on touch. It was inflamed and tender. Tear of about 2 x 1 cm at 6 o' clock position was present in the mid line of perineum. This witness proved the medical report as Ex. Ka-6, Ka-7, pathological report as Ex. Ka-5 and the reference form as Ex. Ka-4. 4. The prosecution examined as many as seven witnesses. PW-1 is Kapil Kumar, brother of the victim, who is also informant and proved the written report as Ex. Ka-1. PW-2 is Satish, who is said to be an eye witness. PW-3 is the victim. PW-4 is Pravesh, who is also said to be an eye witness. The evidence of PW-5 Dr. Sayara Bano, PW-6 SI Brij Mohan and PW-7 Head Constable Sunil Kumar Sharma have already been discussed by me above. 5. After closing of the prosecution evidence, the statement of accused was recorded under Section 313 Cr.P.C, who denied the occurrence and stated that he had been falsely implicated. 6. The learned Lower Court after hearing the counsel for the parties, passed the impugned judgment and order as specified in para -1 of this judgment. 7. Feeling aggrieved, the accused appellant has come up in present appeal. 8. I have heard the learned counsel for the parties. 9. As far as the occurrence is concerned, it is said to have taken place at 8:30 PM on 14.03.2013. Report about the matter was lodged on the same date at 22:45 hours and distance of police station from the place of occurrence being 3 kilometers, the report is prompt. As per the medical report the child was badly injured and she was bleeding. As regards the occurrence is concerned, the counsel for appellant has submitted that the victim has not been examined before the Court as per the requirement of law. She being a child witness neither was a competent witness nor she could depose before the Court below; hence, conviction is bad in the eyes of law. 10. As regards the occurrence is concerned, the counsel for appellant has submitted that the victim has not been examined before the Court as per the requirement of law. She being a child witness neither was a competent witness nor she could depose before the Court below; hence, conviction is bad in the eyes of law. 10. As far as the victim is concerned, admittedly, she is a child aged about 8 years. In order to test the child witness certain questions were put by the Court below to this witness to which the child witness PW-3 gave certain answers and the learned Court below found that the child was not able to clearly reply to all the questions but she was in a position to nod her head and gave some answers. As far as evidence of the child witness is concerned, in Dutta Ramrao Sakhare Vs. State of Maharasthra : (1997) 5 SCC 341 , the Apex Court has held as follows:- "A child witness if found competent to depose to the facts and reliable one such evidence could be the basis of conviction. In other words even in the absence of oath the evidence of a child witness can be considered under Section 118 of the Evidence Act provided that such witness is able to understand the answers thereof. The evidence of a child witness and credibility thereof would depend upon the circumstances of each case. The only precaution which the Court should bear in mind while assessing the evidence of a child witness is that the witness must be a reliable one and his/her demeanour must be like any other competent witness and there is no likelihood of being tutored." 11. As per the report Ex. Ka-1, the victim was 8 years old. The Court has observed that the victim was not very intelligent and could not give rational answers to the questions put to her. The victim PW-3 could tell her name. She could tell to the Court that she had come with her brother to the Court. Some leading questions were also put to her which were replied by her. When the brother of victim took her in lap, she went in the lap of her brother. But the trial Court requested the accused to take her in the lap, at which the child tried to run away from the accused. Some leading questions were also put to her which were replied by her. When the brother of victim took her in lap, she went in the lap of her brother. But the trial Court requested the accused to take her in the lap, at which the child tried to run away from the accused. Thus, the inability of the victim to answer the questions could be termed to be virtually non production of the victim. The effect of non examination of the victim could not be fatal in this case because it is a settled principle that where rape has been committed on a child of tender age, there is no rule of law requiring corroboration from independent source of evidence of the child as to the identity of the accused. The examination of the child or otherwise does not make any difference when the fact has taken note of that the child was just aged about 7 or 8 years at the time of committing of crime and could not have been expected to examine the child to collect the memories of the worst incident that took place in her life. As far as non production of witness is concerned, in the particular case although she was produced but since she could not answer the questions put to her, it can be deemed held to be non examination of the witness. In Syed Pasha Vs. State of Karnataka : 2004 CriLJ 4123 it is has been held as under:- "It is the settled principle that where a rape has been committed on a child of tender age, there is no rule of law requiring corroboration from independent source of evidence of the child as to the identity of the accused. The examination of the child or otherwise does not make any difference when the facts is taken note of that child was just aged about 4 or 5 years at the time of committing of the crime and could not have expected to examine the child so as to collect the memory of the worst incident that took place in her life. When it involves dignity and honour of the child and her family, it cannot be expected that a child of such a tender age to step into witness box and depose the facts." In the present case, there is no doubt about the identity of the accused. When it involves dignity and honour of the child and her family, it cannot be expected that a child of such a tender age to step into witness box and depose the facts." In the present case, there is no doubt about the identity of the accused. 12. Section 60 of the Evidence Act stipulates that the oral evidence must be direct that is to say the fact to be proved should be such which could be seen, heard, trusted or felt by a witness who says he saw, heard or felt. It is to be noted that Section 60 of the Evidence Act does not preclude from considering the circumstantial evidence of things that could be seen or felt. 13. In the matters of offences affecting the human body like rape and unnatural offences, the Court is expected to be guided by the well established principles in appreciating the direct and circumstantial evidence or both to see that none of the parties would suffer in the hands of the Court. In the case of Sudhansu Sekher Sahoo Vs. State of Orissa : 2003 CriLJ 4920, the Apex Court has observed that : "It is true that the evidence of the prosecutrix in a rape case is to be given due weight. The sexual violence is a dehumanising act and it is an unlawful encroachment into the right to privacy and sanctity of woman. The courts also should be strict and vigilant to protect the society from such evils. It is in the interest of the society that serious crimes like rape should be effectively investigated. It is equally important that there must be fairness to all sides. In a criminal case, the court has to consider the triangulation of interests. It involves taking into account the position of the accused, the victim and his or her family and the public. The purpose of criminal law is to permit everyone to go about their daily lives without fear of harm to person or property." 14. The conduct of the victim that she tried to run away from the accused when the trial Court asked the accused to take her in his lap would be relevant for consideration of the present case. 15. The conduct of the victim that she tried to run away from the accused when the trial Court asked the accused to take her in his lap would be relevant for consideration of the present case. 15. As far as the oral evidence on the issue of rape is concerned, PW-1 is brother of the victim, who in his examination in chief has stated that when the victim did not reach home at night, he accompanied with Pravesh, Yogesh and Satish went towards Dhakar Gate to trace his sister. In the bush near Dhakar Gate, the victim was found blood stained and the accused appellant Kullu @ Deepak was lying on her while he was naked. On seeing these witnesses the accused fled away. This witness had torch with him. He saw and recognized the accused in the light of torch. The examination-in-chief of this witness was conducted on 08.10.2013 and cross examination was deferred for the reasons which shall be mentioned later. Cross examination was conducted on 25.01.2014 about three and half months after the examination in chief in which he admitted that when he reached near his sister, she was groaning. Hence, he saw the accused from behind but could not see what he was wearing. Thus, even from the examination-in-chief and cross examination, the identity of the accused is well established. What clothes the accused was wearing would not be relevant. In cross-examination trying to save the accused, he has stated that he named Kullu in the report because the villagers had stated that no one except Kullu could do such an act. He has admitted that the victim bled after the incident and clothes of this witness were also blood stained when he took the child in his lap. Satish is also said to be an eye witness who saw the accused fleeing away from the spot. He has admitted that while tracing the child he accompanied Kapil PW-1, the brother of victim and the victim was groaning near the bush. He did not see the accusing running away from the child. This witness was declared hostile by the prosecution. 16. The evidence of prosecution witness who is said to have turned hostile, cannot be rejected in toto, merely because the prosecution just chose him to treat as a hostile witness and cross examined him. He did not see the accusing running away from the child. This witness was declared hostile by the prosecution. 16. The evidence of prosecution witness who is said to have turned hostile, cannot be rejected in toto, merely because the prosecution just chose him to treat as a hostile witness and cross examined him. The evidence of such witness cannot be treated as effaced or washed off the record altogether, but the same can be accepted to the extent that version is found to be dependable on careful scrutiny thereof. In (1999) 8 SCC 624 : Koli Lakhmanbhai Chanabhai Vs. State of Gujarat the Apex Court has held as under : "............It is settled law that evidence of hostile witness also can be relied upon to the extent to which it supports the prosecution version. Evidence of such witness cannot be treated as washed off the record. It remains admissible in the trial and there is no legal bar to base his conviction upon his testimony if corroborated by other reliable evidence." 17. PW-4 is Pravesh who is also said to have accompanied Kapil when he proceeded to trace his sister. He has also admitted that when they reached near Dhakar Gate, they found the victim groaning near the bush. But he did not see Kullu @ Deepak running away from there. As far as the statement of this witness not seeing the appellant running away from there is concerned, naming one particular person of the village not running from the place of incident itself is indicative of the fact that this witness PW-4 namely Pravesh is trying to withhold the other part of truth because he has admitted that he saw the child groaning near the bush, but he did not see the accused fleeing away, thus, there is evidence of Kapil PW-1 coupled with part evidence of hostile witness of PW-4 Pravesh, which shows and proves the implication of the appellant in the crime. As far as the medical aspect of the matter is concerned, PW-5 Dr. Sayara Bano has stated that the victim had blood stains on her thighs, legs and private parts and there was swelling over the labia majora which was tender to touch. Even hymen was torn and was bleeding on touch. It was inflamed and tendered. As far as the medical aspect of the matter is concerned, PW-5 Dr. Sayara Bano has stated that the victim had blood stains on her thighs, legs and private parts and there was swelling over the labia majora which was tender to touch. Even hymen was torn and was bleeding on touch. It was inflamed and tendered. There was a tear in the mid line of perineum at 6 o'clock position which was about 2 x 1 cm in size. The doctor had opined that there was possibility of the victim having been raped. No contradiction in the statements of witnesses was put to the Investigating Officer. Although, the contradictions were put to the prosecution witnesses. Thus, the factum of rape is established by the medical report also. The Forensic Lab report is also on record being Ex. Ka-12, according to which on the t. shirt, underwear and the blood stained earth human blood was found. This corroborates the prosecution case. 18. The site plan shows the place where the victim was raped. It shakes the conscience of the Court as to how helpless young small child who was unable to speak has been made the victim of rape by the accused who was aged about 25 years and has wife and three children. He did not hesitate to shatter the life and personality of a small child. In the statement under Section 313 Cr.P.C. while denying the occurrence he has only stated that he has been falsely implicated in this case. But there is nothing on record to prove or show the false implication of the accused in the offence. No suggestion was given as to why the prosecution witnesses had falsely named the accused. Thus, on the basis of the oral evidence coupled with the medical evidence of the Forensic Lab report, the prosecution has been able to prove, beyond all reasonable doubt, the charges framed against the accused. 19. The counsel for appellant has submitted that the sentence of 10 years rigorous imprisonment and fine of Rs.50,000/- was a very harsh sentence imposed on the accused. As far as the reduction of sentence is concerned, the sentencing policy and cordial 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. As far as the reduction of sentence is concerned, the sentencing policy and cordial 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. The Apex Court has repeatedly stressed the central role of proportionality in sentencing an offender in numerous cases. The law regulates social interests, arbitrates conflicting claims and demands. The security of persons and property of the people is an essential function of the State which could be achieved through the 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 corner-stone of the edifice of "order" should meet the challenges confronting the society. In (2009) 7 SCC 254 : Ahmed Hussein Vali Mohammed Saiyed Vs. State of Gujrat the Apex Court has 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 (sic break the) law by imposing appropriate sentence. It is expected that the courts would operate the sentencing system so as to impose such sentence which reflects the conscience of the society and the sentencing process has to be stern where it should be. Any liberal attitude by imposing meagre sentences or taking too sympathetic view merely on account of lapse of time in respect of such offences will be resultwise counterproductive 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." 20. In the present case, the accused appellant although a married person caught this helpless small girl, who is unable to speak and committed rape on her. I do not think the sentence imposed on him needs reduction. In fact, the sentence imposed on him is just and proper according to the facts and circumstances of the case. 21. In the present case, the accused appellant although a married person caught this helpless small girl, who is unable to speak and committed rape on her. I do not think the sentence imposed on him needs reduction. In fact, the sentence imposed on him is just and proper according to the facts and circumstances of the case. 21. In the result the appeal has no force and is liable to be dismissed and is hereby dismissed. The appellant is in jail. He shall serve out the remaining sentence. 22. Let certified copy of this order be transmitted to the trial Court concerned for compliance. —————— ——————