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Allahabad High Court · body

2020 DIGILAW 1451 (ALL)

Sohan Pal v. State of U. P.

2020-12-08

RAMESH SINHA, SAMIT GOPAL

body2020
JUDGMENT : RAMESH SINHA, J. 1. The present appeal has been filed by the appellant against the judgment and order dated 27.7.2006 passed by Additional District and Sessions Judge, Court No. 5, Meerut in S.T. No. 175 of 2004 (State vs. Sohanpal) convicting the appellant under sections 452 IPC and sentencing him to 01 year rigorous imprisonment and a fine of Rs. 1000/- and in default of payment of fine to further undergo 01 month rigorous imprisonment, under section 376 IPC imprisonment for life and a fine of Rs. 25,000/- and in default of payment of fine to further undergo 01 year rigorous imprisonment, under section 307 IPC imprisonment for life and under section 380 IPC 01 year rigorous imprisonment and fine of Rs. 500/- only and in default of payment of fine to further undergo 01 month rigorous imprisonment, respectively and all the sentences were directed to run concurrently. 2. In view of the legislative mandate as contained in Section 228-A of the Indian Penal Code and the observation made by the Apex Court in it’s catena of judgments, the identity of the prosecutrix/victim is not being disclosed and she is referred to as ‘A’ hereinafter. 3. The prosecution case as set out in the F.I.R. by the informant Kashi Ram, who submitted a written report which was written by Tota Ram on 27.11.2003 addressed to Station House Officer of Police Station Transport Nagar, Meerut stating that the informant Kashi Ram resident of near Hapur Line, Mohalla Chandralok, Police Station Transport Nagar in the morning of 27.11.2003 he went to Rohta Road for selling vegetables on a Cart. His wife Sonwati had gone to purchase vegetables from Mandi. His two younger children had gone to school and his daughter was alone in the house at about 8:30 a.m. Sohan Pal son of Megh Raj resident of Kunwa Wali Gali, Lalapura Nai Basti, Police Station Transport Nagar, Meerut in morning in his absence had come to his house and after bolting the house from inside committed rape with his daughter namely ‘A’ and in order to kill her, cut her neck. After the incident he was seen coming out of the house by Bhartu Khat Wala and Ram Chandra son of Deewan Chandra, who were resident of Mohalla Chandralok and his daughter ‘A’ in a pool of blood came out of the house, who was taken to police station by the said two persons and the incident was seen by many other. On receiving the information, the informant reached the police station. 4. On the basis of the written report submitted to the Police Station Transport Nagar on 27.11.2003, a First Information Report was registered on the same day at 9:45 a.m. at the said police station against the appellant Sohan Pal. The investigation of the case was entrusted to Sub Inspector Subhash Chandra Tyagi, who recorded the statements of witnesses under section 161 Cr.P.C. and prepared site-plan of the place of occurrence and also recovered the scissor, the weapon of assault and also prepared the site-plan of the place from where the scissor was recovered. A fard recovery of a paper, which was written by the victim/prosecutrix was also taken into custody by the Investigating Officer on 27.11.2003. The Investigating Officer also took into custody the bloodstained clothes of the victim along with bloodstained earth and plain earth, for which a recovery memo was also prepared by the Investigating Officer. The victim/prosecutrix was medically examined at Medical College, Meerut and other relevant papers were prepared by the Investigating Officer, who submitted charge-sheet against the appellant Sohan Pal under sections 376, 307, 452 and 380 IPC. The case was committed to the Court of Sessions by the Magistrate and the trial Court framed charges against the accused Sohan Pal under sections 452, 376, 307 and 380 IPC, which was denied by the appellant, who claimed trial. 5. The prosecution in support of its case has examined PW-1 Kashi Ram, PW- Ram Chandra, PW-3 prosecutrix/victim namely ‘A’ PW-4 Dr. Kirti Dubey, PW-5 S.I. Subhash Chandra Tyagi, PW-6 Dr. Sudhir Rathi, PW-7 Dr. Subodh Tyagi. 6. The written statement filed by the prosecution such as written report Exhbit Ka-1, the recovery memo with respect to paper written by the victim/prosecutrix taken into custody by the police Exhibit Ka-2, recovery memo of bloodstained clothes of the victim and plain and bloodstained earth Exhibit Ka-3, recovery memo of the weapon of assault bloodstained scissor, which is used for cutting clothes Exhibit Ka-2. The medical examination report of the prosecutrix/victim prepared by Dr. Kirti Dubey Exhibit Ka-4 and Ka-5. Site-plan Exhibit Ka-6 and written statement of prosecutrix/victim ‘A’ Exhbit Ka-4A, Chik F.I.R. Exhibit Ka-9, carbon copy of G.D. Exhibit Ka-10, charge-sheet Exhibit Ka-7 and medical examination report of the prosecutrix/victim Exhibit Ka-11. 7. The statement of appellant Sohan Pal was recorded by the trial Court under section 313 Cr.P.C. in which he has stated that the prosecution case against him is a false one, which has been registered against him in collusion with the informant and a false and concocted report has been prepared against him. The witnesses have falsely and wrongly deposed against him and all the proceedings which have been initiated against him is a fabricated and concocted one and no scissor was recovered at his pointing out and the witnesses because of inimical relationship had deposed against him and have falsely implicated. The victim had taken some money from him and the same was outstanding on the victim of the appellant and when he demanded the same, he was falsely implicated. The accused in his defence did not led any evidence. 8. PW-1 Kashi Ram who is the informant and father of the victim/prosecutrix has deposed before the trial Court reiterating the prosecution case, as has been narrated in the F.I.R. and stated that on 27.11.2003 in the morning he had gone to Rohata Road for selling vegetables on a Cart and his wife Sonwati had gone to Mandi to purchase vegetables and in his house two younger children had gone to school and the victim/prosecutrix ‘A’ was alone in the house, who was aged about 15 years and his elder son Manoj had also gone to work on the same day. At about 9:00 a.m. Bhartu Khat Wala had come to him and informed him that his daughter’s namely ‘A’ neck has been cut by Sohan Pal and committed rape on her. Sohan Pal was seen coming out of the house by Bhartu Khat Wala and Ram Chandra. The informant went to police station on the Vicky (vehicle) of Bhartu Khat Wala to police station where he found outside the police station his daughter ‘A’ and other persons of his Mohalla. Sohan Pal was seen coming out of the house by Bhartu Khat Wala and Ram Chandra. The informant went to police station on the Vicky (vehicle) of Bhartu Khat Wala to police station where he found outside the police station his daughter ‘A’ and other persons of his Mohalla. He got the report written by his brother Tota Ram outside the police station and what was dictated by the informant, the scribe wrote the same and the said report was read over to him and he had put his signature on the written report after hearing the same and has proved the written report as Exhibit Ka-1, which was dictated by him and proved his signature on the same. He further deposed before the trial Court that Sohan Pal was a distant relative of the witness and he used to often come to his house. On the day of the incident, appellant Sohan Pal had come to his house and the door was found to be broken, which got it opened and came inside and committed rape on his daughter and with an intention to kill her, cut her neck. Appellant after 15 days of the incident surrendered and got the scissor, the weapon of assault recovered and after 15 days, the witness was called at the police station, on which he along with Swaraj went to the police station and Sohan Pal in the presence of them had told that he had concealed the scissor near the railway track in bushes and he can get the same recovered. He along with Swaraj and Sohan Pal were taken in police jeep by the police to Hapur Railway Line where Sohan Pal had got the scissor recovered, which was bloodstained and Sohan Pal Stated that he had cut the neck of the victim/prosecutrix ‘A’ with the same. The Investigating Officer at about 3:00 p.m. on the same day prepared the recovery memo of the scissor, which was signed by him and other witnesses and he proved the signature on the same. 9. In the cross examination, the witness has stated that he had four children out of which three were daughters and one son and the elder child was his son. 9. In the cross examination, the witness has stated that he had four children out of which three were daughters and one son and the elder child was his son. He has stated that his elder son is aged about 18 years and his daughter, the prosecutrix/victim ‘A’ was aged about 16 years, the third daughter Manju was aged about 14 years and the youngest one Monika was aged about 11 years. He used to sell vegetables at Rohta Road on a cart, on which he used to sit alone. He used to leave his house at 7:00 a.m. and his wife used to go to Mandi to purchase the items. He did not go to Mandi, as his wife used to go alone. The time on which the incident had taken place, he was on his vegetable cart and his wife was also along with him. His wife used to go to the house at about 10:10 a.m. after settling the vegetables on his cart and his wife used to leave the house at about 7:00 a.m. in the morning for Mandi. Vegetables Cart is at a distance of 01 Km. away from his house. His house is near Hapur Wali Line at Chandralok from the place where he used to sell vegetables on vegetable cart. The information about the incident was firstly given to him by Bhartu, who used to live opposite to his house near Railway Line. Bhartu did not frequently visit his house and only he was known to the witness. When Bhartu had informed about the incident then his wife was also present at his vegetable cart. Bhartu had told that that Sohan Pal had cut the neck of his daughter ‘A’ the victim/prosecutrix and also committed rape on her. On receiving the said information he went to the police station along with Bhartu on his Vicky (two seater vehicle), he reached the police station at 9:00 a.m. where he found his daughter victim ‘A’ at outside alongwith other persons of his mohalla and brother Tota Ram outside the police station. He only knew Driver Prem and Ram Chandra and did not know the names of other persons there of his mohalla. He had talked to his daughter ‘A’, who was not able to speak. His wife had reached the police station afterwards. He only knew Driver Prem and Ram Chandra and did not know the names of other persons there of his mohalla. He had talked to his daughter ‘A’, who was not able to speak. His wife had reached the police station afterwards. They remained outside the police station for about 45 minutes and that time his daughter ‘A’ was unconscious and she did not tell anything to him and on the information given by Bhartu and Ram Chandra he had lodged the report against Sohan Pal, who had seen Sohan Pal coming out of his house. He had got the report written from his brother Tota Ram. He had dictated the report to Tota Ram, who had written the same and he had put his signature on the same. In the written report, he had written that Sohan Pal had cut his daughter’s neck and committed rape on her and some other things also he had got it written, but he did not remember. He has further stated that house of Sohan Pal was at great distance from his house. Sohan Pal used to frequently come to his house. He used to visit his house since when the informant/witness was married in the year 1984. He neither carried on any business with Sohan Pal nor had taken any money from him on loan. He had gone to the police station only once and thereafter had gone to the police station after 15 days of the lodging of the report. The Investigating Officer had recorded his statement under section 161 Cr.P.C. after 10 days of the incident and after 15 days of the lodging of the report. He went to the police station when the appellant had surrendered. He had proved the recovery of bloodstained scissor at the pointing out of the appellant from the bushes near Hapur Railway Line and he was accompanied with witness Swaraj and Sohan Pal in police jeep along with police personnel at the place of recovery of scissor. He further stated in his cross examination that he had kept Rs. 300/- at his house, which was taken away by the appellant Sohan Pal on the day of the incident. He further stated in his cross examination that he had kept Rs. 300/- at his house, which was taken away by the appellant Sohan Pal on the day of the incident. He further deposed in his cross examination that his daughter victim ‘A’ was first admitted to Medical College thereafter she was referred to All Indian Institute of Medical Science, Delhi where in January, 2005 she was operated, she remained admitted in AIIMS for about one month. He further deposed that the place from where scissor was recovered there was no plot or field but it was recovered from the bushes near the Railway Line, which was standing. The appellant had got recovered the bloodstained scissor from the bushes where he had concealed. He had proved his written report Exhibit Ka-1 on the basis of which F.I.R. was lodged against appellant. 10. PW-2 Ram Chandra in his deposition before the trial Court has stated that on 27.11.2003 at 8:30 or 9:00 a.m. in the morning he was going to purchase milk and on the way he met Bhartu Khat Wala, who were going together and when they reached the house of Kashi Ram then they saw Sohan Pal coming out of the house of Kashi Ram under fear. The witness went to the house of Kashi Ram and saw from the door of the house, which was opened, by peeping and saw that the victim ‘A’ was lying in pool of blood and there was no clothes on her body, the witness raised alarm on which people of the nearby area gathered at the house of Kashi Ram, at that time there was no one present at the house of Kashi Ram, nor Kashi Ram or the brother and sister of the victim ‘A’ were present. The witness further stated that he took the victim to police station. The report of the incident was lodged by Kashi Ram at the police Station, who was called and brought by Bhartu at the police station. The witness further stated that on 27.11.2003 the Investigating Officer had taken into custody a paper written by the victim ‘A’ for which a recovery memo was prepared and he had put his thumb impression on the same and the witness in his cross examination has stated that his wife Sona is the real Mausi of the victim ‘A’ and he is Mausa of the victim. He has denied his criminal antecedents and has further denied that he used to change his residence frequently. The witness has further deposed that when he was going to take milk then he met Bhartu who met him 02 furlongs from his house. The witness has further stated that Bhartu did not accompany him for taking milk. Bhartu was going to Chandralok. He stated that on the alarm raised he saw from the door of the house of Kashi Ram, the victim ‘A’ who was in pool of blood and naked. He further stated that prosecutrix/victim ‘A’ in a pool of blood had came out of the house and gone straight to railway line crossing went away towards Shiv Hari Mandir Colony. He further stated that he saw the victim in a naked condition wearing Kurta and seen her running. He stated that he did not give the said statement to the Investigating Officer, who recorded his statement under section 161 Cr.P.C. for which he cannot tell any reason. He further stated that he did not depose to the Investigating Officer that the victim has told him that Sohan Pal had bolted the room from inside and committed rape on her. The said statement which has been recorded by the Investigating Officer of the witness, he cannot tell the reason for recording of the same. The witness further stated that when he for the first time peeped in the house of the prosecutrix/victim ‘A’ except her, he did not see any other person there. Parents of the victim on receiving the information rushed to the police station. He further stated that in his cross examination that he had once put his thumb impression and did not put his thumb impression on any other paper. 11. PW-3 prosecutrix/victim ‘A’ who is also an injured witness in the incident in examination-in-chief, which was recorded in question-answer form by the trial Court has deposed that she knew the accused-appellant Sohan Pal. Kashi Ram is her father and Sonwati is her mother. She stated that her father used to keep vegetables on a cart at Rohta Road and she has one brother and they are three sisters. At the time of the incident, she was at her house, she has studied upto Class V and after Class V she had left her studies. She used to live at her house. She stated that her father used to keep vegetables on a cart at Rohta Road and she has one brother and they are three sisters. At the time of the incident, she was at her house, she has studied upto Class V and after Class V she had left her studies. She used to live at her house. She has stated that at the time of the incident she was aged about 16 years and the incident had taken place on 27.11.2003 at 8:30 a.m. in the day. At the time of the incident, she was at her house, her mother had gone at 6:30 a.m. to Mandi for taking vegetables and her sisters had gone to school and her brother had gone on work. Sohan Pal had come to her house twice on the death of her grand maternal mother (Nani). Two days prior to the incident, he had come enquiry about Palli, at that time her sister was with her, hence he had returned from outside. Prior to the incident she could speak. The prosecutrix/victim stated that on 27.11.2003 at 8:30 a.m. Sohan Pal had come to her house and she had gone for some work in her room and then Sohan Pal followed her and closed her mouth and thereafter he bolted the door from inside, on which she raised alarm but as the volume of the ‘Deck’ was raised full by him, due to which person from outside could not hear her and the appellant committed rape on her. Victim knew the meaning of rape. The accused caught string of her Salwar pulled it off and rape was committed by him on the floor of the house and when she stated that she would complain to her mother about the incident then accused-appellant Sohan Pal had cut her neck with the scissor, which is used for cutting clothes. She was assaulted by the accused with an intention to kill. At the place of occurrence blood oozed out. The accused Sohan Pal also taken Rs. 300/- which was lying on her Cot and realizing that the victim has died he went away leaving the door closed. She was assaulted by the accused with an intention to kill. At the place of occurrence blood oozed out. The accused Sohan Pal also taken Rs. 300/- which was lying on her Cot and realizing that the victim has died he went away leaving the door closed. When the victim gained conscious she found herself in a naked condition and reached near the Hapur Railway Line and people took her to police station where she could not speak, she wrote on a paper, which was taken from a Register i.e. Paper No. 1-A/2 and proved the same, which was under her hand writing and signature marked as Exhibit Ka-4. She stated that after the incident, as she was not able to speak, her father had got a report written and her medical examination was conducted. The victim in her cross examination has stated that Sohan Pal was his Mausa, her mother had three sisters out of which none of them was married to Sohan Pal. She stated that the village from where her mother belong, in the same village one Tausi used to live. Tausi is not the sister of her mother. Sohan Pal is not her real Mausa and is distantly related to her as Mausa. The appellant is not the resident of her mohalla and nor she had gone to the house of Sohan Pal. Sohan Pal used to live in Nai Basti, Lallapura and she does not know how far is his house. The witness further stated in her cross examination that her parents had gone to the house of Sohan Pal once or twice and he used to sell Foot-mat (Paudan) and her father had no partnership with him nor had any money transaction with him nor he had any quarrel with him. The witness stated that on the day of the incident she was wearing Salwar and suit and stated that on her clothes bloodstained were found and where are her clothes she does not know, as she had become unconscious, blood was also fallen on the ground. The railway line is at a short distance. She stated that after the incident she saw the appellant at the time of recording of evidence before the Court and before the same, she saw two days before. The railway line is opposite to her house. She reached near the railway line as inside the door was opened. The railway line is at a short distance. She stated that after the incident she saw the appellant at the time of recording of evidence before the Court and before the same, she saw two days before. The railway line is opposite to her house. She reached near the railway line as inside the door was opened. In the incident about 1/2 an hour took place. When she raised alarm Sohan Pal had caught hold of her mouth. At the time of incident there was only one person. The accused-appellant had caught hold of her hair by one hand and by the other he caught hold of her mouth. Her salwar was not on her body and the accused after committing rape had worn his clothes, as the volume of the Deck was raised, hence her alarm could not reach outside the house. The accused had first left. The victim was shown Exhibit Ka-5 her statement, seeing the same she stated that she has written the same, which was dictated by the Sub Inspector in the Hospital after 20-25 days of the incident. It took 10 minutes for the accused to commit rape. Firstly the medical treatment of the victim was conducted at Meerut Medical College and thereafter she was referred to AIIMS, Delhi. Prior to the incident she has not washed her clothes. She had written about the person committing rape on her and gave same to the police inspector and in the same she has not written the parentage of Sohan Pal and his residence. She has specifically denied that some unknown boys of the mohalla had committed rape on her and further denied that on account of inimical enmity, the name of Sohan Pal has been implicated. She further stated that there was no money transaction between her father and Sohan Pal. The case has been rightly lodged against Sohan Pal. 12. PW-4 Dr. Kirti Dubey has been examined before the trial Court and she has stated that she had medically examined the victim and her hymen was found torned and admitting one finger with difficulty, vaginal swab was taken and sent for the presence of spermatozoa. On the basis of radiologist report, the age of victim ‘A’ was found to be above 16 years and less than 19 years. She has proved the medical examination report Exhibit 4A dated 28.11.2003. On the basis of radiologist report, the age of victim ‘A’ was found to be above 16 years and less than 19 years. She has proved the medical examination report Exhibit 4A dated 28.11.2003. She opined that no definite opinion regarding rape can be made at the time of incident. She stated that the victim could be aged about 16 years. 13. PW-6 Dr. Sudhir Rathi stated that he had examined the victim at Medical College Meerut and he conducted her operation of neck on 27.11.2003. An injury was found on her neck, which was found to be cut, which was on the front side and the same was bleeding. She was having difficulty in breathing. She was given local anesthesia and another way was made in order to continue the breathing. She was completely made unconscious and her lairings was repaired and veins were bleeding, which were tied and other injuries were stitched and repaired. He proved the supplementary report of the victim and his hand writing and signature and proved the same as Exhibit Ka-4. 14. PW-7 Dr. Subodh Tyagi who has examined the victim, has found the following injuries on her person (Exhibit Ka-11): “1. Lacerated wound 7 cm x 3 cm x depth not probed 2.5 cm below from chin. Fresh blood present. 2. Lacerated wound 3 cm x 1.25 cm x trachea exposed with abrasion in an area of 5 cm x 3 cm around it on midline of neck 4 cm below from injury no. 1. Sucking of air present from wound. Fresh blood present. 3. Multiple linear incised wound x depth not probed placed transversely on front of lower neck varying in size from 3 cm to 9 cm. Fresh blood present. Detailed examination of the patient could not be done due to serious condition and patient was shifted to G.O.T. immediately for management in the interest of her life.” 15. In the opinion of the said doctor, injury nos. 1 and 2 were caused by hard and blunt object, whereas injury no. 3 by sharp edged object and duration was found to be fresh. The witness further stated that the said injuries were dangerous to life, if the medical treatment could not be given to the victim and injury no. 3 could be caused by scissor. 16. 1 and 2 were caused by hard and blunt object, whereas injury no. 3 by sharp edged object and duration was found to be fresh. The witness further stated that the said injuries were dangerous to life, if the medical treatment could not be given to the victim and injury no. 3 could be caused by scissor. 16. PW-5 S.I. Subhash Chandra Tyagi, who is the Investigating Officer of the case in his statement before the trial Court has stated that the victim ‘A’ had come at the police station and on her neck there was injury and she was not able to speak and she had not worn a Salwar and she was given a trouser pant to wear the same in order to save her from embarrassment from public at large. He stated that the victim with her bloodstained hand had written on a register the name of the accused Sohan Pal, who had committed rape on her, on which she had signed the same, which is marked as Exhibit Ka-4. The said paper of the Register was taken into custody by the witness, which was signed by two witnesses and he has proved the same as Exhibit Ka-2. The witness has stated that as the condition of the victim ‘A’ was very serious, hence she was first sent to Pyare Lal Hospital. He prepared the site-plan of the place of occurrence and proved the same as Exhibit Ka-6 in his hand writing and signature. He also on the same day, had recorded the statement of the scribe of the F.I.R. Prior to it, he he had taken the bloodstained clothes and bloodstained earth and plain earth and also bloodstained cement floor, for which he prepared a recovery memo in his hand writing and signature and proved the same as Exhbit Ka 3. He further stated that he got a bloodstained scissor, which is used for cutting clothes at the pointing out of accused-appellant Sohan Pal recovered on the information given by him. For getting the same recovered, he took the appellant on remand and recovered the same in presence of of the informant and one Swaraj Singh and he has prepared the recovery memo of the scissor in his hand writing and marked as Exhibit Ka-2. For getting the same recovered, he took the appellant on remand and recovered the same in presence of of the informant and one Swaraj Singh and he has prepared the recovery memo of the scissor in his hand writing and marked as Exhibit Ka-2. He has also stated that prosecutrix/victim had given a written statement in his presence, which he has incorporated in the case diary and the written statement of the victim has been proved by him as Exhibit Ka-5. 17. After considering the prosecution evidence and the statement of accused recorded under section 313 Cr.P.C. the trial Court came to the conclusion that the prosecution has proved it’s case beyond reasonable doubt against the appellant Sohan Pal and, thus, convicted and sentenced him for the offences in question by the impugned judgment and order. Aggrieved by the same, the appellant has preferred the instant appeal. 18. Heard Sri. Dinesh Kumar, learned Amicus-Curiae for the appellant, Kumari Meena, learned AGA for the State and perused the record. 19. It has been argued by learned counsel for the appellant that PW-1 Kashi Ram, who is the informant of the case is not an eye witness of the occurrence and he came to know about the incident from Bhartu Khat Wala when he was selling vegetables on his Cart and, thereafter, he went to the police station along with Bhartu and inquired about the incident from his daughter and lodged the first information report against the appellant, but the witness Bhartu Khat Wala has not been produced by the prosecution before the trial Court and his evidence was not recorded. He further submitted that the other witness PW-2 Ram Chandra, who saw the appellant coming out of the house of the informant after committing crime, but from his evidence it is apparent that his testimony is not trustworthy. He submitted that Bhartu the eye witness, who had also seen the appellant coming out of the house of the informant after committing crime in his cross examination PW-2 has stated that Bhartu had not gone with him to take milk and Bhartu was going to Chandralok. He in his cross examination when was confronted with his statement under section 161 Cr.P.C. which was given to the Investigating Officer it was stated by him that the prosecutrix/victim ‘A’ had told him that Sohan Pal has committed rape on her after bolting the room. He in his cross examination when was confronted with his statement under section 161 Cr.P.C. which was given to the Investigating Officer it was stated by him that the prosecutrix/victim ‘A’ had told him that Sohan Pal has committed rape on her after bolting the room. He stated that he cannot tell the reason as to how such a statement was recorded by the Investigating Officer under section 161 Cr.P.C. He next submitted that the accused in his statement under section 313 Cr.P.C. has stated before the trial Court that on account of enmity he was falsely implicated in the present case as he owed some money to the prosecutrix/victim and when he demanded the same, he was falsely implicated in the present case. He next argued that the appellant is already a married person, hence it was not possible for him to commit such a heinous crime. It was further argued that from the evidence of PW-5, the victim was taken from police station to Pyare Lal Hospital for treatment, and thereafter referred to medical college, but there is no medical report of Pyare Lal Hospital. As per radiologist report, the victim is above 16 years and below 19 years of age. It appears that the incident has taken place in some other manner and not stated by the prosecution. PW-2 Ram Chandra, who happens to be Mausa of the victim, his evidence is highly interested and partisan one, therefore no credibility should be given to it. It was lastly submitted that the appellant has surrendered and is in jail for last 17 years i.e. since 2.12.2003 and the time of incident he was aged about 50 years and as on date he is 61 years of age. The recovery, which has been made of Scissor, the weapon of assault at the pointing out of the appellant is after 15 days of the incident, which is a false recovery, in fact no recovery was made of Scissor at the pointing of the appellant. 20. Learned AGA on the other hand has vehemently opposed the argument of learned counsel for the appellant and submitted that as per the prosecution case, the prosecutrix/victim is a minor girl aged about 15 years on the date of incident and as per her medical report she is stated to be above 16 and below 19 years of age. 20. Learned AGA on the other hand has vehemently opposed the argument of learned counsel for the appellant and submitted that as per the prosecution case, the prosecutrix/victim is a minor girl aged about 15 years on the date of incident and as per her medical report she is stated to be above 16 and below 19 years of age. She was subjected to rape by the appellant in the absence of her parents, brother and sisters when she was alone in the house and when she told the appellant that she would complain about the incident to her parents then she was further assaulted by scissor on her neck by the appellant due to which she received serious injuries on her neck and was operated at Medical College, Meerut thereafter admitted in AIIMS, New Delhi and after the incident she was not able to speak and she gave a written statement to the police soon after the incident when she reached the police station on a paper taken out from a Register, which has been marked as Exhibit 4A, in which she has stated that it was the appellant who had committed rape on her. Moreover, she has also deposed against the appellant before the trial Court categorically for subjecting her to rape and further inflicting her serious injuries on her neck. The eye witness PW-2 Ram Chandra and other eye witness Bhartu Khat Wala had seen the appellant coming out of the house in a disturbed mental state and PW-2 took the victim and rushed to the police station along with other persons of the mohalla whereas Bhartu Khat Wala had gone to inform PW-1 about the incident, who thereafter reached the police station and inquired about the incident and lodged the F.I.R. against the appellant on the same day and the trial Court after assessing the evidence led by the prosecution, has rightly convicted the appellant for the offence in question. The argument of learned counsel for the appellant that the appellant is in jail for 17 years is of no significant keeping in view the gravity of the crime committed by appellant and the appeal deserves to be dismissed by this Court. 21. After considering the rival submissions advanced by learned counsel for the parties, we have gone through the impugned judgment as well as record of the case thoroughly. 21. After considering the rival submissions advanced by learned counsel for the parties, we have gone through the impugned judgment as well as record of the case thoroughly. The appellant Sohan Pal is named in the F.I.R. which has been lodged by PW-1 Kashi Ram promptly on 27.11.2003 at 9:45 a.m. at Police Station T.P. Nagar, Meerut, which was at a distance of half kilometer away from the place of occurrence for a incident, which has taken place on 27.11.2003 at 8:30 a.m. on the information given by Bhartu Khat Wala, where he was selling vegetables on a Cart. At the time when the information was given to him, his wife was also present. PW-1 on receiving the information about the incident by Bhartu Khat Wala immediately rushed to the police station on his Vicky (two seater vehicle) to the police station, where he found his daughter along with PW-2 Ram Chandra and other persons of his mohalla outside the police station. He talked to his daughter the prosecutrix/victim ‘A’ who was unable to speak and had given a written statement on a paper, which was taken out from a Register to the police, disclosing the fact that her rape was committed by the appellant Sohan Pal. The victim was in a pool of blood and her clothes were also bloodstained. The F.I.R. was written by his brother Tota Ram at the police station and submitted the same for lodging of the F.I.R. against the appellant Sohan Pal, which was registered on the basis of the written report submitted by PW-1, who proved the same as Exhibit 1 before the trial Court. 22. When the accused surrendered on 2.12.2003, the Investigating Officer applied for remand of the appellant from the Court of A.C.J.M. II, Meerut on 3.12.2003 and recorded his statement and the appellant further stated that he would get the weapon of assault i.e. Scissor recovered. 22. When the accused surrendered on 2.12.2003, the Investigating Officer applied for remand of the appellant from the Court of A.C.J.M. II, Meerut on 3.12.2003 and recorded his statement and the appellant further stated that he would get the weapon of assault i.e. Scissor recovered. Thereafter on 11.12.2003 the accused/appellant was taken on a police remand for two days and got recovered the Scissor, which was bloodstained near Hapur Railway Line from the bushes, wrapped in a polythene and given to the Investigating Officer and further confessed that he had inflicted injuries with an intention to cut the neck of the prosecutrix/victim and the incident had taken place on 21.11.2003 at 9:00 a.m. The recovery memo of bloodstained scissor was prepared by the Investigating Officer and marked as Exhibit Ka-2 and the said recovery was also made in the presence of informant Kashi Ram and Swaraj Singh, who have signed the recovery memo. The bloodstained clothes of the prosecutrix/victim ‘A’ plain earth and bloodstained earth along with piece of broken floor, which was also bloodstained, was taken by him and a recovery memo was prepared, as Exhibit Ka-3 on 27.11.2003. 23. From the evidence of PW-3, the prosecutrix/victim ‘A’ whose statement was recorded in question-answer form by the trial Court reveals that she in her evidence has categorically stated that on 27.11.2003 at 8:30 a.m. it was the appellant, who has committed rape on her, while she was in her house and her parents had gone out and her two younger sisters had gone to school and the brother had gone for his work and when she tried to raise alarm, the volume of the ‘Deck’ was raised full by the appellant due to which person from outside could not hear her alarm for rescue. The accused Sohan Pal committed rape on her, when she stated that she would complain to her mother about the incident, the accused-appellant Sohan Pal had cut her neck by Scissor, which is used for cutting clothes with an intention to kill her, which started bleeding, on account of which blood was found on her clothes and also fallen on the floor. After the incident when she gained conscious, she reached near the Hapur Railway Line in a naked condition, which was just in front of her house. After the incident when she gained conscious, she reached near the Hapur Railway Line in a naked condition, which was just in front of her house. People took her to the police station and she wrote on a paper, which was taken from a Register i.e. paper no. 1-A/2 and proved the same, which was under her hand writing and signature and marked as Exhibit Ka-4, in which she disclosed that it was the appellant, who committed rape on her. She stated that after the incident she was not able to speak and further her father had got a report written and her medical examination was conducted. From the medical examination report which was conducted, it is apparent that she suffered three injuries on her neck, which in the opinion of the doctor was found to be serious and patient was shifted to G.O.T. immediately for management in the interest of her life. Her surgery was conducted by PW-6 Dr. Sudhir Rathi on 27.11.2003, who has stated that injury was found on her neck, which was found to be cut, which was on the front side and the same was bleeding. She was having difficulty in breathing, she was given local anesthesia and another way was made in order to continue the breathing. She was completely unconscious and lairings was repaired and veins were bleeding, which was tied and other injuries were stitched and repaired. The supplementary report of the victim was proved by PW-6, to be prepared by in his hand writing and signature and marked as Exhibit Ka.4. The bloodstained clothes of the prosecutrix/victim was sent to forensic lab Vidhi Vigyan Prayogsala, Agra and as per the report of the said lab dated 1.3.2004, on item nos.1 and 2 i.e. Salwar spermatozoa was found and further on item nos. 3 and 7 i.e. Angocha and Scissor bloodstained were found, which goes to show that rape was committed on the victim by the appellant and further she was assaulted by him with scissor, which started bleeding profusely. PW-1 in his evidence before the trial Court has categorically supported the prosecution case against the appellant and proved the F.I.R. lodged by him as Exhibit Ka-9 on the basis of written report as Exhibit Ka-1. PW-1 in his evidence before the trial Court has categorically supported the prosecution case against the appellant and proved the F.I.R. lodged by him as Exhibit Ka-9 on the basis of written report as Exhibit Ka-1. PW-2 Ram Chandra, who is a Mausa of the victim girl had seen the appellant coming out of the house of the informant in a disturbed state of mind and has also rushed the victim along with other persons of mohalla, who came out of the house in a naked condition, there was no clothes, as she was not wearing Salwar and as it has come in the evidence of PW-5 that she was provided Pant to wear in order to save her from embarrassment. PW-2 is also a witness of the recovery of memo of the paper in which the victim has written about the crime being committed by the appellant to the police Inspector, which has been marked as Exhibit Ka-4A, which was taken out from a Register. Therefore the argument of learned counsel for the appellant that the testimony of PW-2 is highly a partisan and interested one and should not be believed, is not at all acceptable. The minor infirmities which has been pointed out by learned counsel for the appellant from the statement of PW-2 do not go to the grass root to demolish the prosecution case, as has been stated by PW-2 and his evidence before the trial Court. PW-6 Dr. Kirti Dubey who has conducted the medical examination of the victim has stated that her hymen was not intact and it admitted only one finger with difficulty. Thus, from the evidence led by the prosecution which includes the testimony of prosecutrix/victim ‘A’ PW-3 along with her medical examination report and the evidence of PW-1 and PW-2 goes to show that the appellant had committed rape on the victim, who is a minor girl and when she stated to complain about the incident to her mother, the accused with an intention to kill her, assaulted on neck with a scissor, causing grievous injuries to her, for which she was operated at Medical College, Meerut and remained in hospital for about a month and also admitted in AIIMS, New Delhi, after her surgery in the medical college, Meerut. 24. 24. The appellant who was taken on police remand got the bloodstained scissor recovered from the place where he has concealed the same of the incident from the bushes near Hapur Railway Line in presence of the informant and a witness Swaraj Singh. As per the report of Vidhi Vigyan Prayogsala dated 1.3.2004 human spermatozoa was found on the Salwar of prosecutrix/victim. Further on the clothes of the prosecutrix/victim ‘A’ and cemented floor of the house where the incident took place, human blood was also found. Thus, the involvement of the appellant is proved beyond reasonable doubt by the prosecution. 25. The Court cannot loose sight that the prosecutrix/victim ‘A’ who was subjected to rape by the appellant Sohan Pal was further assaulted by Scissor on her neck when she told him that she would complain to her mother about the incident of rape. The proseuctrix/victim because of the injury inflicted by the appellant on her neck, lost her power to speak after the incident which goes to show that the appellant has committed a heinous crime of rape and also made an attempt to murder the prosecutrix/victim after committing rape on her, hence the incarceration of the appellant for 17 years in jail, as has been argued by learned counsel for the appellant cannot be sympathetically weighed in comparison to the barbaric act of the appellant on the prosecutrix/victim, who is also an injured witness in the present case against the appellant. Her testimony fully supports the prosecution case, which is corroborated by her medical report against the appellant. The case of the appellant that he was falsely implicated in the present case by the prosecutrix/victim ‘A’ because he owed some money to her, has no substance, as he had failed to produce any oral or documentary evidence in this regard. 26. It would not be out of place to mention here that in cases of rape while considering the question of sentence, the Court has to strike balance between reformative theory and principle of proportionality. 27. We would like to refer here the judgment of the Apex Court reported in Shyam Narain vs. State of NCT of Delhi, AIR 2013 SC 2209 which while considering the question of sentence has observed in para-11, 12 and 22, which is reproduced here as under:- “11. 27. We would like to refer here the judgment of the Apex Court reported in Shyam Narain vs. State of NCT of Delhi, AIR 2013 SC 2209 which while considering the question of sentence has observed in para-11, 12 and 22, which is reproduced here as under:- “11. Primarily it is to be borne in mind that sentencing for any offence has a social goal. Sentence is to be imposed, regard being had to the nature of the offence and the manner in which the offence has been committed. The fundamental purpose of imposition of sentence is based on the principle that the accused must realise that the crime committed by him has not only created a dent in his life but also a concavity in the social fabric. The purpose of just punishment is designed so that the individuals in the society which ultimately constitute the collective do not suffer time and again for such crimes. It serves as a deterrent. True it is, on certain occasions, opportunities may be granted to the convict for reforming himself but it is equally true that the principle of proportionality between an offence committed and the penalty imposed are to be kept in view. While carrying out this complex exercise, it is obligatory on the part of the Court to see the impact of the offence on the society as a whole and its ramifications on the immediate collective as well as its repercussions on the victim. 12. In this context, we may refer with profit to the pronouncement in Jameel vs. State of Uttar Pradesh, wherein this Court, speaking about the concept of sentence, has laid down that it is the duty of every court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed. The sentencing courts are expected to consider all relevant facts and circumstances bearing on the question of sentence and proceed to impose a sentence commensurate with the gravity of the offence.” 22. The sentencing courts are expected to consider all relevant facts and circumstances bearing on the question of sentence and proceed to impose a sentence commensurate with the gravity of the offence.” 22. Keeping in view the aforesaid enunciation of law, the obtaining factual matrix, the brutality reflected in the commission of crime, the response expected from the courts by the society and the rampant uninhibited exposure of the bestial nature of pervert minds, we are required to address whether the rigorous punishment for life imposed on the appellant is excessive or deserves to be modified. The learned counsel for the appellant would submit that the appellant has four children and if the sentence is maintained, not only his life but also the life of his children would be ruined. The other ground that is urged is the background of impecuniousity. In essence, leniency is sought on the base of aforesaid mitigating factors. It is seemly to note that the legislature, while prescribing a minimum sentence for a term which shall not be less than ten years, has also provided that the sentence may be extended upto life. The legislature, in its wisdom, has left it to the discretion of the Court. Almost for the last three decades, this Court has been expressing its agony and distress pertaining to the increased rate of crimes against women. The eight year old girl, who was supposed to spend time in cheerfulness, was dealt with animal passion and her dignity and purity of physical frame was shattered. The plight of the child and the shock suffered by her can be well visualised. The torment on the child has the potentiality to corrode the poise and equanimity of any civilized society. The age old wise saying “child is a gift of the providence” enters into the realm of absurdity. The young girl, with efflux of time, would grow with traumatic experience, an unforgettable shame. She shall always be haunted by the memory replete with heavy crush of disaster constantly echoing the chill air of the past forcing her to a state of nightmarish melancholia. She may not be able to assert the honour of a woman for no fault of hers. Respect for reputation of women in the society shows the basic civility of a civilised society. She may not be able to assert the honour of a woman for no fault of hers. Respect for reputation of women in the society shows the basic civility of a civilised society. No member of society can afford to conceive the idea that he can create a hollow in the honour of a woman. Such thinking is not only lamentable but also deplorable. It would not be an exaggeration to say that the thought of sullying the physical frame of a woman is the demolition of the accepted civilized norm, i.e. “physical morality.” In such a sphere, impetuosity has no room. The youthful excitement has no place. It should be paramount in everyone’s mind that, on one hand, the society as a whole cannot preach from the pulpit about social, economic and political equality of the sexes and, on the other, some pervert members of the same society dehumanize the woman by attacking her body and ruining her chastity. It is an assault on the individuality and inherent dignity of a woman with the mindset that she should be elegantly servile to men. Rape is a monstrous burial of her dignity in the darkness. It is a crime against the holy body of a woman and the soul of the society and such a crime is aggravated by the manner in which it has been committed. We have emphasised on the manner because, in the present case, the victim is an eight year old girl who possibly would be deprived of the dreams of “Spring of Life” and might be psychologically compelled to remain in the “Torment of Winter.” When she suffers, the collective at large also suffers. Such a singular crime creates an atmosphere of fear which is historically abhorred by the society. It demands just punishment from the court and to such a demand, the courts of law are bound to respond within legal parameters. It is a demand for justice and the award of punishment has to be in consonance with the legislative command and the discretion vested in the court. The mitigating factors put forth by the learned counsel for the appellant are meant to invite mercy but we are disposed to think that the factual matrix cannot allow the rainbow of mercy to magistrate. The mitigating factors put forth by the learned counsel for the appellant are meant to invite mercy but we are disposed to think that the factual matrix cannot allow the rainbow of mercy to magistrate. Our judicial discretion impels us to maintain the sentence of rigorous imprisonment for life and, hence, we sustain the judgment of conviction and the order of sentence passed by the High Court.” 28. Thus in view of the above proposition of law, the sentence awarded to the appellant by the trial Court for the offences under section 376 IPC and under section 307 IPC for life imprisonment, respectively is perfectly justified in the instant case, as it shocks the conscience of the society and the Courts must hear the loud cry for justice by the society in cases of rape of innocent helpless girls of tend years and respond by imposition of sentence. To show mercy in the case of such heinous crime, could be travesty of justice and the plea of leniency is wholly misplaced. 29. The trial Court, thus, on the basis of prosecution evidence, has rightly recorded the findings of conviction and sentenced the appellant for the offences in question, which does not require any interference by this Court as the appellant has been found guilty for committing such a heinous crime against a minor girl. 30. In view of the discussions made above, the impugned judgment and order passed by the trial Court and conviction and sentence of the appellant for offences in question is hereby upheld. 31. The appeal lacks merit and is accordingly dismissed. 32. The appellant is in jail, he shall serve out the sentence awarded by the trial Court. 33. Let the lower court record along with a copy of this order be transmitted to the trial Court concerned for necessary information and follow up action, if any. 34. The party shall file computer generated copy of order downloaded from the official website of High Court Allahabad, self attested by it alongwith a self attested identity proof of the said persons (preferably Aadhar Card) mentioning the mobile numbers to which the said Aadhar Card is linked, before the concerned Court/Authority/Official. 35. The concerned Court/Authority/Official shall verify the authenticity of the computerized copy of the order from the official website of High Court Allahabad and shall make a declaration of such verification in writing. 36. Sri. 35. The concerned Court/Authority/Official shall verify the authenticity of the computerized copy of the order from the official website of High Court Allahabad and shall make a declaration of such verification in writing. 36. Sri. Dinesh Kumar, Advocate who was appointed as Amicus-Curiae in the matter to argue the appeal on behalf of the appellant, shall be paid Rs. 4000/- by the High Court Legal Service Committee. 37. The party shall file computer generated copy of order downloaded from the official website of High Court Allahabad, self attested by it alongwith a self attested identity proof of the said persons (preferably Aadhar Card) mentioning the mobile numbers to which the said Aadhar Card is linked, before the concerned Court/Authority/Official. 38. The concerned Court/Authority/Official shall verify the authenticity of the computerized copy of the order from the official website of High Court Allahabad and shall make a declaration of such verification in writing.